The Queen v. Le Ngog My

CACC000496/1987

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Coram: Fuad & Clough, JJ.A. & O'Connor, J.

Date of hearing: 3 February 1988

Date of Judgment: 3 February 1988

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J U D G M E N T

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Clough, J.A. (delivering the Judgment of the Court):

1. The applicant applies for leave to appeal against his conviction on the 29th September 1987 in His Honour Judge Saied in the District Court on a charge of robbery.

2. The offence was alleged to have been committed on the 20th July 1987 in a hut in the Kai Tak Refugee Camp for Vietnamese refugees. The complainant (Whom I will refer to as "PW1") Was a Vietnamese inmate of the camp. She is a married woman. Her husband and children also live in tie camp with her.

3. The case for the Crown was that on the night of the 20th July 1987 PW1 was aloha with her baby girl in the family's room in a hut in the camp, with the light on, when the applicant and a confederate burst in. PW1's evidence was that the applicant was armed with a beef knife. She knew him by the nickname of "Mei Mau", having known him for 3 years and previously occupied a hut next to his hut in the camp. Her evidence was that there was a single fluorescent light on in her room at the time , that she recognised the applicant at once and that he and his confederate had remained there for about 15 minutes.

4. PW1 testifiers that on entering her room the applicant demanded money and before she could say anything he started ransacking the premises while his confederate watched her.'He managed to find a total of .$7,750 and ignored her pleas to return the money when she told him it was intended to be used to buy necessities when she was eventually re-settled. Instead he threatened her, saying that if he found any more money or she had any more he would take a few thousand more. After the two men left her premises PW1 reported the incident at once to the police in the camp having chased after them until they disappeared.

5. PW1’s husband Lay Cooc Va (whom I will refer to as "PW2") was called for the Crown. He was a cooked food hanker in the camp. He said he returned to his room at about 11 p.m. to be told of the robbery. He also said that he had known the applicant for about 3 years and that they had once been neighbours.

6. The applicant’s defence which was supported by his own evidence was that he was the victim of a false allegation resulting from a dispute a few days before between him and PW2 regarding a long standing $2,000 gambling debt which was due from the applicant to PW2. It was evidently the balance of money owed.

7. The judge rightly regarded the real issue in the trial as one of credibility as between the evidence of pw1 and the applicant. He had no hesitation is accepting 'the evidence of pw1 as truthful and expressed himself to be satisfied beyond any doubt that the applicant had committed the offence charged.'

8. The applicant was represented by a solicitor at the trial. He  pressed PW1 in cross-examination about a statement made by her to the police a few hours after the incident which included the assertion that at the time of the robbery the applicant had stated that PW2 still owed him $5,000. Under cross-examination PWl denied that she had said this to the police.  The applicant's solicitor subsequently said he did not want to "put the statement in"because he relied on his  cross-examination. Counsel for the Crown then asked the Judge to record that there was no certified English translation of the statement in question. There was in the circumstances no evidence of inconsistency on the part of PW1.

9. It was common ground, although PW2 had initially denied it ,that the applicant owed money to PW2 and that a few days before the offence charged PW2  and the applicant had had a heated argument in a restaurat about payment of about $2,000 being the balance of money owing to pw2 by the applicant. Today the applicant has relied on this matter as a reason for PW1 fabricating a case against him. However the judge was satisfied beyond doubt that PW1 had no knowledge of this patter, having heard it put to her in cross-examination. He therefore dismissed it as providing a motive for PW1 to fabricate bar allegations against the applicant.

10. The judge adverted also in his reasons for verdict to inconsistencies in the evidence of pw1 regarding the time of the robbery and connected incidents but he did not find them of sufficient magnitude to throw suspicion on her evidence as a whole. He accented that it might be sail to be extremely stupid conduct on the part of the applicant to rob PW1, who knew him well, in her own home without Putting on a hood or mask, but this did not deter him from believing PWl's evidence.

11. He considered that the possibility of mistaken identity could he ruled out completely in the circumstances and be attached weight to the fact that the applicant, whose earningsamounted to $80.00. a day, had a little over $5,300 in cash on him when he was arrested on the 26th July 1987, only 6 days after the incident in question.

12. The applicant, who is in person today, alleges that he was wrongly accused and he has raised grounds, in his notice of appeal, which he elaborated today in support of his application.

13. The first ground is that there were inconsistencies in the times mentioned by PW1. Having examined the record carefully we accept, as the Judge did, that there were such inconsistencies. Thus his solicitor relied on the fact that she first said the robbery occurred before 10 p.m., then changed it to 10:25 p.m..  Also she said the robbery incident lasted 15 minutes, but she also said that she reported the incident at 10:30 p m..  In our view, as the judge found, this is not material which is sufficiently significant, in terms of inconsistency, to provide a basis for not accepting her evidence beyond reasonable doubt.

14. The second ground relied upon by the applicant that the money, some $5,340 found on him when he was arrested on the 26th July last year and exhibited at the trial, was obtained by picking pockets and had nothing to do with this case. He adds today that he was convicted in respect of this. No mention of the money being the proceeds of another crime was made in the applicant's evidence at the trial at which be was represented. The trial judge cannot be faulted for failing to, consider evidence which was never before him and which the applicant could have given, had be chosen to do so, at the trial.

15. The third ground raised by the applicant is that the witness's (PW1's) statement to the police was inconsistent with her evidence at the trial. The only possible inconsistency was that arising from her first statement to the police Purporting to record that she told the police that the applicant told her at the time of the robbery that PW2 owed him $5,000, whereas she denied under cross-examination that she said this to the Police. I have referred to this matter above. At the roost, it seems to us that the possible inconsistency, albeit questionable having retard to the lack of certification, related to a patter which the Judge was entitled to treat as insufficient material to prevent him from accepting her evidence as a whole. The inconsistency was clearly there subject to the certification of translation Point. The judge bore it in mind and in our view it was not sufficient to prevent him from accenting her evidence as sufficiently credible to establish the crown case beyond reasonable doubt.

16. The fourth ground is that PW1 alleged at the trial that she had known the applicant for three years, but she could not recognise him with certainty in close proximity. He elaborated that ground today by saying that his solicitor in court asked har to identify him and she then used Vietnamese cords meaning "He is similar". That does not seem to be reflected in the record. In any event, the applicant himself said in evidence in chief that he had known PW1 and PW2 when they were living in Hut 22 in Kai Tak camp. The judge accepted pw1's evidence about the lighting in the room at the time of the incident. Moreover PW1 named the applicant by his nickname when she reported the incident which she said lasted 15 minutes. In our view, there is no substance in the fourth ground.

17. Giving the best attention we can to the judge's reasons for judgment on behalf of an unrepresented applicant we are unable to see any merit in this application which is dismissed.

Representation:

Applicant in person.

I.G. Cross (Crown prosecutor) for Respondent.