HKSAR v. LAU KWAI ON

CACC 67/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 67 OF 2001

(ON APPEAL FROM HCCC 157 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 8 February 2001, the Applicant, aged forty-four, was convicted of murder and sentenced to life imprisonment, following a trial before Beeson J and a jury. He now seeks leave to appeal against conviction and sentence.

2. The deceased was killed on 27 January 2000. He had been living with the Applicant's estranged wife. He had returned to his address in Yaumatei at about 6.30 a.m. and as he climbed a dark staircase in the building to go to his flat, he was set upon by the killer who was wielding a long-handled axe. The deceased was struck on the head at least twelve times with the back of the axe, causing many injuries including multiple fractures to four areas of the skull. Soon afterwards, the deceased was discovered unconscious and bleeding heavily. He died later in the day.

3. The Applicant was arrested soon after the attack at his address in Tai Po. Some items of his clothing were bloodstained. DNA analysis confirmed that this blood came from the deceased. Some time later, the Applicant allegedly admitted that when "filled with fury" he had followed the deceased and hit him several times with an axe. He signed a post-record to this effect and after that, when questioned in the video-interview room, he allegedly gave a full confession. He spoke of feeling angry and miserable about his family situation and about going home at 3.00 a.m., while working his shift as a taxi driver, to collect his axe. When he returned to Jordan Road, he waited for the deceased "to vent his anger, to vent his spleen". He had the axe with him in a plastic bag. When he saw the deceased, he struck him a number of times with the axe.

4. The Applicant's defence at trial was very different to the confession which we have just summarised. He testified that at about the time of the killing, he was having tea with Chow Kan-fat. Later, Mr Chow was called to support the Applicant's alibi. However, he was unable positively to do so. Mr Chow said that he could not be certain that he had had tea with the Applicant at the relevant time on 27 January 2000.

5. The Applicant denied making the initial oral admission alleged against him and he said that he was tricked into signing the post-record in which this was set out in writing. He also alleged that he had been subjected to police brutality culminating in his agreement to say what the police had told him to admit in front of the video camera.

6. The Applicant gave a version of events at trial, by way of providing an explanation for the deceased's blood on his clothing, to the effect that he had encountered the deceased at about 2.00 a.m. on 27 January 2000 by pure chance. He described how the deceased had taunted him in various ways and how they had argued and fought until the deceased had been able to get away by running up a dark staircase inside a building.

7. Counsel who was originally instructed by the Department of Legal Aid responsibly and very properly indicated that he had been unable to advance any arguable ground of appeal. However, we have, of course, considered the Applicant's own grounds of appeal.

8. In his earliest homemade grounds dated 23 February 2001, he plainly indicated responsibility for the killing stating amongst other things:

"I admit that I committed manslaughter. However I strongly deny that I killed the deceased deliberately."

9. This was followed, on 26 July 2001, by a letter from the Applicant stating that he wished to withdraw his initial grounds of appeal, adding that he apologised for the inconvenience they may have caused.

10. The latest written grounds of appeal are dated 18 January 2002. These invite the members of this court to ignore altogether his earlier grounds and to consider a number of further grounds, some of which he has enlarged upon in the course of what he had to say in court today. Firstly, he complained that the judge had not sufficiently directed the jury as to his previous good character. However, a most adequate direction was given and there is no substance to this point. Secondly, he contended that the pathologist (Dr Yu) was asked questions by defence counsel which related to a "weakness in (his) defence", namely about "how much physical force and how many blows were needed to cause the deceased such injuries". This was an issue of no particular relevance to the Applicant's defence as it was his case that he had nothing to do with the fatal attack. There is no merit in this point. Thirdly, the Applicant alleged that the judge had not dealt properly with the doubts in the case. Again, however, the point raised is of no consequence as it is apparent from the summing up that the judge meticulously covered issues which might assist the Applicant in his defence, including such discrepancies in the prosecution's case as might be seen by the jury to have had any importance.

11. The evidence against the Applicant was overwhelming. Nothing added by the Applicant in his oral submissions to the court today have contributed anything of any significance.

12. So far as sentence is concerned, this is governed by section 2 of the Offences Against the Person Ordinance, Cap. 212, which provides that any person who is convicted of murder "shall be imprisoned for life".

13. We have heard a translation today of a long letter from a member of the Applicant's family asking for mercy to be extended to the Applicant, but the court has, of course, no discretion in this matter.

14. There is no merit to these applications relating to conviction and sentence and they are dismissed.