Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

The Queen v Vu Duc Hoa

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date03 May 1991
Year1991
Judgement NumberHCMA1599/1990
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA001599/1990 THE QUEEN v. VU DUC HOA

HCMA001599/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1443 & 1599 OF 1990

----------

Admissibility of cautioned statements taken in the earl hours of the morning after long period of detention. Question of oppression and fairness should be seen to have been considered to see if the residual discretion to excludethe statements should be exercised (R. v. Lam Ping Yip [1984] HKLR 419) and recent Privy Council decision in R. v.Lam Chi Ming and Others, PCA 39/1990, considered).

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1443 OF 1990

BETWEEN

THE QUEEN

AND
NGUYEN VAN TRUONG

---------

MAGISTRACY APPEAL NO. 1599 OF 1990

BETWEEN

THE QUEEN

AND
VU DUC HOA

---------

Coram: Hon. Penlington, J.A. in Court (sitting as an additional high Court Judge)

Date of hearing: 27 March 1991

Date of delivery of judgment: 3 May 1991

----------------

JUDGMENT

----------------

1. As Mr. Gary Plowman appeared on both these appeals on the instructions of the Director of Legal Aid and very similar grounds of appeal were to be argued, with the agreement of the Crown, I heard both appeals together.

Magistracy Appeal No. 1443 of 1990

2. This is an appeal against conviction by Miss J. Livesey in the Kwun Tong Magistracy on the 15th of August 1990 on ten charges of theft alleged to have been committed between the 4th of May and the 20th of June of that year. The appellant was also convicted of one other theft charge (the A charge) relating to an offence committed on the 21st of June against which there was notice of appeal but that has been abandoned.

3. On the 21st of June 1990 at 1:35 p.m. Miss Tang Mei Ping was at the bus stop in Kwun Tong Road at the entrance of the Vietnamese refugee camp. Suddenly a man who Miss Tang recognised as the appellant came up and snatched her necklace. She chased him into the camp where he was caught and she identified him there as the thief. Two necklaces, a pendant and a Thai buddha were found on the appellant and were all, somewhat curiously, identified by Miss tang as hers.

4. Following the appellant's arrest he was taken to the Ngau Tau Kok Police Station and in room 8, one of the offices of the Action Squad, he made a series of statements in which he admitted some the other offences, all very similar to the one for which he had been arrested. These statements are relevant to charges B to K.

5. Evidence was given by the complainant in charge by Sin Suk Yee, of being robbed of a necklace in a very similar manner to Tang Mei Ping on the 7th of June 1990 at a subway near the refugee camp. However She was not able to recognise the thief. The same was the case with Ho Sau Fong (charge C) - theft of a bracelet on the 16th of June, Chan Sze Man (charge F) also a bracelet on the 4th May of 1990 and Yeung Chan Hing (charge G) a gold necklace on the 27th of way 1990.

6. There was no evidence from the victims of charges D, E, H, I, J and K, those charges referring to theft from "an unknown female".

7. The appellant was not represented at the trial. However the legal principles involved in the admissibility of the statements were explained to him. Each statement was read to him in Vietnamese and he said he understood. He was told of the burden of proof and of his right to cross-examine witnesses, call and give evidence and of his right to silence.

8. The main prosecution witness as regards the taking of the statements was DPC 23929, Kwong Fat Him. He said he interviewed the appellant on the 21st of June 1990 in room a of the Ngau Tau Kok Police Station, beginning at 7:20 p.m. and in the presence of a Vietnamese interpreter, Leung Kant Cheung. The appellant objected to the production of that statement and said that before in was taken he had been assaulted. The interpreter had been told to leave the room and when the appellant refused to say how many times he had stolen he was kicked by one of six police officers who were present. He was told he would be beaten up until he signed the statements. Fearing further violence he did so.

9. DPC Kwong then went on to give evidence that the first statement, P2, was concluded at 8.55 p.m. It is a confession to the E charge alleged to have been committed the previous day, the 20th of June. The charge was originally of theft from one Ho Mei Wah but it was amended to allege theft from an unknown female.

10. DPC Kwong went on to say that the appellant was then again cautioned and a second statement recorded beginning at 8:56 p.m. and concluding at 10:59 p.m. During the course of that statement he was allowed to go to the toilet and he had a meal. This statement, P3, is an admission to theft on the 18th of June and relates to charge D. Again the original charge was amended from theft from Cheng Sui Man to theft from an unknown female.

11. The third statement, P4, began at 11 p.m. and concluded at 11:55 p.m. and relates to charge C, theft on the 16th of June of a necklace from Ho Sau Fong.

12. Thereafter the balance of the statements were recorded, the final one being concluded at 3:30 a.m. on the 22nd of June. These were P5 - P8. All these statements follow the same pattern. The appellant was told the date, time and circumstances of an incident and asked if he could assist in police inquiries in relation to it. He then admitted me had committed the offence and said he sold the particular item to one An Keung in the refugee camp and stated the amount he received. He was then asked some questions about the incident and his sale of the object stolen. The statements were signed by DPC Kwong, by the appellant and by the interpreter.

13. At 2:30 a.m. the appellant was asked about an incident on the 2nd of June at Ping Shek Estate. This offence he denied and he said he did not want to say anything. However then, according to DPC kwong, he immediately said he had however committed three other offences on the 10th, 12th and 15th of June. He was asked for details of these offences which he then gave. These statements concluded at 3:30 a.m.

14. At 8:17 p.m. on the 22nd of June a further statement was recorded from the appellant in which he said he was willing to take the police officers to the various spots where he said he had committed the offences. He was reminded of the cautions but repeated that he was willing.He then took DPC Kwong to various places in the area of the refugee camp in Kwun Tong Road. This concluded at 10:02 p.m. The appellant vigorously cross-examined DPC Kwong, putting to him that the statements were all prepared together and he was told to sign them all, which he did because of the assault and the threats. That was denied, as was the suggestion that the statements were not read out by the interpreter. In particular the constable was cross-examined about an incident which was alleged to have occurred on the 15th of June and the appellant put it to him that as the appellant went to hospital that day he could not have committed the offence (charge K). This was one of the offences which was not put to the appellant and presumably had never been reported. He said he had been assaulted in the refugee camp and was in hospital from 4 to 11 p.m. after which he was taken to Ngau Tau Kok Police Station to make a complaint.

15. The Vietnamese interpreter, Leung Kant Cheung, gave evidence saying that he was present during all of the time the statements were recorded. He said he did read out the statements to the appellant in Vietnamese, including the numerous questions and answers and he identified his signatures on the statements. He said there were no threats made to the appellant in his presence and no violence was used. He also said he went with the appellant and some police officers to various places in Kwun Tony Road on the tend of June and said the appellant pointed out spots where he said he had committed thefts. He again acted as interpreter. It was put to him that all that evidence was untrue and he was totally prejudiced in favour of the police.

16. The appellant gave evidence as regards the admissibility of the statements. He said he was feeling unwell when taken to the police station and when he was removed from his cell to room 8 there were some six officers in the room, including DPC Kwong, who produced a pile of statements. The interpreter was not there. He was asked how many times did he steal and when he replied "none" he was kicked and fell. He was then told he would he beaten up if he did hot sign all the statements which he then did. He denied that the statements were read to him in Vietnamese. He said Mr. Leung, who came in later, was Just drinking beer with the police officers. The appellant's evidence was that he said nothing at all and was never asked about any of the offences.

17. The appellant did not call any other witnesses as to admissibility and at the close of his evidence the trial magistrate ruled that all the statements were voluntary and admissible.

18. The appellant then gave evidence on the general issue. He denied snatching the necklace as alleged in Charge A but said he heard a woman shouting and he was then arrested by two security guards at the camp entrance. Northing was found on him. His evidence as to what transpired after that is not easy to follow but he seems to have alleged that the complainant produced the allegedly stolen articles from her own wallet.

19. He repeated his evidence of being kicked on the 21st of June but said that at about 3 a.m. on the 22nd he signed the whole pile of statements. The interpreter was there but did not read the statements out to him. He just signed them. He did so because he had been...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT