Yunus v State [2011] FJCA 51; AAU0008.2004 (25 November 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU0008 OF 2004
[Criminal Action No.HAC 29 of 2006]

BETWEEN:

MOHAMMED YUNUS
MOHAMMED SHAHEJAD KHAN
Appellants

AND:

THE STATE
Respondent

CORAM: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Sriskandarajah, Justice of Appeal
Hon. Justice Nimal Wikramanayake, Justice of Appeal

COUNSEL:Appellants in Person
Ms S. Puamau for the Respondent

Date of Hearing: Wednesday, 2 November 2011
Date of Judgment: Friday, 25 November 2011

JUDGMENT

William Marshall, JA

1. On the evening of 7th March 2000 a taxi driver aged about 50 years from Nadi, one Ami Chand Sharma was hired to take three men to the countryside at Ciriwai road near Sigatoka. There he was savagely murdered by some or all of his passengers. His body was rolled down the slope nearby. Those responsible took identifying features out of and off the white taxi D7530 and later at Nasau near Nadi set fire to Ami Chand's taxi.
2. Arising out of these events on the 25th August 2003 at Lautoka High Court Mr Justice Kishor Govind commenced a trial by holding a voir dire or trial within a trial on whether the confession statements and charge statements of the three accused persons were voluntary and therefore admissible.
   
3. The first accused Mohammed Yunus usually referred to as Yunus was represented by Ms Natasha Khan. He and the second accused were charged in the first count on a charge of murder. The second accused was Mohammed Shahejad Khan usually referred to as Shon and he was represented by Mr S Sharma. Petero Rewatabua was charged alone with accessory after the fact to murder in the Second Count. In the voir dire he was represented also by Mr S Sharma.
   
4. The voir dire involved extensive evidence by the prosecution represented by Mr Tunidau and by the three accused. It took many days. On Tuesday 9th September 2003 Mr A Singh commenced appearing on behalf of the 3rd accused Petero Rewatabua. The last day before Mr Justice Govind adjourned to consider his decisions on the voir dires was 11th September 2003.
   
5. On 7th October 2003 Justice Govind ruled the statements and responses to being charged were voluntary and admissible in all three cases. Then Mr A Singh applied for a separate trial for Petero Rewatabua on the ground of extraordinary prejudice.
   
6. Justice Govind ruled in favour of a separate trial for Petero and said:
   

"In any joint trial there is bound to be some prejudice resulting from evidence inadmissible against one accused which comes from the statements by other accused. This is particularly so when the two acts in an accessorial situation form part of one transaction.

Invariably (this) situation can be cured by proper direction to the assessors. However in this case I am persuaded by Mr Singh's argument that a relatively weaker case against Accused 3 would be immeasurably bolstered by the admission into evidence of statements by the other two accused in a joint trial. I apprehend a degree of prejudice that would be impermissible and stand in the way of a fair trial. I therefore order that Accused 3 be tried separately from the other 2 accused and that his trial to commence immediately after the conclusion of the present trial. He is therefore bailed till October 13th for trial."

On 30th December 2003 the Director of Public Prosecutions served a Notice of Additional Evidence attaching a witness statement of Petero Rewatabua. By this date Petero had been tried and acquitted of accessory after the fact to murder. Petero gave evidence on 22nd January 2004. His evidence was that after driving from Nadi to near Ciriwai the car stopped, he got out and almost immediately became aware of Yunus and Shon strangling their driver Ami Chand with a green nylon rope. He assisted them in rolling the body down a hill. Yunus drove him back to Nadi in the taxi and he left the taxi at the Hindu Temple. The green nylon rope was found on the body when it was discovered a few days later.

7. On Monday 10th February 2004 the assessors gave a unanimous opinion of guilt and Mr Justice Kishor Govind convicted both Yunus and Shon of murder. On 20th February 2004 they were both sentenced to life imprisonment and Mr Justice Kishor Govind recommended in each case that they be released after serving a minimum of 17 years imprisonment. By 20th February 2004 the legislation had been changed. At that date "recommending" minimum periods had been replaced by the Penal Code (Penalties) (Amendment) Act No. 7 of 2003 which now required the High Court Judge sentencing for murder to sentence each accused to life imprisonment and order that each accused shall serve a fixed minimum term of years in prison.
   
8. On 22nd August 2003 just prior to the start of the voir dire Ms Khan on behalf of Yunus made application to the Court in these terms:
   

"Ms Khan: Understand that two other people charged for conspiracy to murder were discharged as a result of nolle by the DPP.

Like copy record of that providing to makes submissions to DPP."

Justice Kishor Govind ruled:

"Court: I order that each party be at liberty to peruse the file in the case of other two people who I believe are Taj Mohammed and Sairul Nisha, in the High Court. Defence is entitled to make any representation it sees fit."

The Events Between Sentencing in February 2004 and the Present Hearing

9. On 23rd February 2004 a typed letter was filed by the Court of Appeal. It was dated 19th February 2004 and both Yunus's name and Shon's name were typed under the text. The letter said in its first ground that "the DPP and the assessors have been working together to make us found guilty on murder". The second ground was that the judge did not explain clearly his reasons for convicting. The third grounds said "justice unfair" when passing life sentence". This ground also said that constitutional rights had not been afforded and that the Learned trial judge had not taken into account that the statements of the two accused had been made under duress. The letter concludes by applying for more time that the 14 days given by the judge and asks for trial papers.
   
10. On 20th March 2004 the following letter signed by Yunus was filed in the Court of Appeal:
    

"Suva Prison

Box 114

Suva

The Chief Registrar

Fiji Court of Appeal

Government Buildings

SUVA

Your Lordship

RE: APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

I, Prisoner Mohd Yunus and Hohad Shazad Khan was jointly charged for murder. The Lautoka High Court imposed both of us 17 years of life sentence the grounds of appeal against my case and joint charge as follows:-

1. That upon the evidence given in this case there is no clear nor any direct evidence to prove the offence charged – Please see (2) ...R-J-CLAY, 3-R-JOHNSON-6 CR APP R 82, R. V DAVIS A. CR., 66 R-V-
   
2. HANNINGS 27-CR APP R.46 that the learned judge erred in law in denying me the right to call the witness for my defence – SEE R.V Chapter (1960) my defence – see R. V. Chapter (1960) (44) C.R. App. 255, R v. ANDEWA 27 C.R. (6) APP. 12.R.
   
3. That the High Court judge imposed us both 17 years because the prosecutions failed any degree of offence which sufficient to prove any degree of murder which sufficient to sustain the indictment. Please see R V HARRISON 22 CR APP R 82 that the learned judge erred in law and in fact trial to fair into consideration that the appellant was identity parade or any finger print was
   
4. found on us nor any such exhibit even we were not in a position to cross-examine the prosecution witness appropriately. Please see section 27-1-(c). Also on 388 of Criminal Procedure Code of Fiji that the learned high court judges and assessors erred in law
   
5. and in fact in relying on and/or considering and taking my oaths inadmissible out/or prejudicial evidence in finding the appellant guilty-(6) that the appellant reserves his rights to argue appeal further grounds of appeal upon receipt of the court.
   
6. Record in this matter
   

Yours lordship the sentence imposed on us is harsh and excessive due to our age and also

7. the police use force on us to admit this murder case.
   

Your lordship the day Police arrest me and Shayzad the police started punching us and we could not take the pain and that's why we admit the offence of murder we told police that we did not murdered the man and police came to my home and made a search but they did not found any thing in my house and same police went to Shayzad's house and made search and police found (1) Taxi Sign (1) Taxi meter 1 Jack and all this was given to him by his boss Taz Mohammed.

My Lordship nothing was found with me or in my house police made false statement and lay charged of murder on me in court we both plead not guilty, my lord I can say that we both are innocent of this case. I am asking if your Fiji court could grant me benefit of doubt and release me to go out of your Fiji court of justice as in my case the justice was not done and were given life sentence recommended for 17 years to serve in prison. I can prove that we did not committed the offence nor we hire his taxi that day murder took place that's all.

Sir I hope that you will grant my appeal I was a married man supporting my poor family who are suffering today this 17 years reflect in my wife and young daughter.

Thank you sir.

Your appellant

Mohd Yunus."

11. The next event is a decision to refuse bail pending appeal by Michael Scott JA on 4th June 2004. Ms Prasad had appeared for the State opposing bail pending appeal. Scott JA cites the following from Ms Prasad's submission to him:
    

"Addressing herself to the criteria applicable in these circumstances (Section 17(3) of the Act) Ms. Prasad submitted that on the basis of the materials presently available the Appellants' chances of success in their appeals were slim, that it was probable that the appeals could be heard in the November session of the Court of Appeal and that even if the 17 year minimum sentence period were to be reduced to the usual term of about 11 years before release on licence the proportion of the sentence which would by November have been served would not be unreasonable."

12. Whatever Ms Prasad might have thought the case was not moved forward for the necessary leave application or for hearing in November 2004.
    
13. The matter was listed for mention on 24th June 2005. Both applicants for leave to appeal appeared in person. From the following note it is clear that leave to appeal was refused to both Yunus and Shon:
    

"Leave refused.

Sgd: Gordon Ward

President

Mohammed Yunus: Advised lawyer will not be representing.

Mohammed Yunus: Then I seek court to look for lawyers.

Court: Scott refused this ground already.

Mohammed Yunus: How can I understand my case.

Court: Leave refused.

Sgd: Gordon Ward

President

The Honourable President did not make an order under section 35(2) of the Court of Appeal Act that there were no grounds of appeal and that further applications would be vexatious.

14. The next event occurs more than five years later. There is a signed letter from Yunus to the Court of Appeal dated 25th October 2010. This confuses Ms Prasad's argument for a ruling by Mr Justice Scott in June 2004. He represents he was promised an appeal hearing in the November session in 2004. But that is quite incorrect. While an application for leave to appeal against conviction and/or sentence must be made within 30 days when it comes to renewing a leave application to the Full Court after the Single Judge has refused leave, Section 35(3) of the Appeal Act does not provide any time limit during which the applicant must so renew his application. For that reason the Full Court is now seized of applications for leave to appeal by both Yunus and Shon for leave to appeal against conviction and sentence. In my view there should be a time limit in the Appeal Act. If there was I am sure that five years delay would mean that the application for leave and the appeal had passed the point of finality without possibility of revival. However this Court is bound by the Appeal Act as it is now.
    
15. By a similar letter received in the Court of Appeal on 20th July 2009 Shon applied to renew a leave application to the Full Court on the matter of sentence only.
    
16. On 10th June 2010 Yunus sends a further letter to the Court of Appeal. This erroneously claims that after finality the Court of Appeal, as the Privy Council had in civil cases but not in criminal cases, has a right to reopen and review their judgments and orders.
17. In the second paragraph Yunus sets out old and new grounds of appeal. He again says that Justice Govind denied him the right to call a witness for his defence.
    
18. The second ground reads:
    

"That the learned judge erred in law and in fact by convicting me after relying on unobjected and in admissible evidence which submission I intend to make to the substantiate the above grounds. I wish to refer to the case of (Timoci Ravurabota) who was sentenced a 20 years minimum life imprisonment by high court Judge Mr. Salesi Temo on 26th February 2010, who was confessed two years after killing 17 year-old van driver Navneet Kumar on 29th April 2005.

And in his case two innocent men Rupeni Naisoro and Seinivalati Ramuwai were sentenced to life imprisonment for the Ravurabota's brutal action.

And in my case is also similar as the above reference case, but only the difference that in the above case Timoci Ravurabota confessed after two years and in my case the main suspect not confess yet."

The Background to a Wholly Premedidated Murder and the Suggestion that the True Perpetrator Will or Might Confess

19. The victim Ami Chand has four children and one of them a daughter was married to a son of Taj Mohammed. Taj Mohammed operates a shoe business in Nadi and in that business his brother Mohammed Yunus is employed. Also employed in that business is Mohammed Shahejad Khan. It will be recollected that Justice Govind released the prosecution file showing that Taj Mohammed and his wife in the early days after 7th March 2000 were charged with conspiracy to murder Ami Chand but were then released and the charge was dropped after the prosecution issued a nolle prosequi.
    
20. The widow of Ami Chand, Ms Shiu Kumari said in evidence:
    

"Was married to Ami Chand. 4 daughters and 1 son. Second daughter Sangella Sharma 1998 Form 6 at Nadi College got involved Mohammed Gulsher s/o Taj Mohammed alias Junior. My husband not happy. Families not in good terms.

Because of the relationship got to know some relatives. Know Accused 1 brother of Taj Mohammed. Did not know working for Taj Mohammed. Know Taj Mohammed operates shoe repair business in Nadi town. Husband taxi driver. ..."

In cross-examination by Ms N Khan on behalf of Yunus:

"Q: Talking terms?

A: Yes when met.

Q: Visiting terms occasionally?

A: No.

Q: Your husband did not like them?

A: He liked them, but did not visit them."

21. Petero Rewatabua in his evidence in Court said that when Yunus and Shon attacked Ami Chand, Yunus said to Ami Chand "Why did you practice witchcraft to Taaj's son". In his initial statement to police Petero Rewatabua had also said that Yunus accused Ami Chand of practicing witchcraft on Taaj's wife.
    

In his statement to police Shon said that Taaj's wife wanted Ami Chand killed because of sores she was getting in her hand on account of Ami Chand practicing witchcraft.

There is also the fact that Shon in his sworn evidence in his own defence refers to car parts found in a white sack at his house. They were identified as having been taken off the white taxi of Ami Chand. His explanation of them being in his house was that Taaj had delivered them to him describing them as spare parts of his Subaru van. However as seen below there is very credible evidence that it was Yunus and Shon that stripped the white taxi before having it burned.

22. So when Mohammed Yunus refers in his letter of 10th June 2010 to "the main suspect not confess yet" he is referring to his brother Taaj and possibly his wife. But the fact is that full disclosure of pre trial materials was made to Ms N Khan at the start of the trial. During a long and complicated trial Miss Khan, who the record demonstrates was doing her job very competently, never once developed any attack on Taaj or his wife. When asked whether he wished to give sworn evidence in his defence Yunus declined, and, as accused persons in 2004 were able to elect to do, he elected to give an unsworn statement from the dock. In that statement he does not once refer to his brother Taaj or his wife.
    
23. In my view there is not even a sliver of evidence pointing to anyone other than Taaj or his wife as having some connection with the death of Ami Chand. The prosecution must go against those against whom there is evidence. As compared with Taaj and his wife, the evidence that Yunus and Shon committed the crime is overwhelming. The claim there being somewhere out there a guilty perpetrator who ultimately intends to confess is wholly unsubstantiated and without merit.
    
24. The motive for killing Ami Chand seems to arise from a dispute between families. The mention of witchcraft is not proven and the exact reasons will remain something of a mystery.
    

The Criteria for Allowing Leave Depend on Sections 21 and 23 of the Court of Appeal Act. Do the Grounds stated by the Appellants Engage these Criteria with any Chance of Success?

25. The Record shows that a competently defended and fair trial took place over many weeks in 2003 and 2004. It was up to the accused and their counsel to call whatever witnesses they wished. The record discloses no instance of the accused being prevented from calling witnesses of their choice. A voir dire was held. The judge admitted the accused's confession statements as voluntary. That is his decision. There is no ground of appeal on that matter disclosed by the record. In any event the accused were able to mount the same factual challenges in respect of the voluntariness and reliability of the confessions in the trial before the assessors. The assessors as they were entitled to do, found both the caution and charge statements of both accused to be voluntary and reliable. There is no evidence at all of the trial process resulting in a miscarriage of justice.
    
26. The grounds do not raise any questions of "law alone" or any questions of mixed fact and law.
    
27. In terms of section 23, that leaves grounds based on the tribunal of fact having reached an unreasonable verdict. Before I examine that, let it be very clear that there was an abundance of evidence against both accused at the end of the prosecution case. That means that against both accused there was a case to answer. The contrary is simply unarguable.
    
28. Sometimes it is submitted that in a criminal appeal from a High Court trial that the verdict or decision is against the weight of the evidence. That is not what "unreasonable verdict" has been held to mean.
    
29. What the section 23 power means with regard to what is an "unreasonable verdict" was explained by the Court of Criminal Appeal in England in R v. Hancox [1913] 8 Crim. App. Report 183. The Court was presided over by Phillimore J sitting with Pickford J and Coleridge J. It concerned a police officer whose visits to a public house coincided with the landlady's change disappearing. She marked a coin which was later found in the police officer's pocket. The jury, as tribunal of fact convicted. The appeal was based on Hancox being unpopular because he enforced the law and two out of the twelve jurors were biased against the police and Mr Hancox having being charged with crime, each on one occasion. This last allegation was dismissed by the Court. Mr Justice Pickford giving the judgment of the Court said at page 197:
    

"This Court has said that it does not proceed on such lines as these – look at the evidence, see what conclusion the Court would have come to, and set aside the verdict if it does not correspond with such conclusion. There have been cases where the Court has thought fit to set aside a verdict on a question of fact alone, but only where the verdict was obviously and palpably wrong. Such cases are rare. This case turned on the manner in which the witnesses gave their evidence; there was a proper direction to the jury, and the Court does not see that it can interfere with the verdict without substituting itself for the jury, which was the proper tribunal to decide the matter."

In respect of the statutory words under consideration the Court of Criminal Appeal in England always applied this statement of principle.

Does the Evidence Against Mohammed Yunus or Mohammed Shahejad Khan
Show a Case of "Unreasonable Verdict" against either of them?

30. The following was evidence that if accepted by the assessors in their opinions and the Judge in his decision, is, on each point very strong evidence against both appellants.
    
    • (1) In both cases there was a complete admission in statements under caution and in statements made when charged. They were detailed and there was reconstruction of events with the assistance of the accused at the scene of the murder.
      
    • (2) There was the eye witness evidence of Petero Rewatabua whose general account of the journey and the killing never changed. Where there are inconsistencies on detail it was open to assessors and judge to give them weight or to give them little or no weight. Petero Rewatabua gave his evidence in court almost four years after the killing. Since at the time he gave his evidence he had already been acquitted of being "an accessory after the fact" he was not an accomplice. If he had been there was ample material independent corroborative evidence.
      
    • (3) The evidence of Mohammed Hakik was that Yunus was a childhood friend. He asked Hakik to go to Navua in a white car identified as Ami Chand's taxi. This was on the 7th March 2000 after the killing. Hakik, one Richal and Yunus travelled in the white car. One Suliasi and one Marika travelled in Shon's red car. At Navua Richal burnt the white car at the request of Yunus. They all returned to Nadi in Shon's car.
      
    • (4) The evidence of Suliasi Nakamuri a cane cutter of Cuvu Sigatoka first of all corroborates Mohammed Hakik but adds some important detail such as Shon and Yunus taking equipment out of the car before it was burned. Suliasi said:
      

"Have a cousin sister Akosita Liku. Married to Shahejad Khan alias Shon. Shahejad from February 2000 at Sho's place for cut cane. On 7/3/00 supposed to go to Sigatoka but sister asked to stay. Accused 2 left for work in money in the evening. Recall woke up at 9.10 p.m. when Shon came. Before I went to sleep Shon not home ... woke me up. Went to sleep early in the evening about 8.00 pm. When I woke up saw a car outside house. Long white car. They were taking out equipment from car. It was Shon but not parked there before. Shon and Yunus in car. Known Yunus about 7 years. Yunus is first accused (points).

Sher told me to go somewhere. Went and boarded his private car. Me and Marika Tamanivulagi my brother and Sher boarded Shon's private car Pillu Mona and Yunus boarded the taxi. It was the same car they brought. Mona and Pulluat residences of Shon's father. Close to my cousin sisters. First went to Indian main places to buy cigarettes and then headed to Nasau. Went further inside Nasau when far, I noticed car burning. They were running back to red car. Pillu and Mona and Yunus running back, came and boarded car we were in. Went to drop off Yunus and went back home."

31. Against Shon, the following was strong evidence from Suliasi Nakamuri concerning what Shon said to his wife on the evening of 7th March 2000 after they returned to Shon's house after the burning. Yunus had been dropped off at his home at this time.
    

The evidence in the record:

"That night when we arrived back Shon told us at his house. They tied a rope around his neck and then they cut his neck".

In cross-examination by Ms N. Khan:

"Q: Put what you told Court did not happen?

A: I told Court what I heard and saw.

Q: Shahejad could not possibly have made statement, you said made?

A: I heard them talking about it. By them I mean Shon and his wife.

Q: Were you present in same room?

A: Yes it was in bure.

Q: Statement not made to you. Conversation overhead?

A: Yes.

Q: Statements all incorrect?

A: What I heard and saw I have told."

32. In my view these matters taken together proved to be overwhelming evidence of the guilt of both appellants. If the assessors had not provided a unanimous opinion of guilt in respect of both men it would have been a perverse verdict.
    
33. Any grounds not covered in this judgment are misconceived and have no chance of success. Where grounds raise points that demonstrate a complete misunderstanding of criminal law and procedure the appeal court should simply dismiss them. The record here has been considered critically to find anything that might favour an appeal and in my view there are no points in it that provide grounds for application by either Mohammed Yunus or Mohammed Shahejad Khan for leave to appeal against conviction.
    

Application for Leave to Appeal Against Sentence

34. Justice Kishor Govind said in sentencing:
    

"This was a gruesome and brutal act of murder. The two accused took an unsuspecting and trusting taxi driver and strangled him to death and slit his throat and rolled him down a bushy slope and burnt the taxi in an attempt to destroy any fingerprints.

I have considered the application by the Learned counsel for the Prosecution and the submission of learned counsel for each of the two accused.

I note a person with a family had his life cut short by the two accused for a few miserable dollars and a horse saddle. It was planned and executed with determination. They are adults. They know what they were doing. They were around 34 and 24 years old at the time of the commission of the offence. They have shown no remorse and indeed tried to shift the blame on others.

While there was no rape as in the Albertino case, the circumstances of this case are just as horrible.

Accordingly I sentence both accused to a term of imprisonment for life and I recommend that each of them serve a minimum term of imprisonment of 17 years."

35. I emphatically disagree with the use of the word "for" in the words "had his life cut short for a few miserable dollars and a horse saddle". This was a carefully planned and wholly pre meditated murder. It was no more done for money or the passing of the property in a horse saddle than it was done for the stealing of the spare tyre removed before the burning of the white taxi.
    
36. Recently in a judgment in Timoci Ravurabota v. The State I discussed the tariff for murder and how what is now the period that should be served before the prisoner becomes eligible for parole should be fixed.
    

"The killing is well towards the aggravated end of the spectrum for murder. There are some serious cases ranging from serial killings where "life means life" to cases of wholly premeditated and cold blooded taking of an innocent life and then perhaps to the level for this case. Here the decision to kill was made out of fear and panic while the robbery was still in progress. Timoci Ravurabota was very young and had no previous convictions. So in terms of an appropriate starting point in terms of tariff and in terms of comparing this offence with the worst cases for which the maximum penalty I would start with a term of 17 years. This was the figure arrived at by Madam Justice Shameem for this murder when after a trial she convicted Sainivalati Ramuwai and Rupeni Naisoro of the crime. In my view at this level the aggravating features are fully taken into account".

37. I note that section 23(3) of the Court of Appeal Act allows this Court to increase sentences if that is an appropriate course. It says:
    

"(3) On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted by law by the verdict (whether more or less severe) in substitution therefore as they think ought to have been passed, or may dismiss the appeal or make such other order as they think just. (Substituted by Decree 7 of 1990)."

38. In my view this case in terms of period to be served is further up the scale than that appropriate to Timoci Ravurabota's crime. This was planned and wholly premedidated murder savagely carried out by two people who acted together as Ami Chand's executioners. I propose that pursuant to section 23(3) of the Court of Appeal Act this Court should fix a minimum period of imprisonment that Mohammed Yunus and Mohammed Shahejad Khan must serve before release from the sentence of life imprisonment at 18 years.
    
39. I would mention that I would have made an order under section 35(2) in this case. But it seems that such an order can only be made by the single judge. If application for leave to appeal is renewed before the Full Court, and the application is vexatious or frivolous or is bound to fail, the Full Court should be empowered to make a section 35(2) order. Otherwise there is no way of stopping hopeless applicants petitions being made to the Supreme Court for leave to appeal.
    

Sriskandarajah, JA

40. I agree with the judgments, the reasons and the proposed orders of William Marshall JA.

Nimal Wikramanayake, JA

41. I also agree with the judgments, the reasons and the proposed orders of William Marshall JA.

William Marshall, JA

ORDERS OF THE COURT

42. The orders are:

(1) The applications of Mohammed Yunus and Mohammed Shahejad Khan for leave to appeal against conviction and sentence are dismissed.

(2) Having been sentenced to life imprisonment the recommendations of Justice Kishor Govind in the High Court that Mohammed Yunus and Mohammed Shahejad Khan serve a minimum term of 17 years in prison before release is declared null and void and is set aside.

(3) Pursuant to Section 23(3) of the Court of Appeal Act Cap 12, Mohammed Yunus and Mohammed Shahejad Khan having been sentenced to life imprisonment, it is ordered that the minimum period of imprisonment that Mohammed Yunus and Mohammed Shahejad Khan each must serve is now fixed at 18 years in place of 17 years recommended in the Court below. Time runs from date of sentence in the Court below being 20th February 2004.

.........................................................
Hon. Justice William Marshall
Justice of Appeal

........................................................
Hon. Justice Sriskandarajah
Justice of Appeal

........................................................
Hon. Justice Nimal Wikramanayake
Justice of Appeal