THE QUEEN v. CHONG CHIU WO

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J U D G M E N T

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Silke, V.-P.:

1. Chong Chiu Wo - "the Applicant" - appeared for trial before Hooper, J. and a jury on a five count indictment. The first and third counts were attempted murder: the fifth was robbery. Counts two and four were alternate to counts one and three and charged the Applicant with wounding with intent.

2. He was convicted on both counts of attempted murder and on the robbery count - this last on his own plea. He sought leave to appeal against his convictions for attempted murder and, if necessary, the sentences imposed upon him of a totality of 25 years' imprisonment on each of the attempted murder counts and 20 years on the robbery count: to be served concurrently.

3. At the conclusion of the hearing we refused leaven in respect of conviction and stated we would hand down our reasons later. We then heard Mr. Stirling, who appeared for the Applicant in this Court, on the matter of sentence. We reserved our decision and stated that we would give it at the same time as the handing down of the reasons in respect of conviction.

4. The victims on the attempted murder counts were first Mr. Lok, the Assistant Manager of the China and South Sea Bank Limited at the Lok Shan Branch in King's Road, and second: Madam Lee, a senior supervisor of that Bank. The Applicant had been employed by the Bank as a cashier for a number of years. He had also at the time of the offence had another job in the New Harbour Hotel.

5. On 26th February 1988 the Applicant was at work in the Bank. He had proffered his resignation from it on 23rd February to take effect from 3rd March. In the course of the afternoon Madam Lee found bundles of counted $1,000 notes which instead of each containing ten had but eight. Madam Lee approached the Applicant about it and a recount was suggested. He said he would help in the recount and suggested that Madam Lee and Mr. Loh remain at the office after working hours for this purpose. He further suggested scrambling the combination lock of the vault to make the counting of all the notes there easier.

6. That evening after the cleaning workers had left the premises Mr. Lok, Madam Lee and the Applicant went to the office area of the Bank and into the adjacent rest room. The strong room door was opened as were two metal gates which led to the area of the safe. Bundles of notes were taken out from the safe and counting of them by Madam Lee started. Mr. Lok was watching. The Applicant made an excuse to leave that part of the Bank and shortly returned. He was armed with a knife. He stated this to be a robbery and held that knife against Mr. Lok's neck. He pushed Mr. Lok and Miss Lee to a sofa. He then produced what was apparently a pistol. Mr. Lok told him he could not get away with robbery. Madam Lee was then forced to bind Mr. Lok's hands and to cover his mouth with adhesive tape. When she had finished she herself was bound up by the Applicant.

7. The Applicant dragged Mr. Lok to the male lavatory in the premises telling him that it was necessary to knock him unconscious. Mr. Lok pleaded with the Applicant to be taken back to the sofa before this happened and the Applicant complied with the plea. There he struck Mr. Lok on the head with the pistol. A little later Mr. Lok struggled up from the sofa to see what the Applicant was doing. He was seen and he was struck two further blows on the head and was dragged to a place on the floor hear the rest room door. There Mr. Lok lay and, after hearing various sounds including the ring of the telephone and its being answered. He felt the Applicant feel the pulse in his neck. He was then again struck on the head by the Applicant. His throat was cut, two major cuts being inflicted one 14 centimeters long. From these he bled heavily and was by now in a daze. A little later he felt the tapes on his mouth and his hands being removed and eventually he crawled, leaving a trail of blood behind him, to the telephone and raised the alarm.

8. Madam Lee had been told by the Applicant that she must also be knocked unconscious. He hit heron the back of the head. She was still conscious and she attempted to see what the Applicant was doing in the vault. She met the Applicant coming out and was struck a heavy blow on the head with a bag. She fell down and thinks she fainted. When she came to she looked up at the Applicant who in response took a heavy cast iron fire extinguisher and hit her several times on the head with it. She fainted again. When she next came around she found she was being suffocated by having a cloth pressed over her mouth and nose. She struggled and pleaded for her life. The Applicant then desisted and she became unconscious again. During that period of unconsciousness her throat was cut.

9. Medical evidence indicated that there was a major wound on the left side of Mr. Lok's neck with active bleeding. That traversed some of the muscles and blood vessels and veins. It stopped close to the major arteries and veins. The larynx was cut open with bubbles of air coming out through the cut. There were two other cut wounds on the neck and there was bruising over his temporal region.

10. Madam Lee has five separate cut wounds over her neck, one of which was 10 centimeters 1ong, and there was a laceration over the inner angle of her right eye. She also has a bruise at the back of her head and there was quite significant blood loss. In both cases stitches were needed to suture the wounds.

11. The Applicant left they Bank having attempted to suggest by the use of the employment cards of both Mr. Lok and Madam Lee that they had gone out at a much earlier stage of the evening. With him he took cash of HK$2.5 million and US$30,966 and gold to the value of HK$1,490,373. All this was placed in the back of his Mercedes Benz car. In the course of the rest of the evening he went to his other job at the New Harbour Hotel and from there to a farewell party for one of its staff. On his arrest later that same evening he first asserted that the matter had nothing to do with him and then he explained the events by saying:

"At about 1900 hours I threatened the two colleagues with a sharp knife. Then I intended to knock them out but I could not knock them out. In a fury, I injured them."

12. In his evidence at trial the Applicant described a series of large embezzlements by him from the Bank; his fear of being found out and an aborted attempt to cover up at least some of them. This involved the use of an authorisation card of Madam Lee. He wanted to obtain an overdraft on his account with the bank of $100,000 to meet a cheque which he intended to give to cover the more immediate defalcations. That particular matter is the subject of the only ground of appeal argued by Mr. Stirling and we shall come back to it in a moment.

13. The sole issue for the determination of the jury, the Applicant never having denied injuring Mr. Lok and Miss Lee, nor the robbery, was: did he have at the time that the injuries described were inflicted the necessary intent to kill. This was explicitly drawn to the jury's attention in the course of his summing up by the trial judge.

14. It is Mr. Stirling's submission that that otherwise impeccable summing up was blemished in two ways. The effect of these blemishes was to direct the jury that a motive, which Mr. Stirling suggests did not emerge from the evidence, was present, which could have induced them, knowing that the Applicant did the acts, into the erroneous conclusion that he had the necessary intent. In support Mr. Stirling has drawn our attention to two passages in the summing up. In indicating to the jury what the case for the Crown was the trial judge said this:

"So the Crown asks you to consider a number of factors: One, the defendant had a compelling motive to kill if he was going to rob because he knew the victims could both identify him. He, being known to both of them, why then falsify the time of leaving on the time-cards, says the Crown. He also had used Madam LEE's card to get his cheque honoured and she would know about this. So that might also provide a motive for doing away with her." (Emphasis supplied)

The portion attacked is that emphasised.

Then, at page 25, the trial judge said this:

"Now after the account had been balanced in this way, the defendant realized that the matter would sooner or later be found out by the bank, he says, because of his overdraft in his account and he would not be able to explain his overdraft. But you might think he might be able to do it if Madam LEE was dead. We don't know. It was then he decided he might as well rob the bank, take all its money and escape."(Emphasis supplied)

15. Mr. Stirling's contention was that the combination of these two directions invited the jury to speculate and invited them to draw inferences from unproven and uncertain circumstances, there being no evidence that the Applicant's bank overdraft would not or might not have been discovered had Madam Lee died during the robbery. The effect was to provide a further motive for the consideration of the jury - a motive that could not be inferred from the evidence.

16. What had happened was this: the Applicant described himself as being very scared when the decision was taken to recount the notes. He suggested when Madam Lee discovered the shortfall that he might have been too busy when counting and had made a mistake of that the counting machine might be out of order. He knew there was a shortfall of $100,000. He decided to draw a cheque in that sum in an attempt to cover it. His account held $10,000 only. In order to complete the process of getting an overdraft and thus obtaining the money it was necessary to use an authorisation card held by Madam Lee. So what he did was having drawn the cheque to show it to Madam Lee. As it was in excess of the limit on his account she would have to pass her authorisation card through the computer in order to permit such a cheque to be drawn. If the balance in the account was below the sum of the cheque that card would have to be passed through the computer a second time to permit the cheque to be honoured. Madam Lee carried out the first part of the operation herself but apparently did not pay much attention to the computer screen when it showed the Applicant's account to be deficient in the sum required. He then said to her that her first passing of the card through the computer had been ineffective and that it was necessary to go through the first part of the process again. Madam Lee then handed the card to the Applicant who carried out what was, in effect, the second part of the process and, unknown to Madam Lee cleared the cheque.

17. In examination-in-chief he was asked by counsel at trial to carry on from the point where he had stopped his evidence on the previous day as to the use of his bank account to repay $100,000. The examination then continued in this way:

"Q. Could you take us from there please?

A. After their accounts have been balanced I realized that this matter would sooner or later be found out by the bank.

Q. How did you feel that it would be found out by the bank?

A. Because the report which would come on the following day would show that there has been an overdraft in my account and I would not be able to explain why I could obtain an overdraft with my account. All of a sudden it came to my mind that since the matter would be disclosed anyway, I might as well rob the bank, take all its money and escape."

18. This evidence is echoed in the second passage in the summing up to which we have been referred.

19. When he started, the trial judge explicitly drew to the attention of the jury that they were the exclusive judges of facts. Any opinion on facts expressed by either counsel or himself and which did not agree with their way of thinking they must ignore. Apart from the obvious issue of removing those who could identify him as the robber Madam Lee who, of course, knew nothing about the purported authorisation by her of an overdraft would manifestly say so on the following day when the books of the Bank were checked. It was clearly the apprehension of the Applicant that his overdraft and his defalcations would inevitably become apparent and sooner rather than later. On his own admission it was this which made him think that he might as well rob the Bank. If both Mr. Lok and Miss Lee were rendered merely unconscious this could not prevent either the fact of robbery or the false overdraft being laid at the door of the Applicant once they had recovered.

20. We do not think that the strictures placed upon this portion of the summing up by Mr. Stirling have the substance he would wish us to find. There were inferences which a properly directed jury could draw that all the matters referred to formed a combination of the reasons why the Applicant desired to rid himself of the living presence of Mr. Lok and Miss Lee. These all emerged from the evidence. Further the wording of both of the passages drawn to our attention, the use of the word "might" and in the first and in the second the sentence "We don't know" clearly indicated they were comments of the trial judge which comments he had heft it open to the jury to ignore if they so saw fit in his earlier directions.

21. We did not think the ground of appeal to have been made out and we refused the application for leave to appeal against conviction.

Sentence

22. Mr. Stirling has urged upon us that the totality of the sentence imposed was excessive in all the peculiar circumstances of the case. He has also sought to urge upon us that the trial judge had failed to consider that the offences were committed by the Applicant on the spur of the moment as opposed to being the result of a premeditated plan of action.

23. As to the latter, while it is clear there was no long term planning nevertheless the robbery was thought out by the Applicant before he committed it and it was clear to him that, if he were to perpetrate it successfully, Mr. Lok and Madam Lee could not be left in a position to identify him. There was a course of escalating violence which strongly suggests an increasing desire to achieve that end.

24. Mr. Stirling has submitted to us that the quantum, given the overall criminality of the Applicant and even accepting that the attempts to murder were of the gravest kind, is nevertheless far too great. We have been referred to Thomas, Principles of Sentencing, 2nd edition at pages 91 and 92 and to the report of R. v. Hekker [[1973] Crim. L. R. 128] referred to by the author. There a man pleaded guilty to two counts of attempted murder. He, having drunk a large quantity of alcohol, had fired a shot gun indiscriminately at a neighbour and the police. Thirteen shots in all were fired before he gave himself up. He was sentenced to a period of 18 years' imprisonment which the Court of Appeal reduced to 12 years expressing the view that his conduct was not "the most serious" of its kind.

25. In this jurisdiction, in R. v. Lau Sun Wah and Others C.A. 288/85 (unreported) this Court upheld sentences of 14 years for two counts of attempted murder where the offences had resulted from a triad attack by persons who had been employed with the intent of killing the victim. Our attention was also drawn to a recent sentence, imposed in December 1988, in R. v. Kwan Si Keung Criminal Case No.130 of 13 1/2 years for attempted murder by a burglar who had assaulted a young lady who had surprised him as he perpetrated his burglary. From Canada, Mr. Stirling has referred us to R. v. Letendre (1976) 25 C.C.C. (2d) 180 where again 14 years was upheld as a sentence upon a man who had seriously wounded a store employee during the course of an attempted robbery. From these Mr. Stirling seeks to suggest that 14 years is a fairly normal run of sentence for the type of offences charged here and which this overall sentence greatly exceeds.

26. These were offences of the highest gravity. Mr. Lok was very lucky to survive. They were committed by the Applicant in the course of the robbery of a band in which he worked and for the purpose of preventing identification and the discovery of earlier defalcations. These were cold blooded attacks on his own colleagues from which he intended they should not recover. The sentences are high and this we accept, but having given careful consideration to that which Mr. Stirling has urged upon us we do not think the totality to de so high as to warrant our interference. The application for leave to appeal against sentence is also refused.