State v Li Jun - summing up [2003] FJHC 161; HAC0002S.2003S (26 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC002 OF 2003S

THE STATE

V

LI JUN

Gates J.

Ms A. Prasad and Ms L. Chandra for the State
Mr G. 0’Driscoll for the Accused

17-25 November 2003, 26 November 2003

SUMMING UP

All 3 Assessors present

[1] Lady and Gentlemen Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused’s guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charges against the Accused. Therefore it is for the State to prove each charge against the Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of any of the charges you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of any of the charges you must give your opinion that he is not guilty of that charge. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] The Accused is charged with four counts of murder. But you must consider each of the charges separately, when you examine the case in your deliberations. You are not obliged to find the Accused guilty either on all of the charges or not guilty on all four. Look at the evidence as it affects each of the charges separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each of the charges.

[7] The Accused chose to give sworn evidence. He need not have done so, for he does not have to prove his innocence. In this case he elected to present his case by himself giving evidence and subjecting himself to cross-examination. From this evidence, you will be able to understand his case and you will be able to consider his evidence along with all the other witnesses.

[8] Remember the Accused is a witness like any other witness. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[9] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on each of the charges against the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[10] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[11] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the knife, the chopper, the sketch of the scene, the photographs, the post mortem reports, the caution interview statements and the charge statement. In addition, you will consider the evidence that went in by consent of both parties, the list of agreed facts. Following correct procedure counsel have agreed certain issues or facts. These are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed.

[12] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[13] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[14] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’ testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Ignore for the purposes of your deliberations, the blood and horror of what took place here. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case has been proved before you, proved with evidence on each of the counts.

[17] I turn now to deal with what the prosecution must prove. The Accused is charged on 4 counts in the information with murder which is an offence in our Penal Code.

[18] There are 4 relevant elements that the prosecution must prove on each of these counts of murder. First it must be proved beyond reasonable doubt that each of the deceased died on 14 June 2002. Because of the agreed facts, this element is admitted. When the police officers arrived on the scene, the four members of the Lianzhan family including Mr Lianzhan’s niece Wei Lan were all lying dead in the flat. Their deaths were subsequently confirmed, and causes of death established, by Dr Loata Musudole, the pathologist.

[19] Second, the prosecution must prove that each of the deceased’s deaths was caused by an unlawful act, an act without justification. I shall return to the question of justification further on.

[20] Third, the prosecution must prove to you that these unlawful acts were the acts of the Accused. The Accused admits in the agreed facts that he caused the deaths of all 4 of the deceased by the use of a knife.

[21] Fourthly and lastly, it must be proved beyond reasonable doubt, as indeed must all of the elements of murder be proved, that the Accused killed each of the deceased whilst acting with malice aforethought. Malice aforethought covers three possible intents. It must be proved that the Accused either intended to cause the deaths of the deceased, or that he intended to cause the deceased grievous bodily harm or that he knew that his acts, the lashing out and the stabbing with the knife would probably cause the deaths of the deceased or cause grievous harm, and that the Accused was indifferent as to whether or not death or grievous bodily harm would be caused, or even if he wished it would not be caused.

[22] Grievous harm is defined in the Penal Code to mean any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense.

[23] The unlawfulness of these acts is disputed by the Accused and he has said in effect that he had not acted with the intent necessary for him to be convicted of murder.

[24] On 16 June 2002 the Accused was interviewed by the police. There were various breaks in that interview, which eventually concluded on 18 June. There was no real challenge to that interview.

[25] The Accused Li Jun testified that he had a problem with his work permit. He was recommended to see Li Lianzhan. He then worked in Li Lianzhan’s electrical shop in Walu Bay. Li Lianzhan also allowed him to stay with Li Lianzhan and his family at 21 Lekutu Street in their downstairs flat. He slept on a bed in their sitting room. This happened 2 or 3 months prior to these incidents.

[26] Li Jun said "At the beginning relations with the family were very good." He was not getting any wages for his work though Li Lianzhan gave him some items of clothing.

[27] Then the shop was robbed. Because the police were investigating Li Jun stayed away from the shop, since he was not meant to be working yet. The family did not like his not working when they were so busy. The Accused said Mrs Lianzhan in particular did not like it and said "If you go on like this you will have to move out."

[28] The Accused had no money, so this situation became awkward for him. Three or four days before the incident Mr Lianzhan asked the Accused to move out. The Accused agreed to move out before Mr Lianzhan was to go to China for a trip. He was going to move to a Mr Zhu’s place in Lami.

[29] On the day in question, Friday 14 June at a dinner at the Lianzhan’s flat with Mr Zhu present this move was agreed. In his evidence the Accused said the family were not happy with him.

[30] There is not much difference between what the Accused said in evidence and what he told the police in interview as to what happened next. In his evidence however he suggests Mr Lianzhan was more hurtful to him. In his interview he had said:

"A. I was lying on my bed, LI LIANZHAN came out from his room and approached me. His asked what I was not satisfied. I answered, "Nothing" LI LIANZHAN said, "Don’t play tricks with me, you better behave yourself" I replied. I don’t play trick with you and I have nothing. If you want me to move I will move out. LI LIANZHAN said, Don’t talk rubbish to me and gave me a slap on my left cheek.

Q63. Then what happened next?

A I punched him (LI LIANZHAN) on the chest below the throat. The LI LIANZHAN pushed me to the floor and held my both hands. I managed to turn around and put him on the floor and tried to stand up but he pulled me down and we rolled."

[31] In his evidence the Accused had said:

"Li came out and called me, Li Jun you come I want to talk to you". He said "If I want you to go you must go and don’t play any tricks". He was very arrogant and angry. I told him you must have heard what we discussed and I am ready to go. I do not want to stay one day longer if you do not like me. Then he was very rude. He swore at me. "Don’t play tricks on me. You can’t do it."

He was using abusing words. I was very angry. "You son of bitch" he said. He slapped me on the face. I fought back. I had nothing in my hands. I punched him on the chest. He was taller and stronger than I. He got me on the floor and we rolled."

[32] Section 203 of the Penal Code provides the following:

" 203. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only."

[33] The term provocation is defined to mean "any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, .... to deprive him of the power of self control and to induce him to commit an assault of the kind which the persons charged committed upon the person by whom the act or insult is done or offered. A lawful act is not provocation to any person for an assault."

[34] Before you consider the justification of provocation in relation to the murder of Li Lianzhan [count 1], you must be satisfied that the State has proved beyond reasonable doubt all the other elements of murder, including the necessary intent I have referred to.

[35] It is for the prosecution to prove beyond reasonable doubt the absence of provocation. This burden is an essential part of the prosecution’s case.

[36] It is for you to decide whether you accept the Accused’s account that Li Lianzhan spoke and acted in this way, whether the words and conduct of Li Lianzhan did constitute provocation to the Accused, that is words and conduct which would have been sufficient to provoke any reasonable person, and which did actually cause the Accused a sudden and temporary loss of self-control, rendering him so subject to anger as to make him for that moment not master of his mind.

[37] Resentment, a grudge, or a desire for revenge by Li Jun against Li Lianzhan for asking him Li Jun to leave the flat would be inconsistent with provocation. It is a matter for you to decide, but if there has been time to reflect that would tend to rule out sudden temporary loss of control. Did he exercise the ordinary power of self-control over his passions which someone in his position would be able to exercise and would be expected by society to exercise? You may answer that question by considering the two versions given by the Accused of what occurred at that moment, deciding which or which part you accept, and then deciding whether the Accused’s conduct was justified. Remember the prosecution has the burden of proving to you that the Accused’s conduct was not justified.

[38] The Accused maintains also a justification for attacking the four deceased on the ground that he was attacked first and was merely defending himself. To recognise that there could be justification has been said to be based on good law and common sense. A person who acts reasonably in his self-defence commits no unlawful act. But a person attacked in such circumstances may only do what is reasonably necessary. Everything depends on the circumstances.

[39] Sometimes it would be only sensible to take some simple avoiding action, such as by defusing a situation before it gets out of control, by making a discreet retreat, by not escalating the confrontation. Nor would it be common sense to retaliate wholly out of proportion to the necessities of the situation. A defensive stance may be wiser than an aggressive stance. But it is not always easy in a fast moving incident to gauge exactly the correct measure of response. A response or a pre-empting move if made should be a reasonable one. A person acting honestly in thinking his response appropriate may convince you that only reasonable defensive action had been taken. It is for the prosecution to prove to you beyond reasonable doubt that the special form plea of not guilty by reason of self-defence has no basis in this case.

[40] You will have to apply your good sense in assessing the two accounts given by the Accused here, and in deciding which of them you consider the prosecution have proved to you is closer to the truth, and then go on to consider whether the prosecution have proved to you that the justification of self-defence for these deaths is not made out.

[41] If you are convinced, after considering all of the evidence, the Accused is innocent, or if you are in doubt as to whether he was acting in necessary self-defence your duty is to express an opinion that the Accused is not guilty.

[42] For the most part the Accused has no supporting witness for the account he relates. If you believe him, he does not need further support. But because as a witness he is relating what no-one else saw you should approach his evidence with caution.

[43] The Accused says the wife of Li Lianzhan rushed towards him and tried to chop him. He kicked her in the stomach with his right leg, and she dropped a chopper which he then picked up. We know that Lianzhan’s wife was naked at the time. You may think a person will feel vulnerable, rather than aggressive, if they are without their clothes. Wei Zhongyan’s clothes were hanging in the bathroom which may suggest she had been bathing at the time the incident began.

[44] The prosecution ask you to accept that there were no weapons to start with. This is common ground. They go on to suggest there was no actual attack with weapons on the Accused and that there was no need for the Accused to attack or to defend himself with weapons.

[45] The Accused does not mention any incident in which Wei Zhongyan held a chair towards him. Ishwar Nand the landlord did however. You may think his evidence was sound for he explained why he remembered it. He did not support the Accused by suggesting the two men were rolling on the floor. He said he saw the lady "was naked in the kitchen." He said he was very surprised to see the lady naked, and added "as I had never seen in my life." From his position halfway down the stairs looking through the open door into the flat he said he could see very clearly. How much force would be required to defend yourself against a naked lady you may consider?

[46] On Mr Nand’s evidence "the lady had a stool and was trying to throw it." There was no mention of a kitchen chopper at this stage. This witness also confirmed that the door of the flat was open. The Accused never appears to have considered going out of the flat. He said he thought there was no-one around. This was at 9.30 pm on a Friday evening in a residential area.

[47] The witness Seci Lagivola who was the next door neighbour at No. 17 Lekutu Street came out when he heard a woman screaming. He saw a woman and a man struggling in the sitting room of the flat right up to the door. He said the man was pushing someone and holding something in his hand. He said "it looks like the woman was trying to get out of the door." This was the flat front door. He was trying to push her inside the house. If you accept the evidence of these 2 prosecution witnesses you will find that the front door of the flat was open, that the Accused was not trying to leave the flat, but was instead trying to pull a woman, which must have been the clothed Wei Lan, back inside. The Accused in evidence vehemently denied that he was trying to pull Wei Lan back inside. He said such an idea was the creation of the police. These two witnesses are civilians not police officers. You will have to decide who is accurate on this important issue.

[48] This does not suggest any disengagement from the fight by the Accused, or any retreat. A person does not always have to retreat or back off in order to establish his non-aggression, but it is a factor which you can consider along with all the evidence in deciding whether he was justified in stabbing, wounding and killing the deceased. It is relevant to the issue as to whether what he did was necessary.

[49] It is not clear why the Accused needed to grab the knife which Wei Lan, the niece of Mr Li Lianzhan, held. The Accused said she was a small person. The pathologist could find three defensive wounds on Wei Lan’s body but she appeared to have put up little fight. The Accused said he seized the knife off Wei Lan. Once he had the knife from her, did he need to do anything more to her? He said in interview, after obtaining Wei Lan’s knife he

"strike forward and injured one of them either Wei Lan or the wife. I have strike several times I don’t know how many got injured. At that time the son was punching on my side and the other 3 members were surrounding me. I was striking anyhow on all directions. I kept on chopping until they fell on the floor. I saw blood everywhere."

[50] Applying your common sense, you will have to decide whether this response was necessary on the part of the Accused. When you retire you can study carefully the Accused’s statement to the police and consider it along with all the evidence in the case including the Accused evidence before you in court.

[51] The wife was found lying in a pool of blood in the kitchen, blood being found on the nearby walls. This would tend to suggest she received the fatal blows from the knife in that area, not the sitting room. Similarly the 14 year old Li Chung received his fatal wounds in his parents bedroom to which he must have retreated.

[52] Was it necessary to pursue these two persons away from the sitting room? Could the Accused not have made his escape through the open front door?

[53] The prosecution ask you to compare the number and gravity of wounds on the four victims with the slightness and superficiality of the injuries to the Accused when considering the plea of self-defence. They also point to the force required to inflict such wounds on the victims, and suggest that the evidence of both the pathologist and Dr Hing Hong who examined and treated the Accused indicates some of his injuries could have been obtained when running away and climbing the fence. You are asked to consider who was the aggressor here, the Lianzhan family or the Accused. These are all matters for you to weigh.

[54] This disparity in injuries is explained, say the defence, by the next plea for your consideration and that is, that the Accused had entered a period of non-insane automatism when he started to lash out wildly with the knife.

[55] Mr O’Driscoll said "If he were hit by the stool, he may have been partially conscious only." The Accused did not however mention anything about a stool, or about being hit by a stool. There is no evidence of the Accused having sustained a head injury, from the two doctors who examined him later; no complaint either from the Accused of bruise to the head or that he suffered a subsequent pain in the head. Indeed there has been no medical evidence that he might have entered a period of non-insane automatism. Without medical evidence you may still consider this plea.

[56] In effect the Accused is putting forward for your consideration the account that during this period, which he does not remember, he had no intent to cause the deaths of the victims. This is an issue which the Accused must prove to you on a balance of probabilities, that is a lesser standard than is placed upon the prosecution in this trial. The Accused says what he did, he did involuntarily. If you accept this defence, the Accused is entitled to be acquitted.

[57] The prosecution have commented that this is a very convenient late defence. They have pointed to the evidence that suggests the Accused’s mind functioned perfectly well and that he was not disoriented. He had to do more than merely lash out automatically, when he pursued the boy into the bedroom, when he decided to take a shower, to take off the blooded clothes and to put on clean clothes, to wipe up the blood from the floor with the towel, to take the knife with him, to climb over the back fence when the police arrived, to put on his trousers at the fence and to throw the knife away in the drain in Bakshi Street.

[58] Consider what the Accused has told you, remind yourselves of counsel’s observations, examine the evidence carefully to see if you accept his line of defence, applying as always your common sense.

Please now retire to consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions
Solicitors for the Accused: Messrs O’Driscoll & Shivam