HKSAR v. LAU KIN LAM

CACC 434/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 434 OF 2007

(ON APPEAL FROM HCCC NO. 117 OF 2007)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  Madam Luk Wai-ling (“the 1^st deceased”) was born and brought up in Guangzhou, where she also married and gave birth to Ms Mok Lai-kuen (“the 2^nd deceased”) on 9 May 1986.

2.  The 1^st deceased arrived in Hong Kong with the 2^nd deceased in 1994 and in 1996 she divorced her first husband. The 1^st deceased was granted custody of the 2^nd deceased.

3.  In March 1997, the 1^st deceased married the applicant Lau Kin-lam, an artisan working in the Electrical and Mechanical Services Department, and in June 1997, gave birth to a girl Lau Yuk-ying (“the 3^rd deceased”).

4.  The applicant was also a divorcee with two adult sons. He divorced his first wife in 1993.

5.  Since 1999, the three deceased and the applicant had been residing at a unit in Hong Keung Court in Lok Fu (“the matrimonial home”), which was registered in the joint names of the 1^st deceased and the applicant.

6.  In August 2002, the 1^st deceased petitioned for a divorce, but withdrew the petition in November 2002. The relationship between the 1^st deceased and the applicant remained strained, and further deteriorated to the extent that in early 2005, the matrimonial home was partitioned into two units, with the 1^st deceased and the applicant each occupying one of the units.

7.  In 2005, the 1^st deceased again petitioned for a divorce and sought custody of the 3^rd deceased. The application for ancillary relief was due to be heard on 13 December 2006.

8.  In the early morning, on 11 November 2006, the applicant killed all three deceased by striking them with an axe and/or a hammer.

9.  During the attack and before she died, the 2^nd deceased dialled 999 and cried for help. The police arrived at the matrimonial home and found the applicant.

10.  Subsequently the police found the 1^st deceased’s body, and in a bedroom, found the body of the 2^nd deceased with the 3^rd deceased, who was then seriously wounded. The 3^rd deceased was certified dead soon after arrival at the hospital.

11.  The applicant was arrested. He said he and the 1^st deceased had been in the throes of divorce proceedings, and that morning they had an argument. The applicant further said he had lost control and killed the three deceased.

12.  The autopsy report on the 1^st deceased showed multiple chop wounds or incised wounds to the head and neck, fractures of the skull as well as facial bones and jawbones. Her neck muscles were completely transected. The injuries were consistent with the 1^st deceased being hit with an axe.

13.  The 2^nd deceased had multiple fractures of the skull, cranial fossa and face bones, with very serious injuries to her neck. Her major neck arteries and veins were completely transected at multiple sites. Those injures were consistent with being caused by the blunt impact of a heavy object with a round-ish or curved edge, including a hammer.

14.  The 3^rd deceased suffered multiple fractures to the skull and cranial fossa with deep cut wounds to the back of her head. There were also defensive injuries to her right hand. The injuries were consistent with a serious attack with the use of an axe and a hammer.

15.  In October 2007, the applicant appeared in the High Court on an indictment consisting of three counts of murder. In respect of each count, the applicant pleaded not guilty to murder, but guilty to manslaughter.

16.  The prosecution did not accept the applicant’s pleas and the trial proceeded before McMahon J with a jury.

17.  On 9 November 2007, the jury convicted the applicant on all three counts of murder. The applicant received the mandatory sentence of life imprisonment.

18.  The applicant sought leave to appeal against conviction.

19.  On 30 October 2008, we dismissed his application. We indicated that we would hand down our reasons in due course and this we now do.

The Defence

20.  The applicant admitted that he had killed the three deceased. He pleaded not guilty to murder but guilty to manslaughter on the basis of diminished responsibility and/or provocation.

21.  The applicant gave evidence on his unhappy marital relationship with the 1^st deceased, leading to the divorce and the ancillary proceedings in 2006.

22.  The applicant said the arguments he had with the 1^st deceased over the custody of the 3^rd deceased, the matrimonial property and the legal expenses, together with the stresses of night school that he was attending made him depressed, and he had a low mood.

23.  He said he did not know how he came to kill the three deceased, but claimed that he did not intend to kill any of them.

24.  The applicant said he returned home at about 9.30 p.m. on 10 November 2006 and argued with the 1^st deceased about a solicitor’s letter asking him to move out of the matrimonial home, but there was no physical conflict and he went to bed after a meal.

25.  The applicant further said that he woke up sometime after 6 a.m. the next day and heard the 1^st deceased’s footsteps. He then argued with her again on the ownership of the matrimonial home as well as the pending legal proceedings.

26.  The applicant said that, in the course of the argument, the 1^st deceased told him to jump off a building to kill himself, just as his mother did. The applicant said he was furious at what the 1^st deceased said, and he took, from the toolbox a plastic-bag-wrapped hammer to attack the 1^st deceased.

27.  The applicants said he returned to the 1^st deceased’s living room where she saw both the 1^st and 2^nd deceased. He said he struck the 1^st deceased with the hammer but she fended off the blow and the hammer broke. He heard the 1^st deceased asking the 2^nd deceased to call the police and he became furious and frustrated. He then returned to his own living room to get an axe from the toolbox to attack the 1^st deceased again.

28.  The applicant said he was out of his senses and just struck the 1^st deceased with the axe randomly until she collapsed. He then heard the 2^nd deceased making a phone call in the bedroom and he rushed there and saw the 2^nd deceased holding the 3^rd deceased in her hand. The applicant said he was still out of control and was furious, and he just chopped at them randomly with the axe many times. He said he did not strike the 2^nd deceased with the hammer, but he did not have a clear recollection.

29.  The applicant said he did not intend to kill the 2^nd deceased and had not thought of the consequences of his blows on the 3^rd deceased whom the 2^nd deceased was holding. He suggested that the killing of the 3^rd deceased was accidental.

30.  The applicant further said he collected the hammer and the axe before taking a shower, but did not think of checking if any one of the three deceased was still alive.

31.  The applicant’s evidence was consistent with what he told the police.

32.  A defence psychiatrist, Dr Chen, who had interviewed the applicant on one occasion for 2 hours 45 minutes, testified that, at the time of the killing, the applicant suffered from a mental disorder called dysthymic disorder, which had the effect of “lowering a person’s tolerance to stress so that he is more susceptible to losing his self control when subjected to stress”.

33.  Another government psychiatrist, Dr Yuen, gave evidence to rebut Dr Chen’s evidence. Dr Yuen interviewed the applicant twice and found him to be “calm and settled throughout both interviews. He had good contact with reality. No sign of mental illness. His mood was not depressed (nor) anxious. There was no agitation or hyperactivity. His speech was coherent and relevant. There was no feature suggestive of psychosis, depression or memory impairment”.

34.  Dr Yuen pointed out that “the applicant had no previous mental history and he seemed able to function reasonably well up to the time of the alleged offences, despite the marital discord”, and that “the (applicant) said there was no persisting lowering of mood, loss of self esteem, sleep disturbance or poor appetite. There was also no noticeable impairment in occupational or social function”.

35.  Dr Yuen rejected Dr Chen’s opinion and concluded that the applicant did not suffer from chronic dysthymic disorder.

The Judge’s Summing Up

36.  The judge set out the facts and the medical evidence in great detail, and carefully directed the jury on the issue of diminished responsibility, pointing out that they had to consider the following issues:

“ (1)    Did the applicant suffer from chronic dysthymic disorder on 11 November 2006?

(2)     If so, did that disorder give rise to or produce an abnormality of  mind in  the applicant?

(3)     If so, did that abnormality of mind substantially impair the applicant’s mental responsibility for what he did in the sense that it was a real cause of the applicant attacking the three deceased?”

37.  The judge also carefully directed the jury on the defence of provocation and, on the killing of the 3^rd deceased, the defence of accidental killing and the question of “transferred malice”.

Grounds of Appeal

38.  The applicant, in his homemade written grounds, said the judge favoured the prosecution, but was perfunctory in dealing with his defence. He accused the judge of exposing “his fault under a magnifying glass”, but viewing the 1^st deceased’s fault, including her provocative remarks, through a tainted glass.

39.  The applicant also said that the judge had exaggerated the forensic evidence, which was inadmissible and, thus creating an unfair impression on the jury.

40.  The applicant emphasized that he had been kind to the 1^st deceased, but she was ungrateful and “gave him a poisonous bite”. He said the 1^st deceased was dishonest and not trustworthy, yet the judge had failed to disclose such relevant evidence to the jury.

41.  The applicant complained that the judge had not properly directed the jury on “murder”. He emphasized that he loved the 3^rd deceased.

42.  In his submissions to us, the applicant repeated his written grounds.  He complained that the judge had not emphasized his injuries to the jury and had unfairly allowed Dr Yuen to attack Dr Chen’s evidence point by point. He said he did not plan the killings as alleged by the prosecution. He said he did not clean the hammer or the axe, but “water just splashed on them when I was taking a shower”.

43.  The applicant emphasized that at the time of the killing, he was completely out of his mind and was acting on impulse.

44.  He accused the 1^st deceased of having lied to the Legal Aid Department to obtain legal assistance in the divorce and ancillary proceedings. He lamented, “a minute’s venting of anger on the spur of a moment, not only blemished my character but also resulted in my having nightmares for the rest of my life”. The applicant appeared to feel regret for what had happened.

Discussion

45.  The issues in the case were not about the marital discord between the applicant and the 1^st deceased. Other than explaining the strained relationship between the applicant and the 1^st deceased, the causes of the marital discord were hardly relevant. Nevertheless the judge had sufficiently drawn to the jury’s attention the background of the case, including what the applicant claimed to be the events leading to the killing of the three deceased.

46.  We failed to see how the judge could have further emphasized the background of the case to the applicant’s advantage.

47.  The issues were whether, at the time of killing the deceased, the applicant was provoked in that the 1^st deceased’s conduct together with what she said had caused the applicant, just as they would have caused a reasonably person of the applicant’s age and sex, a sudden and temporary loss of self control rendering him so subject to passion as to make him for the moment not master of his mind (see R v Duffy [1949] 1 All ER 932 as applied in R v Lam Tin Yau [1973-1976] HKC 302); and whether the applicant was entitled to rely on the defence of diminished responsibility.

48.  In so far as the killing of the 3^rd deceased was concerned, there was the further issue of whether it was accidental.

49.  The judge had rightly emphasized the medical evidence, including the evidence of Drs Chen and Yuen, the DNA evidence, and the circumstantial evidence to assist the jury of what were the events leading to the killing of the three deceased.

50.  The judge had given a fair, balanced, and clear direction to the jury, both on facts and on law. In particular, the judge carefully took the jury through the evidence of Drs Chen and Yuen on the defence of diminished responsibility. The applicant’s attack on the judge’s summing up is completely unjustified.

51.  The facts of the case, particularly the horrific injuries on the three deceased, were such that the jury was entitled to reject the defence’s case that the applicant had been provoked into doing what he did, namely by randomly striking the three deceased with a hammer and/or an axe.

52.  The jury was entitled, on Dr Yuen’s evidence, to reject the defence case that the applicant was suffering from chronic dysthymic disorder, which produced a sudden abnormality of mind such that the applicant’s mental responsibility for killing the three deceased was substantially impaired.

53.  The jury was certainly entitled to reject the suggestion that the killing of the 3^rd deceased was accidental. The injuries of the 3^rd deceased were simply inconsistent with such a claim.

54.  The case turned on issues of fact, issues to be determined by the jury.

55.  On the deceased’s injuries, the DNA evidence and the medical evidence, the jury was entitled to reject the defences of provocation, diminished responsibility or accidental killing.

56.  There was overwhelming evidence to show that the applicant had brutally murdered the three deceased with the use of a hammer and/or an axe, perhaps because of his grievance against the 1^st applicant over their marital discord and the consequential litigation.

57.  We did not find the applicant’s conviction on any of the three counts of murder in anyway unsafe or unsatisfactory and his application for leave to appeal against conviction was therefore dismissed.