HKSAR v. TUNG MIN CHEUNG

DCCC 997/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 997 OF 2013

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Reasons for Sentence

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1. The defendant has pleaded guilty to a charge of arson being reckless as to whether life would be endangered, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200. He also pleaded guilty to a charge of possession of an offensive weapon, namely a hammer, on the same occasion.

2. The facts disclosed in the Summary of Facts and admitted by the defendant state that PW1, a Mr Leung Wai‑hong, who is 70 years of age, has been a friend of the defendant for a number of years.  At 5 pm on 13 July, the defendant went to Leung’s home, which is on the 3rd floor of a building in Tai Nan Street, Sham Shui Po.

3. After opening the door for the defendant, PW1 went to the kitchen.  In the living room there were four other friends of PW1, and they were playing mahjong, and I can see from the photographs there is a mahjong table there.  I am told that one of the friends playing mahjong was in fact the defendant’s daughter‑in‑law.

4. Then a fire started in the living room.  Later, the defendant poured some liquid onto the floor, and the fire became larger. After that, the defendant held a hammer in his hand, and wanted to hit PW1. However, the defendant was stopped by other friends who were there, and the hammer was taken away from the defendant.

5. PW1 saw that there was smoke at the living room area, and his four friends, who were staying in the living room, were blocking the way of the defendant.  The defendant then accused PW1 of having an affair with a lady called “Ah Jan”.  I am told that she is a lady the defendant has regarded as his girlfriend, and they have had a relationship for a number of years.  The defendant also shouted out “Die together”.

6. PW1 then helped his friends to push the defendant out of his home.  An inspection of the living room revealed the two cans placed on the floor of the living room.  The cans were on fire.  PW1 then put out the fire with wet towels, and he noticed that there was black smoke damage caused up the wall near where the fire was started near the wall of his flat.

7. The matter was reported to the police, and the hammer and the two metal containers were seized from PW1’s home.

8. On the following day the defendant surrendered himself to the police and was arrested.  When interviewed under caution, he said he misbelieved that PW1 was having a relationship with his girlfriend, “Ah Jan”.  He said that “Ah Jan” had been his girlfriend since 2006.  He said that he was angry and wanted to attack and frighten PW1.  He bought a hammer, a lighter, and two cans of toluene, and took them to PW1’s home.  He said he set fire to the cloth on the can of toluene, but the fire was put out by others. The defendant said that as he saw PW1 coming out from the kitchen, he wanted to use the hammer to attack him but he was stopped by others, and he questioned PW1 as to whether or not he was having an affair with “Ah Jan”.

9. The two cans of toluene were sent for forensic examination and it was confirmed that the mixture contained mainly toluene, and that this is a highly flammable organic solvent and is a common constituent in paint thinner mixtures.  It would appear that the cans would contain about half a gallon of solvent.

10. The defendant is 75 years of age and has a clear record.  He was born in Nanhai in 1938 and came to Hong Kong in 1954.  He had received Form 3 education on the mainland.  He has been retired since 2005, and previously had worked as a garment factory worker.  He is currently living on public assistance.  His wife died in 1993, and he has three sons by that marriage.  He lives with his second son and his wife, and I am told that the second son suffers from epilepsy, and he looks after his son.  I am also told that the defendant has cataracts and is now almost blind.

11. On a previous occasion one of my colleagues had asked for a psychiatric report.  The psychiatrist who carried out that report concluded that the defendant is not suffering from any major psychiatric illness, and when he asked the defendant about the incident, the defendant appeared calm and settled, with a polite attitude.

12. It seems that the motivation for this offence was his anger and jealousy.  He was angry with and jealous of PW1, whom he wrongly suspected was having an affair with his girlfriend.  I am also told that he was annoyed because his daughter‑in‑law frequently went to the home of PW1 in order to play mahjong and neglected his son.  On the day of the offence, his daughter‑in‑law was one of the four persons playing mahjong at the home of PW1.  I am told that it was out of this anger and frustration that the defendant took the reckless step which he did to start the fire at the home of PW1.

13. Counsel for the defendant has underlined that the defendant surrendered himself to the police the day after the offences, co‑operated with the police, and has pleaded guilty today.  I am told that the defendant is very remorseful.  I am told also that the defendant is most concerned about his second son.  I am told that he was expecting his son to visit him in the last few days, but he failed to do so, and he was also expecting him to arrive at court today, and again, his second son failed to come to court, and perhaps this is a matter which ought to be brought to the attention of the Social Welfare Department to see what the situation is.

14. As counsel has acknowledged, arson, because of the inherent danger in any uncontrolled fire, is always regarded as an offence of particular gravity.  In this case, the arson offence was premeditated.  The defendant bought a hammer and two cans of toluene to take to the victim’s home.  He used both cans to start fires in the victim’s living room and had to be stopped by others from attacking the victim with a hammer.

15. However, the defendant is 75 years of age and has never been in trouble previously.  He surrendered to the police.  He pleaded guilty at the earliest opportunity, and has shown remorse.

16. Although arson is a serious offence, I noted that in this case, the fires were started whilst there were four friends of the victim present, and it appears it was easily contained.  In my view, the offence committed by this defendant is at the lower end of the spectrum of gravity for offences of this kind.

17. Given the defendant’s age, his clear record and the matters that have been urged upon me in mitigation, I have decided to take a starting point of 30 months’ imprisonment, and I reduce that to 20 months to reflect the defendant’s guilty plea.

18. In respect of the 2nd charge, in my view, the appropriate starting is one of 2 months’ imprisonment after plea, and having looked at all the circumstances and the question of totality, I order that that run concurrent to the sentence imposed in respect of Charge 1.

19. The defendant will therefore go to prison for a total of 20 months.