HKSAR v. Yik Chung Wing

CACC000528/2000

CACC 528/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 528 OF 2000

(ON APPEAL FROM HCCC 150 OF 2000)

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Coram: Hon Stuart-Moore VP, Wong JA and Stock JA in Court

Date of Hearing: 8 June 2001

Date of Judgment: 8 June 2001

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

This applicant was tried before Jackson J and a jury upon an indictment which alleged that on 22 October 1999 he murdered Li Shau-leun in a room in Lok Fu Estate in Kowloon. He pleaded guilty to manslaughter but that plea was not accepted by the prosecution and after trial he was convicted by the jury, by a majority of six to one of murder. He was sentenced to life imprisonment. He now seeks leave to appeal against that conviction.

2The victim of the killing was a 67 year old lady and she was found dead in her room on the morning of 22 October. Around her neck was a piece of cloth which had been tightly wound. There were also cut wounds to her face and to her left hand. The pathologist concluded that she had died because of pressure on her neck.

3The applicant was arrested on 8 January 2000. He had re-entered Hong Kong from the Mainland the preceding evening and was stopped by the police in Tuen Mun. His finger and palm prints were taken and they matched those at the scene of the crime at Madam Li's room. He was arrested for murder. He admitted that he had killed her but said that he had not intended to do so. When interviewed, he said that he had climbed some 20 storeys of the building which housed the room of the crime and entered the room in question in order to steal, and that whilst he was searching, the old lady was woken and she cried out for help whereupon, when she did not listen to his demand that she stop screaming, he chopped her on her face with a knife which he had seized. She fell onto a bed and then he took up an undergarment which was on the bed and he twined it round her neck and then seized her throat with both hands, and when she made no noise nor move, he released his hands. In due course he left the premises having stolen some property.

4In the course of interviews with the police he repeatedly insisted that he had not intended to kill the old lady, and at one stage in one of the interviews he said that although he had twined the cloth around her neck he had not seized her by the throat.

5A number of witnesses were called in the course of the prosecution case, including a pathologist who said that he had concluded that the cause of death was manual strangulation, rather than ligature strangulation. The applicant did not give evidence nor did he call any evidence on his own behalf.

6The written grounds of this application are those submitted by the applicant himself. In them, he says that he wishes to appeal against his conviction because what happened did not constitute a premeditated murder, and that all he wanted to do was to steal. Mr Poll appears today instructed by the Director of Legal Aid to provide assistance to this court, and to safeguard the interests of the applicant, and we are grateful for the assistance which he has provided. He does not seek to advance any specific grounds but he, quite properly, draws to our attention a matter of translation which has caught his attention today and which causes him some concern. This is a matter appearing in the second of the interviews conducted with the applicant and in which the translation of a particular sentence suggests the applicant was saying: "I went to kill an old woman". Mr Poll suggests, as a result of information which has been provided to him, that the correct translation should rather be: "It is me who has killed an old woman". The difference is of course quite significant. These sentences have been studied by the bilingual member of this court. He thinks the original translation to be accurate. But we would, in any event say this: that the learned judge in the summing-up never referred to this particular translation as in any way suggesting a statement which somehow supports the prosecution case. On the contrary, the effect of the summing-up is strongly to proffer the line that the statements made by the applicant to the police in effect suggested that he had no intention to kill. So, whilst we are grateful to Mr Poll for drawing the matter to our attention, it is not a matter which in the event causes us any concern.

7The applicant has addressed us this morning in support of this application. He offers apologies for his conduct and repeats the contention that he did not intend to kill the lady. In effect, he repeats the defence advanced at trial, advanced we should emphasise, not through any evidence, but in argument and repeated by the judge.

8We have read the summing-up in this case, and it is a model of clarity and fairness. The judge correctly informed the jury that the issue for them in the case was whether it had been proved so that they were sure that the applicant, when he killed Madam Li, intended either to kill her or to cause her grievous bodily harm. He pointed to those features which the prosecution said showed such an intent and he highlighted those specific matters which the defence suggested pointed in the contrary direction, the judge making it perfectly clear that the defence case was that there was no such intent. This jury could have been under no misapprehension as to its task, and there has been no misdirection in law. The jury were told very clearly that they could not convict unless they were sure of the requisite intention, and it is clear from their verdict that they were sure. There is no basis upon which the verdict can properly be upset. Accordingly, the application for leave to appeal against conviction is dismissed. There was also an application for leave to appeal against sentence but the applicant accepts that once the murder conviction stands, there is no basis upon which an appeal against the mandatory sentence of life imprisonment can be founded, so that that application is also dismissed.

Representation:

Mr Michael Poll, assigned by the Legal Aid Department, for the Applicant (re: Conviction)

Applicant in person (re: Sentence)

Mr P S Chapman, SADPP and Miss Kathie Cheung Kit-yee, GC of the Department of Justice, for the Respondent