The Queen v. Nguyen Van Truong

HCMA001443/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1443 & 1599 OF 1990

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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

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MAGISTRACY APPEAL NO. 1599 OF 1990

BETWEEN

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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

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JUDGMENT

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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 assaulted, threatened and feared further violence. He denied taking the police to any scenes and said he did not know an Ah Keung who is mentioned in the statements as the purchaser of the jewellery. He said he had been attacked in the camp on the 15th of June with a hammer and was taken td hospital where the wound was stitched. After that he was taken to Ngau Tau Kok Police Station where he wide a statement.

20. The trial magistrate went to some considerable pains to make inquires as to toe matter raised by the appellant id cross-examination of his being in hospital on the 15th or June and thereafter going to the police station. When records were made available the appellant agreed that he went to hospital between 4:35 and 8: 10 p.m. and was in the station from 8:50 to at least 9:40 p.m.

21. The appellant called Lee Van Quy as a witness, a warrant having been issued for his arrest. He conrirmed WK the appellant was injured on the 15th and his head was heavily bandaged between that day and two 20th. His evidence as to the extent of the appellant's injuries was somewhat confused. He said he was able to walk easily but also he "looked very weird" and could not speak loudly. The first bandage was replaced by a smaller one which he wore for a further two days. Later he said the appellant did have difficulty walking and he brought him some congee.

22. The trial magistrate found that all charges had been proved beyond reasonable doubt on the oasis of the complainant's evidence and the cautioned statements, apart from charge K, and later gave her reasons in a full and carefully worded decision. She said that she accepted the evidence of DPC Kwong and of the interpreter, Mr. Leung, as honest and truthful but did not believe the appellant or his witness, Lee Van Quy. However she acquitted the appellant on the K charge which was alleged to nave been committed on the 15th of June. She was satisfied that the appellant had committed an additional theft but was not so satisfied it was on the 15th. While it was theoretically possible for the appellant to nave committed sue offence in the evening of the 15th after going to the hospital and then to the police station it must have been, to say the least, highly unlikely.

23. The trial magistrate rightly did not give reasons when admitting the statements (Lam Ping Yip [1984] HKLR 419). In her Reasons for Verdict she has said that she accepted the evidence of DPC Kwong and of the Vietnamese interpreter, Mr. Leung, as being truthful and she rejected that of the appellant and of Lee. She was sure the statements were voluntary and she could safely rely on their.

24. Mr. Plowman raises several grounds of appeal as to matters which the trial magistrate has apparently failed to consider, as, he submits, she was bound to do particularly where there was an unrepresented defendant against whom in all but one charge the prosecution depended entirely on a cautioned statement. As the magistrate said the evidence without the statements was not enough to support a conviction on any of the charges, apart from the A charge.

25. The first ground is that while the magistrate has found the statements to be voluntary she has not fully considered the manner in which the appellant was treated by being questioned over a long period into the early hours of the morning. Mr.Plowman argues that if a man is arrested in the early afternoon of one day, is not questioned until the evening of that day but the questioning then runs on until 3:30 in the following morning, that is oppressive and unfair. If the appellant had been represented that would have been counsel's main attack on the statements but here the question of unfairness does not seem to be considered. There was no reason given, or asked for, as to why the questioning went on to such an hour in the morning. It should have been stopped and the appellant allowed to sleep before inquiries were re-commenced the following day.

26. Any consideration of the question of oppressive behaviour leading to the making of a statement must begin with the decision in R v. Prager [1972] 1 AER 114 56 Crim. App. R. 151 There Edmund Davies, L.J. refers to Sachs, J.'s dicta in Priestly (1965) 51 Crim. App. R. 1 in which oppression "imports something which saps or tends to sap and has sapped that free Will which must exist before a confession is voluntary". He goes on to state that "what is oppressive will vary in each case. Factors will include the length of time of any individual periods of questioning, the length of time intervening between period of questioning whether the accused person has been given proper refreshment or not and the characteristics of the person who makes the statement".

27. Edmund Davis, L.J. also cites with approval words of Lord MacDermott in a speech to the Bentham Club in 1968 in which he described oppressive questioning as "questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent".

28. Here the trial magistrate ruled that the statements were voluntary. That question was within her discretion and I have no doubt she could properly have come to that conclusion. There is, however, as Mr. Plowman has submitted, a residual discretion, to be exercised when there is evidence to support it, to nevertheless refuse to admit a statement on the grounds of unfairness. This was discussed in R. v. Lam Ping Yip [1984] HKLR 419. At 423 Roberts, C.J. said this:

29. There is also now clear and binding authority from the Privy Council in. Lam Chi Ming and Others v. R. Privy Council Appeal 39/1990 that a statement, even if shown to be totally reliable, should not be admitted if it offends against the principle that no person should be forced to incriminate himself "and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody", per Lord Griffiths.

30. Mr. Forlin for the Crown contended that the police were clearly trying to clear up a list of very similar cases with almost identical modus operandi while the Vietnamese interpreter was available. Nevertheless he concedes that the interview did go on too long and should have re-commenced the following day. That was not however enough to make the manner of the taking of the statements unfair or oppressive.

31. The question here then is whether there was evidence which would require the magistrate to consider the question of unfairness and, if so, has she done that. That evidence may come from the circumstances of the case itself and the prosecution evidence and it also may come from the accused if he has chosen to give evidence.

32. Here there is no doubt as to the timing of the statements. They commenced 7:30 p.m. on the 21st and went on until 3:30 a.m. on the 22nd. The appellant was given a meal between 9:25 and 10 p.m. on the 21st. In his own evidence on admissibility the appellant did not raise an issue that he was questioned over a long length of time into the early hours of the morning - his evidence was that all the statements were already prepared when he went into room 8 at 7:30 p.m. and he signed them because he was kicked and threatened. That was not his evidence on the general issue when he said the statements were signed at sometime after 3 a.m. on the 22nd.

33. I do not consider any complaint can be made, on the evidence here, of unfairness so far as the statements made before midnight on the 21st June (the first three). The defendant had been in custody since mid-afternoon but he had a break of half an hour between 9:25 and 10 p.m. It was not unfair to continue to question him about other offences after that. However by mid-night he must have been tired and, according to the police evidence, had made three long statements and answered very many questions. After that there must have been a danger that he would simply agree to what was said to him. There was evidence which should have been seen to be considered on the principles of Prager and Lam Ping Yip. While she has very carefully evaluated the evidence given by the witnesses in ruling that the statements were voluntary she does not seem to have considered this other question. On this ground the appeal against conviction in respect of charges B, F, G, H, I and J is allowed and those convictions are quashed.

34. There remain charges C, D and E, alleged to have been committed on the 16th, 18th and 20th of June, all within five days of his arrest. The further grounds of appeal are that the trial magistrate failed to consider that it was unlikely that the appellant could recollect dates, times and circumstances accurately when he was alleged to have committed so many similar offences and that if he made a mistake about the date (the 15th of June) in relation to the K charge only six days before his arrest it would be remarkable if he could remember other dates accurately. The magistrate should also have considered the likelihood that, as the appellant could not have committed the offence contained in the K charge to which he allegedly made a spontaneous confession, the statements were all suspect.

35. It is also submitted that it is surprising that the victim in charge C (the 16th of June) did not notice that the man who stole her necklace was bandaged. That however depends on the evidence of the appellant and of his witness Lee, neither of whom was believed.

36. Finally I was asked by Mr. Plowman to also consider the facts of the other appeal, R. v. Vu Duc Hoa, Mag. App. No. 1599 of 1990, where he points out the circumstances relating to the taking of confession statements was remarkably similar. While not involving the same officers they were also recorded in the early hours of the morning in the offices of the Action Squad of Ngau Tau Kok Police Station.

37. It is, I think, proper for an appeal court to note a trend of conduct which seems to be contrary to proper procedures in appeals coming before it and to express concern. It may even be such as to tip the balance when considering in any one case whether or not a conviction is safe and satisfactory. Here however I did not need to have regard to the circumstances of that other appeal in relation to charges B and H to J and it was not sufficient to cause me any doubt as to the safety of the convictions on charges C, D and E. Nevertheless if there is a pattern of accused persons being interviewed late at night in Ngau Tau Kok Police Station or elsewhere when there is no need for it and such becomes apparent from the number of appeals being lodged, that is a matter which an appeal court can and should consider. I do not have to do so in the present case but only re-iterate what has been said on many occasions before by these courts, that when interviews go on at great length and particularly late at night in circumstances where the accused Person's resistance is likely to be reduced, statements resulting from such an interview may well be rejected on the principle now clearly stated in Lam Chi Ming.

38. There were however questions of fact for the trial magistrate to decide. While no specific findings were made in relation to them she did accept evidence given by DPC Kwong and by the interpreter. That included the taking of the police party to the scene where various offences were committed. Clearly the possibility was present here that having arrested the appellant for one offence of snatching on which there was very good evidence, the police officers decided to clear their records of a lot of similar offences which had been reported and the appellant was forced to admit committing those offences. I certainly gave that possibility full consideration, as no doubt did the magistrate though that could perhaps have been more clearly shown in her Reasons for Verdict.

39. I was in particular concerned by the evidence as to the K charge and the argument that the mistake made there, like the 13th chime of a clock casts doubt not only on, itself but on all that went before. It must however be remembered that this charge was not an offence which had been put to the appellant but one which, on the police evidence, he spontaneously confessed to.

40. Taking the evidence as a whole and the magistrate's findings as to credibility I do not find the convictions on charges C, D and E to be unsafe or unsatisfactory and the appeal against conviction on those charges is dismissed.

Mag. Appeal 1599 of 1990

41. This is an appeal against conviction by Mr. D.I. Thomas in the Kwun Tong Magistrates Court on the 11th of October 1990 on four charges of theft alleged to have been committed in the Kwun Tong area in August 1990. All charges relate to the snatching of necklaces from women in the street. The appellant is an illegal Vietnamese immigrant and resides in the Pillar Point refugee camp. He was unrepresented at trial, the administrator of the Duty Lawyer Scheme having declined to offer legal assistance.The appellant had applied for an adjournment to obtain legal representation but the magistrate, taxing into account the fact that the appellant had apparently done nothing about obtaining representation since his first appearance on the 20th of August, declined to grant such adjournment. I have no doubt he was right to do so but it did mean that the magistrate had to consider any possible legal challenge to the prosecution evidence whether raised by the appellant himself or not.

42. Evidence was given by Kwan Siu Man, the victim of the A charge. She said she was at a bus stop in Kwun Tong Road on the 1st of August at 8:30 a.m. when a man snatched her hecklace from behind and rah off. She chased after him out fell and the man got away. She said he was 5 feet 6 or 7 inches tall but she did not see his face.

43. Mak Fung Yee was the victim named in the B charge. She was crossing the foot-bridge over Kwun Tong Road hear Kai Yip Estate oh the 2nd of August 1990 when her necklace was also snatched from behind. She also gave chase but the man, whom she described as 5 feet 6o - 7 inches tall escaped into the Vietnamese refugee camp at Kai Tak. She also did not see his face.

44. The appellant was arrested oh the 14th of August 1990 by DPC 8317 Ip Lap Ngai of the Ngau Tau Kok Action Squad at 7:10 p.m. He was placed in the detention cell pending the arrival of a Vietnamese interpreter. When the interpreter, Wang Tin Chu, arrived the appellant was taken in room 6 of the Ngau Tau Kok Police Station and at 1:00 a.m. on the 15th of August he was interviewed by DPC Ip in the presence of Mr. Wang. It was DPC Ip's evidence that the appellant was cautioned and the circumstances of events relating to charge A were read out and then interpreted to the appellant. The appellant replied and that Was recorded and read over to the appellant. He declined to make any corrections and signed the statement. That was at 1:35 a.m. The statement made by the appellant was "I don't want to say anything."

45. Immediately afterwards a statement made by one Pham Tuan Cuong was read over by the constable to the appellant. As a result the appellant said something which again was recorded. This was "An Sir, you believe what Ah Keung said. He did snatching more than I did. I did snatching only a few times. He did snatching ten odd times at least". He was than reminded of his caution and then he said "Ah Keung has Spilt the beans. I am not afraid to admit, too. He did snatching more. Let us see whose offence is more serious." These statements were read over to the appellant in Vietnamese and signed. The appellant was then asked a number of questions and in answer to one of them he made a full confession to the A charge. He said he sold the necklace to one Ah Yung at the Pillar Point refugee camp for $500.

46. A further Statement was recorded from the appellant starting at 2:45 a.m. This related to the B charge. Again the appellant made a statement admitting that offence and said he again sold the necklace to Ah Yung for $400. That statement concluded at 3:20 a.m. and again immediate inquiries were made about another offence which was committed on the 2nd of August. The appellant then said "Ah Sir, this case has nothing to do with me. It was not done by me. You have asked so much and that you want me to tell about all. I also did two cases of Snatching of gold chains which I will tell you. Don't ask anymore." The appellant was then cautioned and he made statements admitting the offences which are the subject of the C and D charges. That statement concluded at 4:25 a.m.

47. From the time the interview started at 1:00 a.m. till it concluded at 4:25 a.m. there was no break nor was the appellant offered any refreshment. DPC Ip said only himself, Mr. Wang and the appellant were present during the interview.

48. At 6 p.m. that day the appellant was taken before the officer-in-charge and UPC Yip said he was then taken to the various locations referred to in the charges together with two other police officers and the interpreter.

49. It was put to DPC Yip by the appellant that he had been waken up in his cell, taken to a stairway and assaulted by another police officer. He was then taken to a toilet and again assaulted. UPC Yip then gave him some sheets of paper and showed him where to sign and he did so. This was denied by UPC Yip.

50. The Vietnamese interpreter gave supporting evidence and said that the appellant was not assaulted in his presence. He went with police officers and the appellant to various spots in Kwun Tong and again acted as interpreter. The appellant made no complaint to him at any time.

51. Sergeant 19097 Wong Kwok Ching and DPC 20435 Hui Wai Man also gave evidence of being with the appellant. DPC Hui took him from his cell at 1 a m. and Sergeant Wong went with him to the scene of the various offences later that day. Both denied assaulting him.

52. Pham Tuan Cuong, whose statement had been shown to the appellant, was called as a Crown witness. He said he was a serving prisoner but said he was not arrested for snatching. He knew the appellant who resided in the same camp. He said he had made a statement on his arrest but had not mentioned the appellant. He said he had been forced with making the statement admitting snatching but the snatching had nothing to do with the appellant. The statement was not produced for his identification and ho application was made that Pham be declared a hostile witness.

53. The appellant gave evidence on the admissibility of the statements and said he has been assaulted in a toilet, he felt great pain and because of that he signed the statements.

54. He said Mr. Wang was not present when the assault took place but was when he signed the statements. The statements were hot read over to him in Vietnamese.

55. When asked at the beginning of the trial why he objected to the statements being produced the appellant said it was because he had been assaulted. When he gave evidence he repeated the allegation of assault out added that Coke had been poured down his nostrils.

56. The magistrate then ruled that there was a case to answer oh each charge, presumably also impliedly ruling that the statements were admitted and he considered he could place such weight on them as would enable him, sitting as a properly directed jury to convict on each charge.

57. The appellant gave evidence on the general issue by simply confirming his evidence as to admissibility.

58. At the close of the evidence the trial magistrate said he accepted the evidence of all the prosecution witnesses apart from PW7 Pham Tuan Cuong.

59. He rejected the appellant's evidence as to the manner in which the statements were taken and found the charges proved. In doing so he said he dial not rely on the evidence of the visit to the scenes after 6 p.m. which was after the appellant had been charged. He subsequently put into writing his full reasons for the verdicts, covering all the evidence which had been before him.

60. Mr. Plowman again argued that the trial magistrate had not considered the question of oppression, the statements having been taker over a long period in the earl hours of the morning. He also points to the lack of evidence as to the contents of Pham's statement which was the purported reasons for the appellant's change of mind about making a statement himself. That was even more important in view of Pham's s own evidence that he did not implicate the appellant. It is also argued that it. was inherently improbable that the appellant would confess to crimes (Charges C and D) about which he was not asked and the suggestion is made that the evidence is so similar to the other appeal being heard, R. v. Nguyen Van Truong, Mag. App. No. 1443 of 1990, as to cast a lurking doubt over the convictions.

61. There clearly were two important hatters which, on the prosecution evidence, had to be resolved by the magistrate. The first was that the appellant had at first declined to say anything. However when the statement wade by Pham was read out to him he changed his mind and made the four confessions. The statement was, for some inexplicable reason, not produced. Pham himself said it did not implicate the appellant although the magistrate did not, believe him that was the only evidence. The magistrate said he did not allow himself to speculate on the contents of the statement but it seems to me he had to decide that the reason for the appellant's change of heart was not any force being used on him but it was the contents of Pham's statement - otherwise why should he change his mind? There Was simply no evidence that the statement did contain material which would cause the appellant to do so.

62. It was also Phaw's evidence that the appellant was not involved with him in snatching. The magistrate said he disregarded that evidence "because it was clear that, although he was purporting to exonerate the Appellant, his evidence was contrary to the facts. The evidence of PW1 and PW2 (the victims) was that there had been a lone thief and therefore PW7 appeared to be giving evidence which was hot borne out by the evidence of the victims themselves." I am unable to follow that resoning and Mr Forlin, who appeared for the Crown, was unable to assist. Clearly the whole question of why the appellant changed his mind about giving a statement and the weight to be put on Pham's evidence should have been considered in the light of his statement. He was a Crown witness but said the appellant was not involved with him in any offence. If that was contrary to his statement there should have been an application to have him declared hostile and his statement put to him.

63. The trial magistrate found that the allegations made by the appellant as to violence being used were false and he found the statements to be voluntary. While at an early stage of the trial he did ask DPC Yip why the statements sere taken so late at night, and was told it was because the police officers were waiting for the interpreter, he did not consider the residual question of oppression. Here the appellant had been in custody since 7:10 p.m. and was taken from his cell at 1 a.m. - the evidence as to whether he was asleep was equivocal. There was no evidence of his having a meal at any time and certainly between 1 a.m. and 4:30 a.m. there was no break of any sort. For the reasons I have set out in Mag. App. No. 1443 of 1990 this was a matter to which the magistrate should have been seen to consider. Here there was also evidence from the statements themselves that the appellants will sap. He said, when taxed with a third offence at 3:25 a.m., that he did not commit it but "you have asked so much and that you want me to tell about all. I also did two cases of snatching of gold chains which I will tell you. Don't ask anymore." Those are not the words of a man who is speaking of his free will without pressure being put oh him.

64. I am satisfied that the convictions on charges C and D are not satisfactory and the appeals must be allowed.

65. As regards charges A and B, in the absence of Pham's statement there seems to have been left unresolved the question of why the appellant changed his mind about making a statements. That was a very important matter as to why, having initially elected to remain silent, he then made a full confession.

66. I am satisfied that for that reason the appeals against conviction and charges A and B should also be allowed and all the convictions will be quashed.

67. I will hear counsel as to the question of a re-trial in each appeal.

Representation:

Gary Plowman (D.L.A.) for Appellants in both appeals

G.E. Forlin, Counsel for Crown/Respondent

Having heard counsel and as the Crown very properly did not submit there should be a re-trial in either appeal, there will be no order for re-trial.

Having regard to my conclusions on Mag. App. 1443 of 1990 Mr. Plowman renewed his appeal against sentence. That is allowed in part in that the sentence on charge D will be served concurrently as to 8 months but consecutively as to 7 months, making a total of 22 months.