Mohabbat Hussain v. The Queen
Read the full judgment text of CACC 279/1973 on BabelCite. This Court of Appeal judgment was delivered on 6 January 1973.
1. The appellant and the deceased, both Pakistanis, joined the Royal Hong Kong Police Force in 1961; and in October 1972 they were members of the Police Tactical Unit at Fanling. Inspector Igbal, of the same unit, testified that one evening in September 1972 the appellant telephoned him at his home; and (referring to the deceased) he said something to this effect:
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CACC000279/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 279 OF 1973 -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., McMullin and Pickering, JJ.) Date of Judgment: 6 January 1973 ----------------- JUDGMENT ----------------- Blair-Kerr, S.P.J.: 1. The appellant and the deceased, both Pakistanis, joined the Royal Hong Kong Police Force in 1961; and in October 1972 they were members of the Police Tactical Unit at Fanling. Inspector Igbal, of the same unit, testified that one evening in September 1972 the appellant telephoned him at his home; and (referring to the deceased) he said something to this effect:
So far as the evidence goes, that was the first indication that there was any ill-feeling between the two men. 2. Coming now to 12th October. It appears that the appellant's duties had been altered and that he had not been informed of the change. He had been posted for guard duty from 4 p.m. to midnight that day and did not turn up for duty. The result was that he was put on a defaulter's report. According to the appellant, he was very angry because this defaulter's report was the first blemish on his otherwise unblemished record; and, in his view, the mix-up, as regards the duties, was entirely the fault of the deceased sergeant. 3. The deceased was guard commander from 4 p.m. till midnight on 13th October. The appellant and 3 other constables, under the command of Sergeant Fazal Hussain, were due to take over guard duty at midnight. They were a few minutes late. They arrived at the armoury (where each member of the guard drew a revolver and 6 rounds of amunition) at 8 minutes past midnight. The appellant was posted for duty at the guardroom. 4. At this time the deceased sergeant was alone in the guardroom; and there were no eye-witnesses as to what happened during the next few minutes. The other constables and Sergeant Fazal Hussain heard 4 shots. The first 2 shots were in rapid succession and these were followed by 2 other shots at intervals of 3 or 4 seconds; and the second 2 shots sounded louder than the first 2 shots - thereby giving the constables the impression that the first 2 shots were fired in the guardroom and that the first 2 shots were fired in the guardroom and that the latter 2 shots were fired outside the guardroom. 5. These shots must have been fired almost as soon as the appellant had entered the guardroom. As I have said, it was not in dispute that the relieving guard were 8 minutes late in arriving to draw their weapons. Having drawn them, each constable then proceeded to his assigned place of duty. At this time Chief Inspector Wilkinson was visiting a friend in a bungalow about a quarter of a mile from the unit; and, according to his evidence, he was told (presumably by telephone) that someone had been shot; and he immediately proceeded to the guardroom in his car arriving there, according to him, between "10 past and quarter past midnight"; and his evidence regarding his estimate of the time of his arrival was not challenged. 6. At any rate, he and the other members of the guard found the deceased sergeant lying face downwards on the pathway outside the guardroom and the appellant was standing on the main road a few yards from the body with his revolver in his right hand. Sergeant Fazal Hussain said to the appellant: "What have you done?" and the appellant replied: "What I have done, I have done; take my revolver and arrest me." When Chief Inspector Wilkinson inquired what had happened, the appellant replied: "I shot him because he said nasty things about my wife." 7. There was no dispute that the 4 shots were fired from the appellant's revolver; and all 4 shots either hit the appellant or penetrated his clothing, but, of course, the forensic pathologist who conducted the post-mortem examination was unable to say in which order the shots were fired. The wound which caused death within a matter of minutes was in the front of the neck a little to the right of the midline. The track of the bullet was downward about 70 degrees to the horizontal (i.e. 20 degrees to the vertical) to the left and slightly backwards. It penetrated the descending aorta, the very large blood vessel from the heart. The other wound (which would also have proved fatal, but would not in itself have caused death so quickly) was in the right lower back - the right flank. The track of that bullet was in a slightly upward direction and to the left. It penetrated the spine, the upper part of the left kidney and produced a wound on the front of the spleen. 8. The third bullet had caused an abrasion 2" long by ½" wide on the lower right front of the deceased's chest. The bullet had lodged in the deceased's notebook in his right breast pocket. The fourth bullet had penetrated a fold in the deceased's trousers. The entry and exit holes were in the fabric but the bullet did not come in contact with the deceased's leg. 9. There were also abrasions on the back of the deceased's left hand, his chin, and left knee and these were consistent with his having fallen forward on the concrete path outside the guardroom where his body was found. 10. Clearly, the appellant and the deceased were not standing facing one another at the time the two fatal shots were fired or indeed at the time the other shot, which caused the abrasion on the right lower front of the chest, was fired. The forensic pathologist was not prepared to express a view as to the relative position of the two men at the time; but really this is not a medical matter at all. It is a matter of ordinary common sense. If a person gets into a crouching position or otherwise attempts to avoid being hit by bullets fired by an assailant, one can well imagine that the bullets might well enter the body of the victim at peculiar angles, as was so in this case. The forensic pathologist was not able to say exactly how far away from the body the shots were fired; but he did say that none of the wounds were contact or close contact wounds. 11. The appellant was examined by a doctor rather less than 2 hours after the incident. He told the doctor that "another Pakistani" had assaulted his head and chest. The doctor examined the whole of the appellant's body but could find no marks or the slightest sign of any injury. 12. At 11.22 a.m. on 14th October the appellant was charged with murdering the deceased; and, after being cautioned, he said:
13. The appellant gave evidence. He did not suggest that the officer who recorded his statement in answer to the charge had used any violence towards him or that he had been threatened in any way. He simply said that the officer (who he admitted, was a friend of his) had not recorded the statement correctly. In cross-examination the appellant said:
14. However in examination in chief, he told a more elaborate story about the gun going off during a struggle. Having reiterated his allegation that the deceased said "Do not climb on my penis, you divorcee," he continued:
Then he said that he placed his thermos flask on the table; and the record of his evidence continues thus:-
15. The jury found the appellant guilty of murder. Obviously, in reaching their verdict, they rejected the appellant's story that the revolver was discharged accidentally. They may have felt that, at some stage, there may have been some sort of a struggle for the weapon; but certainly not as described by the appellant; and, as I have said, they may well have come to the conclusion that there was no struggle at all, and that the peculiar angles at which the bullets entered the deceased's body could be explained by the deceased's attempts to crouch, dodge, and escape from his assailant. The jury were not forced to conclude, because the wounds, obviously, could not have been inflicted if the two men were standing facing each other, that the only other alternative was that they were inflicted during a struggle for the weapon. The whole incident happened very quickly; and if the jury came to the conclusion that the first two shots were fired in rapid succession inside the guardroom and the last two outside, a few seconds elapsing between the 2nd and 3rd shots and between the 3rd and 4th shots, they may well have concluded that the deceased was endeavouring to escape from his assailant. 16. As I have said, the defence was accident; and, in a very careful summing-up the judge (Mr. Justice Leonard) correctly told the jury that, it was for the prosecution to prove that it was not an accident; and that if they felt that the appellant's story might reasonably be true, they should acquit him altogether. Furthermore, although the defence of provocation was not raised by the appellant, the judge very properly left this defence to the jury. He gave them an accurate direction on the law, and as to the evidence of provocation, that is to say the appellant's allegations in regard to the filthy abusive language which he said the deceased used and the alleged glancing blow on the face, the judge said:-
17. The appellant filed a number of grounds of appeal; but there was no substance in any of them. The judge gave the jury a perfectly adequate direction on the law, and he reminded them of all the salient features of the evidence. The issues of fact were left fairly to them; and there was ample evidence to support their verdict. After a short hearing on 6th June we dismissed the appeal without calling upon the Crown.
Representation: Samuel K.S. Leung (Helen A. Lo & Co.) for appellant. Samuel K.S. Leung (Helen A. Lo & Co.) for appellant. |