Mohammed Hasham Khan v. The Queen
Read the full judgment text of CACC 777/1979 on BabelCite. This Court of Appeal judgment was delivered on 30 January 1980.
1. This is an appeal against conviction on a charge of murder, the appellant having been convicted on the 16th August 1979, after a trial lasting 25 working days, ten of which were taken up by the hearing of a voir dire into the admissibility of a statement made by the appellant.
Cited by 2 cases
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CACC000777/1979
----------------- Coram: Roberts, C.J., McMullin, J.A. & Leonard, J. Date of Judgment: 30 January 1980 ----------------- JUDGMENT ----------------- Leonard, J.: 1. This is an appeal against conviction on a charge of murder, the appellant having been convicted on the 16th August 1979, after a trial lasting 25 working days, ten of which were taken up by the hearing of a voir dire into the admissibility of a statement made by the appellant. Preliminary 2. The partially dressed body of the victim, HO Yoke-ying, a dance hostess, was found at the side of an unnamed path off Mount Austin Road on the Peak on Hong Kong Island on the morning of the 28th April, 1978. The head was wrapped in a green and white cloth, which was in turn covered by a gunny sack. The cause of death was asphyxia due to strangulation; the deceased also suffered from a double fracture of the skull, which would have caused death had not the strangulation supervened, the wounds causing the fractures having been inflicted prior to the strangulation. 3. Investigation by the police into the origin of the gunny sack revealed that it had been one of eight imported into the Colony some months previously by the Persian Carpet Palace, a firm carrying on business at 219, Gloucester Road and run by the Khan family, in which there were six brothers of whom the appellant was one. He worked there full time. 4. Scientific evidence established that the clothes worn by the victim had, very shortly before her death or immediately thereafter, been in close contract with a settee and a carpet on the floor of the carpet shop and on that settee was found a small patch of blood of the same blood group as that of the blood of the victim. The premises occupied by the Persian Carpet Palace were not used as a residence, but three persons had the keys to them - the appellant and two of his nephews. The business of the Persian Carpet Palace was attended to by the appellant and several other members of the Khan family but no one lived on the premises. 5. At these premises was found one but only one of the other seven gunny sacks which had been imported containing carpets by the Persian Carpet Palace. [We would remark that since six bags from the same shipment with similar markings were unaccounted for, there would appear to have been little point in calling some 24 witnesses to give evidence that they saw no such bags thrown out by those in charge of the carpet shop.] Furthermore the Khan family were shown to have been in possession of household articles made from cloth similar to the green and white cloth found wrapped around the victim's head. It could therefore be inferred that the murder of the deceased had taken place at the Gloucester Road premises and it was on that basis that the police inquiries continued. Questioning of the appellant 6. The appellant and members of his family were interviewed by the police on many occasions, and the suspicions of the police fell chiefly on the appellant. Although the appellant spoke English his language of birth was Urdu. The services of P.C. Mohammed Salim, who was of the same nationality as the appellant, were therefore engaged to conduct enquiries and to act as an interpreter in interviews with the appellant. This was a somewhat unfortunate choice because P.C. Mohammed Salim could not be said to be impartial. A year previously P.C. Mohammed Salim's adopted son, Javed Iqbal, had been associating with the appellant, whom P.C. Mohammed Salim had considered to be a bad influence on Javed Iqbal. He had forbidden Javed Iqbal to associate with him. 7. On the 8th August 1978 P.C. Mohammed Salim acted as interpreter at an interview between the police and the appellant. His evidence was that he left the building with the appellant whereupon the appellant had said to him in Urdu
8. On the 19th August 1978 P.C. Mohammed Salim received a phone call from Javed Iqbal who told him the appellant wanted to speak. The appellant did so, again repeating "please help me and save my life". On the 21st August 1978 P.C. Mohammed Salim met the appellant at the Indian Recreation Club by appointment. P.C. Mohammed Salim had requested the appellant to meet him alone and had gone to the meeting with a tape recorder. The appellant did not attend this meeting alone but with members of his family. 9. Nevertheless, at this meeting P.C. Mohammed Salim had questioned the appellant about the gunny sack and the murder but had received no replies from him. This meeting and the two requests for help I have mentioned were in due course relayed by P.C. Mohammed Salim to his senior officers and apparently focused more clearly on the appellant the suspicions already entertained by the police. 10. There followed a number of further meetings between the police, the appellant and members of the appellant's family, particularly the two nephews of the appellant, Sohail Khan and Rehan Khan, who shared the second set of keys to the Carpet Store. There was a further interview arranged by the police with the appellant for the 25th October 1978 which the appellant attended, accompanied by his brother. 11. At this meeting a suggestion (later retracted) was made by the appellant that Javed Iqbal and Kudadad Khan were possibly involved in the matter. On the following day, a written statement to that effect was taken from the appellant. This statement was never put in evidence, although its contents were referred to in the course of the trial. The statement of the 27th/28th October, 1978 12. On the 27th October the police requested the appellant, through his brother, to attend at the Homicide Bureau that evening. The request was made of the brother at 7.00 p.m. and the appellant attended at the Bureau at 9.30 p.m. Between 9.30 p.m. and 10.30 p.m. he was questioned by two inspectors, Inspector Starling and Inspector Dyson. No record was kept of this questioning and no headway, other than the uncovering of various discrepancies, was made in the course of it. 13. At 10.30 p.m. Inspector Starling informed Chief Inspector Pong, in the presence of the appellant, that he was "going to take a written statement" from the appellant. What purported to be the written statement taken by Inspector Starling was proffered in evidence by the Crown. The appellant objected to the admissibility of this statement, and of a further statement taken to elucidate matters arising from the first statement which was taken after the appellant had been remanded in police custody by a magistrate. The question of admissibility was considered in a voir dire. This voir dire lasted for ten working days, at the conclusion of which the trial judge ruled in the following terms:
The trial judge in fact never gave such reasons in writing. 14. As a result of what was said by the appellant in Exhibit P212, the premises at 27, Haven Street, 8th Floor were visited by the police on the 28th October 1978. There the 2nd defendant was interviewed and taken to Homicide Bureau. As is apparent from the ruling of the trial judge quoted above, statements taken from the second defendant were also admitted in evidence at the trial. These statements did not amount to an admission that the 2nd defendant participated in the murder of the victim, and we need not refer to them again in view of his acquittal. 15. Some two hours after the statement taken on the night of the 27th/28th October had concluded, the appellant was taken to Wan Chai Police Station where an entry was made in the report book. He was then escorted back to the office of the Homicide Bureau and arrangements were made for him to be detained in Western Police Station to which he was then brought. Medical examination 16. On the 29th October, having been charged with murder he was brought to Dr. Mong, the police pathologist, as a matter of routine for medical examination. It should be noted that prior to this medical examination no injuries had been seen on his person by any of the police officers who had interviewed him. He had been seen by Chief Inspector Pong, Inspector Ng and a police corporal at Wan Chai Police Station where a report was made and at Western Police Station where he was ultimately detained and of course by Inspector Starling. None of these persons saw any signs of injury. 17. The appellant was taken to Dr. Mong's surgery, a relatively small room, by Inspector Starling, the officer who had "taken" the statement from him. This officer stood approximately 6 feet from the appellant while he was talking to and being examined by Dr. Mong. To Dr. Mong, the appellant complained of having been assaulted on the nose. On examination the doctor found a large bruise on the root of the nose "the size of an old Hong Kong dollar". He found congealed blood in the nostrils and had a recollection of having seen signs of blood on the appellant's clothes. Those clothes were later taken for scientific examination but unfortunately no evidence about them was adduced at the trial. 18. On the 30th of October, he was taken before a magistrate where he was professionally represented. A complaint of assault having been made to him, the magistrate ordered that he be medically examined daily but refused an order that he be detained in jail, rather than in police custody. The order for daily examination was not treated as mandatory by the police and thereafter while he was in police custody the second statement (exh. P213) was taken from him, again by Inspector Starling. The voir dire 19. During the hearing of the voir dire counsel for the appellant gave particulars of the matters which he alleged, indicated that the statements were not made voluntarily. These read:
So far as the second statement was concerned it was alleged that he was still under the influence of the threats and assaults of the 27th/28th October. It is unnecessary to comment at length on the evidence given at the voir dire. All the officers mentioned above gave evidence, as did 5 medical officers and the police pathologist. There was considerable variance in the medical evidence, into which it is unnecessary to go, save to remark that some of the complaints made to medical officers by the appellant were clearly nonsense. 20. What is remarkable is that, of all the doctors called by the Crown, none save Dr. Mong saw the bruise at the root of the nose, although some saw other signs of violence which could have been self-inflicted. There was no dispute between the parties but that the bruise on the nose existed, but no evidence was forthcoming as to how it had been suffered other than that of the appellant. Clearly the appellant was a witness who was not to be believed, nor was he believed by the trial judge. The police officers concerned denied assaulting the appellant and they were not shaken in this respect in cross-examination. 21. Indeed their evidence indicating that the appellant suffered no ill treatment at the hands of the police is entirely credible although the evidence of Inspector Starling is perhaps suspect in one respect that is concerning the interview between the appellant and Dr. Mong. According to Dr. Mong, the appellant made a clear complaint to him that he had been hit that is to say either punched or kicked on the nose. When this complaint was made, Inspector Starling who had conducted the appellant to the interview which took place in a small office was standing only 6 or 7 feet away and it was Dr. Mong's impression that he must have heard the complaint. Again the pathologist said that the bruise in question was readily visible even to a layman. This seems to have been an overstatement, as four other doctors failed to observe it when it was their task to search for injuries to the appellant. Inspector Starling's evidence was that he had seen no such thing and had not heard the complaint to Dr. Mong. The contents of the statement 22. There were other matters for the trial judge to consider on the voir dire arising from the statement itself, particularly when coupled with Inspector Starling's evidence. The appellant arrived at the police station on the night in question at 9.30 p.m. He was questioned for a period of one hour. At 10.30 p.m. Inspector Starling informed Chief Inspector Pong that he was going "to take a written statement". He was left alone in an office with the appellant. The time given for the commencement of this statement is 2230 hours. The document recites that the appellant had already given five statements to the police and that he had been invited "to clarify some points on the statement I gave yesterday and some other points made in my previous statements". There follows a series of 36 questions and answers. On the face of the document, these were recorded verbatim; but Inspector Starling said that this was not so and that the language used in the answers was his (Inspector Starling's) English substituted for the English used by the appellant. The 36 questions and answers took 1 hour and 15 minutes to record and at 2345 hours there was a break of three-quarter of an hour for a meal taken in by Chief Inspector Pong. The taking of the statement was resumed at 30 minutes past mid-night on the 28th October. After 17 questions had been asked answered and recorded the following passage appears:
After a further ten questions in some of which it is suggested that the appellant was lying in his answers the following passage appears:
23. It was Inspector Starling's evidence that when the answer commencing "Oh, please Sir" was given, the appellant had broken down but he had to some extent recovered his composure when the statement beginning "OK Sir" was made by him. It was further his evidence that the appellant was not prompted in any way when making either statement. The statement commencing "OK Sir" was made in his own unprompted words and was not in any way altered by Inspector Starling. As to the time involved in the taking of this statement the following matters emerged.
We see nothing in the various times which indicates that this document is not a true record of what took place at the interview. There is nothing strange in the time taken or the language involved when one recollects Inspector Starling's admission that the answers are not the ippsissima verba of the appellant but Inspector Starling's record of the sense of what he said. Counsel for the appellant before us suggested that the manner and timing of the statement indicated oppression and a disregard for the Judges Rules. The ruling on the voir dire 24. We are not satisfied that there was oppression but are satisfied that breaches of the Judges Rules are indicated by the record. This is so both of this statement and of the second statement taken after the appellant had been before the magistrate. 25. There is no obligation on a trial judge, at the conclusion of a voir dire, to give reasons for his ruling that a statement is voluntary and therefore admissible nor for the manner in which he exercises a discretion arising from a breach of the Judges Rules. Clearly here he did not see fit to exercise his discretion in favour of excluding the statement. We cannot say he was wrong. As is clear from the Director of Public Prosecutions v. Ping Lin(1), we should only disturb his decision if satisfied that he had made a completely wrong assessment of the evidence or had failed to apply the correct principles. We cannot go so far as to say this and accordingly must hold that the statements were properly before the jury though we must confess to grave doubt as to whether we ourselves would have admitted the statements. References to statements in the summing-up 26. At one stage in his summing-up the judge has this to say:
These two passages which I have quoted are the only references of importance made by the trial judge to the statements of which the jury had copies when they retired. 27. It is to be noted that the trial judge does not assist the jury on the question as to what weight they should give to the statements if satisfied as to the truth (or if in doubt as to the truth) of the allegations of improper methods. There were also a number of matters which the trial judge might have brought to the attention of the jury in relation to the contents of these statements. 28. It must be remembered that the statements were the only evidence implicating the appellant apart from his equivocal requests to P.C. Mohammed Salim. It was therefore necessary for the jury to examine them with anxious care in the light of the other evidence. Possible conflicts between the statement and the case for the Prosecution 29. In the appellant's first statement, immediately after the caution, the following conflicts emerge:
There was evidence before the jury that this appellant had on that evening gone to the residence of a Mr. Barefoot to sell carpets. He and two companions left Mr. Barefoot's residence in Tai Tam Road at between quarter to and a quarter past 10.00 p.m. The evidence was that it would have taken them about 25 minutes to get back to Causeway Bay. Had he then been dropped in Leighton Road it might have been at some time between 10.15 p.m. and 10.45 p.m.
If this part of the statement is true, it would indicate that the appellant did not meet the deceased earlier than between about 11.30 p.m. and midnight. Furthermore, as the judge pointed out to the jury, while there was evidence that the deceased was promiscuous, the suggestion that she was a prostitute who could be picked up on the street and who plied her trade on the street was negatived. Again it was at Haven Street that the statement placed the murder. Later searches at a premises at 27, Haven Street, 8th Floor (there were no premises at 28, Haven Street) where the second accused was found indicated that the murder had not taken place there.
Salim was questioned by the police, at least one of whom was satisfied that he was not a participant in that night's activities.
As was pointed out by the judge in the course of his summing-up, amongst the debris from the sack there were found four small glass fragments, all of which had physical characteristics identical with those of glass fragments found on the carpet at the premises in Gloucester Road. It is highly likely, therefore, that the sack and the carpet had come in contact with one another directly or indirectly, which could be said to suggest that the gunny sack had not been kept in the car because of the possibility of rain.
The scientific evidence was that the body had not been thrown from the car and Dr. Mong's evidence was to the effect that it had been carefully placed on the side of the road. 30. All these matters indicate that the statement made in answer to the charge was not true in a number of respects. Counsel complains that the attention of the jury should have been directed specifically to these particular matters so that they might appreciate that the statement was untrue in part as a consequence of which they might think that they could put little weight on it. He also complains of a matter of perhaps greater significance. Time of death 31. Dr. Mong's estimate as to the time of death, as ascertainable from the condition of rigor mortis of the body, was that the deceased had died some time between 10.00 p.m. on the 27th of April 1978 and 2.00 a.m. on the 28th April 1978 but he conceded that the estimate could be revised by plus or minus a further two hours which would produce an estimate of between 8.00 p.m. and 4.00 a.m. 32. At the post-mortem, Dr. Mong found in the victim's stomach the remains of a full, undigested meal. Dr. Mong concluded that the deceased had consumed a meal not more than two hours before death, although this period of two hours could be longer since the digestion is dependent on many factors. He was recalled on this point and his final evidence was that it was very probable that the meal had been consumed within two hours of death. 33. The trial judge alludes to this evidence when discussing the evidence of Dr. Mong but he does not refer back to it when discussing the statement. It is of importance because there was undisputed evidence that shortly after 8.00 p.m. the deceased had had a meal consisting of rice and chicken and goose meat. The meal remnants found in the stomach were consistent with the goose meat. The deceased might have taken another meal prior to her death but would have had to be of the same composition. 34. The suggestion in this statement is that the appellant picked up the deceased at a time which would have been between 11.30 p.m. and midnight in Wanchai and brought her to Haven Street where he, Quium and Salim had intercourse with her. Thus, if the statement is accepted as accurate, the death could not have occurred until between about midnight and 0030 at the earliest, which would be about four hours after the taking of the meal. 35. Dr. Mong's evidence was that half of the meal would have emptied itself within about two hours. The full undigested meal was found. Counsel argues that these are matters on which the jury should have been instructed in order that they might properly assess the statement, the sole evidence against the appellant. While the jury was of course entitled to hold that the statement was true in part, that is, as to the part in which the appellant involved himself in the murder, and false in other parts it was vital that they should determine what parts were true if they were to convict. 36. Counsel for the Crown argues with considerable force that these discrepancies between the statement and the evidence indicate clearly that the statement was not fabricated by the police, who throughout relied on the theory that the girl was killed in the carpet store at Gloucester Road and not in Haven Street. That is correct. However, the question at issue was not whether the statement was fabricated, but whether the jury should regard it as true insofar as it inculpated the appellant in the murder. Before convicting the jury must have been satisfied on that issue. 37. The trial judge says, in the passage from which I have already quoted, that:
Insofar as the appellant was concerned, they were in reality the only evidence against him. The evidence of P.C. Mohammed Salim as to what the appellant had said to him was at the best capable of giving rise to suspicion. We do not, in the light of this, consider that the jury received sufficient assistance on the all important point facing them namely: Was the confession true insofar as by it the appellant inculpated himself? "Alibi" evidence 38. In the course of his summing-up the learned Judge makes one other reference to the statement of the appellant. This reference reads:
Mr. Barefoot's evidence has been referred to somewhat loosely as "alibi evidence". It would have the effect of giving the appellant an alibi if it were accepted that the deceased died on the 27th of April 1978 at about 10.00 p.m., which is not what is asserted. Mr. Barefoot's evidence was that he saw the appellant on the evening of the 27th April 1978 and bought a carpet from him and two other Pakistanis. Mr. Barefoot who, as a nautical man, had a good sense of time, said that the three Pakistanis left his house at Tai Tam Road at about 10.00 p.m. plus or minus 15 minutes. 39. He was well acquainted with the road from Tai Tam Road to Causeway Bay and estimated that at that time of night it would have taken the appellant and his two companions about 25 minutes to go to Causeway Bay. Accepting the position nost favourable to the appellant this would mean that he would have got to Causeway Bay at 10.40 p.m. If he went to Leighton Road where he lived and had dinner there, he could scarcely have got to Wanchai before 11.15 p.m. Had he not returned to Leighton Road but gone to the premises in Gloucester Road he could in any event scarcely have picked up the girl much before 11.00 p.m. since she was not a street walker. 40. The only comment made by the trial judge, apart from that which I have already noted, about the evidence of Mr. Barefoot is contained in the following paragraph:
We consider that this passage was not sufficiently explicit and may have left the jury in some confusion. Failure to deal with evidence for the defence 41. Nowhere in his summing-up does the trial judge refer to the defence. Throughout the hearing, the attitude taken by the appellant's connsel was that the statement made by the appellant was not to be believed because it was obtained as a result of violence and oppression. The appellant did not give evidence. Three witnesses were called by him. 42. Two of these witnesses were solicitors, the first of whom had attended on the appellant's behalf before a magistrate on the 30th of October. His evidence was that on that occasion the appellant looked haggard and complained of assault. He said that he had invited the magistrate to look at the defendant in the dock as he could see that the defendant had black patches on his cheeks below the eyes. The other solicitor gave evidence as to his being prevented by the police from bringing a doctor to examine the appellant at the Western Police Station. 43. The general effect of his evidence was that the police had ignored, wittingly or unwittingly, the order of the magistrate that the appellant should be medically examined daily. The final witness called by the appellant was Dr. Miles, who gave evidence as to a medical examination of the appellant which he carried out on the 3rd of November 1978. He discovered an abrasion underneath the left eye and he also found that the nasal septum was deviated to the left. The conditions which he found were consistent with the appellant having been struck on the nose. He could not say when that injury might have been incurred. The appellant had also marks on his elbows and his ankles. The possibility of the various signs of violence on the appellant's face and limbs having been self-inflicted could not be dismissed. 44. The appellant did not give evidence. In view of this, it was perhaps natural that the trial judge did not refer to his defence. All that had been offered by way of defence was the evidence as to injuries and evidence leading to a possible inference of disobedience by the police to the magistrate's order. 45. The only comment as to the defence is to be found in the following passage:
46. We think it is unfortunate that the judge did not refer to any of the witnesses called by the appellant, particularly to Dr. Miles. Counsel for the appellant throughout the trial, and by calling Dr. Miles, maintained that the statement in question was not voluntary and that the weight which the jury should give to it was lessened by this. Many of the complaints made by the appellant as to the violence used against him by the police on the occasion of the taking of the statement were palpably absurd but Dr. Miles' evidence might have persuaded the jury, had they been reminded of it, that violence could not be entirely ruled out. The only matter that was before the jury by way of defence was that the statement should not be given weight because it was involuntary. While there is no need to instruct a jury to ignore a statement if they consider it was not voluntary we consider that the judge's direction that:
does not go far enough. He should have pointed to the evidence of Dr. Miles as to the injuries suffered by the appellant and asked them to consider whether or not their estimate of the truth of otherwise of the statements was to be affected by the possibility of their not being voluntary. 47. We therefore consider that the summing-up was - (a) inadequate in the assistance it afforded to the jury in their approach to the vital question - what weight should they put on the statement; and (b) in its assessment of the "alibi" evidence and the significance of the undigested meal; and (c) in its failure to deal with the evidence called by the defence. 48. We cannot say that the jury must have arrived at the same conclusion had these inadequacies been remedied and must quash the conviction. The appellant is accordingly discharged. Representation: Mr. A.F.B. Scrivener, Q.C. and Mr. Peter Chan (Hampton, Winter & Glynn) for appellant. Miss Beeson, C.C. for Crown/respondent. (1) (1975) 3 All E.R. p. 175. |
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