區域法院（刑事）Deputy District Judge Amy Chan6/11/2023[2023] HKDC 177
DCCC310/2022
A A
B B
DCCC 310/2022
C [2023] HKDC 177 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 310 OF 2022
F F
G ----------------------------- G
HKSAR
H H
v
I CHENG CHUN WAI I
-----------------------------
J J
K Before: Deputy District Judge Amy Chan K
Date: 7 November 2023
L L
Present: Mr Wong Hin Sun, Jack, Counsel on fiat, for HKSAR
M Mr Chu Wai Kei, instructed by Messrs Lee, Wong & Lam, for M
the defendant
N N
Offence: [1] Arson (縱火)
O O
[2] Possession of liquor for sale without a liquor licence (為
P 售賣而無牌管有酒類) P
[3] Person responsible for carrying on a catering business
Q Q
failing to comply with directions of Secretary for Food and
R Health (餐飲業務負責人沒有遵從食物及衞生局局長指示) R
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. On 23 February 2023, D was found guilty after trial of one E
charge of arson1. He was absent and now he is brought before me with
F F
warrant executed. He has timely pleaded guilty to one charge of possession
G of liquor for sale without a liquor licence 2 and one charge of person G
responsible for carrying on a catering business failing to comply with
H H
directions of Secretary for Food and Health3.
I I
Charge 1: Arson
J J
2. On 10 August 2021, the Police mounted an anti-unlicenced
K K
liquor premises operation with a warrant against an unlicenced bar located
L at Room B3, 1st Floor, On Lok Industrial Building, Nos. 109-111 Yuen L
Long On Lok Road, Yuen Long, New Territories, Hong Kong (“the
M M
Premises”).
N N
3. At about 2340 hours on the same day, the police laid ambush
O O
at the rear staircase near the Premises. Subsequently the police requested
P entry into the Premises but the occupants inside refused to open door. After P
warnings given, police broke into the Premises. In the course of breaking
Q Q
in, an explosion was heard.
R R
S S
1
contrary to section 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap 200.
T 2 T
contrary to sections 17(3B) and 46(1) and (3) of the Dutiable Commodities Ordinance, Cap. 109.
3
contrary to section 7 of the Prevention and Control of Disease (Requirements and Directions)
(Business and Premises) Regulation, Cap. 599F.
U U
V V
-3-
A A
B B
4. Subsequently, the police managed to enter the Premises by
C force and D was arrested by police. C
D 5. After being cautioned, D stated voluntarily, “I was burning D
the odds and ends only. I didn’t expect such a blaze. I didn’t mean it.” D
E E
also stated that in the video-recorded interview, inter alia, that he burnt
F expired utility bills at about 2340 to 2345 hours on 10 August 2021 at the F
DJ stage in the Premises with a metal container and a gas canister.
G G
H 6. A wall measured 2.5m x 10 m dividing the Premises and the H
adjacent flat was collapsed. Fire damage or heat damage was seen on the
I I
stacked sofas as well as the air-conditioner.
J J
7. The cause of the explosion, as the court found, is the result
K K
that D burned the utility bills in a metal container at the time when the
L police entered the Premises by force. In doing so, D hooked the canister L
against the edge of the metal container. The prolonged heating burst the
M M
canister which caused the explosion.
N N
8. After hearing all the evidence, the court drew an irresistible
O O
inference that D heard the police at the entrance of the Premises and he
P immediately destroyed the evidence that showed he was the person in P
charge of the unlicensed bar.
Q Q
2nd Charge: Possession of liquor for sale without a liquor licence
R R
S 9. In the Premises, the police found, inter alia, dice, cups, S
ashtrays, soft drinks, an ice maker, amplifiers, 20 sofa like stools, 3
T T
refrigerators, one speaker and 5 drinks buckets.
U U
V V
-4-
A A
B B
10. 967 cans of beer and 34 bottles of wine (“Beverages”) were
C C
seized amongst other items from the Premises. The Government Chemist
D confirmed that these Beverages contain more than 1.2% of ethyl alcohol D
by volume and are liquor.
E E
F 11. At all material times D, being the owner and person in charge F
or control of the Premises was in possession of the liquor for the purpose
G G
of sale at the Premises and no valid liquor licence was issued to the
H Premises. H
I I
3rd Charge: Person responsible for carrying on a catering business failed
J to comply with directions of Secretary for Food and Health J
K K
12. The Premises was a premises as regulated by the direction
L published in the Gazette in G.N. 474 of 2021 and no “LeaveHomeSafe” L
venue QR code was found at or outside the Premises. At the material time,
M M
the Premises was in operation as a bar in contravention of the direction and
N D was the owner and person in charge or control of the Premises. N
O O
Mitigation
P P
13. D is 27 with a clear record. His education is up to Form 3.
Q Q
R 14. D used to work at a hair salon, but since the pandemic he had R
lost his job. He then started to work at the Premises. The bar at the
S S
Premises were in the process of obtaining a liquor licence. The bar had not
T earned any money yet and was in deficit. According to D, the present case T
U U
V V
-5-
A A
B B
took place on the first day of operation of the bar & he received no income
C from the bar. C
D 15. D currently depends on his savings and residing with his elder D
sister and mother since unemployment. He planned to be a hair stylist
E E
again upon release.
F F
16. According to D, he had made compensation of $200,000 to
G G
the owner of the Premises. He submitted the owner’s letter to confirm the
H payment. H
I I
17. D told the court today his girlfriend is pregnant and D wants
J
to take care of her as soon as he has finished serving his sentence. J
K K
Consideration
L L
18. Arson is a serious offence. The consequence is usually very
M M
serious, particularly in Hong Kong which is densely populated, and the
N court must be strict in sentencing to protect the public. The maximum N
sentence is one of life imprisonment.
O O
P 19. There are no guidelines as to sentencing cases of arson P
because it is neither possible nor practical to fix a tariff for arson given the
Q Q
varied circumstances in which these offences can arise. For this reason,
R references in previous cases are often of limited assistance. Each sentence R
would depend on the facts of each case.
S S
T 20. The defendant has a clear record at the time of the T
commission of the offence. He is convicted of “driving a motor vehicle
U U
V V
-6-
A A
B B
with alcohol concentration above the prescribed limit” after the present
C case. I will treat D with clear record. C
D 21. In the present case, it was not a pre-meditated incident. The D
fire was broken out during the night time within an industrial building. One
E E
would expect people working night-shift still stay and there are lots of
F varieties of commodities stored within the building. The fire within the F
Premises posed a serious threat to life and safety of these people and threats
G G
to the properties.
H H
22. I have seen photographs of the Premises and find that the
I I
damage the fire caused was extensive. The risk of damage to other
J property could not be classified as low. There had been explosion in this J
case resulting a wall of 2.5m x 10m within the Premises collapsed into the
K K
adjacent flat. The offence should fall on the higher end of the scale of
L seriousness. L
M M
23. It is lucky that no one was injured in the present case and that
N the property damaged was within the Premises and in particular the wall N
connecting the adjacent flat.
O O
P P
24. The defence referred to a number of arson cases from the
Q District Court and submitted that a starting point of 3 to 4 years is Q
appropriate.
R R
S
25. After considering all the factors, including the fact that D had S
paid compensation to the owner for Charge 1, I adopt a starting point of 3
T T
years’ imprisonment.
U U
V V
-7-
A A
B B
26. Though D’s girl friend is pregnant recently, this does not
C C
amount to any mitigating factor because he is the author of his own
D misfortune. D
E E
27. There is an aggravating factor. D’s commission of the
F offences has the effect of undermining the administration of justice. He F
had destroyed the evidence by burning the utility bills when the police
G G
gained entry into the Premises and for this I will enhance the sentence by
H 3 months’ imprisonment, leading to a sentence of 3 years 3 months’ H
imprisonment.
I I
J
28. For Charge 2 and 3, I adopt 6 weeks’ imprisonment for each J
charge. Upon the guilty plea, I reduce each charge to 4 weeks’
K K
imprisonment.
L L
Totality
M M
29. Given the overlapping factual matrix for the 3 charges, I
N order that the sentences in charge 1, 2 and 3 to be served wholly N
concurrently, leading to a sentence of 3 years and 3 months’ imprisonment.
O O
P P
Q Q
R R
( Amy Chan )
Deputy District Judge
S S
T T
U U
V V
A A
B B
DCCC 310/2022
C [2023] HKDC 177 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 310 OF 2022
F F
G ----------------------------- G
HKSAR
H H
v
I CHENG CHUN WAI I
-----------------------------
J J
K Before: Deputy District Judge Amy Chan K
Date: 7 November 2023
L L
Present: Mr Wong Hin Sun, Jack, Counsel on fiat, for HKSAR
M Mr Chu Wai Kei, instructed by Messrs Lee, Wong & Lam, for M
the defendant
N N
Offence: [1] Arson (縱火)
O O
[2] Possession of liquor for sale without a liquor licence (為
P 售賣而無牌管有酒類) P
[3] Person responsible for carrying on a catering business
Q Q
failing to comply with directions of Secretary for Food and
R Health (餐飲業務負責人沒有遵從食物及衞生局局長指示) R
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. On 23 February 2023, D was found guilty after trial of one E
charge of arson1. He was absent and now he is brought before me with
F F
warrant executed. He has timely pleaded guilty to one charge of possession
G of liquor for sale without a liquor licence 2 and one charge of person G
responsible for carrying on a catering business failing to comply with
H H
directions of Secretary for Food and Health3.
I I
Charge 1: Arson
J J
2. On 10 August 2021, the Police mounted an anti-unlicenced
K K
liquor premises operation with a warrant against an unlicenced bar located
L at Room B3, 1st Floor, On Lok Industrial Building, Nos. 109-111 Yuen L
Long On Lok Road, Yuen Long, New Territories, Hong Kong (“the
M M
Premises”).
N N
3. At about 2340 hours on the same day, the police laid ambush
O O
at the rear staircase near the Premises. Subsequently the police requested
P entry into the Premises but the occupants inside refused to open door. After P
warnings given, police broke into the Premises. In the course of breaking
Q Q
in, an explosion was heard.
R R
S S
1
contrary to section 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap 200.
T 2 T
contrary to sections 17(3B) and 46(1) and (3) of the Dutiable Commodities Ordinance, Cap. 109.
3
contrary to section 7 of the Prevention and Control of Disease (Requirements and Directions)
(Business and Premises) Regulation, Cap. 599F.
U U
V V
-3-
A A
B B
4. Subsequently, the police managed to enter the Premises by
C force and D was arrested by police. C
D 5. After being cautioned, D stated voluntarily, “I was burning D
the odds and ends only. I didn’t expect such a blaze. I didn’t mean it.” D
E E
also stated that in the video-recorded interview, inter alia, that he burnt
F expired utility bills at about 2340 to 2345 hours on 10 August 2021 at the F
DJ stage in the Premises with a metal container and a gas canister.
G G
H 6. A wall measured 2.5m x 10 m dividing the Premises and the H
adjacent flat was collapsed. Fire damage or heat damage was seen on the
I I
stacked sofas as well as the air-conditioner.
J J
7. The cause of the explosion, as the court found, is the result
K K
that D burned the utility bills in a metal container at the time when the
L police entered the Premises by force. In doing so, D hooked the canister L
against the edge of the metal container. The prolonged heating burst the
M M
canister which caused the explosion.
N N
8. After hearing all the evidence, the court drew an irresistible
O O
inference that D heard the police at the entrance of the Premises and he
P immediately destroyed the evidence that showed he was the person in P
charge of the unlicensed bar.
Q Q
2nd Charge: Possession of liquor for sale without a liquor licence
R R
S 9. In the Premises, the police found, inter alia, dice, cups, S
ashtrays, soft drinks, an ice maker, amplifiers, 20 sofa like stools, 3
T T
refrigerators, one speaker and 5 drinks buckets.
U U
V V
-4-
A A
B B
10. 967 cans of beer and 34 bottles of wine (“Beverages”) were
C C
seized amongst other items from the Premises. The Government Chemist
D confirmed that these Beverages contain more than 1.2% of ethyl alcohol D
by volume and are liquor.
E E
F 11. At all material times D, being the owner and person in charge F
or control of the Premises was in possession of the liquor for the purpose
G G
of sale at the Premises and no valid liquor licence was issued to the
H Premises. H
I I
3rd Charge: Person responsible for carrying on a catering business failed
J to comply with directions of Secretary for Food and Health J
K K
12. The Premises was a premises as regulated by the direction
L published in the Gazette in G.N. 474 of 2021 and no “LeaveHomeSafe” L
venue QR code was found at or outside the Premises. At the material time,
M M
the Premises was in operation as a bar in contravention of the direction and
N D was the owner and person in charge or control of the Premises. N
O O
Mitigation
P P
13. D is 27 with a clear record. His education is up to Form 3.
Q Q
R 14. D used to work at a hair salon, but since the pandemic he had R
lost his job. He then started to work at the Premises. The bar at the
S S
Premises were in the process of obtaining a liquor licence. The bar had not
T earned any money yet and was in deficit. According to D, the present case T
U U
V V
-5-
A A
B B
took place on the first day of operation of the bar & he received no income
C from the bar. C
D 15. D currently depends on his savings and residing with his elder D
sister and mother since unemployment. He planned to be a hair stylist
E E
again upon release.
F F
16. According to D, he had made compensation of $200,000 to
G G
the owner of the Premises. He submitted the owner’s letter to confirm the
H payment. H
I I
17. D told the court today his girlfriend is pregnant and D wants
J
to take care of her as soon as he has finished serving his sentence. J
K K
Consideration
L L
18. Arson is a serious offence. The consequence is usually very
M M
serious, particularly in Hong Kong which is densely populated, and the
N court must be strict in sentencing to protect the public. The maximum N
sentence is one of life imprisonment.
O O
P 19. There are no guidelines as to sentencing cases of arson P
because it is neither possible nor practical to fix a tariff for arson given the
Q Q
varied circumstances in which these offences can arise. For this reason,
R references in previous cases are often of limited assistance. Each sentence R
would depend on the facts of each case.
S S
T 20. The defendant has a clear record at the time of the T
commission of the offence. He is convicted of “driving a motor vehicle
U U
V V
-6-
A A
B B
with alcohol concentration above the prescribed limit” after the present
C case. I will treat D with clear record. C
D 21. In the present case, it was not a pre-meditated incident. The D
fire was broken out during the night time within an industrial building. One
E E
would expect people working night-shift still stay and there are lots of
F varieties of commodities stored within the building. The fire within the F
Premises posed a serious threat to life and safety of these people and threats
G G
to the properties.
H H
22. I have seen photographs of the Premises and find that the
I I
damage the fire caused was extensive. The risk of damage to other
J property could not be classified as low. There had been explosion in this J
case resulting a wall of 2.5m x 10m within the Premises collapsed into the
K K
adjacent flat. The offence should fall on the higher end of the scale of
L seriousness. L
M M
23. It is lucky that no one was injured in the present case and that
N the property damaged was within the Premises and in particular the wall N
connecting the adjacent flat.
O O
P P
24. The defence referred to a number of arson cases from the
Q District Court and submitted that a starting point of 3 to 4 years is Q
appropriate.
R R
S
25. After considering all the factors, including the fact that D had S
paid compensation to the owner for Charge 1, I adopt a starting point of 3
T T
years’ imprisonment.
U U
V V
-7-
A A
B B
26. Though D’s girl friend is pregnant recently, this does not
C C
amount to any mitigating factor because he is the author of his own
D misfortune. D
E E
27. There is an aggravating factor. D’s commission of the
F offences has the effect of undermining the administration of justice. He F
had destroyed the evidence by burning the utility bills when the police
G G
gained entry into the Premises and for this I will enhance the sentence by
H 3 months’ imprisonment, leading to a sentence of 3 years 3 months’ H
imprisonment.
I I
J
28. For Charge 2 and 3, I adopt 6 weeks’ imprisonment for each J
charge. Upon the guilty plea, I reduce each charge to 4 weeks’
K K
imprisonment.
L L
Totality
M M
29. Given the overlapping factual matrix for the 3 charges, I
N order that the sentences in charge 1, 2 and 3 to be served wholly N
concurrently, leading to a sentence of 3 years and 3 months’ imprisonment.
O O
P P
Q Q
R R
( Amy Chan )
Deputy District Judge
S S
T T
U U
V V