HKSAR v. CHOW YAN TUNG, IRIS

DCCC 543/2022

[2024] HKDC 1132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 543 OF 2022

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REASONS FOR VERDICT

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Background

1.  The defendant faces one charge of arson, contrary to Section 60(1), (3)  and 63(1)  of the Crimes Ordinance, Cap 200, and three further charges of attempted arson which is also contrary to the same sections and also Section 159G of the same ordinance.  The charges arise out of four separate fires set in a garbage bin in a lift lobby of the 4^th Floor of Hong Yam House in the On Yam Estate in Kwai Chung, New Territories,

2.  The fires occurring on the 3^rd, 4^th and 6^th days of November 2018, two fires occurring on 6 November.

3.  The defendant lives on the 4^th Floor of Hong Yam House in Room 414. When questioned about the fires and the fire setting, she admitted that she set the fires in order to increase security patrols on her floor as she had been harassed by debt collectors.

Issue

4.  At trial, the defendant sought to exclude her admissions on the basis they were made involuntarily.  Alternatively if admitted, the defendant said that the evidence in the case taken together with the admissions could not necessarily prove to a criminal standard her guilt in the offences with which she is charged.

Evidence

5.  On 3 November 2018 at around 8 pm, PW1 was at home on her flat on the 4^th Floor, Hong Yam House.  When she left the flat she discovered a fire in the rubbish bin of the lift lobby.  She and her mother extinguished the fire with buckets of water and they informed security.

6.  On 4 November, PW1 was at home, she said at around 2.40 pm.  She smelt burning, she went out, saw a fire in the rubbish bin in the 4^th floor lift lobby.  She again extinguished the fire with water and she told security.

7.  PW2 was a security guard at the On Yam Estate. 

8.  At 2.43 pm on 4 November 2018, she was informed by PW1 that there was smoke in a rubbish bin on the 4^th floor lift lobby. 

9.  PW2 took some water to help extinguish the fire and reported this to the control room. 

10.  On 6 November 2018 at 8 am, PW2 was informed by the controller that there was smoke coming from the rubbish bin in the 4^th floor lift lobby.  She obtained water and extinguished the fire. 

11.  On 6 November 2018 at 11 am, she was informed by a domestic worker that there was smoke coming from the rubbish bin at the 4^th floor lift lobby.  PW2 again used water to extinguish the fire.  The matter was then reported to police.

12.  PW5, DPC6505, was the officer who initially attended to make enquiries. He arrived around 1320 hours.  He took photographs at the scene and a witness statement from the defendant who was described as the informant. 

13.  PW5 left but returned at 1430 hours.  He went to the 4^th floor and spoke to the defendant again for about 30 minutes.  He looked at the CCTV outside the defendant’s home at Room 414 and seized the memory card to be used as evidence. 

14.  PW5 said he saw abnormal exits and entrances of the defendant on the CCTV record, he thought this was suspicious.  The defendant had also told him she had been bankrupt and harassed by debt collectors and the Housing Department had not acted to stop this. 

15.  Then the defendant said things that PW5 believed were related to the case.  As a result, PW5 called for assistance.  PW5 did not arrest or caution defendant at that time but waited for his colleague. The colleague was PW6, DPC14569.  He arrested and cautioned the defendant.  The defendant responded to the caution by making an admission which was later recorded and produced as a record of interview, that is P9.  PW5 on 27 November 2018 took a further video-recorded interview which was produced later, P7.

16.  The defendant gave evidence in relation to the admissions made to police.  She challenged her admissibility.  She said that neither PW5 or PW6 arrested or cautioned her on 6 November and that the admissions made in the record of interview were not made by her. 

17.  Furthermore that in respect of the video-recorded interview, she was told to simply repeat the things that had been said in the record of interview.

Admissibility of the Record of Interview and Video Recorded Interview

18. The challenged materials:-

(1)  The Record of Interview and verbal statement. PW6 said that on 6 November at 15:45 hours he declared arrest on the defendant in reply she made a verbal statement which was reduced to writing in a Record of Interview at 16:14 hours at Kwai Chung Police Station exhibit 7.

(2)  The Video Recorded Interview. Taken by PW5 on 27 November 2018 at Kwai Chung Police Station from 11:12 to 11:38 hours.

The legal considerations

19.  To be admissible, any admission against interests made by a defendant must be proved beyond reasonable doubt to be made voluntarily. In the sense that it was not obtained by way of fear of prejudice or hope of advantage held out by a person of authority or by oppression.  Furthermore, a statement may be inadmissible if it was obtained unfairly or its use in evidence would be unfair.

20.  The prosecution case was that at no time was the defendant subject to anything that would make her statements inadmissible. 

21.  The defendant advanced her case by way of her own evidence and cross-examination of PW5 and PW6. 

22.  It was said that at the time of her questioning she had financial problems and had been harassed by debt collectors.  She was bankrupt. 

23.  She had a proved psychotic disorder which led to both anxiety and insomnia. 

24.  The defendant said that PW5 never arrest or cautioned her.  This was common ground.  PW5 did say the defendant had made an admission but it was un-cautioned so he called for assistance.  PW5 did not make a contemporaneous note of what the defendant said.  PW6 came to make enquiries.  He was told of the defendant’s situation and what she had said by PW5.  PW6 then said he arrested and cautioned the defendant who made the admissions contained in the later record of interview.  No contemporaneous record was made.

25.  The defendant’s case was that she was not arrested or cautioned and she did not make the verbal statement. 

26.  The defendant said that on the vehicle on the way to Kwai Chung Police Station, she was subject to threats and inducements by PW5 and PW6, namely that she was suspicious because of the CCTV footage and the fact that it was said that the Housing Department could not help her with the debt collectors. That as she was ill, bankrupt and in receipt of CSSA, the matter would be resolved if she compensated for the rubbish bin. That the police would charge her with something more serious if she did not admit it. 

27.  This was also said by PW5 at Kwai Chung Police Station.

28.  The defendant says she signed the record of interview as a direct consequence of the things said by PW5 and PW6. 

29.  In respect of the video-recorded interview, the defendant said that she went to Kwai Chung Police Station where she met PW6.  PW6 told her to repeat what was written in the record of interview and then she would receive a notice to pay a fine from the Housing Department.  PW6 showed her a copy of the record of interview. 

30.  The defendant said that when PW5 began the video recorded interview, she initially denied committing the offences.  PW5 stopped the recording and told her she should say what was in her statement and scolded her.

31.  A second tape was obtained and a new recording was made by PW5.  The defendant complied with what she was told to do and made admissions.  She was confused, felt pressured and made admissions because of what had been said to her.

32.  In summary, it was submitted the defendant made the admissions in the record of interview and video-recorded interview as a direct result of the verbal threats and inducements of PW5 and PW6, that their conduct was oppressive towards her and her personal characteristics, especially her psychiatric illness, made her vulnerable and easily intimated by authority figures.

Resolution

33.  The issue that required resolution was essentially one of credibility. The prosecution witness saying that the defendant was voluntarily assisting them and clearly wanted to have her reasons recorded. The defendant in her evidence denying certain things were done and said and saying her later willingness to sign a statement and conduct a video-recorded interview was a result of verbal inducements and oppression.

34.  I noted PW5’s approach to the defendant.  He initially treated her as a witness.  It was after viewing the CCTV record and taking her statement that he thought she may have more of an involvement.  However, it was after she volunteered that she had set the fires to try and increase the security patrols that he fully realised her connection to the case.  He then realised any further questioning must be after caution.  However, he did not at that time either caution the defendant or question her further.  He contacted his superior who sent PW6 to pursue this later phase of arrest and caution.

35.  PW5 later recorded his involvement and the defendant’s admission in a witness statement and notebook but did not ask the defendant to sign, this because it was un-cautioned and would not be used in evidence.  That is reasonable. PW6 arrested and cautioned the defendant who he said then made the admission later reduced to writing in the record of interview.  The defendant said this did not occur. 

36.  PW6 decided not to record this contemporaneously but to do so at the police station later.  He did this as a choice, preferring to make the record in the police station.  He was criticised for this.  However, this is an unremarkable choice as no doubt the police station offered better facilities for a recording of the statement.

37.  I noted the criticisms of PW5 and PW6.  However, both their approach to the defendant and the decisions they made appear to be in accord with what was required for the investigation and were reasonable.  I found them to be on their face reliable and honest.  I did not believe or find that the interviews with the defendant was anything other than voluntary.  The defendant signed all the documents and appeared to freely conduct the video-recorded interview.  She was aware of her rights and properly cautioned.  I did not find that any inducements were made to her.

38.  In contrast, I did not find the defendant’s own account to be credible.

39.  To say the police would seek to induce her to make a statement by saying such a matter as fire-setting in a public estate could be dealt with by compensation is simply unbelievable.

40.  Furthermore, the defendant’s assertion that before the video-recorded interview she was told to simply repeat what was in the written record of interview is clearly not true as later in that video-recorded interview she went into great detail about she had set the fires in the bins and why she had done so. 

41.  Overall, I did not believe her or accept the defendant’s evidence as to how the admissions made by her came about and I rejected her testimony. I did bear mind when making this decision that the defendant has a clear record and that was clearly relevant when assessing the credibility and the reliability of anything she had said in the hearing or at any time.  Therefore, on the basis of PW5 and PW6’s evidence which I accepted, I found that the voluntariness of the defendant’s admissions have been proved beyond reasonable doubt and I admitted them into evidence.

The legal requirements

42.  The prosecution must prove the case beyond reasonable doubt.  The defendant is charged with a single offence of arson, contrary to Section 60(1)  and 63(1)  of Cap 200 and three offences with attempt to commit that offence. Insofar as the arson is concerned, the elements the prosecution must prove are that the defendant damaged by fire property belonging to another intending to destroy or damage such property or being reckless as to whether such property will be destroyed or damaged.  As far as the other three offences of attempted arson are concerned, she must of course do an act that is more than merely preparatory to the offence with the intent to commit the offence.

The General Issue

43.  The defendant did not give or call evidence on the general issue.  The defendant argued that the CCTV records were of little value as there was no independent verification of time stamps found on the recordings.  The area is busy, a large number of exits and entrances on the 4^th floor.  The recordings themselves only show the corridor upon which the defendant’s flat was located, not the lift lobby.  They showed the comings and goings of PW1 and her mother and the defendant on the day in question.

44.  In respect of the admissions made by the defendant, they were said to be confused. That her demeanour had shown anxiety whilst making the admissions, that she may have said things contained in the interview simply because she felt she should do so.  As I have already noted, the defendant has a history of mental illness dating back to 2008.

45.  Also it is said the admissions contained contradictions and no weight should be placed upon them.  There were some inconsistencies in the times at which the offences were said to have taken place and the defendant had said in relation to the fire on 6 November that she set the refuge container on fire but also later said that she had set fire to the garbage bag inside.

46.  It is clear that the prosecution case against the defendant that the proof of their case relies upon the defendant’s admissions.

47.  I note PW1 had no independent recollection of the times of the incidents, especially the one on 3 November, but she could verify that a fire did take place inside the garbage bin of the lift lobby that day.  She could also verify the existence of smoke or fire in the same location on 4 November. PW2 also saw the fire and was present for both fires on 6 November.

48.  The existence of the fire or fire setting is independently proved.  The prosecution, however, must prove the defendant set or attempted to set those fires. The admissions are the only evidence capable of doing so. 

49.  I have said already, the defendant did not give or call evidence on this general issue.  No adverse inference can be drawn from that decision. 

50.  The defendant is of clear record.  That is certainly relevant in this case when assessing her propensity to commit an offence of this nature and the credibility of anything said by her in relation to it.

51.  The record of interview was given on 6 November after the two fires on that date.  Its preamble refers to all four fires on the 3^rd, 4^th and 6 November. 

52.  The defendant at that time explained she has been made bankrupt and was harassed by debt collectors. She said the security guards failed to keep an eye on the entrances to the building and “consequently on 3, 4 and 6 November with a lighter. I set fire to the refuse container and the rubbish at the lobby on 4/F Hong Yam House. The purpose of doing so was that I wanted the Housing Department and the security guards to do more and pay attention to the security patrols on my floor. I know that I was wrong. Give me a chance.”

53.  This is sufficient if accepted to prove the prosecution case on all four charges. However in the Video Recorded Interview the defendant expanded upon this admission to include further details for example that she used the white lighter.

54.  Furthermore, it was she, she said, who called security, that on 4 November she set fire to the garbage bag and also on 6 November that it was the garbage bag that she had set fire to.  The defendant also gave expanded accounts for her motivation which was to increase the security of the building to stop her being harassed.  The defendant was expansive in the detail provided by her and appeared willing and keen that the police were aware of her motivation.

55.  Overall, having considered all the matters put to me, I found the defendant’s admissions to be truthful and reliable and left no doubt as to her setting the fires on all four occasions and explaining her motivation for doing so.  The CCTV record provides supporting evidence for this conclusion.

56.  It is clear that based on the evidence the prosecution has proved and which I have accepted each element of the four charges which she faces has been proved beyond reasonable doubt and I convict the defendant on those charges accordingly.