HKSAR v. CHENG KAN YUNG

DCCC 1011/2018

[2020] HKDC 134

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1011 OF 2018

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own guilty plea of the charge of attempted arson being reckless as to whether life would be endangered, contrary to sections 60(2) and (3), 63(1) and 159G of the Crimes Ordinance, Cap.200. The Particulars of Offence read:

“CHENG Kan-yung, on the 31^st day of July, 2018, at the reception area, 6^th Floor, East Wing, Justice Place, No.18 Lower Albert Road, Central, in Hong Kong, without lawful excuse, attempted to damage by fire the reception desk and the surrounding area, the property belonging to another, intending to damage such property, and being reckless as to whether the life of another would be thereby endangered.”

Facts

2.  At about 3:50 pm on 31 July 2018, the defendant went to the office of the Department of Justice at Justice Place, No.18 Lower Albert Road, Central, Hong Kong, and claimed that he had some documents to submit. After registration, the defendant was accompanied by a security guard (the “Security Guard”) to the reception area on the 6^th Floor of the East Wing of Justice Place.

3.  The defendant put his shoulder bag on the reception desk and took out a glass bottle containing some clear liquid. He smashed it against the reception desk, causing it to break and the liquid was poured over the surrounding area. A staff of the Department of Justice sitting at the other end of the reception desk separated by a transparent screen could smell thinner. The defendant then lit a lighter and said that he wanted to die. At that time, the Security Guard subdued the defendant and the lighter fell on the ground without setting fire to the reception area.

4.  The Security Guard escorted the defendant to the ground floor. The case was reported.

5.  The defendant was arrested by the police. In a cautioned interview, the defendant admitted that he was known to the psychiatric services and there had been voices telling him to die. At the material time, he brought thinner and a lighter to Justice Place intending to commit suicide.

6.  The police seized another glass bottle (the “Bottle”) containing clear liquid from the defendant’s shoulder bag left on the reception desk. The police also seized some glass fragments (the “Glass Fragments”) and a lighter (the “Lighter”) from the scene.

7.  After examination, the Government Laboratory confirmed that the Bottle contained about 610 millilitres of colourless liquid containing mainly xylene and ethyl benzene. Traces of an organic mixture containing mainly xylene and ethyl benzene were also recovered from the Glass Fragments. Xylene and ethyl benzene are highly flammable organic solvents which are common constituents in paint thinner mixtures. Furthermore, the Lighter could produce a flame when its switch button was pressed.

The defendant’s previous record and antecedent

8.  The defendant has three previous convictions of criminal intimidation resulting from one magistracy case in which a probation order for 12 months was imposed in February 2009.

9.  The defendant was born in June 1944 and is now 75. He received education up to Form 5 level and then studied at a nursing school. He began working as an enrolled nurse in Queen Elizabeth Hospital in 1967, and then in the intensive care unit of Prince of Wales Hospital until he retired in 1999. After his retirement, he worked at an elderly home from 2003 to 2006.

10.  He is married with three grown up children. Prior to his detention, he lived with his wife in a public housing estate.

Mitigation

11.  It was submitted in Ms Nam’s written Skeleton Submissions on Mitigation that at the material time, the defendant went to the Department of Justice intending to set fire on himself to commit suicide out of desperation and hopelessness – as a result of various litigations relating to the defendant’s pension and the costs order(s) against the defendant, the defendant was under tremendous stress which greatly impaired his mental health. Ms Nam elaborated that the defendant was made bankrupt after the financial crisis in 2003. Because of that, a significant portion of his monthly pension payment was withheld by the Official Receiver’s Office for repayment of debts. The defendant had sought assistance from various government departments but in vain. Between 2007 and 2018, the defendant instituted at least six litigation cases concerning the deduction of his pension, and he was ordered to pay a total of about $240,000 being costs of those litigations. He was also disturbed by his convictions of criminal intimidation which were related to his dispute with the government regarding his pension. Further, about two months before the commission of the present offence, the defendant’s son was about to get married and the defendant tried to get his money back from the government in order to assist his son financially. All those matters contributed to the deterioration of the defendant’s mental condition since 2003.

12.  Ms Nam submitted a letter dated 10 September 2018 from the Civil Litigation Unit of the Department of Justice to the defendant showing that the defendant’s dispute with the government regarding the defendant’s pension was settled. Ms Nam submitted that as a result of the resolution of the pension dispute, the chance of the defendant re-committing further offences is extremely low.

13.  Ms Nam referred this court to HKSAR v Ching Kam-pui CACC 269/2002 and HKSAR v Ng Wing-hung DCCC 499/2017.

14.  A number of mitigation letters were also submitted to this court asking for leniency.  

Psychiatric reports

15. On 20 January 2020 when the defendant pleaded guilty to the charge and was convicted, the latest medical report available was one dated 25 March 2019 from a medical officer of Stanley Prison saying that the defendant’s general condition remained satisfactory. There was no updated psychiatric report on the defendant’s current mental condition. As it was submitted that the defendant was known to the mental health services since 2003 and that the defendant committed the present offence due to the deterioration of his mental condition, I consider it prudent to call for two psychiatric reports to see if the defendant needed further psychiatric treatments.

16. The psychiatric reports are now available. It was stated in Dr SH Lui’s report that: “Cheng suffered adjustment and mood problems. The stress is now removed and his mood stable. He should continue to attend the psychiatric outpatient clinic for medication and advice.” In Dr So Wai Lam Jane’s report, it was stated that: “CHENG was assessed to have adjustment disorder. His mental state remained stable during his remand at SLPC. He does not require further inpatient psychiatric treatment. He is recommended to continue receiving psychiatric follow-up at the outpatient clinic.” In light of the opinions given in the psychiatric reports, imposing a Hospital Order is out of the question.

Sentence

17. It was stated in paragraph 13 of the Skeleton Submissions on Mitigation that:

“On arrival at the 6^th floor, the reception area behind which sat PW2 Ms Cheung was separated by a glass screen which only had a very small port hole through which documents and/or parcels could be passed from A to B. As such when the Defendant smashed the bottle of thinner, the endangerment to life would have been minimal. He was easily subdued by the security guard who had accompanied him upstairs.”

During mitigation, Ms Nam confirmed that when the defendant smashed the bottle of thinner against the reception desk, the Security Guard was with the defendant and was not shielded by glass screen. As such, the defendant’s conduct there and then could have set fire on the Security Guard. I disagree Ms Nam’s submission that the risk of life endangerment by the defendant’s conduct was minimal.

18. Further, whilst it was submitted in mitigation that the defendant only intended to commit suicide, it was admitted by the defendant that he smashed the glass bottle against the reception desk causing the thinner contained in the bottle being spread over the surrounding area. One can imagine that once the thinner in the surrounding area was lit, fire would be set thereby causing damage to the reception area and injury to any person in touch with the thinner and hence the fire. If the defendant’s intention was purely to commit suicide, he did not have to smash the glass bottle causing the thinner being spread over the surrounding area.

19. Furthermore, whilst it was submitted that the defendant only intended to set fire on himself, his conduct in public shows that he intended to make people in that area witness what he was going to do thereby stun them by his horrific conduct.

20. In Ching Kam-pui, the applicant was convicted after trial and was sentenced by the trial judge for a term of 4 years’ imprisonment. On appeal against sentence, the Court of Appeal substituted a sentence of two and a half years’ imprisonment. Paragraph 11 of the judgment of Ching Kam-pui reads:

“In general, an arson case attracts 4 to 5 years’ imprisonment, but each case has to be decided on its own facts, such as R v Shum Hon Kai [1988] 2 HKLR 341, the court therein held that an appropriate sentence for defendants setting fire to a multi-storey building with inflammable materials during late night can be 8 years’ imprisonment. The applicant in this case did not use inflammable materials such as kerosene or gasoline when he committed the arson. He only used a lighter to ignite newspapers to burn the wooden door. This case does not concern criminal syndicate taking revenge or collecting debt either. Despite that fact that the applicant had no mental illness symptoms, he was not a wholly mentally sound person either. At the time he committed the offence, he was already 79 years old, his behavior must have been affected by the dementia diagnosed. We consider the special feature in this case and ruled that the appropriate sentence should be two and a half years’ imprisonment.”

21. Unlike Ching Kam-pui case where the applicant used a lighter to ignite newspapers to burn the wooden door, in the present case the defendant used thinner containing mainly xylene and ethyl benzene which are highly flammable. He smashed the glass bottle containing thinner causing the thinner spread over the surrounding area. Those are features more serious than those in Ching Kam-pui case.

22. Having carefully considered the facts of the present case and the mitigation advanced by Ms Nam, I will adopt a starting point of 32 months’ imprisonment.

23. The defendant pleaded guilty to the charge on 20 January 2020. Prior to that, this case was listed for plea and sentence hearing on 2 September 2019 but on that occasion, the defendant said he would plead not guilty to the charge. The case was then listed on 5 September 2019 for trial commencing 20 January 2020. By a letter dated 6 December 2019, the defendant’s solicitors sent the court a letter stating that the defendant would plead guilty to the charge. I apply the Court of Appeal’s guideline set out in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and give a discount of about 21.875% to the defendant for his indication of guilty plea after listing on 5 September 2019 but for trial. The sentence is therefore reduced to one of 25 months’ imprisonment.

24. There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 25 months’ imprisonment. I also recommend the Director of Correctional Services to give the defendant during his imprisonment psychiatric treatment as required by the psychiatrists.