HKSAR v. Gurcharan Singh

CACC000028/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 28
(Criminal)

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Coram: Hon Power, V.-P., Mortimer, V.-P. and Liu, J.A. in Court

Dates of Hearing: 7 August 1997 and 29 May 1998

Date of delivery of Judgment: 17 June 1998

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J U D G M E N T

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Mortimer, V.-P. :

This is an application for leave to appeal against a conviction for murder recorded before Stock J and a jury on 17 December 1996.

The facts

1. On 12 December 1995 Tanveer Hussain was murdered in his flat in Shanghai Street, Mongkok. The cause of death was 162 chop wounds. The evidence that the applicant was a participant in the murder came chiefly from his answers in video interviews with the police and his video reconstruction of the crime.

2. The applicant admitted presence in the flat when Bashir Khan carried out the killing with a chopper. He admitted he was also armed with a similar weapon.

3. The prosecution case was that Bashir Khan asked the applicant to assist him in the killing, that he did so, and he was a full participant in the offence.

4. The applicant's case was that he had been asked to accompany Khan to teach the deceased a lesson but only by assaulting him, not killing him. In the reconstruction, he demonstrated holding a chopper up high as if to strike a blow but the blade never hit the deceased because the chopper came apart. He sustained injury to his finger from the chopper held by Khan.

5. The details given by the applicant surrounding his presence at the flat during the killing vary greatly but his contention throughout was that he was reassured - and he accepted - that Khan was going to carry out only "a little assault" on the dead man with no intention to kill him.

Should the judge have left manslaughter to the jury?

6. Miss Draycott, who appears for the applicant, contends that the judge ought to have directed the jury that it was open to them to convict of manslaughter. In summary, she submits that it is not possible to know what the jury may have concluded from the applicant's varied and conflicting accounts. Therefore, if the jury found that the applicant joined an enterprise with the intention only to assault and that the death was an unforeseen consequence of a "little assault" with two choppers and a knife, the proper verdict would be manslaughter.

7. The judge dealt with the nature of the plan to which the applicant was a party in some detail and then at 83I-P directed the jury as follows:

"In other words, if the attack which in fact took place was fundamentally different from a use of choppers just to frighten, for example, if you think that is what may have happened, or the use of choppers just to cause minor injuries, or just a plan to assault without choppers, if you think that that is all that was the agreed plan as far as the defendant understood it or contemplated it, if there was such a difference between plan and attack, between attack and what the defendant contemplated, then he must be acquitted unless he lent himself to the new enterprise once it unfolded."

So the judge left murder or nothing. It is suggested that this shut out the jury from considering an attack which was not "fundamentally different" from that which took place but was an unforeseen consequence of a planned minor assault with choppers or with the use of choppers just to frighten, in which circumstances the applicant would be guilty of manslaughter not murder.

8. For this to be a ground of appeal with any chance of success, it must follow that the failure to leave manslaughter rendered the conviction for murder unsafe or at least was a material irregularity in the trial. This is the issue for our consideration

9. The circumstances in which an alternate verdict ought to be left to a jury are to be found in passages in R v Fairbanks, 83 CrAppR 215 at 255-256 which was reconsidered in R v Maxwell 88 CrAppR 173 at 176 and approved by the House of Lords in the same case reported at 91 CriAppR 61 at 68. The conclusions are accurately summarised in Archbold 1998 Edition at paragraph 4-463:

"In R v Fairbanks, 83 CrAppR 251, CA, Mustill LJ, at pp 255-256, gave examples of cases where it would be right not to leave the alternative offence to the jury: (a) 'where the lesser verdict simply does not arise on the way in which the case had been presented to the court'; (b) 'where at one stage of the trial there was a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue'; (c) 'where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case,' e.g. where consideration of a further trivial offence would be an unnecessary complication.

'The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence': per Mustill LJ in R v Maxwell, 88 CrAppR 173 at 176, CA, in a passage approved by the House of Lords at 91 CrAppR 61,68."

It should be noted, however, that a failure to observe these guidelines does not vitiate a conviction on the main offence in the absence of other grounds.

10. We accept that it would have been open to the judge to leave manslaughter to the jury but the judge exercised his discretion not to do so. There was a clear issue for the jury's consideration. The applicant said he joined an enterprise involving at most a minor assault with choppers. The prosecution case was that he was a joint participant in the killing. Manslaughter was hardly a realistic issue and the judge's direction was that if the jury thought the applicant's evidence may be true they should acquit. He rightly made it clear that the applicant's account was "fundamentally different" from the attack which actually took place.

Conclusion on the 1st issue

11. In our judgment, the judge correctly simplified this issue for the jury. His directions were helpful in identifying the issues and were not in any way unfair or unfavourable to the applicant. There is no basis upon which it can be argued that the failure to leave manslaughter to the jury rendered the verdict of murder unsafe or unsatisfactory or vitiated it on any other ground.

Ought the judge to have ruled part of the interview, Exhibit 18, and all the reconstruction, Exhibit 60, inadmissible?

12. Exhibit 18 is the transcript of a video interview which the police conducted with the applicant. It began at about midnight on 21 December 1995. Superintendent Lo was present. Midway through the interview Superintendent Lo decided to leave. He told the applicant that the reason for his presence had been to observe. Before leaving, he asked the applicant whether there was anything he wished to say about the way in which the interview had been conducted. The applicant made no complaint. He said he was comfortable, was telling the truth and was happy with it.

13. Before the Superintendent left, however, the applicant requested that he should help him get a "minimised sentence". The Superintendent explained (we paraphrase) that what had been recorded in the interview would be seen by the judge and jury. It would be for them to make the decision. But based on what the Superintendent had seen, the applicant had cooperated and whoever saw the video later may form the same opinion. He added that it was not for him (the Superintendent) to decide on sentence. The applicant said that he knew the Superintendent could not increase or decrease the sentence but he could request the judge to reduce the sentence on his (the applicant's) behalf.

14. To this, the Superintendent said that under the current system in Hong Kong, he could bring to the attention of the judge and jury that he (the applicant) had been cooperating and that his cooperation would be taken into consideration before sentence was passed.

15. There followed discussion and a request by the applicant to see his father and younger brother. The Superintendent explained that there were no conditions attached to whether or not he (the applicant) would cooperate with the police. The applicant said he understood.

16. Thereafter, the applicant continued his account of the events surrounding the murder from the point where he had been interrupted by the Superintendent's departure. The interview finished in the early hours of 22 December 1995. The following afternoon shortly after 1 pm, the applicant took part in a reconstruction of the offence after the usual cautions and the applicant's consent.

17. Miss Draycott submits that the conversation with Inspector Lo was a clear inducement to the applicant to continue confessing to his part in the crime and that the judge ought to have ruled out the interview which followed the inducement as well as the reconstruction the following afternoon.

18. This evidence was challenged in a voir dire. The applicant gave evidence that when he consented to take part in the reconstruction, Superintendent Lo's words were still in his mind. The transcript reads:

"Q. Why did you consent to do it? What did you think was in it for you?

A. Because Mr Lo's words were wandering in my mind all the time and I was thinking that if I refuse to be videoed they will not help me, they might not help me."

Miss Draycott submits that the judge's ruling to admit the challenged evidence cannot stand because no judge properly directing himself could be satisfied beyond reasonable doubt that confessions which followed this inducement were voluntary.

19. With characteristic care the judge examined the circumstances of the inducement. He directed himself properly on the law and found as follows:

"I am satisfied that he (the applicant) was the instigator of these two interviews. He had already decided upon an exercise in confession and avoidance. In other words, to tell the police about the killings and Bashir Khan's involvement in them and yet to minimise his role and to emphasise that what transpired went beyond the bounds of the scheme of the operation as it had been put to him.

That becomes all the more evident in the subsequent interviews. In other words, I am sure that his continued cooperation and participation interviews and the reconstruction was in fact not at all dependent on anything the Superintendent had said and that he, the defendant, subsequently said what he had to say and did what he did regardless of the conversation with the Superintendent."

20. The question before this Court is whether there was evidence before the judge upon which it was open to him to find that the prosecution had established beyond reasonable doubt that the relevant part of the confession and the following day's reconstruction was evidence given voluntarily by the applicant. In other words, that the conversation with the Superintendent did not induce the applicant to make any admission which followed.

21. Initially, Mr Kripas for the prosecution was inclined to argue that the Superintendent's words did not amount to an inducement by a person in authority. Faced with the Court's reaction to this submission, he did not persist. Rightly so because it was accepted in the court below that the words were a potential inducement. Undoubtedly they were. Superintendent Lo was no doubt taken by surprise by the applicant's enquiry. We have no doubt that it was not his intention to induce the applicant to confess further. It was a casual conversation instigated by the applicant. Also, it was erroneous as the sentence for murder is fixed.

22. The judge had before him the full pattern of the interviews with the applicant including the reconstruction and all the evidence given on the voir dire.

Conclusion on the 2nd issue

23. Having considered this evidence in its proper context, the judge was in the best position to consider and decide this issue. He considered it with great care. His conclusion was based upon the evidence. It was a conclusion clearly open to him on that evidence. There is no sound basis advanced upon which this Court could properly interfere with his decision to admit the disputed evidence.

Result

24. For these reasons there are no grounds advanced upon which we can give leave to appeal. The application is dismissed.

Representation:

Miss Charlotte Draycott (DLA) for Applicant

Mr K.S. Kripas (DPP) for Respondent