HKSAR v. Harman Preet

CACC 190/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 190 OF 2004

(ON APPEAL FROM HCCC 7 of 2003)

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BETWEEN

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Before: Hon Stuart-Moore VP, Burrell and Lugar-Mawson JJ

Date of Hearing: 11 March 2005

Date of Judgment: 17 March 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 6 August 2002, when police gained entry at about 6:18 a.m. to Room 2 of the Mandarin Guest House on the 13^th floor of Block E in Chungking Mansions, Nathan Road, the scene which confronted them, as depicted in photographs taken shortly thereafter, revealed that a murder of the most brutal kind had been committed.  The deceased, Gule Ahmar, was a forty-four year-old woman who worked as a prostitute.  She was murdered in the room which she had been sharing with a much younger woman, Jaswinder Kaur. 

2.The central issue at trial before Lunn J and a jury was whether the prosecution’s evidence was sufficient to prove to the required standard that the applicant was the murderer.  At the time of the killing, he was two weeks short of his 18^th birthday.  The applicant has sought leave to appeal against his conviction on 21 April 2004 on the ground that he was denied a fair trial.

3.There is an additional application in this case seeking leave to appeal against sentence.  The applicant was sentenced by Lunn J on 22 April 2004 to life imprisonment with a minimum term to be served of twenty-five years.  It was submitted on his behalf that an indeterminate sentence was wrong in principle and that the minimum term was manifestly excessive.

Prosecution’s case

4.The applicant arrived in Hong Kong on 27 July 2002.  He took up residence on the 8^th floor of Block A, Chungking Mansions, at the new Mandarin Guest House which, as its name implies, was associated to the guesthouse where the murder occurred in Block E.  Both guesthouses were operated by Satpal Singh who, on the night of the murder, had put a friend of the applicant’s, Jagjit Singh, in charge of them. Jagjit Singh worked on an informal basis at the two guesthouses, recruiting customers to stay in them and helping to look after the guests’ interests during their stay.

5.During the evening of 5 August and the early morning of 6 August 2002, the applicant was recorded on CCTV film making his way up and down in the lifts of Blocks A and E of Chungking Mansions.  His last trip before the murder, which appears to have occurred at some time between 2:30 a.m. and about 3:00 a.m., was when he went to buy food and drink from McDonalds for the deceased and others.  He made his way down by lift from the Mandarin Guest House on the 13^th floor of Block E at 12:31 a.m. on 6 August and he returned, again by lift, at 12:48 a.m.  Those present at that time on the 13^th floor at Block E, included the applicant, Jagjit Singh, Jaswinder Kaur and the deceased.  Thereafter, neither the applicant nor Jagjit Singh came down again by lift but at 3:41 a.m. they were seen to enter Chungking Mansions through the main entrance to Block A.

6.On that night, Awazb Zakir Syed (Syed) was staying in Room 1 which adjoined Room 2, the deceased’s room.  At about 2:30 a.m. to 3:00 a.m. he was awakened by the sound of screams and heard a female shouting in Hindi that she was being beaten or killed.  He also heard the sound of banging coming from Room 2.  Soon afterwards, he heard a man speaking in Urdu or Hindi asking what had happened.  A man replied in English that there was no problem.  The sounds of the female voice continued for a time gradually becoming lower in volume.

7.At about 3:00 a.m., Jagjit Singh said that he and Jaswinder Kaur were in Room 4 when he heard a female screaming from the direction of Room 2.  A Bangladeshi from Room 3 knocked on the door of Room 2 and asked in Hindi why she was making so much noise.  A female voice replied in Hindi that nothing had happened.  About five to ten minutes later, Jagjit Singh heard a female voice screaming loudly and calling out to “Jasi” that she had been beaten or killed.  On hearing this, Jagjit Singh came out of Room 4 and knocked on the door of the deceased’s room to ask her why she was screaming.  The applicant, whose voice he knew and recognised, replied in Punjabi that if he opened the door he would kill him and “that girl also” and that he was not to open the door.  He was told to go away. 

8.Jagjit Singh was very afraid and went down the stairs where he sat on the steps.  About fifteen to twenty minutes later, the applicant joined him.  He noticed that the applicant had blood coming from injuries to his right hand and that there were bloodstains on his blue T-shirt and light coloured trousers.

9.At the applicant’s suggestion, Jagjit Singh and the applicant then went to the 8^th floor of Block A of Chungking Mansions.  They were, as we have already indicated, recorded on film coming into Block A at 3:41 a.m. where they took the lift to the 8^th floor.  The applicant went to the toilet, emerging later wearing only his underwear.  There was no sign of his other clothing.  Soon afterwards, the applicant suggested they go back downstairs which they did using the stairs rather than the lift.

10.Later, Jagjit Singh escorted three Bangladeshis from the Block E guesthouse to the airport bus stop.  These were three guests who had been staying in Room 3, two of whom were leaving Hong Kong.  Jagjit Singh together with Abdul Razak, the remaining Bangladeshi, then returned to the 13^th floor of Block E at 4:56 a.m.  It was on this visit that Jagjit Singh found Room 2 to be in disarray.  The telephone wires had been cut and bloodstained towels lay on the floor outside the room.

11.Jagjit Singh also noticed that a sheet had been wrapped around the doorknob to Room 4 preventing Jaswinder Kaur, who was still inside, from leaving.  Jagjit Singh and Abdul Razak untied the sheet and released her.  After that, Jagjit Singh, Jaswinder Kaur and Abdul Razak went to the 8^th floor of Block A where they met the applicant.

12.Jagjit Singh then telephoned Satpal Singh as a result of which the applicant, together with Jagjit Singh, Jaswinder Kaur and Abdul Razak went back to the 13^th floor of Block E.  On arrival, the applicant went into Room 2 and emerged with Jaswinder Kaur’s scarf and slippers.  The applicant took the slippers to Room 5 where he washed them in the washbasin.  At this stage, Jagjit Singh saw the body of the deceased lying on the floor in Room 2.  After the applicant came out of Room 5, he said that the deceased had fallen in the position in which she was lying.

13.Satpal Singh arrived at the scene at about 6:10 a.m. and called the police but, before their arrival, the applicant left Chungking Mansions. 

14.The police investigation which followed revealed a number of important strands of evidence connected to the killing.  Amongst these, were the following:

(a)	A wet bloodstained T-shirt, a pair of beige trousers and a vest were found on the 3rd floor courtyard of Block A beneath the 8th floor of that guesthouse.
(b)	Two days later, police found a chopper on an air-conditioning unit on the floor below the 13th floor of the Block E guesthouse, close to the bathroom of Room 5.  They also found a knife in the courtyard beneath.  The forensic pathologist who later saw these weapons expressed the opinion that each of these weapons was consistent with having been used to cause some of the injuries to the deceased.
(c)	The DNA of the blood found on the chopper was a man’s DNA in a majority proportion and a woman’s DNA as to the remaining proportion.  The random match probability (RMP) of a person having the same DNA match as the applicant to the DNA of the blood found on the chopper was between 1 in 11 million and 1 in 41 million.
(d)	On the front of the blue T-shirt, there was female DNA which had an RMP related to the deceased of between 1 in 408,000 and 1 in 910,000.
(e)	In a blood sample taken from the floor area of Room 2 next to a footprint in blood, DNA was found which had been contributed by both a male and a female.  The likelihood ratio of this having come from the deceased and the applicant was 1 in 38 million.
(f)	The palm print of the applicant was found on a wall in the bathroom of Room 2 of the Block E guesthouse.
(g)	Two of the footprints on the two towels outside Room 2 agreed in size and shape with that of the applicant.  They were not, according to expert evidence, Jagjit Singh’s footprints.
(h)	In the bathroom of Room 5 in the same guesthouse, there was another blood sample containing DNA which matched that of the applicant.
(i)	The blood in the toilet bowl in Room 5 of the Block E guesthouse contained a mixture of DNA which could have come from the applicant, the deceased and an unknown person.  Jagjit Singh’s DNA was excluded.
(j)	Semen taken from an external anal swab from the deceased matched that of the applicant with an RMP of between 1 in 34 million and 1 in 128 million.
(k)	There were a total of twenty-eight separate cut wounds on the hands of the applicant, the great majority to his right hand clearly of a relatively recent origin.  There were no recent external injuries on the body of Jagjit Singh.

15.In a video-recorded interview (Exhibit P255) after the arrest of the applicant on 7 August 2002, he denied murdering the deceased.  He also denied that he had entered Rooms 2 and 5 on the 13^th floor of the Block E guesthouse and he explained that the injuries to his right hand were caused whilst he was peeling a potato during the late morning of 6 August when he was at the Sikh Temple.  In this regard, a similar story had been given by the applicant to a doctor at the Tang Shiu Kin Hospital when, before his arrest, the applicant went there to be treated for his hand injuries.

16.The jury were informed that Jagjit Singh was charged with, and had pleaded guilty to, assisting an offender in that he misled the police, causing them to believe that a person who was not the applicant was involved in the murder of the deceased, with intent to impede the apprehension or prosecution of the applicant.

Defence case

17.The applicant gave evidence at trial.  He was a man of clear record.  He came to Hong Kong on 2 July 2002 under an arrangement made by his father which involved Jagjit Singh bringing him to Hong Kong to become a permanent resident.

18.He said that he realised that Jagjit Singh had lied to him soon after his arrival in Hong Kong with the result that he returned to India on 5 July 2002.  Nevertheless, three weeks later, on 27 July 2002, he came back to Hong Kong and chose to stay with Jagjit Singh at the 8^th floor guesthouse in Block A of Chungking Mansions.

19.On 4 August 2002, the applicant said that he had a fight with a person of Chinese origin in the Chungking Mansions lift lobby to Block A.  His hand came into contact with a knife which this unknown man produced from his pocket and hence he received the injuries to his hand.  He did not report this incident or seek immediate medical treatment because Jagjit Singh had told him they were working illegally in Hong Kong.

20.On the night of the murder, the applicant said there was a time when he was in the lobby of the 13^th floor of the Block E guesthouse together with Jagjit Singh, the deceased and Jaswinder Kaur listening to audiotapes.  The deceased asked Jagjit Singh for some refreshments and Jagjit Singh, in turn, asked the applicant to go to McDonalds to buy some refreshments.  He said that he left the 13^th floor after he had given the food and drink to Jagjit Singh.  He took the stairs which he said it was normal for him to do when going down as it was quicker to do so.  He said that he was in a hurry and went to Mirador Mansions to meet a friend.

21.Later, he described how Jagjit Singh joined him at Mirador Mansions and took him back to the 8^th floor of the Block A guesthouse.  The applicant denied disposing of any clothing from a bathroom in the guesthouse, but he agreed that he had changed his clothing.  He had done so, he said, because Jagjit Singh had handed him a long-sleeved shirt as he came out of the toilet and because he had taken off the shirt he had been wearing earlier as it was hot.  Jagjit Singh then told him he had heard screaming on the 13^th floor of Block E and he asked the applicant to come with him to see what had happened.

22.The applicant agreed but, before he left the 8^th floor premises, he said that he firstly went to the toilet to wash himself, although later he corrected this by saying that he had not washed.  It was when he came out of the toilet, he put on the shirt that Jagjit Singh was holding for him and some trousers which were on the bed.  He denied that the shirt, recovered by the police from the 3^rd floor courtyard of Block A, had been worn by him during the early morning on 6 August 2002.

23.On the ground floor of Block E, the applicant said that he became upset when he noticed that Jagjit Singh had carried a blue T-shirt from Block A which was by then tucked into the waistband at the back of his trousers.  On the way up the stairs to the 13^th floor, the applicant decided to return to his room as he thought there might be a problem.  He then went back to the 8^th floor of Block A where he removed all his clothing except his underpants and went to sleep.

24.He was later awakened by Jagjit Singh, Abdul Razak and Jaswinder Kaur.  Jagjit Singh told him that a murder had taken place.  Jagjit Singh called Satpal Singh who said they should go back to the 13^th floor of Block E to see what had happened.

25.The four of them went down to the ground floor of Block A.  Abdul Razak left on Jagjit Singh’s instructions.  The three of them who were left went up by lift to the 13^th floor and the applicant said he saw bloodstains on the floor in the middle of the red tiling.  Jaswinder Kaur asked for her scarf and slippers to be obtained from her room (Room 2) and Jagjit Singh used the keys to open the door.  Jagjit Singh, having removed his footwear, went inside and later handed the applicant a chopper.  When Jagjit Singh came out, he left his footprints on the towels.

26.Jagjit Singh instructed the applicant to wash the chopper and he only did so because he felt helpless.  The applicant also wiped away the bloodstained footprints in Room 5 and from an area of the guesthouse lobby.  He washed his own hands in the Room 5 bathroom.

27.The applicant said the three of them then went to the 8^th floor of Block A where Jagjit Singh again phoned Satpal Singh.  Jagjit Singh and Jaswinder Kaur then went to the 13^th floor of Block E but he declined to go.

28.A short while later, the applicant received a telephone call from Jagjit Singh who requested him to meet Satpal Singh at the main entrance.  Having met Satpal Singh there, both of them went to the 13^th floor of Block E.  After Saptal Singh had called the police, Satpal Singh told the applicant to leave as he was a visitor. 

29.The applicant then took a ferry and went to the Sikh temple.  On 7 August, after he had retuned to the 8^th floor of Block A, he was duly arrested.  He alleged that he was mistreated by the police before he was interviewed.

30.The applicant denied having anything to do with killing the deceased and he also denied any sexual contact with her as he said that he thought of her in a similar way to his own mother.

31.Three letters were produced in the course of the trial (Exhibits D2A, D2B and D2C) bearing the dates 7and 14 November, and 30 December 2002, respectively.  The applicant stated that they were in Jagjit Singh’s handwriting.  (When these were shown to Jagjit Singh, he denied writing any of them).  On their face, they amounted to a complete confession by Jagjit Singh to the murder and gave an explanation which exonerated the applicant.  The applicant said that he had handed the letters to his lawyers close to the time of the dates shown on them.  At no stage, in advance of the trial, were these letters given to the prosecution for investigation.

32.The applicant called a Sikh priest, Nishan Singh, to testify that he had seen the applicant shortly after the applicant had been involved in a fight at the entrance to Chungking Mansions.  He saw a bloodstained handkerchief wrapped around the applicant’s fingers.

The application

33.It was submitted by Mrs Panesar, in five grounds of appeal alleging that the applicant had been denied a fair trial, that the verdict was unsafe or unsatisfactory.

(1)  The summing up

34.In her first ground, Mrs Panesar contended that the summing up was unfair because of what she alleged were inadequacies in the directions given to the jury. 

35.Firstly, in this regard, she contended that there had been no direction to the effect that, in the event the jury rejected the defence evidence, they should not draw an inference of guilt or equate their rejection of the defence with proof beyond reasonable doubt against the applicant.  In a case which was wholly dependent upon circumstantial evidence, it was submitted that the material facts alleged against the applicant gave rise to alternative inferences and, in such circumstances, the standard directions given by the judge (at page 24) about the drawing of inferences were inappropriate in that these would have led the jury to believe that inferences could properly be drawn.

36.We have examined the judge’s meticulous handling of the evidence relating to the applicant’s palmprint found in Room 2, the bloodstained footprints outside that room, the injuries to the applicant’s hand, the bloodstained clothing and the presence of the applicant’s blood, as well the deceased’s, upon these clothes, the presence of the applicant’s semen on the anal swab taken from the deceased, together with lies which the applicant may have told, and we are satisfied that no unfairness whatsoever was caused to the applicant by the manner in which the judge set out the circumstantial evidence or from the way he explained that inferences might be drawn from them.  On the contrary, these matters were explained accurately and fairly to the jury.

37.Secondly, it was suggested under this ground that the judge had failed to give a direction to the jury about the proper approach they should take to evidence led on behalf of the defence in the event that the jury rejected this.  However, there is no requirement that in every case the judge should give a direction in the terms set out in R. v. Liberato [1985] 159 CLR 507 at 515, as Mrs Panesar invited us to say, where it was held that the jury must be told that:

“… even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.  The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue”

The judgment in that case makes it plain that a “suitable direction” to this effect should be given to ensure, in cases where there has been a conflict between prosecution and defence witnesses, that if the jury take an adverse view of the evidence called by the defence, this is not taken by them “as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving”.

38.In the present case, the judge when giving directions about the burden and standard of proof, directed the jury as follows:

“It is the prosecution who have brought this charge against the defendant and it is for the prosecution to prove his guilt.  The defendant does not have to prove his innocence.  The burden of proving the defendant’s guilt is always on the prosecution.

In this case, the defendant has given evidence.  If you accept his denial of involvement in the killing of the deceased or if you think that that evidence may be true, then, of course, you would acquit the defendant.”  (Emphasis added) (Appeal bundle p. 25)

39.This easily understood and frequently used formula will, in most cases and certainly in the present one, be sufficient to explain the proper approach to evidence called on behalf of the defence.

40.In the third point, arising from the summing up, it was argued at first that the judge failed to give the jury a proper direction as to the evidence of ‘alibi’ which was provided by the applicant when he described, both in his interviews and in his testimony, how he had been absent from Chungking Mansions at the time of the killing.

41.Again, there is no requirement that a judge must direct the jury in every case that it is for the prosecution to disprove the alibi and not for the defendant to prove it although, where an alibi witness other than the defendant is called, such a direction will usually be necessary.  Where, as here, the evidence giving rise to an alibi came from the applicant himself, the direction to which we have referred, that if his evidence denying involvement in the killing was accepted or if his evidence might be true the jury should acquit, was quite sufficient.  In the event that the jury disbelieved the applicant, the judge later gave a full direction on the approach they should take towards ‘lies’. 

42.During the course of argument, Mrs Panesar accepted that she had been wrong to make this complaint and, to her credit, she indicated that she would no longer pursue it.

43.The next complaint was that the judge commented in the summing up on the failure to make disclosure of the evidence to be given by the Sikh priest, Nishan Singh, prior to the commencement of the defence case.  His testimony lent support to the suggestion that there had been a fight between the applicant and an unknown assailant leading to the wounds on the applicant’s hand.

44.There was, of course, no duty on the defence to reveal the nature of this evidence and at no stage did the judge suggest that there was any such duty.  His comments were in these terms:

“You may feel it strange that no attempt has been made, of which there is any evidence, of any provision of this prospective evidence to the police in advance of the defence case.  Clearly, injuries to the defendant’s hand were as (Detective Senior Inspector) Fremaux said in the video record of interview, a remarkable coincidence given that the police were involved in an investigation into a killing where the deceased had been killed with sharp instruments, and the police were highly suspicious of this coincidence.

Also, it was known to the defendant, so he tells us, at a very early stage that there were CCTV films of Chungking Mansions of that time period. If he knew that - and we have no evidence about this - why were attempts not made to locate the film that might have existed of 4 August in Block A lobby?  There is no evidence of that.”  (Appeal bundle p. 96)

45.A judge is entitled to pass comment in the course of a trial provided it is sensible and fair.  In the present case, the judge informed the jury, again in straightforward and easily understood terms, that they were not bound by any view which he might express or seem to express about the facts as it was their view which mattered.  There was nothing unfair about the comment which so obviously arose from the evidence the jury had heard.

46.In her next point, Mrs Panesar complained about the absence of a direction along the lines provided in R. v. Turnbull & Ors [1976] 63 Cr.App.R. 132, but suitably adapted (see: R. v. Hersey [1998] Cr LR 281) to the voice identification made by Jagjit Singh when he purported to identify the applicant’s voice calling out: “You open the door and I will kill you and that girl also, so you are not to open that door.”

47.Whilst there are cases in which an adapted Turnbull direction will be required this was not one of them.  Mrs Panesar, who also defended in the court below, does not appear to have considered such a direction was appropriate or we feel sure should she would have requested the judge to consider this. She did not do so.  If she has now changed her view, we consider that she is wrong to have done so.  Turnbull directions are appropriate, as the Lord Chief Justice expressed it (at page 137):

“… wherever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken.”

48.Evidence was given in the present trial by Jagjit Singh that he was acquainted with the applicant.  They were, at that time, staying at the same address.  Bearing in mind the nature of the defence case, it was in any event more pertinent for the jury to determine whether Jagjit Singh was speaking the truth when he said that it was the applicant who called out the words from behind the door to Room 2.  At all events, there was an abundance of other evidence to establish the applicant’s presence at the murder scene at the material time.

49.There were other complaints raised in the perfected grounds of appeal on which Mrs Panesar made submissions.  These included references by the judge in the summing up to the jury’s approach to ‘lies’ and omissions by the judge to remind the jury of all the favourable parts of the applicant’s answers given during his interview by the police.  In this last regard, most of what was said in the interview was covered by the applicant’s evidence at trial which was, in turn, fully addressed in the summing up.  Having considered these submissions, we are satisfied that there was no substance to the general complaint that the judge’s directions to the jury were unfairly balanced in favour of the prosecution.

(2)  Refusal to stay the proceedings

50.In ground 2, Mrs Panesar submitted that because the judge had ruled that the proceedings against the applicant should not be stayed on account of the absence of Jaswinder Kaur, a material witness to the events, the applicant had not received a fair trial and, additionally, had lost his right to elect not to testify.  Her third ground, which was closely related, was that the prosecution, having at first agreed to adduce evidence of Jaswinder Kaur’s video-recorded interview under caution, abused the process of the court by choosing, on about 15 April 2004, to refuse to produce this interview in evidence when the judge had been  influenced in part, when making his ‘stay’ ruling on 10 March 2004, by the prosecution’s willingness to adduce this evidence.

51.It is well-established in principle and in practice that an order for the stay of criminal proceedings is a highly exceptional course to be taken.  A stay may, however, be ordered in the very unusual circumstances that a court is properly satisfied that a fair trial is impossible because of the serious prejudice which will otherwise result to a defendant.

52.Mrs Panesar’s application for a stay of proceedings was ventilated before the judge in depth and it is apparent from the transcript that he was fully conversant with all the issues now raised in these grounds.  Jaswinder Kaur had provided two witness statements in addition to her video-recorded statement under caution.  The judge set out the effect of her evidence in the clearest terms when making his ruling that the proceedings would not be stayed.  Amongst his observations, he said:

“The defence complaint is that, in the absence of Miss Kaur as a witness, they cannot establish through her, Miss Kaur, that the defendant was not present in the Mandarin Guest House at the time that the deceased was killed.

It is clear on the account that she has given that Miss Kaur does not positively say that he was present at that time. All that she does say is that when she retired to Room 4, he was still in the guesthouse. Next, she saw him in another guesthouse in another block at 5 o’clock in the morning.

Given that Miss Kaur’s evidence appears to be that she was in a bedroom with the door closed at the times material to the killing, it is very difficult to see how it could be hoped that she could give positive evidence that the defendant was not in the guesthouse at the material time.

Accordingly, in my judgment, the complaint that the defendant is thereby disadvantaged so that this trial is unfair, so unfair that the trial should be stayed, is wholly unrealistic and without merit.”  (Appeal bundle p. 373)

53.When the judge dealt with the second limb of Mrs Panesar’s complaint about the alleged disadvantage caused by Jaswinder Kaur’s absence as a witness, in that it was being said as he rightly expressed it that the defence were being “denied the opportunity to demonstrate to the jury that there is a conflict between the account expected to be given by Jagjit Singh and that expected to be given by Miss Kaur as to the hours leading up to and after the murder of the deceased”, he went through some of the possible contradictions and inconsistencies, before concluding:

“… Unlike the defence submissions in respect ofthe issue of alibi and the alleged disadvantage thereby caused to the defence by the absence of Miss Kaur, the complaint of disadvantage to the defence flowing from the inability to establish conflicts in the expected evidence of Mr Singh and Miss Kaur, is unrealistic and merely speculative but here is grounded on a factual basis, to some extent, on their out-of-court statements.

However, whilst a measure of disadvantage to the defence has been established, in particular, perhaps in respect of the issue of who it was that tied up the doorknob to Room 4, it is not such that comes remotely within establishing, on the balance of probability, that a trial of this defendant would be so unfair that these proceedings must be stayed at the outset.

Such disadvantage to the defence as there might be could be avoided if the defence accepted the prosecution offer to adduce into evidence the out-of-court statements of Miss Kaur.

In the event that the defence persist in its refusal to accept that offer, the court has available to it the panoply of powers relating to the evidence permitted to be called in the case available to regulate the admission of evidence in the trial and, most importantly, to givedirections to the jury, in particular, to direct the jury at the end of the trial to take into account, in favour of the defendant, any disadvantage that has flowed to the defendant caused by the absence of Miss Kaur.

I am satisfied that the prosecution have taken all reasonable steps to secure the attendance at trial of the witness, Miss Kaur.

In my judgment, it has not been established, on the balance of probability, that it will be so unfair to the defendant to proceed with this trial that a stay of these proceedings should be ordered.

Also, I am satisfied that there is no breach of the defendant’s rights under section 8, Article 11(2)(g)of the Bill of Rights Ordinance, Cap. 383.”  (Appeal bundle pp. 375-376)

54.We can see no justification for rehearsing the arguments which were presented on behalf of the defence at trial to the judge.  These were considered in full and, in our opinion, were rightly rejected.  It suffices for present purposes to say, as Mr Zervos SC observed on the respondent’s behalf, that given the fact that Jaswinder Kaur’s evidence did not positively support the applicant’s alibi, the fact that other parts of her evidence were concerned with matters ancillary to the case, that the two witness statements of Jaswinder Kaur were admitted under section 65B of the Criminal Procedure Ordinance, Cap. 221, and that these factors were coupled with a special direction to the jury on the unavailability of the witness as well as the non-production of her account of events in her statement under caution, it cannot be said that the applicant’s trial was unfair.

55.It is perhaps not inappropriate, in the context of these grounds to set out the judge’s directions, in respect of Jaswinder Kaur’s absence.  These were as follows:

“In this case, the witness Miss Kaur has not been available to testify orally, however, two witness statements dated 6 August and 27 September 2002 have been put into evidence before you.  It is clear that both the prosecution and defence wished to have her to give oral testimony. You will readily understand the importance of her testimony lies in the fact that she was present in the guesthouse on the 13th Floor of Block E in the early hours of the morning at which time the deceased was killed in Room 2 a few feet away.

Evidence has been led before you that in the late morning and early afternoon of 6 August 2002, a video-record of interview was conducted of Miss Kaur by Detective Senior Inspector Fremaux. However, given the absence of Miss Kaur as an oral witness, the defence have been unable to explore with her in cross-examination such account of events as she may have given in the video record of interview. To be added to that specific handicap, of course, is the more general inability to cross-examine her at all. These are matters I direct you to take into account when you consider the evidence as a whole and determine what weight to give to it.”  (Appeal bundle p. 33)

56.Finally, we need only to add that the video-recorded interview of Jaswinder Kaur under caution was not a statement which could be admitted under section 65B of the Criminal Procedure Ordinance, Cap. 221, as this failed, as Mrs Panesar appeared to accept at trial, to meet the requirements of that section.

(3)  Cross-examination disallowed

57.The fourth substantive ground of appeal raised by Mrs Panesar amounted to a complaint that the judge should not have disallowed cross-examination of Syed and Satpal Singh about “utterances made to them by Jaswinder Kaur, particularly in respect of what Jagjit Singh told her about ‘Pakistanis who were doing their job’ at the time (of the murder)”.  Put more plainly, the defence at trial were seeking to adduce through Syed and Satpal Singh what it was that Jaswinder Kaur had said to them for the purposes of establishing the truth of what was contained in her assertions.  Plainly, this was hearsay evidence and, equally clearly, the judge was right, in a detailed ruling setting out the legal and factual position, to have refused to allow this evidence to be introduced.

(4)  Admissibility of the statement under caution

58.We can deal briefly with Mrs Panesar’s fifth and final substantive ground of appeal.  She submitted that the judge should not have allowed the applicant’s video-recorded interview under caution to be admitted because there was evidence to support the applicant’s allegations of impropriety on the part of the police who dealt with him after his arrest.

59.This ground is misconceived.  No material was put before us to support this contention.  It is obvious that this was a matter which was fully canvassed at trial and for us to say that the interview was wrongly introduced at the conclusion of the voir dire, as we were invited by Mrs Panesar to do, without any proper basis for so concluding, would obviously be wholly inappropriate.

Conclusion as to conviction

60.None of the matters raised on this application gives rise to a concern that the conviction was unsafe or unsatisfactory.  The evidence provided an extremely compelling case against the applicant.

61.This application is dismissed.

Sentence

62.In the grounds of appeal against sentence, alleging that the indeterminate sentence of life imprisonment imposed on the applicant on 22 April 2004 was wrong in principle, and that the twenty-five year minimum term imposed under section 67B(1) of the Criminal Procedure Ordinance, Cap. 221 was manifestly excessive, Mrs Panesar emphasised some of the matters which she had previously raised before the trial judge in mitigation to support her arguments.  It is the fact that the applicant had a clear record and had apparently secured a place at a university in India.  There were also indications that the applicant was a talented singer and a good sportsman.  He was in Hong Kong as a visitor.  In such circumstances, it was submitted that the applicant posed no future threat to society and that there were no factors in his background which merited an indeterminate sentence. 

63.The judge, in passing sentence, remarked that from the multiple stab and chop wounds which had been inflicted on the deceased with the two sharp weapons used in the attack, it was clear that the applicant had intended to kill his victim.  His determination to do so is to be seen from evidence that the final blows were delivered as the deceased crouched, utterly helpless, on the ground.  Some of the injuries to the deceased’s upper body were consistent with her desperate attempts to ward off what the judge rightly described as a cold-blooded and brutal attack upon her with a sharp knife and a heavy, sharp chopper.  The wounds to the applicant’s hands also provided an indication of how determined he was to kill the deceased as she tried to fight for her life. 

64.The deceased’s screams and cries for help were largely ignored and no one, at the material time, called the police.  As the judge also commented, it was not without significance that the applicant’s DNA was found in a small quantity of semen on the anal swab taken from the deceased. 

65.After he had murdered the deceased, the applicant’s first thought appears to have been to throw away the murder weapons, to change his clothes and to distance himself from the scene.  He has shown not the slightest indication of remorse and, even when confronted with the evidence of his semen on the anal swab taken from the deceased, he steadfastly denied having any sexual contact with her.

66.The judge then turned to a consideration of section 2 of the Offences Against the Person Ordinance, Cap. 212, which provides that for a person under the age of eighteen at the time of the offence:

“… the court has a discretion as to whether the person should be sentenced to imprisonment for life or to imprisonment for a shorter term.”

At the time of sentence, the applicant was twenty years old but on the date of the offence he was two weeks short of his eighteenth birthday.

67.In deciding whether to exercise his discretion to impose a life sentence, the judge reviewed three decisions of this court, namely, HKSAR v. Cheng Yat-ming (No. 2) [1997] 3 HKC 365, HKSAR v. Lee Kar-yeung, CACC 315/1998 (unreported) and HKSAR v. Hui Chi-wai & Ors (No. 2) [2003] 2 HKC 582.  In the light of these decisions, and bearing in mind the very grave circumstances of this offence, the judge concluded that a life term was appropriate.

68.The judge, having reached this conclusion, then considered the provisions of section 67B(1) of the Criminal Procedure Ordinance, Cap. 221, which state that:

“(1)  When imposing a discretionary life sentence on a person for an offence, the judge must specify as part of the sentence a minimum term that the person must serve for the offence.”

69.The judge imposed a minimum term of twenty-five years’ imprisonment.

70.We have examined the earlier decisions of this court to which the judge referred and, in addition, Mrs Panesar made reference to HKSAR v. Yeung Mok-yeh & Anor, HCMP 2209/2004.  In that case, Pang J was dealing with two respondents in an application brought by the Secretary for Justice under section 67C of the Criminal Procedure Ordinance.  The respondents had been sentenced on 4 July 1991 to be detained at Her Majesty’s pleasure following their conviction for murder, both respondents being under the age of eighteen at the time of the offence.  When the application was heard, they were being detained at Executive discretion.

71.Pang J stated in the course of his judgment that he took the view that in respect of “this class of prisoners” fixed terms of imprisonment, rather than minimum terms, were appropriate.  He went on to say:

“… In a case where a person was sentenced when he was below the age of 18, it would mean that the prisoner would have spent over two thirds of his adult of life in prison.  If they are to ask the question ‘how much longer?’,they ought to be given an answer in unequivocal terms.  The possible adverse effects of a prolonged state of uncertainty are that it may defeat the prisoners’ motivation and they would gradually become institutionalized.  A fixed term would serve to remove any element of uncertainty in their minds.  These prisoners, like all others, are entitled to know the exact period of punishment for which they are to receive for the offence which they have committed.”  (Emphasis added)

72.The provisions of section 67C are similar to those in section 67B, with which we are now concerned, in that both sections provide the judge with a discretion.  Under section 67B the discretion is whether to impose a life sentence or a shorter term of imprisonment.  Section 67C, on the other hand, caters for those in custody, such as the respondents in HKSAR v. Yeung Mok-yeh & Anor,where their detention is subject to Executive direction.  The relevant provisions of section 67C are as follows:

“67C.   Determinations in respect of certain existing prisoners
(1)	As soon as practicable after the commencement of this section and in any event within 6 months after such commencement, the Secretary for Justice must, in respect of each prescribed prisoner, apply to the court for a determination by a judge under this section.
(2)	If, within 6 months after the commencement of this section, the Secretary for Justice does not make any application in respect of any prescribed prisoner under subsection (1), the prescribed prisoner may also apply to the court for a determination by a judge under this section.
(3)	Subject to subsection (4), the judge hearing an application under subsection (1) or (2) must determine the minimum term that the prescribed prisoner must serve for the relevant offence.
(4)	Where the prescribed prisoner is serving the relevant sentence in respect of the conviction of murder committed when he was under 18 years of age, then, subject to the consent of the prescribed prisoner to the application of this subsection to him, the judge has the discretion as to whether-
	(a)	to make a determination under subsection (3); or
	(b)	to determine instead that the relevant sentence be quashed, and be substituted by a sentence of imprisonment for a fixed term of such duration as the judge considers appropriate.”  (Emphasis added)

73.Where a sentencing judge has a discretion in regard to applications under section 67C, it is apparent that each case must be considered on its own merits.  With respect, it was not, therefore, appropriate to treat all prisoners in “this class”, as Pang J stated he intended to do in Yeung Mok-yeh & Anor, by imposing fixed terms in every case.  In saying this, he was relying on his previous decision in HKSAR v. Lai Hung-wai, HCMP 2208/2004 (paragraphs 19 to 28).  Such a course involved, in our respectful opinion, a derogation of the discretion specifically given to him by statute, a discretion which inevitably requires individual and careful consideration of the facts of each case before deciding whether a minimum or a fixed term is appropriate.  It follows also that when Pang J spoke of “these prisoners, like all others, are entitled to know the exact period of punishment … they are to receive for the offence which they have committed” we are again, with respect, in disagreement.  No prisoner who is serving a life sentence knows exactly when, if ever, he will be released.  There is, in such cases, no entitlement to know the length of the sentence and whether a life term or a fixed term is imposed under either section 67B or 67C will depend on the properly exercised discretion of the sentencer.

74.It follows, therefore, that we derived little assistance from Yeung Mok-yeh’s case.  Returning to the present case, we can see no reason to interfere with Lunn J’s decision to impose a life sentence.  He plainly bore all relevant factors in mind when exercising his discretion in this regard.

75.What has, however, considerably exercised our minds, is the length of the minimum term he imposed.  We have no doubt that this offence, with the brutality which accompanied it and its overtones of a sexual assault on a defenceless woman, required condign punishment.

76.We have concluded on all the facts before us that justice would be done if we were to reduce the minimum term to be served from twenty-five to twenty years’ imprisonment.

77.Accordingly, we shall grant leave and treating the hearing as the appeal, we shall quash the twenty-five year minimum term and substitute a minimum term of twenty years’ imprisonment.  The life term remains unaffected.  To this extent, the appeal against sentence is allowed.

Mr Kevin P. Zervos, SC, SADPP and Mr David Leung, SGC, of the Department of Justice, for the Respondent.

Mrs Mahindar Panesar, instructed by Messrs B. Manek & Co., assigned by the Director of Legal Aid, for the Applicant.