HKSAR v. Loku Galappaththige Pramuka Salinda

DCCC 751/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 751 OF 2015

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REASONS FOR VERDICT

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1.The defendant pleaded not guilty to one count of “Arson with intent”, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200. The particulars of the offence allege that the defendant on 13 July 2015, at Ground Floor, No. 8 Wang Long Village, Lamma Island, in Hong Kong, did without lawful excuse damaged by fire the main door, the door frame, the walls, the ceiling, one window, one air-conditioner and one exhaust fan, property belong to another, intending to damage such property or being reckless as to whether any property would be damaged, and being reckless as to whether the lives of others would thereby endangered.

Prosecution’s case

2.The defendant was the tenant of the premises at Ground Floor, No. 8 Wang Long Village (“the Premises”) with the tenancy expiring on 8 July 2015 (Exhibit P6).  Upon discussion, the defendant was granted a few days extension upon expiry of the tenancy.   On 13 July 2015, a fire broke out at the Premises.  As a result, damages as mentioned above were caused to the Premises.  The cost of damages was around $90,000.  Upon inquiry by the arresting officer PC 1927, the defendant stated that “I burnt my house. Unhappy, many problems.”  In subsequent video-recorded interviews, the defendant admitted under caution that he burnt some clothes in the bedroom of the Premises to erase the memory about his girlfriend and his daughter.  Then, the fire became bigger and he tried to put out the fire by splashing water.  He felt sorry for the mistake he had made.  Senior Station Officer Madam Lam of the Fire Services Department gave evidence to the effect that having taking into consideration the information provided by her colleagues who first attended the scene to put out the fire as well as her own investigation at the Premises, she opined that the fire started from the mattress of the bed in the bedroom and not from the floor.

Defence case

3.After I ruled a case to answer, the defendant elected to give evidence but did not call other witnesses.

4.It was the defendant’s evidence that his girlfriend and daughter previously live with him in the Premises. They later left him.  He was very sad.  On the offence date, he called his girlfriend and confirmed that she and the daughter were in Philippines.  In order to erase his memory about them, he decided to burn the jacket which his girlfriend gave him and some of her clothes.  He put the clothes on the floor of the bedroom and set fire on the clothes.  He closed the bedroom door and sat in the living room.  Later, he smelt and saw smoke coming out from the bedroom.  He therefore opened the door of the bedroom and found the room on fire.  He tried to put out the fire with water but in vain.  He was later taken to Lamma Police Station and arrested.  He later attended two video-recorded interviews.

Issue

5.There is no dispute that the defendant set fire on some clothes in the bedroom, which later led to a fire causing damages to the Premises, being property belonging to the Landlord.  The only issue is whether the defendant’s state of mind was culpable at the time he set fire on the clothes.  In the closing submissions of the defence, it was suggested that the location where the fire first started would be relevant and if it was started on the floor, this would provide a defence to the charge.

Analysis of evidence

6.Prosecution has the burden to prove the requisite elements of the offence beyond reasonable doubt.  The defendant has no burden of proof.  Even if the defence evidence was rejected, I still have to consider the prosecution’s evidence and see if the charge has been proved beyond reasonable doubt.

7.I bear in mind that if the account given by the defendant is or may be true, the defendant must be acquitted.

8.In this case, the prosecution called 5 witnesses to give evidence.  The first prosecution witness Mr Chow and the second prosecution witness Madam Yu gave evidence as to the tenancy of the Premises and the damages caused to the Premises.  The fourth prosecution witness Mr Fan, neighbour of the defendant, gave evidence as to report of the incident to the police.  Their evidence was generally not challenged.  The evidence of the third prosecution witness Madam Lam and the fifth prosecution witness the arresting officer PC 1927 was subject to challenge.

9.In this case, apart from the defendant’s admission that he set fire on the clothes, there is evidence from the prosecution that he told the arresting officer that he “burnt the house” because he was unhappy.  The defence did not challenge the voluntariness of this reply and thus no voir dire / alternative procedure was adopted in this trial.  In the closing submissions, Mr Andrews for the defendant submitted that the defendant had not been cautioned before the arresting officer had the relevant conversation with the defendant and therefore this court should disregard this part of the evidence relating to that conversation and the relevant part concerning this conversation in the first video-recorded interview.

10.Mr Arthur, counsel on fiat, in his closing submissions did not make any reference to this conversation between the arresting officer and the defendant.  It appears that the prosecution does not rely on this conversation to support their case against the defendant.  The evidence of the arresting officer revealed that prior to having this conversation with the defendant, he got some information about the fire and had first cause of suspicion that the defendant was involved in the fire.  However, he did not caution the defendant before having this conversation with him.  In the circumstances, even though this conversation has been admitted into evidence, I find it unfair to rely on the reply given by the defendant in this conversation and will attach no weight to any reply given by the defendant in this conversation.

11.Regarding the location where the fire first started, it appears from the evidence adduced by the prosecution that it is their case that the fire started on the mattress as revealed in the evidence of Madam Lam.  In these proceedings, Madam Lam did not give evidence as an expert witness.  In the course of giving evidence, Madam Lam did give opinion evidence on where the fire first started and whether it could have been started on the floor.  The defence did not challenge the admissibility of such opinion evidence.  Despite there being no challenge to the admissibility of Madam Lam’s opinion evidence, I find it inappropriate to rely on any of her opinion evidence when she had not given evidence in the capacity of an expert. In any event, I note from Mr Arthur’s closing submissions that no reference was made to Madam Lam’s opinion in this regard.  In the circumstance, I will only consider Madam Lam’s evidence as far as her observation at the scene and her description of the photographs of the scene are concerned.

12.There is no dispute that the defendant set fire to some clothes in the bedroom.  The defendant alleged he did so to erase the memory about his girlfriend and daughter.  It would appear from prosecution’s cross-examination of the defendant that it was their case that the defendant set fire for revenge.  The fact that the landlord only granted the defendant a few days’ extension to hand over the Premises to the landlord despite his request for a longer extension does not necessarily lead to his taking revenge against the landlord by burning the Premises.  Given it is clear from the evidence that the defendant previously lived with his girlfriend and daughter in the Premises and they had recently left the defendant, the defendant’s allegation that he burnt the clothes in order to erase his memory of them may be true.  I will therefore consider the evidence on this basis.  Having said that, the fact that the defendant burnt the clothes for the alleged purpose does not necessarily mean that he was not reckless at the time of setting fire to the clothes. 

13.The defendant alleged that those clothes were put on the bedroom floor near the bed and the wardrobe, which is consistent with his admission in the second video-recorded interview.  It can be seen from photos 11 and 12 of Exhibit P1 that more serious damage was caused to the part of the bed near the headboard, which is near to the wardrobe.  This may support the defendant’s version that the fire spread from the clothes on the floor to the mattress near the headboard.  On the other hand, photos 13, 14 and 15 of Exhibit P1 show that the damage to the upper part of the two wardrobes next to the bed is more serious than the damage to the lower part of the wardrobes near the floor level.  This may indicate the fire did not start on the floor.  However, given there is lack of expert opinion to assist me in coming to any conclusion as to where the fire first started, I will give the benefit of doubt to the defendant and treat the fire as having first started on the bedroom floor as alleged.

14.Mr Andrews mentioned both in his written closing submissions and oral submissions that if the fire started on the floor, it would provide a complete defence to the charge.  However, he had not elaborated on how this would provide a defence to the charge.  In any event, I do not agree with this submission.  Whether it does amount to a defence would depend on the particular circumstances of the case.    

15.The test for recklessness has been set out in Sin Kam Wah & another v HKSAR [2005] 2 HKLRD 375 at para 44.  It was held by the Court of Final Appeal that the subjective interpretation of recklessness should be adopted.  It has to be shown that “the defendant’s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk.  Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.”

16.According to the defendant, he contacted his girlfriend shortly before the incident of fire and confirmed that both she and their daughter were in Philippines.  He felt sad and returned to the Premises.  He sat on the sofa and had two cups of wine but he was not in any way affected by the wine.  Then, he went to the bedroom for no special reason.  When he saw the clothes, he decided to burn them.  In other words, he formed the intention to light a fire in the bedroom.

17.Then, he put the clothes on the floor and left the bedroom to get a gas canister (Exhibit D1) and a lighter.  When he went to the kitchen area to get these items, he knew what he was going to do, namely, to burn the clothes.  This is a deliberate act.    He had the time to change his mind but he did not.

18.He returned to the bedroom.  He turned on the gas and applied the flame of the lighter to it although he could choose not to do so.  He then applied the flame on 2-3 places on the pile of clothes in order to burn the clothes.  All these are deliberate acts. 

19.Having seen the fire had started, he closed the door of the bedroom, sat in the living room and let the fire burning in the bedroom.  It can be seen from photos 10, 14 and 15 of Exhibit P1 that the size of the bedroom is small.  There were only a bed and two small wardrobes in the room.  The wardrobes were put side by side next to the bed without any gap in between.  The space on the floor, as seen from the photos, is limited.  At this stage, the defendant, being an adult with normal intelligence, would have appreciated that there would be a risk that by letting the fire burning in the bedroom and given there were other flammable items in the room such as clothes in the wardrobe, mattress and beddings, that eventually the bedroom or even the whole premises would be on fire.  Further, given there were families living on the floors above the Premises as well as families living in other buildings next to and nearby the Premises, he would have appreciated the risk of endangering the lives of others if the Premises were on fire.

20.Further, as pointed out by Mr Arthur, the fact that the defendant did not put the clothes in a container before he burnt them and did not burn them outside the Premises but chose to burn them in the bedroom knowing there were other flammable materials therein, he deliberately ran the risk that the fire on the clothes would spread to those materials in the bedroom.  Given the room is small and the defendant said he put the clothes on the floor near the bed and wardrobe, the risk of the fire spreading to other flammable materials on the bed and in the wardrobe would be high.  By leaving the room and shutting the door, the defendant was fully aware of the circumstances and the risk that both property and lives would be endangered.  It was unreasonable for him to take the risk.  I do not accept that he genuinely did not appreciate or foresee the risks involved in his actions despite the fact that he might be feeling sad for losing his family.  I do not agree with Mr Andrews’ submissions that the defendant had acted reasonably in not giving thought to the possible consequence of setting fire on the clothes on the floor.         

21.It was submitted by Mr Andrews that the defendant tried to put out the fire and that was inconsistent with the behavior of someone who started a fire deliberately intending to burn the premises or being reckless whether the premises would be burnt or not.  While there is no dispute that the defendant did try to put out the fire after he found a lot of smoke in the bedroom, this does not necessarily mean that he was not aware of the risk caused by his action.  He might have done so as he regretted for what he had done.  In any event, the crucial point is his state of mind at the time he set fire.  In the light of the sequence of events and the analysis above, I find the defendant was aware of the risk of his action at the time he set fire and it was unreasonable in the circumstance for him to take that risk.  In other words, the defendant was reckless at the material time.

22.In the circumstances, I find the prosecution has proved beyond reasonable doubt all the requisite elements of the offence and that the defendant is guilty as charged.