HKSAR v. MIR MOAZZAM @ IBNE MUKHTAR MOAZAM

CACC 325/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 325 OF 2008

(ON APPEAL FROM DCCC NO. 370 of 2008)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.  This is an appeal against conviction for arson with intent, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200, following a trial before Deputy District Judge Woodcock on 23 September 2008.

2.  The particulars of the charge alleged that the applicant, on 28 February 2008, damaged by fire a 10^th Floor room (Room 4) inside a flat in Chungking Mansions, Tsim Sha Tsui, occupied by a Mr Dar (PW1), “intending to damage such property or being reckless as to whether such property would be damaged and being reckless as to whether the life of another would thereby be endangered”. 

3.  Although PW1 rented Room 4 at the time it was set on fire, he was sharing it with three others (PWs 2, 3 and 4).  It seems that all of them were known to the applicant.

4.  On 27 February 2008, at about 11.30 pm, after the occupants received warning by mobile telephone of an impending visit by a man, they all left Room 4 and locked the door behind them.  Some hours later, a fire was deliberately started inside Room 4.  Other room tenants in the flat were able to get out of the apartment without injury but Room 4 was destroyed by fire.

5.  The evidence against the applicant was relatively straightforward because he had made telephone calls in which he admitted that he had burnt the room.  One of the voicemail messages to this effect was at 2.25 am which, omitting the foul language used, stated:

“… I had set fire there. Call and tell everything there of mine. I appear in video. I went and came out, knock the room and came back. I had set fire. Go if you can made me arrest then go ahead.”

6.  PW1 was able to make a voice identification of the applicant as the speaker who had left this message.  In fact, the applicant left a total of fifteen voicemail messages in PW1’s mobile telephone.  In some of the messages, the applicant’s voice was very aggressive.  The applicant also called PW3 and spoke to him directly.

7.  There were, as the message which we have read out forecast, closed circuit television (CCTV) pictures of the applicant entering and leaving PW1’s room on his own.  The applicant was inside Room 4 for less than three minutes.  In just under two minutes after the applicant had left, the corridor outside Room 4 filled up with dense smoke.  No one else left the apartment.

8.  In the course of the interviews with the police later, the applicant said that when he left the flat he had seen no signs of fire or smoke.  He was asked for the clothes he had worn that night but he stated that he had thrown them away as they were smelly and he had no place to wash or dry them.

9.  The possible cause behind the commission of this offence was described by the judge as follows:

“7. PW1 let a fellow Pakistani male live in this Room 4 some months before the fire. The defendant was apparently this male named Attauallah's friend and mentor. This male's behaviour was anti-social and caused tension amongst the fellow tenants in this room. He even led the police to this room where PW3 was arrested for not legally being in Hong Kong. He [Attauallah] was expelled from this room clearly under very acrimonious conditions.”

10.  The applicant gave evidence at his trial saying that he had been framed by PWs 1 to 4.  He admitted that he had made the telephone call to which we have referred but his account was that having arranged to meet the occupants of Room 4, he was attacked when he went inside the apartment.  At the time he fled from the premises, there was no sign of fire.  He stated that there was no grudge between himself and PW1.

11.  The sole issue, therefore, was whether it was the applicant who set fire to the room.  There was no dispute at trial that someone had lit the fire deliberately and that, in doing so, damage to property could be foreseen and that lives would be put at risk, particularly as the offence was committed in the middle of the night. 

12.  Photographs of the damage done by the fire graphically illustrate the extent of the fire and it is plainly very fortunate that the Fire Service, to whom great credit is due, was able to confine the fire to a relatively small area of the building.

13.  The judge described the evidence as overwhelming.  She carefully assessed the evidence, having particular regard to a number of shortcomings in the prosecution evidence for which there were simple explanations.  The judge was satisfied that none of the witnesses from Room 4 had exaggerated their evidence and she noted that originally they had thought the culprit was Attauallah rather than the applicant because they had seen Attauallah there when they later returned to Chungking Mansions.  PW1 had even asked the police to arrest him before realizing, from the CCTV pictures, that it was the applicant, and not Attauallah, who had gone into Room 4.

14.  By contrast to the evidence given by the prosecution witnesses, the judge observed that the applicant’s testimony about being attacked in Room 4 did not sit comfortably with the way he had very calmly left the flat and made for the stairs rather than the lift, checking his mobile telephone as left.  There was nothing to suggest he was a frightened victim of an attack as he had suggested.  According to him, he left the message on PW1’s telephone because “they were already accusing him of crime” and when he said “I did set a fire” his meaning was “Have I set a fire?” 

15.  The judge rejected the applicant’s account.  Arson had occurred in Room 4 at the time of his visit and his telephone message was an admission that he had carried it out.  All of this was borne out by the CCTV footage.

16.  There were no arguable grounds for appeal.  Such inconsistencies as there may have been in the accounts given by PWs 1 to 4 were of trivial significance.  The film of the applicant entering and leaving Room 4 just before the fire could be seen to have started, coupled with the telephone messages from the applicant, provided an ample basis on which to convict the applicant.  The evidence of his guilt was, in our view, accurately assessed by the judge as having been overwhelming.

17.  The application is dismissed.