HKSAR v. GODHANIYA HAJA SAMAT

CACC 264/2017

[2018] HKCA 885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2017

(ON APPEAL FROM DCCC NO. 107OF 2017)

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REASONS FOR JUDGMENT

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Hon Anthea Pang J (giving the Reasons for Judgment of the Court) :

1.  On 26 July 2017, the applicant was convicted after trial before District Judge Dufton (“the judge”) of a charge of “arson, being reckless as to whether life would be endangered”,contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap 200.  On 16 August 2017, he was sentenced to 2 years’ imprisonment.

2.  By a notice dated 28 August 2017, the applicant applied for leave to appeal against both his conviction and sentence.  The application was refused by a single judge, McWalters JA, on 4 July 2018, with the reasons for determination given on 18 July 2018.

3.  By a notice of renewal filed with the Court on 6 July 2018, the applicant renewed his application for leave to appeal against conviction and sentence.  By a letter dated 13 August 2018, he also applied to this Court for legal aid to be granted to him pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.

4.  After hearing the applicant in person, we refused both his applications for legal aid and leave to appeal.  We said that we would give our reasons in due course which we now do.

THE PROSECUTION CASE

5.  The particulars of the charge alleged that on 15 November 2016, the applicant, without lawful excuse, damaged by fire the staircase and the wall between the 3^rd Floor and the 4^th Floor of No. 89 Fuk Wing Street, Sham Shui Po, Kowloon (“the Building”), a property belonging to another, being reckless as to whether the said property would be damaged, and being reckless as to whether the lives of the occupants in the Building would thereby be endangered.

6.  The Building is a 9‑storey building without any lift. The applicant lived on the 7^thFloor.  The only access to the Building and to each of the floors is by a staircase.  As there is no door or gate at the street level, anyone can access the Building.

7.  At around 3 am on the day of the offence, Mr Chan, a resident of Flat B on the 4^th Floor, woke up as a result of some smoke entering his premises.  He then discovered a fire on the landing between the 3^rd and the 4^th floor (“the landing”).  Mr Chan also discovered another fire on the landing between the 2^nd and the 3^rd floor.  He extinguished both fires.  Later, it was found that there were fires on three other landings but only the fire on the landing was the subject matter of the charge faced by the applicant.

8.  A motion-activated CCTV camera was installed on the 4^th Floor of the Building and it captured, inter alia, the following movements on the staircase above the landing (therefore not capturing the location where the fire was) on 15 November 2016[1]:

(a)   at 2:03 am, the applicant descended the stairs;

(b)   at 3:20 am, the applicant ascended the stairs above the landing and looked back in the direction of the landing while walking up the stairs;

(c)   a few seconds later, the applicant stopped on the staircase and was seen smoking a cigarette.  Then, he continued walking up the stairs to the 4^th floor, at which time an orange glow was seen on the wall of the staircase above the landing;

(d)   at around 3:23 am, the staircase was filled with smoke; and

(e)   at around 3:31 am, Mr Chan came out of his flat to see what had happened.  He then returned to his flat and fetched some water to put out the fire.

9.  The prosecution contended that the orange glow captured by the CCTV camera was from the fire on the landing and that it was the applicant who deliberately started this fire, being reckless as to whether life would be endangered.

10.  As to the fires on the other three landings, Mr Yeung, a resident on the rooftop, testified that he first saw burnt rubbish on those landings at about 11:30 am on that day.  While the fires on the other landings were not subject matters of the charge, such evidence was admitted by the judge as relevant background in determining whether the fires were accidental or deliberate.  In this connection, the officer from the Fire Services Department expressed the opinion that the fires had been deliberately lit because there were “five separate seats of fire” in the same building over a short period of time.

THE DEFENCE CASE

11.  The applicant chose not to testify, nor call any witnesses on his behalf.  The gist of the defence case put forth was that although the CCTV camera captured the applicant smoking a cigarette, he did not light the fire.  As to why the applicant stopped on the staircase, the defence relied on the explanation given by the applicant in the video-recorded interview in which he claimed that because there was a brothel in the building, he might have been looking at “a good looking girl/beautiful prostitute”.

REASONS FOR VERDICT

12.  The judge was fully aware that there was no direct evidence as to who started the fire and that he was asked to draw, from the CCTV footages, the only reasonable inference that it was the applicant who started it.  He was satisfied that the inference could be drawn.

13.  In respect of the suggestion that someone else could have started the fire, the judge, based on the very close proximity in time between the applicant walking up the staircase from the landing and the appearance of the orange glow, found such a suggestion inherently improbable and dismissed it.

REASONS FOR SENTENCE

14.  After calling for psychiatric and psychological reports which showed no abnormality or disorder suffered by the applicant, the judge, in his reasons for sentence, referred to the case of HKSAR v Kung Pak Fu[2], noting that arson is an extremely serious offence but with no sentencing guidelines because the gravity of the offence differs from case to case.

15.  The judge pointed out in relation to this case that,

“16. The lighting of a fire in a multi-storey residential building risks the lives of all other occupants of the building, in particular when the fire is started in the early hours of the morning when occupants are asleep.

17. Although the damage to the landing of the staircase was minimal, smoke quickly engulfed the staircase. Mr Chan woke up to find his flat filled with smoke. The potential harm that can be caused by smoke cannot be underestimated. Fortunately, the court has not been told of anyone suffering ill-health as a result of smoke inhalation.

18. Taking into account all the circumstances, including the fire was started in the early hours of the morning when the occupants of the building would be asleep; the location of the fire was the staircase landing where the occupants disposed their rubbish as shown in photograph 4; the staircase was the only access to the building; the damage to the staircase landing was minimal; there is no evidence any of the occupants required medical treatment as a result of smoke inhalation; no accelerant was used, and the fire had nothing to do with triad, intimidation or revenge, I am satisfied the proper starting point after trial is 2 years imprisonment.”[3]

GROUNDS OF APPEAL AGAINST CONVICTION

16.  In the grounds of appeal attached to the Form XI by which the applicant first gave notice of his application for leave to appeal against conviction, he simply stated that, “I felt the conviction did not convince to me”.

17.  Subsequently, the applicant filed with the Court a document entitled “Initial Grounds of Appeal” which was dated 17 May 2018. He later submitted two further letters (dated 29 May 2018 and 4 July 2018, the latter was handed up to McWalters JA on the day of the hearing of his leave application.)

18.  In the “Initial Grounds of Appeal”, the applicant listed the following :

“1. It is not ‘inherently implausible’ that nobody other than the Defendant could have been the person who started the fire the subject of the charge.

2. The Defendant had no or on sufficient means on his possession at the time of his capture on CCTV, or at any other time, to have started the fire(s).

3. Exculpatory explanations given by the Defendant in a video recorded interview under caution were wrongly dismissed by the Court by reason that the assertions were not given under oath and/or were dismissed as ‘inherently implausible’ without reason being given as why other explanations were untenable.”

19.  In respect of his two other letters, apart from maintaining his innocence, the applicant complained that the entire prosecution case was based on speculation and that the inference drawn was erroneous.

20.  When submitting his Form XIII by which the applicant gave notice of the renewal of his application for leave to appeal against conviction and sentence, the applicant did not provide any further written grounds.

21.  When the applicant appeared before us, he handed up yet another document entitled “Applicant’s Submission”.  Although he stated in the very beginning of this document that there were two major issues in the prosecution case, that is, (1) was the fire caused by the applicant; and (2) was the applicant being reckless as to the endangerment of life, his only complaint in what followed was that no inference could be drawn that he was the one who started the fire because there was no causal connection between him smoking the cigarette at the stairwell and the fire.  It was thus a repetition of one of his earlier grounds and there was nothing new in this document which the applicant sought to argue before us.  He, however, acknowledged that he had been found in “suspicious circumstances”.

22.  In his oral submissions, the applicant, nevertheless, put forth a further ground, claiming that he was dissuaded from giving evidence at trial and that if he had done so, he would have been able to repeat what he said during the video-recorded interview, even though he accepted that there were a lot of contradictions in the answers he provided to the police.

GROUNDS OF APPEAL AGAINST SENTENCE

23.  In his written submission attached to the Form XI, the applicant merely asserted that the sentence was manifestly excessive without giving any reasons.

24.  Before us, the applicant confirmed that he did not have any submission to make in respect of his appeal against sentence, adding that he filled in both parts merely because the form given to him contained both applications for leave to appeal against conviction and sentence.

CONVICTION : A CONSIDERATION OF THE SUBMISSIONS

(A)   The drawing of an inference

25.  The first two grounds set out in the applicant’s “Initial Grounds of Appeal” could be dealt with together as both hinged upon the drawing of an inference. Needless to say, if it might be the case that someone else present at the scene started the fire, then the judge could not draw the only reasonable inference that the fire was started by the applicant.  Likewise, if it might be the case that the applicant indeed had no means whatsoever to start the fire, the judge, again, could not draw the only reasonably inference that the applicant was the one who started it.

26.  At the outset of his reasons for verdict, the judge acknowledged that the conviction of the applicant depended entirely on the drawing of inference from the other facts proved.  The judge then gave a detailed analysis[4] as to how he came to the only reasonable inference that the applicant had started the fire by :

(a)   relying on the admission made by the applicant during the interview that he was the person shown on the photographs taken from the relevant CCTV footages;

(b)   relying on the footages which showed the applicant walking up the stairs from the landing; looking back in the direction of the landing; stopping on the staircase and smoking a cigarette; the appearance of an orange glow on the wall of the staircase above the landing only a few seconds afterwards (followed by the appearance of smoke); and

(c)   relying on the very close time proximity of just about 10 seconds between the appearance of the applicant on the staircase and the appearance of the orange glow which he found to be from the fire on the landing.

27.  In rejecting the suggestion that someone else could have started the fire, the judge pointed to the short time span involved and found it inherently improbable that someone else could have started the fire “which took hold so that the orange glow of the fire could be seen on the wall of the staircase as the defendant walked up the stairs”[5]. On the evidence adduced, such a finding was plainly open to the judge.

28.   In respect of the applicant’s assertion that he had no means in his possession to start the fire, we need only to refer to the CCTV footage which captured the applicant smoking a cigarette while stopping on the staircase.  Also of importance is that the relevant footages on which the applicant sought to rely did not relate to the very moment when the fire was lit.  In other words, the claim that the applicant was not captured having a lighter or a similar item in his hand after the fire had been lit is fatuous.

(B)   The rejection of the applicant’s explanations given during the interview

29.  This is the third ground set out in the applicant’s “Initial Grounds of Appeal”.

30.  In rejecting the applicant’s claim that he might be looking at “a beautiful prostitute” when stopping on the staircase, the judge pointed out that such an explanation was only proffered by the applicant after he had first alleged that he did not remember anything which happened on that day, later changing his account to say that he had seen “the staircase was blackish and people had poured water”; “between the 3^rd floor and his home on the 7^th floor he saw nobody else and nothing special; and he did not stop on any floor”, to finally claiming that he possibly saw “a beautiful prostitute” after he had been shown the relevant photograph.  Further, as observed by the judge, these explanations were not given on oath, had not been repeated on oath and had not been tested by cross-examination.

31.  In the circumstances, we could find no error committed by the judge in attaching no weight to the applicant’s exculpatory statements given in his interview.  Contrary to what was asserted by the applicant, the judge gave detailed reasons as to why he came to such a conclusion, one which was plainly open to him to make.

(C)   The applicant’s complaint that he was not allowed to testify

32.  As set out above, in his oral submissions before us, the applicant complained that if he had given evidence at trial, he would have been able to repeat what he said during the interview.  When asked whether he accepted that there were a lot of contradictions in the answers he provided, the applicant acknowledged that was the case, but said he would like to repeat those contradictory answers nonetheless.  If such a course had been taken, it would have undoubtedly worked to his disadvantage, subjecting him to serious challenge under cross-examination.

33.  In any event, although the applicant, at one stage, claimed that he was dissuaded by his counsel from giving evidence, he later confirmed that the matter had been explained to him and he had signed to acknowledge his understanding and agreement.

34.  We therefore did not need to deal with this complaint which was never mentioned in any of the applicant’s papers or letters submitted to the court and which was completely devoid of merit.

CONVICTION : CONCLUSION

35.  None of the applicant’s grounds of appeal against conviction had any merit. Accordingly, his renewed application for leave to appeal against conviction was refused, and his appeal dismissed.

SENTENCE

36.  In our view, the sentence of two years was not a day too long given the following factors correctly identified by the judge :

(a)   the fire was lighted in a multi-storey residential building which would risk the lives of all the occupants of the building;

(b)   the fire was started in the early hours when the occupants were asleep;

(c)   the location was the staircase landing where the occupants disposed their rubbish;

(d)   the staircase was the only access to the building; and

(e)   smoke quickly engulfed the staircase.

37.  In respect of the applicant’s status as a Form 8 Recognizance holder, the judge noted in his reasons for sentence that,

“9. The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation.

10. In submitting the sentence should not be enhanced Mr Haldane refers the court to the judgment in HKSAR v Loku Galappaththige Pramuka Salinda. The defendant a Form 8 Recognizance holder was convicted after trial of arson with intent. The sentence was not enhanced by reason of the defendant being a Form 8 Recognizance holder. The Court of Appeal in noting the applicant was a Form 8 Recognizance holder did not say this should have been considered as an aggravating factor.

…

19. I am satisfied this is not an appropriate case to enhance the sentence by reason of being a Form 8 Recognizance holder.”[6]

38.  With respect to the judge, we do not share his view that this is not an appropriate case to enhance the sentence. In the judgment of this Court in HKSAR v Sandagdorj & Another,[7] Macrae JA, as he then was, said of the circumstances of the 2^nd appellant, a “torture claimant”, that,

“21. Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty whilst this claim is being considered, and when the crime also has the effect of tarnishing this city’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime.

22.   Wedonotsaythatsomeonesharingthe2^nd appellant’s statuswould aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.”

39.  The applicant, by committing the offence of arson, has clearly abused the hospitality afforded to him by this community.  Such an offence also has the obvious effect of tarnishing this city’s reputation for order and security : the occupants of a residential building in Hong Kong are entitled to expect that their place of residence is safe and secure.

40.  In the circumstances, the applicant should consider himself fortunate that the judge did not enhance the sentence by reason of the fact that he was a Form 8 Recognizance holder at the time of the offence.

SENTENCE : CONCLUSION

41.  There was absolutely no merit in the applicant’s renewed application for leave to appeal against the sentence of 2 years imposed on him after a contested trial.  His application was accordingly refused, and his appeal dismissed.

THE APPLICANT’S APPLICATION FOR LEGAL AID

42.  In respect of the applicant’s application for legal aid, we advised the applicant, at the beginning of the hearing, that this application would be decided after we had heard his submissions and considered his grounds of appeal.  Having done so and having found no merit in any of his grounds, we considered that it would not be in the interests of justice for this Court to grant him legal aid.  Accordingly, his application for legal aid was refused.