R. v. LE VAN HIEN

No. 582 of 1994

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. (giving the judgment of the Court) :

1. This was an application for leave to appeal against conviction. At the end of the hearing, we granted leave to appeal and, treating the hearing of the application as the hearing of the appeal, allowed the appeal, quashed the convictions and set aside the sentences. We now give reasons for that decision.

2. The applicant who was a Vietnamese boat person was jointly charged with seven others on 2 counts, namely, causing grievous bodily harm with intent and assault occasioning actual bodily harm. He was the 8th defendant in the court below. The 2nd, 4th, 5th, 6th and 7th defendants pleaded guilty after their cautioned statements were admitted into evidence. The 3rd defendant was acquitted upon a submission of no case to answer. The applicant and the 1st defendant were convicted after trial. He was sentenced to 3 years' imprisonment on the 1st count and one year on the 2nd count, both sentences to run concurrently.

3. All the defendants and the two victims of these charges were detainees in the Whitehead Detention Centre. The 1st victim was the leader of the Peace and Order Committee which assisted the Correctional Services Department staff in keeping peace and order inside the camp. The 2nd victim was a member of the Committee and a friend of the 1st victim. On the 27th August 1993, the 1st victim, acting under the instructions of the Correctional Services Department, assisted in apprehending a Vietnamese boat person connected with fighting. Soon after that, the 1st victim was invited by D5 to go to Hut 7B to have tea. The 2nd victim went along with him.

4. When they arrived, they were seated on the third tier of a bunk-bed allocated to D5. D1 and D6 were already there. All five persons sat on the bed. The 1st victim said that D6 then used a vacuum flask to hit him and splashed hot water at him. This was followed by D1 and D5 who hit him and the 2nd victim with a concrete bar wrapped in cloth and a bed metal bar. The two victims jumped to the ground. They were further assaulted by D2, D4 and D7 with hands and feet. When the two victims were lying on the ground, some persons jumped onto them. The 1st victim then passed out. He was later sent to hospital. He sustained very serious injuries including head injuries, a fractured rib, a ruptured spleen and other multiple injuries. He had one of his kidneys removed. The 2nd victim suffered relatively minor injuries including multiple abrasions on the forehead, face and knees.

5. On the following day, the Correctional Services Department announced a search of the camp. The applicant surrendered himself to the authority. He was detained. A few days later, he made two statements under caution admitting that he had assaulted the two victims. At an identification parade, the victims identified D1 to D7, but not the applicant. The 1st victim said that he did not see the applicant inside the hut or attacking him.

6. At the trial, the applicant in his defence said that he was not at the scene of the crime. He admitted that the two statements were made by him voluntarily but said that he did so because he feared mandatory repatriation and hoped that by admitting to these offences he would be put in prison for a long time and hence, could avoid repatriation.

7. In his first ground of appeal, counsel for the applicant submitted that the trial judge was wrong to speculate that the reason for the victim not recognising the applicant must be because there were a number of persons involved in the assault. It was argued that this finding went contrary to the evidence. Counsel diligently went through the evidence of the victim regarding the assault. It appears from his evidence that he was attacked by three persons on the bed and then by another three persons while he was on the ground. He said that he was able to say this because "he could see this with his own eyes" and in fact he repeated this several times in his evidence. He also said that he saw D3 inside the hut being part of the gang although he did not actually see D3 hitting him. Similarly the 1st victim could identify another person who was not the applicant. He was also able to say that before he passed out, people jumped on him.

8. It is quite obvious from his evidence that he was indeed attacked by a number of persons, although he said he did not see the applicant there and could not identity him at the identification parade. It is however important to note that the 1st victim did say that after he was hit while he was on the bunk-bed, he was unable to see anything clearly. It is also obvious that he did not know and would not have known what happened after he had passed out. In fact one of the other defendants had said that he saw the fight inside the hut and ran in to hit the two victims. It seems likely therefore that even after the 1st victim had passed out, the assault might have continued. When he said there was no other person who hit him, he must be referring to the time when he was still conscious.

9. In his statements to the police, the applicant admitted that he and another person had assaulted the two victims. The trial judge had to decide how much weight was to be given to these admissions, particularly in the light of the fact that the 1st victim said he did not see the applicant. In doing so, the judge was, in our view, entitled to take into consideration all the circumstances of the case including the number of persons involved in the attack, the way in which the 1st victim was attacked before he passed out and the possibility that he might be further attacked after he had passed out. We were not persuaded that the trial judge had erred on this aspect of the case.

10. The other grounds of appeal relied on by counsel for the applicant went as follows. The trial judge was wrong to reject the explanation of the applicant for giving two statements to the police which he now said were false. It was submitted that the judge in concluding that the applicant would not have voluntarily surrendered himself when the situation was not forced upon him had failed to consider the possible motive which had prompted the applicant to admit to the assault. It was said that the trial judge was wrong to conclude that the threat of immediate repatriation was not of sufficient gravity to persuade the applicant to falsely admit to a minor assault. It was pointed out that what the applicant had admitted in his statements bore no resemblance to the assaults with which he was charged and of which he was convicted.

11. It is well-known that Vietnamese boat persons dread mandatory repatriation and are prepared to do things which they would not have done under normal circumstances just to avoid it. On the other hand, it is equally well-known that a Vietnamese boat person who has been convicted of a criminal offence will have his chances of settling in other countries very much reduced. There might be various reasons for the applicant to make those admissions to the police. The trial judge was of course not obliged to ascertain what the applicant's real reason or motive was in making them. He was merely deciding whether the applicant's explanation was acceptable or not. Nevertheless, according to the applicant, he had two evils before him, namely, mandatory repatriation or a prison sentence by admitting to an offence. He had chosen what he thought to be the lesser of two evils. In the circumstances of this case, we do not think that the applicant's alleged fear of repatriation could be lightly brushed aside. Afterall, there was evidence which the prosecution was not in a position to dispute that the applicant had on a previous occasion almost been subject to mandatory repatriation which he managed to avoid by hiding himself inside another hut.

12. Furthermore, we think that his explanation must also be considered together with what he had said in his statements. While we do not agree, as counsel for the applicant seemed to suggest, that what the applicant had admitted to were minor offences, we note that what he had said in his statements were noticeably terse and fell far short of the allegations which were made by the victims and for which he was cautioned. In his 1st Statement, he said :

"Ah Cuong and I beat Nguyen Dinh Khoan and Khong Trung Tinh. But whether anybody else beat them later, I do not know."

In his 2nd Statement, he was questioned as follows :

"Q1. You admitted having beaten Nguyen Dinh Khoan and Khong Trung Tinh with Ah Cuong. Do you know Ah Cuong's full name, boat people number and where he lives?

A. I do not know Ah Cuong's name and boat people number. I only know he lives in Hut 7B.

Q2. Did you use any weapon to hit those two Vietnamese males mentioned above?

A. I did not use weapon to hit the two Vietnamese males mentioned above. I only beat them 'with hands and feet'."

13. We observed that his admissions in fact consisted only of the above three answers which were, as counsel put it, the "barest admissions". It is not clear whether the applicant was in fact admitting to what was alleged against him, i.e. that he and a number of other people had attacked the two victims. We think that such short and brief admissions should also be taken into consideration in deciding whether there was any substance in the applicant's explanation with regard to why he made those statements to the police. If his admissions were not really anything similar to the assault on the victims, this would tend to support the contention that he was merely admitting to something much less serious for the purpose of avoiding mandatory repatriation.

14. We think that the trial judge had not given sufficient consideration to the contents of the applicant's admissions as compared with the victims' description of the assault and/or to the explanation offered by the applicant in making such admissions. We also bear in mind that the 1st victim said he did not see the applicant inside the hut and had failed to identify him at the identification parade. Having considered all the circumstances of this case, we must say that we are left with a lurking doubt as to the applicant's guilt on the charges laid against him. That being the case, we are not satisfied that the convictions are safe or satisfactory. The appeal must be therefore allowed.