HKSAR v. Godhaniya Haja Samat

CACC 264/2017

[2018] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 264 OF 2017

(ON APPEAL FROM DCCC 107 OF 2017)

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Before: Hon McWalters JA in Court

Date of Hearing: 4 July 2018

Date of Judgment: 4 July 2018

Date of Reasons for Judgment: 18 July 2018

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REASONS FOR JUDGMENT

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1.The applicant was charged with the offence of “Arson being reckless as to whether life would be endangered”, contrary to section 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200.

2.He pleaded not guilty to this offence and was tried in the District Court before District Judge Dufton (“the judge”) between 9 and 22 June 2017.  On 26 July 2017 the judge convicted the applicant as charged and on 16 August 2017 sentenced him to two years’ imprisonment.

3.The applicant subsequently applied for leave to appeal his conviction and his sentence.  He also applied for bail pending appeal.  Both these applications came before me and at the hearing of them I refused them and said I would hand down my reasons for doing so at a later date.  These are my reasons.

The trial

4.The offence occurred on a staircase between 3^rd and 4^th floor of No 89 Fuk Wing Street, Sham Shui Po, Kowloon.  This building is a 9‑storey building in which the applicant lived on the 7^th floor.  There is no lift in this building and the only access to the building and each of the floors is by a single staircase.  There is no door or gate to this staircase and anybody can access it from the street.

5.The particulars of the charge alleged that on 15 November 2016 the applicant “without lawful excuse, damaged by fire the staircase and the wall between the 3rd Floor and 4th Floors 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.”

6.It was the prosecution case that around 3 am on 15 November 2016 the resident of Flat B on the 4^th floor was woken up by some smoke entering his flat.  This person discovered a fire on the landing between the 3^rd and 4^th floors and then later discovered another fire on the landing between the 2^nd and 3^rd floors.  He extinguished both fires.  Subsequently, it was discovered that fires had also occurred on the landings between the 1^st and 2^nd floors, the 5^th and 6^th floors and the 6^th and 7^th floors.  However, the charge related only to the fire on the landing between the 3^rd and 4^th floors.

7.A resident of Flat A on the 4^th floor had installed CCTV which showed the staircase above the landing between the 3^rd and 4^th floors, the 4^th floor and the staircase leading to the 5^th floor landing.  The CCTV did not, however, show the landing between the 3^rd and 4^th floors where the fire was located.  The CCTV showed that at 3:20 am on 15 November 2016 the applicant ascended the staircase that is above the landing between the 3^rd and 4^th floors.  He was then seen to stop on the staircase and look back down it in the direction of the landing.  A few seconds later he continued walking up the stairs at which time an orange glow can be seen on the wall of the staircase above the landing between the 3^rd and 4^th floors.  A few minutes later the occupant of Flat B on the 4^th floor can be seen coming out of his flat, observing the scene and then returning to his flat and fetching some water to put out the fire. 

8.It was the prosecution case that the orange glow that can be seen on the CCTV was from the fire on the landing between the 3^rd and 4^th floors and that it was the applicantwho deliberately started this fire. 

9.A resident of the rooftop testified that he first saw burnt rubbish on the landings between 2^nd and 3^rd floors, 3^rd and 4^th floors, 5^th and 6^th floors and 6^th and 7^th floors at about 11:30 am on 15 November 2016 when he left home and walked downstairs.  He said that when he had returned home around 11 pm the previous evening he did not see any burnt rubbish.

10.The location of each fire was inspected by a Fire Services Officer who was unable to find any reason for the fires to have started accidently or spontaneously.  He concluded that they had been deliberately lit.

11.The applicant was interviewed under caution and denied lighting the fires.  His record of interview was admitted into evidence by Admitted Facts.  The applicant did not testify and did not call any witness in the defence case. 

The judge’s Reasons for Verdict

12.The judge recognized that there was no direct evidence linking the applicant to the offence and that a finding that it was the applicant who lit the fire on the landing between the 3^rd and 4^th floors could only be made by inferential reasoning.

13.The main piece of evidence on which the prosecution relied was the CCTV footage.  A chronology of what can be seen on the CCTV is as follows:

Time	CCTV Image
03:20:14	The applicant can be seen walking up the stairs from the landing between the 3rd and 4th floors.  Whilst walking up the stairs the applicant is seen looking back in the direction of the landing where the fire occurred.
03:20:16	The applicant stops on the staircase and it can be seen that he is smoking a cigarette.
03:20:22	The applicant continues walking up the staircase to the 4th floor.
03:20:24/25	An orange glow begins to appear on the wall of the staircase above the landing between the 3rd and 4th floors.
03:20:29	The applicant continues up the stairs between the 4th and 5th floors.  The orange glow becomes clearer.
03:20:31	The applicant reaches the top of the stairs near the landing between the 4th and 5th floors and walks out of view.  Over the next 50 seconds the orange glow becomes brighter and the staircase fills with smoke.

14.The judge considered the exculpatory statements made by the applicant in his video record of interview and for reasons which he gave he rejected them.  After rejecting them, the judge then turned to whether the prosecution had proven the applicant’s guilt beyond a reasonable doubt.  After reminding himself that the burden was on the prosecution to prove the applicant’s guilt, he said:

“45. I find inherently improbable that in those few seconds someone else appeared on the landing between the 3rd and 4^th 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.”

The applicant’s grounds of appeal

15.The applicant has no legal representation and so there are no Perfected Grounds of Appeal.  The applicant has filed with the court a document entitled “Initial Grounds of Appeal” which is dated 17 May 2018.  In this document he sets out the following complaints:

“1. It is not ‘inherently implausible’ that nobody other than the Defendant could have been the person who started the fire the subject of the charge.

2. The Defendant had no or on sufficient means on his possession at the time of his capture on CCTV, or at any other time, to have started the fire(s).

3. Exculpatory explanations given by the Defendant in a video recorded interview under caution were wrongly dismissed by the Court by reason that the assertions were not given under oath and/or were dismissed as ‘inherently implausible’ without reason being given as why other explanations were untenable.”

16.This was followed by a letter to the court dated 29 May 2018 and a letter which he tendered at the hearing of his application.  In these letters he maintained his innocence and asserted that the judge was wrong to infer that it was he who started the fire.

17.His only complaint in respect of his sentence was that it was excessive.  However, he did not elaborate on why it was excessive.

Discussion

18.The applicant’s complaints can be summarised as being that there was no evidence implicating him in the offence and there were insufficient primary facts from which the judge could draw the inference that it was he who lit the fire.  As he expressed it in one of his letters to the court:

“A man is seen walking up stairs smoking a cigarette. Ergo he caused the fire. That is the sum of the prosecution case.”

19.The judge gave himself a number of legal directions, one of which was on the drawing of inferences. There is no error in this direction or the other directions he gave himself.  

20.I can detect no error by the judge in his assessment of the evidence.  The CCTV did not show any other person ascending or descending the stairs at the time the fire on 3^rd/4^th floor landing ignited.  Having found that the fire ignited through human intervention, a finding open to him on the evidence, the only possibility as to who, other than the applicant, ignited the fire, is that an unknown 3^rd party ascended the stairs to the 3^rd/4^th floor landing very shortly after the applicant.  The judge rejected this possibility as implausible and, in my view, it was open to him to do so.  When the CCTV is viewed and account is taken of the very limited time, a matter of seconds, in which the events unfolded, it strains credulity that another person following immediately behind the applicant, but of whose presence the applicant was apparently unaware, lit this fire.

21.The applicant can be seen smoking a cigarette and from this it can be inferred that he possessed the means of ignition, even if only from his burning cigarette.   

22.The judge explained why he rejected the applicant’s exculpatory statements.  I can find nothing objectionable in his reasons and his conclusion that the applicant’s statements were not believable is a conclusion that was open to him to make.

23.I cannot find any basis for concluding that any of the applicant’s complaints would constitute a reasonably arguable ground of appeal against his conviction.

24.The sentence of two years’ imprisonment imposed upon the applicant is in accordance with established authority and I can find no basis for saying that it is excessive.

The bail application

25.Notwithstanding that I had refused his application for leave to appeal his conviction and sentence the applicant persisted in his bail application.  He maintained he was suffering from a medical problem with his neck for which he was not receiving proper medical treatment.

26.Having found no merit in any of his grounds of appeal I refused him bail pending appeal.

Conclusion

27.For these reasons I refused the application for leave to appeal and the application for bail pending appeal.  I advised the applicant of his right to renew his application for leave to appeal but also informed him of the power possessed by the Court of Appeal under section 83W of the Criminal Appeal Ordinance. 

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

The applicant appeared in person