R. v. CHAU PUI WAN

IN THE COURT OF APPEAL

1996, No. 623

(Criminal)

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J U D G M E N T

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Mayo J A giving the judgment of the Court:

1. The applicant seeks leave to appeal against her conviction for attempted murder and the sentence of 10 years' imprisonment passed upon her for this.

2. It is a sad case. According to the prosecution case the applicant threw a fire accelerant on the victim and then ignited a fire. The victim suffered appalling injuries which he was quite fortunate to survive.

3. The background facts were not controversial. The appellant and the victim had been business partners of a venture that had failed. They were also emotionally involved as they had cohabited together.

4. On the day in question 13 October 1995 there had been an unhappy business meeting when the financial affairs of the failed venture had been discussed. According to the applicant she had invested her savings of $600,000 in the jewellery business and there was nothing to show for it. In addition to this she was being harassed by the company's creditors as her partner spent much of his time in China. What particularly incensed her was that her partner did not even make any promises to repay to her what she deemed was due to her.

5. The victim however gave evidence to the effect that the incident was not an accident. In particular he referred to the fact that while he was being burnt the applicant slapped his face and seized hold of him in an attempt to prevent him from escaping from the flat and said words to the effect that they would have to die together.

6. The applicant was also charged with causing grievous bodily harm with intent.

7. The main ground of appeal is framed as follows:

"The learned Trial Judge failed to give the jury any or any sufficient guidance as to how they should determine the 'intent' of the Appellant at the time of the incident."

8. The trial judge Leong J gave the jury general directions on intent in these terms:

" Now the offence of attempted murder is that the defendant attempted to commit the crime of murder. Murder is unlawful killing of another person with intent to kill or to cause grievous bodily harm. Murder requires the proof of the specific intent to kill or to cause grievous bodily harm. However, in attempted murder, the intent is the more serious intent, that is the intent to kill. Nothing less than that would suffice. The intent to cause grievous bodily harm is not sufficient. And therefore you have to decide whether there was such an intent to kill established by the prosecution."

9. The directions he gave on causing grievous bodily harm was as follows:

"Before you can convict the defendant on the count of causing grievous bodily harm with intent, you must be sure that the defendant did an act or acts which caused really seriously bodily harm to WONG Cho-wah. And at the time of doing such act or acts, the defendant intended to cause him such really serious bodily harm.

Now the intention to kill or the intention to cause really serious bodily harm must be existing at the time of the act. It does not have to exist prior to that time. In deciding whether the defendant had the necessary intent to kill or to cause really serious bodily harm, you must consider all the evidence as a whole including what was said and what was done, both before, during and after the act or acts in question."

10. The judge then went on to give a detailed synopsis of the prosecution and defence cases.

11. After summarising the medical evidence concerning the applicant's condition the judge said at p30 of the summing-up:

"If you accept the doctor's evidence and taking into consideration what the defendant herself told you about how she decided to use the petroleum, you may think the defendant was very much capable of making up her mind as to what she should do and to form an intention to put what she had decided into action. You remember Dr CHUNG told you the defendant was afraid of losing her love object. The defendant told you she was concerned about the loss of her money and she was also afraid of losing Mr WONG's love. She wanted Mr WONG to be with her. You will take this into consideration when you come to consider what was her intent at the time of doing what she did.

You must also remember, when you come to determine on the matter of intent, that a person may be unsophisticated, uneducated or coming from poor family and financial background and might have gone through hardship in his young age, but these would not prevent him from forming an intention to act in a particular matter. You may think that does not necessarily mean that a person is thereby incapable of forming an intention to kill or to cause grievous bodily harm to another person.

As I told you before you will take all the evidence into consideration to decide if the defendant had the necessary intent to kill or to cause grievous bodily harm at the time of setting fire to Mr WONG. That is if you find and you are sure that she had set fire on Mr WONG."

12. Mr Poll for the applicant submitted that the jury should have received the sort of assistance which was given in the case of R. v. Chiu Po-kwong (unreported) being High Court Case No. 215 of 1994.

13. Wong J addressed the jury in these terms:

"You see, members of the jury, you are not concerned with wishes, but intention. You may intend something although you wished you were not put in that position.

Of course when arriving at whether intention is proved or not, you can take wishes into account. But the issue you have to decide is: What did the accused intend?

A person who found himself in a position which the accused found himself might think: 'I wished I wasn't in this position; but being in it, I intend to do it.'

A man may intend to achieve a certain result while at the same time not desiring it to come about. The questions you have to ask yourself and determine are:

a) How probable was the consequence which resulted from the accused's act? and

b) Whether he foresaw that consequence?

I will invite you to consider three propositions.

1) If the accused did not appreciate that death or serious harm was likely to result from his act, he could not have intended to bring it about.

That is the first proposition.

2) If he did appreciate that death or serious injury might result, but thought that the risk was only slight, if that is the situation, I think you can easily conclude that he did not intend to bring about the result.

and

3) If the accused recognised that death or serious harm was virtually certain to result from his act, barring some unforeseen intervention, you can infer that he intended to kill or to do grievous bodily harm even though he might not have had any desire to do so.

Now you will consider these three propositions which I invite you to consider carefully. And before you can return verdicts of 'guilty of murder', you must be satisfied so that you are sure that death or serious bodily harm was a virtually certain result of his act, barring some unforeseen intervention, and the accused appreciated that fact."

14. While this may have been an effective way of directing the jury in that case it hardly needs to be said that the facts of almost every case differ and what may be appropriate in one case may not be so in another.

15. In the present appeal Leong J did give directions on the intent required for attempted murder and for causing grievous bodily harm.

16. He also attempted to relate the law to the facts of the case.

17. It was necessary for the jury to consider all of the evidence as a whole and the critical question was what was in the mind of the applicant when the fire accelerant was ignited. On the way in which the defence was conducted the jury had to make a determination as to whether the fire was an accident or whether the applicant had deliberately ignited the material.

18. They then had to go on to consider whether on the directions earlier given by the applicant whether the applicant was guilty of the 1st charge. In other words whether they were satisfied so that they were sure that at the relevant time he intended to kill. Failing this they would then have had to consider the necessary intent in the 2nd charge.

19. It would not have been appropriate for the judge to pose questions along the lines of those outlined by Wong J.

20. The conviction was neither unsafe nor unsatisfactory and this application is dismissed.

Sentence

21. The facts have already been sufficiently outlined. It was necessary for the judge to take a very serious view of this matter. Having regard to all the circumstances of the case it cannot be said that the sentence was either wrong in principle or manifestly excessive. This application is also dismissed.