HKSAR v. YEUNG SZE SZE

CACC 306/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 2000

(ON APPEAL FROM DCCC 336 OF 2000)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was charged with one count of arson, contrary to section 60(1) and (3) and 63(1) of the Crimes Ordinance, Cap. 200.

2. Particulars of the offence were:

"YEUNG Sze-sze, on the 11th day of June, 1999, without lawful excuse, damaged by fire KMT Securities Limited, Rooms 1103 - 1104, General Commercial Building, Nos. 154 - 156, Des Voeux Road Central, in Hong Kong, the property belonging to LAI Kang-po intending to damage such property or being reckless as to whether such property would be damaged."

3. After a trial in the District Count before H.H. Judge Wright she was convicted of the offence and sentenced to 4 years imprisonment. She originally sought leave to appeal against her conviction and sentence. The application relating to sentence has been abandoned and is accordingly dismissed.

4. It was a remarkable case as the applicant prior to the commission of this offence was a person of good character and appeared to have no motive to commit the offence.

5. She was aged 35 at the relevant time and employed as a clerk with KMT Securities Limited the company named in the particulars of offence.

6. Shortly after 8:00 pm on the evening in question an employee of a company which had an office on the floor above KMT's office informed the watchman in the lobby of the building that she smelt something which seemed to indicate that there was a fire in the building. The watchman gave evidence that he walked around the offices from the 12th floor to the 10th floor and did not see anything untoward.

7. Shortly following this the watchman saw the applicant leaving the building. They exchanged pleasantries.

8. A short time later police officers came into the building saying that they wished to conduct a routine patrol of the building. They then proceeded to do so. They saw smoke emanating from KMT's premises and summoned assistance from the fire brigade. They forcibly entered the premises and extinguished the fire. The officer in charge of the operation suspected that the fire may have been started deliberately as there were three separate sites where the fire had started and it appeared that a fire accelerant had been used. It transpired that considerable damage was caused by the fire. It was estimated that the cost of reinstatement would be approximately $410,000. Mr Lai Kang-po a director of KMT gave evidence that the company was able to recover $350,000 from the insurer of the premises.

9. Mr Cheung from the government chemist's office inspected the premises the next day and prepared a detailed report. The conclusions reached in the report supported the initial suspicions that this was a case of arson.

10. The applicant was approached by the police and interviewed. Initially she denied that she had been at KMT's office during the evening of 11 June 1999. She claimed to have been with her boyfriend Mr Lai Yam-yuen. It would appear that when he was not prepared to go along with this she then changed her story. She admitted that she had gone to the office at about 8:00 pm to collect some documents relating to her divorce as she planned to see her solicitors the next day. The explanation she gave for lying to the police in the first instance was that she was afraid of "trouble". This was not particularised.

11. She did however agree to police officers attending at her residence and collecting the clothes which she had been wearing on the evening of 11 June 1999. The clothes were collected and subjected to a forensic examination by the government chemist. Toluene which is an accelerant was found to be present on the shoes, dress, skirt and jacket seized.

12. Mr Cheung gave evidence that there must have been direct contact between the clothes and the toluene. It was only "very remotely possible" that the toluene found on the items of clothing could have come about consequent upon indirect contact.

13. The applicant made three cautioned statements to the police. The first was the statement already referred to in which she admitted that she had lied to the police when she had initially denied being at the premises on the evening of 11 June 1999.

14. The other two statements were made some months later. In the statements she deals with the question of the toluene found on her clothing. She surmised that a possible explanation for its presence could be that her boyfriend Mr Lai had been undertaking decorative work shortly prior to 11 June 1999. She had been present at his flat at that time. She had come into physical contact with Mr Lai and this may have accounted for the toluene being on her clothing. Having regard to the evidence of the government chemist the Judge was not prepared to accept this explanation.

15. A further matter she dealt with was five telephone calls made to the lobby of the building round about 8:00 pm on 11 June 1999 on her sister's mobile telephone. She admitted that at the relevant time she had been in possession of the mobile telephone. She said that she had been attempting to telephone a friend. The Judge rejected this explanation it seems largely on the basis of the information provided by the telephone company which indicated that the number called was the number of the telephone at the console in the lobby. This was the other lie which the Judge referred to in his reasons for verdict.

16. The applicant did not give evidence at her trial nor did she call any witnesses. The Judge was prepared in the circumstances to draw the irresistible inference that it had been the applicant who had started the fire and convicted her as charged.

17. The first ground of appeal has been abandoned.

18. The second ground is that the Judge wrongly drew an adverse inference against the applicant from her election to remain silent.

19. There is no merit in this ground. The Judge was fully entitled to weigh this matter in the balance. It has been held in a number of cases that where a person may be able to provide an explanation but does not do so a court may more readily draw adverse inferences against them. See HKSAR v Choi Gin-ngon and Others [1998] 1 HKLRD 902, Lam Tsz-wah v R [1984] HKLR 54, R v Sung Shui-sing [1962] HKLR 587 and R v Sharmpal Singh [1962] AC 188.

20. The third ground is that the Judge wrongly ruled out the possibility of how toluene may have been on her clothes.

21. All that needs to be said in relation to this ground is that it is apparent from his reasons for verdict that the Judge gave the most careful and meticulous thought to this and held on the basis of the forensic evidence that the applicant's explanation was not tenable.

22. The fourth ground is that the Judge wrongly rejected prosecution evidence which was favourable to the applicant.

23. It has to be said immediately that the evidence, being the evidence of her boyfriend and her employer, was of a peripheral nature. The Judge gave cogent reasons for rejecting the evidence. There is no merit in this ground.

24. The fifth ground is that the Judge failed to consider the fact that a number of other people had access to the premises on the evening of 11 June 1999.

25. The answer to this is that he did nothing of the sort. He was fully mindful of this fact. He did however consider the case on the evidence which was before him and he was satisfied at the appropriate level that the charge against the applicant had been proved.

26. For the reasons given, the application is dismissed.