HKSAR v. Husnain Safdar

HCCC 2/2017

[2018] HKCFI 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 2 OF 2017

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REASONS FOR SENTENCE

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1.The drug world is full of tragic and horror stories, and this is one of them. Two people who knew each other and shared drugs together, tragically end up fighting one and other with one of them being brutally killed.

2.The defendant, Husnain Safdar, was found guilty of the murder of the deceased, Andrea Bayr, by the jury. 

3.The deceased was 25 years of age when she met her death.  She was a mother of four children and appears to have been a drug addict.  She was going out with the defendant who was 27 years of age and also a drug addict.  They had over the evening and morning of 28 and 29 March 2016 consumed the drug known as Ice.  With them, was the defendant’s friend, Harris Khan.  They were in a container office on a construction site where the defendant was working as a security guard.  Mr Khan left the defendant and the deceased for a short while, but at that stage there was nothing to cause him any concern about the events that were about to follow.  When he returned, he heard the two of them fighting and arguing.  He went inside and saw that there was blood everywhere.  He tried to push them apart but was unsuccessful and in the process was covered in blood himself.  He rushed out and made a report to the police who eventually returned with him to the site.  The police found the defendant and the deceased outside the container office on a ramp that was being constructed.  The defendant had the deceased in a leg lock and her head was resting on his abdomen as they lay on the floor.  He had a metal electric drill in his hands.  As the police approached, they witnessed him bash the drill on the head of the deceased.  There was no response from her.  One of the police officers shouted “Police” “Stop”.  The police quickly grappled him and brought him under control.  He said “Sorry” and “Water” and then kept on saying “Sorry” and shaking his head. 

4.The police involved should be commended for their bravery in very dangerous circumstances.

5.Drug analysis tests on both the defendant and the deceased revealed that they had been consuming Ice.  Items for the packaging and consumption of Ice with traces of it were found at the scene. Also analysed at the scene were bloodstains and their patterns.  Bloodstains were found inside the container office at various locations which displayed patterns as a result of someone being struck or hit with an object.  Further bloodstains were found outside the container office leading to the ramp where the defendant and the deceased were located.  At that location, there was a large pool of blood, and the metal electric drill was nearby, saturated with blood.  All the bloodstains were that of the deceased. 

6.The defendant testified at trial and gave an account of the events leading to the death of the deceased.  It was in issue at trial that his account should not be believed and clearly the jury by its verdict have rejected his evidence. 

7.He described his history of drug taking, mainly Ice and cannabis, and how it had intensified prior to this incident.  He said prior to the incident he had been hearing voices and acting strangely, and family members and friends were called to confirm his account.  He said that on the night of the incident he and the deceased together with a friend, Harris Khan, consumed drugs in the container office at the construction site. 

8.He said he heard a female voice that asked him to look at the sky which he did.  He said he saw the moon in the sky and a snake in the moon.  He said he was frightened and he went back into the container where he smoked more Ice.  He said the voice told him that today he was going to be killed and he asked the voice who was going to kill him.  The voice did not answer him directly but later said that “your lover, your girlfriend, is going to kill you”. 

9.He asked the deceased if she heard what the voice was saying.  She told him that he was consuming drugs and out of his mind.  He turned her around by grabbing her hand so that she could talk to him face-to-face.  He said her face changed, her eyes and teeth popped out and her face got longer.  He said she turned into a witch.  He said her hands were up and he thought that she was going to strangle him.  He said a hammer came into his hand and he threw it at her but missed.  He said then a drill came into his hand and he hit the deceased with the drill once to the head.  He then ran outside and the deceased chased after him.  He said he still had the drill in his hand.  She caught up with him and put her hand on his back.  He turned around and saw her.  She still had the same face of that of a witch and he started beating her up.  He said that he had been told by the voice that he would be killed and he kept hitting her because he believed the voice.

10.He said at the time they were just talking and there was no yelling or screaming or any argument or quarrelling between them. Whilst he remembered a considerable amount of detail as to what happened, including it was a full moon that he saw in the sky and that there were 3 bottles on a table inside the container which they used to consume the Ice, he did not remember saying “Sorry” repeatedly to the police or seeing Harris Khan inside the container and trying to intervene.

11.The defendant testified that he was hallucinating at the time and that he believed the deceased was a witch.  He said he had no intention to kill the deceased.  Although it should be noted, that the voice told him that it would be the deceased who would kill him.

12.It was the defence case that the deceased was the defendant’s girlfriend and that they loved each other and they were planning to get married.  The defendant said that he met the deceased on New Year’s day in 2016, some three months before the incident, at a place where drugs were consumed and thereafter they went out and consumed drugs together. The defendant commenced his job as a security guard at the construction site in question on 22 January 2016.  It was also the defence case that the deceased would bring drugs to the defendant at his place of work where they would consume the drugs.

13.Harris Khan in his testimony said that he left the container to go to the toilet.  He said the defendant and the deceased were okay and there had been no arguing between them.  When he returned from the toilet, he could hear screaming, loud voices and noises.  He rushed in and saw a lot of blood.  He said they were arguing and fighting.  He tried to push them apart but did not succeed.  He got a lot of blood on him.  He tried ringing the family members of the defendant but was unable to get their telephone numbers. He said he was shocked as he never thought the defendant would do such things. He then made a report to the police that someone was fighting.  He went to the police station which was across the road to bring the police to the site. 

14.The prosecution made the point during the trial that Mr Khan had also been consuming drugs and yet as a result of what he saw, he reported a fight to the police and went in person to the police station.

15.Mr Khan also said that the defendant and the deceased in the past would argue and quarrel but this was contrary to the evidence given by the defendant. 

16.As I have already noted, the account given by the defendant was rejected by the jury as evidenced by its verdict.  The defendant’s evidence was contrasted with the evidence of Harris Khan that the defendant and the deceased were fighting inside the container and that in failing to separate them, he made a report of fighting to the police; the evidence of the forensic scientist concerning the bloodstains and their patterns in the container and outside on the ramp which all belonged to the deceased; and the evidence of the injuries that the deceased sustained.  The prosecution case which the jury accepted by its verdict was that the defendant’s account should be disbelieved and that the defendant deliberately killed the deceased in that there was an argument between them which Mr Khan tried to stop, but was unsuccessful, and that the defendant chased after and continued hitting the deceased until she was dead. 

17.At the time of the defendant’s arrest, he was taken to hospital and because of his condition, including his drug intoxication, it was recommended that he be admitted to Castle Peak Hospital.  Several days later, he was admitted to Siu Lam Psychiatric Centre.  He was seen by Dr WK Choi, a psychiatrist.  He reported that the defendant had displayed psychotic symptoms and noted that he was a longstanding polysubstance abuser.  He recorded that the defendant told him that he roughly remembered that he had seen a snake in the moon but forgot what had happened.  It was noted that there was no mention by the defendant during the consultations with Dr Choi from April to June 2016 that the deceased had turned into a witch. 

18.Dr Choi’s report which was produced by the defence was given in order to assess the defendant’s mental state for police interview.  He expressed the opinion in his June report that the defendant could follow questions and make reasoned and rational decisions about whether he wanted to say anything. 

19.Psychiatric reports were also produced at trial from Dr Paul Tam who saw the defendant on 8 June 2017 and Dr Kavin Chow who saw the defendant on various occasions between August and September 2017. 

20.The doctors largely relied on the account given to them by the defendant about the events leading up to and surrounding the incident.  This account briefly described that the defendant heard a voice which told him that he would be killed, that his girlfriend would kill him and that his girlfriend turned into a witch. 

21.Dr Tam was of the opinion that the defendant was suffering from active psychotic effects of Ice on top of the psychiatric effects affecting him as a chronic drug abuser.  He stated that the defendant was addicted to and dependent on Ice which caused him a temporary abnormality of mind in that “he thought the woman he truly loved and wanted to marry was a monster”. 

22.Dr Chow also largely based her opinion on the defendant’s account of his background and experiences as well as his account of the events of the incident.  Although she also relied on other materials that were set out in her reports.  She was of the opinion that the defendant was suffering from Stimulant Use Disorder (Ice), Cannabis Use Disorder and Substance Induced Psychotic Disorder.  She expressed the opinion that the defendant took the drugs willingly and voluntarily and that if he did not take the drugs on the day of the offence, he may not have experienced the psychotic symptoms which were associated with the subsequent killing.  However, she was of the opinion that the defendant experienced active psychotic symptoms and that he killed the deceased under the influence of the psychotic symptoms. This was primarily based on the defendant’s account of experiencing hallucinations on the day of the offence. 

23.As I have already noted, the jury by its verdict had rejected the defendant’s account and of course they had the benefit of hearing all the evidence in arriving at their decision. 

24.This was a brutal and horrific killing.  The injuries to the deceased were extensive.  She had multiple head wounds and the drill bit from the electric drill had been impaled below her right eye, reaching her jawbone.  About 5 cm of the drill bit was protruding from her face.  She also had severe bruising and injuries around her neck which would indicate that the defendant also tried to, or did, strangle her.  The forensic pathologist said the cause of death was “head and neck injuries”.  The deceased also had defensive injuries which indicated that she was alive for most of the time that she was being attacked by the defendant and fighting for her life as she tried to ward off the blows.  This was further material that contradicted the defendant’s account that inside the container he hit the deceased once to the head and ran out, and that she chased after him.  As put by the prosecution, the evidence supported a case of more than one blow being struck inside the container given that the deceased’s bloodstains were scattered at several locations inside the container, as well as the account given by Harris Khan, and that he chased after her, hitting her with the electric drill.

25.In the course of the trial and in today’s hearing, the defendant’s background and circumstances have been highlighted. The defendant was 27 years of age at the time of the offence.  He had a clear record.  He was working as a nightshift security guard at the construction site.  A position that he had commenced on 22 January 2016.  I am told that he was the breadwinner of the family and that this responsibility has now fallen on the defendant’s younger brother who also works as a security guard. 

26.The defendant was born in Hong Kong.  His father passed away when he was young, and as a result he left school early and sought employment to support his family.  It would appear that he and his family have spent time here in Hong Kong as well as in Pakistan.  In fact, I am told the defendant was educated in Pakistan and returned to Hong Kong at the age of 16 and entered Form 1. 

27.He has been in regular employment mainly in relation to jobs on construction sites.  He said that he first took drugs in 2007 and started taking cannabis and smoking Ice and that his drug taking intensified over the years.  He said he was taking heavy doses of Ice in the period leading up to the offence.  There were incidents with his family which resulted in the police being notified about them.  It would appear that because of his regular employment, he was able to buy drugs and maintain his drug habit.  

28.Mr David Boyton, for the defendant, has submitted to me that the defendant is a religious person.  He is a Muslim.  He explained that the defendant is remorseful for what he has done.  He told me that the defendant wished to pray for the deceased’s soul but cannot do so because she was not a Muslim which has distressed him.

29.As I said at the outset of my reasons, this is a tragic and horrible case, where the wayward lifestyle of two young people involved in drug abuse has resulted in the death of one of them.  A young mother has tragically lost her life.  

30.The defendant has been found guilty of murder and as required by law the sentence on him is one of life imprisonment.  The sentence reflects the inherent seriousness and gravity of the offence of murder.

Mr Terence Wai, counsel on fiat, for HKSAR

Mr David Boyton, instructed by B Manek & Co, assigned by Director of Legal Aid, for the defendant