Tran Van Kien and Others v. The Queen
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CACC000924/1982 [Identification. The spirit of Turnbull should be applied in cases involving identification, not any particular form of words.]
BETWEEN:
Coram: Roberts, C.J., Yang. and Barker, JJ,.A. Date: 23rd March, 1983. ---------------- JUDGMENT ---------------- Roberts, C.J.: Preliminary 1. Five defendants were charged on two counts, the first of the attempted murder of LI Huu Diep ("Li") on the 1st November, 1981 at Hut No.6 Argyle Street Refugee Camp No.4, Kowloon; the second of wounding Li with intent to do him grievous bodily harm, on the same occasion. 2. The first defendant ("D.1") was acquitted. The fourth defendant ("D.4") was convicted but has not sought leave to appeal. The second ("D.2"), third ("D.3") and fifth ("D.5") defendants were each convicted of the lesser charge of wounding with intent and sentenced to five years' imprisonment. 3. D.2 sought leave to appeal against his conviction only. This was refused by a single judge but renewed before us. 4. D.3 and D.5 sought leave to appeal against both conviction and sentence. Leave was refused by a single judge. Both renewed their applications in relation to conviction and sentence but, at the outset of the hearing before us, abandoned their applications for leave to appeal against sentence. Facts 5. About mid-day on the 1st November, 1981, the victim Li, a Vietnamese living at that time in the Kai Tak Refugee Camp, went to the Argyle Street Refugee Camp No.4 to visit the brother of Miss LE Thi Lan ("Miss Le"), who lived in Hut No.6. He was escorted there by P.C. CHAN Yun-yu ("P.C. Chan"), who had authority to obtain entry for Li into the Argyle Street Camp. Inside Hut No.6, Li had a conversation with Miss Le. 6. While this conversation was in progress, a Vietnamese man, who was later identified by Li as D.2 entered the hut and, according to Li, threatened him that if he stayed in the hut he would be stabbed. After delivering this warning, D.2 left; but soon afterwards four persons, identified by Li as D.2, D.3 D.4 and D.5 entered hut No.6 armed with choppers or knives. 7. Li described how he was attacked by the four defendants, whom he identified, as a result of which he received cut wounds, which caused serious injuries his face, head, neck, wrist, left forearm, thigh and leg. At the end of the attack, he fell to the ground inside the hut, losing consciousness and waking up later in hospital. 8. P.C. Chan, although was present in the but throughout the attack, was unable to identify any of the attackers, though he confirms that an attack, of the nature described by Li, was made upon him. 9. Miss Le, who was sitting on her bed in Hut No.6, two bunks away from the bed on which Li was sitting at the outset of the attack, pulled the curtain across the front of her bed when the men broke into the hut, but watched what went on through the curtain. 10. Miss Le identified D.5 at an identification parade on the 30th November, though she also identified at the same time an actor who was not present in the attack. On 12th December, she identified D.4, but failed to identify D.3. She identified D.1 from photographs on 2nd November as being "very like" one of the attackers, which she explained as meaning she was fifty percent certain that he was. She said that D.2 was not present at the attack. 11. Li, on the other hand, identified D.2, D.3, D.4 and D.5 without hesitation, at three identification parades on 10th, 11th and 30th November. In evidence, he insisted that he had no doubt whatever that his identification of his attackers had been accurate. 12. The Crown's case thus rests primarily upon the evidence of identification given by Li, that of Miss Le being of limited value, since she failed to identify D.2 at all, identified D.3 only in the dock but identified D.5 at a parade held about a month after the event. Defence 13. The defence put forward by these three defendants was that of an alibi. D.2 gave evidence that he heard people talk about beating Li and went to Hut No.6 to warn him. After doing so, he went to the hut of a friend and fell asleep. While he was in his friend's but he heard the noise of a fight but did not go to investigate it and took no part in it. 14. D.3 testified that he was in Argyle Street North Camp No.3 at the time of the attack, having lunch with NGUYEN Thi Nga, who supported him by giving evidence that he had been with her from 12 noon until he was arrested by the police that afternoon. 15. D.5 asserted that he was in his hut at the North Kai Tak Transit Camp during the whole of the morning in question. 16. All denied having been present in Hut No.6 at the time of the attack or of having anything whatever to do with it. Summing-up and Identification 17. The main ground of appeal was that the Judge had failed to observe the guidelines set out in the case of R. v. Turnbull(1). 18. This requires a judge, when a case depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, to take certain precautions in his summing-up -
19. There is a real danger, notwithstanding the frequent admonitions of the English Court of Appeal and of this court, that counsel and judges will seek to apply the guidelines of Turnbull(l) as if they were statutory requirements of an inflexible nature. 20. What, in our view, a judge is required to do, in the spirit of that case, is to make it clear beyond doubt to the jury that the utmost care must be exercised when considering the accuracy of an identification of an accused person. And the guidelines set out in Turnbull(l) are ways which are recommended to judges as the best method of ensuring that a proper warning is delivered to the jury. 21. However, an Appellate Court should not interfere with a conviction based wholly or partly on identification, because the judge has failed to use a particular form of words. 22. What this court looks for is a clear statement by the judge of the dangers of identification evidence, an examination. by the judge of the circumstances of the identification and a reference by him to the main conflicts and discrepancies, if any, in the evidence of identifying witnesses. Approach of trial judge 23. Counsel for the defendants argued forcibly that the conviction should not stand because of the failure of the judge to explain to the jury that an honest witness could be mistaken, as Turnbull (l) requires. It is not in dispute that he never used such words nor any words which could be said to be equivalent thereto. 24. Since the judge failed to follow the Turnbull (l) guidelines in one significant respect, we have to decide whether the conviction is unsafe as a result of this omission or whether this is a proper case for the application of the proviso. References to identification 25. The summing-up is peppered with words of caution:-
26. Apart from these general warnings, the Judge delivers a number of cautions to the jury in relation to the two main prosecution witnesses -
Conflict of evidence 27. The summing-up was a very long one, containing a detailed examination by the judge, for the benefit of the jury, of the principal matters which are generally of importance in questions of identification. 28. He dissects with great care the evidence of Li as to the extent to which Li was able to observe his attackers. He refers fully to the question of light, drawing the attention of the jury to the conflict on this matter between Li and Miss Le on the one hand and P.C. Chan on the other. He considers whether or not the victim had ever seen any of the defendants before. He comments in detail on the manner in which the identification parades were held. And much of his summing-up is devoted also to a careful scrutiny of the evidence given by the victim, Miss Le and P.C. Chan as to what happened before, during and after the attack. 29. No judge is, of course, obliged to put every small inconsistency and conflict of evidence between witnesses before the jury. In this instance, the judge took great pains to remind the jury of virtually every conflict of evidence which had occurred. Summary 30. If any criticism can be levelled against this summing-up as a whole, it is that it was somewhat too long and somewhat too favourable to the defence. 31. In most respects, the judge fully satisfied the spirit of Turnbull (1). He warned the jury in the clearest terms of the great care which must be exercised in matters of identification. He drew their attention to the circumstances in which the main identifications took place. He reminded them of specific weaknesses which appeared in that evidence. 32. But he omitted to instruct them as to the possibility that mistaken witnesses can be convincing. We have no doubt that, if he had done so, the jury would have come to the same conclusion, since they had already been alerted, by his many warnings of the dangers of identification evidence and must, in spite of them have determined that Li's evidence was reliable. 33. We are satisfied that there has been no miscarriage of justice and that the proviso to section 83(1) of the Criminal Appeal Ordinance should be applied. 34. The applications of all three defendants for leave to appeal against conviction are refused. (1) [1976] 3 A.E.R. 549. Representation: M. Bharwaney (D.L.A.) for all appellants G.W. Alderdice, Sr. Asst. Crown Prosecutor for Respondent |