R. v. Lau Ka Ming

CACC000308/1995

IN THE COURT OF APPEAL

1995, No. 308

(Criminal)

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Coram: Hon Power, V-P, Mayo, JA and P. Chan, J.

Date of hearing: 21 November 1995

Date of judgment: 21 November 1995

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J U D G M E N T

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Mayo, JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for murder.

2. At the time of the incident on 22 July 1994 the applicant was on bail. He was travelling with another man in a taxi which was stopped at a police check point. It would appear that he was apprehensive concerning the checks as he had not complied with the terms of his bail and feared that he would be arrested if this became known to the police. One of the police officers communicated particulars of his identity over the radio. He was then ordered to get out of the taxi. He attempted to escape. He was prevented from doing so and a struggle then ensued.

3. What appears to be common ground is that a number of shots were fired from one of the police revolvers and one of the officers was shot in the head. He died from the injury he sustained. The applicant fired the revolver at another police officer and shot him in the arm. Thereafter he was subdued and arrested.

4. At the police station the applicant made a cautioned statement to the police. In this statement he admitted seizing the revolver of the police officer who died and firing the shot that killed him. He claimed that when he had fired the shot it had been his intention only to frighten the officers so that he might make good his escape.

5. At his trial he pleaded not guilty to murder but guilty to the firearms charge. He ran his defence along the lines of alleging police brutality and claiming that the only reason why he had signed the statements was that he hoped the police would then desist from their conduct.

6. He also gave evidence to the effect that it had all been an accident. There had been a struggle and it had been the police officer attempting to use his revolver to shoot at him which had brought this situation about. He had placed his hands on the revolver and it was while the struggle was ensuing that the fatal shot was fired.

7. Mr Justice Stuart Moore delivered an extremely detailed and full summing-up to the jury in which he gave them an explanation of the legal consequences flowing from the different variations of the evidence which was before them.

8. After lengthy deliberations the jury by a majority of 5 to 1 found the applicant guilty of murder.

9. In his grounds of appeal and before us the applicant made six overall complaints of a general nature.:

(1) There were only six members of the jury. We have been advised by Mr Mullick who was assisting us that one of the jurors had withdrawn because she was employed as a librarian in the Legal Department. The applicant had agreed to the trial proceeding with only six jurors so there is nothing in this ground.

(2) The trial judge was biased. There was no evidence whatever to support this ground.

(3) There is also a complaint that the trial judge should not have admitted his cautioned statement as evidence. He had all of the evidence before him and we can see no reason why the statement should not have been admitted as evidence.

(4) He also claimed that as the victim was a police officer the jury should have been alerted to the possibility that the other police officers being prepared to perjure themselves. There is nothing in this ground.

(5) He also referred to a head injury which he had sustained. He complained he had only been seen by a doctor five hours after his arrest. It was of course accepted that there had been a struggle at the time of his arrest and so there was an explanation for the injury.

(6) He further claimed that he had been provoked. That was not the way in which the defence was run at the trial below.

10. There is no merit in any of his grounds of appeal. All of the evidence was properly put before the jury and the directions given to them were impeccable. There is no reason to believe that the verdict is in any way unsafe or unsatisfactory and this application is dismissed.

11. We have been advised by the applicant that he does not wish to proceed with his application to appeal against the sentence which was imposed.

Representation:

Mr D.G. Saw, SACP for Crown Prosecutor

Mr J. Mullick (DLA) for Applicant