Both appellants were convicted of murder at the Central Criminal Court on 1 August 2008. They were alleged to have killed Xing Xing Xie at 54 Knoyle Street, the house both had occupied up to 17 April 2007. It was on that date that the prosecution alleged she had been killed. In the evening, Gian was alleged to have disposed of the remains of her body in different parts of the docks. Gian was convicted on a second count of doing an act tending and intended to pervert the course of justice.

There is no dispute but that Xing Xing Xie had taken a massive quantity of cocaine shortly before her death. Thus there was an issue as to whether she had been killed at all or had merely died as a result of taking that quantity of cocaine before attempts were made to conceal her identity by decapitation and cutting off her hands.

Not only was there dispute as to whether she had been killed, but there was also in issue where she had been killed. The prosecution had to prove that she had been killed at 54 Knoyle Street in order to implicate either or both of these appellants. Allied to that issue was the question as to where her head and hands had been removed. Detailed forensic examination at 54 Knoyle Street revealed none of the signs one might have expected had she been murdered or decapitated there. On the contrary, the absence of such signs was powerful evidence, contended the defence, that if a murder had taken place it was not at 54 Knoyle Street.

Apart from those issues was the identity of any, if any, assailant. Apart from the two defendants in the dock, an obvious candidate was a third man, Ngo, who had fled the country shortly after the killing.

These issues formed the basis of the submissions by the two defendants to His Honour Judge Forrester that there was insufficient evidence on the basis of which a reasonable jury properly directed could convict. Once the judge rejected those submissions neither defendant gave evidence. The arguments advanced to the judge form the foundation of the main ground of appeal advanced by both appellants that the judge ought to have withdrawn the case from the jury: there was insufficient evidence either as to the cause of the death or, if Xing Xing Xie was killed, that she died at 54 Knoyle Street and consequently insufficient evidence to implicate either defendant. We must, therefore, consider the state of the evidence both at the time of the judge’s ruling and at the time of the jury’s consideration, with only this additional element. The defendants contend that the judge summarised the evidence in a way which unfairly slanted it in favour of the prosecution.

Her friend Rui Li gave evidence of the deceased’s movements and her voluntary consumption of cocaine during the period of 36 hours leading up to her death. On Sunday 15 April 2007 Gian, the first defendant, and Ngo had met the deceased and booked into a hotel. Rui Li met them later that evening and all four spent the night in the hotel in adjoining bedrooms. Ngo and the deceased took cocaine and engaged in sexual activity whilst the defendant Gian and Rui Li spent the night in an adjoining room. The defence stress that the deceased was with Ngo and not with Gian. The other defendant, Noor Mohd-Yusoff, the girlfriend of Gian who regularly stayed with him at 54 Knoyle Street, was in Birmingham.

Next morning, Monday 16 April 2007, Gian, Ngo, the deceased and Rui Li went to 54 Knoyle Street where Ngo and the deceased spent time together and took more cocaine. Rui Li last saw her friend, the deceased Xing Xing Xie, when Rui Li left 54 Knoyle Street at 6.00 p.m. She gave evidence that before she left Xing Xing Xie had had a nosebleed, doubtless due to the amount of cocaine she was taking.

After Rui Li had left 54 Knoyle Street, Minh Ho went to 54 Knoyle Street, between 6.00 and 10.00 p.m., to fix a lock on behalf of his friend Quocanh who went with him. Those two, with another friend, saw the deceased who was taking cocaine.

The following morning of Tuesday 17 April 2007 at 2.00 a.m. there was evidence that the deceased’s mobile had been used, although her voice was not heard. Cell site evidence placed both defendants at the vicinity of 54 Knoyle Street on Tuesday 17 April. In particular, that evidence demonstrated that the second defendant had returned from Birmingham between 8.44 a.m. and 12.42 p.m. There was further evidence that the second defendant had returned to 54 Knoyle Street on that day in what was described as a “partial confession” she was alleged to have made on arrest. There was some evidence she was seen, possibly on that day, when John Nguyen visited the house and saw her with a broom or mop.

Between 3.00-4.00 p.m. on Tuesday 17 April 2007 Quocanh and two friends came to 54 Knoyle Street to see his new room. There was no sign of the deceased, no signs of any body, or any blood. But it appeared that these two defendants had left the house for good.

There was evidence that that night at 9.30, 9.32 and 9.36, Gian, using his mobile phone, had telephoned Quocanh asking to borrow money. He managed to borrow £140. The first call was in the vicinity of South Dock, two other calls were made in the vicinity of Greenland Docks. As we have indicated, Ngo fled the country. On 17 April, Gian also fled in the company of the second defendant, going to various addresses in London under assumed names and having changed their telephone numbers.

By 18 April 2007 Rui Li had become anxious as to the whereabouts of her friend. When she tried to talk to Gian, she found only Ngo, who told her that Xing Xing Xie had gone home in a taxi.

On 19 April the headless body of Xing Xing Xie was found in a red and white laundry bag floating in the water of South Dock and much later, on 8 June 2007, her head was found at Greenland dock wrapped in a black plastic bag. Her hands have never been recovered. On 24 April 2007 John Nguyen and another man went to 54 Knoyle Street and noticed that there was some sign of cleaning in the bathroom due to the presence of white powder. It was only on 26 April 2007 that the police went to 54 Knoyle Street. The only signs of the deceased’s blood were two spots on the opening edge of the door to the bathroom and one spot on the showerhead, consistent with Rui Li’s evidence of a nosebleed.

The two defendants were arrested on 27 July 2007 in the Birmingham area. On arrest the second defendant made an unsolicited comment to one of the arresting officers including these words:-

On interview she provided a prepared statement in which she said she had not “strangled” Xing Xing Xie and she denied any involvement in her murder.

Of lesser importance, we note that the first defendant denied any knowledge of the deceased by any name and told the police that her image was only “slightly familiar” to him.

There was evidence that the second defendant had a motive at least to be hostile to the deceased. She was possessive and jealous if she believed that other women were too close to the first appellant Gian. There was evidence that she had issued threats including one to her friend Rui Li. There was also evidence of a threat to kill the deceased which is the subject of a dispute as to its admissibility, to which we shall turn later.

Fundamental to the submission that the judge should withdraw the case from the jury was the evidence that Xing Xing Xie had consumed a substantial amount of cocaine. The appellants submitted that no reasonable jury, properly directed, could conclude that she died as a result of the infliction of injuries to her neck and attempts to cut off her head, rather than as a result of the cocaine. The toxicologist, Mr Humphreys, described the amount of cocaine and cocaine by-products in her blood as the largest he had come across. It was “a massive overdose”. The pathologist, Dr Jerreat, described the cause of death as two stab wounds to the neck, together with other neck wounds which appeared to form part of the process of decapitation. The bruising around the wounds inflicted to the victim’s neck and blood seepage in the surrounding tissue led to the conclusion that she was still alive when they were inflicted.

But, although she was alive whilst those wounds were inflicted, Dr Jerreat could not exclude what he described in cross-examination as a hypothetical possibility and in re-examination as a theoretical possibility that she had died from the amount of cocaine she had consumed after the infliction of the neck wounds.

It is on the basis of those answers that the defendants submitted to the judge and maintain before this court that no jury could properly choose between two causes of death, the stab wound inflicted to the neck and the quantity of cocaine she had consumed. They particularly rely upon the fact that cocaine can, as the evidence established, kill quickly without apparent symptoms. Moreover, Dr Jerreat conceded that if the body of Xing Xing Xie had been presented to him without any neck injuries he would have given the cause of death as cocaine poisoning.

Dr Jerreat’s opinion was, throughout, clear. His opinion was that the victim had died of neck and stab wounds. He said in re-examination:-

In our judgment, the judge was correct in refusing to withdraw the case from the jury merely on the basis that Dr Jerreat could not exclude a theoretical or hypothetical possibility that the victim had died from cocaine poisoning. There is ample authority for the proposition that the mere fact that as a matter of scientific certainty it is not possible to rule out a proposition consistent with innocence does not justify withdrawing the case from a jury. Juries are required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic and not fanciful possibilities. (See Bracewell [1979] 68 Cr App R 44, Dawson [1985] 81 Cr App R 150 and Kai-Whitewind [2005] 2 Cr App R 31 at paragraphs 88, 89 and 90). The Court of Appeal endorsed Boreham J’s direction in Bracewell. In that case the defence raised the possibility that the victim had been strangled, recovered and then suffered a heart attack, a sequence of events which could not be ruled out as a matter of scientific certainty. The judge directed the jury not to judge the case scientifically or with scientific certainty but to decide whether, on the whole of the evidence, they were sure. The Court of Appeal endorsed that direction which correctly drew the distinction between scientific proof and legal proof. It pointed out that the medical evidence was only part of the material on the basis of which the jury had to reach a decision.

Counsel sought to distinguish Bracewell and Dawson on the basis that this is not a case where it was alleged cocaine poisoning accelerated death from the stabbing injuries. The prosecution case in Bracewell was that the defendant had accelerated a heart attack and in Dawson death was caused by shock, whereas the defence contended that a pre-existing heart disease caused death in both those cases.

The factual differences afford no ground for distinction as to the principle. The basis on which a jury may convict is not scientific certainty. The appellants suggested that this case is distinguishable because the alternative cause of death did not depend upon a version of events put forward by the defence. The only evidence was that of the toxicologist and pathologist and no expert evidence was called on behalf of either defendant.

This affords no ground for distinction. The prosecution cannot be in a worse position because the opinions of both doctors remained uncontradicted by the evidence of any other expert. It was open to a jury to rely upon the clearly expressed opinion of Dr Jerreat and reject the possibility that the victim had died from cocaine in the period between two stabs to the neck and full decapitation. The judge was correct to leave this issue to the jury.

The effect of the massive overdose of cocaine led to a separate submission advanced on behalf of both these appellants before the jury and before us, although it was not a basis upon which the judge was invited to withdraw the case from the jury. This distinct submission rests on the possibility that as a result of the cocaine, Xing Xing Xie had collapsed and the defendants had inflicted the stab wounds and cutting injuries to the neck in the belief that she was already dead and in an attempt to conceal her identity before disposing of the body. Of course, if that may have been true, neither defendant would have been guilty of murder.

However, there are substantial obstacles to this theory. Dr Jerreat agreed that the deceased might have collapsed as a result of cocaine poisoning and have shown no vital signs. But the nature of the stabbing to the neck afforded the most powerful evidence that whoever inflicted those stabs did not do so in the belief that the victim was already dead. Miss Humphreys QC, on behalf of the first appellant, relied on a question during cross-examination of Dr Jerreat designed, she told us, to show that the two stab wounds to the right side of the lower part of the neck were at the same angle as other cutting injuries to the neck and were therefore consistent with an attempt to cut off the neck as opposed to cause death by stabbing.

This is a slim basis upon which to advance the argument that all the injuries to the neck were designed to cut off the victim’s head in the belief that she was already dead. On more than one occasion Dr Jerreat gave his opinion that what had happened was that the assailant or assailants had inflicted the stab wounds, the victim had collapsed and then her neck had been cut.

The jury was alive to the possibility, advanced by the defence, that the victim had collapsed before any injuries were inflicted to her neck. But it is equally plain that they rejected that possibility. Assuming, as we are prepared to do, that it was a realistic possibility, the jury were entitled to distinguish between the two deeper stab wounds and other cutting injuries to the neck. That distinction had to be considered in the context of other evidence of violence, demonstrated by bruising elsewhere on the victim’s body.

If, as we have concluded, the two stab wounds to the neck are distinguishable from other cutting injuries they afford powerful evidence of actions intended to kill as opposed to removing the head of the victim. The jury was entitled to conclude that those stab wounds were not designed merely to sever the head from the body in the belief that the victim had already died.

Finally, in relation to this issue, we should mention an argument that the jury had failed properly to consider the evidence of causation because, during their deliberation, they sent a note in which they informed the judge that:-

Leaving aside the question whether it is open to an appellant to mount an appeal on the basis of a note sent during the course of deliberation, it is plain that the jury were rightly considering, as a separate issue, the suggestion that the wounds to the neck had been inflicted in the belief that the victim was already dead. That was, as we have indicated, a distinct issue from the issue of cause of death. The jury was entitled to conclude that the victim was killed by two separate stab wounds to the neck and that whoever was responsible did not believe she was already dead at the time the stab wounds were inflicted.

The second foundation of the defence case, both by way of submission to the judge and subsequently to the jury, was that the prosecution were unable to prove that the deceased had been murdered at 54 Knoyle Street. It was accepted by the prosecution that it had to prove the deceased was killed at that address. If it could not do so, it could not implicate either or both of the defendants in the murder.

The medical evidence of Dr Jerreat and of the scientist giving evidence at the scene of crime, Catherine King, established that a substantial amount of blood would have been left by someone killed in the manner in which Xing Xing Xie was stabbed and decapitated. There was likely to be considerable spurting of blood from the severing of an artery. Yet no such blood was found. Sophisticated tests established only three spots of blood in the bathroom. Miss King would have been surprised at so successful an operation by which all traces of stabbing and decapitation were removed and postulated the curious idea that she might have been killed and decapitated on a plastic sheet. There never was a shower curtain in the bathroom and her suggestion had no validity.

There were signs of cleaning both on scientific examination and also emerging from witnesses such as Nguyen, who visited the premises on 24 April. But the evidence did not merely establish any of the remnants of the murder one would expect but also a significant absence of cleaning elsewhere in the house, including the discovery of cigarette stubs containing Mohd-Yusoff’s DNA. Further, the waste-trap in the bath showed signs of detritus but no signs of blood from the victim. Mr Altman QC, with characteristic frankness, accepted that the absence of blood and bodily tissue such as might be expected despite an attempt to clean the house, was powerful evidence in favour of the defence which the prosecution could not gainsay.

But that evidence must be considered in the context of the evidence as a whole. There was evidence both from the witnesses and from cell site evidence of the presence of both these appellants in the house at around the time the victim was last seen. The second appellant was shown by the evidence to be possessive and jealous. The behaviour of both appellants, acting in concert after the victim disappeared, is some, but by no means conclusive, evidence that they were acting together before. The behaviour of Gian in making three requests to borrow money from Nguyen on 17 April, telephoning from the vicinity of the two docks where the victim’s body and head were found, is evidence of his participation in the killing and not just in the removal of the body. The admissions made by Mohd-Yusoff to the police are evidence against her.

Powerful though the evidence of the absence of blood at 54 Knoyle Street is, it must be set against the evidence which demonstrated that Xing Xing Xie’s body had been at 54 Knoyle Street. Within the laundry bag recovered at about 9.00 a.m. on 19 April in the Greenland Docks was found a valance, designed for a bed, and a black Nike jacket, both of which appeared to have come from 54 Knoyle Street. There was evidence that the black jacket had been seen at 54 Knoyle Street and fibres on the valance showed that it had come into contact with the carpet there. Further, there was strong evidence that the laundry bag had been bought in a shop in Deptford, from which a similar laundry bag found by police at 54 Knoyle Street had also been bought. The victim’s head had been put in a pair of bin bags similar to bags found inside 54 Knoyle Street. The jury was entitled to conclude, on the basis of that evidence, that the murder had taken place within 54 Knoyle Street. It was entitled to reject the somewhat fanciful suggestion that whilst she was still alive she had been removed from that address with the laundry bag, the plastic bags, the valance and the black Nike jacket to be killed and decapitated elsewhere. In reaching that conclusion it would have been entitled to recall that a kitchen knife and meat cleaver were found missing from the address. The murderers were not likely to take away the living body of Xing Xing Xie, kill her somewhere else and then dispose of her body in the docks not far from the address from where she was taken.

That evidence had to be set against the defence evidence and the judge was not entitled, at the close of the prosecution case, to choose between the evidence which told powerfully in favour of the prosecution and the evidence which was strongly in favour of the defence. That was the jury’s function. In the light of the evidence on which the prosecution relied, the jury was entitled to conclude that the cleaning had been more successful than the expert Miss King would have expected. The jury was confronted with a choice between the rival arguments. It was their task to choose between them. The fact that it was faced with a choice does not afford any basis upon which the judge should have withdrawn that choice from them, still less a basis upon which this court would be entitled to substitute its own conclusion for that which the jury was entitled to reach.

Miss Humphryes QC, on behalf of Gian, suggested that there was insufficient evidence on the basis of which the jury could conclude that more than one person killed Xing Xing Xie, if she was killed. The evidence of the presence of both the defendants and their concerted behaviour after the victim had been left in the docks formed a sufficient basis on which the jury could conclude that they had acted together in killing the deceased. The evidence of the blows to the victim’s body, causing abrasions and bruising, suggests an attack before she was stabbed. The jury was entitled to reject the possibility that Gian had remained elsewhere in the house whilst that attack was perpetrated.

It was also submitted, on behalf of Gian, that the judge unfairly slanted his summary of the evidence in a way which favoured the prosecution. The judge observed to the jury that the defendants had gone to Heathrow before returning to central London in a taxi. He commented that they had perhaps failed to “fly off somewhere”. This was an obvious possibility and does not justify any complaint.

It is true that from time the time the judge made comments adverse to the appellant Gian. He commented that, despite his knowledge of his girlfriend’s suspicions, he had spent the night in a hotel with another woman. He observed that neither Gian nor the other man Ngo had sent Xing Xing Xie home despite her excessive intake of cocaine. In the context of the summing-up as a whole those comments cannot sensibly be said to have led the jury to adopt an unjustified hostile approach to the evidence which implicated Gian.

Further criticism was made of the comment that in relation to Quocanh’s visit to the house on 17 April 2007 and the absence of any sign of the victim’s body the judge questioned whether the body might have been “elsewhere or in the garden or somewhere out of sight?” The question seems so obvious as hardly, if we may say so, worth postulating. But in the context of the summing-up as a whole which fairly laid the issue of the absence of signs of the killing within 54 Knoyle Street before the jury, it cannot be said to have undermined the defence argument in any meaningful way. Finally, the judge is criticised for suggesting that the close proximity in time and location between the disposal of the body and the last time the victim was seen alive, was evidence upon which the jury could conclude that the person responsible for disposing of the body was also implicated in the murder. That was a legitimate suggestion for the judge to make.

We have considered the summing-up as a whole. It fairly considered the essential points on which the defendants relied, identifying the evidence which went to those issues. It was not unfair and we reject any criticism of it.

Ground 4 of Mohd-Yusoff’s grounds of appeal contends that the prosecution wrongly adduced and the judge wrongly permitted a hearsay statement from the victim, Xing Xing Xie, reported in a written statement of Rui Li dated 14 December 2007. The prosecution had served notice to adduce a number of hearsay statements but not notice to adduce this particular statement from the victim. It was of particular significance and of greater importance than any other statement in respect of which the prosecution served a notice. It was the first and only reference to a threat to kill. Rui Li said that Xing Xing Xie had told her that Mohd-Yusoff had called her asking what had happened at a party at which Mohd-Yusoff had not been present. She threatened to kill Xing Xing Xie if she found out Xing Xing Xie was lying in denying that anything had been going on between Xing Xing Xie and Mohd-Yusoff’s boyfriend, Gian. Xing Xing Xie’s account was that Mohd-Yusoff then said:-

That statement was neither in the hearsay notice nor referred to in prosecuting counsel’s opening to the jury. It was plainly important evidence. When on being asked about conversations she had with Xing Xing Xie, Rui Li gave evidence of that threat, the defence applied to discharge the jury but the judge ruled that he would have allowed the application to adduce that evidence had it been made and permitted the trial to continue.

The failure to give notice was unfortunate. It placed the judge in the invidious position of having to consider how he would have ruled had proper notice have been given. Whilst this court will not interfere with the trial judge’s decision as to admissibility unless his determination is outwith the ambit of reasonable conclusion, in circumstances in which he has been deprived of the proper opportunity to consider the issue at the appropriate time this court ought to consider with particular care whether it was fair to admit the evidence and whether the conditions in s.114 were satisfied, even though they were not directly applicable.

Moreover, were there any grounds for suspicion that the prosecution had deliberately withheld giving notice, the court would, generally, feel driven to exclude the evidence. But we should say at the outset of this part of the appeal that we are satisfied that the omission was mere inadvertence. There is no other reasonable explanation for the failure to refer to the most important hearsay statement in Rui Li’s evidence.

S.116(2)(a) was satisfied. Xing Xing Xie was dead. The court, accordingly, had no discretion but to admit the evidence unless s.78 of the Police and Criminal Evidence Act 1984 applied. In considering whether it applied, the prosecution accepted that the judge ought to consider those factors identified in s.114(2) when considering the fairness of admitting the evidence under s.78 (R v Cole and R v Keats [2008] 1 Cr App R 5). In our judgement the factors identified in s.114(2) were satisfied. The threat was clearly of significant probative value. No other evidence of the threat could have been given. It was important to the case as a whole since it was the only evidence of a threat to kill. As to the circumstances in which it was made, the defence were in a good position to challenge its accuracy since they could cross-examine Rui Li as to her failure to mention the threat in extensive interviews which culminated in a detailed statement on 5 August, 2007. The threat was not referred to until a statement four months later. The defence were also able to point out the unreliability of the deceased, both in respect of lies she had told in the past and in the context of her lifestyle. In short, the defence had ample material upon which to challenge the reliability both of Rui Li and the deceased, Xing Xie. In our judgement, the statement was rightly admitted and the judge was correct to refuse to discharge the jury either when the evidence was first given or at the close of the prosecution case.

We should add that the judge gave a careful direction to the jury as to the reliability of the statement, mentioning those points advanced by the defendant, and the need for caution. The admission of the threat does not lead us to conclude that the judge ought to have had discharged the jury pursuant to s.125 of the 2003 Act, nor that it otherwise renders the verdict unsafe.

Finally, criticism is made of the judge in permitting the prosecution to cross-examine a witness, Vu Dinh Dung, as a hostile witness. On cross-examination, the prosecution suggested to the witness that he had said that Mohd-Yusoff had become aggressive towards other women whom she thought might be rivals. He had said in his statement that he had seen her in clubs arguing with other girls. It appears that this unreliable witness, at the end of the cross-examination, accepted that he had made that statement. The point is too trivial to have had any adverse affect on the trial or the jury’s conclusion. We wonder why the prosecution had bothered with it and suspect, that with hindsight, it wished it had not. Its small significance was amply demonstrated to the jury by the judge who directed the jury not to hold that piece of evidence against the second appellant.

We dismiss all the grounds of appeal advanced by both these appellants. In our judgement they afford no basis for a conclusion that the verdicts were unsafe.

The appellant Gian was sentenced to life imprisonment with a minimum term of 22 years. He contends that that minimum period was excessive when compared with the minimum term of 15 years’ imprisonment imposed upon his co-defendant Mohd-Yusoff. She was 24 with no previous convictions; he was 27, and had engaged in what the judge described as a pattern of serious offences of violence. He had one offence of violent disorder in December 2000 and, more significantly, had been imprisoned for 4 years for wounding or inflicting grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861.

The judge rightly commented upon the serious nature of the offence, aggravated as it was by the brutal disposal of the body and his previous conviction for violence. Nevertheless, we do not think that the disparity between the minimum terms can be justified on the basis of his previous conviction. We recognise that after a lengthy trial His Honour Judge Forrester was in the best position to assess relative responsibility and the gravity of these crimes. But in this case the judge rightly commented that it was not possible to establish which part each of the two defendants had played, let alone the responsibility of the man who had escaped. The previous conviction, however, does not justify so great a difference. The serious nature of the offences of which Gian was found guilty would, we acknowledge, have justified the minimum term of 22 years. But in the light of the unjustified disparity we are driven to the conclusion that an appropriate minimum term would have been 19 years. To that limited extent, the appeal against sentence is allowed.