HKSAR v. CHEUNG KANG CHAU, CHARLES

CACC 335/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 335 OF 2004

(ON APPEAL FROM HCCC 61 of 2003)

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 REASONS  FOR  JUDGMENT

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  Fok Yuk-chun, aged 37, and Li Wing-on, her 44-year-old male friend, died on 23 August 2002 as the result of an arson attack on the 21^st floor flat at Kai Hei Land Building in Castle Peak Road where they were residing.  They had returned to the flat at about 2:00 a.m.

2.  There is no doubt that the fire which engulfed the victims’ flat soon after 9:23 a.m. was caused by the applicant.  He not only confessed his responsibility to police after he had been arrested trying to run away from the scene but he also admitted manslaughter on both of the counts of murder alleged against him at his trial.

3.  Briefly, the applicant’s account to the police was that, having fallen out with the female victim, he spent the night before the fire on the roof of Kai Hei Land Building.  At around 7:00 a.m., he went to the door of the flat where he could hear the voice of a woman and a man inside the flat.  Some two hours later, at about 9:00 a.m., the applicant climbed down from the roof of the building and entered the flat through an external window.  The applicant then poured kerosene onto the wooden floor outside the victims’ bedroom which he lit with an intention to “scare”.  When he left the flat by the front entrance, he was spotted by a security guard and taken to the ground floor for his details to be registered.  Later, he tried to escape from the building but the guard and one other person pursued and caught him.

4.  When the fire brigade arrived to put out the fire, they discovered that a metal pipe had been wedged into the lower track of the iron grille security door on the outside corridor which prevented the door from being opened from inside the flat.  When the applicant was asked about this, he admitted that he had seen such a pipe on the rear staircase but he denied placing it in the track.

5.  Other details of the evidence at trial emerge from a passage taken from the summing up to which we shall later refer.

6.  The applicant was charged with 2 counts of murder.  His pleas of guilty to manslaughter, on the basis of having committed an unlawful and dangerous act resulting in these deaths, were not accepted by the prosecution.  On 9 July 2004, following a trial before V Bokhary J and a jury, the applicant was convicted on each count of murder and sentenced to life imprisonment.

7.  The applicant sought leave to appeal against conviction.  At the conclusion of the hearing on 20 April 2005, we dismissed the application.  We now give our reasons for so doing.

The issues

8.  There were, realistically, only two central issues for the jury to decide, each of which went to intent.

9.  The first of the issues related to whether the applicant had deliberately set fire to the kerosene in the flat.  Contrary to the answers he gave to the police in his interviews, where he had confessed to setting the wooden floor alight with what he described as a “little bit of kerosene to scare” the female victim, his testimony at trial was that he had accidentally set light to the kerosene in the course of burning a photograph of her which had made him become angry and resentful towards her having previously been in a relationship with her.

10.  The second issue for the jury’s determination, arising from the first, was whether, if the fire had been deliberately caused by the applicant, he intended to kill or cause really serious harm to the victims inside the bedroom.

11.  It is right to add on this aspect, in the light of what later developed from a question asked by the jury, that this was not a case in which different verdicts were realistically possible.  In this regard, the judge rightly informed the jury from the outset of the summing up that:

“… on principle, each count in an indictment requires separate consideration.  Having told you that, however, it is right to observe that on the evidence in the present case, it is difficult to see how the accused can be convicted of anything in respect of one victim if you are not prepared to convict him of it in respect of the other victim, and you should not do that.” (Appeal bundle p. 7)

12.  The verdicts, therefore, which were open to the jury were either guilty of murder on both counts or, the applicant having admitted throughout responsibility for unlawfully causing the deaths, guilty of manslaughter on both counts.

Grounds of appeal

13.  Three grounds of appeal were raised on the applicant’s behalf by Mr Raffell.

(1)  Directions on intent

14.  In the first ground, Mr Raffell submitted that the judge needed to direct the jury that for verdicts of guilty to be returned, the applicant would inevitably have had to realise that the deaths were a virtual certainty provided it was established to the jury’s satisfaction that he had caused the fire deliberately.  He argued that the directions to this effect which the judge gave on 8 July 2004 were effectively cancelled out on 9 July 2004 when, in the concluding part of the summing up, she may have appeared to equate the mere act of setting fire deliberately to the kerosene with a guilty intention sufficient to establish murder.  For a proper understanding of this ground, the judge’s directions need to be set in their full context.

15.  Early in the summing up, the judge rightly, as Mr Raffell conceded, directed the jury that if they did not feel sure the applicant had deliberately lit the kerosene, they could not convict him of murder.  It is apparent, therefore, that the jury, by their verdicts, rejected the applicant’s testimony and accepted his confession to the police that his act in setting fire to the flat had been deliberate.

16.  The directions the jury were given on murder were also plainly set out.  These were carefully tailored to meet the facts of the case and were preceded by a brief and accurate synopsis of the evidence as presented by the prosecution and defence respectively, as follows:

“On each count, if you are sure that the accused killed the deceased with intent to kill or at least to cause really serious injury, then you would be entitled to find the accused guilty of murder.

Essentially the prosecution’s case is that on 23 August 2002 the accused set fire to Flat H on the 21^st Floor of Kai Hei Land Building, Tsing Wui Street in Tuen Mun, knowing that the victims were inside and intending to kill them or at least to cause them really serious injury, and that they died as a result.

The defence case is that there was no intent to kill or to cause really serious injury.  In the witness-box, the accused denied not only that he intended to kill or cause really serious injury.  He even denied that he had deliberately set fire to the flat.  You will remember and take carefully into account the whole of his evidence and everything urged on his behalf by his counsel in final speech.

The accused told you about his past relationship with Miss Fok.  As to the events on which the case is based, he said in the witness-box that although he had poured kerosene, he had only done so to scare Miss Fok.  Although he knew that persons were in the flat earlier, he said that he did not even know at the time when he poured kerosene whether anybody was in the flat.  He said that he did not mean to light the kerosene; that what he did deliberately light was a photograph of a man carrying Miss Fok in his arms; and that he did that because the photograph made him very angry and jealous.

He said that the fire from the photograph accidentally caused a glove which he was wearing to catch fire; that he took off the glove; and that it fell accidentally onto the kerosene.  That, he said, is how the kerosene caught fire.  He said he wanted to put out the fire and went out of the flat intending to use the fire hose outside, but could not because he met the watchman who escorted him downstairs.

He said that when he went up to the 21^st floor again, he tried to put out the fire, pulling out the fire hose for the purpose.  But, he said, he could not get any water out of the nozzle.  He said that he could not see the red circular ring and only saw the central axle pin.

As to that, there is evidence from a prosecution witness, Mr Wong Shung-shun, a fire engineering maintenance man, that when he went to the 21^st floor at about noon on that day, 23 August 2002, he found about 15 metres of the fire hose and a copper valve ring lying on the floor.  Mr Wong said that when he opened the nozzle, water came out and that it was working properly.

As to the metal pipe in the track of the iron grille, the accused said that he had brought that metal pipe down from the roof to try to prise open the iron grille, but was not able to do so.  Then he said he propped the metal pipe against the metal frame of the iron grille on the right-hand side; and then returned to the roof, eventually entering the flat through the kitchen window.

Dealing with the time when he went up to the 21^st Floor again after having been escorted downstairs by the watchman, the accused says that he pushed the iron grille with force after having opened the wooden door and seen the fire.  He said that perhaps the metal pipe then fell into the track of the iron grille.  He denied deliberately putting the metal pipe in that track.” (Appeal bundle pp. 8-10)

17.  Later, the judge emphasised the importance of her earlier directions that not only must the fire have been started deliberately but it must have been done with intent to kill or to cause really serious bodily harm in the following terms:

“If you feel sure that the accused deliberately lit the kerosene, then it will be open to you to find him guilty of murder on each count.  I will explain how.  As far as intention is concerned, the position is this: for murder it is necessary that the accused intended to kill or at least to cause really serious injury.  But a man can be guilty of manslaughter even without having that intention.  What is necessary, as I have said, is that the unlawful act causing death must be a dangerous one which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, albeit not serious harm. …

On each count, for you to convict him of murder, it is necessary that the prosecution’s case makes you feel sure that it has proved its case of murder.” (Appeal bundle p. 11)

18.  Before turning to the evidence, the judge went on to say:

“Let us now look at the evidence which the prosecution has put before you, members of the jury, for the purpose of proving its case so as to make you feel sure that the accused deliberately lit the kerosene to set fire to the flat with the intent to kill the victims or at least to cause them really serious injury, and by such actions and with such intent [to] kill them, thus committing murder as charged under each count.” (Appeal bundle p. 12)

19.  After her review of the evidence, the judge returned to the law saying:

“Members of the jury, I have already told you that the necessary intention for murder is intention to kill or at least to cause really serious injury.  On each murder count, you are not entitled to find such intention unless you feel sure that death or at least really serious injury had been a virtual certainty, barring some unforeseen intervention as a result of the accused’s deliberate actions, and you think that the only reasonable inference is that the accused had appreciated that such was the case.  Bear this in mind throughout when considering the question of the accused’s intention.

I have also already told you that you are not entitled to draw any inference against the accused unless you think that it is the only reasonable inference.  If you think that it is the only reasonable inference, then you may draw it.

On the whole of the evidence in this case, it is open to you, if you see fit, to feel sure, on each count, that death or at least really serious injury had been a virtual certainty, barring some unforeseen intervention as a result of the accused’s action.  And on each count, it is open to you, if you see fit, to feel sure, because you consider it to be the only reasonable inference in all the circumstances, that the accused had appreciated that such was the case.” (Appeal bundle pp. 35-36)

20.  The summing up was adjourned on the 8 July 2004 to enable the jury to have the whole of the following day to consider their verdicts.  Immediately before sending the jury out at 10:24 a.m. on 9 July 2004, the judge helpfully again reminded the jury that any reasonable doubt about the issues they had to decide must be resolved in the applicant’s favour with guilty verdicts limited to manslaughter.  Then, in a passage which Mr Raffell contended had the effect of contradicting or neutralising the earlier direction given that the jury would not be entitled to find an intention sufficient to prove murder unless they felt sure that “death or at least really serious injury had been a virtual certainty”, the judge went on to say:

“But if you feel sure that he deliberately set fire to the kerosene, then you will be entitled, if you see fit, to feel sure in accordance with the directions which I have given you, that he killed each victim with intent to kill or at least to cause really serious injury.  And you would then be entitled, on each count, to find the accused guilty of murder.” (Appeal bundle p. 45)

21.  In our opinion, taken in their full context, it is apparent that the directions given by the judge had not equated the deliberate setting fire to the flat with an intent to kill or cause really serious bodily harm as the later direction, as the judge stated, had to be read in accordance with the directions already given.

22.  In any event, as it happens, if there was any concern that the earlier directions had been overlooked by the jury, at about 3:07 p.m. the judge heard submissions from counsel in relation to a question she had received from the jury which required clarification as to whether it would be possible to “pass a verdict for murder (of the female deceased) on one count and manslaughter on the other”.  The jury were called back into court at 3:59 p.m. for their question to be answered.  This encompassed a full direction on intention. 

23.  The judge began by reminding the jury, at defence counsel’s request, that they could not convict the applicant of “any offence in respect of which (they had) a reasonable doubt as to his guilt”.  Later, the judge went on to say:

“The answer is: it is possible in law for you to convict the accused of murdering one victim, because you feel sure that he intended to kill or seriously (injure) that victim, but convict the accused only of manslaughter in respect of the other victim because you do not feel sure that he intended to kill or cause really serious injury to the other victim.  So in law you can do so.

Having said that, I would like to remind you of something I have said in my summing up, which is that on the evidence in the present case, it is difficult to see how the accused can be convicted of anything in respect of one victim if you are not prepared to convict him of it in respect of the other victim.  On the evidence of this case, the accused’s acts were no different in relation to one victim from his acts in relation to the other victim.

If you are concerned with intention, I have already directed you on that question.  I have also directed you on the difference between motive and intention.  In relation to intention, let me repeat something that I have already said to you.  On each murder count, you are not entitled to find such intention unless you feel sure that death or at least really serious injury had been a virtual certainty, barring some unforeseen intervention, as a result of the accused’s deliberate actions and you think that the only reasonable inference is that the accused had appreciated that such was the case.  Bear this in mind carefully throughout when considering the question of the accused’s intention.  So that is the intention required in this case.” (Emphasis added) (Appeal bundle pp. 46-47)

24.  In our opinion, the jury was fully and properly directed on the issue of intent and could have been in no doubt as to their approach in this regard.  We have not overlooked a submission by Mr Saw SC on the respondent’s behalf that, in view of the wealth of material providing evidence of intent, it was not strictly necessary to give a direction to the effect that intent could only be established if the jury was sure that death or really serious bodily injury was a virtual certainty.  The direction created no unfairness to the applicant.

(2)  Jury’s question

25.  The 2^nd ground of appeal alleged that the judge had misdirected the jury when answering their question as to whether they could return different verdicts, namely murder on count 1 and manslaughter on count 2.  The complaint, in essence, was that the judge failed to give a balanced explanation to the jury in her reply, making it plain that if there was doubt as to the intention on count 2 there should equally have been doubt on the 1^st count.

26.  This was very obviously a case where both verdicts, as the judge told the jury, should be the same.  Perhaps it was that the jury felt the applicant meant to kill his ex-girlfriend but not the male victim.  Whatever the reason, the judge correctly answered the question posed in the terms we have already set out (in para. 23 above), having prefaced her remarks by reading the question itself into the record before going on to make the observation which is not only pertinent to this ground but answers it in full.  She said:

“Now, members of the jury, I have discussed your question with counsel.  Defence counsel have asked me to remind you that you cannot convict the accused of any offence in respect of which you have a reasonable doubt as to his guilt.  I am sure that you understand that and I am also sure that you understand that if, having regard to all the evidence and applying your common-sense, if you feel sure that the accused is guilty of an offence, you will do your duty of convicting him.  You are the sole judges of the facts.” (Emphasis added) (Appeal bundle p. 46)

27.  Having perhaps detected the reason behind what at first sight may have seemed the somewhat curious nature of the jury’s question, the judge very sensibly, despite a request by trial counsel that she should ought not to do so, went on later to deal with the difference between motive and intent by reminding the jury of her earlier directions in this respect.

(3)  Comments made in the summing up

28.  The 3^rd ground of appeal is not one upon which we need to dwell.  Mr Raffell contended that, looked at as a whole, the directions given to the jury were, in his words: “unbalanced and may well have inadvertently misled the jury as to where their duty lay.  Phrases such as ‘you would be entitled to convict’ (were) used several times and the prosecution evidence (was) repeated at some length (but) the defence evidence was not given the same respect”.

29.  This submission, insofar as it suggests bias on the part of the judge, inadvertent though it may have been, was wholly without merit.  Such comments as the judge made were, it seems to us, perfectly fair and there was no imbalance in the summing up which might suggest that the prosecution’s case had been treated more favourably than the case presented by the defence.  The simple fact, as Mr Raffell demonstrated, that the prosecution’s case occupied a longer time to sum up is hardly surprising as the judge had to cover not only the admitted facts and 6 video-recorded interviews but also the evidence of 15 witnesses.

Conclusion

30.  There was no substance to any of the grounds of appeal.  The application, therefore, was dismissed.