HKSAR v. ZABED ALI

CACC 401/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 401 OF 2000

(ON APPEAL FROM HCCC 41 OF 2000)

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J U D G M E N T

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Hon Mayo VP:

1. The applicant was convicted of murder following a trial in the High Court before Sakhrani J and a jury. He now seeks leave to appeal from this conviction.

2. Particulars of the offence were that the applicant on or about 27 June 1999 at Room 86 Nagoya Guest House, Mirador Mansions, Tsim Sha Tsui murdered Razzak Mohammed Abdur.

3. The prosecution case was based upon circumstantial evidence.

4. The proprietor of the guest house Mr Lin gave evidence that on 28 June 1999 he realised that the tenant of Room 86 had not paid rent for the use of the room. He went to the room to make inquiries about this.

5. As no one answered the door he entered the room by using a spare key. No one was inside. However he looked around and saw that there was something under the bed. He investigated what this might be and discovered what he suspected to be the mortal remains of a human body. It had been wrapped in black plastic material and adhesive tape and wires had been secured around the deceased's neck and arms. He immediately reported the matter to the police.

6. A Miss Kwok, who was the partner of Mr Lin, gave evidence that she had been on duty at the reception of the guest house which was on the third floor on 26 June. A man had rented Room 86.

7. On 27 June the same man had come to her again and said that he had lost his key and requested a replacement. She agreed to this on the basis that the man forfeited the deposit he had paid in respect of the original key. She was adamant in cross-examination that on both the first occasion he had attended at reception and on the subsequent occasion he had not been accompanied by anyone else.

8. At the identification parade which had been conducted on 23 July 1999 she identified the man who had attended at reception as being the applicant.

9. Evidence was given by other prosecution witnesses who had known the deceased. From this it was apparent that it had been the practice of the deceased to come to Hong Kong to purchase items for resale in Bangladesh.

10. He transacted his business by making payments in cash. He carried large sums on his person. Reference was made to US$30,000 and one of the people who had transacted business with the deceased shortly before his death had given evidence that the deceased had agreed to purchase items for a total ofHK$72,301 and that he would pay for these items and take delivery of them on the Monday morning, that is 28 June.

11. The prosecution also called a witness who was referred to as Omar. He was an acquaintance of the applicant. He said that during the course of a conversation he had had with the applicant the applicant had told him that his father had been killed by someone in Bangladesh and that he wanted to kill someone in revenge. He had not indicated who this person might be.

12. Omar admitted having travelled on a false passport and the Judge had given a warning to the jury of the dangers attaching to accepting evidence from such a witness. He also indicated the improbability of a person such as the applicant imparting information of this nature to someone such as Omar who it was common ground was by no means a close friend of the applicant. Omar agreed in cross-examination that the applicant had claimed that he had been joking when he had discussed this with him.

13. The most important evidence - most of which was agreed - related to the forensic evidence which was given by Dr Ng, Mr Cheung and Mr Chung both forensic scientists, Ms Li an expert on DNA profiling and Ms Fung an expert in fingerprint evidence.

14. Dr Ng gave evidence that the deceased had probably died about 24 hours prior to his examining the body. That was sometime in the late evening of 27 June or possibly early on 28th.

15. The likely cause of death had been suffocation caused as a result of the plastic material and adhesive tape obstructing the deceased's mouth and nose thus making it impossible for him to breathe. Death would have occurred within a matter of minutes.

16. There was no definite indication of bodily injuries having been caused as a result of other violence being inflicted upon the deceased's person.

17. Mr Chung gave evidence concerning fibres taken from shorts which had been worn by the applicant and clothes which the deceased had been wearing and the mattress of the bed in the room.

18. The fibres matched in such a manner as to indicate that the shorts might have physically come into contact with both the upper and lower parts of the deceased's body and also with the mattress.

19. Ms Li gave evidence concerning the DNA profiling tests she had undertaken at the Hong Kong Government Laboratory. These established to an extremely high level of probability that the applicant's lips had come into contact with a Fanta soft drink bottle which had been found at the scene and that bloodstains found on the jeans which had been worn by the deceased were those of the applicant.

20. Ms Fung gave evidence that strongly indicated that the applicant's fingerprints had been found on the rolls of adhesive tape which had been used to tie up the deceased.

21. The applicant had been arrested early on 28 June when he had been attempting to board a flight to Bangladesh.

22. The applicant gave evidence at his trial.

23. He admitted that he had rented Room 86. He said however that when he had done so he had been with two other men.

24. He said that some 15 or 20 days before the incident in question he had been with his friends Babor and Kayum.

25. Babor had told him that one of his big brothers had told him that if he could collect a key and some papers from a person he would receive a reward of $60,000. He said that the man from whom he would get these was called Raju (a nickname used by the deceased).

26. On 26 June he had met Babor and Kayum and that Babor had suggested they should rent a room at Mirador Mansions overnight and occupy it so that they could chat together, eat biscuits and drink soft drinks.

27. They agreed to this and they all went to the third floor where they saw Ms Kwok. Babor registered for Room 86. After they all entered the room Babor and Kayum left leaving him alone.

28. When they returned Babor told him that they proposed proceeding with the plan to get the $60,000 and did he wish to participate.

29. He told him that he did not.

30. They then all drank wine and as he was not used to it he became intoxicated and went to sleep.

31. He awoke next morning at about 7.00 a.m. when Babor left. He went to sleep again and woke up at about 9.30 a.m. After that he got up and left with Kayum and had breakfast with him at Chungking Mansions. He stayed in Kayum's room after that.

32. At about 8.30 p.m. he saw Kayum with Babor and other Bengali people outside Mirador Mansions. Babor told him that he had rented Room 86 for another day and that Raju had gone there. They had got the papers from Raju but had inadvertently left the key behind which meant that they would be unable to collect the reward from his big brother.

33. That being the case he was asked to go to the room to retrieve the key.

34. For this purpose he was to go with Babor to the reception desk and represent that he had lost the key to the room and request a replacement. He should then go and get the key from the room.

35. They went to the room. The applicant saw Raju lying on the ground and realised that he was dead. He thought that it was necessary to secrete the body as he was alarmed that he might be implicated as he had taken part in renting the room.

36. Babor then told him to bind up Raju's body with tape which he did. Babor told him to wait outside while he completed matters and it was at this stage that he saw that he had cut one of his fingers and it was bleeding.

37. Later they went up with Kayum and they agreed that they should return to Bangladesh as soon as possible and with this in mind they had gone to the airport in the early hours of 28 June. He had been intercepted at the immigration counter.

38. It is convenient to consider grounds 1 and 2 together. They are as follows:

"1. It was a misdirection to leave as an issue for the jury to find that the Appellant could have acted alone in view of the evidence of the fingerprints found on the sticky side of tapes taken from the deceased's head, which were admitted to be fingerprints of an unidentified third party or third parties. (See Appeal Bundle 24A, 25, 26, A-G; Admitted Facts dated 31st August 2000 (7) and reference thereto at 57 C-G).

2. In consequence of the said misdirection there is a grave danger that the jury convicted the Appellant on the basis that he did act alone, contrary to the evidence."

39. There is no merit whatever in these grounds.

40. It is apparent from a consideration of the evidence as a whole that the prosecution did present their case in the alternative as to whether the applicant had committed this offence alone or as a joint enterprise with some person or persons. The Judge likewise gave his directions to the jury in the alternatives.

41. This was the only realistic way that the case could proceed. It is significant that defence counsel raised no objection to this approach during the trial and indeed made his final submissions upon the basis that the jury would have to make their own determination upon what had transpired.

42. Grounds 3 and 4 read:

"3. The learned judge erred in admitting in evidence an alleged conversation between the Appellant and Mohammed Al Rabby (PW5) some 10 days prior to the offence, in which the Appellant allegedly said that he wanted to kill someone, to take revenge and has a fixed target.

4. The learned judge's invitation (not a direction) in his Summing Up (at 41 K) that the jury might ignore PW5's evidence was insufficient and too late to cure the prejudicial effect that had been created."

43. Mr McGowan for the applicant submitted that there was no basis upon which this alleged conversation between Omar and the applicant could properly be admitted as evidence.

44. It was not relevant to the case which was being run by the prosecution. Even if it was the prejudice occasioned to the applicant by its admission far outweighed its probative value.

45. This evidence had been very damaging to the applicant and having regard to the circumstantial nature of the evidence adduced by the prosecution might well have been the balancing factor in persuading the jury that they should reject the explanation given by the applicant when he gave his version of what had transpired.

46. To compound this problem the Judge had not in his directions gone on to explain to the jury what relevance the conversation might have in shedding light upon the issues which the jury had to determine.

47. It had also been the case that prosecuting counsel had again referred to the conversation in his closing address and had submitted that in effect he placed reliance on the conversation to indicate a propensity on the part of the applicant of his having an intention to kill.

48. He submitted on the authority of The Attorney General of Hong Kong v Siu Yuk Shing [1989] 1 WLR 236 that evidence of a defendant's propensity to commit a crime was not admissible.

49. Mr Chapman for the prosecution conceded that Omar's evidence of this conversation should not have been admitted as evidence. He contended however that the Judge had by the directions he gave to the jury been sufficiently critical of the evidence to negative any risk of the jury placing reliance upon the conversation to the applicant's detriment.

50. The Judge's directions in this respect were as follows:

"You will have to examine Omar's evidence with great care. Is he the sort of person whom you should believe? Is he telling you the truth about what happened? Do you think that the defendant, who was not even a close or a good friend of his, would have told him what he said he was told by the defendant, namely, that he wanted to take revenge for his father's killing and that he wanted to kill somebody? You may well ask yourselves why someone would tell an acquaintance something like that. And who was this fixed target? There was no mention of the deceased or anyone else. There is no evidence that the defendant even knew the deceased at that time. Is Omar a reliable witness? If you accept what he said, do you think that the defendant was joking about it when he spoke to Omar? Bear in mind, members of the jury, that people sometimes do say that they wish so and so were dead, or that they would like to kill someone, but do they really mean it? It is for you to say whether you accept or reject what the witness said but you might think that not much reliance can be placed on what he said. You might think that his evidence does not really assist you in this case and that you should ignore it."

51. It will be noted from these directions that the Judge did not go so far as to direct the jury to disregard the evidence.

52. The important question for us to consider is whether in fact Omar's evidence in this connection should have been admitted.

53. In my view this evidence was admissible.

54. It was evidence which, if it was accepted, established that in certain circumstances the applicant was prepared to form an intent to kill another person.

55. Even though the case which was being run by the prosecution was that the killer or killers were committing the offence for financial gain, it was a relevant factor that there might be evidence that the applicant would be prepared to kill for some other motive.

56. It was also not correct to state that the prejudicial nature of the evidence outweighed its probative value.

57. In this connection it needs to be borne in mind that the identity of the proposed victim had not been revealed and the nature of the conversation had been in the most general terms.

58. The circumstances pertaining in Siu Yuk Shing were entirely different to those in the present case. In that case the evidence in question had related to the defendant's involvement in other triad activities whereas in the instant case the evidence in question related to a conversation the applicant was alleged to have had with Omar some ten days before the event.

59. For all these reasons I am of the view that the evidence was admissible.

60. I am further of the opinion that the directions which were given by the Judge were well balanced and there was no risk that the jury would have been in any way misled.

61. The fact that the Judge did not go on to outline what in his opinion was the relevance of the conversation was not detrimental to the applicant.

62. It would have been manifest to members of the jury what the significance of the conversation would have been and it was open to them to determine what weight if any they should attach to the evidence. In my view this ground cannot be sustained.

63. Ground 5 is as follows:

"The learned Judge erred in ruling there was a case of murder to go to the jury as while the evidence showed that the deceased could have been in the room (where he died) for a significant period of time, there was no evidence at what stage his head was bound with tape and plastic sheet, or that the Appellant was present at that stage; there was therefore no or no sufficient evidence, either 'direct' or by inference, that the Appellant did the act of binding the deceased's head or otherwise suffocating the deceased, or aided and abetted in such act, or that he was party in any common design to suffocate or otherwise kill or cause grievous bodily harm, or that he acted in concert with the person or persons who bound the deceased's head."

64. The point which was being made by Mr McGowan in relation to this ground was that on the available evidence it had by no means been established that the applicant had been physically present when the victim had died.

65. Also it had not been established that the adhesive and plastic material had been the cause of the deceased's death.

66. It was conceivable that the victim may have just been gagged by his assailants and that as his arms had been tied he might have moved into a position where he had become suffocated. The application of the adhesive tape and plastic material might have taken place subsequently for some other reason.

67. With respect this is all rather far fetched.

68. It is not necessary when a judge sums up to a jury for him to present to them every conceivable possibility which may exist.

69. The jury had before them all the relevant evidence and it was for them to make their determination based upon this.

70. There was an overwhelmingly strong case against the applicant based upon the forensic evidence. The issue was whether the jury was able to draw the necessary inferences sufficient to prove the case at the appropriate level against the applicant.

71. Defence counsel at the trial conceded that there was a sufficient case to answer for manslaughter. Having regard to Dr Ng's evidence concerning the cause of death and the inevitability of death if the victim's mouth and nose were blocked there was undoubtedly sufficient evidence to support a conviction for murder. There is in my view no merit in this ground.

72. Grounds 6 and 7 are as follows:

"6. Given that the Forensic Pathologist (Dr Ng Chung Ki, PW3) could not determine whether the covering of the nose and/or mouth and the other taping/tying of the deceased took place before or after death (168C-T and 171S) the learned Judge erred, whilst directing the jury on the law, in saying what he did at 231 I-R.

7. The Learned Judge erred in only reminding the jury that Dr Ng had said 'the only possible and most likely cause of death was suffocation by the layers of the plastic sheet and the tapes around his head'. (49 S-T)."

73. The doctor's evidence is at p. 172 of the appeal bundle:

"Q. Yes. But the fact remains that in the present case, you cannot say with certainty when it was that the plastic sheet and the adhesive tapes were put around the head of the -- the face and head of the deceased. Is that fair?

A I think if you just look at the tape itself and then ask me whether there's any autopsy findings to say the tape was put on the deceased when he was alive, I can only say there's no evidence. But you have to look at the case as a whole ...

Q. Of course.

A. ... and also other evidence. Just say - if I give you examples. If you find a knfie stab on the chest of a dead person, many times you cannot say whether the knife was stabbed while the deceased was alive or dead. You can still find blood, for example, in the chest cavity when the knife stabbed on the dead person. even in this case you cannot say - then if your argument is true, then you cannot find the cause of death in this case. Just so in this case, the autopsy did not only look at the tapes. I also looked at other parts of the body to find whether there's other possible natural disease or other possible - or any other kind of injuries that could account for the death. And I will take all the necessary samples for toxicological analysis - whether drugs are cause of death. They all turned to be negative. And then - and so at the end, I draw the conclusion that the only possible and the most likely cause of death in this case was suffocation by the layers of plastics.

Q. Dr Ng, I hope you understand. You're not being - I'm not challenging you at all when you say that death was a result of suffocation, but as to what actually caused the suffocation, apart from making an educated guess from the same circumstances that you saw at the time, there's no conclusive evidence as to really what caused the suffocation. Would you agree with that?

A. I think I can only draw a conclusion onwhat actually I found. I only found - I think if it's suffocation then it's also possible in this case by the layers of plastics.

Court: Sorry? Can you ...

A. I can only draw my conclusion on some evidence that I found.

Court: Yes.

A. I cannot base my conclusion from just pure guess.

Q. The suffocation is of course consistent with the adhesive tapes and plastic sheet you found on the base of the deceased but supposing the deceased was suffocated by - let's say by a quilt - a quilt, a blanket - being used to cover up his nose and mouth, let's say, and then the tapes were applied afterwards. Now, that's a possibility, isn't it?

A. Yes.

Q. And one can look at other possibilities, Doctor. If the mouth was covered by a hand and the nose was also blocked by, say, fingers or something, that would lead to suffocation.

A. Yes.

Q. And that could have been prior to the adhesive tapes and plastic sheet being placed on the head of the deceased. It could happen.

A. It could.

Q. Yes. That's all I'm saying."

74. Having regard to the surrounding circumstances it would appear to be fanciful to suggest that the cause of death was anything other than by suffocation in the manner contended for by the prosecution. The Judge summed up the evidence to the jury on that basis and he was clearly right to do so.

75. In this connection it can also be said that the Judge's directions as a whole were very helpful and well constructed. They were also fair and evenly balanced.

76. In my view this conviction was in no way unsafe or unsatisfactory. As Stock JA has reached a different conclusion to this application in my view leave should be granted to appeal. However I consider that the appeal should be dismissed.

Hon Yeung JA:

77. I agree entirely with the reasoning contained in the draft judgment of Mayo VP and I accordingly would also dismiss the appeal against conviction.

78. In the light of the concession by Mr. Chapman, counsel for the prosecution that Omar's evidence of his conversation with the applicant should not have been admitted as evidence, I feel obliged to add the following.

79. Omar (PW5) is a salesman from Bangladesh. In February 1999, he met the applicant who also came from Bangladesh. Omar came to Hong Kong again in May 1999 on business. According to Omar, the applicant visited him at the Roof Floor, 237 Tai Kok Tsui Road on 18 June 1999 and they had a conversation, the admissibility of which was in dispute.

80. Before turning to the issues concerning the admissibility of the conversation, I think it important to reproduce the evidence of Omar on which the prosecution relied. It is as follows:

"One day I asked him what does his father do. He said that his father was killed by a party called Sharbahara Party in Bangladesh, or something like that, when he was young."

"Then later he said that, 'I also have......I also want to take revenge. I want to kill somebody....'"

"He said that 'I want to take a revenge of my father's killing and I would.....'"

"INTERPRETER: There is one particular Bangali word that I cannot think what the English would be."

"INTERPRETER: The word he uses is "protigga"- I can spell that. That should mean that I have s strong determination or I have made some kind of promise- "promise" would be the right word for the Bangali word- I'll spell that-P-R-O-T-I-G-G-A."

"I have a promise to myself that I would get back to....I would take revenge of my father's killing. I would also kill somebody."

"When I asked him, he answered me the question, and I later asked him 'who had killed your father?' Then I asked him 'Why do you want to commit a murder?' Then later he said that, 'No, I just joked.'"

"No, he said that, 'I have a fixed target', but later he told me that he just joked."

"He was very sad, as if he was about to cry."

81. The aforesaid conversation is said to have taken place about one week before the killing of the victim took place.

82. At trial, Counsel for the applicant, Mr. Hoosen objected to the admissibility of the conversation as evidence against the applicant. It was said that the conversation was "entirely prejudicial and non-probative" in that it was not relevant to the applicant's guilt or otherwise in the offence relating to the deceased.

83. Mr. Hoosen emphasized that the evidence was ambiguous and there was no evidence to show that the "target" allegedly mentioned by the applicant was the deceased.

84. The judge rejected the argument and ruled the conversation admissible.

85. Was the judge right or was he wrong as conceded by Mr. Chapman?

86. It is a recognized principle that, apart from special conditions or statutory enactment, evidence is not admissible merely to show the defendant has a general propensity to commit a crime similar to the one he is charged.

87. On the other hand, evidence is sometimes admissible in proving guilty knowledge, or intent, or system, or in rebutting an innocent appearance, notwithstanding that its general character is to show propensity.

88. It is not always easy to draw the line of demarcation as recognized by the Lord Chancellor, Lord Watson in Makin v The Attorney-General For New South Wales [1984] AC 57 at page 65:

"In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other."

89. But the conversation that the applicant had with Omar one week before the killing of the deceased, if true, indicated that the applicant then had the intention and the plan to kill someone. It is perhaps worth mentioning that the deceased also came from Bangladesh.

90. Despite the fact that the applicant later said it was a joke, what the applicant said, if true was a clear expression of an intention to kill and in the circumstances I cannot see how it could be irrelevant to the issue to be tried by the jury.

91. Mr. McGowan argues for the applicant that "the admission" was ambiguous as there was no mention of the identity of the victim nor when the killing was to take place. It was also pointed out that the applicant said it was a joke.

92. It must be borne in mind that the issue for decision is the admissibility of the conversation in evidence and not its weight as evidence. Whether the applicant said what he said as a joke is also a matter for the jury.

93. The fact that the applicant did not identify his target and that the deceased's name was not mentioned per se did not render the conversation inadmissible.

94. In an arson charge, the fact that the accused had brought some petrol a few days before the fire broke out is certainly admissible against the accused even if it could not be established that the petrol brought by the accused was the same as those used in setting the fire.

95. In an arm robbery, the evidence that the accused had acquired a gun must also be admissible even if it could not be proved that it was the same gun allegedly used by the accused in the robbery.

96. In a case of gross indecency against young boys, it is certainly permissible for the prosecution to adduce as evidence that the accused had expressed interest in young boys and that he had indicated an intention to prey upon young boys without specifying the identities of the boys.

97. We are dealing with an alleged murderer who shortly before the murder took place, expressed an intention to kill someone. Such expression, in my view tends to connect the applicant to the charge that he faced and is therefore admissible against him.

98. Mr. McGowan also suggests that the prejudicial effect of the conversation outweighs its probative value.

99. With respect I cannot agree with such suggestion. In fact the only prejudicial aspect of the alleged conversation lay in its probative value and such prejudice cannot be a valid reason for excluding it.

100. In "Judicial Discretion And Criminal Litigation" (Clarendon Press Oxford) (2nd edition), the learned author had this to say at page233:

"The common law discretion requires the trial judge to balance the prejudicial effect of evidence against its probative value. Evidence is prejudicial and hence susceptible to discretionary exclusion if there is a real risk that it will contribute to an erroneous verdict, either because its weight and credibility cannot be effectively tested by the defence or because it may be misused by the jury. Misuse of evidence covers inter alia putting more weight on evidence than it deserves or drawing false inferences from evidence or use of evidence admitted for one purpose for some other forbidden purpose. Evidence which is prejudicial only in the sense that it incriminates the accused is not prejudicial for the purposes of the discretion."

101. The conversation in question suggests that the applicant had the intention and the plan to kill someone one week before the murder took place. Prejudicial in that sense it may have been, but prejudicial in the general circumstances of the administration of justice it was certainly not.

102. In my view, the judge was right in admitting the conversation in question as evidence against applicant and the concession by Mr. Chapman is not correctly made.

103. Mr. Chapman also suggests that "during the course of Omar's evidence, it must have become apparent to the learned trial judge that this witness was a person whose credit and reliability was seriously open to question, and that, when viewed in its totality his evidence may not assist the jury in their deliberation."

104. Mr. Chapman in effect suggests that the judge had effectively told the jury to ignore Omar's evidence and therefore despite the wrongful admission of the conversation, there had not been any undue prejudice as the conversation did not bolster the prosecution case against the applicant.

105. I cannot agree with such suggestion either. Whether the jury accepted the evidence of Omar and to what extent they relied on such evidence was a matter for the jury. However strong the words used by the judge that the evidence of Omar should be ignored, it was still possible that such evidence was acted upon.

106. The judge said so in the following terms:

"Is Omar a reliable witness? If you accept what he said, do you think that the defendant was joking about it when he spoke to Omar? Bear in mind, members of the jury, that people sometimes do say what they wish so and so were dead, or that they would like to kill someone, but do they really mean it? It is for you to say whether you accept or reject what the witness said but you might think that not much reliance can be placed on what he said. You might think that his evidence does not really assist you in this case and that you should ignore it."

107. Earlier in the summing up, the judge said:

"It is for you to decide what evidence you accept, what evidence you reject, and of what evidence you are unsure. It is particularly important, members of the jury that you know and understand that I am not the judge of facts of this case. You are the sole judges of the facts. You are in no way whatsoever bound by any view that I might have express about the facts or any view that you think that I have about the facts. You are the sole judges of fact. The facts are for you alone."

108. I cannot conscientiously say that if the conversation in question was inadmissible, its reception would not cause any miscarriage of justice.

109. It is the duty of the judge to ensure that an accused is tried on legal and admissible evidence. It is also the right of the accused to have his guilt or innocence determined by the jury.

110. It is pure speculation whether the jury would have convicted the applicant in the absence of the alleged conversation, and to sustain the conviction in its absence is not to uphold the verdict of the jury but to substitute the verdict of the court.

111. If I am wrong on the issue of admissibility of the alleged conversation and if such conversation should not have been admitted, then I would allow the appeal and quash the conviction. I am of a similar view to Mayo VP, that leave should be granted to appeal and that the appeal should be dismissed.

Hon Stock JA:

112. I have had the advantage of reading in draft the judgments of Mayo VP and Yeung JA, and I find that I must respectfully disagree with their conclusion on the question of the admissibility of the evidence of the conversation between the applicant and the witness Omar, in which the applicant is alleged to have said that he wanted to take revenge for his father's death; wanted in that regard to kill someone; and had in mind a target.

113. My reasons for that disagreement are, in summary, these:

(1) in so far it is suggested (paragraphs [54] and [55] above) that the evidence was admissible because it showed that in certain circumstances the applicant was prepared to kill another person, I cannot agree that such evidence is admissible for such a purpose, for it is then adduced to show a propensity on the part of the applicant, or a willingness, to commit the type of crime with which he has been charged, and that, as a matter of law, is not permissible; and

(2) in so far as it is suggested (paragraph [97] above) that the evidence connected the applicant to the killing which took place, because a week or so before the killing of Razzak Abdur the applicant had said that he intended to kill someone and had a target in mind, I say that that reflects part only of the comments made by the applicant to Omar; and, further, that this does not appear to be the basis upon which the prosecution put its case. The killing which the applicant expressed to have in mind was a revenge killing for a politically motivated assassination of his father. The killing with which the applicant was charged was never suggested by the prosecution to be that revenge killing. The prosecution case was that Razzak Abdur, a businessman visiting Hong Kong with money on his person, was attacked pursuant to a plan, conceived in advance, to rob him. The actual and full comments of the applicant to Omar were therefore not probative of the killing of Razzak Abdur. Most particularly, this basis for the suggested admissibility of the evidence does not appear to have been the basis upon which the prosecutor sought its admission.

Accordingly, in my judgment, the evidence was not admissible.

114. The rule of evidence is precisely stated in the passage from Makin v Attorney-General for New South Wales [1894] AC 57, 65, to which reference is made by Yeung JA at paragraph [88] above. It is this:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

115. Cross & Tapper on Evidence 9th ed. page 339 remarks that:

"It has been perceptively noted that many of the difficulties experienced by the courts in their attempts to apply Lord Herschell's remarks in Makin might have been eliminated if his two famous sentences had been delivered in the converse order, making it clear that the second was not so much an exception to the first, as the first to the second."

116. In other words, the first question to be addressed is the relevance of the evidence to the issue or issues in the trial. If the evidence is sufficiently probative of that issue or issues, then it becomes admissible, but if its suggested probative value is merely to show that an accused has a propensity to commit the crime with which he has been charged, then the evidence is not to be admitted. There may be many acceptable reasons for the admission of evidence of previous crimes, or of expressions of a desire to commit a crime other than the one charged, two of which are highlighted in the Makin passage, namely, where the evidence bears on the question whether the acts charged were accidental or deliberate; or to rebut some defence which is raised by the accused. So, too, it may be necessary to reveal the commission of another crime because that revelation is inherent to the case: it is part of the background without which the relevant facts cannot emerge. For examples of such cases, see Cross & Tapper, page 341. But what is not permitted is evidence adduced for the sole purpose of, and going no further than, showing that the character of the accused is such that he is disposed to commit the type of crime with which he is charged. The rule is summarised thus in Cross & Tapper at page 335:

"A preliminary formulation of the rule is that evidence of the character or of the misconduct of the accused on other occasions ... tendered to show his bad disposition, is inadmissible unless it is so hightly probative of the issues in the case as to outweigh the prejudice it may cause." (emphasis added).

117. The question then to be asked in this case is this: For what purpose was the evidence of Omar adduced? What was its suggested relevance to the charge that the applicant had on 27 June 1999 murdered the man Razzak Mohammed Abdur?

118. The most obvious source for the intended purpose should be the prosecutor although, in this particular case, the statements on that issue made by the prosecutor at first instance to the trial judge are noteworthy for their lack of clarity; and I feel compelled to say that one is entitled to expect from counsel, not least in a murder trial, greater clarity and specificity than that which emerged.

119. In the course of argument as to the admissibility of the evidence, prosecuting counsel said this:

"... the prosecution say that that evidence is relevant and admissible as to the state of mind of the accused in this particular climate of this case.

One must concede that he doesn't mention the name of the target as being the deceased but, nevertheless, we would say it is relevant and probative of his state of mind. The jury would be entitled to, in our submission, to evaluate this evidence, to hear Mr A1 Rabby, consider if he's a credible witness, and further, if he is a credible witness, if there is probative value in what was said by the defendant at that time." (Transcript p 144)

120. Quite what this means I find difficult to say; and I rather think that the nebulousness of this approach was dictated by the fact that counsel felt himself unable to say that there was a material connection between the applicant's plan, if it existed, to kill his father's killer, and the killing which took place on 27 June 1999 in Hong Kong. The passages which I have cited are notable for their lack of such an assertion. All we have - and it is a theme, as we shall see, to which counsel returned before the judge and, more specifically, before the jury - is an assertion that the comments showed something of the applicant's state of mind.

121. When counsel closed his submissions on the issue of admissibility, he purported to address again the purpose of the evidence. He did not suggest then that there was a nexus, or even that there might be a nexus, between the proposed revenge killing and the killing which in fact took place. The purpose of the evidence was put in these terms:

"So to evaluate whether the defendant was capable of forming the intent to kill, or the lesser intent, to plan some kind of attack on his target, then in my submission, this would be relevant and probative, and again, could be dealt with by the strongest warning of your Lordship as to be cautious about any evidence which is capable of having a prejudicial effect." (Transcript p 148) (Emphasis added).

122. The closest that counsel came to identifying with any clarity the suggested relevance of the evidence was in his closing address to the jury. There was no hint, no contention, that the victim was or may have been allied in any way to, or engaged by, the Sharbara Party supposedly responsible for the death of the applicant's father. Counsel contended rather (see pages 84 and 88 of the transcript) that the motive for this killing, the killing of Razzak Abdur, was robbery. As to the relevance of the conversation with Omar, we see how counsel put it to the jury:

"You also have heard the evidence of the earlier conversation with A1 Rabby some time before, earlier on in June, in which the defendant said his father had been killed when he was young and he had notions to take revenge, he wanted to kill someone. He had a target. Why should he say that to A1 Rabby? It's not the sort of thing - it's not a joke, is it? It's quite a serious thing to say, and he was in a sort of serious mood at the time.

That shows us, does it not, that he is capable of harbouring an intention to kill someone. He doesn't mention Razzak by name, he just mentions 'a target.' But look at that against the background of the whole case, and why should Mr A1 Rabby tell lies about it? Maybe you don't accept his evidence, you can't trust it, but you also when you examine his evidence have to say, well, why should he tell lies about that? That's a bit of evidence, a piece of evidence you can take into account when you look at the plan which would seem to go into motion somewhere after the 25th when Mr Razzak arrived in Hong Kong." (Transcript, page 90) (Emphasis added).

123. So we see there the same justification which counsel had used when making submissions to the judge, that the evidence was admissible to show the applicant was 'capable of harbouring the intention to kill someone'. Yet it was never an issue in this case whether the applicant was capable in certain given circumstances of forming an intention to kill; and to say that the evidence of the comments to Omar was relevant to establish that the applicant was capable of forming an intent to kill, or that he was prepared in certain circumstances to form an intent to kill another person is, with respect, to say no more than that the comments evidence a potential propensity to kill. Of how many individuals it might be said that in certain circumstances they are prepared to form an intent to kill, I know not, but it is clear to me that where that is the sole purpose of adducing such evidence, it is - absent some peculiar relevance in the particular trial - not admissible; and that it was not admissible in this case.

124. I accept that the court is not bound by the concessions of counsel. Yet the concession made by Mr Chapman in this appeal on behalf of the respondent, a concession made by responsible counsel of great experience, that the evidence ought not to have been admitted, is a concession properly made and explained. Mr Chapman has justified the concession by saying:

(1) that there was no sufficient nexus between the words spoken in mid-June by the applicant to Omar and the events which occurred 10 or 11 days later;

(2) that the evidence of the conversation with Omar could hardly amount to similar fact evidence; and

(3) that the evidence was not adduced as necessary background evidence in the circumstances in which that term is properly used.

On each of these points, Mr Chapman is, in my view, correct.

125. I am, accordingly, satisfied that the evidence should not have been admitted, and that its admission constituted, in the context of this trial, a material irregularity.

126. The remaining question therefore is whether this is a case for the application of the proviso. Mr Chapman's contention is that the admission of the evidence could in the event, because of the way the judge dealt with the evidence, virtually inviting the jury to ignore it, have had no impact on the verdict. Mayo VP has, at paragraph [50] above, recited the relevant passage of the summing-up. The problem with that passage is twofold: first, that it does not amount to a direction to ignore the evidence, for the jury is still left to say whether the words were or were not spoken and, secondly, that the jury was not told what relevance or potential relevance the evidence, if accepted, had. They were not even told that the suggested relevance was limited to some capability to form an intent to kill. Rather the matter seems to have been left on the basis that the comments to Omar may well not have been serious. It follows that if the jury decided that the comments had been made, we cannot guess to what use these comments were put - if to the end that they were comments evidencing a plan to kill Razzak Abdur, then that was impermissible for that ran contrary to the prosecution's case; but if merely to the end that they showed this applicant as being a potential killer, then that was impermissible since it was evidence merely as to propensity, and the jury were never directed that they could not utilize the evidence to that end.

127. It must follow, it seems to me, that it would not be acceptable to apply the proviso. Accordingly, I would grant the applicant leave to appeal and, treating the hearing of the application as the appeal, I would allow the appeal, quash the conviction and order a retrial.

128. For the avoidance of doubt, I should state that I accept that there was nothing in the other grounds of appeal advanced - other, that is to say, than those founded on the admissibility of the applicant's conversation with the man called Omar.

129. I would add only this, that my conclusion on the issue of admissibility does not detract from my admiration for the summing up as a whole which, save for the blemish carried over in consequence of the ruling on admissibility, was, if I may respectfully say so, an excellent and thoroughly comprehensive work.

Hon Mayo VP:

130. The application is allowed. However treating it as the appeal it is dismissed by a majority.

Remarks: