A A
B DCCC 30/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 30 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
TANG KWOK WAI
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 21st August 2014 at 12:18 pm I
Present: Mr. Stephen Fong, Counsel on fiat, for HKSAR
J J
Mr. Yuen Siu Kei, instructed by M/s Christine M. Koo & Ip,
K K
assigned by DLA, for the Defendant
L
Offences: [1] – [3] Arson (縱火) L
M M
----------------------------
N Reasons for Sentence N
----------------------------
O O
1. The defendant faces 3 charges of arson and 1 charge of
P attempted arson, contrary to sections 60(1) and (3) and 63(1) of the Crimes P
Ordinance, Cap.200. He pleaded guilty to the arson charges but not guilty
Q Q
to the attempted arson charge. Upon the defendant’s conviction on charges
R 1 to 3, and upon the prosecution’s application, charge 4 is ordered to be R
kept on court file, not to be proceeded with against the defendant without
S S
the leave of the court.
T T
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A A
B Summary of facts B
C C
2. The defendant resided at room 3920, Hei Lai House, Wah Lai
D Estate, Lai Chi Kok, Kowloon, being neighbour to PW1, PW2 and PW4, D
who resided at 3 different rooms.
E E
F Charge 1 F
G G
3. On 13 August 2013, when resident of Room 4020, Hei Lai
H House left home for work at 7 am, she found that a ‘fai chun’ that was H
stuck to her door was damaged by fire, with a 20 cm x 40 cm burnt mark on
I I
the door. The cost of repair was $300 and the matter was reported to the
J Police. J
K K
Charge 2
L L
M
4. One day later on 14 August, while PW3 was inside his M
residence at room 3508 Hei Lai House at around 2:45 pm, he noticed some
N N
burning smell coming from the corridor. PW3 went out to have a look and
O saw 2 umbrellas that were hanging on the gate of Room 3510 were on fire. O
PW3 rang the doorbell to alert the occupant PW2, who immediately put out
P P
the fire. The umbrellas, valued at around $100, were damaged. The case
Q was reported to the Police. Q
R R
Charge 3
S S
T T
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A A
B 5. 8 weeks and 3 days later, on 28 September, PW4 found her B
door bell damaged by fire when she returned to room 3720 Hei Lai House.
C C
The cost of repair was $200 and the case was reported to the Police.
D D
Arrest of the defendant
E E
F 6. Upon inquiry and investigation at Hei Lai House, Police F
arrived at the defendant’s residence at room 3920 at 4:10 pm and arrested
G G
the defendant. Upon search, a bottle of petrol and a lighter were seized
H from the defendant’s residence. H
I I
Video recorded interview
J J
7. Under caution, the defendant admitted that he committed the
K K
acts of arson in charges 1, 2 and 3. He sprayed petrol outside the premises
L L
and damaged their properties by fire. He committed the offences because
M
he was annoyed by the noise made by his neighbours. The defendant M
intended to scare them.
N N
O 8. There is no evidence to show that the residents of the O
premises involved in the 3 charges had any previous confrontations with
P P
the defendant.
Q Q
Previous convictions
R R
S 9. On 19 June 2014, the defendant was convicted of an offence S
of possession of apparatus fit and intended for smoking/injecting
T T
dangerous drugs under s.36(1) of the Dangerous Drugs Ordinance,
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A A
B Cap.134. The commission of this offence was after the present arson B
offences. The defendant has no similar record. The other earlier conviction
C C
was for dealing with property known or believed to represent proceeds of
D an indictable offence when the defendant was sentenced to 6 months’ D
imprisonment on 23 June 2011.
E E
F Mitigation F
G G
10. The defendant is 29, married to his wife who resides in
H mainland China. The defendant worked as a warehouse temperature H
control worker in June 2013, earning about $9,500 per month, contributing
I I
$2,000 per month towards his family. At the time of the offence in August
J 2013 he was unemployed and living on savings and financial assistance J
from his family. He is not a CSSA dependent. The defendant was living
K K
with his mother and second elder sister in Mei Foo Estate. The defendant’s
L L
father passed away in 2000, while his mother is aged 58 and a school
M
janitor. His second elder sister works in a convenient store. The M
defendant’s eldest sister is a Police officer who is married to another Police
N N
officer.
O O
11. Prior to taking plea, the defendant’s legal representatives have
P P
obtained a medical report in March 2014 which confirmed he was fit to
Q plea and able to recognize his misdeeds. According to Mr. Yuen, the Q
defendant started abusing methamphetamine 2 to 3 years ago, and he
R R
suffered from abnormal perceptual disturbances, including non-existent
S voices, feeling of being harmed and monitored by strangers and his S
neighbours.
T T
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A A
B 12. In the video recorded interview, the defendant said he set the B
fires because the victims created noise nuisance. None of the victims
C C
however had prior confrontation with the defendant and it was not a case of
D the defendant seeking revenge. It is Mr. Yuen’s submission that at the time D
of the defendant’s video recorded interview, he was still suffering from
E E
abnormal perceptual disturbances.
F F
13. After the defendant was remanded in the DATC in June 2014,
G G
the effect of the disturbances started to diminish, and the defendant was
H able to communicate with his lawyers clearly. It is the defendant’s case that H
he did not use petrol when committing charge 1 and 2, but he did use petrol
I I
when committing charge 3.
J J
14. Mitigation letters from the defendant, his mother and aunt
K K
were submitted. In summary, the defendant is of good and filial nature, not
L L
excellent academically, but he did try to better himself by taking
M
vocational courses. The defendant did obtain his bus driver qualification in M
November 2012.
N N
O 15. A sketch book of drawings by the defendant was shown to the O
court in support of Mr. Yuen’s submission that the defendant was
P P
struggling with his self-control. I am of course no expert and so the
Q drawings were returned to the defendant. Q
R R
16. In late 2013 and early 2014, having witnessed the ill effects of
S drugs on her son, the defendant’s mother reported his son to the Police and S
the defendant was convicted as a result. That offence was committed after
T T
the present case.
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A A
B B
17. Mr. Yuen urged the court to impose a sentence of between 6
C C
to 8 months’ imprisonment (after plea of guilty) after taking into
D consideration the fact that the offences were committed during a short D
period of time and that the offences were committed during the defendant’s
E E
‘abnormal period’. Mr. Yuen further urge the court to order the sentences
F to run concurrently. Having seen the DATC report, Mr. Yuen submits for F
the court to follow the recommendation of the DATC report and sentence
G G
the defendant to a fresh period of detention at the DATC.
H H
18. Mr. Yuen indicated that the defendant was willing to
I I
compensate the victims for the repair costs and also suggested the court to
J order reports to be prepared on the defendant prior to passing sentence. J
K K
Sentence
L L
M
19. Pursuant to section 63(1) of the Crimes Ordinance, the M
maximum sentence subsequent to a conviction on a charge of section 60(1)
N N
arson is that of life imprisonment.
O O
20. As Mr. Yuen had suggested, in order to assist in sentencing, a
P P
Drug Addiction Treatment Centre report, a psychologist report and 2
Q psychiatrist reports were ordered to be prepared on the defendant. Q
R R
21. According to the DATC report, the defendant, who is already
S being detained in Hei Ling Chau as a result of the previous case of S
possession of apparatus fit and intended for the inhalation of dangerous
T T
drugs, is still a drug dependent and in view of his future rehabilitation and
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A A
B to assist him to quit his drug habit, the defendant should continue to be B
detained at the treatment centre under a fresh detention order.
C C
D 22. According to the report of Clinical Psychologist Mr. Woo, the D
defendant was diagnosed as suffering from drug induced psychosis since
E E
2013. The defendant claimed he had been using ice for 3 to 4 years, as well
F as the occasional ketamine and cannabis. The defendant heard voices F
commenting on his actions and telling him to die. He believed that he was
G G
being followed and spied on and that his thought was being broadcast by
H the media. The defendant admitted to suicidal attempts in response to his H
hallucinations and paranoid ideation.
I I
J 23. The defendant claimed that his mental condition improved J
with medication but when he defaulted on follow up treatment and stopped
K K
taking his medication, the auditory hallucinations and paranoid ideation
L L
returned and the defendant was admitted to Kwai Chung Hospital from
M
January to March 2014. The defendant resumed his vice habit soon after he M
was discharged from hospital and the abnormal perceptual experiences
N N
recurred.
O O
24. The defendant told Mr. Woo that he had been hearing noises
P P
from his neighbours disturbing him on purpose. He wanted to threaten
Q them by setting fire and burning their properties. He was fully aware of his Q
behaviors and denied having any intention to injure anyone. He however
R R
denied that he had been abusing any drugs at the material times.
S S
25. It is Mr. Woo’s professional opinion that the defendant ‘is
T T
suffering from psychosis which may be related to his drug abuse habit.’
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A A
B The defendant however has poor insight into his mental health problem as B
well as poor compliance to treatment. The defendant’s risk of re-offending
C C
is ‘not low’ unless he can manage his drug abuse habit and mental health
D problem properly. D
E E
26. According to psychiatrists Dr. Tang and Dr. Chow, the
F defendant had suffered from drug induced psychosis since January 2013. F
His mental condition deteriorated in late 2013 with increased occasions of
G G
hearing voices. The defendant attempted to slash his wrist in December
H 2013 and was admitted to Kwai Chung Hospital. He was labelled as a H
special care case in view of his violent history. Medication was prescribed,
I I
which, coupled with abstinence from illicit drugs allowed his mental
J condition to improve. Yet the defendant resumed ‘ice’ consumption after J
being discharged from hospital and the voices returned. The defendant was
K K
admitted to A & E in April 2014 for yelling at night and was judged to be
L
suffering from amphetamine intoxication. The defendant’s mental L
M
condition improved after his incarceration in June 2014. The defendant has M
been in stable condition since.
N N
O 27. It is the professional opinion of the psychiatrists that the O
defendant did suffer from drug induced psychosis which had influenced
P P
his behavior, but since his abstinence from drugs and the administration of
Q medication, the defendant’s current mental condition is stable and no Q
psychiatric inpatient treatment is required.
R R
S 28. Based on the professional opinions of the psychologist and S
psychiatrists, it would appear that the defendant might have been affected
T T
by his previous abuse of ice and other dangerous drugs when he chose to
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A A
B commit the offences. It would also appear that since his abstinence from B
drugs and being put on medication, his condition has improved. It is safe to
C C
say that the root of the defendant’s problem is his usage of dangerous
D drugs. D
E E
29. Mr. Yuen for the defendant referred to various cases to assist
F this court in sentencing. In 4 of those1 cases, the defendants were made F
subject of either a Hospital Order or a Detention Centre Order and
G G
therefore the sentences are not helpful in our situation.
H H
30. In the case of HKSAR v Ling Kar Lik ( 凌嘉曆 ) HCMA
I I
865/2011, the appellant, who suffered from depression and required
J J
regular psychiatric outpatient treatment, threw 3 bottles of inflammable
K liquid into the corridor outside her residence. He was charged with arson K
and assaulting a Police officer. In relation to the arson charge, the learned
L L
magistrate found that although the appellant committed the offence under
M the influence of alcohol, his action warranted an immediate custodial M
sentence and adopted a starting point of 12 months’ imprisonment. On
N N
appeal, Deputy High Court Judge Patrick Li (as he then was) upheld the
O sentence and commented that it was on the lenient side. O
P P
31. In the case of HKSAR v Lam Siu Kei ( 林肇基 ), DCCC
Q 453/2011, the defendant pleaded guilty to one charge of arson and was Q
sentenced to 8 months’ imprisonment. There the defendant had some
R R
money dispute with the owner of a fruit stall, which later resulted in the
S S
defendant throwing lit newspapers into the corridor outside the stall. The
T T
1
HKSAR v 畢女, DCCC 943/2011 and CACC 449/2011; HKSAR v 甘玉珍, DCCC1054/2008; HKSAR
v 余兆棕, DCCC 315/2013
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A A
B stall did not suffer any loss. The learned Deputy District Judge Kwok (as B
he then was) found that there were peculiar circumstances in the case in
C C
that there was no evidence to show that the defendant intended to cause the
D stall serious damage; that the defendant returned to the stall immediately D
after throwing the lit newspaper and surrendered himself to the Police; that
E E
it was a spur of the moment thought that caused the defendant to commit
F the offence; and that the defendant himself had been threatened by the stall F
owner the day before during their money dispute. The learned Deputy
G G
Judge found that the defendant’s action was more of a venting of his
H frustration, albeit incorporating some degree of revenge. A starting point H
of 12 months’ imprisonment was adopted and the full one third discount
I I
was given for the defendant’s plea of guilty.
J J
32. In our present case, all three charges took place at Hei Lai
K K
House of Wah Lai Estate, where the defendant himself resides. The victims
L L
were all neighbours of the defendant. The damage to the property in each
M
charge is minor. This is the first time that the defendant had committed M
arson. Charges 1 and 2 took place on 2 consecutive days. Charge 3 took
N N
place 8 weeks later. There was premeditation in the commission of the 3 rd
O charge since the defendant had to acquire petrol in order to spray it outside O
the premises. There was also a specific intention on the defendant’s part ‘to
P P
scare his neighbours’. Despite the opinions of the psychologist and the
Q psychiatrists, it is the defendant’s own case (as gleaned from the Q
defendant’s psychologist and psychiatrist reports) that he was not under
R R
the influence of illicit drugs at the actual time of the commission of the
S offences. He knew clearly what he was doing. S
T T
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A A
B 33. Arson is a serious offence. It is fortunate that the damage to B
property is minor and no one was injured. Be that as it may, I find that there
C C
is a need to incorporate an element of deterrence in the sentence. It must be
D stressed that whatever grievances one might have against one’s neighbours, D
there is no scenario where one is entitled to set fire to the neighbor’s
E E
property in order to make a point or to scare them. Should one chooses to
F do so, one will have to suffer the full consequences for his or her action. I F
find that under the circumstances, an immediate custodial sentence is the
G G
only proper sentence.
H H
34. Bearing in mind the seriousness of the nature of the charge,
I I
but noting the minor damage to property, that the defendant has no
J previous similar convictions and the mental condition that the defendant J
was in, I find that a proper sentence in each of the 3 charges is that of 12
K K
months’ imprisonment, discounted to 8 months’ imprisonment in
L
recognition of the defendant’s guilty plea. L
M M
Totality
N N
O 35. Charges 1 and 2 were committed just one day apart, it can be O
argued that the defendant was still acting in the heat of the moment and I
P P
will order the sentence in charges 1 and 2 to be served concurrently.
Q Q
36. Charge 3 took place some 8 weeks later and on yet another
R R
different premises. Having taken a step back to consider the situation, I
S will order that 4 months of charge 3 be served consecutively to the S
sentences of charges 1 and 2.
T T
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A A
B 37. The total sentence is therefore 12 months’ imprisonment for B
the 3 charges.
C C
D Compensation Order D
E E
38. Pursuant to s.73(1)(b) of the Criminal Procedure Ordinance,
F Cap.221, and with the consent of the defendant, he is ordered to pay to the F
victim in each of the 3 charges the following amounts: $300 to PW1, $100
G G
to PW2 and $200 to PW4. With the consent of the defendant, the
H compensation money to be deducted from the defendant’s bail money. H
I I
Effect of imprisonment on the defendant’s present DATC order
J J
39. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment
K K
Centres Ordinance, Cap.244, since the defendant has been sentenced to a
L L
term of imprisonment of more than 9 months, his DATC detention order
M
imposed on 19 June 2014 in KTCC 1444/2014 shall cease to have effect. M
N N
O O
(Douglas T.H. Yau)
P District Judge P
Q Q
R R
S S
T T
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A A
B DCCC 30/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 30 OF 2014
E E
-----------------------------------
F HKSAR F
v.
G G
TANG KWOK WAI
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 21st August 2014 at 12:18 pm I
Present: Mr. Stephen Fong, Counsel on fiat, for HKSAR
J J
Mr. Yuen Siu Kei, instructed by M/s Christine M. Koo & Ip,
K K
assigned by DLA, for the Defendant
L
Offences: [1] – [3] Arson (縱火) L
M M
----------------------------
N Reasons for Sentence N
----------------------------
O O
1. The defendant faces 3 charges of arson and 1 charge of
P attempted arson, contrary to sections 60(1) and (3) and 63(1) of the Crimes P
Ordinance, Cap.200. He pleaded guilty to the arson charges but not guilty
Q Q
to the attempted arson charge. Upon the defendant’s conviction on charges
R 1 to 3, and upon the prosecution’s application, charge 4 is ordered to be R
kept on court file, not to be proceeded with against the defendant without
S S
the leave of the court.
T T
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A A
B Summary of facts B
C C
2. The defendant resided at room 3920, Hei Lai House, Wah Lai
D Estate, Lai Chi Kok, Kowloon, being neighbour to PW1, PW2 and PW4, D
who resided at 3 different rooms.
E E
F Charge 1 F
G G
3. On 13 August 2013, when resident of Room 4020, Hei Lai
H House left home for work at 7 am, she found that a ‘fai chun’ that was H
stuck to her door was damaged by fire, with a 20 cm x 40 cm burnt mark on
I I
the door. The cost of repair was $300 and the matter was reported to the
J Police. J
K K
Charge 2
L L
M
4. One day later on 14 August, while PW3 was inside his M
residence at room 3508 Hei Lai House at around 2:45 pm, he noticed some
N N
burning smell coming from the corridor. PW3 went out to have a look and
O saw 2 umbrellas that were hanging on the gate of Room 3510 were on fire. O
PW3 rang the doorbell to alert the occupant PW2, who immediately put out
P P
the fire. The umbrellas, valued at around $100, were damaged. The case
Q was reported to the Police. Q
R R
Charge 3
S S
T T
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A A
B 5. 8 weeks and 3 days later, on 28 September, PW4 found her B
door bell damaged by fire when she returned to room 3720 Hei Lai House.
C C
The cost of repair was $200 and the case was reported to the Police.
D D
Arrest of the defendant
E E
F 6. Upon inquiry and investigation at Hei Lai House, Police F
arrived at the defendant’s residence at room 3920 at 4:10 pm and arrested
G G
the defendant. Upon search, a bottle of petrol and a lighter were seized
H from the defendant’s residence. H
I I
Video recorded interview
J J
7. Under caution, the defendant admitted that he committed the
K K
acts of arson in charges 1, 2 and 3. He sprayed petrol outside the premises
L L
and damaged their properties by fire. He committed the offences because
M
he was annoyed by the noise made by his neighbours. The defendant M
intended to scare them.
N N
O 8. There is no evidence to show that the residents of the O
premises involved in the 3 charges had any previous confrontations with
P P
the defendant.
Q Q
Previous convictions
R R
S 9. On 19 June 2014, the defendant was convicted of an offence S
of possession of apparatus fit and intended for smoking/injecting
T T
dangerous drugs under s.36(1) of the Dangerous Drugs Ordinance,
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A A
B Cap.134. The commission of this offence was after the present arson B
offences. The defendant has no similar record. The other earlier conviction
C C
was for dealing with property known or believed to represent proceeds of
D an indictable offence when the defendant was sentenced to 6 months’ D
imprisonment on 23 June 2011.
E E
F Mitigation F
G G
10. The defendant is 29, married to his wife who resides in
H mainland China. The defendant worked as a warehouse temperature H
control worker in June 2013, earning about $9,500 per month, contributing
I I
$2,000 per month towards his family. At the time of the offence in August
J 2013 he was unemployed and living on savings and financial assistance J
from his family. He is not a CSSA dependent. The defendant was living
K K
with his mother and second elder sister in Mei Foo Estate. The defendant’s
L L
father passed away in 2000, while his mother is aged 58 and a school
M
janitor. His second elder sister works in a convenient store. The M
defendant’s eldest sister is a Police officer who is married to another Police
N N
officer.
O O
11. Prior to taking plea, the defendant’s legal representatives have
P P
obtained a medical report in March 2014 which confirmed he was fit to
Q plea and able to recognize his misdeeds. According to Mr. Yuen, the Q
defendant started abusing methamphetamine 2 to 3 years ago, and he
R R
suffered from abnormal perceptual disturbances, including non-existent
S voices, feeling of being harmed and monitored by strangers and his S
neighbours.
T T
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A A
B 12. In the video recorded interview, the defendant said he set the B
fires because the victims created noise nuisance. None of the victims
C C
however had prior confrontation with the defendant and it was not a case of
D the defendant seeking revenge. It is Mr. Yuen’s submission that at the time D
of the defendant’s video recorded interview, he was still suffering from
E E
abnormal perceptual disturbances.
F F
13. After the defendant was remanded in the DATC in June 2014,
G G
the effect of the disturbances started to diminish, and the defendant was
H able to communicate with his lawyers clearly. It is the defendant’s case that H
he did not use petrol when committing charge 1 and 2, but he did use petrol
I I
when committing charge 3.
J J
14. Mitigation letters from the defendant, his mother and aunt
K K
were submitted. In summary, the defendant is of good and filial nature, not
L L
excellent academically, but he did try to better himself by taking
M
vocational courses. The defendant did obtain his bus driver qualification in M
November 2012.
N N
O 15. A sketch book of drawings by the defendant was shown to the O
court in support of Mr. Yuen’s submission that the defendant was
P P
struggling with his self-control. I am of course no expert and so the
Q drawings were returned to the defendant. Q
R R
16. In late 2013 and early 2014, having witnessed the ill effects of
S drugs on her son, the defendant’s mother reported his son to the Police and S
the defendant was convicted as a result. That offence was committed after
T T
the present case.
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A A
B B
17. Mr. Yuen urged the court to impose a sentence of between 6
C C
to 8 months’ imprisonment (after plea of guilty) after taking into
D consideration the fact that the offences were committed during a short D
period of time and that the offences were committed during the defendant’s
E E
‘abnormal period’. Mr. Yuen further urge the court to order the sentences
F to run concurrently. Having seen the DATC report, Mr. Yuen submits for F
the court to follow the recommendation of the DATC report and sentence
G G
the defendant to a fresh period of detention at the DATC.
H H
18. Mr. Yuen indicated that the defendant was willing to
I I
compensate the victims for the repair costs and also suggested the court to
J order reports to be prepared on the defendant prior to passing sentence. J
K K
Sentence
L L
M
19. Pursuant to section 63(1) of the Crimes Ordinance, the M
maximum sentence subsequent to a conviction on a charge of section 60(1)
N N
arson is that of life imprisonment.
O O
20. As Mr. Yuen had suggested, in order to assist in sentencing, a
P P
Drug Addiction Treatment Centre report, a psychologist report and 2
Q psychiatrist reports were ordered to be prepared on the defendant. Q
R R
21. According to the DATC report, the defendant, who is already
S being detained in Hei Ling Chau as a result of the previous case of S
possession of apparatus fit and intended for the inhalation of dangerous
T T
drugs, is still a drug dependent and in view of his future rehabilitation and
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A A
B to assist him to quit his drug habit, the defendant should continue to be B
detained at the treatment centre under a fresh detention order.
C C
D 22. According to the report of Clinical Psychologist Mr. Woo, the D
defendant was diagnosed as suffering from drug induced psychosis since
E E
2013. The defendant claimed he had been using ice for 3 to 4 years, as well
F as the occasional ketamine and cannabis. The defendant heard voices F
commenting on his actions and telling him to die. He believed that he was
G G
being followed and spied on and that his thought was being broadcast by
H the media. The defendant admitted to suicidal attempts in response to his H
hallucinations and paranoid ideation.
I I
J 23. The defendant claimed that his mental condition improved J
with medication but when he defaulted on follow up treatment and stopped
K K
taking his medication, the auditory hallucinations and paranoid ideation
L L
returned and the defendant was admitted to Kwai Chung Hospital from
M
January to March 2014. The defendant resumed his vice habit soon after he M
was discharged from hospital and the abnormal perceptual experiences
N N
recurred.
O O
24. The defendant told Mr. Woo that he had been hearing noises
P P
from his neighbours disturbing him on purpose. He wanted to threaten
Q them by setting fire and burning their properties. He was fully aware of his Q
behaviors and denied having any intention to injure anyone. He however
R R
denied that he had been abusing any drugs at the material times.
S S
25. It is Mr. Woo’s professional opinion that the defendant ‘is
T T
suffering from psychosis which may be related to his drug abuse habit.’
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A A
B The defendant however has poor insight into his mental health problem as B
well as poor compliance to treatment. The defendant’s risk of re-offending
C C
is ‘not low’ unless he can manage his drug abuse habit and mental health
D problem properly. D
E E
26. According to psychiatrists Dr. Tang and Dr. Chow, the
F defendant had suffered from drug induced psychosis since January 2013. F
His mental condition deteriorated in late 2013 with increased occasions of
G G
hearing voices. The defendant attempted to slash his wrist in December
H 2013 and was admitted to Kwai Chung Hospital. He was labelled as a H
special care case in view of his violent history. Medication was prescribed,
I I
which, coupled with abstinence from illicit drugs allowed his mental
J condition to improve. Yet the defendant resumed ‘ice’ consumption after J
being discharged from hospital and the voices returned. The defendant was
K K
admitted to A & E in April 2014 for yelling at night and was judged to be
L
suffering from amphetamine intoxication. The defendant’s mental L
M
condition improved after his incarceration in June 2014. The defendant has M
been in stable condition since.
N N
O 27. It is the professional opinion of the psychiatrists that the O
defendant did suffer from drug induced psychosis which had influenced
P P
his behavior, but since his abstinence from drugs and the administration of
Q medication, the defendant’s current mental condition is stable and no Q
psychiatric inpatient treatment is required.
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S 28. Based on the professional opinions of the psychologist and S
psychiatrists, it would appear that the defendant might have been affected
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by his previous abuse of ice and other dangerous drugs when he chose to
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A A
B commit the offences. It would also appear that since his abstinence from B
drugs and being put on medication, his condition has improved. It is safe to
C C
say that the root of the defendant’s problem is his usage of dangerous
D drugs. D
E E
29. Mr. Yuen for the defendant referred to various cases to assist
F this court in sentencing. In 4 of those1 cases, the defendants were made F
subject of either a Hospital Order or a Detention Centre Order and
G G
therefore the sentences are not helpful in our situation.
H H
30. In the case of HKSAR v Ling Kar Lik ( 凌嘉曆 ) HCMA
I I
865/2011, the appellant, who suffered from depression and required
J J
regular psychiatric outpatient treatment, threw 3 bottles of inflammable
K liquid into the corridor outside her residence. He was charged with arson K
and assaulting a Police officer. In relation to the arson charge, the learned
L L
magistrate found that although the appellant committed the offence under
M the influence of alcohol, his action warranted an immediate custodial M
sentence and adopted a starting point of 12 months’ imprisonment. On
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appeal, Deputy High Court Judge Patrick Li (as he then was) upheld the
O sentence and commented that it was on the lenient side. O
P P
31. In the case of HKSAR v Lam Siu Kei ( 林肇基 ), DCCC
Q 453/2011, the defendant pleaded guilty to one charge of arson and was Q
sentenced to 8 months’ imprisonment. There the defendant had some
R R
money dispute with the owner of a fruit stall, which later resulted in the
S S
defendant throwing lit newspapers into the corridor outside the stall. The
T T
1
HKSAR v 畢女, DCCC 943/2011 and CACC 449/2011; HKSAR v 甘玉珍, DCCC1054/2008; HKSAR
v 余兆棕, DCCC 315/2013
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A A
B stall did not suffer any loss. The learned Deputy District Judge Kwok (as B
he then was) found that there were peculiar circumstances in the case in
C C
that there was no evidence to show that the defendant intended to cause the
D stall serious damage; that the defendant returned to the stall immediately D
after throwing the lit newspaper and surrendered himself to the Police; that
E E
it was a spur of the moment thought that caused the defendant to commit
F the offence; and that the defendant himself had been threatened by the stall F
owner the day before during their money dispute. The learned Deputy
G G
Judge found that the defendant’s action was more of a venting of his
H frustration, albeit incorporating some degree of revenge. A starting point H
of 12 months’ imprisonment was adopted and the full one third discount
I I
was given for the defendant’s plea of guilty.
J J
32. In our present case, all three charges took place at Hei Lai
K K
House of Wah Lai Estate, where the defendant himself resides. The victims
L L
were all neighbours of the defendant. The damage to the property in each
M
charge is minor. This is the first time that the defendant had committed M
arson. Charges 1 and 2 took place on 2 consecutive days. Charge 3 took
N N
place 8 weeks later. There was premeditation in the commission of the 3 rd
O charge since the defendant had to acquire petrol in order to spray it outside O
the premises. There was also a specific intention on the defendant’s part ‘to
P P
scare his neighbours’. Despite the opinions of the psychologist and the
Q psychiatrists, it is the defendant’s own case (as gleaned from the Q
defendant’s psychologist and psychiatrist reports) that he was not under
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the influence of illicit drugs at the actual time of the commission of the
S offences. He knew clearly what he was doing. S
T T
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A A
B 33. Arson is a serious offence. It is fortunate that the damage to B
property is minor and no one was injured. Be that as it may, I find that there
C C
is a need to incorporate an element of deterrence in the sentence. It must be
D stressed that whatever grievances one might have against one’s neighbours, D
there is no scenario where one is entitled to set fire to the neighbor’s
E E
property in order to make a point or to scare them. Should one chooses to
F do so, one will have to suffer the full consequences for his or her action. I F
find that under the circumstances, an immediate custodial sentence is the
G G
only proper sentence.
H H
34. Bearing in mind the seriousness of the nature of the charge,
I I
but noting the minor damage to property, that the defendant has no
J previous similar convictions and the mental condition that the defendant J
was in, I find that a proper sentence in each of the 3 charges is that of 12
K K
months’ imprisonment, discounted to 8 months’ imprisonment in
L
recognition of the defendant’s guilty plea. L
M M
Totality
N N
O 35. Charges 1 and 2 were committed just one day apart, it can be O
argued that the defendant was still acting in the heat of the moment and I
P P
will order the sentence in charges 1 and 2 to be served concurrently.
Q Q
36. Charge 3 took place some 8 weeks later and on yet another
R R
different premises. Having taken a step back to consider the situation, I
S will order that 4 months of charge 3 be served consecutively to the S
sentences of charges 1 and 2.
T T
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A A
B 37. The total sentence is therefore 12 months’ imprisonment for B
the 3 charges.
C C
D Compensation Order D
E E
38. Pursuant to s.73(1)(b) of the Criminal Procedure Ordinance,
F Cap.221, and with the consent of the defendant, he is ordered to pay to the F
victim in each of the 3 charges the following amounts: $300 to PW1, $100
G G
to PW2 and $200 to PW4. With the consent of the defendant, the
H compensation money to be deducted from the defendant’s bail money. H
I I
Effect of imprisonment on the defendant’s present DATC order
J J
39. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment
K K
Centres Ordinance, Cap.244, since the defendant has been sentenced to a
L L
term of imprisonment of more than 9 months, his DATC detention order
M
imposed on 19 June 2014 in KTCC 1444/2014 shall cease to have effect. M
N N
O O
(Douglas T.H. Yau)
P District Judge P
Q Q
R R
S S
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