HKSAR v. LOKU GALAPPATHTHIGE PRAMUKA SALINDA

CACC 46/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 2016

(ON APPEAL FROM DCCC NO. 751 OF 2015)

____________

____________

____________________

J U D G M E N T

____________________

Hon Lunn VP (giving the Judgment of the Court) :

1.  With the leave of the single judge [1], the appellant appeals against the sentence of 3 years and 6 months’ imprisonment imposed on him on 28 January 2016 by Deputy District Court Judge Kathie Cheung following his conviction after trial of a charge of Arson with intent on 13 July 2015 at premises at G/F, No. 8 Wang Long Village, Yung Shue Wan, Lamma Island, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200.

The charge

2.  The Particulars of Offence of the charge averred that without lawful excuse the applicant had “damaged by fire the main door, the door frame, walls, ceiling, one window, one air-conditioner and one exhaust fan, property belonging to another, intending to damage such property or being reckless as to whether any property would be damaged, and being reckless as to whether the lives of others would thereby be endangered.”

The facts

3.  The applicant, a Form 8 [2] Recognizance holder, was the tenant of premises at G/F, No. 8 Wang Long Village, Yung Shue Wan, Lamma Island.  Of the facts relevant to the commission of the offence, the judge said in her reasons for sentence:[3]

“He previously lived with his girlfriend and daughter at the Premises. They later left him. On 13 July 2015, the defendant confirmed with his girlfriend that she and the daughter had returned to the Philippines. He would never see them again. He was sad and returned to the Premises. To erase the memory of his girlfriend and the daughter, he burnt some clothes on the floor near the bed and wardrobes of the bedroom. Having lit fire on 2-3 places on the pile of clothes, he closed the door of the bedroom, sat in the living room and left the fire burning in the bedroom. Later on, the fire on the clothes spread to other items in the bedroom. As a result, the bedroom and other parts of the Premises were damaged. The cost of repair was about $90,000.”

Mitigation

4.  The judge acknowledged that the matters advanced in mitigation on behalf of the appellant were: [4]

“that the defendant was acting in anguish, on a spur of (the) moment as his girlfriend and daughter had left him and he was not going to see them again. It was further submitted that the defendant did make efforts to put out the fire at some risk to his personal safety. Further, given this conviction, the defendant is likely to be deported after he has served his sentence for this offence.”

5.  Of those submissions, the judge said:[5]

“I accept the defendant committed the offence on a spur of (the) moment, that no inflammable liquid was used in setting the fire and he did make efforts to put out the fire.”

6.  However, the judge went on to determine:[6]

“ I must take into consideration that the defendant did not burn the clothes in a container but burnt them near other flammable materials in a small bedroom. As a result, the fire spread to other part of the Premises causing substantial damages with a repair cost at around $90,000. And one must not lose sight of the fact that there were families with young children living next to or nearby the defendant. The defendant’s conduct was highly unwise and might lead to extremely serious consequences.”

7.  Having said that arson was an extremely serious offence, the gravity of which differs from case to case, the judge noted that this Court had not “laid down any sentencing guidelines in respect of this offence.”  Then, she said:[7]

“In sentencing, I bear in mind the remark of the Court of Appeal in HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240 that given Hong Kong is a densely populated city, unexpected occurrences of fire are bound to cause extremely serious injuries and deaths or losses of properties. Therefore, acts of arson, in particular those relating to triads or involving intimidation or revenge, must be sanctioned with heavy deterrent sentences.”

Sentence

8.  Having stipulated that the appropriate starting point to be taken for sentence was 3 years and 6 months’ imprisonment, and having said that there were no circumstances justifying any reduction of that sentence, the judge imposed that sentence on the appellant.

Grounds of appeal against sentence

9.  In the grounds of appeal against sentence and in his written submissions, Mr Andrews submitted that the judge had erred in stipulating a starting point for sentence of 3 years and 6 months’ imprisonment.  Also, the judge had erred in stating that the fire spread “to other part(s) of the Premises”. [8]  In assessing the risk to the safety of life the judge placed undue weight on the urban density of Hong Kong, having regard to the actual circumstances of this fire, in particular that there was no one in the vicinity whose life had actually been imperilled.  Finally, it was submitted that the judge had given insufficient regard to the lack of aggravating and/or serious features in the commission of the offence, together with the fact that the applicant had made a sustained effort to extinguish the fire and expressed genuine regret for having caused the fire. He submitted that a sentence of three years’ imprisonment was appropriate.

The respondent’s submissions

10.  In opposing the appeal and in submitting that the sentence imposed on the appellant was not manifestly excessive, in written submissions on behalf of the respondent Mr Andrew Li acknowledged that the judge was in error to have determined in the course of her reasons for sentence that “the fire spread to other parts of the premises causing substantial damages”.  On the other hand, he submitted that the judge’s statement that “Hong Kong is a densely populated city” remained true, even though the fire had occurred in the village house on Lamma Island.  He contended that, in fact, the risks involved in fire in that island setting were even greater than in an urban environment, given the absence of fire-fighting equipment to be found in high-rise buildings.

11.  Mr Li invited the Court to have regard to the judgments of this Court in The Queen v Chow Shui Ming [9], The Queen v Tsoi Tin [10] and HKSAR v Cheung Wing Siu [11] as being relevant to the appropriate sentence to be imposed on the appellant.

12.  In her oral submissions opposing the appeal against sentence, Ms Sheroy Tam invited the Court to note that in her reasons for sentence the judge had referred to the judgment of this Court inHKSAR v Kung Pak Fu.  In that judgment a number of other judgments of this Court in respect of the same offence had been reviewed.  In those cases, this Court identified as relevant to sentence the fact of the use of an accelerant in the commission of the offence and the fact that the purpose of the offence was revenge.  She acknowledged that the Court said that it was not appropriate to lay down sentencing guidelines for the offence “because its gravity differs from case to case”.[12]  Finally, Ms Tam acknowledged that there were no aggravating factors in the commission of the offence by the appellant.

A consideration of the submissions

13.  It is to be noted that in all three judgments of this Court, to which Mr Li made reference in the respondent’s written submissions, an accelerant was used in creating the fire. Also, in two of the cases the offender fled the scene of the fire. 

14.  In The Queen v Chow Shui Ming this Court was concerned with an offence of attempted arson, in which the judge was satisfied that there was intent in the applicant not only to start the fire but also to endanger the lives of his family.[13]   Marital discord had led the applicant to splash his wife and three children with petrol at the dining room table after which he had attempted to use a lighter to ignite joss sticks.  This Court refused an application for leave to appeal against sentence, in circumstances where the judge had stipulated a starting point for sentence of 4 years’ imprisonment and imposed a sentence of 2½ years’ imprisonment on the applicant on his plea of guilty.

15.  In HKSAR v Cheung Wing Siu this Court refused an application for leave to appeal against a sentence of 3 years’ imprisonment imposed on the applicant on his plea of guilty to an offence of arson being reckless as to whether the life of another would be endangered.  The judge stipulated a starting point for sentence of 4 years’ imprisonment.  In the course of a quarrel with his father, the applicant had started the fire by pouring inflammable fluid over furniture, after which he had fled.  In the particular circumstances of the case, the judge had not afforded the applicant a one-third discount for his plea of guilty, which determination this Court approved.

16.  In The Queen v Tsoi Tin this Court allowed the appeal against sentence, quashed the sentence of 8 years’ imprisonment and in its place imposed a sentence of 5 years’ imprisonment.  The appellant was convicted after trial of damaging by fire, machines and other property in a knitwear factory, intending to endanger the life of the watchman or being reckless as to whether his life would be thereby endangered.  The appellant, who was a workman at the factory, had been discovered asleep beneath one of the machines by the watchman.  After a confrontation between the two of them, the appellant sprinkled kerosene in the premises and set it alight.  For his part, he escaped through a window on the fourth floor of the premises, injuring himself in the process.  In quashing the sentence, this Court observed that the appellant had a clear record and that no lives have been lost although considerable damage had been done by the fire.

17.  The use of an accelerant in the commission of the offence of arson is a factor of considerable aggravation in the commission of the offence.  An accelerant by its nature speeds the progress of a fire considerably and time is of the essence in fighting fires.  As the judge accepted, the appellant had made “efforts to put out the fire”.  Also, he remained at the scene of the fire.

18.  Furthermore, the judge accepted that the appellant had committed the offence on the “spur of the moment.”  That finding resonated with mitigation advanced on behalf of the appellant that “an hour or two previously” it had been finally demonstrated to the appellant that the mother of his child and his child had gone back to the Philippines and that his chance “of ever seeing his daughter again was absolutely zero.” [14]  Also, it reflected the judge’s recitation in her reasons for verdict of the appellant’s evidence at trial, namely that “On the offence date, he called his girlfriend and confirmed that she and her daughter were in (the) Philippines.” [15]

19.  Having regard to all the circumstances of the commission of the offence and the very particular facts of this case, with respect to the judge, we are satisfied that the sentence of 3 years and 6 months’ imprisonment imposed on the appellant was manifestly excessive.  For our part, we are satisfied that the appropriate sentence to be imposed on the appellant is 3 years’ imprisonment.

Conclusion

20.  In the result, we allow the appeal against sentence, quash the sentence of 3 years and 6 months’ imprisonment and in its place substitute a sentence of 3 years’ imprisonment.                  

[1] Lunn VP (CACC 46/2016; unreported, 29 September 2016).

[2] Form No. 8 as set out in Schedule 1 to the Immigration Regulations, Cap. 115A.

[3] Reasons for sentence, paragraph 2.

[4] Reasons for sentence, paragraph 4.

[5] Reasons for sentence, paragraph 7.

[6] Reasons for sentence, paragraph 7.

[7] Reasons for sentence, paragraph 6.

[8] Reasons for sentence, paragraph 7.

[9] R v Chow Shui Ming (CACC 335/1996; unreported, 1 November 1996).

[10] The Queen v Tsoi Tin (CACC 659/1976; unreported, 28 September 1976).

[11] HKSAR v Cheung Wing Siu (CACC 76/1998; unreported, 14 May 1998).

[12] HKSAR v Kung Pak Fu [2008] 2 HKCLRT 240, paragraph 23.

[13] R v Chow Shui Ming, page 7.

[14] Appeal Bundle, page 23 S-U.

[15] Reasons for verdict, paragraph 4.