HKSAR v. CHEUNG WING SIU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 76
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. This Applicant pleaded not guilty originally at his trial in the District Court to alternative charges of arson, alleging that he either committed arson with intention to endanger life or being reckless as to whether the life of another would be endangered. The particulars of these offences make this clear, although the usual form of this indictment should also have shown this in the Statement of Offence. For some reason this was overlooked although it has no bearing on this appeal.

2. On 2nd January 1998, the Applicant pleaded guilty to arson being reckless as to whether the life of another would be endangered following an amendment of the particulars to that charge, and he was found not guilty of the other offence. A Probation Officer's Report was then obtained and on 16th January 1998, Judge Davies sentenced the Applicant to 3 years' imprisonment. The Applicant now seeks leave to appeal against his sentence.

3. In his grounds of appeal, he makes reference to the Judge having reached his decision without considering the degree of damage to the things which were left at the scene. He believes that the Judge had not considered the case in the light of this being a family dispute and today he has told this that he acted on a momentary impulse which makes this not such as serious case as the judge seems to have thought it was. He has told us that his father was drunk at the time which led to a heated argument and finally he adds that, as a single parent, he needs to be able to support his son.

4. In passing sentence the Judge said this:

"This offence was committed as an expression of anger on the part of this defendant who had quarrelled with his father. His father had been resting in the room at the time of the quarrel. Contrary to what the prosecution had said in opening, the defendant's father's evidence was that he was not inside the room at the time the fire was actually started by his son pouring inflammable fluid over the furniture, but that he had been at the doorway having been pushed out of the room by his son. This evidence undermined the allegation that the defendant had intended to put his father's life at risk. It was, however, plain on the evidence that not only was the father's life at risk by this defendant's reckless action, but so were the lives of all the residents within this public housing block, something which would have been obvious to any ordinary, prudent bystander.

The defendant, once he had set the furniture ablaze, fled the premises and was not seen again until he was arrested some two months later. He clearly had no regard for the likely consequences of his actions which could have been catastrophic. The fact that the fire was contained quite quickly had nothing whatever to do with any action on the part of this defendant.

There had been no dispute at any stage of proceedings that it was this defendant who had deliberately set the furniture ablaze.

I have been urged by defence counsel to recognise the defendant's change of plea is the first real opportunity for him to plead guilty to the charge as amended. I do not accept that this was the first real opportunity. The amendment may sound more acceptable to the defendant in that it does not identify his father specifically as being a person at risk, but it clearly does not exclude him from the category of 'persons at risk' as a result of his son's actions. The father was, in fact, in closest proximity to the fire when it was started.

The defendant would, like any prudent bystander, have realised the risk to others, particularly his father, but plainly chose to ignore it. As a result, I am not disposed to give him the full one-third discount normally given to those defendants who plead guilty at the first opportunity, and thereby indicate remorse. The discount for plea will be one-quarter of the starting point.

I trust I have indicated clearly that I consider this to be a very serious offence.

Viewing all the circumstances, particularly the grave risk to the lives of others as a result of fires in high-rise blocks, I believe that the proper starting point for sentence is 4 years' imprisonment after trial."

5. We are grateful to Ms Denise Chan for having provided us with some useful authorities and in particular that of Chan Yuk-kuen v. R, Criminal Appeal 402 of 1980, which deals with a situation of arson which has risen without premeditation. The judge was entirely right to choose the starting point that he did and to give the Applicant a reduction only of one-quarter.

6. This application must, therefore, be dismissed.