HKSAR v. GODHANIYA HAJA SAMAT

DCCC 107/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 107 OF 2017

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of arson being reckless as to whether property would be damaged and being reckless as to whether lives of others would be endangered, contrary to sections 60 (2) and (3) and 63 (1) of the Crimes Ordinance[1].

2.  Full particulars of the offence are set out in my verdict delivered on 26 July 2017.  In summary in the early hours of 15 November last year five fires were started on the landings between the 1st and 2nd; the 2nd and 3rd; the 3rd and 4th; the 5th and 6th and the 6th and 7th floors of No. 89 Fuk Wing Street.   

3.  The defendant was only charged with and convicted of the fire on the landing between the 3rd and 4th floors.  The fire was discovered by Mr Chan Yue Man, who resided at Flat B on the 4th Floor of No. 89 Fuk Wing Street, when he woke up at around 3 a.m. to find his flat filled up with smoke. 

4.  CCTV, installed by the resident of Flat A on the 4th Floor of No. 89 Fuk Wing Street, showed the defendant walking up the staircase above the landing between the 3rd and 4th floors.  As the defendant walked up the staircase an orange glow from the fire is seen on the wall of the staircase above the landing between the 3rd and 4th floors.  Shortly after the orange glow became brighter and the staircase filled up with smoke.

5.  On the evidence I was satisfied that the defendant deliberately started the fire and in starting the fire was reckless as to whether any property would be damaged and reckless as to whether the lives of the occupants would be endangered by damage to property by fire.

6.  No 89 Fuk Wing Street is a nine storey building with four units on each floor.  Mr Chan testified that at the time there was no one living on the 3rd floor.

7.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Stephenson and Mr Haldane. 

8.  I take into account the defendant has no previous convictions.  This however carries little weight where the defendant is not a Hong Kong resident.  The court is informed that the defendant came to Hong Kong lawfully in September 2015 and was permitted to stay until 8 October 2015.  On 9 October the defendant surrendered for overstaying and was subsequently released on recognizance pending determination of his claim for refugee status.  

9.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation[2]. 

10.  In submitting the sentence should not be enhanced Mr Haldane refers the court to the judgment in HKSAR v Loku Galappaththige Pramuka Salinda[3].  The defendant a Form 8 Recognizance holder was convicted after trial of arson with intent.  The sentence was not enhanced by reason of the defendant being a Form 8 Recognizance holder[4].  The Court of Appeal in noting the applicant was a Form 8 Recognizance holder did not say this should have been considered as an aggravating factor.  

Reports

11.  Before passing sentence I called for psychiatric and psychological reports to know more about the defendant.  I have carefully considered the content of the reports which set out details of the defendant’s background and why he came to Hong Kong[5].

12.  The visiting psychiatrist Dr Tang is of the opinion the defendant does not suffer from any formal psychiatric disorder which warrants psychiatric management[6].  The clinical psychologist Sherry Im is of the opinion there is no evidence indicating a diagnosis of pyromania or other psychological problems which warrant clinical attention. Psychological follow-up is deemed unnecessary[7].

Sentence

13.  Offences of arson are to be treated by the court as very serious.  The facts of cases varying so much there are no guidelines.  In HKSAR v Kung Pak Fu[8]the Court of Appeal, after reviewing a number of cases, said:

“……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.”

14.  Each case depends on its own facts and circumstances.  This is clearly shown by the sentencing cases submitted by Mr Haldane[9]. I have carefully considered these cases.  I note not all are cases of arson with intent. 

15.  Mr Haldane specifically refers to HKSAR v Hung Pang Chi where I took a starting point of 12 months for arson with intent.  The facts of that case were entirely different.  The defendant acted out of impulse as a result of the need to sleep and stress after the recent loss of his father; the fire was during the daytime and not at night time when occupants would be asleep and the defendant quickly put out the fire.

16.  The lighting of a fire in a multi-storey residential building risks the lives of all other occupants of the building, in particular when the fire is started in the early hours of the morning when occupants are asleep[10].

17.  Although the damage to the landing of the staircase was minimal, smoke quickly engulfed the staircase.  Mr Chan woke up to find his flat filled with smoke.  The potential harm that can be caused by smoke cannot be underestimated.   Fortunately, the court has not been told of anyone suffering ill-health as a result of smoke inhalation. 

18.  Taking into account all the circumstances, including the fire was started in the early hours of the morning when the occupants of the building would be asleep; the location of the fire was the staircase landing where the occupants disposed their rubbish as shown in photograph 4[11]; the staircase was the only access to the building; the damage to the staircase landing was minimal; there is no evidence any of the occupants required medical treatment as a result of smoke inhalation; no accelerant was used[12]; and the fire had nothing to do with triad, intimidation or revenge, I am satisfied the proper starting point after trial is 2 years imprisonment.    

19.  I am satisfied this is not an appropriate case to enhance the sentence by reason of being a Form 8 Recognizance holder.

20.  You are sentenced to 2 years’ imprisonment.