THE QUEEN v. CHOW HON WAI

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JUDGMENT

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Penlington, J.A.:

1. This is an application for leave to appeal against conviction on a charge of arson before de Basto, J., and a jury on the 6th November 1989. There was a second count in the indictment, one of blackmail, but the jury was directed to acquit on that count.

2. It was the Crown's case that in about the beginning of August 1988 the applicant approached one Fung Wai Yan, the watchman of the Hyundai Engineering Construction Company Limited at Shek Wai Tsuen. He inquired "if there had been any trouble from local persons", said he wanted tea money and made enquiries whether Mr. Fung's boss was around. Less than a month later he returned and again asked for tea money, and told Ar. Fung that if it was paid "people going in and out would be safer.". Some 20 days later he again returned. His request for tea money was repeated and Mr. Fung. said he would pass the request on to his boss, a Mr. Tam. Tnere were in all about 6 of such visits. During the course of one of them the applicant was alleged by Mr. Fung to have said "it was lucky for them that their things were made of iron, if they were wood they would all be burnt".

3. The last visit according to Mr. Puny was in January 1989 when the applicant came with a companion and said he wanted $10,000. He asked to speak to Mr. Tam by phone and did so.

4. On the 4th March Mr. Fung came back from lunch at 1:30 p.m. and found the premises on fire. The fire was extinguished and eventually he reported the matter to the police out some three or four days later. He was somewhat doubtful as to the exact date. He put it as the 8th March. This evidence, while raisins grave suspicion as to the applicant, was not enough to found a conviction out toe Crown further relied on two statements made by the applicant when he was arrested on the 8th March. In the first of these he said that "I went to the warehouse to collect tea money but. the watchman said the boss was not in. They said it this way every time. I was very frustrated and so 1 set the guardhouse on fire to warn him to give money to me". He then gave explicit details of how he had committed the arson which destroyed equipment worth some $21,000. The second statement made on the 9th March related to the blackmail offence which we do not have to consider. It was alleged that these statements were not voluntary, had been obtained my threats and a voir dire was accordingly held.

5. Medical evidence was called because the applicant had been taken to Fanling hospital to receive methadone as he is an addict. Some red marks were found on him though they were described as minor by the examining doctor. Evidence was given by the arresting officers and also by the applicant. The officers' evidence was accepted, that of the applicant rejected and the statements were admitted.

6. It was also the case for the applicant which was put to Mr. Fung that the fire could nave been caused by his own negligence - there was evidence of his burning anti-mosquito incense in the guardhouse. It was also suggested to Mr. Fung, and again denied, that he had a confrontation with the applicant who he had accused of trying to steal building material.

7. The applicant has filed lengthy and detailed grounds of appeal. He points to what be alleges were discrepancies in the evidence regarding, for instance, the labelling of cans of inflammatory material which were clearly in the guardhouse. He complains that no proper efforts were made to put the fire out. He alleges that he was identified as being on this scene on the 15th and l6th January when he was in fact in custody. That particular around is not made out. There seems to be no such evidence of him being there on the 15th and 16th January.

8. The Crown's case depends substantially on the confession statement. That was admitted by the trial judge in his discretion and we see no reason why we should interfere with that decision. The statement was a clear and full confession of this crime, and that, coupled with the evidence in relation to seeing Mr. Fung at the premises and making the demands for money that he did, meant that there was a very strong case against the applicant. The minor discrepancies in the evidence. were certainly not such as to make this conviction in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is refused.