HKSAR v. Tahir Nawaz

CACC 484/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 484 OF 2012

(ON APPEAL FROM HCCC NO. 79 OF 2012)

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BETWEEN

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J U D G M E N T
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Hon Lunn VP (giving the Judgment of the Court) :

1.The applicant, who appears in person having been refused the grant of legal aid on 12 March 2014, seeks leave to appeal out of time by notice given by Form XI filed with the Court on 10 February 2014, against the sentence of life imprisonment imposed on him, pursuant to section 2 of the Offences Against The Person Ordinance, Cap. 212, following his conviction on 28 November 2012 of the murder on 18 August 2011 of his wife Shazia, the mother of their three children, after trial by D Pang J, as Pang JA was then, and a jury. On 10 January 2014, this Court refused his application for leave to appeal against conviction.

The prosecution case

2.It was the prosecution case that the applicant killed the deceased on 18 August 2011 by cutting her throat with a 7” blade knife, after having drugging her.  The body of the deceased was pushed off rocks and into the waters off Dragon Beach at Castle Peak Road in Tsuen Wan.  The body was discovered the next day.  Evidence of his out-of-court statements to police officers was adduced at trial, as was forensic evidence.  Having been arrested and cautioned for the murder of Shazia the applicant said, “I killed Shazia.”  The applicant had written a statement in the police officer’s notebook in which he said that they had gone to the beach together by bus.  He believed that she was a Cyclops and evil.  As a result he had cut her neck with a knife, having injected her to cause her to sleep.

3.It was the opinion of a forensic scientist that there was a chance of 29.7 in a quadrillion that someone other than the applicant was the donor of bloodstains found in a trail of blood from the place where Shazia was killed.  A forensic pathologist testified that injuries to the foot of the applicant he examined on 20 August 2011 were highly consistent with the applicant’s explanation that he had slipped, fallen and injured his foot on rocks and barnacles at the seashore.

The defence case

4.The applicant challenged the admissibility of his out-of-court statements.  However, in a voir dire they were ruled admissible and adduced in evidence before the jury.  The applicant testified in the defence case, denying that he had been together with Shazia on Dragon Beach on 18 August 2011 and of killing her.  He was elsewhere.  He explained that he had made the out-of-court statements to police officers as a result of being assaulted, threatened, induced, coached and oppressed.  The forensic evidence produced by the prosecution was the result of their attempts to frame him.

Grounds of appeal against sentence

5.In the grounds of appeal attached to Form XI, the applicant advanced four grounds.

Ground 1

6.By ground 1, he contended that at the material time he had been drunk and drugged.  His urine had tested positive for the presence of an opiate.  That was accepted by the prosecution.  In such circumstances, such a person can be incapable of understanding the nature of their acts, for which acts they are not then responsible.  Next, the applicant asked to be assisted to call psychiatric evidence to provide testimony as to the effect of the use of an opiate together with alcohol.

Ground 2: new evidence

7.By ground 2, the applicant contended that he had new evidence relevant to his state of mind at the time of the killing.  Whilst in custody his blood had been tested and he was found to have a weak haemoglobin count, so that he was susceptible to falling into unconsciousness.  He was possessed of medical reports which he wished to adduce before the court.

Ground 3

8.By ground 3, he submitted that in all the circumstances the more appropriate verdict was one of manslaughter, of which offence he ought to have been convicted rather than that of murder. 

9.By ground 4, the applicant submitted that his counsel had failed to persuade the prosecution to accept a plea of guilty to manslaughter, to which offence he was willing to plead guilty.

Reason for lodging application out of time

10.In an affirmation, dated 10 February 2014, in support of his application for leave to appeal against sentence out of time, the applicant complained that his solicitors told him that he “only [had] to appeal against conviction”.  Later, he realised that he wanted to apply for leave to appeal against sentence.

11.In a letter to the court, dated 11 May 2016, Father Patrick Colgan informed the Court that in his role as a Catholic priest chaplain he had known the applicant for three years.  He invited the court to accept that the applicant was truly regretful for the offence.  He asked the Court to consider the applicant’s submission that he be convicted of manslaughter, rather than murder.  Noting that the applicant was the subject of an indeterminate sentence he invited the Court to consider the imposition of a determinate sentence.

A consideration of the submissions

12.The applicant has provided no reasonable explanation for making his application to leave to appeal against sentence some 14 months out of time.

13.In response to a letter from the applicant dated 8 April 2016, in which he sought information as to the procedure of the hearing, by a letter dated 10 May 2016 the applicant was advised by the Court that the sentence of life imprisonment imposed on the applicant on his conviction for the offence of murder was “mandatory, being one required by law.”  Section 2 of the Offences Against the Person Ordinance provides that:

“ Any person who is convicted of murder shall be imprisoned for life.”

Conclusion

14.Accordingly, we refuse the applicant leave to appeal against sentence out of time.

Epilogue

15.After the imposition of a mandatory life sentence, the subsequent imposition of a determinate sentence in place of an indeterminate sentence is a power that lies with Chief Executive and not the courts.  The Board set up by the Long-term Prison Sentences Review Ordinance, Cap. 524 may make a recommendation to that effect to the Chief Executive.

16.Section 2 of the Ordinance, stipulates that the purpose of the Ordinance, inter alia, is:

“ (a) to provide for the review of prison sentences imposed on prisoners sentenced in Hong Kong to indeterminate or long-term sentences;”

Section 11 of the Ordinance provides:

“ (2) Subject to subsection (3A), the sentence of a prisoner serving a long-term prison sentence or a mandatory life sentence is to be referred for review as soon as practicable after the fifthanniversary of the date of the start of the sentence and as soon as practicable after each subsequent second anniversary of that date.”

Section 15 of the Ordinance provides:

“ (1) When reviewing the sentence of a prisoner in accordance with this Part, the Board may do such of the following as it considers appropriate-

(a) make a recommendation to the Chief Executive that the Chief Executive should-

(ii) substitute a determinate sentence for a prisoner’s indeterminate sentence;”

Ms Teresa Kam SPP, of the Department of Justice, for the respondent

Applicant appeared in person