HKSAR v. GURUNG SHIBAKUMAR

CACC 98/2020

[2023] HKCA 1194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2020

(ON APPEAL FROM HCCC NO 317 OF 2019)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 30 June 2020, following a trial before Li J (the judge) and a jury, the applicant was convicted by a majority of 5 to 2 of two counts of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212.  On 2 July 2020, he was sentenced to a total term of 16 years’ imprisonment.

2.  On 22 July 2020, the applicant filed an application for leave to appeal against conviction, which the Single Judge refused at the leave hearing on 16 February 2022[1].  On 4 May 2022, the applicant filed a renewal application for leave to appeal against conviction, which was nine weeks out of time.  

3.  Having had legal aid refused, the applicant appeared in person at the hearing of the renewal application out of time.  At the conclusion of the hearing, we refused the renewal application out of time and dismissed his appeal against conviction.  We said we would hand down our reasons for our decision in due course, and this we now do.   

The prosecution case

4.  At about 12:50 am on 3 December 2017, a fire broke out in four huts, Huts 80, 81, 82 and 83, on a lot of land in Tin Sam San Tsuen, New Territories. At 1:02 am, a report of the fire was made to the Fire Services Department and firefighters attended the scene at 1:10 am.  At 1.41 am, the fire was brought under control and eventually extinguished. 

5.  A preliminary investigation revealed that four huts had been damaged by the fire, with Hut 83 being the most severely damaged.  An elderly married couple who occupied Hut 82, Mr Chan Ka Mok (the deceased in Count 1) and Ms Zhu Hong Xia (the deceased in Count 2), were found dead in their hut, having sustained extensive burns.  Their cause of death was certified to be the “adverse effects of fire with inhalation of fire fumes”[2].

6.  The couple rented Hut 82 from Mr Tang Wing Luen (PW1), the manager of the property.  Mr Tang also rented out the other three flats to Ms Liang Yulan (PW3), who occupied Hut 81 and subdivided Hut 83 into five rooms, renting Room 4 to the applicant.

7.  Since June 2017, Mr Tang had not been receiving rents from Ms Liang for Huts 80, 81 and 83[3]. He, therefore, cut the electricity supply to those huts but later found that Huts 82 and 83 were abstracting electricity from street supply cables above the roofs of Huts 79 and 80 with dangerous wiring and no fuse[4]. Although there was a junction box in Room 2 of Hut 83, there was no evidence that abstracted electricity was wired to that junction box.  He made a report to the police and later hired a local “bully”, Mr Chan Wing Go (PW2), to take possession of Huts 80, 81 and 83[5].

8.  Mr Chan testified that on 1 December 2017, he locked the main gate of Hut 83 with a chain and a padlock; he asked the occupiers of Huts 80 and 81 to vacate the premises, although in the end he allowed them extra time to do so[6]. In repossessing Hut 83, he found rubbish and odd items in the subdivided rooms[7]. There was no dispute that a junction box was installed inside Room 2 of Hut 83[8]. However, it was not found after the fire.    

9.  At the material time, the applicant was an occupant of Room 4 in Hut 83[9]. On 23 November 2017, he was admitted to Ward A8 of Tuen Mun Hospital for an infected wound on his left hand, which required surgery and follow up treatment[10].

10.  CCTV footages[11] revealed that at about 8:22 pm on 2 December 2017, the applicant left Tuen Mun Hospital and arrived at Tin Sam San Tsuen at about 12:24 am on 3 December 2017.  At about 1:00 am, he was seen running away from Tin Sam San Tsuen and returned to Tuen Mun Hospital at 1:21 am. 

11.  On the morning of 3 December 2017, the applicant was arrested in Ward A8 for arson and the death of the two occupants of Hut 82.  When asked about the matter under caution, he replied in Punti: “I don’t know”[12]. Amongst the applicant’s personal items, the police found a 430 cc bottle of 75% isopropyl alcohol, which only had 280 cc left in it[13].

12.  The applicant took part in three video recorded interviews with the police, and took no issue with their admissibility at trial[14]. In summary, he denied setting fire to the huts.  He admitted being in default of his rent for three to four months, and was told to move out by 28 November 2017.  On the night of the fire, he said he had returned to his room to take some clothes[15]. He had spoken to his neighbor who occupied Hut 80, Ms Liza Reswati (PW4), just before the fire broke out.  He had to hurry that night because he wanted to catch the last train to get back to the hospital so as not to miss his scheduled injection. He also explained that he had a bottle of 75% isopropyl alcohol to clean his wound[16].

13.  Ms Reswati lived in Hut 80 with her daughter and some other tenants.  She said that the applicant had come back to retrieve some personal items from Hut 83 before coming over to speak to her[17]. Although it had not been mentioned in her previous witness statements, she testified in court that the applicant asked her to wake up her daughter so that he could take her to the nearby playground, which she found to be a strange request[18]. She then saw that a fire had broken out at Hut 83.

14.  Amongst the four huts, Hut 83 was most severely damaged by the fire. According to Senior Station Officer Yim Kin Wai (PW7), the first firefighter to arrive at the scene, there were three seats of fire inside Hut 83 and they were about three meters apart.  He observed that the partition of the rooms had collapsed.  After the fire was brought under control, he conducted an investigation and found that the fire had spread at an unusual speed[19]. He was not aware of any illegal abstraction of electricity at the scene at that time[20].

15.  Dr Wong Koon Hung (PW10), a forensic scientist and chemist, attended the scene at 11:10 am on 3 December 2017, and completed his investigation at 1:30 pm the same day.  He found that the most severe damage was at Hut 83.  From the direction of the fire spread and the extent of the fire damage, he concluded that the seat of the fire was at the northeast corner of Room 2 of Hut 83.  He found no evidence of smouldering material, faulty electrical appliances or the remnant of an electric wire to be the cause of the fire.

16.  As to the abstraction of electricity as a cause of the fire, Dr Wong did not find severe damage at the abstraction points as one would expect.  He noted that there was no abstraction point at the junction box of Room 2, although it was possible there was an electricity fault that would have caused the fire[21]. He was of the view that the possibility the fire was deliberately lit could not be eliminated because of the combustible materials inside Room 2.  He said spontaneous combustion was not a cause as there was no evidence of flying ambers.  He explained that 75% alcohol is a flammable liquid which could set on fire.  Although there was no alcohol found on the applicant’s clothing or at the scene, he said this may be due to the alcohol having vaporised or burned out completely[22].

17.  Mr Chan Kim-man (PW11) is the Divisional Officer of the Fire Services Department.  He had extensive experience in firefighting operations and had compiled many reports involving fires.  He arrived at the scene at 5:32 am and stayed there until 2:16 pm.  He concluded that the fire was set by a deliberate act using accelerant, and that all other possible causes could be eliminated[23]. He agreed with Officer Yim that there were three seats of fire, and he accepted that a seat of fire was not necessarily the origin of the fire.  He considered that the three seats of fire had been deliberately lit because each one was 3 metres apart.  From his analysis of the fire damage, he was sure that the spread of the fire was not normal[24].

18.  Mr Chan found some electric wire at the scene, but the metal component had not melted.  He concluded that the chance of electrical fault or a short-circuit was the cause of the fire was not high[25]. He did not find any evidence of a smouldering fire or any source of spontaneous combustion.  He considered and rejected the abstraction of electricity as a cause of the fire, giving reasons for his view.  He did not find a junction box at the scene, and whilst he could not rule out the possibility that the junction box was a cause of the fire, the chance was slim[26].

19.  It was the prosecution case that the fire was the result of a deliberate act by the applicant, seeking revenge because he had been evicted from his hut. 

The defence case

20.  The applicant did not testify but called an expert witness, Dr Xinyuan Huang (DW1), a combustion scientist and fire protection engineer, in his defence.  Dr Huang expressed the view that the prosecution experts might have erred in their opinion in finding three seats of fire and the exact time when the fire first broke out[27]. He accepted it was possible that the fire was caused by a deliberate act with an accelerant, but there was insufficient evidence to make this conclusion since the start time of the fire was uncertain, and the fire spread was not unusually quick[28].

21.  Even though no remnant of a junction box was found at the scene, Dr Huang considered that an electrical fault due to the dangerous wiring for abstraction of electricity would be the more probable cause of the fire because of the presence of a junction box and combustible materials inside Room 2 of Hut 83[29]. He added that possible causes of the fire included smouldering of a discarded cigarette butt, a faulty battery of a mobile telephone, and overloading and overheating of electrical appliances[30]. However, he accepted that if there were three seats of fire it was difficult to have three electrical faults at the same time.  He also accepted that as Hut 83 had been vacated, there was a lower chance that the fire was caused by a discarded cigarette butt or an electrical fault[31]. However, he was of the view that the electricity abstraction was a major cause of the fire[32].

22.  The defence also disputed the credibility and reliability of Ms Reswati’s evidence, particularly her account of the applicant’s conduct during his visit to Hut 80 that evening.  Ms Reswati was cross-examined on the basis that she lied about the applicant acting “strangely” in asking to take her daughter to the park at that time[33].

The renewal application

23.  The applicant was nine weeks out of time in filing the renewal application. He explained in an accompanying affirmation[34] that after the Single Judge refused his leave application, Stanley Prison was “put under lockdown for over two months” due to COVID-19, and he was “placed under quarantine”, having tested positive for the virus.  As a result, he could not make the renewal application in time.  In another letter dated 27 March 2023, he gave a similar explanation but added that due to his “inability to read and write English” and being “completely unaware of the court procedural system”, he was unable to proceed with the application in time until a fellow inmate agreed to assist him.    

24.  The applicant confirmed[35] that he would rely on the two grounds of appeal argued by his counsel before the Single Judge[36]. 

25.  In HKSAR v Yim Shek-wo[37], we set out the relevant matters that should be considered in deciding whether to grant leave to appeal out of time. 

“51. In R v Wong Kai Kong & Anor [1990] 1 HKC 279, it was held that in considering whether leave should be given to appeal out of time, a court will take into account: (i) the length of the delay; (ii) whether the applicant has a reasonable explanation for the delay; and (iii) whether sufficient grounds of appeal are shown. In determining whether to grant leave, it was open to the court to look at the grounds of appeal to check that by refusing leave to appeal, it was not shutting out a substantial and plainly arguable ground of appeal.

…

  53. The procedural time limits to apply for leave to appeal are imposed for good reason and therefore ‘substantial grounds must be shown for the delay’ before an extension of time is granted. It is well-settled that the longer the delay, the more onerous is the duty on the applicant. …”

26.  It was argued by the respondent that the applicant failed to provide justification for the delay.  The deadline the applicant had to meet to file a renewal application was 2 March 2022.  He was put under quarantine from 11 to 29 March 2022 as a first contact and later as a COVID-19 patient, but he was allowed to send or receive documents during his quarantine period via the Correctional Services Department.  Furthermore, any claim of lack of understanding in English or of the court procedures was unfounded, as the Single Judge refused him leave at the hearing in which he was legally represented and assisted by an interpreter.

27.  We do not accept the applicant’s explanation for the inordinate delay in instituting his renewal application because the Single Judge’s reasons in refusing his leave were explained to him, and he had ample opportunity to file a renewal application before he was quarantined and contracted COVID-19.  We have nevertheless considered the applicant’s renewal application on a provisional basis to determine whether a substantial and plainly arguable ground of appeal is not being shut out.

The ruling of a case to answer

28.  The first ground averred that on the totality of the evidence of the prosecution witnesses, namely the civilians, the firefighters and the expert witnesses, the applicant deliberately setting the fire was not an inference that a reasonable jury properly directed could, may or might draw.  It was alleged that the judge erred in law and in fact, in finding that the applicant had a case to answer on both counts[38].

29.  At the end of the prosecution case, the defence made a no case submission.  After hearing submissions from the parties, the judge ruled:

“Whether the prosecution could prove its case is a matter of credibility of various prosecution witnesses, in particular Lisa, PW4, Officer Yim, PW7, Dr Wong, PW10 and Officer Chan, PW11.

It is a matter for the jury, having considered all evidence, to decide at the end of the trial. As to the various possibilities of the cause of fire, it is also for the jury to decide whether there is evidence sufficiently substantial that did raise a reasonable doubt.

  All these above issues are suitable, at this stage, to be left to the jury.  I therefore rule there is a prima facie case to answer for each charge.”

30.  At the leave hearing, it had been conceded by counsel representing the applicant that there was no complaint about the directions given to the jury by the judge, and thereafter, the jury returned a guilty verdict against the applicant on the two counts he faced.

31.  Since the leave hearing, the Court of Appeal handed down its decision in Re Secretary for Justice‘s Reference (Nos 1-3/2021)[39], in which Macrae VP, giving the judgment of the Court, restated the established principles that a no case to answer submission was a question of law to be decided by the judge only and that the judge should not encroach on the jury’s function as the decider of fact.  He explained where it was submitted that there was no case to answer in a case involving circumstantial evidence, the question was whether it was properly open to the jury to reach the inference contended for by the prosecution.  If there was an inference of guilt which was reasonably open to the jury to draw, the case could be left to the jury, notwithstanding there might be another inference consistent with innocence.  He reaffirmed the approach in Attorney General v Li Fook Shiu [40] and R v Galbraith [41]that where a judge was faced with a submission of no case to answer, and the prosecution case depended on an inference or inferences from primary facts, the judge may ask himself or herself:

(i)    was there some evidence that the crime had been committed?  If not, the judge would rule no case or discharge the count in question.  If there was;

(ii)   was the evidence of primary facts of a quality permitting a jury to accept it?  If not, the judge would stop the case.  But if such evidence was of appropriate quality;

(iii)  could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as had to be drawn if all the elements of the prosecution case were to be established?  If the judge concluded that a jury could, may or might so be satisfied, he or she would rule against the submission or application.[42]

32.  The respondent submitted that from the primary facts proven at trial, adverse inferences could, may or might be drawn against the applicant that he had the motive to take revenge for being evicted, he took the opportunity to set fire to the huts, and he fled the scene after setting the fire.  On that basis, a properly directed jury could conclude that the applicant was the person who set fire to the huts and convict him of the charges of manslaughter.  The judge did not err in ruling that there was a case to answer. 

33.  We agreed with the respondent’s submissions.

34.  The prosecution alleged that the applicant deliberately set fire to Hut 83 because he was disgruntled about being evicted from the premises.  It was submitted that the irresistible inference from the evidence was that the applicant deliberately started the fire using the accelerant found in his possession.

35.  There was clearly evidence to rule a case to answer against the applicant, which can be summarised as follows[43]:

(1)  At about 12:50 am on 3 December 2017, the fire broke out at the huts which was fierce and quickly spread.

(2)  Hut 83 was the most severely damaged.  It was observed by Officer Yim that there were three seats of fire, and the partition of the rooms had collapsed inside Hut 83.

(3)  Mr Chan Kim Man, a Divisional Officer of the Fire Services Department, arrived at 5:32 am.  He accepted that there were three seats of fire and that the spread of the fire was unusual.  He excluded smouldering material, electrical fault and cooking as possible causes of the fire.  He was of the view that the fire was deliberately lit and likely by use of an accelerant.

(4)  Dr Wong Koon Hung, a Government Chemist, attended the scene at 11:10 am.  He was of the opinion that the origin of the fire was at the north-east corner of Room 2.  He found no evidence of spontaneous combustion, smouldering fire or faulty electrical appliances.  Whilst there was no trace of alcohol at the scene or from the applicant’s clothing, this could be explained by the alcohol having been vaporised or burnt out.  He could not exclude that the fire was deliberately lit.

(5)  Hut 83 was vacant as the landlord had demanded that all tenants were to leave.  The main gate of Hut 83 had been chained with a padlock at about 6 pm on 1 December 2017.  The tenants of Huts 80 and 81 were also requested to leave but were given extra time to do so. 

(6)  At the material time, the applicant had been hospitalized, receiving treatment for a wound to his left hand.  At that stage of his treatment, he was receiving injections of antibiotics.  Amongst his property at the hospital was a 430cc bottle of 75% alcohol with 250cc left in the bottle.  The doctor who treated the applicant said it was rare to use 75% alcohol for cleaning an open wound, but he had come across patients who had used it for this purpose.

(7)  The applicant returned to Hut 83 at about 12:30 to 12:45 am on 3 December 2017.  He packed his property in Room 4.  He went to Hut 80 to talk to Ms Reswati.  He urged her to wake up her daughter because he wanted to take her to the park.  She felt that this was a strange request[44]. She smelt something burning and heard a crackling sound coming from Hut 83 near Rooms 1 and 2.

(8)  CCTV footages showed the applicant running away from the scene at 1:01 am.  He finally returned to the hospital at 1:21 am. 

(9)  In a video recorded interview, the applicant admitted that he was at Hut 83 shortly before the fire broke out.  He did not stay at the scene because he was in a hurry to return to the hospital.  He had the bottle of alcohol because he used it to clean his wound before he was admitted to hospital.  He had purchased it two months before at a drug store.

36.  There was a case to answer on the above evidence from which the prosecution submitted that the only reasonable inference that could be drawn was that the applicant deliberately lit the fire, resulting in the death of the two deceased.

37.  This ground of appeal was without merit.

The jury’s verdicts were unreasonable

38.  The second ground complained that the jury’s verdicts were unreasonable, or could not be supported on a consideration of the whole of the evidence, in particular, it was Dr Huang’s opinion that an electrical fault at the junction box in Room 2 was a possible cause of the fire, given that an incident of illegal electricity abstraction had been reported.   

39.  At the leave hearing, counsel for the applicant cited the High Court of Australia decision of Pell v R [45] for the proposition that a conviction should be overturned where there is a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof. 

40.  Briefly stated, Pell v R concerned allegations against the appellant, who at the material times was a Catholic Archbishop, of two incidents of sexual assault of two choirboys.  One of the choirboys made a complaint against the appellant nearly 20 years after the alleged incidents.  The other choirboy had since died but had not made a complaint about the alleged incidents.  The appellant was convicted after trial before a jury and appealed against his convictions pursuant to the relevant statutory provision on the ground that the verdicts were unreasonable and could not be supported by the evidence. 

41.  In examining the approach to be taken when considering an unreasonable verdict ground of appeal, the High Court emphasised the functional or constitutional demarcation between the province of the jury and the province of the appellate court[46], noting that it is the province of the jury to assess “the weight to be accorded to a witness’ evidence by reference to the manner in which it was given”[47].

42.  The High Court stressed the different functions of juries and appeal courts, which need to be strictly observed, particularly in respect of a jury’s function in the assessment of witnesses, otherwise trial by jury would become trial by an appeal court:  

“… the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jury subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.”[48]

43.  As explained by the High Court, the court of criminal appeal in determining an unreasonable verdict ground “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable and examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, or nonetheless to have entertained a reasonable doubt as to proof of guilt.”[49]

44.  Accepting that the jury had found the complainant to be a credible and reliable witness, the decisive issue in the appeal was the existence and treatment of other evidence that was inconsistent with the complainant’s account of the incidents, and which was largely unchallenged by the prosecution at trial.  It followed that when considered together, a reasonable doubt must have arisen as to which account was correct. The High Court quashed the convictions on the basis that notwithstanding that the jury found the complainant to be a credible and reliable witness, the evidence as a whole was not capable of excluding a reasonable doubt as to the appellant’s guilt and there was a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof. 

45.  This was an exceptional case derived from an analysis of the totality of the evidence and the particular circumstances of the case.  The issue and circumstances in Pell v R did not arise in the case before us.

46.  In Hong Kong, the Court of Appeal has a similar power to overturn a conviction by virtue of section 83(1) of the Criminal Procedure Ordinance, Cap 221.  The Court of Appeal may quash a conviction on one or more of the following grounds: if the verdict is unsafe or unsatisfactory, if there has been an error of law, or if there was a material irregularity in the trial.  There are an infinite variety of ways that a conviction could be unsafe or unsatisfactory, and therefore the scope of the Court’s discretion is quite wide.  The Court may take the exceptional approach by asking if it has a “lurking doubt” about the conviction.  However, the Court would be reluctant to interfere with the verdict of a jury unless, on an assessment of the case, it has a distinct feeling of unease as to the correctness of the conviction or finds there is a real danger that an injustice may have been done: HKSAR v Ma Ka Kin [50].

47.  We consider that the various statements regarding the approach an appeal court should take in determining an unreasonable verdict ground have been appropriately encapsulated by the test propounded in M v R[51]: the question “which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”  However, an appeal court must “pay full regard” to the jury’s “primary responsibility of determining guilt or innocence” and its benefit of seeing and hearing the witnesses [52].

48.  It was contended that the prosecution case against the applicant alleged that he was motivated by revenge, that he returned to the huts to set them alight, and that immediately afterwards, he was seen running away from the scene.  The applicant’s counsel questioned the evidence in support of the prosecution case, submitting that there was no evidence that the applicant had a specific motive of revenge, that the evidence of Ms Reswati was unreliable, and that the applicant had provided an explanation why he was rushing from the scene in his video recorded interview, namely that he wished to catch the last train back to the hospital but as he missed it, he had to walk back instead.

49.  It is argued that the evidence showed that at the time of the fire, electricity was being illegally abstracted to Hut 83; the wiring in Hut 83 was in a terrible state, and a lot of rubbish had accumulated there, particularly in Room 2 where there was an electrical junction box, which was not found; no alcohol or fire residue was found on the applicant’s clothing; no evidence of an accelerant was found at the scene; and the two prosecution experts could not rule out the possibility that the fire had been caused by electrical fault due to the junction box.  It is submitted that based on this evidence, a rational jury would have entertained a doubt as to the applicant’s guilt for the offences alleged against him.

50.  In another letter dated 5 August 2022, the applicant gave a further account of “what actually happened” in the evening of 2 December 2017.  He claimed that upon arriving at Hut 83, he found the main gate locked and his backpack lying at the main gate[53]. He did not enter the hut, but instead, he took his backpack and dropped by Hut 80 to speak to Ms Reswati before going back to the hospital.  The applicant also accused Ms Reswati of being a “total liar”, who had been against him at the trial as he broke his promise to marry her.  He argued that the circumstantial evidence in the case was very weak and could not support the convictions.     

51.  As already noted, the only evidence adduced in the defence case was the expert evidence of Dr Huang.  He did not attend the scene.  He pointed out that the time when the fire started was uncertain, and may have been between 12:45 am to 1:02 am.  He said by that time the fire may have reached the post-flashover stage (when all combustible materials are on fire), which would make it difficult to determine the seats of fire[54]. He said that the Fire Services Department officers may have been mistaken that there were three seats of fire.  He was of the opinion that there was insufficient evidence that the fire was deliberately lit, but he accepted that such a possibility existed.  He said the more probable cause of the fire was an electrical fault due to dangerous wiring for the abstraction of electricity as supported by the presence of a junction box and combustible materials inside Room 2 of Hut 83. He also identified other common causes of fire, such as smouldering fire due to a discarded cigarette butt or disposed faulty battery and overloading and overheating of electrical appliances.

52.  The judge gave a fair and comprehensive summing-up of the case to the jury.  He fairly summarised the evidence, including an overview of the applicant’s out-of-court statements and the expert evidence presented by the prosecution and the defence.  He instructed them that there were two main issues they had to resolve: (1) what was the cause of the fire; and (2) whether the applicant had deliberately caused the fire.[55]  

53.  It was a matter properly within the province of the jury to resolve the differing expert evidence presented by the prosecution and the defence.  This was an issue that was raised before the jury in the closing addresses by counsel.  Prosecuting counsel highlighted that Dr Huang’s evidence was of limited assistance because his expertise was not in the field of investigations of fire scenes but in combustion science and fire protection engineering.  He submitted that little weight should be given to his evidence[56]. He was critical of the fact that Dr Huang had not attended the scene, and therefore, the evidence of the prosecution experts was preferred because they had carried out a first-hand and detailed investigation of the fire[57]. Defence counsel submitted that Dr Huang’s evidence was relevant as to the possible causes and spread of the fire, particularly in respect of an electrical fire.  He noted that the prosecution experts accepted that they could not rule out the possibility that the fire was caused by an electrical fault[58].

54.  The defence case, particularly the expert evidence, had been challenged by the prosecution and the evidential contentions now raised in the appeal were before the jury to consider and resolve.  We found no basis whatsoever to quash the convictions on the basis that the jury’s verdicts were unreasonable or unsafe. 

55.  Accordingly, this ground of appeal failed.

Conclusion

56.  We were of the view that there was no merit in the applicant’s grounds of appeal and for the foregoing reasons we refused the renewal application out of time and dismissed the appeal against conviction.

[1] [2022] HKCA 347, 31 March 2022, per M Poon JA.

[2] Admitted Facts, at [8].

[3] Appeal Bundle, p 34D-F, J-N.

[4] Appeal Bundle, p 36M.

[5] Admitted Facts, at [3], and Appeal Bundle, p 34P-Q.

[6] Appeal Bundle, p 23H-K.

[7] Appeal Bundle, p 36 M-Q.

[8] Admitted Facts, at [2].

[9] Admitted Facts, at [1].

[10] Admitted Facts, at [12].

[11] Admitted Facts, at [21].

[12] Admitted Facts, at [14].

[13] Admitted Facts, at [15]; Second Admitted Facts, at [2].

[14] Admitted Facts, at [16]-[19].

[15] Transcripts of the 1^st VRI, Appeal Bundle, pp 147-148, 158-159.

[16] Appeal Bundle, pp 71L – 73G.

[17] Appeal Bundle, p 40Q – S.

[18] Appeal Bundle, p 41D – F.

[19] Appeal Bundle, p 46B – J.

[20] Appeal Bundle, p 47I – J.

[21] Appeal Bundle, pp 51P-52B. 

[22] Appeal Bundle, p 52I-K.

[23] Appeal Bundle, p 53Q-S. 

[24] Appeal Bundle, p 54J-N.

[25] Appeal Bundle, p 55K-N. 

[26] Appeal Bundle, p 56A-H.

[27] Appeal Bundle, pp 25A-C, 63T-64E.

[28] Appeal Bundle, p 64E-G.

[29] Appeal Bundle, p 64K-L. 

[30] Appeal Bundle, p 64G-J.

[31] Appeal Bundle, p 66A-D.

[32] Appeal Bundle, pp 67B-G, 78D.

[33] Appeal Bundle, pp 713O-717O, 761B-764M.

[34] The applicant’s affirmation dated 28 April 2022.

[35] By letters dated 12 July 2022 and 27 March 2023. 

[36] Perfected Grounds of Appeal were prepared by Mr Trevor Beel and Ms Priscilla Lau and filed on 2 July 2021.

[37] HKSAR v Yim Shek-wo [2021] HKCA 965, [51], [53].

[38] Appeal Bundle, p 493E-K.

[39] Re Secretary for Justice‘s Reference (Nos 1-3/2021) [2022] 5 HKLRD 886.

[40] Attorney General v Li Fook Shiu [1990] 1 HKC 1.

[41] R v Galbraith [1981] 1 WLR 1039.

[42] Re Secretary for Justice’s Reference (Nos 1-3/2021), at [62], [109], and [110(vi)].

[43] Appeal Bundle, pp 22K-24N.

[44] Appeal Bundle, p 41D-M.

[45] Pell v R (2020) 268 CLR 123.

[46] Ibid., at [37]-[38]

[47] Ibid., at [38].

[48] Ibid., at [37].

[49] Ibid., at [119]. 

[50] HKSAR v Ma Ka Kin [2021] 4 HKLRD 83, at [44]-[48], per Macrae VP.

[51] M v R (1994) 126 ALR 325.

[52] Ibid., at 327-330 per Mason CJ, Deane, Dawson and Toohey JJ.  See also Pell v R (2020) 268 CLR 123, at [38] and [43]-[45]; Dansie v R (2020) 403 ALR 221, at 223-226; Lang v R [2023] HCA 29, at [250]-[251] per Jagot J (Keifel CJ and Gageler J concurring).

[53] This was a different account from what he said in the video recorded interview, that he actually went inside the hut and packed his personal items. 

[54] Appeal Bundle, pp 61I-62B.

[55] Appeal Bundle, p 25I-K.

[56] Appeal Bundle, p 500A-M. 

[57] Appeal Bundle, pp 501D-503Q. 

[58] Appeal Bundle, pp 523M-525L.