Hon Yeung JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Background
背景

The applicant Kung Pak Fu and his wife were the registered owners of Room 101 on the 9th floor of Lee Tai Building, 101-107 Prince Edward Road West, Mongkok, Kowloon (hereinafter “the residence”). They lived at the residence together with their three children.
申請人龔伯富和妻子為九龍旺角太子道西101-107號利泰大厦9樓101室（“該居所”）的註冊業主。他們和三名兒女在該居所同住。

At about 11 p.m. on 12 December 2006, a fire broke out in the residence. Although the fire was extinguished very quickly, the applicant and his young daughter both suffered burns. The young daughter suffered secondary burns, covering 2% of her total body area and mainly to her right toes, and has now fully recovered. The applicant suffered secondary burns covering 30% of his total body area, but most of them were on parts of his body which could be covered. The applicant did not suffer facial injuries, nor was his movement affected.
2006年12月12日晚上11時許，該居所發生火警，雖然火勢很快遭撲滅，但申請人和幼女都受燒傷。幼女全身2% 受二級程度燒傷，主要在右腳腳趾，但已完全康復。申請人則全身30% 受二級程度燒傷，但大部份在可以遮蓋部位。申請人容貌無損，行動亦不受影響。

As a result of the incident, the applicant was charged with arson being reckless as to whether the life of another would thereby be endangered. He pleaded not guilty and was tried before Deputy Judge Pang sitting with a jury. He was convicted after trial and was sentenced to 6½ years’ imprisonment.
事件導致申請人被控罔顧他人生命是否會受危害而縱火罪。他否認控罪，案件由高等法院原訟法庭暫委法官彭偉昌會同陪審團審理。結果，申請人被裁定罪名成立及被判入獄6年半。

The applicant has applied for leave to appeal against both conviction and sentence. In respect of his application against sentence, he is represented by Mr. Hung of Counsel. He acted in person in respect of his application against conviction, but at the commencement of the hearing of the application he indicated that he would abandon his application against conviction. The application was dismissed accordingly. We only have to concern ourselves with his application against sentence.
申請人不服定罪及判刑，曾提出上訴許可申請，希望獲准就定罪或判刑上訴。就判刑申請孔慶碩大律師代表申請人，但就定罪申請，申請人沒有大律師代表，親自行事。開庭時，申請人表示放棄就定罪的申請，該申請亦被撤銷，而本庭只需處理申請人就判刑的申請。

Prosecution evidence
控方證據

The prosecution’s evidence mainly came from the applicant’s two children, who were at the scene at the material time.
控方主要證據源自案發時在現場的申請人兩名子女。

The applicant’s daughter saw the applicant pour a bottle of essential oil onto the floor at the centre of the living room of the residence. In the meantime, the applicant had an argument with his children. His daughter said to him, “Jump down the building and kill yourself if you want to die”, and the son said, “It is you who have been cheated of all the monies in the first place”. The applicant became extremely agitated and angry and complained that no one cared about his feelings. Then he took out a piece of newspaper, held a corner of it with one hand and lighted another corner of it with a lighter, and threw the burning newspaper on the floor, setting the essential oil on the floor alight.
申請人的女兒目睹申請人將一支香薰油斟倒在該居所的客廳中間。期間，申請人和子女有些爭吵。女兒對申請人說，“你要死，就自己跳樓死”；兒子則說，“係你自己畀人呃晒啲錢先嘅”。申請人則極為激動及惱怒並表示沒有人理會他的感受。其後申請人拿出一張報紙，用手執一角及用打火機燃點另一角，並將燃燒的報紙拋在地上，引致地上的香薰油起火。

The applicant’s son immediately rushed into the toilet to fetch water to put out the fire, and the fire was put out in 10 minutes.
申請人的兒子隨即衝入廁所取水撲救，並在10分鐘內將火救熄。

The applicant’s children asserted that they saw the applicant pouring essential oil over the floor, lighting newspaper and throwing the burning newspaper on the floor. The daughter further claimed that the whole process of the applicant pouring and lighting the essential oil lasted as long as 10 minutes. The applicant’s son said that the fire was small and he was able to put out the fire just by using two basins of water.
申請人的子女都力稱目睹申請人有將香薰油斟倒在地上並燃點報紙及將燃燒報紙拋在地上。申請人的女兒更指申請人斟倒及燃點香薰油的整個過程長達10分鐘。申請人的兒子則指火勢輕微，他亦只需用兩盆水就能將火救熄。

The applicant was subsequently arrested by the police. When asked by the police why a fire broke out in the residence, the applicant repeatedly admitted that “it was set by me” and “yes, yes, it was set by me”.
其後申請人被警員拘捕。警員問申請人為何該居所會着火，申請人有重複承認說，“係我放嘅”，“係呀，係呀，係我放嘅”。

The relevant information revealed that at the material time the applicant participated in the essential oil marketing business but ended up losing over $100,000, as a result of which the family faced financial problems and the applicant’s relationship with his wife and children broke down. The daughter refused to talk to the applicant and communicated with the applicant only by means of slips.
資料顯示案發時申請人因參與香薰油推銷生意損失10多萬元，導致家庭經濟困難，及和妻子、子女關係破裂。女兒不會和申請人交談，只會用字條和申請人溝通。

Defence evidence
辯方證據

The applicant denied having deliberately committed the offence and alleged that the fire was caused by accident.
申請人否認故意縱火並指火災是意外做成的。

The applicant said that on the night of the offence he had consumed rice wine but had not been influenced by it. He admitted that the children had said something disrespectful to him but it had not upset him. Later, he intended to smoke cigarette in the living room and add essential oil to the burner, and so he walked out to the living room from the bedroom holding a lit cigarette and an essential oil burner. The daughter suddenly came out to the living room from the kitchen and bumped into the applicant. This caused the burner he was holding to overturn, leading to a fire. As the applicant has abandoned his application against conviction, it is not necessary for us to delve into the defence that he put forward at trial.
申請人指案發當晚曾飲米酒，但不受其影響。申請人承認子女有對他說過一些不敬語言，但他並沒有惱怒。其後申請人打算在客廳吸煙及同時為香薰座加油，故手持已燃點的香煙及香薰座由睡房行出客廳，但女兒突然由廚房行出客廳碰到申請人。結果打翻其手持的香薰座導致火警。由於申請人已放棄就定罪的申請，故本庭無需深究申請人在原審時的答辯理由。

Grounds of appeal
上訴理由

Mr. Hung stresses that the present offence stemmed from a family dispute and did not involve any premeditation, triad element or act of retaliation. He further contends that the sentence of 6½ years’ imprisonment is manifestly excessive as the applicant committed the offence on the spur of the moment.
孔大律師強調本案起因是家庭糾紛，不涉及預謀，黑社會或報復行為。孔大律師強調申請人是一時衝動下犯案，故6年半的判刑明顯過重。

Mr. Hung also submits that the Judge had in sentencing failed to take into account relevant mitigating factors. According to Mr. Hung, those factors included:
孔大律師亦指原審法官沒有把有關的減刑因素考慮在內。孔大律師所指的減刑因素包括：

The prosecution case was to a large extent agreed to by the applicant, and this significantly reduced the length of trial;
申請人有同意大部份控方案情，故大大減省了審訊所需的時間；

The applicant had a clear record; and
申請人沒有犯案前科；及

The applicant suffered secondary burns covering 30% of his total body area in the incident and was hospitalized for more than 3 months.
事件中申請人30% 身體受二級程度燒傷而要留院超過3個月。

Discussion – application against sentence
討論 – 針對判刑的申請

Hong Kong is such a densely populated city that unexpected occurrences of fire are bound to cause extremely serious injuries and deaths/or losses of properties. A deliberate act of arson, especially when done in a multi-storey residential building, will very likely cause extremely grave consequences. And indeed, it is clear from the line of relevant judicially decided cases that such conduct will result in heavy casualties as well as substantial economic losses.
香港人煙稠密，突發火災會做成極為嚴重的人命傷亡/或財產損失。故意縱火行為，特別在多層住宅大厦縱火，都可能做成極為嚴峻的後果。事實上亦有多宗案例證明該種行為會導致眾多人命傷亡及極大的經濟損失。

In order to protect the lives and properties of the public from serious threats, acts of arson — in particular those relating to triads or involving intimidation or revenge — must be sanctioned with heavy, deterrent sentences.
縱火行為，特別是一些和黑社會有關或涉及恐嚇，報復的縱火行為，必需重判，以收阻嚇作用，否則市民大眾的生命和財產會受嚴重的威脅。

In The Queen v Shum Hon Kai & another [1988] 2 HKLR 341, the Court of Appeal pointed out that where a defendant committed arson in a multi-storey residential building in the middle of the night, a starting point of 8 years’ imprisonment would not be inappropriate. One of the defendants in that case set fire to the victim’s residence by using petrol, for the purpose of taking revenge because he had been infuriated by the victim from whom he had been unable to obtain repayment of loans.
上訴法庭在The Queen v Shum Hon Kai & another [1988] 2 HKLR 341案指出，如被告人在夜半時份在多層住宅大厦的單位縱火，8年的量刑基準並非不適當。該案案情顯示被告之一因未能向受害人追回欠款而遷怒於受害人並用電油在受害人的住所縱火，目的是報復。

Mr. Hung has cited Chau Yuk-kuen v R CACC 402/1980 in support of his contention. The defendant in that case had been in love with the victim but was later deserted by him. On the day of the offence, the defendant went to the victim’s residence and found the victim there with another woman. The defendant had an argument with the victim, in the course of which she was assaulted and humiliated, resulting in injuries to her face and arms. She was infuriated. She ran home and fetched a can of kerosene, which she then poured across the front door of the victim’s residence and set alight.
孔大律師援引Chau Yuk-kuen v R CACC 402/1980案支持其立場。該案被告人戀上受害人，但其後遭受害人遺棄。案發當天，被告人前往受害人的居所時，發現受害人和另一女子一起。在雙方爭吵期間，被告人遭歐打及侮辱，導致面上及手臂都受傷。在極怒下，被告人返家取得一罐火水並將火水斟倒在受害人住宅的大門前，然後放火。

The Court of Appeal in that case took the view that the defendant had committed arson on the spur of the moment and under extreme distress, and that the appropriate starting point should not be lower than 4 to 5 years’ imprisonment.
上訴法庭認為該案的被告人是在極度困擾及一時衝動下犯了縱火罪，而適當的量刑基準不少於4至5年。

In Tsoi Tin v R CACC 659/1976, the defendant, a factory worker, was scolded by a watchman when he was seen lying under one of the machines after working hours. The defendant then attacked the watchman and later went on to sprinkle the factory premises with kerosene and set them ablaze. The defendant was sentenced in the first instance to 8 years’ imprisonment. On appeal, the Court of Appeal considered the sentence excessive in light of the fact that the defendant had acted on the spur of the moment under the influence of medicine and that he had a clear record. In the end, the term of imprisonment was reduced to 5 years.
在Tsoi Tin v R CACC 659/1976案，被告人是一工廠工人。他因工餘時躺卧在車牀下而遭看更責罵。被告人上前襲擊該名看到更，而後來更在工廠廠房灑火水及放火。被告人被判入獄8年。上訴庭認為8年判刑過重，考慮到被告人一事衝動而案發時更受藥物影響，加上他沒有犯案前科，上訴庭最終將8年判刑減至5年。

In R v Tsang Chu CACC 462/1986, the defendant, whose application for employment had been turned down, went to a film studio with a group of people in the early hours of the day of the offence. They threatened and tied up the watchman and then threw petrol bombs into the studio. The fire resulted in damage to properties valued at approximately $15,000. The Court of Appeal considered the sentence of 4 years’ imprisonment correct.
在R v Tsang Chu CACC 462/1986案，被告人因求職不遂而在清晨時份聯同一群人先恐嚇看更及將他捆綁後繼而將電油彈投入一片場，導致約15,000的財產破壞損失。上訴法庭認為4年的判刑正確。

In HKSAR v Cheung Wing Siu CACC 76/1998, another case cited by Mr. Hung, the defendant, who had an argument with his father, vented his anger by pouring inflammable liquid over the furniture in the house and setting it ablaze. Although the fire was contained quickly, the defendant’s conduct had plainly put the lives of his father and other residents at risk. The first instance judge adopted a starting point of 4 years, and this was upheld by the Court of Appeal.
孔大律師援引的另一宗 HKSAR v Cheung Wing Siu CACC 76/1998案，的被告人因和父親爭拗而在發洩怒氣時將可燃燒液體斟倒在家中的傢具上及放火。雖然火勢很快受控，但申請人的行為明顯會威脅到其父親及其他住客的人身安全。上訴法庭認同原判時採納的4年量刑基準。

We have reviewed a number of relevant decided cases. As we pointed out above, arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for 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.
本庭已考慮過多宗有關案例，誠如本庭在上文所述，縱火案是極為嚴重的罪行，但不同案件，特別是涉及家庭或感情紏紛的縱火案件的嚴重程度都不同，故本庭認為不適宜就該種罪行定下判刑指引。法庭必需根據個別案件的嚴重性而作出適當的判刑。

The present case does not involve triad conduct, still less intimidation or blackmail. Ms. Wan, Senior Public Prosecutor for the respondent, submits that the applicant set fire for the purpose of retaliation. We have reservations about this. Had the applicant intended to take revenge, he should have done some planning and committed the offence when his children were not present or were asleep, but this was not what happened. In our view, this case stemmed from nothing more than a family dispute and the applicant committed the offence on the spur of the moment and in extreme anger. There was evidence that the applicant was an irascible person. The relevant psychologist’s report also indicated that the applicant was addicted to drinking and alcohol would diminish his ability to control himself. When drunk, the applicant would very easily become irritated and quarrel with his wife.
本案不涉及黑社會行徑，更和恐嚇勒索無關。代表答辯人的高級檢控官溫淑芳指申請人縱火的目的是報復。本庭對該說法有保留。假若申請人是報復，他理應有計劃及在子女不在場或睡覺時犯案，但他並非這樣做。本庭認為本案只屬家庭紏紛，申請人是在極憤怒及一時衝動時犯案。有證據顯示申請人是一名性格暴躁的人，有關的心理醫生報告亦顯示申請人有酒患而酒精會減弱他的自控能力。申請人醉酒時會極容易變得惱怒而會和妻子爭吵。

The present case is plainly one in which the applicant, being influenced by alcohol and irritated by the disrespectful words and deeds of his children, committed the offence on the spur of the moment, and his conduct was highly unwise and might lead to extremely serious consequences.
本案明顯是申請人受酒精影響及受子女一些不敬言行所激怒而一時衝動做出一些極不理智及可能會導致極為嚴重後果的罪行。

We do not intend to make any comment to the effect that the present offence is trivial, still less to diminish the applicant’s culpability for that reason. As we see it, however, there are a number of mitigating factors in the present case.
本庭無意作出任何言論將申請人的罪行描述為無足輕重，更不會因該理由而減輕申請人的罪責。但本庭認為案件有甚多的求情因素。

As stated above, the present case arose from a family dispute and had nothing to do with triad, intimidation or revenge. Furthermore, the offence committed by the applicant was incongruous with his character. Apart from the influence of alcohol, the applicant’s peculiar conduct on the night of the offence was the result of his irritation with the disrespectful behaviour of his children.
除了上文所述，本案屬家庭紏紛和黑社會、恐嚇和報復都無關外，申請人的罪行亦是和他的性格不相符。申請人在案發當晚的特殊行徑除了是因為受酒精影響外，亦受其子女的不敬言行激怒而引發的。

The prosecution evidence showed that not only was the applicant’s 13-year-old daughter disgruntled with the applicant’s inability to pay telephone charges, as a result of which she was unable to use the telephone, but she also said to the applicant, “Jump down the building and kill yourself if you want to die”. His 19-year-old son also blamed him for having been deceived of all his money.
控方的證據顯示，申請人的13歲女兒不但對申請人沒錢支付電話費令她無電話可用而感不滿外，更向申請人說，“你要死，就自己跳樓死”，而其19歲的兒子亦指責申請人遭人騙去全部金錢。

At the material time, by unwisely participating in the essential oil marketing business, the applicant had put himself in dire financial shape. Instead of understanding his predicament and feelings, his family members found faults with him and ridiculed him.
當時申請人因為不理智地參與香薰油的銷售業務而導致財政狀況極為緊絀。申請人的困境和感受，不但不獲家人諒解，更遭家人責備及嘲笑。

It was in the said circumstances and on the spur of the moment that the applicant carried out the extremely unwise conduct.
申請人是在上述情況下及一時衝動下作出了極為不智的行為。

Other than the daughter who suffered minor injuries, the applicant was the only other person injured in the incident. The applicant’s injuries were far more serious than those of his daughter and necessitated hospitalization for 3 months.
除了女兒受輕傷外，申請人是唯一另外一名在事件中受傷的人。申請人的傷勢亦遠較其女兒的傷勢嚴重，需要留醫三個月。

The applicant was in fact the major victim in the incident. Apart from inflicting physical and mental injuries on him, the incident might further alienate him from his family. The fire would also inevitably have caused some financial loss to the applicant’s family.
事實上，申請人在事件中是主要的受害者。除身心受損外，事件更可能導致申請人和家人的關係更加疏離。當然火災亦必會導致申請人家庭的一些經濟損失。

In our view, the use of essential oil by the applicant to set fire should be less serious than the use of inflammable liquid such as petrol, thinner or kerosene. And we cannot ignore the fact that the applicant is aged over 50 and has a clear record.
本庭認為申請人縱火使用的是香薰油，其嚴重性應該較使用汽油，天拿水或火水等易燃液體為輕。本庭亦不能忽視申請人年過半百，但沒有犯罪前科。

Had the applicant persistently committed the offence of arson, the court would, in the interests of the public, certainly have passed a sentence comparable in severity to the one imposed in the case of HKSAR v Lo Po Tak [1998] 3 HKC 485. We consider that there are circumstances in the present case that justify a merciful approach to sentencing. We hope that the applicant will learn a lesson from this incident and bear it in mind, and will also adopt a more positive and responsible attitude towards his family.
假若申請人是積犯多次干犯縱火罪，法庭必會採納HKSAR v Lo Po Tah [1998] 3 HKC 485案同樣的嚴厲刑罰，以保護公眾利益。本庭認為本案有值得法外施恩的因素。本庭希望申請人能汲取及牢記本案帶出的教訓及會對家庭採納更積極及負責的態度。

Notwithstanding the serious nature of the offence committed by the applicant, the original sentence of 6½ years’ imprisonment is, in light of the mitigating factors, manifestly excessive. In our judgment, a term of imprisonment of 4 years is sufficient.
考慮到案件的各項求情因素，雖然申請人所犯的罪行性質嚴重，但原判的6年半刑期屬明顯過重。本庭認為4年的判刑已足夠。

We grant leave to the applicant to appeal against sentence and, treating the application as the appeal proper, allow the appeal and reduce the term of sentence from 6½ years to 4 years.
本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判他的上訴得直，其刑期由6年半減至4年。

Mr. Andy Hung, instructed by James W.L. Li & Co. on assignment by the Legal Aid Department, for the Applicant (re application for leave to appeal against sentence).
申請人：由法律援助署委派李立本律師行轉聘孔慶碩大律師代表（不服刑罰上訴許可申請）。

The Applicant in person, present (re application for leave to appeal against conviction).
申請人：無律師代表，親自應訊（不服定罪上訴許可申請）。

Ms. Polly Wan, Senior Public Prosecutor, for the Respondent.
答辯人：由律政司高級檢控官溫淑芳代表。