The Queen v. Hoang Van Vuong and Others

CACC000317/1996

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

Coram: Hon Bokhary, Liu & Mayo JJA in Court

Date of Hearing: 6 June 1997

Date of Judgment: 6 June 1997

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

JUDGMENT

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

Liu JA: (giving the judgment of the Court)

1. The four applicants were the 4th defendant, 5th defendant, 6th defendant and 9th defendant in the court below. In the trial before His Honour Judge Wilson, they were each facing 13 similar charges. The charges concerned offences allegedly committed in the latter part of 1995. The first 10 charges are charges of burglaries done on land. The 11th to the 13th charges involved thefts from vessels. All the offences were said to have been committed in Lantau.

2. Each of the applicants was found guilty as charged after trial. They were sentenced to four months on each of the burglary charges and one month for each of the theft charges. The sentences were ordered by the judge to run consecutively. Therefore, each of them is serving a term of 43 months. The applicants are dissatisfied with their convictions as well as with their sentences. They apply for leave to appeal against conviction and sentence.

3. The offences in the charges were allegedly, as I said, committed in the latter part of 1995. The applicants gave confessional statements to the police. They were held to be voluntary, accepted and acted upon by the court. The applicants were found by the police on 13 November 1995 on a 20-meter wooden boat beached at the Lantau area. The boat had run aground with her bow pointing to sea and a small sampan and two outboard engines tied to her sides. Ten Vietnamese men were found by the police on the vessel, amongst whom were the four applicants. From the vessel, the police also retrieved 172 different items of used but mostly household goods. They comprised refrigerators, outboard engines, bicycles, television sets and others. They were simply piled up in the hold or on deck. The police could not start the engine of the wooden boat and she was towed to the Marine Headquarters. The 172 items were unloaded, of which 65 were subsequently identified by owners. The identification was accepted by the judge. Also millions of Vietnamese dong in cash were seized by the police. The Vietnamese claimed that the cash was for purchasing articles in the South China Sea. The 4th defendant, 5th defendant and the 9th defendant said that they had bought goods from a Chinese boat. The 6th defendant claimed that he had bought goods from a passing Vietnamese vessel.

4. Owners were called to give evidence and they duly identified 65 of the 173 items respectively. The judge relied on the confessions of the applicants, in which except for the 4th defendant, they owned up to the offences in all the charges. The 4th defendant, Hoang Van Vuong never admitted to stealing from boats in the 11th-13th charges. That is a matter which cannot be disputed. In fact, it is conceded by the prosecution before us to-day. In addition, the judge also relied on the presence of the 6th defendant's fingerprints on some articles in one of the premises involved in Lantau, Shan Tau Village. Two fingerprint impressions found on those items belong to the 6th defendant's. Against the background of their arrest, the judge found the applicants guilty as charged relying on the identified items, their confessions and the fingerprints of the 6th defendant. They were accordingly sentenced.

5. The 4th defendant has the advantage of being represented by Miss Draycott to-day. Counsel is instructed only in respect to his application for leave to appeal against conviction for the 11th-13th theft charges. Counsel relies on an error of the judge, which is conceded. The judge took the 4th defendant as one of the Vietnamese persons who had owned up to all the charges, including the theft charges in the 11th-13th charges. That is clearly a mistake. The 4th defendant said: "I know that the three of them (Phai, Tu and Trong) had got on the vessel for stealing. I learnt it from other people. I, myself did not do it." Insofar as the judge relied on any confession of the 4th defendant in respect to those theft charges, his convictions cannot obviously be sustained. The application of the 4th defendant for leave to appeal against conviction in respect to 11th-13th theft charges must, therefore, be allowed. We grant leave and treat his application as the appeal proper. We allow this appeal. His convictions on the 11th-13th theft charges are, therefore, quashed.

6. The 4th defendant acts otherwise in person in respect to his applications for leave to appeal against conviction and sentence. Those concern the ten burglary charges and all his sentences.

7. The rest of the applicants also seek leave to appeal against their convictions and their sentences. All of the applicants state in their written applications to-day that none of the charges before the judge was well founded and that in fact, the facts relied upon by the prosecution were untrue. They do not elaborate.

8. Some of the applicants concede in their written applications that they were involved in four burglaries. Each of the applicants complains that the sentences are too harsh and pleads with the court the heavy responsibilities he has to shoulder back in Vietnam. Each of them invites this court to look into the circumstances and reduce his sentence.

9. These defendants elected to give no evidence. The judge relied on recent possession, the circumstances surrounding the applicants' arrest at which 172 used but mostly household items were found on the vessel, and confessions which the judge had ruled as voluntary. As for the 6th defendant, the judge was further assisted by his two fingerprint impressions on articles in one of the premises involved.

10. On these matters, the judge convicted the applicants as charged. Nothing brought to our attention by each of the applicants to-day has any merit. We find no substance in their applications for leave to appeal against conviction. The judge was correct in reaching the conclusion he did.

11. As to the applications for leave to appeal against sentence, they are totally unmeritorious. The sentences passed upon each of them cannot be said to be wrong in principle or otherwise manifestly excessive.

12. We, therefore, dismiss their applications for leave to appeal against conviction and sentence. But as we said earlier, the theft convictions of the 4th defendant in the 11th-13th charges cannot stand. These are accordingly set aside.

Representation:

Mr. A. A. Bruce, Q.C. & Mr. Sharman Lam, Crown Prosecutor for the respondent

Miss Charlotte Draycort, inst'd by the Director of Legal Aid for Hoang Van Vuong (D4) (Re: conviction - Charges 11-13)

Hoang Van Vuong (D4), applicant in person (Re: conviction - Charges 1-10 & sentence)

Pham Van Phai (D5), applicant in person for conviction and sentence

Pham Van Tu (D6), applicant in person for conviction and sentence

Pham Van Trong (D9), applicant in person for conviction and sentence