YU CHUN MAN v. R.

IN THE COURT OF APPEAL

1993, No. 435
(Criminal)

- Headnote -

Conviction for arson - judge erred in finding as a fact that the applicant's departure from Hong Kong shortly after the arson amounted to "flight" - Dictum of Lord Ackner in R. v. Chan Kwok-keung [1990]1 HKLR 359 at 363 considered. Proviso to s83(1) Criminal Procedure Ordinance applied and appeal dismissed.

IN THE COURT OF APPEAL

1993, No. 435
(Criminal)

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J U D G M E N T

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Litton, J.A., giving the judgment of the Court:

1. The applicant, Yu Chun-man, was convicted on 16 July 1993 in the District Court by Deputy Judge Duggan and sentenced on 6 August 1993 on one charge of arson, contrary to section 60(3) of the Crimes Ordinance. He was sentenced to six years' imprisonment. He was aged 27 at the time of his conviction.

2. The offence occurred at about 4 a.m. on 5 September 1992 when two cans of petrol and paper were set alight at the entrance to Room 2009 Shek Hing House, Shek Lei Estate, New Territories, endangering the lives of the occupants inside. Luckily the fire was put out by neighbours before it engulfed Room 2009; three of the occupants had to be treated for smoke inhalation. There is no doubt that the fire was started deliberately. Its danger to life was obvious. The only question for the judge was whether the prosecution had proved beyond reasonable doubt that the applicant Yu Chun-man was responsible.

Background

3. Suspicion fell on the applicant in this way. Room 2009 Shek Hing House was where PW2 ("Ah Cheung") lived. At the time of the arson a young lady, PW1 Lau King-fan, was living with PW2 in that room. Earlier that year the applicant himself was cohabiting with PW1 in Sai Kung and they were engaged to be married, but two days before the wedding the applicant had a severe motor-cycle accident and was hospitalised for several months. PW1 broke off the engagement and from about June or July 1992 onwards started to cohabit with PW2 at Room 2009.

4. In mid-July 1992 PW1 met the applicant when she went to collect her things at Sai Kung and the applicant asked her to resume cohabitation with him. PW1 refused. There was an exchange of words to this effect: The applicant asked her what if he killed PW2 and she replied that he was crazy. The judge found that this was "spoken in a moment of some emotion" and weighed little in the evidential scale.

5. The applicant persistently asked PW1 to break off her relationship with PW2 and resume cohabitation with him but she refused.

6. On 4 September 1992, the day before the arson occurred, the applicant contacted a travel agent and asked for a flight to Thailand the next morning. We will revert to this piece of evidence later because this constitutes one of the matters complained of in this court.

Events subsequent to the arson

7. The applicant did go to Thailand on 5 September 1992. On 9 September, four days later, he phoned PW2 from Thailand and spoke to him. The contents of that conversation came from PW2, whose testimony as to what the applicant had said on the phone varied from what he, PW2, had told the police. The judge found as a fact that in the course of that conversation the applicant admitted that he had set the fire on the morning of 5 September 1992: a finding which was perhaps not hard for the judge to make, because the applicant's case as put in cross-examination seemed not to have been to deny the admission but to suggest that it was said in bravado or as mere puff. The judge rejected the suggestion of bravado and puff. We have looked at the record of PW2's testimony and, accepting the discrepancy as adverted to by the judge, his finding that the applicant admitted setting the fire seems wholly justified.

8. Given this background, it is not surprising that police suspicion fell on the applicant. The applicant returned to Hong Kong from Thailand on 19 September 1992 and he was arrested at the Arrival Hall at Kai Tak Airport. He was first seen by the Senior Inspector in charge of the case and then by a detective police constable and he made the following admissions:

(1) He knew PW2's address and telephone number.

(2) He knew that PW1 was cohabiting with PW2 at that address.

(3) On the night in question, that is at about 4 a.m. on 5 September 1992, he was in fact at the ground floor of Shek Hing House (Room 2009 is on the 20/F of the building) and he saw a car parked there and saw two men run down from the building and leave in the car.

(4) He did have a telephone conversation with PW2 when he was in Thailand.

This is what the applicant said took place as recorded in his cautioned statement.

"(41)Q: What did you say to Ah Cheung on the telephone?

A: At the time, Ah Cheung answered the telephone. He asked, 'Is it Ah Tan(?)' I answered, 'I am,' 'I am looking for Ah Fun.' Then Ah Cheung said, 'Why did you burn my house? You'd be smart and come out to meet me. If I can't find you. I will kill your father. Prepare yourself for his death.' I answered him 'Let's wait and see'. After saying that I hung up".

Case against applicant

9. That in essence was the totality of the evidence against the applicant. Evidence in a case, whether civil or criminal, is cumulative. In real life a smoking gun is rarely found. The question for the judge was quite simply whether the cumulative weight of all the evidence was such that beyond reasonable doubt the applicant was the perpetrator of the crime. The applicant gave no evidence at his trial but he called an alibi witness who said in effect that at 4 a.m. on 5 September 1992 the applicant was asleep in his house: at least he was asleep at 3 a.m. when the witness went to the toilet, and he was still asleep in the same position in the sitting room at 6.50 a.m. when the witness went to work. But for good reasons expressed in the Reasons for Verdict that witness was disbelieved by the judge.

10. It seems to us that on all the evidence before the court, the case against the applicant was strong.

Grounds of appeal

11. A number of matters in the Reasons for Verdict give rise to concern. They are these: (1) The prosecution relied on three phone calls made to Room 2009 in the early hours of 5 September 1992, within two to four hours of the fire. The caller or callers never said a word. Apart from the fact that the applicant knew the phone number, there was nothing to connect the applicant with those calls. Yet this is what the judge said in his Reasons for Verdict:

"The Crown ask the Court to infer that it was defendant who made the calls. Looked at in isolation that is not an easy inference to draw. However when viewed in the light of all the evidence before me it is an inference that I can and do draw."

12. This is plainly an erroneous approach. There was simply no evidence from which the inference could be drawn. Mr. Pethes who appears before us (but not in the court below) does not seek to support it. The evidence could only have implicated the applicant in the crime if there was something which pointed to the applicant being the caller. An instance might be that the telephone number was unlisted but the applicant was one among very few who knew it. But that was not the case. Obviously, if the applicant was guilty then the inference that he made those telephone calls is easy to draw but this is to presume guilt in the process of evaluating that very question. The prosecution was wrong to have relied on that evidence as implicating the applicant and the judge should simply have disregarded it as of no evidential weight.

(2) The judge found that the applicant's departure from Hong Kong by air on 5 September 1992 amounted to "flight": that is to say, fleeing the jurisdiction, and was therefore evidence in support of guilt. He cited the opinion of Lord Ackner in R. v. Chan Kwok-keung [1990]1 HKLR 359 at 363 to the effect that flight was capable of amounting to an admission of guilt. But that begs the very question. The fact of departure from Hong Kong is itself neutral. Departure only amounts to admission of guilt if the primary facts were capable of supporting a finding of an intention to flee the jurisdiction.

13. In regard to the primary facts they were simply these. The applicant approached the travel agent on 4 September 1992 and asked for a ticket to fly to Thailand the next morning, then to Taiwan and back to Hong Kong. There was apparently some difficulty concerning the entry visa to Taiwan which normally took 14 days to issue; the travel agent said in his testimony that the flight to Taiwan had to be via Hong Kong was because of some pricing problem, and it was he who suggested to the applicant that he should go via Hong Kong.

14. It is not easy to deduce the judge's finding in this regard, but he seems to have made a finding to the effect that the flight back to Hong Kong on 19 September 1992 was simply to ensure that the applicant collected his visa for Taiwan. How the applicant could have done this as a transit passenger was not explained. The applicant's case was that his arrival in Hong Kong on 19 September was a return to the jurisdiction and was consistent with innocence. The judge in his Reasons said he rejected that. We find difficulty in seeing the basis of that rejection.

15. In our view all that can properly be said about the applicant's departure from Hong Kong on the day when the arson occurred is that it was consistent with an intention to flee the jurisdiction. That is the furthest which such evidence could go. The finding which the judge appears to have made, namely that the applicant intended to flee the jurisdiction is not a finding he was justified in making.

(3) The judge at the conclusion of his Reasons said this:

"On the cumulative effect of the evidence as found by me I find the Crown has proved beyond reasonable doubt that it was the defendant who committed the offence. The defence says the weakness in the Crown's case is that if it was defendant who rang three times in the early morning and subsequently set the fire it would mean that he intended to cause harm to PW1 whom he still cared for. It is difficult for the Court to speculate on the workings of the mind of a person who would commit such a heinous offence."

16. This was an unfortunate way for the judge to have expressed his reasons. In the weighing process, before the judge could conclude whether the defendant was guilty as charged it was his duty to weigh the defence case in the scales. For him to say as he did that it was difficult for the court to speculate on the workings of the mind of a person who would commit such a heinous offence was to give the appearance of having prejudged the issue.

Proviso to s83(1) Criminal Procedure Ordinance

17. Plainly this is a case where leave to appeal must be given.

18. The question then boils down to this. Setting aside the pieces of evidence which should not have been relied upon as just enumerated, must the judge properly directing himself on all the evidence have necessarily convicted the applicant? As we have earlier said the circumstantial evidence against the applicant was strong. Even discounting the conversation he had with PW1 in July 1992 when he said "what if I killed PW2", he had plainly made a number of unequivocal admissions. He admitted that he was at or near the scene of the crime at the time in question. He admitted in the course of the telephone conversation that it was he who had set the fire to the premises. In that regard the defence that this was mere puff or bravado was rejected by the judge. Upon all the evidence we are satisfied that no miscarriage of justice has actually occurred and pursuant to the proviso to section 83(1) of the Criminal Procedure Ordinance we would dismiss the appeal.