The Queen v. Pham Van Hai and Another

CACC000127/1990

BETWEEN

Coram: Hon. Sir Derek Cons, VP, Kempster & Clough, JJA

Date of hearing: 2 January 1991

Date of delivery of judgment: 2 January 1991

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JUDGMENT

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Sir Derek Cons, VP, delivered the judgment of the Court:

1. The Applicants are two of that class of person commonly referred to nowadays as Vietnamese Boat People. They were convicted by Judge daily in the District Court of taking part in a riot on Tai A Chau, I.e. one of the Sokos group, on the 27th August 1989.

2. The hearing before the judge was lengthy and complicated, concerning as it did then six other defendants. The judge heard some 23 witnesses over an effective period of 18 days, together with submissions for and against no case to answer and final submissions by counsel. There is no appeal against his eventual conclusion that a riot did take place on that day as alleged. The sole question for our consideration is whether the two Applicants, who for convenience we will call the 1st and 2nd Defendants, were correctly found to have taken part in that riot.

3. The evidence against the 1st Defendant was that he and some others jumped a queue of other boat people who had been patiently waiting to collect their ration of water. Upon being admonished by police officers then present the others had returned to their proper place in the queue. The 1st Defendant however refused to do so. He was therefore taken to the command post on the jetty and warned by the sergeant in charge.

4. Oh his return, instead of taking up his proper place in the water queue, he stood between that and a parallel queue waiting for food and spoke - and here we quote from judge's findings of fact:

"...Vietnamese in a furious manner. This resulted in a number of Vietnamese Boat People in the food queue to stand up and become very agitated. They refused to sit down again, and began to struggle with police officers."

5. A passing constable, PC 3422, went to assist the two officers who were trying to control the queue. He was struck by the 1st Defendant. Eventually the officers managed to take the 1st Defendant pack to the command post where, with the help of yet further officers, they finally handcuffed and subdued him. In the course of that action the 1st Defendant, not surprisingly, received some injuries.

6. Although the Perfected Grounds of Appeal raise the question of identification with regard to both the 1st and the 2nd Defendants, Mr. McGuinniety, who appears for them today as he did below, concedes that it is not an issue with regard to the 1st Defendant. His defence was, in effect, that the police officers fabricated their evidence with regard to the matters just set out. His own evidence, which the judge rejected, was that following the disturbance in the food queue, during which he squatted quietly in the water queue, the police took him out and to the command post, where he was by them assaulted. What is said now on his behalf comes down to the suggestion that "the judge failed to reasonably and properly assess the evidence in his favour". All that the judge did say in this respect, in his reserved judgment delivered two days after the closing submissions, was:

"The 1st Defendant gave evidence and called his brother as a witness. The defence is one of simple denial saying that both were in the water queue, whereas the riot erupted in the food queue. The 1st Defendant makes no attempt to explain his injuries. I do not accept their evidence."

Admittedly that disposes of the evidence shortly, but it has to be accepted, as this Court has on other occasions, that although a district judge is required to place on record the reasons for his decision, there are occasions, due perhaps to the absence of independent criteria or inherent impossibilities in the evidence itself, when the judge can do no more than the judge did in the present instance. We find no fault in this respect.

7. It is suggested that by the use of the words "the 1st Defendant makes no attempt to explain his injuries" in the face of ample evidence as to now he received them, the judge was tending towards imposing some positive burden upon the 1st Defendant. With respect we do not agree. We read those words as doing no more than to point out that the 1st Defendant had failed to explain the natural query of why, if he went quietly to the command post as he suggested, the police should so suddenly and so brutally assault him. The application with regard to the 1st Defendant is refused.

8. The evidence against the 2nd Defendant was that in the initial disturbance in the queue he threw, with his left hand, a hard hat or helmet in the face of PC 17, and then struck the constable with his right hand. Our attention has been drawn to differing descriptions of the circumstances of the incident given by various police witnesses, in particular with regard to what happened immediately after the incident. However we are not satisfied the discrepancies or inconsistencies are such as to cast doubt upon the judge's finding that someone at that time assaulted the constable.

9. That it was the 2nd Defendant who did so was found by the judge upon the identification of him by PC 17 and another constable, PC 3422, who saw the assault when he was dealing himself with the 1st Defendant, at a formal identification parade held on the 4th September. In addition the 2nd Defendant had been recognised upon a chance encounter on the 31st August by a PC 21765, who had also witnessed the assauit.

10. It is clear from the evidence of these officers, as well as from the evidence generally, that the circumstances surrounding the assault were such that had the judge been sitting with a jury he would have been obliged to draw the attention of the jury to the dangers involved in such identifications, in accordance with the guidelines laid down in the R. v. Turnbull [1977] QB 224. It was essential, of course, that the judge direct himself in like manner. Whether he did so is not apparent from his judgment, which merely records:

"There is ample satisfactory evidence of identification to establish beyond the reasonable doubt the parts played by both the 1st and the 2nd Defendants."

11. At this stage we should draw attention to the observations made by my Lord Kempster, JA, giving the judgment of this Court in R. v. CHEUNG Tak-chi, Criminal Appeal 43 of 1989, unreported, 6th April 1990, where after referring to matters peculiar to the identification in that case he said:

"         Assuming that the judge took all these matters into account we have to consider to what extent he was called upon to reveal his thought processes in the Reasons for Verdict. Here we bear in mind the terms of s 80 of the District Court Ordinance (Cap 336). It was not incumbent upon him to outline all the pros and cons considered before making his findings as to veracity. No more was he required to give himself the explicit directions, appropriate had he been summing-up to a jury, explained in R v Turnbull [1977] QB 224 and R v Reid [1989] 3 WLR 771. However, it was in our view necessary for him to indicate that he had in mind the risks inherent in relying exclusively upon evidence of identification and this he failed to do.

While we accept that knowledge of the burden and standard of proof required in a criminal case can be assumed when one is considering the Reasons of a professionally qualified judge the dangers inherent, for example, in identification evidence do not fall into the same category."

Similar observations had been made by my Lord Power, JA, likewise giving the judgment of this Court in R. v. CHEUNG Ping-kwong, Criminal Appeal 149 of 1989, unreported, 5th January 1989:

"         We have here, as I have already said, a case which was dealt with by a District Court Judge. We are satisfied that a District Judge is not necessarily called upon to be seen to give himself an explicit warning in the terms of Turnbull. He should, however, show that he has been mindful of the considerations to which Turnbull makes reference."

It was noted in the case of R. v. CHEUNG Tax-chi that counsel had not brought the dangers inherent in the situation to the notice of the judge. In the present instance that was done to some extent in the closing submissions. But we are not satisfied that this absolves a district judge from the duty clearly imposed upon him by these two authorities.

12. For these reasons we cannot be satisfied that the conviction of the 2nd Defendant was safe and satisfactory and therefore we allow his application, treat the hearing as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.

Representation:

Miss Evena Chan for Crown/Respondentt

Mr. Edward McGuinniety (D.L.A.) for Applicants