HKSAR v. Wang Jing-yun

CACC 326/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 326 OF 2005

(ON APPEAL FROM DCCC NO. 561 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore V-P, Stock JA and Beeson J in Court

Date of Hearing : 30 May 2006

Date of Judgment: 30 May 2006

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.The question in this case is whether there was an equivocal plea.  The matter came before a single judge of this Court in November 2005 upon an application for leave to appeal against sentence.  The applicant was unrepresented.  She had been refused legal aid.  A perusal of the papers as well as suggestions made by the applicant and her husband at the hearing of the application suggested to the single judge that the plea of guilty in the court below may have been equivocal.  So he granted her legal aid in order that someone acting on her behalf could examine the question.  Counsel was instructed on her behalf.  Having heard him as well as counsel for the respondent, we are satisfied that the plea was indeed equivocal and that the conviction imposed pursuant to the plea must, upon the application that is now being made for leave to appeal out of time against conviction, be set aside.

2.The applicant was charged with attempted arson with intent, contrary to sections 60(2) and (3) and 63(1) and section 159G of the Crimes Ordinance, Cap. 200, and the particulars of the charge read as follows:

“Wang Jingyun, on the 22^nd day of April 2005 at Room 1237, Block 11, Shek Lei Estate II Tsuen Wan New Territories without lawful excuse attempted to damage by fire the premises at Room 1237 [aforesaid] … intending to damage such property or being reckless as to whether such property would be damaged and intending by the damage to endanger the life of Ho Kam Wah or being reckless as to whether [his life] would thereby be endangered.”

3.The summary of facts described an unhappy relationship between this applicant, aged 35 years and her husband Ho Kam Wah aged 56 years.  They were married on the Mainland in 1998 and have a daughter.  The husband lives in Hong Kong and the applicant in Shenzhen.  The applicant had for long wanted to migrate to Hong Kong but her husband kept putting her off, and the applicant suspected that he was conducting a relationship with another.  This led to significant arguments whenever they met.  On 14 April 2005, the applicant was informed by the Mainland authorities that a one-way permit had to be signed by the husband, but the husband prevaricated and said that he was not well enough to come to Shenzhen to sign the document.  The applicant became increasingly upset in the days that immediately followed and her pleas continued to be ignored.  So she came to Hong Kong with her daughter.  At about 7.35 in the morning of 22 April 2005 the husband heard the applicant knocking on the door of his premises, and he heard her shouting outside, and he also smelt something like kerosene or petrol, and he telephoned the police.  He saw the applicant standing outside the front door, having chained the iron gate of the flat, and holding a plastic bottle the top of which was open.  Liquid had been poured inside the door of the premises.  In due course the police arrived and apprehended the applicant who was standing there with her daughter, holding a lighter in her hand.

4.According to this summary, the applicant said that she had brought two bottles of petrol from the Mainland to Hong Kong “for negotiation”, chained the iron gate, kicked open the wooden door and poured a bottle of petrol into the premises but that the husband still ignored her; so she took the lighter out and said that if he were to request for a divorce she would set fire to the premises to burn him to death.  The summary went on to assert that she was arrested and “she admitted under caution that she brought the petrol and intended to burn the victim to death because he requested for divorce and refused to see her.”  The summary went on to assert that during a subsequent interview at the police station, the applicant had said that she had decided to burn the premises and the husband to death “if victim spurned them”.  (Emphasis added). 

5.There were a number of matters to which, unfortunately, the summary did not refer.  Whilst it is true that in her interview the applicant had, according to the translation we have, said that: “I presumed him to spurn at me and the daughter.  I then burnt his home with kerosene to burn him to death”, she was asked: “How did you set fire to burn him?” to which she answered:

“I bought a chain with a lock and two bottles of petrol in Shenzhen and then passed the customs with my daughter and a lighter.  We came to his home to look for him and I knocked on the door.  He took no heed of me and did not respond to me.  In anger I intended to scare him utter the reason for not signing the document for me to get the one-way permit.  He also said he wanted to divorce.  He took no heed of me even though I knocked on the door many times.  As such, I took up the petrol, poured a bottle into the house through the doors gap on the ground and then I locked the iron gate with a big iron chain.  After that, I took out a lighter and held it in the right hand and held the remaining bottle of petrol in the left hand.  However he still took no heed of me.  As such, I kicked the door with feet.  Knowing that he refused to open the door, I kicked with strength.  After a moment I opened the door and saw him there.  I then scolded him.  After a moment, some policemen arrived and comforted me.  Having thought it over, I put down the lighter and the bottle …”.

6.We are informed that this record of interview was not in the hands of the court but that it was in the hands of prosecuting counsel and it was also in the hands of those advising this applicant.

7.When the matter came before Deputy Judge Mierczak in the District Court on 30 June 2005, the applicant pleaded guilty and mitigation was advanced.  In the course of mitigation, it was suggested that in her state of upset created by her husband’s conduct the applicant could not sleep the night before and in the early morning “she suddenly came up with the stupid idea of splashing some petrol, threaten to set fire on the house, that may cause him to speak to her directly.”

8.The judge adjourned the sentencing process for the purpose of reports.  Three reports were prepared: a psychiatric report, a report from a psychologist and a background report.  These were before the court when sentencing took place on 15 July 2005.  On this occasion, the applicant was again represented.

9.The background report contained the following account of the applicant’s assertion as to what had happened and what she had intended:

“On the material date, she brought along her daughter to depart for Hong Kong to find her husband.  Allegedly, to avoid him to escape again, she had brought a chain and she planned to lock him up.  She said that she brought the gasoline and the lighter with a view to force him to tell the truth.  She insisted that she only wished to threatened him without intention to set fire.” (Emphasis added).

10.The report by the psychiatrist contained the following passage:

“She went to Hong Kong the next day but before that she had bought two bottles of petrol.  On the chain, she said he often locked the door with a chain in order to let her in when theyquarrelled.  What she intended this time was to repeat what he had done on her before.  She thought this was fairly normal at that time.  On the purchase of petrol, she said she just wanted to scare him.  On arrival of where her husband lived, she had called him repeatedly but he did not answer the call even though she knew that he was inside the cubicle.  She became more and more emotional and angry.  She threatened that she could pour petrol on to the cubicle and set it on fire if he still did not open the door.  Security guard was present when she said this and soon the police also arrived.  She knew that her husband had called the police.” (Emphasis added).

11.The report by the psychologist stated, as to what she had been told by the applicant, that:

“She admitted that she did bring along a lighter and had threatened to kill him by setting fire.  However she explained that she just wanted to threaten him with no real intention to set fire.”

12.The statements we have highlighted in italics in the mitigation, in the police interview, and particularly in the three reports before the court on 15 July 2005, carry an obvious theme in what the applicant was saying, namely, that she had no intention actually to set fire to the premises – let alone to do so with an intention to harm or being reckless as to whether harm would be caused – but intended, rather, to frighten her husband.  In these circumstances and given that there was no evidence that she actually sought to set fire to anything, it is difficult to see how the plea to a charge of attempted arson with intent could safely be allowed to stand.  In this regard one might note in addition that, according to the summary of facts, some considerable time elapsed after she arrived and poured petrol at about 7.35 in the morning, and the arrival of the police at ten minutes past eight in the morning during which time she knew full well that her husband had called the police and during which time no attempt was made by her to set light to anything.  There is also evidence that the applicant, whilst standing outside the door, herself called the police, evidence highly suggestive of the proposition that she intended to do no more than to make threats, but this latter fact cannot go to the issue whether the plea was equivocal because it was not a fact that was before the court below.

13.We do not know what advice this applicant was given by those representing her at trial but we are puzzled by the fact that the plea was offered, and even more puzzled by the fact that after the reports were in, there was no application on her behalf that she permitted to change her plea.  We have no doubt but that had one been made, it would have been allowed.  Even assuming that there may, on one view, have been insufficient material on 30 June in the mitigation to query the propriety of the plea, there certainly was sufficient on 15 July, in each of the three reports.

14.A conviction is not complete until sentence has been passed: see S v The Recorder of Manchester [1971] AC 481, 506 referred to in Secretary for Justice v Yuen Lit-ping 1998 HCAL No. 77, 15 December 1998, unreported and in our view the court below ought, at the latest by the time the reports had been read, have been alerted to the fact that what was being said by the applicant was inconsistent with her plea, and ought then to have raised the matter with the solicitor for the applicant.  It is disappointing that neither counsel for the prosecution nor the solicitor for the applicant recognized that the facts before the court, namely, prolonged presence with no attempt to ignite anything, combined with these various statements to the effect that the applicant had intended only to scare, with no intention actually to set fire, were not alerted to the possibility that there may have been no attempt at all.  It is also disappointing that those to whom an application was first made for legal aid in relation to this application for leave to appeal against conviction missed the point and refused legal aid, so that it fell to the single judge to be alerted to the fact that the basis of her plea of guilty was singularly shaky, and had himself to grant legal aid.

15.Ms Wong, for the respondent, very properly concedes that the conviction should not be allowed to stand, and we agree.  She accepts that even at the initial stage when it was asserted in mitigation that the idea on the applicant’s part was merely to threaten, the plea took on the character of an equivocal one.  Mr Acton-Bond, for the applicant, to whom we are indebted for his conscientious assistance, suggests that the charge was misconceived and that it would have been more appropriate to charge an act of criminal intimidation contrary to section 24 of the Crimes Ordinance.  In that suggestion, he is clearly correct.  Those who might think that all this is rather technical – one offence instead of another – would wish to reflect on the fact that arson carries a maximum term of life imprisonment and criminal intimidation a maximum term of five years’ imprisonment.  In the event, the respondent does not seek to have a fresh charge preferred and does not invite this Court to remit the matter to the District Court for a fresh plea to be taken.  Given the history of this case, including the fact that the applicant has already served time in prison; that her husband has been anxious on her behalf, emphasizing the great stress under which she acted and himself consistently insisting that it was obvious to him that the applicant intended to threaten only; and given that she in fact herself telephoned the police before they arrived, the course Ms Wong proposes is acceptable, though we do not hereby condone what the applicant did.

16.In the circumstances, we grant the applicant leave to appeal out of time against conviction, treat the hearing of the application as the appeal, and quash the conviction.

Ms Wong Kam Hing, SGC of the Department of Justice for the Respondent

Mr Jonathan Acton-Bond instructed by Messrs S.H. Chan & Co., assigned by DLA for the Applicant