The Queen v. Lao Kam Fai

CACC000420/1985

BETWEEN

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Coram:  Silke,  J. A., Power & Nazareth,  JJ.

Date of Hearing: 15th April 1986

Date of Judgment: 15th April 1986

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JUDGMENT

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Silke, J. A.:

1. The applicant, Lao Kam Fai, was charged on an indictment with two counts, one of murder and the other of robbery.  Both took place on 6th January 1984 at Room 731, Block 14, Lam Tin Estate.  He pleaded guilty to the offence of robbery and was convicted after trial, before Hooper, J. and a jury, of the offence of murder.

2. The facts were that Madam Siu Siu, a fifty years old woman, lived at Room 731 with her husband and two of her sons.  Another son, a taxi-driver, lived elsewhere but visited his mother everyday usually having his dinner with her.  Madam Siu was the chairwoman of the Mutual Aid Committee of Block 14 of the Estate and she was last seen by a neighbour at about half past twelve in the afternoon of 6th January.  The neighbour herself went out to shop and returning at about two o'clock, saw that the wooden door of Madam Siu's flat was open but the iron grille was closed.

3. Later at about quarter past five in the evening, the neighbour noticed that the wooden door was closed but the metal grille was open.  When the taxi-driver son came at his usual time, about half past six, he opened the wooden door and saw the flat in darkness and sensed that it had been disturbed.  He was uneasy and he called a neighbour to come to his assistance.  They went back into the flat and found the body of Madam Siu in the middle of the floor.  There was blood on that floor. She wad dead.

4. Subsequent post-mortem examination showed death was due to asphyxia caused by strangulation.  The blood that was on the floor had come from a cut on her neck and she had bruises upon her person, in particular one on her face.

5. The flat were thoroughly ransacked with clothes and other items strewn around the floor.   A small red purse was found on the floor and later, the fingerprints of the applicant were found upon that purse.  A bloodstained ashtray was also found.

6. The applicant was known to Madam Siu having gone to the flat on occasions to play mahjong.

7. The police, in the course of their investigation, sought to interview all the known associates of Madam Siu.  It is not until about a year later that they were able to contact the applicant.  He was interviewed, his fingerprints were taken with his consent and he was then released.  Later, when the prints were matched with those prints which were upon the red purse, he was arrested.

8. On 22nd March, after his arrest, he made a statement.  He had described in that statement which he wrote, and in narrative form; his attempt to borrow money from Madam Siu, his stealing of money when that was refused, her shouting at him and his attempt to stifle her shouts.  He said he picked up a knife to threaten her and accidentally caused a cut upon her neck.  He further described his hitting her on the head with an ash tray.  He told of a search of the flat and of the money which he had taken and the ornaments.  He described his putting his arm around her neck and keeping there for some little time until she was quiet and became unconscious.

9. The statement was a subject of a voir dire and was duly admitted by the trial judge.

10. In the course of his own evidence, the applicant admitted that he had tried to strangle her so that she could not speak. As he put it: "Just to make her unconscious".

11. The only issue for the jury was the intent of the applicant at the time he did the admitted acts and which acts led to the death of Madam Siu.  It was necessary for he jury to find, before they could convict him of the offence of murder, that his intent was either to kill or to cause Madam Siu grevious bodily harm.

12. This issue was left squarely before the jury as was the issue as to the weight to be placed upon the cautioned statement.  The case for the Crown was again clearly put: that if the applicant did not have the intent to kill, then he had at least the intent to cause grevious bodily harm.

13. Having been out for some two hours, the jury asked for some further directions as to unanimous verdicts.  They received those directions and subsequently returned with a unanimous verdict of murder.

14. Mr. Payne who appears for the applicant in this Court has very properly said to us that he can find no grounds which can be argued in respect of the conviction.

15. Counsel who appeared for the applicant at trial was of the same opinion. The summing up in respect of the main issue and on the evidence cannot be faulted.

16. The evidence clearly entitled the jury to come to the conclusion which they did.

17. The jury wished, apparently, to add a rider to their verdict. It is not clear precisely from the record what that rider was but we have been informed today that what they wished to say was that they did not think the applicant to have had the intention to kill but that they did think that he had the intention to cause grevious bodily harm. That intention was, of course, sufficient to ground the conviction.

18. The appeal against conviction is dismissed.

Representation:

Ian Payne, Esq. (D. L. A.) for Applicant

P.J. Dale, Esq. for Crown/Respondent.