R. v. CHU PO KWONG

IN THE COURT OF APPEAL

1995, No.88
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced 12 counts of murder. He pleaded not guilty to those counts and was, after trial before Wong J. and a jury, convicted of manslaughter in each case. He was sentenced on each count to 20 years, the sentences to be concurrent. He now seeks leave to appeal against those sentences.

2. The facts were that on 10th January there were 13 Hongkong and Shanghai Banking employees present at the Hongkong & Shanghai Banking Corporation Branch at 111-120 Nam Cheong Street in Shek Kip Mei and a number of members of the public. At about 11 a.m. the defendant entered the bank. He had that morning purchased a cigarette lighter and a newspaper and two full 3.7 litre cans of paint thinner. He brought those articles with him into the bank. The evidence was that the paint thinner contained 75% toluene and 24% isopropyl alcohol. Toluene is highly flammable with a flash point of 4°C and burns readily with a yellow flame and a lot of smoke. The alcohol is also highly flammable with a flash point of 12°C.

3. At the time when the defendant entered the bank there was a queue of customers. He approached counter No.8 which was staffed by a Miss Chiu Lo-mui. Miss Chiu was the person to whom he wished to address himself in the bank. It appears that he considered she may have been responsible for marital discord between his wife and himself. He had been very upset by this as his wife had disappeared and he had been searching for her. It seems that he had the intention of forcing Miss Chiu to reveal her whereabouts. He removed the cap of one of the cans of thinner and inserted a crumpled newspaper therein. He then removed the cap of the other can, and sprinkled its contents onto the floor in front of counter No.8. He then placed the can in which the crumpled sheet of newspaper was inserted in front of Miss Chiu. At some stage he lit the cigarette lighter. He extinguished it, put it in his pocket but then brought it out again. The flame from that lighter came into contact with the newspaper inserted in the opening of the can and a fire broke out. It spread readily and the fumes from this fire caused the twelve deaths.

4. It was the evidence of the applicant at trial that the fire had started accidentally and that he had acted with the intention of frightening Miss Chiu into giving him the information. The jury's verdict indicates that they were not satisfied beyond reasonable doubt of an intention to cause death or really serious harm to Miss Chiu or to anyone else.

5. Mr. Sarony, Q.C., with him Mr. James Cheng, who appears today for the applicant as he did at trial, submits that when sentencing the trial judge lost sight of the emotional state of the applicant at the time of the offences which he submits heavily mitigates in his favour. He urges further that the trial judge was wrong when he said immediately before sentencing:

"Having regard to the seriousness of this case, bearing in mind the maximum sentence is one of life imprisonment, this is a bad case of Manslaughter, and I would say it is only short of murder."

The judge had earlier characterized the actions of the applicant in the following way:

".... there is no doubt that their deaths were caused by your criminal, irresponsible, and callous act. You were not only selfish, but also you had a complete disregard for others safety."

Whatever the choice of words of the trial judge, we are satisfied that he was right to regard a case such as this, manslaughter caused by fire, as being at the top of the range of manslaughter offences. We do not consider that he in any way failed to heed the verdict of the jury or that he took an unduly severe view of the facts. He rightly characterized the actions of the applicant as "criminal, irresponsible and callous". Multiple deaths occasioned by the deliberate creation in a public place of a situation which can lead to uncontrolled fire constitute offences of particular gravity. We emphasize that what was done was done in a public place wherein there were at the time, to the applicant's knowledge, a substantial number of people. The applicant created a situation of utmost danger which led to 12 deaths. Further he did so pursuant to a plan which was carried forward in a calculated way. We are satisfied that he must have realized, whatever his emotional state, that if, for any reason, a fire commenced, there were incalculable and terrible risks for all in the vicinity. We are not persuaded by the argument of Mr. Sarony that the trial judge when sentencing fell into the error of placing undue emphasis upon the aspect of retribution.

6. Having taken all of the matters urged into account, including the preparedness of the applicant to plead guilty to manslaughter and his previous good character, to which, in our view, little weight can be given in the present circumstances, we are by no means persuaded that 20 years was in any way an unduly severe sentence.

7. The application for leave to appeal against sentence must, therefore, be refused.