HKSAR v. CHOW CHUEN SUM

DCCC 878/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 878 OF 2016

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to 1 count of arsoncontrary section 60(1), 60(3) and 63(1) of the Crimes Ordinance, Cap.200. The particulars are that he, on 26 November, 2015, at the warehouse, DD 98, Lots 287-290, Ki Lun Tsuen, Lok Ma Chau, New Territories (hereinafter referred to as ‘the said warehouse’, without lawful excuse, damaged by fire the said warehouse and the property inside it, namely a quantity of tiles, intending to damage such property or being reckless as to whether such property would be damaged.

Facts

2.   The ‘Summary of Facts’ admitted by the Defendant discloses that the said warehouse, with an area of 10 meters x 80 meters, was occupied by ‘Goodways Building Materials Trading Ltd.’, hereinafter referred to as ‘Goodways’,  at the material time  and was used by Goodways to store building materials, namely tiles. Two staff members worked there and managed the said warehouse.

3.  The Defendant lived at a village house adjacent to the said warehouse.  Between the Defendant’s village house and the said warehouse, there was an open area of about 50,000 square feet that was full of weeds.

4.   On 26 November, 2015, at 14.30 hours, the two staff members of Goodways were working at the said warehouse. They saw a lot of smoke coming from the open area beside the said warehouse.  One of them went to the open area and saw that the Defendant had set a fire to burn the weeds – the area that was burning was about 100 feet x 20 feet (i.e. 2,000 square feet).  As the fire was very close to the said warehouse, he warned the Defendant that it was easy for the fire to spread to the said warehouse. The Defendant ignored the warning and said he could manage.  The staff member returned to the said warehouse. However, within 2 to 3 minutes, the fire spread to the said warehouse.  The two staff members immediately escaped from the said warehouse and reported the fire to the Fire Services Department.

5.  Police officers and firemen arrived at the scene and saw that the weeds in the open area as well as the said warehouse were on fire.  Firemen arrived at 15.05 hours and the fire was completely put out at 17.20 hours.

6.  There were no casualties as a result of the fire.  However there was property damage:  the said warehouse was severely damaged, with the repair cost being HK$2,500,000 and the goods stored inside the said warehouse, namely 1,343,134 pieces of tiles valued at HK$13,320,338 were also damaged.

7.  At the material time, the weather was dry and clear. The ‘red’ fire danger warning signal was hoisted. The wind was moderate. 

8.  The scene was examined and the conclusion was that the fire was caused by ‘flying ember from control burning of vegetation ignited nearby combustibles of the Warehouse and, in turn, set fire to the warehouse’.

9.  The Defendant was arrested at 15.50 hours on 26 November, 2015. Under caution, he admitted that he had set fire to burn the weeds. He was present at the scene to control the fire, but for some unknown reason the fire spread to the said warehouse.

10.  In a subsequent record of interview under caution, the Defendant said that there was an open area of about 50,000 square feet between his home and the said warehouse.  The open area had been occupied by his father-in-law for several decades to carry out agricultural activities.  He set a fire with a lighter in the open area to clear the weeds so that he could use the land for farming. The burning location was very close to the said warehouse, about 2 to 3 feet only.  He had been warned by staff from the said warehouse of the danger of fire before the incident. After about 10 minutes, because of the strong wind, the fire spread to the said warehouse.

11.  An album of 31 photographs were also produced by agreement, depicting the scene of the fire.

12.  By his plea, the Defendant has admitted that at the material time and place, without lawful excuse, he damaged by fire the said warehouse and the property therein belonging to Goodways, being reckless as to whether such property would be damaged.  I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge, and accordingly I convicted the Defendant of the charge.

Previous convictions& Antecedent Statement

13.   The Defendant has a clear criminal record.  No issue was taken on the contents of the Antecedent Statement, which disclosed that the Defendant is now 54 years old.  He was born in China, where he was educated to primary school level between 1968 and 1973.  He came to Hong Kong in 1978. He had worked as a waiter and delivery worker in Hong Kong, and at the material time he was a driver.  He is of good health, and has no triad background.    

Mitigation

14.   In mitigation, Mr. Kwong submitted that the Defendant was divorced in 2006. He has 2 daughters aged 26 and 28 years here in Hong Kong.  He was a truck driver and earned HK$12,000 a month.

15.  Mr. Kwong submitted that for offences of arson, there was no tariff – each case was decided on its own facts.  He submitted a number of cases to assist the Court.  In HKSAR v. Kung Pak Fu, CACC 429/2007, a serious case of arson where there were aggravating features, a starting point of 6 ½ years’ imprisonment was taken. Another case setting out the matters to be considered by a sentencing court was HKSAR v. Law Chun Man [2012] 4 HKLRD 320 at paragraphs 35 to 38.  Counsel also cited DCCC 260/16 and DCCC 402/16, HKSAR v. Lo Po Tak, CACC 608/1997, and DCCC 855/2015, as examples of sentences imposed by courts in Hong Kong for arson cases.

16.  Mr. Kwong submitted that the offence here was not premeditated. The Defendant had committed the offence out of stupidity and recklessness. He had poor knowledge of how to prevent the fire from spreading.  He had been burning the weeds to clear the land for farming. He offered his apologies to the victim.  He was remorseful, as reflected by his plea. He was of a previous clear record. He was unlikely to re-offend. He had co-operated from the outset.  There was no triad element or intimidation involved. He had used a lighter but no accelerant.  No one had been injured.  Although the damage to the property of $2,500,000 was not covered by insurance, the damage to the contents i.e. the tiles of HK$13,320,338 was covered by the insurance.  Thus the loss was to the insurance company and not to Goodways.

17.  There were three letters in mitigation submitted – one from the Defendant himself, one from his daughter and one from his employer, all seeking leniency.   As a result of the present offence, the Defendant also had emotional problems.

18.  After hearing Counsel in mitigation, I adjourned sentence until today, calling for a Background and a Psychologist’s Report.  These reports are now before me.  The Defendant through his Counsel confirms that he admits the contents of these reports.  He urges leniency for the Defendant.

Sentence

19.  Section 63(1) of the Crimes Ordinance, Cap. 200, provides that a person guilty of an offence of arson under Section 60 of the Ordinance shall be liable on conviction upon indictment to imprisonment for life.

20.   Defence Counsel pointed out that Section 60(1) is the less serious limb of an arson charge and that the Defendant pleaded guilty on the basis of deliberately setting fire to the weeds in the open area, and being reckless that the fire would spread to the said warehouse and thereby cause damage to the said warehouse and the property therein.

21.   Defence Counsel stressed that there was no planning, no triad involvement and no use of accelerant such as petrol. The risk of damage to other property was relatively low. The offence should fall on the lower end of the scale of seriousness.

22.  I have carefully considered all that has been urged upon me in mitigation by Mr. Kwong, as well as the cases that he has submitted and the contents of the letters in mitigation as well as the reports before me.

23.  The Background Report confirms much of what has been submitted in mitigation by Mr. Kwong, The Defendant lives with his younger daughter in a public housing unit. His elder daughter is married and lives apart.  His wife deserted the family in 2000 and her current whereabouts are unknown.  She was addicted to gambling and had accumulated a huge debt – she deserted the family to avoid being harassed by loan sharks.  The Defendant is currently in a relationship with another divorcee who was his colleague when he worked as a security guard at a carpark and they co-habit at his cohabitee’s maiden home at Ki Lun Tsuen, the village house that has been referred to in the ‘Summary of Facts’.    When interviewed at the Lai Chi Kok Reception Centre, the Defendant admitted his negligence caused the fire that destroyed his neighbour’s warehouse.  He said he was willing to pay compensation of $10,000.  His employer was also interviewed and he praised the Defendant as a reliable and co-operative staff member with good team spirit in the 5 years that he has employed the Defendant.  He was willing to continue to employ the Defendant.   The clinical impression of the clinical psychologist was that the Defendant was passive and introverted.  His employment history was stable.  She opined that the Defendant had committed the offence out of neglect. He used fire to clear the weeds to save time and effort, failing to recognize the possible danger and overestimated his ability to control the fire.  There was no evidence of any violent tendency or pyromania, a psychological disorder of compulsive fire-setting.  He appeared remorseful and his risk of re-offending was assessed to be low.

24.  There are no sentencing guidelines for offences of arson.  After reviewing a number of cases, the Court of Appeal in HKSAR v. Kung Pak Fu [2008] 2 HKCLRT 240 held at paragraph 23 on page 245 that:

“......arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because the gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular offence.”

25.  In my view, the following factors are relevant.  A lighter was used to set the fire – no accelerant was used. The Defendant set the fire to clear the weeds on the farmland so that the farmland could be used for farming.  The fire was set very close to the warehouse. It was in the daytime.  When the staff members who were working in the warehouse saw that there was a lot of smoke coming from the open area beside the warehouse, one of the staff members went to the open area and warned the Defendant that it was easy for the fire to spread to the warehouse. However, his warning was ignored by the Defendant, who said he could manage. At the material time, the weather was dry and the “red” fire danger warning signal was hoisted.   2 to 3 minutes after the staff member returned to the warehouse, the fire spread to the warehouse.  When police officers and firemen arrived, the weeds and the warehouse were on fire. The firemen arrived at 15.05 hours and it was not until 17.20 hours that the fire was fully put out.  The Defendant was reckless as to whether the fire he set would cause the damage that it did.

26.   The damage to property was not insignificant. The warehouse was severely damaged and the repair cost was HK$2,500,000 – it was not insured.  The damage to the building materials inside the warehouse amounted to HK$13,320,338.  I am told that this was covered by insurance.

27.   No one was injured but had the two staff members working in the warehouse not managed to escape, they could have been seriously injured by the fire. 

28.  There is no evidence to suggest that the Defendant’s conduct involved triads, intimidation or revenge.

29.   An offence of arson is always viewed as a dangerous crime, because how a fire can develop is unpredictable even to those trained in fighting fire. How quickly a fire can rage out of control and the damage it can cause to life and property is immense. The seriousness of the offence of arson is reflected in the maximum sentence of life imprisonment deemed necessary by the legislature.

30.  Bearing in mind the seriousness of the offence of arson, but also taking into consideration all the facts referred to above, I find that the offence committed by the Defendant falls in the lower end of the spectrum of seriousness. 

31.  I find that there are no aggravating circumstances in the Defendant’s commission of the offence. I also find that there are no mitigating factors other than the Defendant’s guilty plea.

32.   Having consideredthe seriousness of the offence and the particular circumstances of this case, I find that a proper starting point is that of 2 years’ imprisonment.

33.   The Defendant would be sentenced to 16 months’ imprisonment after giving him a discount of one-third to reflect his plea of guilty.

34.  Counsel did submit that this matter has been hanging over the Defendant for almost a year, but no issue of delay was raised.  The date of the offence was on 26 November, 2015, and the Defendant was arrested on the same day.  The matter was first brought up in the District Court on 14 October, 2016 when the Defendant indicated that he would be pleading guilty.  No explanation has been offered by the Prosecution as to why it took so long for the matter to be brought to Court.  I am satisfied that some credit should be given in sentence for the time it has taken for this matter to be brought to Court. In the circumstances, I would reduce the sentence by a further one month.  I am satisfied that there are no grounds to further reduce the sentence.

35.  The Defendant is therefore sentenced to 15 months’ imprisonment.

36.  I do note that the Defendant has indicated to the interviewing officer for the Background Report that he was prepared to pay HK$10,000 as compensation.   The damage to the warehouse was severe and the repair costs HK$2,500,000 while the damage to the building materials in the warehouse amounted to HK$13,320,338.  I find myself unable to give him any credit for his offer to pay compensation of HK$10,000.

37.  I have considered whether there are any circumstances to warrant my suspending this sentence.  I can see none.  The Defendant is sentenced to 15 months’ imprisonment on the charge.