THE QUEEN v. LAU SUN WAH AND OTHERS

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JUDGMENT

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Silke, J.A.:

1. The defendants faced a number of counts in an indictment. Lau Sun Wah - "D1" -only was charged on the first count of criminal intimidation on 25th June; on the second count of claiming to be a triad society member on the same date; on the third count of criminal intimidation on 29th June and was charged jointly with D2 and D3 upon a count of attempted murder and an alternative count of wounding with intent to do grevious bodily harm. He was convicted on the first, second and third counts and on the alternative count of wounding with intent.

2. Lai Kam Fan - "D2'' - only was charged on the fourth count, being a member of a triad society on 19th October 1984; he was charged jointly with D1 and D3 on the count of attempted murder and on the alternative count of wounding with intent to do grevious bodily harm. He was convicted on the fourth count and on the attempted murder count.

3. Lee Kin Cheong - "D3" - only was charged on the fifth court, being a member of a triad society, and was jointly charged with D1 and D2 on the attempted murder and wounding counts. He was convicted on the fifth count and on the count of attempted murder.

4. The triad society concerned was said to be the "Sun Yee On".

5. We are concerned, as to D2 and D3, with their convictions on the count of attempted murder. D1 seeks leave to appeal against his conviction on the count of  wounding with intent to do grevious bodily harm. There are also appeals against sentence by all three.

6. At trial, D2 and D3 gave evidence. D1 did not. They all made cautioned statements which were before the jury.

7. The facts, briefly, were that Mr. Fan Kam Fu set up a branch of his decoration firm in the Siu Hong Court Arcade in the Tun Mun New Town. He had the requisite permission from the Housing Authority and there was much work to be done.

8. Triad elements in Tun Nun disapproved of Mr. Fan. doing this work. They wanted a monopoly. That disapproval was expressed by D1 on 25th June and again on 29th June, when he demanded that Mr. Fan "give them face" and that he close down. The demands were accompanied by unfortunately well known triad threats and expressions. Mr. Fan did not succumb to this persuasion.

9. On 30th June, two men came to his shop which he was still in the process of fitting out. They were armed with beef knives and severe injuries were inflicted upon Mr. Fan by one of them. He had three deep cuts to his left shoulder, which caused a fracture of the bone; a chop wound to his right forearm, which went into the muscle; a chop wound which severed the tendon and the nerve of his left thumb; a lengthy cut on his lower chest and one on his back. At a subsequent identification parade he identified D3 as the person who chopped him. He said he had struggled  with him, he had seen him closely and that he had run out of the shop pursued by him and possibly one other who he said had been in the shop carrying a beef knife.

10. It was the case for the Crown that D1 had been the front man in the intimidation; that he was present when D2 and D3 were asked to carry out the assault; that he had known of the decision to chop Mr. Fan; that he had known of the weapons to be used and of their being brought, to the scene on 30th June; that he had checked at the scene to see there were no police in the neighbourhood and that he had identified Mr. Fan to the other persons.

11. Their case was based on an identification of D1, by Mr. Fan, as the intimidator and on the contents of three statements made by D1 on the 5th, 6th and 7th December 1984, after his arrest.

12. The case for the Crown against D2 was that he had been taken to the scene for the purpose of chopping Mr. Fan; that he had carried with him a beef knife and that he was present inside the shop when the chopping was carried out. This again was based on his statements, made first on 19th October, when he was originally arrested, and later, on 12th December, after he had been shown a statement made by D1.

13. The case against D3 was based on Mr. Fan's identification of him as the chopper and on a cautioned statement, made after he had been shown a statement of D2, in which D3 explicitly admitted his part.

14. Mr. Bokhary, for D2 and D3, and Mr. Poll, for D1, take one common point and that, arises from a direction given by the trial judge after the summing up had concluded and after the jury had spent some ten hours considering their verdict.

15. It is said to have constituted undue pressure upon the jury to reach finality in their conclusion. We do not think that there is any substance in this ground.

16. Mr. Bokhary, in a succinct and helpful submission, raises two points on behalf of D2 and D3. First, that the evidence at trial was such as should engender in this Court a feeling that the verdict of attempted murder was unsafe and unsatisfactory. Secondly, he criticizes the directions of the trial judge on the issue of intent, on the ground that they do not sufficiently bring to the notice of the jury inferences which they could have drawn and which could have led the jury to the conclusion that the intent was to wound, rather than "only to kill". In addition that the evidence in any event went only as far as to substantiate an intent to wound.

17. On a number of occasions, the jury were told with clarity and precision that only an intent to kill was that with which they were concerned on the count of attempted murder. If they doubted its existence, then it would be their duty to go on to consider the alternative count of wounding.

18. As to how they could come to their decision on the issue of intent, they were directed in a passage which has attracted criticism. The trial judge said this:

 

"          And you may say to me 'How can you determine what a man intends?' After all you cannot lift up the lid of his head and pear inside. Well, members of the jury, what a person intends is just as much a statement of fact, a matter of fact, as is a state of his indigestion or the state of his health. You have looked at people, have you not and seen and come to the conclusion that they are unwell? You don't go round and put thermometers into their mouths or go to the hospital and ask to see their medical records. It is all a matter of common sense, using your own knowledge of the world.

 

        There are, of course, certain matters that you are entitled to take into account in deciding what a person  intends. Look at the weapon or weapons that were used. Consider the number of blows that were inflicted and the severity, if at all, of those blows and the position of the injuries inflicted on the victim. Also, members of the jury, consider whether there was a motive for the attack, and whether or not the attackers stopped at any given  time, or whether he was frustrated in any way by the victim being able to escape. Even an escape may itself be indicative of a lack of intention to kill. You must look at these matters just using your common sense. It is entirely a question of fact. Of course I hasten to remind you at this stage, members of the jury, that each of these defendants denied that he had anything to do with the attack of Mr. Fan. They say that they have been deliverately framed by the police."

19. Criticism has been levelled at the opening paragraph of that direction and at the reference to motive. Of the latter, Mr. Bokhary says that it begs the question in so far as the jury were not concerned generally with the motive for the attack but with whether the attack was made with the intention of killing Mr. Fan or of causing him grevious bodily harm.

20. The trial judge gave impeccable directions on common intention, upon which the Crown relied. The several statements were retracted and the issues in respect of them were fully canvassed before the jury and the jury were fully directed upon them. It being, of course, remembered that D1 did not see fit to give evidence of the very serious allegations which he had made concerning the police officer involved in the case. A matter which could rightly have been the subject of stronger comment than that made by the judge in the course of his summing up.

21. On both of his grounds, he submits that the conviction of attempted murder should be reduced to that of wounding with intent.

22. Dealing with Mr. Bohkary's first ground. This was purely a jury point, given that the jury had been properly directed and that there was evidence capable of leading them to the conclusion to which they came. Which leads to the second ground.

23. Was the jury properly directed? We have considered, in particular, those portions of the summing up to which our attention has been drawn with emphasis on that portion which I have recited; Mr. Bohnary's criticisms, which he has levelled generally, and those in relation to that which he says the trial judge failed to say. And the summing up as a whole.

24. It was a careful clear and, in our view, accurate summing up. The jury could have been in no doubt as to what was required of them, We do not consider the verdicts they rendered in respect of D2 and D3 to be unsafe and unsatisfactory; nor do we consider there are grounds to warrant us in reducing the convictions of attempted murder to wounding with intent to do grevious bodily harm.

25. Mr. Poll on behalf of D1 has advanced one main ground:

 

"That there was no evidence that the persons counselled or procured to commit the wounding, namely Lo Shu and Kam No Cheong, did in fact commit the offence or that they were the persons who were alleged to have committed the offence."

26. There was and, with respect, we see no substance in that ground. The application for leave to appeal against conviction will be refused as is, of course, the applications in respect of D2 and D3.

Sentence

27. The attack was vicious and well planned made upon a man who was attempting to carry on his own business as he was perfectly entitled to do. The sentences, we think, were intended to be deterrent and quite rightly so. There was a distinction made as between D1 who did not actually participate in the chopping, he received 10 years for the wounding count, and D2 and D3 who each received 14 years on the count of attempted murder.

28. Those sentences also, of course, included sentences on the individual counts on which they had been convicted but, as they were concurrent, we are concerned with the totality only. We do not think that these sentences are in any way excessive and the applications for leave to appeal against sentence are refused.