R. v. LAU CHEUNG LAM

No.344 of 1996

(Criminal)

IN THE COURT OF APPEAL

(On appeal from HC399/95)

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J U D G M E N T

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Sears, J. (Giving the Judgment of the Court) :

1. This applicant was convicted on 6 June last year before Wong J. and a jury of one count of wounding with intent. He was the 2nd defendant at the trial with Choi Chi Keung, the 1st defendant. They were jointly charged with murder, two counts of wounding with intent and a fourth count of assault occasioning actual bodily harm. The 1st defendant was acquitted on all of the counts; the 2nd defendant, the present applicant, was convicted solely on the second count.

2. The background facts, according to the prosecution case, were that this applicant had been involved in a dispute and had been assaulted by certain persons in the Hing Wah Estate on 25 January 1995. Later that evening he, together with the other defendant, returned in a motor vehicle and he had armed himself with a machete. When they got to the site, a group of people threw objects at the vehicle and in the fracas that then ensued over a period of time, one of the persons from the Hing Wah Estate was killed by being hit by the motor car, two persons were injured by chopping wounds and in the fourth count, another one was injured by the motor vehicle.

3. The evidence which was given indicates that the two accused may have gone back to this area for revenge, although they said it was for the matter of compensation. No doubt the jury took the view that they were going back as aggressors. However, it is also clear that when they arrived at the site, the other group of persons themselves adopted an aggressive mode.

4. The real issue at the trial was whether or not the defendants had acted in self-defence. The trial judge, when he came to make his directions, said this : "I will now ask you to consider the defences that are available to the defence." Mr Loughran in a very able and well constructed submissions, and if I may say so, a very well constructed written submission which has saved the court considerable time in looking at the points which have to be considered, criticises the use of the word "defence" and cites an English authority in the 1930's. The modern practice, however, is for judges to refer to self-defence as a defence. See for example Palmer v. The Queen [1971] AC 814. The judge when he came to make his directions upon it adopted the standard Practice Direction available to judges in the High Court, but made a slight error when he said this : "Because the prosecution must prove the accused's guilt, it is for you to make sure that the accused was not acting reasonably in necessary self-defence." He should have said : "It is for the prosecution to make you sure." However, it is clear from the words that he used later and other instances that the jury were made aware that the prosecution had to disprove the defence of self-defence. We can find nothing, therefore, in those grounds of appeal which seeks to criticise the judge in his directions to the jury.

5. Mr Loughran further submits that a direction should have been given in accordance with Palmer at pp.831E - 832E, when the Privy Council dealing with a murder trial made it clear that on occasions judges must indicate to the jury with precision what is the state of mind of the defendant which has to be considered by them. Each case, however, depends on its own particular facts.

6. The present case was unusual in that the self-defence was really a running fight which was going over a period of time and no doubt geographically over a wide area. In our judgment, the directions given by the trial judge were sufficient for the particular facts of this case.

7. The other matter which is criticised is that it is said that it is illogical that there is a conviction on the second count whereas there is an acquittal on the third count, which was another chopping episode where the jury must have accepted that there was a defence of self-defence.

8. The evidence however is different on the second count. The person injured, Leung Wing Yip, was seen by the 4th prosecution witness, Tsim, to be running away and followed by the applicant who was brandishing a knife. These are matters essentially for the jury to consider. Whether they examined that portion of evidence, or whether they might have thought that on this particular occasion, the applicant was using more force than was reasonably necessary in all the circumstances is difficult to say. Having examined the conviction, we cannot say that it was in any way illogical.

9. In conclusion, we can find nothing in the summing-up which flaws the conviction and looking at the matter overall, we cannot say that it was in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is therefore dismissed.

10. As to sentence, the applicant was sentenced to five years imprisonment. The judge said that he was sure that he had taken this machete with him with the intention of using it. He then said this :

"You are a man of a bad criminal record, a man of violent disposition, your record goes back to 1979, and since then you have been in and out of prisons. It doesn't seem that you have learned any lessons from your past misconduct. Therefore, I think a prison sentence of some length would be necessary in your case."

This would appear to indicate that the sentence has been increased by the Judge due to the past record of the defendant. Sentences must be based on the criminality of the defendant for the offence which is before the court. Sentences are not to be increased by virtue of a bad criminal record. Of course, no discount can be given, but the sentence is not to be increased. There were other matters which, in our judgment, perhaps the judge should have indicated that he took into account : the applicant gave himself up to the police and the injury that was caused was, in any view, a very minor one. Nevertheless a weapon was used. These are serious matters and clearly a sentence of imprisonment must be imposed.

11. In all the circumstances of this case, we consider that the proper sentence here should have been one of three years imprisonment. To that extent, the application for leave to appeal against sentence is allowed and we treat this as the hearing of the appeal against sentence and we reduce the sentence from one of five years to three years imprisonment.