R. v. PHONG UNG CAU

IN THE COURT OF APPEAL

1994, No. 630
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. The applicant in this case faced two counts in the indictment - one of murder and one of riot. After a trial before Gall J and a jury which lasted two years he was acquitted of murder, convicted of manslaughter by majority and convicted unanimously of riot. He was sentenced to 18 years for manslaughter and 7 years concurrent for riot. He applies for leave to appeal against conviction.

2. Initially, the indictment charged 14 inmates of the Shek Kong Vietnamese Detention Centre of murder of 24 other inmates in the riot which was said to have taken place on the evening of 3rd February 1992.

The Background

3. There is no dispute about the main events. In the late afternoon of 3rd February 1992 there was a dispute and a fight between the inmates of Huts C5 and C6 and inmates of C1 and C2 about non-payment for alcohol. It would seem that C5 and C6 inmates were Northerners and the others Southerners. Also Sections D and E of the Camp were occupied by Southern Vietnamese.

4. Following the earlier dispute between 10 and 11 p.m. that same evening, a mob of Southern Vietnamese stormed the gates between Sections D and C and surrounded Huts C6 and C5. The mob was organised. Each of them wore a uniform of white towels round their heads and armbands for identification. They were armed with home-made weapons, both wooden and metal. In the face of this, even the police had to retreat. The insurgents were left in control. They broke into Huts C6 and C5. They set fire to one end of C6, made holes in the roof and poured boiling water in, threw missiles through the windows and fuelled the fire by taking blankets and throwing them into the burning hut.

5. When the inmates of C6 tried to escape at the other end of the hut, they were faced by members of that armed mob threatening that they would beat them to death if they came out. The consequence was that 24 people died in the attack.

6. Of the 14 originally indicted, by the time the jury retired to consider their verdict, only two accused were still left in their charge.

The Application

7. The applicant, who appears by Mr Lunn QC and Mr Iu, seeks to argue two grounds of appeal. The first is that after the length of trial, the number of identification witnesses and the intricacies of the evidence no fair trial could take place. That it became dangerous and unsafe for any jury to assess the credibility and reliability of those identification witnesses and this Court ought to say that the verdicts of guilty are unsafe and unsatisfactory.

8. We turn to that first ground.

Ground 1

9. The broad statistics were that between March 1993 and July 1994, a total of 44 eye-witnesses were called. Those eye-witnesses related to more than the two accused who remained in the charge of the jury at the time of the summing-up. Fourteen defendants were arraigned. D9 was acquitted in April 1993. The other 13 remained until 1994. From June 1994, matters went thus. D1 was acquitted in June 1994. In September/October 1994 D2, D3, D4, D5 and D7 pleaded guilty to one or two offences. D8, D10, D12 and D13, the judge decided, had no case to answer. D11 was acquitted in November.

10. The 44 eye-witnesses made in excess of 80 identifications of various defendants at identification parades or other identification procedures. Mr Lunn argues that faced with that volume of evidence and the well-known difficulties in relation to identification evidence that matters must have reached the stage by the end of two years that the jury could not remember and assess the witnesses who had given evidence.

11. He relies upon a passage in the early part of the summing-up where the judge makes reference to this matter. He said:

"There is also a difficulty here that does not normally occur in cases before our Courts. It is that this case has taken so long that you will have real difficulty in recalling details of the evidence. Counsel has been through much of the evidence and I will do the same. What we quote you is not evidence, not evidence in itself. It will, I hope, refresh your memories so that you do recall the details of the evidence and can make a decision on it. If you are unable to recall and if what counsel and I have said has not refreshed your memory so that you can be sure of your decision then you must acquit the accused in respect of whom you are unable to recall the evidence.

Put simply, I cannot give you back the evidence again. You must recall the evidence from what counsel and I have told you. If you are unable to do so and make a decision on what you recall, then you cannot make your decision."

That, Mr Lunn submits, underlines the submission he is making, for there the judge is making reference to the possibility that members of the jury may not be able to recall the evidence of the witness and is pointing out the danger of relying upon references to the evidence made by counsel and himself in reminding the jury.

12. Reliance is placed upon two cases in particular: R v Cohen & Others 1992 NLJ 1267 and R v Kellard & Others1994 TLR 459. In Cohen the court deals with the very matter upon which counsel seeks to rely. In that case the judge had used these words to the jury:

"This trial has taken a very long time indeed. You do not need me to tell you that. The obvious effect of so much time passing is that you cannot be expected to remember all the evidence or even, in a case of this kind, substantial parts of the evidence".

It was an enormously complicated fraud case. There was a serious material irregularity in the trial because the indictment was amended after final speeches of counsel. The jury were left considering a case part of which had not been identified - in the sense of being reduced - at the time when defence counsel made their closing addresses to the jury; but serious strictures were also made on the length and complexity of the case. The court came to the conclusion that in that particular case the verdicts were unsafe and allowed the appeal, not simply, we would note, because of length of time and complexity.

13. The matter was considered further in Kellard's case. The principle was properly identified by Farquharson LJ at 461 when he said this:

"The first question to be decided was whether the length of the trial in itself was a sufficient ground for characterising the convictions as unsafe or unsatisfactory. Their Lordships were firmly of the opinion that it was not.

If it were otherwise cases would have to be tried within a time limit. The correct approach was to consider whether the length of the trial created a situation at any point where a fair trial was not possible, that is, whether any feature of the case tended to establish that any of those taking part in the trial were by reason of its length unable to discharge their function.

The most important of those concerned in the trial were the jury. If they were unable to understand the evidence, or the directions they received were not reliable or accurate, there would be grounds for saying that the convictions were unsafe, but it was evident that the jury had manifested no such incapacity."

14. Turning to the instant case. There are important features. First, the issues that were before the jury. The cases cited were fraud cases. They may well fall into quite a different category in relation to the complexity of the issues and the evidence. In this case, there were no complex issues about killing or rioting. In the case of each accused's case during the trial, the issues were: first, was it proved that the jury were sure that the alibi advanced in each case was false. Second, was it proved that in each case the accused participated in the killing and if so, to what extent. Third, was it proved that he participated in the riot? Those issues were resolved by identification and credibility.

15. By the time the case came to be summed up - by counsel and then the judge - the issues had been reduced so the jury had only to consider the case of the applicant and one other. It is indicative not only of the hard work which the judge must have put into this case, but also of the relative simplicity of the issues that the judge was able to commence his summing-up on the day following the termination of counsel's addresses. We contrast that situation with Cohen and others where the judge found it necessary to take some 50 days to prepare his summing-up after counsel's speeches.

16. So this case falls into quite a different category. Of course, it was a very long trial. If it can be avoided, trials should not take such a length of time. This Court accepts the principle that was put succinctly by Bridge LJ in R v Novac [1976] 65 Cr.App.R.107 at 119:

"In jury trial brevity and simplicity are the handmaidens of justice. Length and complexity its enemies."

But here we cannot accept that there is a case to be argued that the verdicts were unsafe and unsatisfactory on this ground. Indeed, the jury indicated before it brought in the verdicts by a question - to which we will refer when dealing with ground 2 - that they had certainly a grasp of the evidence of PW32, one of the identifying witnesses. It would appear that they remembered that witness giving evidence and the quality of the evidence in spite of the fact that it had been given over a year before.

17. So far as the first ground of appeal is concerned, we reject it. We turn now to the second ground.

Ground 2

18. After the judge had completed his summing-up and the jury had gone out, the jury returned with a question which was:

"What are the criteria for deciding the verdict of murder or manslaughter if we believe the evidence and identification given by PW32 TA Van Khoa were correct and of good quality? The evidence to which we refer is PW32 saw and identified the 6th accused shouted outside the rear door of C6; 'Anyone comes out we will beat him to death.' D6 was holding a weapon. He raised his weapon and shouted."

The applicant seeks to argue that consequent upon that question in the particular circumstances of this case, there was a very strong possibility that the conviction for manslaughter was based upon the testimony of that witness. It is then submitted - to make a sound basis for the point - that the judge seriously misdirected the jury about the identification evidence of that witness.

19. At p.51 of the summing-up he said:

"The witness said he was sure of that identification and only identified the one person in all the parades he attended"

whereas it is accepted by everyone that this witness - either on the same day or near it - had not only identified this applicant but also had identified another person (on another parade) who was an actor. He said the actor was the person standing near this applicant at the door of Hut C6. In the summing-up the judge rightly drew to the jury's attention other circumstances where identification witnesses had misidentified actors on parades so that the jury could be assisted in assessing the identification evidence of those witnesses. So Mr Lunn says that this was a serious misdirection in relation to a vital witness and in those circumstances the conviction should go.

20. It is necessary to consider this error on the part of the judge in its context. The first important point is that in order to assist the jury, counsel agreed a document which became Exhibit 201. It was a form which listed each identifying witness, specifying the number of identification parades that witness had attended, and compared the number of suspects which that witness had identified with the number of actors who had been identified and who therefore were misidentified.

21. When the jury retired - and indeed it is likely during speeches and the summing-up - they had this document before them. We are told also that during his address to the jury, Mr Iu, who appeared for this applicant, made reference to this misidentification by the witness on no fewer than four occasions. It is highly unlikely in the circumstances that the jury were misled by what the judge said. It is to be noted that no counsel at the trial noticed this misdirection and brought it to the judge's attention.

22. But that is not an end of the matter. The evidence before the jury of identification of the applicant, if accepted, was overwhelming. There were a number of witnesses who identified this applicant not only as being present with the mob but identified him as a person who was setting fire to a bed; who was carrying blankets towards the burning hut; who was inserting burning blankets into the hut; who was breaking into the hut; and who was standing later at the end preventing people from leaving the hut and beating those who tried. The evidence of the witness about whom the jury asked the question did not stand alone.

23. It is always an error to speculate about the thinking of a jury. It suffices to say that the question which the jury asked does not certainly indicate that the jury were relying upon that witness and no other. As advanced for the Crown, the question is equally open to the interpretation that the jury was asking for a further help on the differences between murder and manslaughter. But we decline to enter into any speculation as to the meaning of that question. So far as the misdirection is concerned, that cannot have influenced the jury. We reject this ground of appeal.

24. Two other matters are raised about a minor misdirection on the length of time that the witness had to observe the applicant and a lie which the witness told to the police when first interviewed. There is nothing in these points. In the result, we refuse the application for leave to appeal.