HKSAR v. Dinh Van Duong

CACC000632/1996

IN THE COURT OF APPEAL

1996, No. 632
(Criminal)

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Coram: Hon Power, V.-P., Gall and Yam, JJ. in Court

Date of hearing: 17 June 1997

Date of handing down judgment: 2 September 1997

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J U D G M E N T

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Gall, J. :

1. The applicant was convicted on 17^th October 1996 after trial in the High Court of one count of attempted murder and was sentenced by Wong J. to 20 years' imprisonment. He seeks leave to appeal against both conviction and sentence. We dismissed the appeals and undertook to give our reasons which we now do.

2. The facts were that in the evening of 8^th October 1994, Mr Ta Van Da, a Vietnamese boat person, was visiting two friends at the Pillow Point Refugee Centre where he had previously stayed. He said that he spent some 10 to 15 minutes with his friends at the camp and he then walked to the main gate in order to catch a bus home. When he reached the vicinity of Block 22 and 23, he said a man put a hand on his shoulder and dragged him by his shirt. He was told to follow that man and he did. He said this man was named Ah Yung and that he had seen him before. He followed Ah Yung for some distance until he saw two men standing between two blocks. These men approached him, he identified them as the applicant, who was the 1^st accused at trial, and another. He said the applicant held a beef-knife and the other man a shorter knife. He said he was stabbed in the chest by the applicant and that he fell to the ground. Whilst he was on the ground, the other man stabbed him repeatedly. He eventually lost consciousness and was found and taken to hospital.

3. The police, when they arrived on the scene, conducted a search and in his summing up, the trial judge said this :

"... from searches conducted by the police, a wallet and an identity card belonging to the 1^st accused were found inside a rubbish bin outside Block number 15. Now, on the plan you see a trail of blood between Blocks 15 and 31. Now, you have been told that the sample of the blood did not match that of Mr TA or the accused. This may indicate that there was a third person and he was injured and bleeding."

4. The first ground of appeal was that the learned judge failed to adequately advise the jury on the case for the Defence, in particular, to remind them that three defence witnesses had positively said the applicant was not one of the attackers.

5. The trial judge set out the alibis which were raised in respect of each of the accused and in respect of the evidence of the three defence witnesses who said that the applicant was not one of the attackers, addressed the jury as follows :

"In addition to the alibis, both accused called witnesses to say that Mr TA VAN DA was stabbed by one man only and neither the 1^st accused nor the 2^nd accused was that person."

It is difficult to see that the judge could have put it in any more direct terms and this ground of appeal must fail.

6. The second ground of appeal was that the judge when summing-up to the jury failed to present a full or balanced picture to the jury when he directly linked the finding of the applicant's wallet and the identity card with the blood stained trail leading from the scene of the attack.

7. I have quoted the passage of the trial judge in the summing-up in respect of the search by the police and the finding of the wallet. There was no dispute that the wallet was that of the applicant and that it was found inside a rubbish bin as described. There is no doubt that there was a trail of blood and that the blood did not match either that of Mr Ta or the accused. The reference to there being a third person and that he was injured and bleeding is referrable to the trail of blood and not to the finding of the wallet and no link was established by the trial judge between the finding of the wallet and the blood stains. This ground of appeal must fail.

8. The final specific ground of appeal was the learned judge failed to give adequate directions to the jury in relation to identification evidence as indicated in the Turnbull guidelines and failed to remind the jury of the defence case put to the victim as to why he had come to pick out the applicant as one of his attackers.

9. In respect of the identification by the victim of the applicant, the judge had this to say :

"Mr TA VAN DA also said that he could identify his assailants because he had seen them before. There is no dispute about this. Not only Mr TA said that he had seen the two accused before, but also the two accused told you that they had seen Mr TA before. Mr TA told you that he had seen the 1^st accused a few times, but in the case of the 2^nd accused only once or twice and he was not sure under what circumstances and where. That was some time ago.

It is the prosecution case that this is not a case of identification of a stranger in a fleeting glimpse. It is a case of recognition of people whom Mr TA had known. This may be so, members of the jury, but I must still remind you that mistakes in recognition even of close friends and relatives are sometimes made. So bear this in mind when you consider the evidence.

Before you can accept the evidence of Mr TA on the vital question of identification, you have to approach his evidence in two parts. First, he was an honest and reliable witness. If you come to the conclusion that he was not honest and reliable, that means that you cannot rely on his evidence at all. Second, even if you find that he was honest and reliable, you must still consider that he was not mistaken in his identification. It is only when both criteria are satisfied, that is TA was both honest and reliable and he was not mistaken, can you then rely on his evidence. If you are not sure, you must acquit."

10. The direction given by the trial judge was appropriate in circumstances where the identification was of persons known to the victim and we are satisfied that the jury were properly directed in respect of this issue.

11. The application for leave to appeal against conviction is dismissed.

12. The applicant also seeks leave to appeal his sentence of 20 years' imprisonment. The single ground of appeal advanced is that in all the circumstances of the case, the sentence is excessive.

13. The applicant was 30 years of age at the time of conviction and is married with one child. He had a criminal record of theft, resisting of arrest and two counts of robbery. The judge was taken through a number of authorities in respect of attempted murder and took each of those authorities into account.

14. Mr Poll before us argues that the reason for the attack was not clear and may have been a result of an argument over gambling. He suggests that an appropriate sentence would be 17 years' imprisonment.

15. We are satisfied that the sentencing judge fully bore in mind the severity of the attack upon Mr Ta and its nature and circumstances. It cannot be said that 20 years is outside the range of sentences appropriate for an offence of attempted murder. The sentence is neither wrong in principle nor manifestly excessive. The application for leave to appeal against sentence is dismissed.

Representation:

Mr I.G. Cross, S.C., D.D.P.P. & Mr Johnny Chan, S.G.C., for Respondent

Mr Michael Poll, inst'd by D.L.A., for Applicant