Vu Trong Minh v. R.

CACC000482/1992

IN THE COURT OF APPEAL

1992, No. 482
(Criminal)

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Coram: Hon. Yang, C.J., Macdougall, V.-P. and Kaplan, J.

Date of hearing: 21 January 1994

Date of judgment: 1 February 1994

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The appellant, who was tried jointly with a co-accused before Keith J and a jury on an indictment containing one count of murder of Dinh Van-ghi and one count of unlawfully wounding Dinh Chinh-hai with intent to do him grievous bodily harm, was found guilty and convicted on both counts. His co-accused was acquitted of murder but convicted of wounding with intent. The appellant now appeals against his convictions.

2. The attack upon the two victims occurred at about 6.30 pm on 29 June 1991 at Hei Ling Chau Detention Centre for Vietnamese refugees. The case for the prosecution against the appellant rested principally on the testimony of three officers, a Mr. Foo, a Mr. Fong and a Mr. Chiu, of the Department of Correctional Services, and a Vietnamese girl named Dinh Thi-huong, who was the niece of the deceased victim.

3. Mr. Foo and Mr. Fong were on patrol duty in the main alleyway in the Detention Centre near hut D and between huts H and I. Mr. Foo saw a group of about 20 Vietnamese inmates chatting some 20 feet way in the central alleyway which ran between the two rows of huts that housed the inmates of the Detention Centre.

4. All of a sudden the members of the group began running in different directions. The majority of them fled down the central alleyway, but none ran into the alleyway between huts I and H. His attention was drawn to two men. One of these was the appellant; the other, a man whom Mr. Foo subsequently identified at a hospital, was the deceased.

5. Mr. Foo saw the appellant stab the deceased in the right side of his back between his shoulder and his waist. He immediately shouted out, "What are you doing?", whereupon the appellant turned and looked at Mr. Foo, paused for a moment, then ran down the alleyway between huts I and H.

6. Mr. Foo, who at this time was only 15 feet from the appellant, pursued him. No one else was running in that alleyway. At no time did Mr. Foo lose sight of the appellant except for a brief moment when he rounded a corner. Indeed, Mr. Foo testified that of all the persons whom he had seen running the appellant was the only one whose upper body was bare. During the course of the chase Mr. Foo saw the appellant discard the knife in the alleyway between huts L and K. Very soon thereafter Mr. Foo managed to catch the appellant and, with the assistance of Mr. Chiu, subdued him.

7. Mr. Foo then retrieved the knife, and both he and Mr. Chiu escorted the appellant to a special unit in which trouble-makers were detained pending police investigation.

8. Mr. Chiu testified that he was on patrol in the alleyway between huts L and N when he saw a group of inmates between huts H and I suddenly scatter. Then, a bare chested man who had been in the group began running towards Mr. Chiu. None of the others who had formed part of the group ran in this direction. Mr. Chiu saw him discard a knife as he was fleeing. This prompted Mr. Chiu to pursue him and assist Mr. Foo in subduing him.

9. Mr. Fong, who was with Mr. Foo at the time when the fatal incident occurred, testified that he heard screams and shouting. A group of about 20 inmates that had been present between huts H and I suddenly began to scatter. Mr. Fong saw a Vietnamese male holding a knife. The man began to run, and Mr. Foo chased after him. Mr. Fong joined in the chase, but took another route in order to cut off an alternative avenue of escape. When he arrived between huts K and L he saw that Mr. Foo and Mr. Chiu had apprehended the man whom he had seen holding the knife and were escorting him to the special unit for detention. It is plain that Mr. Fong had not seen whether the appellant had attacked anyone with the knife. At the time when he first saw him holding the knife, Mr. Fong noticed some inmates a few feet away from appellant and running away. They were not close enough for the appellant to make contact with them. However, the appellant's posture was such that Mr. Fong formed the opinion that he had just stabbed someone or was abut to attempt to do so. Mr. Fong did not notice whether anyone was lying on the ground at that time. There was, however, evidence that after he had been stabbed the deceased left the scene.

10. Miss Dinh Thi-huong, whose adoptive parent, Dinh Van-ghi, was the deceased, testified that she was standing in the main alleyway awaiting her turn to play a game of badminton. A group of inmates was present some of whom were sitting and others standing. Then from a distance of about 30 feet she saw Dinh Chinh-hai, the victim named in the wounding count, being stabbed in the upper middle part of his back as he was sitting near the corner of hut G. She recognized the man who stabbed him as the appellant, a man who resided in hut I which Miss Dinh visited from time to time to see her friends. There was then a commotion and some of the inmates in the group began running back to their huts. Miss Dinh then saw the appellant stab the deceased in the right lower part of his back as he was turning. Following this, the appellant's co-accused stabbed Dinh Chinh-hai in the hip region. Miss Dinh then saw camp officers pursuing the appellant and, shortly afterwards, saw him in the custody of two officers. At a subsequent identification parade Miss Dinh immediately identified the appellant as the man who had stabbed the deceased.

11. Dinh Chinh-hai testified that he was squatting in the alleyway in front of hut D when suddenly he was stabbed in the upper part of his back. He attempted to stand, but was stabbed again, this time in the right buttock. At no time did he see who it was that had stabbed him. He then saw the deceased holding his back, as if he also had been stabbed, and being assisted in leaving the scene by other inmates.

12. Evidence from a forensic pathologist was that the deceased had sustained a stab wound in the right loin area and that the track which the weapon followed was directed upwards, forwards and to the left. It was contended on behalf of the appellant that, since Mr. Poon had testified that he had seen the appellant stab the deceased with a downward movement, the fatal wound could not have been inflicted by the appellant. There was, however, no evidence as to the relative positions of the appellant and the deceased at the time that the knife entered the deceased's body.

13. The appellant made a statement under caution to the police in which he said that he had been standing in the alleyway in front of hut I - the central alleyway - and had seen fighting take place outside huts I and D and that he had immediately fled. He denied that he had used a knife to stab anyone. Later, when giving evidence at the trial, he again denied that been involved in the incident but said that he had been walking with a woman named Dong Thi-them along an alleyway behind huts I and J when he heard people shouting that a fight had occurred, and saw people running in different directions. He then turned to run back to where he had earlier left his wife and child. At no stage did he throw away anything, let alone a knife. Having reached the area between huts K and L he was met by his wife who was carrying their child. Suddenly a camp officer seized hold of him while another officer pressed his head down.

14. As for the statement which he subsequently made to the police, he asserted that he had been subjected to a beating by several police officers after which he was taken to another room where he was told to admit that he had been involved in the fight which had resulted in a killing and a wounding. He therefore followed the interpreter's instructions and was guided by him in writing the passage that he was standing in front of hut I and had seen the fight take place.

15. His explanation as to why Miss Dinh had testified against him was that he thought that two men held a grudge against him and that they had incited her to give false evidence that he had stabbed the deceased.

16. The appellant's wife testified that she was walking behind her husband and Dong Thi-them in the alleyway when she heard people shouting that a fight was in progress. She then saw her husband turn and run back towards her. When he reached her, two camp officers rushed forward and seized hold of him. Dong Thi-them confirmed the appellant's testimony that he was walking with her in the alleyway behind hut I when the noise of fighting was heard and that he then ran back along the alleyway in the direction from which they had come.

17. Mr. Callaghan, who appeared for the appellant in this court but not in the court below, advanced what was in effect one ground of appeal. He submitted that the judge had erred in law in failing to direct the jury that, in deciding where the truth lay, they should consider "both the incriminating parts and the excuses or explanations", and that he had misdirected them as to the effect of the exculpatory parts of the statement and as to the way in which they should approach them.

18. The direction which the judge gave to the jury was this:

"If having considered with care the evidence of the 1st defendant as to what he says happened to him at the police station you are nevertheless sure that the record accurately reflects what the 1st defendant genuinely wanted to say, what is the legal effect of that record?

In some parts of that record, the 1st defendant seeks to exonerate himself from responsibility, for example, the statement that the fighting had nothing to do with him.

I have to tell you that answers which he gave which sought in that statement to exonerate himself from responsibility merely constitute evidence that the 1st defendant, when questioned, reacted with an explanation consistent with innocence. Those answers are not evidence of the facts which he told the police. That is a bit of a mouthful. What is means is that what he said to exonerate himself is not evidence that it is true. The primary evidence of the 1st defendant as to what is true and what is false is what he told you in the witness-chair.

However, in other parts of the record, the 1st defendant gave answers which you may think incriminated him in the sense that they are - not that they incriminated him but that they are -

answers which are inconsistent with the version of events which he tells you is the truth, for example, his statement that he was standing outside Hut I when he saw a fight outside Huts I and D.

It is open to you to conclude - it is entirely a matter for you - that when the 1st defendant told the police things which are inconsistent with what he told you, that what he told the police is likely to be true for why else would he have said them?"

19. In essence, Mr. Callaghan's submission was that the judge should have given a direction in accordance with the decision of the House of Lords in R. v. Sharp [1988] 1 WLR 7 which was followed by this court in R. v. Chan Chi-wai [1992] 1 HKLR 1.

20. We do not agree. In R. v. Cheung Hon-Kwong Criminal Appeal 503 of 1989 (unreported) this court said:

"On the footing that D3's statement was a mixed statement (for the reasons he advanced), that it was produced by the Crown at the trial as part of its case and that D3 had given evidence consistent with her 'explanation' in her cautioned statement, Mr. Cheng criticised, as erroneous in law, the following passage in the judge's summing up relating generally to cautioned statements by accused persons:

'As for any explanations or anything else which an accused person has put forward which are not admissions, they are somewhat different. An accused may explain why he did something or he may qualify what he did or seek to put the blame on somebody else or say he did not know or he did not do something. Well, you should appreciate that they are not made against his own interests and they are not tested on oath. So there is less weight to be attached to such an explanation than there is to the admission.

Assuming, but not deciding, against the Crown that D3's statement was a mixed statement and that the Crown cannot be heard to say that it was not relied upon as evidence raising the presumption under section 24, we consider this passage in the summing up was unnecessary because it would only be in point if D3 had elected not to give evidence. In that event the jury would have required assistance in the summing up on the way to assess the admissions and self serving parts of D3's statement. For that purpose the passage cited would have been correct: see Reg. v. Duncan [1981] 73 Cr. App. R.359 per Lord Lane C.J. at p.365 approved in Sharp at pp.11-12 per Lord Havers.

However, both Duncan and Sharp are concerned with mixed statements where the defendant has elected not to give evidence and our understanding of those cases is that they are not intended to apply where the defendant has actually given evidence on oath in his defence. As Mr. Duckett rightly contended the real question in such cases is what weight is to be given to the defendant's evidence.

Mr. Cheng contended that because D3 had given evidence on oath which had been tested the judge should have left it to the jury to decide at the end of the day after hearing her evidence, what weight to give to the exculpatory passage in her statement. This argument really was an expression of D3's second ground of appeal, based on Sharp, to the effect that since D3 had given evidence consistent with her explanation in her statement (which was contended to be part of the Crown's case) the explanation given in her cautioned statement was evidence upon which the jury could rely if they so wished.

In our judgment this argument is not sound. It seeks to introduce a new element into the Sharp line of cases which was not present in those cases at all, namely the evidence of the defendant. If such evidence is present as it was in the present case it seems to us that the case is not within the Sharp line of cases and the self serving part of the statement, which was not made on oath or tested by cross-examination cannot be treated as evidence of its contents. At the most it can be taken into account by the jury when considering D3's evidence, as the judge directed, as evidence of the reaction of D3 to police interrogation within hours of her arrest and to evidence of her consistency of denial: c.f. R. v. Pearce (1979) 69 Cr. App. R. 365 and Reg. v. Tooke (C.A.) (Times Newspaper,.25 October 1980)." Tooke is now reported in (1990) 90 Cr. App. R. 417.

The passage from Duncan to which this Court was referring in Cheung Hon-Kwong reads:

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence," (emphasis added)

In Sharp Lord Havers, with whose speech the remainder of their Lordships agreed, said:

"I cannot improve upon the language of Lord Lane CJ in Duncan and will not attempt to do so. It is in my opinion rightly decided and should be followed."

21. We further observe that in both Duncan and Sharp as well as in R. v. McGregor [1968] 1 QB 371 and R. v. Donaldson (1976) 64 Cr App R 59, from both of which passages were cited with approval in both Duncan and Sharp, the accused did not give evidence. Nor did the accused give evidence in Chan Chi-wai.

22. Since the appellant gave evidence the judge was not obliged to give a Sharp direction. The appeal is therefore dismissed.

23. In conclusion we would add that the only real difference between what the appellant said in his cautioned statement and what he said in evidence at the trial was that in the first he asserted that he was present in the central alleyway situated between the row of huts and actually saw violence erupt, whereas in the latter he testified that he was in an alleyway behind one of the row of huts and did not see, but merely heard, the incident occur. In both accounts he denied having been involved. We are left in no doubt that even if the jury had been given a Sharp direction they would inevitably have come to the same conclusions.

Representation:

Mr. C. Coghlan, S.C.C. for Crown Prosecutor

Mr. P. Callaghan assigned for DLA for Appellant