LAM SHING FAI v. R.

IN THE COURT OF APPEAL

1993, No.645
(Criminal)

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J U D G M E N T

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Hon. Yang, CJ

1. In this application LAM Shing-fai seeks leave to appeal against his conviction of murder.

2. The only complaint advanced by counsel on his behalf is the way in which the trial judge directed the jury on two statements made by the applicant under caution, in particular those words that were uttered by the learned judge in connection with the issue of intent.

3. The facts that could be gathered from the two statements are briefly these.

4. The applicant occupied an apartment near to the deceased. On the day in question he, having stolen the keys to the deceased's apartment, unlawfully gained entry for the purpose of stealing. When the deceased came home, she saw the applicant and yelled, whereupon the applicant stabbed her head with a folding knife which he had brought along with him, covered her with a pillow, stuffed a towel into her mouth and clipped her nose with a clothes peg, thereby killing her. The cause of death was asphyxia and not the knife wounds. Having killed the woman, the applicant took away from the apartment some gold ornaments and left.

5. The passage in the summing up which is the subject of the complaint today reads as follows:-

"The first matter is that the defendant took a knife to room 1004 intending to commit a burglary. So do you think this means that he intended to use it on anyone who disturbed him? You'll recall that he did say in the second statement that 'As I was afraid to be discovered by others, I stabbed and wounded her head.' Or do you think the purpose of taking the knife was merely to scare any intruder. It is a matter for you."

6. Counsel for the applicant argues that the judge should have reminded the jury that the applicant's narrative as to how he came to stab the woman followed his statement that he did that after the victim had yelled. A proper reading of the statement, it was argued, could only give rise to the interpretation that the applicant stabbed the deceased because she yelled and he was afraid that her yelling might attract attention to him. It was further submitted that the judge was wrong to tell the jury that the applicant's statement was open to the interpretation that the knife was brought along in order to use it on anyone who disturbed him and, therefore, he had intended to cause grievous bodily harm or kill. It is to be noted that in the present case the deceased died of suffocation and not of the knife wounds. The action of stabbing coupled with the action of suffocating the deceased provided ample evidence upon which the jury could convict of murder.

7. There is nothing in the Grounds of Appeal. The application is accordingly dismissed.