HKSAR v. HABIB AHMED

CACC 400/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 400 OF 2007

(ON APPEAL FROM HCCC NO. 100 of 2007)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  Habib Ahmed (the appellant), was convicted by a jury on 23 October 2007 of murder and sentenced on the same day by Wright J to life imprisonment. This now comes before us as an application for leave to appeal against conviction.  Having regard to the 1^st ground of appeal, we shall give leave and, accordingly, we have treated the hearing as the appeal.

2.  The murder charge was a joint count alleging against the appellant and Ibrar Ul Hassan (D2) that on 31 October 2006, on the Ground Floor of Tung Cheong Factory Building at 177-181, Yeung Uk Road, Tsuen Wan, New Territories, they murdered Malik Hussain (the deceased).

3.  Ultimately, the jury acquitted D2 although a great deal of the evidence was common to both, including undisputed evidence that D2 had purchased the murder weapon, a sledgehammer, and was present at the time of the killing.  In these somewhat unusual circumstances, it is necessary, therefore, to deal with the case for the prosecution in a little depth before turning to the grounds of appeal.

General outline of the prosecution’s case

4.  The deceased was the elder brother of the appellant who had been living at the appellant’s home with the appellant’s wife and their 2-month old child.  The prosecution alleged that because the appellant believed that the deceased had tried to rape his wife at home, the appellant engaged the services of D2, who was unknown to the deceased, to kill the deceased. 

5.  The appellant told the police that the attempted rape had occurred about ten days before the killing.  He described how he had seen “reddish” marks on his wife’s shoulder and legs as if she had been pulled and how she was crying when she complained to him that the deceased had tried to have sexual intercourse with her.  The appellant also remembered that his wife had told him that she had gone into the kitchen and had fetched a chopper, threatening to kill the deceased if he came near to her.  The appellant said he had become very upset by this and spoke to his brother about it.

6.  The appellant also told the police that just prior to the incident between the deceased and the appellant’s wife, the appellant had met D2.  The appellant said that when he made his way to the mosque, D2 would sometimes ask him for money.  He found out that D2 needed money for drugs.  Then, after the attempted rape alleged by the appellant’s wife, the appellant said to D2 that he would give him $2,000 “to scare [his] brother and threaten him”.  He went on to say that he told D2 only to “threaten and scare and slap [the deceased] slightly”.

7.  In the event, the deceased was physically attacked by either the appellant or by D2 each of whom, when interviewed by the police, blamed the other for carrying out the attack.  The killing was carried out with a sledgehammer inside the factory premises where the deceased worked as a night watchman.  The deceased died as a result of severe head injuries and the bleeding associated with them. 

8.  The prosecution’s allegation, both in opening and in closing, was that both defendants had entered the premises at the time of the killing.  However, whether or not the appellant and D2 were both physically present at the time the fatal blows were struck, the evidence produced by the prosecution included ample material to show that they were acting together in a joint enterprise to attack the deceased, depending on the view taken of that material by the jury.  It followed, therefore, that as the appellant and D2 had each denied making a physical attack on the deceased and both denied being a party to murder, the prosecution could not completely exclude the possibility that the jury might find itself unable to reject one or other version of events and give the benefit of the doubt to one or both of the defendants in their charge if such a doubt existed.  As the judge rightly pointed out, there were “a lot of permutations” for the jury to consider.

9.  The deceased was last seen alive by a lorry driver at about 10.30 p.m. on 30 October 2006.  A record of the deceased’s patrol at 11 p.m. was found but there was no such report for the next patrol which the deceased should have performed at 3.00 a.m. on 31 October 2006.

10.  The body of the deceased was found by the day-shift watchman, Mr Sun Shiu-kei (PW1), during the morning of 31 October 2006.  The deceased was lying face up on the floor near a folding bed.  The deceased’s head was covered with a piece of cloth and there was a pool of blood near the head as graphically illustrated in the photographs taken of the scene.  The premises were locked up when PW1 arrived and there were no signs of any tampering with the lock.

11.  A sledgehammer (Exhibit P1), stained with the deceased’s blood, weighing 3.58 kilogrammes and measuring 81 centimetres in length, was found in a flowerbed a short distance from the murder scene.  The sledgehammer was identified by Mr Cheung Tak-kin (PW4) of Tai Cheong Hardware Shop as the one he had sold to an Indian or Pakistani customer on either a Sunday or a public holiday at the end of October 2006. As PW4 had been unable to understand the language spoken by the customer, a call was made by the customer from PW4’s shop on the customer’s mobile telephone.  PW4 was then handed the telephone and was requested to speak to someone on the line.  A male voice informed PW4 that a 5-kilogramme hammer was required.  The person on the other end of the telephone spoke Cantonese with an accent.

12.  After this telephone call, PW4 gave a 12-pound hammer to the customer who then indicated by various gestures that he needed a lighter one.  Eventually the customer purchased an 8-pound sledgehammer and a pair of gloves.  PW4 noticed that the customer had some abrasions on his hand.  Photographs of D2 taken after his arrest almost three weeks later also showed that he had pronounced injuries on his right hand and PW10, who lived at the same address as D2, had noticed injuries on D2’s hands on 31 October 2006.  At trial, there was no dispute that D2 had purchased the sledgehammer.

13.  Telephone records indicated that calls were made from D2’s mobile telephone to D1’s mobile telephone at 1.46 p.m. (46 seconds) and about 3.04 p.m. (1 minute 25 seconds), respectively, on 30 October 2006 which was a public holiday.  The prosecution alleged that in the last of these calls D2 had telephoned the appellant, who was the only other person involved in what was effectively a planned revenge attack on the deceased, in order to get him to explain to PW4 in Cantonese what he was wanting to buy.

14.  The post mortem conducted by Dr Chiao Wing-fu (PW8), the forensic pathologist, revealed, in Dr Chiao’s opinion, that the deceased’s death from the head injuries he had received occurred at about 3 a.m. on 31 October 2006.

15.  Senior Government Chemist, Mr Cheung Kwok-keung (PW11), was called to give expert evidence about his analysis of the pattern of the bloodstaining found at the crime scene.  In his report, he concluded that “ ... the deceased was probably asleep on the folding bed when he received a sudden blunt force attack to his head from the right, probably incapacitated and relocated ... It was possible that the deceased had been lifted up and relocated [on] the floor by more than one person.”

16.  The prosecution, as we have indicated, suggested that both defendants were present at the time of the killing and had helped each other to lift the deceased’s body onto the floor.  However, after objection to the passage in PW11’s report that “more than one person” may have been involved in relocating the deceased’s body, the judge ruled, in PW11’s presence, that this phrase should be deleted from his testimony when the jury returned to court. 

17.  In his testimony, PW11 stated that the deceased was probably incapacitated by a heavy blow to his head when he was lying on the bed.  The small size of the blood droplets found amongst the bloodstains suggested “high energy impact”.  PW11 explained why it was unlikely that the deceased’s body, which was of average build (weighing 68 kilogrammes and measuring 167 centimetres in height) had been simply rolled off the bed or dragged out of the bed by pulling the feet.  This was because the bloodstains were inconsistent with this happening and, furthermore, because there had been no significant displacement of the blanket on the bed.  In PW11’s opinion, it was likely, therefore, that the deceased had been lifted up bodily and relocated on the floor.  There, the deceased’s head was found to have been flattened and showed large open wounds.  The severe damage to the head appeared to have been caused by heavy blows delivered by a large, blunt object.

18.  Later, following D2’s arrest on 17 November 2006, the DNA of both the deceased and D2 were found on the front side of a green vest seized from D2’s home address.  In his video-recorded interview, D2 admitted that he had been wearing this green vest at the time of the incident.  In short, he had stated that while waiting outside the factory as he had been told to do by the appellant, he heard a sound which made him go inside and there he saw the appellant striking the deceased.

19.  The prosecution produced one police notebook entry, three video records of interview and a case reconstruction to record the appellant’s account of his involvement in an attack on the deceased.  In large measure, he blamed D2 for what had occurred.

20.  When the appellant was arrested on 1 November 2006, he stated:

“My elder brother interfered with my wife; I intended to get someone to give him a slap.  But I did not expect that it would turn out to be such a big matter.”

21.  In his first interview, the appellant stated that the deceased had tried to rape his wife ten days beforehand.  Then, three days later, he had asked a friend (D2) to “slap” his brother for a reward of $2,000.  He asked D2 to slap his brother two or three times just to scare or intimidate him.  In order to accomplish his purpose, the appellant had a duplicate key made to fit the lock to the small gate at the factory premises where his brother worked.  He had taken his brother’s key without his brother’s knowledge.

22.  The appellant went on to say that, on 30 October 2006, D2 called him and asked if he had the key.  In the evening they met and, in the early hours of 31 October 2006, they set off together, reaching the factory premises at about 2 a.m.  The appellant said that he opened the gate using the duplicate key and D2 went inside.  D2 put something heavy on the left side of his body which D2 told him was a stick.   He did not know that D2 had a weapon made of iron with him.  When D2 came out of the premises, D2 said that the appellant’s brother had been sleeping when he “slapped” him.  Then, when his brother had tried to hit him by getting up, D2 hit his brother on the head with the stick.  The appellant said that D2 went on to say that his brother had fallen unconscious and would get up in the morning. 

23.  Afterwards, the appellant stated that he separated from D2 and went back home.  He was recorded on closed circuit television (CCTV) as arriving at his home address at 4.00 a.m. and this accorded with the appellant’s account as to the time he returned home.  He did not, he said, know that D2 had killed his brother.  In the morning, he said that he gave D2 his mobile phone which was worth $1,800.  At D2’s request, he also gave him the key and the clothes he had worn that night.  The police confirmed that the distinctive clothing being worn by the appellant on his return home (as seen in the CCTV pictures) could not be found at his address.

24.  In his second interview, the appellant gave a similar account of events, adding that he had told D2 repeatedly that D2 should not hit his brother severely but should only hit him on his hands and feet and should slap him to scare him.  D2 told the appellant that he would hit his brother on the hands and feet only and would slap him on the face.  D2 had never met the appellant’s brother before.  The appellant said that that night, when they met, D2 was carrying a wooden stick when he walked into his brother’s workplace.  D2 told him that if his brother got up to hit him, he would use the stick to hit his brother once or twice.  The appellant said that he did not go inside the premises because his brother would wake up.  D2 stayed inside the premises for about five minutes and, when he came out, he told the appellant: “He will not say anything, now he will not bother you.”  The appellant said that at that time D2 was either drunk or under the influence of cannabis.  When he came out, D2 had the wooden stick.  D2 clasped the wooden stick under his arm and left. 

25.  The appellant also told the police that the Koran provided punishment for anyone who committed the kind of act done by his brother to his wife. 

26.  In the third video-recorded interview with the appellant, he said that the name by which he knew D2 was ‘Charlie’ but he usually just called him ‘Friend’.

27.  There are aspects of the case for the prosecution to which we shall later need to return in greater detail having regard to the nature of the 1^st ground of appeal.

Defence case

28.  Leaving aside the large number of contradictions and inconsistencies in his testimony, the appellant, a construction site worker, gave evidence which generally confirmed the account he had given to the police in that he had simply employed D2 to slap and threaten the deceased but not to kill him or to cause him really serious bodily harm.  He had taken the deceased’s key in order to duplicate it so that D2 would be able to get into the deceased’s workplace.  The appellant denied any knowledge of D2 carrying a sledgehammer, or of D2’s purchase of the sledgehammer, and he maintained that he had not himself, at any stage, gone inside the factory premises.  The appellant admitted lying to the police about the disappearance of the clothes he had worn on the night of the killing by telling them initially that he had thrown them away.  This was because, he said, D2 had threatened him not to tell anyone what had become of his clothes.  In cross-examination, the appellant said that the appropriate punishment for the deceased’s conduct towards his (the appellant’s) wife was, according to the law of the Koran, that the deceased should be stoned to death.

29.  The appellant’s uncle was also called as a witness for the defence.  D2 did not testify and no witnesses were called on his behalf.

30.  When the appellant’s counsel addressed the jury, she suggested to the jury that the appropriate verdict for them to return was one of manslaughter by reason of an unlawful act and she invited the jury to convict the appellant on this basis.

Summing up

31.  After summing up the law of murder, the judge went on to leave open a possible verdict of manslaughter by unlawful act in the appellant’s case.  This was after lengthy directions on joint enterprise and after directing the jury about the necessity of looking separately at the evidence against each of the defendants in their charge.

Grounds of appeal

(1)  Whether sufficient evidence to draw an inference that the appellant entered the murder scene

32.  Two grounds of appeal were advanced by Mr Loughran on the appellant’s behalf. 

33.  The 1^st ground was that the judge had misdirected the jury by:

“… leaving to them 3 matters as capable of bearing the (irresistible) inference that the [appellant] and [D2] were both present inside the factory, namely:

(a)     the [appellant’s] evidence that, even if inside the factory (which he denied), he estimated he would not be able to move the deceased’s body alone;

(b)     the scientific evidence that the body was lifted off the bed and dragged along the floor; [and]

(c)     the evidence that the deceased’s DNA was found on the clothes of D2;

whereas other reasonable inferences remain to be drawn therefrom (eg they do not close off the possibility D2 alone entered the premises and was able to lift the body).

Further or alternatively there was no or no sufficient evidence that the [appellant] was inside the factory and/or took part in the killing.”

34.  There was in this case an abundance of evidence, much of it undisputed, to show that the appellant was involved in a plan to take some form of revenge to punish his brother for what he believed his brother had done to his wife.  According to the appellant, this was at least intended to involve a “slapping” to scare his brother. 

35.  Although the prosecution had presented its case on the basis that the appellant actually went inside the deceased’s workplace, it was not necessary to prove that he did so.  Nevertheless, there was some evidence which suggested that the appellant had done so.  The judge, referring to the appellant as the “1^st accused”, directed the jury on this topic (in the passage from the summing up which is criticised) in the following manner:

“… the aspect of the 1^st accused's evidence in this connection which you may wish to bear carefully in mind is his testimony to you that Malik [the deceased] was quite strongly built and that, by himself, he could not lift Malik off a bed on which he was lying. If you accept that evidence from him, and you accept the evidence of Mr Cheung, the scientific officer, who told you that one scenario to explain the bloodstain patterns in the factory was that Malik had been lifted bodily off the bed and placed on the floor before being dragged to his final resting place, and you also bear in mind the fact that there was DNA from Malik on the green shirt worn by the 2nd accused, then it would be open to you to draw the inference, if you were so minded, that both accused had been present inside the factory. That is a matter for you.”

36.  Plainly, in the light of the jury’s verdict in D2’s case, it becomes essential to examine whether the jury could, with proper justification, have found that the appellant entered the factory.  It is inconceivable that the jury would have acquitted D2 if they believed that he had smashed the deceased’s head with the sledgehammer, so that it must follow that the jury had rejected the appellant’s story completely and found that it was the appellant himself who attacked the deceased with the sledgehammer. 

37.  In order to reach such a conclusion, there obviously had to be evidence from which the jury could draw such an inference and two potentially significant aspects of the evidence immediately come to mind.  Firstly, according to the appellant, he had disposed of his clothing and his mobile telephone by giving them to D2 a few hours after the murder.  The telephone provided the only obvious link between himself and D2 as no one else had been involved in the plot to punish the deceased.  As to the missing clothing, why, the jury must have asked themselves, did the appellant find it necessary to dispose of his clothes if all he had done was to stand outside the factory when D2 went inside.  Secondly, the appellant was the person who had the motivation to punish his brother.  He was, on any view, within close proximity of the crime when it was committed at about 2.00 a.m. to 3.00 a.m.  Both of these points have to be considered in the wider context of all the other evidence including, significantly, the telephone call from the hardware shop when D2 asked PW4 to speak to someone with an accent to explain the purchase he was trying to make.

38.  In our view, therefore, while the evidence to which the judge had referred in the passage about which complaint is made in this ground was something the jury was fully entitled to take into account, it fell short of giving rise by itself to an irresistible inference that the appellant had himself entered the factory premises.  However, as we have said, this evidence was not the only evidence for the jury’s consideration on this point. 

39.  Earlier in the summing up, the judge covered the first factor to which we have referred, the missing clothing, as having considerable potential significance.  Closed circuit television pictures of the appellant leaving his home address on 30 October 2006 at about 10.00 p.m., and returning there after the killing at 4.07 a.m. on 31 October 2006, demonstrated that he was wearing distinctive clothing that night which was nowhere to be found amongst his belongings when the police searched his address.  The judge expressed the matter thus:

“You have seen the clothing which the 1st accused was wearing on the day of the events from the closed-circuit television extracts. It has been referred to as 'Pakistani costume' but I propose to call it by its correct name of a 'shalwar kameez'. It was dark in colour. Station Sergeant Ip told you that, during the search of the 1st accused's home, he did not find any dark-coloured shalwar kameez. In regard to the clothing issue, you will recall that it was the 1st accused's evidence that he had handed it to the 2nd accused later that same morning as a result of threats made to him by the 2nd accused. The 2nd accused, however, said in his interviews that he had not seen the 1st accused after they had parted company after leaving the factory.

You may well wish to consider why it was that the 2nd accused would have demanded the clothing of the 1st accused if the 1st accused had remained outside the factory at the time of the murder of Malik. Conversely, if you were to conclude that no such demand had been made by the 2nd accused, you may wish to consider why it was that Station Sergeant Ip was unable to locate a dark shalwar kameez in the 1st accused's residence so soon after the murder.”

40.  Mr Loughran acknowledged that this was an aspect of the case which had some bearing on whether the circumstantial evidence was sufficient to establish that the appellant had entered the factory that night for exactly the reasons given by the judge.  However, Mr Loughran submitted that the passage about which he complained was nevertheless a misdirection as the jury could not, taking any of the three points itemised by the judge either individually or collectively, have concluded that the appellant had gone inside the factory at the material time.

41.  We accept the force of the argument and it is this ground on which, as we have said, that we considered that leave had to be given.  However, in our opinion, it is inappropriate simply to look at this one direction in isolation when there were several other factors in the case which the jury would have been able to take into account when examining the circumstantial evidence as a whole.

42.  In the end, the jury must have determined that the appellant was linked to the sledgehammer to have convicted him.  Once that link was established, provided such a conclusion was permissible, much of the appellant’s account would have fallen away as the central plank in his defence, to the effect that he knew nothing about the sledgehammer, would have been destroyed.  If so, the point raised in the 1^st ground of appeal ceases to have the impact it might otherwise have had.

43.  Importantly, the prosecution was able to provide a sound link between the sale of the sledgehammer and the use of the sledgehammer to kill the deceased.  Firstly, the hammerhead of sledgehammer, found close to the scene of the crime, bore the blood of the deceased. This weapon (Exhibit P1) was shown to the shopkeeper (PW4) and he was able to identify the code for his shop from the Chinese characters ‘Tai Cheung’ and ‘Tai Hap Shop’ on the handle where the price was also shown.  PW4 was able from these markings positively to identify the sledgehammer as the one he had sold to the Indian or Pakistani customer at what he described as “the end of October”.

44.  The shopkeeper (PW4) was unable to recall precisely the day of the week or the time of day when the purchase of the sledgehammer occurred and, unfortunately, it appears there was no till receipt to confirm when this happened. PW4 was, however, able to remember that the sledgehammer was sold to the Indian or Pakistani customer on either a Sunday or a public holiday.  The killing occurred a few hours after midnight on Tuesday, 31 October 2006.  The day before, Monday, 30 October 2006, was the Chung Yeung Festival. 

45.  The other significant feature of the sale was that PW4 was asked by D2 to talk on his mobile telephone to someone who spoke Cantonese with an accent.  This person explained what it was that the customer (D2) needed as D2 had been unable to make himself understood.  The male voice on the telephone informed PW4 that a 5-kilogramme sledgehammer was required.

46.  There was no hint or suggestion anywhere in the evidence that anyone other than the appellant and D2 were involved in the planning of revenge on the appellant’s brother.  Throughout, the only person with whom the appellant stated he dealt was D2.  With this in mind, telephone records showing the telephone calls between D2 and the appellant on their mobile telephones were examined.  The results of this enquiry were set out in the facts admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221.  Remembering that the appellant had spoken of the incident between his wife and the deceased as having occurred some ten days before the killing, the check, going back to midnight on 18 October 2006 and up to 12.01 a.m. on 30 October 2006, showed that there were no calls at all between the mobile telephone numbers of the appellant and D2.  However, on 30 October 2006, a number of calls were made between them and also between the appellant and his brother, the deceased.

47.  This series of calls began at 12.16 p.m. when the appellant telephoned the deceased’s mobile number (9 seconds).  At 1.46 p.m., D2 telephoned the appellant’s number (46 seconds).  At 2.05 p.m., the deceased’s mobile telephone called the appellant (1 minute and 20 seconds). At 2.14 p.m., the appellant’s mobile telephone number called D2’s number (46 seconds).  At 2.17 p.m., the appellant’s number called the deceased’s mobile (1 minute 39 seconds). At 2.30 p.m., the appellant’s number called D2’s number (13 seconds).  At some time between 3.04 p.m. and 3.12 p.m., D2’s telephone number was used to call the appellant’s number.  This call lasted 1 minutes and 25 seconds and the prosecution suggested that it was this call which enabled the appellant to speak to the shopkeeper (PW4).  After that, the appellant’s mobile number was used to call D2 at some time between 3.09 p.m. and 3.16 p.m. (40 seconds) and again at 5.24 p.m. (58 seconds).  Later, the appellant’s number was used to call the deceased at 6.33 p.m. (1 minute and 47 seconds) and the deceased’s number called the appellant’s mobile number at 8.01 p.m. (11 seconds).  Lastly, D2’s number was used to call the appellant’s number twice at 10.02 p.m. (8 seconds and 1 minute and 20 seconds respectively).

48.  The question which arises from all the evidence concerning the purchase of the sledgehammer is whether an inference could properly be drawn by the jury that it was the appellant to whom the shopkeeper had spoken when the sledgehammer was purchased, bearing in mind that there had been no admission on the appellant’s part of any knowledge whatsoever about the sledgehammer.

49.  The judge coupled the evidence of the conversation between PW4 and the Cantonese speaker with a strange accent, to evidence that the appellant’s mobile telephone number was contacted by D2 in a call lasting one minute and twenty-five seconds, at a time somewhere between 3.04 and 3.12 p.m. on 30 October 2006.  The judge reminded the jury in the course of the summing up about the telephone records and he also referred to the absence of any other party besides the appellant and D2 who were involved in the appellant’s plan to punish his brother.  The judge directed the jury that, if they were so minded, they could draw an inference that D2 had spoken to the appellant about a sledgehammer and that the appellant had then spoken to the shopkeeper about what was needed.  He did so in the following terms:

“Once you have considered that, and if you are so minded, you may say to yourselves, ‘Well, there has never been any suggestion that more than two persons were involved in these events. We know that both of them were of Pakistani origin. We know that Mr Cheung [PW4] was dealing with an Indian or a Pakistani customer. We know that the person to whom he spoke on the telephone was a male who spoke in Cantonese in a different [manner]. We know from the evidence that the 1st accused is able to speak some Cantonese. Based on all of these facts which we find, we draw the irresistible inference that the person to whom Mr Cheung spoke was the 1st accused’.”

50.  It is apparent from the jury’s verdict, having acquitted D2, that the jury had taken the view that it was the appellant who physically killed the deceased.  They could have reached such a conclusion only if they were sure that the appellant knew about the sledgehammer and intended that it should be used either by himself or by D2.  However, the fact that the jury seems have been in doubt about D2’s role, to the extent that they felt unable to convict him, is not as surprising as it may at first seem.  Mr Robert S K Lee SC set out with great clarity for our consideration all of the evidence which showed the lengths to which the appellant went from the start to cover his tracks by using D2 to hide behind and, as soon as the finger of suspicion fell on him because of the disappearance of his clothing, to use D2 as someone on whom he could offload the blame.

51.  Everything stemmed from an incident about ten days before 30 October 2006 when, as the appellant firmly believed, his wife was the victim of a rape attempt by the deceased.  The appellant admitted that he then sought revenge for this and that he recruited D2 to help him in this course for which he agreed to pay $2,000.  In order to gain access to the deceased’s workplace, the appellant knew that a key would be needed as the deceased worked alone at night and slept on the premises.  Thus it was that he took the deceased’s key without permission in order to have a duplicate made.  Shortly before the killing, D2 had bought the sledgehammer which was directly linked to the sledgehammer used in the murder of the deceased at his workplace.  D2 needed help to explain to the shopkeeper what it was that he wanted and a telephone call was made from D2’s mobile telephone to the appellant’s telephone on 30 October 2006.  This was the second call D2 had made to the appellant that day in circumstances where D2 otherwise had not once telephoned the appellant since 18 October 2006, the approximate date of the attempted rape alleged by the appellant’s wife.

52.  On the night of 30 October 2006, at 10.00 p.m., the appellant left home, after his telephone had been used to call his brother’s mobile telephone (at 6.33 p.m.) and after his brother’s telephone had called the appellant’s mobile number at 8.01 p.m.  The appellant’s stated purpose in setting out was to punish his brother for an offence which he said, under Koranic law, carried a sentence of death by stoning.  By about 3.00 a.m. on 31 October 2006, the deceased lay dead, brutally murdered with the same sledgehammer that D2 had bought only a matter of hours earlier.

53.  The appellant dealt in his testimony at trial with some of these matters, by shifting all responsibility onto D2 for everything that happened, never once admitting to any knowledge of the sledgehammer.  He said that he met D2 outside the factory having sat waiting on his own in the park nearby for about two hours.  D2 did not arrive there until after midnight.  He noticed D2 “might have drunk something” and said to him: “This is not the condition you should go to my brother.”  He stated that he told D2: “Let’s do it another day.”  The appellant said that he gave $1,000 to D2 which he had not so far paid, but when he said he wanted to cancel the operation, D2 “forced” him to take him to the factory gate where D2 “asked [him] to open it”.  He agreed that he had never told the police that he had wanted to cancel the whole plan.

54.  Earlier in his testimony, the appellant had described D2 as carrying a stick under his arm which was “a foot or 14 inches” long just before he went into the factory premises.  The appellant said that he asked D2 why he was carrying it and was told: “If when I slap your brother, he might hit me back.”  The appellant stated that he had “strictly” told D2: “Don’t’ dare use the stick” and D2 replied “Alright”.  He then opened the gate for D2.  The appellant said that he (the appellant) “wanted to go inside but [D2] took the key and closed the door”.  When D2 came out, he told the appellant to take off his clothes but the appellant said he had to get home first.

55.  Earlier, we dealt with the telephone calls made on the appellant’s mobile telephone to the deceased.  He was asked why he had made the call to his brother at 2.17 p.m. on 30 October 2006.  The appellant denied the suggestion that he had been making sure his brother would be at work.  His explanation was that he “used to give him food at night at his workplace”.

56.  The 2.17 p.m. call to the deceased was sandwiched between two other calls made by the appellant, both of which were to D2.  He was asked about these calls as well.  The appellant’s explanation for the call at 2.14 p.m. was that this was to tell D2 “to threaten [his] brother, not to beat him … To remind him again and again.”  So far as the call at 2.30 p.m. was concerned, the appellant explained that this was a call made in error when he was wanting to dial another number.  The appellant gave a similar explanation for the telephone call from D2’s number just after 3.00 p.m. which the prosecution alleged was made from the hardware shop at the time the sledgehammer had being purchased.  The appellant said that D2 had been “checking the caller list on the phone and mistakenly he dialled my number … he said ‘please forgive me’”.

57.  The appellant was asked also about his call to the deceased, timed at 6.33 p.m. and the deceased’s call to him at 8.01 p.m. which the appellant said was concerned with an arrangement to take food over to the deceased.  The appellant said that he had delivered food to his brother at about 8.00 p.m. at a bus stop halfway between the deceased’s workplace and the appellant’s home.  After this, the appellant said that he went to the factory where the deceased was working in order to collect an electric shaver from his brother which his brother had asked him to collect. When he did this, he saw his brother at the factory.

58.  D2’s case was that he had been set up to look as if he was the murderer when all the time it was the appellant who had committed the offence.  It is plain that the appellant’s account that D2 had dictated to him the terms of what was to be done, right down to demanding that the revenge or punishment should go ahead at a time when the appellant had wanted to cancel the arrangement and the details of what D2 told him he should do with his clothing afterwards, was rejected by the jury.  They would no doubt have borne in mind that D2, also a construction site worker, was a stranger to the appellant until only a short time before the offence and was known to the appellant as a drug taker and a drinker who had no interest at all in the family dispute involving the deceased.

59.  The context in which the case against the appellant has to be viewed is necessarily a lengthy one, but it is only in its full context that the strength of the evidence against him can be demonstrated.  We are satisfied that, in this light, the isolation by the judge of three points from the evidence as capable of giving rise to an inference that the appellant entered the crime scene at the time of the killing was not a material misdirection when taken alongside other evidence which not only widened the scope for drawing such an inference but was also capable of leading to the same conclusion.

(2)  The lies direction

60.  In the 2^nd ground, it was submitted that the judge had:

“… erred in failing to direct the Jury that … lies could not themselves prove the case against the Applicant.”

61.  In regard to the ‘lies’ direction given to the jury, it is clear that the very thing which it was suggested the judge had failed to do, was covered by the directions the jury were given which were in these terms:

“It is admitted that the 1st accused lied to the police, particularly about disposal of his clothing. Miss Draycott, for the 1st accused, suggested that the 2nd accused lied about the bloodstained T-shirt, Exhibit 94. The prosecution does not rely on the lies in support of the prosecution case but it is proper for you to consider them when assessing the credibility of the accused, whether you can believe the 1st accused or the 2nd accused. Mr McNamara [for D2] has dealt with the lies of the 1st accused at length also in regard to his credibility and whether you should believe him.

In regard to the question of lies, you need to consider two questions. Firstly, you must consider whether either accused did lie, in fact. If you are not sure that he was lying, then ignore the matter completely.

In respect of the 1st accused, you are unlikely to have any difficulty in finding that he did lie because he has told you so during his evidence. In respect of the 2nd accused, it may be that you take the view that what he said in his interviews about the T-shirt were not lies, maybe that the explanation he gave about the T-shirt actually belonging to a third party who had only stayed in the accommodation is possible, and it also may explain why he left it behind when he left the premises.

So if you are sure one, or both, of the accused has lied, then the second thing you must consider is why he lied. The mere fact that an accused tells a lie is not, of itself, any evidence of guilt. An accused may lie for many reasons and they may possibly be innocent reasons in the sense that they do not give any indication of guilt. For example, lies to bolster a true defence, to protect someone else, to conceal some disgraceful conduct other than the commission of the offence, or out of panic or confusion.

The 1st accused has told you that his motivation for lying was threefold: first, because he did not wish to have to explain to the police that this entire incident had come about as a result of the alleged attempted rape of his wife, because he believed that that may reflect dishonourably on her; secondly, that he lied about disposing of his clothing because the 2nd accused had threatened him and told him not to tell anyone; and thirdly, he was in a state of shock, having just learned of his brother’s death and identified his body.

So if you think that there is, or may be, an innocent explanation for the lies, then you should take no notice of them. It is only if you are sure that the accused did not lie for an innocent reason that the lies may be a matter which you wish to take into account in assessing his credibility.”

These directions speak for themselves.  They most adequately covered the position in law, although we find it difficult to understand why the prosecution chose not to rely on the lies when, in the event that the jury excluded any innocent reason for them having been told, they so clearly supported the prosecution’s case.

62.  This ground was without substance.

Conclusion

63.  In our opinion, for the reasons we have given, the murder verdict in the appellant’s case was neither unsafe nor unsatisfactory.  Accordingly, this appeal is dismissed.