HKSAR v. LIANG SHAO YING

DCCC 56/2020

[2020] HKDC 562

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 56 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant is convicted of one count of arson, contrary to section 60(1) and (3) and 63(2) of the Crimes Ordinance, Cap 200, on his own plea and agreement to summary of facts.

Facts

2.  At all material times, PW1 was a cleaner responsible for the maintenance of the male toilet on the 1^st floor of The Lane Shopping Mall, Tseung Kwan O. 

3.  At around 8 am on 20 September 2019, PW1 checked all cubicles of the toilet and found they were in normal conditions. 

4.  At around 9:02 am, PW1 closed the toilet for cleaning. 

5.  At around 9:08 am, whilst he was cleaning, he saw some smoke coming from cubicle number 5 of the toilet, with burning smell emitting therefrom.  When PW1 went up to check, he saw defendant coming out from that cubicle towards the toilet exit.  PW1 then went to check that cubicle, where he found burning tissue paper on a sanitiser dispenser inside the cubicle.  PW1 then successfully put out the fire using newspapers and another roll of tissue paper. 

6.  As a result of the fire, a roll of tissue paper and a sanitiser dispenser, valued in total $211, were damaged.  A report was made to the police.

7.  On 21 September 2019, ie the following day, the security manager of the mall, who watched the relevant CCTV footage of the arson incident, encountered and recognised defendant, whose facial appearance and jacket worn highly resembled to the person who he suspected setting fire at the toilet, in the corridor leading to the toilet.  He reported to the police and defendant was arrested for arson upon arrival of the police officers.

8.  Upon arrest, five lighters were found inside the rucksack defendant was carrying. 

9.  CCTV footages captured defendant entered the toilet at around 8.17 am and left at around 9:07 am on 20 September 2019. 

10.  At the material times, the damaged sanitiser dispenser and roll of tissue paper were properties belonging to MTR Corporation Limited.

Criminal record

11.  Defendant has a clear record.

Mitigation

12.  Defendant was aged 18 at the time of offence. He is now

aged 19.

13.  It was said that defendant was born in Taiwan. His parents were separated when he was only a baby.  He has not seen his mother ever since.  In year 2013, when he was almost 12, he was taken to Hong Kong by his father, who left defendant soon afterwards.  Father and son rarely met each other.  In fact, defendant did not know his father’s whereabouts.

14.  With the intervention of the Social Welfare Department, defendant was sent to Boys’ Home and later to hostels run by NGOs.

15.  He studied up to Form 4.  Although his academic performance was not good, defendant did not give up.  He applied for a car repairing course under the Teens’ Programme of VTC.  However, he failed owing to the limited placement.

16.  Defendant was determined to live on his own when he reached 18.  He went on to share a flat with a friend of his own.  However, he had to move out when he found that the compromises had become more and more difficult.  With limited resources, he had become homeless carrying his personal effects as he went around.

17.  Defence counsel submitted that out of kindness, defendant had tried to mediate the dispute between his friend and his girlfriend shortly before the incident.  The same, however, later led into a scuffle and defendant felt unhappy.  He then went to seek comfort from his girlfriend, who also disappointed him.  An argument resulted.

18.  In the morning of the offence, defendant went to seek counselling from a social worker and failed to meet the counsellor.  He then went to the shopping mall and he also went to the toilet because he had a stomach ache.  He felt distressed and being unable to handle the emotion, he wrongly committed the offence.

19.  It is said that he now feels remorseful and frankly admitted the guilt.

20.  Mitigation letters from defendant’s paternal aunt and uncle and an outreaching social worker were handed to this court for consideration.  These all confirmed that defendant had an unhappy childhood. Parents divorced when he was young and he went to live with his father and his cohabitees, during which he was physically and mentally abused.  He was brought to Hong Kong by his father from Taiwan and left with his paternal grandparents.  His father lost contact with him ever since and he was later sent for the care and attention by the Social Welfare Department.

21.  It was said that the defendant was a caring person although his mood was sometimes unstable.  He was sceptical, rebellious, lack of discipline and ill tempered.

22.  It was also said that defendant might have committed the offence to attract care and attention of other people, without his own knowledge.  They all ask that this court do give the defendant a chance for him to start afresh.

23.  Defence counsel submitted further that there is no sentencing guideline for the offence of arson and that each case depends on the facts of the particular case.  He admitted that arson is a very serious offence and he reminded this court to consider the factors as set out in the Court of Appeal case of Law Chun Man [2012] 4 HKLRD 320.

24.  Defence counsel submitted that in this case the fire was discovered by PW1 almost immediately after it took place.  PW1 just put it out by newspapers and a roll of tissue paper.  No actual injury to person was caused and the actual loss of property was small, valued only at $211. 

25.  He also submitted that the incident occurred in a cubicle of a toilet in a shopping mall and that at the material time the toilet was suspended for routine cleaning and therefore no one but the defendant was inside the toilet. 

26.  He further submitted that, as it was early in the morning on a working Friday, people in the shopping mall was few.  He said that PW1 did tell the police that the male toilet was distant from the shops and that the incident did not affect the shops.

27.  It was said the defendant used a wrong way to deal with his emotion and that the offence was an isolated incident, with no triad or revenge element. 

28.  Defence counsel asked this court not to impose a deterrent sentence. 

29.  He also asked this court to consider the authorities of HKSAR v Kung Pak Fu [2008] 2 HKCLRT 235, HKSAR v Law Chun Man [2012] 4 HKLRD 320, HKSAR v Chan Kau Chai [2016] HKEC 1643, HKSAR v Chung Kwok Sing [2016] HKEC 1237, HKSAR v Frank Azzem Hasso [2018] HKEC 2894, HKSAR v Wong Kwong Wa [2018] HKEC 2455.

Discussion

30.  Arson is a very serious offence.

31.  On conviction upon indictment, a person is liable to imprisonment for life.

32.  In this case, arson occurred in the toilet of a shopping mall underneath a multi-storeyed residential premises and above an MTR station.  Any fire could potentially result in unexpected death, injury to person and damage to property.

33.  From the floor plan of the mall, one could see that the subject toilet cubicle was just on the other side of the partitioning wall. 

34.  It was lucky for all that the fire was detected soon and put out shortly after the smoke was seen coming out from the cubicle and as a result of which the property damage was small. 

35.  It was said that no incendiary device was used, but in fact defendant admitted to the psychiatrist that he used a lighter to light up the tissue wrapping the hand sanitiser dispenser due to curiosity.  He also told the clinical psychologist that he committed the offence out of sheer boredom and he denied any stress at or before the time of the offence.

36.  The fact that the defendant admitted using a lighter to light up the tissue wrapping the sanitiser dispenser did not come as a surprise to this court because defendant on the following day in the corridor leading to the said toilet had five lighters on him.  This court will not speculate the purpose of having five lighters on him at the time nor why he was in the corridor leading to the subject toilet on the following day.

37.  In this case, defendant acted alone.  There is no evidence that this is not a one-off incident resulting from defendant’s mismanagement of emotion at the time or, on his admission, curiosity or sheer boredom.

38.  This court has also considered all the psychiatrist’s report dated 2 June 2020, psychological report, the detention centre and the training centre reports dated 10 June 2020.  Whilst this court would not repeat contents of the reports here, the reports do confirm the background of the defendant as submitted by defence counsel. 

39.  Clearly, defendant had an unhappy childhood and he had been cared for by the Social Welfare Department for a long time in the past, shifting from homes and institutions in between.  Although he worked, he had failed to maintain a stable job and he had difficulty in complying with rules. 

40.  Defendant was noted to be suffering from attention deficit and hyperactive disorder and conduct disorder, and was receiving regular follow-up treatment at government hospitals.  However, it was said that he discontinued taking the drugs prescribed.  He had also received clinical psychology services in the past but he declined to continue such service as he was resistant to psychological intervention.

41.  The psychiatrist was of the view that he does not need inpatient psychiatric management but rather he needs outpatient follow-up. 

42.  The clinical psychologist, on the other hand, is of the view that his pervasive failure to conform to social norms with respect to lawful behaviours, impulsivity, irritability, reckless disregard for others’ safety and lack of remorse for his misdeed suggested a profile of antisocial personality disorder. 

43.  It was said that he showed limited insight regarding his own problems and that his risk of re-offending similar offence was assessed to be moderate.  Major risk factors identified included his criminal attitude, irritability, poor impulse control, weak social relationships, unstable accommodation, employment and financial condition. 

44.  It was said that, in order to facilitate his rehabilitation, psychological intervention focusing on his early interpersonal trauma and ADHD symptoms, including weak management skills and impulse control, is highly recommended.

45.  But, given his resistance to receive psychological service at the present stage, professional input to enhance his insight of his problems and readiness to engage in the above intervention is deemed necessary.

46.  In addition, continuous community support upon his discharge to assist his re-integration into the society and sustain his motivation for psychological intervention when needed would be beneficial.

47.  As for the training centre and the detention centre reports, the officer preparing the reports said that defendant claimed he regretted his misdeeds and that he committed the offence out of impulse.  He was noted to have received disciplinary actions for disobeying the staff’s order whilst he was remanded in Pik Uk Correctional Institution.  The report also suggests that the defendant is mentally, physically and psychologically fit for detention in both the detention centre and the training centre. 

48.  The officer recommended defendant for a detention centre order.

49.  This court noted that defendant had been in remand for about 9 months by now.  This is the first time he had transgressed the law.  He had an unfortunate childhood.  Although the same was not a valid reason for his commission of the offence, but this, in my view, could just on borderline served as a valid mitigating factor. 

50.  This court is of course aware that sentencing in serious offence, deterrent sentence is generally a norm.  In fact, even on the authorities referred to me by defence counsel, one could see that those defendants were being sentenced to long periods of imprisonment for this same offence.

51.  On this occasion, however, in view of the circumstances of the case, the mitigation advanced on defendant’s behalf, in particular, defendant’s guilty plea, the fact that he has been in remand for 9 months, his willingness to repay the compensation on his discharge and the support from the paternal aunt and uncle, this court, in the hope that defendant might start afresh by complying with the norms of society and by his determination to exercise control on his own emotions, is willing to make a detention centre order. 

52.  Defendant should, however, bear in mind that, should he reappear in any court of law for another serious offence, he could not expect any mercy.