HKSAR v. AZAD MOHAMMAD FARHAN

FAMC No. 42 of 2017

[2018] HKCFA 50

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 173 OF 2015)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal after hearing counsel for the applicant and indicated that we would provide our reasons for doing so in due course.  These are our reasons.

2.  This application arises out of the applicant’s conviction, on 13 May 2015, after trial before Deputy High Court Judge Beeson and a jury[1] on counts of rape, non-consensual buggery and robbery.  The case involved a serious random case of sexual assault on the victim, a mature woman of 53 years of age, as she was going home late at night after work.  In short, the victim was strong-armed by her assailant in the street and taken to the staircase of a building where she was raped, buggered and robbed.  The applicant, an asylum seeker, was identified as the assailant, primarily through DNA evidence of semen, which was mixed with blood of the victim at the scene.  His defence was one of alibi: he said he was in his room at Chungking Mansions at the time of the offence.  In the face of the DNA evidence, his (somewhat bold) case was that he had been drinking with friends earlier in the evening and, after they had been looking at pornographic images, he had gone to the staircase in question and masturbated: hence, his DNA was found there.

3.  At trial, the applicant was convicted unanimously on all charges.  His application to the Court of Appeal for leave to appeal against conviction was dismissed, although his appeal against sentence was allowed and his original sentences varied so that his overall sentence of imprisonment was reduced from 18 years to 17 years.[2] The Court of Appeal refused the applicant’s application for a certificate for leave to appeal to the Court of Final Appeal on 16 October 2017.

4.  After the applicant issued an Application for Leave to Appeal dated 14 November 2017 seeking leave to appeal to this Court, the Registrar of the Court of Final Appeal issued a summons under Rule 7(1) of the Court of Final Appeal Rules[3] calling on the applicant to show cause why the application should not be dismissed.

5.  On 12 April 2018, the applicant (i) sought to amend the Application for Leave to Appeal, and (ii) issued a Notice of Motion for leave to adduce fresh evidence in support of the application for leave to appeal.  Those applications were supported by submissions filed on behalf of the applicant in response to the summons issued by the Registrar under Rule 7(1).

6.  Having considered those submissions, by order dated 20 September 2018, the Appeal Committee (following the procedure adopted in HKSAR v Law Yat Ting (2015) 18 HKCFAR 400 at [8] to [10]):

(1) Granted the applicant leave to amend the Application for Leave to Appeal in terms of the draft Amended Application;

(2) Dismissed the application for leave to appeal under Rule 7(2) of the Rules in respect of Grounds 1(a), 1(b), 2(a), 2(b), 4 and 5 of the Amended Application for Leave to Appeal with no order as to costs;

(3) Directed the Notice of Motion for leave to adduce fresh evidence be listed for an oral hearing; and

(4) Directed that the Amended Application for Leave to Appeal, confined to the first sentence of Ground 3 (namely, that the applicant “suffered a grave and substantial injustice because there is doubt whether the Jury fully and properly heard, comprehended and received the Learned Judge’s directions during the summing-up because large parts could not be heard and the rest was barely audible, and was incomprehensible/unintelligible”) be listed for an oral hearing.

7.  Accordingly, the hearing before us was limited to the application to adduce fresh evidence and the application for leave to appeal based on the contention that the Judge’s summing-up to the jury was not audible or intelligible.

8.  It is relevant to note at the outset that, before the Court of Appeal, ground 1 of the intended grounds of appeal against conviction was that the applicant did not have a fair trial because “most, or at least a large part of the Summing-up was not audible”.[4] For the reasons given in the CA Judgment at [45] to [51], this ground of appeal was rejected.

9.  It is relevant to note that, in support of ground 1 of the appeal in the Court of Appeal, the applicant’s then counsel applied for leave to adduce fresh evidence “from her instructing solicitor’s interpreter, who had been present during the summing up in the trial”.  In the face of that application, the Court of Appeal ruled:

“In response to the enquiry of the Court, as to why the application had not been made earlier, Ms Panesar said simply that it was not a matter that she had considered. It is to be noted that ground 1 had been advanced in the Amended Perfected Grounds of Appeal against Conviction and Sentence, written submissions and the Reply which had been filed with the Court on 21 December 2015, 29 April and 23 May 2016 respectively. We rejected the application.”[5]

10.  Since that hearing, the applicant sought to reinforce that ground of appeal by seeking leave to adduce fresh evidence in support in the form of an expert report on the audibility and comprehensibility of the Judge’s summing-up.  This report is entitled “Expert Opinion on Audibility and Comprehensibility” and its author is Mr Malcolm Basil I’Anson.

11.  By virtue of section 83V(1) of the Criminal Procedure Ordinance (Cap.221),[6] the Court of Final Appeal has power to receive fresh evidence in a criminal appeal.  The conditions under which such evidence will be received are set out in section 83V(2), namely, the Court shall:

“unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if –

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

12.  We were not persuaded that the report of Mr I’Anson satisfies those requirements for the admission of fresh evidence on an appeal.  In light of the history of the pursuit of this ground of appeal described above, there is no explanation why this evidence could not have been sought to be presented to the Court of Appeal.  That factor alone weighs against the applicant’s application to adduce fresh evidence before this Court.  However, there are additionally serious questions as to whether the proposed expert opinion would satisfy the other requirements of importance and credibility.  There are at least questions over the putative expert’s qualifications, he is arguably not wholly independent and it is not at all clear why an expert should be allowed to opine on the comprehensibility (as distinct from the audibility) of a summing-up.  In any event, it is doubtful whether evidence from this putative expert was an appropriate source of evidence to support this ground of appeal.  Absent evidence of any difficulties raised by a juror during the trial, a most obvious source of relevant evidence would instead have been from the person who transcribed the recording of the Judge’s summing-up or another person present in the courtroom during the summing-up.  For these reasons, we dismissed the Notice of Motion dated 12 April 2018 for leave to adduce fresh evidence.

13.  Turning to the substance of the proposed ground of appeal based on substantial and grave injustice, it would almost without exception, of course, be fatal to the fairness of a trial if the trial judge’s summing-up was not audible by or comprehensible to the jury.  As a matter of common sense, however, one would normally expect a conscientious member of a jury to indicate immediately if the judge’s address was not audible to him or her.  Even if that were not so, it would be the duty of both counsel for the prosecution and the defendant to draw to the judge’s attention any perceived inaudibility in the summing-up.  So far as comprehensibility is concerned, that is a matter that would normally be expected to be assessed by an appeal court by reference to the transcript of the summing-up although, again, if the jury had any difficulties in understanding the judge, one would expect them to raise questions.

14.  In the present case, the Judge did apparently use a microphone and amplifier in order to assist her to address the jury.  The transcript of the summing-up is clear and, as the Appeal Committee’s ruling on the Rule 7(1) summons shows, discloses no arguable ground of appeal based on any misdirection by the Judge.  Obviously, a transcript cannot show its level of audibility or comprehensibility to the jury but there is no evidence before us that the person who transcribed the summing-up (and who signed her transcript) had any difficulty in transcribing it.  More significantly, about half way through the two-hour summing-up, counsel appearing at the trial for the defendant had this exchange with the Judge:

“Mrs Panesar: My Lady, may I be so bold as to interrupt your summing-up at this stage. I’m having some difficulty hearing your Ladyship speak.

Court: I’m sorry.

Mrs Panesar: I wonder whether I may ask your Ladyship just to speak a little bit louder.

Court: I’m sorry.

Mrs Panesar: I do apologise. I do apologise to disturb the flow of your summing-up.

Court: Can you hear me? And you could hear me up to now? I’ll try and do better.

Mrs Panesar: I’m grateful, my Lady.”

15.  The Judge’s inquiry as to whether she could be heard was directed to the jury and it was common ground that, in reply, the forelady and one or two other jurors nodded affirmatively.  The Judge had in fact already asked the jurors at the outset of the trial to indicate if they were to have any difficulty in hearing her.  No question from or intervention by the jury in this regard ensued.

16.  In the circumstances, we were quite satisfied that there was no merit in the proposed ground of appeal that the Judge’s summing-up was not audible or comprehensible to the jury and accordingly we dismissed the application for leave to appeal.