The Queen v. Ngo Duc Hai and Others

CACC000301/1989

BETWEEN

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Coram: Hon Kempster, Clough & Hunter, JJA

Date of Hearing: 19 January 1990

Date of Judgment: 19 January 1990

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J U D G M E N T

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Hunter, JA :

1. The three applicants, Ngo Duc Hai, Vo Ngoc Anh and Truong Viet Toan, were convicted after trial by Her Honour Judge Chua on 5th June 1989 of varying offences. All three were convicted of the offence of resisting a police officer in the course of his duty on 8th February 1989. The first applicant was likewise convicted of having on the same day been in possession of an offensive weapon in a public place, the offensive weapon being a broken Vitasoy bottle. Likewise all three were convicted of robbery. The robbery was alleged to have taken place on 23rd January 1989 in Fa Hui Park, Boundary Street, the two victims being Mr Chan Ka-yuk from whom there was stolen $450 and a Walkman radio and a Miss Lee Kim-ling from whom there was stolen a finger ring.

2. The offences of which the applicants were convicted fall in quite separate compartments. The first in point of time was the robbery.

3. The case against them depended entirely upon the reliability and the credibility of the two victims. In brief, they said that they were sitting together upon a bench in the park when three men came up to them. One of them was holding a broken bottle with which the male victim was threatened; it was held against his throat. They spoke to him in what he described as "non standard" Cantonese. His legs were tied together with a shoelace. The items which I have already enumerated, were taken from him. Likewise Miss Lee lost her finger ring.

4. The whole case depended upon the reliability of those two witnesses' identification of the three applicants. Mr Chan, the male victim, did not immediately report the matter to the police. He put it in writing. This caused some delay and the identity parade did not take place until a date in March. Two identification parades took place one after the other. On the first identification parade he picked out the first and second defendants and an actor. At the second identification parade he picked out again straight away the 3rd defendant and said he was wrong about the actor he had identified in the morning. Thereafter in evidence before the judge he expressed himself as being very positive in his identification of all the three men. The female victim, Miss Lee, likewise attended an identification parade and picked out on that occasion and again in court the first and third defendant. She in her evidence was less positive or firm about her identification, but claimed that she had had no doubt about it at the time that she made the identification at the identification parade.

5. The trial judge having properly directed herself found both witnesses to be careful, honest and reliable. She also heard evidence from all the applicants who denied going near the park on the occasion in question. Having carefully considered that evidence she rejected it and came to the conclusion that they were all liars; that they were telling a fabricated story after the event. That conclusion was largely reached on the basis of a conflict of evidence which I shall come to in a moment arising out of the events of 8th February. In those circumstances the judge came to the conclusion that she had reliable evidence from the victims, no reliable evidence from the applicants and on that basis she convicted them all of the offence of robbery.

6. It has been suggested today by one of the applicants that he was convicted upon the basis of a previous conviction. We can see no justification for that at all. Likewise criticism has been made this morning of the fact that one lawyer was retained to defend three of them. Since they were advancing identical defences, it is not apparent what prejudice they could have suffered from that event. We can see no basis for criticising the conviction of robbery.

7. I turn then to the events of 8th February. There had been complaints about incidents in this park with the result that a surveillance team comprising six police officers in plain clothes were posted to keep observation on that day. They saw the three applicants enter the park and were struck by the fact that the first applicant kept his arms folded across his chest and his hands concealed under the jacket that he was wearing. One officer approached him, opened the jacket and saw that he was holding in his hands a broken bottle. That had been the same sort of implement described in the robbery on 23rd January. He was asked why he was holding this. No explanation was given and he was told to squat down. At that moment, he uttered the word "run" and all three applicants tried to escape. Each was chased, stopped and overpowered by different police officers. They were then brought back and charged. It is those events which give rise to the offences said to have been committed upon this day; as against the first applicant possession of an offensive weapon; and as against all of them resisting police officers in the course of their duty. In respect of those incidents, there was a headlong conflict between the evidence given by the police officers and that which was given by these applicants. Having considered all evidence with some care, the trial judge came to the conclusion that I have indicated. She said : -

"it was obvious to me the defendants were lying and had hatched a story details of which they failed to work out or remember ..."

8. In the circumstances she recorded the convictions I have already indicated. We have, as my Lord has said already, read the record in this case with some considerable care. We can see no basis for criticising any of the judge's conclusions or her reasoning. In those circumstances the applications fail and must be dismissed.

Representation:

Applicants in person