R. v. NGUYEN THANH TUNG

IN THE COURT OF APPEAL

1995, No.634
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced two counts, one of murder and one of wounding with intent. The murder count read that he and a second defendant Ngo Thi Hong, a female, had on 10th December 1994, in Hong Kong together with other persons not in custody murdered Le Toan Van. I refer hereafter to Le Toan Van as "the deceased" and to Vu Wan Tien, the principal witness and the victim in the wounding count, as "the victim". The wounding charged that the same two offenders had at the same time near the junction of Kweilin Street, Shamshuipo, together with other persons not in custody, unlawfully and maliciously wounded the victim with intent to do him grievous bodily harm. The applicant pleaded not guilty to both of those counts and was found guilty after trial before Ryan J. and a jury and sentenced to life imprisonment on the first count and to four years on the second count. He now seeks leave to appeal against those convictions.

2. It was the Crown case, and I take this from the outline of the evidence contained in the summing up, that the victim went with a friend by taxi to the temple area in Shamshuipo where he saw a group of people standing in front of the temple. These people, according to his evidence, included the applicant, the 2nd accused, the brother of the 2nd accused, a man named Hanh, another Vietnamese named Tan and three or four others who were Chinese. The victim said that he went up to the group, face to face and that he recognized the applicant and that he then asked the 2nd accused, the lady, to walk away and have a discussion. This discussion led to nothing as it failed to resolve a problem which had apparently arisen about the sales of contraband cigarettes. His evidence was that he turned and walked back towards where his friend, the deceased, was standing and that when they were a few paces apart he heard the 2nd accused call out "Chop them to death". He says that the man Tan then used a hammer to hit him on the back of the head and then attempted to hit him again but that he warded off that blow and while so doing saw the applicant and the man Hanh take out knives from behind their backs. They started to chop the deceased and that there was then a chase with he and the deceased fleeing along Kweilin Street towards Lai Chi Kok. When they reached the junction, he ran across Lai Chi Kok Road and was hit by a taxi and suffered considerable injuries. When he came out from under the taxi he saw the deceased lying bleeding profusely. It was the evidence that the deceased was taken to hospital but was pronounced dead on arrival.

3. The 2nd accused was acquitted of murder but convicted on the wounding count.

4. Mr. Mullick, who appears today for the applicant, has argued three grounds. The first and second grounds complained of an unsatisfactory direction as to identification. This direction was as follows:

"In that regard you will have to - and, indeed, in respect of the second charge - you will have to consider whether Vu has made a genuine mistake when he identifies the first accused as acting in that way. The court's history is littered with cases, sadly, where wrong identifications have been made, and made on occasions by people who genuinely believe that they have made a correct identification, and indeed in some cases where they are identifying relatives or friends. So the question of identification has to be approached carefully, and you need to look at all of the circumstances in which the identification was said to have been made.

In this case the incident took place in Kweilin Street, which is a side street off Lai Chi Kok Road, and the evidence was that it was not particularly well lit. There were street lights, but it was in the evening. It was dark, and the vision was not particularly clear. But if Vu is to be believed, he was face to face with this group which he says included the first accused, and he was at a distance of only two to three feet, and also he says that he knows the first accused, that he had known him for 12 years, although he had only seen him six or seven times during the course of those 12 years. So he is identifying, he says, someone that he knows from a short distance, although in a light that was not particularly good.

In those circumstances you might feel that this is not a case of a genuine mistaken identity. It is entirely a matter for you, but you might well feel that this is either a case that Vu is telling the truth when he says that D1, the first accused, was there, or he is lying to implicate wrongly the first accused in the matter. That will be for you to decide."

5. The evidence given by the victim was as follows:

"Q. Tell us what you saw when you got there to the temple?

A. Upon arrival I saw Fei Lung (indicating the applicant).

Court: The man with the white shirt, the 1st defendant you described as Fei Lung, do you?

A. Yes. Another person named Tan. Another person named Hanh, and three to four other persons. They seemed to be Chinese.

Q. Did the persons you mentioned, Tan, Hanh and Fei Lung are Vietnamese persons, are they?

A. Yes.

Q. How long had you known the 1st accused, the man you call Fei Lung. How long had you known him.

Court: Just give us the time that you have known him, in the years?

A. I have known him for 12 years. The first time I met him in 1983.

Q. I am going to ask you this, and give me an answer in a number, how many times since 1983 would you have seen him up until December of last year?

A. About six to seven times.

Q. You got to the temple, you saw D1 and you said D2 was there as well, Hong was there too, was she?

A. Yes."

This evidence, if accepted, made this a "recognition case" in which the identifier had had the opportunity to see the person he knew in circumstances which were not abnormal immediately before the incident. It was argued that the direction set out above was inadequate. We must look at the direction against the background of the evidence bearing in mind not only that the evidence that the victim knew the applicant was not challenged but also that it was the defence that the victim knew the applicant and had deliberately and falsely implicated him for reasons of his own. That this was the thrust of the defence is shown by the following cross-examination:

"Q. Mr. Vu, I put this to you, in fact you did not see the 1st accused take any part or was even present when your friend was attacked - for that matter, when you were attacked.

A. I disagree. Truly he was there. I could see his face.

Q. You see, you had a relationship with the 2nd accused only up to about two months before the incident. You had broken up with her, is that right?

A. That's correct.

Q. And you were rather upset about all that, weren't you?

A. It's not so. We have no more relationship. I have never thought about her any more. If she had thought about me, I had no idea.

Q. Did you feel that the 1st accused, this chap called Fei Lung, had taken your place in the affections of the 2nd accused?

A. Regarding their relationship, I have no idea. I don't know anything about their relationship.

Q. What happened was, that evening, was that you and your friend, and I suggest some other persons as well, had gone to this particular district at one of the 'dai pai dongs' near the temple where there had been discussions regarding this cigarette trade in which you were involved.

A. It's not so. That did not happen. My friend and I, we took a taxi from my home straight to that temple where that group of people were standing, but we never met them earlier on and had a conversation or discussion. We never had that sort of thing. It did not happen. We took a taxi straight from home to that place.

Q. What I suggest is when you don't agree with my suggestion, just say 'I disagree', then we'd get on much more quickly. Now, you see, what happened was there were a number of persons around whom you didn't know, didn't recognise, is that right?

A. Some of them I recognise, and some of them I do not know.

Q. You saw the 1st accused sitting at a table with some other people at the time.

A. I disagree with you. It's not so. I took a taxi straight from home to there, and where I alighted, I saw D1 and D2 standing with that group of people at the corner of the street.

Q. Then a dispute arose in which the 1st accused took no part at all.

A. I totally disagree with you. Such a thing never happened.

Q. Then there was a kind of running fight - fighting while you're running.

A. I disagree with you, no such thing.

Q. Your great friend was killed during the course of this particular fight.

A. It's not so, I disagree with you, no such thing happened. He was chopped, was killed by this man.

Q. You put the blame on the only person you could recognise or know.

A. Disagree. No such thing."

6. It is argued by Mr. Mullick that even if the issue of identification was not positively raised by the defence, it was, nonetheless, the duty of the trial judge adequately to direct the jury thereon. There can be no argument with this submission. However each case must depend upon its own facts and we refer in this regard to the judgment of Lord Lane in Thomas Bentley (1994) Cr.App.R. 342 where he said:

"There is only one major point which is adduced on behalf of the appellant by Mr. Hubbard, and that is that the learned judge did not give a sufficient direction on the lines of Turnbull (1976) 63 Cr.App.R. 132, [1977] Q.B. 223, before the jury retired.

The complaint made by Mr. Hubbard is one which is frequently made before this Court. It is right to say that there is always a danger of imposing too rigid rules as to what directions a judge should give to a jury in any particular case, the reason being the obvious one, that the facts of individual cases vary enormously and it is almost as important to avoid giving unnecessary or irrelevant advice as it is to give appropriate warnings and directions, because if a judge gives irrelevant and inappropriate directions, the jury tend to 'switch off' and they do not pay attention to the parts of the direction which are important. Consequently the object must always be to ensure that the jury are made aware of any danger or evidential pitfalls which may exist in the particular case with which the judge is dealing.

That is of course the basis of the well known Turnbull direction, to alert the jury to the dangers which are inherent in cases where identification is in issue; to alert them to the potential fallibility of the identifying process, and to the many cases where convinced and convincing witnesses have been shown later to have been hopelessly and dangerously mistaken about their so-called recognition of the defendant.

Such cases, it scarcely needs stating, may vary from one extreme to another: from the fleeting sight of a stranger in a moving car in indifferent light on the one hand to the purported recognition of a familiar face which has taken place over a considerable period of time in perfectly good conditions of lighting and so on. The former will obviously require the full Turnbull direction. It contains all the classic identification pitfalls to which the human witness is susceptible. But, if the judge were to give that full Turnbull direction in the latter type of case, the jury would rightly wonder whether he, the judge, has taken leave of his scenes, because most of the Turnbull direction would in those circumstances be quite unnecessary."

7. Having examined both the evidence and the words of the judge when dealing with the identification evidence, we are satisfied that the direction was a perfectly adequate one. Having given the direction the judge went on, correctly in our view, to point out to the jury that they might consider that the real issue for decision was whether or not the victim was lying "to implicate wrongly the first accused in the matter". That direction, when read in context, in no way blunted, as is suggested by Mr. Mullick, the identification direction which the judge had already given. We are satisfied that there is nothing material in the first two grounds.

8. We turn now the third ground.

9. It is submitted in this ground that the jury must have found that the victim lied when giving evidence that the 2nd defendant, had triggered the attack by saying "Chop them to death", as they acquitted the 2nd defendant on the murder count. This being so, it is argued, the conviction of the applicant is unsafe as no jury could properly and safely act upon the evidence of such a proven liar. The evidence against the 2nd defendant upon which the jury were clearly not prepared to act was only revealed by the victim at a late stage. In his initial statement he had made no mention of it. The trial judge after he had concluded his summing up was asked to give a particular warning in relation thereto which he did saying to the jury:

"You will recall, members of the jury, in the course of my summing-up I mentioned this matter of the allegation by Vu that the second defendant had called out, 'Chop them to death,' which was the trigger to start the assault, and for you to consider whether Vu had lied about that with an intention to strengthen an otherwise very weak case against the second defendant.

Mr. Cahill for the defence has asked me to emphasise this to you, which I am happy to do, because it is a very important part of the case, and to tell you that if you were to come to the conclusion that Vu was lying about that, that he was inventing the evidence that Madam Hong, the second defendant, had called out those words, then you should acquit her, and I would direct you in that way. If that piece of evidence does not hold up, then there is not sufficient evidence to convict her in relation to the charges. So please consider that when you come to consider the case against her."

10. It is suggested, given this direction, that this court must approach the matter upon the basis that the jury found that the victim lied when he gave that evidence against the 2nd defendant. We do not consider that we are required to approach the matter upon that basis. It was open to the jury to give the benefit of the doubt to the 2nd defendant as to whether those words were used, particularly so given the circumstances in which the evidence came to light. On the other hand it is quite clear that they had no doubt in accepting the evidence which established the guilt of the applicant. We do not consider that this matter makes the conviction of the applicant in any way either unsafe or unsatisfactory and the application to appeal against conviction is therefore refused.