THE QUEEN v. LIU CHI KONG

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A.:

1. On 6th November 1987, on the verdict of a jury, Garcia J convicted Liu Chi Kong of murder. Against that conviction he seeks leave to appeal.

2. The background to the death of the victim Lam Fan is not novel. The applicant was a married man and Lam Fan was his mistress. At the material time she was pregnant and claimed that he was responsible. The wife and the mistress made competing claims to the applicant's time and attention albeit the wife demonstrated a remarkable degree of tolerance. No doubt the applicant, who had to carry on a business into the bargain, was subject to considerable stress. But no compelling motive for premeditated murder was, in our view, disclosed in the evidence.

3. According, to his account of the matter, given from the witness box and in an earlier series of somewhat conflicting statements, the applicant and Lam Fan quarrelled in her appartment at about 8 am on 23rd May 1987. She attacked him with a wall bracket and he sought to defend himself by grasping her wrists. They fell to the floor and Lam Fan having gone limp the applicant appreciated that some portion of his hand, wrist or forearin had been pressing on her throat. This was effectively an admission that he had killed her accidentally. Whether or not the jury accepted his account of what took place, quite apart from the question of intent, we shall never know.

4. According to the medical evidence death could have been caused, accepting the applicant's story, by asphyxia or by vagal inhibition; being Pressure on the carotid sinus sufficient to impair the function of the heart. Other causes of death were canvassed but do not, in our view, warrant further consideration. The applicant himself, when arrested, was found to have a number of scratch marks on his body; particularly on his neck and left arm.

5. Effectively the only issue falling for the consideration of the jury was whether or not they were satisfied so that they were sure that at the time the applicant had applied pressure to his mistress's throat or neck, whatever the circumstances, he had intended either to kill her or, as the judge added as a full direction in law requires, to inflict very serious bodily injury.

6. We have been concerned throughout the hearing of this appeal as to whether or not the judge adequately directed the jury in relation to the rental element in murder; a matter in melation to which the medical evidence was of no assistance. The judge gave correct directions as to the standard of proof demanded, of the Clown and to the drawing of inferences and made it plain to the jury that they had to be sure that the death had not occurred by reason of an accident; the onus resting on the prosecution.

7. He told them that they could consider all the evidence that they had heard and read to assist in determining whether or not the applicant had the necessary intent. That evidence, including the applicant's failure to seek help when, on his own account of the matter, he found that his mistress was no longer breathing and the successive steps taken to conceal the death and his involvement, concluding in a funeral pyre on the back of a lorry, was fully recited. After quite protracted consideration we do not think that the judge could have been expected to do more.

8. It is submitted on behalf of the applicant that the judge disparaged his account of material events by reference to the measurements of the room where he and his mistress were present at the material time but the judge had expressly warned the jury not to accept his or counsel's views if they did not accord with their own. It is also submitted that the verdict was unsafe by reason of what were described as inflammatory passages in the addresses made to the jury on behalf of the Crown. But such passages were followed by the final address of counsel for the applicant and by the summing-up. We think it would be almost insulting to the jury to suggest that that was a material factor in their determination.

9. In the event we find no ground for criticism of the summing up or for questioning the verdict of the jury who had heard the applicant himself and digested a substantial volume of medical and other evidence. Accordingly the application for leave to appeal against conviction is refused.