HKSAR v. LEE KA HO

DCCC 956/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 956 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 28 December 2015, the defendant appeared before this court and pleaded guilty to one charge of arson, preferred against him pursuant to sections 60(2) and 63(1) of the Crimes Ordinance, Cap 200.

Facts

2.  At about 11:00pm on 17 August 2015, the defendant’s girlfriend received from the defendant some whatsapp messages saying he was going to kill himself, together with photographs of his living room on fire.  The police and firemen arrived quickly at the defendant’s unit at Room 3519 Kui Yat House, Yat Tung (2) Estate, Tung Chung, New Territories.  They noticed smoke in the corridor and found the defendant inside the unit; the fire had by then been put out, but there was smoke in the flat; on the floor at the centre of the living room was found a burnt area measuring 1.5m x 1.5m.  The defendant was arrested for the offence of arson.  He said under caution that he had used a lighter to burn some paper in the living room in order to catch the attention of his girlfriend.  The lighter and a can of thinner were seized by the police; in a subsequent cautioned interview, the defendant denied having used the thinner in setting the living room ablaze.  Photographs depicting the flame in the living room and the state of the unit after the fire had been put out were submitted to the court: they showed the fire had been a significant one and that the unit was in an obvious state of disarray, strewn as it was with paper, debris, and broken furniture.

Mitigation

3.  The defendant is 32 years of age.    He has received education up to Form 3 level and has 14 conviction records involving a total of 18 charges, none of which are similar to the present offence.  His last conviction was entered against him on 5 December 2011 in respect of an offence of ill-treatment or neglect of a child or young person in his charge, for which he was sentenced to three years and four months’ imprisonment.  A drug addict, he has been unemployed since his discharge from prison on 18 October 2013.

4.  In his plea in mitigation, Mr Eric Chan, solicitor appearing for the defendant, submits to the court a letter issued by the Psychiatric Rehabilitation Association dated 22 December 2015 certifying that the defendant has been referred to the Association for assistance in June 2015 and that he has received psychiatric attention until his remand in Siu Lam in November 2015.  In respect of the present offence, Mr Chan stresses that no one has been injured, the defendant himself has extinguished the fire before the arrival of the police, no accelerant has been used, and the fire has not been expected to last as it was only paper that the defendant has burned.  Mr Chan suggests that the unit could have been blackened due to an accidental fire the day before the incident.  It is the defendant’s wish, says Mr Chan, to marry his girlfriend who is now several months’ pregnant with his second child and with whom he has reconciled.  Referring to HKSAR v Cheng Cheung Lung[1], a case of arson in which a starting point of 21 months’ imprisonment was adopted, Mr  Chan asks the court to be as lenient as possible in sentencing the defendant.

5.  In his letter handed up to court shortly before pronouncement of sentence, the defendant says he has attempted to commit suicide 12 times and alleges that he committed the present offence in an attempt to take his own life.

Discussion

6.  In The Queen v Shum Hon-kai and anor[2], the Court of Appeal has had the occasion, decades ago, to examine the proper sentencing consideration in cases of arson in a residential building.  It is unwise, held the Court of Appeal, to attempt to lay down any guidelines as the degree of seriousness of the offence might vary considerably from one case to the next.  Commenting on the case of The Queen v Chan Yuk Kuen[3], the Court of Appeal said:

“ We have been referred by both counsel to criminal appeal 402/80 (C.A.) Chan Yuk Kuen where, in a similar case, another Division of this Court commented that it felt the tariff sentence for this type of appeal should be at least 4 to 5 years. That however was a case where the applicant had acted on the spur of the moment in a moment of extreme stress. …

The sentence in Chan Yuk Kuen's case was. only 2 years imprisonment but that took into consideration very strong mitigating factors including her mental condition. It was not disturbed on appeal.” (emphasis supplied)

The Court of Appeal then referred to the case of The Queen v Tsang Chu[4], and said:

“ A more recent decision in this Court is criminal appeal 462/86Tsang Chu. Thecharge of arson arose out of events on 29th May 1984 at the Golden Harvest Film Studio in Hammer Hill Road. … After trial the appellant was found guilty and sentenced to 4 years imprisonment.

The judgment of Penlington J., as he then was, refusing to disturb that sentence, contained the following passage:

"In R v Chan Yuk Kuen this court had said that for arson, a sentence of 4 - 5 years should be regarded as appropriate, though of course this can go up or down substantially depending on the particular circumstances. … It is not clear whether there was any danger to him or to any other person who was in the premises and we must assume, in favour of the applicant, that was not so. Nevertheless, we see no reason whatever why we should interfere with the sentence of 4 years imprisonment imposed in respect of the arson charge.”

So the sentence in that case was considered against a background in which the degree of danger to persons was not at all clear.” (emphasis supplied)

Finally, taking into account mitigating factors available to them, the Court of Appeal imposed on each of the two appellants in The Queen v Shum Hon-kai and anor[5] a term of imprisonment of six years, saying:

“ It is our considered view that when a person commits arson of this sort in a multi-storey domestic building, in the middle of the night, a sentence of 8 years would not be inappropriate. We considered that in the circumstances of the case 10 years was too high a starting figure.”

7.  Next, in HKSAR v Kung Pak Fu[6], a case in which the arsonist himself suffered second-degree burns covering 30% of his body, the Court of Appeal said:

“16. In order to protect the lives and properties of the public from serious threats, acts of arson – in particular those relating to triads or involving intimidation or revenge – must be sanctioned with heavy, deterrent sentences. …

22. In HKSAR v Cheung Wing Siu CACC 76/1998, … the defendant, who had an argument with his father, vented his anger by pouring inflammable liquid over the furniture in the house and setting it ablaze. Although the fire was contained quickly, the defendant’s conduct had plainly put the lives of his father and other residents at risk. The first instance judge adopted a starting point of 4 years, and this was upheld by the Court of Appeal. …

The Court of Appeal had the appeal disposed of in this way:

24. … In our view, this case stemmed from nothing more than a family dispute and the applicant committed the offence on the spur of the moment and in extreme anger. There was evidence that the applicant was an irascible person. The relevant psychologist’s report also indicated that the applicant was addicted to drinking and alcohol would diminish his ability to control himself. When drunk, the applicant would very easily become irritated and quarrel with his wife. …

26. We do not intend to make any comment to the effect that the present offence is trivial, still less to diminish the applicant’s culpability for that reason. As we see it, however, there are a number of mitigating factors in the present case. …

34. Had the applicant persistently committed the offence of arson, the court would, in the interests of the public, certainly have passed a sentence comparable in severity to the one imposed in the case of HKSAR v Lo Po Tak [1998] 3 HKC 485. We consider that there are circumstances in the present case that justify a merciful approach to sentencing. …

35. Notwithstanding the serious nature of the offence committed by the applicant, the original sentence of 6½ years’ imprisonment is, in light of the mitigating factors, manifestly excessive. In our judgment, a term of imprisonment of 4 years is sufficient.”

8.  The arsonist in HKSAR v Cheng Cheung-lung[7] (the case referred to by the defendant before this court) had an argument with his wife and had consumed a quantity of alcohol before setting fire to some clothes and miscellaneous items in an attempt to commit suicide.  He was sentenced, upon his own plea, for an offence of arson, contrary to section 60(1) of the Crimes Ordinance, Cap 200, the prosecution having accepted that the defendant was reckless about damaging property only.  Two psychiatrists opined that the defendant had alcohol dependency syndrome and had abused methamphetamine; hospitalization was unnecessary, however.  In adopting a starting point of 21 months’ imprisonment, the sentencing judge made reference in a footnote to HKSAR v Lau Fong Yu[8].

9.  The facts in HKSAR v Lau Fong Yu[9] are as follows.  The defendant (whose husband had repeatedly assaulted her) had a heated quarrel with her husband in the morning and set fire that evening to two empty bedrooms with thinner before surrendering herself to the police.  She pleaded guilty to the offence of arson – like the present case – contrary to sections 60(2) and (3) of the Crimes Ordinance, Cap 200.  The sentencing judge considered the usual starting point for such offences should be six years’ imprisonment; having regard to the history of emotional distress the defendant had suffered and to other mitigating factors, the judge adopted a starting point of three years’ imprisonment and reduced it to two years for the defendant’s guilty plea.  Refusing the application for leave to appeal against sentence, Ma JA (as he then was) described the starting point of three years’ imprisonment as very lenient and extremely sympathetic.  His Lordship said:

‘5. In my view, there is no doubt that the applicant shows remorse and is unlikely to repeat this or indeed any other offence. However, I cannot see how the learned judge erred in any way. He had taken into account all the relevant factors in favour of the applicant and if anything, was very lenient towards her. He had taken, if I may say so, an extremely sympathetic and understanding view of the applicant and her problems.

6. Arson remains one of the more serious crimes. The fact that no one was hurt in the present case was very fortunate. The applicant’s home was a flat within a block of flats. The learned judge said this: “It is hard to imagine a more irresponsible and reckless act than to set fire to a flat in this way when it was only one flat in a block of over 30-storeys”.’ (emphasis supplied)

10.  In the view of this court, HKSAR v Cheng Cheung-lung[10] is clearly distinguishable: it concerned an arson without reckless endangerment of life, whereas the defendant in the present case was convicted of an arson being reckless as to whether the lives of others would be endangered. 

11.  The day before the offence in the instant case, an accidental fire broke out in the defendant’s unit, rendering the unit charred and blackened.  The defendant must therefore have been aware of the fire risk where he lived.  In spite of that risk, he himself started a fire in the living room, a fire that could in no way be described as negligible, at around 11:00pm the next day. The circumstances in which the defendant set the living room on fire could not possibly have warranted a finding that he was acting in an obvious and significant state of distress, discontent with his girlfriend as he might very well have been for ignoring him.  The photographs supplied by the prosecution show that the unit was in a messy state.  Even without the use of accelerant, a fire started in the middle of that amount of debris could have easily gotten out of hand and become uncontainable, thereby endangering the lives of the occupants of the building; the defendant must have been fully conscious of this risk. 

12.  The two psychiatrist reports obtained by the court show that the defendant has been in custody after his arrest for the present offence and was, upon his remand in Siu Lam, diagnosed as suffering from psychosis with substance abuse.  The two psychiatrists certify that the defendant’s mental condition has since improved with antipsychotic treatment; in-patient treatment is considered unnecessary.

13.  The court rejects the defendant’s claim that he committed the present offence in an attempted suicide: it is contrary, first, to his own act in extinguishing the fire and, secondly, to what he said under caution, namely, that he committed the offence to attract his girlfriend’s attention.

14.  In all the circumstances of this case, the appropriate stating point is one of four and a half years’ imprisonment.  The defendant is entitled to one-third discount for his guilty plea, resulting in a term of imprisonment of three years.  A further two months’ discount is granted to the defendant for the residual mental condition he is currently suffering.

Conclusion

15.  For the offence of which he stands convicted, the defendant is sentenced to two years and ten months’ imprisonment.