R. v. Cheung Chi-lun

CACC000428/1995

IN THE COURT OF APPEAL

1995, No.428

(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P. & Sears, J.

Date of hearing: 28 November 1995

Date of judgment: 28 November 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. In this matter the applicant with two others faced a charge of arson. It alleged that the three persons on 21st April 1994, at the public carpark behind the Heung Yee Kuk Southern District Secondary School at Mui Wo Ferry Pier Road, Mui Wo, Lantau Island, without lawful excuse, damaged by fire six private cars intending to damage such property or being reckless as to whether such property would be damaged. The applicant pleaded not guilty and was found guilty after trial before District Judge Geiser. He was sentenced to imprisonment for two years. He now seeks leave to appeal against that conviction.

2. There were two eye witnesses to the events of that evening who gave evidence as PW1 and PW2 at trial. They said that at about 4:30a.m. they saw three people damaging and setting fire to cars in the public carpark referred to in the charge. At about 4:15 p.m. Sgt. 20693 said that he was on his way to the scene of the incident when he stopped a white van DE 2575. The applicant and the 1st defendant at trial were in the van. He found nothing suspicious and he let them go. At that time the van was about 10 to 15 minutes drive away from the Mui Wo Carpark. The fifth witness at trial was DPC 11988. He was the officer who arrested the applicant at his home on the following day and took him and his clothes back to the Mui Wo Police Station. He said that after he had done so and the applicant had been documented at the police station. The applicant took the officer to the home of the 1st defendant at trial. It was the evidence of that officer, and this evidence was very important in the trial and is, indeed, attacked in the appeal, that the applicant said that the case had not been done by the 1st defendant but it had been done by him. The whole party, which included a sergeant, then went back to the Mui Wo Police Station. PW5 said that at the Tung Chung Police Station, to which they eventually went, he post-recorded that verbal statement and then took a record of interview from the applicant. In this record of interview the applicant said:

"It was because at that time, I had drunk a lot of wine and then went to play at carpark No.2 of Mui Wo. As I found a bucket of something at the carpark at that time, I then poured the bucket of something on a vehicle. I then put a cigarette on the car and suddenly the car was on fire. Later, I found that the vehicle was on fire and left with my friends at once."

That was the first statement made by the applicant. He later made a second statement in which he said that he had drunk a lot of wine, had kicked over a bucket, had lit a cigarette and that, while smoking and walking around, had dropped the cigarette on the ground and that this accidentally caused the fire.

3. The admission of the cautioned statements was contested. They were, however, after evidence, admitted.

4. At the trial no evidence was given by the applicant.

5. The trial judge said when convicting:

"Insofar as the 2nd defendant is concerned, however, I am perfectly satisfied that he was present at the scene at the material time. I am also perfectly satisfied that the first statement that he made, that is the statement to PW5, and which was admitted as exhibit P4, contains a detailed account of the 2nd defendant's participation in the 1st charge and is true. I therefore find that the prosecution have indeed proved the 1st charge against the 2nd defendant beyond all reasonable doubt and he is convicted accordingly."

There was also forensic evidence which established that the fingerprint of the applicant was on one of the cars and that clothing worn by the applicant was contaminated by paint thinner, which could be used as a fire accellerant, which was found in a bucket at the scene.

6. The first three grounds of appeal, argued by Mr. Watson for the applicant, involved a suggested discrepancy between the evidence given by the two eye-witnesses and the sergeant as to time. The witnesses had said that what they saw had occurred at about 4:30. The sergeant had said that he stopped the vehicle in which the applicant was travelling at about 4:15. It is suggested that these times are such that the applicant could not possibly have been the person involved in the starting of the fire as at the time was being started, according to the evidence of the two eye witnesses, the applicant was well away from the scene.

7. The trial judge was aware of this discrepancy and he resolved it in the following way:

"I am satisfied that their estimation of the time that they witnessed this incident, that is at about 4:30 am, to be inaccurate. I accept the evidence of PW4, who said that he stopped the white van that D2 was driving at around 4:15 am and this was about ten to fifteen minutes drive away from the carpark itself. I find therefore that the incident that PW1 and PW2 witnessed, must have occurred around 4:00 am."

It is suggested that there was nothing which would warrant such a finding and that it was contrary to the evidence before the court. This was a matter of fact and was one essentially for the trial judge. He was entitled, we are satisfied, to resolve it against the background of all of the facts including the statements, the fingerprint evidence and the forensic evidence as to the clothes. We cannot properly interfere in this finding as we are satisfied that upon the evidence it was one to which he was entitled to come.

8. The next grounds of appeal to which we need turn are Grounds 4 and 5. In those grounds it is argued that the judge erred in ruling that the statements of the applicant were voluntary because he failed to consider the totality of the evidence as to the verbal admission. This admission was said to have made in the presence of both the 1st defendant and the arresting sergeant. The 1st defendant in the voire dire proceedings had said that he had not heard any such statement and the sergeant made no mention of any such statement in his evidence. It is suggested, this being so, the judge must have had doubt as to whether any such statement was made. Allied to this is the submission contained in Ground 5 that the judge failed to consider and give weight to the fact that the police witness had made no note of the verbal statement at the time it was made but had only recorded it some two hours later. We reject the suggestion that there was any failure by the trial judge to give weight to all of the evidence in this regard and in particular to the fact that the verbal admission had not been recorded until a much later time. The evidence was before the judge. It was essentially a matter for him and he accepted that such a statement had been made.

9. The sixth ground concerns itself with two matters. It is stated as follows:

"6. The Learned Judge failed to consider the forensic evidence adduced by consent to the effect that the only fire accellerant found form the remains of the burnt cars was petrol and not paint thinner and further that no trace of paint thinner was recovered from Appellant's van it would appear that any contamination of clothing by paint thinner must have taken place after the van was used and may have occurred when such clothing was in police custody."

The two matters involved are firstly a suggestion that it was significant that there was no trace of paint thinner found in the van because it is suggested that some trace should have been found as the clothing which, it is said, was contaminated by paint thinner at the scene and was then worn in the van and should have left some trace of paint thinner. This is no more than a suggestion. The forensic evidence established that the clothing was so contaminated. It is true that there was no further contamination of the van by the clothing. There was no cross-examination of any forensic expert as to whether or not this would have been likely to have occurred. The fact of the matter is that the evidence established the paint thinner on the clothing and none in the van. We do not consider, in the state of the evidence as it was, that anything significant can be made as to that matter in this appeal.

10. The other matter urged is that the only trace of accellerant found in any debris was a trace of petrol found in burnt debris from one of the vehicles. This evidence was not, it seems, through inadvertence, placed before the judge but it has nonetheless been considered by us today. It is suggested, given that the only forensic evidence of an accellerant was that it was petrol and not paint thinner, that the judge, had he been about properly to consider the matter, must have had some doubt as to whether the applicant was involved in the setting alight the vehicles by the use of paint thinner. This matter we consider is resolved by looking at the following evidence of the first of the two eye-witness:

"Q. You say 'tampering', what specifically did you see them doing?

A. Well, one person was holding something, looked like a lighter, and he was using this object to set fire to a seat.

Q. The seat of a car?

A. Yes.

Q. Did you see anything else?

A. Well, then one person, for some unknown reason, walked over to another vehicle and started to tamper with it.

Q. How did he tamper with it?

A. He pushed, pushed .... that vehicle.

Q. And then what happened?

A. Then another person took out a bucket of something from a van, and then he started to pour the contents of that bucket onto another vehicle.

Q. Right, just stop there for a minute. Do you remember the colour of the vehicle that he took the bucket from?

A. White van.

Q.. A white van. And the car onto which he poured liquid, what colour was that, do you remember?

A. A yellow private car.

Q. And after that, what happened?

A. Then one person went up there and lit the fire, and so the entire car was in flames."

It seems clear from this evidence that more than two fires were set. In the circumstances the fact that traces of petroleum were found in one and that no traces of accellerant were found in any of the others seems to us not to be a matter of any real significance. The trial judge was entitled to act upon the basis of the statement which he admitted and upon the basis of the other forensic evidence and to come, as he did, to a conclusion of guilt.

11. We are satisfied that there is nothing in any of the grounds that have been urged before us and the application for leave to appeal against conviction must, therefore, be refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Geoffrey Watson instructed by Messrs. Howell & Co. for the Applicant.