HKSAR v. TANG YUK WAH

CACC 183/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 183OF 2006

(ON APPEAL FROM DCCC NO. 1207 of 2004)

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J U D G M E N T

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Stuart-Moore VP:

1.  I agree with the judgment of Barnes J in the conclusion she has reached and I now add a few words of my own which are only made necessary by the note of dissent entertained by Stock JA whose judgment I have read in draft.

2.  By way of an overview of the facts, the prosecution at trial were able, from the applicant’s own confession to the police, to provide the motive, however bizarre, for these arson attacks.  Firstly, the applicant was frustrated at work and secondly, perhaps more to the point, he was angered by the way the block of flats in which he and his family lived had been managed and this was his way of obtaining some relief.  He then, undeniably and deliberately, caused these fires at a time when most people in the building could be expected still to be asleep.

3.  There were eight flats on each floor.  The applicant lived on the 13^th floor whereas the fires in August and September were lit, respectively, three floors below and two floors above his family’s flat.  The earlier of the two fires, on 5 August 2004, caused enormous damage and, as the judge effectively observed, it was sheer good fortune that no one was seriously injured as the occupants of the flats near the fire had been unable to leave their homes until the fire had been put out.  The applicant continued to live in the block following this fire.

4.  The applicant’s subsequent interviews on videotape revealed the applicant as a composed and relaxed individual who willingly provided considerable detail about himself and these offences.  At one stage the applicant agreed to the suggestion in regard to the first fire that people could be affected or hurt by his actions and stated that he regretted this very much albeit, later, he added that he believed the fire would be quickly detected and put out by “watchmen” who patrolled the floors of the building and he did not realise the consequences.  With regard to both fires, the applicant was able to provide a vivid recollection of his movements, his reasons for acting as he did, the items including a cigarette lighter which he had taken with him before setting light to the materials he used for the fires and what he had done afterwards.

5.  When the trial commenced, the judge dealt with a voir dire for what began as an exercise to determine the admissibility of the applicant’s confessions although, in circumstances I will deal with shortly, the hearing also came to involve an application to stay the proceedings.  Giving evidence at this stage, the applicant was able to provide testimony which went into great detail about alleged police malpractice from the time of his arrest on 16 September 2004 until he was interviewed.  The judge made reference to some parts of the account given by the applicant, repeated later when the applicant testified on the general issue, in these terms:

“13. In giving evidence, the defendant was able to recollect that he was shown at the time of his arrest a court warrant which was written in English. When he was taken away by the police from The Seacrest he saw a security guard and many people downstairs. He was hooded and his vision was partially blocked. He described in detail that there was a long staircase at the Castle Peak Station. When he was later taken to Tuen Mun Police Station there was a long corridor. He was given a Chinese brand cigarette and he smoked it at a place where the water dispenser was placed. He remembered the taste of the cigarette was bad. These are just a handful of examples showing that his evidence contains remarkable and meticulous details about his arrest. It is in clear contradiction of the defendant’s claim that he suffers from memory lapse or deterioration. There are no merits for the application to stay the proceedings.”  (Appeal bundle p. 16)

In this context, it is to be remembered that the applicant’s trial began on 15 March 2006, about 18 months after the events he was describing.

6.  Despite the apparent clarity of the applicant’s account on most things which called for his recollection, Mr Ross, the applicant’s counsel in these proceedings who also represented the applicant at trial, suddenly extended his application before the trial judge to take in a further application for a stay of proceedings which he anticipated would be on the basis that the applicant could not “properly acquit himself”.  In furtherance of this application, he then sought to call the evidence of a psychiatrist.  This all happened at a stage after the applicant had outlined some of his complaints about the actions of the police.

7.  When Mr Melville Boase, acting on fiat for the prosecution, rightly queried the purpose of calling a psychiatrist during the voir dire and Mr Ross was asked by the judge to explain his position, Mr Ross gave responses, in the context of the following dialogue, which may with respect have given very little assistance:

“… It’s having given his evidence, the question is whether his - - whether you’re in a position to accept when you see him give evidence that he has got not a good memory, and if that’s the case, we’ll take it from there as to whether he’s sufficiently able to stand his trial.

Court: Are you suggesting that you are taking the point about the defendant’s fitness to stand trial or not?

Mr Ross: Well, to give evidence at least, and I guess a part of that - - that’s part of undertaking a trial.

Court: Right. I’m not sure if you understand the position of the defence.

Mr Boase: Well, your Honour, I would say quite simply that if it was a matter that they say that their client is not fit to stand trial, that is a preliminary issue ...

Court: It is.

Mr Boase: … which should have been dealt with. We’ve got psychiatric reports.

Court: Indeed, yes.

Mr Ross: I’m sorry, your Honour.” (Appeal bundle p. 52)

8.  The applicant had referred in his evidence to a worsening memory over the past year but when asked if his memory was good, average or poor, he had replied: “Ordinary”.  Indeed, before the trial started, there had, according to Mr Boase, in a statement which was not disputed, been an examination of the applicant’s mental state and he had been found fit to stand his trial.  In such circumstances and in the light of the rather uncertain way Mr Ross had advanced his application, the judge cannot in my view be criticised for agreeing to see what developed by giving the psychiatrist’s evidence a fair hearing.  This is precisely what happened and, having regard to the evidence the psychiatrist gave, it is not surprising this was given relatively short shrift.

9.  The psychiatrist, Dr Ho, had spoken of seeing the applicant on just two occasions, 25 January and 27 February 2006.  He was asked during the trial itself if the applicant could give a complete account of what had happened and he replied: “Yes, his memory again [is] somewhat similar to what he has just presented to us” and during the voir dire he referred to the applicant’s memory lapses as being:

“On the whole I think … genuine. … Basically because I think we have also to take his medical history into account. … Basically I think the doctors in Siu Lam also had diagnosed he seemed to be suffering from a problem of chronic alcohol and drug abuse. … patients who [are] abusing these drugs for a long time, they could have memory problem.” (Appeal bundle pp. 54-55)

10.  Dr Ho later expressed the opinion that this was not a situation where the applicant was unable to stand trial although he thought that the applicant’s memory was worse than an ordinary person’s based upon the applicant’s account that he was, by the time of trial, unable to recall much about his actions at the time of the two fires.

11.  When he provided the reasons for rejecting the application to stay the proceedings, the judge said (as set out in paragraph 5 above) that from a handful of examples the applicant had contradicted himself by going into meticulous detail about the events at the time of his arrest.  It would have been quite remarkable if the judge had concluded in any other way.

12.  It is, therefore, unedifying to read in Mr Ross’ ground of appeal that “in assessing whether the applicant was (a) suffering from any memory impairment … the judge erred in rejecting the evidence of expert witness [Dr Ho] by means which were irrational, perverse and inaccurate”.  This kind of language, except perhaps in the most extreme situations of which this was most certainly not one, does not belong in responsible grounds of appeal and it goes almost without saying that the wild phraseology used here by Mr Ross was utterly misplaced.  The judge’s rejection of the psychiatric evidence in relation to memory impairment was both sensible and fully justified and I consider that the ground of appeal on this aspect was bereft of merit.  In the context of all the evidence presented to the judge about the applicant’s alleged memory impairment, Dr Ho’s evidence had become “valueless and meaningless” to adopt the judge’s phraseology.  It seems to me that this was an entirely apt description.

13.  There is then the second part of the appeal ground to be considered.  This relates to the judge’s rejection of Dr Ho’s evidence on the general issue in regard to “whether the applicant was … (b) reckless as to whether life would be endangered by intentionally or recklessly destroying property particularized in charges 1 and 2”.

14.  In my opinion, when Dr Ho was called a second time to give evidence on the general issue, the applicant received the benefit of evidence on an issue which he was not strictly entitled to raise.  However, for present purposes, it may not much matter whether or not the applicant had any entitlement to have this evidence heard as the judge permitted Dr Ho’s evidence to be given and rejected the opinion expressed by Dr Ho that the applicant may not have been able to appreciate the consequences of his actions when setting the fires.  The judge convicted on the basis of recklessness in the context of evidence showing that the applicant was in the regular habit of taking alcohol and drugs.

15.  Recklessness, which is at the root of the allegations in this case, was considered in DPP v Majewski [1977] AC 443, (conveniently set out in Archobld Hong Kong [2007] at paras. 16-49, p. 976) where Lord Elwyn-Jones said:

“If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition.  His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent.  It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea [in such cases] [at pp 474-475].”

16.  The judge, albeit not apparently having specifically considered the decision in Majewski, convicted the applicant on the basis of recklessness having taken into account not only the timing of the fires but also the evidence that in the August fire the applicant had positioned this at the entrance to one of the flats on the 10^th floor and, in the September fire, he had set the fire on the public stairway which acted as an emergency escape route in the event of fire.

17.  Dealing with the applicant’s credibility, the judge said:

“16. As to the defence case concerning the general issue, the defendant emphasised that he just had ‘a little bit of recollection’ about the August and September fires. The two incidents occurred in highly similar circumstances. His account of the events were that he had taken some medications at his home, and upon seeing many empty beer cans lying in the garbage bag he feared that his wife would find out that he had been drinking earlier. He decided to discard the garbage bag outside his home. In the course of garbage disposal, he took out a cigarette to smoke. He then walked for a while and returned home.

17. The defendant avoided mentioning anything about the fire. He hinted about the fire, if at all, by using the phrase of ‘smoking a cigarette’. He did not elaborate why he ended up discarding garbage on the 10th and 15th floors of The Seacrest on the two occasions. He merely put it in an indirect term by saying that he ‘walked for a while’. The words used apparently were carefully chosen by the defendant. Upon being confronted by his own counsel who specifically asked about the issue of fire, the eventual reply of the defendant - apparently with much reluctance - was that ‘Yes, I have a little impression of that.’

18. The defendant formulates his story in vague terms. It is a deliberate and calculated attempt to avoid using unequivocal terms in his evidence. I do not believe the defendant is able to recall matters of trivial nature whilst forgetful about matters of significant importance. The so-called ‘memory lapse’ is not genuine.”  (Appeal bundle pp. 17-18)

18.  When the judge continued, by dealing with the applicant’s state of mind at the time of the fires, he said:

“19. Dr Ho testified that the defendant possibly was unable to appreciate the consequences of his acts in respect of both fires. He and the defendant reiterated that the drugs and alcohol abuse was the possible cause of the defendant’s inability to recall the details of what happened to both fires. The defence, in effect, revived the issue concerning the memory lapse. Dr Ho was of the view that the defendant, in setting the August fire, was likely not being able to fully appreciate being aware that the fire would spread. In reaching such conclusion, Dr Ho, apparently with much embarrassment, accepted that he had not seen the 33 photographs, Exhibit P1, which depicted [the] horrifying scene of the August fire. Without referring to one of the most revealing pieces of evidence, Exhibit P1, the conclusion of Dr Ho, in my judgment, is not soundly based.”  (Appeal bundle p. 18)

19.  The possible inability of the applicant to appreciate the consequences of his actions might have been a highly relevant consideration if there had been any evidence that the applicant’s drinks had been spiked without his knowledge so that, for example, they contained more drugs than he intended to consume.  However, this was not the case here.  The applicant, at all times, accepted that he had voluntarily taken both alcohol and drugs and when asked by the police if he was aware of the effects of his excessive use of sleeping pills, the following dialogue (where the applicant’s words are shown against the letter ‘B’) occurred:

“…    In fact, do you all along have the habit of taking sleeping pills?

B:      Yes.

A:      Since when have you started the habit of taking sleeping pills?

B:      Er, long time ago.

A:      How long?

B:      Mm. One to two years, I thought. [A: Mm.] I - I - no. It should be one - should be one - one - one year or so, [A: Mm.] one year or so.

A:      Well, Okay (original in English). One year or so, [B: Huh.] having the habit of taking sleeping pills. As for the dosage, normally, how many tablets would you take?

B:      Very little at the beginning, at the beginning [Noise] at the beginning, half a tablet could make me sleep well. [A: Mm.] However, the dosage seems to have a gradual increase.

A:      Mm. [B: Uh.] Gradual increase in [dosage] means ...

B:      Now, I can’t be sure each - er, I mean how many tablets are taken daily.

A:      Mm. [B: Huh] Well, at most? At present - I mean at present - you said your dosage has been on the increase. Well, now how many tablets do you take at most?

B:      Ten tablets. [A: Mm.] Ten tablets.

A:      Mm. Well, having taken so many tablets of sleeping pills, would (you) - in that state of mind, how would you behave?

B:      Seems to feel dizzy but cannot sleep. Anyway, the head, er, the brain seem like wandering and floating around but I don’t feel sleepy, on the contrary, (I) feel energetic. [A: Mm] Huh. However, my mind seems like floating around, not know what’s going on, seems like.

A:      Anyway, can you think?

B:       (I) can’t think.

A:       [Noise] That means physically is still feeling so energetic and is not able to fall asleep. Right(?) Even so many, namely, 8 to 10 tablets of sleeping pills have been taken as you m-mentioned, you would still feel so energetic, but, er, -- (you) can’t fall asleep, but feeling so energetic. Right? That’s what you said [just] now?

B:      Right. Right.

A:      Mm.

B:      Sort of. [A: Mm.] However, However, (my) limbs, -- I mean (my limbs) seemed a bit weary. [A: Mm.] However, (my) eye(s) was/were not tired. [A: Mm.] (my) eye(s) was/were not tired, but physically I felt like floating, [A: Mm] and could not do any thinking.

A:      Well, how come - [C: Coughing sound] you said that you could not do any thinking, you still could, er, according to what y-you said, er, take the bag of rubbish to discard one bag at the doorway of your residence, [B: Right.] and then further walked upstairs to the 15/F led by the staircase above your residence, and then discarded the bag of newspaper you mentioned into the rubbish bin that, and set fire to burn them? How come you could still do so?

B:      I don’t know. I mean I only remember, huh, it was just after dawn, (I) saw, huh, that rubbish bin, I mean there were many beer cans inside my (rubbish bin). I said, oh, I considered that my wife might come back at any time, as (I) d-didn’t know if she needed to OT (work overtime). So, in a great hurry, I only remembered to take that bag. Then, not kowing why, (I) offhandedly took the newspaper, huh [C: Coughing sound], and together with the lighter, I then opened the door and went out. [A: Mm.] Having gone out, I only remembered to discard the bag of mine, er, the bag containing beer cans first. Huh. Then, after discarding it, I intended to turn round and go, but, er, it seemed there’s something, something being held in my hand, not knowing what it was . Then, out of nothing, I looked-looked-looked around, then I walked to the floor above. That’s it.

A:    What’s followed?

B:    Then, discarded - discarded the stuff into the rubbish bin and then had it lit with a lighter.” (Appeal bundle pp. 162-166)

20.  It is apparent from these answers that the applicant was not only aware that he had taken the sleeping pills which affected his mind but also that he knew their effect.  The case presented on the applicant’s behalf was one to which no real defence to reckless arson was ever put forward but whether for this reason or the reason given by the judge, the result is precisely the same.

21.  In my opinion, the applicant was properly convicted on an overwhelming body of evidence on both of these charges and I would dismiss the application.

Hon Stock JA:

22.  On the basis upon which the trial in the court below was conducted, I cannot agree that the evidence of the psychiatrist was not admissible and on the basis upon which the trial was conducted, the approach of the court to the psychiatric evidence was in my judgment far from satisfactory.  That said, I do have doubts about the relevance of the psychiatric evidence but my doubts have a foundation entirely different from those expressed in the judgment of Barnes J in this appeal.  That foundation is one canvassed neither in the court below nor before us on appeal.  It is whether the defence to recklessness offered, namely the effect of drugs, in combination with drink, on the level of the applicant’s awareness of likely consequences when he set the fires, could be a defence at all. 

23.  In relation to criminal culpability, the issue that arose in this case was that identified by the test in Sin Kam Wah, to which reference is made at paragraph 81 below: whether the applicant appreciated or foresaw the risks involved in his actions.  His case was that he did not.  It was for the prosecution to prove that he did.  In this regard the applicant specifically asserted both in his interviews with the police and in his testimony before the court below that at the material times he was so affected both by a drug and/or by drink that he had been consuming that he did not appreciate the danger to life constituted by his acts.  That being so, it was for the court to determine in relation to each charge:

(1)     whether at the time he started the fire, the applicant was affected by either drugs or drink or a combination of both;

(2)     if so, whether the risk to life which would be apparent to the normal person who had started fires in the places chosen by the applicant was by reason of the drugs and drink he had consumed not apparent to the applicant; but 

(3)     if so, whether there was anything in the nature of the drug he had taken, or in the combination of the drug and drink, that might negate the applicability of the rule in DPP v Majewski [1977] AC 443, that:

“If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition.  His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent.  It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea [in such cases]”

per Lord Elwyn-Jones LC at pp 474-475.

24.  The rule in Majewski will not apply where, in the case of a drug, the drug is not generally known to cause unpredictable and uncontrollable conduct, but even in such a case, the rule will apply, it seems, if that effect is known to the particular defendant.  So, for example, if a defendant “does appreciate the risk that [taking the non-dangerous drug] may lead to aggressive, unpredictable and uncontrollable conduct and he nevertheless deliberately runs the risk or otherwise disregards it, this will amount to recklessness”: Bailey [1983] 2 All ER 503, at 507; discussed in Smith & Hogan 11th ed., page 282.

25.  This cardinal issue was not addressed.  It was addressed neither at trial nor before us at the hearing of this appeal.  Instead, it seems to have been assumed at trial that if the applicant could show that he was sufficiently affected by drugs and drink – or rather if his testimony to that effect was not negated by the prosecution – he was entitled to be acquitted.  But the rule in Majewski suggests otherwise save in the limited circumstances to which I have referred but which were not explored before the court below or before us. 

26.  That the effect of drink and drugs on the applicant’s awareness of the consequences of his acts was raised is clear enough and it was raised on the very day of his arrest.

27.  The interview on 16 September 2004 took place in the early afternoon.  The applicant said to the officers when asked that he was in fine fettle and it is apparent from that interview that upon his arrest that day he had provided some detail as to how he had started the fire on the 15th floor some eight hours previously.  He did however say this at the time of his arrest:

“Ah Sir I have taken some sleeping pills and thus burnt the rubbish bin while I was not in a clear state of mind”. (emphasis added)

28.  In the course of the interview that followed, he provided his exact working location and his working hours, the nature of his employment and that of his wife and an account of the pressure to which he had referred when he was arrested.  He had said that he had set fire to the rubbish bin to relieve pressure at work.  He said that he was feeling dizzy at work and went to a convenience store and bought six cans of beer, consumed two or three, took a nap and upon waking, consumed more.  He felt drowsy and then he started taking medicine.  At work he had already taken two tablets intending to go home to sleep but at home he took several more tablets.  When he awoke at about 6 a.m. he took beer cans out for disposal and he said that he took them to an upper floor and “seemed like not knowing what’s going on.”  (page 148, appeal bundle)  Then he went home and took another sleeping pill and when he awoke the police were there looking for him.  Later, in the course of the same interview he said that the pressure at work had been such that “I really don’t know what’s going on.  It seems that I have gone out of my mind.”  (pages 150- 151)  He said he had set fire because he felt agitated because he was being picked upon at work and “it seems like I have no idea as to what's going on.  It seems like pain, and it seems like emptiness.”  (page 153)  He said that where he had set fire “there was a smoke lobby door… and [the smoke] would not affect others too much … at that place … at the rear staircase.  That means no one would walk past the place.  Therefore, I considered burning something there would not… affect others at all.  However, I know it's wrong”  (page 154).  (emphasis added)

29.  Then the officer asked this question:

“Well you just said that you knew it is wrong.  Well, however, do you know it was still very dangerous to burn the rubbish bin at the said location at the rear staircase?  Do you know?

A: Now, I know.

Q: How about at that time?

A: At that time, at that time, I really did not know at that time ….”

He was specifically asked how many sleeping tablets he had taken the previous night.  He said that he had taken many, at least eight.  The police, he suggested, had taken one packet as an exhibit.  He had, he said, been in the habit of taking sleeping tablets for about a year.  His daily dosage had by now increased to about ten.  After taking so many tablets he felt dizzy and “the brain seem like wandering and floating around but I don't feel sleepy, on the contrary, I feel energetic.  However, my mind seems like floating around, not know what's going on, seems like.”  In such a condition he could not think.  He suggested as well that he was temporarily disordered meaning “I myself sometimes… feel dizzy and have no idea what is going on.  It seems like that I'm having disorder.”  (emphasis added).

30.  He was interviewed again about an hour later.  The record of that interview became exhibit P5.  He said that he was in a fit state of mind to be interviewed.  In the course of the interview he was asked about some alleged criminal damage at the building in which he lived.  He gave some detail of what he had done in that regard several months previously.  Then he was asked about another incident on 7 July 2004 and about another series of alleged arson incidents; but in relation to these his memory was uncertain, so he said.  Eventually the police arrived at the suggested incident on 5 August 2004 relating to a fire on the 10th floor.  In relation to this one, the applicant had a clear enough recollection.  He said that he wanted to dispose of rubbish but there was no rubbish bin to be found and he walked from floor to floor looking for one.  Eventually he found on one floor that there were carpets placed outside a few flats and there were also shoes and he put a newspaper on that and he was angry and he lit the newspaper underneath “intending to produce a little smoke only … and then left.”  (page 268).  He added that he did not intend to cause such a big fire and had placed the carpets on top so as to drive out the smoke.  He was specifically asked whether he did not find his act dangerous, one that would hurt others and he said:

“Yes, so I regret very much, that is … in the beginning I thought that those carpets were thick and so they would not be so easily lit, and (I) lit the newspaper to drive the heat out only, and … once the smoke was out, I suppose someone would very soon be aware of that and there would also be watchmen arriving, (and) those security (guards) would patrol floors, and would smell the smoke, and would very quickly put out the fire ….” 

Prior to this incident he had also, he asserted, consumed beer and taken some medicine.

31.  In his report, Dr Ho, the psychiatrist said that the drug that had been taken was Zopiclone, a fact that did not appear to be in issue; indeed the police had found tablets in his flat.  The doctor’s opinion was that the applicant’s acts were affected by drink and drugs and he said this:

“… it must be noted that persons under the effects of high dose of hypnotic drugs could still perform seemingly purposeful or even apparently organised behaviour though they could have total or partial amnesia of their action afterwards.  They may not necessarily behave in markedly disorderly manner similar to that of drunkenness.

….

A case had been reported in the literature where a housewife after taking a large quantity of sleeping pills had committed robbery with a toy gun with little awareness of her act afterwards.  (Reference attached in the appendix).

….

In my view it was likely that he was under the effects of hypnotic and alcohol at the material time of his offences and there was doubt whether he would have committed the offences if he had not taken these substances.  Under the effects of these substances that he had taken in large quantities there was also doubt whether he could be fully capable of appreciating the consequences of his acts.”

32.  In his testimony, he offered the opinion that the applicant was most likely not at the material time fully aware of the consequences of his acts “because of the substance intoxication”, and in support of this proposition he referred the court to a text from a psychiatric work which said in terms that patients with substance intoxication may set fire because of the failure to appreciate the consequences of their act.  He said, further, in cross-examination (page 84) that this was not merely a case of having taken a few beers but it was also the hypnotic drugs, drugs in “a very substantial amount … far, far above the ordinary dose.”  He did not suggest that the applicant did not appreciate at the material times that he was in fact setting fire but merely that he did not realise the serious consequences of doing so.

33.  Against this background, it is said at paragraph 85 below that the question whether the applicant was reckless as to whether the lives of others would be in danger was a matter purely within the province and judgment of the trial judge and that this was not a case in which expert evidence should have been admitted on that issue.  Putting aside for the present the Majewski issue, I cannot, with respect, agree, and I note in this regard that the conclusion at paragraph 85 below is not advanced because of any application of the rule in Majewski.  On the basis upon which the case was in fact fought, whilst the fact of drug and alcohol consumption was not for the psychiatrist to establish, it was perfectly within his realm of expertise to offer an opinion as to the effect on a person’s mind of the consumption of the suggested quantity of drugs and drink either in isolation or in a case of chronic substance abuse.  If there were case studies – as apparently there were – about the effect of substance abuse upon the consequence-awareness of arsonists, then that was a matter of expert study that quite properly could be put before the court.  Similarly, it was within his realm of expertise to tell the court that the dosage of eight tablets of this particular drug was “far, far above the ordinary dose.”  Whether eight tablets had in fact been taken is another matter, a matter for the court exclusively to determine.  But assuming they had been taken, I would have thought that a court would wish to know, with the help of expert evidence, what the normal dosage was.  So too, was it a matter of admissible expert evidence that a person under the effect of a high dose of hypnotic drugs “could still perform seemingly purposeful or even apparently organised behaviour [and] they may not necessarily behave in markedly disorderly manner similar to that of drunkenness.”

34.  On the basis upon which the evidence was received, I do not, with respect, think that the judge’s treatment of the psychiatric evidence in relation to recklessness, was satisfactory.  In dismissing his evidence, the judge placed particular emphasis on the fact that the psychiatrist had not seen the photographs that depicted the scene of the fire stop.  The judge said: “Without referring to one of the most revealing pieces of evidence [the photographs] the conclusion of Dr Ho, in my judgment, is not soundly based.”  That, with respect, was not logical.  If the doctor was correct, that the effect of the substances consumed upon a person’s judgment as to the consequences of his act was normally significant, it is then of little use to point to the consequences of his act as demonstrating that his judgment was not affected. 

35.  It is noteworthy that the judge seems to have accepted, or to have proceeded on the assumption, that the applicant had in fact consumed the medicine in question and in that regard he simply said, at para 20 of the Reasons for Verdict:

“Despite such consumption and in respect of Charge 1, he was able to assess the potential consequences of setting the fire.  See, for examples, paragraphs 326 to 329 of Exhibit P5B”.

Those paragraphs do indeed include a suggestion that the applicant was aware that the act of setting fire on that occasion would hurt others but the paragraph taken as a whole is sufficiently ambiguous in its effect that it drove the interviewing officer to say in the very question that immediately followed:

“… that is, (you) did not know what the consequences would be like this, do you agree?

A: Agree.” (Emphasis added) .

36.  Then the judge placed reliance on the fact, in relation to the second charge, that despite the fact that the defendant had taken sleeping pills and had consumed cans of beer, he was, so he had said in his interviews, still energetic; as if energy gave the lie to the defence:

“As to Charge 2, the defendant was still ‘energetic’, and it can be seen from paragraphs 287 and 288 of Exhibit P4B.  That is after taking some sleeping pills and drinking five cans of beer, I may add.  The truth is that the medications and the alcohol have not affected the defendant’s judgment at all.” (para 21 of the Reasons for Verdict).

37.  Again, this was but part only of the picture and the conclusion did not follow from the premise, especially not in light of the evidence that had been given.  In the very passages referred to, the applicant had been describing to the police the condition induced by the drugs he had taken, namely, hyperactivity but an unclear mind.  The psychiatric evidence had been to the effect that patients long used to sleeping drugs become enured to them in the sense that they may not induce sleep even though they may affect the level of awareness of consequences of conduct.  Most particularly, the psychiatrist said that despite a high dose of hypnotic drugs a person might still perform in a purposeful and organised way.  The judge’s conclusion that energetic behaviour was inconsistent with a lack of awareness ignores that evidence.  It was open to the judge to reject it, but he was bound to address it and there is no sufficient indication that he did so.

38.  In relation to the preliminary issue taken at trial, namely whether there should be a stay based on the suggestion that the applicant’s memory was so poor that it would be unfair to try him, it seems to me that the basis upon which the trial judge rejected the application was perfectly valid.  He simply did not believe the allegation of loss of memory and that conclusion was based upon the acute detail about a whole series of events provided by the applicant when giving evidence.  That said, having decided to entertain the stay application on the basis advanced, it seems to me that the judge’s treatment of the psychiatric evidence was all too dismissive and also, with respect, based on an erroneous reading of the evidence.  I mention this because it is symptomatic of an approach to which I have referred on the general issue and with which I am not happy.  The judge emphasised his suggestion that the psychiatrist's evidence had been contradictory, and gave as one example the fact that the psychiatrist had said that the defendant’s memory was worse than that of an ordinary person but had also allegedly said that that was part of human characteristic.  There was in fact no inconsistency in the evidence of Dr Ho.  What he in fact said was that memory loss was a human characteristic but that this applicant’s memory was worse than that of an ordinary person.  The judge then immediately added: “The medical opinion of Dr Ho with respect is valueless and meaningless.”  That was a strange thing to say.  It would have been open to the judge to say that he rejected the evidence of this psychiatrist because of the detail that the applicant had provided in evidence.  Yet to say that it was meaningless was to go too far.  In relation to the issue of memory, the psychiatrist told the court that it was well-known that patients who abused the drugs taken by the applicant for a long time could have memory problems; a fact well-documented.  He told the court that a person taking an excessive amount of hypnotic drugs might at one stage appear to be organised and in good memory but later have no recollection of the incidents at all and he referred to the fact that the applicant had been at Siu Lam Psychiatric Centre where he had received certain psychiatric drugs.  Given that the court had agreed to determine the issue of the state of the applicant’s memory, I fail to see why it was not open to the psychiatrist to tell the court of the long-term effect of hypnotic drugs on memory, and I fail to see how in this context the judge was justified in referring to this evidence as meaningless.

39.  The position at which I arrive, for the reasons I have given, is this: the psychiatric evidence in relation to the stay application was admissible to the extent I have indicated, and I take the view that the judge’s treatment of the psychiatric evidence in that regard was altogether too dismissive, and the particular example given in support of his dismissal of it was not valid.  I nonetheless am of the view that the question whether there was in fact a memory loss at trial was ultimately for the judge and that the judge provided a sound and supportable reason for rejecting the psychiatrist’s conclusion, namely the detailed evidence that the applicant was able to provide.  As to the general issue, the judge’s analysis of the psychiatric evidence was not at all satisfactory and on this basis I would, but for one matter, allow the appeal.  That one matter is the Majewski question and I would restore the hearing of this appeal to hear counsel on the question whether because of the rule in Majewski this is a case for the application of the proviso: in other words, even accepting that the applicant’s judgment was or may have been affected by the consumption of the drug in question together with drink – as to which the evidence of the psychiatrist was in my judgment admissible – how that fact could provide a defence to the charge, especially in this case when the applicant well knew from experience how consumption of the drug tended to affect him.

Hon Barnes J:

Background

40.  The applicant was convicted after trial of two charges of Arson with intent before Deputy District Judge Symon Wong, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200.

41.  The applicant was sentenced to 4 years 9 months for the 1^st charge and 2 years 9 months for the 2^nd, with one year of the 2^nd charge to run consecutively to the sentence imposed on the 1^st charge, making a total of 5 years 9 months’ imprisonment.

42.  The applicant applies for leave to appeal against conviction only, having earlier abandoned his application for leave to appeal against sentence.

43.  The trial was in fact a re-trial, the Court of Appeal having allowed the applicant’s appeal on a point of law.  The then trial judge adopted the “Caldwell Test” (i.e. objective test) when dealing with the issue of recklessness.  The Court of Appeal held that the correct test was the one propounded by the Court of Final Appeal in the case of Sin Kam Wah v. HKSAR [2005] 2 HKLRD 375, (i.e. subjective test).  The judgment of the Court of Appeal can be found in HKSAR v. Tang Yuk Wah, CACC 132/2005.

Prosecution case

44.  At all material times the applicant resided at Flat A, 13^th floor of Block 2, the Seacrest — a development in Tuen Mun.  The Seacrest consisted of two mulit-storey residential buildings.  There were 8 flats to each floor of Block 2.

45.  At 4:45 a.m. on 5 August 2004, a fire broke out outside two flats (Flats A & B) on the 10^th floor of Block 2, the Seacrest.  Slippers, shoes, carpets, wooden doors and lift doors were damaged by fire.  The occupants of the two flats were unable to leave their flats until the fire was extinguished (“the August fire”).

46.  At 6:30 a.m. on 16 September 2004, another fire broke out in the same building.  This time a rubbish bin at the staircase of 15^th floor was damaged by fire (“the September fire”).

47.  On 16 September 2004, the police arrived at the applicant’s home on 13^th floor and informed him that he had been under police surveillance.  The applicant admitted under caution that he was responsible for the September fire.  In the post-record of the verbal admission, the applicant also admitted that he set fire to the rubbish bin to vent his anger as he had been under pressure from work.

48.  The applicant was video-interviewed twice after he was brought back to the Tuen Mun police station.  During these two interviews, the applicant not only admitted responsibility to both the August and September fires, giving details of how he committed the offences, he also gave details relating to the work pressure he was under, his anger and frustration.  The applicant also referred to his dissatisfaction with the management of the Seacrest.

49.  In relation to the August fire, the applicant admitted collecting and piling up two carpets and shoes before setting them on fire outside Flat A.  In relation to the September fire, the applicant admitted setting fire to a bag of newspapers he threw inside a rubbish bin.

50.  In respect of both the August and September fires, it was the prosecution case that the applicant damaged the properties with intent or being reckless as to whether the properties would be damaged and that the applicant was reckless as to whether the lives of others would thereby be endangered.

The defence case

51.  The admissibility of the confession statements was challenged on the grounds of police assault, threats and oppression.  While the applicant was giving evidence in the voir dire (by alternative procedure), Mr Phillip Ross, counsel for the applicant during the trial, applied to have the trial stayed on the ground of “memory impairment” suffered by the applicant.  In support of the application, the defence called a psychiatrist, Dr Peter Ho, to give evidence.  The application to stay was unsuccessful.  We will come back to this later.

52.  After the trial judge ruled the cautioned statements admissible, the applicant gave evidence in his defence.  The applicant never denied having set fire to the properties.  There was no allegation that any of the detailed descriptions he gave during the video-recorded interviews were incorrect though some of the descriptions he gave at trial differed.

53.  In relation to the August fire, it was the applicant’s evidence that he put the carpets and shoes on the floor, lit a tissue paper and threw it down about “3 feet outside the smoke door of the rear staircase”.  He claimed he did not think that the fire from the tissue would spread to the carpets and shoes.

54.  In relation to the September fire, the applicant said he set fire to the newspaper but did not think that the fire would spread to the rubbish bin.

55.  When confronted with his versions in the video interviews, the applicant claimed he could not remember clearly while admitting at times that he did have some recollection.

56.  It was the defence case that the applicant did not appreciate, when he caused the fires in August and September, that the lives of others would thereby be endangered.

Ground of Appeal

57.  Mr Phillip Ross, counsel for the applicant before us, tendered only one ground of appeal.  It is contended that in assessing whether the applicant was (a) suffering from memory impairment; and (b) reckless as to whether life would be endangered by intentionally or recklessly destroying property particularized in charges 1 and 2, the trial judge erred in rejecting the evidence of Dr Peter Ho by means which were irrational, perverse and inaccurate.

58.  Mr Ross referred to the following findings of the judge in his Reasons for Verdict (para. 12) :

“Some parts of the evidence of Dr Ho, as conceded, are clearly subject to much qualifications.  Other parts of his evidence, especially on the central issue of the defendant’s memory impairment, are ambiguous if not contradictory.  He commented, for example, that ‘the defendant’s memory is worse than an ordinary person’s’, and then he went on to say, ‘but that is part of human characteristic.’  The medical opinion of Dr Ho, with respect, is valueless and meaningless.”

59.  Mr Ross submitted that the judge took Dr Ho’s evidence out of context.  He referred us to the transcript and submitted that Dr Ho’s evidence was, in essence, that it was part of human nature for people to forget things : that the applicant’s memory, however, was significantly worse than that of a normal person.

60.  Mr Ross submitted that Dr Ho’s evidence was unremarkable and accorded with common sense, that his evidence was not valueless and meaningless, and that the findings of the judge were therefore irrational and perverse.

61.  Mr Ross also referred to the judge’s findings on Dr Ho’s evidence on the general issue (para. 19) :

“Dr Ho testified that the defendant possibly was unable to appreciate the consequences of his acts in respect of both fires.  He and the defendant reiterated that the drugs and alcohol abuse was the possible cause of the defendant’s inability to recall the details of what happened to both fires.  The defence, in effect, revived the issue concerning the memory lapse.  Dr Ho was of the view that the defendant, in setting the August fire, was likely not being able to fully appreciate being aware that the fire would spread.  In reaching such conclusion, Dr Ho, apparently with much embarrassment, accepted that he had not seen the 33 photographs, Exhibit P1, which depicted the horrifying scene of the August fire.  Without referring to one of the most revealing pieces of evidence, Exhibit P1, the conclusion of Dr Ho, in my judgment, is not soundly based.”

62.  Mr Ross accepted that both fires caused damage.  He submitted that the issue was whether the applicant could appreciate the risk that this might happen.  The fact that one of the fires in particular did cause extensive damage which would be clear to a normal person does not, he argued, assist in determining whether it was clear to the applicant.  It was Mr Ross’s contention that the judge’s rejection of Dr Ho’s evidence in this respect was illogical.

Was it a proper case to have expert evidence?

63.  Before considering whether there is any merit in the ground of appeal, it is necessary to determine whether it was proper for expert evidence to be adduced in the present case.

64.  Reading from the transcript, it is quite clear that the applicant, when giving evidence during the voir dire, deviated in a rather significant way from the written instructions he had given to his legal representative.  The applicant himself categorized his memory as “ordinary” and testified that his memory had changed in that “very often he forgot something” (page 40 line N of the additional transcript of the applicant’s evidence).

65.  Mr Ross indicated to the judge that he would make an application for a stay in due course on the basis that the applicant could not “properly acquit himself”, could not “fully acquit himself in the witness box because he [could not] remember the events surrounding the giving of the notebook entry and the videotape” and that a psychiatrist would be called in support of the application (pages 41 line U and 42 line K of the said transcript).

66.  Mr M. Boase, solicitor on fiat for the prosecution, indicated to the court that there had been an investigation into the applicant’s mental state and that he was found fit to stand trial (page 42 line B of the said transcript).  After the applicant finished his evidence, Mr Boase queried whether Mr Ross was trying to say the applicant was not fit to stand trial. Mr Ross’s reply was : “… whether [the judge is] in a position to accept when [the judge] sees [the applicant] give evidence that [the applicant] has not got a good memory…” and if so, to “take it from there as to whether [the applicant is] sufficiently able to stand his trial” (page 52 line F of the said transcript).

67.  In any event, Dr Ho’s evidence was received by the court.  Dr Ho’s written report was adduced in evidence (Exhibit D2).  Dr Ho interviewed the applicant on 25 January 2006 and 27 February 2006, shortly before the re-trial (which took place on 15 March 2006).  Dr Ho had not seen the applicant before.

68.  According to Dr Ho, the applicant gave a history of alcohol and drug (sleeping pills, cough medicine) taking.  The applicant’s wife also told Dr Ho the applicant drank heavily and took sleeping pills with alcohol.  Dr Ho conducted memory tests and found the applicant’s short-term memory somewhat unsatisfactory and his long-term memory poor.  It was Dr Ho’s opinion that the applicant had a problem of drug and alcohol abuse.  He also said that it was likely that the applicant had been suffering from anxiety and depressive symptoms.  Dr Ho was of the view that the applicant’s memory problem might be related to his chronic drug and alcohol abuse and depression.

69.  Dr Ho testified that he was in court when the applicant gave evidence during the voir dire and it was his view that the applicant’s memory lapse in the witness box was “on the whole …genuine” (page 52 line Q of the said transcript).

70.  An expert’s opinion is admissible to furnish the court with scientific information that is likely to be outside the experience and knowledge of a judge and a jury.  If, on the proven facts, a judge or jury can form their own conclusions without help, the opinion of an expert is not necessary : R v. Turner (T) [1975] QB 834.

71.  Although the applicant was kept in Siu Lam, there was no evidence of any mental illness before the court.  Dr Ho said it was likely that the applicant had been suffering from anxiety and depressive symptoms.  Dr Ho’s opinion on the applicant’s memory impairment was largely based on the applicant’s alleged history of alcohol and drug taking.

72.  The offences occurred in August and September 2004.  The applicant was arrested on 16 September (shortly after the September fire) and was interviewed in the afternoon of the same day.  He was able to give details of his involvement and why he set fire on the two occasions.  There was no question of any memory problem then and there.

73.  As far as I can gather, there was no question of any memory impairment when the applicant stood trial for the first time.  The allegation of impairment came during the re-trial in March 2006.  The applicant has been in custody since 16 September 2004 so there is no question of the applicant being able to abuse alcohol or drug since then.

74.  It is indeed common sense that different people have different memory capacities, and that the same person can remember some things better than other things, or at some particular time better than other times.  To give an example, a person who has been drinking heavily might not be able to remember what he had done while he was under the influence of alcohol, yet have nothing wrong with his memory when he is not drinking.

75.  Dr Ho’s only contact with the applicant came shortly before the re-trial.  Based on the applicant’s alleged history of alcohol and drug taking, he came to the view that the applicant had a problem of alcohol and drug abuse.  His opinion in relation to the applicant’s memory impairment was based mainly on such an abuse problem.

76.  While the applicant had mentioned taking alcohol and sleeping pills, there was no evidence of any long history of abuse.  There was certainly no evidence of the effect of such abuse, if any.  There was simply no evidence to support a contention that the applicant suffered from memory impairment almost two years after he had been effectively prevented from having alcohol and/or drugs.

77.  Whether the applicant was suffering from memory impairment to such an extent that it was not possible to have a fair trial is purely within the judgment of the judge.  It is not a case in which expert evidence was required to assist the court.  In any event, Dr Ho should not have been asked to give his opinion whether the applicant’s memory lapse in the witness box was genuine.  His answer clearly usurped the function and duty of the judge.

78.  The judge had the benefit of observing the applicant give evidence in court and the way the applicant gave his answers during the video interviews.  The judge was perfectly entitled to come to his conclusion that the applicant was not suffering from memory impairment.  His refusal to stay cannot be faulted.

79.  The judge was fully conversant with the allegation of assault, threats and oppression.  He has clearly evaluated all the evidence carefully before ruling the confession statements admissible.  Again, his ruling cannot be faulted.

80.  Coming now to the general issue.  The main issue is whether the applicant was reckless as to whether the lives of others would be endangered as a result of his intentional or reckless act of damaging properties by fire.

81.  The test in Sin Kam Wah was correctly adopted by the judge (para. 27 of Reasons for Verdict) :

“It has to be shown that the defendant’s state of mind was culpable, in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk.  Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.”

82.  The applicant said in effect, when giving evidence, that he was not aware of the risk involved.

83.  Was it proper to have expert opinion in relation to the applicant’s state of mind at the time of the offence?  I have already pointed out that there was no finding of any mental illness suffered by the applicant.  The applicant said he had voluntarily consumed alcohol and taken sleeping pills immediately before setting the two fires.  He was able to give clear and detailed descriptions of what he had done when interviewed on 16 September.  He said in court that the alcohol and drug did not affect him as far as the September fire was concerned (page 71 line C of the said transcript).

84.  Dr Ho did not have any personal knowledge of any history of alcohol and/or drug abuse.  There was no evidence of the alcohol concentration in the blood of the applicant shortly after his arrest, nor was there any evidence of the effect of the sleeping pills on him.  Dr Ho saw the applicant two years after the commission of the offences and he assumed that patients (such as the applicant) prescribed with sleeping pills would take substantially more than prescribed when unable to sleep.  I do not see any basis for expert evidence as to the applicant’s state of mind to be admitted in this trial.

85.  Whether the prosecution can prove that the applicant has the requisite mental elements to commit the arson offences he faced, in particular, whether the applicant was reckless as to whether the lives of others would be endangered as a result of his intentional or reckless act of damaging the properties by fire, is purely within the province and judgment of the judge.  Dr Ho’s answer : “... from the balance of the evidences (sic) and probabilities, I think it’s more likely that [the applicant is] not fully aware, that the fire would spread from that piece of paper to the bin” (page 81, line G of the said transcript) was clearly usurping the function of the judge.

86.  This is not a case in which expert evidence should have been admitted.  The judge’s rejection of the expert evidence was neither here nor there.  There is no merit on this ground of appeal.

87.  Assuming for the moment that the expert evidence was rightly admitted : in rejecting Dr Ho’s evidence on the applicant’s likely state of mind, the judge commented on Dr Ho’s failure to view the “horrifying scenes of the August fire” as depicted by the photographs (Exhibit P1).  If the judge meant to convey the view that one can simply infer from such “horrifying scenes” that the applicant was reckless as to whether the lives of others would be endangered by his act of setting fire to the properties intentionally or recklessly, then I cannot agree with such a view.  One cannot simply look at the consequence to infer that the necessary mental element was present.  Nevertheless, it was perhaps rather odd that an expert would give evidence as to the likely state of mind of an alleged arsonist without even ascertaining the layout of the premises in question when the positioning of the fires was a highly relevant feature going to intent.

88.  After perusing the Reasons for Verdict, it can be seen that the judge had not simply drawn inferences from the consequences (as depicted by the photographs) when finding the applicant reckless as to whether lives would be endangered by his act.  The judge had carefully analysed all the evidence before making his findings.  His findings cannot be faulted and the conviction is neither unsafe nor unsatisfactory.

89.  I would dismiss this application.

Stuart-Moore VP:

90.  By a majority, this application is dismissed.