HKSAR v. FAREED AHMED

CACC 228/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 228 OF 2013

(ON APPEAL FROM HCCC NO. 114 OF 2012)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. The applicant, who chose to act in person albeit that earlier he had been granted legal aid and assigned leading counsel, sought leave to appeal against his conviction after trial on 20 June 2013 by Deputy High Court Judge Stuart-Moore and a jury of the murder of Ms Janet Gilson on 15 March 2011, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap. 212. We refused the application and said that we would give our reasons for so doing in due course. That, we do now.

Background

2. On 19 March 2011 the corpse of Ms Janet Gilson (“the deceased”) who was 64 years of age, was found beneath the sofa in the living room of her niece, Ms Julia Fareed, at G/F, 27 Tai Yuen Village, Yung Shue Wan, Lamma Island.  She was clad in pyjamas and a dressing gown.  There was a ligature around her neck, part of which rope was used to tie up her hands at her front.  A towel was stuffed into her mouth.  Her head was badly injured, her face was covered with bloodstained fluid and her nose was fractured.  Three of her ribs were fractured.  She died from lack of oxygen supply due to obstructions to her nose, mouth and neck.  The obstruction to blood supply through her neck might have hastened death.  It was the opinion of the pathologist, Dr Lai Sai Chak, who performed an autopsy on the deceased, and who had attended the scene of the discovery of the corpse on the evening of 19 March 2011, that the deceased had been dead between three and five days prior to that date.

3. The deceased, who had retired after lifelong service as an officer of the Salvation Army, had arrived in Hong Kong on 5 March 2011 to visit and stay with her niece and her niece’s daughter, Jasmine.  To accommodate her, Ms Julia Fareed, to whom the judge referred as Julia in his summing up, gave up her bedroom, while she slept on the sofa in the living room.  However, on 15 March 2011 the deceased went missing, as a result of which Julia made a report to the police that evening.

4. Having met and formed a relationship in the Maldives in 2003, when they were each employees of the same hotel, the applicant and Julia were married in Hong Kong on 11 June 2007.  Julia had come to live and work in Hong Kong in 2005.  At her invitation the applicant joined her in about March 2007.  Their daughter Jasmine was born on 8 March 2008.  They lived on Lamma Island.  However, their relationship deteriorated and they separated.  In May 2010, Julia began divorce proceedings and obtained a non-molestation order, which prevented the applicant from entering her home.  However, he continued to have regular access to Jasmine.  In February 2011, Julia moved into the premises at G/F 27, Tai Yuen Village, Lamma Island.

The trial

The prosecution case

5. The prosecution alleged that the deceased had been killed by the applicant, who had hidden the body beneath the sofa in the living room of Julia’s home.  The black base cover on the underside of the sofa had been cut open and the body was found resting in the cavity thereby created between the floor, the sofa’s wooden structural supports and a layer of yellow foam in the sofa.  The prosecution relied on the discovery of fibres and bloodstains on the clothing of the applicant, which they said were established to have come from the deceased.  Similarly, they relied on the discovery of fibres found on the deceased which they said were established to have come from the applicant.

6. In her testimony, Julia described the circumstances in the two days that led up to the disappearance of her aunt on 15 March 2011.  On 13 March 2011, she and the applicant were involved in an altercation, arising from the fact that the applicant had failed to return Jasmine to her as expected at about 5:30 p.m.  As a result, she had been forced to search and locate the two of them, notwithstanding his promise on the telephone that he was in the process of returning their daughter.  After Julia had retrieved Jasmine and they had returned home, the applicant came to her home saying that he had Jasmine’s water bottle and hat, asking to be allowed to come into the flat. She refused and the applicant became agitated, banging on a window of the premises and swearing.  As a result, Julia then called the police.  At some stage, the applicant said, “I will fucking come back and do something”.  The applicant was arrested.

7. On 14 March 2011, she and the applicant attended the Family Court, where the applicant was reprimanded by the judge and ordered to return in a week’s time.  Julia said that she and the applicant agreed that he would return to the Maldives and she would pay for the costs of his airfare.

8. Julia arranged for Jasmine to spend the night of 14 March 2011 with her helper, Karen Aliglebes.  She did so in order to get a better night’s sleep than she managed sleeping on the sofa.

9. On 15 March 2011, Julia left home at about 7:00 a.m. and, having walked to the ferry pier, boarded the 7:20 a.m. ferry.  As she left home, she heard the deceased coughing.  Whilst on board the ferry, at about 7:35 a.m. she received a telephone call from the applicant asking her to arrange for Karen to meet him at Tai Peng Village at 8:45 a.m. to collect a suitcase belonging to Julia from him.  The telephone records indicate that the call was received at 7:43 a.m. Julia said that immediately she made a call to the number from which the phone call originated, namely the Green Cottage Restaurant, but she was unable to speak to the applicant.

10. Then, at 7:48 a.m., Julia sent a text message to Karen asking her to meet the applicant at the suggested time and place to collect the suitcase, instructing her to wait until 9 a.m., but no longer.  Having been advised in a text message from Karen at 9 a.m. that the applicant had not kept the rendezvous, Julia suggested that she wait a further five minutes and then leave.  Shortly afterwards, Karen sent another message to Julia confirming that the applicant had not attended the rendezvous.  Later, at 9:06 a.m. Karen sent her a text message informing her that the applicant had contacted her by telephone asking her to meet him in the village to collect the suitcase.  After an exchange of text messages between them, Karen sent her a text message at 9:12 a.m. in which she responded to Julia’s enquiries as to the place of the proposed meeting and the telephone number which the applicant was using:

“ I’ll meet him in the village. the green cottage no.”

11. Karen testified that she had walked past the Green Cottage Restaurant on her way to the boarding house in which she resided.  In cross-examination, she denied that she had seen and spoken to the applicant outside the Green Cottage Restaurant.[1]  Having returned to her own home, she showered and went to Julia’s home, arriving at about/before 10:00 a.m.[2]  Each of the doors to the premises were locked and there was no sign that anything untoward had happened in the premises.  Amongst her household chores, she spent time ironing.  At one point, the applicant telephoned her and at his request, she emptied a pink / brown suitcase of its contents, so that it was ready for his collection.  However, she did not know whether or not he did collect the suitcase.

12. At 11:37 a.m., Julia received a message from a United Kingdom telephone number, with the prefix 44, belonging to the deceased:

“ Went to So Kwu Wan. Going to have some food here and then will take the ferry to Aberdeen. I will tell you when I come back later. Love, Jane.”

Julia confirmed that “Jane” was not the deceased’s name, which was Janet, and said that never before had the deceased been known to send a text message.

13. When the deceased failed to return to Julia’s home later that afternoon and early evening and, having failed to contact her by telephone, Julia waited for her unsuccessfully at the ferry pier.  Then, Julia reported the deceased missing.  Julia said that her aunt’s handbag and its contents, including keys to the premises, a wallet and her passport were missing.  Clothing that her aunt had put out, apparently to wear after having taken a shower, was lying on the bed.[3]

14. Although police officers made a cursory search of Julia’s home on 16 March 2011, they discovered nothing of significance.  However, on 19 March 2011 Julia noticed for the first time some red marks on the floor tiles near the sofa and a very unpleasant smell in the house.  Having called the police, they discovered the body of the deceased beneath the sofa.

Expert evidence

15. The prosecution relied on the evidence of Dr Tam Cheok On of his examination of fibres taken from the body of the deceased and the clothing in which she was clad when her body was found, on the one hand, and the clothing worn by the applicant at the time of his arrest at 6:25 p.m. on 19 March 2011.  Also, the prosecution relied on evidence of fibres, matching those on the deceased’s dressing gown, that had been found on various items of the applicant’s clothing.  As the judge reminded the jury, 27 fibres found on the body and clothing of the deceased matched fibres of the applicant’s clothing and five fibres found on the clothing of the applicant matched the fibres of the deceased’s dressing gown.  Also, the prosecution relied on nine fibres found on various items of the applicant’s clothing which matched the foam found inside the sofa.

16. In addition, the prosecution relied on the evidence of Dr Ho Siu Hong of his examination of the blood of the applicant and the deceased, together with his discovery of blood stains on the clothing of the applicant.  Of blood stains found on the applicant’s jacket, it was his opinion that there was a 1:324 quintillion chance that they came from a donor other than the deceased.  Further, it was his opinion that the three blood stains on the chest of the jacket formed an “impact pattern”, namely the projection ofblood caused by the impact of a direct blow on a blood bearing object.

The defence case

17. The applicant testified in the defence case, but did not call any other evidence.  During the trial, on 5 June 2013, the defence filed a Notice of Alibi, describing the various places in and around Yung Shue Wan at which the applicant had been at stipulated times between 6:00 a.m. and 4:00 p.m. on 15 March 2011.  The applicant gave evidence in support of that notice of alibi.  He had not been at Julia’s home during that period.  He knew nothing of and played no part in the killing of the deceased.

18. Of the days leading up to 15 March 2011, the applicant said that on Sunday 13 March, when Julia came to retrieve Jasmine from him at a restaurant in the late afternoon, she made it clear that she was unhappy.  She said, “You have nothing here, you should go home”.  He accepted that after they had left he had made his way to Julia’s home and that, in light of Julia’s refusal to allow Jasmine to come outside, he had become upset and kicked the door.  He denied threatening Julia, although he accepted that he had said “When I come back, I make big trouble”.  However, he said that he had no intention of doing anything.  He was taken away by the police.

19. On the next day, 14 March 2011, he and Julia appeared in the Family Court.  The applicant agreed that he was warned not go near Julia’s home and to return to court in a week’s time.  The applicant said that he agreed to Julia’s suggestion to buy him an airline ticket to return to the Maldives before the next court hearing.  She agreed to buy him a ticket to travel via India.

20. The applicant spent the night of 14/15 March 2011 at the home of a friend, Daniel.  The two of them left those premises together at about 6:00 a.m. on 15 March 2011 and parted company at the Lung Wah Seafood Restaurant on Main Street, as Daniel made his way to the ferry pier.  It was an admitted fact that the applicant had been seen at the nearby Man Kee Restaurant at 6:30 a.m. that morning.[4]  The applicant described his movements in detail, saying that he had gone to the Green Cottage Restaurant in Main Street at about 7:30 a.m. where, having bought a coffee, he had telephoned Julia using the restaurant’s landline telephone.  He agreed that, at his request, Julia agreed to arrange for Karen to meet him at Tai Peng Village at 8:45 a.m. to collect a black suitcase belonging to Julia which he wished to return to her.  In prospect of leaving Hong Kong, he wished to re-organise his possessions.  The suitcase in question was at his friend Loku’s at Tai Peng Village, not far from where Jasmine attended school, to which Karen took her in the morning.

21. The applicant left the Green Cottage Restaurant at about 8:15 a.m. and walked to his friend Ali’s house at Tai Wan New Village.  Three of his smaller bags were kept at those promises.  However, he was unable to rouse the attention of anyone in the premises.  At about 7:30 a.m., whilst at the Green Cottage Restaurant, he had called the mobile telephones of both Ali and Loku, but had been unable to get any response.  Earlier, he had been told by Loku not to visit his premises without telephoning first, because his girlfriend was pregnant and he did not wish her to be disturbed.  As a result, the applicant returned to the Green Cottage Restaurant, where he made several unsuccessful attempts to contact Karen’s mobile telephone before 9:00 a.m., before finally getting through to Karen.  He informed her that he was unable to collect the suitcases from either Ali or Loku.  She acknowledged the information, indicating that they could try later.

22. The applicant said that three or four minutes after that telephone conversation with Karen he saw and spoke to her outside the Green Cottage Restaurant, repeating the information as to his failure to obtain the suitcases from the homes of his friends.

23. The applicant said that after meeting Karen he had consumed a second breakfast in the sitting out place outside the Man Kee Restaurant, which he had bought from the nearby Tropicana Restaurant.  He left there about 9:30 a.m. and went to the Lamma Gourmet, in Main Street, where he recharged his mobile telephone.  Then, he returned to the Green Cottage Restaurant, where he used their landline telephone to make telephone calls to several people, including Geoffrey.  Next, at about 10:15 a.m., he bought seven cans of beer from a shop opposite the Deli Lamma, in Main Street. Having spoken by telephone at the Deli Lamma to Geoffrey, he met up with him and others at Jeremy’s house where he spent the rest of the day until 4:00 p.m.

24. The applicant said that later in the afternoon he had become wet from the rain as he walked to and from Loku’s home in his attempts to remove the suitcase from those premises.  It was an admitted fact that it was raining on Lamma Island at 4:00 p.m. on 15 March 2011[5] and that 0.5 mm of rain fell at the Lamma Island Police Post at that time.[6]  However, having been unable to obtain a trolley in order to move the suitcase, he was unsuccessful.  Eventually, he went to Ali’s house, where he changed his wet clothing into other clothes he had in his shoulder bag.  He placed the wet clothing including a jacket, shirt, jeans, a sweater and a belt on tables to dry.

25. The applicant accepted that at some stage on the afternoon of 15 March 2011 he had telephoned Karen and asked her to empty a suitcase at Julia’s home, which he described to her.  However, he did not collect that suitcase from Julia’s home until sometime on 16 March 2011.  On the same day, he collected two suitcases from Loku’s home which he brought to Daniel’s home.  Also, he retrieved his wet clothing, which had dried out, so that he could put them on.

26. Of the defence case in respect of the evidenceof fibres from the clothing of the applicant on the clothing and body of the deceased and of fibres from the clothing of the deceased on the clothing of the applicant, together with the presence of blood on the clothing of the applicant, the judge said:[7]

“ …the defence… have said, there are numerous ways in which those fibres could have got on to his clothes or that her fibres, Janet’s fibres, could have got on to his clothes, and while he does not know how the blood got there, he did leave his property out on a public table in an area that anyone could have gone to and it could have got on in some mischievous way.”

27. Subsequently, the judge added:[8]

“ As to the blood and the fibres, you know what the arguments are, that there has been transfer from Jasmine probably, from other people of the clothing of Janet’s. There has been transfer on to Janet via Jasmine or Julia and those clothes were left out overnight where anyone could have done something to them.”

28. As the judge pointed out in his summing up, the defence relied on the absence of any motive in the applicant to kill the deceased:[9]

“ …there was no motive here at all for the defendant to do this because prior to this time there had never been any bad feeling between Janet and himself.”

Notice of Motion

29. By a Notice of Motion filed with the court on 29 September 2014 the applicant sought leave to adduce fresh evidence at the hearing of his application for leave to appeal against conviction, in large part various witness statements and documents made available to the defence in unused material.

Grounds of appeal against conviction

30. In an attachment to Form XI, which the applicant filed with the court on 4 July 2013, by which he gave notice of his application for leave to appeal against conviction the applicant set out his grounds of appeal.  First, he complained that a juror, whom he identified by the position that the person occupied in the jury box, did not understand English properly.  Secondly, it is contended that the judge erred in refusing to allow the jury to watch a video in which the applicant was depicted at the Man Kee Restaurant at 06:30 a.m. on 15 March 2011.  Thirdly, he complained that he was not given the opportunity to describe his alibi at the preliminary hearings.  Fourthly, he contended the judge wrongly refused the jury’s request to see two witness statements made by the applicant to the police.  Fifthly, he suggested the judge did not mention all of the facts set out in the Admitted Facts.  Sixthly, he submitted that in the absence of the jury the judge had directed that some admitted facts be removed and not presented to the jury.

31. In various letters to the court, the applicant complained of incompetence of his legal representation at trial, including that:

(i) some of the photographs used as defence exhibits were different from the ones he had instructed them to use – 24 January 2014;

(ii) his lawyers had not adduced into evidence some of the statements made by potential witnesses, for example, Ali – 24 January 2014;

(iii) his lawyers took decisions in the conduct of the case without his consent, for example not calling expert evidence in the defence case in respect of DNA and fibres – 19 February 2014;

(iv) his lawyers failed to cross examine Julia in relation to most of the matters that he had suggested she be questioned about – 1 August 2014.

32. In a letter to the court dated 15 May 2014, the applicant identified six ‘Additional Grounds of Appeal against Conviction’.

(i) Julia’s evidence that she did not remember the black suitcase, bearing a label in her name, as being hers, was false,[10] as evidenced by various references in her out-of-court statements about suitcases.

(ii) Although the judge reminded the jury of the defence point in respect of the risk that the applicant would have run, if he was the murderer, in going to Julia’s home,[11] the judge did not clarify with Julia and Karen contrary statements made in their out-of-court statements as to Karen’s movements.

(iii) the applicant complained that the judge was wrong to state to the jury that on 13 March 2011, after Julia and Jasmine had returned home, that the applicant had gone there and demanded “to be let in”[12]. He had not demanded that he be let in, rather he asked that his daughter be let out.

(iv) The applicant complained that the judge misled the jury in telling them that on 5 March 2011 Karen had seen him going through various drawers in the premises, including Julia’s room.  However nothing was missing.  The applicant did not deny that he had done that.

(v) The applicant complained that in directing the jury that the bloodstains found on the applicant’s collar “had all 15 types of the defendants DNA which matched”, the judge had not directed them that the blood came from three persons.

(vi) The applicant complained that the police had failed to collect all the relevant evidence, including the CCTV footage from Deli Lamma.

The submissions of the respondent

33. Ms Anna Lai, for the respondent, objected to the application for leave to adduce fresh evidence at the hearing of the appeal.  She submitted that the conditions stipulated in section 83V of the Criminal Procedure Ordinance, Cap 221 which governs the receipt of such evidence, had not been met.

34. Ms Lai addressed all of the applicant’s complaints in the Grounds of Appeal against Conviction and submitted that they were of no merit.

A consideration of the submissions

Fresh evidence: incompetence of counsel

35. In his oral submissions, the applicant made it abundantly clear that his application for leave to adduce fresh evidence was intimately connected with his complaints in respect of those who represented him at trial, which complaints fall broadly under the rubric, “incompetence of counsel”.  In short, they had failed to call witnesses at trial relevant to different issues: first, in support of his alibi; secondly, in support of his explanation of his movements outside the period directly relevant to alibi; and thirdly, defence expert witnesses relevant to the prosecution evidence in respect of fibres, found on the applicant and the deceased, and blood found on the clothing of the applicant.

i)  Witnesses relevant to the applicant’s alibi

36. The applicant identified various witnesses, whose witness statements had been provided to the defence by the prosecution as ‘unused material’, in respect of whom he said he had given instructions they were to be called at trial:

(i) Ms Chan Ah Mui, a cleaner employed by the Environmental Hygiene Department, who said that she emptied dustbins in the immediate vicinity of Julia’s home on 15 March 2011;

(ii) Mr Ng Mun Kit, the proprietor of a shop operated next to Julia’s home, who said that he had heard voices speaking a foreign language in Julia’s home in the afternoon of 15 March 2011; 

(iii) Mr Chu Ka Kei, a waiter employed by the Man Kee Restaurant, who said that he had encountered the applicant at the restaurant on the morning of 15 March 2011, first at about 06:00 a.m., when the applicant asked for a cigarette, and later at about 07:00 a.m. when he told the applicant that the restaurant was not yet opened to sell curry; and

(iv) Ms So Yiu Fung, a waitress at the Green Cottage Restaurant who said that about a week prior to making a statement, dated 28 March 2011, at some time prior to noon she had allowed a man with “dark complexion” to use the restaurant telephone.

ii)  Other witnesses to the movements of the applicant on 15 March 2011

37. The applicant contended that he had instructed those representing him to take steps to call as witnesses a number of persons in whose company he had been at different times on 15 March 2011: including, Loku; Daniel; Ali; Bong; Geoffrey; Jeremy.

iii)  Expert evidence

38. Attached to the applicant’s letter to the court dated 24 November 2014 was a report from Dr Sheila Hamilton, dated 16 May 2013, which addressed the prospective evidence of the prosecution in relation to fibres and one from Dr Terence Lau, dated 31 May 2013, which addressed the prospective evidence of the prosecution in relation to blood, in particular DNA.  The report compiled by Dr Sheila Hamilton stated in terms that at a conference held on 14 May 2013, at which Mr David Khosa, Mr David Ravenscroft and Dr Sheila Hamilton were present :

“ It was agreed that (i) it was not in the defendant’s best interests for SH to give oral testimony at trial and (ii) there was no reason for her to prepare a formal statement/report.”

39. Of the prosecution expert’s examination of blood and his opinion, Dr Terence Lau said of the method used by Dr Ho that the test method is “very established” and “is not easy to challenge”.

40. The applicant contended that, notwithstanding the position taken by those two expert witnesses, in a conference prior to trial he had instructed his legal representatives specifically that he wished to call both Dr Sheila Hamilton and Dr Terence Lau. Those representing him failed to do so.

The evidence of Mr David Ravenscroft and Mr David Khosa

41. In light of these serious allegations made by the applicant against those representing him at trial, having explained to the applicant his rights of legal professional privilege and the applicant having said that he waived his privilege, we ordered that Mr DavidRavenscroft and Mr David Khosa give evidence before the court.

42. Mr Ravenscroft had been assigned as the solicitor and Mr David Khosa as the barrister to represent the applicant on 21 and 13 August 2012 respectively.  They replaced another solicitor and barrister who had been assigned earlier, but who had been discharged at the behest of the applicant.  Amongst the helpful documents that Mr Ravenscroft produced to the court was a schedule which set out in chronological order his conferences with the applicant.  Mr Ravenscroft held the first of 15 conferences he held with the applicant on 29 August 2012.  Mr Khosa was present at that conference, which was the first of six conferences which he had with the applicant prior to the commencement of the trial on 5 June 2013.

43. Mr Ravenscroft produced to the court a copy of the applicant’s “Proof of Evidence” signed copy by the applicant, dated 14 June 2013.  He explained that the applicant’s instructions had been reduced into writing over many months and had been subject to various changes as a result of their conferences.  It is readily apparent that those instructions were broadly consistent with the evidence adduced from the applicant at trial and with the defence case as presented by Mr Khosa in cross-examination of the witnesses for the prosecution.

44. Mr Ravenscroft and Mr Khosa confirmed that they had conveyed to the applicant the conclusion reached at the conference of 14 May 2011, namely that it was not in the interests of the applicant that Dr Sheila Hamilton testify at his trial.  They did so on 25 May 2013 and the applicant had confirmed that he accepted that advice.  Similarly, Mr Khosa said that he had conveyed to the applicant on 3 June 2013 the conclusion that it was not in his interest to call Dr Terence Lau as a witness at his trial.  Again, the applicant confirmed that he accepted that advice.  Mr Ravenscroft described the applicant as someone who had paid “great interest in his case and, quite rightly, was demanding”.  He denied that he had been instructed by the applicant specifically that the experts must be called as witnesses.  He acknowledged that, if he had received those instructions, it was the applicant’s right that the witnesses be called.  For his part, Mr Khosa denied that he received similar instructions or that the applicant said he must see the expert witnesses.

45. Mr Khosa testified that the applicant had provided those representing him with a list of the names of various potential witnesses he wished to be located at Yung Shue Wan.  He said that although Mr Geoff Lau, a clerk at Ravenscroft & Co had gone to Yung Shue Wan many times in an endeavour to locate those witnesses he had been able to find only one such person, but that the potential witness had said that he could not remember very much and was not willing to be a witness.  For his part, Mr Ravenscroft said that the only witness that they had managed to locate from those that the applicant had described was called ‘Bong’ and he was unwilling to be a witness.

46. Mr Khosa said that he did not have any recollection of discussing the calling of Ms Chan Ah Mui, Mr Ng Mun Kit, Mr Chu Ka Kei and Ms So Yiu Fung as witnesses.  He noted that such evidence as Mr Chu Ka Kei could have given was encompassed in the CCTV film anyway, which in its turn was reflected in an admitted fact that the applicant was present at Man Kee Restaurant at 6:30 a.m. that morning.

47. Mr Ravenscroft denied the applicant’s suggestion that he had told the applicant that the defence was not in a position to ask the court to issue a summons for witnesses for the defence.  Rather, he said that the issue was the availability and desirability of calling witnesses.

48. It is readily apparent from reading the witness statements of those four witnesses that they were not in a position to add anything of substance to the alibi advanced by the applicant at trial.  In her statement Ms Chan said that at about 09:00 a.m. and 1:00 p.m. she was emptying litter bins at a place which was near Julia’s home, but she had heard no sounds emerging from the premises.  Given that there was no dispute that the deceased had been killed inside the premises in the period between 07:00 a.m. and 10:00 a.m., her potential evidence was of little or no significance.  At most, it tended to suggest that the killing had not occurred at 09:00 a.m.  There was no dispute that at about 09:00 a.m. the applicant had called Karen’s telephone to say that he was in the village and that he would contact her later about the suitcase.  Karen conveyed the effect of that conversation to Julia in an SMS message at about 9:06 a.m.  By an SMS message sent by Karen to Julia at 09:12 a.m. the latter was informed that the applicant had been using the Green Cottage telephone number.  Similarly, Mr Ng Mun Kit, the storekeeper, spoke only of hearing a conversation in a foreign language from Julia’s premises in the afternoon.  Ms So Yiu Fung, the waitress at the Green Cottage Restaurant, was unable to remember the time or date of the occasion on which a dark skinned person had been permitted to use the telephone at the restaurant.

49. There were similar limitations to the usefulness of the evidence to the defence case of the other witnesses to which the applicant has made reference.  Their witness statements had been provided to the defence as unused material prior to the trial.

50. Loku, a Sri Lankan national, stated in his witness statement that he was a resident of Tai Ping Village and that he had permitted the applicant to store luggage at his brother’s home, where he also resided.  His assertion that on the morning of 15 March 2011, the applicant had called him on his telephone and advised him “that he would come 10 minutes later to collect his luggage” was contrary to the applicant’s testimony.  The applicant testified that, although he had called Loku’s mobile telephone at about 07:30 a.m. he had been unable to speak to Loku.[13]  Karen testified that in the telephone conversation which she had with the applicant at about 09:00 a.m. that morning, the applicant had explained why he had not kept their rendezvous, “…I was not able to come, because I was not able to contact Loco.”[14]  On the other hand, in his statement Loku confirmed the events on the afternoon of 15 March 2011, about which the applicant testified, namely that the applicant had twice visited Loku’s home in an endeavour to collect his luggage but had been unsuccessful, because of his need for a trolley to remove the luggage, and that it had been agreed that it would be collected the following day.

51. For his part, Ali Diop, a national of Senegal, said in his statement that, although the applicant had resided with him for about 3-4 weeks from mid-January 2011, when he had left he had removed his luggage.  However, he said that the applicant had left some luggage outside the premises.  He had not seen the applicant on either 14 or 15 March 2011.  On its face, clearly that account did not support the applicant’s testimony[15] that he had arranged with Ali on 14 March 2011 to collect luggage on 15 March 2011, as a result of which Ali was to leave a window open, so that those inside would be able to hear the applicant shout out, if necessary.

52. Although Jeremy Libang, a Filipino, said in his statement that he had seen the applicant between 13:00 and 14:00 on 15 March 2011, his description of their encounter was totally different from that to which the applicant had testified.  Jeremy said that he had encountered the applicant as he walked past his premises, whilst he was cleaning outside.  They had talked for about 10 minutes and the applicant had gone on his way.  By contrast, the applicant testified that by arrangement by telephone with Jeffrey he had gone to Jeremy’s house at about 11:00 a.m. and had been with the two of them and others drinking beer from that time until 4:00 p.m.[16]

53. Daniel Odame, a Ghanian, said in his statement that, at his request, he had allowed the applicant to spend the nights of 14 and 15 March 2011 at his home.  The applicant brought no luggage inside the premises, although he left three small bags outside the premises.  They left home together early in the morning of 15 March 2011.  On the morning of 16 March 2011 he had told the applicant that he could not stay in the premises anymore and directed him to remove the luggage that he had left outside those premises.  On his return from work that day he had noticed that a large black suitcase and one more bag had been added to the luggage collection outside his premises.

54. We have no hesitation in accepting the evidence of Mr Ravenscroft and Mr Khosa to the effect that they had pursued the applicant’s case with diligence and in giving him advice, which he had accepted, which they judged to be in his best interests.  The bare facts of the number of conferences that Mr Ravenscroft and Mr Khosa held with the applicant is eloquent testimony to their industry in representing the applicant, as is the fact that they had instructed independent experts to examine the strengths of the prosecution case in respect of the fibres found on the deceased and the applicant and the blood found on the applicant.  Their conclusion that it was not in the interests of the applicant to call them as witnesses at trial is supported strongly by the reports of Dr Sheila Lam and Dr Terence Lau.  Having heard the applicant at length in this hearing, we have no doubt whatsoever that had the case not been conducted in the way in which he had agreed that it be conducted, he would have raised the matter with the judge.  He did not do so at any stage.

55. Similarly, we are satisfied that the material which the applicant sought to adduce as fresh evidence in the hearing of the appeal was material that was available to the defence at trial, albeit that for the various reasons to which we have referred the evidence was not adduced at trial.  In the result, we were satisfied that the applicant had failed to provide a “reasonable explanation” for failing to adduce the evidence at trial as required by section 83V(2)(a) of the Criminal Procedure Ordinance, so that we refused his application to adduce that evidence at this hearing.

The juror’s ability in English

56. As Ms Lai submitted, there was no evidence as to the alleged inability in English of the juror.  Certainly, the matter was not raised with the judge at any stage of the trial.  There is no merit in this point.

The jury’s request to see CCTV

57. Again, as Ms Lai pointed out, the judge had directed the jury that, although it was not contained in the written Admitted Facts presented to the jury, it was an admitted fact nevertheless that the applicant had been seen at the Man Kee Restaurant at 6:30 a.m. on 15 March 2011.[17]  Ms Lai asked the court to note that the request of the jury, made in their written questions posed to the judge on 20 June 2013 that a video recording be played, was a request relating to the video recording of proceedings in the courtroom in which trial had been conducted.[18]  Needless to say, the judge refused that request.  In the hearing, the applicant indicated that, now that he understood the nature of the request by the jury and the judge’s response, he did not pursue the ground of appeal.  He was correct to take that approach.

The jury’s requests to see the out-of-court statements of the applicant

58. Ms Lai pointed out that the jury’s request to see the out-of-court statements of the applicant was also made in the written questions from the jury to the judge.  Those statements had not been adduced into evidence.  Accordingly, the judge advised the jury that they were not evidence and refused their request.[19]  He was clearly correct to do so.

The removal by the judge of admissions in the admitted facts

59. Again, as Ms Lai pointed out, the applicant’s complaint that the judge had removed admissions from the admitted facts without the knowledge of the jury is misconceived.  At the conclusion of the speech for the prosecution, the judge had enquired why it was that there were no admitted facts as to the presence of purple fibres from the deceased’s dressing gown on the clothing of the applicant.  Counsel for the prosecution acknowledged the omission, but pointed to the fact that evidence had been adduced in respect of the issue.  Of the absence of any admitted facts in relation to fibres from the carpet on the clothing of the applicant, counsel for the prosecution said that was omitted out of fairness to the applicant, it being considered that such a transfer could have readily occurred other than in the circumstances of the killing.

The black suitcase

60. Although Julia testified that she did not recognise the big black suitcase as being hers, in cross-examination she accepted that if it bore her name on a luggage tag, “it must be mine, of course.”[20]

13 March: the applicant’s demand to be let into Julia’s home

61. The applicant’s complaint that the judge was wrong to direct the jury that in the late afternoon and early evening of 13 March 2011 the applicant had demanded to be let in to Julia’s home is of no merit.  In her testimony, Julia said that the applicant became “very agitated…and was demanding to be let in”.[21]  As the judge made clear in his summing up[22], it was the applicant’s testimony that he had asked that Jasmine be allowed to come out of Julia’s home.

Miscellaneous points

62. We are satisfied that there is no merit at all in any of the other miscellaneous points taken by the applicant.

The forensic evidence

Fibres

63. As the judge reminded the jury in his summing up[23] it was proved by the Admitted Facts that 27 fibres recovered from the body of the deceased “agreed with” fibres recovered from the jacket (26) and shirt (1) of the applicant.  Further, nine fragments found on the clothing of the applicant[24] agreed in chemical composition and colour with the yellow sponge padding found inside the sofa and exposed by the hole cut in the black base material which permitted the sofa to rest on top of the body of the deceased.[25]  Finally, it was proved by the oral testimony of Dr Tam Cheok Ning, together with his report, that five fibres taken from the clothing of the applicant matched in “colour, fibre type, chemical composition and microscopic appearance” with fibres taken from the deceased’s dressing gown.[26]

64. Of the defence case, that the presence of fibres on either the deceased or the clothing or on the clothing of the applicant could be explained by cross-transfer from other objects the judge said:[27]

“ So it is accepted there can be secondary transfer, even transfer a third time. The expert told you about that. He told you that, from the jacket, of which many fibres were found on the body, he said that it was the sort of jacket which would commonly shed fibres.”

Blood

65. It was an Admitted Fact that the deceased was a possible donor of blood stains found on items of the applicant’s clothing (jacket, sweater, shirt and jeans) by Dr Ho Siu Tong and that the possibility of that belonging to a Caucasian other than the deceased was 1:324 quintillion.[28]  It was Dr Ho’s opinion that the blood stains on the sweater and shirt collar of the deceased were a mixture.  The possible source of the blood on the shirt collar was both the deceased and the applicant, whereas in respect of the sweater it was at least three persons.  The deceased was a possible donor of the blood on the jacket and the jeans in the probability set out above.[29]  Dr Ho said that the blood stains on the sleeves of the jacket were “contact bloodstains”, namely caused by direct contact with a blood bearing object.  By contrast, the three separate blood spots found on the chest area of the jacket were “impact bloodstains”, namely caused by receiving a direct blow from a blood bearing object which had flown through the air.  Commonly, those stains were caused by an attack, which caused injuries to a person.[30]

66. Of the defence case in respect of the bloodstained clothing of the applicant, the judge reminded the jury of the cross-examination of Dr Ho by Mr Khosa:

“ …you heard Mr Khosa suggest a possible scenario as to how the blood might get onto the jacket. The scenario was this: there had been some rain on 15 March and the jacket had been left out to dry, under an umbrella or two, and the possibility was that someone could come along and put blood on that jacket.

Mr Ho said there were two things about that. He said if the clothing was wet, he might not be able to get the DNA from it because it would easily degrade but, secondly, he said, the blood pattern would be diffused. Again, he gave an example: a bit as if you put dye on wet clothing, so you sort of smudge the edges. He said the possibility of that happening, as Mr Khosa had suggested, did not seem very high to him. On the other hand, he said, if the jacket was dry, then the person doing that would need a knowledge of how to create an impact stain because if blood had been dripped onto the jacket, it would leave larger stains and the person doing that fabrication would need to be very careful to create such tiny droplets.

In any event, he said, I think in re-examination to Miss Campbell-Moffat, I think he said that the person who did that would anyway need fresh blood because as soon as somebody is injured, with a wound, blood starts to clot and of course you need wet blood in order to make these sorts of spots.”

67. Clearly, the combined weight of the forensic evidence against the applicant was very compelling.  The defence case in respect of the circumstances in which bloodstains had come to be on his clothing, which in all probability had their origins in the deceased, was wholly fanciful.

False alibi: lies direction

68. At the request of the court, Ms Lai addressed the issue of whether or not the judge’s directions to the jury as to the approach they were to take if they were to determine that the applicant had advanced a false alibi were appropriate and sufficient.

69. In his summing up, having directed the jury that, “It is the prosecution who must disprove the alibi by the evidence that they have called”, the judge said:[31]

“ So even if you concluded that the alibi was false, of him being somewhere else when the murder was committed, that does not inevitably result in a conviction. It is certainly something you can take into account but you do have to bear in mind this: sometimes people try to strengthen or bolster up their case by making up a false story even though the real story is one of innocence. So be careful always with that sort of story. People can sometimes try to make it better by putting forward a false story. The false story, if it was one, does not inevitably result in a conviction. So let us look at the account that he did give you so that we can take it into account.”

Clearly, that direction was an ‘abbreviated direction’ in respect of lies.

70. In the judgment of this court in HKSAR v Huang Song Fu,[32]it was determined that, where it was appropriate to give a jury a ‘lies’ direction, only one standard direction was to be used.  In that case, the applicant had been convicted after trial ofmanufacturing dangerous drugs together with others.  He had been arrested as he emerged from the premises in which the dangerous drugs had been found together with the equipment for their manufacture.  In an out-of-court statement, which was consistent with his testimony at trial, the applicant gave an innocent explanation for his presence on the premises.  The judge gave the jury an abbreviated ‘lies’ direction, namely a direction that stopped short of telling the jury, “It is only if you are sure that he did not lie for an innocent reason that his lies can be regarded by you as evidence which supports the prosecution’s case.”

71. In the judgment of this court, Stuart-Moore VP noted that in the judgment of Chan PJ [33] in the court of Final Appeal in Yuen Kwai Choi v HKSAR the suggested Specimen Direction in respect of lies, set out in the judgment of this court in HKSAR v Mo Shiu Shing[34], had been cited with approval, namely:

“ It is alleged (admitted) that the defendant lied to the police (or X) in saying (that ….) and you are entitled to consider whether this supports the case brought against him by the prosecution. In this regard you should consider two questions:

1. You must decide whether the defendant did in fact tell (these) lies. If you are not sure he did, ignore the matter altogether. If you are sure, then next consider:

2. Why did the defendant lie? The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, and they may possibly be ‘innocent’ ones in the sense that they do not give any indication of guilt, for example lies to bolster a true defence, to protect somebody else, to conceal some disgraceful conduct (other than) (short of) the commission of the offence, or out of panic or confusion.

If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them. It is only if you are sure that he did not lie for an ‘innocent’ reason that his lies can be regarded by you as evidence which supports the prosecution’s case.” (Emphasis supplied.)

72. Stuart-Moore VP went on to say:[35]

“ The court in HKSAR v Mo Shiu-shing (at page 168 F-H) had, as we have said, also left open an abbreviated direction, falling short of the full direction set out in the previous paragraph in that it did not include words to the effect that if the jury were sure that the defendant had not lied for an innocent reason, his lies could be regarded by them as evidence which supported the prosecution case.[36] We have concluded in the light of the submissions made in this case that whenever directing juries on lies, judges should in future give the full direction (set out in paragraph 23 above). To this extent, therefore, the judgment in Mo Shiu-shing’s case must be modified and although an omission to direct the jury on lies in full will by no means necessarily be fatal to a summing up, the full direction should ensure that there can be no suggestion that the proper approach has not been taken by a jury when they are considering how to regard a lie that has not been given for an innocent reason.

Finally, having regard to this modification, we need to deal with one further passage in Mo Shiu-shing which (at page 169 F-H) reads:

“ We emphasise again what Mortimer JA said in R v Ng Chi Wai & Another (unrep., Crim App No 346 of 1996, [1997] HKLY 223). The circumstances in which a direction that a lie may support the prosecution’s case will be rare but may be appropriate where:

(1) a defendant has relied upon an alibi; and

(2) the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted… (Emphasis added)” ”

73. In the result, Stuart-Moore VP concluded:[37]

“ It follows from the conclusions we have already expressed and from Chan PJ’s judgment in Yuen Kwai-choi v HKSAR that as there will only be one standard direction on lies and that it is for the judge to decide after consultation with counsel when such a direction needs to be given, the “rare” direction to be used in cases where an alibi has been called or where a lie is used in an independent corroborative sense will now be one and the same direction as in all other cases where a ‘lies’ direction is considered to be appropriate.”

74. Although the judge had given the jury an ‘abbreviated’ lies direction in respect of their approach, if they were to determine that the applicant’s alibi was false, he did not identify any particular evidence from which they might reach that conclusion.  One obvious basis was an acceptance of the evidence of Karen that she had not met and had a conversation with the applicant outside the Green Cottage Restaurant at about 09:15 a.m. on 15 March 2011, as she made her way from Tai Peng Village to her own home and thence to Julia’s home.  Such a finding would be a rejection of the evidence of the applicant to the contrary.

75. Whilst the prosecution submissions made in the closing speech were to the effect that the applicant was the murderer, and therefore present at Julia’s home at some stage between 07:00 a.m. and 10:00 a.m. on 15 March 2011, counsel did not suggest or place any reliance on an allegation that the applicant had put forward a false alibi.  Indeed, Ms Campbell-Moffat made no reference at all to the conflicting evidence from Karen, on the one hand, and the applicant, on the other hand, in respect of the meeting that the applicant alleged to have taken place, which Karen denied, in the immediate vicinity of the Green Cottage Restaurant at about 09:15 a.m. on 15 March 2011.  Similarly, in cross-examination of the applicant in respect of his evidence of that meeting, Ms Campbell-Moffat merely reminded the applicant that Karen “doesn’t agree”.

76. On our enquiry, she having listened to the audio tape of the hearing, Ms Lai informed the court that there was no discussion between the judge and counsel prior to the summing up as to the directions of law to be given to the jury in the summing up.

77. In all those circumstances, the prosecution not having relied in any way on any contention that the applicant had put forward a false alibi but in which they had asserted that he was present in Julia’s house at the material time and his denial of killing the deceased was to be disbelieved, we are satisfied that it was not necessary to give the jury any lies direction.  Rather, all that was required was the appropriate directions as to credibility, together with the requisite directions in respect of the burden of proof.  Needless to say, the judge had given the jury those directions:[38]

“ It is for you to decide whether or not you believe the evidence of the defendant because if the account which he gives to you is or may be true, then that is an end of this allegation. He is to be acquitted if that is the case.

But even if you were not to believe his account and you rejected it, even if that were so, that does not relieve the prosecution of its burden of proving the case against him.  So you go back to the evidence called by the prosecution to decide whether they have, on their evidence, proved the case against him.”

78. Although we are satisfied that, in the circumstances of this case, it was not necessary for the judge to give the jury any lies direction in respect of the issue of a false alibi, we are satisfied that the fact that he did give the jury an ‘abbreviated’ lies direction was not prejudicial to the defence, albeit that it fell foul of the sweeping prescription that “there will be only one standard direction on lies”.  Significantly, the direction stopped short of directing the jury that, if they concluded the applicant had advanced a false alibi other than for “innocent” reasons, his lies could be regarded as evidence which supports the prosecution case.

79. Having directed the jury that if they concluded that the applicant had put forward a false alibi that, “is certainly something you can take into account”, he said:[39]

“ So let us look at the account he did give you so that we can take it into account.”

In the following 12 pages of the Appeal Bundle the judge summarised the applicant’s testimony.  Clearly, in doing so the judge focused the jury’s attention on the issue of the applicant’s credibility.  The jury was entitled to have regard to the fact, if they found it to be the case, that the applicant had put forward a false alibi in having regard to his credibility.

Conclusion

80. For the reasons set out above, we were satisfied that there were no merits in the applicant’s grounds of appeal against conviction. Accordingly, we dismissed the application for leave to appeal against conviction.

[1] Appeal Bundle, page 252 N-T.

[2] Appeal Bundle, page 245 F.

[3] Appeal Bundle, page 195 C-H.

[4] Appeal Bundle, page 60 R-U.

[5] Appeal Bundle, page 12.

[6] Exhibit D3.

[7] Appeal Bundle, page 25 D-G.

[8] Appeal Bundle, page 28 H-K.

[9] Appeal Bundle, page 24 H-J.

[10] Appeal Bundle, page 41 Q-S.

[11] Appeal Bundle, pages 27 O - 28 G.

[12] Appeal Bundle, page 33 O.

[13] Transcript of the Applicant’s evidence, pages 31 N - 32 K.

[14] Appeal Bundle, page 244 L.

[15] Transcript of the Applicant’s evidence, page 33 G-S.

[16] Transcript of the Applicant’s evidence, page 37 D-P.

[17] Appeal Bundle, pages 29 N-R; 60 R.

[18] Appeal Bundle, pages 264 M - 265 B.

[19] Appeal Bundle, pages 265 H - 266 B.

[20] Appeal Bundle, page 230 T-U.

[21] Appeal Bundle, page 181 C-D.

[22] Appeal Bundle, page 59 C-D: “He said, “Please let Jasmine come out and when she finished crying, she can go back in, no problem”.”

[23] Appeal Bundle, page 26 O-P.

[24] Appeal Bundle, Admitted Facts; pages 9-10, paragraph 15 - jacket, shirt, sweater, jeans and belt.

[25] Appeal Bundle, pages 26 T - 27A.

[26] Appeal Bundle, page 26 Q-S.

[27] Appeal Bundle, page 46 H-J

[28] Appeal Bundle, Admitted Facts; page 10, paragraph 17.

[29] Appeal Bundle, pages 88-90.

[30] Appeal Bundle, pages 91-93.

[31] Appeal Bundle, page 54 O-U.

[32] HKSAR v Huang Song Fu [2006] 3 HKC 319.

[33] Yuen Kwai Choi v HKSAR [2003] 2 HKC 337, paragraph 39.

[34] HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155 at 169 B-F.

[35] HKSAR v Huang Song Fu; pages 327 H - 328 B, paragraph 24.

[36] HKSAR v Mo Shiu Shing, page 168 E-J:

“  (1)  In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe.  In such circumstances, no more needs to be said.  [See: R v Ng Chi-wai (above)]

(2)  Where there is a danger that the jury may believe that lying goes to proof of guilt, usually because the prosecutor has alleged that the defendant has lied and has addressed the jury upon the basis that the lie is supportive of the prosecution’s case, a twofold warning should be given to the effect that:

(a) lies can never prove guilt in themselves; and

(b) that persons may lie for reasons other than guilt. 

This last direction will need to be accompanied by the possible ‘innocent’ reasons that are usually given as examples in a standard direction as to why a person facing an allegation of crime might lie. [See: Burge and Pegg (above)].

(3)  If, following discussion with counsel before the summing up and keeping in mind the guidance in Burge and Pegg (above) and Ng Chi-wai (above), it appears to the judge to be necessary for the jury to be directed in full upon lies, the judge will need to give a direction along the general lines we now propose.”

[37] HKSAR v Huang Song Fu; page 328 E-F, paragraph 26.

[38] Appeal Bundle, pages 53 S - 54 D.

[39] Appeal Bundle, page 54 T-U.