R. v. BUI NGOC HIEN and Others

IN THE COURT OF APPEAL

1994, No. 207
(Criminal)

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J U D G M E N T

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Barnett, J. (giving the judgment of the Court)

1. This appeal arises out of yet another disturbance in one of the detention centres for Vietnamese refugees. In the disturbance, one man was killed and two were wounded.

2. The 1st Applicant (A1) alone faced one count of murder which was count 1 on the indictment. All three applicants faced two joint counts of wounding with intent, which were counts 2 & 3 on the indictment. A1 and the 3rd Applicant (A3) were found to have no case to answer in relation to count 3. After trial the applicants were found guilty by a jury. A1 was sentenced to life imprisonment in respect of count 1 and eight years imprisonment on count 2, those sentences to run concurrently. The 2nd Applicant (A2) was sentenced to 8 years and 5 years imprisonment on counts 2 & 3, the sentences to run concurrently. A3 was sentenced to 7 years imprisonment on count 2.

3. A1 seeks leave to appeal against his convictions. A2 & A3 seek leave to appeal against both conviction and sentence.

4. Tran Tien Dung (Dung), who was killed in the disturbance, and Nguyen Van Hoa (Hoa) who was the victim of count 2, were the leader and secretary respectively of the Peace and Order Committee in Section 8 of Whitehead Detention Centre. On 15th April 1993 at about 8:30 p.m. they had occasion to make a report on an incident in which A3 had allegedly stabbed a man called Duc. After compiling their report they would hand A3 and the knife thought to have been used in the attack to the centre's authorities to deal with. While the report was being compiled A1 came into the hut where the committee was sitting. He insisted that there had been no stabbing and that the word 'stab' in the report should be deleted and replaced by 'hit'. Thinking A3 to be an eye-witness, Hoa agreed to this. Later, however, A3's wife agreed that A3 had used a knife and stabbed Duc. So the report was amended again. A1 said to Dung and Hoa 'you guys wanted to write stab, I will stab you later'. A1 then went off with A3.

5. Dung and Hoa went to report to the authorities but, it being late in the evening and no senior officer being present, they were unable to do so. They returned to their huts.

6. In Hoa's hut there was a farewell party for some refugees who were about to return to Vietnam. The party appears to have continued happily until just after midnight when a series of events occurred within a very short period. It is not possible to say with certainty in what order they occurred or whether they occurred more or less simultaneously. But what appears to have happened is this. A friend of Hoa's called Thu (who is named in counts 2 & 3) called Hoa out of his hut saying that Dung wished to see him. Upon making his way outside, Hoa saw the 3 applicants, Thu and another man called Cuong who was also named in counts 2 & 3. According to Hoa's evidence, A1 asked Hoa why the report had been changed. Before Hoa could explain he was stabbed by A1, Thu and Cuong. At that point Hoa saw another man, Nguyen Van Vinh (Vinh) who was the victim of count 3, run up. Hoa was able to run away to his hut. A2 pursued him and stabbed him, at which Hoa fell down. Hoa's wife came and kowtowed to A2 to prevent a further attack. A3 and Cuong then approached. Cuong stopped A3 from stabbing Hoa, saying that they would go and do something to Dung.

7. Vinh's evidence was that he was in Hoa's hut when he heard Hoa called to go outside. Shortly after he heard a female voice call out that Hoa had been stabbed and he rushed out of the hut. He saw Hoa being chased into the hut by two men, namely A2 and Thu. Vinh wanted to stop them but was hit in the face by Thu, the man who had called Hoa out of the hut. Vinh was then stabbed in the arm by Thu. He felt pain and bent over, at which he was stabbed in the back by someone else.

8. At about the same time, Dung and another man, Nguyen Manh Hung (Hung), were in hut 19A having a chat. They heard a noise outside the hut and someone saying 'it is a fight'. Dung rushed out. Hung followed after getting his slippers. When he was outside, Hung saw Dung between two nearby huts crying out 'I was stabbed'. About 11 meters behind Dung, Hung saw A1 with his hands behind his back and, beyond him, a group of other people.

9. Meanwhile Dung made his way into hut 19A. There Pham Thi Ngoc (Ngoc) Dung's sister-in-law said she saw Dung come in and cry loudly 'My god! Hien Coi stabbed me'. Ngoc also said she heard Dung say the same thing to the hut representative Vu Hung Thanh (Thanh). Thanh attended to Dung when Dung climbed into a top bunk. Thanh dressed the single stab wound in Dung's abdomen. According to Thanh, all Dung said was 'someone stabbed me'.

10. After about 10 minutes, Dung was taken to the camp clinic. Various people accompanied him and saw him in the clinic. Hoa said he heard Dung say 'Hien of 17B stabbed me'. Vinh said Dung made some murmuring noises but could not make out what Dung was talking about. When pressed about it at the trial, Vinh said he was not sure but Dung's words seemed to be like 'Hien stabbed me'. Dung's wife, who was undoubtedly hysterical at the time, said Dung said 'Hien Coi of 17B stabbed me'. Hung said he was in the clinic with Dung for 5 or 10 minutes. All he heard Dung say was that it was 'so painful' and Dung groaned with pain. After that, he took Dung's wife outside. Thanh said that Dung said something like 'Hien of 17B stabbed me' but he could not be sure what intonation was used for 'Hien'.

11. The Crown's case against A1 in respect of murder depended entirely upon Dung's dying declarations because no one saw Dung being stabbed. At the close of the Crown's case, Mr. Lim, who appeared for A1 at the trial as well as on this appeal, made a submission of no case to answer. The submission was rejected by the trial judge. It is Mr. Lim's complaint on this appeal that the judge ought not to have rejected that submission.

12. Mr. Lim argued two grounds of appeal. First, he submitted that when Dung referred to "Hien Coi" or "Hien Coi of 17B" there was no evidence that he was referring to A1 because there was no evidence of how well Dung knew A1, or of whether he knew A1's nickname or A1's hut number. Accordingly, there were no primary facts from which to draw the inference that Dung was referring to the applicant.

13. We reject that argument. There was abundant evidence to demonstrate that Dung could have been referring to no one but A1. A1 had been present at the committee meeting earlier in the evening when he had threatened to stab Dung and Hoa. Then, if Hung's evidence was accepted as truthful and reliable as it appears to have been, A1 was seen a few meters away from Dung when Dung first complained that he had been stabbed. There was evidence as to the derivation of A1's nickname as "Hien Coi" and his hut number. While there was certainly another Hien in the section there was nothing to suggest that there was more than one Hien Coi of 17B.

14. Accordingly, we are satisfied that Dung was not using a common nickname that could have been referable to any number of people but rather a unique description which could only be attributable to A1. There is nothing in this ground of appeal.

15. Next, Mr. Lim argued that the evidence of the witnesses who allegedly heard Dung's declaration was contradictory and self-contradictory, that it was tenuous and suffering from such inherent weakness that the judge should not have left it to the jury. Furthermore, there was evidence from the pathologist that, having regard to the bleeding suffered by Dung, he would more likely than not have experienced some degree of difficulty in his speech some 20 to 25 minutes after the attack, that is at the time when he was in the clinic.

16. We do not accept that the evidence of the various witnesses was contradictory in such a way as to require its rejection. There simply were, between the accounts given by the witnesses, the usual inconsistencies and discrepancies which occur where witnesses are recounting what they saw or heard in a confused and distressing situation, and where the accounts are being given sometime after the event.

17. There were other drawbacks to the evidence of the witnesses, for example, Dung's wife who made no mention of what Dung is alleged to have said when she made statements to the police. It was not until about a year later that she made mention of this matter. This and other difficulties were dealt with by the judge in his summing up. No complaint is made about that.

18. Accordingly, we find nothing in the grounds of appeal directed to the conviction for murder.

19. As to his conviction for wounding on count 2, A1 was not represented. He said to us that he was totally innocent and that, because others had bad blood against him, the allegations had been fabricated.

20. A1 was identified both by Hoa and Hoa's wife. A1 gave evidence that at the time of the disturbance he was in bed in his hut. The jury were properly warned by the judge about the difficulties inherent in identification and were also warned about other problems with Hoa's wife's evidence. Notwithstanding those warnings, the jury plainly accepted the evidence of these two witnesses and rejected that of A1. We see no reason to interfere with the jury's finding.

21. Accordingly, we are satisfied that the conviction of A1 on each count was both safe and satisfactory. A1's application for leave to appeal against conviction is therefore refused.

22. A2 was not represented by counsel. In relation to count 2, the wounding of Hoa, A2 said in effect that Hoa's evidence could not be relied upon because he was in a coma and fell down. He also pointed out that Hoa's wife had said that the events were stuck in her mind for the rest of her life after she had had to kowtow. However, she did not immediately give a full account, particularly as to identification, to the police but only did so at a later date.

23. In relation to count 3, A2 said that Vinh had told the police that he could not identify anyone who stabbed him because it was dark, and had declined to attend an identification parade. It was only in court that Vinh purported to identify A2 as a person who stabbed him.

24. A3 was also unrepresented. In relation to count 2, upon which he was convicted, A3 said that he had indeed 'patted' the man Duk with a knife, admitted the incident to the committee and signed the report. He and his wife had then returned to their hut where he sat watching TV for a long while until camp staff rushed everyone back to their dormitories. He was arrested only two days later. He had nothing to do with any of the attacks.

25. It must be said that the judge dealt with counts 2 & 3 in a somewhat cursory manner. His review of the Crown witnesses and their evidence took 1½ pages. He spent another 1½ pages on the defence case, which amounted to no more than saying that counsel had brought this out in cross-examination and a reminder that Vinh had until trial said that he could not recognise the 2 persons who attacked him. Cursory though it was, we are of the opinion that the summing up was sufficient in relation to A2 and count 2.

26. In relation to count 3, however, it was defective in this respect. The judge said that Vinh told of being stabbed by Thu and the 2nd Defendant. The 2nd Defendant was A2. The transcript of Vinh's evidence, which we have scrutinized with the greatest care, does not show that Vinh at any time said he was stabbed by A2. Vinh's evidence was that when he went out of his hut he saw two men chasing Hoa. He wanted to stop them. One of them was Thu who hit him on the face and then stabbed him on the arm. Because he felt painful Vinh said he bent forward and felt another stab on his back. He did not know who it was who had stabbed him in the back. There was nothing in his evidence to indicate that A2 was anywhere near him at the time.

27. Given a proper direction, it is conceivable that the jury might correctly have convicted A2 on count 3. In the absence of such a direction, we are satisfied that the conviction of A2 on count 3 cannot stand. Accordingly, we allow A2's application for leave to appeal against conviction and, treating the application as the hearing of the appeal, we quash the conviction on count 3 and set aside the sentence of 5 years imprisonment. Subject to anything which counsel may have to say, we do not consider that we should order a re-trial.

28. Although as we have already indicated, the summing up was generally satisfactory in that the judge had reminded the jury of the relevant witnesses and the defects in their evidence, it contains another factual error. The judge told the jury that Hoa's evidence was that "each of these assailants had stabbed him". Hoa identified five assailants including A3. We have scrutinized the transcript of the evidence of Hoa with equal care. We are unable to find any reference to Hoa being stabbed by A3 although clearly A3 was involved and was only prevented from stabbing Hoa by another man. In the circumstances, the jury required a direction as to joint enterprise. Since the summing up lacked this direction there was a material irregularity in the summing up.

29. Accordingly, we allow A3's application for leave to appeal against conviction. We treat the application for leave as the hearing of the appeal. Had the jury been properly directed, then, assuming the jury accepted the evidence of the Crown witnesses as plainly they did, there was only one conclusion to which they could have come, namely that A3 was guilty of wounding. We have no hesitation in applying the proviso. The appeal is therefore dismissed.

30. As far as the appeals against sentence are concerned, both A2 and A3 reiterated their innocence and asked for leniency so that they might soon be reunited with their families. A2 now faces one sentence of 8 years imprisonment on count 2 while A3 faces a sentence of 7 years on the same count. The disparity arises because A2 was originally sentenced so as to reflect his involvement in two offences.

31. The sentence of 7 years imposed on A3 is perhaps on the high side. In all the circumstances, however, we do not consider it to be so high that we should interfere with it. We have in mind the need to impose good order on the detention centres and, in their effort to do this, the authorities concerned need the support of the court. A3's application for leave to appeal against sentence is therefore refused.

32. There is no longer any need to distinguish between A2 and A3. Accordingly, we allow A2's application for leave to appeal against sentence. Treating the application as the hearing of the appeal, we set aside the sentence of 8 years imprisonment on count 2 and substitute a sentence of 7 years imprisonment.