PHUNG VAN TOAN AND OTHERS v. THE QUEEN

A/D Nos.11 & 13 of 1990

HEADNOTE

Criminal Law - Application for discharge - Interpretation at identification parades - no statements from interpreters - admissibility - statements from Vietnamese witnesses taken in Cantonese - admissibility - evidence which may be admitted after close of prosecution case - Section 80B Magistrates Ordinance - Section 16 Criminal Procedure Ordinance.

IN THE SUPREME COURT OF HONG KONG

Criminal Jurisdiction

Application for Discharge No. 11 of 1990

Application for Discharge No. 13 of 1990

_______________

___________

JUDGMENT

___________

1. This is an application under Section 16 of the Criminal Procedure Ordinance (Cap. 221) by some seven Vietnamese for discharge, having been committed for trial under Section 80C of the Magistrates Ordinance on a charge of murder.

2. The grounds are that the evidence as disclosed in the submitted statements is insufficient to establish a prima facie case against them, and my role is as though I were the judge at trial, having heard the evidence set out in the statements, dealing with a submission of no case to answer.

3. I reserved my judgment on January 8, but I heard, at the request of the Crown, further submissions and citation of additional authorities on January 21 when I again reserved my decision until today. There has been an additional notice of motion served by the Crown for hearing today for leave to adduce further evidence.

4. The section, under which this application is made, reads, Section 16(1),

"Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance he may at any time ...

(b)	after the filing of the indictment and prior to his arraignment thereon,

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance, as read with any further evidence the Attorney General has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge."

5. Insofar, therefore, as the notice of motion now served after this matter was due for decision, I have no jurisdiction to accept new evidence which, it is said, cures one of the problems raised in this case.

6. The documents which were handed to the court under Section 80C are indeed the statements I have before me in two large bundles, and any further evidence which the Attorney General had notified would have been so done, in my judgment, prior to the application being made.

7. This further evidence is being notified at a date later than the date on which I would have given my original decision. I, therefore, do not consider that I have jurisdiction to accept these additional statements. What they are, I will deal with in one of the points which have been raised.

These are the facts of the case: -

8. On March 31 of last year, at about 6 o'clock in the morning, in the Whitehead Detention Centre for Vietnamese, there was a riot involving several hundred Vietnamese persons.

9. Some of the Vietnamese inmates lived in Hut 4B. One of those was TRAN Thi-hanh, a young lady who had come into Hong Kong in July 1988 and from January 1989 had been at the Whitehead Detention Centre. She had a brother, TRAN Quoc-thuy, who also lived in Hut 4B and his bed was not far away from hers.

10. On that morning, she was sleeping with her husband and her daughter when she heard noisy sounds and she heard people trying to force their way into Hut 4B. She said she saw about a hundred people (although it is apparent there were probably several hundred persons there) and she saw two Vietnamese, Ah Quoet and Ah Sa, holding a long piece of iron bar and shouting "Women and children get out. Men don't get out and whoever gets out would be chopped."

11. She also saw some, as she called them fellow camp mates - Sang of 10A, Quan of 10A, Toan of 7B, Thanhy of 6B, Ha of 6A, Thuy of 7A, Huong of 10B, and Son of Hut 7B, all holding weapons encircling the hut.

12. She got her daughter and climbed out through the window. She saw her brother behind her when she climbed out and she went over to the clinic which was some distance away.

13. She said, which is hearsay evidence but I just recite it, that she was told later that her husband had made his escape by climbing up the roof.

14. About 20 minutes later, she saw several officers of the Correctional Services Department carrying her brother's body and he was covered in blood.

15. She was asked by the police when she was interviewed on that afternoon of the incident. "Would you recognize the people you mentioned above?" and she said, "They were living in the camp in Stage 1 and did not mask their face.  Most of the rest of the people had their face masked."

16. She was then asked, "Where was your brother TRAN being killed and by whom he was killed?" The answer was given, "I did not see where he was killed or by whom he was killed." She then was asked further questions. So she had identified a number of persons connected with the riot, but she had specifically stated she did not know who had killed her brother.

17. Four days later she was taken in the morning to an identification parade that was being held for the purpose of, presumably, identifying persons who were taking part in that attack on the hut. She, of course, was not going to identify persons who killed her brother because she had told the police that she could not identify anybody.

18. The identification parade was conducted by an English-speaking superintendent of the Hong Kong Police Superintendent Boyton, who conducted the identification parade with two interpreters, whose importance I shall explain in a moment.

19. Ten persons were put on the identification parade and she identified two of them as Ah Toan and Ah Quy, who are said to be the 1st and 2nd defendants.

20. She said, as far as Ah Toan was concerned, that he was holding a flat and pointed iron bar and had hit her brother, but Ah Quy, she said, was a person standing with a loud-hailer in one hand and an iron bar in another, saying, "Brothers, join together and prepare to break into the but and kill all the Haiphong guys."

21. Two other identification parades were carried out and she identified another four persons as people who had taken part in the attack on her brother, who are said to be the 3rd, 4th, 5th and 6th defendants.

22. The police naturally asked her why she had recognized these five as having hit her brother and "Where were you?" when she said, "I remember that it was suddenly so noisy outside Hut 4B. I climbed up to the upper deck of our bed and gazed out to see what happened there and I then saw a gang of people, between one to two hundred, gathering."

23. She said she became scared, "I got out through the window carrying my daughter with me. I then hid myself at the canteen." She had said originally she had gone to the clinic, now she said she hid herself at the canteen,

"About half an hour later, I heard people shouting that someone had got injured. As I looked out through the window of the canteen, I saw my brother Thuy lying on the ground, five to six metres from the main gate of Camp A after he had been chopped. He was still struggling on the ground. I saw Ah Thuy of 7A, Ah Thanh of Hut 6B, Ah Xa and Ah San, the four of them, attacking my brother with pointed iron bar. The I saw Ah Quan, Ah Hung, Ah Toan, Ah Phang, Ah Ut, the five of them, again attacked my brother with pointed iron bar, water pipes and aluminium tubes. Also, another ten odd people came forward and attacked my brother with weapons."

And she said she hid herself out of fear.

24. She was asked whether she could identify other persons. She said she could identify them. She was asked by the police why she had not told them that before and she said that she was fearful for her life, "Scared that my husband, my daughter and I would nave risk to our life," and she had recovered so much that she could now identify them.

25. On another statement given, with regard to the defendant BUI Van-minh who was separately committed, at page 31 of the bundle, she said that she could identify another person who attacked her brother, who had stabbed him in the chest, and she said this: "After the stabbing, he drew out the iron bar. I eye-witnessed that blood shot out at him from the chest."

26. Then she said: "I was standing outside the canteen in Stage 1, about 11 metres from my elder brother." Before she had indicated that she was in the clinic; alternatively, inside the canteen, hiding inside the canteen; but on this occasion she said she was standing outside the canteen, 11 metres from her brother, and she said she recognized this person.

27. The statements, which I have briefly referred to, together with the statement of DO Van-chien who is her husband, are the main evidence; he said at page 58,

"... People from To Shan poured water into the hut through the window and some threw burning blanket. The hut was full of smoke. As I took a look around, I found about eight men inside the hut, including my brother-in-law and other persons and they said, "we get to find a way to make for our escape." My brother-in-law dashed out the but 4B through the main entrance with (other persons). I kept watching them through the window. I saw them flee towards the main gate of our camp. I saw many people holding iron wares to give chase. I first saw my brother-in-law being hit on the back of his head by a person called Ah Toan ... He fell onto the ground. The 20 to 30 people with iron bars rounded up my brother-in-law to attack him. At that time my brother-in-law was lying on the ground with his face touching the soil. The gang used their sharpened flat iron hitting madly on the back, belly and face."

He said, "I recognized six of them. They did not wear mask. I recognized then for the six of them were former residents of Hut 4B. Ah Toan, Ah Xa, Ah San, Ah Quan, An Thanh." The he gives evidence in a very general manner.

28. The cause of death was a stab wound severing the left carotid artery in the neck.

29. These statements were all taken by the 4th of April and the identification parades had been held and the defendants were charged with the statutory offence of rioting, and appeared before a magistrate on that charge.

30. Some time later, the charge was amended to one of murder and it is, of course, against that charge that the application is made.

31. The statements submitted appear to indicate that TRAN Thi-hanh, the main prosecution witness, had identified persons attacking her brother and she picked them out at an identification parade. The position, however, is not as simple as that.

32. This important aspect affects all the defendants except the 2nd defendant. He was not identified by anyone as taking part in the attack on the deceased and I have recited that at the identification parade only TRAN Thi-hanh stated that he was holding a loud-speaker and encouraging persons to attack.

33. Looking at that evidence in isolation, and although there are other more important matters which I shall deal with later, assuming at the moment against Mr. McCoy that the evidence was admissible (the point is taken that none of the evidence given by the lady at the identification parade is admissible), would that, in isolation, be sufficient for a prima facie case of murder against the 2nd defendant? In my judgment, it would not.

34. The Crown recognizes that it is in a difficult position, but submit that this is a case of counselling and procuring the subsequent murder. In my judgment, there is insufficient evidence. There is no evidence that he counselled anybody. There is a gap of time, some 20 to 30 minutes, between the riot which. was going on and the subsequent killing and there was no evidence other than this general statement that he was indeed counselling the murder of anybody. I do not consider there was a sufficient causal link between the procurement - if it was one - and the subsequent killing.

35. There is an offence, under section 5 of the Offences Against the Person Ordinance, of conspiring or soliciting to commit murder. He has not been charged with that and the evidence in my judgment would not support that. However, Mr Kelly submits that this was a joint enterprise type of case and the joint enterprise was to kill. Even if the joint enterprise was to riot, in accordance with the standard authorities, if a person sets out on a joint enterprise and in the course of that joint enterprise carries out what may be an expressly or impliedly agreed act, all would be guilty. In my judgment, I do not look upon this case in that context at all.

36. The charge of murder is based essentially on the attack which took place on the deceased. The defendant has not been identified as a participant in that attack. It may well be that this defendant could be charged with inciting a riot or other charges, but it is not necessary for me to come to that decision. I would hold, on this ground alone that he would be entitled to be discharged, but as will appear later, it is clear that he would be also entitled to be discharged on other grounds.

37. I then turn to the legal submissions made by Mr McCoy with regard to the other defendants, and I also deal, of course, with the general position of the 2nd defendant, and there is no distinction on these aspects between any of the cases of the defendants.

38. It can be seen from the brief recitation of the facts that the prosecution evidence relies solely upon identification. TRAN Thi-hanh has given conflicting evidence with regard to what she saw and from where. It may be that at the close of the prosecution case after the judge has heard and seen her give evidence and be cross-examined, he may consider that the case is unsafe to leave to the jury. On the other hand, the Crown's case might appear sufficient. That, however, is a matter essentially for him and it is wrong, in my judgment, for me on an application under section 16 to seek to evaluate the quality of the evidence.

39. In addition to this, the identification parades were conducted in a strange manner. When some of the defendants objected, the numbers in front of them were removed. No confrontation was held and it had all the appearance of an identification parade. Nevertheless, this objection would go to the weight to be attached to this portion of the evidence.

40. On the above two aspects, whilst again the Crown's case does not appear strong, and although I am told it would be a long trial, I do not consider it my function to interfere in the normal criminal process on matters relating to the evaluation of the quality of the evidence.

41. I turn then to the submissions that, as a matter of law, there is no prima facie case to answer. First, the riot took place in a Vietnamese camp involving Vietnamese persons. The statements which were taken were, however, in Cantonese. What happened was that, for example, TRAN Thi-hanh gave her account to a police officer which was given in Vietnamese and then interpreted by an interpreter into Cantonese. The officer wrote the statement out in Cantonese. At the conclusion it was later read out to the witness by the interpreter in Vietnamese. Then the Cantonese was signed by the witness and at the conclusion of the statement it reads: "this statement consisting of ... pages in the Chinese language, each signed by me has been read over to me in the Vietnamese language by interpreter YUNG Kam-ching, and I have been told that I can correct, alter or add anything I wish," and then it is signed by the witness.

42. One of the first matters which have to be examined is the validity of the statements which have been served on the defendants. Section 16 is dealing with an application for discharge on the grounds of the evidence disclosed in the documents handed to the court. The documents included, of course, the statements which were handed to the magistrate.

43. By virtue of section 80B of the Magistrates Ordinance, documents must be served on the accused:

"(1)	Not less than seven clear days before the return day, or such shorter period as the accused may consent, the prosecutor shall serve on the accused -
...	(b)	copies of the statements of those witnesses whom the prosecution intends to call at the trial.
(2)	A statement of a witness of which a copy is served under subsection (1) shall
	(a)	be signed by the person who made it;
	(b)	contain a declaration by the witness that it is true to the best of his knowledge and belief, etc.
	(c)	if in a language other than English, be accompanied by an English translation and, if in a language other than Chinese, be accompanied by a Chinese translation;
...	(e)	purport to have been read over to the person who made the statement in the language used by that person  in making the statement or to have been read by that person."

44. The factual position is as I have set out. It is clear that the statement which was given was a statement which was not read by the witness, as she was unable to read Cantonese. Does this therefore satisfy subsection (e) when it says, "purport to have been read over to the person who made the statement in the language used by that person in making the statement."? In my judgment this presupposes that the language used to make the statement should have been Vietnamese language. The language which was used in the statement here was Cantonese. Although it is clear that there was a subsequent interpretation of the Cantonese back into Vietnamese, in my judgment, subsection (e) has not been satisfied.

45. Mr Kelly submits that under subsection (5) failure to comply does not make the matter ineffective. However, subsection (5) reads:

"Failure to comply with the requirements of subsection (2) shall not render the service of any documents ineffective or prevent such documents being handed into court."

Clearly if there has been a failure to comply with the provisions, subsection (5) still permits the Crown to submit that the documents have been properly served.

46. The objection which is taken here does not go to service of the document, but to the legal effect of the document which has been served, namely that these are not statements of the witnesses whom the prosecution intends to call at the trial.

47. As I have said in the course of argument, the points which have been raised are matters of some complexity and do not appear to have been raised before. However, in my judgment, having regard to the provisions of the Magistrates Ordinance, subsection (2) (e) has not been complied with.

48. The Crown have sought to adduce, by notice of additional evidence, new statements which have now been taken correctly and including a statement of an interpreter; the new documents which I have already ruled I have no jurisdiction to accept do comply with this subsection, and, therefore, the problem which was caused by the Crown utilizing the statements in the manner they have, has now been cured; but, in my judgment, I am not permitted to examine those statements.

49. I accept from Mr McCoy that there must come a time when the stance of the Crown must crystallize and, in my judgment, that is the moment before the application is made for discharge under section 16. Up to that moment in time the Crown can rely on the statements handed to the court, and any further evidence which has been served or has been notified to the accused which will be utilized at the trial. In my judgment, therefore, there has been a failure to comply with section 80B of the Magistrates Ordinance. I do not at this stage say what effect this has upon the trial because I turn, then, to the second point.

50. Secondly, when the identification parade came to be held there were two interpreters present. At page 312 onwards - I do not recite it in detail - Superintendent Boyton's statement appears, and he said that two official interpreters were also present. The first being Mr MAK Kwok-tai to translate English into Cantonese and Mr LY Gia-hoanh to translate Cantonese into Vietnamese.

51. When, therefore, the witness was brought into this parade, the purpose of the identification parade was spoken in English to one interpreter, then interpreted to the other interpreter, who subsequently interpreted to the witness. When the witness said something, for example, the inspector says, "She says she pointed at PHUNG Van-toan and said this man stabbed my elder brother that day," that was the lady saying something in Vietnamese, interpreted into Cantonese and then interpreted into English, and the English interpreter saying to the inspector: "This man stabbed my elder brother that day."

52. No statements from the interpreters have been served with the documents handed to the magistrate and, indeed, I am told from the Bar that there may be certain difficulties with regard to at least one of those interpreters not being in Hong Kong.

53. In my judgment, the first matter I have to decide is whether or not the evidence of the police officer who says that the witness said certain things is admissible in law. In my judgment it is inadmissible. It has been clear for many years from R. v. Attard, decided in 1958, that the evidence of a police officer in this type of interview through an interpreter is inadmissible. The officer, indeed, is merely saying what the interpreter says to him which is pure hearsay. The case of Attard has been consistently followed for some 30-odd years. Although a decision only of a High Court judge in England, a judge, nevertheless, of great experience, it has been consistently followed in other jurisdictions. It has been the subject of approval in the current edition of Archbold and the current edition of Phipson on Evidence. It has been cited with approval in Hong Kong.

54. The Crown recognizes the problems which have been caused by virtue of the lack of interpreters' statements, and the position,  therefore, is as follows: the only evidence against the 2nd defendant which I have held to be insufficient was given through this interpretation, namely the witness stating at the identification parade that this man was involved. In my judgment there would be no evidence, at any rate, against the 2nd defendant.

55. Mr Kelly cites R. v. Osborne (1973) 1 QB 678 where Lawton L.J. said at p 690 "The whole object of identification parades is for the protection of the suspect, and what happens at those parades is highly relevant to the establishment of the truth. It would be wrong, in the judgment of this court, to set up artificial rules of evidence, which hinder the administration of justice."

56. This decision has been consistently criticized, but in my judgment whether evidence given as a result of an identification parade, is admissible or not is not decided by "artificial rules of evidence" but by substantive law.

57. What, then, is the position with regard to the other defendants? The Crown recognise the difficulty which they are in. Mr Kelly concedes that without the evidence of the lady TRAN Thi-hank there is no case which could safely be left to a jury. Her evidence therefore is vital.

58. If the evidence of the police officer is inadmissible, what is there then left?  It would appear that the statements of TRAN Thi-hanh, by virtue of section 80B of the Magistrates Ordinance not being complied with, are, at any rate, are inadmissible. But even were I wrong on that aspect of the case and they were admissible, then in my judgment the evidence, looked at in isolation is clearly insufficient. She identifies names, not persons, in the statement she gave to the police officer; she talks about, for example, Ah Toan. It is said that I must infer that the persons whose names she gives are the defendants in the dock, but in my judgment the reason for the identification parades being held was so that she could identify the persons. Mr Kelly submits that she is permitted to give evidence that she attended an identification parade and pointed to someone," and the police officer might be able to say, "Well, she pointed to a number, and that person can be identified." In my judgment I reject that approach.

59. The Crown submits that the reason for not calling this interpreter's evidence is purely some formal matter, as they put it, which should not affect my decision. In my judgment, the correct approach on identification has been made clear by many experienced judges over the years, and the dangers of convicting on dubious identification has also been pointed out. The Privy Council in Billy SPARKS v. The QUEEN (1964) AC 964 has similarly stated that matters of identification are, of course, of prime importance.

60. Mr Kelly submits that I could hypothetically admit evidence although the Crown's case had technically closed. This is a slightly difficult aspect because I have not before me any evidence which is stated could be adduced after the close of the case, but I deal with the point as it is an interesting point.

61. Mr Kelly submits that the authorities indicate that matters arising 'ex improviso' or purely formal matters could be admitted after the close of the prosecution case, and he cites Royal v. Prescott-Clarke (1966) 1 WLR 788, R. v. Central Criminal Court, Ex parte Garnier (1988) RTR 42 and R. v. Pilcher (1974) 60 CAR 3 and R. v. Gaio (1960) 104 CLR 419.  This interesting aspect of criminal law has been recently reviewed by the Court of Appeal in England last year in R. v. Francis (1990) 1 WLR where Lord Justice Lloyd, in his usual lucid manner, recites the various authorities over the years on this aspect, and says:

"The propositions which can be deduced from those authorities are as follows. (1) The general rule is that the prosecution must call the whole of their evidence before closing their case. The rule has been described as being most salutary. (2) There are, however, exceptions. The best known exception is that the prosecution may call evidence in rebuttal to deal with matters which have arisen ex improviso. See R. v. Pilcher. (3) The prosecution do not have to foresee every eventuality. They are entitled to make reasonable assumptions: see R. v. Scott (1984) 79 CAR 49. (4) Another exception to the general rule is where what has been omitted is a mere formality as distinct from a central issue in the case: contrast Royal v. Prescott-Clarke with Garnier. (5) In cases within the two above exceptions, the judge has a discretion to admit the evidence. Like any other discretion, it must be exercised judicially and within the principles which have been established by the Court of Appeal. (6) The earlier the application to admit the further evidence is made after the close of the prosecution case the more likely it is that the discretion will be exercised in favour of the prosecution."

 

He then goes on to say:

"The real question in the present case is whether the discretion of the judge to admit late evidence is limited to the two classes of exception which we have mentioned."

62. And the judge later when referring to Middleton v. Rowlett (1954) 1 WLR 831 says :

"The prosecution failed to call evidence to identify the driver. At the close of the prosecution case the justices dismissed the case. They refused to allow the prosecution to rectify the deficiency in the evidence. Nobody could, in that case, have suggested that the failure to identify the driver was a mere formality. It was, as Mr Justice Hilbery said 'a most material step in establishing the prosecution's case.' Yet the court described the justices as having a discretion in such a case. They did not say that the justices were bound to exercise that discretion in favour of the defence. On the contrary, Lord Goddard said if the justices had exercised their discretion the other way then the court would not have dreamed of interfering.

            That dictim of Lord Goddard is powerful support for the prosecution's submission in the present case that the exceptions to the general rule are not limited to the two. well established exceptions."

 

He then recites other authorities and says:

            "In the light of that, there should be a seventh proposition to those which we have already listed. (7) The discretion of the judge to admit evidence after the close of   the prosecution case is not confined to the two well established exceptions. There is a wider discretion.  We refrain from defining precisely the limit of that discretion since we cannot foresee all the circumstances in which it might fall to be exercised. It is of the essence of any discretion that it should be kept flexible. But lest there be any misunderstanding and lest it be thought we are opening the door too wide, we would echo what was said by Lord Justice Edmund Davis in R. v. Dorancase that the discretion is one which should only be exercised outside the two established exceptions on the rarest of occasions."

63. That court then stated that it was permissible for further evidence to be called because the evidence which was to have been called was omitted not due to an oversight on the part of the prosecution but to a simple misunderstanding between counsel. That decision, in my judgment, makes my task far easier in this case.  What has been omitted in this instant case - I make no personal criticism - clearly has been due to an oversight on the part of the prosecution. The case of Attard brought about a change in procedure in England with regard to the furnishing of interpreters' statements. As I said, it has been followed over the years and it is well-known in Hong Kong. It must have been recognised by the prosecution that it was essential for them to provide statements from the interpreters as part of the documentation to be handed to the magistrate. As I have indicated, the evidence given by the police officer is clearly inadmissible. I do not consider that the further evidence is due to an oversight on the part of the prosecution, and it does not relate to formal matters. It therefore does not fall within the general two exceptions at all, and clearly, in my judgment, having regard to what is stated in Francis and the other decisions on this matter, would not be the type of evidence which could possibly be permitted in the exercise of a judge's discretion.

64. Having regard to those matters, in my judgment there is insufficient evidence, for the variety of reasons I have sought to explain, to support a charge of murder.

65. That being my ruling, I have also considered whether it is sufficient to establish a prima facie case for an offence for which they might be convicted upon a charge of murder. This includes manslaughter, wounding with intent, etc., offences against the person. I do not consider that the evidence discloses an offence for which they might have been convicted. However, the evidence does support, in my judgment, a prima facie case of rioting, for which these defendants were originally charged, that is the statutory offence of rioting, or the Common Law offence of affray.

66. For those reasons therefore, by virtue of section 16(3), having perused all the documents in this case, having listened to the submissions which have been made and for the reasons I have sought to explain, I direct that the accused shall not be arraigned on the charge of murder and I direct that they are discharged. By virtue of subsection (4), this discharge is deemed to be an acquittal. However, having regard to the Crown being in a position to appeal the decision I have made, and that further charges could be brought against these persons, although I discharge them, I do not release them from custody for a period for which I shall hear counsel further.