HABIB AHMED v. HKSAR

FACC No. 10 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 400 OF 2007)

____________________

____________________

____________________

J U D G M E N T

____________________

Chief Justice Li:

1.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

3.  In the morning of 31 October 2006, the dead body of the appellant’s elder brother (“the deceased”) was found near a folding bed inside the factory premises where he worked as a watchman. He died of severe head injuries caused by a sledgehammer which was found in a flower bed near the premises. The sledgehammer was purchased on the previous day by a person who was later identified by the vendor as the 2^nd accused (“D2”) in the case.

4.  There was a record of the deceased’s patrol in the factory at 11 p.m. on 30 October but no such record of the next patrol at 3 a.m. on 31 October which he was supposed to perform, indicating that he must have been killed during the period between these two patrols. The premises were properly locked when his body was found and there was no sign of the lock having been tampered with. Whoever murdered him must have entered the premises with the appropriate key.

5.  The forensic evidence suggested that the deceased was first attacked while he was lying on the bed and this would have incapacitated him; he was then lifted from the bed and relocated away from the bed to an area where he suffered further blows to the head after it had been covered with a piece of cloth. The deceased’s DNA was later found on a green shirt worn by D2 on that day.

The trial and appeal

6.  Inquiries made by the police led to the arrests of the appellant and D2 who were later tried together for murder. Both the appellant and D2 had given various video recorded interviews to the police linking themselves to the crime. At the trial (before Wright J and a jury), the appellant but not D2 gave evidence. The prosecution alleged that they had murdered the deceased pursuant to a joint enterprise. The appellant’s case was that he did not enter the premises or attack the deceased and that it was done by D2 while D2’s case was that he had nothing to do with the murder and that it was the appellant who killed the deceased.

7.  The jury convicted the appellant but acquitted D2. On appeal, the Court of Appeal (Stuart-Moore VP, Beeson and Saw JJ) upheld the conviction. With leave of the Appeal Committee which was limited to the direction in question referred to below, the appellant now appeals to this Court on the substantial and grave injustice ground.

The appellant’s evidence

8.  According to the appellant, the deceased had attempted to rape his wife about 10 days before the incident and so he hired D2 whom he met at a construction site to "scare and threaten” the deceased by “giving him a slap”. The appellant had paid D2 $2000 to do that. He had also stolen the deceased’s key to the premises and made a duplicate.

9.  In the late evening of 30 October, the appellant and D2 met and went together to the factory premises, arriving there at 2 a.m. on 31 October. While outside the premises, initially he wanted to call it off, but D2 insisted that they should proceed as planned. So the appellant opened the gate using the duplicate key and D2 entered the premises by himself carrying under his armpit a baton which was about 30 cm long while the appellant waited outside.  Later, D2 came out and told the appellant that he, D2, had slapped the deceased while thelatter was sleeping and when the deceased tried to get up and hit him, he hit the deceased on the head with the baton. D2 further told the appellant that the deceased had fallen unconscious but would wake up in the morning. After that, they parted and the appellant went home. At that time, he did not know that D2 had killed his brother. He also denied that he had ever requested D2 to buy a sledgehammer or had seen such hammer on that evening. 

D2’s statements

10.  In his video recorded interviews to the police, D2 said that several days before the incident, the appellant asked him to do some construction work. On the day in question, the appellant requested him to purchase a sledgehammer. When he was making the purchase, he used his own mobile phone and called the appellant asking the appellant to speak to the vendor regarding the size of the sledgehammer, which the appellant did. Late at night, they met and went together to the factory. The appellant used a key to enter the premises carrying the sledgehammer with him while D2 remained outside. When he heard some noises inside, he entered the premises and saw the appellant hitting a person with the sledgehammer. After that, they left the premises and he had not seen the appellant again.

11.  Since D2 did not give evidence at the trial, what he said in those interviews was clearly not evidence against the appellant and the judge had properly directed the jury on that.

Evidence relating to the sledgehammer

12.  With regard to the sledgehammer, the vendor, a Mr Cheung, was called and he testified that when D2 came to his shop to purchase the sledgehammer, they could not understand each other since D2 did not speak Cantonese and so D2 called someone using a mobile phone and he, the vendor, was able to speak to that other person on the phone and clarified what was required. He recalled that the person he spoke to on the phone could speak Cantonese with an accent.

13.  It was not disputed at the trial that the appellant can speak a little Cantonese with an accent. The prosecution produced the phone records between the appellant and D2 on 30 October.  The records showed that on that day, there were several calls between them. One of them was made by D2 to the appellant at around 3 p.m. and it lasted one minute and 25 seconds.The prosecution alleged that this was the phone call referred to by the vendor.

Evidence relating to the shalwar kameez

14.  The appellant was seen on the CCTV as having left his home after 10 p.m. on 30 October and returned home after 4 a.m. on 31 October. The Pakistani costume, shalwar kameez, which he was wearing on that day was never found by the police. According to the appellant, when D2 came out of the factory premises, D2 asked him to hand over his shalwar kameez. At first, he was reluctant to do so. But under threat from D2, he agreed to give it to him in the morning. On the next morning, at 6.30 a.m., the appellant took his shalwar kameez and gave it to D2.

15.  The prosecution alleged that the appellant had deliberately disposed of evidence which might link him to the murder. The point was made that the appellant’s explanation was incredible because if it was true that only D2 but not the appellant had entered the premises, there was no reason why D2 would have wanted to take away the appellant’s shalwar kameez but had retained his own green shirt (which was apparently later seized by the police).

The direction in question

16.  The appellant’s main complaint in the Court of Appeal and in this Court arose out of that part of the trial judge’s summing up (“the direction in question”) in which he commented on an aspect of the appellant’s evidence under cross examination (at p.46): 

“Make of that as you will, but 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 [the deceased] was quite strongly built and that, by himself, he could not lift [the deceased] 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 [the deceased] 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 [the deceased] on the green shirt worn by the 2^nd 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.”

The Court of Appeal

17.  When dealing with the submission made on behalf of the appellant on this issue, the Court of Appeal said:

“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 itemized 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.”

18.  Having examined all the evidence in the case, the Court of Appeal concluded:

“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.”

Counsel submissions

19.  Before this Court, Mr Loughran submits that the direction in question was erroneous in that on the basis of the three matters identified by the trial judge, either considered individually or collectively, the jury could not draw the irresistible inference that the appellant had entered the premises. It is further argued that in holding that such direction was not a material misdirection, the Court of Appeal’s reasoning was wrong in that the jury, directed by the judge to rely only on these three matters, might not have considered other evidence when drawing the necessary inference. Counsel also submits that the Court of Appeal was wrong to say that the totality of evidence would inevitably lead to the same conclusion. These errors were, counsel submits, departures from accepted norms and have resulted in substantial and grave injustice to the appellant. 

20.  Mr Robert Lee SC, leading Ms Samantha Chiu for the prosecution, argues that the direction in question was not a misdirection since the judge was merely suggesting to the jury that the three matters when considered together were capable of drawing the irresistible inference as indicated by the judge. It is also submitted that in any event, applying the correct test on the materiality of a misdirection (Murray v R (2002) 211 CLR 113, Mraz v R (1955) 93 CLR 493, and HKSAR v Ying Tung [2004] 1 HKC 52), the Court of Appeal was correct in holding that the direction in question is not a material misdirection. Alternatively, it is argued that in view of the overwhelming evidence, this is an appropriate case to apply the proviso.

The direction in question had no effect on the jury

21.  In the earlier part of his summing up, the trial judge directed the jury that they may only draw an inference against an accused if that inference is the only reasonable inference to draw from proven facts. The direction in question could thus be understood by the jury to mean that the inference which the judge said they were entitled to draw was such an inference. With that, two problems immediately come to mind. First, by referring only to these matters, the judge might have led the jury into thinking that the three matters referred to were sufficient for the purpose of drawing the inference and that no other evidence needed to be looked at. Second, the three matters, even if accepted by the jury, are not entirely reliable proven facts. The first matter was only the view expressed by the appellant in response to a hypothetical question in cross examination; the second matter was the opinion or hypothesis of the forensic expert, albeit based on his observation of the situation as found at the crime scene; and only the third matter was a proved fact. Thus, an inference drawn on the basis of and only of these matters might be open to question.

22.  However, in my view, while there may be problems with the direction in question, it is not necessary in the circumstances of this case to decide whether it was a misdirection, or for that matter, a material misdirection, since it is clear from the verdicts given by the jury that the direction in question had no impact on them. It was, as acknowledged by counsel, a direction which was primarily aimed at establishing the involvement of D2 in the murder: this is clear from the third matter referred to by the judge (the presence of the deceased’s DNA on D2’s green shirt) and the implied suggestion that the murder was committed by two persons. But that was a course which the jury were not obliged to follow as the judge had clearly told them by the use of phrases such as: “it is open to you”, “if you were so minded”, and “that is a matter for you”. As it turned out, they had not followed that course. By acquitting D2, the jury were clearly not able to feel sure that D2 was involved. They plainly did not accept the judge’s invitation to draw the inference that both the appellant and D2 had entered the premises and murdered the deceased together. By convicting the appellant, the jury must have felt sure that it was the appellant who had entered the premises and struck the fatal blows on the deceased. And they could not have come to that conclusion without having fully considered the totality of the evidence.

23.  I do not agree with counsel’s submission that the totality of the evidence could not  support a guilty verdict without accepting the line of reasoning put forward in the direction of which complaint is made. As discussed by the Court of Appeal, there was very strong circumstantial evidence against the appellant, largely undisputed or coming from his own admissions. The appellant had admitted that he wanted to take revenge on the deceased for misbehaving towards his wife;that he had engaged D2 to help him, albeit only to “slap” the deceased; that he had stolen the deceased’s key and made a duplicate to gain entry to the premises; and that he had gone to the factory with D2 at 2 a.m. on 31 October and returned home after 4 a.m.  The deceased had died between 11 p.m. on 30 October and 3 a.m. on 31 October of head injuries inflicted by a sledgehammer.  The appellant was linked to the purchase of the sledgehammer through the evidence of the vendor and the phone records. The shalwar kameez he was wearing on that night could not be found after the incident. Considering all the evidence carefully, it is clear that although there was evidence which might suggest that D2 might also have been involved, once the jury had entertained some doubt whether D2 had taken part, and if they disbelieved the appellant’s evidence (and they obviously did), there could only be one conclusion on the evidence: that it was the appellant who entered the premises and murdered his brother. 

Further “misdirection”

24.  During his submissions, Mr Loughran draws our attention to a further direction given by the judge which he says is a misdirection and seeks to rely on it for two purposes: to support his argument that there was no sufficient evidence against the appellant; and to raise this as an independent argument. This relates to what the judge said in relation to the telephone call linking the appellant to the purchase of the sledgehammer. The judge said (at p.27):

“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 [the vendor] 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 matter (manner?). We know from the evidence that the 1^st 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 [the vendor] spoke was the 1^st accused.’ ”

25.  It is argued that the judge should not have ruled out the possibility that D2’s phone call when he was buying the sledgehammer was made to a third person for assistance in interpretation and that the evidence did not justify an irresistible inference that the appellant was linked to the purchase of the sledgehammer.

26.  I do not think this submission can advance the appellant’s case any further. First, at the trial it was not suggested by any party that there was any other person who was involved in this case. Neither defence counsel sought to correct the judge at the time when this direction was given or at the end of the summing up. Secondly, the suggestion that it is possible that there was a third person whom D2 called at the time of the purchase simply defies common sense: if, according to D2, it was the appellant who instructed him to buy a sledgehammer, there was no possible reason why D2 would have chosen to consult a third person and not the appellant regarding the size of the tool which was required by the appellant.

Conclusion

27.  For the reasons given above, I take the view that the appellant had failed to show that he had suffered any substantial and grave injustice arising from the direction complained of. The appeal must be dismissed.

Mr Justice Litton NPJ:

28.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Gleeson NPJ:

29.  I agree with the judgment of Mr Justice Chan PJ.

Chief Justice Li:

30.  The Court unanimously dismisses the appeal.