Tsoi Tin v. The Queen

CACC000659/1976

Coram: Briggs, C.J. McMullin & Leonard, JJ.

Date of Judgment: 28th September, 1976.

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JUDGMENT

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1. The appellant was found guilty of the crime of arson and was sentenced to eight years' imprisonment. He was tried in the High Court before a judge and jury for two offences, the first of which was wounding with intent to do grievous bodily harm and, on the second count, of arson.

2. The particulars of the first count are that the appellant wounded SO Chun-cheung, and the particulars of the second count are, that the appellant damaged by fire, machines and other property of a knitwear factory with the intention of damaging such property or being reckless as to whether such property would be damaged, and intending to endanger the life of SO Chun-cheung or being reckless as to whether his life would be thereby endangered. He was found not guilty and acquitted on the first count but guilty on the second count.

3. The appellant appealed both against his conviction and sentence.

4. The ground of the appeal against conviction was that the two verdicts were inconsistent.

5. The facts were very simple. The appellant was a worker in the knitting factory. After working hours the watchman, SO Chun-cheung, saw the appellant lying under one of the machines. He woke him up, the appellant thereupon threw a bottle at Mr. SO and later attacked him with a wooden stool causing considerable injuries to him.

6. The appellant then sprinkled the premises with kerosene and set them ablaze. He himself escaped from the consequences of what he had done through a window by the use of a nylon cord. The window was four storeys up and the cord was a very unsatisfactory method of escape since, from the nature of the substance of which it was made, it chafed the appellant's hands badly. He fell and crashed on to the pavement outside the premises injuring himself to such an extent that he had to be hospitalized for a month.

7. Meanwhile, Mr. So had managed to unlock the door and escape.

8. The interesting feature of this case is that no one has suggested any motive for the appellant's acts. He was known to and not an enemy of Mr. So, and was said to be an excellent workman and has a clear record.

9. The defence was that the appellant had taken a patent medicine before he went to sleep which caused him dizziness and that he had fallen down and hurt his head. He awoke to find the premises ablaze and had no recollection of attacking Mr. So or of setting the premises on fire. And evidence to the effect of the particular patent medicine which the appellant said he had taken was put before the jury by agreement between counsel for the prosecution and defence.

10. We think that this was a very unsatisfactory method of dealing with this issue. Evidence should have been called so that it could be subjected to cross-examination, when it could be proved or not proved to the satisfaction of the jury the effect of taking an overdose of such patent medicine, which was the allegation here.

11. However, be that as it may, we think that the jury, after a very careful summing-up, must have reached the conclusion that though there was insufficient evidence to prove that the wounds were inflicted by the appellant on Mr. So with that intent stated in the first charge, they were satisfied that the patent medicine did not cloud his mind so as to prevent him from forming the intent as stated in the second charge to commit the crime of arson.

12. We do not think that this was a case of inconsistent verdicts. We think that the verdict of the jury on the first charge was, to say the least, extraordinary but we think that there was ample evidence on which they could find that he was guilty of the second charge, the charge of arson.

13. We therefore dismiss the appellant's appeal against conviction.

14. The sentence of eight years' imprisonment is, we think, too severe in the circumstances of this case. Taking into consideration the whole of the facts placed before the jury, the clear record of the appellant and the fact that though considerable material damage was done by the fire, no lives were lost, we think that a sentence of five years is adequate. We, therefore allow the appeal to the extent of reducing the sentence of eight years to one of five years' imprisonment.

Representation:

Nahar Singh (D.L.A.) for appellant.

Whetter for crown.