R. v. Wong Hon Ming

CACC000181/1995

IN THE COURT OF APPEAL

1995, No. 181
(Criminal)

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Coram: Hon Yang, C.J., Power, V.-P. and Mortimer, J.A.

Date of hearing: 3 November 1995

Date of judgment: 3 November 1995

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant was convicted after trial in the District Court for arson. This is his application for leave to appeal against his conviction.

2. Three grounds of appeal have been advanced. Firstly, it is argued that the learned trial judge failed to have regard to the applicant's clear record. Secondly, it is said that in concluding that the records of police interview of the applicant were voluntary, the trial judge failed to consider the evidence of injuries sustained by the applicant whilst in police custody and unexplained by the prosecution. Thirdly, the judge failed to consider the evidence of a government forensic scientist Mr Cheung Kwok Keung that the fire spread rapidly and was not a small smouldering fire, in conjunction with the applicant's admission that he set the fire immediately prior to leaving the premises at 10:30 pm on the day in question and the evidence that the fire brigade was summoned at 11:40 pm.

3. The particulars of offence are as follows:

"WONG Hon-ming, on the 7th day of January of 1994, at Flat A, 11th floor, Hwa Foo Industrial Building, 21 Luk Hop Street, San Po Kong, Kowloon, in Hong Kong, without lawful excuse, damaged by fire, the property of Wing Lee Tat Garment Factory, Hung Yuen (Sanyo) Knitting Beading Factory and On Ah Company, intending to damage such property or being reckless as to whether such property would be damaged."

4. The premises in question comprised the factory operated by the applicant as sole proprietor.

5. On the day in question, a telephone call was received by the fire brigade from the watchman of a nearby building, the fire brigade was called out at 11:40 pm. By 11:54 pm, the fire was upgraded to No.3 alarm. It was not in dispute that the goods in the premises were held in consignment owned by the companies mentioned in the particulars of the charge and that they were damaged in the fire.

6. The applicant did not give evidence on the general issue.

7. In giving his Reasons for Verdict, the judge said this:

"On the evidence of the Crown without the benefit of the statements, I would not be prepared to convict and to believe that the Crown on this evidence had failed to establish its case."

8. After holding a voir dire, the judge admitted into evidence five cautioned statements made by the applicant. The applicant gave evidence during the voir dire and testified that he was assaulted and threatened by the police. He was offered inducement and he was scolded by the police. The statements were not voluntary.

9. The medical officer at Lai Chi Kok Reception Centre where the applicant was detained had examined the applicant on 11 and 12 January. He found a number of injuries on the applicant, namely, abrasion over the left chest; abrasion over the left shin; reddish mark over the left wrist; two healing wounds over the right wrist and abrasion over the left forearm.

10. In his ruling, the judge noted that the doctor in question without claiming particular expertise gave evidence that the wounds could have been caused within seven days. There was no evidence that the injuries were sustained at the time of the applicant's arrest.

11. Having considered the doctor's evidence and the applicant's evidence, the judge ruled that all five statements were given voluntarily and without oppression.

12. Mr Matthews acting for the applicant argues that, whilst he accepts that a trial judge need not give reasons for his decision on a voir dire, however, when he does give reasons, it must be seen that all the evidence has been considered and properly evaluated. He submits that the learned trial judge failed to do this. It is further argued that as the applicant had a clear record and there were "no glaring discrepancies in his evidence in chief", the judge could not have considered and evaluated all the evidence properly.

13. We have considered the judge's ruling and his Reasons for Verdict with care and we are of the view that he has considered all the evidence that was adduced before him both from the prosecution and from the defence during the voir dire. And, as this court has said on an earlier occasion, it is not incumbent on the judge to make specific mention of an accused's clear record in every case when considering the evidence before him. It is true that the judge in his ruling after the voir dire did not make special mention of the applicant's clear record, we have no doubt that he must have had this matter in mind.

14. On the evidence of the forensic scientist, it is argued that the judge accepted the applicant's admission under caution that he did not leave home after his arrival at home on the evening of 7 January 1994. The judge also appeared to have accepted that the applicant had gone off duty at 10:30 pm when he locked the factory before leaving, and that he had set fire to the premises before his departure.

15. It was submitted to us this morning that the evidence in the cautioned statement is inconsistent with that of the forensic scientist. It was argued that the fire was first spotted at 11:40 pm, some 70 minutes after the applicant allegedly set fire to it. It was not a small fire but one which both developed and spread quite rapidly in such a way that the resultant damage would have been much more severe at the time of its discovery or that the fire would have been discovered much earlier.

16. However, we have the evidence of the forensic scientist who said, "But since my finding at the scene shows that the fire was a rapid fire, so the fire could not be initiated more than an hour before 11:40 pm." So, mathematically, we have here a discrepancy of ten minutes. I do not think it could be argued that what the forensic scientist said was more than his estimate and the discrepancy is in our judgment of no significance in this case.

17. In our view, the judge has considered carefully all the evidence before him and all the matters raised by the defence, in particular the applicant's clear record, his injuries and the estimated time when the fire was started. There is nothing in this application, it is accordingly dismissed.

Representation:

Mr J Matthews and Mr Alex Ng (Erwin Young, Chu & Law) for Applicant

Mr John Reading of the Attorney General's Chambers for Crown/Respondent