R. v. TRAN DINH THANH and Another

IN THE COURT OF APPEAL

1993, No.608
(Criminal)

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J U D G M E N T

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Silke, Acting C.J.:

1. This is the judgment of the court.

2. Four defendants appeared for trial before Duffy J. and a jury on an indictment containing a single count of murder. The particulars were that they, on 7th September 1992, at the Whitehead Detention Centre, Shatin, New Territories, murdered Nguyen Van Hoa.

3. At the conclusion of the trial, the 1st defendant, Tran Dinh Thanh, and the 2nd defendant, Tran Xuan Uyen, were convicted and sentenced to imprisonment for life. The 3rd and 4th defendants were acquitted. The 1st and 2nd defendants now seek leave to appeal against their conviction.

4. The victim resided at Hut 9A in section 7 of the Whitehead Detention Centre - "Whitehead". At about 5.15 p.m. of 7th September 1992 he was stabbed in the chest and the left arm. He was taken to hospital and there was certified dead. The stab wounds to the chest had damaged both his heart and his lungs.

5. On 22nd September, an identification parade was held at Lai Chi Kok Detention Centre. The actors on that parade were inhabitants of sections 1, 2 and 10 of Whitehead. Both defendants were identified by Luu Van Xa (PW1 at trial) and by Dang Duc Thieu (PW2 at trial). On being informed of the identifications, both defendants stated they were known to the identifiers in any event and that is why they had been identified. In the course of their evidence at trial Luu and Dang spoke of seeing the stabbing of the victim by both the defendants. At the trial the 2nd defendant, and the two accused who were acquitted, gave evidence.

6. There was evidence which, if believed, went to show that the acquitted men encouraged both the applicants to stab the deceased which they then did. Neither of the acquitted defendants was carrying a weapon and neither of them inflicted any injury.

7. The Crown's case was based on a joint enterprise by all four of the defendants, the evidence of which came from the identifiers Luu and Dang.

8. There was also before the jury confessional statements made by the convicted defendants. As the trial judge indicated to the jury the prosecution case divided itself into three sections. Firstly, the witnesses from Whitehead including Luu, Dang, the victim's widow and officers from the Correctional Services Department. Second, the police witnesses who spoke of the arrest of the two defendants and of their interviews. Thirdly, the admitted pathologist's evidence, the answer to charge of the 2nd defendant and two statements of admitted facts.

9. It was the evidence of Luu and Dang that the victim was attacked by all four defendants aided by a fifth man who was not before the court. These five men had loitered outside the dining hall and, as the victim passed that dining hall, the 4th defendant grabbed his hair from behind and pulled him backwards while the 3rd defendant held his shoulder with his right hand having put his left arm around the victim's neck. The 3rd and 4th defendants shouted "Stab him, stab him to death" whereupon the 2nd defendant approached and stabbed the victim three times, once in the middle of his chest and twice on the left side of his chest. The 1st defendant then entered the fray, stabbing the victim on the left arm twice. After being stabbed, the victim managed to break away and ran towards the gate to section 7, out of it and into section 8. He was chased by all four defendants. During this incident Luu said he was at the door of the dining hall and Dang said he was standing under the roof projection at the side of Hut 10A. There was no one else in the vicinity. Luu admitted being a good friend of the victim. Dang was an uncle of the victim's widow. Both of them denied any knowledge of why the attack should have taken place and denied that the victim was a "big brother" in the camp, a man who demanded money with menaces, a bully and an unpleasant and unpopular character. Both gave their first statements to the police some nine days after the incident and they gave contradictory accounts as to why they had waited for so long. Neither Luu nor Dang were impressive witnesses. The judge at page 35S directed the jury that:

" The prosecution ask you to rely on these two witnesses against all 4 defendants. As I have told you, if you are going to rely on them, you would convict all 4 defendants of murder. But I would suggest to you that you should be very careful about the evidence of Luu and Dang and the evidence of the deceased's widow. You, members of the jury - it is a matter for you - but you may find quite incredible their claim that they did not know what was going on in section 7 in relation to the deceased, and why these defendants should be in conflict with him. If that is so, if you find that incredible, you would treat with a great deal of suspicion that they - their claim that they witnessed an unprovoked attack by the defendants."

10. The reference to the evidence of the deceased's widow was a reference to her saying to the jury that Luu had spoken to her one or two days after the incident telling her he had witnessed the events. Luu denied that he had spoken to anybody at all about what he had seen before he gave a statement to the police some nine days later.

11. A little later in the summing up, the judge was even more emphatic as to the unsatisfactory nature of the witnesses Luu and Dang. Having referred to the circumstances of life in a camp such as Whitehead and the opportunities which arise for bullying, for exploitation, for sexual harassment, for small time racketeering, and to the seizures of weapons in that camp, he said to the jury at page 36S:

"How likely is it do you think, members of the jury, that neither LUU nor DANG knew what was going on? LUU in fact - you may remember it being given in evidence - had already been in trouble in fact in the camps before the incident. If you do not believe these men, if you think you could not rely on these men to tell you what time of the day it was, then you must be very careful about accepting their description of the incident on 7 September when the deceased met his death."

12. It was not disputed that the 1st and 2nd defendants did stab the victim. The issue was the circumstances in which that stabbing took place. The defence relied on self-defence and provocation which emerged from the cautioned statements they had made and from the evidence at trial of the 2nd defendant and the 3rd and 4th defendants. The cautioned statements of each defendant made reference to the other. The trial judge was at pains to make it quite clear to the jury that they must consider the case of each defendant separately and that what one said about the other in an extra judicial statement must not be taken into account against that other. He gave the jury very firm directions on this aspect.

13. Both defendants contested the voluntary nature of their confessional statements, making allegations against the interviewing police that they had been assaulted and that at least portions of their statements were concocted by the police. Again, the judge directed the jury very properly on this aspect of the matter by saying at page 40D:

" If you come to the conclusion that there were improprieties on the part of the police, if you think the police assaulted the defendants or either of them or think that possibly might be so, then obviously that will cause you to doubt the reliability of these statements. Of course if you think the statements came from police minds, rather than the defendants' minds, that these are not admissions made by the defendants at all but accept they are made up by the police or think that might possibly be the case, then of course you would not rely on them at all.

You have got to be satisfied that the statements are the products of the minds of the defendants before you can rely on them at all, and you are have to be satisfied of that beyond reasonable doubt. If you are satisfied that they came from the mind of the 1st and 2nd defendants and were not concocted by the police or suggested in any way by the police, you must then decide, if they are true, do they tell you the truth about what happened on 7 September?

If there were police improprieties or might have been, are you satisfied that these statements are reliable? You must decide. Your decision about their reliability will depend on what decisions you make as to how they were taken. If you accept the decision - the evidence of the police officers that they were accurate records of what the defendants said without any pressure being brought to bear upon them, then you might think it right to rely on them. But if you decide - if what the defendant said in his statement was not made by the defendant but made by the police, then of course you would not rely on the statements at all."

14. All the evidence of what had taken place from the time of arrest of the 1st and 2nd defendants was fairly and properly left to the jury, as were the allegations made by the defendants and the defendants' evidence of them. He reminded the jury that in respect of the 1st defendant no evidence had been given to support the allegations made in the course of cross- examination, but that the 1st defendant relied on the fact that no caution was given to him immediately upon arrest and the fact that there was a failure to report to the duty officer immediately upon his arrival with the police at the Siu Lek Yuen Police Station. The police officers concerned had given explanations. The point being taken on behalf of the 1st defendant was that the police were treating the case with less care and propriety than they would normally do because the defendant was "only" a Vietnamese boat person.

15. In his first statement of 7th September, the 1st defendant said that he had been attacked by the victim and others at about 1 p.m. in Hut 1A and that there was a demand by the victim for money to be paid to him. Later at about 5 p.m., at the entrance of Hut 9A, the victim was told that there was no money to pay him. The victim then assaulted another man and, as the 1st defendant put it:

"I went mad at that time. I used the knife I brought along from the hut to stab at his back."

16. He went on, in answer to questions put to him by the investigating officer, that the victim was the one who had hit himself and his group many times; that the victim was the "big brother" in the camp and that he had asked them for money many times; that there were threats from the victim to beat them up again if money were not paid.

17. On 8th September, the 1st defendant was shown two homemade knives and he identified one of them as the knife he used to "stab the back" of the victim.

18. On 9th September, in a further statement, he denied owing any money to the victim but stated that the victim had beaten him and forced him to pay money - $290 in July 1991 and $350 in June 1992.

19. The 2nd defendant in his first statement said that at 1 p.m. the victim and several of his friends had come to beat him and to ask him to pay money. Then at 5 p.m. he had gone to the compound of section 7 look for the victim intending to say he was sorry and that he would give him money in future. But a quarrel then ensued with the victim grabbing the 2nd defendant by the hair and dragging him into a hut intending to beat him. It was at that point that the 2nd defendant stabbed the victim once in the belly with a knife. The purpose being to give the victim a warning. The 2nd defendant then fled, looked back and saw the 1st defendant holding a knife with blood on it. They then fled together. The 2nd defendant, like the 1st, said that he had paid money to the victim on prior occasions. He admitted that before the attack he had picked up the knife which he was carrying from the ceiling of Hut 1A.

20. No issue was taken as to the propriety of the directions on self-defence which the judge gave the jury. Nor, with respect, could there be for they were full, complete and impeccable. The only issue that is taken is in relation to the directions on provocation. The general ground of appeal argued by Mr. Callaghan, who appeared for both applicants in this court, is that the convictions of both the defendants were unsafe and unsatisfactory because of the nature of those directions, and the particulars of the ground related to those directions.

21. It is submitted that those directions were confusing as to the onus of proof and, while the trial judge had told the jury that it was not for a defendant to prove he was acting under provocation, he effectively withdrew that direction by telling the jury that they should be sure of the truth of the evidence concerning provocation. Further, that the trial judge invited the jury to draw an inference as to the conduct of both the appellants in respect of the issue of provocation which was not an available inference on the evidence. This particular was not pursued by counsel.

22. Mr. Callaghan has drawn our attention to a passage on page 16 of the summing up which started by the judge directing the jury as follows:

" Now if you are satisfied so that you are sure on the evidence regarding each defendant one and two in turn separately, keeping their cases separately, if you are satisfied that the Crown has established in either of these cases that self-defence is not a factor in this case, if they have satisfied you beyond reasonable doubt that the defendant was not acting in self-defence, then go on to consider whether the evidence in this case raises the question of provocation. Counsel have used that expression - provocation.

Once again remember, questions of provocation do not arise in the cases of the 3rd and 4th defendants and questions of provocation only arise if you reject the evidence of LUU and DANG. So if you accept LUU and DANG, questions of provocation do not arise because, as I have told you, if you accept LUU and DANG completely, then you will convict all four of murder."

23. Pausing here, it seems clear that in the light of the acquittal of the 3rd and 4th defendants, the jury were not prepared to accept, at least entirely, the evidence given by Luu and Dang. It would seem that they turned to the contents of the cautioned statements made by the 1st and 2nd defendants and to the evidence given by the defendants before them - other than, as we have indicated, that of the 1st defendant.

24. That passage in the summing up set the scene. At page 17 of the summing up, the judge clearly told the jury in unequivocal terms that it was not for a defendant to prove he was acting under provocation. It was for the prosecution to prove that he was not acting under provocation. Then, and this is the gravamen of the complaint by Mr. Callaghan, the judge shortly thereafter went on to direct the jury:

" Do you think in this case that as a result of the deceased's demands of money with menaces culminating in a demand made on 7th September 1992 - if you accept all that evidence - do you accept that in the case of the 1st defendant that he actually, as a result of all that, lost his self-control or might have lost his self-control suddenly and for the moment and stabbed at the deceased? Do you think the 2nd defendant, treating him separately, might have lost his self-control suddenly and for the moment as a result of things which had been happening up to the moment of the stabbing - things said and done by the deceased and his cohorts?"

25. And then in a passage immediately succeeding at page 18G the judge said:

" Or do you think this, members of the jury, do you think that either of them, the 1st or 2nd defendants, did not lose their self-control, did not lose their self-control but were merely angry at the deceased and sought to teach him a lesson? That is quite different, members of the jury. That would not be provocation. You have got to be satisfied that they temporarily, for the moment, lost control of themselves as a result of what had been said and done. " (Emphasis supplied)

26. It is Mr. Callaghan's submission that by the use of the phrase emphasised the trial judge was reversing the burden of proof and, in effect, withdrew from the jury or, at the very least, watered down his earlier direction that it was for the prosecution to prove that the defendant was not acting under provocation.

27. This application in reality turns on our view of the use by the trial judge of the word "satisfied" which, it is Mr. Callaghan's submission, cast a non-existent burden on the defendants.

28. At page 17M, the judge had defined provocation in these terms:

" A generally accepted definition of provocation is this: some acts or a series of acts or words spoken which would cause in any reasonable man and actually did cause in the defendant a sudden and temporary loss of self-control rendering the defendant so subject to passion as to make him for the moment not master of his mind. You must, first of all, consider whether the defendant, as a result of provocation - things said or done - whether as a result of that he lost his self-control or do you think that is reasonably possible."

29. Mr. Schapel, who appeared for the Crown in this court, emphasised the phrase "or do you think that it is reasonably possible". That was a phrase used again by the trial judge at page 18Q in the passage which started:

"If you conclude that either defendant was provoked and did lose his self-control as a result of that provocation, then you must go on to consider whether the provocation, what caused him to lose his self-control, was enough to make a reasonable man do as the defendants did or consider whether that is a reasonable possibility."

30. The second limb of provocation.

31. At page 20 J-K, the trial judge repeated that neither defendant had to prove that he had been provoked and that it was for the Crown to disprove provocation and at the conclusion of his consideration of the evidence given by the 2nd defendant, the judge at page 59H said to the jury:

"If you accept that account, you will only convict the 2nd accused of murder if, on the evidence, you are satisfied that the Crown have established beyond reasonable doubt the questions of self-defence and provocation do not arise."

32. It cannot be said that this jury was in any way under directed on the facts or on the law. The issues were very fully and very clearly placed before them. Provocation does not arise out of thin air; there must be some evidence of matters which could, were the jury to accept them, give rise to provocation sufficient to reduce a charge of murder to one of manslaughter. In hindsight, the use at page 18 of the expression "You have got to be satisfied" was perhaps unfortunate. It has certainly given rise to the point of law argued by Mr. Callaghan. But we are firmly of the view, in the light of the clear and precise directions given at other places in the course of this long summing up, that this isolated passage did not have the effect that Mr. Callaghan contends. It did not misplace the burden of proof. The jury could have been under no illusion where that burden lay. In our judgment, what the judge was really saying in the impugned passage was that there had to be some evidence upon which a properly directed jury could find the existence of provocation, bearing in mind that it was for the Crown to disprove provocation not for the defendants to prove it.

33. We consider that the judge did, although not in the exact terms, give the standard direction approved in The Queen v. Lai Hon Man, Criminal Appeal No.421 of 1992 at page 3 which reads:

" Because the prosecution must prove the defendant's guilt, it is not for the defendant to prove that he was provoked. The prosecution must make you sure that the defendant was not so provoked, before you can convict him of murder. If you are satisfied that he was provoked, or if you think that he may have been provoked, then you can only convict him of manslaughter."

34. We have no doubt that the jury were in no way misled.

35. At the conclusion of the hearing, we granted leave to appeal, treated the hearing of the application as the hearing of the appeal but dismissed the appeal stating we would hand down our reasons later which we now do.