Habib Ahmed v. HKSAR

FACC No. 10 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 400 OF 2007)

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Between:

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.This is an application by a losing party for the re-opening of his appeal.  We are dealing with the application under the procedure adopted in Government of HKSAR v. Scott (2006) 9 HKCFAR 221.  That is the procedure by which filing is accepted by the Registrar and the filed application is disposed of on paper without troubling the opposite party for a response.  Although such a procedure was appropriate in that case and is appropriate in this case, it is not to be assumed that filing will be accepted in every case.  There can be applications to which a court’s appropriate reaction is a direction to its registrar to refuse filing.  An example is the sort of application which the Court of Criminal Appeal said in Rex v. Twynham (1920) 26 Cox CC 678 at p.680 would meet such a fate.  That is a strong example, involving the refusal of filing in capital cases.

2.Shortly stated, the circumstances of the present application (by way of a notice of motion accompanied by written submissions) are as follows.  On 15 June this year, by a judgment which Mr Justice Chan PJ gave and with which the other members of the Court agreed, we dismissed the applicant’s appeal from the Court of Appeal which had affirmed his conviction for murder.  The judgment which we hand down now is to be read together with the judgment which we handed down then (“the main judgment”).

3.The applicant and another man stood trial for the murder of the applicant’s brother who had been battered to death.  That other man, who was the second defendant, has throughout been referred to as “D2”.  The jury convicted the applicant and acquitted D2.  By their verdict against the applicant, the jury must have felt sure that he battered his brother to death with the sledgehammer which was produced as an exhibit at the trial.

4.It is contended on the applicant’s behalf that the Court had, in dismissing his appeal, made errors and that the errors are of substance and merit inquiry and correction for the avoidance of grave injustice to him.  That is the basis on which re-opening is sought.  As stated in the applicant’s notice of motion, the alleged errors are :

“(a) error by the Court in relying upon inadmissible material and disputed allegations, namely the allegations in the interviews of D2 that the Appellant had instructed him to buy the sledgehammer

(b) error due to the Court’s misappreciation of the Defence evidence and argument i.e. the Court wrongly assumed that the Appellant and/or his Counsel were accepting that it was the Appellant who was on the other end of the phone during the sledgehammer purchase, whereas his evidence and argument advanced were to the contrary”.

5.As to the assertion that the Court had relied on D2’s out-of-court allegation that the applicant had instructed him to buy the sledgehammer, the first thing to note is this.  The Court said in terms (at paras 10 and 11 of the main judgment) that that allegation was not evidence against the applicant.

6.Quite apart from anything else, the next reference to that allegation is immediately rendered immaterial by the fact that it comes after the Court had already effectively determined the appeal against the applicant.  The Court had done that in paragraph 23 of the 15 June 2010 judgment, the last sentence of which reads :

“Considering all the evidence carefully, it is clear that although there was evidence which might suggest that D2 might also have been involved, once the jury had entertained some doubt whether D2 had taken part, and if they disbelieved the appellant’s evidence (and they obviously did), there could only be one conclusion on the evidence: that it was the appellant who entered the premises and murdered his brother.”

7.Following that conclusion, the main judgment dealt (at paras 24 to 26) with a complaint by the applicant’s counsel of a further misdirection.  That complaint was noted simply for the sake of completeness.  And it was when disposing of it that the main judgment referred again to D2’s out-of-court allegation that the applicant had instructed him to buy the sledgehammer.  That reference was directed to a theory floated on the applicant’s behalf which would be mere speculation unless supported.  And the point of the reference was merely that the theory did not have any support from D2.

8.What remains is the assertion that the Court had assumed that it was accepted on the applicant’s behalf that he was, as it is put in the applicant’s notice of motion, “on the other end of the phone during the sledgehammer purchase”.  The short answer to that assertion is to be found at paras 12, 13 and 23 of the main judgment.  It is clear from those paragraphs that the Court proceeded on the basis that the testimony of the seller of the sledgehammer coupled the evidence of the telephone records linked the applicant to the purchase of the sledgehammer.  That was a matter of proof, not of any assumption.

9.This application for re-opening is bereft of foundation, and is dismissed.

Written submissions by Mr Paul Loughran (instructed by Messrs Massie & Clement and assigned by the Legal Aid Department) for the applicant