The Queen v. Dang Chuc Bao La

CACC000814/1983

BETWEEN

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Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 9th December, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The applicant was one of two men charged before the District Court with robbery.  He resided at the Jubilee Transit Centre, Sham Shui Po and occupied a bunk on the 3rd floor of Block F. The case for the Crown was that on the 1st of January, at about 1 a.m. in the morning, seven young Vietnamese men were discussing a New Year party on the dormitory area of the first floor. During their discussion it is said that three men, also residents of the camp, came to where they were together, two of them armed with knives, by the threat of which the third member of the party, who was in fact the 2nd defendant in the case, was enabled to relieve four of the young men of sums of money varying from $50 down to $10. Immediately after this, the three men retreated from the first floor.

2. Evidence was given by seven of the persons who had been involved as victims. Two of them described how after this event they had alerted the police and had taken a police officer to the third floor where the 1st and 2nd defendant were discovered awake and in conversation upon the bunk which they occupied. According to those two witnesses, these men were either drinking beer or wine, but according to the police officer who arrested them, they were hot drinking anything. That officer said that he had it in mind to enquire from other persons in the same dormitory area as to whether these men had left their premises within the previous 30 minutes - the period which had elapsed since the alleged robbery - but he said that there was a language difficulty and furthermore the persons in the dormitory seemed to wish not to be involved.

3. The evidence was simple and straightforward inas much as the event occupied a small space of time and it was described in roughly the same terms by each of the seven witnesses who gave evidence about it.

4. The 2nd defendant was acquitted, the basis of his acquittal is to be found in the testimony of one of the witnesses, the 7th prosecution witness Nguyen Phan, who said that upon being told by the other two men, the men holding knives, to take money from the victims, the second defendant seemed reluctant to do so. He was told a second time to do so and was then told by one of those two men "Come on, or I'll stab you." The Judge found in that sufficient indication that the 2nd defendant may have acted under duress and for that reason he acquitted him, although it is to be noted that the 2nd defendant did not give evidence at all in the case nor were questions asked by his lawyer of the witness concerning that allegation.

5. That is the first of the oddities which has occasioned us some concern in this matter. It must be said at once the Judge's impression of the witnesses was an important factor. But while it would be difficult to say that he was necessarily wrong in the estimate that he made of the witnesses, there are one or two other matters in the case to which we feel we should draw attention. The Judge did not rely upon the evidence of the first three Vietnamese witnesses. These three young men described the event in terms very similar to those employed by the four subsequent witnesses upon whose testimony the Judge did rely. It may be that it was a question of the impression which the witnesses made, although the Judge does not specifically say so, which caused him to discriminate between these two bodies of evidence, or it may be that he was impressed by the fact that those three young men denied having seen any of the three assailants in the camp before, whereas three of the subsequent witnesses upon whom the Judge did rely, said that they had seen the three robbers in the camp frequently, all of them being co-refugees, as it were, though from different areas of Vietnam. One of them gave evidence that he had actually been a friend of the applicant. The applicant confirmed this and said that he had fallen out with the witness apparently as a result of the fact that the applicant had once served a term in prison and had hot been visited in prison by the witness and was annoyed by that fact. Several of the witnesses agreed that there were provincial differences dividing camp residents which resulted in occasional fights and disputes. The prosecution witnesses were all from the same province.

6. The Judge in giving his reasons said that it was quite inconceivable that the defendant was wrongly identified. He said: "the witnesses were all credible and convincing, the possibility that people were trying to settle a grudge with the defendant by deliberately framing him was not remotely justified by the evidence."

7. We must assume that in saying that the witnesses were all credible and convincing, he was referring principally to the three witnesses upon whose testimony he had relied. That still leaves us in the position that we do not know why he found the first three witnesses to be unreliable.

8. One of the witnesses, the 1st witness in the case, had said that all the money taken from the victims had been returned to the victims ten says later.  He was the one who had, as he alleged, lost the most - $50. None of the other witnesses said anything of that kind and all the others from whom money had been taken denied that any of it had been returned. The judge did not refer to this remarkable piece of evidence at all.

9. I refer to these oddities as I have termed them to indicate that we take the view that this is one of those cases in which it is not possible to be certain that behind what was alleged may not have been some question of grudge, or some factor affecting the situation of the refugees as refugees from various provinces of Vietnam, which would have affected the quality of the testimony and may have accounted for the fact that three of the witnesses, who had fully as good an opportunity of daily being aware of the presence of the alleged robbers as had the others, were either unable or unwilling to identify them when they came to give evidence.

10. There is also of course the fact that the police officer who arrested the 1st and 2nd defendants, although he obviously turned his attention to the possibility of checking upon their movements immediately prior to the time of their arrest, was unable to proceed with that idea apparently because - on his testimony - apart from the language difficulty, persons in the dormitory were unwilling to be involved in the affair. That is an unfortunate circumstance. The defence of this defendant was that he had returned to the camp at about 10:00 p.m. and had gone to the dormitory area and had not left his bed space there up to the time when the police officer arrived and he was arrested. There must have been present at the time a number of people who could readily have confirmed or controverted the applicant's story.

11. Although we cannot say that the reasons given by the Judge disclose any outstanding matter which would indicate that he had misunderstood what was before him, we are nevertheless left with a lurking doubt as to the satisfactory nature of this conviction.And for these reasons we grant the application, we allow the appeal and set aside the conviction and the sentence.

Representation:

Applicant in person.

I.M. Duguid for Respondent/Crown.