HKSAR v. FUNG CHI HOI

DCCC 426/2023

[2023] HKDC 1602

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 426 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Arson[1]". He set fire to his home, which is a public housing unit.

Summary of Facts

Background

2.  The defendant is a retired person and a long-term schizophrenia patient.  He resides at a public housing unit situated at 8^th Floor, Lee Hong House, Shun Lee Estate, Sau Mau Ping ("the Flat")  with his wife Madam Gao (PW1).

The incident

3.  In the early hours on 4 February 2023, the defendant had some abnormal behaviour. About 7:00 a.m. that day, he started drinking brandy in the Flat and PW1 went to work.

4.  About 8:30 in the same morning, PW1 was notified that the defendant was making a scene at the management office of Shun Lee Estate.  She brought the defendant back to the Flat.  Upon returning home, the defendant continued his abnormal behaviour and drinking brandy.  PW1 returned to work since the defendant had behaved similarly before.

5.  About 12:13 p.m. on the same day, Madam Sagotoy (PW2), a foreign domestic helper working at the unit across the corridor from the Flat (Flat 2), heard someone hitting the metal gate of Flat 2 and screaming "Fire".  She opened the wooden door of Flat 2 and saw the defendant with a blackened face.  She also saw some newspaper burning in the Flat and a lot of smoke coming out of the Flat.  PW2 immediately brought Madam Chow (aged 97)  who was under her care to the Ground Floor.  After the fire was put out, PW2 returned to Flat 2.  She found the metal gate and wooden door of Flat 2 having been burnt, but no property inside was damaged.

6.  About 2:00 in the same afternoon, PC 9556 (PW3)  arrested the defendant for "Arson".  Under caution, he claimed that he was cooking noodles in the kitchen of the Flat.  The stove exploded and caught on fire after he went out of the Flat for a smoke.  However, a fireman who attended the scene found the stoves in the Flat to be in order.

7.  In his video recorded interview conducted on 5 February 2023, the defendant admitted, inter alia, that he was a mental patient and had to take his medication daily. He did not take his medicine before the incident because he had consumed alcohol.  He clarified that he gave a random answer (to PW3)  upon arrest since he was drunk and feeling complicated.  The defendant claimed that he was very drunk and used newspaper to burn his bed.  The fire started on his bed, which was placed near the wooden door of the Flat.  He explained that he felt sad after arguing with PW1, so he burnt some newspaper to release his anger.  Upon seeing fire on his bed, the defendant tried to put it out but was unsuccessful.  The defendant claimed that he had consumed 15 cans of beer and 3 to 4 glasses of brandy.  He was very drunk and his reaction was slow.  Finally, he knocked on the door of Flat 2 and asked the residents to leave.

Mitigation & Sentence

8. The defendant is 73 and has 18 conviction records, none of which was related to "Arson". Defence counsel Mr. Chan informed me that the defendant used to be a cook at a fire station. He retired in 1992 due to his waist injury. He is a pensioner and also receives the Old Age Allowance.

9. In mitigation, Mr. Chan submitted that in addition to his mental health issues, the defendant also suffers from cardiac and eye problems[2]. He is an alcoholic and committed the present offence after drinking when he was emotionally unstable. He is remorseful for his mistake and understands the serious consequences of his reckless acts. Mr. Chan stressed that although the defendant set his home on fire, he did not just run away; he tried to put out the fire and alerted his neighbours. He made frank admissions to the Police when he became sober.

10. There are no sentencing guidelines for "Arson" offences. After reviewing a number of cases, the Court of Appeal in HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 held :-

"… 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[3]."

11. I have carefully considered all mitigation advanced by Mr. Chan. I have also obtained this defendant's latest psychiatric report, which states that his current mental condition, in abstinence [from alcohol], is stable. There are no signs of mental or cognitive disturbance.

12. Although the defendant is a psychiatric patient, he is the sole cause of the fire in this case. He has no one but himself to blame. He should have refrained from drinking, knowing himself to be an alcoholic.

13. It is most fortunate that PW2 was able to remove the aged Madam Chow from the scene expeditiously. She ought to be commended for her bravery and loyalty to Madam Chow. A fire in a multi-storey residential building (whether started intentionally or recklessly)  puts lives at serious risks[4]. It is also a relief that no one was injured and only the metal gate and wooden door of Flat 2 were damaged.

14. I consider 21 months' imprisonment[5] to be the proper starting point for this case. With the timely guilty plea, the sentence is reduced to 14 months. Apart from this, I see no other mitigating factors which warrant any further reduction, not even the defendant's age or health conditions (be they mental or physical). I sentence the defendant to 14 months' imprisonment.

15. I also invite the Commissioner of Correctional Services to arrange for the defendant to continue his outpatient psychiatric treatment.