Lau Bo Ki v. HKSAR

FAMC No. 12 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2007 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 412 OF 2005)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 29 March 2007

Date of Determination: 29 March 2007

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.The applicant was convicted before Beeson J and a jury of having murdered an 87-year-old woman, Madam Suen Lai-hing.  Madam Suen died of chemical burns and complications which arose from them.  She had been found by neighbours lying just inside her flat on a floor wet and slippery with sulphuric acid.  The front door was open, and her head was lying against the metal grille which was closed but not locked.  Madam Suen, who was still alive and indeed conscious when found, had suffered dreadful burns, mainly on the right side of her body.  These were the result of contact with the acid on which she had been found lying.  It was possible that she had been lying on the acid for as little as 30 minutes, but a period of 3½ to 4 hours seemed more likely.  Most of the acid was inside the flat, but there were traces of acid on the doormat outside the flat.

2.Shortly stated the prosecution’s case, based on circumstantial evidence, was : that the applicant was trying to collect for someone else a debt owed by Madam Suen’s son-in-law; that he had poured the acid; that he had done so when deliberately splashing acid on Madam Suen’s face; and that he had acted with intent to kill her or cause her grievous bodily harm.  Since the jury convicted the applicant of murder, they must have accepted all of that as having been proved beyond reasonable doubt.

3.On the ground that there was no evidence that the applicant had deliberately splashed acid on Madam Suen’s face, the Court of Appeal (Stuart-Moore VP, and Yeung and Yuen JJA) quashed the applicant’s conviction for murder and for it substituted a conviction for manslaughter, the applicant’s then counsel Mr Keith Oderberg having, as the Court of Appeal noted, “realistically accepted throughout that, in the event that his submissions [against the murder conviction] met with success, a manslaughter verdict would inevitably have to be substituted”.

4.Mr Oderberg could not possibly have said that on any basis other than that the defence did not dispute that the prosecution had proved beyond reasonable doubt that the applicant had indeed poured into Madam Suen’s flat the acid on which she slipped, onto which she fell and which burned her agonisingly – eventually to her death. 

5.This application for leave to appeal to the Court of Final Appeal is based on the ground that substantial and grave injustice had been occasioned to the applicant by the Court of Appeal view’s that they did not have to consider his complaint against the trial judge’s directions on lies.  The short answer to this application is that of course the Court of Appeal did not have to consider that complaint.  They did not have to consider it since, independently of it, they were doing precisely what the defence had asked, namely substituting manslaughter for murder.  There was no departure from accepted norms in what the Court of Appeal did.  Nor do we think that we should, as Mr Peter Duncan SC who now appears for the applicant suggests, put to one side the stance adopted by the defence before the Court of Appeal which justified what that court did.  This application is devoid of any foundation.  Leave to appeal is refused.

Mr Peter Duncan SC (instructed by Messrs Haldanes and assigned by the Legal Aid Department) for the applicant

Ms Mary Sin and Ms Memi Ng (of the Department of Justice) for the respondent