HKSAR v. LAN XUFENG

DCCC 445/2022

[2023] HKDC 1459

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 445 OF 2022

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REASONS FOR SENTENCE

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1.  Mr Lan pleaded guilty before me to one charge of Arson with intent to endanger life, contrary to sections 60(2)  and (3)  and 63(1)  of the Crimes Ordinance, Cap 200.

2.  Particulars of the offence are that he, on 15 February 2022, outside Room 802, Nga Kwai House, Kwai Chung Estate, Kwai Chung, New Territories, in Hong Kong, without lawful excuse destroyed or damaged by fire one iron gate and one wooden door, property belonging to the Hong Kong Housing Authority, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and intending thereby to endanger the lives of others or being reckless as to whether the lives of others would be thereby endangered.

Facts admitted by Mr Lan

3.  PW1 (aged 17)  resided with his grandparents in Room 802, Nga Kwai House.  Mr Lan lived in nearby Room 803.

4.  On 15 February 2022, at about half-past eleven in the morning.  Having received a report that there was a fire on 8/F of Nga Kwai House, security supervisor PW3 rushed to the G/F lobby of the building intending to go up.  There, he met with Mr Lan who told him that there was a fire on 8/F and asked PW3 to report to the police.

5.  PW3 went up with Mr Lan to 8/F.  Some items on the outside of Room 802 were on fire.  PW3 knocked on the door.  PW1 and his grandmother (aged 80)  were inside.  PW1 opened the door but he and his grandmother could not get out.  PW3 tried to put out the fire with fire hose.

6.  Meanwhile, Mr Lan went back down to G/F and admitted to the on-site security guard PW2 that he was related to the fire.

7.  Eventually, the fire was put out; but an iron gate and a wooden door belonging to the Hong Kong Housing Authority installed outside Room 802 were destroyed or damaged by fire.  Case was reported.

8.  Mr Lan admitted to police that he had set fire outside Room 802 by burning his quilt.  Upon search, a lighter was found in Mr Lan’s backpack.  Mr Lan was arrested for Arson.  Under caution, Mr Lan claimed that since (the residents of)  Room 802 had used laser weapon to keep him under surveillance, he burned their door using the quilt.

9.  In a subsequent cautioned VRI, Mr Lan repeated his admission upon arrest, adding:-

(a)  Room 802 had caused him nuisance for a long time and he set fire with his quilt to scare the people there; and

(b)  He did not know what the laser weapon was.

10.  Mr Lan now admits he had, outside Room 802, without lawful excuse destroyed or damaged by fire the iron gate and the wooden door, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged, and intending thereby to endanger the lives of others or being reckless as to whether the lives of others would be thereby endangered.

Criminal record

11.  Mr Lan has a previous clear record.

Antecedents

12.  Mr Lan is aged 49 (48 at the time of the offence).  He completed early secondary education in the Mainland.  He had previously worked as a driver and was unemployed before arrest.  Mr Lan is single and resided alone in public housing in Kwai Chung.

Mitigation

13.  Mr Jonathan Ah-Weng assigned by the Director of Legal Aid mitigated on behalf of Mr Lan.  The following is a summary of the mitigation submissions.

14.  Since 2006, Mr Lan has suffered from various symptoms of Schizophrenia. In 2021, he was diagnosed as having suffered from Paranoid Schizophrenia. Between 13 December 2021 and 31 January 2022, Mr Lan was admitted into Kwai Chung Hospital.  After his discharge, he was mentally stable, but still required psychiatric medication.  Prior to the offence, he visited the West Kowloon Psychiatric Centre every 6 months.  He had to take 6-7 pills a day.

15.  At the time of the offence, he felt that his next door neighbor at Room 802 was using laser weapon to keep him under surveillance.  Out of impulse, Mr Lan used his lighter to set fire to his duvet, and placed it outside Room 802. He did his best to minimize damage.  He admitted immediately to his conduct and was fully cooperative in the police investigation.

16.  Fortunately, no persons were injured.  The offence is not connected with triads, intimidation or revenge.

17.  Mr Lan did not intend to endanger the safety of others or cause damage to the property; he was simply reckless as to these consequences.  It was an impulsive act.  He acknowledges his action was very irresponsible and wishes to take up legal and moral responsibility.

18.  Due to public health (COVID)  situation, the case has been adjourned. This caused some inadvertent delays, which were stressful to Mr Lan.  Mr Lan has been in remanded custody for more than 19 months in Siu Lam and he prays that he can be released soon and continue his living.

19.  In 2012, Mr Lan (then 39)  came from the Mainland to Hong Kong to be reunited with his parents.  He first worked in a supermarket.  Then, due to his continuing depression and anxiety, he stopped working.  He started living on CSSA and disability allowance.  His mother passed away in 2014.  His father also passed away recently in February 2023.

20.  There is no sentencing guideline for arson: HKSAR v Kung Pak Fu (transliteration), CACC 429/2007, at para 23.

21.  Mr Ah-Weng referred to the following cases for comparison purpose should this court be minded to sentence Mr Lan to a term of imprisonment:-

(a)  HKSAR v Li Lin Sum, aka Li Sum, DCCC 974/2014; and

(b)  HKSAR v Wong Chun Kit, DCCC 1029/2017.

22.  Mr Ah-Weng submitted two medical reports under the hand of Dr Danny Tam, SMO of West Kowloon Psychiatric Centre, both dated March 2023, in support of his recital of Mr Lan’s medical history.

Summary of the psychiatric reports

23.  I have called for and received two psychiatrists’ reports in accordance with section 46 of the Mental Health Ordinance, Cap 136.

24.  Of the two reports, the one by Dr Samuel Tsang, is the more detailed.  I shall extract parts of it and repeat them below:-

“LAN was known to the mental health services since 2012, soon after arriving in Hong Kong… for feeling distressed by his neighbours’ noises… He believed the neighbours ,,, colluded … to persecute him. He was impressed to be suffering from schizophrenia. Psychiatric admission was recommended, but his relatives requested discharge with acknowledgement of medical advice. Since then, he had received regular follow-ups at the West Kowloon Psychiatric Centre… LAN’s paranoid delusion persisted with doubtful drug compliance. He believed his upstairs and next-door neighbours wanted to ‘drive him crazy’ by creating noise to disturb him, including loud door banging and marble-dropping noises. He also believed they used specific machines to generate ‘hallucination-like voices’ calling his name. He also believed they used military-grade laser guns to shoot at his body to induce pain and dizziness. He believed his neighbours had tampered with his computer, phone and TV. He believed there were probably around 100 persecutors who ganged up to target him, yet he could only identify his upstairs and next-door neighbours. He had reported to the police repeatedly and had written letters to the Hong Kong Chief Executive to complain about his neighbours. …, he had several episodes of leaving faeces and urine outside his neighbour’s door… LAN was admitted to Kwai Chung Hospital (KCH)  … for throwing faeces outside his neighbour’s flat. He was discharged with … antipsychotic. He continued to harbor similar paranoid beliefs against his neighbours after discharge… LAN has been remanded to SLPC since February 2022. There has been limited improvement in his mental condition despite multiple antipsychotics being used. He continued to harbor paranoid delusions against his neighbours. Despite being in custody, he reported having a similar painful sensation on his fingers and toes, and he attributed it to his neighbours’ use of laser weapons.”

25.  Dr Tsang was of the opinion that Mr Lan “is diagnosed with paranoid schizophrenia.  He remains floridly psychotic with active persecutory delusions despite prolonged treatment during remand.  He has poor insight into his mental illness.  Given his repeated retaliation towards his deluded persecutors, he poses a high risk of violence.  In-patient treatment would be necessary.” (emphasis added)

Further mitigation in light of the psychiatric reports

26.  Apart from saying that the two psychiatric reports have been explained to Mr Lan and the latter agreed with them, Mr Ah-Weng has nothing further to say.

Sentence

27.  I have considered the facts of the case.  I have seen the photo album produced by the prosecution showing the damage done by the fire.  I have read the two psychiatric reports called for by the court.

28.  I have considered the mitigation submissions including the further mitigation submissions made by Mr Ah-Weng today.

29.  Both psychiatrists are of the firm view that Mr Lan is still suffering from Paranoid Schizophrenia and is actively psychotic.  As such, for Mr Lan’s best interests and for the protection of the community, a Hospital Order would appear to be the best sentencing option.

30.  Having read the psychiatrists’ reports, I am satisfied that:-

(a)  Mr Lan is a mentally disordered person; and

(b)  the nature or degree of the mental disorder from which Mr Lan is suffering warrants his detention in a CSD Psychiatric Centre or a mental hospital for treatment.

31.  In considering whether to impose a Hospital Order in lieu of imprisonment, I bear in mind the interests of Mr Lan and the protection of the public.

32.  In HKSAR v Chiu Yu To [2001] 3 HKC 186, 192, Stuart-Moore VP (as he then was)  said:-

“Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.”

33.  I am therefore of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of Mr Lan, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a Hospital Order.

34.  I am further satisfied that arrangements have been made for the admission of Mr Lan to Siu Lam Psychiatric Centre within 28 days from today.

35.  Both psychiatrists recommended detention for a period of 4 to 6 months.

36.  Before deciding on the length of detention, I have had regard to the time Mr Lan has already spent in remanded custody in Siu Lam, and the likely term of imprisonment that I would have passed on him had I taken that sentencing option.

(Mr Lan, please stand)

37.  In the premises, I sentence Mr Lan by imposing on him a Hospital Order made under section 45 of Cap 136, authorizing him to be admitted to and detained in Siu Lam Psychiatric Centre for a period of 4 months.