HKSAR v. KWAN SUEN FU

DCCC 684/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 684 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of arson intending to destroy property and being reckless as to whether lives of others would be endangered, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Chapter 200.

2.  Briefly between August 2009 and August 2011 the defendant and Madam Cheung were lovers.  After the relationship ended the defendant moved out of Madam Cheung’s flat on the 14th floor of Block 17, Richland Gardens, Ngau Tau Kok (“the flat”). When the defendant wanted to get back his belongings he discovered that Madam Cheung had changed the lock.  

3.  In late September 2011 the defendant requested the return of all his personal belongings.  Madam Cheung returned everything except a jacket and a mobile phone, which she said did not belong to the defendant.

4.  At about 16:20 on the 28th December 2011 a neighbour smelt smoke and discovered Madam Cheung’s flat was on fire.  I am told the fire brigade were called and put out the fire at about 17:00.  At 17:25 the defendant telephoned Madam Cheung saying he had set her home on fire because she had not returned his jacket and mobile phone.  The defendant further told Madam Cheung that he made sure the fire was a big fire before he left. 

5.  The defendant was arrested in June 2012 when he admitted setting the flat on fire out of impulse when he could not collect his clothing.  Under video interview the defendant further said he became angry when no one answered the door and therefore collected some newspaper at the staircase and put them under the door before setting the paper on fire with a lighter.

6.  Forensic examination of the burnt debris revealed that the fire had been deliberately started with the aid of a thinner mixture.  The defendant saying he only used newspaper I have held a Newton hearing to determine the basis upon which to sentence the defendant.  I heard evidence over five days.  For the reasons given earlier today (a copy of which is annexed to these reasons) I am satisfied beyond reasonable doubt that the fire was deliberately started with the aid of a thinner mixture and not newspaper. 

7.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Chan, including that the defendant acted out of impulse without intending to injure anyone.  I take into account the defendant has no previous convictions for arson and that his last conviction was in 2006 when he was sentenced to 6 weeks imprisonment for assault occasioning actual bodily harm.

8.  I have carefully considered the content of the psychological and psychiatric reports called in September last year at the beginning of the sentencing process. Although these reports are now over eight months old I do not propose to call for any further reports. 

9.  The clinical psychologist Jessica Chan concludes that the commission of the offence is associated with the defendant’s habitual use of violence, poor emotional management and ineffective stress coping towards his negative emotions for which treatment is recommended. Apart from drug use, no formal psychological problem underlying his fire-setting behaviour was found. 

10.  The psychiatrist Dr Choi is of the opinion that the defendant is a chronic drug abuser with a history of drug-related psychosis.  At the time of the report the defendant was mentally stable with no active psychotic symptoms or cognitive deficit being elicited.  Inpatient treatment was not indicated although continuous follow-up at the outpatient clinic was recommended.  Dr Choi does not give his opinion on the reasons the defendant committed the offence save to say that the defendant knew what he was doing.  There is no suggesting the defendant was acting under the influence of drug induced psychosis or any other mental illness.

11.  There are no guidelines for offences of arson.  In HKSAR v Kung Pak-fu [2008] 2 HKCLRT 240 the Court of Appeal, after reviewing a number of cases, said at paragraph 23:

“……arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.”

12.  Fortunately Madam Cheung was not at home at the time however the lighting of a fire in a multi-storey residential building risks the lives of all other occupants of the building (see for example HKSAR v Cheung Wing Siu CACC 76/1998 and Chau Yuk Kuen v R CACC 402/1980).  Having seen the photographs, again fortunately, the damage to the flat was not extensive and the fire had not spread to any other flat.    

13.  Taking into account the present case arose out of the breakdown of a relationship and had nothing to do with triad, intimidation or revenge; the fire was during the daytime and not at night when occupants would be asleep although when giving evidence on the Newton hearing the defendant said he was aware Madam Cheung might have been in the flat; no one was injured and damage to the flat was limited; and whilst the defendant may have acted out of a degree of impulse and frustration the use of thinner to start the fire is an act of pre-meditation, I am satisfied the proper starting point after trial is 4 years imprisonment.

14.  Giving the defendant full credit for his plea of guilty would reduce the sentence to 2 years and 8 months imprisonment.   However the defendant having unsuccessfully challenged the evidence that thinner was used to start the fire he is not entitled to the full discount on a plea of guilty.  Taking into account the defendant accepted he started the fire and that he has some remorse for what he has done I am satisfied that a discount of 10 months is appropriate (which is just over 20%) making a sentence of 3 years and 2 months imprisonment (see HKSAR v Cheng Shiu Yu CACC 495/2006).

15.  Mr Chan submits further discount should be given on the basis that without the defendant’s confession to the police the prosecution may not have been able to secure the conviction.  I disagree.  There is other evidence including the telephone call by the defendant to Madam Cheung saying he had set her home on fire together with the video evidence showing the defendant was in the building and on the same floor just before the fire started.  The defendant’s co-operation with the police is incorporated in the discount given for pleading guilty.  No further discount is warranted.

16.  The defendant is convicted and sentenced to 3 years and 2 months imprisonment.           

DCCC 684/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 684 OF 2012

____________

HKSAR

v

KWAN SUEN-FU

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NEWTON HEARING

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17.   The defendant pleads guilty to one charge of arson intending to destroy property and being reckless as to whether lives of others would be endangered, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Chapter 200.

Introduction

18.   On the 28 December 2011 the defendant set fire to the flat of his former lover Madam Cheung on the 14th floor of Block 17, Richland Gardens, Ngau Tau Kok (“the flat”). The prosecution case is that the fire was deliberately started with the aid of thinner which was likely poured from the doorstep into the flat whereas the defendant says he only lit newspaper with a lighter.  Whether thinner or newspaper was used to start the fire having a significant effect on the level of sentence a Newton hearing has been held to determine the basis on which to sentence the defendant.

Evidence

19.   The prosecution called four witnesses, Mr Wong Ngan-sing (PW1) a neighbour who first discovered the fire; WPC 2526 (PW2) who set up a control point on the ground floor for residents of Richland Gardens; DSPC 54736 (PW3) who attended the scene of the fire the following day and Dr Cheng Yuk-ki (PW4) a Government Chemist called as an expert witness.  The evidence of WPC 2526, which is accurately summarised in the written submission of Miss Poon, does not assist in determining how the fire was started therefore I do not propose to set out her evidence.

20.   The defendant elected to give evidence and called one witness  Dr Sheilah Hamilton, also called as an expert witness.

21.   A sketch of the 14/F of Richland Garden and of the interior layout of the flat (exhibits P1 & P4); photographs (exhibit P3b and P5) and the times the defendant entered and left Block 17 on the day of the fire as revealed by CCTV have been admitted into evidence pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibits P6 & 6A).  

22.   The photographs, exhibit P3b are attached to Dr Hamilton’s report.  These were in fact taken by Dr Cheng.  Dr Hamilton’s copy was used for reasons of convenience, the photographs having been numbered by Dr Hamilton.  However by reason of these being copies there are differences in the colours of the various copies possessed by the parties and with the photographs actually taken by Dr Cheng, which are attached to his witness statement, exhibit P2B and also with the photographs, exhibit P5 which were taken by police officers. 

23.   I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout to prove how the fire started.  If what the defendant says as to how he started the fire is true or may be true he must be given the benefit of the doubt and sentenced on the basis of how he said he started the fire.

24.   I have carefully considered all the evidence and the written and oral submissions of Miss Poon and Mr Chan. 

Expert evidence

25.   Having heard evidence as to Dr Cheng’s qualifications, experience and training I was satisfied he could give expert evidence as to the cause of fire.  Dr Hamilton sets out her qualifications and relevant experience in appendix 1 to her report.  I was satisfied without hearing further evidence that Dr Hamilton could give expert evidence as to the cause of fire.

Expert reports

Dr Cheng

26.   Dr Cheng prepared four witness statements (exhibits P2A-D).  In summary Dr Cheng found the fire damage was confined to the doorway and only minor smoke damage was noted to other areas (see paragraph 2.2, exhibit P2A).  Removing the burnt debris revealed a burn mark from the doorstep extending about three feet into the flat, which Dr Cheng identified as the seat of the fire from which he collected a sample of burnt debris for examination of fire accelerant residues (see paragraph 2.4, exhibit P2A).  Laboratory examination revealed traces of toluene and xylene, which are flammable organic solvents and common constituents of thinner mixture (see paragraph 3.3, exhibit P2A).  Taking into consideration scene observations and the laboratory examination results Dr Cheng was of the opinion the fire was deliberately set with the aid of a thinner mixture, which was likely to have been poured from the doorstep into the doorway of the premises (see paragraph 4.1, exhibit P2A).

Dr Hamilton

27.   Dr Hamilton prepared one expert report, exhibit P3.  In summary Dr Hamilton whilst accepting the finding of liquid toluene and xylene indicates the presence of a flammable solvent such as a thinner, states the detection of traces of both toluene and xylene can also be explained by the breakdown of the inks on paper when burnt (see paragraph 7).  In conclusion Dr Hamilton was of the opinion that the finding of trace amounts of toluene and xylene could have been due to the presence of burnt printed paper and not the presence of thinner (see paragraph 8(a)), which possibility is further strengthened by the absence of any characteristic odour and any bottle to contain thinner (see paragraph 8(b) as read with paragraph 6).  

Revision of Dr Hamilton’s opinion

28.   In evidence Dr Hamilton revised this opinion and gave what she believed was a possible scenario where the newspaper ignited another item (other than fire accelerant) which gave rise to the reading of toluene and xylene.  I will first consider what led to Dr Hamilton revising her opinion. 

29.   S.H. Chan & Co, solicitors for the defendant wrote requesting   Dr Cheng to indicate the methodology used to detect traces of toluene and xylene and what Dr Cheng meant in his report when referring to “traces” in terms of quantitative figure (see questions 10 & 11 in the letter to the Department of Justice dated 9 October 2012, a copy of which is attached to the statement of Dr Cheng, exhibit P2B).  Dr Cheng replied the volatile substances were collected by adsorbent tubes, which were then analysed by ATD-GC-FID and ATD-GC-MS systems.  By “traces” Dr Cheng explained this meant positive identification of the specified substances there being no quantification analysis of the identified substances conducted (see comments 10 & 11 in the statement, exhibit P2B).

30.   Following this Dr Hamilton observed at paragraph 6(e) of her report that Dr Cheng did not perform any quantitative analysis and therefore was unable to state how much toluene and xylene was detected.  In evidence Dr Cheng explained that it was meaningless to quantify the amount of toluene and xylene because the amount of fire accelerant left at the scene of fire depended on a lot of factors including the time of the fire, how long the fire was burning, when the sample was collected and how much accelerant had been used. 

31.   This observation led in part to Dr Hamilton concluding that the finding of trace amounts of toluene and xylene could have been due to the presence of burnt printed paper.  In response to Dr Hamilton’s opinion  Dr Cheng stated that the possibility of the recovered flammable traces being interfering products from household items had been considered and excluded before the finding of traces of toluene and xylene recovered from the burnt debris was reported (see exhibit P2D).  The exclusion of flammable traces being interfering products from household items was the subject of extensive cross-examination during which Dr Cheng explained how the Government Laboratory developed a procedure to exclude the detection of toluene and xylene from household items.

32.   In summary Dr Cheng explained that when conducting analysis of burnt debris using the ATD-GC-FID and ATD-GC-MS systems both a blank and positive sample will be used.  The blank sample is to ensure the machine is operating properly whereas the positive sample, which will include petrol, kerosene and diesel, is used to produce the peak height of these fire accelerants. 

33.   Dr Cheng further explained that the laboratory had conducted research on common household items including wood, plastic and paper, which indicated the peak height of the fire accelerant in these household items.  As some household items will give a signal which corresponds with that for toluene and xylene Dr Cheng explained that the laboratory set a very stringent requirement before making a positive finding that the presence of toluene and xylene was as a result of the use of a fire accelerant.  This has been referred to as the cut-off value.  Any signal detecting the presence of toluene or xylene which is below the cut off value would be regarded as a negative finding. 

34.   Dr Cheng explained this by reference to notional figures of one, one hundred and one thousand.  One was the peak height of toluene and xylene originating from household items; 100 was the cut-off value and 1000 the maximum of the machine conducting the analysis.  When the court sought clarification of the notional figures used and their application to the analysis of the burnt debris Dr Cheng said the signal in this case was very high and near to the maximum of the machine thereby indicating a lot of fire accelerant was left at the scene of fire.  In questions arising Mr Chan asked Dr Cheng for scientific figures as opposed to notional figures.  With reference to the chromatograms produced during analysis by the ATD-GC-FID and ATD-GC-MS systems (exhibit P2I)  Dr Cheng explained that the ATD-GC-FID produced a positive result as to the finding of fire accelerant which the ATD-GC-MS identified as toluene and xylene.  At the same time Dr Cheng pointed out the high reading.

35.     Note should be made here that reference to chromatograms had arisen earlier when Dr Cheng in cross-examination was explaining how the laboratory excluded the detection of toluene and xylene originating from household items.  Dr Cheng referred to a paper (exhibit P2E) written by chemists in the Government Laboratory in which reference was made to chromatographic profiles of partially burnt household items.  On enquiry by the court Dr Cheng said he had in court the chromatograms produced during the analysis in what he called his “file jacket”. The chromatograms had not been served on the defence.  I was of the view the working papers of Dr Cheng, including the chromatograms, should be disclosed.  Dr Cheng having told the court no one had asked him to produce the chromatograms I directed that the working papers be disclosed to the defence. This resulted in an adjournment (of almost three weeks) for the defence to consider these papers.

36.   At paragraph 30 of his written submission Mr Chan submits that it was very misleading for Dr Cheng to use the term “traces” when actually relying on a very high reading.  Whilst Dr Hamilton said she requested details of quantitative assessment and was told there was none Dr Hamilton did not go so far as to say she was misled.  Further in answer to the court Dr Hamilton says she was familiar with GCMS system used by Dr Cheng, which Dr Hamilton said had been in use for over 30 years.  Whilst the duty of disclosure is that of the prosecution and the chromatograms should have been disclosed prior to trial Dr Hamilton said that although she was aware that chromatograms were produced during testing she did not make any request to see these for her consideration before giving her expert opinion.

37.   In evidence-in-chief Dr Hamilton said that newspaper alone could not give rise to the high signal from the GCMS test.  Dr Hamilton was then asked by Mr Chan whether on the assumption no fire accelerant was used whether it was possible to explain the presence of toluene and xylene from the mere use of newspaper.  Dr Hamilton replied that she believed a possible scenario was that the lighted newspaper ignited another item which in turn set fire to the suitcase (shown for example in photographs 110 and 111, exhibit P3b and photographs 11 and 12, exhibit P5).  In giving that answer Dr Hamilton pointed out that the suitcase was almost certainly made of synthetic material and was in the general area of the fire.  On clarification by the court Dr Hamilton confirmed what she was saying was that the newspaper alone could not give rise to the high reading of toluene and xylene but that the newspaper set alight something else, such as the suitcase, which would give that high reading. 

38.   Whether or not Dr Hamilton was in fact misled by the use of the term “traces” I have no hesitation in rejecting the possible scenario the newspaper ignited something else, such as the suitcase, which gave rise to the high reading.  This gave the impression of being an afterthought once Dr Hamilton realised that the traces of toluene and xylene could not have been due to the presence of burnt printed paper in the debris. 

39.   Dr Hamilton more than once said the suitcase was important evidence yet there is no mention in her report of the suitcase or indeed any other possible source of the toluene and xylene such as clothing or plastic.  In answer to the court Dr Hamilton explained this was because her instructions were limited to consideration of newspaper.  Whilst these may well have been Dr Hamilton’s specific instructions it is quite clear from Dr Hamilton’s report that the main purpose of Dr Hamilton’s examination was to determine whether she agreed with the conclusions of Dr Cheng and if not to explain why (see paragraph 3 of Dr Hamilton’s report, exhibit P3).  Surely if the suitcase was considered important then this would have been included in the report to explain why Dr Hamilton disagreed with the opinion of Dr Cheng.  Equally if Dr Hamilton was of the opinion that there were other possible sources contributing to the finding of toluene and xylenesuch as clothing or plastic this would also have been included in Dr Hamilton’s report. 

Defendant’s evidence

40.   In summary the defendant testified that he used to cohabit with Madam Cheung at the flat.  In July/August 2011 the defendant ceased to cohabit at which time he returned the keys to the flat to Madam Cheung.  On the 28 December the defendant went to the flat to collect his personal belongings, including his passport, birth certificate, some clothing, shoes and a marathon certificate.  The defendant explained that he had not collected them earlier because he had been receiving drug treatment.

41.   The defendant did not call Madam Cheung in advance because he was aware she had worked for three days and that this was her day off work therefore she should have been at home.  On arrival the defendant pressed the door bell for a long time but no one answered the door.  The defendant also called Madam Cheung’s mobile phone and the phone number of the flat but no one answered the calls.  Although the defendant thought Madam Cheung might not be at home he became very angry because no one answered the door.     

42.   The defendant then went to the rear staircase and fetched a pile of newspaper which he inserted under the door.  With a lighter the defendant used for smoking he set light to the newspaper.  The defendant said he used 7-8 sheets of newspaper. In answer to the court the defendant described with reference to the photograph album that one sheet of newspaper was equivalent to two pages of the photograph album.

43.   Having set the newspaper alight and still no one answered the door the defendant by then knew no one was inside.  In answer to the court the defendant said when setting the flat on fire he was aware of the possibility Madam Cheung could have been inside.  The defendant then rang Madam Cheung who this time answered the phone call.  The defendant told Madam Cheung that he had set her flat on fire. 

44.   Although the defendant’s evidence as to how he started the fire is consistent with what he told the police on arrest (see paragraphs 6 & 7 of the summary of facts admitted on pleading guilty) I have no hesitation in rejecting the defendant’s evidence, which in parts is also inconsistent with the summary of facts.  I do not find his evidence credible.  In cross-examination the defendant disagreed he did not return the keys and that he knew the locks had been changed.  When drawn to the attention of the defendant that he had admitted finding out the lock had been changed (see paragraph 1 of the summary of facts) he replied he knew a padlock had been added. 

45.   The defendant testified he telephoned Madam Cheung about 10-15 minutes after he reached the ground floor whereas in the summary of facts the call was made over one hour after the fire started.  The defendant also disagreed when calling Madam Cheung that he told her he had made sure the fire was a big one.  When pointed out by the court that he had admitted saying this (see paragraph 4 of the summary of facts) the defendant replied he could not recall if he had.

46.   I also do not find credible the defendant’s evidence that he used 7-8 sheets of a newspaper to set fire to the flat.  Fire damage to the wooden door can be seen in the lower right corner of both the outside and inside of the door (see photographs 15, exhibit P3b and photograph 3, exhibit P5 as compared with photographs 24, 36 & 110, exhibit P3b and photographs 8 & 9, exhibit P5).  Dr Cheng’s evidence, which I accept, is that the door was not burnt through.  Dr Cheng said that if the fire was started outside the door without the aid of a fire accelerant the outside of the door would be almost completely scorched and the door would likely burn through as the fire spread into the premises.  In cross-examination Dr Hamilton whilst disagreeing the fire damage to both sides of the door could only have been caused by the use of fire accelerant said she could not give an explanation as to why if the direction of the fire was from inside the flat both sides of the door were burnt but the door was not burnt through. 

47.   Further Dr Cheng explained that it was impossible pieces of lighted newspaper pushed under the gap of the door would produce the extent of fire damage seen inside the doorway because the newspaper will be consumed rapidly and therefore the newspaper would not heat up the wooden floor resulting in the burn mark seen on the floor. 

48.   I remind myself that the rejection of the defence evidence is not determinative of how the fire started.  The defendant does not have to prove how the fire started.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove beyond reasonable doubt fire accelerant was used to start the fire.

Dr Cheng’s opinion

49.   I now turn to consider whether the court can safely rely on the expert opinion of Dr Cheng that the fire was deliberately set with the aid of a thinner mixture, which was likely to have been poured from the doorstep into the doorway of the premises.

50.   In evidence Dr Cheng further explained his opinion fire accelerant was used.  In summary Dr Cheng concluded the seat of the fire was inside the doorway.  With reference to photograph 115 (exhibit P3b) which shows the burn mark, Dr Cheng explained the change of colour of the floor was because this area sustained high temperature for a period of time.  Dr Cheng having looked in the living room noticed the colour of the floor next to the burn mark was the original colour of the floor.  From his experience Dr Cheng said the most likely cause of such damage was a pool of fire accelerant.  Dr Cheng explained as the flat was locked at the time the fire will have been set alight from outside by a lighter or pieces of paper however, as noted earlier, Dr Cheng said that the use of newspaper would not cause the severe damage inside the doorway.

51.   To strengthen his finding Dr Cheng collected burnt debris from the seat of the fire to determine what fire accelerant was used.  Dr Cheng did this by cleaning the floor with a towel found in the flat.  DSPC 54736 (PW3) was present when Dr Cheng collected the burnt debris.  Dr Cheng then put the towel which was soaked with water and the burnt debris into a nylon bag specifically designed to collect burnt debris for examination of fire accelerant.

52.   Dr Cheng explained it was unlikely the toluene and xylene was as a result of the burning of newspaper because the ink in newspaper was made up of some petroleum product which had a different composition to toluene and xylene.  This was when Dr Cheng also explained that the laboratory were aware that certain products such as plastics or newspapers would give a signal during analysis and therefore developed a cut-off level below which would be regarded as a negative finding. 

53.   Taking into consideration scene observations and the laboratory examination results Dr Cheng was of the opinion that the fire was deliberately set with the aid of a thinner mixture, which was likely to have been poured from the doorstep into the doorway of the premises (see paragraph 4.1, exhibit P2A). 

Criticisms of Dr Cheng’s opinion

54.    A number of criticisms are made of Dr Cheng’s methodology.  Mr Chan makes three main criticisms namely the failure to examine the partially burnt suitcase; the use of a towel found in the flat to collect the burnt debris for laboratory examination and the reliability of the laboratory examination.  I will first address the reliability of the laboratory examination of the burnt debris.

Laboratory examination

55.   In summary two examinations were conducted by Dr Cheng namely ATD-GC-FID and ATD-GC-MS.  The ATD-GC-FID resulted in a positive finding of fire accelerant which the ATD-GC-MS system identified as toluene and xylene, the examination sheet of which is annexed to Dr Cheng’s witness statement, exhibit P2C.

56.   The major criticism made of the laboratory examination is that without an independent study of all household items that may contain fire accelerant one cannot eliminate that the finding of toluene and xylene was as a result of household items.  At the beginning of cross-examination Dr Cheng accepted that toluene and xylene are not something uniquely found in fire accelerant and referred the court to a paper (exhibit P2E) written by chemists in the Government Laboratory and published in 2002 in which research had been conducted on common household items to see whether they contain flammable traces. 

57.   Mr Chan submits that Dr Cheng’s reliance on this paper actually provides more reason for further testing (see paragraph 29 of Mr Chan’s written submission). In cross-examination Dr Cheng explained that the paper does not say how to exclude the presence of toluene and xylene as being from household items but only in which household items toluene and xylene may be present.  Dr Cheng further said that in developing the procedure by the laboratory to exclude household items as the source of toluene and xylene this was not limited to the household items mentioned in the paper.

58.   I am satisfied the laboratory examinations which Dr Cheng conducted were reliable tests whereby the possibility of the recovered flammable traces being interfering products from household items could safely be excluded.

59.   I now turn to consider whether the failure to examine the partially burnt suitcase and the use of a towel found in the flat to collect the burnt debris give rise to doubt in the reliability of the positive finding that the toluene and xylene was as a result of fire accelerant being used.

The burnt suitcase

60.   The burnt suitcase is shown for example in photographs 42, 43, 44, 47, 110, and 111, exhibit P3b and photographs 6, 9, 11, 12 and 15 exhibit P5.  Dr Cheng found the suitcase in the kitchen which as shown in the photographs he repositioned away from the seat of the fire.  In cross-examination Dr Cheng said he only conducted a visual examination of the burnt suitcase because the suitcase was not at the seat of the fire.  The repositioning of the suitcase and the failure to examine the suitcase are both criticised by the defence.

61.   Dr Cheng explained that he first replaced a wooden board found outside the premises (see photograph 2, exhibit P3b).  The burn mark on the wooden board matched with the smoke mark on the wall best seen in photograph 19 (exhibit P3b).  Dr Cheng was therefore of the opinion the wooden board had originally been next to the wall and repositioned the wooden board as shown in photograph 111 (exhibit P3b).  Dr Cheng further explained that as half of the suitcase only had been burnt he was of the opinion the suitcase should have been near the doorway at the time of the fire.  Dr Cheng therefore placed the suitcase next to the wooden board as shown in the photographs, in particular photograph 111 (exhibit P3b).

62.   When put in cross-examination this repositioning was fundamentally wrong Dr Chengexplained he tried to simulate the fire scene to determine how the fire spread and in which direction.  Dr Cheng said that it was the usual practice of fire investigators to reconstruct the scene of fire.  Dr Cheng went onto explain that the profile of the wooden board also matched with the height of the suitcase suggesting the suitcase may have been near the wooden board.  Dr Cheng explained this by marking on a copy of photograph 2 (exhibit P2G)the burnt edge of the wooden board which matched the height of the suitcase.  

63.   Dr Cheng also explained that the overall damage of the doorway and the fact that only one side of the suitcase was burnt indicated that the suitcase was in the corridor close to the seat of the fire.  Dr Cheng could not however confirm how far the suitcase was from the wooden board but said it should have been in that area.  Further Dr Cheng emphasised that the relocation of the wooden board and the suitcase was just to illustrate the possible position of these two items but was not very exact and that he could not distinguish which was closer to the doorway.  I note in cross-examination Dr Hamilton agreed entirely with the repositioning of the wooden board but was not so sure with regard to the suitcase and said it would have been safer to look for distinctive patterns on the floor to determine where items were during the fire. 

64.   Mr Chan submits the repositioning of the suitcase based on the burnt edge of the wooden board is unreliable and therefore gives rise to potential uncertainty in Dr Cheng’s findings.  This is closely related to Mr Chan’s submission the closer the suitcase the more possible that clothing on top of the suitcase would fall during the fire and cause the burn mark on the floor (see paragraphs 21 & 22 of Mr Chan’s written submission). 

Burn mark

65.   In evidence-in-chief Dr Hamilton accepting that the burn mark was consistent with the use of fire accelerant said that if something such as synthetic clothing caught fire and landed on the wooden floor depending on the size and shape of the clothing a similar pattern to the burn mark may occur.  In cross-examination Dr Hamilton repeated that the use of fire accelerant was only one possibility and that another possibility is that if an item of fabric was ignited and landed evenly on the floor the degree of burning could have been similar.

66.   Dr Hamilton further explained in cross-examination that this was not necessarily the result of someone putting the clothing on the floor rather that the clothing fell on the floor.  Dr Hamilton agreed such item of clothing would need to cover the entire area of the burn mark and pointed out that from looking at the photographs of the entire flat a lot of cloth could be seen hanging around.  When asked by the court where in particular in the flat was being referred to Dr Hamilton said not in the corridor where the fire was but in the flat in general.  Later in cross-examination Dr Hamilton suggested there may have been clothing on the top of the suitcase which fell on the floor when the suitcase caught fire. 

67.   Mr Chan submits without carrying out any tests on the suitcase one simply cannot rule out the possibility that the findings of toluene and xylenewere attributable to the suitcase, in particular considering that it is impossible to ensure the burnt debris collected by Dr Cheng did not contain any burnt material of the suitcase or the contents of the suitcase (see paragraphs 23 & 24 of Mr Chan’s written submission).  In cross-examination Dr Cheng disagreed the suitcase may have contributed to the finding of toluene and xylene and repeated that the laboratory had developed a procedure whereby common household items will not give a signal above the cut-off value.  Dr Cheng explained that he collected burnt debris at the seat of the fire and as the partially burnt suitcase was at a position where the fire reached and not at the seat of the fire there was no point to examine the suitcase.  Dr Cheng further said that because the suitcase was away from the seat of the fire this alone eliminated the possibility the suitcase contributed to the finding of toluene and xylene.

68.   Dr Hamilton said it was possible the suitcase together with the contents when burnt contained some toluene and xylene and it was also possible that when the firemen walked on the burnt debris of the suitcase this was muddled up with debris collected by Dr Cheng.  Dr Hamilton would have seized the suitcase as an important piece of potential evidence and said that it was unfortunate this was not done.  After detecting presence of toluene and xylene Dr Hamilton would then have done a thorough examination of the suitcase and some experiments under control conditions to see if this could have produced toluene and xylene.  Without examining the suitcase Dr Hamilton said she did not think that one can eliminate the suitcase as the source of the toluene and xylene.  In cross-examination Dr Hamilton said that it was prudent to collect debris from both the seat of the fire and the surrounding areas and again said that the suitcase was incredibly important potential evidence because the appearance of the suitcase looked very like synthetic woven material.   

69.   I have no hesitation in rejecting the criticism that Dr Cheng did not examine the suitcase.  Again if the evidence of the suitcase was so important then it is remarkable if not incredible Dr Hamilton made no reference to the suitcase in her report.  Dr Hamilton was clearly aware of the existence of the burnt suitcase as the burnt suitcase was referred to in Dr Cheng’s first statement (exhibit P2A) and shown in the photographs.  I accept Dr Cheng’s opinion that he did not examine the suitcase because the suitcase was not at the seat of the fire.  

70.   I have no hesitation in rejecting the suggesting the suitcase was nearer to the seat of fire and therefore more possible cloth fell off the suitcase causing the burn mark on the floor.  In cross-examination when put the suitcase could have been nearer to the doorway than shown in the photographs Dr Cheng replied; “Unlikely…should be impossible.  If closer to the doorway the suitcase should be completely burnt down instead of only half.”  In cross-examination Dr Hamilton said if the suitcase was at the seat of the fire then she would have expected the suitcase to have been completely burnt.  I also note that although cross-examined at some length about the suitcase this possible scenario of clothing falling off the suitcase was never put to Dr Cheng for his comment.

The towel

71.   Criticism is also made of Dr Cheng’s use of a towel found in the flat to collect the burnt debris for examination (see paragraphs 25-27 of Mr Chan’s written submission).  In evidence-in-chief Dr Cheng said he found the towel near the doorway.  In cross-examination when asked where he found the towel Dr Cheng replied in a room but did not remember exactly where except this was away from the seat of the fire.

72.   When put in cross-examination that he did nothing to ensure the towel was not contaminated Dr Cheng explained he checked whether the towel was dirty or clean and smelt the towel to make sure that there were no traces of fire accelerant. When put by looking and smelling he could not tell whether the towel was contaminated Dr Cheng replied that it was uncommon to find clean towels at homes contaminated with fire accelerant and further that he did not find any bottles or cans of fire accelerant in the flat.

73.   Dr Hamilton said that whilst a clean towel was a perfectly acceptable way to collect burnt debris the proper procedure to collect burnt debris would be to go with a kit which contained clean and new items which were uncontaminated.  Without knowing the provenance of the towel Dr Hamilton said one cannot be sure the towel had not been contaminated with other material particularly by household materials where a towel is obtained from a kitchen.  Dr Hamilton further thought that it was not prudent to look and smell the towel as Dr Cheng did. If the towel was contaminated Dr Hamilton said that this could be the source of the toluene and xylene and that the towel therefore should havebeen removed first before doing the GCMS test. 

74.   When the court sought clarification what household materials could contaminate the towel Dr Hamilton said thinner, floor polish or plaster.  Dr Hamilton said the most obvious way to tell if the towel was contaminated by thinner was by smell and if one was looking to see if the towel was contaminated one would see signs of floor polish or plaster. 

75.   I accept the evidence of Dr Cheng that he used a clean towel which he specifically checked both visually and by smell for the presence of accelerant.  Whilst it would have been better had Dr Cheng taken a clean towel from the laboratory, which Dr Cheng himself accepted at the end of cross-examination, I am satisfied this does not in the circumstances cause me to doubt his expert opinion.

Smell

76.   Reliance is also placed by the defence on the evidence ofa neighbour Mr Wong Ngan-sing (PW1) who first discovered the fire (see paragraphs 8 & 19 of Mr Chan’s written submission).  In cross-examination Mr Wong said he knew the smell of thinner and said that he did not smell any thinner.  Dr Cheng’s opinion was that a few 100 ml of thinner may have been used.  Dr Hamilton said that very small quantities of toluene and xylene can be detected by the average nose and that if the equivalent of half a can of a soft drink was used then she would expect to smell the presence of thinner whilst the fire was on.

77.   In re-examination Dr Cheng explained that one is able to smell thinner before burning but after burning the smell will be mixed with the smell of burning of the original material and will also depend on whether combustion is complete for if all the fire accelerant is consumed the fire accelerant cannot be smelt.

78.   I accept the evidence of Dr Cheng.  After careful consideration I find I am satisfied the fact that Mr Wong when discovering the fire and putting the fire out did not smell any thinner does not cause me to doubt the expert opinion of Dr Cheng.

Ruling

79.   I accept the opinion of Dr Cheng that the fire was deliberately set with the aid of a thinner mixture likely to have been poured from the doorstep into the doorway of the premises, which opinion is based both on Dr Cheng’s scene observations, in particular the burn mark on the floor of the flat as well as the laboratory examination results.  In reaching this finding I have carefully considered the evidence of Dr Hamilton and the submission of Mr Chan.  Nothing said by Dr Hamilton or Mr Chan causes me to doubt Dr Cheng’s expert opinion.  Nor does the fact that there is no evidence that the defendant was seen carrying any bottle or container which could have held the thinner.  I am satisfied so I am sure the prosecution have proved beyond reasonable doubt the fire was deliberately started with the use of a thinner mixture.