HKSAR v. CHENG CHUN WAI

DCCC 310/2022

[2023] HKDC 159

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 310 OF 2022

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REASONS FOR VERDICT

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1.  D pleaded not guilty to one charge of arson, contrary to section 60(1)  and (3)  and 63(1)  of the Crimes Ordinance, Cap 200. He pleaded guilty to one charge of possession of liquor for sale without a liquor licence and one charge of person responsible for carrying on a catering business failing to comply with directions of Secretary for Food and Health. These reasons for verdict concerns with the charge of arson only.

The prosecution case

2.  The prosecution case relies on the admitted facts (P1), post-caution admission upon arrest (P10)  and utterances from the video recorded interview (P11 and P12).  The prosecution also called the exhibit officer DPC17661 (“PW1”)  and the forensic scientist Dr Chan Hoi Yiu (“PW2”)  to give evidence in court to prove its case.

Admitted facts (P1)

3.  On 10 August 2021, the police mounted an anti-unlicensed liquor premises operation with a warrant in relation to an unlicensed bar located at Room B3, 1^st Floor, On Lok Industrial Building, Nos 109-111 Yuen Long On Lok Road, Yuen Long, New Territories, Hong Kong (“the Premises”).

4.  At about 2340 hours on the same day, police laid ambush outside the Premises.  The police requested entry into the Premises.  The occupants inside the Premises did not open the door.  Whilst the police were trying to enter the Premises, an explosion was heard inside the Premises.

5.  At 2350 hours, the police finally entered the Premises by force; they saw D and a male standing in the Premises and the DJ stage was on fire.  The fire was later put out by firefighters.

6.  D was arrested and cautioned for arson.  After being cautioned, D stated voluntarily, “I was burning the odds and ends only.  I didn’t expect such a blaze.  I didn’t mean it.”

7.  In the video-recorded interview (“VRI”)  taken on 11 August 2021, D admitted, inter alia, that he burnt expired utility bills (around 10 pieces of paper)  at about 2340 to 2345 hours on 10 August 2021 at the DJ stage in the Premises with a metal container and a gas canister.

8.  The wall (P2 photo 27)[1] connected to the adjacent flat of the Premises collapsed due to the explosion of the canister.  It measured 2.5 m x 10 m.

PW1

9.  The exhibit officer DPC17661 (PW1)  and his party carried out an anti-unlicensed bar operation.  Upon the arrival outside the Premises, two men at the rear staircase was stopped.  The police requested the two men to open the door for them to go in, but they said they did not have the key. 

10.  After the sergeant showed the court warrant, the police gave warning to the occupants within the Premises and said “Police, open the door, otherwise we will break down the door by force.”  There was no response.  Sergeant pulled open the first door by force.

11.  Then there was the second door.  PW1 gave the warnings in his loudest voice.  No one paid heed.  Then PW1 used the braking tool to break open the second door.  After the second door had been opened, they went in and they saw the third door.  It was also locked and was padded with sound insulation material.  Similarly, PW1 gave warning with his loudest voice to the people inside the Premises.  Then PW1 heard a sound of explosion before he managed to make a hole in the middle of the third door.  PW1 climbed in through the hole of the door.  He saw the defendant near the outside of the storeroom (P2 photo 9).  PW1 saw the flame behind a silver colour board (P2 photo 8).  The fire was getting worse and it was too dangerous for PW1 to go behind the board.

12.  PW1 returned to the Premises with the forensic scientist (PW2)  the following day after the fire had already been extinguished by the firefighters. 

13.  Therefore, PW1’s observation as to where objects were placed in the Premises is not an accurate account of where objects were right after the fire.  The objects in the Premises may have been previously moved by the firefighters.

PW2

14.  Dr Chan Hoi Yui (PW2)  is a forensic scientist.  His expertise was not challenged by the defence.  He adopted his expert report in respect of his evidence which was produced and exhibited as P13.

15.  PW2 went to the Premises on 11 August 2021 at 1150 hours.  He made a detailed record (P13)  of his observation within the Premises.

16.  PW2 opined that the metal container and the canister were placed with the top middle shelf of the cabinet on the DJ stage (P2 Photo 63)  because the top middle shelf of the cabinet suffered from the most intense and localized fire damage.  The interior surface of the middle shelf was seriously charred.

17.  Apart from the middle cabinet, fire damage or heat damage can be observed on the stacked sofas as well as the air-conditioner.

The defendant

18.  D stated that he was the boss and person in charge of the Premises.  At the material time, he was drinking with Chung Chai in the Premises.

19.  When Chung Chai went to the toilet, D started to burn the utility bills of the Premises. He did so out of habit and because he did not want his name and address to be disclosed.  

20.  D stated that he had utility bills placed in a metal container and put on the floor on the DJ stage.  He marked the position on D1 photo 1. He started with a gas canister. Then he placed the canister in the middle cabinet (see D1 photo 2)  horizontally with the nozzle facing out.  He thought it was safe to burn the papers in the container at the time as the gas canister was around one meter away from where the fire started.

21.  He further stated that the fire was not strong when he went to get a can of beer from the fridge.  When he went back, he saw the flares had suddenly gone up as high as his waist.  He tried to put out the fire using the water in the toilet but to no avail. The fire even caused the ashes to fly out.  He went to get another bucket of water when the police entered the Premises.  He stated that he did not hear the police come in or shout previously before entering.

22.  D explained that he attached a string with a S-shaped hook onto the gas canister because he can hook it to the refrigerator.  He used this method in order to remind himself of where the gas canister was.  

Analysis of evidence

23.  The burden of proof is on the prosecution to prove beyond reasonable doubt that the defendant had committed the offence in question.  The defendant bears no burden of proof at all.

24.  The defendant is also a person of clear record. In reaching my verdict, I have taken into account the good character directions regarding credibility and propensity.  This also lends support to the credibility of his VRI and his oral utterance.

25.  In this case the prosecution relies upon some circumstantial evidence to prove aspects of the charge: namely that D was being reckless in setting the fire in the premises and in so doing, he was aware of a risk and he was unreasonable to take the risk.

26.  Where there is no direct evidence, such proof may be provided by way of the drawing of an inference.  Such inference must be an irresistible inference and the only reasonable inference to be drawn from the proven facts.

27.  I am satisfied that PW1 and PW2 were honest and reliable witnesses and I have found nothing inherently improbable about their evidence.  I accept that their evidence to be the truth. 

28.  PW2 is an expert in the field of forensic fire scene investigation in relation to the cause of fires. His expertise was not challenged.

29.  The defence only took issue of PW2’s findings that the burnt metal container and the canister were placed at the top middle shelf of the cabinet on the DJ stage. The defence submitted that PW2’s explanation as to why he thinks the metal container and the gas canister could be placed in the way he reconstructed in photo 64 is unscientific and speculative.  His evidence relating to the locations of the metal container and the gas canister should not be relied on.

30.  I disagree. I accept PW2’s evidence that the metal container and the canister were put within the middle cabinet on the DJ stage. It is undisputable and, in fact, that was agreed by the defence in her oral submission that the top middle shelf of the cabinet suffered from the most intense and localized fire damage.  The interior surface of the middle shelf was what charred seriously.  Fire damage of the shelf indicated that the inner end of the shelf has suffered from more severe damage than its open side.  In particular, a burnt pattern was observed at the open side of the bottom panel of the burnt shelf, suggesting that a prolonged and high temperature object could have been placed at that position.

31.  In any event, even if I were wrong in relation to the location of the metal container, in my view, it is immaterial.  The cause of the explosion is the result that D hooked the canister against the edge of the metal container. He left the fire burning and went to the fridge to get a beer. The prolonged heating burst the canister which caused the explosion (see the analysis below).

32.  I have noted the following material discrepancies between the D’s testimony in court and his VRI:-

Evidence in court	VRI
The metal container with burning papers was put on the floor whilst the canister was placed in the middle cabinet. The distance between the canister and the metal container was about one meter apart.	The canister was hooked to the edge of the metal container(entry 77-82).
D burnt the utility bills because there were name and address on them.  D didn’t want anyone to know.  This is his habit to burn them.	D chose not to throw or shred the utility bills because he had not yet got a licence for the bar (entry 145-148).
When D was on the way to get the second bucket of water, he heard a ‘Bong’ sound at the time when the police broke into the premises.  D did not hear the police before they came in.	Police officer broke the door down to gain entry.  D was then asked if he heard the police asking him to open the door, in which he replied that he heard somebody bumping the door.  He did not know who he was at the beginning (entry 122- 132).

33.  Concerning the position of the canister, D was cross-examined that his VRI stated it was hooked to the edge of the metal container and it was totally different from his testimony in court.  However, D did not manage to give an explanation.  He just made a denial of what he had said in the VRI. 

34.  In the course of cross-examination, D was asked by the Prosecution why he did not throw or shred the utility bills. The Prosecution suggested, as what D had implied in his VRI, that because his bar was unlicensed. The question asked was direct and plain.  However, D was evasive and asked the Prosecution to repeat the question again. At the end, he did not provide any explanation but simply repeated his testimony in court that he did not want his name and address to be known.

35.  These contradictions and D’s explanation can assist the court in assessing and analyzing D’s credibility.  In my view, the discrepancies are so material that lead me to doubt the veracity and probity of his evidence. 

36.  D insisted that he did not hear the police when he burnt the utility bill and said it was just coincidence that the police broke in when he was burning the utility bill.  According to D, immediately after Ah Chung went to the toilet, he burnt the bills.  I find there was absolutely no urgency at that point of time to burn the bills.  Having considered his explanation in the VRI that he did not throw or shred utility bills because of his bar is unlicensed and he heard somebody was breaking down the door, in my view, it was no coincidence that the burning of the utility bills coincided with the timing of the forced entry by the police. I can draw an irresistible inference that D heard the police and he immediately destroyed the evidence that showed he was the person in charge of the unlicensed bar. Obviously, this is not a lawful excuse.

37.  I find D’s evidence to be unreliable and incredible.  I reject D’s testimony in court in its entirety.

38.  Judging by the overall evidence, I find the following facts are proved beyond reasonable doubt: -

(i)  D is the boss of the unlicensed bar.

(ii)  D heard somebody bumping against the door of the Premises and had heard them indicate themselves to be the police in loud voice.

(iii)  Upon hearing that the police had wanted to enter the Premises, D burnt the utility bills in the metal container by the canister in order to destroy any evidence that showed he was the person in charge of the unlicensed bar.

(iv)  D put the metal container with the burning papers in the middle cabinet.

(v)  After D set the fire on the papers in the container, then he hooked the handle of canister to the edge of the metal container and allowed the papers to burn. As a result, the canister burst.

(vi)  The burst of the canister resulted a gas explosion. It created a pressure pulse away from the point of origin causing one side of the wall within the Premises which connected to the adjacent flat to slant and collapse.

(vii)  The wall belongs to the owner of the Premises.

39.  I also find D’s explanation as to why he attached the gas canister to a string with a S-shape hook to be improbable and illogical. From P2 Photo 21, two cans of gas canister were put on top of the refrigerator without any string attached. I do not see any reason why the subject exploded canister in question needed to be tie to a string with a S-hook.

The test for recklessness

40.  The Court of Final Appeal in Sin Kam Wah v HKSAR [2005] 2 HKLRD 375, Sir Anthony Mason NPJ propounded a subjective test for recklessness and he stated at 391D that the prosecution has to show that:

“…the defendant’s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk. Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.”

41.  D admits he is the boss of this Premises.  He rented the Premises at a monthly rent of $25,000.  The papers that he burnt on the material date were the utility bills of the Premises under his name. 

42.  From the photo P2, the Premises in question was of considerable scale.  It is well-furnished with sofas and tea tables.  It also equipped with a stage with facilities such as a DJ acoustic panel.  It can provide entertainment to tens of customers at a time.  There must have been some degrees of calculation, planning and investment on D in the management and operation of this Premises.  

43.  I find D as an operator could not run an unlicensed bar with such a scale if his intelligence is below average.  He has adequate ability to differentiate right from wrong and understand the consequences of his act.

44.  The defence submitted that D chose to burn the items in a metal container demonstrates that he had the intention to contain the fire. I disagree.  The fact that D started the fire indoor and then hooked the handle of the canister on the rim of the metal container with burning papers is reckless in itself. It has resulted the bursting of the canister causing an explosion.

45.  Having found that D is an adult with normal intelligence, I find that D had acted recklessly and that he was aware of a risk that the property would be damaged. It was, in the circumstances known to him,  unreasonable to take the risk. 

46.  I find the Prosecution has proved every element of the charge to beyond reasonable doubt.  I convict D for the charge of arson.