HKSAR v. TANG YUK WAH

CACC 132/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 132 OF 2005

(ON APPEAL FROM DCCC NO. 1207 OF 2004)

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.  The applicant seeks leave to appeal against his conviction on 2 charges of arson with intent contrary to section 60(2) of the Crimes Ordinance, Cap. 200 for which he was sentenced to 4 years and 6 months for one (the 3^rd charge) and 2 years for the other (the 5^th charge).

2.  In respect of the 3^rd charge the facts were that at 4:45 a.m. on 5 August 2004 outside 2 flats on the 10^th floor of Block 2, the Seacrest, No. 1, Hang Kwai Street, Tuen Mun, New Territories where the applicant lived at Flat A, 13^th Floor of the same block, slippers, shoes, carpets, wooden doors and lift doors were damaged by fire. The 5^th charge took place at 6:30 a.m. on 16 September 2004 where a rubbish bin in the staircase at the 15^th floor of the same block was damaged by fire.

3.  The judge held that the fires had been started by the applicant.  It was central to the defence whether the applicant had the requisite state of mind.  Deputy District Judge Tallentire applied the Caldwell test on recklessness which had been followed by this Court in R v Chau Ming Cheong [1983] 1 HKC 68 and R v Dung Shue Wah [1983] 2 HKC 30.  No doubt, the judge felt bound to apply this test when he convicted the applicant on 8 February 2005, although by then, Caldwell had itself been departed from in England by R v G [2004] 1 AC 1034.

4.  According to Caldwell, recklessness was to be judged by the standard of the reasonable prudent man, such that it has been held in England in R v Coles [1995] 1 Cr App R 157, that expert evidence of the defendant’s capacity to foresee the risks which arise from his setting fire to hay in a barn had been rightly rejected.  See R v G para. 44. 

5.  Mr Zervos SC, for the respondent, submitted that the test of recklessness included the situation where a person recognised the risk but nevertheless went on to do it.  Mr Zervos described this as the subjective test.  He submitted that the Caldwell test had 2 limbs, a subjective and an objective test and it was the subjective test which the judge had applied in this case.

6.  Section 60 of the Crimes Ordinance is based on section 1 of the Criminal Damage Act 1971.  As Lord Diplock said in Caldwell at 353G, “reckless” in section 1 of the Criminal Damage Act 1971 had been interpreted in precisely the same sense as that in which the single adverb “maliciously” had been construed by Professor Kenny in the passage that received the subsequent approval of the Court of Appeal in Reg. v Cummingham [1957] QB 396.  The passage from Professor Kenny was taken from the first edition of his Outlines of Criminal Law published in 1902:   

“

In any statutory definition of a crime, malice must be taken as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).” (351C)

7.  The majority decision in Caldwell, however, was that that was wrong and “reckless” in section 1 of The Criminal Justice Art 1971did not require the accused to foresee that the particular kind of harm might be done and yet has gone on to take the risk of it, although, no doubt if the accused had such a state of mind he could be said to be reckless.

8.  It follows that it is incorrect to say that the Caldwell test had 2 limbs, a subjective and an objective one.  The Caldwell test was a single test and it was that which the House of Lords in R v G departed from.  That single test was followed by this court in R v Chau Ming Cheong and  R v Dung Shue Wah.  Those decisions have been overruled by the Court of Final Appeal in Sin Kam Wah v HKSAR [2005] 2 HKLRD 375.

9.  In Sin Kam Wah, the Court of Final Appeal held on 26 May 2005 that the Caldwell test should no longer be followed in Hong Kong.  Instead, the prosecution has to show 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” per Sir Anthony Mason NPJ at 391D in Sin Kam Wah. 

10.  Mr Zervos, SC has submitted that Sin Kam Wah does not apply to this application because the decision in the present case pre-dated the decision in Sin Kam Wah.  He supported his submission by referring to what Sir Anthony Mason NPJ said in para. 44 that:

“	Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v G [2004] 1 AC 1034.”
	(emphasis added)

We do not agree Sin Kam Wah only has prospective effect.  Cross and Harris Precedent in English Law, 4^th ed., chapter VIII, refers to retrospective overruling “as the current invariable practice” p. 228.  Mr Zervos confirmed that no argument was addressed to the court in Sin Kam Wah about prospective overruling.  Mr Zervos relied solely on “henceforth” in the sentence quoted above. The reliance is misplaced.  We express no view on whether prospective overruling is possible.  We understand this question will be considered by a different division of this court in HKSAR v Hung Chan-wa, CACC 411/2003 and HKSAR v Asano Atsushi, CACC 61/2004. 

11.  It follows we are of the view the applicant’s appeal should be decided on the Sin Kam Wah test.

12.  Section 60(2) of Crimes Ordinance, Cap. 200 provides:

“	A person who without lawful excuse destroys or damages any property, whether belonging to himself or another –
	(a)	intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
	(b)	intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
	shall be guilty of an offence.”

13.  The 3^rd charge reads as follows:

“

… on the 5th day of August 2004, outside Flats A and B, 10th Floor, Block 2, The Seacrest, No. 1, Hang Kwai Street, Tuen Mun, New Territories, in Hong Kong, without lawful excuse, damaged by fire the slippers, shoes, carpets, wooden doors and the lift door, belonging to the tenants of the 10th Floor, Block 2, The Seacrest, No. 1, Hang Kwai Street, Tuen Mun, 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 others would thereby be endangered.”

The 5^th charge was to similar effect.

14.  Section 60(2)(a) is simple enough.  Normally, if one sets fire to an object, it is easy to infer that one intends to damage the object by fire.  Thus, both charges allege such intention against the applicant.  However, in relation to section 60(2)(b), the endangering of life, the charges did not allege actual intention but recklessness.

15.  Thus, it was critical to these charges that the judge should decide whether the applicant was “reckless as to whether the life of others would thereby be endangered”.

16.  This is what the judge said about the 3^rd charge:

“	41.	For this charge there is a clear and unambiguous admission to the commission of the act of arson, the date of commission and the method used. You describe in detail the piling up of shoes and carpets at the door of the flat and you used newspaper and your lighter which had been produced and exhibited in the case to set the fire. You do say that you only wished to cause smoke, but I do not accept this. This is merely a self-serving statement.
	42.	It is clear to me in terms of section 60(2) of the Crimes Ordinance you did damage property and you intended to do so. Certainly in respect of the shoes and carpets. In respect of the ancillary damage to the fixtures and fittings you were at the very least reckless in that you did an act which created an obvious risk that property would be damaged and you recognised there was some risk involved in what you did and then went on to do it.
	43.	The level of recklessness is clearly as that defined in R v Caldwell [1982] AC 341. Applying the same definition, it is also my finding in respect of section 60(2)(b) in that you were reckless similarly as to whether life would be endangered.”

He said this in relation to the 5^th charge:

“

45.

Charge 5, the act of damage I find is clearly and equivocally admitted, both in the statement recorded notebook, P16, and in the video interview transcript, P21. It is established clearly that you intended to cause damage by fire, and despite your pious hope that you did not wish to harm anyone, that the act of lighting a litter bin in a public staircase in my opinion is reckless as defined by the Caldwell case. It is an act of recklessness whereby life must perchance be endangered.”

17.  Mr Zervos has frankly conceded that the judge probably adopted the objective test in relation to the 5^th charge.

18.  He sought to persuade us that the judge had applied the subjective test in relation to the 3^rd charge.  We are not persuaded.  When the judge said: “The level of recklessness is clearly as that defined in R v Caldwell”, we believe he was referring to the Caldwell test which as we have explained is a single test.

19.  No doubt, because the judge applied the Caldwell test he made no finding on the applicant’s state of mind although the applicant had alleged in his statements that he had taken certain medication and alcohol.  He also claimed in his answer to Question 224 in the video interview in relation to the 5^th charge that: “Therefore, I considered burning something there (the rear staircase), would not, I thought, … affect others at all.”  In relation to the 3^rd charge, for example, he said: “(guards) would smell the smoke, and uh, would very quickly put out the fire”: answer to Question 329. 

20.  None of this was dealt with by the judge in his judgment.  On the Caldwell test, they mattered little.  We have not overlooked Mr Zervos’ submission that there are passages in the video interview which support a case of recklessness based on the Sin Kam Wah  test.  However, surely, the applicant is entitled to a trial based on the correct test.  Indeed, counsel below and the judge proceeded on the basis of the Caldwell test (correctly so, on the state of the authorities at that time) in which following R v Cole expert evidence on his capacity to foresee the risk was not admissible.  In a new trial, such evidence might well be admissible.  Morever, as held in Sin Kam Wah, it was necessary for the judge to decide whether the applicant “genuinely did not appreciate or foresee the risk” that the life of others would thereby be endangered.  That was in fact the applicant’s defence. 

21.  Mr Zervos has submitted that we should apply the proviso and has referred us to Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113.  We do not believe this is an appropriate case for the proviso.  As we have said the applicant is entitled to have a trial based on the correct test for recklessness.  Since we are going to order a retrial (not opposed by the applicant) we would not comment further on the evidence.

22.  We grant leave to appeal and treating this hearing as the hearing of the appeal, we allow the appeal and set aside the conviction.  We order a retrial.

23.  The applicant has been convicted of 2 other charges for which he has been sentenced to imprisonment for 6 months.  After the applicant has served the term of imprisonment imposed for those charges, he should be remanded in custody pending the retrial.