The Queen v. Wong Chi-tak and Others

CACC000188/1984

BETWEEN

Coram: McMullin, V.-P., Li & Cons, JJ. A.

Date: 21st June, 1984.

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JUDGMENT

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Li, J. A.:

1. The 5 applicants were convicted of attempted arson and riot. Each was bound over to be of good behaviour for a year.

2. The particulars were that on 13th January this year, near No. 547 Nathan Road, they attempted to set fire to a public omnibus CK8821 intending to cause damage or being reckless whether damage would be caused or not. In so doing, they riotously assembled there at the time.

3. On the evening of 13th January, there was a large crowd assembled in Yaumati and Mongkok areas. The unruly elements of the community took advantage of the taxi drivers strike to do so.

4. Around 10 p.m. that evening, the crowd had caused a bus CK8821 to stop in the middle lane near 547 Nathan Road. Later, this bus was found crashed into the railings in the middle of the road with petrol and oil leaking out onto the road.

5. Three police officers observed that the 5 applicants standing near the oil-stained road. There was a short conversation between the 5th and 4th applicants. The 5th applicant took out a bundle of newspapers from her bag, handed it to the 4th applicant who passed it on to the 3rd applicant. The 3rd applicant threw two pieces of this bundle of newspaper onto the oil-stained part of the ground and passed the remaining piece of newspaper to the 1st applicant. The 1st applicant then spoke to the 2nd applicant before he twisted the newspaper into a paper strip. The 2nd applicant took out a box of matches, lit a match and applied it to the strip of newspaper held by the 1st applicant who threw it onto the other pieces of newspaper and the oil on the ground. Seeing this, the 3 patrolling officers - a detective sergeant and 2 detective police constables - rushed forward to effect the arrest of all 5 applicants and stamped out the fire at the same time.

6. Sergeant Chan, the leader of the group, said that there were over a thousand persons at the time in the vicinity. They were unruly, cheering and running. Near 547 Nathan Road, he saw a bus stopped at an angle in the wrong direction of the road facing north. He confirmed that the lighting at the time was bright. He could see clearly what occurred as described. The two other constables who assisted him - DPC 10941 caught the 2nd applicant, DPC 20371 caught the 1st and 3rd applicants. The sergeant caught the two girls, the 4th and 5th applicants.

7. This evidence was confirmed and corroborated by the evidence of the two assisting constables, namely, DPC 10941 and DPC 20371. When the girls were arrested the sergeant said that they were quite prepared to be arrested though they would not like to be handcuffed.

8. The party was brought back to the police station and statements were taken. In the meanwhile, DPC 10941 picked up the exhibits, namely, the box of matches, the match-stick which lit the newspaper, the 2 pieces of newspapers on the ground and one part of the burnt piece of newspaper. Such was the gist of the prosecution evidence against the applicants.

9. The first three applicants declined to give evidence which was their right. The 4th and 5th applicants both gave evidence to the effect that all five of them were fellow students of Park U Secondary School in Tai Po. On that day they had a holiday. They decided to go to Kowloon to do a bit of shopping. They took a train at Mongkok Railway Station at about 7 p.m. They looked around shops. Later they went to the Tai Kar Lok Fast Food Shop to have something to eat.

10. They came out at about 8.45 P.m. intending to go back to Tai Po. They crossed Nathan Road and walked in southerly direction towards the Waterloo Mass Transit Station, Yaumati for Kowloon Tong where they could catch a KCR train to Tai Po.

11. They saw people running and this running crowd carried and separated five of them. After a while, the 5th applicant saw that the 1st applicant was 20 feet away from her. Two persons put their arms round his body and dragged him up a flight of stairs. By this time, she found the other 3 applicants. They went towards the bottom of the stairs. They asked why the 1st applicant was arrested.

12. They were ignored. The 1st applicant was taken down again by the men to a side street. They followed them. They, the applicants, were warned that if they did not go away, they too would be arrested. They declined to follow the suggestion. They were all arrested.

13. They denied that they had ever set fire to anything. The 5th applicant denied she took out any newspaper. In view of the direct conflict in evidence, the whole issue depended on the judge's finding as to whose evidence was true.

14. The judge observed that the applicants used the KCR train to its Mongkok Station in the first instance. They said that when they saw the crowd they were afraid. Despite that, they took to a southerly direction towards Yaumati Mass Transit Station (Waterloo Station). By so doing they mingled with the crowd. He accepted the evidence of the sergeant and the constables. The evidence was that there was a bus which had crashed into the railing in the middle of the road and oil from it had leaked to the ground. He accepted that the applicants were attempting to set fire to it.

15. The judge found that the reason given by the 4th and the 5th applicants were not acceptable. He convicted the applicants.

16. Learned counsel for the applicants conceded that the first three applicants who declined to give evidence can succeed only if the 3rd and 4th grounds of appeal are successful. The other grounds are merely for the 4th and 5th applicants.

17. The 3rd and the 4th grounds of appeal are that the judge erred in holding that the evidence of the prosecution witnesses was truthful and in failing to direct himself as to whether there was a common design amongst the 5 applicants. Counsel contends that the judge failed to direct his mind to the circumstances of arrest. He queries the police version. He observes that despite the unruly crowd of over a thousand persons the humiliating arrest of the five applicants did not provoke any attack upon the police. The police officers admitted they made all of them including a girl wearing skirt to squat down. That would be, counsel said, most improbable. Furthermore the inspector had briefed them not to provoke the crowd.

18. Another improbable feature of the police version is that despite the presence of a big crowd all applicants never attempted to resist or to escape. Counsel says such evidence lends weight to the applicants' contention that they were arrested because they followed the police officers.

19. Counsel contends there was no evidence of common design. There was only some sign of conversation between the applicants. Nobody knew what they were talking about. The 4th and 5th applicants merely handled the newspaper. They never set fire to the twist of the paper or put it down onto the oil patch. However, the judge heard the evidence of the prosecution and the defence. The whole episode took place in matters of minutes. From the officers' observation the newspaper changed hand from one applicant to another and was finally lit and thrown onto the oil covered ground near the bus. The police had no time to lose. There was no sign that any of the applicants who were 1 or 2 paces away from the lighted newspaper tried to put it out. In the circumstances, the only logical inference the judge could draw must be one that they had a common design to set fire to the bus.

20. It is true that the police officers were told not to provoke the crowd and not to effect arrest had there been minor offences. However, an attempted arson is by no means a minor offence. Even if the crowd were to be provoked by an arrest the police had to take the risk. We do not see any good reason why it can be said that the judge has erred in accepting the prosecution evidence.

21. The 1st ground of appeal alleges that the judge misdirected himself by considering that the five applicants had to walk south towards the Mass Transit Station rather than going north to the Mongkok Railway Station in order to get back to Tai Po. The 4th and 5th applicants indicated that the Mass Transit Station was nearer to Dundas Street where they found themselves after the meal. Kowloon Canton Railway Station in Mongkok is farther away from Dundas Street. Both applicants admitted that, at the time when they came out, they saw the crowd. They were frightened. Nonetheless they took the chance. They walked in the middle of the road to join the crowd. In any event the judge did not convict the applicants for the aforesaid reason only. It was a passing remark that the step taken by the applicants was not a reasonable one at the time. It did not sound probable that even frightened by the crowd they still walked into it. One of the applicants admitted that she was frightened by the mob. There is no merit in the first ground.

22. The 2nd ground is that the judge failed to consider the evidence of good character. However, evidence of the teacher had been heard by the judge. On the other hand there was equally clear evidence that they were involved in the attempt. The fact that the judge did not mention such evidence does not mean he did not consider it.

23. The 5th ground of appeal is that the judge erred in law by failing to consider that the primary facts admit of two inferences. That being the case the judge should draw the inference of innocence rather than that of guilt unless the latter was the one and only logical one. This court has said in the past that the trial judge may draw any reason-able inference from primary facts. It is only as to the ultimate inference of guilt drawn from the whole body of primary facts that the judge must be satisfied that it is the only inference which can be drawn. There is nothing in the 5th ground.

24. The 6th ground is that the judge did not give detailed reasons why he accepted certain parts of the evidence and why he rejected other parts of the evidence. It is contended that he should give some reasons as to why he rejected certain evidence. Every case depends on its own merits. In the case of TANG Nai-keung ⁽¹⁾ the facts required that the judge should give some reason as to why he accepted or rejected certain parts of the evidence. However where the reason is obvious as in the instant case it is not an absolutely necessity for the judge to give detailed reasons. In the present case, the judge outlined the prosecution evidence as well as the defence evidence. He pointed out that he found the prosecution witnesses reliable and truthful. He accepted the prosecution evidence and rejected the defence evidence. In the circumstances, the judge has done nothing which merit our interference. Accordingly the application for leave to appeal against conviction by all five applicants are refused.

(1)    1976 H.K.L.R. 736

Representation:

A. Wong (Philip S.W. Wong & Co.) for all applicants

T. H. Freeman, Crown/Respondent