The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 60 of 1996

 

Hoang Hai-viet Appellant

v.

The Queen Respondent

 

FROM

 

THE COURT OF APPEAL OF HONG KONG

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th January 1997

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Griffiths

Lord Lloyd of Berwick

Lord Steyn

Lord Hoffmann

  ·[Delivered by Lord Lloyd of Berwick]

 

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1. On 20th January 1995 the appellant, Hoang Hai-viet, was convicted of the murder of Pham Duc Dung.  He applied for leave to appeal against his conviction on two main grounds.  The first ground was that the prosecution evidence was so confused and contradictory that the jury's verdict was perverse.  The second ground was that the trial judge should have left for the jury's consideration the alternative verdict of manslaughter.  In a succinct ex tempore judgment the Court of Appeal rejected both grounds, and so refused leave to appeal against conviction.  The appeal now comes before the Board by special leave.

 

2. The appellant and the deceased were both Vietnamese boat people, detained at the High Island Detention Centre, Hong Kong.  The prosecution case, in a nutshell, was that on 24th September 1992 the appellant and three other men, all Vietnamese, surrounded the victim, Pham, while he was in the washing area.  One of them stabbed him in the side.  Pham escaped.  He ran towards the gate which leads to the Red Cross clinic.   He  was  bleeding  profusely.   The four men chased him. Pham was allowed through the first gate (13B) and then through another gate (14B).  The four men followed.  They forced their way in.  They surrounded him on the ground, immediately in front of the Red Cross clinic hut.  He was stabbed again in the back.  Two home-made knives were found on the ground, one with a yellow handle, the other with a red.  The one with the yellow handle was bloodstained.  The other was not.  The medical evidence was that the wounds could have been caused by the yellow knife, but not by the red knife.  Either wound would have proved fatal.  The four men, including the appellant, were arrested on the spot.

 

3. All four men stood trial before Leong J. in 1994.  The appellant was convicted, but the other three were acquitted.  The appellant's conviction was quashed on appeal, for reasons which do not matter.  His retrial took place before Saied J. in January 1995.  It will be necessary to refer to the summing-up in some detail.  But the impression which it gives is very favourable to the accused.  Thus the judge was critical of almost all the prosecution witnesses, but especially the first, Bui Van Lang ("PW1").  Having commented adversely on the manner in which PW1 gave his evidence the judge added:-

"You may form the view, and it is for you, that such a witness is unreliable."

 

4. A little later he said:-

"I have already drawn your attention to the conflicts and inconsistencies in the testimony of PW1 which you may think affect his credibility to a very great extent."

 

5. Having more or less invited the jury to reject PW1's evidence the judge added:-

"It must have been obvious to you, I dare say, that if you, having considered all the evidence in this trial, reject his testimony, then you may find ... that the whole of the prosecution case collapses."

 

6. The judge then repeated the same point:-

"If, after considering all the evidence, you reject the evidence of the principal witness, Bui Van Lang, PW1, then you may think that the entire prosecution case collapses for that would remove the defendant from the initial group of four."

 

7. Finally, at the very end of the summing-up, he says:-

"You may, however, take the view that the state of the prosecution evidence is such that it does not stand up to close  and  critical  scrutiny, that it is lacking in veracity, and in view of the discrepancies and inconsistencies you are not satisfied so as to be sure of the guilt of the defendant ..."

Their Lordships have seldom read a summing-up which so plainly invites the jury to acquit.

 

8. Nevertheless the judge quite correctly said at the start of the summing-up that the evidence might have left a very different impression on the jury's mind than it had on his.  This in the end proved to be the case, but only after the jury had been out for nearly ten hours.

 

9. The Court of Appeal dealt with the first point as follows:-

"In our view the evidence as a whole was such that a reasonable and properly directed jury could safely and satisfactorily convict as they did.  There were contradictions; and these were of such a nature that a fair summing-up had to highlight them.  But the trial judge did highlight them in his summing-up.  In our view, the first and second grounds cannot possibly succeed."

 

10. In view of the trial judge's reaction to the evidence, it might seem surprising that he did not invite the defence to make a submission at the end of the prosecution case.  Be that as it may, the fact is that there was no such submission.  The appellant's counsel was given the opportunity to take instructions.  After a short adjournment he informed the court that the appellant's rights had been explained to him, and that he elected to give evidence.  So the question for the Court of Appeal, as for their Lordships, is whether the judge ought to have stopped the case of his own volition.  Mr. Guthrie Q.C. submits that PW1's credibility was so much in doubt that the case falls within the principles stated in Galbraith (1981) 73 Cr.App.R. 124 (to which, as it happens, the Court of Appeal made no reference) as follows:-

"The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.  (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.  (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of a jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury." Mr. Guthrie submits that the present case comes within (a) and not (b).  He relies in particular on the inconsistency of PW1's evidence in relation to the first stabbing.  PW1 did not see the actual stabbing, because there was someone in the way.  But he did claim to have seen the victim pulling a knife from his body and using it to defend himself.  The knife had a red handle.  The obvious difficulty with that piece of evidence is that the only red handled knife found on the scene had no trace of blood.  So either there were two red handled knives, one of which has disappeared, or PW1 was mistaken.  If the latter, then the question comes to this: does PW1's mistake as to the red handled knife, and the other confusions in his evidence to which Mr. Guthrie referred, mean (1) that the whole of his evidence should have been rejected, and (2) that, as a consequence, the entire prosecution case had collapsed?

 

11. When a judge has doubts about the strength of the prosecution case, and makes those doubts clear, it is always a cause of grave concern for an appellate court, which has not had the judge's advantage of seeing and hearing the witnesses.  But on the facts of the present case it appears to their Lordships that the judge may have attached too much significance to PW1's evidence, and not enough to the other prosecution witnesses.

 

12. PW2 was on duty at gate 13B, when the victim came running towards the Red Cross clinic.  He was being chased by four men, one of whom she later identified as the appellant.  Two of the four men held the gate open while the other two went through.  PW2 then managed to close the gate.  She was not certain whether others had got through too.

 

13. PW3 was on duty near gate 14B when he heard a shout from PW2.  He went to gate 14B and saw the victim on the ground, surrounded by four men, two of whom had knives.  PW3 subsequently identified the appellant as one of the four men.  He had been armed with a yellow handled knife.  Finally, there was PW6 who answered the radio call for assistance from PW2.  He arrived at the Red Cross clinic just as the four men were trying to leave.  He took one of the four men into custody, whom he later identified as the appellant.

 

14. Mr. Grenville Cross Q.C. conceded that there were discrepancies in the prosecution evidence, especially between the evidence of PW1 on the one hand and the other prosecution witnesses on the other.  This is not perhaps surprising in view of the state of confusion which prevailed.  Despite these discrepancies the main thrust of the prosecution evidence was remarkably coherent.  The victim was stabbed for the first time in the washing  area.   He  was  then chased by four men, including the appellant, as far as the Red Cross clinic where he was stabbed again.  Whatever the weaknesses in PW1's evidence, it could not be said that the prosecution evidence, taken as a whole, was such that no jury could properly convict, provided always the judge gave a correct direction on joint adventure.

 

15. The last point taken by Mr. Guthrie in this connection relates to a question which the jury asked some five hours after retiring, as follows:-

"If he has no intention to kill or cause serious injury but he did take part in the incident, should he be convicted to be guilty of the murder?"

 

16. Mr. Guthrie submitted that, having been asked a direct question, the judge should have answered it "No", in which case the appellant might well have been acquitted there and then.  But the matter was not quite so simple as that.  At the very end of his summing-up the judge had a given a correct, but simplified, direction on joint enterprise.  It may well be that the jury nevertheless remained uncertain as to the position in law if they were sure that the appellant had taken part in the incident, but were unsure whether he had inflicted either of the wounds.  Very sensibly the judge asked the foreman to elucidate what was meant by "taking part in the incident".  The foreman replied:-

"That means the defendant was one of the four men who chased the deceased."

 

17. In the light of that answer the judge gave a further and fuller direction on joint enterprise.  The further direction would perhaps have been better if it had related more closely to the precise words of the question.  But it was undoubtedly the correct response.  The question did not mean that the jury was seriously adrift.  On the contrary, the assumption underlying the question indicates that they were approaching their task on the correct lines.

 

18. A second jury question is harder to explain, namely, whether they had to consider what the defendant himself had said in the witness box.  But the judge, in answering, took the opportunity to emphasise again that the appellant was a man of good character, and that his evidence should be considered with the same care as the evidence of the prosecution witnesses.  So the difficulty, whatever it may have been, was resolved.

 

19. On the first point, their Lordships see no reason to disagree with the Court of Appeal that the verdict was not perverse.  Nor in their view was the judge obliged to stop the case on the principles stated in Galbraith. The second main ground of appeal was that the judge should have directed the jury on the alternative verdict of manslaughter.  It was common ground at the start of the trial that there were only two possible verdicts, guilty or not guilty of murder.  But Mr. Guthrie submitted that the situation changed in the course of the trial, and especially after the first of the jury's questions.  That was the moment at which the judge should have given the jury the opportunity of convicting the appellant of the lesser offence of manslaughter.

 

20. Mr. Guthrie and Mr. Grenville Cross were agreed that the judge would only have been obliged to leave manslaughter to the jury if there were some evidential basis on which the jury could return a verdict of manslaughter.  If there was no such basis, it was murder or nothing.

 

21. In order to decide whether there was any evidence to support a manslaughter verdict, it is necessary to look first at the appellant's own evidence.  His case was that he had not been in the washing area when the victim was first attacked.  He was near one of the huts when he heard a commotion.  He saw a man running towards the entrance of the Red Cross clinic, bleeding from his back.  He was being followed by about ten other men.  The appellant recognised one of the men as his friend, Mr. Tinh.  (Tinh was one of the four men arrested and charged with murder).  The appellant followed the crowd through gate 13B to see what had happened to Mr. Tinh.  He intended to intervene if necessary.  There were about six or seven others.  When he got through 14B, the victim was already on the ground.  The situation was chaotic.  Whilst still looking for Mr. Tinh he was suddenly arrested.

 

22. Would that evidence, assuming it was accepted by the jury, support a verdict of manslaughter?  The answer must be no.  If the appellant had taken part in the assault on the victim, but without the necessary intent for murder, and without being party to the joint adventure, then a verdict of manslaughter might well have been open on the evidence.  But that was not the appellant's case.  His case was that he was a mere spectator.  He was following the crowd in order to find out what had happened to his friend.  There was no evidence, on the appellant's case, that he was anything other than a spectator.  He never got to the point of intervention.  Nor was a verdict of manslaughter open on the prosecution case.  In those circumstances the position at the end of the trial was precisely the same as it had been at the beginning.  There was no evidential basis for a verdict of manslaughter.  There were only two possible verdicts; guilty or not guilty of murder. So the question whether the appellant was unjustly deprived of a possible verdict of manslaughter does not arise.

 

23. For the above reasons their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed.

 

© CROWN COPYRIGHT as at the date of judgment.