HKSAR v. KWAN CHOR LEUNG

HCCC 388/2017

[2018] HKCFI 1839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 388 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty to two counts of arson with intent to endanger life contrary to section 60(2) and (3) and section 63(1) of the Crimes Ordinance, Cap 200, which were alternatives to counts of attempted murder arising out of the same facts and the same potential victims.

The premises in question were part of an industrial building which is referred to as Flat L, 24th Floor, Phase I, Vigor Industrial Building, No 49-53 Ta Chuen Ping Street, Kwai Chung, in the New Territories. I doubt very much if it should be referred to as a flat and I also doubt if it should have been used as anyone’s residence, but in any event people lived there.

At the time of the incident, the landlord lived in Flat L as well as two other people, one of whom was the defendant. A diagram of the layout of the flat is at page 161 of the committal bundle and indicates that there were a number of subdivided rooms within the premises and also a narrow corridor with the remainder of the space being taken up with goods storage. This can be seen from the front entrance in photograph 1, through to the defendant’s room immediately upon the left of the entrance in photographs 4, 6 and 7. What is clear from the photographs, and in particular photographs 4, 29, 30, 31, 34 and 41, was that there was a substantial amount of flammable material stored in this unit, which included gas canisters.

It is also self-evident, and accepted by the defendant, that more than one person lived in this particular flat, let alone who may have lived or worked in adjoining properties within this industrial building. It is of relevance that the defendant lived in the room immediately adjacent to the only entrance/exit and that PW1 and PW2 lived in rooms well inside the premises with no means of escape if the defendant’s room had indeed properly caught fire along with the goods stored immediately outside of his room and situated next to the entrance.

The defendant became a tenant of Flat L in January 2017. He had been living there less than three weeks when the landlord made some unfortunate comments about the defendant’s general and personal hygiene. That led the defendant to believe that he might lose his tenancy. He was clearly unhappy about this and resentful. He woke up in the middle of the night believing he was about to be evicted and he packed his belongings. It was his resentment which led him to start the fire inside his own room with a lighter.

In interview, the defendant said he wanted to burn the room, and presumably the property he set fire to, so that the landlord would not be able to live there either. But when he spoke with PW3, and when first asked about what he had intended by her, the defendant said he had intended PW1 to die as a result of the fire. This was something he denied when later being interviewed in Sui Lam and at Castle Peak Hospital in July 2017.

According to the defendant, he had woken up at about 2.45 am and had pondered what to do before eventually setting the fire in his room. He was seen leaving the property at approximately 4.30 am and I presume therefore that he had left shortly after igniting the blankets and other items within the black plastic bag we can see in the photographs.

PW1 said he had been woken up by a loud sound and had gone to investigate when he had seen smoke coming from the defendant’s room. This was at about the same time the defendant had left the building having secured the front gate behind him with a large metal rod in order to prevent the inhabitants of Flat L from leaving.

Although they were unable to get out of the premises, PW1 was able to ring the fire brigade who were located close by. They were on the scene by 4.34 am, gained access and put out the fire immediately. The extent of the actual damage can be seen in photographs 9, 13 and 14. From those images, we can see that the fire had thankfully not caught hold beyond the limited number of items that the defendant had set fire to and had not badly affected the room in which he lived. This was most likely because of the proximity of the fire station and the very quick and commendable response of the fire service.

Arson is regarded as an offence of the utmost gravity, which is why it attracts a maximum sentence of life imprisonment. That is because, regardless of the facts of the case before the court today, the potential for disastrous and fatal consequences is clear and obvious.

In the instant case, luckily no one was harmed. It was an isolated incident. It was not pre-meditated and rudimentary materials were used on the spur of the moment. There was no use of an accelerant, albeit that the fire was set in a highly flammable environment. It was carried out in the belief that the defendant’s tenancy was about to be terminated and after a personal slight from the landlord, PW1. Emotions were most probably running high in the early hours of that morning and the defendant was acting irrationally, although it is clear that he was mentally stable from the psychiatric reports available to the court. His desire to harm the landlord and the other tenant, immediately abated once the defendant had the opportunity to reflect upon what he had done.

The potential harm which could have been caused, even when one considers the short delay between setting the fire and the defendant telling anyone about it, was very serious indeed. Two people were asleep inside the warehouse to the defendant’s knowledge and he had secured the gate to stop them escaping. The particular nature of the goods held within the warehouse and the fact that those goods were stored in a manner which restricted access along the corridors would have been self-evident to the defendant. That is an aggravating factor, as is the fact that, at the time of setting the fire, he knew and intended that the fire would harm both PW1 and PW2, even though he bore no grudge against PW2. That does not include, as I have previously said, the potential harm to other occupiers of the building, to the fire and police services who put themselves in harm’s way when incidents such as these occur and to the potential economic loss if the building itself had caught fire.

Mr Mitchell, on behalf of the prosecution has provided the court with a number of authorities which cover prosecutions under both section 60(1) and section 60(2) of the Crimes Ordinance, Cap 200, and which distinguish between allegations of arson with intent to damage property or being reckless as to such damage and arson with intent to damage property with intent to endanger life or being reckless as to such damage to property or life. Both offences carry a maximum sentence of life imprisonment, but the latter is clearly intended to cover situations more serious than the former.

The issue before the court today is of course the most serious form of arson, that is, arson with intent to damage property and with intent to endanger life. That is what the defendant has pleaded guilty to.

The authorities include HKSAR v Law Chun Man [2012] 4 HKC 575; HKSAR v Lo Po Tak CACC 608/1997; HKSAR v Kung Pak Fu CACC 429/2007 and HKSAR v Chan Kam To CACC 115/1997. I have also considered the authorities referred to within those cases, in particular that relied upon by Mr Choy which is The Queen v Shum Hon Kai and Another [1988] 2 HKLR 341. For my part, although there is clearly a difference in sentencing between the two parts of section 60, I have found it helpful to consider the range of sentences passed in reference to both section 60(1) and section 60(2). The approach of the Court of Appeal to the facts of each case has been of assistance.

Mr Mitchell and Mr Choy both accept that each case turns upon its particular facts and no authority before the court today stands on all fours with the facts at hand. In The Queen v Shum Hon Kai and Another [1988] 2 HKLR 341, the Court of Appeal said that where a defendant committed arson in a multi-storey residential building in the middle of the night, a starting point of 8 years would not be inappropriate whereas in Chau Yuk Kuen v R CACC 402/1980, a woman who set fire to a flat with kerosene on the spur of the moment and under extreme emotional distress could expect a starting point of 4 to 5 years. In Tsoi Tin v R CACC 659/1976, a factory employee of clear record, also acted on the spur of the moment when he set a factory ablaze with kerosene and received 5 years’ imprisonment reduced from 8.

There are no sentencing guidelines as yet for cases of this type and they are necessarily fact driven, but nevertheless it has been accepted that heavy deterrent sentences are required because of the potential for really serious harm to the community and to property resulting in substantial economic loss. It is not just what has happened which the court must take into account, but also what might have happened if circumstances had been otherwise. The practical reality here is that at least two people could have easily been killed.

However, I have taken into consideration all that Mr Choy has said on the defendant’s behalf. He has had a simple life with little contact or support from his Mainland family. He is of limited education, having been employed in manual labour and as a delivery worker up to the age of 59, but was on CSSA at the time of the incident. He had been in a stable and loving relationship for 12 years prior to this offence, but his partner had died in the November of 2016 and he had had to give up his government flat upon her death. That is why he found himself unemployed, single and living off CSSA in an industrial building at the age of 63 just two months later. No doubt, he was still grieving, was vulnerable and not acting rationally on the night of the fire.

The psychiatric reports available to the court maintain that he was mentally stable and cognisant of what he was doing, but the facts suggest that he was not at his best. This, of course, is no excuse but it does not suggest a man who would otherwise be a danger to the public. He had, up to that point in his life, led a blameless existence.

The defendant has pleaded guilty and he indicated he would plead guilty to Counts 2 and 4 at an early stage. He has a clear record and is 63 years of age. That is of some significance. But also of significance is the fact that what might to many of us appear to be an innocuous comment led to the defendant overreacting in a wholly inappropriate manner with what could have led to a catastrophic result.

I have taken into account that it was sheer luck that the fire did not take hold more rapidly than it did, but equally, the defendant could have set the fire in a part of the premises which would have been more likely to have obtained an immediate and spectacular and far more dangerous result. I have also noted that no accelerant was used even though there were items in the storage area which could have been used to more devastating effect, and I have taken into account that it was not a pre-meditated event. This was a spur of the moment act of revenge by a resentful vulnerable defendant at an extremely low point in his life.

It did occur in the early hours of the morning but this was not by design, rather it was simply a result of the defendant having woken up to his already growing anger at the landlord’s insensitivity. There is no doubt that his act of locking the gate was the most aggravating feature of that night, but that can be considered in the light of the fact that within six minutes he had contacted the police on 999 himself.

Given that we know the fire station was very close by the building, the likelihood of the fire being far greater than it was at 4.34, when the fire service actually attended in answer to PW1’s call, is not substantial. Even if the landlord had not woken up, the court is satisfied that the fire service would have attended within 10 minutes of him setting the fire. That is a strong piece of mitigation and supports the suggestion that this was indeed a spur of the moment, out of character, act. That does not undermine the very serious potential consequences of what the defendant did; the risk to PW1 and PW2; the risk to anyone living in that block and to residents in adjacent blocks as well as the risk to the uniformed services. But in all the circumstances I am prepared to give the defendant the benefit of the doubt that he was immediately remorseful and took action to mitigate what he had done. At the end of the day, there was in fact little actual damage.

Bearing all of the above in mind, I believe that the appropriate starting point for sentence is one of 7 years’ imprisonment, and giving you a full one-third discount for your plea and taking into consideration all that I have identified above, you will go to prison for 4 years and 8 months on each count, Count 2 and Count 4, to be served concurrently.