R. v. HO KA FAI and Others

IN THE COURT OF APPEAL

1994, No.370
(Criminal)

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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. The three applicants faced two counts of murder contrary to Common Law. It was alleged in the first count that they had on 24th June 1993 in Hong Kong, together with another person not in custody, murdered Chau Yung. The second count was particularized identically except that the victim was Choi Sun-ho. All three applicants pleaded guilty to manslaughter and not guilty to murder. The prosecution was not prepared to accept those pleas and the trial proceeded before Stuart Moore J. and a jury. In the outcome the 1st applicant was convicted of murder and the other two applicants were convicted of manslaughter. The 1st applicant seeks leave to appeal against his conviction. The other two applicants seek leave to appeal against their sentences.

2. It was the prosecution case that the 2nd and 3rd applicants, at the instigation of the 1st applicant, had entered into a joint enterprise to fire bomb the Chi Oi Home for the Aged in Kowloon on 24th June 1993. Those two applicants threw what were, in effect, molotov cocktails into the front door of the premises while the 1st applicant kept look-out. A fire inside the premises followed and the two victims were killed as a result of inhalation of the fumes. It was the prosecution case that the 1st applicant had recruited the other two and had provided them with funds to purchase the paint thinner which was used as fuel for the molotov cocktails. The unknown person mentioned in the charge had, according to what the 1st applicant told the police, asked him "to get someone to go to the Chi Oi Home for the Aged at Boundary Street to set a fire to scare people".

3. The principal evidence as to the event itself came from Kwan Ling-kuen, one of the proprietors of the Home, who said that she saw two burning bottles being thrown into the home through the iron grille at the entrance. She said that the inmates of the home were mainly elderly and infirm ladies. Another co-proprietor Wong Tsz-sun said that she saw a burning bottle on a sofa about 7-8 feet from the door and was trying to extinguish it with a fire extinguisher when a second bottle was thrown through the door.

4. The 1st applicant in his cautioned statement had said that he had gone to the Home two days before the incident to look at the place. He said that he only intended to scare people and did not expect anyone to be burnt to death.

5. The 2nd applicant in his cautioned statement admitted that he had been asked by the 1st applicant "only to set fire to scare them".

6. The 3rd applicant in his cautioned statement said that the 1st applicant had "asked me to do it" and that he was willing to testify against him. He said that he was told that they would "go to a home for the aged which is under decoration. There is no one inside. All you to do is to throw the bottle of thinner inside". He said later that he had been told by the 1st applicant that "because the Home for the Aged was under decoration (he wanted) to scare them and make the Home for the Aged unable to open for business".

7. The real thrust of this appeal is the submission that the directions given by the trial judge in relation to the cautioned statements of the 1st applicant and the 3rd applicant were, in the particular circumstances of this trial, inadequate.

8. It is acknowledged that the trial judge directed the jury that they must, when considering the case against each applicant, only take into account the statement made by that particular applicant but it is argued that this fell considerably short of what was required. It is submitted that the judge "failed to explain sufficiently the underlying rationale for such direction and/or to properly tailor and apply such direction to the particular facts of the case." That is the first ground.

9. The second ground, which, to an extent, overlaps the first ground, contends that the judge failed to make it clear to the jury that each accused's case "had to be considered separately and in isolation from conflicting accounts given by" other accuseds. Grounds 5 and 6 are also based upon the submission that the direction was insufficient. The other grounds were not pursued in argument before us. Mr. Sarony, Q.C., with him Mr. Loughran, for the 1st applicant, acknowledged that the real thrust of the appeal lay in the first two grounds.

10. He argued that there was a real risk that the judge's direction failed sufficiently to impress the jury with the danger to the applicant should they take any account of the 3rd applicant's allegations against him. It was submitted that the judge had failed manifestly to tailor his directions to the special circumstances of this case and that there was a manifest possibility that the jury might, at the end of the day, having accepted the truth of the version of the 3rd applicant, have allowed it to colour their thinking as to the whole of the evidence.

11. The attack appeared to be two pronged. Firstly it was suggested that the directions were, as they stood, inadequate and that there was a very real risk that they did not bring home to the jury that they must put the statement of the 3rd applicant out of mind when considering the evidence against the 1st applicant. Secondly, it was suggested that, even if the jury understood from the directions that they must put the statement of one applicant out of their mind when considering the evidence against another, as the underlying rationale for their being required so to do not had been explained to them, they might well, at the end of the day, have been incapable of so doing. Indeed, in the final analysis Mr. Sarony seemed to be driven by his own argument to the contention that, given the nature of the conflict between the two statements, the matter could have been properly resolved only by an order for separate trials.

12. The question which this court must answer is a relatively simple one. Were the instructions of the judge such as must have brought home to the jury the limited use to which they could put the statements? The only way of resolving this question is to look at what he actually said to them.

13. On the second page of his summing-up when dealing with the 1st applicant he said:

"And remember what he told the police is evidence against himself but not against the other two in any shape or form."

He said later:

"Now I try to balance the two sides in this case and to make it clear that each defendant is a separate individual. If you were to find the 1st defendant guilty of murder, it would not follow from that that any of the other defendants was guilty; if you were to find the 1st defendant not guilty of murder and guilty of manslaughter, it would not follow from that that the other defendants were to receive similar verdicts. They are all separate. And you all want to decide for yourselves what the proper verdict in this matter is. Is he guilty of murder or guilty of manslaughter? And each defendant is separate and apart."

Again later:

"In the 1st defendant's case it is quite clear from what he admitted to the police that he knew what those premises were because he had been round them. And in that respect his is a very different case to the one in which the other two defendants feature. So you have got to use your sense of judgment."

His principal direction in this regard was as follows:

"As I have told you, not once but several times already, you look at each defendant separately to decide whether he has been proved so that you are sure of it - guilty of murder. And in the course of time, I shall come to the alternative charge which they have accepted of manslaughter.

Depending on your view of the evidence in this case against each of the defendants and bearing in mind that each of them played a slightly different role in the same enterprise, it does not follow that because one is guilty of murder so the others must necessarily be guilty of murder. You are going to have several combinations to look at: maybe none of them are guilty of murder, in which case not guilty of murder; one or two or all three may be guilty of murder and that is going to be for you to judge.

It is very important that you do remember that rule that they are to be looked at separately because what each of them said to the police, which is where the evidence is to be found of what each of them did, is evidence in his case and his case alone.

I am sorry to repeat it. I know that I have said it already several times but it is so important that you do not look at any defendant's interview against another defendant, because the defendant being interviewed was alone with the police in giving his answers, he did not have other defendants present. They were not there able to comment or contradict. And it would be wholly unfair to hold what the 1st defendant said about the other two or the 2nd defendant said about the other two or the 3rd defendant said about the other two against the other two who were absent. Do not, and I know you will not, allow that to affect you at all. Very important that you keep it in mind that the speaker is the person who provided the evidence for or against himself, that does not provide evidence against the others."

He later said:

"You look at these matters against each defendant in turn."

and went on to say:

"But, so far as intention is concerned, you have to be very careful in looking at the intention of each of them before applying responsibility of one to another because you can't do that. If the 1st defendant had an intention to kill or cause really serious bodily injury, it doesn't follow that the 2nd or the 3rd had that same intention, so be very careful to examine the circumstances of each separately to decide his state of mine."

When he came to consider the statements of the applicants he said:

"Now, members of the jury, I was going to turn to the interviews of the defendants and to remind you of certain passages from each of them. And as I told you yesterday, you will want to consider the whole of the statements they made to the police in deciding what the truth of each individual defendant's position is."

He said after dealing with the statement of the 3rd applicant:

"It is human nature that people tend to off-load the blame from their own shoulders on to others. So look at this, as you view the other defendants' interviews, against the 3rd defendant only. Do not allow it to reflect upon another defendant."

Finally when handing a written aide memoire to the jury he said:

"Each defendant is a separate case and therefore, when you come to these pieces of paper that I've provided you with, you will find that they are more or less identical but, because you need to look at each defendant separately, you need to ask the same questions in respect of each defendant separately. And, to emphasise that, I have given you a separate sheet of paper to make sure that you remember that it is important to do just that."

14. We have no hesitation in answering the question we have posed in the affirmative. The directions of the judge were impeccable. On each occasion when he made reference to this matter the direction was clearly and carefully phrased in a way which would have left the jury in no doubt whatsoever as to the limited use to which they could put the statements. We are satisfied that there is nothing in the criticism made of those directions.

15. As to the remaining grounds, which were not pursued in argument, it suffices to say that we do not consider there is any warrant either for the suggestion that the judge conveyed to the jury that he held the view that the applicant had lied to his co-accused when telling them that the premises were unoccupied or for the suggestion that he failed adequately to put the applicant's defence. The application is refused.

16. We turn now to the applications for leave to appeal against sentence of the 2nd and 3rd applicants.

17. When sentencing the 1st applicant to the mandatory sentence of life imprisonment the judge said:

"You had instructed your younger colleagues to use home-made fire bombs containing paint thinner. It is highly probable that you misled them into who might be living at the premises by telling them that there was no one."

The judge in that statement properly reflected the view that must have been taken by the jury of the facts.

18. The judge when came to sentence the 2nd and 3rd applicants said:

"Each of you played - no need to stand - each of you played a full and equal part in the arson attack upon this old people's home.

It was on the 2nd floor of an occupied building. You knew full well there were people in the building because you had hidden from them on the staircase. It is at least possible that each of you was told that the Tse Oi Home for the Aged was not occupied because it was presently under decoration.

It is at any rate only fair to proceed on the basis that that is what you believed but this was one of the most callous and dreadful cases of manslaughter by reason of recklessness, it is possible to imagine, and it comes at the top end of the scale.

The result of each of you hurling a home-made fire bomb into the Tse Oi Home for the Aged, they were constructed like molotov cocktails, is that a helpless old lady of 95 and a severely disabled 87-year-old lady died when they were engulfed in flames. Each of them received deep burns to at least 80% of their bodies and they were given no hope of escape by your dreadful actions.

Ho Hon-chuen, you were prepared to do this for $1,000. Liu King-wai, you were prepared to do it for $200 and the motive appears to have been that you were trying to prevent, on behalf of someone else, those premises opening up as a business.

The person who was paying you to do this will spend the rest of his life in prison. It seems you were not interested in the motives. You were only worried that you were going to be paid.

Well those who think that they can recruit the young to do their dirty work by telling them that they will not go to prison for very long if they are caught on account of their age, can think again."

The judge then went on to refer to R. v. Nedrick [1986] 1 Weekly Law Reports, 1025, in relation to which he said that:

"The sentence passed in that case was upon a man who was not involved in organised crime or acting as a professional. You were being paid to act as professional - although young - professional hitmen."

He said finally:

"I keep in mind everything that I have been told about both of you, both by your learned counsel and from the reports which have been supplied. I especially bear in mind your plea of guilty and the co-operation you gave to the police and it seems some element of remorse which I am prepared to accept was genuine."

He then sentenced each to imprisonment for 12 years. Counsel for the two applicants acknowledge that the preparedness to plead guilty came only after the cautioned statements had been admitted but now urge that, given the pleas, the co-operation and the remorse to which the judge referred and the ages of the two applicants, 20 and 17, the sentences were manifestly too severe.

19. Counsel submitted that the judge had wrongly characterized the applicants as "professional hitmen" and that this had, inter alia, led him to impose a harsher sentence than was called for. It was not a happy choice of words but we are satisfied that, when the whole passage in which the term appears is read, it is clear that the judge meant no more by it than that the applicants were members of a group of paid arsonists.

20. We have given anxious consideration to the submissions of Mr. Mackay for the 2nd applicant and Mr. Souyave for the 3rd applicant. We have no doubt that the trial judge was, and properly, influenced by the fact that whatever may have been the knowledge of the applicants as to the occupation of the premises, they were, there can be no doubt, aware that this was an occupied building in which there were people at the time of the offence. The possible consequences of arson in such circumstances are incalculable. Indeed the danger is not only to the building and its occupants but also to adjoining buildings and their occupants. We find, nonetheless, that the sentences imposed were in all the circumstance, which include a consideration of the willingness to plead and are giving of due weight to the verdict of the jury, manifestly too severe.

21. The applications are allowed. The hearing of the applications are treated as the hearing of the appeals and the sentences are varied, in each case, to imprisonment for 10 years.