THE QUEEN v. YAU SAU-KAM

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. Two defendants were indicted for the offences of murder, arson and robbery. They were husband and wife.

2. The husband, YAU Sau-kam, was convicted on each of those counts by the jury. The wife, LOU Siu-then, was convicted of manslaughter on the 1st count and was convicted upon the other two counts.

3. YAU appeals against his conviction for murder.

4. The murdered woman, HO Sau-ying, was an elderly woman of some wealth. Both defendants played mahjong with her regularly and were aware of her circumstances. She lived in a flat owned by her son. She looked after some children.

5. On the 31st October 1982, having had tea with her daughter in a restaurant, she went to the flat at Tak Po Building at about 9:30 in the morning. At about 10 o'clock that morning the caretaker of the building heard a cry of fire. He went to the flat on the 8th floor and found the iron grille was closed and the wooden door was locked.

6. The wooden door was kicked open and the interior of the flat was found to be an inferno. The seat of the fire appeared to be in the master bedroom and in that bedroom was found the body of Madam Ho who had been brutally killed. Some of her injuries were caused by a hammer.

7. There was evidence that she was dead before the fire was lit. Drawers in the premises had been forced and valuable items taken from them.

8. There was evidence that a few days before the 21st YAU had attempted to borrow money from a son of the deceased and, on being refused, said he would go to her.

9. The wife was the first person arrested in connection with the matter - on the 22nd October - and she made a series of statements: the first was a denial, the second was untrue as to her bank accounts and the third, after she had been shown a particular bank account book, gave details of the killing and sought to place the blame on the son of the deceased and upon another man.

10. There was evidence that she sold, shortly after the killing, some of the stolen valuables. Upon arrest, she had in her possession a finger ring of the deceased.

11. YAU surrendered himself to the police on the 23rd October and he also sought to put the blame upon the son and upon the other man.

12. His home was searched. He had admitted that he knew of a plan to rob but denied his participation in it. The search discovered a pair of his sandals which were found to have the blood of the deceased upon them. He then admitted his presence at the killing but said he was there to warn the deceased and he gave his description of that which he said had occurred.

13. Both the son and the other man gave evidence as prosecution witnesses. The appellant also gave evidence at trial and he spoke of a quarrel which took place in the course of a game of mahjong with the deceased which led to her being beaten with a chopping board by the son.

14. The trial judge directed the jury on the issue of common design on the lines of R. v. CHAN Wing-siu ⁽¹⁾. He said:

"If more than two went, or if you were in doubt as to whether more than two went, then you would have to consider whether he (that is YAU) committed the offence on the basis of whether he was a party to a common agreement, that is, you would have to be satisfied beyond a reasonable doubt there was such a common objective, that he would have realized that there was a risk of causing death or serious injury to someone in the premises, but he ran that risk and that the fatal blow was struck in pursuit of that objective. If you were satisfied of all of that beyond a reasonable doubt, you would be duty bound to find him guilty of murder." (Emphasis supplied)

15. Mr. Payne, who appears for the appellant in this Court, took issue with that direction and in particular with the word "risk". When the matter first came on' for hearing he was aware that  R. v. CHAN Wing-siu⁽¹⁾ was the subject of an appeal to the Judicial Committee of the Privy Council. He suggested, and we accepted his suggestion, that the hearing of this appeal be adjourned until such time as the Advice of the Privy Council had been received.

(1)    [1982] H.K.L.R. 280

16. That Advice is now to hand.

17. In it⁽²⁾, delivered by Sir Robin Cooke, the Judicial Committee said:

"Where a man lends himself to a criminal enterprise knowing that potentially . murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic."

That passage leads on to the following:

"    The test of mens rea here is subjective. It is what the individual accused in fact contemplated that matters. As in other cases where the state of a person's mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time .............If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding ...... "

18. It is a matter for the jury to decide whether in this instant case YAU did contemplate the "risk" - which is the word used by the trial judge and the word to which Mr. Payne has taken exception.

(2)    Privy Council Appeal No. 53 of 1983

19. Mr. Payne now concedes that that sole ground is no longer arguable. We agree with him. There are no other grounds which are capable of being argued - a matter which Mr. Payne has also accepted.

20. We note the homemade grounds advanced by the appellant which related to matters purely for the jury and upon which the jury came to their decision.

21. In the event, the appeal is dismissed.