HKSAR v. CHENG CHEUNG LUNG

DCCC 717/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 717 OF 2014

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REASONS FOR SENTENCE

1. The defendant pleaded guilty to a charge of "Arson".[1] He set fire to his home kitchen and the segment of the corridor outside his flat.

Summary of Facts

2. The defendant resides in a public housing unit situated at the 2^nd Floor, Heng Yuet House, Heng On Estate, Ma On Shan together with his wife and 2 children.  Mr. LEUNG (PW1) and Madam SIT (PW2) reside at the respective units adjacent to the defendant's.

3. About 7:45 pm on 14 October 2013, PW1 heard some noise coming from the corridor outside his flat.  He took a look and saw a man, who was speaking loudly and complaining about his wife.  PW2 also heard a man yelling "Come back quickly to pick up your clothes; or I will throw them away."

4. A few minutes later, PW1 heard a man shouting in the corridor "I have set fire.  Leave quickly."  PW2 also heard a man yelling "Fire". Then they smelled something burning.  The clothes outside the defendant's flat were on fire, which they both saw.  The flames were 2 to 3 feet tall.  PW2 saw a lot of smoke in the corridor.  PW1 put out the fire with water.

5. Security guard Mr. HO (PW3) soon arrived at the scene.  He saw a large amount of white smoke in the lift lobby.  He also saw a big pile of clothes (about 1 foot x 1 foot in area) on fire outside the defendant's flat.  With the metal grille and wooden door left open, PW3 entered the defendant's flat.  He found 2 seats of fire in the kitchen:  1 on the stove, burning miscellaneous items (about 1 foot x 1 foot in size); another on the floor near the stove, burning miscellaneous items (about 1 foot x 2 feet in size).  PW3 put out the fire.

6. The Police arrived within a few minutes.  They found the defendant unconscious in the bedroom lying on his bed.  He regained consciousness temporarily in the ambulance, and was arrested for "Arson".

7. In his record of interview taken on 15 October, the defendant admitted that he had an argument with his wife about 1:00 pm the day before.  About 3:00 pm, he consumed a bottle of brandy and quarter bottle of whisky.  He also took 8 to 10 tablets of prescribed medication for alcoholism and argued with his wife further on the phone.  The defendant was very angry; he randomly threw his wife's clothes around inside and outside his flat.  He set fire to the clothes and miscellaneous items in the flat and threw the burning clothes around attempting to commit suicide.  He then returned to his room, closed the door and fell asleep.  He claimed that he did all these things on impulse and had no intention to harm anyone.

Mitigation & Sentence

8. The defendant is 36 and married with 2 children (aged 15 and 7). He has 1 conviction record dated 2007; it was "common assault", for which he was fined. Defence counsel Mr. LI informed me that the defendant works as a crane operator. His wife has commenced divorce proceedings; their 2 children are now living with the defendant's wife.

9. Mr. LI submitted that before setting fire, the defendant had a strong quarrel with his wife. He was drunk and was planning to commit suicide. He therefore set fire to the clothes which he had thrown out of his flat. Mr. LI further submitted that the defendant had shouted "Fire" to warn his neighbours, which shows that he had no intention to harm anyone.

10. I called for 2 Psychiatrist's Reports before sentencing. Both psychiatrists take the view that the defendant suffers from alcohol dependence syndrome and harmful use of methamphetamine. His current mental condition is stable and no inpatient psychiatric treatment is required. He is recommended to continue with outpatient treatment to manage his alcohol and substance abuse problems.

11. This afternoon, Mr. LI informed me that the defendant's wife (who is present in court) has forgiven what the defendant had done in this case and how he had behaved himself in the past (i.e. drinking too much). The defendant's wife is prepared to give him a very last chance. Mr. LI has also explained how unfortunate the defendant's mother (who is also present in court) has been. She lost her youngest son, who committed suicide, some years ago; and her 2^nd husband, who died of illness, last month. Today, she will see the defendant, her only son left, to be sent to prison. All added up to be a severe blow to her. A bundle of letters was placed before me; their contents are duly noted.

12. There are no sentencing guidelines for offences of "Arson". 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."[2]

13. In passing sentence, I have carefully considered all mitigation advanced by Mr. LI, including the possibility that the defendant was acting out of impulse without any intent to harm anyone. I have also borne in mind that the defendant has no previous convictions for "Arson" and that his last conviction was in 2007, for which he was only fined.

14. It was most fortunate that PW1 and PW2 were alerted of the fire by the defendant's loud-talking and shouting. The lighting of a fire in a multi-storey residential building, however, risks the lives of all other occupants of the building.[3] I accept that the present case most probably arose out of the breakdown of the defendant's marriage and had nothing to do with triad, intimidation or revenge. Furthermore, no one was injured and all seats of fire were put out before any properties of others were damaged. It also appears that the defendant might have acted out of impulse, anger and under the influence of alcohol[4]. There is no evidence of any use of fire accelerant either. In the course of mitigation, Mr. LI has stressed repeatedly that by amending the charge, the prosecution accepts that the defendant was reckless about damaging properties rather than endangering lives.

15. Based on the reasons stated above, I consider 21 months' imprisonment[5] to be the proper starting point. A one-third discount is given for the guilty plea, reducing the sentence to 14 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I impose on the defendant is 14 months' imprisonment.

[1] Under section 60(1) of the Crimes Ordinance (Cap.200) instead of section 60(2) as he was originally charged.

[2] Para.23 at p.245.

[3] See HKSAR v CHEUNG Wing Siu CACC 76/1998 and CHAU Yuk Kuen v The Queen CACC 402/1980.

[4] But in my view, voluntary self-intoxication is not a mitigating factor in the present case.

[5] In my determination of the starting point, reference was made to the decision by Ma JA (as he then was) refusing leave to appeal against sentence in HKSAR v LAU Fong Yu CACC 601/2002.