The Queen v. Pham Van Cuong

CACC000191/1990

BETWEEN

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Power, J.A.

Date of Hearing: 14 November 1990

Date of Judgment: 14 November 1990

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JUDGMENT

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Hon. Yang, C.J.:

1. The applicant Pham Van-cuong was convicted after trial by Judge Caird of one charge of robbery (Charge 1) and another charge of indecent assault on a woman (Charge 3). He was acquitted of three other charges of indecent assault and a charge of common assault on one of the women.

2. The whole case turned upon one issue, and one issue only, namely, identification.

3. The judge dealt with that issue with some care and discussed the well-known case of Turnbull. Then he went on to consider the question of corroboration, an issue with which we are not concerned in this application.

4. Four ladies gave evidence saying that they had been indecently assaulted and robbed. The learned judge accepted the identification evidence of only one of them, namely, Madam Vuong (PW1), but was of the view that the quality of the identification evidence of the other three ladies was of such a poor quality that he felt it unable to accept their evidence. Whilst he accepted the evidence of Madam Vuong (PW1) he nevertheless acquitted the applicant on the second charge which concerns an indecent assault on Vuong. Instead he found the applicant guilty on the third charge of indecent assault on Madam Y (PW2) whose identification evidence he declined to accept. We suspect that the judge had probably made a mistake in this connection. The result is that there is no evidence that we can see to support a conviction of indecent assault under Charge 3. This conviction cannot therefore be upheld. The trial judge however was perfectly entitled to rely on the evidence of Madam Vuong (PW1) to find the applicant guilty of the first charge, namely, robbery.

5. The facts in relation to the first charge are as follows. The applicant together with the four ladies concerned were inmates of the Tai Au Chau Detention Centre as Vietnamese boat people. Following a disturbance by the Vietnamese boat people in the Centre in the evening of the 27th August 1989, a number of Vietnamese men, including the applicant, robbed the four women involved of their belongings. These men were armed with wooden poles and iron bars and were holding torches. On the 30th August, the applicant was identified by Madam Vuong and he was arrested. On those facts as supported by the evidence which the learned trial judge accepted, we cannot fault the conviction in any way.

6. For these reasons we allow the application, treat the application as the hearing of the appeal, dismiss the appeal against conviction under Charge 1 and allow the appeal against conviction under Charge 3. The conviction of indecent assault under Charge 3 is quashed and the sentence set aside.

Representation:

Mr. C. Coghlan for Crown/Respondent

Pham Van-cuong Applicant in person