HKSAR v. Ng Chung Wai

CACC000108/1999

CACC108/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 108 OF 1999

(ON APPEAL FROM DCCC 1254 OF 1998)

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Coram: Hon. Nazareth, V.-P., Stuart-Moore, V.-P. & Nguyen, J.

Date of Hearing: 6 July 1999

Date of Delivery of Judgment: 6 July 1999

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J U D G M E N T

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

1. On 1st February 1999, the Applicant was convicted of arson following a trial in the District Court before Judge Wright. The Applicant was sentenced to 4 1/2 years' imprisonment and now seeks leave to appeal against conviction.

2. The case against the Applicant was solely dependent on the evidence of an off-duty chief inspector of police ("the witness") who, at about 9.00 p.m. on 15th October 1998, was driving his car in the vicinity of the Hong Kong Yacht Club's premises near to the entrance to the Cross Harbour Tunnel. The witness noticed thick smoke which appeared to be inside the cab of a goods vehicle which was parked ahead of him and to his left. Just ahead of the vehicle, and other vehicles parked on the left, was the blank wall of the tunnel itself. There was evidence that this section of road was seldom used by pedestrians at that time of the night.

3. As the witness approached the vehicle which appeared to be on fire, he could see that the interior of the cab was on fire. The witness then saw the Applicant come into the roadway from between the front of the burning vehicle and the rear of the vehicle ahead of it in what he considered a "dangerous position". The Applicant was coming from the direction of the nearside of the vehicle.

4. The witness stopped abreast of the burning vehicle and spoke to the Applicant. The judge in his Reasons for Verdict set out what then happened:

"... the Accused told him that the vehicle was on fire, that it would soon blow up and that he, the witness, should go away. The witness asked the Accused whether any report had been made. He confirmed that it had been. The witness himself telephoned and confirmed that assistance had been summoned.

He drove ahead a further 60 to 70 metres and stopped his vehicle. He alighted to return to the Accused who had moved to a position some 20 metres away from the burning vehicle. As he went towards him he observed that the Accused '... jumped up and down and clapped his hands whilst looking at the fire'. The Accused appeared to him to be what he described as '... so excited'. He observed this behaviour for a couple of seconds. When he reached the Accused he still appeared to be very excited and continued to look at the fire. The fire services arrived.

From the time he first saw the fire until the time he alighted his vehicle was approximately a minute. During this time the witness had observed that the Accused was the only person there. There were no other persons ...

When he had first seen the fire it had been inside the cab of the vehicle and, primarily, was smoke. By the time he had alighted his car and returned to the Accused the fire was 'getting bigger' and had started to come out of the cab. On this evidence it is clear that it was increasing in intensity.

He had initially assumed that the Accused was the owner or driver of the burning vehicle. However, the Accused's conduct aroused his suspicions. He started to question his reason for being there: the Accused said that he was looking for someone to tell him how to catch a bus to go to Mongkok. The witness was dissatisfied with this answer and repeated his question. The Accused said that he had come from Southorn Playground (geographically well to the west of the scene) where he had been playing football: the Accused then said that he had come from Victoria Park (geographically to the east of the scene). The witness was asked whether he had formed the impression that the Accused was mentally slow when he had spoken to him. He indicated that he had not.

A Fire Officer and a forensic scientist who attended the scene both expressed an opinion that the origins of the fire were suspicious. On the instructions of the witness the Accused was arrested and cautioned. He was searched. He was found to be holding a cigarette lighter and a packet of cigarettes. He had not been carrying any weapon or tools when seen by the witness.

Subsequent inspection of the vehicle revealed that the near-side rear window had been smashed inwards and that a fire had been started on the near-side rear seat. The forensic scientist opined that '... the fire was likely to have started deliberately by applying a lighted source to some carton papers placed on the seat and upholstery ...'. It is admitted that the vehicle had been parked in that spot over three hours previously and that its doors and windows had been secured.

It is an established fact that the fire had been reported prior to the arrival of the witness. There is no evidence of who made the report. The fact is, though, that the Accused knew of the report. This is a factor to bear in mind when considering his physical behaviour and responses to the witness' questioning."

5. From these facts the judge drew an inference that the Applicant was the guilty culprit. The judge had no other evidence to consider, as the Applicant elected not to give evidence. The judge later, in his Reasons for Verdict at page 11 of the appeal bundle, went on to say in summarising the essential matters against the Applicant:

"... The Accused is seen emerging from between parked vehicles, one of which is on fire, at night in a quiet road: the fire is found to have been started deliberately: he appears from the direction of the point where the fire started: he has means of ignition on him: he continues to behave in singular manner: he is questioned and provides differing, inconsistent answers. The compelling inference, in these circumstances, must be that he started the fire."

6. Mr. Spicer, on the Applicant's behalf, points out that the expert evidence had indicated not that the fire had been started deliberately, but that it was likely to have been started deliberately. On the facts of this case, it appears that there is no practical difference.

7. There is a sole ground of appeal which is that the judge erred in law when he inferred from the proved facts that the Applicant was guilty. In support of this ground, in what are termed the 'particulars', it is pointed out by Mr. Spicer, though not argued at any length in Court today, that passive presence would be insufficient to found a conviction. The Court did not need to be reminded of that.

8. Perhaps more importantly, it was submitted in the second 'particular' to the Grounds of the Appeal, that it was "a reasonable inference from the circumstantial evidence that the Applicant was 'guilty' but it was also a reasonable inference that the Applicant was 'not guilty'". We suppose that what Mr. Spicer was effectively saying was that on these facts the judge could not conclusively draw an inference which was adverse to the Applicant. The judge clearly took the view that there was ample circumstantial evidence on which to draw the inference that the Applicant was guilty and, on uncontradicted evidence of the kind earlier set out, we venture to suggest that it would have been a wholly unreasonable decision to have concluded otherwise.

9. The final particular given to the grounds of appeal is that "a failure to give evidence in these circumstances does not mean that a defendant must be convicted; this case fell into the category of suspicious but not proven". This adds nothing to the application at all. The judge exercised reasoned judgment in coming to his conclusion and the strong prima facie evidence of guilt against the Applicant was left uncontradicted.

10. This is an application without the slightest merit and it is dismissed. For the same reason, namely that this was a wholly unmeritorious application, we shall order that three months of the period of time spent in custody by the Applicant shall not count towards his sentence.

Representation:

Miss Mary Sin, S.A.D.P.P. for D.P.P./Respondent.

Mr. Rupert Spicer inst'd by D.L.A. for Applicant.