The Queen v. Pham Van Tien

CACC000445/1988

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

Dates of Hearing: 13 & 14 June 1989

Date of Judgment: 30 June 1989

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J U D G M E N T

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Silke, V.P. :

1. Pham Van Tien - "the Applicant" - was convicted after trial before O'Connor, J. and a jury, and by the unanimous verdicts of that jury, of the murder of Hoang Van Hien - "the deceased" - and of wounding with intent Hoang Chi Bieu (PW6) the main prosecution witness. He had been tried jointly on the count of murder with Tran Van The. Tran was found not guilty.

2. The Applicant now seeks leave to appeal against those convictions.

3. In the course of his summing up this very experienced judge expressed, forcefully, his reservations on the evidence given by that main prosecution witness Hoang Chi Bieu (PW6). He made it clear to them that:

"Unless you are prepared to rely on HOANG Chi-bieu's evidence, you could not convict on any charge any accused - unless you are prepared to rely on his evidence."

4. He then went on, in relation to the cross-examination of Hoang arising from differences as between statements he gave to the police and his evidence in the witness box:

"You may find that his reliability as a witness is affected when you know what he told the police. I suggest to you that this witness needs to be approached with very much caution."

5. And, speaking of the injuries undoubtedly received by the Applicant:

"The version of this witness HOANG Chi-bieu in no way accounts for the 1st defendant having had those injuries."

6. Having drawn a number of other matters to the attention of the jury O'Connor, J. concluded his directions on the witness Hoang by saying:

"I suggest to you the version given by the witness is open to grave doubt or at least you may well consider that he has been less than fully frank and you may find you have not sufficient confidence in his evidence to rely on."

7. Mr. McNamara has urged upon us that this trial was the essential type of jury trial and that it would not have been proper for the judge to withdraw the issues from the jury. If, therefore, the jury having been properly directed - as it is conceded they were, apart from the matter of manslaughter being left to them which, for my part, on the evidence it was not open to be so left - then there can be no grounds for finding their verdicts either unsafe or unsatisfactory and that no lurking doubt can arise.

8. We accept that a jury is, and must remain, the sole judge of fact. They are, if they think it right within the confines of their oath, entitled to disregard any comments a trial judge may make upon the evidence. But, where a trial judge of the experience of O'Connor, J. expresses the views that he saw fit to do here, it is, in our judgment, necessary for this Court to consider with special care the evidence led by the Crown and which resulted in a conviction of murder.

9. Taking that course in respect of the evidence which concerns the start of the violence which took place. Hoang said that, having asked the Applicant to forget about a card game dispute, he took the deceased some little distance away from Hut 101 to the foodstall at Hut 73, under an awning attached to the side of that hut, which was owned by Lai A Chu (PW8). There they had tea and, while they were taking it, Hoang said he saw a group of people rushing at them from the direction of Hut 91. When the group reached the area of the kindergarden playground next door to and on the east side of Hut 73 Hoang said he recognised the Applicant, Tran and one Nguyen Van Dung as part of it. There were eight to ten others in the group and all of them were carrying water pipes or knives. The Applicant had a long knife. This was about 11:00 p.m. on 16th February 1988 but the scene was lit.

10. He and the deceased then ran in different directions: Hoang ran - as he indicated by drawing a red line on the layout plan exhibit P1 - through Hut 73, down the side of the Administration Block going west and then south to the end of Hut 102. The deceased ran into what the witness described as a cul de sac at the south eastern end of Hut 73 where the wire mesh fence surrounding the kindergarden playground was situated. He did not see the deceased again until later when, the incident being over, he was in the Administration Block when the deceased was brought in by others.

11. During this run he was being chased by some of the group. He stopped near the southern end of Hut 102 where he fortuitously found a melon knife which had been placed on a nearby cooking table. He picked it up for protection and he then retraced his steps, not returning to Hat 73 itself hut walking across the open space at its southwest corner. He noticed some people near Huts 71 and 72, north of where he was. That group included the Applicant and Nguyen Van Tien. The group still held knives and water pipes. He was then "rushed at" by this group and was chopped by, amongst others, the Applicant who was then uninjured. He himself used his melon knife to chop back but did not know if he struck anyone. He fainted, recovered and ran to the Administration Block. He did not know where the attackers went and during this whole incident he did not see the deceased. It was about 4-5 minutes after he reached the Administration Block that he next saw the deceased. His body had been found near Huts 71 and 72.

12. All this evidence paints a picture of Hoang and the deceased, unarmed, quietly taking tea when they were "rushed at" by an armed group of which the Applicant was one and which went in hot persuit of both himself and the deceased. In the course of this, as well as he himself being chopped, the deceased received the injuries from which he died.

13. The other witnesses at trial were not overly anxious to go into the details of that which happened that night and were clearly not very helpful: this with the possible exception of a Madam Nguyen (DW2) who Mr. McNamara cross-examined with his usual tenacity and at whom he levelled a deal of criticism in his closing address.

14. One of those prosecution witness was Mr. Lai (PW8) the stall owner and who runs that stall by himself. He also lives in the camp in Hut 73.

15. He said that there was one table at his stall because space was very limited. At about 11:00 p.m. on 16th February there were a number of customers at his stall having tea and some of them, on tables which did not belong to him, were nearby playing mahjong. He saw a group of 4 or 5 persons armed with water pipes and knives rushing at his stall from the direction of Hut 91, a hut which he could see without obstruction. He recognised none of that group which came to within 7 to 8 feet of his stall. The lighting was not good. They rushed down the side of Hut 73 and then went away again in the direction of the Administration Block. He heard one of them shout "It is him". The 10 odd customers at his stall then dispersed walking in different directions - this after the armed group had passed.

16. No one was attacked near his stall nor, after the group had left, did he see any indication that a fight had taken place.

17. He later heard that a man had been killed in the camp. While not knowing his proper name he realised he knew the appearance of that man. He stated that he was clear that the man who was killed did not have tea at his stall that night.

18. He knew Hoang (PW6) and stated that he was not at the tea stall either. In re-examination he repeated that while he did not know who were the customers at his stall he did know who was not there: that is the deceased and Hoang.

19. Now this evidence, if it were right and if it were to be accepted by the jury, was in direct conflict with that of Hoang on how the incident developed and undermined the whole basis of his evidence.

20. The significance of Lai's evidence was not, with great respect to the trial judge, drawn with sufficient clarity to the attention of the jury. Of him the judge said:

"LAI A-chu was the 8th witness, the owner of the tea stall. I do not think I need say much about him. He said it was too dark for him to recognize any of the people. He said they rushed at his stall and passed it and disappeared and that he saw or heard no sign of fighting. He said that neither Hoang Chi-bieu nor the deceased was at his stall that evening. You might consider this witness was not as helpful as he could have been if he had wanted to be."

21. That Lai was not the best of witnesses we accept. But what he did say was of considerable importance. The judge, in making manifestly clear the doubts he entertained as to the quality and the credibility of the evidence given by Hoang may well have thought - and he was entitled to hold that view - that he had done enough to make it plain to the jury that it would be unsafe to base a finding of guilt on Hoang's evidence alone. And there was, of course, little else.

22. Lai may not have been "as helpful as he could have been" but had what he did say been given the emphasis we think it required in the context of the picture painted by Hoang then, taking that together with all the other deficiencies in Hoang's testimony, the jury might have been affected in their deliberations - Hoang's credibility being vital - sufficiently for them to have come to a conclusion different from that to which they did.

23. Therefore, in the light of the whole of the circumstances of this case, we find ourselves left with an unease of so great a sufficiency as to find the convictions - for Mr. McNamara very properly conceded they stood or fell together - to be unsafe and unsatisfactory.

24. We would grant leave, treat the hearing as the hearing of the appeal, allow the appeal, quash the convictions and set aside the sentences.

Representation:

A.W. Sedgwick, Esq., Q.C. & Mrs. Jackson Lipkin (William Au & Co.) for Applicant

J.P. McNamara, Esq. for Crown/Respondent