A new discovery has never been made but it is a serious violation of the procedure, that is, the Judge in the trial of Ho Duy Hai trial, was present at the investigation. This discovery was made thanks to photos of the scene saved in the case file.
Judge Le Quang Hung, chair of the first instance trial of Long An People’s Court against Ho Duy Hai was present at the field experiment on August 20, 2008.
A Judge should have appeared at the hearing of a case, what reason could he have witnessed the defendant experimentally investigation according to the Investigator’s plan?
Because the investigation of the case must be an independent process with court and the judge should not involve in the investigation process. The judge should have received the case only after the investigation was concluded, and could not previously assume that the accused was guilty or not guilty.
After the Procuracy agrees with the conclusion of the investigation and then establishes the indictment, the dossier will be delivered to the Court. The court then assigned a judge to any arbitrator, and it was unlikely that it was in the hands of the judge Le Quang Hung, who was naturally present in the photo of the experimental scene. Please note that the Investigation, Procuracy, and Court agencies are 3 separate agencies, with separate and independent powers of powers.
Regarding this bizarre anomaly, journalist Nguyen Duc analyzed the following:
“In the morning of June 13, Lawyer Tran Hong Phong (protecting the interests of Ho Duy Hai) said that early next week (June 15), he will continue to have a new case providing information and petition for reopening appeal of Ho Duy Hai.
Attorney Phong said about the proceedings, in a photo of the field experiments taken by the investigation agency (August 20, 2008) showed an unexpected fact that was judge Le Quang Hung – who later presided over the preliminary trial. The jurors were present to witness the experimental process of the investigation.
According to Articles 42 and 46 of the CrPC 2003 (now Articles 49 and 53 of the CrPC 2015): The presiding judges must refuse to conduct the procedure or be changed if they have participated as be a witness in that case; or there are other clear grounds to believe that they may not be impartial in their duties.
According to Mr. Phong, although Judge Hung did not formally participate in the investigation process as a witness, his presence and witnessing Ho Duy Hai’s experimental investigation (was a procedure proceedings of the investigation stage and have the meaning equivalent to the role of witnesses) and then he was the presiding judge of the first instance trial so the trial was not impartial and objective.
On the other hand, the presence of judge Le Quang Hung when the case is still in the investigation phase, no investigation conclusions, no indictment but a judge (who is a member of the judicial body) sp his participation was unusual and does not guarantee independence.
From these new facts, lawyer Tran Hong Phong asked the Chief Justice of the Supreme People’s Court to consider and issue an appeal decision according to reopening procedures for this case in accordance with Article 400 of the 2015 Criminal Procedure Code.
On Monday, June 15, sspeaking to the National Assembly, legislator Luu Binh Nhuong said that he “has never seen faith in the judiciary as low as it is now.”
“To be frank and heartbreaking, I have been one of the legal practitioners for decades, advised on judicial reform, and over the past few days I have received a lot of messages and telephone calls from comrades, including the senior Party and State senior comrades saying they have never saw faith in the Vietnamese judiciary as low as now, legislator Nhuong said.
“I have read all the recent cases, examined each issue of Ho Duy Hai case and there are many issues related to the proceedings I discovered without time mentioned here.
It must be said that the mistakes of the procedure and the judiciary should not be handed over to the legislators. Members of the National Assembly have never caused troubles for the country,” he said.
Previously, Deputy Chief Justice of the Supreme People’s Court, Mr. Pham Hong Phong, made a “storm” speech in the parliament on Ho Duy Hai case when he said that questions about the case were “being resisted by forces.” Judge Phong said it was necessary to be wary of “reactionary hostile forces that are claiming the clear separation of three branches of power (legislation, executive and court).
However, according to the article of Báo Sạch (Clean Newspaper), Mr. Pham Hong Phong, although a judge, has never studied Law. Mr. Phong graduated from the Department of Agricultural Economics Management at the Hau Giang School of Economics and Technology in 1987. From 1991-1997, Mr. Phong experienced the following agencies: Hau Giang Department of Agriculture, Hau Giang General Materials Company, Vice Chairman of Long Tri Commune Committee, Deputy Director of District Culture and Sports Center Long My (Hau Giang).
Until July 7, 2007, Mr. Phong abruptly switched to the Court and became Deputy Chief Justice of Long My District (Hau Giang).
Since then, Mr. Phong has advanced in the Court industry when holding important positions such as Deputy Chief Justice, Chief Justice of Hau Giang Provincial Court. In 2018, Chief Justice of the Supreme Court Nguyen Hoa Binh appointed Mr. Phong as Deputy Chief Justice of the Higher People’s Court in Ho Chi Minh City.
Also on June 15, the Ho Duy Hai case was raised in the National Assembly and answered by Chief Justice Nguyen Hoa Binh, but he lied blatantly in the middle of the parliament.
Some people believe that Mr. Nguyen Hoa Binh may not have read the entire file nor had a judge’s degree because he had never been appointed a judge.
Or maybe he has a stubborn nature, quarrels and quarrels for himself regardless of the justice of the Law and human life.
Regarding this event, journalist Nguyen Duc commented on his personal Facebook with the title: Superme judge lies or not familiar with the case, for what reasons?
“The Chief Justice only based on the plea of confession, and the clear testimony in Ho Duy Hai’s trial:” Defendants did not kill,” the Chief Justice absolutely does not know!”
Mr. Nguyen Hoa Binh said at the National Assembly on June 15 morning on Ho Duy Hai case as follows:
… “The police bought similar knives, cutting boards and other items so that Hai and the people involved could identify whether a knife was present at the scene and a weapon. As a result, he took the exact knife used in the case. Although he had different confessions, but when asked, he identified the correct knife which the ward police threw away when cleaning.
There are many other things that cannot be said in a short time. We are willing to exchange information with those legislators who have interest in the case.
Ho Duy Hai had 25 confessions. Hai’s first plea of guilty confession was quite detailed, not a questionnaire. He plead guilty at the critical moments of the case.
Upon receiving the investigation’s conclusions, Hai pleaded guilty. When receiving the indictment of the People’s Procuracy, Hai also confirmed it. After the appeal ended and when he submitted to the country’s President, he did not complain of being victim of legal miscarriage but ask for lighter sentecen. The most active person in complaining is his mother.”
Those are the words that Mr. Nguyen Hoa Binh told the National Assembly! Journalist Nguyen Duc had to say: “It is sophisticate,!”
Mr. Nguyen Duc made the following arguments and evidences:
“Look at the minutes of the appeal hearing to see that Ho Duy Hai has never enjoyed the principle of innocent speculation.
All questions of the Court are intended to accuse Hai. No single sentence confessed, or at least clarified the truth of the case!
-The Appeal Court asked “Investigation agencies have some negligence in the course of operation but the defendant should not use them to complain for legal miscarriage” and “have the defendant admitted the crime and only applied for a sentence reduction?”
Responding to the questions of the Court of Appeal,
Ho Duy Hai replied: The defendant did not kill.
Minutes of the first instance hearing carried out by the People’s Court of Long An province
And here’s Hai’s testimony at the first instance:
Procurator asks: Do defendant commit murder acts?
Ho Duy Hai replied: No
Procurator asked: did the defendant use a chopping board to beat Hong’s head?
Ho Duy Hai said: None
Many times at the first trial and the appeal Ho Duy Hai all complained, testified not to kill.
“The procedural authorities said Hai used a chopping knife to kill the victim … so where is the cutting board? Why did they destroy two important items of evidence?
Violating this procedure has made the case obscure. All the 17 the supreme judges raised their hands again to conclude that: violating the proceedings does not change the nature of the case. That means you are no different from the other two courts,” Journalist Nguyen Duc concluded.