CACC 528/2000







HKSAR Respondent


Coram: Hon Stuart-Moore VP, Wong JA and Stock JA in Court

Date of Hearing: 8 June 2001

Date of Judgment: 8 June 2001




Hon Stock JA (giving the judgment of the Court):

This applicant was tried before Jackson J and a jury upon an indictment which alleged that on 22 October 1999 he murdered Li Shau-leunin a room in Lok Fu Estate in Kowloon. He pleaded guilty to manslaughter but that plea was not accepted by the prosecution and aftertrial he was convicted by the jury, by a majority of six to one of murder. He was sentenced to life imprisonment. He now seeks leaveto appeal against that conviction.

2 The victim of the killing was a 67 year old lady and she was found dead in her room on the morning of 22 October. Around her neckwas a piece of cloth which had been tightly wound. There were also cut wounds to her face and to her left hand. The pathologist concludedthat she had died because of pressure on her neck.

3 The applicant was arrested on 8 January 2000. He had re-entered Hong Kong from the Mainland the preceding evening and was stoppedby the police in Tuen Mun. His finger and palm prints were taken and they matched those at the scene of the crime at Madam Li’s room.He was arrested for murder. He admitted that he had killed her but said that he had not intended to do so. When interviewed, he saidthat he had climbed some 20 storeys of the building which housed the room of the crime and entered the room in question in orderto steal, and that whilst he was searching, the old lady was woken and she cried out for help whereupon, when she did not listento his demand that she stop screaming, he chopped her on her face with a knife which he had seized. She fell onto a bed and thenhe took up an undergarment which was on the bed and he twined it round her neck and then seized her throat with both hands, and whenshe made no noise nor move, he released his hands. In due course he left the premises having stolen some property.

4 In the course of interviews with the police he repeatedly insisted that he had not intended to kill the old lady, and at one stagein one of the interviews he said that although he had twined the cloth around her neck he had not seized her by the throat.

5 A number of witnesses were called in the course of the prosecution case, including a pathologist who said that he had concluded thatthe cause of death was manual strangulation, rather than ligature strangulation. The applicant did not give evidence nor did he callany evidence on his own behalf.

6 The written grounds of this application are those submitted by the applicant himself. In them, he says that he wishes to appeal againsthis conviction because what happened did not constitute a premeditated murder, and that all he wanted to do was to steal. Mr Pollappears today instructed by the Director of Legal Aid to provide assistance to this court, and to safeguard the interests of theapplicant, and we are grateful for the assistance which he has provided. He does not seek to advance any specific grounds but he,quite properly, draws to our attention a matter of translation which has caught his attention today and which causes him some concern.This is a matter appearing in the second of the interviews conducted with the applicant and in which the translation of a particularsentence suggests the applicant was saying: “I went to kill an old woman”. Mr Poll suggests, as a result of information which hasbeen provided to him, that the correct translation should rather be: “It is me who has killed an old woman”. The difference is ofcourse quite significant. These sentences have been studied by the bilingual member of this court. He thinks the original translationto be accurate. But we would, in any event say this: that the learned judge in the summing-up never referred to this particular translationas in any way suggesting a statement which somehow supports the prosecution case. On the contrary, the effect of the summing-up isstrongly to proffer the line that the statements made by the applicant to the police in effect suggested that he had no intentionto kill. So, whilst we are grateful to Mr Poll for drawing the matter to our attention, it is not a matter which in the event causesus any concern.

7 The applicant has addressed us this morning in support of this application. He offers apologies for his conduct and repeats the contentionthat he did not intend to kill the lady. In effect, he repeats the defence advanced at trial, advanced we should emphasise, not throughany evidence, but in argument and repeated by the judge.

8 We have read the summing-up in this case, and it is a model of clarity and fairness. The judge correctly informed the jury that theissue for them in the case was whether it had been proved so that they were sure that the applicant, when he killed Madam Li, intendedeither to kill her or to cause her grievous bodily harm. He pointed to those features which the prosecution said showed such an intentand he highlighted those specific matters which the defence suggested pointed in the contrary direction, the judge making it perfectlyclear that the defence case was that there was no such intent. This jury could have been under no misapprehension as to its task,and there has been no misdirection in law. The jury were told very clearly that they could not convict unless they were sure of therequisite intention, and it is clear from their verdict that they were sure. There is no basis upon which the verdict can properlybe upset. Accordingly, the application for leave to appeal against conviction is dismissed. There was also an application for leaveto appeal against sentence but the applicant accepts that once the murder conviction stands, there is no basis upon which an appealagainst the mandatory sentence of life imprisonment can be founded, so that that application is also dismissed.

(M. Stuart-Moore) (Michael Wong) (Frank Stock)
Vice-President Justice of Appeal Justice of Appeal


Mr Michael Poll, assigned by the Legal Aid Department, for the Applicant (re: Conviction)

Applicant in person (re: Sentence)

Mr P S Chapman, SADPP and Miss Kathie Cheung Kit-yee, GC of the Department of Justice, for the Respondent