THE QUEEN v. NGUYEN VAN LOC AND ANOTHER

IN THE COURT OF APPEAL

1986, No. 160
(Criminal)

BEWEEN

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JUDGMENT

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Silke, J.A.:

1. Four defendants were indicted for, and stood trial on, a single count of murder. The particulars alleged that they did, on 21st August 1985, in Kai Tak Refugee Camp, Ngau Tau Kok, murder Ly Phat Phuc. The second and third Defendants were convicted and now seek to appeal against those convictions.

2. The 1st Defendant was acquitted and the 4th Defendant, Do Yan Hung, of whom more later, was directed to be retried on the same indictment, the jury having disagreed.

3. The prosecution evidence concerning the two Applicants came from four witnesses:

1. Ly Cho Dong - 'Ah Dong', PW6

2. Tran Thine Bao, PW7

3. The wife of Mr. Tran, Phan Bich Ngoc, PW8, and

4. Pram Ah Ha, PW9.

D4 also gave evidence concerning them.

4. Ah Dong said that he came to Hong Kong in April 1979 as a refugee and lived since then in the Kai Tak Refugee Camp. In August 1985 he lived in Block 6 cubicle No. 80 with Ly Phat Phuc - "the deceased". On 21st August the deceased had left the cubicle first and Ah Dong left later. Ah Dong returned about 3 O’clock in the afternoon to find his cubicle door open. He saw a man ransacking the place. He questioned this man as to why he was stealing his things, caught him by his collar and then another man, who was present, asked Ah Dong to give him a chance”. Ah Dong, whose nickname was Tsimshatsui, wanted to take the man he had caught to the police station but the man pulled a pair of pliers out of his pocket and stabbed towards Ah Dong. Ah Dong released him. Ah Dong thought that the man he apprehended was the thief and that the second man was acting as a lookout. A report was later made to the camp authorities.

5. At about 9 o'clock that evening An Dong and the deceased went to a light refreshment stall in the camp for tea. There were other people at the stall and, while there, Ah Dong said he heard a woman shout out. He went to take a look and he saw the two men whom he had caught at his cubicle.

6. He was then attacked by them with knives and there was a third man involved. One of those three held a water pipe.

7. Ah Dong ran away, having tried, but failed, to pick up a pair of soft drink bottles. He had been preceded in his flight by the deceased. Both of them ran into Block 6. The armed men chased after them. The deceased ran into a passageway opposite their joint cubicle. Ah Dong ran straight ahead. When he reached the balcony of Block 6 he saw a mop handle which he picked up. While he was there he saw a man pointing a knife at him and he again ran away outside Block 6 and in the direction of the Administration Block. He says that while he was doing this the three men turned back to intercept him and he snatched either a knife or a chopper, he was not sure which, held by one of those persons. He was surrounded by four persons by that time and he threw the instrument at one of them the 2nd Defendant. He was still holding the mop handle.

8. He ran towards the door of the Administration Block and to the front entrance attempting to run outside the camp itself. When he reached an iron gate he was unable to run further as it was locked. The four persons caught up with him and he used the mop to hit one of them. He ran back into the Administration Office.

9. Ah Dong identified the 2nd Defendant as the one whose collar he had grabbed and whom he had apprehended in the act of ransacking of his cubicle and the 3rd Defendant as the person he thought to be the lookout. And he went on that the first group of three persons he had seen approaching him after he had heard the lady shout comprised the 2nd, 3rd and 4th Defendants.

10. He added that when he was following the deceased into Block 6 he heard the deceased scream out saying “Is it really fatal” and that he saw the three persons whom he identified running in after the deceased. He did not see what happened to the deceased.

11. The deceased suffered a stab wound which formed two internal tracks, one 16 cm long and which were consistent with having been inflicted by a water pipe. He died as the result of those wounds. Dr. Cheung, the forensic pathologist, thought an exhibit, P2; could have been that water pipe. It had been found in a ditch nearby.

12. Ah Dong was subjected to a lengthy cross-examination and inconsistencies began appearing in his evidence; in particular as to positionings and as to what part was played in the incident by the 2nd, 3rd and 4th Defendants. Further inconsistencies were indicated to him as between his evidence and his prior statements to the police.

13. PW7 Mr. Tran and PW8 Madam Phan were onlookers. They did not live up to their proof. Application was made to treat them as hostile and this was granted.

14. We have some reservations as to the extent of their hostility but nevertheless they were cross-examined by Mr. Sakhrani, Q.C., who then appeared for the Crown, and portions of signed statements which they had made to the police were put to them. Some of those parts they adopted, some they did not. Generally it was their evidence that a great deal of that which they had said to the police was hearsay - in the sense of details having been told to them by other persons - and that in certain cases they did not say that which their statements indicated they had. They said that they had told the police of the hearsay origin of that which they said but that this had not been taken down by the person recording their statements. Their evidence, such as it was, lay for the jury. The jury required to be directed as to how they should treat such witnesses.

15. Pram Ah ha, PW9, - “Pram” - was also a refugee living in the camp. He was acquainted with the deceased. On the relevant night Pram was gambling in the camp. While gambling, Ah Dong, whom he also knew, came up and spoke to him - Ah Dong's sister was married to his cousin - all this at the light refreshment stall close to Block 6. He went on that after Ah Dong had spoken to him Ah Dong left the stall and about 10 minutes later he heard somebody saying that there had been a fight. He stopped gambling and started to leave the stall as he did not want the police to find him there. While doing so he saw Ah Dong again and Ah Dong was at that time holding a knife or a chopper and was scolding people, accusing them of stealing his property and saying that he wanted to chop them to death. Pram described the situation as a “fighting one” and one which was very confusing. People were running. He did not see anybody present who was injured. Later, after he had returned to his hut, he went to the doorway to look out and he saw someone running past who was hurt. Then he saw another person emerging from a block and who fell. That person was the deceased. He could not identify the first running injured man.

16. In cross-examination Pram elaborated upon the conversation which he had had with Ah Dong and said that Ah Dong had told him he had lost $10,000 from his cubicle. He told Ah Dong that he would not be able to attempt to get that, back for him because it would mean a fight and he wished to continue gambling. He denied having seen the 2nd Defendant at the stall that night with his head bleeding. It was pointed out to him that he had said in a statement to the police that he had in fact seen a Vietnamese “the guy that burglared the premises” at the stall with a bleeding head.

17. It will be obvious that his evidence conflicted greatly with that of Ah Dong both as to sequence of the incident and as to the events which took place.

18. One of the defence witnesses, Pham Van Huy, stated that he was with the 2nd Defendant at the stall: that Ah Dong came up and that he was holding a knife - a white knife with a black handle. Ah Dong said "there he is" pushed the 2nd Defendant against a wall and chopped him. Pham Van Huy tried to intervene but was kicked for his pains. This last was consistent with the evidence given by the 2nd Defendant.

19. The 4th Defendant - "D4" - had given a cautioned statement. This was admitted into evidence in the course of the prosecution’s case. Having read that statement, and it was adopted in full in the course of the evidence given by D4 at trial, the basis of its admission seems doubtful. It was exculpatory and did no more for the prosecution than place D4 at the scene as an onlooker.

20. He said that he had seen a fight. He himself, he says, was holding an umbrella and never a water pipe. He had walked past the library, having gone there to borrow some books but, finding it closed, he then went on towards the centre of the camp and to Block 6. When he neared Block 6 he saw 5 or 6 persons walking in and out of it and near the refreshment stall. The stall was very crowded. He stated that he saw the 2nd and 3rd Defendants standing in the middle of the road. The head of the 2nd Defendant was wrapped with a bloodstained towel and he held a small knife. The 3rd Defendant held a chopper. He also saw the deceased and Ah Dong standing near the stall and the deceased held a chopper which was stained with blood. He heard Ah Dong say to the deceased in a low tone “Let him come in”.

21. He went on that he saw the 2nd and 3rd Defendants approach Block 6, the 2nd Defendant going ahead “hastily". When Ah Dong and the deceased saw the 2nd and 3rd Defendants they ran into Block 6. D4 followed. He saw the 2nd and 3rd Defendants going along a passage inside Block 6 with Ah Dong and the deceased leading them along the same passage and in that order. He saw the 2nd Defendant chase after the pair. They turned into a cubicle. He saw the deceased turn back and strike downwards with his knife while the 2nd Defendant, who had come up to him, at the same time struck upwards with a small sharp knife. At that point everybody dispersed and ran away.

22. It was, briefly, the defence of the 2nd Defendant that he had had a quarrel, that he did chase the deceased but that he did not enter the corridor, desisting from any further pursuit at that point as he had become dizzy. The 3rd Defendant said he was not a participant at all, simply writing in his bed space when the 2nd Defendant came in covered in blood. He took him to an entrance gate where the police arrived and took over. On arrest on 11^th  September he jumped into the sea because he was afraid he might be shot.

23. So the jury had for their consideration a welter of contradictory evidence which needed careful directions.

24. The trial judge began his summing-up by handing certain written questions to the jury. He dealt with them in order at its outset. This was, with respect to him, an unfortunate course to take. Putting specific questions to a jury may, on rare occasions, be of assistance but here the time at which they were brought to the jury's attention and their nature could only have caused confusion.

25. The questions were first: was there self-defence? then, second, if the answer was “No”, was the fatal injury inflicted with the intention (1) to kill or (2) to cause really serious injury: then third, if the jury did not think there was such intention, was the offence manslaugnter. The following three questions concerned the issue of provocation. Self defence, manslaughter of itself and provocation bore no relation to the case either for or against the 2nd and 3rd Defendants. They did not relate in any way to the case of the 4th Defendant. His evidence - and it was clearly a cut throat defence, this emerges both from questions put by counsel then appearing for him and by the nature of that counsel's final address to the jury - was put on the basis of extracting him from any involvement in the murder. To put these questions at the outset of the summing up and without being preceded by a full evaluation of the whole of the evidence with an explanation as to why they were being put was unhelpful.

26. On the hostile witnesses, and their evaluation by the jury, the trial judge provided little if any assistance. The jury heard portions of their statements put to them. They also had before them the cautioned statement of the 4th Defendant which, as we have said, closely followed his evidence. They needed to be warned that such statements were not of themselves evidence and told that they could not rely on them in any way as being supportive evidence. They did not get such warning. The judge did warn the jury that Ah Dong was a witness whom they would have to treat with “very great care”. He went on, specifically as to Ah Dong's evidence concerning the 1st Defendant - whom it will be remembered was acquitted but it applied generally:

“Now here was Ly Cho-dong: There is really no evidence that you can find which would prop him up, as it were, on this aspect. There is no evidence that you can find which supports his allegation that the 1st defendant was a member of that group.”

And again

"The safest thing is to accept him only where I (sic) can find other evidence which tends to support the truth of what he says.”

27. The trial judge referred to the witnesses having difficulty in describing the incident. He said that Ah Dong's evidence had "revealed weaknesses” and he referred to his "unreliability”. (p. 765)

28. Given the complex nature of the evidential contradictions, and indeed of the direct conflicts in the evidence of prosecution witnesses; the evidence of the 4th Defendant; the unfortunate questions posed to the jury and their nature and timing; the manifest unreliability of Ah Dong; the suggestion that the jury should look for evidence to “prop him up”, and that as to neither the cautioned statement of the 4th Defendant nor those portions of their statements put to the two hostile witnesses were the jury warned that they were not evidence of themselves, we think these convictions to be unsafe and unsatisfactory.

29. As a matter of passing note. When the 4th Defendant was retried before another judge and jury, the main evidence being that of Ah Dong, that jury was directed to find a not guilty verdict.

30. The appeals are allowed and the convictions quashed.