Ly Cho-dong v. The Queen
Read the full judgment text of CACC 1073/1982 on BabelCite. This Court of Appeal judgment.
1. The applicant, Ly Cho-dong, was tried in the District Court, together with another man, upon a charge of wounding with intent. The other man, Le Van-guy, was acquitted.
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CACC001073/1982
BETWEEN
__________ Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A. Date: 23rd March, 1983. __________ JUDGMENT __________ McMullin, V.-P.: 1. The applicant, Ly Cho-dong, was tried in the District Court, together with another man, upon a charge of wounding with intent. The other man, Le Van-guy, was acquitted. 2. The case for the Crown was borne by three alleged eye-witnesses to the event. These were three Vietnamese refugees who, like the applicant himself, then were residing in North Kai Tak refugee camp. The first was Van Trong-khai, the named victim in the charge. 3. On the 13th April 1982 he and three friends were sitting outside Hut 8 in the camp drinking beer. With him was a man called Ho, a man called Diep and a man called Nguyen. The prosecution story was to the following effect. At about 9:30 p.m., one of their number, Ho, left, and shortly after that, Van Trong-khai, the victim, rose and left with the intention of fetching more beer. He was approached by the 2nd Defendant, the present applicant, and a brief and remarkable interchange took place. According to the victim, the defendant said to him: "You are drinking beer, do you want to live or die?". The victim then returned to his friends and the other man went away. But shortly after that he rose again to go and fetch the beer. He was on his way, and a very short distance from Hut 8, when one of his friends shouted to him to look out. He turned round and perceived a crowd of six or seven people approaching him, armed with knives. He was attacked and received many chop blows. 4. In the course of his evidence-in-chief he asserted positively that the 2nd defendant, the present applicant, was the man who was in the lead and who first chopped him. 5. There is no doubt that he received serious injuries which required his being taken, shortly thereafter, to hospital where he remained for several days and received surgical treatment. There were in all some eight injuries mainly upon his left side, including a laceration on the forehead which cut down to the bone, and another which cut muscles on the left shoulder and scapula. There were other injuries to his thigh and to his right foot. He said that he knew this applicant by face and name only before the incident. He could not advance any reason for this extraordinary attack. The other two witnesses, Diep and Nguyen, gave much the same account of the affair. 6. The applicant gave evidence. His story was that he had, shortly before this, been informed that he had been accepted as an immigrant to Canada. He is overseas Chinese and he hales from North Vietnam. He was in fact due to depart for Canada on the following day, the 14th. On the night in question he was going to see a friend in Block 8, about 9:30 p.m. He was beckoned by one of the four men sitting drinking beer at the entrance to Hut 8, a person whom he knew before, the witness Diep. He approached this man who asked him what he was doing and he said he was going to Canada the following day. A quarrel then arose. The ground for this was, according to the applicant, that Diep had a grudge against him because in December he (the applicant) had reported the robbery of a watch from him by a friend of Diep's. This had been reported to the police but no further action had been taken. He said that because Diep and his friends had obviously been drinking and he thought that they were aggressive, he turned back from Hut 8 and was on his way back to his own Hut which was No. 33, when he saw something very unusual; he saw two men running towards Hut 8, one of them having his face concealed by a white towel. As they passed him, or came close to him, the man without the towel said: "That's not him" indicating this applicant, and they went on towards Hut 8. He himself made his way back home and saw nothing further. He was arrested that night at sometime after midnight. 7. The case for the Crown therefore rested solidly upon the identification of this applicant as one of the persons who undoubtedly did attack and wound the first witness on that night. 8. The identification of the 1st defendant was by the witness Diep alone. The police had been summoned and they arrived at about 11:30 p.m. The 1st defendant was found standing near one of the huts and was pointed out by the witness Diep. Considerably after that, at about 12:50 a.m., according to the police officer (and according to Nguyen between 2:00 a.m. and 3:00 a.m.) this applicant was discovered making his way towards one of the lavatories in the camp. The police officer was at that time accompanied by Diep and Diep was translating for this officer's benefit from Vietnamese into Punti. Diep pointed out the applicant as one of the persons who had taken part and Nguyen was present at the time that this identification took place. 9. In acquitting the 1st defendant, the District Judge thought that the evidence was insufficient. He said:
10. We find ourselves however, at this stage, in considerable doubt as to the soundness of the identification evidence at large. The victim, Van Trong-khai, having commenced by saying that he identified the 2nd defendant as the man who had led the attack, resiled from that almost completely in cross-examination. This weakness in his evidence commences with a question which somewhat curiously was put by counsel for the 1st defendant - and was in this form:
11. The answer to that was "Yes". Counsel pressed on to point out that the person thus indicated by the witness was not the 2nd accused Ly Cho-dong, but in fact the other accused Le Van-guy. Thereafter the victim; in answer to a question by the court, said that the 2nd defendant - the present applicant - was at the time "a bit fatter than he is now and was wearing a beard." 12. We make no point about the use of the word "beard" since the defendant himself had said that while he was in custody he did grow a moustache because he wasn't allowed to shave and there is a confusion in Punti between the word "beard" and "moustache". But this part of the evidence discloses a distinct weakening in the witness's attitude as to his identification of this applicant. He went on further to say: "I cannot recognise him but I do recognise three other persons in this courtroom." That matter was not pursued. And finally he was asked, "As to identification you are not sure?" and he replied: "I agree". 13. Nguyen was the only other witness, apart from Diep, to identify this applicant. There are some residual doubts must which we must entertain in respect of his evidence also. He began his evidence by saying that he could recognise 7 of the 8 people who were the attackers on that night, and he described how he had been with the police officer when the applicant was pointed out, that he also recognised him, and he added : After that I was asked to make further identification but I could not identify anyone". One would think that if he had been able to identify the greater number of the people involved, that information should have led to further investigation and possibly to further arrests, but that seems not to have happened. Four other men from the applicant's hut were arrested shortly after his arrest but this was not done on Nguyen's identification of them and shortly after that they were released. Moreover, the victim's statement that he could recognise three of his assailants in court contrasts oddly with Nguyen's assertion that he could recognise seven of the assailants while clearly not recognising any as among the people in court. If the evidence of the victim and the evidence of Nguyen is not regarded as adding anything substantial to the Crown's case, the identification would then, as in the case of the other applicant, rest solely upon the evidence of Diep, evidence which the judge felt he could not rely on . 14. But apart from the difficulties discernible in the identity evidence, there appears to have been a misconception in the Judge's mind in coming to his conclusion that this applicant was one of the attackers. It had been put to the applicant, when giving evidence, by counsel for the Crown, that the applicant was suggesting that the whole incident had been a frame-up by Diep and his friends, including presumably a bogus attack which nevertheless resulted in severe injuries to one of them. Clearly that would have been an absurd suggestion but it was not the suggestion which was being put forward by the applicant. What he was suggesting was that because an incident had happened in the camp that night, a place where according to several of the witnesses, rows frequently occurred, Diep, who bore a grudge against him, had seized upon the opportunity to frame him and to spoil his chances of getting into Canada. 15. Counsel for the applicant made a strong point of the unlikelihood of this applicant having won passage to Canada, a prize greatly treasured amongst refugees from Vietnam, venturing to create trouble of this kind on the very eve of his departure. The Judge referred to that possibility but he said: "... it is equally possible that it was precisely because he was leaving for Canada the very next day he thought he would not be discovered. And if by the time he was, he would be out of reach of the police." As a mere matter of balancing one likelihood against the other, it seems to this court distinctly more unlikely that the applicant would have made such trouble and thus spoiled his chances of a future life in Canada. On the victim's story there was no occasion at all for the assault upon him by this applicant, whereas upon the applicant's story there was a good reason, which he advanced, for Diep's hostility towards him and therefore for the possibility of his being framed in this way. 16. Putting all these matters together, we are left with a very distinct doubt as to the reliability of the identification evidence, more especially in view of the fact that the Judge himself was left with doubt as to the proper identification of the other defendant. 17. There is, indeed, some ground for supposing that this applicant was the victim of jealous connivance on the part of witnesses who were either lying or else were themselves testifying out of mere suspicion. 18. For these reasons we grant the application and treating the hearing of it as the hearing of the appeal, we quash the conviction and set aside the sentence. Representation: Appellant in person. M.A. McMahon for Respondent/Crown. |