THE QUEEN v. TRAN VAN PHI

                Before giving the judgment of the court we think we should record that Mr. Percy appeared before us this morning on the instructions of the DLA to inform us of a development which incurred after the date of the applicant's conviction. We were told that the DLA has received a letter in which the writer asserts that at the time of the attack on the deceased the applicant was present with the writer at his sister's home.

                Plainly, if this were true, the applicant could not possibly have committed the murder. We were told that all attempts to locate the writer have proved unsuccessful, although initially he agreed over the telephone to attend at the Legal Aid Department in order to give a statement. However he failed to do so. We understand that he has been placed on the missing persons list. Mr. Percy frankly conceded that he could not do more than observe that had this person attended at the Legal Aid Department and sworn an affidavit as to the truth of the matters which he alleges, and if this court were satisfied that there was good reason why he had not been called at the trial, it might then consider whether on the basis of that evidence it should quash the conviction as being unsafe and unsatisfactory and order a new trial. Mr. Percy further informed us that he was unable to advance any arguable grounds of appeal. Very properly, however, he indicated that he was willing to assist the court if called upon to do so.

                He made it plain, however, that he was not making any application on behalf of the applicant for leave to call fresh evidence, and that in the circumstances he could not properly do so. His concession that the material placed before us is not sufficient to ground such an application is undoubtedly correct. We should also observe that assertion made by the letter writer is in stark conflict with the alibi evidence given by the applicant at trial.

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JUDGMENT OF THE COURT

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Macdougall, J. A.:

1. The applicant was tried before Mortimer, J. and a jury on an indictment containing two counts, murder and unlawful wounding, and was found guilty of murder but not guilty of wounding. He now applies for leave to appeal against his conviction for murder.

2. The evidence for the prosecution came principally from two witnesses, the brother of the deceased and a friend of the applicant. The deceased's brother, Binh, testified that at about 10 p.m. on the 6th May 1989 he had returned to his dormitory in the Sham Shui Po Vietnamese Refugee Camp and was seated on a bunk with the deceased and talking to a man named Mung. Shortly afterwards the applicant accompanied by four or five other men entered the dormitory and approached them. Binh knew the applicant as both men had been living at Hei Ling Chau Camp before they were transferred to the Shamshuipo Camp. Indeed they had both attended the same. English class at the Sham Shai Po Camp and Binh had borrowed the applicant's pencil sharpener from time to time during class. He therefore recognised the applicant on this occasion.

3. When the group of men had approached to about two and half metres from where he was sitting, Binh noticed that they were holding sharpened pieces of iron about 30 c.m. long and with cloth handles. The applicant walked past Binh, stood in front of the deceased, who was seated only one metre from Binh, and seized him by the collar. The applicant's companions stood on Binh's right. When the deceased asked the applicant what it was that caused him to bring people to attack him the applicant replied "I come here to stab you to death." With that the applicant stabbed the deceased in the left side of his chest. One of the applicant's companions then attempted to stab Binh, but Binh raised a hand to protect himself and managed to deflect the blow. In doing so he sustained a wound. A struggle ensued in the course of which Binh fell down in an attempt to escape. The same man attacked him again. As Binh managed to regain his feet and began to run away, another man attacked him and inflicted a blow on his left upper arm. Eventually he succeeded in making his escape. The attack on Binh formed the subject of the wounding charge.

4. The deceased also suffered a stab wound to the centre of his forehead, which caused both a depressed and a comminuted fracture but did not injure his brain, and a stab wound to his upper left forearm. However it was the stab wound to his chest which penetrated his lung and pulmonary artery that caused his death.

5. At the time of the attack the camp was undergoing one of its periodic power failures, and candles and lamps were being used by the inmates. Binh said that the lighting  was good enough to permit him to read. A man named Thanh who occupied the upper bunk in a tier of three, testified that he was awakened by a bump against his bunk. He looked down and he saw the deceased bleeding from the chest and sitting on the bottom bunk of tier of bunks diagonally opposite the one on which he was lying. He was able to see him with the aid of candlelight. He said it was a commonplace for the families living in the vicinity of his bunk to use candles and lamps whenever there was a power failure.

6. At about 12.15 a.m. the same night a Mr. Lam, who was born in Vietnam but had come to Hong Kong in 1978 and had become a close friend of the applicant, was awakened by a knocking at the door of his residence and the applicant calling to him to be admitted. When Mr. Lam opened the door he noticed that the applicant's face was very red and that his breath smelt strongly of liquor. The applicant then told Mr. Lam that he had drunk a great deal of wine and that he had suffered a gambling loss and had had an argument with a person inside the closed camp during the course of which he had killed him by stabbing him in the heart. Mr. Lam advised the applicant to surrender himself. Following this conversation the applicant failed to return to Sham Shui Po Refugee Camp and it was not until 18th July, some two and half months after the killing, that he was finally apprehended by the police.

7. In a cautioned statement to the police, the applicant asserted that on the fatal night he had been playing cards with the deceased and four Vietnamese whom he did not know. The deceased cheated and took the other players' stakes. A quarrel then erupted in the course of which the deceased beat the four unknown men. The applicant, who was frightened, simply stood aside and took no part in the fight. Soon afterwards he decided to ask the deceased to return him his money, so he went to the deceased's hut and was standing beside his bunk recounting the gambling incident to Binh, who was present with the deceased, when suddenly three or four men rushed forward and attacked the deceased. The applicant was unable to say whether any of these assailants belonged to the group with whom he had earlier been playing cards. However, in view of this situation, the applicant returned to his own bunk in another hut. Shortly afterwards when he was told that there had been a fight in which iron weapons had been used, he thought that Binh would suspect him of having been one of the attackers. It was because of this fear that he then decided to flee from the camp immediately. This accounted for his disappearance until his ultimate apprehension by the police.

8. In his evidence before the jury the applicant denied that he had taken part in the attack on the deceased. He stated that Binh had either been mistaken or had falsely accused him; that his former friend, Mr. Lam, now hated him and had decided to frame him because he owed the applicant money and the applicant had failed to honour his promise to obtain girls for him; that the police and the interpreter had assaulted him and that the statement which he gave to the police was either incorrectly recorded because of inaccuracies in the statement taking officer's notes or because of difficulties the applicant had experienced in communicating with the interpreter who spoke with a southern Vietnamese accent whereas he was a native of North Vietnam.

9. As to the incident itself, the applicant testified that at about 9 p.m. on the 6th May he joined a group of five persons consisting of the deceased and four strangers who were gambling on a bunk in a dormitory in the camp. The deceased cheated. A quarrel broke out and one of the other men rushed at the applicant who succeeded in knocking him down. There was a scuffle between the deceased and the others which ended when the deceased ran away. The four strangers then departed leaving the applicant at the scene. At this stage Binh appeared armed with an iron bar and demanded to know the identity of the strangers. The applicant protested that they were unknown to him, and left the dormitory to return to his own bunk.

10. Around 9.35 p.m., as he had already planned to take a ferry to see his relatives at Chi Ma Wan Tamp on the following day, he packed his belongings and set out from Sham Shui Po Camp for Pillar Point Refugee Camp with intention of spending the night there and getting an early morning start. There he visited a friend named Toan and his wife, and it was from them that he learned that it was necessary to make a prior application for permission to visit the Chi Ma Wan Camp. As he had failed to make an application he decided to postpone the trip. He stayed the night with Toan a his wife, and on the following day he and Toan went for a swim as a result of which he contracted a chill and was ill for three days during which time he remained with Toan at Pillar Point Camp. After he had recovered he returned to the factory at which he had been employed and found that he had been dismissed. He then returned to his friend Toan at Pillar Point Camp and stayed with him while looking for fresh employment. It was not until week after he had left the Sham Shui Po Camp that he learned that the deceased had been stabbed to death.

11. The applicant denied having visited Mr. Lam on the night of 6th and 7th May. According to him it was not until June that he telephoned and met Lam hear the Sham Shui Po MTR station. As they had both heard about the fatal incident, they naturally discussed it. The applicant told Lam that he had gambled with the deceased on the night of the killing and that he surmised that as the applicant had taken other gamblers' stake money it was possible that they had been responsible for his death. He also told Lam that Binh might have misunderstood his role in the matter when fact he had not been involved in the fight.

12. The applicant further testified that he had fallen out with Lam over loan of $3000 which Lam had made to him on the understanding that the applicant would obtain some girls for him, and that in July Lam had scolded him for having failed to provide the girls and had demanded the return of his money. The applicant promised to repay him within two weeks, but Lam was very angry and threatened to hunt him down and beat him to death or to hire someone to do it for him. It was therefore likely that this was the reason that Lam had given false evidence against him.

13. The grounds of appeal drafted by the applicant himself were nothing more than a repetition of the evidence which he gave before the jury. After a careful examination of the transcript of the evidence and the summing up we are unable to find any arguable grounds of appeal. Indeed Mr. Percy who appeared for the applicant on the instructions of the Director of Legal Aid frankly conceded that he had come to the same conclusion.

14. The judge carefully and accurately directed the jury on all material aspects of law including the burden of proof, the dangers inherent in identification evidence, the effect of lies both generally and, in particular, in relation to alibi. He warned them that flight does not prove a case against an accused person and that it may be actuated by a fear of being falsely convicted of a crime.

15. On the evidence before them the jury were clearly entitled to come to a verdict of guilty of murder. The acquittal on the wounding charge was perfectly explicable in the light of the judge's direction that as it was one of the men who accompanied the applicant who had wounded Binh, the applicant would only be guilty on that count if the Crown proved that the wound was inflicted in the course of a joint enterprise in which the applicant was a participant, and that if the attack on Binh might have been something which occurred completely outside the scope of the joint enterprise and was not within the applicant's contemplation he would not be guilty.

16. For these reasons the application for leave to appeal against conviction is refused.