R. v. Pham Duc Thinh and Another

CACC000385/1994

IN THE COURT OF APPEAL

1994, No.385
(Criminal)

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Coram: Power, V.-P., Bokhary and Ching, JJ.A. in Court

Date of hearing: 12 October 1995

Date of judgment: 12 October 1995

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J U D G M E N T

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Bokhary, J.A.:

1. On July 7 last year, before Mr Justice Stuart-Moore and a jury, these two applicants, both Vietnamese men, were convicted of the murder of a countryman of theirs on the afternoon of May 25, 1990, in a transit centre for boat people in Kai Tak.

2. They now seek leave to appeal against their convictions.

3. The deceased died of a stab wound which cut past a rib, went through and through the heart and penetrated into a lung.

4. It was on the eye-witness evidence of a Vietnamese man by name of Pham Van-da that the applicants were convicted.

5. According to the eye-witness, Mr Pham, the first applicant held a gun to the deceased's temple and a small knife to his throat while the second applicant plunged a massive knife into his chest.

6. Neither applicant went into the witness-box. But there was defence evidence. And, of course, counsel for each of them cross-examined the eye-witness to the effect that his evidence against them was untrue and had been fabricated to "frame" them out of revenge. The eye-witness denied it. But the judge rightly put that possibility fairly and squarely to the jury for them to consider. And he directed them, with the appropriate warnings, to consider the possibility of mistaken identification.

7. The perfected grounds of appeal filed on the applicants behalf contain certain criticism of the judge's directions to the jury on the mental element of murder and on the doctrine of joint enterprise.

8. But Mr Griffiths who leads for both applicants accepted in opening their applications that the summing-up contains no error of law.

9. In the result, only one ground of appeal was pursued, namely that the convictions are unsafe and unsatisfactory.

10. There is, the argument runs, a lurking doubt as to whether there has been a miscarriage of justice. And four points have been developed in support of that argument.

11. They are, in outline, as follows:-

(1) The vital evidence against the applicants was of a single witness.

(2) There was no other evidence, circumstantial or otherwise, implicating either of them.

(3) A witness (who gave evidence on commission in Sweden) was present at the time of the killing, knew the second applicant very well but did not place him at the scene.

(4) A witness (who came here on holiday from Britain) said that the eye-witness had told him that his allegations upon which the prosecution's case came to be based had been fabricated.

12. Each of those points and the argument as a whole have been developed with great skill and balance by Mr Griffiths. He says that while each of those points had been put by the judge to the jury for their consideration and that while the verdict of a jury deserves great respect, we are duty-bound to examine cases coming before us with the utmost care to see for ourselves whether the result at which the jury arrived is one about which there is a lurking doubt. Mr Griffiths is right in identifying that as a duty of ours. And we have given this case the extremely careful consideration which he rightly submits that it requires.

13. We have read and re-read the summing-up. As a whole and in its individual parts, it was a fair, accurate and helpful summing-up. And we have no doubt about the verdicts of the jury which causes us to interfere.

14. In those circumstances, with an expression of our indebtedness to Mr Griffiths and his learned junior for the care with which they have prepared and presented their case, we refuse leave to appeal.

Representation:

Mr D G Saw & Mr Wesley Wong (of the Attorney General's Chambers) for the prosecution

Mr John Griffiths, QC & Mr George Chu (inst'd by M/s Anthony Kwan & Co.) for the applicants