CHIAO WING KIN v. R.

1993, No.117
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Penlington, J.A.

1. I ask Liu, J. to give judgment of the court.

Liu, J,

2. The applicant seeks leave to appeal. He faced two murder charges and one robbery charge. After a summing up to the jury, he was found guilty of all the charges. We have before us only his Grounds of Appeal. The applicant has been given an opportunity of seeking legal assistance, but he is unrepresented today.

3. In the robbery, the driver and the escort guard died of stabbed wounds. Apart from stating, in additional to the grounds that he has filed, that he defended himself in stabbing the two persons in the armoured van, the applicant has nothing further to add. In his first ground, the applicant complains that the judge did not put forward his statement as evidence of manslaughter. He was an employee of Securicor Company and, together with three others, he robbed the security armoured van. He deprived his employer of over $1.2 million plus some 500 cheques. In the robbery, the driver and the escort clerk guard both received stabbed wounds from which they died.

4. The statements of the applicant reflected his intention to kill. That intention was denied by the applicant, and in fact he denied all the incriminating murderous intent in his statements given to the police. He claimed that they were fabrications.

5. He said in his first statement : "First, I stabbed the right side of the neck of the driver with the knife once. He wanted to resist. I stabbed the left side of his neck with the knife again once and then he resisted no more." In his subsequence statement, he elaborated that he stabbed the driver three times in the back. In his first statement to the police, he continued as follows:

"But I thought that the other security guard wanted to resist so I also stabbed his neck once with the knife and then stabbed his back several times with the knife."

That is what the applicant said in his first statement to the police. It is difficult to appreciate his complaint in his Ground 1 that the judge did not forward his statement as evidence of manslaughter.

6. The trial judge directed the jury on all the relevant circumstances with an extensive analysis of his admissions given in this statement. The applicant's Ground 1 fails.

7. The second ground of the applicant complains that the judge had failed to ask the jury to consider that the deceased was possibly murdered by others accused. The applicant said in his evidence-in-chief that he was the only one to use the knife. In cross-examination, when he was asked by counsel why it was necessary to stab the guard in the throat after he had already stabbed him several times at his body, then, for the first time, the applicant denied that he was responsible for the stab wounds in the neck of the escort guard. It must not be forgotten that the escort guard also received fatal back wounds. After the driver and the escort guard were finally subdued in a struggle in the back of the armoured van, the applicant passed the knife, so he said, to the 4th accused so that the applicant could himself go into the safe to take the cash and the cheques.

8. The trial judge had gone into this aspect more than once in his remarkably impartial analysis. Apart from the possibility of the 4th accused inflicting the guard's wounds in the throat, counsel for the 4th accused suggested that it was in fact the 2nd accused who put on the Securicor uniform and entered the van and that it was the 2nd accused who stayed behind in the van after both the applicant and the 4th accused had left it with the driver and the escort guard "still untouched".

9. In his statement to the police, the 4th accused made the same assertion. However, the 4th accused chose not to give evidence. The suggestion advanced by counsel of the 4th accused was said by the judge to be not wholly consistent with the bystander's evidence. That suggestion was also denied by the 2nd accused himself. The applicant had said in his examination- in-chief that he was the only one to use the knife. The description of the attacks on the driver and the guard, as given by the applicant, was vivid. The trial judge dealt with the effect of counsel's suggestion and the 4th accused's statement. Reference was also made by the judge to the 2nd accused's evidence given before the jury denying the suggestion advanced by counsel for the 4th accused. The trial judge's direction was more than sufficient and fair. The second ground of appeal as formulated by the applicant himself is unmeritorious. It cannot succeed.

10. The third ground of appeal deals with the alleged failure of the trial judge to remind the jury parts of the applicant's statements said to be favourable to him.

11. As for the statements of the applicant, the trial judge reminded the jury the need to "look through them and read them when you retire". The trial judge brought to the notice of the jury every conceivable relevant facet of the applicant's case, including matters advanced by the applicant in his favour in his viva voce evidence before the jury. It would have been redundant for the trial judge to read out aloud the full text of all the applicant's statements. In his direction to the jury, he had asked the jury to consider the whole of the statements given by the applicant. The last ground of the applicant also fails. Consequently, I would refuse his application for leave.

Penlington, J.A.,

12. Leave refused.