THE QUEEN v. WONG MAN-TUNG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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APPLICATION FOR DISCHARGE NO. 1 OF 1996

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JUDGMENT

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1. This is my ruling on this matter. The applicant was committed for trial for the offences of Murder, Wounding and Arson on the 8th day of November 1995, at Eastern Magistracy without preliminary enquiry.

2. On 22nd November 1995 an indictment was preferred by the Attorney-General in respect of three counts of Murder, one count of Wounding with intent and two alternative counts of Arson.

3. On 29 December 1995 the applicant applied, pursuant to section 16 of the Criminal Procedure Ordinance, Chapter 221, for discharge in respect of each of the counts set out in that indictment. The grounds of application were:

4. Firstly, there is no or no sufficient evidence that the applicant had set fire to the premises named in the indictment.

5. Secondly, that there is no or no sufficient evidence that the applicant had been identified as the person who set fire to the premises named in the indictment.

6. Thirdly, there is no or no sufficient evidence that the applicant ever intended that the damage caused by the said fire to the premises named in the indictment, would endanger the life of any person.

7. I accept that the questions to be resolved in respect of an application pursuant to section 16 of the Criminal Procedure Ordinance is one of law not one of fact and that the test to be applied is that set out in Regina v Galbraith {1981} 1 WLR at page 1039 and further considered and adopted in the Attorney-General & LI Fook-shiu Criminal Appeal Number 3 of 1990.

8. Those cases fully and completely set out the principles to be adhered to in the consideration of an application such as this and I bear them fully in mind; in particular the words of Justice Kempster in the Attorney-General & LI Fook-shiu when he formulated the following questions:

9. I have considered carefully the approach I must adopt in respect of the evidence which is, may or might be admissible and accept I must take the evidence at face value, ignoring those portions of the depositions which are clearly inadmissible such as hearsay statements and those portions where the probative value clearly does not outweigh the prejudice.

10. This is not a trial of the matter but where, on the face of the statements before me, I find it clear that a trial judge would not admit a piece of evidence, I have omitted that piece of evidence from my deliberations.

11. I heard counsel for both the applicant and the respondent at some length on evidence which was described as 'similar fact' evidence. I was greatly assisted by counsel and, as I indicated during the hearing, I am not prepared to consider that evidence in coming to my determination on this application.

12. On the face of the documents available to me for my consideration, I have no difficulty in finding that on 11 July 1995, there is evidence that a fire was deliberately set at the doorway of room 515, Yue Shun House, Yue Wan Estate, Chai Wan, using as the accelerant, paint thinner, the principal constituent of which was the component toluene. The fire was set by a male wearing, among other garments, a short-sleeved T-shirt who lit the fire with his left hand. The fire flared abruptly and he was, to some extent, caught by the flames. He was masked and unidentifiable from his appearance.

13. Three people died as a direct consequence of the fire and one person was wounded. No issue was taken in respect of these facts, by the applicant, at their face.

14. The issue lies in whether there is sufficient evidence in the case for the prosecution upon which a jury, properly directed, could be sure that the applicant was the person who set the fire. Mr Chapman concedes that the evidence against the applicant is circumstantial. That evidence in the main, and I do not purport to be exhaustive, is this:

15. That animosity existed between the applicant and the occupants of room 515 which was fuelled by the actions of both parties and which manifested itself in some acts of violence by the applicant. I do not take those acts of violence to indicate a propensity to violence, nor to the acts complained of in the indictment, but view it no higher than an indication of the existence of acrimony, to a higher degree than mild dislike, between neighbours.

16. The evidence of acts of violence by the applicant toward the residents of room 515, together with his letter dated 28 March 1995, indicate the strength of feeling he harboured towards his neighbours. I place it no higher than that, but it is relevant to that extent.

17. An eye-witness to the setting of the fire stated it was lit with the left hand. The brother of the applicant has stated the applicant uses his left hand for many tasks.

18. Upon his arrest the applicant was found to have burn marks to the backs of his hands, to the outer aspect of the left elbow and to the inner side of his right and upper right forearm. These injuries were examined by a forensic pathologist who states, without equivocation, that the injuries are burns and that they were recent at the time of examination on 13 July 1995, two days after the fire. I have had the benefit of seeing photographs of these injuries, and on the right arm there is a straight line ending the burn mark on the upper arm, clearly consistent with the protection at that point, by a short-sleeved shirt.

19. Common sense also indicates that all the burn injuries are consistent with being near a fire that suddenly flares up, as described by the eye-witness. The applicant was taxed with these injuries in an interview, the admissibility of which was not challenged. He claimed to have received the injuries in a fall while hiking on the day of the fire. Doctor WONG Hon-man, a forensic pathologist, states that the injuries could not have resulted from a fall.

20. I have considered whether the statement of the applicant in respect of his injuries which, on the face of it is a lie, is capable of providing support of his identification. Properly directed, a jury would be told of the test set out in R v Lucas (73) Criminal Appeal Reports at page 159. I am satisfied that given that direction, a reasonable jury could determine that the lie was material, deliberate, related to the issues, confirmed by independent evidence and told out of a realisation of guilt, and that it would be proper for them to rely upon it as independent confirmation of his identity as the person who set the fire.

21. Further evidence upon which the prosecution relies is the admission by the applicant of his leaving his room in the same corridor as the fire, just before the fire was seen to be lit. This is, at the very least, an admission of being in the general area where the fire was started.

22. The shoes and socks of the applicant were analysed by the Government Chemist and found to contain traces of a substance largely consisting of toluene. Such traces, argue Mr Chapman, are consistent with the pouring out of paint thinner to start the fire and the splashing onto the lower extremities of the culprit. This must be viewed in the context of the claim by the applicant, to have returned twice to the corridor where he lived during the evening after the fire.

23. The depositions state that the fire was doused in 81 tonnes of water and that the area was cordoned off by the police at the top of each stairway leading to the corridor. And the jury would have to consider whether the shoes and socks were contaminated in either of those visits, if it took place.

24. On the visits, the applicant claims -- oh, sorry --on the first visit the applicant claims to have seen smoke - that's at folio 281 - but the statements indicate that no smoke was present after 6 o'clock, well before the time stated as the visit of the applicant.

25. The statement of the --in his statement the applicant also claims to have seen, "Mr YU's house was on fire." No fire was in existence at the time of either visit, on the face of the papers, nor could a person from outside the cordoned area have determined that it was Mr YU's house, room 515, that was either on fire or had been burnt, given the scene as depicted in the photographs.

26. I hold that a jury would be entitled to infer, upon a proper direction as to inferences, that the toluene traces on the shoes and socks of the applicant came from his presence at the pouring of the accelerant which caused the fire.

27. I have considered all that was said by Mr Mullick in his useful and helpful analysis of the evidence and the material upon which doubts might be found in respect of the evidence for the prosecution. No oral evidence has been heard and the evidence on the papers before me has not been tested by cross-examination. I must look at the material before me, determine what is clearly admissible and, taking what remains at its height which includes consideration of the factual limitations and interpretations pointed out by Mr Mullick, decide whether a reasonable jury, properly directed, could found a conviction upon it. I find that they could. The application is dismissed.