HKSAR v. LAU CHUNG KWAN

DCCC 355/2019

[2019] HKDC 1285

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 355 OF 2019

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REASONS FOR SENTENCE

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1.  On 9 September 2019 the defendant pleaded guilty to one charge of arson intending to damage property and being reckless as to whether the lives of others would be thereby endangered, contrary to sections 60 (2) and (3) and 63 (1) of the Crimes Ordinance[1]. Sentence was adjourned for preparation of psychological and psychiatric reports.

2.  Full particulars of the offence are set out in the facts admitted by the defendant on 9 September.  In summary, at around 9:52 a.m. on 12 January this year the defendant started a fire outside a shop situated inside the Mongkok MTR station.  At the time the MTR station was busy with many passengers passing through. 

3.  The fire burnt for about one minute, did not spread and extinguished itself.  A burn mark was left on the ground as shown in photographs submitted to court.

4.  Soon afterwards firefighters attended the scene.  Traces of accelerant were detected by the accelerant detection dog Goose.  

5.  Police investigation revealed that about half an hour before the fire broke out the defendant had bought a bottle of paint thinner from a nearby tool store and was present near the flame when the fire broke out.

6.  The defendant was arrested the next day[2]. Under caution the defendant admitted, inter alia, that he was laid-off by his ex-employer and was upset; contemplating suicide he bought a bottle of paint thinner; when passing through the MTR station he felt the urge to set himself on fire; he poured the thinner on the ground and set fire by using a lighter to burn paper torn from a notebook at which time he noticed the closest person to him was about five feet away; on seeing the flame he became scared and abandoned the idea of committing suicide and left throwing away the bottle of thinner on his way home.

7.  Enquiries with the defendant’s ex-employer revealed the defendant had been laid off in December last year after working in the restaurant for one month and that the defendant occasionally returned to the restaurant and lingered outside and argued with the staff of the restaurant.    

8.  Police investigation also revealed that about ten minutes before the fire broke out the defendant went to the restaurant where he used to work and lingered outside the restaurant.

Mitigation

9.  In passing sentence, I have carefully considered the oral and written submissions of Ms Moosdeen, including that the defendant, aged 60, worked for the Water Supplies Department for twenty-five years until his retirement in 2008 after which he lived on his pension and disability allowance[3]. I take into account the defendant has a clear record.

10.  I take into account that the defendant has a history of psychiatric illness and told the police, the psychiatrist and the psychologist that on the day he attempted to commit suicide[4]. The reports show that the defendant has been diagnosed with Bipolar Affective Disorder.

11.  The clinical psychologist is of the view that the risk of reoffending would depend on the defendant’s mental stability and compliance to psychiatric treatment and that increased personal support might moderate the risk of violent recidivism. No psychological treatment is recommended[5].

12.  The psychiatrist is of the opinion that further inpatient treatment in a supervised setting is warranted to protect safety of the public and the defendant and that if the defendant is given a custodial sentence recommends that he be transferred to Siu Lam Psychiatric Centre for continuation of psychiatric treatment[6].

13.  Ms Moosdeen asks the court to consider a hospital order.  In the circumstances I am satisfied that a custodial sentence is appropriate with a recommendation that the defendant continue to receive psychiatric treatment at Siu Lam Psychiatric Centre. 

Guidelines

14.  Offences of arson are to be treated by the court as very serious.  The facts of cases varying so much there are no guidelines.  Each case depends on its own facts and circumstances.

15.  In HKSAR v Kung Pak-fu,,the Court of Appeal, after reviewing a number of cases, said[7]:

“……arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its 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 case.”

16.  In HKSAR v Law Chun Man the Court of Appeal set out factors to be considered in arson cases, including the motivation of the defendant, the actual damage done, the potential damage to life and property and whether the arson was an isolated incident[8].

17.  Ms Moosdeen submits the customary range of sentence is between 4 to 6 years and refers the court for consideration three judgments from the Court of Appeal[9]. 

Use of accelerant

18.  The use of an accelerant is a factor of considerable aggravation in the commission of the offence[10]. Chung Wai Wah, a forensic scientist with the Government Laboratory found traces of acetone and aromatic compounds, which are highly flammable organic solvents, on a towel and the defendant’s shirt, vest, bag and cigarette box[11].

19.  The fire having burnt out before it took hold and spread; the photographs showing damage to the MTR station was limited to the burn mark on the ground and only traces of accelerant were detected by the accelerant detection dog Goose indicate that very little accelerant was used.    

Sentence

20.  Even though the defendant said he did not intend to injure or harm anyone he must understand that the lighting of a fire in a busy MTR station risks the lives of many people.  Fortunately, damage was limited and no one was injured as a result of the fire.

21.  Taking into account all the circumstances, including that the fire was started in an MTR station; the station was busy with many persons passing through; the fire had not spread; damage to the station was not extensive; no one was injured; accelerant had been used but the quantity was most likely small and had burnt out or evaporated and that defendant is 60 and has a clear record, I am satisfied the proper starting point after trial is 4 years’ imprisonment.   

22.  Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 8 months’ imprisonment.

Mental illness

23.  In HKSAR v Chiu Peng, Richard[12] the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

24.  The defence have submitted to court a psychiatric report prepared by Dr Jessica Yam who has repeatedly examined the defendant since his remand to Siu Lam Psychiatric Centre on 21 January this year. 

25.  I have considered the content of this report together with an update report from Dr Yam and a psychological report prepared by clinical psychologist Backy Tong.

26.  Both the clinical psychologist and the psychiatrist refer to the defendant having a history of Bipolar Affective Disorder, the defendant having first been known to the mental health service in 1987[13].

27.  The defendant has had numerous hospitalizations for mental instability and has been attending psychiatric follow up for the past 30 years.  The defendant was last admitted to hospital in 2015.

28.  The clinical psychologist reports that prior to the offence the defendant had stopped his psychiatric medication for a week.  On the day of the offence he went to the restaurant where he had previously worked.  When the restaurant refused to employ him again the defendant felt disappointed and went to buy thinner intending to commit suicide.  The defendant also wanted to test the faith of the people around him saying if they believed in God they would not be scared[14].

29.  The defendant told the psychiatrist that he intended to buy a bottle of thinner to clean his home and visit his ex-employer.  The defendant feeling upset when his ex-employer refused to hire him again felt he was old and useless and developed the idea of burning himself[15]. He also said he had the idea of differentiating between believers and non-believers by observing their reaction to the fire.

30.  The clinical psychologist is of the opinion that the offence was likely an act with self-harm intention and that the defendant tended to rationalize his behaviour with his unusual zeal for religion to test others’ faith and showed deficiency in thinking of the possible undesirable consequences of his behaviour[16].   

31.  Having carefully considered the reports I am satisfied that the defendant’s mental health may well have played a part in the commission of the offence whereby his culpability was lessened.  In the circumstances I reduce the sentence by 4 months to 2 years and 4 months’ imprisonment.       

32.  The defendant is convicted and sentenced to 2 years and 4 months’ imprisonment.  

33.  I recommend that while serving sentence the defendant continue to receive psychiatric treatment at Siu Lam Psychiatric Centre.