THE QUEEN v. CHENG HIU FUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 263 OF 1990

(HIGH COURT CASE NO. 376/89 & 41/90)

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BETWEEN

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JUDGMENT

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Bewley, J.

1. This is the judgment of the court.

2. The applicants seek leave to appeal against their convictions for arson by a jury before Deputy Judge Sharwood. Another youth, who was the 2nd defendant at trial, was also charged but was acquitted.

3. At 12 noon on 12th September, 1989, people in the Fortune Nightclub, which occupies the whole of 7th floor of Sun Hing Building, Mongkok, saw flames coming out of lift no.5, one of eight lifts serving that floor. One witness saw four or five young persons - two or three of them on fire - rush out of this lift and run to the right.

4. The occupants of the nightclub managed to escape via the staircase and no one was injured, but the nightclub was severely damaged by fire.

5. The forensic scientist who later examined the premises found signs of petrol inside and just outside lift no.5 and concluded that this was where the fire started. He also detacted traces of petrol on a right shoe found by the police near the entrance to lift no.1 on 7th floor. The sketch plan indicates that anyone turning right out of lift no.5 and making for the rear staircase would have to pass lift no 1. There was evidence that this shoe was the property of 3rd defendant, that is 2nd applicant.

6. Also at about 12 noon, the cashier of the Asia carpark, which is in the basement of the Sun Hing Building, saw a man running out of the building with marks of burning on his trousers and part of his trouser leg missing. When he reached the carpark entrance he stopped and squatted down. An ambulance arrived and he was taken away.

7. One of the nightclub employees, after escaping via the middle staircase, saw a man at the entrance to the carpark who was burnt on his hair, face and limbs. She told a policeman and saw an ambulance arrive.

8. At 12.20 another witness was walking along Portland Street towards the nightclub, where he worked, when he was passed by three Chinese youths. They were running, their clothes were very dirty and their hair was burnt black. He arrived at the Sun Hing Building and saw the fire. At the entrance of the Asia Carpark he saw a boy of 16; his trousers were burnt and his knees exposed.

9. When 2nd applicant was found at the carpark by an ambulanceman he noticed one of his shoes was missing. PC7811 arrived and was given 2nd applicant's left shoe by the ambulanceman, and this was later found to be identical to the right shoe found outside lift no.1. His shirt and trousers and this left shoe were later found to contain traces of petrol.

10. It was an admitted fact that 2nd applicant was admitted to hospital that day suffering from 45% 2nd to 3rd degree burns involving four limbs.

11. 2nd applicant told the police that he had gone to the Sun Hing Building because a friend had told him that cheap cassette tapes were for sale at a record company at that address and he intended to buy some. He walked about in the shopping centre and then took the lift to 4th floor. He could not find the record company, so he walked up to 6th floor via the rear staircase. He was walking along the corridor when he stepped on what seemed to be paraffin. There was a sudden fire and his shoes, trousers, shirt and hair were set alight. He ran down the rear stairs to Portland Street. In fact, 2nd applicant was not in a position to buy any tapes, because there was uncontradicted police evidence that he had only $5 in his pocket.

12. That was the evidence against the 2nd applicant, who did not give evidence or call witnesses.

13. PC48407 was on duty at the Casualty Department of Queen Elizabeth Hospital at 2.10 p.m. on the same day when he saw 1st applicant arrive on his own. It was an admitted fact that he was suffering from 20% superficial burns to his hands, forearms, back and lower legs.

14. 1st applicant told the P.C. that earlier in the day at home he had poured what he thought was kerosene into a kerosene stove. He thought he might have used the wrong fuel. His trousers, shirt and slippers seized at the hospital were found to contain traces of petrol.

15. DC1326 visited his home on 12th September and found no signs of fire. He said he went into the living room and the kitchen; there were no bedrooms.

16. 1st applicant also elected not to give evidence or call witnesses.

17. There was evidence that 1st applicant and 2nd defendant knew each other and that 2nd applicant and 2nd defendant knew each other, but there was no evidence of association between 1st and 2nd applicants.

18. 2nd defendant was arrested on 14th October and the evidence against him was contained in a cautioned statement, in which he admitted that those he was with set fire to the nightclub but claimed he did not know what was going on.

19. We are satisfied that the only material ground of appeal concerns the judge's directions as to the significance of lies told by the applicants. He said this :-

"... a statement made by an accused out of court, whether it is true or false, does not directly prove anything unless it constitutes an admission. But a ,statement shown to be false may in certain circumstances go indirectly to show something, for instance, guilty knowledge."

He went on in respect of 2nd applicant :-

"Members of the jury, if you accept that the 3rd accused told these things to the DPC, and if you conclude that they or some of them were false, and that the 3rd accused knew that they were false, and if you are satisfied that these statements were relevant to this offence, and after reminding yourselves that he was not on oath, and after taking into account reasons other than guilt which there may have been for not telling the truth, you may infer guilty knowledge."

20. A similar direction in respect of 1st applicant was given, except that the judge reminded the jury that there was no evidence as to which fire 1st applicant was injured by.

21. In R. v. Broadhurst [1964] 2 W.L.R. 38, it was said that "If upon the proved facts, two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness".

22. In R. v. Mawaz Khan [1967] 1 A.C. 454, in which the prosecution case rested on circumstantial evidence connecting the two appellants with the scene of the crime and relied strongly on the fact that each appellant had in a statement sought to set up a joint alibi which the evidence showed to be false, Lord Hodson said at p.462 :-

"The statements were relevant as tending to show that the makers were acting in concert and that such action indicated a common guilt. This is a factor to be taken into account in conjunction with the circumstantial evidence to which reference has been made in determining the guilt or innocence of the accused person, Telling lies to the police where enquiries are being made about a crime is of great significance, but as Mr Justice Oliver pointed out in Halden Watham's case [1952] 36 Cr. App.R. 72 at 76, there must be something more than the telling of lies to the police before a man is convicted of any crime, let alone murder."

In R. v. Ho Kam-sum and Ors. Criminal Appeal No. 695/1983, Li J.A. said :-

"We do not think Lucas to have intended to change that which we believe to be the basic principle that lies by themselves do not prove guilt but that they go no further than confirming or tending to support other evidence. We are not here concerned with the issue of corroboration as either desirable or as a matter of law. In these circumstances a trial judge must be very careful to avoid giving the impression to the jury that lies by themselves may amount to proof of guilt. Here it would have been advisable for the Judge to have said no more than that lies, if they existed, might discredit the contents of statements made in his own favour by the 3rd defendant - which statements lay for their consideration - and tend to support evidence going to the guilt of the 2nd defendant."

The appeal was allowed.

23. In the case of 1st applicant, there was no evidence linking him to this crime. The only evidence against him was his burns, the petrol on his clothes and the lie. The only possible inference was that he had been the victim of a petrol fire and had lied about it. There was no other evidence implicating 1st applicant in this offence that might have been strengthened by the lie.

24. In the case of 2nd applicant there was his presence outside the building at the time of, or shortly after, the fire, in a severely burnt condition, plus the damning evidence of his petrol-stained shoe on 7th floor. That amounted to circumstantial evidence from which the jury would have been entitled to draw an inference of guilt. If the jury was also satisfied that his explanation for being in the building was a lie and that he had lied from a realisation of guilt, the lie was clearly capable of strengthening that inference of guilt.

25. Although the judge's direction was incomplete on this point, we are satisfied that, in the case of 2nd applicant, no miscarriage of justice has occurred and refuse the application.

26. 1st applicant's application is granted. We treat the hearing as the hearing of the appeal, allow the appeal and quash the conviction.