HKSAR v. LAU KAM WING AND ANOTHER

1997, No.115
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Stuart Moore, J.A. (giving the judgment of the Court):

1. For the sake of convenience, it is sensible to refer to the first and second Applicants by reference to D1 and D2 as they appeared in that order in the court below.

2. On 24th February 1997, D1 was convicted on four counts, counts 2-5 inclusive, following a trial in the High Court before Stock J. and a jury. D2 was convicted on counts 3-5 inclusive. Both Applicants now seek leave to appeal against conviction and D1 seeks leave in addition to appeal against the sentence imposed upon him.

3. The offences, which were closely connected in time and in relation to the events, as they escalated from threats to physical actions, were as follows. Count 2 related to a blackmail contrary to section 23(1) and (3) of the Theft Ordinance, Cap.210, on 21st September 1995, where an unwarranted demand for $54,000 from So Yuk-loi was alleged to have been made by D1 at No.111, Ah Kung Kok Village, Shatin.

4. Count 3 related to criminal intimidation contrary to section 24(b) and (i) of the Crimes Ordinance, Cap.200. The particulars alleged that on 6th October 1995, outside Room 1112, Pok Man House, Pok Hong Estate, Shatin, these Applicants threatened injury to the reputation of To Wing-shan, the daughter of To Fok-ho and Cheung Po-chun, by posting her nude photographs everywhere, with intent to alarm the said To Fok-ho and Cheung Po-chun.

5. Count 4 alleged that the Applicants made a threat to destroy or damage property contrary to section 61(a) of the Crimes Ordinance, in that without lawful excuse they made a threat on 6th October 1995, at the same address as shown in count 3, to To Fok-ho and Cheung Po-chun to destroy or damage their house intending that the victims of the threat would fear it would be carried out.

6. In the fifth and final count on which the defendants were convicted (count 6 was an alternative of reckless arson on which the jury were discharged from returning a verdict and, on count 1, the judge directed an acquittal) the allegation was one of arson with intent to endanger life, contrary to section 60(2) and (3) of the Crimes Ordinance. The date of this offence was 9th October 1995, and it related to the home address premises shown in counts 3 and 4 of the same family who had allegedly been threatened.

7. On this last charge, D1 received a sentence of 13 years and D2 was sentenced to 12 years' imprisonment. All of the sentences in D2's case were made concurrent. D1 received an additional year, making 14 years in all, because the trial judge ordered that a year of the four-year sentence he imposed for blackmail in count 2 should be served consecutively. Bearing in mind the principle of totality, the judge imposed wholly concurrent sentences of 21/2 years and 4 years on counts 3 and 4 respectively.

8. In a very comprehensive summing up by the learned trial judge, the facts of the matter were extensively set out and both the prosecution's case and the case for the defence emerge with clarity.

9. The nature of the prosecution's case was that So Yuk-loi was a young man who was infatuated by a Miss To Fok-ho. However, she had another boyfriend in the form of D1. When the two young men found out about each other, they both became very angry. This forms the background motivation for what the prosecution alleged were the criminal acts of D1 assisted by D2. D2 was essentially entrusted to carry out D1's wishes and did so on counts 3, 4 and 5 on the prosecution's case. There is also a triad background to the offence in count 2 because of the demand by D1 for $54,000 and the particular significance which attaches to that figure in triad circles.

10. In due course, after going out with D1 a number of times, Miss To eventually refused to see him any more. She returned to So Yuk-loi which led to D1 demanding $54,000 from Mr. So. If that was not paid, D1 would get someone to beat him up.

11. D1 was arrested on 23rd September 1995 following a meeting between himself and So Yuk-loi at a MacDonald's restaurant where D1 had arranged to meet So in order to collect $8,000 in cash. Mr. So had tipped off the police who were waiting. This part of the investigation ended with D1 being bailed.

12. On 6th October 1995, D2 was at the home address of Miss To, speaking to her parents about a photograph of their daughter who was to be seen in the picture naked to the waist. The offences of intimidation and threatening to destroy or damage their flat in counts 3 and 4 were then allegedly committed. Two days later, following the threat that the parents' flat would be set on fire, an attempt to do precisely what had been threatened occurred. By pure chance, at 2:20 a.m., when most people might be expected to be asleep, Madam Cheung happened to get up and discovered the fire at her front door, and a bicycle chain locked around the iron grille at her door which prevented all escape. Happily, the fire was quickly put out and no one came to any harm. Madam Cheung, her husband and two sons were indoors at the time of this dreadful offence.

13. At the time of the fire, the evidence was that a certain Miss Wong, who had hired a car in her name, had gone with D1 and two others to a housing estate. There was evidence that it was at this time when the fire occurred. The three young men left the car for about 5 minutes and then came running back to it telling Miss Wong to drive away.

14. In the daylight hours of the same morning, Miss To returned to her parents home and there she could see for herself the results of the fire. She then made telephone calls to D1, and what was said was a matter of record given to the jury. At one stage, it seems that there may have been problem with the tape-recording, but Miss To was able to give oral evidence about other matters discussed with D1 that were highly damaging to his case, even though they were largely concerned with his non-involvement in the fire.

15. There was further material available from a friend of D1 named Tsang Pak-ling, who met both D1 and D2 at a games centre on 9th October 1995. D1 was speaking about how "Fiona" (that is how Miss To was referred to) had been "disturbed" the previous night and how money was going to be collected later in the day. Tsang then lent his telephone to D1 in order to avoid D1 speaking on his own telephone in case that telephone was being taped by the police.

16. The case against D2, whilst there was no direct evidence on count 5 of his involvement, amounted to a strong circumstantial case that he was involved in the fire from his actions before and after.

17. The defence case can be summarized in very few sentences. D1 was saying that he did take photographs of Miss To but he did so without any thought of blackmail. A quarrel took place between them in due course and then she went back to Mr. So. It was Mr. So who threatened to report D1 to the police if he did not return the photographs. There were no threats, there was no blackmail or any intimidation and D1 took no part in the arson. The later telephone call with Miss To which was recorded was part of her attempt to frame D1. At that stage, D1 felt aggrieved and then, but only at that stage, he decided that if he was ever sent to prison his brother should distribute the photographs of Miss To as an act of revenge.

18. D2's defence amounted to a complete lack of involvement in anything which could be described as criminal. However, he did have in his possession one of the photographs which showed Miss To partially naked and, because D1 had been told whilst he was on bail not to speak to the witnesses in the case, D2 took it upon himself to discover what Miss To was up to on behalf of his friend D1. For this reason, he used the photograph to aid his identification of the girl that he was looking for. When he found his way to the flat where she lived, it was his case that he mistakenly allowed the girl's mother to see the whole of the photograph when he showed it to her while he was trying to establish if she was in the flat. Otherwise he had very little involvement in the events of this case and any suggestion to the contrary was untrue.

19. We now turn to the grounds of appeal.

20. D1 has provided extensive grounds in his letter to the court and we deal with these one by one.

21. So far as the first point is concerned, he makes a complaint that the jury on many occasions seemed to fall asleep, not of course the whole jury but some of the jury and, in particular perhaps, the person who occupied the foreman's seat. It is his complaint, therefore, that in a jury that was eventually reduced to six people, it may be that some of the jury missed some of the evidence.

22. We have been given by Mr. Veltro the references during the trial to show that the judge on a number of occasions, at least eight, had to stop the proceedings and give the jury a short break because it was apparent that at least one of its members was feeling the effects of either tiredness or lack of concentration. The transcript indicates that there was a problem with air-conditioning in the court, and that it may have been a very stuffy courtroom. Indeed, the judge even went so far as to try to find another courtroom.

23. It is clear that the judge tried in the most tactful of ways to avoid any embarrassment on the part of any of the jury and, whilst it is not necessary to deal with each of the interruptions caused by lack of concentration on the part of the jury, it may be helpful to deal with what he said to the jury [in the transcript at p.686]:

"Members of the jury, can I raise a matter which has been raised with me. You may remember on the first day, I think it was in the afternoon, I said that we should have the air conditioning turned up. I was a little concerned as to whether the stuffiness of the courtroom in the afternoon was encouraging one particular member to perhaps start feeling tired. That gentleman is not with us, and that matter was remedied anyway. Some concern has been expressed as to whether one of your number has perhaps started to be feeling tired this morning. I've not noticed if he has, it may just be that one or two of you have a manner of holding your head which gives the impression of being tired whereas in fact you are not. I think that you will appreciate that it's extremely important that you are at all times alert. Should the atmosphere in the courtroom become such, or should the passage of time become such that any one of you feels that you are losing concentration, I am sure you'll appreciate how vital it is for you to let me know so we just take a break, or that we can do something about the temperature of the court. I'm sure none of you will be embarrassed to let me know if that happens. It's much more important that you should fully concentrate. It just happens that on some afternoons in particular things can become stuffy."

24. It may well be that that very helpful advice to the jury was not wholly taken on board because there were further instances when one of the jury should perhaps have put his hand up and indicated that he would have liked to have a break. However, the judge did interrupt proceedings and at one stage, which we can find at p.1037 in the transcript, again the judge addressed the jury in a way that was both helpful, and tactfully avoided all embarrassment. What he said was this:

"Members of the jury, I'm sorry to have sent you out, but there's something I need to raise which I hope doesn't strike you as being trivial and mundane in the context of a case which is dealing with such weighty matters, but it's precisely because the case is dealing with such weighty matters that I feel bound to raise it.

It's once again the question of ventilation in this room. I've been a little concerned from time to time that one of your number particularly at about this time of the afternoon appears to be tired and I don't know whether that's just a condition with the eyes or whether there's some other reason for it. But can I stress that it's very important indeed that if at any stage anybody feels that he or she is losing concentration, that you're not embarrassed about telling me because it's much more important you're all fully alert than it is to be slightly embarrassed by mentioning it.

You've had a few minutes' break so I don't think we'll take a break now, and forgive me if I'm appearing to behave a bit like a headmaster but I'm sure you'll understand how important it is that I am satisfied that everything is okay. Counsel have told me whilst you were out that there does seem to be a particular problem with this court which I'm going to have to take up with the administration, those that administer this building, because there's obviously something about the position of this court and the ventilation system that gives a problem at about this time of the day.

But can I just ask you, first of all, to forgive me for raising a matter which appears perhaps to be trivial and headmasterish but I'm bound to for reasons which I'm sure you appreciate. Secondly, please if you do at any stage feel that you could do with stretching your legs, please tell me and there's no shame in doing so. It's much easier for us to keep going for several hours at a stretch if necessary. If counsel is on his feet, he's active, as it were, and I'm sitting here and I'm watching out for the rules which have to be observed and whether a question is permissible or not permissible and I'm taking notes and so on. So again it's much easier for me.

But you sit there and you are required hour after hour to listen, and it's perfectly understandable if from time to time one or more of you becomes tired and it's very important please that if that happens you perhaps raise your hand or whatever method you prefer and just tell me you'd like a five-minute break or a ten-minute break."

25. There was one further incident on this topic, during the course of the summing up, which is worthy of mention. There were a number of times when the judge mentioned that a break might be taken, but very properly he put on the record after completing the summing-up (at p.163) and after the jury had retired to consider their verdict:

"I have something else to say. Everybody was looking this morning and it didn't actually go on the record. There was a problem with the foreman of the jury, who was closing his eyes from time to time, and my clerk interrupted once and said he was asleep. I stopped and paused a couple of times and I noticed counsel saw that and I made a comment at one stage. I only mention that now - I should have mentioned it a little earlier in the day, but I mention it now because I think it is right that it should be on the record."

26. In fact there had been a moment when the judge had referred this matter to the foreman of the jury who assured the judge that he was listening. Within a few minutes of that passage in the summing up, the foreman is to be seen on the transcript correcting one matter which was to be found in the written legal directions, not as to the law but as to a case reference number which had been mistakenly printed on the document that the jury had been handed, so it is quite clear that the foreman appears to have been fairly alert at that stage.

27. At no time, on behalf of either defendant in the trial, did it ever become so serious that trial counsel felt that an application to the judge was necessary for the jury's discharge. I say on behalf of either defendant because today D2 has also given as one of his grounds of appeal that there were jurors who fell asleep during the trial.

28. We have been referred to all of those passages where difficulties arose and we are quite satisfied that the trial judge kept a very firm control over what was happening in his court whenever this difficulty arose. If there had been a serious problem, we have little doubt that counsel on behalf of the defendants would have made an application for the discharge of the jury or one of its members. We are satisfied that there is nothing of substance in that ground of appeal so far as both defendants are concerned.

29. I can turn now to the second ground raised by D1, namely that the hire of the vehicle was not done by D1 himself but by Wong Suk-chong, whose suggestion it was that a vehicle be rented. The appeal grounds go on to say:

"This is very important because the fact that I was not the one who made the suggestion indicates that there was no plan for setting fire since I didn't know Wong Suk-chong had no driving licence."

30. The actual evidence is very short indeed on this point. Wong Suk-chong, at p.773 in the transcript, said to the question:

"And what did you do when you two met?

A. Went to rent a vehicle.

Q. Whose idea was it to rent a vehicle?

A. Both.

Q. So, did you carry out that suggestion?

A. Yes.

Q. So, where did you go to then?

A. We went there to rent a vehicle.

Q. Do you recall the name of the shop?

A. Can't recall.

Q. Now, when the 2 of you arrived there, did you eventually hire a car?

A. Yes.

Q. In whose name the car was hired?

A. My name.

Q. Did you have a driving licence?

A. Yes.

Q. And did you know if Mr. Lau had a driving licence?"

The Court then interjected with the question as to whether that was really necessary, to which the next question was:

"Q. Now, who paid for the hiring fees?

A. Lau Kam-wing."

31. The summing up to the jury at p.104 of the transcript shows that the judge accurately reflected the evidence that had been given. He reminded the jury that D1 had called Miss Wong at about 2 o'clock in the afternoon on 8th October asking her to come out and have fun. They made an appointment to meet at about 6 or 7 p.m. She met him and they went to rent a car in Shamshuipo in her name and he paid. Insofar as the evidence about her driving licence is concerned, Miss Wong had said that she had a driving licence and the judge reminded the jury that she had said so but went on to remind them that the only time she had driven before, as she had stated elsewhere in her evidence, was when in the company of a driving instructor. There is no substance in that ground.

32. I can take the third and fourth grounds together. This is a complaint that the trial judge failed to point out to the jury that when the car stopped in Shatin, this was only because somebody in the car was drunk and was being sick. There was nothing premeditated about the stop and, furthermore, the trial judge and D1's lawyer failed to remind the jury that the only evidence from Wong Suk-chong about what happened at that time, when the fire was about to take place, shows that neither D1 nor his two friends carried anything in their hands and yet, on the prosecution's case, there must have been two bottles of thinner, a long bicycle chain and a can of lighter gas. He further points out that Wong Suk-chong was an unreliable and untrustworthy witness.

33. Again, the summing up dealt with these matters in clear and accurate terms. The judge reminded the jury that in examination-in-chief, whilst it was quite true that there were inconsistencies in the evidence of Wong Suk-chong and discrepancies between what she had said on other occasions and during the trial, she had said that subsequently she came to know where the car had stopped was Pok Hong Estate, although at one stage she had used the name of another estate Sha Kok Estate. The summing up goes on to say that trial counsel, Mr. Adams, who appeared on behalf of D1, had also reminded the jury of that during the course of his address to the jury. The judge then said:

"The stop lasted five to ten minutes. One of the men was vomiting. They all got out of the car. The 1st defendant said he was looking for a friend. She did not see them carrying anything. They went to the boot and it seems they were looking for something. She had not put anything inside the boot."

He then went on to say that the men went "inside the estate", as Miss Wong had also testified.

34. There is no substance in grounds 3 or 4.

35. Ground 5, which I can deal with very quickly, is concerned with the charge of blackmail. D1 says that he has a clear alibi from evidence given by prosecution witnesses Tsang Pak-ling and To Wing-shan. There were also exhibits that can prove it. His complaint is that the judge told the jury that they could accept parts of the evidence of witnesses and might reject other parts. He feels that that direction was very unfair. D2 made a similar point in his grounds that he expressed during the hearing this morning, where he says that the judge said that the jury could disbelieve parts of witnesses' evidence and yet accept other parts. His complaint is that if a witness was lying in some places, then that puts the whole of his credibility in doubt.

36. All that we need to say about this ground advanced by both defendants is that it is part of the duty of a jury to evaluate the evidence given by witnesses and to decide what it is that they accept and what they do not accept. That is a fundamental part of the process. It is true that the judge directed the jury along those lines and he was right to do so. There is no substance in that ground.

37. In his final ground of appeal, D1 says that because of faults on the part of the prosecution, two earlier trials were started which had to be aborted. He is right to say that. The third trial is the trial with which we are concerned and his complaint is that, before the third trial began, any of the jurors could have read the newspaper reports of the earlier trials in which disclosure was made of his criminal convictions and, as he puts it in his ground of appeal:

"no fair trial was possible if a trial de novo was ordered straightaway because the press has great and widespread influence on readers. There was no check on the jury to see if they had read the news. If they had, the result would turn out to be the same as if no jury had been dismissed."

38. His point is that the reason that particular jury was dismissed was because the jury came to learn of his bad character. This is not a matter that needs any investigation on our part because during the third and final trial, D1 attacked the character of prosecution witnesses to such an extent that his own bad character was made known to the jury.

39. In a model direction where bad character is concerned, Stock J. said:

"In our system a jury does not normally hear about the previous convictions of a defendant. That is because the fact that someone has committed an offence before does not mean that he has committed the offence with which he stands charged. Long experience by those involved in the criminal process shows that it is extremely dangerous and very unfair indeed to think that just because a man has once offended that he must have offended again.

Your task is to decide, on the directly relevant evidence, whether he is guilty of these offences and past conduct is not relevant evidence as to whether he committed them. Whether he committed these offences is determined by evidence of what happened in September and October of 1995 and some of the background to those events.

So, the question is why did you hear about them, and the answer is that you heard about them because the 1st defendant attacked the character of the prosecution witnesses. He suggested that officers and Ms. To set about to frame him and that, by law, is considered to be an attack on their character. The law says that when that happens, when he has attacked the character of prosecution witnesses he can be cross-examined about his own character and that is why you heard about those previous convictions."

40. He then went on to deal in some detail with how character could only affect the question of credibility, if at all. He then gave examples, from the convictions themselves, demonstrating that they had really no relevance in any other shape or form in the case because the convictions were of an entirely different character. The judge emphasized that, aside from credibility, this was not evidence which could be taken against the defendant.

41. There is no substance in that last ground of his appeal.

42. That leaves two matters which D2 raised during the course of the hearing today. D2 says that he had an alibi defence, which is correct, on the charge of arson. His defence was that he was with a person he described as the 3rd defendant, Ho Chi-keung, who Mr. Veltro informed us was released after a voire dire hearing, and so was not on trial before the jury. The transcript reveals that the defendant had gone to his room, on his account, to watch television and at some stage had taken a shower and eventually fallen asleep. He did not go out of his room. It may well be that, at his home, Ho Chi-keung was in another room during the course of that night. The question is whether the learned judge left his defence to the jury. The transcript reveals that the matter was left clearly and properly to the jury. There is no substance in that ground.

43. Finally D2 asked us to consider some documents that were given to the jury before they reached their decision. It was, as he spoke, obvious what he was referring to, and again the transcript provides the answer to what this was. Not only did the trial judge provide legal directions by word of mouth to the jury but he also provided extensive documents setting out the ingredients for each of the offences the jury was considering so that they should not forget what had to be proved. This was done as a matter of fairness. It had been a long trial. There were several charges and some of them involved many ingredients that the prosecution needed to prove before their case was established. The judge was right in such circumstances to provide the jury with those documents, and D2 need not be concerned that the jury were given something they should not have seen. His counsel was given the documents and, if D2 was not shown them himself, that is the fault of counsel for not showing them to him. There is no substance in that ground.

44. We are clear that there is, on the applications so far as they concern the convictions, no substance whatsoever in any of the matters that have been raised before us.

45. These applications are dismissed.

46. Turning now to the application relating to the sentence of D1. On any view this was a terrible crime. He is represented, for this part of the application, by Mr. Marray who has very realistically accepted that this is so. In particular, a large number of features exemplify the gravity of the arson (count 5):

(1) The offence was committed in the early hours of the morning when anyone in the flat targeted for this attack could be expected to be asleep.

(2) The perpetrators knew full well that a family lived inside the flat.

(3) A locked bicycle chain was put through the metal grille gate outside the flat to prevent the door being opened, and the key had been removed.

(4) A cloth was wrapped around a canister of butane gas which a forensic scientist said would have eventually split with the result that the gas vapour could or would have formed an explosive mixture with air resulting in a ferocious fireball.

(5) This was a planned arson. There was nothing about the offence which could remotely be described as having been committed on the spur of the moment.

(6) It was intended as an act of revenge as part of an on-going campaign of fear (counts 2, 3 and 4) which was in turn also intended to scare away anyone who might complain against D1.

(7) The premises attacked were part of a multi-storey residential building where other lives besides those of the family directly affected were put at risk.

(8) There were triad overtones to this attack because of the demand by D1 a few days earlier for $54,000.

(9) D1, who was a man of bad character, was on bail for blackmail at the time he organised and committed this arson.

47. All of these features were in the mind of the trial judge when he passed sentence. Stock J. found that a particularly appalling feature of this crime was the use of a lock to prevent that family from escaping. He also rightly pointed out that it was sheer good fortune for the occupants of the flat that, by coincidence, one of them had gone to the toilet at the moment the fire was started. If that had not happened, lives might well have been lost.

48. We wholly agree with the matters taken into account by the trial judge as being relevant to the sentence he imposed. It was fortuitous that no one was incinerated. The chain and lock on that family's door speaks louder than any words.

49. We have been referred to a number of English authorities regarding sentence for arson which we find of little assistance as they involved houses and not multi-storey buildings. Where multi-storey buildings are concerned, very large numbers of people are put at serious risk when arson is committed within the building.

50. We have also been referred to two Hong Kong cases The Queen v. Shum Hon-kai (1988) 2 H.K.L.R. 341, and The Queen v. Ho Ka-fai and others, Criminal Appeal No. 370 of 1994 (unreported). As with all cases of arson, each one has to be judged on its own facts.

51. We have little difficulty in saying that there were a large number of aggravating features in this particular case. Furthermore, the sentences, which are set out in detail earlier in this judgment, took account of a series of grave offences leading to the arson itself. We do not feel that the sentence of 13 years (count 5) was a single day too long, or that the total sentence of 14 years can in any way be criticised.

52. The application is without any merit. We refuse leave to appeal and the application is dismissed.