HKSAR v. GURUNG SHIBAKUMAR

CACC 98/2020

[2022] HKCA 347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 98 OF 2020

(ON APPEAL FROM HCCC NO 317 OF 2019)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant was convicted of two counts of “manslaughter” after trial before Li J (“the judge”) on 30 June 2020 subsequently sentenced to a total of 16 years’ imprisonment on 2 July 2020.  He seeks leave to appeal against his conviction.

2.  At the hearing of the application I refused leave but said I would hand down my reasons for doing so at a later date.  This I now do.

The prosecution case

3.  On 3 December 2017, four huts (Nos. 80 to 83) stood on Lot 3089 of DD124, Tin Sam San Tsuen, New Territories.  At about 0050 hours on that day a fire broke out and was put under control at about 0141 hrs.  A married couple, Mr CHAN Ka-mok (The deceased in Count 1) and Ms ZHU Hong Xia (The deceased in Count 2), were found dead in Hut No. 82.  Their cause of death was the “adverse effects of fire with inhalation of fire fumes”^[1].

4.  Mr Tang (“PW1”) was the manager of Lot 3089. As there was default in rents for Huts Nos. 80, 81 and 83, he authorized an estate agent, Mr Chan (“PW2”), to take repossession action.  Hut No. 83 was further divided into smaller rooms.  There were rubbish and odd items in the various rooms^[2]. PW1 testified that there had been illegal abstraction of electricity after the electricity supply was cut.  He thought that the subdivided rooms in Hut No. 83 abstracted electricity illegally but did not know if there was proper wiring.[3]. The tenants did so by connecting to the supply cable which passed over the huts.[4] On 1 December 2017,  PW2 locked up the main gate of Hut No. 83 with a chain and a padlock.  Occupiers of Huts Nos. 80 and 81 were allowed extra time to move out^[5].

5.  The applicant resided in Room 4 at Hut No. 83 at the material time^[6] and had, since 23 November 2017, been admitted to Ward A8 of Tuen Mun Hospital for treatment of  an infected wound on his left hand^[7].

6.  According to CCTV footages^[8], the applicant left Tuen Mun Hospital at about 2022 hrs on 2 December 2017.  He was at Tin Sum San Tsuen when the fire broke out and was captured running away from there at about 0100 hours.

7.  A junction box installed inside Room 2 of Hut No. 83^[9] was never found after the fire.

8.  In the morning on 3 December 2017, the applicant was arrested in Ward A8 of Tuen Mun Hospital.  Under caution, he said “I don’t know” in Punti^[10]. Amongst his possession was a 430 c.c. bottle containing 280 c.c. of 75% isopropyl alcohol^[11].

9.  In three video-recorded interviews with the police, the applicant admitted that he was in default of rent for three to four months and was told to move out by 28 November.  He also admitted to have gone back to his hut that night to take some clothes.  He left in a hurry to catch the last train back to the hospital, in order not to miss the injection time. He denied setting fire to the huts and claimed that the alcohol found in his possession was for cleaning his wound^[12].

10.  Riza (“PW4”), the Indonesian lady who lived in Hut No. 80 with her daughter, testified that the applicant went to her hut that night and asked her to wake up her daughter as he wanted to take her to the nearby playground.  She then saw the fire break out from Hut No. 83.

11.  Amongst the four huts, Hut No. 83 suffered the most severe damage.  Mr Yim Kin-wai (“PW7”), the first firefighter who arrived at the scene, found three seats of fire each about three metres apart inside Hut No. 83.  He found the speed of the spreading of the fire was unusual^[13] but did not notice any illegal abstraction of electricity at the scene at that time^[14].

12.  Dr Wong Koon-hung (“PW10”), of the Government Chemist Laboratory, an expert in the field of forensic science, found a fire seat at the north-east corner of Room 2 of Hut No. 83^[15]. Whilst he accepted that electricity fault at the junction box inside Room 2 could be a cause of the fire^[16], he found no evidence of spontaneous combustion, flying amber, cooking fire, smouldering and faulty electrical appliances^[17]. He saw no support to the claim of the possibility of abstraction of electricity to Hut No. 83, as the abstraction points in the sketch drawn by PW1[18] were quite far away from Hut No. 83.  He opined that had the fire been caused by abstraction, Huts No.79 or 80 should be more severely damaged but in the present case Hut No. 83 was the most damaged ^[19].

13.  PW10 could not exclude the possibility that the fire was deliberately started^[20]. He found that the 75% isopropyl alcohol was a flammable liquid that could be set on fire^[21], although no trace of alcohol could be found at scene or from the clothing of the applicant^[22].

14.  Mr Chan Kim-man (“PW11”), Divisional Officer of the Fire Services Department, was an expert in firefighting and investigation. He found that the three different seats of fire^[23] was consistent with someone setting fire^[24]. He excluded all other possible causes of fire and specifically rejected the abstraction of electricity being a cause as he saw no evidence to support it^[25]. Although no junction box was found at the scene, his view was that electricity fault of the junction box as a cause of the fire was slim^[26].  His conclusion was  that the fire was set by a deliberate act with the use of an accelerant^[27].

15.  The prosecution case was entirely circumstantial and premised on the drawing of an irresistible inference that the fire was the result of a deliberate act of the applicant, who took revenge for being evicted from his hut.

The defence case

16.  The applicant did not testify but called one expert witness, Dr Huang (“DW1”), who was a combustion scientist and fire protection engineer.  Dr Huang was of the view that prosecution experts might have erred in finding that there were three seats of fire^[28].  He said that as it was uncertain when the fire started, he found nothing unusual about the spread of the fire^[29]. Although it was possible that the fire was caused by a deliberate act, other causes such as smouldering due to a discarded cigarette butt, faulty battery of mobile phones, or overloading and overheating of electrical appliances were equally possible^[30]. An electrical fault occasioned by illegal electricity extracting could be another possibility^[31].

17.  Dr Huang accepted that the chance of the fire caused by a discarded cigarette butt or electrical fault^[32] was slim as Hut No. 83 was already vacant.  However, his view was that the illegal abstraction of electricity was the most likely cause^[33].

18.  The defence also disputed the credibility and reliability of PW4’s evidence, particularly on the aspect of the applicant’s conduct during his visit to Hut No. 80 that evening.  PW4 was cross-examined on the basis that she lied about the applicant acting “strangely” in asking to take her daughter to the park at that time^[34].

The grounds of appeal (Conviction)

19.  Mr Trevor Beel and with him Ms Priscilla Lau, who appear for the applicant in this application as well as the trial below, advanced two grounds in the Perfected Grounds of Appeal filed on 2 July 2021.

Ground 1

20.  Ground 1 avers that the judge erred in law and/or in fact in finding that the applicant had a case to answer on both counts.  The applicant argues, on the totality of the evidence from the prosecution witnesses, namely the civilians, the firefighters and the expert witnesses, the inference of a deliberate setting of fire by the applicant is not an inference which a reasonable jury properly direct could, may or might draw.

21.  Mr Beel submits that the evidence of Hut No. 83 being in poor condition and illegal abstraction of electricity at the huts were evidence which could undermine PW11’s conclusion of “setting fire by the use of accelerant”.  Neither PW10 nor PW11 was made aware of the illegal abstraction of electricity at Hut No. 83 when they attended the fire scene.  Furthermore, as the junction box in room 2 was missing^[35], the possibility of electricity fault could not be precluded.  Taking in total, Mr Beel submits that the inference of innocence is not a fantasy and the judge erred in finding that it was only “a matter of credibility of the witnesses”.  He should have stopped the case at half time instead.

Ground 2

22.  It is further argued that in view of the evidence of DW1, the possibility of the fire caused by an electrical fault in the junction box^[36] could not be ruled out.  Although there was no direct evidence that the electricity abstraction was wired to the junction box in Room 2, Mr Beel submits that it was for the Prosecution to negate that real possibility and the jury should never have found that the fire was set by a deliberate act.  Further or in the alternative, given the unreliability of PW4’s evidence and there were still properties of the applicant left in Hut No. 83, the finding that it was the applicant who deliberate set fire at Hut No. 83 was an unreasonable verdict which cannot be supported in regard to the whole of the evidence, rendering the applicant’s conviction of both counts unsafe and/or unsatisfactory.

The respondent’s reply

Reply to Ground 1

23.  Mr Raymond Cheng, with him Mr Douglas Lau, for the respondent, submits that the eviction action taken by PW1 and PW2, the applicant’s conduct both before and at the time of the fire were evidence from which the jury could draw an inference as to motive.  The possibility of an electrical fault in the junction box, or that short-circuit developed into the fire of such severity within such short period of time was found by PW11 to be slim^[37] .  There was simply no direct evidence that the abstraction of electricity was done through wiring to the junction box.  No remnant of the junction box inside Room 2 was found.

24.  The respondent submits that the present case being one based entirely on circumstantial evidence, there will only be no case to answer if a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or exclude all hypotheses consistent with innocence, as not reasonably open on the evidence: per King CJ in Questions of Law Reserved on Acquittal (No. 2 of 1993)^[38]. The respondent submits the prosecution experts’ evidence supports the contention that the fire was set deliberately.  Further, from the primary facts proven at trial, inferences could be drawn that (i) the applicant had the motive to take revenge for being evicted;  (ii) he took the opportunity to set fire to the huts; and (iii) he fled the scene for no innocent reason.  Thus, a jury, when properly directed, could conclude that the applicant was the person who set fire and could convict him of the charges of manslaughter.

Reply to Ground 2

25.  The respondent relies on the case of Papanikolaou & Another v R[39]and submits the present case is not one that based entirely on inconclusive or conflicting expert evidence, there were other primary facts relied on by the prosecution to enable the jury to draw adverse inference against the applicant.  It is submitted that the jury in the present case were entitled to come to the conclusion that the fire was deliberately set by the applicant and hence guilty of the charges laid.

Discussion

Ground 1

26.  The defence made a no-case submission at the end of the prosecution case^[40]. In finding the applicant had a case to answer on both counts, the judge gave a brief reason for so ruling^[41]:

“COURT: This is a brief reason for the ruling.

Whether the prosecution could prove its case is a matter of credibility of various prosecution witnesses, in particular Lisa, PW4, Officer Yim, PW7, Dr Wong, PW10 and Officer Chan, PW11.

It is a matter for the jury, having considered all evidence, to decide at the end of the trial. As to the various possibilities of the cause of fire, it is also for the jury to decide whether there is evidence sufficiently substantial that did raise a reasonable doubt.

All these above issues are suitable, at this stage, to be left to the jury.  I therefore rule there is a prima facie case to answer for each charge.”

27.  The “canonical statement of law” in relation to the principles of “case to answer” is stated in the English Court of Appeal case R v Galbraith^[42]. TheCourt of Appeal in AG v Li Fook Shiu Ronald^[43]said:

“…In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.”

28.  Although it was suggested to the prosecution experts that a possible cause of the fire could be an electrical fault in the junction box, PW1 clearly stated in his evidence the points of abstraction were above the roofs of Huts No. 79 and 80 from the street cables.  Based on that evidence, PW10 opined that had the fire been caused by the such abstraction, Huts No. 79 and 80 would have been severely damaged but instead it was Hut No. 83 that suffered most damage^[44]. Furthermore, basing on the fact of normal electricity supply when the applicant returned to Hut No. 83 that night^[45], and that the likelihood for short-circuit to develop into the fire of such severity within such short period of time was slim, PW11 rejected the cause being electrical fault from abstraction.  As Hut No. 83 was vacant and both PW10 and PW11 were not able to find any signs of electrical fault leaving behind metal beads, melted wires, burnt electrical appliances or equipment at the scene^[46], they were ad idem in excluding electrical fault being the possible cause.

29.  In Director of Public Prosecutions v Varlack^[47], Lord Carswell, stating the underlying principle that “the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge, is equally applicable in cases such as the present, concerned with the drawing of inferences”, went on to say, at page 401g-402d:

“…it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence … He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.

         I would re-state the principles, in summary form, as follows.  If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be.  If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer.  There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

30.  So is the prosecution evidence in this case not capable in law of supporting a conviction?  The prosecution evidence “at its highest” does not mean “picking out all the plums and leaving the duff behind”: R v Shippey[48], per Turner J.  In the present case, the opinion evidence of the prosecution expert pointing to a deliberate setting of fire was based on reasoned evaluation and assessment.  Though inconclusive, their evidence cannot be said to be self-contradictory, out of reason and all common sense. Apart from the expert evidence, there were also circumstantial evidence which placed the applicant at the scene at the time of the fire; evidence capable of inferring motive; and the evidence of flight.  A properly directed jury is able to draw the inference adverse to the applicant on the evidence most favourable to the prosecution.

31.  With the concession of Mr Beel at the hearing that there is no complaint about the directions given to the jury and so this jury had been properly directed, it is worth noting that this properly directed jury not only could but did convict.

32.  Ground 1 is not reasonably arguable and I refuse to grant leave.

Ground 2

33.  Ground 2 contends that the verdict is unreasonable and not supported by the evidence.  The Court is required to conduct an independent exercise to determine whether the jury ought to have entertained a reasonable as to the guilt of the applicant.  In the present case, the case against the applicant is largely circumstantial.  Therefore, the Court, in assessing the evidence, has to bear in mind the limitation that the jury had the advantage of seeing and hearing the witnesses and acted upon the facts which the jury were entitled to take having seen and heard the witnesses: Knight v The Queen[49].

34.  Whilst it could be said the prosecution expert evidence, by itself, was unable to exclude the possibility that the fire was the result of an accident, namely electricity fault, rather than a deliberate setting of fire, the prosecution experts explained why they favoured the hypothesis that the fire was deliberately lit and chance of electricity fault caused by the junction box was slim.

35.  Whilst great significance was placed on the missing junction box in Room 2, the evidence of PW1 as shown in the sketch[50] was that there was no abstraction point at the junction box of Room 2[51].  PW1 drew two Xs on P33 which indicated two supply wires passing over the roofs of Huts No. 79 and 80 where electricity from the street line of the CLP were abstracted[52].  PW1 agreed that the tenants in Huts No. 80, 81 and 83 used their own electricity wire to connect to the supply wire to abstract electricity to their own hut.  The junction box at Room 2 was not shown to be any abstraction point[53].  On this point, questions were asked of DW1 by the judge[54] and by way of follow-up by defence counsel[55].  DW1 agreed that the significance of the junction box may vary depending on whether electricity was abstracted via the junction box but in this case there was simply no evidence on that.  PW11 testified that junction box was a device to distribute electricity to different rooms and electrical fault in the junction box would depend on “how they wire up”[56].  Furthermore, the experts found no metal beads from any burnt wires, which were the “tell-tale sign” of an electrical fault[57].  This lends support to the conclusion that “the possibility (of electrical fault) would not be that high”[58].  Therefore, in the absence of any positive evidence, the contention that the absence of the junction box as supportive of the contention that the fire was caused by electrical fault of the junction box as a result of electricity abstraction was nothing more than a mere speculation.

36.  However, there was additional evidence in this case which would enable the jury to rationally reject the fire as being caused by an electricity fault.  The prosecution case also relied on “a substantial body of evidence” to implicate the applicant in the deliberate setting of the fire, he took revenge by setting fire to the huts and fled with no innocent reason.

37.  Even if the expert evidence could not determine with certainty that the fire was set deliberately, with the substantial body of evidence that implicated the applicant, my view is that the verdict was not unreasonable or unable to be supported having regard to all the evidence.

38.  Ground 2 is not reasonably arguable and I also refuse to grant leave.

39.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal.  He is informed of the consequences of doing so, which may attract a direction of any loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.

[1] Admitted Facts §8

[2] Appeal Bundle page 36N – Q

[3] Appeal Bundle page 34D – E

[4] Appeal Bundle page 34L – M

[5] Appeal Bundle page 23H – K

[6] Admitted Facts §1

[7] Admitted Facts §12

[8] Admitted Facts §21

[9] Appeal Bundle, page 56E – G

[10] Admitted Facts §14

[11] Admitted Facts §15; Second Admitted Facts §2

[12] Appeal Bundle, pages 71L – 73G

[13] Appeal Bundle page 46B – J

[14] Appeal Bundle page 47I – J

[15] Appeal Bundle, page 51D; Also, page 1119 – 1120 at para. 2.5

[16] Appeal Bundle, page 52A – B

[17] Appeal Bundle, page 51L – O

[18] P33

[19] Appeal Bundle, page 51P – R

[20] Appeal Bundle, page 52I – J; Also, page 1122 at para. 5.1

[21] Appeal Bundle, page 52J – K

[22] Appeal Bundle, page 52K

[23] Appeal Bundle, page 53T

[24] Appeal Bundle, page 55A – K

[25] Appeal Bundle, pages 55N – 56 C

[26] Appeal Bundle, page 56E – H

[27] Appeal Bundle, pages 53Q – R, 57D – F

[28] Appeal Bundle, pages 25A – C, 63T – 64E

[29] Appeal Bundle, page 64E – G

[30] Appeal Bundle, page 64G – J

[31] Appeal Bundle, page 64K – L 

[32] Appeal Bundle, page 66A – D

[33] Appeal Bundle, pages 67B – G, 78D 

[34] Appeal Bundle, pages 713 O – 717 O, 761B – 764M

[35] Note: PW10’s evidence at Appeal Bundle pages 848P – 849E, he concluded that the missing junction box could not affect his conclusion that the fire was not due to electrical fault. Further at Appeal Bundle 879T – 880 O, 883F – L, 886G – H.  Also PW11 dismissed the possibility of electrical fault as slim at Appeal Bundle pages 906B – L, 950I – U

[36] PW10 at 883K : He cannot exclude the possibility, but earlier he explained why he considered electrical cause was unlikely in the present case at Appeal Bundle pages 844U, 846I - L, 847C, 848T - 849 F, 883F - H.  Also, PW11 at Appeal Bundle page 955U: The possibility was slim.

[37] Appeal Bundle pages 55Q – 56C, 907C – E, 951F – P, 953D – L 

[38] (1993) 61 SASR 1

[39] [2021] NSWCCA 135

[40] Appeal Bundle, pages 487 – 489

[41] Appeal Bundle, page 493 E – K

[42] (1981) 73 Cr. App. R. 124, at 127

[43] [1990] 1 HKC 1, at 13A-D

[44] Appeal Bundle, pages 51P – R; 849A – E, 880 O – R

[45] Appeal Bundle, pages 55N – Q, 907C – E, 950Q – 951J

[46] Appeal Bundle, pages 51L – O, 52C – H, 55L – M, 846F – L, 847A – C, 905Q – 907 E, 950 I – 951P, 953D – L

[47] [2009] 4 LRC 392, at §§21-22 

[48] [1988] Crim LR 767

[49] (1992) 175 CLR 495

[50] P33

[51] Appeal Bundle page 51S

[52] Appeal Bundle pages 562 – 563L

[53] Appeal Bundle page 35D – E

[54] Appeal Bundle pages 1042 O – 1043S

[55] Appeal Bundle page 1044D – F

[56] Appeal Bundle page 880F – G

[57] Appeal Bundle page 846E – F

[58] Appeal Bundle page 905C – O