HKSAR v. WAN XIUYING
HCCC285/2008高等法院（刑事）Offence: Arson with intent to endanger life (意圖危害生命而縱火) Transcript of the Audio Recording of the Sentence in the above case COURT: The defendant is charged with arson with intent to endanger life, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200. On 6 March this year she pleaded guilty to that charge and admitted a Summary of Facts prepared by the prosecution. The particulars of the charge allege that the defendant had, on 25 January 2008, outside Room 2207 on the 22nd floor of Choi Sing House at the Choi Ha Estate, in Sau Mau Ping in Kowloon, without lawful excuse, damaged by fire Room 2207, 22nd floor, Choi Sing House, Choi Ha Estate, the property belonging to one Lai Kwan-ying, intending to damage such property or being reckless as to whether such property would be damaged and intending thereby to endanger the lives of Lai Kwan-ying, Cheung Ting-shun and Chan Yin-fong. The maximum penalty for an accused convicted of this offence is life imprisonment. The persons named in the indictment as being those whose lives were endangered by the defendant’s acts were, as I have said, Madam Lai, who owned the property; her eldest son; and his girlfriend; that is, Cheung Ting-shun and Chan Yin-fong. Madam Lai had another son, Cheung Kit-shun. He had previously lived at these premises on the 22nd floor of Choi Sing House, but had moved away some time before January of 2008. Cheung Kit-shun was a cross-border truck driver. In 1998 he and the defendant became romantically involved, and from 1999 onwards, they lived together in Shenzhen. By around about May or June of the year 2007, that relationship had soured. Cheung Kit-shun wanted them to separate. The defendant, in response to that, allegedly requested that he pay to her what is described in the Summary of Facts as a separation fee. It appears from the reports that are before me, which I will come to in due course, that when interviewed by a psychiatrist and a psychologist, she told them that the sums concerned were in fact loans that had been made by her to Cheung and which he had undertaken to repay. Whether or not they were loans or whether or not they were separation fees in the final analysis is not of the greatest significance. What is of significance is that Cheung Kit-shun did not have the funds to make the payments, and in September and October of 2007 he signed acknowledgements of indebtedness - that is to say IOUs - for the amount of $100,000. Cheung, for his part, moved out of the Shenzhen premises some time in early October of 2007, and thereafter had no further contact with the defendant. This is the background to this matter. Around 4 am on 25 January 2008, a fire broke out at the premises named in the indictment. Madam Lai, her eldest son and his girlfriend were inside the premises at that time. They were asleep. Neighbours who were alerted to the blaze broke the lock on the folding metal shutters. Thereafter they kicked open the wooden door which was behind that, but were unable to enter the premises because of the intensity of the fire. In the meantime, the Fire Department had been called, and upon arrival were able to enter the premises and rescue those inside. The Fire Department officers noted that whilst the sitting room and kitchen of the premises were damaged, the bedrooms were not. The inference to be drawn from that was that the seat of the fire was closest to the entry door. Shortly after this, one of the Fire Department officers found the defendant standing outside the railing of the staircase landing between the 29th and 30th floors of the same building. She was rescued and placed in the care of the ambulance officers who were by this time in attendance. Madam Lai was subsequently found to have burnt hair on the top of her head. Her son had abrasions and swelling and blistering on his left hand as well as some burnt hair, and the son’s girlfriend had second-degree burns to her face and fingers. She also suffered from smoke inhalation. The defendant, for her part, was also treated for smoke inhalation subsequent to her being placed in the care of the ambulance officers. Subsequent to the fire being extinguished, there was an examination of the premises by a Government forensic expert. His examination revealed that the wooden door of the premises was burnt and detached from the door jamb. All the furniture in the living room was badly burnt. There were partially burnt grey and a whitish-yellow solid lumps which were found in the lock stile, the keyhole, and various parts of the hinges of the folding metal shutter. On a number of exhibits seized from the premises, traces of a highly inflammable organic solvent commonly known as white spirit were found. Similar traces of white spirit were found on the defendant’s clothing and hand swabs and a rucksack that she had taken with her that day. The officers who conducted the forensic examination of the premises also found six plastic cartridges labelled “Magic Steel” on the staircase landing on the 22nd floor. A control sample of one of these cartridges, which is in two parts, revealed that when the two parts of the cartridge were mixed, they formed a hardened epoxy adhesive. The partially burnt fragments which I have referred to earlier which were collected from the metal shutter were the same substance. Traces of this substance were also recovered from the hand swabs taken from the defendant. In layman’s terms, the forensic examination revealed that the fire had been started by using a highly inflammable liquid, white spirit. That fuel was set alight at ground level outside the main entrance to the premises. Again in layman’s terms, the “Magic Steel” mixture which had been placed on and around the folding metal shutter and into the lock of the folding metal shutter, if that had hardened, then that door would have been almost impossible to have opened. Similarly, if the mixture had hardened in the keyhole to the door, it would have been impossible to insert the key and open the door. What is immediately apparent is that the placing of this mixture of the substance described as “Magic Steel” in and around the folding metal shutter door and the lock attached to that was clearly intended to make it impossible for the inhabitants of those premises to get out. The potential arising from the above is frighteningly obvious. The occupants would have had no means of escape and would have undoubtedly perished in the fire, given its intensity. The reason they did not was as a direct consequence of the response of their neighbours and the Fire Department and the fact that whoever had placed that epoxy resin in and around the shutters of the folding door had not allowed sufficient time for it to set properly. After the defendant had been detained at the scene, she was taken to the United Christian Hospital by ambulance. Whilst on the way, the defendant told the officer escorting her that she had set the fire. Later, and under caution, she said, “I went to Room 2207, Choi Sing House, to demand debt repayment from Cheung Kit-shun. When I failed, I set fire on his flat.” The defendant was interviewed under caution at a later time. It is to be observed that when the accused was arrested, she had in her possession several pieces of paper with Cheung Kit-shun’s name on it, his address on it, a copy of his identity card and the two IOUs which I have earlier referred to. In the course of the subsequent interviews, the defendant, inter alia, told the police the following: that she was born in Szechuan and had received primary education in the mainland. She had known Cheung Kit-shun for 10 years and they cohabited in Shenzhen until 2007. Cheung, she told the police, had borrowed $100,000 from her. Their relationship ceased at the end of 2007, and since that time, Cheung had refused to repay the money to her. She told the police that she had never been to Hong Kong before. She had arrived on 23 January for the first time and had entered Lo Wu at around 4 to 5 pm. The reason she had come to Hong Kong was to seek to press Cheung for the repayment of the money that he owed her. Under caution, she told the police that she had brought along with her four tubes of metal sealant with a view to sealing his door to scare him. After she came to Hong Kong, she was afraid that the metal sealant was not enough, so she purchased two more tubes from a hardware store. At the same time, she purchased the white spirit, which she described as “a can of white gasoline”, and this was the can of “gasoline”, as she described it, which she used to splash at the door of Room 2207 which led to the fire. In that interview, she told the police that she had gone to Cheung’s flat on the night of the 24th. She arrived at the doorway and waited in the staircase. She brought along with her the gasoline and the metal sealant. She said out of confusion she went to the entrance of Room 2207 to seal the rim of the iron gate with the metal sealant. Afterwards, she poured the gasoline into the room by the edge of the door. She said at this time she was smoking, and that she accidentally dropped the cigarette butt onto the floor, which lit the gasoline and led to the fire. What emerges from that interview and is not now challenged is that subsequent to the fire starting, it was the defendant who dialled 999 to alert the Fire Department to the fact that there was a fire at those premises. She told the police that she did not set the fire on purpose, and that she just wanted to scare Cheung so that he would return the money to her. This is the background to this matter. On 6 March, subsequent to the defendant pleading guilty and admitting the Summary of Facts, I ordered that there be prepared a psychiatric report and a psychologist’s report to assist me in the sentencing process in this matter. Both reports are now available, and, I am advised, have been read to the defendant, who acknowledges that she understands the contents. Dr Amy Liu Ching-yong, a visiting psychiatrist at Siu Lam Psychiatric Centre, had first prepared a report on 13 February 2008 at the request of the magistrate, and the subsequent report she prepared upon my instructions was her second report. Her conclusions in both reports were to the effect that the defendant has no psychiatric illness and consequently is in need of no treatment by reason of that. Miss Michelle W S Yiu, a clinical psychologist attached to the Correctional Services Department, likewise prepared a report having interviewed the defendant on two occasions. She in the report indicates that in addition to the two interviews, she subjected the defendant to a battery of tests which were done to determine and assess the nature of her personality and her intellectual functioning. It is unnecessary to go into any detail of her observations, and I will simply refer to the conclusions and recommendations that she has made. “This is Miss Wan’s first criminal conviction. She has offered no denial to the index offence. She is impressed to be free from major psychopathology at present. The index offence is possibly a manifestation of her meagre problem-solving ability and impulse control ability in face of crisis. Her self-esteem was likely to be broken through by anger and emotional outburst when she perceived there was no solution to her predicament and when her self-esteem was being hurt. It is opined that providing her with brief psychological intervention, targeting her ability to coping with life crises and stress may be helpful to her rehabilitation.” It is apparent from both reports that it is inappropriate to consider sentencing this defendant other than to a term of imprisonment. On the last occasion, Mr Yuen Kwok-wah, on her behalf, reserved his mitigation until the reports had been prepared and had been explained to the defendant. Today he has referred me to much of the background of the defendant which is contained in those reports. The summary of her background is to the effect that she comes from a family in China. She was educated up to Primary Level 6. She had for most of her life worked either as a waitress or in the industry of food provision, be it in restaurants or otherwise. Much of the circumstances surrounding the relationship that the defendant had with Mr Cheung and its decline were contained, as I have indicated, in the reports and were referred to by Mr Cheung. What is quite apparent is that the break-up of the relationship was a very distressing time for the defendant. Mr Yuen says of her that this was not a premeditated attempt to burn the premises where she thought that Cheung lived. I said to Mr Yuen in the course of his mitigation that with respect to that submission, it does not sit comfortably with the Admitted Facts that the defendant came to Hong Kong bringing with her the means to seal the metal shutter of the premises where she thought the defendant lived. It certainly does not sit well with the fact that subsequent to her arrival, she determined that it was necessary to obtain more of that sealant because she did not think there was sufficient to ensure that the door was shut; and most significantly, that at the time she purchased the additional sealant she purchased the white spirit, or the “white gasoline”, as she described it, which was subsequently used to set fire to these premises. I am drawn to the conclusion, notwithstanding Mr Yuen’s submission, that the decision by this defendant to set fire to these premises was premeditated. It was planned. It is significant that it was she who called the Fire Department, and it is significant that her actions subsequent to the setting of the fire indicated that what she had brought about by her actions - that is, the degree of the conflagration - may not have been to the extent as it transpires it was. I accept that by calling the Fire Department when she did, it was an indication that the intensity of the blaze that in fact occurred may not have been that which she did intend. Nevertheless, it is impossible for me to conclude otherwise than that she did intend to cause this fire and that she did intend to do it in circumstances where those who were inside would find it very difficult, if not impossible, to get out. Mr Yuen quite properly acknowledges that this is a very serious offence of its kind, and I agree with that observation entirely. The actions of the defendant in attempting to seal the folding steel shutter speak louder than any words, as Stuart-Moore VP observed when dealing in the Court of Appeal with an accused who was convicted in very similar circumstances to those of this defendant. In that case, the defendant had placed a chain and lock on the door of the premises before setting it alight: “I note that the Court of Appeal has regularly declined to set down guidelines for offences of this type because of the significant variation in the degrees of seriousness which may occur.” The circumstances of this case, to my mind, are unquestionably in the higher end of that scale. As I have earlier indicated, this was not a spontaneous act of revenge against her former lover. It was a calculated and orchestrated attack in highly dangerous circumstances. It is, I observe, quite amazing that no one was killed or seriously injured. It is apparent, as I have earlier indicated, that the defendant came to Hong Kong on the afternoon before she set fire to the premises with that purpose in mind. She brought with her from Shenzhen the means by which she ultimately attempted to seal the metal gate. Not only when she attempted to seal the metal gate did she place the epoxy between the various shutters; she went to the trouble of inserting it into the hinge and into the keyhole. Clearly, by these actions, she intended to ensure that the occupants could not escape. There are, from the above it is clear, a number of aggravating factors in the defendant’s conduct. The most serious are obviously her attempts to ensure the occupants could not escape from the premises. The premeditation that I have earlier adverted to is unquestionably also an aggravating factor. It is also accepted in this case, and indeed in other cases where the courts have had to deal with this type of conduct, that it is an aggravating factor that the premises which were set alight were themselves part of a multi-storey residential building where the lives of others besides the family of her former lover were likely to be at risk by reason of her behaviour. Taking all of these matters into account, and giving credit to the defendant for the fact that it was she who called the Fire Department and that she has pleaded guilty at the earliest opportunity, I consider that the most lenient starting point that I could adopt after trial for the facts that give rise to this charge would be a starting point of 12 years’ imprisonment. Giving the usual one-third credit for a plea of guilty, the appropriate sentence in all of the circumstances is a term of 8 years’ imprisonment, and that is the sentence that I impose. (Remainder of proceedings not required) Court rises - 10.28 am 3 April 2009 Present: Ms Anna Y K Lai, SPP of the Department of Justice, for HKSAR Mr Yuen Kwok-wah, Bernard, assigned by the Legal Aid Department, for the Accused Date: 3 April 2009 at 9.59 am Before: Hon Saw J COURT: The defendant is charged with arson with intent to endanger life, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200.24/1/2008