HKSAR v. Tahir Nawaz
Read the full judgment text of CACC 484/2012 on BabelCite. This Court of Appeal judgment was delivered on 10 January 2014.
1. The applicant sought leave to appeal against his conviction on 28 November 2012, after trial by D Pang J and a jury, of the murder of his wife “Shazia” on the night of 18 August 2011 at Dragon Beach in Tsing Lung Tau. At the conclusion of the hearing, we refused the application and indicated that we would give our reasons for doing so in due course. That, we do now.
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CACC 484/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 484 OF 2012 (ON APPEAL FROM HCCC NO. 79 OF 2012) ____________ BETWEEN
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____________________________ REASONS FOR JUDGMENT ____________________________ Hon Lunn JA (giving the reasons for judgment of the court): 1.The applicant sought leave to appeal against his conviction on 28 November 2012, after trial by D Pang J and a jury, of the murder of his wife “Shazia” on the night of 18 August 2011 at Dragon Beach in Tsing Lung Tau. At the conclusion of the hearing, we refused the application and indicated that we would give our reasons for doing so in due course. That, we do now. THE TRIAL 2.At about 06:20 on 19 August 2011 the body of a Pakistani woman, subsequently identified to be Shazia, was observed by a member of the public lying prone near the shoreline of Dragon Beach, Castle Peak Road, Tsuen Wan. She called the police. Subsequently, the body was recovered by officers of the Emergency services. The deceased was wearing an upper underwear garment and a pair of underpants. Deep and long cut wounds were observed across the deceased’s throat and neck. The prosecution case 3.It was the prosecution case that the applicant had first drugged the deceased, then killed her by cutting her throat with a 7” blade knife, and subsequently pushed her over the rocks into the waters off Dragon Beach in Tsing Lung Tau on the night of 18 August 2011, in proof of which reliance was placed on the applicant’s various confessions to the police and circumstantial evidence that connected the applicant to the killing. 4.Mr Yim and Mr Tsang were each jogging in opposite directions along Castle Peak Road on the evening of 18 August 2011 in the period around 22:30 when separately they encountered a man each judged to be of South Asian ethnicity. Each of them noticed that the man was wearing no upper garment and had no shoes. They estimated his height to be about 5’7”. Mr Yim encountered the man as he and his wife were crossing Castle Peak Road near a footbridge. He noticed that the man had more body hair than Orientals. He saw the man fail to stop a red minibus before getting onto a red taxi on the Kowloon bound carriageway of the road. Mr Tsang saw the man coming up from the stairs from Dragon Beach wearing no upper garment. They were face-to-face for a split second as he ran past the man. From a place underneath the footbridge he too saw the man crossing Castle Peak Road to the Kowloon bound carriageway, where he failed to stop a red Kowloon bound minibus. 5.Neither witness attended an identification parade. Mr Yim explained that he had declined to participate in an identification parade because he was not sure if he could recognize the man. Mr Tsang was never asked to attend an identification parade, but testified that he would have agreed to participate if approached. Circumstantial and forensic evidence 6.It was an admitted fact that on the afternoon of 19 August 2011 divers of the Hong Kong police recovered a knife with a 7” blade from waters 2-3 metres away from Dragon Beach. 7.DNA analysis by Ms Lim, a chemist with the Forensic Services Division, of 16 blood samples taken from the blood trail found on the concrete path on the beach to the staircase, from the staircase to Castle Peak Road and from Castle Peak Road to the roundabout revealed that in respect of 15 of them the chance that someone other than the applicant was the donor of the blood was 29.7 in a quadrillion. The same chance applied to the saliva found at the filter end of the cigarette butt seized at the scene and of blood found on the rocks nearby. Finally, it was the overwhelming probability, 104 in a quadrillion, that a person other than the deceased was the donor of a spot of blood found on a long sleeve checked shirt found at the scene, which was identified by Madam Saima Akhtar, Shazia’s cousin, as belonging to the applicant, and blood found in a syringe at the scene. 8.Mr Mak, the Scientific Evidence Officer from the Government Laboratory, opined that the blood trail found at the beach consisted of marks left by contact bleeding, i.e. a wound coming into close or direct contact with the ground. On 20 August 2011, Mr Lai Sai Chak, a forensic pathologist examined the applicant and found that the injuries to his right foot were highly consistent with the applicant’s explanation to him of having slipped and fallen at the seashore causing his foot to rub against the barnacles on the rocks. 9.Traces of midazolam, which can cause drowsiness or sleep, were detected in the deceased’s blood, urine and stomach contents. The applicant: arrest and admissions 10.Having confirmed that the applicant had a hairy torso and recent injuries to the sole of his right foot, the former being consistent with the description of Mr Yim and the latter with the discovery of a trail of blood away from the beach, at 01:10 on 20 August 2011 Detective Chief Inspector Li arrested the applicant for the murder of his wife, Shazia. The arrest was effected at the home the applicant shared with the deceased, namely Flat C, 7th Floor, 16-18, Nam Cheong Street. Having been cautioned, the applicant said, “I killed Shazia”. Post-record 11.At 05:33 on 20 August 2011, in an interview room at Kwai Chung Police Station, Detective Chief Inspector Li made a post-record of the applicant’s oral admission. After showing the applicant his post record of the circumstances of the earlier oral admission and after the applicant had apparently read it, the latter said, “I want to write down how I killed Shazia”. As a result, Detective Chief Inspector Li handed him his notebook and a pen and the applicant wrote in English:
12.After the applicant had finished writing, Detective Chief Inspector Li read the entry written by the applicant to him and the applicant read it himself. Then, he told the applicant that he could correct or add anything that had been recorded in the statement, which invitation he recorded in the notebook. In response, the applicant said, “That is correct, I have no correction.” Finally, at the officer’s invitation the applicant signed a declaration written in the notebook to that effect. Video record of interview 13.The applicant participated in a video record of interview conducted by Detective Chief Inspector Li between 18:27 and 20:19 on 20 August 2011. The latter questioned the applicant about his description of events leading to Shazia’s death asserted in the statement that he had written in the officer’s notebook. In addition, he posed further questions as a result of the information that was forthcoming in clarification of the earlier account. The applicant’s answers were a consistent elaboration of the earlier account that he had written in the notebook. Also, the applicant provided information about his relationship with Shazia and a woman named Tarmini. He and Shazia were married in 1998 in Pakistan. They had four sons. He came to Hong Kong in 2006 and was joined by Shazia in 2009. Also, he had entered into a Muslim marriage with Tarmini, who was Indonesian. There were two separate households, between which he divided his time.[1] Video recorded reconstruction 14.Having been repeatedly cautioned, between 12:00 and 14:21 on 21 August 2011 the applicant participated in a video recorded reconstruction of his movements and conduct leading up to the death of Shazia. The defence case Voir dire 15.In a voir dire the applicant challenged the admissibility of the oral admission as recorded in the post-record, the statement written by the applicant in the notebook, the video recorded interview and the video recorded reconstruction. 16.During the course of the voir dire, no fewer than 11 witnesses were called in the prosecution case. However, the applicant did not testify but did call Tarmini. Allegations of misconduct, including violence and intimidation, were put to the prosecution witnesses in cross-examination, but denied by all of them. Also, counsel submitted that there had been breaches of various provisions of the Secretary for Security’s Rules and Directions. Ruling 17.The judge ruled admissible all the material in respect of which challenge had been made and, before the trial began before the jury, delivered written reasons for that ruling . General issue 18.The applicant gave evidence in the defence case but did not call any other witnesses. He denied that he had been together with Shazia on Dragon Beach on the evening of 18 August 2011 and that he had killed her there. He denied that he had cut his right foot on rocks as he had run away from the beach and that he had abandoned his shirt nearby as he escaped. He testified that in the afternoon of 18 August 2011, he and the deceased went to buy books for their sons. Between 5 pm and 6 pm, he cooked dinner, and left for Tarmini’s home. He returned at about 7 pm to get money to buy beer. When he was there, he testified that the deceased told him his clothes and cap were dirty and he therefore changed his clothes. He took $20 for beer and roamed around Sham Shui Po before returning to Tarmini’s home between 10:55 pm and 11 pm to stay the night. He returned to the deceased’s home on 19 August 2011, but she was not present. Eventually, someone made a report to the police that the deceased was missing and the police arrived at about midnight. 19.The applicant testified of misconduct directed towards him by police officers. He said that his admissions were the result of being assaulted, threatened, induced, coached, and oppressed. He suggested that the ‘discovery’ of items of his clothing and, his blood/saliva on exhibits said to have been found at the scene came about because he had been framed by the police. They must have tampered with the exhibits, so as to place him apparently at the scene of the killing. He had not been there. GROUNDS OF APPEAL AGAINST CONVICTION 20.By ground 1 of the grounds of appeal against conviction, Mr Haynes submitted that in ruling admissible the applicant’s out-of-court statements made in the police officer’s notebook, the video record of interview and the video recorded reconstruction the judge had failed to give appropriate weight to the breaches to the Secretary for Security’s ‘Rules and Directions for the Questioning of Suspects and the Taking of Statements’ and to the internal and external inconsistencies in the testimony of the prosecution witnesses. Ground 2 21.By ground 2, it was submitted that the judge had erred in ruling admissible the evidence of Mr Yim and Mr Tsang in respect of the man whom they had seen at around 22:30 whilst jogging on Castle Peak Road. In particular, the judge erred in allowing photographs taken of the torso of the applicant to be put into evidence, which photographs depicted his hirsute torso. Given that neither witness had attended an identification parade, let alone identified the applicant as the man that they had seen, the probative value of the evidence was out-weighed by its potential for prejudice. Ground 3 22.By ground 3, it was contended that the judge had erred in admitting into evidence a map drawn by a land surveyor that was marked with inadmissible hearsay information as to the place at which various exhibits had been found. He did so against the objection of counsel. The markings were based entirely on information supplied by a police officer who, although called subsequently by the prosecution to give evidence, did not testify about those matters. A CONSIDERATION OF THE SUBMISSIONS 23.At the outset, it is to be noted that the voir dire was a lengthy hearing: testimony was received from no less than 11 witnesses for the prosecution and one witness for the defence, which evidence was led for the equivalent of about 5½ whole hearing days over a total of 8 hearing days. However, as noted earlier, the applicant did not himself give evidence. The evidence and speeches having concluded on Friday 2 November 2012, the judge ruled the impugned admissions admissible immediately. On 5 November 2012, he handed down written reasons for his rulings. Notebook: post record (05:21-07:40 on 20 August 2011) 24.In his reasons for his ruling, the judge rejected the evidence of Tarmini, the applicant’s second Muslim wife, of having heard the sounds of an assault and cries of pain from the applicant coming from the flat at a time at which the applicant was alone with police officers inside the flat in Nam Cheong Street. He noted that there was an absence of injuries to the applicant consistent with that evidence and that her account was contradicted by what she had said in witness statements. The judge said that he was sure that the applicant had made an oral confession to Detective Chief Inspector Li and Detective Sgt 51280 at about 01:10 on 20 August 2011, namely “I killed Shazia” in those premises. 25.The judge rejected the assertions made in cross-examination, but denied by the police officers, that the applicant had been assaulted and made to stand on broken glass whilst in those premises. Those allegations were inconsistent with what the applicant told the pathologist and the doctor at the Accident and Emergency Department at Princess Margaret Hospital. The latter testified that the applicant had said that he had sustained the injuries to the sole of his foot whilst walking on rocks on a beach. 26.The judge said that he accepted the explanation of Detective Chief Inspector Li for not having made an entry in his notebook of the oral admission of the applicant until 05:21 that morning, at which time the two of them were together in an interview room in Kwai Chung Police Station, namely that it was not convenient to do so earlier. 27.The judge said that he accepted that Detective Chief Inspector Li and the other police officers who testified on the issue were telling the truth as regards the circumstances in which the post record was made. In particular, he rejected the allegations made in cross-examination that the applicant had been hit with an iron bar, noting that it was “not borne out by the medical evidence”.[2] 28.Of the fact that, after Detective Chief Inspector Li had given the post record of the circumstances in which the applicant had made his oral admission earlier at the flat to the applicant to read, the applicant had said, “I want to write down how I killed Shazia”, the judge said that he was not troubled by the fact that the subsequent written record made by the applicant was made in the officer’s notebook, rather than in a police form designed for that purpose with “all its printed caveats and/or declarations.” The judge went on to determine:[3]
29.Clearly, those findings addressed the submissions made on behalf of the applicant that, following the applicant’s assertion that he wished to make a written statement, the continued use of the police officer’s notebook was in breach of Direction 1(a) and Rule 4(c) of the Rules and Directions:
30.The entry in Detective Chief Inspector Li’s notebook contains no such signed declaration of the applicant prior to the written statement made by the applicant. 31.Noting that the applicant was proficient in English, the judge said that he was not troubled that Detective Chief Inspector Li had not arranged for an interpreter to be present at that stage, as he did at the video record of interview and the subsequent video recorded reconstruction. Certainly, the written statement made by the applicant in English in the notebook, although it contains grammatical and spelling mistakes, is readily understandable. In that account the applicant asserted that he had killed Shazia in order to free her soul from the Cyclops and Devil by which it was occupied. Further, he said that it was with her permission he had injected her with medication to cause her to sleep. Then, “when she can’t feel” he wrote that he had tried first to strangle her with a ligature and then cut her throat. It is to be noted, in the context of the applicant’s case that he had been coached by the police to give the account he was recorded as having given in the video record of interview, that at that time, about dawn on 19 August 2011, the toxicology report of the presence of midazolam in the blood, urine and stomach of Shazia was not available to the police, it being an admitted fact that the samples taken from the deceased were not even delivered to the Government Laboratory until 23 August 2011.[4] Video record of interview (18:27-20:19, 20 August 2011) 32.The judge said that he accepted the evidence of Detective Chief Inspector Li and that of Detective Sgt 51280 as to the circumstances in which the video record of interview was conducted. Noting the evidence of the subsequent examinations conducted by the two doctors and the appearance of the applicant in the video of the case reconstruction, the judge determined that he was sure that the applicant had not asked to be given methadone. Further, although he noted that in the course of the video record of interview the applicant made repeated requests for medical treatment, the judge said that he was satisfied that not only were those requests not made out of a need for methadone but also that the applicant did not suffer from any general illness. In any event, he said that he was satisfied that, if the applicant had wished to terminate the interview at any time, the interview would have been terminated. Video of the case reconstruction: (12:00-14:21, 21 August 2011) 33.The judge said that he rejected the allegations made on behalf of the applicant of mistreatment, in particular that he had been burned with a cigarette. That was not borne out by the medical evidence. He determined that there was nothing sinister about the fact that Detective Chief Inspector Li determined which locations to visit and when and where to turn the video camera on and off. The charge of murder: the evening of 21 August 2011 34.There was no dispute that the applicant was not charged with the murder of Shazia until the evening of 21 August 2011. Nevertheless, the judge said that he was satisfied that it was not wrong for the police to have proceeded, in the absence of charging the defendant, with the taking of the video record of interview and the video of the case reconstruction. He noted, “what constitutes sufficient evidence to charge someone with an offence is not a question of exact science”. Further, he found that the delay in charging the applicant did not amount to oppression. He said that he was satisfied that all the applicant’s admissions had been made voluntarily. Discretion 35.Finally, the judge stated that there were no grounds upon which it was appropriate to exercise his discretion to exclude any of the admissions made by the applicant.[5] 36.The preamble to the ‘Rules and Directions for the Questioning of Suspects and the Taking of Statements’ states that the rules do not affect the five principles there enunciated. Principle (e) stipulates:
37.The text continues by stating:
38.A breach of the Rules and Directions in obtaining an admission from a defendant does not per se render the admission inadmissible. Rather, the fundamental issue is whether or not the admission was made voluntarily. However, regard is to be had to the fact of such a breach in a consideration of whether or not it is appropriate to exercise the judicial discretion to exclude the admission.[6] 39.It is quite clear from the judge’s ruling that he had those matters firmly in mind in reaching the various determinations that he made in his detailed findings that led to his ruling as to admissibility. Thus, in respect of the fact that Detective Chief Inspector Li continued to use his notebook to make the record made by the applicant, after he had indicated he wished to write something, and that the applicant had not been asked to write out the declaration as to his rights and the consequences of making a statement, the judge accepted that was in breach of the requirements[7] and determined, first that it was an unintentional breach and came about as a result of an “unexpected development” and, secondly he found that, notwithstanding those breaches, he was satisfied that the admissions were made voluntarily. 40.The judge’s determination that the recording of the statement written by the applicant in Detective Chief Inspector Li’s notebook was an unintentional breach of the Rules and Directions was no doubt based on his frank testimony, “that was all along our practice in the police”.[8] Clearly, the practice was erroneous, but the judge was entitled to take the view that it was not adopted to somehow disadvantage the applicant, nor did it do so. Preamble: principle (d) 41.The judge’s determination that it was “not wrong” for Detective Chief Inspector Li to conduct a video record of interview of the applicant followed by a video of a case reconstruction after he had written his admissions of killing Shazia in Detective Chief Inspector Li’s notebook is to be viewed in the context of all the circumstances known to the police at that time and the applicant’s admissions. It is to be noted that the judge also went on to find that the time taken to charge the applicant did not amount to oppression. 42.The relevance of those twin issues was addressed in the judgment of this Court in HKSAR v Tang Siu Chuen. In the judgment of the court McMahon J said of principle (d) of the Preamble of the Rules and Directions:[9]
43.On any view the account written by the applicant in Detective Chief Inspector Li’s notebook was extraordinary, not to say bizarre. The officer was entitled, if the applicant was willing to participate, to make further enquiries of the applicant to attempt to establish the veracity of the startling assertions made by the applicant. Although Detective Chief Inspector Li had arrested and cautioned the applicant for the murder of Shazia, prior to the video recorded interview he had made no enquiries of him as to the circumstances of the killing. As is readily apparent from the record of interview, it was conducted by way of the Detective Chief Inspector making point by point enquiries of the applicant as to the bald facts asserted in his statement contained in the notebook. 44.Of the issue of delay, in the context of the continued detention of the applicant, it is to be noted that the video record of interview was conducted in the early evening on the same day on which the applicant had been arrested at 01:10. The video of the case reconstruction was conducted in daylight, beginning at noon the following day. Clearly, there was no oppressive delay. 45.We are satisfied that the judge made a careful and detailed analysis of the evidence relevant to the issues raised as to the admissibility of the out-of-court statements of the applicant and that he was entitled to determine that they were made voluntarily and that the circumstances were not such that warranted the exercise of his residual discretion to exclude the evidence, notwithstanding that there were breaches of the Rules and Directions. There is no merit in this ground of appeal. Ground 2 46.As the judge made clear in his reminder to the jury of the evidence led at trial, neither Mr Yim nor Mr Tsang had attended an identification parade.[10] Earlier, he had directed the jury of them that:[11]
47.Clearly, the probative value of their evidence lay in a consideration of it in the context of all the evidence: in particular, it was consistent with the applicant’s admissions, he being a Pakistani, to the police that he had made his way away from the beach without shoes and that he had thrown away his torn shirt; also, that he had made his way along Castle Peak Road to the bus stop on the Kowloon bound carriageway before taking a taxi towards Kowloon, in fact to Tung Chau Street. Ground 3 48.As the judge pointed out to the jury, the plan of the vicinity, ‘Plan of Area at Dragon Beach and Vicinity, Tsing Lung Tau, N.T.’[12] which was produced through Mr Ng, the Government Land Surveyor contained not only his work but also information which he had received from the police in respect of places along the route from the beach to the roundabout on Castle Peak Road, as a result of which it was “hearsay”.[13] Those places were marked with an ‘X’, next to which appeared the designation ‘Spot’ and a number. In all, there were eight such markings on the plan. Apparently, DPC 33318 provided the information to Mr Ng. That much is stated on the legend of the plan itself: “Location as pointed out by Mr Chow Wai Kin (DPC 33318) on 15/11/2011.” Since DPC 33318 was called as a witness at the trial by the prosecution, it appears to have been an oversight that he was not asked to speak to his first-hand knowledge in respect of the information affixed to the plan by Mr Ng. 49.It is to be noted that, earlier in his summing up, the judge had given the jury a direction that they were not to act on hearsay evidence: “what a witness tells you about what another person told him is not evidence of the truth of its content.”[14] However, the judge did not marry up the two directions, nor did he direct the jury specifically to ignore the markings on the plan. 50.In the course of argument in respect of the objection to the admissibility of the evidence, the judge noted that the purpose of the plan was to show the relative positions of the spots marked with an X in the context of the nearby area. His suggestion that the officers, who were to be called to identify exhibits and describe the location in which they had been found, should do so by reference to photographs and not the plan, exhibit P147, was carried out.[15] 51.In due course, the judge reminded the jury of that evidence. Mr Mak had described where he had seen exhibits by reference to photographs. He collected 16 samples of blood, which he marked with blue stickers, M-1 to M-16, from more than 50 spots of blood.[16] They are visible in photographs used in evidence and many of them assist in placing those designated places in the geography of the area. It was an admitted fact that on 19 August 2011 DPC 34381 and DPC 54034 had drawn sketches of the scene depicting where exhibits had been located, which sketches were put into evidence. The latter’s sketches, exhibit P116, depicted the trail of blood and other locations. He accompanied Mr Mak and placed his own markers against locations, which were then photographed.[17] 52.In the result, it is clear that the location of the trail of blood and the places at which exhibits were found were set out at length and in detail in the evidence. The reference to the ‘Route of bloodstain’ on exhibit P147, albeit hearsay in Mr Mak’s plan, was unambiguously established through other witnesses. Exhibit P147 gave geographical context to that evidence. That there was a degree of controversy as to the exact location at which the applicant’s shirt was found was a matter of which the judge reminded the jury.[18] The references on exhibit P147 to eight separately marked ‘Spots’, without any more explanation, were of no assistance to the jury. Equally, it was of no prejudicial effect. Conclusion 53.For the reasons set out above we were satisfied that there was no merit in the application for leave to appeal against conviction, which was dismissed.
Mr William Tam, DDPP and Ms Kasmine Hui, PP, of the Department of Justice, for the respondent Mr John Haynes, instructed by George Chan & Co, assigned by Director of Legal Aid, for the applicant [1] Appeal Bundle, pages 470-481. [2] Appeal Bundle, page 647. [3] Appeal Bundle, page 647. [4] Appeal Bundle, page 16. [5] Appeal Bundle, page 649. [6] Secretary for Justice v Lam Tat Ming & Another (2000) 3 HKCFAR 168, at page 179. [7] Rule 4(c) and Direction 1(a). [8] Appeal Bundle, page 207 C. [9] HKSAR v Tang Siu Chuen (CACC 67/2007; unreported, 17 March 2008) paragraphs 35-6. [10] Appeal Bundle, page 34 I-J and 35 K-N. [11] Appeal Bundle, page 31 M-P. [12] Exhibit P147. [13] Appeal Bundle, page 39 C. [14] Appeal Bundle, page 30 U-31 B. [15] Appeal Bundle, page 395 E-G. [16] Appeal Bundle, pages 39 L-M; R-S and 41 G. [17] Appeal Bundle, page 49 N-T. [18] Appeal Bundle, pages 43 D - 44 I. |
Cases cited in this judgment
Further hearings and rulings under CACC 484/2012