THE QUEEN v. HOANG VAN-NGO

Headnote

Failure to deal with discrepancies of the kind that inevitably occurred when witnesses are describing a grave and frightening incident is not a fatal flaw in the reasons for decision of a District Court Judge

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant HOANG Van-ngo, together with four other persons, faced a charge that on the 3rd day of August, 1989 at the hillside outside Lo Wu Detention Centre, Ho Sheung Heung, Lok Ma Chau, New Territories, Hong Kong, they robbed NGUYEN Van-phuoc of HK$1,300, NGUYEN Van-man of HK$200 and US$1 and LE Thanh-quyen of HK$20 and 20 Philippine pesos. He pleaded not guilty to that charge and was, after trial before Judge Rattigan in the District Court, found guilty and sentenced to four years imprisonment. He now seeks leave to appeal against both conviction and sentence. He is represented in his appeal against conviction by Mr. Plowman. It was the Crown case that the three victims were inmates living in the Kai Tak Vietnamese Refugee Camp who, at about 2100 hours on the evening of 3rd August 1989, after having taken two Vietnamese friends back to the Lo Wu Refugee Detention Centre, were robbed by six Vietnamese males who had just climbed out of the Centre. It was their evidence that two of them hid their wrist watches and one threw his key holder containing $700 in the grass when they saw the six approaching. One of the victims said that he had asked for and was given $20 back from the money taken from him for transportation. The victims said that while the six were disputing whether to allow them to go they took the chance to run away. One of them reported the matter to the Lok Ma Chau Police Station and the other two reported it to the Sheung Shui Police Station. The first four of the five defendants were apprehended at Ho Sheung Heung outside the Ching Wo Wood Factory and the fifth, the applicant, was apprehended at the Lo Wu Detention Centre. The first four defendants gave no evidence at the trial at which identification was the vital issue.

3. The applicant gave evidence very much in conflict with that given by the victims. He said that one of them had given him a gift of $200 so that he could have a celebration and that he had returned $20 of this to that person in order to allow him to pay for transportation. We cannot help but observe that a reading of the applicant's evidence reveals it as being a thoroughly unlikely story.

4. In his Reasons for Verdict the trial judge, having canvassed the identification evidence, stated:

"There was a lot of conflicting evidence. In the light of Turnbull I have many doubts about the opportunity the witnesses had of identifying the defendants. The identification is flawed. I am unhappy about it.'

 

Because of this, he very properly held that he must acquit the first four defendants.

5. As to the applicant, he simply said:

"D5 elected to give evidence, he admitted he was present, he gave to the court a version which I am satisfied was a tissue of lies. I do not believe him. I accept as truthful the victims evidence in relation to the robbery. I am satisfied that he took a full and active part in. this robbery. I am satisfied beyond reasonable doubt of his guilt. I find him guilty as charged and I convict him."

6. The thrust of the appeal is that the trial judge failed to make any sufficient findings of fact in relation to the issue of robbery, the role played by the applicant and the credibility of the evidence of the victims.  It is further urged that the findings of the trial judge when considering the identification evidence disclosed real doubts about the evidence of the victims and that their evidence involved conflicts which were not properly resolved by the trial judge.

7. Mr. Plowman referred us first to The Queen v. CHEUNG Yuen-hing (1988) 1 HKLR 160. Hunter J. A. there said at 163:

8. It was Mr. Plowman's submission that the decisions of both Mills-Owens J. and Hunter J.A. make it plain that simple justice demands that a judge show where there are conflicts of evidence that he has made a proper evaluation thereof. He submitted that there were conflicts in the present case which were left wholly unresolved and that justice had, therefore, not been seen to be done. Hunter J.A. pointed out, very properly in our view, that each case must turn upon its own facts. This is a particularly pertinent observation to the case before us. The trial judge made a careful assessment of the evidence of the three victims when making his determination as to the reliability of their identification evidence. He was, in the outcome, not prepared to rely upon it. He was clearly conscious of the weaknesses in their evidence in that regard. It is, we are satisfied, equally clear that when he came to consider the evidence as to the robbery he had no doubt that they were essentially truthful witnesses with regard thereto. He was occasioned no doubt by the evidence of the applicant which, in our view perfectly properly, he rejected as "a tissue of lies". Mr. Plowman says that even if this be so, his determination is wholly unsatisfactory because he failed to resolve discrepancies, contradictions and inconsistencies - he has listed 21 of them - which appeared in the evidence of these witnesses.

9. We think it pertinent to remark at the outset that these were not clashes between the evidence of prosecution and defence witnesses. If such discrepancies are ignored, there may be ground for arguing that there has been no satisfactory evaluation of the evidence such as would allow a court to be satisfied that the prosecution has proved its case. The failure of which complaint is made is as to discrepancies between each victim's statement given to the police and his evidence given in court, between his evidence in chief and his evidence in cross-examination and between the evidence of each of the three victims. There were undoubtedly discrepancies, as indicated by Mr. Plowman, but we are satisfied that they were of the kind that in the experience of trial courts inevitably occurs where a number of persons are describing an event such as this. The trial judge had to be satisfied that they were truthful witnesses, even though their evidence contained discrepancies, contradictions and inconsistencies. Having heard their evidence, observed their demeanour and made an assessment of them as witnesses, he was clearly satisfied that they were witnesses of truth. He was equally clearly satisfied that the applicant was a wholly untruthful witness. It is true that he might have elaborated upon the matters brought to our attention by Mr. Plowman, but he was not in the circumstances of this case required so to do, and we are quite satisfied that this conviction is neither unsafe nor unsatisfactory.

10. As to sentence, the applicant has raised nothing of any materiality. Indeed the grounds which he placed before the court contained clear admissions of involvement in the offence. The sentence of four years was, given that it was a robbery in company at night in which weapons were used, a lenient one. There is nothing that calls for our interference therein.

11. Both applications are therefore dismissed.