HKSAR v. CHOW YAN TUNG IRIS

DCCC 543/2022

[2024] HKDC 1265

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 543 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant has been convicted after trial of four offences, three of attempted arson and one of actual arson and the offences being committed in November of 2018, we finally come to sentence in the end of July 2024, almost 6 years later.

2.  I refer to my earlier reasons for verdict for the instant facts to be relied on in the sentencing of this case.  In very broad outline, the offences were committed by the setting of fires inside of a rubbish bin on the 4^th floor of a public housing estate.  I note little damage was caused and the motivation for this appears to have been to bring attention to the security of the building as the defendant at the time was being harassed by debt collectors.

3.  Dealing with the defendant’s personal factors of mitigation initially, she is 35 years old.  She has a clear record.  At the time of the offences she was unemployed and in receipt of CSSA and I believe that to be the position until her recent incarceration.

4.  In 2018, the year of the offences, she was in financial difficulty and was declared bankrupt in that year and that led to her, so we are told, being harassed by debt collectors.

5.  The defendant has responsibilities.  She is a single mother.  She has I think a 12 year old son who himself suffers from lung conditions and some asthma and requires serious attention.  Within her own household in the public housing unit is her mother who is both aged, has diabetes and has cognitive impairment and is on decline, according to the reports I have read.

6.  The defendant herself - I read from her mitigation - has her own problems.  She has had a hard life.  She has her own mental health problems as a result of an attempted suicide by her boyfriend at the time where she was present causing both physical and mental damage to her.  She is under treatment and is well-managed and the reports show that she has an organic psychiatric disorder complete with auditory hallucinations.

7.  The defendant is the principal carer for her family unit including her mother and her son.  In her mitigation I see the defendant also has made efforts in the community and volunteers at both the Social Welfare Department and the Hong Kong Federation of Trade Unions.

8.  I will deal with some of the things that were said about her in the report.  I shall quote briefly from the reports.  There is a Probation service background report that I obtained, the conclusion of which says the defendant is a single mother with a tragic personal history.  In her early adulthood she encountered a traumatic incident when a boyfriend took her to commit suicide without her knowledge.  After this she had the onset of a psychiatric condition and became socially withdrawn.  The report refers to the defendant to caring for her frail elderly mother.  The report concludes the defendant had grown in maturity and responsibility of her mother.  She developed a strong attachment to her and was a great comfort to her.  Her life revolves around assisting and protecting her mother and son.  Both the school teacher and social worker comment the defendant is a reasonable and responsible mother.  The family is in receipt of CSSA.  The Probation officer taking the background also indicates to the court that the defendant had learned a bitter lesson from the court proceedings and her remand in respect of the court’s Judgment and sentence, wishing the matter could come to an end as soon as possible.  Her desire for freedom and to continue to care for her frail mother and young son, she asks for exceptional mercy.

9.  I refer also to the psychiatric reports – the two psychiatric reports. They describe the defendant as having traits of borderline personality disorder reporting voices inside her head described as a quasi-psychotic symptom rather than a typical auditory hallucination.  Her condition is stable at present but in-patient psychiatric care is not required.

10.  There is also a psychological report and a welfare report.  The psychological report, the thing that I take away from that report is the conclusion that the defendant’s risk of recidivism is low.  She shows no sign of violent tendencies or pyromania.  Based on the current assessment, there was no evidence suggesting the relation of her psychological complications with offending behaviour.  Her risk of recidivism was assessed to be low and no psychological intervention is recommended at this stage.  Of course the defendant has been on bail for almost 6 years in relation to this offence and she has committed no further offences, so the conclusion of the psychological report that the risk of recidivism is low is borne out by the facts that have happened since these offences were committed.

11.  Further matters that I am referred to in respect of mitigation are that in respect of the offences themselves, is that no accelerant was used.  The rubbish collection bin in which the fire occurred was only damaged on 3 November 2018. There were no personal injuries, very little property was damaged.  The sole value of the damage was HK$478.  The location was a residential building, however.

12.  In terms of the mitigation, I am referred to the fact that there is no sentencing guideline.  The offences are old at this point in time and the defendant has a low risk of re-offending and also prayed in aid is her clear record, her family situation and her mental health condition.

13.  I turn to the approach to sentencing in these cases.  As referred to by the defence, there is no tariff sentence, however the maximum sentence for these offences is one of life imprisonment.  The arson offences are taken very seriously, especially in public multi-storey buildings.  Sentences in cases involving arson in multi-storey buildings can range from 4 years’ imprisonment as a starting point and above.  This is a serious offence even when the allegation, as it is in this case, is an intent to damage property rather than put life in danger.

14.  In the case of HKSAR v Chan Chi Cheung, that is DCCC 82/2011, sentences with a starting point of 18 months imprisonment were imposed for a person who set a fire in a rubbish bin on the outside street.  As I say, these matters are taken very seriously. 

15.  In this case, the arson and the attempted arson were on a small scale. All the ignition was that occurred and fires that occurred were in daytime, increasing the chances they would be noticed.  They were all noticed.  In any event, the defendant apparently had informed the security herself.  No accelerants were used.  The fact that the fires and attempts occurred inside a multi-storey building makes them more serious.  The smoke dissipated on the 4^th floor, we can see it in the CCTV recordings and was detectable in the other flats.  The presence of smoke in a multi-storey building is a serious matter.  It can make escape difficult, can cause people to panic and represents a high risk of harm despite the fact in this case the fires led to minimal damage to property and disturbance to other people.  Despite the fact the defendant apparently set these fires to protest security lapses on her own floor, little damage or harm was caused and she actually herself assisted their detection and the extinguishing of the fires.

16.  Similarly, because of this and the risk of harm and the fact that the fires were set in multi-storey buildings, the sentences I impose must include an element of deterrence that must mean that they include an immediate custodial sentence.  I bear in mind the defendant does not suffer from any psychiatric or psychological illness requiring in-patient treatment and has a low risk of recidivism. 

17.  Now as far as the starting points for sentencing is concerned I will indicate those now.  I will also indicate that those starting points will be reduced as a result of a number of mitigating factors which I will also factor in to the sentence.  This is the starting point, not the final point of sentencing.

18.  On the 1^st charge, given that this is an arson inside a multi-storey building, I consider that a starting point for sentence in this case of 21 months’ imprisonment is appropriate.  On the 2^nd, 3^rd and 4^th charges, a starting point of 18 months’ imprisonment will be considered.

19.  I now will consider the mitigating factors which are set out in the facts that I have already elucidated.  There were a number of these.  Firstly is the defendant’s clear record and good character.  I have dealt with that at some length now.  She has what is described as a positive good character, she looks after her family well, and she has struggled through a difficult start. She has made good of herself and she is a credit for that.  I consider that will lead to a deduction of 3 months’ imprisonment from the starting point. 

20.  The defendant also is a mother of a young child.  She also suffers from mental health condition.  These are mitigating factors.  I do bear in mind in this case that any sentence of imprisonment on the defendant will impact on her family.  Her son and her mother both under the Basic Law have a right to family life and any sentence of imprisonment will impinge upon that right.  The sentence must be reasonable and must take into account that factor.  I have read an extensive report by the Social Welfare Department which shows the plans that have been put in place should the defendant not be there to care for her family.  They are adequate but they must not last for too long.  The defendant must be returned to her family as soon as is reasonable having regard to the fact that a sentence of imprisonment must be imposed upon her.  I will take into account that factor and will quantify that as a further 3 months’ reduction from the original starting point for sentence. 

21.  The final matter that must be considered as far as a deduction from the starting point for sentence is the delay in this case.  The case, as I have indicated, is almost 6 years old.  It would appear no real responsibility can be attached to any of the parties in this case.  The delay has come from the system itself but the defendant has had this case hanging over her and the possibility of a sentence of imprisonment hanging over her from November of 2018.  This has caused stress and difficulty in her life and has made the case that long-term provisions for this family could not be properly made.  I will further deduct a further 4 months’ imprisonment as a result of the delay.  By my calculations, a total of 10 months’ imprisonment must be deducted from each of the head sentences.  That will lead now to sentences on each charge as follows.  Charge 1, 11 months’ imprisonment; Charge 2, 3 and 4, 8 months’ imprisonment. 

22.  I must deal with the question of totality.  Charges 2 to 4 of course were attempts leading to no serious problems but some element of them must be served consecutively as they were committed on separate occasions.  What I shall order is that the sentences on Charges 2, 3 and 4 be served concurrently to one another but one month of them be served consecutively to Charge 1 and the balance concurrently.  This leads to an overall total sentence of 12 months’ imprisonment.  That will be the sentence of the court.