Lui Kam Shing v. The Queen

CACC000517/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 517 OF 1974

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 9th September, 1974.

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JUDGMENT

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1. This is an appeal against conviction for murder. On the 19th December, 1973 the body of the deceased was found outside a certain restaurant in Kowloon. He had been stabbed once in the chest. A trail of blood led from the scene to a lorry which was parked in a street some 450 yards away. The appellant was discovered inside that lorry and he had a wound on his thigh which had caused the trail of blood. The appellant had bloodstains on his hands and feet which were of the same group as that of the victim and on his person was found a paper sheath which also was stained with blood of the same group. On the route which the appellant must have travelled a knife was found hidden in a fruit stall on which there was also blood of the same group and, more important, some fibres which must have come from some cloth which was found in the restaurant at the scene.

2. The appellant gave two accounts of his movements that evening to the authorities. The first account was given a few days after the event when he was still in hospital. This differs very considerably from the account which he gave when giving evidence in the witness box. He also informed the police that he had been attacked and had run away in a panic. However, the evidence was clear that he was not seeking his own protection so much as hiding from the consequences of what had occurred.

3. This case is eminently one for a jury. The learned trial judge summed up the case most fairly and with one exception, we can find no fault with that summing-up. In answer to the charged the appellant stated that he did not kill the victim. This was given in evidence during the course of the trial but was not referred to in the summing-up by the trial judge. However, it was obvious that the whole defence of the appellant was that he did not kill the victim. Indeed, that he had nothing to do with the victim's death whatsoever. It is clear from the record that the jury could have been in no doubt that that was his defence and we think that the fact that the trial judge did not mention that the appellant denied the killing when charged with murder cannot alter that position. We therefore dismissed this appeal.

4. The offence took place in December 1973 and the trial ended on the 15th July, 1974. The reason for the long delay is that there was a previous trial at which the jury disagreed and reached no verdict. This therefore was a re-trial and in this case the jury were unanimous in their verdict.

Representation:

H. Hu (Sousae & Co.) for appellant

MacDougall, D.D.P.P., for Crown/Respondent.