The Queen v. Nguyen Huu Bao

CACC000020/1988

BETWEEN

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Coram: Hon. Kempster, Penlington JJA & Macdougall, J.

Date of Hearing: 10th June 1988,

Date of Delivery of Judgment: 10th June 1988

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J U D G M E N T

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Macdougall, J.:

1. After a trial in the District Court before His Honour Judge Chism the applicant was convicted on a charge of wounding with intent contrary to section 17 of the Offences against the Person Ordinance and sentenced to serve a term of 3 years imprisonment. He seeks leave to appeal against both conviction and sentence.

2. The sole prosecution witness as to the circumstances of the wounding was the victim, a fellow Vietnamese resident of the applicant at the Kai Tak Refugee Camp. He testified that he was one of a group of about ten others including the applicant that had been playing Vietnamese roulette in an open space at the camp for about two hours. The applicant lost and failed to pay. When the other gamblers remonstrated with him for not having brought money, he left, only to return shortly afterwards armed with a large knife with which he attacked the victim, inflicting one chop wound on his left shoulder and four on his left arm resulting in his hospitalization for a week.

3. In the course of cross-examination of the victim counsel for the applicant sought to undermine his credibility by taxing him with two accounts of the attack he had given to the police in which he had offered conflicting versions of the circumstances of the attack. In the first of these accounts, which he gave shortly after the event, he complained to two police officers that he had suddenly been attacked with a knife as he was walking past a hut on his way to witness a fight that had had attracted his attention. The second account was given on the following day at the hospital. This formed the subject of a signed written statement in which he said that someone had beaten the applicant who then fled and later returned with a chopper with which he attacked the victim. The victim explained that in respect of the original report of the incident he had conducted the conversation with the officers in Cantonese, and that as to the statement he had made in hospital he was not very sure what had been read back to him.

4. One of the two officers to whom the victim made his original report testified that he appeared to understand most, but not all, of what the officer had said to him. He agreed, however, that the victim had coherently and clearly related to him that he had seen a fight outside the hut and that, on going over to investigate, he had been chopped by a Vietnamese male armed with a melon knife. The same officer also told the court that when he took the applicant to the Casualty Department where the victim was receiving treatment or his wounds, the applicant dashed at the victim and the officer had to intervene.

5. In testifying, in his defence, the applicant denied that he had attacked the victim with a knife, but agreed that he had taken part in the gambling activity for about two hours According to him, when he announced his intention to leave, the other gamblers in the group scolded him for wanting to withdraw from the game without giving them the opportunity to recoup their losses. He said that after he had taken a few paces one of them seized hold of him and four or five others, including the victim, attempted to strike him. One man punched him in the eye and the victim struck him in the neck with a stool. The applicant nevertheless managed to break free from his attackers and ran to a but where he locked himself in. Several pursuers then climbed onto the roof of the hut and began throwing bottles through an opening down onto the applicant, one of which struck him. Shortly afterwards the police arrived and the incident came to an end.

6. Under cross-examination the applicant admitted that he had attempted to assault the victim at the hospital and that his reason for doing so was that, on seeing the victim and recognising him as the man who had struck him with a stool, a wave of hatred had surged through him.

7. In his extempore reasons for verdict the judge stated that he did not find it altogether surprising that' the victim had concealed from the police the fact that there had been gambling activity. As the applicant himself had contended that a fight had erupted at the scene of a gambling incident and that he and the victim had been involved, we do not think that the judge was wrong in coming to that conclusion.

8. In his written reasons for verdict the judge, simply recited the very brief reasons he had given at the hearing for convicting the applicant, and stated that the facts were those set out in the Summary of Facts prepared by the prosecution.

9. It has come to the attention of this Court that the judge has adopted this approach in a number of previous cases. While we accept that the circumstances of a particular case may be such that only very brief reasons for a finding of guilt, are called for, we wish to make it plain that we do not approve of a judge stating that the facts are set out in the summary of facts". Such a practice is capable of giving rise to the impression that the judge has not properly turned his mind to an analysis of the evidence.

10. In the instant case, however, we are satisfied that in accepting a substantial part of the applicant's testimony, the judge did give proper consideration to the material area of conflict in the evidence of the two major witnesses. We have therefore come to the conclusion that the applicant's main ground of appeal must fail.

11. The remaining grounds of appeal consist of complaints that the judge should not have placed any reliance on the victim's evidence in light of the fact that he had originally been one of the gamblers who had assaulted the applicant, and that as the knife had not been produced in evidence the prosecution had somehow failed to establish its case.

12. Although the judge clearly accepted the applicant's account that he had initially been assaulted by the victim and others at the scene of the gambling, he was satisfied beyond reasonable doubt that the applicant returned with a knife and wounded the victim. There was uncontested evidence that the victim had sustained knife wounds. The judge was perfectly entitled to conclude on the evidence before him that it was the applicant who had inflicted them. The failure of the police to find the knife that caused the wounds was not material to the outcome of the case. Accordingly the application for leave to appeal against conviction is refused.

13. As to the application regarding sentence the applicant contends that the judge did not consider his family background and that he has parents and children who need his support. While it is unfortunate that innocent persons may indirectly suffer as a result of the applicant having been sentenced to serve a term of imprisonment we are of the opinion that the sentence imposed by the judge was neither manifestly excessive nor wrong in principle the application for leave to appeal against sentence is also refused.

Representation:

Mr. A.A. Bruce, S.C.C. for Crown Prosecutort

Applicant - NGUYEN HUU BAO - in person