THE QUEEN v. KWAN SHI KEUNG

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J U D G M E N T

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Mayo, J

1. This is the Judgment of the Court.

2. The applicant was convicted of attempted murder and burglary on the 12th December 1988. He seeks leave to appeal against the more serious conviction.

3. The charges arose out of an incident which occurred on 30th March 1988.

4. At about 10.20 in the evening the victim CHAN So-Hang, a school girl aged 14, was assisting her father in running his noodle Shop at Tai Po where the family also lived. So Hang went upstairs to rest. When she entered the bedroom she saw that the room had been ransacked. A man then jumped out and grabbed her by the neck. She cried out - "save life" and the man said that if she did not shut up he would hit her to death.

5. A struggle then ensued. So Hang gave evidence that the man banged her head against items of furniture and then put her on the bed and covered her with the quilt, while he was squeezing her neck. Just as she felt that she was going to die of suffocation her father entered the room and grabbed hold of the man. He held him while So Hang was able to go and obtain assistance. The man was unable to escape and there can be no doubt that the applicant was the man who attacked So Hang.

6. At his trial the applicant pleaded guilty to burglary but not guilty to either attempted murder or causing grievous bodily harm.

7. Mr. Justice Wong summed up to the jury and gave impeccable directions on the law relating to attempted murder including directions on the necessary intent which had to be proved by the Crown.

8. The jury by a majority of 6-1, found the applicant guilty of attempted murder.

9. In his grounds of appeal the, applicant makes very generalized criticisms of the way that the case was conducted. He alleged that there were discrepancies between the victim's evidence and the evidence of her father. No particulars of such discrepancies are given.

10. Before us Mr. Kwan has not added anything of any great significance.

11. As I have said the whole matter was placed before the jury and we can see no reason whatever to upset their verdict.

12. The application for leave to appeal against the conviction on the 1st charge is dismissed.

SENTENCE

13. KWAW Shi-keung also seeks leave to appeal against sentence.

14. For the reasons given in Criminal Appeal 390/88 we accept that the sentence which was imposed on the charge of attempted murder was correct and should not be interfered with. We consider, however, that the sentence of 3 1/2 years imprisonment imposed in respect of the conviction for burglary was excessive and would substitute a sentence of 2 years imprisonment on that charge. We order that the sentence will run consecutively as was ordered by the trial judge.

15. The application for leave is allowed. We treat this as the hearing of the appeal and the appeal is successful to that extent.