R. v. KWONG TAT CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 757 OF 1996

____________

____________

_________________________

REASONS FOR JUDGMENT

_________________________

1. The appellant was convicted after trial before a magistrate of a charge of arson contrary to s.60(2) and (3) of the Crimes Ordinance, Cap. 200. He was sentenced to imprisonment for two years. The appeal is against conviction only.

2. The appellant and Liu Oi-na were a married couple who had divorced in late 1994. After the divorce, the appellant continued to live in the matrimonial home which was rented in the name of the wife. Although Liu Oi-na had moved out and lived elsewhere, she retained keys to the premises and visited the premises from time to time and occasionally slept there.

3. The prosecution case was that in the evening of 13th August 1995, the appellant returned home after playing mahjong. Unexpectedly, he found his former wife in the premises with a man whose name was Lam Lung-teng who gave evidence as PW1. A quarrel developed between the appellant and Liu On-na in the living room while PW1 stayed in the bedroom. During the course of the quarrel, the appellant lit a blanket with his lighter and left the blanket on a sofa. The fire spread to the sofa and ultimately caused extensive damage to the contents of the living room. The appellant left the premises through the main door and then held it shut and this prevented Liu Oi-na and PW1 from leaving through the main door. Both were trapped inside the premises and had to be rescued from a window ledge by their rescuers.

4. The appellant was arrested and admitted at once that he had threatened to set fire to Liu Oi-na when she was threatening him. He said that he took out the lighter intending to scare her and he did not mean to do it. In an interview later, he admitted using his lighter to set fire to the blanket in an attempt to get Liu Oi-na and PW1 to come out from the bedroom so that he could reason with them.

5. The defence was that the appellant never started the fire. The fire could have been started accidentally by the cigarette he was smoking. The appellant had been threatened by his former wife with a knife or chopper and he was concerned to protect himself against the attack. As soon as he realized that a fire had started, he tried to put it out and raised the alarm promptly.

6. The original charge had alleged that the appellant intended to cause damage to property and to endanger life or alternatively he was reckless as to whether property would be damaged and life would thereby be endangered. At the close of the prosecution case, the magistrate, in exercise of his powers under s.27 of the Magistrates Ordinance, amended the charge by the deletion of "intending to cause damage to property and intending by the damage to endanger life". The particulars of offence of the amended charge now read:

"Kwong Tat-chuen, you are charged that on the 13th day of August, 1995 at Room 2, 4/F, No. 1 Yin On Street, To Kwa Wan, Kowloon, in Hong Kong, without lawful excuse, you damaged by fire one blanket, one sofa bed and one room door belonging to Liu Oi-na being reckless as to whether such property would be damaged and being reckless as to whether the lives of Lam Lung-teng and Liu Oi-na would thereby be endangered."

7. The ground of appeal argued by Mr. Stirling on behalf of the appellant involved a short point. This is whether the magistrate failed to consider adequately:

(a) that the test to be applied was to ask whether it was proved that an ordinary prudent bystander would have perceived at the time when the fire was started an obvious risk that property would be damaged and life would thereby be endangered; and

(b) that the accused must be reckless as to causing damage, as to endangering life and also as to whether life would be endangered as a result of the damage.

8. Mr. Stirling contended that any reckless on the part of the appellant was subsequent to the starting of the fire and was unrelated to the actus reus of arson. He cited the decisions in R. v. Sangha [1988] 1 WLR 519 and R. v. Steer [1988] AC 111.

9. Steer was a decision of the House of Lords while Sangha was decided by the Court of Appeal. In Steer,

"The defendant, who had had some disagreement with his business partner, went to the partner's bungalow one night. After ringing the door bell he fired a rifle at the windows of the bedroom and lounge and at the front door. No injuries were caused to the people who were in the bungalow. The defendant was charged, inter alia, with damaging property with intent, being reckless as to whether the life of another would be thereby endangered, contrary to section 1(2) of the Criminal Damage Act 1971. The trial judge rejected a submission of no case to answer in relation to that count, whereupon the defendant changed his plea to guilty. The defendant appealed to the Court of Appeal (Criminal Division) which allowed the appeal.

On Appeal by the Crown:-

It was held, dismissing the appeal, that the Act of 1971 being concerned with criminal damage to property, the intention or recklessness envisaged by section 1(2)(b) of the Act of 1971 was directed to the possible dangers to life caused by the destroyed or damaged property and not to the dangers inherent in the method of causing that destruction or damage; that, accordingly, to obtain a conviction under section 1(2)(b) the prosecution were required to prove that the danger to life resulted from the destruction or damage to property; it was not sufficient for the prosecution to prove that the danger to life resulted from the act of the defendant which caused the destruction or damage."

10. In R. v. Miller [1983] 1 ALLER 978, the Court of Appeal certified the following question of law of general public importance for the consideration of the House of Lords:

"Whether the actus reus of the offence of arson is present when a Defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire?"

11. The facts were sufficiently contained in the written statement to the police by Miller which read:-

"Last night I went out for a few drinks and at closing time I went back to the house where I have been kipping for a couple of weeks. I went upstairs into the back bedroom where I've been sleeping. I lay on my mattress and lit a cigarette. I must have fell to sleep because I woke up to find the mattress on fire. I just got up and went into the next room and went back to sleep. Then the next thing I remember was the police and fire people arriving. I hadn't got anything to put the fire out with so I just left it."

12. He was charged on indictment with the offence of 'arson' contrary to s.1(1) and (3) of the Criminal Damage Act, 1971; the particulars of offence were that he -

"on a date unknown between the 13th and 16th days of August 1980, without lawful excuse damaged by fire a house known as No. 9 Grantham Road, Sparkbrook, intending to do damage to such property or recklessly as to whether such property would be damaged."

13. The House of Lords answered the question in the affirmative and dismissed the appeal. Having criticised the use of the expression of "actus reus" to be liable to mislead at p.979, Lord Diplock went on to say at pp.982 and 983:

"My Lords, in the instant case the prosecution did not rely on the state of mind of the accused as being reckless during that part of his conduct that consisted of his lighting and smoking a cigarette while lying on his mattress and falling asleep without extinguishing it. So the jury were not invited to make any finding as to this. What the prosecution did rely on as being reckless was his state of mind during that part of his conduct after he awoke to find that he had set his mattress on fire and that it was smouldering, but did not then take any steps either to try to extinguish it himself or to send for the fire brigade, but simply went into the other room to resume his slumbers, leaving the fire from the already smouldering mattress to spread and to damage that part of the house in which the mattress was."

14. On the facts found by the magistrate, this appellant lit the blanket with his lighter and left it on the sofa allowing the fire to spread. Not only the appellant did nothing to put out the fire when he saw it spreading, instead he walked out the premises through the main door and shut it thereby preventing Liu Oi-na and PW1 from leaving.

15. Steer does not assist the appellant nor does Sangha. Both cases are in fact against the appellant rather than in his favour. The appellant is clearly guilty of the offence which he was charged.

16. The appeal has no merits and must be dismissed.