R. v. CHOW SHUI MING

IN THE COURT OF APPEAL

1996, No.335
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one count of attempted arson. It was particularized that he "on 26th November 1995, at Tuen Mun, without lawful excuse, attempted to damage by fire Room 412, Oi Chi House, Yau Oi Estate, intending to damage such property or being reckless as to whether such property would be damaged and intending by the said damage to endanger the life of Li Chuen-tai, Chow Chui-yee, Chow Kim-fung and Chow Chi-fung or being reckless as to whether the life of another would thereby be endangered." He was convicted after trial before Her Honour Judge Chua and was sentenced to imprisonment for 2½ years. He now seeks leave to appeal against both conviction and sentence.

2. The facts revealed a history of marital discord which led on the date of the charge to the following confrontation. We take the description of it from the Reasons for Verdict set out by the trial judge:

"In the evening of 26 November 1995, while the defendant's wife, Li Chuen-tai, his daughter, Chui-yee (PW1), 19 years old, his older son Kim-fung, PW2, 17 years old, and his younger son, Chi-fung (PW3), 13 years old, were having their dinner in their home at Room 412, Oi Chi House, Yau Oi Estate, the defendant closed the windows of the balcony and shut the main wooden door. He went into his room, donned raincoat and rubber boots and removed the burning joss sticks from the altar near the dining table in the living room. He then returned to the living room, having fetched a blue plastic can of petrol. Shortly thereafter the family discovered they and their dinner had been splashed with petrol.

A fierce quarrel ensued, followed by a phone call to the police by the youngest child, PW3, who said there had been a fight and someone had poured kerosene at his home. That someone was the defendant."

The judge went on :

"When the police arrested and cautioned the defendant at the scene, he told PC 49945, 'Sir, tonight I wanted to talk with them about the matter of last time to seek justice, but I was afraid of being unable to control them, so I used petrol to scare them. If the talk broke down, we would all be cooked in the same pan together. I did not want to do that.'"

3. The defendant also made a cautioned statement at the Tuen Mun Police Station in which he reiterated what he had already said in a somewhat different form saying :

"Sir, tonight I wanted to talk with them about the matter of last time to seek justice, but I was afraid of being unable to control them, so I used petrol to scare them. If the talk broke down, we would all be cooked in the same pan together. I did not want to do that."

4. Later in that statement the following passage occurs :

"Q. You have earlier mentioned 'If the talk broke down, all be cooked in the same pan together, what does it mean?

A. I told them what I was carrying was petrol. I told them we should solve the matter in calm. But if our talk broke down all be cooked in the same pan together. It means burning them to death."

5. The trial judge said, and correctly:

"The issue before me is, was the splashing of petrol on the family accidental as the defendant claims in his testimony from the witness, or was it evidence of attempted arson?"

The defendant gave evidence in which he said that he had got out the petrol to clean his electric drill and had accidentally spilt some of it when he bumped into a couch.

6. His wife, who was not a compellable witness, gave no evidence. The three children gave evidence but, each in turn, was declared hostile. However admissible evidence was elicited from them upon which the judge was entitled to act and did act. In particular she placed reliance upon the evidence of the applicant's 19 year old daughter as to the events surrounding the production of a cigarette lighter and an attempt to light it. The trial judge rejected the evidence of the applicant. She was satisfied finally:

"..... having closed the windows and doors, at the time he brought out the petrol can and lighter he had contemplated first scaring them into paying attention to him, hence the removal of the joss sticks, and secondly, if the talks broke down, to use the lighter to set them all alight, hence the deliberate dousing of the petrol and the presence of the lighter.

I am sure from PW1's evidence and PW2's grabbing of the chopper, he had attempted to light the lighter. I suspect at the time the supply-switch of the lighter was turned down. When the lighter was examined in court, it was switched to maximum and lit the first time we tried it. I infer from the evidence the defendant may not have been aware of the switch or the position of it at the time he attempted to light it, and clicked the lighter several time in order to get a flame."

It is plain from these words that the judge accepted the applicant's statement that he contemplated scaring the family and that, if the talks broke down, he intended to use the lighter to set them all alight. She was satisfied that he attempted to use the lighter for that purpose and she therefore convicted.

7. The applicant is represented today by Mr. Percy who submits that the judge, at the end of the Reasons for Verdict, gave herself an erroneous direction which, he says, flaws the conviction.

8. The judge said in the final paragraph

"In this respect, the circumstances of this case presents little difficulty. By the criteria of either test, I am satisfied beyond reasonable doubt, when he attempted to obtain a light from the lighter, he attempted arson."

So far so good, but Mr. Percy complains of the words that then followed when the judge said:

"His actions showed an intention 'to destroy or damage their home or was reckless as to whether it was destroyed or damaged and intended, by the destruction or damage, to endanger the lives of his family, or was reckless as to whether their lives would be endangered.' The defendant is convicted of the charge."

9. Mr. Percy's submissions are encapsulated in Ground 1:

"(a) The Learned Judge misdirected herself on a point of law that either state of mind was sufficient to convict the applicant of attempted arson.

(b) The Learned Judge made no findings of any specific intent on the part of the applicant, either as to the substantive offence or as to his state of mind directed towards endangering the lives of others.

(c) Mere recklessness as to whether criminal damage is caused, as opposed to an intent to cause such damage, is insufficient where the charge is attempt to cause damage."

10. If Mr. Percy is right that the trial judge, when using the words of which complaint is made, was giving herself a direction then she did err in law. It is to be noted that the "direction" is in the exact terms of the charge. Indeed she was clearly quoting from the charge as she placed the words in inverted commas. The charge was, the prosecution concedes, inappropriately and wrongly worded insofar as it suggested that proof of either deliberate or reckless conduct would be sufficient to establish an attempt. There is clear authority that an attempt must be deliberate. Was the judge when she set out the words of which complaint is made doing no more than setting out the words of the charge or was she directing herself as to the way in which she should approach the facts? When deciding this question we must look at the Reasons for Verdict as a whole and at the law which is set out in the body of those Reasons. She referred at p.22 of the statement to the "Rubicon test" when determining whether or not there has been an attempt to commit a criminal offence. She said:

"There seems to be two tests. The earlier tests, sometimes known as the 'Eagleton test' or the 'Rubicon test' was enunciated by Lord Diplock in the Stonehouse case [1978] AC 55, that, 'only acts immediately connected with the offence count as attempts, or in other words, the offender must have crossed the Rubicon and burnt his boats.' This test was followed in Hong Kong in R. v. Miller [1963] 141."

She then referred to a second test, which she described as the "more relaxed" test, set out in Davey and Lee [1968] 1 QB 366, where Lord Chief Justice Parker said:

"I prefer to adopt the definition given in Stephen's Digest at Criminal Law, 5th Edition, Article 50: 'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which constituted the actual commission of it, were not interrupted.' As a general statement that seems to me to be right, although it does not define the point of time at which the series of events begins. That, as Stephen said, depended upon the facts of each case."

11. It is to be noted that although the first test does not mention the word "intention" it does make it plain that the offender must have so committed himself that he could be properly described as having crossed the river and burnt his boats. The second test does, however, set out in terms that an attempt to commit a crime is an act done with intent. She then synthesised those two tests saying:

"In the Hong Kong case, the Chief Justice cites Lord Hailsham's attempt in Horton and Smith [1973] 3 AER 1109 to reconcile the two tests, that is, the Rubicon or the Eagleton test, and the more modern definition of Davey and Lee. At page 1114 he said:

'(1) There is a distinction between the intention to commit a crime and an attempt to commit it.

(2) In addition to intention or mens rea, there must be an overt act of such a kind that it is intended to form, and does form part of a series of acts which constitute the actual commission of the offence if it were not interrupted.

(3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in R. v. Eagleton as being "proximate" to the completion of the offence, and in Davey and Lee, as being immediately and not merely remotely connected with the completed offence.'"

(Emphasis supplied.)

12. These passages satisfy us that the judge had firmly in mind the necessity to establish that the act was done with intent. We are also satisfied that when she came to the final paragraph she was doing no more than reciting the words of what the prosecution concede was an inappropriately worded charge. There was no direction of law in those final words. The judge was clearly satisfied that the prosecution had to prove intention and that it had done so. In all of the circumstances nothing has been raised that would make this conviction either unsafe or unsatisfactory and the application must be refused.

13. The applicant also pursues an application for leave to appeal against sentence. This was a bad offence. The attempted arson occurred on 4th floor of a domestic building. The applicant put not only the lives of his family at risk but also those of the other occupants of the building. Mr. Percy argues that accepting that the judge found an intent to start the fire she did not explicitly find an intent to endanger the lives of the family and that the applicant's actions in that regard must for the purpose of sentence be put at a point no higher than recklessness. The judge did, it is true, when sentencing the applicant refer to his attempt to light the lighter as "highly irresponsible". Mr. Percy argues that, if recklessness rather than deliberate intent was involved, the starting point of four years was too high. However, given the evidence the judge was, we are satisfied, and was entitled to proceed upon the basis that there was intent not only to start the fire but also to endanger the lives of his family. The statement of the applicant himself that "the family would all be cooked, it means burning them to death", would have provided ample justification for so proceeding. Indeed even if the judge had been proceeding upon the basis of recklessness given the terrible danger of fire to all occupants of a building, a danger to which the judge referred when sentencing, we are satisfied that 4 years would not have been a manifestly excessive starting point. Further the judge was careful to give full weight to all of the mitigating factors before coming, at the end of the day, to a sentence of 2½ years. We are satisfied that the application to appeal against sentence must, therefore, also be refused.