Lo Kim Shing v. The Queen
|
CACC000843/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 843 OF 1971 -----------------
Coram: Rigby, C.J., Briggs and Huggins, JJ. Date of Judgment: 24th April, 1972. ----------------- JUDGMENT ----------------- Rigby, C.J.: 1. The appellant, who is 20 years of age, was indicted upon four counts, one of murdering a man named YU Chi-hung, a count of wounding with intent to murder a woman named AU Shuk-ying, what was in effect an alternative count of wounding that same woman with the lesser intent to do her grievous bodily harm, and a fourth count of robbing the same woman of the sum of $15. 2. The facts of the case would appear to be that on the 5th August a sub-tenant and his wife who lived in these premises went to a furniture shop with the object of buying a piece of furniture. They saw a wardrobe there and arranged to buy it, and it was to be delivered - and was in fact delivered - to the premises at which they lived on the following day, the 6th August. It was found that the top of the wardrobe had not been properly painted and there was some agreement that it would subsequently be painted. 3. The present appellant was an employee at that furniture shop and he had been present when the wardrobe was delivered at these premises on the 6th August. On the 9th August shortly after mid-day the appellant returned to these premises and under the pretext of bringing with him a tin of paint in order to paint the wardrobe be obtained admission to these premises. He was admitted by the woman Madam AU Shuk-ying, a sub-tenant living on the premises. Having obtained admission, he then threatened her with a knife. She produced - or he took from her purse - the sum of $15 and that apparently was not sufficient to suit his needs. He then intended to tie her up in order that he might ransack the room in these premises where she lived. She made some resistance and called out for help, whereupon he stabbed her savagely and viciously with the knife, twice in her chest and once in her stomach. 4. As a result of her calls for assistance a fellow tenant who lived in another room came into the room in the undergarments which he was then wearing and inquired what the trouble was. The appellant then, without further ado, proceeded to attack him and to stab him a number of stabs as a result of which he died some three hours after he had been admitted to hospital a short time after this incident had occurred. No doubt those stabs were inflicted in panic by the appellant when he thought it would, or might, be difficult for him to escape from the premises. Be that as it may, it is difficult, one would have thought, to have resisted the irresistible conclusion that those stabs were inflicted with at least the intention to cause serious bodily harm. 5. The jury, after a careful and accurate summing-up both as to the law and the facts, returned a verdict of guilty of manslaughter in respect of the count for murder. The learned trial judge, not surprisingly so, said that he profoundly disagreed with that verdict. However, for the purpose of assessing sentence he was bound to give effect to the verdict of the jury and the only basis on which he could attribute some logic to the finding of the jury was on the basis that the appellant intended some injury less than serious bodily harm. It was upon that basis that he then proceeded to impose in respect of the finding of guilty of manslaughter a sentence of six years' imprisonment. 6. He then went on to deal with the other counts. Here again, the jury found the appellant not guilty on the charge of wounding this female with intent to murder her but guilty on the lesser count of unlawfully and maliciously wounding her with intent to do her serious bodily harm. The learned trial judge, in our view correctly, described this assault as a cold-blooded, cowardly and vicious attack on a defenceless female in the sanctity of her own home. He then proceeded to impose in respect of that count of wounding with intent to cause grievous bodily harm a sentence of twelve years' imprisonment, to run concurrently with the sentence of six years' imprisonment on the conviction for manslaughter. 7. On the fourth count, one of robbery, he imposed a sentence of four years' imprisonment, again to run concurrently with the other sentences, making a total of twelve years' imprisonment. It is against the totality of these sentences that the appellant now thinks fit to apply to this court for leave to appeal against the sentence. 8. On the face of it, it might well seem strange to those not familiar with the law and legal procedure that there should have been a sentence of six years' imprisonment on the conviction for manslaughter and a sentence of twelve years' imprisonment on what would seem to be the lesser charge of wounding with intent to cause grievous bodily harm. As I have said, at first sight those sentences would seem to be illogical and might well cause comment outside this court. But in our view, on the facts, they were clearly perfectly proper and logical sentences. It is not for the first time this year that judges have commented upon the verdicts of juries in the cases tried before them. But, we repeat, it is the duty of the judge, whatever he may think of the verdict of the jury, loyally to try and interpret that verdict in such a way as to give a logical basis and effect to it and then to pass an appropriate sentence in accordance with that interpretation of the verdict. Often it is difficult to find any logical explanation for the verdict of a jury because, of course, juries are not required to give reasons for their verdict. This fact makes the task of the judge immeasurably more difficult. In this case the only logical explanation and effect which could be given to the verdict of the jury was that there was an intent on the part of this man to cause something less than serious bodily harm. The judge found it difficult to understand how the jury, on the facts and having regard to the number of serious stab wounds inflicted, could have arrived at a verdict of manslaughter, and all the members of this court unhesitatingly agree with him in this matter. It is, indeed, remarkable that such a verdict should have been returned, but having been returned a sentence had to be imposed which would be in keeping with the verdict of the jury. 9. However, in so far as the assault on the woman Madam AU was concerned, the verdict of the jury necessarily implied that that assault was committed with the deliberate intention of causing her grievous bodily harm, that is to say, serious bodily harm. To that extent, the attack upon the woman, although most fortunately and almost miraculously was not so serious in its consequences as the assault upon the man, it involved a greater degree of culpability in that the three stabs were inflicted with intent to cause serious bodily harm. By the sentence he imposed the learned trial judge gave full effect to the verdict of the jury and the seriousness of the offence. 10. In our view there are no grounds whatsoever for interfering with the sentences imposed and we have no hesitation in dismissing this application for leave to appeal. Representation: Appellant in person. Lucas, S.C.C. for Crown/Respondent. (Judgment of the Court delivered by President) |