HKSAR v. LOK CHI SHING

CACC72/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 72 OF 2003

(ON APPEAL FROM HCCC 224 OF 2002)

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J U D G M E N T

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Hon Jackson J (giving the judgment of the Court) :

1. On 17 February 2003 the applicant was convicted after trial before Deputy Judge Line and a jury of an offence of attempted arson contrary to sections 60(1), 60(3), 63(1) and 159G of the Crimes Ordinance, Cap. 200 and of an offence of arson (contrary to the first three of those sections). The attempted offence of which the jury found the applicant guilty was committed on 20 June 2001 at premises in Sheung Shui in the New Territories. The substantive offence was committed at the same premises nine days later on 29 June.

The trial

2. At trial it was the prosecution's case that the applicant was a debt collector (or agent of such) who went to a debtor's premises and set fire to them. The evidence presented by the prosecution in support of its contention consisted of the following :

(a) video taped confessions under caution by the applicant;

(b) CCTV films of the victim's premises and still photographs from those films which showed (according to the prosecution) the applicant committing the offences.

(c) a distinctive shirt found in the applicant's home which shirt appeared to match that worn by the culprit on 29 June 2001 (and which shirt the applicant told the police that he was wearing on that day at the scene of the crime);

and

(d) evidence that the applicant had gone to the victim's premises prior to the first offence and there met the victim's son.

3. The defence case at trial was that the applicant did not commit either of the offences and that his confessions to the police were not given voluntarily. Furthermore, it was part of the defence case that, whoever set fire to the premises on 29 June, the prosecution could not prove that he had been "reckless as to whether lives of other persons would be thereby endangered".

4. The trial judge commenced his summing up in terms which concisely and helpfully set out the principal issues thus :

"... the issues could not be plainer and it has been a short case.

The prosecution say that the two CCTV tapes show a man committing the two crimes in question. They say that man is the defendant; that he confessed to the police in video recorded interviews that he was that man;, that the defendant possessed the distinctive T-shirt which matched what the man on the tape wore; that the motive of the defendant was the collection of a debt owed to a Mr Li; that the defendant was identified by the son of the house as being a man who had visited the home seeking repayment of that debt.

The defendant says he was not the man in the tapes, that he only confessed to being so as the police threatened and induced him to say what they had taught him; that whilst he had visited the premises, it was only to locate their tenant and to ask him to turn on his telephone so he could contact him directly, and that the T-shirt is not unique or sufficient by itself to convict him.

You may thus think that the case turns primarily on whether the prosecution have proved that the defendant was the man in the CCTV tapes."

5. Following upon his conviction, the applicant was sentenced to a term of four years' imprisonment in respect of the attempt and seven years in respect of the substantive offence, one year of the four-year term being ordered to run consecutive to the seven-year term making a total sentence to be served of eight years.

6. Before us the applicant seeks leave to appeal against his conviction. In his written grounds of appeal he says this :

" I personally think that the lawyer has not done all he could since the lawyer did not raise two important issues. Firstly, regarding the two photographs, one cannot identify whether the person shown on the photograph(s) was I or not. The photograph(s) only showed that there was/were person(s) in the corridor. Why was/were the person(s) in the elevator not shown? Moreover, the lighter and the cotton adduced by the Prosecution did not contain my fingerprints. However, the Judge only listened to the one-sided version of the Prosecution and convicted me. I think that it is very unfair to me."

7. By letter to the Court dated 12 May 2003, the Director of Legal Aid (who was then considering whether or not to grant legal aid to the applicant) helpfully expanded upon those grounds by saying that the applicant was complaining that :

"(a) Counsel did not mentioned in his closing submission :-

(i) that the two photographs developed from the CCTV tapes had shown that there was a person at the corridor and that was not the Appellant;

(ii) that the CCTV tape(s) showing the situation inside the lifts at the building were not adduced by the prosecution;

and

(iii) that no fingerprint evidence on the lighters and cotton was adduced.

(b) Counsel had not objected to the prosecution's invitation to the jury to convict him;

(c) Counsel had not identified in his closing submission the discrepancies between the evidence of the two police officers who gave evidence at trial;

(d) It was unfair to him that Counsel had addressed the jury by saying :-

(i) 'It is not the situation whereby the defendant went to the subject premises as alleged, with gallons of thinner or some inflammable liquid in order to damage the property, or not the situation where we used to see that a large chain was locked to the iron gate .... so that no one can get out';

and

(ii) 'so Madam Lee is correct to say that she didn't see the door was set on fire as such. Of course, it's blackened as such, ..... as seen in photograph number 2 in Exhibit P.25'.

[and that] the Appellant is of the view that by so saying Counsel had misled the jury that the Appellant had admitted committing the offences."

8. Subsequently (on 23 May) the applicant's legal aid application was refused but, prior to that, counsel who appeared for him at trial was invited to respond to the applicant's complaints and he did so. In essence what he said addressing those matters set out in paragraph 7 above - was this :

"a(i) I did invite the Jury to come to the conclusion that there was a doubt as to whether the person appearing in the 2 CCTV films was the defendant (P.223 line P to P.214 line A [of the transcript] refers).

a(ii)&(iii) It is true that I did not mention in my closing speech (a) the situation inside the lifts and (b) that there were no fingerprints lifted in the lighters and cotton. I didn't mention them because the alleged arson/attempted arson occurred at the door of the victim's premises; and the lighters and cotton had been ignited and they had not been examined for fingerprints by the experts.

(b) It is also true that when the learned prosecutor was on his feet and inviting the jury to convict the defendant I didn't stand up to object to his so doing because I considered it would be impolite in the extreme if I did so.

(c) Regarding the evidence of the two police officers. I found there were no glaring discrepancies worth mentioning to the Jury.

(d)(i)&(ii) My purpose was crystal clear. I tried to explain to the Jury that the prosecution not only had to prove that there was a fire set on the wooden door, but also that by doing so the person intended to damage such property and was reckless as to whether the lives of other person would thereby endangered. I then elaborated my submission by referring to experts' evidence, the damage done to the door, the photographs and damaged lighters etc pointing out that if one really intended to damage the property or to endanger lives, the door would be severely damaged or gallons of thinners would be used. If such situation occurred lighters would be severely burnt, but that was not the situation in the present case before them as demonstrated by the evidence given by Madam Lee, the photographs and the experts' reports."

9. It is quite plain to us from all that appears above that the applicant has completely misunderstood both the function of defence counsel at trial and the efforts that his counsel was making on his behalf in addressing the jury.

10. In our judgment what defence counsel said to the jury was entirely appropriate and cannot be the subject of any criticism. No question whatsoever of incompetence arises and it ill behoves the applicant to suggest otherwise.

11. This application being totally devoid of any merit is dismissed and we order that three months of the time the applicant has spent in custody pending these proceedings shall not count towards his sentence according to our powers pursuant to section 83W of the Criminal Procedure Ordinance, Cap.221.