Kung Hon-wah v. The Queen
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CACC000593/1982 IN THE COURT OF APPEAL
BETWEEN
________ Coram: McMullin, V.-P., Li & Silks, JJ.A. Date: 7th January 1983. ____________ JUDGMENT ____________ Silks, J.A.: 1. The appellant, KUNG Hon-wah, the first of two defendants at trial, was convicted upon a charge of arson with intent to endanger life - a charge amended in the course of that trial. 2. He comes before us by heave of the single judge to appeal against that conviction. 3. On the 12th January 1982 a homemade petrol bomb was thrown at the general area of the management office at Block B, Yee Tsui Court, Chai Wan - a building owned by the Hong Kong Government. 4. Mr. Lo Shung Ling, an electronic foreman, was waiting close to the boundary wall of a space in front of that office. He was expecting the management staff to return and give him the key of a flat which was under redecoration. 5. A glass bottle hit the wall above him - the retaining wall of a car park - and Mr. Lo saw sparks and fluid on the wall. Mr. Lee Shing Kwan, a decoration worker, was standing a little further away and he heard the bang and saw flames dripping from the wall onto the ground. 6. Mr. Lo, having hooked back, saw a man dressed in blue clothing whom he variously described as appearing to "have thrown something" and as being "in the action of someone who has just thrown something". This piece of evidence was not pursued and it stands, as it were, in blank. 7. Mr. Lo jumped over the boundary wall and gave chase to the man in blue and shouted "Don't run." As he ran Mr. Lo saw another man in beige clothing also running and ahead of the man in blue. 8. Before Mr Lo reached a fence, behind which there were wooden structures and a market, a security guard, attracted by the shouts of Mr. Lo, came from the corner of Block A of the building and joined in the chase of the two men. 9. On reaching the fence Mr. Lo ran out of breath but the security guard, Mr. Li Shu Sun, continued the chase and followed the man in blue as someone had called to him to catch that man. The man in beige disappeared. 10. The man in blue entered the market through a gap in the fence near the wooden structures and at that point Mr. Li lost sight of him. He caught brief glimpses of him at narrow intersections and he waited near a chicken stall. Very Shortly afterwards a man in blue ran out near the chicken stall and was then chased for a Short distance by Mr. Li who caught up with him. The man got out of his upper garment - it is not clear if he heft himself uncovered - and escaped from Mr. Li who was also running out of breath. A bystander came to Mr. Li's assistance and together they ran after and Subdued the man. 11. The police then arrived and the man was arrested. He is the appellant. 12. Mr Mullick, who appears far the appellant in this court, attacks the identification of the appellant as the man in blue seen in the posture of throwing with that of the man Subdued by Mr. Li and the bystander. 13. He says there is a gap when Mr. Lo's man in blue heft the Sight of Mr. Li in the market area and that the appellant was not shown either by irresistible inference or by real proof to be the Same man. 14. The trial judge considered Mr. Li not to be a good witness and further that his identification was "not good". Mr. Mullick complains that, in effect, the trial judge in finding the identification to be correct was Supporting Mr. Li's poor identification by making use of Mr. Li's own evidence when he said the following:
15. We think the trial judge to have been justified in coming to the conclusion he did. He accepted that Mr. Li's identification was not good, he directed himself on the special need for caution in circumstances such as these, he bore in mind that Mr. Li knew nothing of the bombing and thought the runner was a robber and he also had clearly in mind the issue which it was necessary for him to decide. In the much quoted Turnbull(1) appears this passage - the reference being to one of the examples cited by Lord Widjery, C.J.:
16. We think there to have been sufficient odd unexplained coincidences in the evidence as outlined to constitute supporting evidence of the identification of the appellant as the man in blue seen by Mr. Lo. 17. The second point of the appeal is two fold - first that there was not in any event sufficient evidence of an intent to endanger life; second that, even if there were, the trial judge directed himself on the wrong test of recklessness by using the word "possibly" in one portion of his reasons when dealing with this aspect. 18. On the first point: Mr. Lo was standing, on his own evidence, in clear sight of the bottle thrower. There were other people around the area including the second decoration worker about twelve feet away. The missile hit and "exploded" against the lower part of the car park wall above the area where Mr. Lo was standing. It contained 250 milliliters of red commercial petrol set alight and the flames from it fell from the point of impact to the ground. There was, as the judge said, an "obvious" risk that the burning petrol could spatter upon anyone chose at hand. The prosecution does not have to prove an intent to kill. We think the evidence does provide sufficient proof of an intent to damage property - this is not in dispute - and of the intent by the thrower to endanger life in that he was reckless as to whether he did or did not endanger life by his action. 19. On the second point: the passage complained of it is true did contain the sentence:
20. But this must be placed in the general context of the passage as a whole and when this is done it is abundantly clear, with respect to Mr. Mullick, that the trial judge when he said the following:
did have in mind the essential ingredients of the intent necessary to be proved. 21. In the event the appeal is dismissed. (1) (1976) 3 All ER 549 at p. 553 Representation: John. Mullick, Esq., instructed by David K.W. Tsang & Co. for Appellant. John Bolton, Esq., Crown. Counsel, for Crown/Respondent. |