HKSAR v. LIU LI

DCCC 486/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2016

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HKSAR
v
LIU Li

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Before : Deputy District Judge Bina Chainrai in Court

Date of Sentence : 28th July 2016 at 2:40 p.m.

Present : Mr. King CHAN, Public Prosecutor, for HKSAR/Director of Public Prosecution.
Mr. WONG Kwok-kee Ben of Messrs. Tang Lai & Leung (D.L.A.) for the Accused.

Offences : (1) Arson

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REASONS FOR SENTENCE

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1. The Defendant has been convicted on her own plea on 1 count on the indictment of arson with intent, contrary to Section 60(2) and(3) and Section 63(1) of the Crimes Ordinance, Cap. 200.

FACTS

2. The offence was committed at around noon on 3 March, 2016 at Room A, 4/F, Cheong Hei Building, No. 625 Reclamation Street, Mongkok,where the Defendant resided with her husband and 2 sons aged 9 years and 3 years.

3. The Defendant married her husband in 2007. The Defendant and her family had resided in the premises set out in the particulars ofthe charge since November 2014. In January 2016, the relations between the Defendant and her husband turned sour, and the Defendantwanted a divorce but was refused by her husband. She moved out of the premises. They tried to patch things up and the Defendant movedback into the premises on 29 February, 2016.

4. On 3 March, 2016, the Defendant could not find some of her personal belongings. She repeatedly tried to telephone her husband buthe did not answer her calls. She called his mother telling her she would set fire to the premises if her husband did not return hercall. At about noon, a fire did break out in the flat – a report was made – the fire was later put out by the Fire ServicesDepartment.

5. A subsequent Incident Report prepared by the Fire Services Department revealed that about 70% of the walls and ceilings of the premiseswere blackened by heat and smoke. A bed frame, a mattress, a plastic sliding door at the kitchen, an air-conditioner and a quantityof miscellaneous articles of about 2m x 2m were damaged by fire. It was also revealed that the cause of the fire was unlikely tobe natural or accidental. It was believed that a deliberate act was the most possible cause of the fire.

6. The Defendant was located by a police officer at about 12.22 p.m. on 3 March, 2016 at the Ground Floor of the building. Upon inquiry,she admitted to having set the fire. She was arrested and under caution at the scene, she admitted setting fire to the premises. In a subsequent video record of interview under caution, she said that her husband had taken away her personal belongings and didnot answer her telephone calls. She called her mother-in-law and told her if he did not call her, she would set the premises on fire.Later, her husband did telephone her and they had an argument over the phone. She then set fire to the premises because she wantedto make her husband angry and feel guilty. She first tried to burn a blanket using a lighter but without success. Then she burntsome papers to ignite the blanket. As the fire got bigger, she left the premises. She had not thought about the safety of other residentsof the building. She acted on impulse.

7. A photo album consisting of 33 photographs depicting the premises and the building were submitted to the Court – these were admittedby the Defendant. The photographs depicted the premises in question as well as the building. The extent of damage caused by thefire is also depicted in the photographs. The most severe damage would appear to be in the master bedroom, depicted in photos 14to 18 and 22 to 28 in the album. Photos 29 to 33 depict the street in question and the multi storey building the premises are locatedin.

8. Section 60(2) and (3) of the Crimes Ordinance, Cap. 200, provides:

“(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-

(a) intending to destroy or damage any property or being reckless as to whether any propertywould be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would bethereby endangered, shall be guilty of an offence”

9. I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charge and accordingly I convictedthe Defendant on the charge that she had admitted.

10. The sentencing provision is Section 60(3). Section 60(3) provides:

“(1) A person guilty of arson under section 60 or of an offence under section 60(2) (whether arson or not) shall be liable on conviction upon indictment to imprisonmentfor life.”

Previous Convictions

11. The Defendant has one previous conviction in 2007 for breach of condition of stay when she was given a suspended sentence. In thePsychologist Report, it is mentioned that it arose from when she stayed in Hong Kong to give birth to her elder son. In mitigation,Counsel submitted that she had just given birth to her elder son at the time, and she had overstayed in Hong Kong to take care ofhim, resulting in the conviction. I do take into account that she has no previous convictions for arson, and for the purpose of sentencing,I attach no weight to her previous conviction.

Mitigation

12. The Antecedent Statement was read into the record by the Prosecution – no issue was taken with the contents. The Defendant isnow aged 30 years. She was born in China. She married her husband, a Hong Kong resident, in 2007. She became a resident of Hong Kong.She completed Form 5 education in China. She had worked in sales and as a waitress in the past. At the time of her arrest she wasa part-time waitress. She had two sons, aged 9 years and 3 years, and lived with them and her husband.

13. Counsel submitted that both her husband and her mother-in-law were in Court to show their support of her. Her elder son sufferedfrom Attention-deficit hyperactivity disorder (ADHD) and needed more care. He submitted that the main reason for her offendingwas because of accumulated emotional distress from an unhappy marriage. Her husband was an odd job worker and had an unstable income.She did not get along with her mother-in-law. The family had moved out to the address on the charge sheet in November, 2014. Theypaid their own rent and had a heavy financial burden each month. The elder son had ADHD, and he was often distracted at school andthere were constant complaints from the school. A memo dated 12/12/2013 from Precious Blood Hospital (Caritas) showing that the elderson had been diagnosed with ADHD and ‘oppositional defiant disorder’ and was being treated was submitted as well as a memo fromthe Yaumatei Child Psychiatric Centre dated 24/06/2016 confirming the elder son was followed up at the clinic for ADHD. I was toldthat the principal of the boy’s school had asked the family to transfer him to a special school. This added to the Defendant’sstress. Her husband had tried to commit suicide in February 2016 but was saved by the Defendant. Their marriage had soured andthere was frequent talk of divorce. She had even rented alternative premises and had moved out for a while. She had found a job witha reputable cosmetics company in Mongkok starting on 1/3/2016. She did not return to the flat she shared with her family on 2/3/2016as she did not finish work till 11 p.m. When she returned on 3/3/2016, she found some of her personal belongings missing and believedher husband had intentionally taken them. She tried to call her husband – she called him 26 times. She called her mother-in-lawthreatening to set fire to the flat if he did not call her. He called her but did not tell her where her things were – they arguedover the telephone – subsequently she set fire to their flat. At the time, her children were with her mother-in-law and not inthe flat. She did not use any accelerant or inflammable items. Counsel submitted that she left the flat when the fire got bigger.She even tried to call ‘999’ 3 times but the line was busy. She left the flat – met her neighbour, a 76 year old woman, andinformed her of the fire and brought her to the ground floor. She acted on impulse without thought of the consequences. After thefire, her husband had tried to contact the landlord and offered to re-instate the premises but was refused. Her husband, her motherand elder son had all written letters seeking leniency for the Defendant, as had the Defendant, and these letters are all beforeme. The Defendant in her letter expressed her remorse for what she has done. Her husband had been looking after the children sincethe Defendant’s arrest – as he could not work, the family relied on CSSA. He had been visiting the Defendant regularly sinceher remand, and they are trying to repair their marriage and bring up the children together.

14. After hearing Counsel in mitigation, I adjourned the matter until today, calling for background, psychiatric and psychologist reports.Defence Counsel has informed me that he has explained the contents of all the reports to the Defendant and her husband, who is inCourt today, and the Defendant agrees with the contents of all the reports. These are now before me and I have duly considered thecontents of these reports. In passing sentence, I have carefully considered everything said on behalf of the Defendant by Counsel,including that the Defendant acted on impulse because she was annoyed and did not think of the consequences. I have also borne inmind that no accelerant or inflammable materials were used. The various reports do confirm much of what was submitted by Counsel. The Probation Officer in the Background Report informed the Court that the Defendant’s husband and children have moved back tolive with his mother. The family has been offered a public unit at Shatin Wai and plan to move to live there in mid-August, 2016. Upon her discharge, the Defendant will live with her family there. The Psychiatric Report disclosed the Defendant does not sufferfrom any formal psychiatric illness and therefore psychiatric care is not warranted. The Clinical Psychologist in her report concludesthat the Defendant “appears to be an impulsive woman who lacks social support and skills on handling her negative emotions arisingfrom her marriage. There is no major psychological problem underlying her offending behaviour. Her risk of recidivism is not impressedto be high. However she indicates with some counselling needs on improving her marital relationship as well as enhancing her conflictresolution and stress-coping skills. She appears with some insight into her problem with genuine remorse and is willing to seek help.Her husband is also supportive to her. Her prognosis is promising if she makes satisfactory progress from the above services”.

15. Arson is obviously a serious offence. The inherent danger in any uncontrolled fire is always regarded as an offence of particulargravity. Fires can get out of hand quickly and there is a substantial risk of serious damage to property and also to lives. In particular,the risk of serious damage to property and lives is greater where a fire is started in a multi-storey residential building such asthe present one as the lives of all the other occupants of the building are put at risk especially if in the late hours when mostpeople would be asleep. Here, I note the fire was at about noon and no accelerant or inflammable items were used. But the Defendantclearly had little or no regard for the likely consequences of her actions which could have been catastrophic. The fact that thefire that was started was contained quite quickly had nothing whatever to do with any action on the part of the Defendant.

16. There are no sentencing guidelines for offences of arson – the gravity varies from case to case. As the Court of Appeal saidin HKSAR v. Kung Pak-fu , CACC 429/2007, a decision also referred to by Defence Counsel:-

“23. …….arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelinesfor 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.”

17. In this case, the fire that the Defendant set was put out quickly causing no injury to persons although there was damage to propertyas depicted in the photographs submitted. The damage to the flat, and in particular to the master bedroom where the fire was started,was quite extensive. The fire had not spread to any other flat in the building. Fortunately the children were not at home, and noone was injured. Nevertheless, what the Defendant did was still extremely dangerous.

18. Having considered the circumstances of the offence and the circumstances of the Defendant, and taking into account the present casearose out of a relationship that was breaking down and had nothing to do with triads, intimidation or revenge, that the fire wasin the daytime and not at night when occupants in the building would be asleep, no one was injured although there was damage to property,and while the Defendant may have acted out of a degree of impulse and frustration, she first set fire to a blanket with a lighter– when she was unsuccessful in starting the fire, she then ignited some papers and used these to set the blanket alight. She hadcalled her mother-in-law and told her of her intention to start a fire if her husband did not call her back, and although he didcall her, she still started the fire, albeit without the use of any accelerant or inflammable items – these all demonstrate a degreeof premeditation on her part. This was a small flat and there were many things in the flat. It is the greatest good fortune thatno one was injured. I consider that the appropriate starting point is one of 3 years’ imprisonment. The Defendant is entitledto a discount of one-third to reflect her plea of guilty. The Defendant’s co-operation with the police is incorporated in the discountgiven for pleading guilty. No further discount is warranted.

19. She is sentenced to 2 years’ imprisonment.

Bina Chainrai
Deputy District Judge