HKSAR v. FUNG CHUN KWAI

HCCC 349/2024
HCCC 350/2024
(Heard together)

[2025] HKCFI 6435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 349 AND 350 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was charged with one count of murder in HCCC 349/2024 and one count of arson with intent in HCCC 350/2024.

2.  At the committal proceedings, the prosecution informed the court that it was prepared to accept the defendant’s offer to plead guilty to manslaughter on the basis of diminished responsibility, now HCCC 349/2024.  The defendant also pleaded guilty to the offence of arson with intent, now HCCC 350/2024. 

3.  The Summary of Facts admitted by the defendant provides, inter alia, as follows. Fung Wai House (“the Building”) is a 22-storey public housing estate.  There are 27 flats on each floor. 

4.  The defendant was at the material time the registered tenant and resident of Flat 1911 on the 19th Floor.  He had been residing in Flat 1911 since 2006.  He originally resided at Flat 1911 with his wife and his sons, but his family moved out of that flat in 2014 and had only occasionally slept in Flat 1911. The defendant’s family last visited Flat 1911 in February 2022, and the defendant had been residing alone in Flat 1911 since then. 

5.  Mr Ng (PW1) and Mr Lee (PW2) were the residents of Flat 1907 and Flat 1910 respectively. Mr C H Siu (“the Deceased”), born in 1994, resided with his father and his grandmother (Madam Ip, age 76) in Flat 1909.  Flat 1909 and Flat 1910 were respectively adjacent of and opposite to Flat 1911. 

6.  At around 2 am on 24 April 2022, PW1 and PW2 were sleeping in their respective flats and they were woken by the smell of smoke/burning smell.  When PW2 was leaving his own flat to check the situation, he saw the defendant alone (without holding anything) and there were three piles of things on fire at the entrance of Flat 1911.  The defendant then turned back into Flat 1911, and PW2 saw the living room of Flat 1911 was also on fire. 

7.  PW1 heard someone shouting at the corridor and saw black smoke emitting into his flat.  When he opened the door to escape from his flat, he observed that the whole corridor on the 19th floor was covered in black smoke.  PW1 also saw the defendant standing in the corridor looking at Flat 1911, at the same time things next to the defendant and Flat 1911 were on fire. 

8.  PW1 met PW2 when trying to escape and they took a fire hose from the 18th floor to try to put out the fire.  When the men were trying to put out the fire, the defendant walked towards them and stood next to them. 

9.  Soon thereafter, at around 2.35 am, police officers and firemen arrived at the scene.  PW1 and PW2 pointed out to the police that the defendant was the person who had set fire.  The defendant was standing near the fire exit.  He was calm and was observed to have suffered some burn injuries. 

10.  The defendant was arrested by the police for arson and under caution, he admitted that he had set fire on his bed and on sundry items at the entrance of his flat because he was unhappy.  The defendant was then sent to the Prince of Wales Hospital for treatment.  On the way to the Prince of Wales Hospital, the defendant was observed by the ambulanceman to be able to communicate coherently. 

11.  Searches conducted by the Fire Services Department detected accelerant residues outside the iron gate of Flat 1911 and at the main entrance. 

12.  Government chemists attended the scene at around 10.15 am on 24 April 2022. Government chemists identified two separate and distinct seats of fire in (i) the living room and (ii) the entrance of the flat, and was therefore of the opinion that the fire to the flat was the result of a deliberate act.  No ignitable liquid however could be found from the defendant nor the burnt debris collected from the scene. 

13.  Around 400 people were evacuated as a result of the fire. 

14.  There were in total seven casualties and six of whom were sent to hospital by ambulances for further treatment, including the Deceased and Madam Ip. 

15.  The Deceased and Madam Ip were trapped on the balcony of Flat 1909.  At around 2.30 am, the Deceased called her aunt, Madam Shiu, and told her that they were trapped. 

16.  The Deceased and Madam Ip were rescued by firemen at around 2.50 am.  Both the Deceased and Madam Ip were unconscious and were in cardiac arrest when they were found.  Cardiopulmonary resuscitation was performed on both of them and they were taken to the Accident and Emergency Department of Prince of Wales Hospital for further treatment. 

17.  The Deceased was still in cardiac arrest upon arrival at the Accident and Emergency Department of the Prince of Wales Hospital.  Cardiopulmonary resuscitation was continued and the Deceased was intubated.  The Deceased subsequently returned to spontaneous circulation and had suffered from a total arrest time of 43 minutes.  The Deceased was transferred to the intensive care unit and bronchoscopy performed therein suggested that the Deceased had suffered from inhalation injury.  It was noted that the Deceased had persistent fixed and dilated pupils bilaterally since admission to the ICU and was eventually certified brain dead at 1.46 pm on 28 April 2022. 

18.  On the other hand, upon arrival at the Accident and Emergency Department, Madam Ip was suffering from post-cardiac arrest and was intubated.  Madam Ip was diagnosed to have suffered from carbon monoxide poisoning.  She was subsequently further diagnosed to have suffered from organic brain syndrome, causing her to suffer from severe cognitive deficit.  Madam Ip’s daughter confirmed that Madam Ip had not suffered from any dementia prior to the incident. 

19.  The Deceased’s mother confirmed that the Deceased had not suffered from any diseases before death. 

20.  The defendant was documented to have insidious onset of suspiciousness and personality deterioration since around 2001, which resulted in significant interpersonal relationship problems as well as functional deterioration.  In 2006 there had been a suicidal attempt by electrocution and he was diagnosed with delusional disorder. 

21.  Psychiatrist Dr Robyn Ho examined the defendant on 19 May 2023 for three hours and prepared a psychiatric report dated 25 September 2023.  In her report, Dr Ho made, inter alia, the following observations:

(1) The defendant had been known to mental health services for more than 15 years.

(2) The defendant had said that he did not intend to kill anyone, but was burning his things as an act of suicide attempt. There were a couple of psychological stressors:

(i) He received a letter from the Housing Authority and the Housing Department, causing him to worry about his flat being taken away.

(ii) The implementation of the Leave Home Safe mobile app and vaccine pass, as he did not know how to use them.

The defendant claimed that he felt distressed with a depressed mood for at least a month before the present offence, and developed a suicidal idea of burning himself.

(3) The defendant was diagnosed with delusional disorder, schizophrenia, and psychosis with secondary depressive symptoms. He had cognitive functioning assessments in Siu Lam Psychiatric Centre soon after his remand and was found to have deficits in multiple domains including memory, executive functioning, abstract thinking, and intellectual functioning.

(4) The defendant was suffering from schizophrenia at the material time of the offence, and his mental state deteriorated as a result of the aforesaid psychological stressors and delusional beliefs, ongoing negative symptoms and cognitive impairments. He was suffering from an abnormality of mind, namely schizophrenia, which substantially impaired his mental capacity for his acts.

(5) Significantly, there was no suspicion or evidence of malingering during the assessment.

22.  Dr Amy Liu, visiting psychiatrist of Siu Lam Psychiatric Centre, had examined the defendant since his remand from 30 April 2022.  She prepared a report dated 25 June 2024, in which she made, inter alia, the following observations:

(1) The defendant reported that he had faced two psychological stressors two months prior to the offence, namely (i) he received some forms from the Housing Authority on his public housing unit, which caused him to worry that his flat would be taken away, and (ii) he did not know how to use mobile apps, such as apps for bank service and Leave Home Safe.

(2) The leaving of his wife and children has induced fleeting suicidal ideas on him, but he did not act out or plan out until he felt that his flat was going to be taken away.

(3) Since his remand in Siu Lam Psychiatric Centre in April 2022, mental state examination revealed that the defendant had progressive development of functional decline, thought disorder, alongside with paranoid ideation. He was diagnosed to be suffering from paranoid schizophrenia. He was observed to suffer from psychotic symptoms and depressive symptoms.

(4) The defendant suffered from both positive and negative symptoms of schizophrenia, secondary depressive mood and suicidal ideation and acts, and cognitive dysfunction, which would impair his judgement and his ability to appreciate the concept of the virtual certainty of resultant death or serious bodily injury from setting a fire.

(5) At the material time, the defendant was suffering from symptoms of schizophrenia, which are regarded to have significant influence on his act, and thus substantial impairments on his mental responsibility in the killing.

23.  Regarding the personal background of the defendant, he has a clear record.  His personal background has been summarised in his Mitigation Submissions as follows.  The defendant is now 60 years of age.  He was born in the mainland.  He was adopted at birth.  He migrated to Hong Kong with his adoptive father in 1989.  He received education up to Primary 5 at school. 

24.  From about the age of 20, he started working as a cook at Maxim’s Restaurant, where he remained for the next 10 years until he noticed some deterioration in his mental health.  Following the onset of his mental health problems at the age of 30, he found he was no longer able to cope with working, and many of his personal relationships also started to deteriorate. 

25.  The defendant was married in 1993 at about the age of 28 with three children born in 1996, 1997, and 2007.  At that time, his family of five occupied Flat 1911.

26.  However, after experiencing mental illness from 2001, his family relationship changed drastically.  His family members gradually moved away from Flat 1911.  At this time, he experienced episodes of paranoia which resulted in him receiving treatment in the psychiatric unit of the Prince of Wales Hospital.  In 2006, he attempted to kill himself by electrocution.  This unsuccessful attempt at suicide resulted in the defendant being diagnosed with suffering from delusional disorder, which led to him spending two months in the Tai Po Hospital Psychiatric Unit. 

27.  From 2007 to 2010, while receiving treatment at the Prince of Wales Hospital for follow-up, he started to experience auditory hallucinations (non‑existing voices) and started to talk to himself.  At this time, he also believed that his wife was going to harm him.  With the further onset of delusional disorder, he spent another month at the Shatin Hospital Psychiatric Unit. 

28.  From then until his episode of offending in this case, the defendant was on medication and regularly attended at the Prince of Wales Hospital Psychiatric Unit for follow-up treatment. 

29.  By 2014, the defendant was left living alone in Flat 1911 which had been previously allocated for a family of five.  His mental health was also in decline.  The defendant has had little or no contact or communication with his wife or sons since.  The defendant recalls believing that when he would go outside to play chess with neighbours in the park, that they would poison him. So he started to remain inside his flat and only watch DVDs. 

30.  In relation to his personal circumstances at the time of the fire, the defendant says that he was unable to use the Leave Home Safe app, which was a requirement at that time to enter private premises during the COVID era.  Although his son did arrange for him to have a smartphone, the defendant says he was unable to operate it properly.  At the same time, the defendant received a notice from the Housing Authority to report the number of occupants in Flat 1911.  As his family members were no longer living there, he started to feel incredibly anxious about having to report that he was the only person living in the flat. This caused him to become worried that he would lose his home and become homeless. 

31.  The compounding effect of these personal matters led the defendant to believe that the best solution for him was to commit suicide, which he attempted to do by lighting the fire.  However, when the fire soon became out of control and his back was burnt, he recalls being in great pain which made him panic.  Although the defendant tried to stop the fire by moving some burning boxes outside, he was unsuccessful and he soon lost control of the situation. 

32.  The defendant also says that at no time did he ever foresee the possibility of causing injuries to anybody else.  The defendant understands the nature of his offending and feels a great deal of incurable remorse for it.  This is because the defendant knows he has caused the death of his neighbour.  His remorse is reflected by his timely guilty plea. 

33.  In manslaughter cases, there are a variety of circumstances in which the offences are committed.  There are understandably no guidelines or tariffs.  In HKSAR v Chiu Wai Kan Vicken, CACC 438/2009 (Judgment dated 30 August 2011) at paragraph 22, Stock VP quoted the dicta of Leonard J in R v Stephen Francis Chambers [1983] Cr App R (S) 190 at 193 as follows:

“In diminished responsibility cases there are various courses open to a judge. His choice of the right course will depend on the state of the evidence and material before him. If the psychiatric reports recommend and justify it, and there are no contrary indications, he will make a hospital order. Where a hospital order is not recommended or is not appropriate, and the defendant constitutes a danger to the public for an unpredictable period of time, the right sentence will, in all probabilities, be one of life imprisonment.

In cases where the evidence indicates that the accused’s responsibility for his acts was so grossly impaired that his degree of responsibility for them was minimal, then a lenient course will be open to the judge. Provided there is no danger of repetition of violence, it will usually be possible to make such an order as will give the accused his freedom, possibly with some supervision.

There will however be cases in which there is no proper basis for a hospital order; but in which the accused’s degree of responsibility is not minimal. In such cases the judge should pass a determinate sentence of imprisonment, the length of which will depend on two factors: his assessment of the degree of the accused’s responsibility and his view as to the period of time, if any, for which the accused will continue to be a danger to the public.”

34.  In the present case, I accept the defendant’s submission that although this incident is a tragic one, the defendant’s fault is mitigated by the fact that he was unable to control his own psychiatric condition.  The defendant’s diagnosis of schizophrenia has substantially impaired his ability to know what was right and what was wrong. 

35.  In the present case, two psychiatric reports have been prepared, and both psychiatrists recommend that a hospital order be made.  Dr Kimberly Yip, in her report dated 1 August 2025, concluded as follows at paragraph 23:

“Although [the defendant’s] mental state had largely settled since mid-2024, he remains to have poor insight towards his mental illness, with prominent negative symptoms and cognitive deficits. [The defendant] remains prone to being sensitive and suspicious when under stressful events. [The defendant’s] lack of insight towards his mental illness, cognitive deficits including impaired judgment and reasoning, render him to be of high violence and suicide risk. Further in-patient psychiatric treatment would be necessary for further consolidation and stabilisation of his psychotic and depressive symptoms via pharmaceutical means. Intensive rehabilitation in a multidisciplinary approach would also be necessary for [the defendant], and has great implications in relapse prevention and risk control: psychological input to work on patient’s insight, psychoeducation, stress-coping strategies, cognitive rehabilitation, and training focusing on [the defendant’s] cognitive deficits; vocational training targeting on improving [the defendant’s] functional level.”

36.  Dr Amy Liu, in her report dated 25 July 2025, at paragraph 12, also concluded as follows: 

“For [the defendant’s] case, a period of treatment under Hospital Order for the consolidation of treatment, rehabilitation and the arrangement of supervised accommodation, would be considered necessary. Symptom- control by pharmaceutical means, intensive rehabilitation by psychological, cognitive, behavioural, and social means, is equally important. It has great implications on the prognosis, and the future risks. Treatment consolidation, instillation of insight, and control on risk of relapse are the most important treatment goals in [the defendant’s] case.”

37.  Both doctors recommend the making of a hospital order, under Section 45 of the Mental Health Ordinance, Cap 136, for an unspecified period. 

38.  I am satisfied that having regard to all the circumstances, including the nature of the present offences, the character and antecedent of the defendant, and to the available methods of dealing with the defendant, the most suitable method of sentencing the defendant is by means of a hospital order, which is necessary for the protection of the public and in the interest of the defendants. 

39.  Accordingly, for both the offence of manslaughter in HCCC 349/2024, and the offence of arson with intent in HCCC 350/2024, I sentence the defendant to a hospital order for an unspecified period at the Siu Lam Psychiatric Centre, under Section 45 of the Mental Health Ordinance.