THE QUEEN v. LUI CHING

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JUDGMENT

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Jones, J.

1. The applicant seeks leave to appeal against his conviction for manslaughter on the 25th April 1990 for which he was sentenced to seven years imprisonment. He had been charged with murder, but he was convicted by a unanimous verdict of the jury of manslaughter on the grounds that there was provocation.

2. The facts reveal that Yung Kau, the 86 year old co-licensee of the Tei Chong Wong Temple at Lo Wai Village in Tsuen Wan was. brutally assaulted at the temple by the applicant On the evening of the 24th June 1989 and died from the injuries that he suffered. three days later, on the 27th June 1989.

3. The applicant gave evidence that he met Yung Kau towards the end of 1987 or the beginning of 1988 when he attended Chinese rituals at the temple. He was invited by Yung Kau to sleep at the temple and he made reference to the fact that his relations with him were good whilst on one occasion Yung Kau provided him with $1,000 for bail when he appeared upon a drugs charge at Tsuen Wan. On the evening of the incident, he performed some rituals at the temple, drank a little wine sang some scriptures for Yung Kau, then Yung Kau fell asleep. The applicant said that when he himself was lying asleep on a sofa he became aware of shadows at the door behind him, but when he went to investigate, no one was there. He then went back to the sofa intending to sleep when someone leant over him and he became aware of someone hitting him with a large wooden pole. The applicant went on to say that he was attacked by three people. Eventually he fainted and did not recover consciousness until he was in hospital.

4. He was later arrested by the police who took from him a cautioned statement which he later alleged was concocted and that it was also not signed by him. In his cautioned statement he said that he was sentenced to a period of detention at the Hei Ling Chau Drug Rehabilitation Centre following his conviction for the dangerous drugs offence and that after his release he returned to the temple. There, he said he found that Yung Kau had taken away from him his clothes and some personal possessions and was told by Yung Kau that they had either been taken to Mainland China or had been thrown away. At about 9 p.m. on the evening of the incident when he was asleep, Yung Kau demanded repayment of the $1,000 bail money which he said he had not returned. In response, the applicant asked for the return of his clothing but this was refused. Although he tried to sleep, he maintained that Yung Kau kept on talking and he then felt immense pain on his right hand and someone was using his forearm to grab his neck from behind. He then got up, picked up a wooden stool to hit Yung Kau and kicked him. He concluded the cautioned statement by saying that he used excessive force to hit him which resulted in both of them ending up on the floor.

5. The applicant has addressed us at great length today, but he has not advanced any grounds to justify any interference with the conviction. Having decided that there was provocation the jury was quite entitled to convict the applicant of manslaughter upon the evidence before them. The application is therefore refused.