R. v. Lam Kwok Wai

CACC000525/1994

IN THE COURT OF APPEAL

1994, No.525

(Criminal)

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Coram: Hon. Power, Ag. C.J., Bokhary & Ching, JJ.A.

Date of hearing: 16 August 1995

Date of judgment: 16 August 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced 18 counts - seven of robbery, eight of rape and three of murder. All were committed during the course of ten attacks upon women in the Tuen Mun and Hung Hom areas between 24th April 1992 and 5th August 1993. The applicant pleaded guilty to the robbery and the rape counts and was found guilty after trial before Bewley J. and a jury on the three murder counts. Mandatory sentences of life imprisonment were imposed on each of the murder counts. The trial judge said when sentencing:

"You have pleaded guilty to eight counts of rape and seven counts of robbery. You are serving a sentence of life imprisonment on three counts or murder. Although the circumstances of the individual rapes are not untypical of this offence in Hong Kong, looked at as a whole, the series of rapes over a long period, accompanied by a considerable violence in most cases make it one of the worst cases that come before the court, a very long sentence is appropriate in such cases.

Both the nature of the offences and your history indicate that you are of unstable character and likely to commit such offences in future. That poses an unacceptable threat to the women of Hong Kong. In my judgment the only proper sentence in such circumstances is one of life imprisonment. That is the sentence I pass on the eight rape counts. There will be concurrent sentences of 7 years' imprisonment on the robbery counts."

The applicant now appeals against the three murder convictions and against the sentences of life imprisonment on the eight rape counts.

2. At the trial the applicant relied upon the defence of diminished responsibility calling evidence from a Dr. Connell who said that the applicant was suffering from a long-standing and consistent pattern of irresponsibility made worse by drinking far too much and that he would have had difficulty controlling his impulses and his aggression. The doctor was satisfied that the strict criteria for a diagnosis of diminished responsibility were fulfilled.

3. Counsel for the appellant, Mr. Lok Q.C. with him Mr. H.Y. Wong, takes no issue with the trial judge's direction as to diminished responsibility. In the outcome only one ground has been argued before this court. That ground reads as follows:

"The learned Judge erred in directing the jury that as the cautioned statements, video re-construction, and medical reports are not challenged, they should have no difficulty in accepting that the Crown has proved that the Appellant had an intention to kill or cause grievous bodily harm on each murder count."

The thrust of this ground is directed towards the cautioned statements. It is submitted that the trial judge was wrong when he suggested to the jury that given the contents of those statements the jury would have no difficulty in coming to a finding of intention to kill or cause grievous bodily harm. Mr. Lok suggested that the admissions would not inevitably lead to such a finding and that the jury could well have regarded them as indicating that there was no intention to do grievous bodily harm to the victims. When dealing with this ground it must be remembered that the judge made that observation against the background of a trial in which intention was not an issue as the defence was that the unlawful killing was excused by reason of diminished responsibility. It would, however, of course, have been wrong had the judge misdirected the jury as to the effect of what was said in the statements. He did not, however, in our view, do so. As to the first count the relevant statement made by the accused reads as follows:

"When the lift was going up, I grabbed the woman by her neck. When the door of the lift opened, I pushed her outside the door and dragged (her) to the near staircase. At the staircase, I pushed her onto the floor and seized her neck with (my) hands until she could hardly move and then I took my hands off (off)."

We find it difficult to see how exception can be taken to the judge's suggestion that this unchallenged statement which admitted an intention to choke the victim into submission would give the jury no difficulty in accepting that there was an intention at least to cause grievous bodily harm.

4. As to the second count, the applicant said that by, to use his words, "an inadvertent use of force" he brought about the death of the victim. It is true that he denied wanting to kill the girl but he went on to say:

"Then we entered the lift together and we stood face to face. I had a sudden impulse and wanted very much to fuck her. When the lift door opened, I grabbed the girl by her neck with my right hand and pushed her out of the lift. Then I carried and lifted up the girl in my left arm and walked to the rear staircase along rooms No.1 to No.12. Then I put the girl on the floor.

After I had put her down on the floor, I did not grab her by the neck anymore. But the girl kept moving about and even yelled. So I grabbed her by her neck with both of my hands and we started to struggle. I also dragged her down to the landing in the middle. At that time, I saw that the girl did not move."

Given the admission here made that he had caused the victim's death by choking her into submission, we again do not consider objection can properly be taken to the observation made to the jury by the judge.

5. As to the third count the applicant said:

"I forked her to death inadvertently."

He went on to say that after raping the victim:

"... she put on her clothes. I also put on my pair of trousers. We sat on the stairs. I asked her if (she) was very frightened. However, she did not say a word. I then squatted in front of her and wanted to chat with her. However, she slapped me across my face. After she had given me several slaps, I then lost control of myself. (I) grabbed her by the neck with both of my hands. Also, she sat quite close to the wall. I grabbed (her) forcefully and hit her head against the wall. Following that (I) lifted her whole body by grabbing her. Following that, I found that she was motionless. I then put her down. I was very confused. After I had thought for a while, (I) then ran back home."

The applicant did here say that he had "lost control" but these words, in the context of the admission, must be taken to mean no more that he had lost his temper after being slapped. He was saying that he lost his temper and choked the victim into unconsciousness. Taken by itself that admission would, as the trial judge suggested, have left the jury with no difficulty in reaching a decision that there was at least an intention to cause grievous bodily harm. It is true that the jury would, during their deliberations, have had to consider whether the loss of temper was occasioned by diminished responsibility. However, they clearly rejected that defence. We are satisfied that there is therefore nothing in the complaint made as to the judge's direction and the application for leave to appeal against conviction must be refused.

6. As to the sentences on the rape counts Mr. Lok submitted that life imprisonment is a sentence which should only be used where the mental condition of the offender is such that he would probably commit grave offences in the future. He went on to submit that there was no evidence that the appellant's hitherto unstable character could not be cured by proper medical treatment and that the imposition of life imprisonment on the rape counts was, therefore, wrong in principle. It may be that the applicant will at some time in the future respond to treatment. The hard fact of the matter however, as things stand today, is that the applicant's condition is such that he is wholly unable to control his sexual impulses. There is, further, nothing which indicates that he will respond to treatment or, if so, when the applicant poses a continuing and dreadful menace to the women of Hong Kong and in the circumstance we are satisfied that the trial judge was quite right to impose the sentences which he did. The application therefore must also be refused.

Representation:

Mr. A. Bruce, S.A.C.P. & F. Veltro (Crown Prosecutor) for the Respondent.

Mr. Lawrence Lok, Q.C. & Mr. H.Y. Wong assigned by D.L.A. for the Applicant.