HKSAR v. KWONG CHI SING

DCCC 1243/2023

[2024] HKDC 516

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1243 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of arson being reckless as to whether life would be endangered, contrary to Section 60(2)  and (3)  and Section 63(1)  of the Crimes Ordinance.

2.  The offence was committed on 12 June 2023 in what is described as the corridor on the 2^nd floor of Yin Hing Building in San Po Kong, Kowloon.

3.  The facts that have been admitted show that around 2118 hours on 12 June 2023, a witness, PW1, who was resident at Room A3 on the 2^nd floor of Yin Hing Building was at home.  She noticed what is described in the facts as a huge smoke outside her residence, opened the door and found a rubbish bin which was about 3 metres away was on fire and she extinguished that fire immediately. The fire brigade was called and they classified the cause of that fire as being suspicious although there is no accelerant found to have been used.

4.  The police investigated within the complex and the defendant was located quite shortly afterwards by 2123 hours and he immediately admitted setting fire to the rubbish bin.  He later said he burnt the rubbish bin with a cigarette butt for fun.  He admitted setting fire to the rubbish bin downstairs, is what he in fact said.  It was later when he was interviewed under caution that he said he had burnt the rubbish bin with a cigarette butt for fun.  Defendant was found to have a lighter and packet of cigarettes on him at the time.

5.  The defendant’s background shows that he is 45 years of age.  He had been working as sous chef at Fairwood before his incarceration.  What is significant in the defendant’s background is that he has a previous conviction for arson, the same.  In fact on 21 March 2012 he was totally sentenced to 6 years’ imprisonment for what was known as the Lady Market’s Fire which caused severe damage to market stalls in that area and as I said, he received around a total of 6 years’ imprisonment for that.

6.  The defendant puts forward his plea of guilty as mitigation.  It is a plea offered at an early stage so he will be entitled to a full one-third discount from any starting point for sentence.

7.  Because this is not the defendant’s first offence of arson and arson is often an offence arising out of psychiatric or psychological problems, I decided to obtain psychiatric reports upon him.  I also read reports that had been obtained on his last time that he was sentenced before the court in 2012. The psychiatric report is consistent with his history of psychiatric reports, that is no in-patient psychiatric management is warranted and his mental condition is stable.  That seems to have been the position throughout any assessments he has had for psychiatric management.  He is fit to plead.  But there was an indication in the most recent report, that is 4 March 2024, defendant has a history of alcohol dependence syndrome.  The psychological report is more detailed, describing the defendant as a person who is introverted and stubborn with a history of alcohol dependence and his stubbornness could lead to inappropriate responses of anger.

8.  The psychologist attributed the defendant’s offending behaviour as a result of recklessness and poor anger management, so he generally shows no violent tendency or any other major psychopathology in his current assessment but given his personality profile and poor mood management, his risk of future violence was assessed to fall between low to moderate range.  That was the general conclusion reached for this defendant.  He does not have any recognised mental condition in relation to fire-setting, such as pyromania or the like and the conclusion I could draw from that is that there is some risk of recurrence but he does not have any recognised psychiatric condition.

9.  Now the factors for sentencing in respect of an offence of this nature, the conviction under Section 60(2), is the defendant has pleaded guilty to the more serious iteration of this offence where there is recklessness as to whether life is in danger and in this case that would be evidenced by the offence being committed in the corridor of a residential building in close proximity to the living areas, such as PW1’s flat.  Fortunately in this case she became aware of the fire while it was producing large amounts of smoke and was able to put it out on her own, but the risk of fire-setting in residential buildings is quite obvious.  The offence is serious and in fact it carries a sentence of life imprisonment.

10.  In the case of HKSAR v Kung Pak Fu CACC 429/2007, it is described as a high severity offence because of Hong Kong’s dense population. Fire-setting in a multi-story residential building can have existing grave consequences.  There are no tariffs or guidelines have been set down. Sentences depend on the gravity of the individual cases and what aggravating factors may exist.  Clearly it is necessary to identify the factors relevant to sentencing.  In this case, firstly, that the fire was set in a multi-story residential building which could potentially risk the lives of all the occupants of the building.

11.  Secondly, the fire was set in the evening when less people would be about than just if it had been caught early or it was smaller.  The location was in a corridor which of course is the access to the residential units.  The area was described in the statement of facts as being engulfed by smoke before the fire was extinguished.

12.  And the final factor in this case is the defendant has committed serious arson offences in the past and been sentenced to a lengthy term of imprisonment, so he committed a serious offence and shown that the substantial sentence of imprisonment he had in the past had not necessarily failed to deter him from committing the same kind of offence today.

13.  As far as the mitigating factors is the strong family support, especially of his wife who is present in court today, and the defendant’s early plea of guilty and remorse expressed in the reports and finally the fact that he is described as being only a low or moderate risk for future offences.

14.  I have been referred to the case of HKSAR v Godhaniya Haja Samat CACC 264/2017 where a broadly similar sets of facts the Court of Appeal set a starting point of 2 years’ imprisonment was not a day too long.  I bear in mind that the fire was easily extinguished and fortunately for that the risks to other people were lower than by would ordinarily have been the case in such a fire.  I do consider an immediate sentence of imprisonment is appropriate and that sentence must reflect the severity of the risk involved.

15.  I take an initial starting point for sentence in this case one of 30 months’ imprisonment.  I am going to enhance that by the aggravating factor of the defendant’s similar conviction of similar offences in the past and I will add a total of 9 months’ imprisonment to that figure.  That leads to a starting point of 39 months’ imprisonment for this defendant.  He is entitled to one-third discount which would lead to a final sentence of 26 months’ imprisonment.