R. v. VU DAC HONG and Another

IN THE COURT OF APPEAL

1993 No. 11
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the Court.

2. At about 10 a.m. on 31 October 1991, a murder occurred in Section 3 of the Whitehead Detention Centre, where Vietnamese refugees were held. The deceased, a Vietnamese called HOANG Minh-tuyen (HOANG) was stabbed to death by two or three other Vietnamese. The applicants VU Dac-hong (VU) and BUI Huy-thuyet (BUI) were arrested almost immediately afterwards, subsequently tried and convicted for the murder of HOANG. This is their application for leave to appeal against conviction.

3. There is no dispute that a murder had been committed. The only issue is one of identification. HOANG's niece, a Madam BUI Thi-kien (Madam BUI), identified both VU and BUI as the persons who stabbed her uncle. An officer of the Correctional Services Department, Mr. YAU Hon-ming, identified only BUI as one of those who attacked the deceased.

4. Mr Sceats, Counsel for both applicants, conceded that the judge gave a detailed and proper Turnbull direction to the jury but contended that the quality of identification evidence was so poor, and there being no other evidence to support the correctness of the identifications, that the case of each applicant should have been withdrawn from the jury.

5. At the trial neither VU nor BUI gave evidence but called witnesses to establish alibis.

6. We first deal with the identification evidence.

7. The judge in his summing-up to the jury referred to Madam BUI as "certainly a very confused witness", and said that her identification was made in circumstances of what lawyers described as fleeting glances because "the chasing and stabbing, according to the evidence which you have heard, could not have been more than a few seconds". The judge went on to say that it was a very brief encounter, that everything had happened very quickly and that the incident must have caught anyone who was nearby by surprise.

8. Now what was Madam BUI's evidence? She was at the time in the canteen in Section 3 standing watching television. She could see the chasing and stabbing some eight or nine feet (she had earlier said half a meter) away through the window over which there was some wire mesh but through which she said she could see very clearly. She said she saw the deceased being chased and stabbed by two men whom she had seen many times before. In evidence in chief she said both VU and BUI had been living in the same hut as she was. She later amended her evidence and said that she and BUI had been living in the same hut and that VU had been a frequent visitor to that hut. Mr. YAU, on the other hand, said three persons pursued and stabbed the deceased. Madam BUI said her uncle was stabbed before he fell; Mr. YAU said that he had only seen him being stabbed after he had fallen. At an identification parade held on 25 October 1991, Mr. YAU identified BUI as a person similar to one of the assailants, but at an earlier identification parade, he identified a person who was not a suspect. At the trial he denied the suggestion put to him in cross-examination that he had wrongly identified Bui as one of the deceased's attackers. Madam BUI was confused as to how many identification parades she had attended. She said the incident took five to ten minutes - it could not have been more than a few seconds. In all these circumstances, contended Mr. Sceats, the identifications were so poor that the case should have been withdrawn from the jury.

9. In our judgment, although Madam BUI had the deceased and his pursuers in her view for only a few seconds her evidence was that of recognition of two persons with whose features she was very familiar. Moreover, the recognition occurred in broad day light and at a distance of eight or nine feet.

10. We accept the submission of Mr. Macleod for the Crown that when the judge described her evidence as confused, he must have been referring to that part of her evidence which described distance, the length of time the chasing and stabbing took, and the number of identification parades she had attended. He was not referring to confusion brought about by the kind of circumstance envisaged in R. v. Turnbull (1976) 63 Cr. App. R. 132 that renders an identification poor.

11. Mr. Yau's identification evidence was that he saw the deceased running towards him and pursued by three men. He was therefore not in a good position to see whether the deceased had been stabbed in the back immediately prior to falling to the ground. Madam Bui, on the other hand, viewed the pursuit from a different angle. It therefore does not follow that Madam Bui's testimony as to this aspect of the incident is in conflict with that of Mr. Yau. Nor, indeed, is there a conflict between her testimony and that of Mr. Yau as to what happened after the deceased had fallen to the ground. Mr. Yau saw the deceased being stabbed by his pursuers after he had fallen but Madam Bui had not seen this part of the incident. As soon as she saw the deceased fall after having been stabbed from behind she left the canteen to go outside to the place where he had fallen. By the time she had reached the deceased the attackers had fled. Moreover, that fact that Madam Bui had seen only two attackers does not exclude the possibility that when she saw the pursuit through the window the third attacker had not yet come into her field of vision. We do not think that her failure to remember whether she had attended one or two identification parades impinges on her testimony as to the incident itself. The fact remained that she identified both applicants at the parades.

12. Madam Bui's assessment of the time she viewed the pursuit as five to ten minutes was manifestly wrong if what she was referring to was the length of time that the deceased and his pursuers were within her field of vision through the window rather than the entire period of time including that which elapsed from her leaving the canteen to her arrival at the place outside at which the victim was lying. But it is a commonplace in these courts that witnesses give wildly inaccurate assessments of time and distance when asked to assess the relevant time in seconds or minutes or the relevant distance in feet or yards. When, however, they are then asked to demonstrate by reference to the second hand on a clock or to objects in the court room it is plain that their estimate of time or distance is vastly different from that given in their initial version. This was borne out in the present case when Madam Bui, having been asked to indicate the relevant distance by reference to objects in the court room, indicated a distance of eight or nine feet.

13. In our opinion the following passage at p.138 of Turnbull is relevant:

" In our judgment when the quality is good as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. Were the Courts to adjudge otherwise, affronts to justice would frequently occur."

14. As we have said, Madam Bui was familiar with the appearance of both applicants. The circumstances of a particular case may well require the exercise of fine judgment in determining the line separating satisfactory from unsatisfactory viewing conditions. In the present case we are satisfied that the judge was entitled to find that, although Madam Bui had the men in her sight for no more than several seconds, the conditions were such that he could properly leave the case of each applicant to the jury.

15. In his final address to the jury, Counsel for the prosecution suggested that Madam BUI's positive identification of BUI at the identification parade was reinforced by Mr YAU's identification at another parade picking BUI out as a similar person. Mr. Sceats argues that Madam BUI's evidence was incapable of supporting that of Mr. YAU and vice versa, and that the judge should have directed the jury accordingly.

16. We are unaware of any authority for this proposition. While we accept that the jury should be told that even a number of witnesses can be mistaken, it does not follow that one identification cannot lend weight to another. As a matter of simple common sense the greater the number of identifications there are of a person the less likelihood there is that they are mistaken. Provided the jury are warned of the possibility that more than one identification may be mistaken they are justified in having greater confidence in two rather than one identification.

17. We now come to those grounds which may conveniently come under the general heading of alibi: VU's Grounds 7 and 8; BUI's Ground 12.

18. It was submitted on VU's behalf that, first, the judge erred in failing to direct the jury that the burden upon the prosecution to disprove an accused's alibi was one of proof beyond reasonable doubt and, second, that on the alibi evidence before the jury and the failure of the prosecution to adduce rebuttal evidence, the verdict was unsafe and unsatisfactory.

19. The judge's direction on alibi was as follows:

" I have told you that the defence of both defendants is one of alibi. What it means is that the defendants are saying that they were not at the scene of the crime when the killing took place. As the prosecution have to prove the guilt of each defendant so that you are sure of it, the defendants do not have to prove that they were elsewhere at the time. On the contrary, the prosecution must disprove the alibi. And even if you conclude that the alibi was false and fabricated, that does not of itself entitle you to convict the defendants. The prosecution must still make you sure of the guilt of each defendant."

20. In the light of that direction we are entirely satisfied that there is no substance in the first complaint. The jury could have been left in no doubt that the burden of proving the case against the accused included disproving their alibis and that if therefore there was a reasonable possibility that an accused's alibi might be true the case against that accused could not be said to be proved beyond a reasonable doubt. We reject Mr. Sceat's contention that the judge was obliged to direct the jury that the failure of each applicant to give evidence could not support the identification evidence.

21. Mr. YAU's evidence was that because of a fight in the Detention Centre on the previous night, the huts in Section 3 were all closed (but not locked), and that apart from the four persons running, there were no other people outside. VU's alibi witness, another Vietnamese detainee, testified that at about 11:30 p.m. on 31 October 1991, everyone was inside the hut because a few days before there had been a quarrel. This witness said the gate of that hut was locked and no one was able to leave. In the same hut and occupying a bed two metres away was VU who was sleeping from 5 a.m. until sometime after 11 a.m. The police came into the hut sometime after 11 a.m. and asked all occupants to come out. He and VU then left the hut. The judge dealt fully with the alibi evidence. There is nothing in his direction on alibi evidence generally or that which related to VU in particular that causes us concern. We do not consider that because the prosecution did not call evidence in rebuttal, the verdict against VU was rendered unsafe or unsatisfactory. The jury were entitled to rely on the evidence of identification and to disbelieve the alibi evidence.

22. The second applicant BUI called three alibi witnesses: DW2, DW3 and DW4. By paragraph 12 of the Grounds of Appeal, it is argued that: -

" In the light of the prosecution allegations of collusion between DW2 and DW3, two of the alibi witnesses called on behalf of the 2nd Applicant, the trial judge correctly directed the jury that those allegations went to the credibility of those witnesses but he failed to remind the jury that a) there was no evidence that 2nd Applicant was privy to any attempt at collusion, and that if the jury found as a fact that those two witnesses had colluded that Finding could not support the identification evidence; b) that DW4's evidence supported 2nd Applicant's alibi independently of whatever view they took of the evidence of DW2 and DW3 and was also unaffected by the rebuttal evidence called by the prosecution. In the circumstances of this case the honourable court is entitled to conclude that the jury must have taken a perverse view of the evidence of DW4 and to set aside the verdict of the jury as unsafe and unsatisfactory."

23. DW2 is BUI's wife. Her evidence was that they had had a quarrel on 25 or 26 October 1991 and her husband had left their hut (where Madam BUI lived) and did not return until 6 November 1991.

24. DW3 was another Vietnamese detainee and he said that he took BUI out of the hut after his quarrel with the wife, and BUI went over to another Section, Section 7, of the Detention Centre.

25. DW4 was a Vietnamese woman who lived in Section 7. She said that early in the morning of 26 October 1991 BUI came to her hut and stayed with her and her husband for ten or eleven days.

26. Two notes (Exs P.19 and P.20) had been found on DW3, who said they were written by other inmates in the camp at his dictation and request. He explained that in order to assist him in giving accurate evidence in Court, he asked his hut mates to write down his recollection, stimulated by an interview by the police, of the relevant events. During the course of the trial BUI's wife, DW2, had been seen writing on a piece of paper (Ex. P.18), and upon being asked by a Correctional Services Officer, Mr. LEUNG Mun-lung, who was on call duty at the time, to give it to him, she immediately crumpled the paper and put it inside her breast pocket. The note was later seized. Mr. Leung also saw DW2 and DW3 attempting to speak to each other both before and after the finding of the note.

27. In this connection, the learned judge directed the jury in the following terms: -

" I think I ought to remind you that the contents of these notes are not evidence, and the purpose of having them produced is only to show that these documents were found and not whether the contents are true or false.

The wife of the 2nd defendant had denied that she wrote P.18 and denied that P.18 was found on her. This is a matter for you when you come to consider her credibility and of course also the credibility of Mr Leung, the officer from the Correctional Services Department. I have made it plain to you at the outset that the credibility of all witnesses is entirely a matter for you as the judge of facts, not just these two witnesses."

28. There had been no suggestion whatever that VU was privy to any attempt at collusion with the witnesses. The judge made it clear that the evidence concerning the notes related to the credibility of BUI's wife. This was a correct direction. It was not necessary for him to state the obvious fact that DW4's testimony was unaffected by any view that they the jury might take of BUI's wife and DW3.

29. It is clear that by their verdicts the jury must have accepted the evidence of Madam BUI and Mr. YAU and rejected the evidence of the applicants' alibi witnesses. We do not think that the judge was required to comment on the rebuttal evidence. It was not incumbent on him to rehearse all the arguments that had been advanced to them by counsel for the defence. He recited to the jury the substance of the testimony given by the alibi witnesses and told them that the prosecution must disprove the defence of alibi, and that even if they, the jury, were to conclude that the alibi evidence was false and fabricated such did not entitle them to convict the applicants, for the prosecution still had to make them sure of their guilt.

30. The applications for leave to appeal against conviction are dismissed.