HKSAR v. Godhaniya Haja Samat

DCCC 107/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 107 OF 2017

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of arson contrary to sections 60 (2) and (3) and 63 (1) of the Crimes Ordinance[1].

2.The particulars of the charge read:

“Godhaniya Haja Samat, on the 15th day of November 2016, at the staircase between the 3rd Floor and 4th Floor, No. 89 Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, without lawful excuse, damaged by fire the staircase and the wall between the 3rd Floor and 4th Floor of the said building, property belonging to another, being reckless as to whether the said property would be damaged and being reckless as to whether the lives of occupants in the said building would be thereby endangered.”

Introduction

3.Around 3 a.m. on 15 November last year Mr Chan Yue Man, who resided at Flat B on the 4th Floor of No. 89 Fuk Wing Street, woke up when his flat filled up with smoke.  Mr Chan went out to look and discovered a fire on the landing between the 3rd and 4th floors.  After putting out the fire Mr Chan discovered another fire on the landing between the 2nd and 3rd floors.  Mr Chan also put out this fire.  Burnt rubbish was also later found on the landings between the 1st and 2nd; the 5th and 6th and the 6th and 7th floors.

4.The defendant is charged only with the fire on the landing between the 3rd and 4th floors. 

5.CCTV installed by the resident of Flat A on the 4th Floor of No. 89 Fuk Wing Street, shows the staircase above the landing between the 3rd and 4th floors; the 4th floor and the staircase leading to the 5th floor landing.  The CCTV does not however show the landing between the 3rd and 4th floors where the fire was. 

6.At 3:20 a.m. the defendant is seen on the CCTV walking up the staircase above the landing between the 3rd and 4th floors.  The defendant stops on the staircase while looking back in the direction of the landing.  A few seconds later the defendant continues walking upstairs at which time an orange glow is seen on the wall of the staircase above the landing between the 3rd and 4th floors.  A few minutes later Mr Chan is seen coming out of his flat.  After looking at what had happened Mr Chan goes back inside his flat to fetch some water to put out the fire.

7.The prosecution case is that the orange glow is from the fire on the landing between the 3rd and 4th floors and that the defendant deliberately started the fire.  The defence case is that the defendant did not start the fire, the evidence being insufficient to draw the inference the defendant was the one who started the fire.

Evidence

8.The prosecution called five of thirteen witnesses on the list of prosecution witnesses: Mr Yeung Ka Kui (PW1), who resided at the rooftop of No. 89 Fuk Wing Street; Mr Chan (PW2); Chiu Chun Him (PW11), a Probationary Fire Station Officer (“PFSO Chiu”), who investigated the fires; DPC 15037 (PW3), who arrested the defendant and DPC 13586 (PW6), the exhibit officer.

9.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibits P29 and P29A), including the CCTV footage (exhibits P25 and P26); and photographs (exhibit P27).

10.The defendant elected not to give evidence or call any witnesses on his behalf.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other. 

11.Admitted in evidence is a video recorded interview (exhibit P20), in which the defendant explains why he was on the staircase.  In reaching my verdict I have considered the content of the video interview in accordance with the decision in R v Sharp[2].

12.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing. I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.  

13.Admitted in evidence is that the defendant has a clear criminal record in Hong Kong[3].  I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[4].

14.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

15.The prosecution must prove:

(i) that property belonging to another was damaged by fire;

(ii) that the defendant committed the act which damaged that property by fire;

(iii) that the defendant did so without lawful excuse;

(iv) that the defendant was reckless as to whether any property would be damaged; and

(v) that the defendant was reckless as to whether the lives of the occupants would be endangered by damage to property by fire.

16.I have carefully considered all the evidence and the written and oral submissions of Mr Donald and Mr Stephenson.  Unless otherwise stated I accept the evidence of the prosecution witnesses, which was largely unchallenged.

Background

17.No. 89 Fuk Wing Street is a nine storey building.  The only access to the building was by the staircase shown in photograph 1[5]. There was no door or gate to the staircase.  Anybody could access the staircase from the street. 

18.The CCTV (exhibits P25 and P26) installed on the 4th Floor, operates only when there is motion captured by the camera[6]. This means if nothing happened or no one walked in front of the camera the CCTV would not capture any image.

The fires

19.The prosecution case was that there were five fires on five different floors, on the landings between the 1st and 2nd; the 2nd and 3rd; the 3rd and 4th; the 5th and 6th and the 6th and 7th floors[7]. The charge relates only to the fire on the landing between the 3rd and 4th floors as shown in photograph 4. 

20.The evidence relating to the fires has not been challenged and can therefore be briefly summarised. 

21.Mr Chan (PW2) testified that around 3 a.m. on 15 November he woke up to find his flat filled with smoke.  Mr Chan opened the door to have a look and saw a fire on the landing between the 3rd and 4th floors as shown in photograph 4, which location Mr Chan said was for putting out rubbish and where he put out his rubbish.   Mr Chan took some water and went downstairs to put out the fire. 

22.After putting out the fire Mr Chan went down to the landing between the 2nd and 3rd floors where he saw another fire as shown in photograph 3, which location was also for putting out rubbish.  In answer to the court Mr Chan said he walked down to look because he saw more smoke.  Mr Chan fetched some more water to put out the fire.  After putting out the fire Mr Chan again walked down but did not see any fire between the 1st and 2nd floors.  In cross-examination Mr Chan said he did not go upstairs to check whether there was any fire because when he looked up he could see the rubbish was not burning.  Mr Chan returned to his flat and later, around noon, reported the fires to the police. 

23.The action of Mr Chan opening his door; having a look and twice taking water downstairs are captured on the CCTV between 03:31:08 and 03:39:16. 

24.At about 11:30 that morning Mr Yeung (PW1), who resided on the rooftop of the building, left home.  As Mr Yeung walked downstairs he discovered burnt rubbish on four floors as shown in photographs 3, 4, 5, 6 & 8.  When Mr Yeung returned home the night before, around 11 p.m., he did not see any burnt rubbish. 

25.PFSO Chiu who attended the fire scene the same day between 15:31 and 16:09 found articles damaged by fire at each half staircase landing between the 1st and 2nd; the 2nd and 3rd; the 3rd and 4th; the 5th and 6th and the 6th and 7th floors[8]. PFSO Chiu identified the location of the fires on the landings between the 2nd and 3rd; the 3rd and 4th; the 5th and 6th and the 6th and 7th floors as the locations shown in photographs 3, 4, 5 & 8.

26.PFSO Chiu confirmed that apart from fresh rubbish photograph 4 showed the condition of the landing between the 3rd and 4th floors as he found the landing when he attended the fire scene on 15 November[9].

27.During cross-examination PFSO Chiu said the black patch in front of the wire basket, as seen in photograph 4, was part of the fire.  When the court sought clarification of what PFSO Chiu was saying was part of the fire PFSO Chiu replied that the photograph showed different burn marks, which appeared after the fire. 

28.After cross-examination when the court further clarified the reference to burn marks, PFSO Chiu said that he found a burn mark on the ground underneath the wire basket.  PFSO Chiu marked the position of the burn mark on a copy of photograph 4 (exhibit P27(4C). 

29.PFSO Chiu further explained the burn mark was not just blackening caused by smoke but was a permanent burn mark, albeit a really small burn mark, which could not be removed or just wiped clean.  PFSO Chiu further said that he did not see any other fire damage on the floor or on the wall between the 3rd and 4th floors [10]. 

30.The staircase being the common part of the building is property belonging to another.  On the evidence of PFSO Chiu I am satisfied so I am sure that the landing of the staircase between the 3rd and 4th floors was damaged by fire, albeit the burn mark was really small.

Who started the fire?

31.There is no direct evidence of who started the fire.  The prosecution asks the court to draw the inference the defendant started the fire from what is shown on the CCTV. 

32.Admitted in evidence is that the defendant is seen on the CCTV descending the stairs at 02:03:51 and walking up the stairs at 03:20:10[11]. Further, in the video interview the defendant admitted he was the person shown in the two photographs taken from the CCTV[12].

33.The relevant parts of the CCTV are between 03:20:10 and 03:39:16.  At 03:20:14 the defendant is seen walking up the stairs from the landing between the 3rd and 4th floors.  While walking up the stairs the defendant is at the same time looking back in the direction of the landing.  At 03:20:16 the defendant stops on the staircase at which time he is seen smoking a cigarette.

34.At 03:20:22 the defendant continues to walk up the staircase to the 4th floor.  As the defendant reaches the 4th floor at 03:20:24/25, a careful viewing of the CCTV shows an orange glow beginning to appear on the wall of the staircase above the landing between the 3rd and 4th floors[13]. 

35.As the defendant continues up the stairs to the landing between the 4th and 5th floors the orange glow becomes clearer at 03:20:29. At 03:20:31 the defendant reaches the top of the stairs near to the landing between the 4th and 5th floors and walks out of view of the CCTV camera.  Over the next 50 seconds the orange glow becomes brighter and the staircase begins to fill with smoke.  This is followed just over seven minutes later by Mr Chan coming out of his flat at 03:31:08.

Video interview

36.In the video interview (exhibit P20) the defendant explains that because there was a brothel on that floor he may have been looking at a good looking girl/beautiful prostitute when he stopped between the 3rd and 4th floors[14].  In oral submission Mr Stephenson submitted that this explanation was not implausible[15]. 

37.In support Mr Stephenson relies on the evidence of Mr Yeung and Mr Chan that there were prostitutes living in the building.  In cross-examination Mr Yeung said he knew flats on the 2nd and 3rd floors were used for prostitution.  Mr Chan testified that there were one-woman brothels on the 1st and 2nd floors.  Mr Chan said at that time no one was living on the 3rd floor.

38.I have no hesitation in rejecting this submission.  Having carefully considered all the evidence I am satisfied no weight is to be attached to the defendant’s explanation that because there was a brothel on that floor maybe he was looking at a good looking girl/beautiful prostitute, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination[16].

39.The video recorded interview was conducted between 21:03 -23:41 on 17 November 2016[17], less than three days after the fires.  When first asked whether he remembered what he was doing on 15 November the defendant replied that he did not remember anything about that day[18]. Asked what he was doing between 2-4 a.m. on 15 November the defendant replied that he went out for exercise, returning home between 3:00 and 3:30 a.m.[19]

40.The defendant was next asked what he saw when he returned home.  The defendant replied that he saw the staircase was blackish and people had poured water; on seeing two Chinese people who were drunk talking to each other on the 2nd floor he became scared and hurried up the staircase; between the 3rd floor and his home on the 7th floor he saw nobody else and nothing special; and he did not stop on any floor[20].

41.Only when the defendant was shown photograph 2 (exhibit P20A (2)), showing the defendant having stopped at the staircase and looking back towards the landing, did the defendant say that because there was a brothel on that floor maybe he was looking at a good looking girl/beautiful prostitute[21].

42.This was not the only occasion in the interview where the defendant changed his story after being shown the photographs.  Just before the photographs were shown the defendant was asked whether he had the habit of smoking cigarettes and whether he was smoking when he returned home that day.  The defendant replied that  he occasionally smoked at home and remembered that he was not smoking when he returned home that day because he did not carry cigarettes in his pocket and only smoked at home[22].

43.After being shown photograph 1 (exhibit P20A (1)), which shows the defendant smoking, the defendant said that after returning from his exercise the cigarette was given to him by his friend[23]. I do not find this explanation credible.  Earlier in the interview the defendant said that after his exercise he separated from his friend near Cheung Sha Wan Road and Nam Chong Street and not at the entrance to the building at Fuk Wing Street.   

44.I remind myself that the rejection of the defendant’s explanation in the video recorded interview that maybe he was looking at a good looking girl/prostitute is not determinative of the issues in the case.  The defendant has to prove nothing.  The burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

45.I find inherently improbable that in those few seconds someone else appeared on the landing between the 3rd and 4th floors and started a fire which took hold so that the orange glow of the fire could be seen on the wall of the staircase as the defendant walked up the stairs. 

46.I am satisfied so I am sure the only inference to draw from what is seen on the CCTV, in particular that the orange glow is seen within seconds of the defendant walking up the staircase from the landing between the 3rd and 4th floors, is that:

(i) the orange glow and the smoke were from the fire on the landing between the 3rd and 4th floors;

(ii) the defendant was the person who started the fire; and

(iii) the defendant started the fire without lawful excuse.

How was the fire started?

47.The only evidence relating to how the fire started was from Probationary Fire Station Officer Chiu (PW11).  PFSO Chiu explained he joined the Hong Kong Fire Services in July 2015 and that the probationary period was three years.  PFSO Chiu said that during training he attended classes about fire investigation conducted by senior officers who had attended fire investigation courses.  PFSO Chiu said that he had attended as an investigator approximately 200 scenes of fire. 

48.In cross-examination PFSO Chiu said he had attended classes on fire investigation for three days, which included simulation of fire scenes; he was not required to pass any examination and there was no formal assessment of his competence to investigate fires. 

49.In answer to the court PFSO Chiu said the classes were held while undergoing training in the first six months of probation; in January 2016 after finishing his training he attended his first scene of fire; and that of the 200 scenes of fire he attended as an investigator, in approximately 20 he attended as the officer in charge who was responsible for determining the cause of the fire. 

50.Although the position of probationary fire station officer gives the initial impression PFSO Chiu may not be qualified to give expert evidence on the cause of fire, I was nevertheless satisfied by his experience of investigating approximately 200 scenes of fire that PFSO Chiu could give evidence as an expert witness as to the cause of the fires.

51.PFSO Chiu attended the scene of the fires on 15 November 2016 between 15:31 and 16:09.  On the 28 November PFSO Chiu prepared his Incident Report (exhibit P30), which he adopted as part of his evidence.  

52.PFSO Chiu testified that for each floor he tried to see if there was any possible cause of ignition such as cigarette ends carelessly thrown into the rubbish bins or any electrical wires nearby which were broken causing sparks.  PFSO Chiu concluded that the fires were not caused by any accidental ignition. 

53.In the Appendix to his Incident Report PFSO Chiu states that after careful deliberation of all the possible causes of fire,  “Deliberate Act” was the most possible cause of fire; the fire was therefore believed to be “Suspicious Circumstances” and the fire being under investigation by the police the cause of fire was classified as “Undetermined” pending the result of the police investigation[24]. 

54.Mr Stephenson submitted that the finding by PFSO Chiu that the most possible cause of fire was deliberate act and that the cause of fire was classified as “Undetermined” were self-contradictory. 

55.I have no hesitation in rejecting this submission.  I accept the evidence of PFSO Chiu given in cross-examination that he was not expecting a forensic report from the police and that he only needed to determine whether the fire was suspicious or not.  I am satisfied the classification of the cause of fire as “Undetermined” in no way undermined PFSO Chiu’s opinion the most possible cause of fire was deliberate act. 

56.In re-examination PFSO Chiu said he was unable to say how the fires started.  When asked how easy was it to start the fires PFSO Chiu said that it was easy to ignite one fire but not easy within a short time frame to start all five fires without deliberate act.  PFSO Chiu explained this was because between the five seats of fire there was no pattern of fire spread and therefore the five fires were started separately. 

57.In reaching the conclusion the fires were started deliberately PFSO Chiu believed the fires to have occurred at about 4 a.m. and before 6 a.m.  This was based on what PFSO Chiu was told by the tenant of the rooftop and a young teenage girl who lived on the 4th floor[25].

58.The evidence of what PFSO Chiu was told was not only hearsay but also differed from the evidence before the court.  Mr Yeung (PW1) the tenant of the rooftop gave evidence that he discovered the burnt rubbish at about 11:30 a.m. not 6 a.m.  The CCTV shows a young girl arriving at a 4th floor flat at 05:01:45 and not 03:30. In answer to the court PFSO Chiu said the flat the girl on the CCTV is seen entering at 05:01:45 is the same flat the girl he spoke to resided at[26]. 

59.Save for the fires between the 2nd and 3rd and 3rd and 4th floors discovered by Mr Chan at just after 3:30 a.m. there is no other evidence of the time of the fires.  When the court clarified with PFSO Chiu whether a longer time frame would affect his opinion the fires were caused by deliberate act, PFSO Chiu replied not really and explained time was only one issue and not the major issue in determining the possible cause was deliberate act.  Even with a time frame of at least 12 hours PFSO Chiu said this would not make any difference to his opinion because there were five separate fires in five separate locations of the same staircase.

60.In his Incident Report PFSO Chiu states he could not rule out the fires were caused by disposal of lighted smoking materials[27]. When the court clarified why in evidence he ruled out the cause of fire was by accidental disposal of cigarettes, PFSO Chiu replied that he believed the five fires were not caused by accidental throwing away of cigarettes because over a short period of time there were five separate seats of fire in the same building. 

61.I was satisfied the evidence of the other fires was admissible in determining whether the fires were accidental or deliberate.  I accept the evidence of PFSO Chiu that the most possible cause of the fires was deliberate act.  This in my view is no more than common sense.  I find inherently improbable that on the same night five fires in the same building, on five different floors, all on the landing between the floors, were started accidentally.   I am satisfied so I am sure the only inference to draw is that the fires were started deliberately.

62.In reaching this finding I have not relied on the evidence of PFSO Chiu that there was a positive result for accelerant on the 4th floor[28]which, in answer to the court, PFSO Chiu said was quite strong evidence the fire was started deliberately because such positive result was rare. 

63.PFSO Chiu testified that he did not know what the accelerant was, only that there was a positive result.  PFSO Chiu said the Government Chemist would determine what the accelerant was.  In answer to the court PFSO Chiu said he never received the Government Chemist certificate, explaining that it was not part of his duty to find out what the accelerant was.  No Government Chemist certificate has been produced in evidence.

64.In the absence of any evidence as to what the accelerant was, I am satisfied I cannot rely on the evidence of a positive result for accelerant on the 4th floor in determining the cause of the fire on the 4th floor.  Further, in cross-examination PFSO Chiu disagreed that accelerant had been used to start the fire, explaining that there might have been something inside the bin before it burnt.  Without clear evidence from CCTV showing accelerant was used PFSO Chiu could not say someone used accelerant to start the fire.

Recklessness

65.In reaching my verdict I direct myself that the prosecution must prove that the defendant was aware of a risk that property would be damaged and that in the circumstances known to him it was unreasonable for him to take that risk[29].

66.I am satisfied so I am sure by starting a fire on the landing of the staircase the defendant was aware that there was a risk that the staircase would be damaged and that it was unreasonable for him to take that risk. 

Endanger life

67.In reaching my verdict I direct myself that the prosecution must prove that the defendant was aware of a risk that damage to property would endanger the lives of the occupants in the building and that in the circumstances known to him it was unreasonable for him to take that risk[30].

68.I am satisfied so I am sure by starting a fire on the landing of the staircase the defendant was aware of a risk that damage to property would endanger the lives of the occupants in the building.  The risk was that damaging the staircase by fire would result in smoke engulfing the staircase and the nearby flats, as actually happened, thereby endangering the lives of the occupants in the building.  I am satisfied that it was unreasonable for the defendant to take that risk. 

69.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Stephenson, both individually and collectively.  Nothing said by Mr Stephenson causes me to doubt the findings I have made.

70.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted as charged.