R. v. NGUYEN Van-hai AND OTHERS

IN THE COURT OF APPEAL

1996, No. 626

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The three applicants in this matter faced one charge of robbery which was particularized as follows - that they, on the 21st day of February, 1996, at Room 8, Block 41, Pillar Point Vietnamese Refugee Centre, robbed Nguyen Van Trinh of cash $9,000 Hong Kong.

2. It was the Crown case that Mr. Nguyen, to whom I shall refer to as the victim, was employed by St. Stephen's Management Company at the Pillar Point Refugee Centre to operate a bakery.

3. Mr. Nguyen gave evidence that at about 9 p.m. on the evening of 21st February 1996, someone knocked on the door saying that he wanted to buy bread. When the victim opened the door he saw the defendants. I shall refer to them hereafter as D1 (the 1st applicant), D2 (the 2nd applicant) and D3 (the 3rd applicant). The victim said that D2 and D3, who had knives in their hands, dashed into the bakery while D1 remained at the doorway acting as a lookout. They declared robbery and when he produced his wallet it was snatched from him and the $9,000 in it was taken. He said that the three robbers then fled. He, after consulting the person in charge of the section, reported the matter to the police.

4. An unusual feature of this matter was that the three defendants were well-known to the victim. He led the police to Room 10 of Block 36, where he knew they sometimes gathered, and D1 was arrested in that room.

5. D2 was seen shortly afterwards and was also arrested after being positively identified by the victim.

6. When arrested, D1 had $1,000 on him and D2 had $1,500. D3 was not arrested until 26th February, some five days later. He was identified at an identification parade.

7. After trial the trial judge found all of the applicants guilty and sentenced them respectively to 3½ years, 5 years and 5 years. D1 appeals against sentence, D2 against conviction and D3 against both conviction and sentence.

8. D2 gave evidence saying that he was at a friend's home for dinner and called one alibi witness, the wife of the friend. The trial judge said, referring to this witness:

"Her credibility was severely undermined in cross-examination. I am satisfied that DW2 had agreed to support D2's concocted alibi. Their evidence in no way undermined my confidence in the veracity of PW1's identification of D2 as the person who had robbed him."

9. D3 gave evidence in which he told of a card game in which he said he, D1, the victim and a lady, Madam Tran, had participated. He said that the victim had been found cheating which led to an argument. He called Madam Tran to give evidence about the game. The trial judge, having considered her evidence said:

"It is my belief that this witness may have been involved in such a game that day, but that no such incident of cheating took place involving PW1 (the victim). I am satisfied that this was yet a further false attempt to discredit PW1's evidence by D3 and this witness."

The trial judge said finally:

"I have considered separately the evidence against each defendant and I am satisfied beyond reasonable doubt that the Crown has proved that the defendants went together to PW1's room that night with the intention of robbing him; that D2 and D3 entered PW1's room armed with knives and forced him to hand over $9,000, while D1 remained outside as a lookout."

10. D2 in his written grounds complains simply that the verdict was unreasonable saying that the evidence was unclear. Today when addressing this court he has said that he was a food stall proprietor and that the other two defendants were persons known to him as customers. He suggests that the victim might have been misled into thinking that he was an accomplice because of this tenuous association which he had with the other two. He suggests also that if he had been one of the robbers he would not have remained around so that he could be easily arrested shortly after the robbery. The trial judge noted that an unusual feature of the case was that the defendants were well known to the victim and had made no attempt to disguise their identities. This matter was firmly in his mind when he was coming to his conclusions. D2 went on, when addressing us, to repeat that he was at a friend's house at the relevant time and that he had nothing to do with any incident that occurred between the other two defendants and the victim.

11. D3 in his written grounds stated that it was unreasonable to convict because there was insufficient evidence. Today he has raised a suggestion that there was a discrepancy between the evidence the victim gave as to the length of the knives and the description which he gave in his statement to the police. He asks this court to accept that he was truthful when he said that he had simply been cheated at a card game and wanted to get back the money which the victim had, by cheating, obtained from him. This matter involved a determination by the court as to the veracity of the persons giving evidence. That was the real issue and it was one which the trial judge clearly identified saying:

"The primary issue here is one of credibility: whether PW1 is telling the truth when he says the defendants robbed him, and that the defendants have thereafter brazened it out by challenging the court to accept PW1's evidence in the face of their denials; or whether it is possible that PW1 has made false allegations against the defendants, perhaps in revenge for having been caught cheating by D3 while gambling with him, D1 and others earlier in the evening and forced to repay D3 his losses, as was claimed in evidence by D1, D3 and DW6; or indeed whether there was any other reason for him to give false evidence."

He went on to say:

"PW1 (the victim) gave his evidence in a calm, concise, and convincing manner, and I felt he stood up well to cross-examination. I have considered the discrepancies highlighted and I am satisfied that they were matters going to detail rather than substance and his explanations were not unreasonable, bearing in mind the circumstances in which the robbery took place. On the other hand, none of the defendants nor their witnesses were impressive witnesses, although this is not in itself determinate of a defendant's guilt. They were evasive and inclined to shift their ground when challenged."

12. Having reviewed the evidence of the defendants and their witnesses, the judge found himself to be satisfied beyond reasonable doubt as to the guilt of the defendants.

13. Today the defendants have in essence repeated what they said at trial maintaining that their evidence was truthful and should not have been disbelieved. The suggested discrepancy about the length of the knives is one which we have no doubt the trial judge had in mind when coming to his conclusions. Nothing has been said that would allow us to interfere with the clear and careful findings of the judge. The applications for leave to appeal against conviction are refused.

14. We turn now to consider the applications for leave to appeal against sentence of D1 and D3.

15. D1 in mitigation appears to be suggesting that he had not taken part in the offence at all. In his written ground he simply said that he hoped the sentence would be reduced. The trial judge imposed what was in our view a lenient sentence having taken into account the age of the applicant and the fact that he would, because of his conviction, be separated from his family who had immigrated to Australia. He gave very considerable weight to those mitigating circumstances when sentencing to 3½ years and there is nothing which, in any way, indicates that the sentence was either wrong in principle or manifestly excessive.

16. The judge when sentencing the 3rd applicant to imprisonment for five years noted that he had seven previous convictions for quite serious offences including burglary, assault and disorderly conduct. The judge acknowledged that six years was the starting point thrown up by the guideline case of Mo Kwong-sang. Having taken into account, mercifully in our view, the fact that the applicant might have been influenced by drink, he took five years as the starting point and, there being no other circumstance of mitigation he imposed that sentence.

17. This application, also, must be refused.