Chapter 15 POLICE POWERS, CONFESSIONS AND DISCRETION TO EXCLUDE EVIDENCE

Sect. I. Introduction . . . . . . . . . . A. Arrest . . . . . . . . . B. Stop and search . . . . . . C. Entry, search and seizure . . . . D. Questioning and treatment of persons Confessions A. The exclusion rule . . . . . B. Admissibility of a confession . . . C. Challenging a confession . . . . D. Rules and directions . . . . . Related Matters A. Curial confessions . . . . . . B. Admissions in previous proceedings . C. Formal admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Para. 151 152 1514 1520 1530 1556 1594 15118 15122 15145 15148 15152

II.

III.

I. INTRODUCTION
The powers relating to the powers of the police to stop and search persons, to enter 151 and search premises and to seize property therein, to make arrests, to detain persons without charge and after charge and to question persons who have been detained are not clearly set out in comprehensive legislative enactments. The Hong Kong Bill of Rights Ordinance and The Basic Law of Hong Kong contain provisions bearing on the rights of the individual against unlawful interference with his person and property. The Police Force Ordinance contains a number of provisions setting out the police powers of arrest, detention, search and treatment of offenders. These provisions are not comprehensive and are supplemented by the common law. There is no legislation concerning the questioning of suspects. Police officers and other law enforcement officers are directed to follow the guidelines set out in the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security in 1992. [In August 1992, The Law Reform Commission of Hong Kong published a report on arrest. Most of the proposals which can be implemented by administrative measures have been, or are being, implemented. Legislative measures adopted include the Dangerous Drugs, ICAC and Police Force (Amendment) Ordinance which came into operation on the 1 July 2001. It makes provision for the taking of intimate and non-intimate samples. Other proposals requiring legislative change which have not yet been implemented include powers to stop and search, powers of entry, search and seizure, powers of arrest and powers of detention.]

A. Arrest
The Basic Law of Hong Kong, Art 28 28.The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong 152 resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

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Police Force Ordinance (Cap 232), s 50(1)

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Arrest of suspected persons 50.(1) It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of (a) any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or (b) any offence, if it appears to the police officer that service of a summons is impracticable because (i) the name of the person is unknown to, and cannot readily be ascertained by, the police officer; (ii) the police officer has reasonable grounds for doubting whether a name given by the person as his name is his real name; (iii) the person has failed to give a satisfactory address for service; or (iv) the police officer has reasonable grounds for doubting whether an address given by the person is a satisfactory address for service. Criminal Procedure Ordinance (Cap 221), s 101(2) Apprehension of offenders 101.(2) Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence.

An arrestable offence is defined by section 3 of the Interpretation and General Clauses Ordinance (Cap 1) as an offence for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months, and an attempt to commit any such offence. Where a private citizen purports to make and arrest under section 101 of the Criminal Procedure Ordinance (Cap 221), it is a condition precedent that an arrestable offence has in fact been committed. It is not sufficient that the private citizen reasonably suspects that an offence has been committed. It must be established that an arrestable offence has been committed and that the citizen reasonably suspects the arrested person of being guilty of it: R v Self [1992] 3 All ER 476, CA.

What constitutes lawful arrest

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Section 50(1) of the Police Force Ordinance, which is the main arrest provision for police officers, does not use the word arrest at all save in the marginal note. The section states that a police officer may apprehend certain persons. This has been held to mean arrest: Chiu Chung-keng v Commissioner of Prisons (1950) 34 HKLR 65, 70. In general, an arrest is constituted by a physical seizure or touching of the arrested persons body, with a view to his detention; see, for example, R v Brosch [1988] Crim L R 743, CA. But there may also be an arrest by mere words: see Alderson v Booth [1969] 2 QB 216, 53 Cr App R 301, DC (arrest is constituted when any form of words is used which is calculated to bring to the suspects notice, and does so, that he is under compulsion, and he thereafter submits to that compulsion); and R v Inwood 57 Cr App R 529, CA (no magic formula, only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man; different procedures might be needed according to the persons age, ethnic origin, language comprehension, intellectual qualities, and physical or mental disabilities).

Use of force
Criminal Procedure Ordinance (Cap 221), s 101A

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Use of force in making arrest etc 101A.(1) A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. (2) Subsection (1) shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

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What is reasonable force depends on the circumstances: see Lindley v Rutter [1981] QB 128; Crawley v Att-Gen [1987] 1 HKLR 379. A police officer is entitled to use handcuffs or similar methods of restraint where it is necessary to prevent an escape or if the person has attempted to escape or evade arrest: see Osborne v Veitch (1818) 1 F & F 317; Levy v Edwards (1923) 1 C & P 40; Wright v Court (1825) 107 E R 1182; Leigh v Cole (1853) 6 Cox CC 329; R v Taylor (1895) 59 JP 393; Lindley v Rutter, above; Crawley v Att-Gen, above. It would seem that where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself be lawful: R v Taylor (1895) 59 HP 393; Bibby v Chief Constable of Essex (2000) 164 JP 297. The Police General Orders provide guidelines concerning the use of handcuffs.

Information to be given on arrest

Hong Kong Bill of Rights Ordinance, Art 5(2) 5.(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his 156 arrest and shall be promptly informed of any charges against him.

This is a re-statement of the common law position: Christie v Leachinsky [1947] AC 573. At common law, it is recognised that if the accused is aware of the general reasons for his arrest, it is not necessary to inform him: Christie v Leachinsky, above; R v Howell [1981] All ER 383. This is subject to an exception in the case of a person who escapes or produces a situation where it is impractical to inform him of the reason for his arrest: Christie v Leachinsky, above; R v Howell, above. These requirements also apply where a private citizen makes an arrest: HKSAR v IP Kenneth [2006] 2 HKLRD 433, CFI. In Abbassy v Commissioner of Police of the Metropolis 90 Cr App R 250, the Court of Appeal (Civ Div) held that the obligation to inform the person arrested of the ground for the arrest did not involve a requirement to use precise or technical language; what was required was that the person knew why he had been arrested. On the facts, it was held that telling the person arrested that he was arrested for unlawful possession was sufficient. And in Clarke v Chief Constable of North Wales Police, The Independent, (C.S.), 22 May 2000, CA (Civ Div), it was held that the duty to inform the arrestee of the grounds of arrest had been complied with where she was told that the arrest was on suspicion of possession of controlled drugs, notwithstanding that possession of Class C drugs is not an arrestable offence. On the facts, the appellant would have understood that the arrest was for possession of a controlled drug for which there was a power of arrest. It is not necessary that the officer giving the reason for arrest should be the same as the officer depriving the arrestee of his liberty: Dhesi v Chief Constable of West Midlands Police, The Times, 9 May 2000, CA (Civ Div). In Christie v Leachinsky [1947] AC 573 HL, Viscount Simon set out five propositions as to what information should be given to an arrested person (at 587588):
(1) If a policeman arrests without warrant upon reasonable suspicion of crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg by immediate counterattack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal

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or complete code, but to indicate the general principles of our law on a very important matter. These principles equally apply to a private person who arrests on suspicion.

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In R v Chalkley and Jeffries [1998] 2 Cr App R 79, the Court of Appeal, considering Christie v Leachinsky (and, in particular, the speech of Lord Simmonds at 593595), expressed the obiter opinion that the requirement that the person arrested be informed of the ground of arrest would be satisfied if he was told he was being arrested for offence A, in relation to which there were reasonable grounds to suspect his guilt, when there was no actual intention to bring proceedings in relation to that offence, the true motivation being to facilitate the investigation of more serious crime, by taking advantage of his temporary absence from his home. It would seem to follow that if there are grounds for arrest and the individual is told of those grounds upon arrest, the arrest will be lawful despite an ulterior motive, provided only that the ulterior motive falls within the lawful function of the person making the arrest. Where there are grounds for arresting an individual for a number of offences of different levels of seriousness arising out of the same incident, it is unlawful and unfair to arrest and question only in relation to a lesser offence, and then when compromising answers have been made, to reveal that the investigation also relates to a more serious offence; before questioning a suspect, the police must ensure that he is aware of the true nature of the investigation: R v Kirk [2000] 1 Cr App R 400, CA. As to the consequences of a failure to comply with this requirement, see 1533, below. In Wheatley v Lodge [1971] 1 WLR 29, DC, it was held that a police officer arresting a deaf person or somebody who could not speak English had to do what a reasonable person would do in the circumstances. In R v Fu Kat-sui [1989] 2 HKC 526, Bewley J stated that where a police officer was dealing with a suspected illegal immigrant who may not speak Cantonese, all the officer could do in the circumstances was to use his judgment. In Nicholas v Parsonage [1987] RTR 199, DC (followed in Mullady v DPP [1997] COD 422, DC), it was held that where an arrest is made, the person arrested must be told both the offence for which he is being arrested and the general arrest condition used to justify the arrest. It was further held that the phrase at the time of arrest does not mean simply the precise moment at which the constable lays his hands on the defendant and says I am arresting you; it means a short but reasonable period of time around the moment of arrest, both before and after. Whether words were spoken at the time of arrest or not was a matter of fact. Where an arrest is originally unlawful, on the ground that the accused has not been told what acts are alleged to have constituted the offence for which he was arrested, this unlawfulness is cured when he is informed of the details at the police station: R v Kulynycz [1971] 1 QB 367, 55 Cr App R 34, CA. Where the initial arrest is valid and at the time of the arrest it is impracticable, because of the accuseds physical resistance to the arrest, to inform him of the reason for the arrest, the arrest does not become invalid retrospectively when the officer fails to state the ground of arrest at the police station: DPP v Hawkins 88 Cr App R 166, DC. See also Chapman v DPP 89 Cr App R 190 at 197198, DC, and Lewis v Chief Constable of the South Wales Constabulary [1991] 1 All ER 206, CA (Civ Div). In Dawes v DPP [1995] 1 Cr App R 65, DC, the defendant was detained by the automatic activation of the door locks inside a car specially adapted by the police as a trap. It was held on appeal that he was arrested the moment that he was trapped inside the car, and that at that point the police were obliged to inform him of his arrest and his grounds of arrest as soon as practicable. Once the police discharged this duty, the arrest was made lawful. On the facts, the police had fulfilled the duty, but the court recommended that in future the police fix such cars with a device which automatically tells the offender that he has been arrested.

Consequences of arrest
Criminal Procedure Ordinance (Cap 221), s 101(5) Summary apprehension of offender in certain cases 101.(5) Every person who arrests any person under any of the provisions herein contained shall (if the person making the arrest is not himself a police officer) deliver the person so

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arrested, and the property, if any, taken possession of by him, to some police officer in order that he may be conveyed as soon as reasonably may be before a magistrate, to be by him dealt with according to law, or himself convey him before a magistrate, as soon as reasonably may be, for that purpose.

Where a private citizen makes a lawful arrest either at common law or under statute, 158 he should take the arrested person before a magistrate or police officer, not necessarily forthwith, but as soon as reasonably possible: see John Lewis & Co Ltd v Tims [1952] AC 676, HL; Dallison v Caffery [1965] 1 QB 348, CA (Civ Div); HKSAR v IP Kenneth [2006] 2 HKLRD 433, CFI.
Police Force Ordinance, s 51 Person arrested to be delivered to custody of police officer in charge of police station 51.Every person taken into custody by a police officer with or without a warrant, except a 159 person detained for the mere purpose of taking his name and residence or detained under section 54 [power of the police to stop, detain and search see below], shall be forthwith delivered into the custody of the officer in charge of a police station or a police officer authorized in that behalf by the Commissioner.

This differs from the common law position in England and section 30 of the Police and Criminal Evidence Act 1984 which requires that the arrested person shall be taken to a police station as soon as practicable after the arrest. In HKSAR v Yeung Ka-yee & Others [2002] HKEC 1546 the Applicants sought leave to appeal against their conviction on a charge of murder. They had been arrested in Cheung Chau and taken to the rooftop of a villa where the murder had been committed some eight days previously. The police said they did this so as to avoid media attention until such time as they could be taken by boat to a police station for interview. The trial judge had found this was a breach of section 51. On the application Stuart-Moore VP stated that it was not necessary to decide what forthwith in section 51 precisely means. It cannot mean immediately when there are good reasons for a delay.
Police Force Ordinance, s 52(1) Person arrested to be discharged on recognisance or brought before a magistrate 52.(1) Whenever any person apprehended with or without a warrant is brought to the 1510 officer in charge of any police station or a police officer authorized in that behalf by the Commissioner, it shall be lawful for such officer to inquire into the case and unless the offence appears to such officer to be of a serious nature or unless such officer reasonably considers that the person ought to be detained, to discharge the person upon his entering into a recognizance, with or without sureties, for a reasonable amount, to appear before a magistrate or to surrender for service of a warrant of arrest and detention or for discharge at the time and place named in the recognizance; but where such person is detained in custody he shall be brought before a magistrate as soon as practicable, unless within 48 hours of his apprehension a warrant for his arrest and detention under any law relating to deportation is applied for, in which case he may be detained for a period not exceeding 72 hours from the time of such apprehension. Every recognizance so taken shall be of equal obligation on the parties entering into the same and shall be liable to the same proceedings for the entreating thereof as if the same had been taken before a magistrate. Hong Kong Bill of Rights Ordinance, Art 5(3) Liberty and security of persons 5.(3) Anyone arrested or detained on a criminal charge shall be brought promptly before 1511 a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

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At common law once a person is in police custody a police officer may, in order to facilitate an investigation, do what is reasonable, including taking the accused to the scene of the crime and to other places possibly connected with the crime and arrange an identification parade provided his actions are reasonable: Dallison v Caffrey [1965] 1 QB 348.

Reasonable belief or reasonable suspicion

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An officer effecting an arrest must have reasonable belief that the person arrested will be charged with an offence or reasonably suspect he is guilty of an offence: section 50(1) of the Police Force Ordinance, above. The test as to whether reasonable grounds for the suspicion to justify an arrest existed is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there had to be reasonable grounds for forming such a suspicion; such grounds could arise from information received from another (even if it subsequently proves to be false), provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion; but a mere order from a superior officer to arrest a particular individual could not constitute reasonable grounds for such suspicion: OHara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, HL. See also Siddiqui v Swain [1979] RTR 454, 457, DC, in which reasonable grounds to suspect in the English Road Traffic Act 1972, section 8(5) (now the Road Traffic Act 1988, section 7) were said to import the further requirement that the constable in fact suspects; and Parker v Chief Constable of the Hampshire Constabulary (unrep., 25 June 1999, CA (Civ Div)), where it was held that an officer who had reasonable grounds to think it possible that one of two people in a car was someone he was entitled to arrest had been justified in arresting that person. As to having reasonable grounds for suspecting that an offence has been committed, it is not necessary that an officer should have in his mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, however, reasonably suspect the existence of facts amounting to an offence of a kind that he has in mind; unless he can do that, he cannot comply with his obligation to inform the suspect of the grounds of arrest: Chapman v DPP 89 Cr App R 190, DC. The relevant principles regarding arrests made in fact on reasonable suspicion were comprehensively reviewed by the Court of Final Appeal in Yeung May Wan & Others v HKSAR (2005) 8 HKCFAR 137, [2005] 2 HKLRD 212. The appellants were members of a group who demonstrated outside a building containing the Liaison Office of the Central Peoples Government. They were charged, inter alia, with offences of obstructing a public place and willfully obstructing police officers acting in the execution of their duty. At 165, Sir Anthony Mason NPJ stated as follows:

The relevant principles (i) Need for genuine suspicion on reasonable grounds
71. An examination of the legal principles relevant to the two foregoing arguments may begin with the proposition, well-established in relation to powers of arrest which are exercisable on reasonable suspicion of guilt, that the arresting officer must have both a genuine suspicion that the offence in question has been committed and reasonable grounds for that suspicion. 72. Leaving aside for the moment a question concerning the relevance of judicial review (mentioned later in this judgment), Woolf LJ in Castorina v The Chief Constable of Surrey (CA), The Times 15 June 1988, identified the relevant questions as follows: (1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officers state of mind. (2) Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.

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(ii) Suspicion in the mind of the arresting officer

73. The House of Lords in OHara made it clear that when considering whether these subjective and objective requirements have been met, one is concerned solely with what was in the mind of the arresting officer. The House of Lords was dealing in that case with a provision requiring the arresting constable to have reasonable grounds for suspecting [the person arrested] to be a person who is or has been concerned in ...... acts of terrorism and Lord Steyn stated (at 292) that provisions employing such language categorise as reasonable grounds for suspicion only matters present in the mind of the constable. 74. Lord Hope of Craighead (at 298) elaborated upon this as follows: My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised. This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officers own account of the information which he had which matters, not what was observed by or known to anyone else. 75. As Lord Steyn pointed out, it is by virtue of the longstanding constitutional theory of the independence and accountability of the individual constable that the law has come to fasten on the mind of the arresting officer himself: The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. ...... The executive discretion to arrest or not, as Lord Diplock described it in Mohammed-Holgate v Duke [1984] AC 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers. (OHara at 293DE)

(iii) Who is the arresting officer?

76. The arresting officer is the constable who actually effected the arrest. Where several constables take part, they each qualify as an arresting officer. In Hussien v Chong Fook Kam [1970] AC 942 at 947, Lord Devlin explained what in law amounts to an arrest: An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make inquiries.

(iv) Reasonable suspicion must relate to the material elements of the relevant offence
77. For the arresting officer to meet the statutory requirements of PFO s 50, the facts reasonably suspected by him to exist must be such that, if true, they would constitute the necessary elements of the offence for which the power of arrest is sought to be exercised. As Sedley LJ in Clarke v Chief Constable of North Wales Police [1997] EWCA Civ 2432 (7 October 1997) put it: ...... the power of arrest without warrant depends on the existence in the mind of the arresting officer of reasonable suspicion of the material elements of an arrestable offence ...... (para 23) 78. This is illustrated by Chapman v DPP (1988) 153 JP 27 where the power of arrest depended on the constable having a reasonable suspicion that the person to be arrested had committed an arrestable offence, meaning an offence punishable with 5 years imprisonment. Bingham LJ pointed out that it was: ...... therefore necessary to consider ...... what arrestable offence, or what facts amounting to an arrestable offence, [the constable] reasonably suspected to have occurred. (at 33)

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79. The magistrates found that, on the basis of information received from fellow officers, the constable suspected and had reasonable grounds for suspecting either a common assault or an assault on a police officer in the execution of his duty. However, neither of those offences were arrestable offences. An assault with the additional element of occasioning actual bodily harm was an arrestable offence. But there was no evidence and no finding by the magistrates that the constable had acted on suspicion or had reasonable grounds for suspecting that bodily injury was a material element of the offence for which he was making the arrest. Bingham LJ added: It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind. (at 34) 80. The requirement is therefore one of substance and not of technicality. It complements the related rule that upon making an arrest, the arresting officer must in ordinary circumstances inform the person arrested in substance (without the necessity of using technical or precise language) of the reason for the arrest: see Christie v Leachinsky [1947] AC 573 at 587. 81. In relation to a public place obstruction offence, a material element is that the obstruction was unreasonable and the fact that the constitutional right to demonstrate was being exercised has to be given substantial weight when assessing reasonableness.

(v) The standard of reasonable suspicion

82. As noted above, the standard set by PFO s 50 is one requiring the arresting officer to have formed, at the time of arrest, a genuine suspicion of guilt held on grounds which are objectively reasonable. What is needed to meet that standard in any particular case is a question of fact and degree. 83. In Hussien v Chong Fook Kam [1970] AC 942 at 948 (PC), Lord Devlin emphasised that proving a reasonable suspicion is not the same as showing a prima facie case, describing the latter as importing a much stiffer test. His Lordship continued: Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. (at 948) 84. Lord Devlin (at 949) also pointed out that prima facie proof consists of admissible evidence whereas suspicion can take into account matters that could not be put in evidence at all. 85. The requirement that the suspicion be reasonable stiffens the test. As Sir Fredrick Lawton pointed out in Castorina v The Chief Constable of Surrey (above): Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which a court would adjudge to be reasonable.

(vi) The source and grounds for reasonable suspicion

86. Where the factual basis for the suspicion is within the arresting officers own knowledge, for instance, where he witnesses a crime in progress, the application of the reasonable suspicion test is straightforward. However, in a modern police force, officers necessarily operate as a team subject to a chain of command. The information upon which arrests are made may come from a variety of sources, for instance, calls for assistance from fellow officers picked up on a beat radio, surveillance and detection reports by other police units, information from Interpol and reports from informants and members of the public. Often, as in the present case, a team of officers will be briefed about suspected offences by superior officers just prior to an operation. 87. These are matters which have received recognition in the case-law. The focus remains on the mind of the arresting officer who must be shown to have a genuine and reasonable suspicion that the person arrested has committed a relevant offence, having in mind the material elements of that offence. But that officers reasonable suspicion may properly be based upon any of those sources of hearsay information provided that such information leads him to form a genuine suspicion on grounds which an objective observer would regard as reasonable. 88. Lord Steyn in OHara (at 293) stated: In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be

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enough: Hussien v Chong Fook Kam [1970] AC 942, 949. ...... Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers: Hussiens case, ibid. 89. Lord Hope put it thus: The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances. (OHara at 298) 90. Dealing with police teamwork, Lord Hope added: Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised. (at 301302) 91. In an operation such as that conducted in the present case, the arresting officers may be subject to the supervision of superior officers throughout and it may be on the order of a superior officer that they initiate the arrest action. It is recognised that, realistically, the arresting officer will generally not be in a position to question that order. Indeed every police officer is under a statutory duty to obey all lawful orders of his superior officers and is liable to dismissal for failure to do so: see ss 30 and 31 of the Police Force Ordinance, Cap 232. As Lord Roskill noted in McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358 at 1361: The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what information they are founded. 92. However, this does not mean that the arresting officer is entitled simply to rely on the fact that a superior officer has ordered the arrest. It remains essential that the arresting officer must be equipped with a sufficient factual basis to found, in his own mind, the requisite reasonable suspicion. It follows that where, for instance, a briefing precedes the arrest action, the officer giving the briefing must be careful to impart sufficient information to provide a proper factual basis for a reasonable suspicion. And where the lawfulness of the arrest is subsequently challenged, evidence of the contents of the briefing may be important. 93. Lord Steyn dealt with orders from superior officers as follows: Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute vesting an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference. ...... Such an order to arrest cannot without some further information being given to the constable be sufficient to afford the constable reasonable grounds for the necessary suspicion. (at 293294)

(vii) Applicability of judicial review principles

94. The provisions of PFO s 50 give the police officer the power to arrest upon the reasonable suspicion condition being met. But he obviously has a discretion and is not obliged to make an arrest in every case where such condition is satisfied. Indeed, the authorities show that there may be cases where, notwithstanding the existence of a reasonable suspicion of guilt, an

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arrest may be made in bad faith or otherwise be made in circumstances justifying a judicial review on the basis laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In Mohammed-Holgate v Duke [1984] AC 437 at 443, Lord Diplock, having noted that the conditions precedent for an arrest had been fulfilled in the case at hand, continued as follows: ...... since the wording of the subsection under which he acted is may arrest without warrant, this left him with an executive discretion whether to arrest her or not. Since this is an executive discretion expressly conferred by statute upon a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except upon those principles laid down by Lord Greene MR in [the Wednesbury case] ..... The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.

Entry of premises to affect arrest

Police Force Ordinance (Cap 232), s 50(3)

1513

50.(3) If any police officer has reason to believe that any person to be arrested has entered into or is in any place the person residing in or in charge of such place shall on demand of that police officer allow him free ingress thereto and afford all reasonable facilities for search therein.

This section does not allow a police officer to enter private premises simply to conduct investigations: R v Chan Oi Lin [1985] HKC 138.

B. Stop and Search

Police Force Ordinance, s 50(6)

1514

50.(6) Where any person is apprehended by a police officer it shall be lawful for such officer to search for and take possession of any newspaper, book or other document or any portion or extract therefrom and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed: Provided that nothing in this subsection shall be construed in diminution of the powers of search conferred by any particular warrant.

The power to seize items is restricted to those items which the officer reasonably suspects to be of value in the investigation of an offence committed by that person. A police officer ordering a search must have reasons for doing so and reasonable grounds for apprehending the suspect must persist at that time: R v Chan Sai-leong [1989] 2 HKLR 385.
Police Force Ordinance, s 54(1)

1515

54.(1) If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, who acts in a suspicious manner, it shall be lawful for the police officer (a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer; (b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time; and (c) if the police officer considers it necessary to do so (i) to search the person for anything that may present a danger to the police officer; and (ii) to detain the person during such period as is reasonably required for the purpose of such a search.

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The suspicion required under this provision does not have an objective element, there is no requirement the suspicion be reasonable but there must be evidence that the officer did in fact have a suspicion. An officer who has an intuitive suspicion may lawfully stop and search under section 54 although he may only arrest and detain where it is necessary: Att-Gen v Kong Chung-shing [1980] HKLR 533. The search is limited to anything that might present a danger to the officer. It would not permit a detailed search.
Police Force Ordinance, s 54(2) and (3) 54.(2) If a police officer finds any person in any street or other public place, or on board 1516 any vessel, or in any conveyance, at any hour of the day or night, whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence, it shall be lawful for the police officer (a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer; (b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time; (c) to search the person for anything that is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit; and (d) to detain the person during such period as is reasonably required for the purpose of such a search. (3) In this section, proof of identity has the same meaning as in section 17B of the Immigration Ordinance (Cap 115).

Subsection (2) of section 54 provides wider powers of search than those provided in subsection (1). The periods of detention are limited to such periods as are reasonably required for the search. Section 54 carries no power of arrest. If an officer wishes to arrest a person he has detained he must comply with the provisions of section 50(1) of the Police Force Ordinance. There is no power to stop and search at common law, therefore an officer must comply strictly with the statutory requirements when he does stop and detain a person: Kenlin v Gardner [1967] 2 QB 510, [1966] 3 All ER 931. An officer is permitted to stop a person to whom he wishes to speak; Donnelly v Jackman [1970] 1 WLR 562, 54 CR App R 229; Daniel v Morrison (1979) 69 Cr App R 142. Section 49 of the Public Order Ordinance (Cap 245) permits a police officer to require any person to produce proof of identity for inspection for the purpose of preventing, detecting or investigating any offence for which the person may be imprisoned. Any person failing to comply commits an offence. There is no requirement that such a request be made in a public place.
Offences against the Person Ordinance (Cap 212), s 56 Apprehension of person loitering at night and suspected of indictable offences 56.Any police officer may take into custody, without a warrant, any person whom he 1517 finds lying or loitering or being in any highway, yard, or other place during the night, and whom he has good cause to suspect of having committed, or being about to commit, or intending to commit any indictable offence mentioned in this Ordinance, and shall take such person, as soon as reasonably may be, before a magistrate, to be dealt with according to law. Immigration Ordinance (Cap 115), s 17C 17C.(1) Every person who 1518 (a) has attained the age of 15 years; and (b) (i) is the holder of an identity card or is required to apply to be registered under the Registration of Persons Ordinance (Cap 177); or (ii) is the holder of a Vietnamese refugee card, shall have with him at all times proof of his identity. (2) A person who is required by subsection (1) to have with him proof of his identity shall on demand produce it for inspection by (a) any police officer;

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(b) any immigration officer or immigration assistant; or (c) any person or member of a class of persons authorized for the purpose by the Governor by order published in the Gazette, who is in uniform or who produces, if required to do so, documentary identification officially issued to him as proof of his appointment as a police officer, immigration officer, immigration assistant or, as the case may be, person authorized under paragraph (c). (3) Any person who fails to produce proof of his identity for inspection as required by subsection (2) commits an offence and is liable on conviction to a fine at level 2: Provided that it shall be a defence in proceedings for an offence under this subsection for the person charged to prove that he had reasonable excuse for failing to produce proof of identity. (4) In respect of any failure to produce proof of identity for inspection as required by subsection (2), it shall be reasonable excuse for the purposes of subsection (3) if at the date of the alleged offence the defendant had no proof of identity with him because all proof of identity of which he was the holder, including any document specified in section 17B(b)(ii), had been lost or destroyed and (a) he had reported the loss or destruction to a police officer at a police station or, in the case of an identity card, to a registration officer; or (b) he had had no opportunity so to report the loss or destruction. (5) Where the Governor authorizes any person or class of persons for the purposes of subsection (2)(c) he may limit the authority of such persons to such area, place or occasion or in such other manner as is specified in the order by which the authority is given. (6) Nothing in this section shall affect the operation of any order made under regulation 11(1) of the Registration of Persons Regulations (Cap 177 sub leg) (relating to the compulsory carrying of identity cards). Public Order Ordinance (Cap 245), s 33(6)

1519

33.(6) Where a police officer reasonably believes that (a) an offence against section 18 or 19 [unlawful assembly and riot respectively] has been committed, is being committed or may be committed in any place; and (b) offensive weapons have been or may be used in the course of the commission of such offence, he may, within the vicinity of such place, stop and search any person in a public place in order to ascertain whether that person has been guilty of an offence against this section.

C. Entry, Search and Seizure (1) Introduction

The Basic Law of Hong Kong, Arts 29 30

1520

29.The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a residents home or other premises shall be prohibited. 30.The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences. Hong Kong Bill of Rights, Art 14

1521

Protection of privacy, family, home, correspondence, honour and reputation 14.(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.

There are a number of statutes which empower a magistrate to issue a warrant to search for and seize items and to enter premises for the purpose of doing so. These include a variety of statutes authorising a magistrate to issue a warrant authorising a police officer to search for and seize certain items and to enter premises for the purpose of doing so.

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Certain statutes apply not only to police officers but to a wide range of government officials including Independent Commission Against Corruption officers, Inland Revenue Commissioners, and Customs and Excise officials. Almost all legislation relating to any aspect of public health or safety contains enforcement provisions, including powers of inspection, entry and search.

(2) Statute
Police Force Ordinance, s 50(7) 50.(7) Whenever it appears to a magistrate upon the oath of any person that there is 1522 reasonable cause to suspect that there is in any building, vessel (not being a ship of war or a ship having the status of a ship of war) or place any newspaper, book or other document, or any portion or extract therefrom, or any other article or chattel which is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that has been committed, or that is reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, such magistrate may by warrant directed to any police officer empower him with such assistants as may be necessary by day or by night (a) to enter and if necessary to break into or forcibly enter such building, vessel or place and to search for and take possession of any such newspaper, book or other document or portion of or extract therefrom or any such other article or chattel which may be found therein; and (b) to detain, during such period as is reasonably required to permit such a search to be carried out, any person who may appear to have such newspaper, book or other document or portion thereof or extract therefrom or other article or chattel in his possession or under his control and who, if not so detained, might prejudice the purpose of the search.

It is not a condition precedent to the issue of a warrant that other methods have been tried and failed or would be bound to fail, nor that other statutory procedure for securing the material exists: Billericay Justices and Dobbyn, Ex p Frank Harris (Coaches) Ltd [1991] CLR 472. Where there are grounds for seeking search warrants, the police are entitled to choose when to apply for them and when, within the time permitted by law, to execute them: Chief Constable of Warwickshire Constabulary, Ex p Fitzpatrick [1999] 1 WLR 564. The only permitted use of the seized articles is for the purpose of investigating and prosecuting crime, after which they must be returned to their true owner. Documents and information may be communicated to others for the purpose of investigation and prosecution, and may perhaps disclosed to other public authorities. They may not be made available to private individuals for private purposes: Marcel v Commissioner of Police for the Metropolis [1992] Ch 225. Where there is an assertion that material seized is subject to legal professional privilege, the issue should be determined in advance of trial by way of judicial review: Shun Tak Holdings Ltd & Others v Commissioner of Police [1995] 1 HKCLR 48.

(3) Search and seizure of journalistic material

Special provisions exist for the search and seizure of journalistic material. Section 82 1523 of the Interpretation and General Clauses Ordinance defines journalistic material as material acquired or created for the purpose of journalism.
Interpretation and General Clauses Ordinance, ss 83 89 Power to enter and search or seize 83.A provision in any Ordinance which confers on, or authorizes the issue of a warrant 1524 conferring on, any person the power to enter any premises and to search the premises or any person found on the premises or to seize any material (whether of a general or particular kind and whether or not the word material is used in that provision) shall not, in the absence of an express provision to the contrary, be construed as conferring, or authorizing the issue of a

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warrant conferring, a power to enter premises where such entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material. Application for production order in respect of journalistic material 84.(1) A person on whom there is or may be conferred under a provision in any Ordinance, being a provision to which section 83 applies, the power to enter any premises and to search the premises or any person found on the premises or to seize any material, may apply to a judge of the Court of First Instance or District Court for an order under subsection (2) in relation to material which is known or suspected to be journalistic material. (Amended 26 of 1998, s 33) (2) If on an application under subsection (1) a judge is satisfied that the conditions in subsection (3) are fulfilled he may make an order that the person who appears to be in possession of journalistic material specified in the application shall (a) produce it to the applicant to take away; or (b) give the applicant access to it, not later than the end of the period of 7 days from the date of the order or the end of such longer period as the order may specify. (3) The conditions to be fulfilled for the purposes of subsection (2) are that (a) there are reasonable grounds for believing (i) that an arrestable offence has been committed; (ii) that there is material which consists of or includes material known or suspected to be journalistic material on premises specified in the application; (iii) that the material is likely to be (A) of substantial value to the investigation of the arrestable offence; or (B) relevant evidence in proceedings for the arrestable offence; (b) but for section 83 the applicant would be or could have been authorized under the provision mentioned in subsection (1) to enter onto the premises specified in the application and to search the premises or a person found on the premises or to seize the material specified in the application; (c) other methods of obtaining the material (i) have been tried and failed; or (ii) have not been tried because they were unlikely to succeed or would be likely to seriously prejudice the investigation; and (d) there are reasonable grounds for believing that it is in the public interest that an order should be granted, having regard to (i) the benefit likely to accrue to the investigation; and (ii) the circumstances under which a person in possession of the material holds it. (4) An application for an order under subsection (2) shall be made inter partes. (5) Any person who without reasonable cause fails to comply with an order made under subsection (2) commits an offence and is liable to a fine at level 6 and to imprisonment for 1 year. Application for warrant to seize journalistic material 85.(1) A person on whom there is or may be conferred under a provision in any Ordinance, being a provision to which section 83 applies, the power to enter any premises and to search the premises or any person found on the premises or to seize any material, may apply to a judge of the Court of First Instance or District Court for the issue of a warrant under subsection (3) authorizing him to enter those premises for the purpose of searching for or seizing material which is known or suspected to be journalistic material. (Amended 26 of 1998, s 34) (2) An application for a warrant under this section shall not be made unless it has been approved by a person specified in Schedule 7 to be a directorate disciplined officer. (3) If on an application under subsection (1) a judge (a) is satisfied (i) that the conditions specified in section 84(3)(a), (c) and (d)(i) are fulfilled; and (ii) that one of the further conditions set out in subsection (5) is also fulfilled; or (b) is satisfied that an order under section 84 relating to the material has not been complied with, he may, subject to subsection (4), issue a warrant authorizing the applicant to enter onto the premises and to search the premises and any person found on the premises and to seize any material. (4) A warrant issued under subsection (3) shall not authorize any entry, search or seizure other than such entry, search or seizure as, but for section 83, would be or could have been authorized under the provision mentioned in subsection (1). (5) The further conditions mentioned in subsection (3)(a)(ii) are

1525

1526

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(a) that it is not practicable to communicate with any person entitled to grant entry to the premises to which the application relates; (b) that while it might be practicable to communicate with a person entitled to grant entry to the premises, it is not practicable to communicate with any person entitled to grant access to the material; (c) that service of notice of an application for an order under section 84(2) may seriously prejudice the investigation. (6) Subject to subsection (7), it shall be a term of any warrant issued under this section that a person who seizes journalistic material pursuant to the warrant shall seal the material upon seizure and shall hold the sealed material until otherwise authorized or required under section 87. (7) Subsection (6) shall not apply where the judge is satisfied that there may be serious prejudice to the investigation if the applicant is not permitted to have immediate access to the material. (8) Any person empowered by a warrant issued under this section may (a) use such force as may be necessary to enter the premises specified in the warrant; (b) on the premises, seize such material, including journalistic material, as may be found and as but for section 83 he would be or could have been authorized under the provision mentioned in subsection (1) to take possession of; (c) detain for a reasonable period any person found on the premises who may have such material in his possession or under his control and who if not so detained may prejudice the purpose of the search. Further provision for warrants under section 85 86.(1) A warrant issued under section 85, other than a warrant to which subsection (7) of 1527 that section applies, shall (a) specify the name of the applicant and the court issuing the warrant; (b) contain a statement setting out (i) the terms of the warrant applying by virtue of subsection (6) of that section; (ii) the rights conferred under section 87 to apply within a specified period for the immediate return of journalistic material seized under the warrant, and the consequences provided for in that section of not so applying. (2) A person executing or seeking to execute such a warrant shall (a) where the occupier of the premises being entered is present, supply the occupier with a copy of the warrant; (b) where the occupier of the premises is not present but some other person who appears to be in charge of the premises is present, supply that person with a copy of the warrant; (c) if there is no person present who appears to be in charge of the premises, leave a copy of the warrant in a prominent place on the premises. (3) Where pursuant to such a warrant material is seized which is required to be sealed and held, the person executing the warrant shall make an endorsement on the warrant setting out details of such material and shall return the warrant to the court from which it was issued. Procedure in relation to sealed material 87.(1) A person from whom journalistic material has been seized pursuant to a warrant 1528 issued under section 85, other than a warrant to which subsection (7) of that section applies, or a person claiming to be the owner of such material, may within 3 days of such seizure apply to the court from which the warrant was issued for an order under subsection (2). (2) On an application under subsection (1), unless the judge is satisfied that it would be in the public interest that the material be made use of for the purposes of the investigation, he shall order that the material be immediately returned to the person from whom it was seized; and in making a determination under this subsection the judge shall have regard to, among other things, the circumstances under which the material was being held at the time of its seizure. (3) If on an application under subsection (1) the judge determines not to grant an order under subsection (2), or where no application has been made under subsection (1) within the period specified in that subsection, the material may be unsealed. (4) For the purpose of determining an application under subsection (1) a judge may require the person who seized the material to produce it to the judge for examination by him. (5) An application for an order under subsection (1) shall be made inter partes. Provisions supplementary to section 84 88.(1) In relation to material consisting of information contained in a computer

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(a) an order under section 84(2)(a) shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and (b) an order under section 84(2)(b) shall have effect as an order to give an applicant access to the material in a form in which it is visible and legible. (2) Notice of an application for an order under section 84(2) may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter. (3) Such a notice may be served (a) on a body corporate, by serving it on a person who is an officer of the body within the meaning of section 2(1) of the Companies Ordinance (Cap 32); and (b) on a partnership, by serving it on one of the partners. (4) For the purposes of section 84, the proper address of a person (a) in the case of an officer of a body corporate, shall be that of the registered or principal office of that body; (b) in the case of a partner of a firm, shall be that of the principal office of the firm; and (c) in any other case, shall be the last known address of the person to be served. (5) Where notice of an application for an order under section 84 has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except (a) with the leave of a judge; or (b) with the written permission of the applicant, until (i) the application is dismissed or abandoned; or (ii) he has complied with an order under section 84 made on the application. (6) Any person who knowingly contravenes subsection (5) commits an offence and is liable to a fine at level 6 and to imprisonment for 1 year.

1529

Miscellaneous 89.(1) The costs of any application under this Part and of anything done or to be done in pursuance of an order made under it shall be at the discretion of the judge. (2) For the avoidance of doubt, it is declared that nothing in this Part shall be construed as requiring a judge to make an order under this Part where he considers that, in all the circumstances of the case, it would not be in the public interest to make that order. (3) Unless a judge otherwise directs, proceedings inter partes under this Part shall be held in open court. (4) Rules of court may provide for the practice and procedure applying to proceedings under this Part.

D. Questioning and Treatment of Persons (1) Introduction

1530
There are no detailed provisions for the treatment of persons detained in police custody similar to the extensive provisions contained in the Police and Criminal Evidence Act 1984. The Act has been supplemented by a series of codes of practice. The treatment of persons in police custody is dealt with by the Police General Orders which do not have the force of law but officers who breach them may face disciplinary proceedings. The Rules and Directions for the Questioning of Suspects and the taking of Statements (The Rules and Directions) issued by the Secretary for Security in 1992 deal not only with the questioning of suspects but also a variety of matters concerning the treatment of persons in police custody. They replaced and expanded the old Judges Rules. As with the old Judges Rules, the Rules and Directions are not rules of law but their breach may lead to the exclusion of a statement by an accused: see below.
Hong Kong Bill of Rights, article 6

1531

Rights of persons deprived of their liberty 6.(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. (2) (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

950

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(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. (3) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

(2) Searches of detained persons

The Police General Orders require that a person detained in police custody is 1532 searched on detention and the Duty Officer is responsible for the handling of prisoners property.

(3) Right to have someone informed when arrested

Direction 8(a) provides that provided no unreasonable delay or hindrance is likely to 1533 be caused to the processes of investigation of the administration of justice, a person in custody, or present with the police and under investigation by them, should be allowed to speak on the telephone to his friends. Direction 8(d) provides that a person in custody, or present with the police and under investigation by them, should be informed of his rights and the facilities available to him, and in addition notices describing them should be displayed at convenient and conspicuous places at police stations. There are no special provisions for children and young persons save that they should only be interviewed in the presence of a parent or guardian, or, in their absence, a person not a police officer of the same sex. In addition, a child or young person should not be arrested or even interviewed at school if such action can possibly be avoided. Where it is essential to conduct the interview at school the consent of the head teacher or his nominee should be obtained: direction 5 of the Rules and Directions.

(4) Access to legal advice

Article 11(2)(b) of the Bill of Rights provides that in the determination of any crim- 1534 inal charge against him, every person shall be entitled, as a minimum guarantee, in full equality, to have adequate time and facilities for the preparation of his defence and to communicate with the counsel of his own choosing.
Rules and Directions for the Questioning of Suspects and the Taking of Statements, direction 8 Facilities for defence 8.(a) Provided that no unreasonable delay or hindrance is reasonably likely to be caused 1535 to the processes of investigation or the administration of justice: (i) A person in custody, or present with the police and under investigation by them, should be allowed to speak on the telephone to his friends and consult and communicate privately, whether in person or in writing or on the telephone, with a solicitor or barrister. He shall be provided on request with a current list of solicitors provided by the Law Society. (ii) A person in custody, or present with the police and under investigation by them, should be allowed to have a solicitor or barrister present to advise him at any interview between that person and a police officer. (iii) A solicitor or barrister claiming to have been instructed by a third party to act on behalf of a person in custody, or present with the police and under investigation by them, should be allowed to communicate privately with that person, unless the person states, in the presence of only the requesting lawyer and an independent officer not below the rank of inspector, or a sergeant if an inspector is not available, that he does not wish to consult with the lawyer concerned. (iv) The letters of a person in custody, or present with the police and under investigation by them, should be sent by post or other (v) A person who has made a cautioned statement or answered questions under caution is entitled to a copy of such statement or record of interview and this

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should be supplied as soon as possible after each interview. The only exception is where hindrance is reasonably likely to be caused to the administration of justice. If it is decided to deny a person a copy of his cautioned statement or record of interview, the reasons for this decision must be fully recorded, either within detention records or the investigating officers notebook. In such circumstances, no further statements should be obtained and no further interviews should be conducted with that person until a copy of the cautioned statement or record of interview has been made available. A refusal must not continue beyond the point where the person is formally charged. To deny a person a copy of his cautioned statement or record of interview is a serious matter and such action may be the subject of enquiry at his subsequent trial. (b) A police officer may only delay or prevent communication between a solicitor or barrister and a person in custody, or present with the police and under investigation by them, if he has reasonable grounds for believing that unreasonable delay, or hindrance to the processes of investigation or to the administration of justice, is likely to be caused if such communication is permitted. The fact that a solicitor or barrister might advise that person not to make, or continue to make, a statement, or not to answer questions, or not to assist the police in their enquiries, should not in itself be treated by a police officer as a ground for delaying or preventing communication between the solicitor or barrister and that person. (c) A person in custody or present with the police and under investigation by them, should be supplied on request with writing materials. (d) A person in custody, or present with the police and under investigation by them, should be informed of his rights and the facilities available to him, and in addition notices describing them should be displayed at convenient and conspicuous places at police stations.

1536

In R v Samuel [1988] QB 615, 87 Cr App R 232, Hodgson J, giving the judgment of the Court of Appeal, describing the right of access to legal advice as one of the most important and fundamental rights of a citizen (at 630, 245). Where it is sought to justify denial of the right of access to a solicitor on reasonable grounds, that cannot be done except by reference to specific circumstances, including evidence about the person detained or the actual solicitor involved. Section 56(8) of the Police and Criminal Evidence Act only allows a police officer to delay access to a solicitor where the officer has reasonable grounds for believing that allowing access will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or will hinder the recovery of any property obtained as a result of such offence.
Therefore, inadvertent or unwitting conduct apart, the officer must believe the solicitor will, if allowed to consult with a detained person, thereafter commit a criminal offence. Solicitors are officers of the court. We think that the number of times that a police officer could genuinely be in that state of belief will be rare. Moreover it is our view that, to sustain such a basis for refusal, the grounds put forward would have to have reference to a specific solicitor. We do not think they could ever be successfully advanced in relation to solicitors generally [Samuel, above, at 626, 242].

(5) Questioning of suspects

1537
Section 11(2)(b) of the Hong Kong Bill of Rights Ordinance guarantees that in the determination of any criminal charge everyone shall be entitled not to be compelled to testify against himself or to confess guilt.
Rules and Directions for the Questioning of Suspects and the Taking of Statements, rr I III

1538

I. When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it. II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.

952

Sect. I]

Introduction

1541

The caution shall be in the following terms: You are not obliged to say anything unless you wish to do but what you say may be put into writing and given in evidence. When after being cautioned a person is being questioned, or elects to make a statement, a contemporaneous record shall be kept, so far as is practicable, of the time and place at which any such questioning or statement began and ended and of the persons present. III. (a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms: Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. (b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the pubic or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused should be cautioned in these terms: I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence. Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or if he refuses by the interrogating officer. (c) When such a person is being questioned, or elects to make a statement, a contemporaneously record shall be kept, so far as is practicable, of the time and place at which any questioning or statement began and ended and of the persons present. Rules and Directions for the Questioning of Suspects and the Taking of Statements, principle (d) (d) when a police officer who is making enquiries of any person about an offence has 1539 enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence.

(6) Recording of interviews

The Rules and Directions provide guidance to police officers as regards the taking of 1540 statements from suspects under caution but unlike the situation in other jurisdictions there are no special provisions relating to the tape-recording or visual recording of interviews. Special provisions are made for children and young persons under 16 but not for other vulnerable persons.
Rules and Directions for the Questioning of Suspects and the Taking of Statements, rr 4 6 Written statements Rule IV.All written statements made after caution shall be taken in the following manner 1541 (a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say, if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. If he accepts the offer the police officer shall, before starting, ask the person making the statement to sign, or make his mark to, the following: I, , wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence. (b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material. (c) The person making the statement, if he is going to write it himself, shall be asked to write out and sign before writing what he wants to say, or before any questioning, the following

953

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Police Powers, etc

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I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence. (d) Whenever a police Officer writes the statement he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters; he shall not prompt him. (e) When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations, or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following Certificate at the end of the statement: I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will. (f) If the person who has made a statement refuses to read it or to write the abovementioned Certificate at the end of it or to sign it, the senior police officer present shall record on the statement itself, and in the presence of the person making it, what has happened. If the person making the statement cannot read, or refuses to read it, the officer who has taken it down shall read it over to him and ask him whether he would like to correct, alter or add anything to what has been recorded and to put his signature or make his mark at the end. The police officer shall then certify on the statement itself what he has done.

1542

Written records Rule V.The questioning of suspects shall be recorded in the following manner: (a) Accurate records must be made of each interview with a person suspected of an offence. (b) If an interview with a suspect takes place in a police station, or other premises providing reasonable privacy and facilities for such interview, a contemporaneous written record of the interview must be made. The only exception to this rule will be where equipment is available to record the interview by mechanical means. (c) Where a contemporaneous written record of an interview has been made, it must immediately after completion be read over to the suspect, and he should be given the opportunity to read it. The suspect must also be given an opportunity to make any corrections alterations or additions he wishes to the record, and afterwards he should be invited to write and sign the following Certificate at the end of the record. I, have read the above record of interview, consisting of ........ pages. It is an accurate record of questions asked, and answers I provided. (Signed) If the suspect cannot read, or refuses to read the record, or to write and sign the Certificate, the senior officer present shall record within the record of interview, and in the presence of the suspect, what has happened. Nothing recorded in a record of interview shall be obliterated by either the interviewing officer or the suspect. The record must accurately reflect the total of what occurred during the interview. [Rule VI.If at any time after a person has been charged with, or has been informed that he may be prosecuted for an offence, a police officer wishes to bring to the notice of that person any written statement made by, or record of an interview with, another person, who in respect of the same offence has also been charged or informed that he may be prosecuted, he shall hand to that person a true copy of such written statement or record of interview, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as prescribed by Rule lll(a).] Rules and Directions for the Questioning of Suspects and the Taking of Statements, direction 5

1543

Interrogation of children and young persons 5.As far as practicable, children and young persons under the age of 16 years (whether suspected of crime or not) should only be interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child. A child or young person should not be arrested, or even interviewed at school if such action can possibly be avoided. Where it is found essential to conduct the interview at school, this should be done only with the consent, and in the presence, of the head teacher, or his nominee.

954

Sect. I]

Introduction (7) Identification

1546

An arrested person is not obliged to participate in an identification parade. Police 1544 procedures require that a suspect be handed a notice informing the suspect of this right: see below. The notice will inform the suspect that evidence of the suspects refusal to participate in a parade may be given in evidence in subsequent court proceedings at which time the witness may be given the opportunity of identifying the suspect and that the police may make alternative arrangements for identification. No adverse inference may be drawn from a suspects refusal to participate in an identification parade: R v Ip Lai-sheung [1988] HKLY 229.

(8) Fingerprints, intimate photographs and other samples

Police Force Ordinance, ss 59 59H Finger-prints, photographs, etc 59.(1) Where a person has been arrested under the powers conferred by this or any other 1545 law, any police officer may take, or cause to be taken under the supervision of a police officer (a) photographs, finger-prints, palm-prints and the weight and height measurements of that person; and (b) sole-prints and toe-prints of that person if the officer has reason to believe that such prints would help the investigation of any offence. (2) The identifying particulars of a person taken under subsection (1) may be retained by the Commissioner, except that if (a) a decision is taken not to charge the person with any offence; or (b) the person is charged with an offence but discharged by a court before conviction or acquitted at his trial or on appeal, the identifying particulars, together with any negatives or copies thereof, shall as soon as reasonably practicable be destroyed or, if the person prefers, delivered to that person. (3) Notwithstanding subsection (2), the Commissioner may retain the identifying particulars of a person who (a) has been previously convicted of any offence; or (b) is the subject of a removal order under the Immigration Ordinance (Cap 115). (4) Notwithstanding subsection (2)(a), the Commissioner may retain, until the person attains the age of 18 years, or until a period of 2 years has elapsed since the person was cautioned as hereinafter referred to, whichever is the later, the identifying particulars of a person under the age of 18 years who has been arrested for an offence, who has not been charged with that offence, but who has instead, in accordance with guidelines approved by the Secretary for Justice, been cautioned by a police officer of the rank of superintendent or above as to his future conduct. (5) Where a person is convicted of an offence, any police officer may take or cause to be taken all or any of the identifying particulars of that person whether or not such particulars are already in the possession of the Commissioner, and the Commissioner may retain any identifying particulars so taken unless and until the conviction is set aside on appeal. (6) In this section, identifying particulars in relation to a person means photographs, finger-prints, palm-prints, sole-prints, toe-prints and the weight and height measurements of that person.

The police may use the photographs for purposes connected with the prevention, detection, and prosecution of crime and the apprehension of suspects: Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, QBD (Laws J).
Intimate samples 59A.(1) In any investigation in respect of an offence committed or believed to have been 1546 committed, an intimate sample may be taken from a person for forensic analysis only if (a) a police officer of or above the rank of superintendent (authorizing officer) authorizes it to be taken; (b) the appropriate consent is given; and (c) a magistrate gives approval under section 59B for it to be taken. (2) An authorizing officer may only give an authorization as required under subsection (1)(a) if he has reasonable grounds

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(a) for suspecting that the person from whom the intimate sample is to be taken has committed a serious arrestable offence; and (b) for believing that the sample will tend to confirm or disprove the commission of the offence by that person. (3) An authorizing officer must give an authorization pursuant to subsection (2) in writing. (4) Where an authorization has been given pursuant to subsection (2), a police officer may request the person from whom the intimate sample is to be taken and that persons parent or guardian if he is under the age of 18 years, to give the appropriate consent to the taking of the sample and the police officer, in making the request, shall inform the person and his parent or guardian, as the case may be (a) of the nature of the offence in which the person is suspected to have committed; (b) that there are reasonable grounds to believe that the sample will tend to confirm or disprove the commission of the offence by that person; (c) that he may or may not give his consent to the taking of the sample; (d) that if he consents to the taking of the sample, he may at any time withdraw that consent before the sample is taken; (e) that the sample will be analysed and the information derived from such analysis may provide evidence that might be used in criminal proceedings for such offence or any other offence; (f) that he may make a request to a police officer for access to the information derived from the analysis of the sample; and (g) that if the person is subsequently convicted of any serious arrestable offence, any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section. (5) The person from whom an intimate sample was taken pursuant to subsection (1) is entitled to access to the information derived from the analysis of the sample. (6) The appropriate consent must be given in writing and signed by the person or persons giving the consent. (7) An intimate sample (a) of urine may only be taken from a person by a police officer of the same sex as that person; (b) of a dental impression may only be taken from a person by a registered dentist; (c) other than urine or dental impression, may only be taken from a person by a registered medical practitioner. Magistrates approval for the taking of intimate samples 59B.Where an authorization and the appropriate consent as required under section 59A(1)(a) and (b) have been given, a police officer shall make an application to a magistrate in accordance with Schedule 3 for the magistrates approval as required under section 59A(1)(c) and the magistrate may give his approval in accordance with that Schedule.

1547

An intimate sample is defined by section 3 of the Police Force Ordinance as meaning a sample of blood, semen or any other tissue fluid; urine; hair other than head hair; a dental impression; a swab taken from a private part of a persons body of from a persons body orifice other than the mouth. Appropriate consent is defined by the same section as, in relation to a person who has attained the age of 18, the consent of that person, and for someone below that age, the consent of both that person and of his parent or guardian.
Non-intimate samples 59C.(1) In any investigation in respect of any offence committed or believed to have been committed, a non-intimate sample may be taken from a person with or without his consent for forensic analysis only if (a) that person is in police detention or is in custody on the authority of a court; and (b) a police officer of or above the rank of superintendent (authorizing officer) authorizes it to be taken. (2) An authorizing officer may only give an authorization as required under subsection (1)(b) if he has reasonable grounds (a) for suspecting that the person from whom the non-intimate sample is to be taken has committed a serious arrestable offence; and

1548

956

Sect. I]

Introduction

1550

(b) for believing that the sample will tend to confirm or disprove the commission of the offence by that person. (3) An authorizing officer (a) subject to paragraph (b), must give an authorization pursuant to subsection (2) in writing; (b) where it is impracticable to comply with paragraph (a), may give such authorization orally, in which case he must confirm it in writing as soon as practicable. (4) Where an authorization has been given pursuant to subsection (2), a police officer shall, before the taking of a non-intimate sample, inform the person from whom the sample is to be taken (a) of the nature of the offence in which the person is suspected to have committed; (b) that there are reasonable grounds to believe that the sample will tend to confirm or disprove the commission of the offence by that person; (c) of the giving of the authorization; (d) that he may or may not consent to the taking of the sample; (e) that if he does not consent to the taking of the sample, the sample will still be taken from him by using reasonable force if necessary; (f) that the sample will be analysed and the information derived from such analysis may provide evidence that might be used in criminal proceedings for such offence or any other offence; (g) that he may make a request to a police officer for access to the information derived from the analysis of the sample; and (h) that if he is subsequently convicted of any serious arrestable offence, any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section. (5) The person from whom a non-intimate sample was taken pursuant to subsection (1) is entitled to access to the information derived from the analysis of the sample. (6) Any consent given for the taking of a non-intimate sample pursuant to this section must be given in writing and signed by the person or persons giving the consent. (7) A non-intimate sample may only be taken by (a) a registered medical practitioner; or (b) a police officer, or a public officer working in the Government Laboratory, who has received training for the purpose. (8) A police officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample from a person pursuant to this section.

Section 3 of the Ordinance defines a non-intimate sample as meaning a sample of 1549 hair; a sample taken from a nail of from under a nail; a swab taken from any part. Other than a private part, of a persons body or from the mouth but not any other body orifice; saliva; an impression of any part of a persons body other than an impression of a private part; and impression of the face of the identifying particulars described in section 59(6), above.
Limitations on use of samples and results of forensic analysis 59D.(1) Without prejudice to subsection (4), no person shall have access to, dispose of or 1550 use an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C except for the purposes of (a) forensic analysis in the course of an investigation of any offence; or (b) any proceedings for any such offence. (2) Without prejudice to subsection (4), no person shall have access to, disclose or use the results of forensic analysis of an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C except (a) for the purposes of (i) forensic comparison and interpretation in the course of investigation of any offence; (ii) any proceedings for such an offence; or (iii) making the results available to the person to whom the results relate; or (b) for the purposes of section 59G(1) and (2) where the results are of forensic DNA analysis. (3) Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.

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(4) Whether or not an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C or the results of forensic analysis of the sample has been destroyed under section 59H, no person shall use the sample or results in any proceedings after (a) it is decided that a person from whom the sample was taken shall not be charged with any offence; (b) if the person has been charged with one or more such offences (i) the charge or all the charges, as the case may be, is or are withdrawn; (ii) the person is discharged by a court before conviction of the offence or all the offences, as the case may be; or (iii) the person is acquitted of the offence or all the offences, as the case may be, at trial or on appeal, whichever occurs first. (5) Whether or not a non-intimate sample taken pursuant to section 59F or DNA information derived from the sample has been destroyed under section 59H(7), no person shall use the sample or information in any proceedings after the Commissioner receives a notice served under section 59F(6).

1551

Non-intimate samples of swabs from the mouths of convicted persons 59E.(1) Where a person (a) has been convicted of a serious arrestable offence on or after the commencement of this section; and (b) either (i) has not had an intimate sample or a non-intimate sample taken from him before the conviction; or (ii) has had an intimate sample or a non-intimate sample taken from him before the conviction but the sample was destroyed under section 59H(1) or (4) or section 10G(1) or (4) of the Independent Commission Against Corruption Ordinance (Cap 204), then a police officer of the rank of superintendent or above may authorize the taking of a nonintimate sample of a swab from the mouth of the person for the purposes of section 59G(1) and (2). (2) Where an authorization has been given under subsection (1), a police officer shall, before the taking of a non-intimate sample of a swab from the mouth, inform the person from whom the sample is to be taken (a) of the giving of the authorization; (b) of the grounds for giving it; (c) that any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section; and (d) that the person may make a request to a police officer for access to the DNA information derived from the sample. (3) A non-intimate sample of a swab from the mouth of a person may only be taken by a police officer who has received training for the purpose. (4) A police officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample of a swab from the mouth of a person pursuant to this section. (5) The person from whom a non-intimate sample of a swab from the mouth was taken pursuant to subsection (1) is entitled to access to the DNA information derived from the sample. (6) A non-intimate sample of a swab from the mouth of a person may only be taken within 12 months after the person has been convicted of a serious arrestable offence. Non-intimate samples given voluntarily 59F.(1) Any person who has attained the age of 18 years may voluntarily give an authorization to a police officer of the rank of superintendent or above (a) for the taking of a non-intimate sample from him (volunteer); (b) for the storage of DNA information derived from the sample in the DNA database maintained under section 59G(1); and (c) for the use of the DNA information for the purposes specified in section 59G(2). (2) An authorization given under subsection (1) must be in writing and signed by the volunteer. (3) A police officer of the rank of superintendent or above may accept the authorization given under subsection (1).

1552

958

Sect. I]

Introduction

1554

(4) Where an authorization has been given pursuant to subsection (1), a police officer shall, before the taking of a non-intimate sample, inform the person from whom the sample is to be taken (a) the DNA information derived from the sample may be stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section; (b) that he may make a request to a police officer for access to the information; and (c) that he may at any time withdraw his authorization given for the purposes referred to in subsection (1)(b) and (c). (5) A non-intimate sample may only be taken from a person by (a) a registered medical practitioner; or (b) a police officer, or a public officer working in the Government Laboratory, who has received training for the purpose. (6) Where a non-intimate sample is taken from a volunteer pursuant to this section, the volunteer may, at any time by notice in writing to the Commissioner, withdraw his authorization given for the purposes referred to in subsection (1)(b) and (c). DNA database 59G.(1) There shall be maintained (whether in computerized form or otherwise), by the 1553 Government Chemist on behalf of the Commissioner, a DNA database storing DNA information derived from an intimate sample or a non-intimate sample taken from a person pursuant to (a) section 59A or 59C if the person has been subsequently convicted of any serious arrestable offence; (b) section 10E of the Independent Commission Against Corruption Ordinance (Cap 204) if the person has been subsequently convicted of any serious arrestable offence; (c) section 59E; or (d) section 59F. (2) No person shall (a) have access to any information stored in the DNA database; or (b) disclose or use any such information, except to the extent necessary for the purposes of (i) forensic comparison with any other DNA information in the course of an investigation of any offence by a police officer or an officer of the Independent Commission Against Corruption; (ii) producing evidence in respect of the DNA information in any proceedings for any such offence; (iii) making the information available to the person to whom the information relates; (iv) administering the DNA database for the purposes of or connected with any of the following (A) paragraph (i), (ii) or (iii) or subsection (1); (B) section 59H; or (v) any investigation or inquest into the death of a person under the Coroners Ordinance (Cap 504). (3) Any person who contravenes subsection (2) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months. Disposal of samples and records, etc 59H.(1) The Commissioner shall take reasonable steps to ensure that 1554 (a) an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C; and (b) a record to the extent that it contains information about the sample and particulars that are identifiable by any person as particulars identifying that information with the person from whom the sample was taken, which may be retained by him or on his behalf are destroyed as soon as practicable after (i) if the person has not been charged with any offence, the expiry of (A) subject to subparagraph (B), 12 months from the date on which the sample was taken (the relevant period); or (B) such further period or periods as may be extended under subsection (2) (the extended period); (ii) if the person has been charged with one or more offences within the relevant period and the extended period, if any (A) the charge or all the charges, as the case may be, is or are withdrawn;

959

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[Chap. 15

1555

(B) the person is discharged by a court before conviction of the offence or all the offences, as the case may be; or (C) the person is acquitted of the offence or all the offences, as the case may be, at trial or on appeal, whichever occurs first. (2) A police officer of or above the rank of chief superintendent may extend or further extend the relevant period for not more than 6 months for each extension if he is satisfied on reasonable grounds that it is necessary to the continuing investigation of the offence or offences in relation to which the sample was taken that the sample and the record concerned be retained. (3) Subsection (1) shall not affect any DNA information which has already been permanently stored in the DNA database pursuant to section 59G(1)(a), (b) or (c). (4) Without prejudice to the operation of subsections (1) and (2), if (a) a person from whom an intimate sample or a non-intimate sample was taken pursuant to section 59A or 59C has been convicted of one or more offences; and (b) there is no other charge against the person in relation to an offence which renders the retention of the sample necessary, then the Commissioner shall take reasonable steps to ensure that the sample which may be retained by him or on his behalf is destroyed as soon as practicable after the conclusion of all proceedings (including any appeal) arising out of the conviction. (5) Where a non-intimate sample of a swab was taken from the mouth of a person pursuant to section 59E and his conviction of the relevant serious arrestable offence has been subsequently quashed on appeal other than an order of re-trial, the Commissioner shall take reasonable steps to ensure that any DNA information derived from the sample which may be retained by him or on his behalf is destroyed as soon as practicable after the conviction is quashed. (6) The Government Chemist, whilst maintaining the DNA database under section 59G(1), shall take reasonable steps to ensure that every non-intimate sample taken pursuant to section 59E or 59F is retained only for as long as is necessary to enable DNA information to be obtained from the sample, and is then destroyed. (7) Where a non-intimate sample is taken from a person pursuant to section 59F and that person subsequently serves a notice to the Commissioner under subsection (6) of that section, the Commissioner shall take reasonable steps to ensure (a) in case the sample has not been analysed, that the sample is destroyed as soon as practicable; (b) in case the sample has been analysed but DNA information derived from the sample has not been stored in the DNA database pursuant to section 59G(1)(d), that the DNA information is destroyed as soon as practicable; (c) in case DNA information derived from the sample has been stored in the DNA database pursuant to section 59G(1)(d), that the DNA information is removed from the DNA database and destroyed as soon as practicable, after the Commissioner receives the notice.

II. CONFESSIONS A. The Exclusion Rule (1) Non-discretionary exclusion

1556
The principle that the accuseds extra-judicial confession will be inadmissible as a matter of law in his trial, if extorted or obtained by threats or promises, has long been entrenched in our criminal law. The judge or magistrate must exclude a confession of the accused if it is involuntary. The modern locus classicus of the principle of exclusion is as Lord Sumner stated in his opinion in Ibrahim v Rex [1914] AC 599, PC, at 609:
It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

Lord Sumner followed the judgment of Cave J in R v Thompson [1893] 2 QB 12. In turn, his own opinion was endorsed by the House of Lords in Commissioners of Customs

960

Sect. II]

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and Excise v Harz and Power [1967] 1 AC 760 and DPP v Ping Lin [1976] AC 574; [1975] 3 All ER 175, wherein Lord Hailsham added the word oppression to Lord Sumners dictum: (see also R v Rennie (1982) 74 Cr App R 207). The notion that oppression, per se, could render a confession inadmissible was accepted as settled law in R v Li Wai Fat [1977] HKLR 531 and was firmly endorsed in Secretary for Justice v Lam Tat Ming [2000] 2 HKLRD 431 at 439. In R v Lam Yip Ying [1984] HKLR 419, Roberts CJ described Lord Sumners statement of principle as the classic test of the voluntary nature of a confession. The Chief Justice remarked in his judgment (at 422) that a gloss had been added to the Ibrahim test in Seeraj Ajodha v The State [1982] AC 204, PC, which apparently decided that a confession obtained by fraudulent misrepresentation should be regarded as involuntary. In that case a police officer had falsely informed the accused that he was signing a document different in nature from that which he had, in fact, signed. Ajodha (above) was affirmed by the Court of Final Appeal in Secretary for Justice v Lam Tat Ming (above). In R v Sang [1980] AC 204, Lord Diplock observed that that a confession obtained by threats or promises is inadmissible in evidence against him, because to admit it would be unfair. This issue of unfairness will be considered in the second part of this section, when the residual discretion of the judge is discussed. A statement which is held involuntary in a criminal proceeding can be admissible in a subsequent disciplinary proceeding since voluntariness is not a criterion for admitting evidence in such a proceeding: Tso Tak Keung v Secretary for the Civil Service [2009] 3 HKLRD 497, CA.

The reliability principle

The first recorded example of there being a judicial inquiry into the circumstances of 1557 how a confession had been induced is to be found in a report recorded in Year Book 30 of the reign of Edward I (1302). In Robert de Skelbroke le Botiler ; a case of murder, the accused alleged that he had made his confession in order to escape the cruelties he had experienced in gaol. The judges called for another prisoner to give evidence, as he had purported to contradict the accuseds contention. The report suggests that the judges did consider it necessary to conduct an enquiry into the circumstances of how the confession came to be made. The development and expression of the exclusionary rule probably began early in the middle ages. The common law has never recognised the validity of coerced confessions, especially where torture had been used. For a modern application of this principle in the context of confession evidence procured by torture inflicted by foreign nationals and adduced in the Special Immigration Appeals Commission in the United Kingdom, see A v Secretary of State for the Home Department [2006] 2 AC 221, HL. The earliest appearance, in practice, of the exclusionary rule being applied can be traced back to the time of Hale, in the seventeenth century. The ruling of the judges in R v Warickshall (1783) 1 Leach CC 263 is traditionally regarded as the first, definitive, expression of the principle that a coerced confession should be excluded as evidence against the accused. The case is important in another respect. The accused, who had been charged as an accessory after the fact to theft, had made a confession to the crime. The accused had confessed to her guilt and disclosed where the stolen property could be found. The accuseds confession was excluded on the ground that it had been obtained by promises of favour. On the other hand, the judges rejected the argument that the fact of the finding of the stolen goods should also have been excluded under the same principle. In R v Barker [1941] 2 KB 381, the Court of Criminal Appeal held that fraudulently prepared documents produced by a tax payer in reliance upon a promise made by a tax inspector not to prosecute if the tax payer disclosed past tax frauds, were inadmissible. The Court took the view (at 385) that such documents stand on precisely the same footing as an oral or written confession brought into existence as the result of a promise, inducement or threat. In Lam Chi Ming v R [1991] 2 WLR 1082, PC, Lord Griffiths followed the observations of the judges in Warickshall, above, that Facts thus obtained, however, must be fully and satisfactorily proved, without calling in the aid of any part of the confession from which they may have been derived. In Lam Chi Ming v R, above, the appellants confession to the crime

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of murder had been ruled to be inadmissible, on the ground that it was involuntary. Following this confession the appellant had led the police to a location where he had pointed out where the murder weapon could be found. The Privy Council was of the Opinion that the pointing gesture by the appellant was as much a part of his confession as the accompanying words. The Board considered that the discovery of the weapon, in such circumstances, had no evidential significance in the trial. This would not be so if some objective fact, independent of the confession, could be adduced by the prosecution: for example, the accuseds fingerprints on the murder weapon. Two of the judges, Nares J and Eyre B, in Warickshall, above, laid down the principle, which has remained the clearest statement of the exclusionary rule to this day; that a coerced or induced confession might be untrue or at least unreliable.

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Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by torture or fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.

This statement of principle can be regarded as the progenitor of the reliability test. Implementation of this test presupposes that the court, having found that the confession was extorted by fear or favour or even assault, must then consider whether or not any credit could be given to it. In fact, this is not how the law developed. During the nineteenth and up to the middle of the twentieth century it was commonplace for confessions to be excluded where there had been some inducement or impropriety, no matter how slight. This approach has been called the absolute test rule: see R v Moore (1852) 2 Den, at 525 and R v Fennel (1881) 7 QBD 147, and may have originated in the fact that in the trials of felony offences the accused was not permitted to give evidence in his own behalf until the Criminal Procedure Act 1898. In the fifth edition of Russell on Crimes and Misdemeanours, (1877), at volume III, p 442, the learned editors give the following rationale of the absolute rule:
A confession can never be received in evidence, where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner and, therefore, excludes the declaration, if any degree of influence has been exerted.

The establishment of the modern rule of exclusion

1559
It is submitted that the two rules or principles summarised above have been subsumed within one principle: a confession which has not been affirmatively proved to be voluntary will not be admissible in evidence against the maker. This modern rule of exclusion is exemplified in R v Ping Lin, above. On the other hand, it has never been the case that the reasonable man approach should be followed. The judges have never used this test because to do so would be to ignore the obvious fact that most defendants do not act reasonably, when arrested and/or accused of a crime. They are often in an agitated state of mind and can act irrationally. In R v Northam (1968) 52 Cr App R 97, Winn LJ rejected the notion of the reasonable man test, (at 104):
It is not the magnitude, it is not the cogency to the reasonable man or to persons with such knowledge as is possessed by lawyers and others which is the proper criterion. It is what the average, normal, probably quite unreasonable person in the position of the appellant at the time might have thought was likely to result to his advantage from the suggestion agreed to by the police officer. The Court realises that this is imposing yet one more clog on the efficient performance of the police of their duties.

In DPP v Ping Lin, above, the House of Lords held that where the admissibility of a confession statement was questioned by the accused the prosecution must, as a matter of law and fact, prove that the statement in question was not obtained as a consequence

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of words or conduct by a person in authority. Lord Hailsham, in his speech made the following statement of principle:
If, as I have said, the test be as laid down by Lord Sumner and not any other, it follows that what excludes [of a confession] is a chain of causation resulting from the words or conduct on the part of the person in authority, (or as other cases have decided, by some person in his presence), giving rise to a decision by the accused by fear of prejudice or hope of reward. The test of the chain of causation is objective as in holding out, and there need not be an antecedent concluded bargain. No doubt the understanding by all the parties of the words and phrases used is part of the background which must be studied in order to arrive at the truth.

It is submitted that Lord Hailsham was not advocating the reasonable man test, but, 1560 instead, a test of the effect of the words and or conduct on the accused in the light of his particular idiosyncrasies of personality, experience, age, personal circumstances and the circumstances of the case. What Lord Hailshams suggests is that a court, when having to decide on the admissibility of a questioned confession, should place emphasis on two factors: (1) the reasonable likelihood or possibility of an actuation of fear or hope in the mind of the accused by words or conduct on the part of a person in authority and, (2) that such fear or hope causes the accused to speak or act against his interest. In Hong Kong however, the Court of Final Appeal has departed from this test in its decision, Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540. The Court has transformed Ping Lins chain of causation assessment into a strict two-stage approach that has both an objective and subjective component: Chau Ching Kay, above at para 30. According to the decision of Chan PJ (at para 30):
[a] trial judge has to consider: (1) whether there is any conduct on the part of the person in authority which is capable of constituting an inducement, that is, something which is capable of influencing the mind of the accused, and (2) whether the prosecution have proved beyond reasonable doubt that such inducement had not influenced the mind of the accused. The first involves an examination of the conduct of the person in authority and the second the effect of such conduct on the accused.

The first question contemplates a reasonable person assessment, as Chan PJ indicated later in his judgment (at para 37): the conduct on the part of the person in authority must be conduct which in the circumstances of the case is capable of being reasonably understood to be either an acceptance of the offer made by the accused or a promise of an advantage made by the person in authority (emphasis added). Agreeing with Lord Hailsham in Ping Lin, Chan PJ stated that applying the approach was ultimately a matter of applying common sense to all the facts of the case: para 35. What DPP v Ping Lin, above, also holds is that it is not necessary for the court to find that the person holding out the inducement is actuated by malice or some other improper motive: (see also R v Chan Yip-kan [1986] HKC 35). Such reasoning clearly removes the disciplinary factor as a justification for excluding a confession. DPP v Ping Lin, above, also removed the presumption of causation. In other words the judge would not be obliged to exclude a confession only because the person in authority had acted improperly. He must go on and find that the inducements or oppressive behaviour may have caused the accused to confess. The accused must have been influenced by the inducement. If he were not then the prosecution will have proved the admissibility of the confession. In other words the prosecution must prove that the confession was voluntary. In one of the earliest statements of the rule in this jurisdiction (R v Wong Chiu Kwai [1908] HKLR 163), it was stated that a confession which had been obtained by violence cannot be free and voluntary.

The person in authority

In R v Northam, above, Winn LJ suggested that the causation test could govern the 1561 admissibility of confessions made after an inducement had been held out by persons not in authority (he also referred himself to a previous judgment of his in R v Richards [1967] 1 WLR 653). In R v Northam, at 103, he said:

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there was a distinction between inducements by persons not in authority, with regard to which the proper test the court then (in Richards), said must be whether a confession was in fact induced, whether there had been a persuasion of will of the individual to make such a confession, whereas in the case of inducements offered by a person in authority, in particular police authority, the question was: was any offer or promise made which was capable of constituting an inducement, as distinct from one which in fact induced?

Neither the courts in this jurisdiction nor in England and Wales have ever precisely defined who comes within the meaning of the phrase person in authority. It is probable that the best definition of this term is to be found in the words of Viscount Dilhorne in Deokinnanan v R [1969] 1 AC 20, PC. He expressed the opinion, at page 33, that a person in authority was anyone who has authority or control over the accused or over the proceedings or prosecution against him. Viscount Dilhorne quoted, with approval, the statement of Bain J in R v Todd (1901) 4 CCC 514; 13 Man L R 364 at 376, (Canada). Here are some examples, which are not exhaustive, of when someone has been held to be a person in authority: (1) magistrates and their clerks: R v Cooper (1833) 5 C & P 535, and coroners: R v Waltho, The Times, 17 June 1905; (2) police and other investigating officers, (such as Customs and Excise officers and officers of the Independent Commission Against Corruption and the Immigration Department), see R v Moore (1972) 56 Cr App R 373 and R v Butler [1941] 1 KB 381; (3) the person who arrested the accused and prison officers; (4) employers: R v Moore (1852) 2 Den 522; R v Ho Chi-hung (unrep., Crim App No 1195 of 1981). (5) it is submitted that foreign police officers or officials, who have the authority to arrest and question the suspect should also be within the category of persons in authority. In this context, a confession to a crime, made to a fellow employee was held not to be made to a person in authority: Lam Sai-cheung v HKSAR [1998] 2 HKLRD 499, CFA. This was an application for leave to appeal. The judgment was short and to the point. The application was dismissed. A useful summary of this ill-developed area of the law can be found in an article, Confessions The Person in Authority Requirement [1981] Crim L R 94. These principles, in their generality, have been followed in this jurisdiction: R v Chau Mei-ling [1981] HKC 542. It is also a matter of perception. If the accused believes, on reasonable grounds, that the person, to whom he makes the confession, is a person in authority, then this factor must be taken into account by the judge or magistrate: Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431 at 439. In R v Dixon & Smith (1992) 62 A Crim R 465, Wood J suggested that:
unless the inducement comes from a person supposed by the accused to have some capacity to carry it into effect, it would be unlikely to elicit a confession that would be otherwise withheld. I would accordingly hold that a person in authority includes any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence, or who is otherwise is seen by the accused, by virtue of his position, as capable of influencing the course of the prosecution, or in a manner in which he is treated in respect of it.

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The Supreme Court of Canada held in Rothman v R (1981) 59 CCC (2d) 30 that an undercover police officer, to whom a prisoner had unwittingly made a confessional statement, was not a person in authority because he had not been regarded as such by the prisoner. The perception is subjective not objective. The judgment of the Supreme Court in Rothman has been the subject of many articles and commentaries: see, for example A.D. Golds Confession Person in Authority (1981) 23 Crim LQ 334 and an article written by J.J. Avray, Rothman v R : The Confession Rule (1982) Supreme Court L R 263. In R v Todd, above, two persons were retained by the police to associate with a suspect, Todd, and report on what he said to the chief of police. They were, in fact, informers. During his association with the informers, Todd claimed that he had mur-

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dered a man, which was the subject of the inquiry. It was on this evidence that Todd was convicted. In the Quebec Court of Appeal, Bubuc J, in upholding the trial judges ruling that the confession was admissible, stated that had he employed an objective test, he would have been obliged to find that the two informers were, in reality, ad hoc policemen. That being so they would have been deemed to be persons in authority. Eavesdropping on conversations between suspects or prisoners by the investigating authorities is regarded as an acceptable method of crime detection. In R v Ali & Hussain [1966] 1 QB 688: (1965) 4 Cr App R 230, police officers rigged up a listening device in a room where the two appellants were placed together with a Pakistani liaison officer. The appellants were not under arrest nor, it seems, were they suspects. Unbeknown to the appellants, their conversation, which was in the Punjabi dialect of the Urdu language, was recorded on audio tape. This tape was the principal piece of evidence in the appellants trial for murder. This was not the first time that an audio tape recording had been admitted into evidence: see (1956) Crim L R 442. In Hopes & Another v HM Advocate (1960) SC( J) 104, a person, who was being blackmailed, had worn a recording device, when discussing the payment of money with the blackmailer. Evidence of the conversation, as recorded, was given by a police officer and a stenographer, who had made a transcript of the tape recording, after listening to it played back several times. The recording was held to be admissible. The victim could not have been a person in authority in such circumstances. In R v Stewart (1970) 54 Cr App R 210, a police officer disguised himself as a prisoner in order to record incriminating conversations between the appellant and another prisoner. This was a deliberately executed operation to obtain incriminating evidence against a suspect. The Court of Appeal held that here there was no trap. Even if this were the case voluntariness was not in issue. As it was stated by Lord Cooper, in Lawrie v Muir (1950) SC( J) 19, the law strives to reconcile two highly important interests, which are likely to be in conflict; that is the interest of the citizen to be protected from illegal or irregular invasions of his liberty and the interests of the community to ensure that evidence bearing upon the commission of crime should not be withheld on merely formal or technical grounds. A confession made by an accused person to a fellow prisoner, (not an unusual occurrence), provided it is otherwise voluntary, is not rendered involuntary because it had not been made to a person in authority. On the other hand, if the confession had been extorted by the violence or threats of a fellow prisoner, the fact that he was not a person in authority would not inhibit the judge from exercising his residual authority to exclude the confession: R v Geesing (1985) 16 A Crim R 90. Then again, if the violence or oppression were sufficient to over-bear the mind of the accused, it is likely that the resulting confession would be excluded as being involuntary.

What amounts to a confession

There is no real distinction in principle between a person, who has been induced by 1563 threat or promise to make a full confession and another, who has made one or more incriminating statements: Commissioners of Customs and Excise v Harz and Power, above. It is submitted that a confession will necessarily include an admission. The two words confession and admission are used synonymously in this chapter. However, the term admission is much wider in its meaning and includes admissions of fact, which may or may not be made against the interest of the maker. There are statutory provisions which permit the court, in a criminal trial, to accept admissions, whether made formally or informally or by operation of law. As it is generally understood the term admission is more appropriate to civil proceedings. Such matters are not within the ambit of this chapter. For the purposes of this chapter a confession means a confession to the crime, which is the subject of the enquiry. It is submitted that the word confession means any statement wholly or partly adverse to the person who made it: Ibrahim v Rex, above. A confession to a crime may be made by silence in the face of an accusation: R v Christie [1914] AC 545, HL, at p 554, Lord Atkinson was of the opinion that:
[The accused] may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct

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or demeanour at the time when the statement was made amount to an acceptance of it on the whole or in part.

This statement of principle has been followed in this jurisdiction: R v Cho Chak-bor [1983] HKLR 174. In Lam Chi-ming v R, above, the Board held that such issues as admissibility, relevance, voluntariness and the exercise of the discretion of the court to exclude unduly prejudicial material, can be the subject of the special issue procedure, (eg the voir dire) before being admitted into evidence. In Timothy v The State [2000] 1 WLR 485 the Privy Council held that it was open for the accused to challenge the admissibility of a purported admission made by gesture (as well as by silence and or conduct). See also Thongjai & Another v R [1997] HKLRD 678, [1998] AC 54. Lord Diplock in Hall v R [1971] 1 WLR 298, PC, made it very clear that a person is entitled to refrain from answering questions put to him, for the purpose of discovering whether he had committed a criminal offence. It is only in exceptional circumstances that an adverse inference can be drawn from a failure to give an explanation or a denial in response to an accusation of a crime. In Parkes v R [1976] 1 WLR 1251, PC, Lord Diplock reinforced his statement of principle in Hall, above, by pointing out that there must be some conduct or something in the circumstances accompanying the silence which indicates that the accused had accepted the truth of the accusation. That being the case silence can amount to a statement. Lord Diplock added the further requirement for admissibility in Hall : in that the accuseds reaction or lack of reaction should be in response to an accusation made by a person on even terms. In R v Mitchell (1892) 17 Cox CC 503 at 508, Cave J noted:
Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true. But where a statement is made in such circumstances that the prisoner cannot repel the charge, it is absurd to say that his remaining silent is any evidence of the truth of the charge.

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Lord Justice Lawton, in R v Chandler (1976) 63 Cr App R 1 at 4, expressed some reservations about Lord Diplocks opinion in Hall above. He believed that it was in conflict with what Lord Atkinson had said in Christie, above. The learned appeal judge considered that a suspect, accompanied by his solicitor might well be regarded as being on equal terms with the questioning police officer. He noted that the Court of Appeal was not bound by Hall, but by Christie. In Hall, above, Lord Diplock also made this statement of principle (at 112):
In their Lordships view the distinction sought to be made (that is no caution had been given), is not a valid one The caution merely serves to remind the accused of the right which he already possesses at common law. The fact that in a particular case he has not been reminded of it is no ground for inferring that his silence was not an exercise of that right, but was an acknowledgement of the truth of the accusation.

The approach of Lord Diplock has been followed in numerous judgments of the courts in Hong Kong, including the Court of Appeal: see R v Yeung Kam-chun (unrep., Cr App No 822 of 1981); R v Chau Chi-hung (unrep., Cr App No 515 of 1982). In R v Chan Kung Ling [1992] 1 HKCLR 43, the Court of Appeal stressed that in exceptional circumstances an accused could be cross-examined upon his failure to deny an accusation. In Chan Kung Ling the accused, a police officer, had been subdued by two civilians after a robbery. He did not make any protest to them that they were mistaken. When a police officer arrived on the scene a short time later the accused did not tell him that he was a police officer. In evidence the accused stated that he was a police officer pursuing the culprit. The Court of Appeal held that the accused could be cross-examined upon his failure to inform the civilians or the police officer that he was a police officer and that he was pursuing the robber. In the same appeal, Kempster JA disagreed on this point but not in the result and emphasised the right of a suspect to remain silent: he affirmed the dictum of Lord Diplock in R v Hall, above. The Court of Final Appeal has firmly held that a suspects silence in the face of police 1565 questioning, after a caution has been given, is not to be used against him in any way:

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Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at para 55. The Court explained that a persons right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment. It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial (at para 56). Consistent with these principles, the Court of Appeal in HKSAR v Chow Wing Man (unrep., CACC 613/2002, [2004] HKEC 993) quashed a murder conviction because the jury was allowed to see and hear a video-recording of the accuseds record of interview, during which he, on the advice of his legal advisor, repeatedly refused to answer questions directly related to the murder investigation. The Court concluded that the accuseds silence in the face of highly pertinent questioning on issues of crucial significance, may have had an adverse effect on his trial in the sense that the jury may have used the applicants refusal to answer as a reflection on his credibility (at para 63). The case was distinguished from that of R v Mann [1972] 56 Cr App R 750 where there were a number of questions voluntarily answered by the accused interspersed with questions which he refused to answer. The English court held that in such a situation the whole dialogue should go before the jury (at 757). Chow was applied in HKSAR v Lo Lik Man (unrep., HCMA 629/2004, [2004] HKEC 1066), CFI where the magistrate erred by using the accuseds failure to protest in the record of interview as a reason for rejecting his claim that he did not make an earlier oral admission alleged by the police. The Court of Final Appeal returned to the issue of inference from silence again in HKSAR v Lam Sze Nga (2006) 9 HKCFAR 190. In this case, one of the issues was whether or not the defendant made the oral confession recorded in the post-recording. The defendant alleged that the oral admission had not been made and she signed the postrecording involuntarily. She did not complain about that until five months later. The Court of Final Appeal held that the jury ought to be directed that if they were satisfied that the statement was signed involuntarily, the jury could not draw any adverse inference from the defendants silence for five months before complaining (at para 28). On retrial, the defendant was convicted of the same offence and the case went on appeal to the Court of Appeal. The Court, in allowing the appeal, followed the Court of Final Appeal on the point that the defendant could not be cross-examined on the delay without a proper warning to the jury. It further held that the defendant was protected by the right of silence even if she had not intended to avail herself of the right, as long as she had not waived it. In deciding whether the defendant had waived the right, questions about the delay could be put to the defendant. However, once the jury found in favour of the defendant, then they should treat her as if she had maintained her right of silence, in which case no adverse inferences could be drawn against her. Since such a direction to the jury had not been given, the appeal was allowed and a re-trial ordered: HKSAR v Lam Sze Nga [2007] 2 HKLRD 75, CA, at para 5254. The court remarked that:
The right of silence is a fundamental right which an accused person enjoys under the common law whether he knows it or not. If he did not know of it or did not understand it or was too frightened to even think about his position, then it must follow that he would not have intended to exercise it. And yet, if the prosecutions argument is correct, the ignorant or confused or frightened defendant who was honest enough to say that he did not speak up for those reasons would not enjoy the protection of the right of silence because he had not intentionally availed himself of it. at 1550.

Similarly in HKSAR v Jarhia Kuldeep Singh (unrep., CACC 96/2006, [2006] HKEC 1655), CA, the court was concerned with the District Court judges remarks in relation to the defendants silence. The trial judge commented that the defendants Not answer reply was an unlikely reaction by someone who had been falsely accused of saying something incriminating. The judge approached the defendants silence as a matter which went to credibility and thus erred as this was using his silence against him. Generally, if the defendant answered none of the questions during the interview, the recording of the interview showing the one-sided dialogue ought not to be admitted: Chan Kau Tai, at para 133, adopting R v Mann (1972) 56 Cr App R 750 and HKSAR v Chow Wing Man (unrep., CACC 613/2002, [2004] HKEC 993). The position is the same

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if the only answers from the defendant consisted of corrections of mistakes of the interviewer: Chan Kau Tai, at para 135. Moreover, the prosecution cannot simply argue that the evidence, otherwise inadmissible, ought to be admitted as it formed part of the whole picture: Chan Kau Tai, at para 138. However, in Chan Kau Tai, it was held that given the particular circumstances of that case (the lack of objection by the defence counsel during the trial at first instance, the benefit to the defendant in admitting the evidence and the absence of prejudicial effect), the one-sided dialogue could be admitted. What if during the interview, only a few questions are not answered? Should those questions be excised? Chan Kau Tai held that in that situation, the jury was entitled to see the whole course of interview (para 134). The court also mentioned the lack of objection by the defence counsel at trial as being a relevant consideration (para 134). The Criminal Law Revision Committee in its 11th Report, (1972, UK), endorsed the views expressed in Customs and Excise Commissioners v Harz and Power [1967] 1 AC 760, HL; that no distinction should be drawn between full confessions and admissions of some elements of the offence charged which may, at first glance, appear to be innocuous or even exculpatory: see also Kwan Ping Pong & Another v R [1977] HKLR 220, PC, and R v Lee Yi Choi (unrep., Crim App 131/1985, [1986] HKLY 212]. In this context a statement includes both recorded and unrecorded confessions. It is also of significance that Lord Reid in Harz, above, at p 819, sought to equate admissions with confessions. The oral confession made to a police officer, as recorded in his notebook, but not signed or acknowledged by the suspect, can be the subject of the special issue procedure: Thongjai & Another v R, above. A statement in the form of an apology may or may not constitute a confession or admission. In the case of crime, an apology will constitute an admission if it is a statement against the interests of the author of the statement: HKSAR v Lau Ka Yee (2004) 7 HKCFAR 510, at para 52. Such an apology might be described as an equivocal admission. It has been held that where a conviction is based on an equivocal admission and there is no other evidence to support the conviction, the conviction will be quashed: R v Chan Yun Hung [1987] 2 HKC 228 at 231E, CA, which was cited in Lau Ka Yee, at para 53. What amounts to a confession a statement which, at least, is partly adverse to the maker is a mixed question of law and fact. An issue may arise in a trial as to what is inculpatory or exculpatory. What may be exculpatory at first sight can turn out to be very incriminating, if it can be shown to be false or the accused has departed from its terms, when giving evidence in the trial. Such a statement can be regarded as a disguised confession. In Pich v R (1970) 11 DLR (3d) 709 the Supreme Court of Canada held, by a majority, that such an exculpatory statement must also satisfy the voluntariness test. There the Court adopted the reasoning of Chief Justice Burger in Miranda v Arizona 384 US 436 at 477, where he stated:
no distinction should be drawn between inculpatory statements and statements alleged to be merely exculpatory. If a statement made were in fact exculpatory it would, of course, never be used by the prosecution. Statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus prove guilt by implication. These statements are incriminating in any meaningful sense of the word.

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There must be few occasions when an exculpatory statement could be regarded as involuntary. On the other hand, there could be an occasion where the investigating officers insist that the suspect say something, he then tells them lies, which, on their face, are exculpatory in nature, believing that if he said nothing he might suffer adverse consequences. It is submitted, that as a general rule, an exculpatory statement cannot be regarded as a confession, and if it is not a statement made against interest it is technically hearsay. It should only be elicited as part of the prosecutions case if, on the prosecutions evidence, it can be shown to be false or, in cross-examination of the accused, to prove inconsistency. In section 82(1) of the Police and Evidence Act 1984 (PACE), the definition of confession, as interpreted by the courts in England, appears to be more narrowly drawn:

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confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

Thus PACE has dispensed with the common law requirement that an impugned confession should be made to a person in authority before it could be regarded as involuntary. This is contrary to the law and practice in this jurisdiction. This is not to say that a confession made to any person, when elicited by a high degree of threat, violence or by deceit is admissible as evidence, because it was not made to a person in authority: R v Lee Yi Choi [1985] 1 HKC 578. The common law principle, which is followed in this jurisdiction, stipulates that it would be for the judge to exercise his inherent discretion, in the interest of ensuring a fair trial, to exclude such a confession. Some may regard this approach as unnecessarily technical. The objective of PACE was to remove the more obvious anomalies, which had become embedded in the common law. In R v Sat-Bhambra (1989) 88 Cr App R 55 the Court of Appeal was inclined to the view that purely exculpatory statements were not confessions within the meaning of section 82(1) of PACE. The Court did not follow the contrary views expressed in Pich v R, above, and Miranda v Arizona, above. In support of its judgment the Court cited Cross and Tapperon Evidence, 9th edn, p 611 and Andrews and Hirst on Criminal Evidence, 1st edn, para 19.04. In both works, there is quoted the words of Lord Widgery in R v Pearce (1979) 69 Cr App R 365, in that: A denial does not become an admission because it is inconsistent with another denial. The notion that an exculpatory statement cannot be treated as a confession for the purposes of section 76 of PACE, merely because it is used as a tool to contradict the evidence of an accused, has been confirmed in R v Park (1994) 99 Cr App R 270, CA. This is the literary approach; in that the words of the section are construed on the premise that an exculpatory statement is neither wholly nor partly adverse to the maker, though it may well become highly incriminating. The House of Lords has affirmed the Sat-Bhambra interpretation of confession in R v Hasan [2005] UKHL 22, at para 57. In this jurisdiction we do not have a statutory regime like PACE; the principles relat- 1567 ing to the admissibility of a confession are entirely judge-made. Nor, since its enactment, does it appear that the provisions of PACE have had any real influence on the judges of Hong Kong. In many respects the provisions of PACE have made radical changes to the common law. The Judges Rules have been replaced by statutory codes. In Hong Kong the Judges Rules of 1912 have been subsumed into the Rules and Directions for the Questioning of Suspects and the Taking of Statements. These Rules and Directions were issued by the Secretary for Security in October 1992, partly in response to the Hong Kong Bill of Rights and partly to make the rules relating to the questioning of suspects more structured and more relevant to modern conditions.

Reconstructions
Participation in a reconstruction of a purported crime by a suspect is a relatively 1568 recent development in the investigative procedures of law enforcement. It is a species of admission against the interest of the accused, should he be charged with having committed the crime: R v Li Shu-ling [1989] AC 270, [1989] 1 HKLR 82, PC. As such what the suspect does or says during the reconstruction is evidence against him. If his consent to the reconstruction of the crime has been induced by coercion or promises it will be ruled to be inadmissible, like any other confession. The prosecution must establish that the accuseds participation was voluntary. Video recorded reconstructions are admissible. In this regard R v Pang Shun-yee [1988] 2 HKLR 146 should not be followed.

Admissions by agents
In R v Downer (1880) 14 Cox CC 486 it was held that an agent, acting with the author- 1569 ity of the accused, may make an admission against the interest of the accused. Lawton LJ in R v Turner (1975) 61 Cr App R set out the principles which could render admissible a confession, (or admission), made by an agent of the accused:

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First, a duly authorised agent can make admissions on behalf of his principal. Secondly, the party seeking to rely on the admission must prove that the agent was duly authorised Whenever a fact has to be proved, (ie the fact of due authorisation) any evidence having probative effect and not excluded by a rule of law is admissible to prove that fact: circumstantial evidence is just as admissible as direct evidence.

Oppression
1570
The word oppression can be elusive of meaning. The Courts will usually apply what it understands the word to mean as it applies to a given set of facts. In Burut v PP of Brunei [1995] 2 HKC 305, PC, Lord Steyn gave a terse definition of this word. He suggested that the word oppression meant any conduct calculated to sap the will of the person being interviewed. With respect, Lord Steyns words appear to suggest that there should be an element of calculation even design on the part of the interviewer or investigating police officer, before his conduct can be described as oppressive. It should be noted, however, that the appellants in Burut were subjected to a special procedure, when being questioned by the Brunei police, because they had been accused of firearms offences. This special procedure includes questioning a suspect while he is hooded and manacled. The appellants had not given evidence in the voir dire. Thus it might be said that Lord Steyn was fashioning his words to fit the circumstances of the case. The Privy Council found that such a procedure was inherently oppressive and it was for the prosecution to prove to the requisite standard that this form of questioning was not oppressive and that the appellants wills had not been sapped thereby. There were many other unsatisfactory features about this case, including the fact that the appellants had been held in custody for a year before being brought before a magistrate. Another feature of this appeal is that it was from the Brunei Court of Appeal, (which had dismissed the appeals), upon which sat three appeal judges of Hong Kong. Two other Hong Kong judges had sat in the court of trial. In R v Li Wai-fat [1977] HKLR 531, the Court of Appeal accepted that oppression was a factor to be considered in the trial of the special issue of admissibility. The Court also noted that making comparisons with other cases, where confessions had been excluded, was not the correct approach, thus echoing the words of Lord Hailsham in DPP v Ping Lin, above. Every case should be decided on its own facts and circumstances. In Burut, above, the case of Att-Gen of Hong Kong v Wong Muk Ping [1987] AC 501; [1988] 1 HKLR 56 was noted. In R v Prager [1972] 1 All ER 1114 (at p 1119); 52 Cr App R 1, Edmund Davies LJ extended the meaning of oppression, (borrowing the words of Lord MacDermott in an address to the Bentham Club in 1968), in that it included:
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 subject that his will crumbles and he speaks when otherwise he would have stayed silent.

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These views were endorsed by Li CJ in Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431 at 439, CFA, and in the Court of Appeal in HKSAR v Leung Chin-ming [2001] 1 HKLRD 272. Li CJ, in Lam Tat-ming, above, at 439H, emphasised the principle that the rule of voluntariness was established as an essential safeguard for the accused against the coercive power of the law enforcement agencies. He also noted, at letter J, that the right of silence is deeply rooted in the common law. It has been analysed to embrace a number of immunities. Edmund Davies LJ, in Prager, above, also noted with approval the meaning given to the word by Sachs J in R v Priestly (1965) 51 Cr App R 1, wherein it was noted that what may be oppressive to a child or an old man may not be so to an experienced man of the world. This theme is picked up in Li Wai-fat v R [1977] HKLRD 531, where the Court of Appeal made the point that the appellants were experienced police officers, who knew of their rights to remain silent. They had been subjected to very long periods of questioning, each had been confined in a windowless room and had been deprived of their personal belongings, including their watches. The Court held that the confession statements were voluntary and that the appellants had not been subjected to such treatment such as to sap their free will. The Court may well take a different view if the suspect had been an ordinary member of

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the public, a young or aged person, or a person suffering from a disability, whether it be physical or mental. In R v Fulling [1987] QB 426, Lord Lane CJ (at 432), said that the word oppression should be given its ordinary dictionary meaning, which is:
The Oxford English Dictionary as its third definition of the word runs as follows: exercise of authority or power in a burdensome, harsh, or wrongful manner, unjust or cruel treatment of subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens.

Fulling was applied in R v Emerson (1991) 92 Cr App R 284. In R v Paris (1993) Cr App 1572 R 99, the police were held to have acted oppressively in shouting at a suspect, telling him what they wanted him to say, after he had denied involvement in the offence on more than 300 occasions. Oppressive behaviour at one interview may taint subsequent interviews: R v Smith (WD) (1994) Cr App R 233, CA; Burut v PP, above. What is oppressive is a question of fact: R v Prager, above. In R v Lo Sun-wah [1980] HKLR 253, the Court of Appeal took the view that a confession obtained after lengthy questioning might be tainted with the suspicion of oppressive behaviour (see also HKSAR v Leung Chiu Ming [2001] 1 HKLRD 272). Whereas, Silke JA in R v Chan Tung-hoi [1985] 1 HKC 544 said:
This court has often said that questions of themselves are not improper, provided that they are not oppressive.

Whether or not there has been oppression in an individual case will depend on many factors. They include length of time of the questioning; the duration of the interval of time between interviews; the conditions wherein the interview is conducted, such as a cold or very hot room; shouting, or insulting the suspect; keeping him chained or manacled while the interview is conducted. It is submitted that unwarranted detention for a substantial period of time, without explanation or the opportunity to contact family friends or a lawyer, may set the context in which an elicited confession is ruled to be inadmissible on the ground of oppressive circumstances. In Ashcraft v Tennessee [1944] 322 US 143, (at 160), in the US Supreme Court, Jackson J pointed out that:
The effect of threats alone may depend more on individual susceptibility of fear. But men are so constituted that many will risk the postponed consequences of yielding to a demand for a confession in order to be rid of present or imminent physical suffering.

There is clear authority for the proposition that evidence obtained in an oppressive manner can be ruled to be inadmissible. In Callis v Gunn [1964] 1 QB 495, (a fingerprint case), Lord Parker CJ spoke of evidence obtained in an oppressive manner by force or against the wishes of an accused. In R v Hudson [1981] 72 Cr App R 163, the Court of Appeal held that a combination of acts, some of which were unlawful and some unfair by the investigating police officers, could raise doubts as to the voluntary nature of a confession. In Hudson, (1) there was an arrest against an instruction that no charge would be preferred; (2) a breach of section 38(4) of the Magistrates Courts Act 1952, in that following his arrest H had not been taken before a court (or charged) within 48 hours of his arrest; see section 52(1) of the Police Force Ordinance (Cap 232). H was kept in the police station for five days before being released; (3) that having made admissions on day one and day two of his detention, H was neither charged nor warned that he might be prosecuted consequently Hs continued detention became unlawful after the expiration of 48 hours; (4) Hs age and circumstances; and, some of the things H is alleged to have said during the interviews. In all H was questioned for some 25 hours, he was asked more than 700 questions. It does not follow from this decision that any unlawful or unfair act would be regarded as sufficient to render a confession inadmissible. At common law, breaches of the Judges Rules, and now the Rules and Directions (see 15122 et seq, below) are rarely, if ever, sufficient in themselves to impugn the admissibility of a confession. In HKSAR v Cheung Kwok Chung [2004] HKEC 38 at para 24, the Court of Appeal held that showing a defendant his co-defendants statement, which incriminated the former, without telling him that the co-defendants statement could not be used against him, did not in itself amount to oppressive conduct.

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 1573 The truth of a confession

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A plea of guilty in the face of the court is the most cogent of confessions, provided the Court is satisfied that the accused also accepts the facts, upon which the plea is grounded. It is a rule of commonsense that an accused would not confess to a crime that he had not committed. More often than not a suspect will confess to the truth in an extra-judicial statement. Yet when the matter comes to trial he will, very often, resile from his confession. He will contend that his confession was involuntary. The question of whether or not the confession was free and voluntary will be decided as a special issue. In such proceedings the accused can give evidence. The right of the accused to give evidence on the special issue was, at one time, placed in doubt. This is no longer the case. In R v Hammond (1941) 28 Cr App R 84, CA, the Court of Criminal Appeal had to decide upon the question of whether or not an accused could be asked if the confession he had made to the police was true. During the trial within a trial, (or voir dire), the accused in cross-examination had been asked if his statement were true, the accused said it was. The cross-examination then proceeded as follows:
Q: What you are now saying is that you were forced into saying what was true by something that was done. Is that right? A: Yes, sir. Q: So you did kill Mr. Roberts? A: Yes, sir.

On appeal, Humphries J found that the question was clearly admissible:

It was a perfectly natural question to put, and was relevant to the issue whether the story which the appellant was telling of being attacked and ill-used by the police was true or false.

1574

In Hammond, above, the Court of Appeal criticised the judgments in two Canadian cases, R v Weighill (1945) 83 CCC 387, BC CA, and R v Hnedish (1958) 29 CR 347, Sask SC, which held to the contrary. In Hnedish, above, Chief Justice Hall remarked that when the point comes squarely to be decided, another court will take a hard look at the whole question. In the two Canadian judgments the courts had held that the only issue was one of voluntariness. The Privy Council in Wong Kam-ming v R [1979] 2 WLR 81, without hesitation, overruled Hammond, above. At page 85, Lord Edmund-Davies made the following trenchant observations:
Their Lordships were told by counsel that in England and Wales it has become common practice for prosecuting counsel to ask the defendant in the voir dire whether his challenged statement was in fact true. It is difficult to understand why this practice is permitted, and impossible to justify it by claiming that in some unspecified way it goes to credit.

Lord Hailsham disagreed, in part, with the majority Opinion of the Board. At page 92, he suggested that in some circumstances, and subject to the discretion of the trial judge to allow the question to be asked, the issue of the truth of a statement may become relevant to the larger issue of whether or not it was voluntary. He entered this caveate to the majority decision:
Obviously, the judge must be allowed a discretion in the matter. He must not permit counsel to pursue the matter of truth or falsity of items in a confession for an ulterior reason or in an oppressive manner, or at undue length, but I am not able to say, a priori, that all must necessarily be irrelevant.

Lord Edmund-Davies, at page 87, took the issue further, by posing two questions:
But what if the confession is held admissible ? In such circumstances, it is unlikely that the prosecution will need to do more than rely upon the confession itself. Nevertheless, in principle should they be prevented from proving in addition any admission made by the defendant on the voir dire ? This question has exercised their Lordships a great deal, but even in the circumstances predicated it is preferable to maintain a clear distinction between the issue of voluntariness, which alone is relevant to the voir dire, and the issue of guilt falling to be decided in the main trial. To blur this distinction can lead, as has already been shown, to unfortunate consequences, and their Lordships have therefore concluded that the

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same exclusion of evidence regarding the voir dire proceedings from the main trial must be observed, regardless of whether the challenged confession be excluded or admitted.

Later, at page 88, Lord Edmund-Davies, clearly conveyed the Opinion of the Board, 1575 which was to the effect that should the accused testify on the main issue, he could be cross-examined on any inconsistencies between what he had said in the voir dire and his evidence on the general issue. He likened the situation where the accused has given sworn testimony as a witness in a previous trial. See also R v Li Kim-hung [1969] HKLR 84, Full Court; R v Ng Chun-kwan [1974] HKLR 319 and; R v Brophy [1982] AC 476, [1981] 2 All ER 705, HL. In such circumstances the cross-examiner should not suggest in his questioning of the defendant the nature or purpose the previous proceedings wherein the defendant had come to give evidence. The prohibition on the admission of evidence adduced in the trial within a trial is not absolute. In a trial before a judge alone, or a magistrate, the evidence given by prosecution witnesses on the special issue can be considered by the court on the general issue. However, in R v Ng Chun-kwan, above, McMullin J made it clear that the only way in which evidence of an admission or statement made by an accused in the voir dire proceedings may be adduced as evidence is by way of rebuttal, if the accused gives evidence on the general issue. Such evidence of rebuttal may serve to weaken the case of the accused, but it cannot strengthen the case for the prosecution. The accuseds untruthfulness is a factor that the judge or magistrate is entitled to consider, when assessing the weight to be given to his evidence. On the other hand, if the accused elects not to give evidence in his defence, nothing of what he testified to on the special issue can feature as evidence on the general issue, whether or not it be inculpatory or exculpatory. ln R v Lai Chi-shing [1987] HKLR 422, CA, it was held that in a trial before a District Court judge, the evidence of prosecution witnesses, who had testified in the special issue, whether it be in a voir dire or in the alternative procedure, was admissible on the general issue. There would be no need to call them twice. On the appeal Cons VP, made the point that the reason why there can be no reference to the accuseds evidence is that to do so would impinge upon his right of silence. In HKSAR v Sze Sun-man [1998] HKLRD (Yrbk) 401, the Court of Appeal held that the testimony of witnesses called by the defence on the special issue, cannot be evidence, in any way, in the general issue. With respect it is not clear from the report why the distinction between prosecution and defence witnesses was made. At page 236, Power VP, stated that he could not agree with the proposition that there was no difference between prosecution and defence witnesses, he continued:
We are satisfied that when a defendant calls evidence in the voir dire proceedings and later indicates that he is not calling evidence on the general issue, the voir dire evidence cannot be used either for or against him on the general issue. Although it does not determine the matter, we cannot help but note that in a jury trial, clearly no use could be made of such evidence as a jury would have no knowledge of any of the evidence given in the voir dire.

This appeal highlights the distinction to be made between jury and non-jury trials. It is to be emphasised that the prohibition, in a jury trial, applies also to prosecution witnesses. They must give evidence again before the jury.

Can the issue of exclusion be revisited after the trial judge has admitted the confession into evidence?
There is conflicting authority on the issue of whether the judge can reconsider his 1576 decision, admitting a confession into evidence. In R v Watson [1980] 2 All ER 293, CA, the Court of Appeal restated the general principle that the judge retains control over the evidence submitted or adduced in a trial. That being so the judge can reconsider his ruling on the admissibility of evidence. It would not be enough for the judge just to change his mind. There should be some change of circumstance, which would warrant a reversal of a previous ruling. In Watson, above (at 994AC), Cumming-Bruce LJ held:
In our view the judge was wrong to rule as he evidently did that he had no power to consider the relevance of evidence, given after the trial within a trial, upon the issue whether the

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written statements were not voluntary and therefore inadmissible. He should have allowed counsel to develop his submission and should have ruled upon its merits. It is the duty of the judge to exclude from the jurys consideration evidence which is inadmissible. In the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act upon it. Experience has shown that where the question of the voluntary character of a statement has been investigated and decided at a trial within a trial, it is only in very rare and unusual cases that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such evidence, the judge has power to consider the relevance of the admissibility of evidence upon which he has already ruled.

The occasions when the trial judge would permit counsel to question a previous ruling on the issue of admissibility would be rare. In R v Murphy [1965] NILR 138, (The Northern Ireland Courts-Martial Appeal Court), Lord MacDermott LCJ asked himself if the discretion is spent once it has been exercised against the accused. At pages 143144 of the report, Lord MacDermott answered his own question thus:
To say that it is then too late to reconsider the objection would, we think, be to run the risk of letting the technicalities of the situation prevail over the requirements of justice. The admission of a confession as voluntary, on evidence heard in the absence of the jury, may be shown by subsequent evidence to be clearly involuntary and therefore inadmissible. In such circumstances we consider it would undoubtedly be within the province of the court either to instruct the jury to disregard the evidence as no longer admissible or, in the absence of other evidence capable of sustaining the charge, to direct an acquittal.

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The trial judge, therefore, can reconsider his decision. A similar approach was regarded as acceptable by the Court of Appeal in R v Chan Chun-ming [1980] HKLR 785. In an earlier appeal, R v Ho Yiu-fai [1970] HKLR 415, the Full Court stated that, where the issue of the admissibility of a confession is in question, the judge sitting without a jury, must ensure that: (1) the defence is not left with the impression that the right of cross-examination is limited to the issue of admissibility; (2) that the accused, (by giving evidence), is heard on the issue of admissibility; and, (3) that a ruling on the admissibility of the confession is made at or before the close of the case for the prosecution (also see the judgment of McMullin J, as now reported in R v Leung Siu-ng [1992] 2 HKCLR). In R v Lam Yin-yung [1992] 2 HKCLR 53, the accused had not challenged his confession but during cross-examination of the police officer, who had taken down the statement, it became apparent that the confession, as recorded, may not have been voluntary. The Court of Appeal, on the basis that this was a non-jury trial, held that though the statement had been admitted into evidence the trial judge should have held, or reopened, the trial of the special issue, and then followed the steps of the procedure suggested in R v Ho Yiu-fa, above. If on the reopened trial of the special issue the judge finds that the confession may not have been voluntary after all he will exclude it from the evidence. In a jury trial, where such circumstances may also arise, the judge can adopt one of three courses; (1) he can discharge the jury, if he thinks that the admission of the accuseds confession was inadvertent, or without challenge, or perhaps where a crucial witness, who was absent at the voir dire stage, has since become available; (2) the trial judge can tell the jury to ignore the confession, as if it had not been made (not always the kind of logic which would appeal to the lay person) or; (3) if the confession is crucial to the prosecutions case, and there is no other evidence of any substance, sufficient in itself to found a conviction, he should direct the jury to enter a verdict of not guilty. In R v Luk Siu-keung [1984] HKLR 333, the Court of Appeal held that where the accused had chosen to have the issue of admissibility heard and determined in front of the jury, and the trial judge had concluded that the confession was inadmissible, the proper course would be to withdraw the confession from the jury and then direct them to ignore it. If there is no other evidence, the judge should direct the jury to return a verdict of not guilty and order the acquittal of the accused. There is clear authority in support of the proposition that the accused, at his request, may have the issue of admissibility decided by the judge in the presence of the jury: Ajodha v The State, above.

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There is authority which appears to suggest that the trial judge or magistrate can be asked by the prosecution to reconsider his earlier decision to exclude a confession: HKSAR v Lok Kar Win & Others [2001] 1 HKLRD 733, (a decision of the Court of First Instance). This was a case of some complexity which, for reasons that are not immediately apparent, was tried before a magistrate. The accused appealed against their respective convictions on a variety of grounds. The learned appellate judge accepted the proposition that a judge or magistrate had the discretion to reverse an earlier ruling that a confession was inadmissible. This was an observation made by him in response to a hypothesis advanced by counsel. The appellate judge ruled that in the peculiar circumstances of the case the magistrate was right to admit into evidence the statements made by two of the appellants, on the ground that he had, at an earlier stage of the trial, been in fundamental error in holding that the evidence of a crucial witness for the prosecution was inadmissible. Subsequently, the magistrate changed his mind and allowed the witness, who was an accomplice, to give evidence both in the voir dire of two of the appellants and on the general issue. The magistrate also ruled that the evidence of the witness was relevant in the general issue against all the appellants. In this case the magistrate was reversing his decision regarding the evidence of a witness, not the inclusion of a confession, which he had earlier found to be inadmissible. The fact is that on the first, erroneous ruling, there had been no evidence at all from the witness. Leave to appeal to the Court of Final Appeal was refused by the Appeal Committee: (unrep., FAMC No 27 of 1999). With respect, this case is not authority for the proposition that a judge may reverse his ruling and thus admit into evidence a confession, which he had earlier ruled to be inadmissible. On the other hand there appears to be nothing in the law or in the application of logic to prohibit a trial judge from reversing his decision to exclude a confession. To support a ruling of this kind the circumstances would have to be very exceptional.

Re-litigating the issue of admissibility

The law on this point is not entirely satisfactory. There is a lack of clear authority. It 1578 often happens that an accused is tried on more than one occasion for the same crime. For example: the accused may have had his conviction reversed by the appeal court, with an order that he be retried; the jury may not be able to reach a valid verdict and so must be discharged, a new jury will be empanelled to try the case; the jury may be discharged before the end of the trial, thus making it necessary for a new trial to be held before a fresh jury; after the trial has commenced and some evidence heard it may become necessary for the indictment to be severed, thus causing one or more of the accused to be tried separately before a different jury. In each of these situations the admissibility of a confession made by the accused may have been the subject of a voir dire. The trial judge may have excluded the confession, or admitted it into evidence. In such circumstances, in the retrial the prosecution may seek to re-litigate the issue of admissibility, where the confession had been ruled to be inadmissible in the previous trial. On the other hand the defence may seek to raise the issue of admissibility before the new judge, where the confession had been allowed into evidence by the first trial judge. The Supreme Court of Canada in Duhamel v R (1984) 43 CR (3d) 1, 15 CCC (3d) 491 found that the rule of issue estoppel does not apply to questions of admissibility in criminal proceedings. Issues of admissibility do not decide any substantive rights, nor does the admission of a confession into evidence decide the issue of fact fundamental to the guilt or innocence of the accused. The Court described the exclusion or admission into evidence of a confession as an autonomous issue unrelated to guilt or innocence; it was in the nature of an interlocutory finding. In conclusion the Supreme Court agreed with the decision of the lower appeal court that there was nothing in the law to prevent the Crown from raising the issue of voluntariness in the second trial, in spite of the fact that the confession had been ruled to be inadmissible on a previous occasion. The New Zealand Court of Appeal, on very similar facts, came to the opposite conclusion: Bryant v Collector of Customs [1984] 1 NZLR 280.

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In Bryant, the appeal court followed the decision of the House of Lords in Hunter v Chief Constable of West Midlands [1982] AC 529. In Bryant there had been an acquittal in the first trial, because the trial judge had ruled that his confession was inadmissible. The appellant had then been recharged and tried for another offence. The judge in the second trial held that he was not bound by the ruling on admissibility made by the first judge. After considering the evidence afresh the judge in the second trial ruled that the confession was admissible and duly convicted the appellant. On appeal the New Zealand Court of Appeal held that there had been a final decision in the first trial. The appeal court followed Hunter, above, and found that the re-litigation of the issue of admissibility in the second trial was an abuse of process of the court. However, the Court left open (at 285) the issue of:
whether that principle has any application where a new trial is ordered or whether there are other considerations bearing on its application where that doctrine is invoked against the accused.

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In Hunter, above, Lord Diplock stated that in his opinion (one shared by the other judges) the term issue estoppel was restricted to the species of estoppel per rem judicatam, that may arise in civil actions between the same parties or their privies. Lord Diplock had first made this statement of principle in the case of Mills v Cooper [1967] 2 QB 459. It was adopted and approved in DPP v Humphrys [1977] AC 1. In short, issue estoppel has no place in the criminal law (followed in R v Yu Wai-shan [1986] HKLR 550). In Hunter, above, the plaintiff had sought to re-litigate the issue of the admissibility of his confession, wherein he had admitted to committing a number of bombing outrages, with others, in the Birmingham area during the 1970s. At his trial Mr Hunters confession was admitted into evidence after a lengthy voir dire : his appeal against conviction was dismissed by the Court of Appeal. Mr Hunter took proceedings in the civil courts to claim damages for the injuries which he claimed he had suffered at the hands of the investigating police officers. The House of Lords held that this action, as a matter of public policy, was an abuse of the process of the court, as Mr Hunters principal objective was to reverse the findings of the judge and the jury in the criminal trial. The issue relating to the admissibility of Mr Hunters confession necessarily involved the trial judge and the jury finding that there had been no assaults or improper behaviour by the police. This was a final decision of the court, which had not been upset on appeal. The House of Lords did hold, however, that if fresh evidence had come to light since the trial, which had radically changed the aspect of the case, the intended plaintiff could be permitted to proceed with his action. In R v Rogers (1994) 181 CLR 251, the High Court of Australia came to a similar conclusion in regard to criminal proceedings: to re-litigate the admissibility of a confession in a subsequent trial was an abuse of process. There appears to be some distinction made between the non-discretionary and discretionary exclusion of evidence. In R v Edwards (1997) 94 A Crim R 204, on appeal, it was held that it was permissible for the judge in the second trial to re-open the issue of the admissibility of certain evidence, which had been excluded in the first trial on the ground that its prejudicial effect outweighed any probative value it may have. In R v Cossey [1991] 1 NZLR 566, the New Zealand Court of Appeal held that the prosecution was entitled to re-litigate the issues of admissibility in the second trial. The Court, in part, came to this conclusion because there had been no final decision in the first trial. The appellants conviction had been quashed and a re-trial had been ordered. In a previous appeal, R v Fatu [1989] 3 NZLR 419, the Court of Appeal had held that a re-run of the voir dire was not an abuse of process. At the second trial the judge could give weight to the earlier ruling, though he was not obliged to follow it. In R v Chu To-chung [1995] 2 HKCLR 18, Keith J considered, with some concern, the conflicting decisions of the courts on this point. He appears to have found that the crucial issue is whether or not the decision in the previous trial was final. The learned judge referred to the case of R v Pervez [1983] Crim L R 108, in particular Professor J.C. Smiths commentary at p 109, the portion of that commentary, as quoted by Keith J, reads as follows:

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facts may emerge at the voir dire which would justify the judge in excluding a strictly admissible confession in the exercise of his discretion such as a breach of the Judges Rules. It does not seem satisfactory that a discretion should be exercised by any judge other than the judge in charge of the proceedings which result in a verdict.

It should be noted that in Pervez, above, the same judge had presided over both trials. 1580 In the first trial he had ruled that the confessions were admissible. Therefore to relitigate the issue again before him would seem to be a waste of time. This is not to say that circumstances may have changed since the first trial, new evidence may have come to light: this point was noted by Keith J. But he thought that the situation would, in principle, be the same, irrespective of whether or not the trial judge on the second trial was the same or another, provided that new evidence was available which: (a) could not have been obtained with reasonable diligence for use at the first trial; (b) would probably have an important influence on the determination of the issue if it had been given in the first trial; and (c) has the appearance of credibility about it. He ordered that a voir dire on the admissibility of the accuseds confession should be held. With respect it is suggested that this is a matter which should receive the attention of the Court of Appeal at the first opportunity. There is no definitive authority in this jurisdiction on the point.

(2) Discretionary exclusion

Even when the voluntary nature of a defendants confession, or incriminating asser- 1581 tions, has been proved, or admitted, judges are often invited to exercise their discretion to exclude them on the ground that there has been some breach of the Judges Rules, now the Rules and Directions (issued by the Secretary of Security in 1992). Judges rarely accede to these invitations. On the other hand, a judge in a criminal trial has always the discretion to refuse to admit evidence where, in his opinion, its prejudicial effect outweighs its probative value. The exclusionary discretion described here is often referred to as either residual or inherent. The paramount duty of a judge is to ensure that the parties receive a fair trial. The existence of this discretion was first clearly recognised by the House of Lords in R v Christie [1914] AC 545. The classic statement of the rule is to be found in the words of Lord du Parcq, when delivering the opinion of the Privy Council in Noor Mohammed v R [1949] AC 182 at 192:
In all such cases the judge ought to consider whether the evidence is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted, If, so far as that purpose is concerned, it can in the circumstances have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous grounds for holding it technically admissible.

This passage was cited with approval by Lord Simon of Glaisdale, when delivering the leading speech in Harris v DPP [1952] AC 694, HL. The rule has been broadened in recent times. The prejudice in this context concerns the effect the confession or incriminating statement may have upon the minds of the jury: R v Li Ming-kwan [1973] HKLR 275. On the other hand, it is important to bear in mind that all relevant evidence is admissible in a criminal trial. In Kuruma, Son of Kaniu v R [1955] AC 197, PC, (where evidence had been obtained as the result of an illegal search), Lord Goddard stated in unequivocal terms that:
The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.

Lord Goddards statement was considered and approved by the House of Lords in Fox v Chief Constable of Gwent [1986] AC 281. It was held in R v Yu Yem-kin (1994) 4 HKPLR 75 at 99104, that the fact the search was inconsistent with Article 14 of the Bill of Rights would not render inadmissible evidence thereby obtained.

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In obiter dictum, Lord Goddard, in Kuruma, Son of Kaniu v R, above, PC, suggested that where a document had been obtained by a trick, no doubt a judge might properly rule it out. In fact in making this observation Lord Goddard was following the rule as it applied in Scotland. Nevertheless, Lord Goddards obiter dictum has been cited and followed in several cases. In Jeffrey v Black [1978] 1 All ER 555, the Divisional Court followed Kuruma, above, and stated that a court had the discretion to exclude evidence if to admit it would be unfair or oppressive. But the Court added an important rider to this general principle; that is, the discretion should only be exercised in exceptional circumstances when the police had acted not only without authority but had also been guilty of trickery and had misled someone or in other respects had acted in a reprehensible manner. In King v R [1969] 1 AC 304, the Privy Council observed that unfairness is not susceptible of precise definition:
It must be judged of in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence may all be relevant. That is not to say that the standard of fairness must bear some sort of inverse proportion to the extent to which the public interest may be involved, but different offences may pose different problems for the police and justified different methods.

The Court of Appeal in R v Keeton (1970) 54 Cr App R 267 (at p 271) made similar observations in that where the line is to be drawn is not capable of precise definition. In this context reference is made to the case of R v Ali & Hussain (1562, above). Account can also be taken of the gravity of the offence charged. In R v Willis [1976] Crim L R 127, the Court of Appeal doubted this so-called rule of fairness, and suggested that the judges discretion was confined to evidence which had been obtained in breach of the Judges Rules (now the Rules and Directions) and evidence which had minimal probative value but much prejudicial effect. Though the Court of Appeal certified the point as fit for consideration by the House of Lords, leave was refused by the Appeals Committee. It is submitted that the clearest guidance on this vexed and complex subject is to be found in the judgments of the judges of the House of Lords in R v Sang [1980] AC 402. The underlying principle that fairness relates to the processes of a criminal trial was closely examined by all five speeches of the judges in Sang, above. The judges were careful to create some space between the judicial and executive functions of government. Though technically obiter their expressions of principle have been followed repeatedly in this jurisdiction: R v Lai Kin-ming [1984] HKC 1; R v Leung Cheuk-fan [1984] HKC 374; R v Lam Yip-ying [1984] HKLR 419; Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431. As Lord Diplock remarked in R v Sang (at p 431), there are impressive sources of authority to suggest that the judge has a wide discretion to exclude admissible evidence on the ground that it has been unfairly obtained. In Noor Mohammed v The King [1970] AC 304, PC, Lord du Parcq recognised that the court has a discretion to exclude evidence of similar facts where its probable prejudicial effect would outweigh any probative value it may have: also see Att-Gen v Siu Yuk-shing [1989] 1 WLR 236; [1989] 2 HKLR 97.

Sang
1583
Lord Diplock, summed up his understanding of the principles involved as follows (at 435 and 436):
Nevertheless it has to be recognised that there is an unbroken series of dicta in the judgments of the appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been obtained unfairly or by trickery or oppressively, although except in R v Payne [1963] 1 WLR 637 there has never been a case in which those courts have come across conduct so unfair, so tricky, or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion. In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded has been obtained has been the defendant or,

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(in some of the search cases), premises occupied by him: and the dicta can be traced to a common ancestor in Lord Goddards statement in Kuruma v The Queen [1955] AC 197, which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion that to exclude (1) admissible evidence which would probably have a prejudicial effect upon the minds of the jury that would be out of proportion to its true evidential value: and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant after the offence had been committed by means which would justify a judge in excluding an actual confession which had the like selfincriminating effect. As a matter of language, although not as a matter of application, the subsequent dicta go much further than this; but in so far as they do so they have never been considered by this House.

And further down on 436:

Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial, as respects the admission of evidence, is to ensure that the accused has a fair trial according to law. It is no part of a judges function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it were obtained illegally there will be a remedy in civil law, it were obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.

And at 437:
I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations in this case, (1) a trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value, (2) save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur. I would dismiss the appeal.

1584

Lord Fraser of Tullybelton adds the colour of subjectivity to the issue (at 450):
The result will be to leave the judges with a discretion to be exercised in accordance with their individual views of what is unfair or oppressive or morally reprehensible. These adjectives do undoubtedly describe standards which are largely subjective and which are therefore liable to variation. But I do not think there is any cause for anxiety in that. Judges of all courts are accustomed to deciding what is reasonable and to applying other standards containing a largely subjective element. In exercising the discretion with which this appeal is concerned, judges will have the benefit of the decision of this House, fixing certain limits beyond which they should not go and they will also have valuable guidance of a more general nature in the opinion of Lord Widgery in Jeffery v Black, above, I do not think that it would be practical to attempt to lay down any more precise rules because the purpose of the discretion is that it should be sufficiently wide and flexible to be capable of being exercised in a variety of circumstances that may occur from time to time but which cannot be foreseen.

Lord Scarman, at 452, described the discretion as the merciful face of the law, where otherwise a strict application of the law might operate unfairly against the accused. The overriding duty of the judge is to ensure that the trial is fair; that is, to both sides. From the speeches of the judges in Sang the following principles can be identified: (1) there is one general discretion, not several specific discretions; 1585 (2) the judge has a discretion to exclude legally admissible evidence if justice so requires, (Lord Reid in Myers v DPP [1965] AC 1001); (3) the formula of the prejudicial effect outweighing the probative value of evidence, such as, for example, similar fact evidence, is not a complete statement of the principle;

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(4) the judicial discretion to exclude admissible evidence is confined to the unfair use of evidence in the trial. There can be no veto on the prosecutions right to prosecute or to present admissible evidence, however obtained. R v Sang, above, has been followed in numerous judgments in this jurisdiction, in particular: R v Lai Kin-ming [1984] HKC 1; R v Leung Cheuk-fan [1984] HKC 374; R v Lam Yip-ying [1984] HKLR 419; R v Cheung Ka-fai [1995] 2 HKCLR 184, at 195, and; Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431, at 440441, [2000] 2 HKC 693, at 702703, CFA. The scope of this discretion has been delineated by Li CJ in his judgment in R v Lam Tat-ming, above, at 440441:
The judge has the overriding duty to ensure a fair trial for the accused according to law. For this purpose, he has what should be regarded as single discretion to exclude admissible evidence, including a voluntary confession, whenever he considers it necessary to secure a fair trial for the accused. The essential question is not whether the law enforcement agency has acted unfairly in a general sense. It is not part of the courts function to exercise disciplinary powers over the law enforcement agencies or the prosecution as regards the way in which evidence they seek to adduce at trial was obtained by them: see R v Sang [1980] AC 402, 436G; R v Cheung Kar-fai [1995] 2 HKCLR 184, 195. The courts function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial. The test of unfairness is not that of a game governed by a sportsmans code of fair play. See R v Sang [1980] AC 402, 456D-E; R v Swaffield (19978) 192 CLR 159, 1856. Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused. R v Sang [1980] AC 402, 453C (Lord Scarman); R v Scott [1989] AC 1242, 1256A-B. However, it is important to observe that in just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent. See R v Sang [1980] AC 402, 437B (Lord Diplock), 456E-F (Lord Scarman); Attorney General v Lam Man-wah (No 2) [1992] 2 HKC 70; [1992] HKLY 240 at 72C. The requirement of a fair trial for the accused involves the observance of principles including the following, which are relevant in this appeal: (1) No man is compelled to incriminate himself; his right of silence should be safeguarded. (2) No one can be convicted except upon the probative effect of admissible evidence. To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles: R v Sang [1980] AC 402, 436H437D (Lord Diplock) and 455C-E (Lord Scarman). Thus, where a confession has been obtained in breach of the Secretary for Securitys rules and directions, (and previously the Judges Rules), this is a matter to be considered by the court in deciding whether to exercise its discretion to exclude. This should be regarded as relating to the principle in (1). The case of R v Payne [1963] 1 WLR 637 should also be regarded as relating to the principle in (1). See R v Sang [1980] AC 402, 435D (Lord Diplock), at 455D (Lord Scarman). [There], the defendant subjected himself to a medical examination at a police station following a car collision after it was made clear to him that its purpose was to see if he was suffering from any illness and disability and it was no part of the doctors duty to examine him to determine his fitness to drive. The judge in his discretion excluded the doctors evidence that he was unfit to drive.

1586

The concept of fair trial has been developed further in the Court of Appeal decision of HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, CA. The court accepted that the common law had developed since Sang, so in deciding whether a trial is fair, the court must take a broad view of the overall circumstances, and does not just look at the procedural fairness in the actual trial. It is also entitled to look at the overall behaviour of the investigating authority or the treatment of the accused: at para 116. This notion of fair trial is broader than the narrow conception of fair trial as expressed in Sang, which seems to be only concerned with the forensic fairness of the actual trial.

The exercise of the discretion

1587
The power to exclude admissible evidence should rarely be employed: R v Lam Yipying, above, (Roberts CJ at 424) and Mortimer JA in R v Chan King-hei [1995] 1 HKCLR 288 at 292. This discretion has been described as very limited: Litton JA in R v Chow Chi-hing [1993] HKEC 98. The circumstances, which may give rise to the exercise of this discretion, are almost infinitely variable. It is not a useful exercise to make comparisons between cases, since the facts are rarely the same. In R v Sang, above, for example, the

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House of Lords was concerned with the activities of an alleged agent provocateur. It held that that it was no defence at common law that an accused had been incited to commit a crime by an agent employed by the police or other law enforcement agencies. Though a suspect, induced by an undercover law enforcement officer to make damaging admissions to a crime, in respect of which the authorities already had sufficient evidence to arrest him, could successfully contend that it would be unfair for such admissions to be admitted into evidence in his trial. In Secretary for Justice v Lam Tat-ming, above, Li CJ considered this issue at some length, (at 442444). As the Chief Justice pointed out the real problem arises where the undercover officer or agent plays an active role in procuring the confession from the suspect:
If it were not an undercover operation, the suspect would have been cautioned reminding him of his right of silence and enabling him to make a choice whether or not to speak. With an undercover operation, this obviously could not be done. In this situation, once the officer actively questions the suspect, we enter into an area which may engage the exercise of the residual discretion.

The Chief Justice, later in his judgment, puts this issue in perspective:
In the exercise of the residual discretion whether to exclude a voluntary confession, the courts may take into account as a factor of gravity of the offence. However, it would not be right to give great weight to this consideration because to do so would be to devalue the right to a fair trial to which all persons are entitled for all offences. But it is a relevant factor. The laws approach to this matter has to take account of community interests, as well as the rights of the suspects. It is necessary to emphasise that the residual discretion is a judicial discretion, which is to be exercised in a principled way. But the occasions where its exercise may be considered will involve a wide variety of facts and circumstances. Ultimately, the courts will have to apply the approach in a commonsense way. We are concerned with a confession obtained through undercover operation where the crimes had already been committed and there is a suspect. In this situation the exercise of the residual discretion is likely to be engaged on the approach laid done in this judgment. That situation is to be contrasted with the undertaking of undercover operations to uncover ongoing criminal activities. There the accusatory stage with a suspect will, generally speaking, not have been reached and different considerations would apply even where incriminating admissions are made of past offences.

The Chief Justice reviewed a number of Hong Kong authorities, which he considered 1588 were generally consistent with his opinion, and which should now be read in the light of his judgment: Secretary for Justice v Lam Tat-ming, above, has been considered and applied in HKSAR v Cheung Chi-siu [2001] 1 HKLRD 356; HKSAR v Lee King Man [2008] HKEC 346, CA. This issue of what might be termed pro-active inducement by an undercover police has recently been considered by the House of Lords in R v Looseley, Att-Gens Reference (No 3 of 2000) [2002] 1 Cr App R 29, (360408). In that case the appellant had applied to the trial judge for a permanent stay on the ground that the activities of the undercover police officer went far beyond mere observation and involved his asking the appellant to supply him with heroin, to which (on the trial judges findings) the appellant readily agreed. All five judges delivered judgments in a very detailed analysis of the issue. The judges agreed that Article 6 of the European Convention of Human Rights, which must now be taken account of in the United Kingdom, by virtue of section 2(1)(a) of the Human Rights Act 1998, was not only confined to a fair determination of the question of guilt, there is also a right not to be tried at all, where this would amount to an abuse of state power. In Teixeira de Castro v Portugal (1998) 28 EHRR 101, the European Court of Human Rights decided that right from the outset the appellant was definitely deprived of a fair trial, (at 116, para 38), because his conviction of drug offences had been instigated by two police officers. In his speech in Looseley above, Lord Hoffman, stated at 374 (46):
This is a situation of entrapment in which, in an appropriate case an English court would order a stay of proceedings under the principles in Latif.

And at 382 (74):

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My Lords, every case depends on its own facts but there is nothing in the general principle applied by the European Court or the cluster of factors to which it attached importance which suggests any difference from the current English approach to entrapment. The contrary submission depends upon an excessively literal and technical analysis of some of the language used by the Court. So for example the Court said at 116, para 38 of the judgment that The two police officers did not confine themselves to investigating Mr Teixeira de Castros criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence. This sentence is relied upon for the proposition that even in an authorised undercover operation the officer must take no active step such as offering to buy an illegal substance. Such conduct amounts to incitement of the offence. I do not believe that the court intended to lay down such a rigid and prescriptive rule. The description of the policemens conduct must be seen as one of the various factors which led to the courts conclusion that there had been an abuse of police power which denied the defendant a fair trial.

1589

In R v Latif & Another [1996] 2 Cr App R 92, HL, the House concluded that: (1) in criminal proceedings, weighing countervailing considerations of policy and justice, it was for the trial judge, in the exercise of his discretion, to decide whether there had been an abuse of process which amounted to an affront to the public conscience and thereby required those proceedings to be stayed; (2) in this case the appellants had not been prejudiced in their defence, and; (3) though one of the appellants had not committed the offence of importation, since this had been done by the customs officers, he had intended to commit the full offence, firstly in Pakistan and secondly when he tried to collect the heroin in the United Kingdom for onward distribution. In other words, the trial judge must conduct a balancing exercise, aware that in some circumstances the activities of an undercover agent may amount to an abuse of process. Article 6 of the European Convention of Human Rights is drawn in very similar terms to Article 11 of the Hong Kong Bill of Rights Ordinance (Cap 383), and also note Article 39 of the Basic Law. In HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, CA the Court applied Looseley and Latif and added that another relevant circumstance was the nature of the offence. When a serious offence was of a sort normally carried out in secrecy and difficult to detect, then a more pro-active role on the part of the investigating authority is both necessary and excusable, at 1525. Further, it held that before the right of silence of a suspect is breached, there must be some factor which prompts the suspect to talk, for example, an interrogation or a special relationship between them whereby the subject may be placed under some compulsion to speak about the subject matter of the offence which he is suspended to have committed. And such a special relationship is not confined to formal relationships such as between doctor and patient, but any relationship of trust, such as a family relationship or a close personal friendship whereby the suspect may be placed under a compulsion to divulge information about his role in the commission of the offence, see 15511554. As noted in 1586 above, Chan Kau Tai recognised a new conception of fair trial. As such, the court stated that it has a discretionary power to exclude evidence obtained as a result of breach of the rights guaranteed in the Basic Law or the ICCPR as applied to Hong Kong (as the breach of the rights affects the fairness of the trial in the broad sense). Whether the discretionary power will be exercised depends on a balancing exercise of several factors including the nature of the right involved and the extent of breach (at para 116). See 1933 below for further discussion of the principles of exclusion of evidence obtained as a result of a breach of constitutional rights.

Breach/breaches of the Judges Rules or the Rules and Directions issued by the Secretary for Security (Rules and Directions)
1590
The first step, which the judge must take, is to decide if the prosecution has proved that the confession was voluntary. If it is held to be voluntary then the residual discretion vested in the judge can be invoked. The general tenor of the judgments of the

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higher courts in this jurisdiction, and England and Wales during the last fifty years, is that a breach of the Rules will not be sufficient to exclude admissible evidence unless such breach or breaches were manifold and significant. In some cases there may be a fine line to be drawn between multiple breaches and oppressive conduct. In such a case it could be argued that the confession had been produced by oppression, and was thus inadmissible in any event. A line has to be drawn, in order to ensure consistency of approach. In R v May (1952) 36 Cr App R 91, Lord Goddard recognized that there was a discretion to exclude a confession, if it had been brought about by a breach or breaches of the Judges Rules:
The test of admissibility of a statement is whether it is a voluntary statement. There are certain rules known as the Judges Rules which are not rules of law but rules of practice drawn up for the guidance of police officers; and if a statement has been made in circumstances not in accordance with the Rules, in law that statement is not made inadmissible if it is a voluntary statement, although in its discretion that court can always refuse to admit it if the court thinks there has been a breach of the rules.

Lord Goddard was stating the principle in very general terms (which applies, by extension, to a breach of the Rules and Directions). Also see R v Voisin [1918] 1 KB 531 and the observations of Silke VP in R v Ng Wai-fai (unrep., Crim App 238/1989), wherein he said:
Clearly the conversation was permitted to continue in breach of the Judges Rules which, it must be remembered, are rules for the guidance of police officers. While breaches of the Judges Rules may indicate impropriety and unfairness, such a breach, of itself, does not render a confessional statement inadmissible.

In HKSAR v Chiu Kwok Ho [2004] HKEC 179, CA, the police breached Rule II by questioning the suspect about the trafficking of persons offence when he had only been cautioned about the less serious offence of assisting in the management of a vice establishment. But the critical factor in why the Court of Appeal found it appropriate not to have excluded the suspects two statements was that the defendant never suggested that but for the breach of the Rules in relation to the first interview he would not, or might not, have answered questions; and would or might have decided to avail himself of legal advice (at para 27). In other words, a causal nexus between the breach and the making of the voluntary confessions was absent. Two other cases further illustrate the principle that not every breach of the Rules and Directions will lead to the exclusion of the confession. In HKSAR v Ip, Kenneth [2006] HKEC 682, CFI, the police did not caution the accused before making some inquiry concerning the fact of the offence. In HKSAR v Mohammad Abid [2005] HKEC 2005, CFI, the statement from the accused was not recorded in the language used by the accused when he answered the questions. In both cases, the court refused to exclude the evidence. In HKSAR v Shum Siu Kai [2009] HKEC 547, CFI, the Court noted that it was well established that breach of the rules and directions do not themselves render a confession inadmissible. The criteria for admission of a statement is fairness. The voluntary nature of a statement is the major factor in determining fairness.

Physical, mental state and age of the defendant

Section 77 of the Police and Criminal Evidence Act 1984 imposes an obligation upon 1591 the court to warn the jury of the special need for care in convicting upon the confession of a mentally handicapped person, obtained by the police otherwise than in the presence of an independent person. In Hong Kong there is no such statutory safeguard. It is submitted that in this jurisdiction judges should be careful to indicate to the jury the need for caution. In some cases it might be necessary to go further and suggest to the jury that the mental condition of the defendant may affect the reliability of the confession. The Rules and Directions are silent on this point. In R v Miller [1986] 3 All ER 119; 83 Cr App R 192, a person, who was suffering from paranoid schizophrenia at the time when he was interviewed by the police, made a confession to the crime. Apparently,

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at the material time, the defendant was the victim of delusions and hallucinations. The trial judge admitted his confession into evidence. It was held by the Court of Appeal that the judge was not bound to rule the statement inadmissible but could exercise his discretion to exclude it on the basis that it is was likely to be unreliable. Similar considerations would apply to where the accused was very young: R v Leung Lai Por [1978] HKLR 202 (see also Direction 5 of the Rules and Directions). In R v Hemi [1986] 2 NZLR 116, the statement of a boy, aged 15, who was described as street-wise, aggressive and assured, was admitted, in spite of several breaches of the Judges Rules. Confessions made by tired, drunk or mentally unbalanced suspects may be excluded in the exercise of the courts discretion: R v Lim Tit Seng [19771979] HKC 409. Each case will be decided on its own facts. A defendant who was diagnosed as having the mental age of a child of 10 years might confess to a crime, because he is very suggestible or confused or lacks sufficient understanding of the questions being asked. In such cases the confession is likely to be excluded as being unreliable: R v Ratcliffe (1989) 4 CRNZ 300. This approach is consistent with the authorities of R v Stewart (1972) 56 Cr App R 272; R v Isequilla [1975] 1 WLR 716; R v Chen Pak Chang [1980] HKLR 344. An admission made under hypnosis is not admissible: R v Booker (1928) 4 DLR 795. Similar considerations would apply to confessions made under the influence of a truth drug. The mind of the suspect is said not to go with his act of speech. It is submitted that the evidential burden of raising such an issue would lie with the defendant. On the other hand the persuasive burden of proving that the confession is admissible always remains with the prosecution: R v Miller, above. Though it is not clear where the line can be drawn, the appellate courts in England and Wales and in this jurisdiction have adopted a pragmatic, some would say robust, approach to the reception of evidence. All evidence, which is logically probative, (that is relevant), is admissible. In R v Apicella (1985) 82 Cr App R 295, body tissue, though obtained without the consent of the accused, was held to be admissible in evidence. It has also been held that evidence obtained by a surreptitiously installed listening device, even though a trespass in a private home had been committed (probably resulting in some damage to the premises), was admissible subject to the probative value it may have and subject to any discretion to exclude it on the grounds that the evidence had been obtained by a trick: R v Khan [1996] 3 WLR 162. It has been held that Article 6(1) of the Hong Kong Bill of Rights Ordinance (Cap 383), does not have the effect of excluding otherwise admissible evidence: R v Cheung Ka Fai & Another [1995] 2 HKCLR 184. Thus, other evidence obtained as a result of what has been said by the suspect during a tapped telephone conversation would not, of itself, be inadmissible. Similarly, in HKSAR v Li Man Tak & Another (unrep., CACC 303/2005, [2006] HKEC 1724), CA, the Court held that evidence obtained under covert surveillance, though in breach of the right of privacy, was not in itself inadmissible. The court must balance two main competing interests which are the interest in protecting and enforcing the constitutionality guaranteed rights and the interest in the detection of crime and bringing criminals to justice. In the exercise of the judicial discretion, the court must ensure that the accused had a fair trial: at 1595. Surreptitious filming of accused in a police cell has been held to be a violation of the privacy rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, but such violation does not affect the admissibility of evidence so obtained as it does not impact upon the fairness of the trial: R v Loveridge & Others, The Times, 3 May 2001. In HKSAR v Yuen Shun Ying (unrep., CACC 273/2003, [2004] HKEC 526), CA, the defendant killed her boyfriend, before trying to commit suicide by cutting her wrists and overdosing on sleeping pills. The defence argued on appeal that the admission of the defendants statement, taken over 37 hours after she was admitted to hospital, during which time she was treated in intensive care and given medication, compromised the fairness of her trial and should have been excluded. The Court disagreed, noting that the police were investigating a murder case, and the investigation of crimes needs to be swift and timely, and the longer the delay, the greater the risk of crucial evidence being lost (para 53). Most importantly, the police had sought permission from the doctors, who had considered the defendant fit to be interviewed.

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Admissibility of intercepted communication and private information obtained by covert surveillance

On 9 August 2006, the Interception of Communications and Surveillance Ordinance 1592 (Cap 589) came into operation, turning a new leaf in privacy protection in Hong Kong. This Ordinance was enacted in response to a number of court challenges in 2006, culminating in Justice Hartmanns declarations of unconstitutionality in Leung Kwok Hung v Chief Executive [2006] HKEC 239 which were affirmed on appeal in the Court of Appeal, see [2006] HKEC 816. For background to these cases see 19153A. The Ordinance repealed the previous powers authorising interception of telecommunications and postal articles without the need for court authorisation, see s 33 of the Telecommunications Ordinance (Cap 106) and s 13 of the Post Office Ordinance (Cap 98). The Ordinance also repealed the Interception of Communications Ordinance (Cap 532) which was hastily enacted prior to the handover in 1997 and was never allowed to enter into force. The Ordinance generally prohibits public officers from intercepting communications and carrying out covert surveillance unless authorised in accordance with the Ordinance (ss 45). This is a recognition of the constitutional rights to privacy in Articles 29 and 30 of the Basic Law and Article 14 of the Hong Kong Bill of Rights. However no specific consequences are set out in the Ordinance for when there has been a breach of the prohibitions. The general rule is that interception must be authorised by a panel judge who must be a Court of First Instance judge (s 8). However exceptions apply allowing for executive authorisations in cases of emergency (s 20). Section 61 provides that any telecommunication interception product shall not be admissible in evidence in any court proceedings other than to prove that a relevant offence (ie offences related to the illegal disclosure of interception products) has been committed. The interception product and the particulars of the interception are not to be made available to any party, subject to fair trial considerations where disclosure is required because the content tends to undermine the case for the prosecution or is of assistance to the case for the defence. There are also restrictions on what questions may be asked in a court proceeding concerning authorisations made under the Ordinance. There are two types of covert surveillance under the Ordinance. Type 2 surveillance involves Person A using a listening or optical surveillance device to listen to, monitor or record Person B who intends or reasonably expects Person A to hear or see his words and activities or otherwise consents to the listening, monitoring or recording. It also covers the use of optical surveillance or tracking devices if the use does not involve entry onto premises or interference with the interior of any conveyance or object, without permission. Type 1 surveillance is all other forms of covert surveillance. As with interception, the general rule is that Type 1 surveillance requires authorisation by a panel judge except in emergencies. Type 2 surveillance can be authorised by an authorising officer designated as such by the relevant head of the law enforcement department. There are no restrictions on the admissibility of information obtained by authorised surveillance. The Ordinance preserves legal professional privileges and imposes safeguards to ensure that privileged communication is not intercepted and if intercepted is kept confidential and destroyed (see ss 31, 59, 62). No specific provisions address the admissibility or use of information obtained by illegal interception or covert surveillance. Such evidence will have been obtained in breach of the Basic Law and/or Bill of Rights, and the principles applicable to the admissibility of such evidence apply. See HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, CA which is discussed along with other cases at 1934A.

Communications between spouses

It is a common law rule of evidence that no evidence may be given of any commu- 1593 nication made between married spouses. Neither spouse may give evidence against the

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other in a criminal trial. There are some statutory exceptions to this rule. On the other hand, independently proved postal or telecommunication messages between a husband and wife can be admissible in evidence: R v Smithies (1832) 5 C & P 332; R v Simons (1834) 6 C & P 540; R v Bartlett (1837) 7 C & P 832. In Rumping v DPP [1964] AC 814, a letter written by a seaman, addressed to his wife, which he handed to his superior officer for mailing, was admitted into evidence. This letter never reached its addressee, because the officer had handed it over to the police when the accused was arrested. At the request of the police the officer opened the letter, which was found to contain admissions to the crime for which the accused was tried. In another case the accused was in custody of the police. He asked to make a telephone call to his wife. Without the knowledge of the accused a police officer listened to the conversation between the accused and his wife at a switchboard in the police station. It was held that there was nothing unfair or oppressive in the conduct of the police and what the accused had said to his wife in the telephone conversation was admissible in evidence: R v Keeton (1970) 54 Cr App R 267, CA.

B. Admissibility of a Confession (1) The Principle of admissibility

1594
An out of court statement made against the interest of the maker is admissible as evidence for the prosecution in a criminal trial. This is an exception to the rule against hearsay. The rule against hearsay was summarised in Subramaniam v PP [1956] 1 WLR 956 at 970 as follows:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that a statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.

This dictum has been followed in this jurisdiction on numerous occasions, most notably in Secretary for Justice v Lui Kin-hong (1999) 2 HKCFAR 510; [2000] 1 HKLR 92, CFA. The purpose of the prosecution in adducing the evidence of a confession in a trial is twofold: first, to prove that the confession was uttered or made and secondly, that it was true in its material respects. In R v Blastland [1986] AC 41, Lord Bridge restated the basic principles of the rule against hearsay. In Blastland, above, the House had to deal with the question of whether or not a confession to the subject crime made by a person other than the accused was admissible, if the maker were not called as a witness. The House of Lords held that such a statement was inadmissible as its only purpose must be to establish that it was not the accused who committed the crime. On the other hand, a hearsay statement may be proved indirectly. It is trite law that the confession statement made by one defendant in the absence of another defendant is not evidence against that other defendant. However, where the accused alleged that the police had concocted their respective confession statements, it was permissible for the trial judge to suggest to the jury that they may compare each of the statements in order to determine whether or not they were sufficiently similar in content and style in order to confirm or rebut the accuseds contentions. At the same time, the trial judge must make it clear to the jury that they must not compare the statements for the purpose of establishing their truth: Wong Wai-man & Others v HKSAR (2000) 3 HKCFAR 322; [2000] 3 HKLRD 313. As Bokhary noted at 318:
Nevertheless the comparison exercise here in question stops short of using out-of-court statements for the purpose of directly proving, as against anyone other than the statementmaker himself, that the facts re as asserted in them. Accordingly the rule against hearsay is not engaged and the complaint that it had been violated must fail.

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The appeal was allowed, however, because the evidence of comparison had no 1595 probative value, or alternatively, if it did, the prejudicial effect of the admission of such evidence greatly outweighed any probative value it may have had. An out-of-court confession made by an accused is admissible as cogent evidence of his admitted responsibility for the charged offence. The primary condition of the confessions admissibility is its authenticity, this requirement lies at the very heart of the subject of confessional statements. A confessional statement is usually oral; it is then recorded in one form or another. In many if not most cases there is little dispute that the confession was made. The prosecution must prove the authenticity of the confession, having succeeded in that endeavour it must then prove that the confession was voluntary. There are occasions where the defendant claims that the recorded confession is a concoction, and that he was induced to sign the record.

Authenticity of a confession statement

The regular use of confessions obtained during the investigation of a crime has been 1596 traced back to the early thirteenth century. It is, therefore, necessary to consider what function the trial judge has when the issue of authenticity is raised. In R v Roberts (1954) 2 QB 329; (1953) 37 Cr App R 86, the accused was found to be mute by visitation of god; in modern parlance he was dumb. In that case the police had recklessly attributed a spoken confession to the accused. In such circumstances does the trial judge have the discretion to rule the confession inadmissible? Devlin J (as he then was), the trial judge, warned the prosecution that he would not allow the statements to go in if he came to the conclusion that there was no evidence fit to go to the jury that they had been made. The prosecution took the hint. The trial judge directed an acquittal as the only evidence against the accused was these very questionable admissions. It would appear that Devlin J was using this phrase in the context of the judges function that the prosecution must establish a prima facie case that the confession is authentic: see N. Bridge (1948) 12 MLR 273 at 275277, Phipson on Evidence, 13th edn (1982), para 1.21 and Cross and Tapper on Evidence, 9th edn, p 165. On the other hand the obiter dictum of Murphy J in R v Cleland (1982) 43 ALR 619 at 627628 appears to suggest that the making of the confession statement must be proved to the same degree as its voluntariness, ie proof beyond a reasonable doubt. Thus the judge should not allow a jury to hear about an alleged confession, or should direct the jury to ignore it, if he could not be satisfied that the accused had, in fact, made the confession attributed to him. However, the distinction between authenticity and voluntariness has become blurred. Thus in Ajodha v State [1982] AC 204, PC, where the accused alleged that a confession (which he contended he had signed involuntarily) had been concocted by the police, would raise the issue of admissibility. The Privy Council recognised that the issues of voluntariness and authenticity may have become intertwined, and that it was a fallacy to suppose that these two issues were mutually exclusive. The fact that an accused signs a confessional statement is prima facie evidence that he adopts its contents. Of course the signing of a confessional statement is not the sine qua non of its acceptance by the accused. The prosecution can prove an unsigned record of interview by evidence of the investigating police officers, who had witnessed the confession being made.

The evidential effect of a confession

In R v Warickshall (1783) 1 Leach CC 263 the court stated in robust terms the ration- 1597 ale for receiving confessions in evidence:
A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers.

Not all the authorities are so trusting of the efficacy of the full and frank confession. In R v Rennie [1982] 1 All ER 385 at 388, Lord Lane CJ added a note of realism:

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Very few confessions are inspired solely by remorse. Often the motives of the accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that if they might be able to bring both their interrogation and their detention to an earlier end by confession.

It must be said, however, that there will always be a measure of concern where an oral confession has not been reduced into writing or some other method of recording. This concern was expressed long ago by Sir Michael Foster in his treatise, Crown Law (1732), p 243. In R v Thompson [1893] 1 QB 12 at 18, Cave J spoke with some irony of the supposedly familiar pattern in which prisoners appear to be the more penitent in inverse proportion to the quality of the evidence against them:
I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at trial. It is remarkable that it is a very occurrence for evidence of a confession to be given when proof of the prisoners guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; [a] desire which vanishes as soon as he appears in a court of justice.

Lord Justice Lawton, not noted as being a friend of the criminal, a judge of great experience, wryly observed in R v Pattinson (1973) 58 Cr App R 417:

1598

In these very unusual circumstances luck seems to have been on the side of the prosecution because they were suddenly presented with evidence which, if true and reliable, amounted to a confession of guilt. This is not the first time in the history of the administration of justice in this country that police officers have arrested a man and shortly before he was due to appear in court he has of his own volition supplied the evidence which was singularly lacking against him until that moment.

As a matter of practice the trial judge in this jurisdiction is likely to look at some hard evidence to support a non-recorded oral confession. In R v Bryce [1992] Crim L R 728, CA, the circumstances of how the alleged oral confession came to be made excited the suspicions of the Court of Appeal. The Appellant had been interviewed, and his no comment answers had been recorded on audio tape. However, it was alleged by the prosecution that as soon as the tape recording machine had been switched off, the appellant volunteered a confession to the crime. Though a note was taken of this confession, the appellant refused to sign it. This alleged confession was the only evidence which the prosecution could produce against the appellant. In such circumstances, it is submitted that a judge would be justified in finding that the defendant had no case to answer. It is further submitted that where a confession or admission has not been recorded, contemporaneously or within a reasonable time thereafter, the court will be concerned at the apparent laxity of the investigating police officers and must question their veracity. As an oral confession, which is easy to concoct and hard to disprove and which is not properly recorded the judge or magistrate may, in the interests of justice, look for other evidence to be satisfied that (a) the confession was made, and (b) that it was voluntary. With the introduction of the video recorded interviews many of the concerns which the courts may have had in the past, about the sufficiency of recording confessions, have been dissipated. There may be occasions when an alleged confession does not marry with other undisputed facts. This may suggest that the confession was not made, or if made, was not voluntary. Indeed in this jurisdiction it has been the writers experience that some

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suspects have deliberately put forward false confessions either because they feared that if they said nothing they may come to some harm or to deceive the investigating police officers. In either case, the confession would have little if any probative force and should be excluded. If the remaining evidence were sufficient to raise a case for consideration by the jury then the trial should proceed. At common law an accused may be convicted on his confession alone. This simple proposition of law has, in recent years, been the subject of much debate. This debate has been given some urgency by the recent Court of Appeal decisions in England and Wales, such as in the appeals of the Guildford Four. In his report on the Maxwell Confait murder case, where three youths of weak intellect were wrongly convicted on the evidence of false confessions, induced by oppressive questioning, Sir Henry Fisher suggested that the police had a duty in such cases to look for other evidence, either in support or in contradiction of the confession: House of Commons HC 90, 12 December 1977, paras 23.1 and 23.3. However, the Royal Commission on Criminal Procedure, set up in consequence of Sir Henry Fishers report, was unanimously of the opinion that the proposition that confession evidence should always be supported by other evidence was unacceptable. The Royal Commission considered that the proposal advanced had
such considerable implications for the resource and organisational aspects of the pre-trial procedure and for the accused to speedy disposal as to be altogether too drastic a way of removing the risk of false confessions [Report, Cmnd 8092, January 1981, para 4.74].

In 1992 the Royal Commission on Criminal Justice returned again to this difficult 1599 question. On this occasion its members were unable to come to a unanimous conclusion: Report, Chapter 4, paras 5687. In recent years there have been several attempts, by way of private members bills to change the law, so far without success. There is a tendency, in such endeavours to change the law, to confuse admissibility with sufficiency. On the other hand, if the judge is so dissatisfied with the circumstances of when and how the alleged confession came to be made, the authorities appear to suggest that (if there were no other evidence) the court could find that the evidence against the accused was so tenuous, inconsistent or unreliable that it should not go to the jury, in accordance with the principles enunciated in R v Galbraith [1981] 1 WLR 1039.

The law in Hong Kong

In Hong Kong the common law prevails. Nevertheless, on 14 December 1984, The 15100 Law Reform Commission of Hong Kong presented a very detailed and comprehensive Report on the subject of confession statements and their admissibility. The Commission made a number of recommendations; some of these recommendations have been implemented. The Commission in its Proposal No 4 (see also Proposal No 8) suggested that no person could be convicted if he exercised his right of silence. At the same time, provided that there had been compliance with the requirements of Proposal No 8 the jury would be entitled to draw reasonable and proper inferences from the accuseds failure or refusal to answer questions and to put forward his defence. Included in this proposal (No 4A) was the recommendation that the jury could draw adverse inferences if the accused, when giving evidence, raises a defence which he had not mentioned when interrogated by the police. Clearly, the Commission was advocating a dilution of the accuseds right of silence. This recommendation has not been adopted in this jurisdiction.

(2) Proving the fact that a confession was made

A confession statement can be recorded down in writing by the defendant himself 15101 or spoken by him. Statements made by defendants can be placed into three broad categories: written, spoken and taped. The written statement under caution may be in the hand of the defendant, though more usually it is taken down by a police officer, acting as a scribe. The written statement may be in the form of a narrative or a record of

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questions and answers. The purely oral statement is one which has not been reduced into writing, though a record may be made by the police officer in his notebook at the time or later. The police officer, in this jurisdiction will often make a post-record in writing on paper of what the defendant had said previously. If the defendant refuses to sign such a record, it can then be proved by the person who heard the defendant make the statement, sometimes relying on an aide memoire (such as the notebook) made as the statement was uttered or as soon after as is practical, when the memory of the witness was still fresh. This aide memoire is not evidence and should not be exhibited, unless it is brought into evidence through cross-examination. The taking down in writing by a police officer of what a defendant has said is the oldest form of recording a confession. At one time the majority of such statements were in the narrative form. The taking down and the procedures for recording what the defendant has said in writing are now regulated by Rules and Directions (see 15122 et seq, below). Today most, if not nearly all statements taken from suspects are by way of questions and answers. This process has been hastened by the increasing use of audio and video tape recordings. In all such cases the defendant will be offered the record for verification. By the beginning of 1991, all interviews at police stations in the United Kingdom were being tape-recorded. Save for the ICAC little use has been made of audio-tape recording in this jurisdiction. Though at one time the Hong Kong Police were hesitant to embark on a programme of video-recording interviews with suspects, it has now become an accepted investigative tool. Nearly all interviews conducted by the Hong Kong Police, involving serious crimes, are recorded on video-tape. This method of recording interviews with suspects has greatly assisted the police and other law enforcement agencies in securing the convictions of defendants. Many of the circumstances, which formerly gave rise to complaints, associated with the written recording of confessions, have been removed by the use of the video-recorder. Procedures have now been developed by the Hong Kong Police and the Independent Commission Against Corruption whereby (1) the defendant is asked if he or she consents to be interviewed on video; (2) the mechanics of the recording devices are explained to the defendant by the interviewing officer; (3) the interview is filmed so that both the defendant, the interviewing officer/s, together with any other persons present in the interview room, can be seen; (4) the interview is viewed on a television monitor in another room, usually by a more senior officer; (5) the video tape is played back to the defendant; and (6) the defendant is given a copy tape of the interview as soon as it is concluded. The Rules and Directions are not expressed to apply to the video-recorded interview; they are designed to regulate the taking of written records of interviews. In fact, it is only since about 1995 that the Hong Kong Police have begun to use, on a regular basis, video taping of interviews as a tool in the investigation of crime. Videotape recordings are admissible of the events they depict. If the recording includes sound and the language used in the interview is not English, a transcript of the proceedings will be created and a translation in English will be made. The English translation of the transcript, if it is sought to be produced as evidence in the trial, must be certified as a correct. The admissibility of such transcripts is governed by sections 27 and 29A of the Evidence Ordinance (Cap 8). However, it should be noted that it is the video tape recording which is the primary evidence. Summaries of the recorded interviews can be produced by agreement. Video taped recordings can be edited, to remove any unduly prejudicial material. Similar considerations apply to video recorded reconstructions, in which the defendant took part. In R v Li Shu-ling [1989] AC 270; [1989] 1 HKLR 82, it was held that there is no distinction between a video-taped interview and a reconstruction. The written recorded interview is still the most widely used form of recording a 15102 defendants confession. And like the other forms of recording what the defendant has said, the primary requirement of proof is authenticity. It is therefore always necessary, (in the absence of agreement), for the person who witnessed/recorded the statement to testify to the effect that the record is genuine, has not been tampered with and is a true and complete record of what was said. If the record is incomplete, this will not of itself, impugn its admissibility, though the witness will be asked to provide a satisfactory explanation for the omissions in his record.

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(3) The burden of proof and the standard of proof required to admit a confessional statement into evidence
Even where the admissibility of a confession is not challenged there must be some 15103 evidence sufficient to satisfy the trial court that the confession is voluntary: R v Poon Chi-ming [1973] HKLR 414; DPP v Ping Lin [1976] AC 574; R v Leung Lai-por [1978] HKLR 202. The burden of proving that the confession was voluntary always remains with the prosecution, the standard of proof is that of proof beyond all reasonable doubt: R v Li Ming-kwan [1973] HKLR 275; R v Sartori [1961] Crim L R 397: R v Kwan Cheungtai [1959] HKLR 141; Mitchell v R [1998] 2 WLR 839. It would appear to be the case that in Australia the standard of proof is proof on the balance of probabilities: Wendo v R (1963) 109 CRL 559. In Li Ming-kwan, above, the Court of Appeal, with some reluctance, accepted that the full criminal standard of proof should apply. As Huggins J said, (at 285, 286):
We have yet to be persuaded of the wisdom of the decision in R v Sartori but we hesitate to introduce further uncertainty by declining to follow that decision in a case which is not certain to go to the Privy Council. We therefore agree that we should consider ourselves obliged to assume that the standard of proof required was proof beyond all reasonable doubt. We are then left with the task of deciding whether there is any way in which we can avoid the more absurd consequences of a rigorous application of the rule. The only reasonable conclusion seems to us to be that we must encroach upon an accused persons alleged right to silence to the extent of insisting that when he objects to a confessional statement on the ground that it was not voluntary he must give reasonable particulars [of his objections]. We do not propose to lay down any more precise rule and every case must be judged on its facts. The court must weigh the reasonable requirements of the prosecution in preparing to discharge the burden of proof which is upon it against the reasonable desire of the defence to avoid giving information which will unfairly forewarn the prosecution of its case and enable any dishonest witnesses who may be called by the prosecution to shape their evidence accordingly. Where particulars which ought to be given have not been given, it will then be open to the court to draw the inference that no inducement arose at the time which would have been indicated had had particulars been given. We have to ensure that the criminal justice system remains an instrument for convicting the guilty and acquitting the innocent and does not become merely an instrument for acquitting both the guilty and the innocent.

In practice, prosecutors do not (and should not) reveal the contents of the defence 15104 objections to their witnesses. R v Li Ming-kwan, above, has been followed in this jurisdiction. It is also the practice in this jurisdiction that the prosecutor, when examining his witnesses, should confine himself to asking the police witness to respond to the broadly framed common-form questions such as, did he threaten, assault, induce or otherwise commit any other improper act in his dealings with the defendant. He should not attempt to steal the thunder from the defence. It is now accepted practice that the objections will be provided in written form by the defence. In Mitchell v R, above, it was suggested by the Privy Council that, where appropriate, the prosecution should not be inhibited from asking the defence to clarify their objections. If the admissibility of the confession is not in dispute only the barest evidence will suffice to prove that it was voluntary. In such circumstances all that is necessary is for the witness to produce the record and tell the court how it came to be made, and how it came to be recorded down in writing. Where the defendant is unrepresented the court should take particular care to satisfy itself that the admissibility of the confession is not contested. It is not enough for the court to simply ask the unrepresented defendant if he has any objections to the statements: HKSAR v Wong Hon Wai [2002] 3 HKLRD 258, para 16, CFI. Generally, and particularly in the circumstances of this case where it was known that the defendant suffered from a mental disorder, the Magistrate should have explained to the unrepresented appellant that the prosecution had to prove the voluntariness of the alleged admissions he had made and that the appellant had a right to challenge the prosecution case in that regard (at para 16). Where the defendant is represented the better course would be for the parties to admit the fact that the confession was made, and that it was the defendant who made it, pursuant to section 65C of the Criminal Procedure Ordinance (Cap 221), or have it

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read, in accordance with section 65B of the same Ordinance. The use of these procedures will save time and expense: R v Leung Lai-por, above. The fact that the defendant does not raise any formal issue as to the admissibility of his alleged confession does not absolve the judge or magistrate from the requirement to hold a trial on the special issue, if there is some material which might suggest that it was not voluntary: HKSAR v Lee Ying-lun [1997] HKLY 263; this appeal was heard after 1 July 1997, see also the judgment of Mortimer JA in R v Chu Chi-kwong [1995] 1 HKCLR 327. The onus of proving the admissibility of a confessional statement always has rested with the prosecution: R v Poon Chi-ming [1973] HKLR 414; DPP v Ping Lin [1976] AC 574; R v Leung Lai-por [1978] HKLR 202. In some cases the admission of a confessional statement may not be challenged by the accused. In spite of such a concession the court must still be satisfied that there is sufficient evidence to establish that the confession is voluntary and so admissible: R v Lee Fat [1969] HKLR 349; R v Leung Lai-por, above. It is not appropriate for a witness to be asked if the confession was voluntary, this is an issue for the court to decide: R v Kwok Kwan-ho [1973] HKLR 231. Where the accused is unrepresented the court must satisfy itself whether or not there is an issue on the admissibility of a confession statement. If the accused asserts that he was induced to make the confession the court must hold a trial of the special issue, either by way of a voir dire or the alternative procedure, as the case may be. Where the accused denies making the confession, whether it is recorded or not, the court will have to inquire into the circumstances of how the alleged confession came into existence. The accused may allege that at the time he was arrested he was subjected to intimidation or violence by the investigating police officers. In such a case, whether the confession be oral or in writing the court is obliged to hold an inquiry into the issue of the voluntariness of the alleged confession: Thongjai & Another v R [1997] HKLRD 678, PC; HKSAR v Jennifer Lee [2003] 1 HKLRD C6, CFI. The Board, in the Opinion delivered by Lord Hutton, took a broad view of the circumstances when a court should hold a voir dire on the admissibility of a confession. In his speech Lord Hutton placed some emphasis on the judgment of the High Court of Australia in MacPherson v The Queen (1981) 147 CLR 512, where Gibbs CJ and Wilson J made this statement of principle (at 522):

15105

The condition of the admissibility of a confession is that it was voluntarily made, and the judge must be satisfied on the balance of probabilities that this confession was fulfilled before he admits the evidence. If the accused asserts that inducements were offered or pressure exerted but denies that he made the confession and the judge, without considering the question of voluntariness, admits police evidence that a confession was made, the obvious possibility exists that the jury will accept the police evidence and find that the confession was made, and if that occurs they will have before them evidence that has not been found to be admissible, and an important rule, which exists to protect accused persons, and to maintain proper standards of police investigation will have been subverted. Of course once the evidence of the confession is admitted the jury are not concerned with the question whether it is voluntary; they have to consider only whether it was made and whether it was true, although they are entitled to consider the circumstances surrounding the making of the statement in deciding upon its weight and value.

(And at 525):
The applicant, by the suggestions that he made in cross-examination raised a real question as to the voluntariness of the confessions, and notwithstanding that the applicant denied that any confession was made the proper course was to hold a voir dire on which the judge could decide whether the confessions were voluntary and admissible.

In R v Thongjai, above, Lord Hutton (at 684E), said:

Therefore where the prosecution alleges that the defendant made an oral admission, and a case is raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues are raised which are not mutually exclusive. The first issue, which is for the judge to decide, is whether on the assumption that the alleged admission was made, it is inadmissible as being involuntary. The second issue, which is for the jury to decide if the judge rules that the alleged admission is admissible in evidence, is whether the admission was in fact made.

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Where the accused declines to sign the record of his alleged confession, the prosecu- 15106 tion will be required to prove as a fact that the accused adopted the writing as a true record of what he had said. The court should inquire into how the defendant may have adopted the writing, whether by speech or conduct or otherwise: R v McGillivray (1993) 97 Cr App R 232 at 237. If the accused alleges that he made the writing, or signed a written statement, recorded by the interviewing officer, under inducement or other pressure, then this is an issue for a voir dire: Ajodha v State, above. HKSAR v Tan Thuan Heng [2005] HKEC 1658, CFI, concerned an alleged oral admission and a post-recording of that admission. The accused said he never made the oral admission and he was just asked to sign the post-recording. The court distinguished the oral admission from the post-recording and, applying Thongjai, held that since the evidence alerted the court that there might be an issue as to whether the post-recording was signed voluntarily, the court should hold a voir dire whether or not the defence had specifically raised the objection. This case is to be contrasted with HKSAR v Jasbir Singh [2006] HKEC 272, CFI. The prosecution wanted to admit a post-recording, alleged to be a record of the oral admission of the accused. The accused stated that he never made the oral admission and he was forced to sign the post-recording in oppressive circumstances. At trial, the defence counsel, in reply to the magistrates question as to whether a voir dire was needed, specifically acknowledged that the only issue was whether the confession was being made, not on voluntariness. On appeal to the Court of First Instance, Lunn J held that the magistrate was entitled to rely on the defence counsels statement and discontinue his inquiry as to the voluntariness of the confession (at para 34).

(4) Mixed statements

A mixed statement is an out-of-court statement made by a defendant that contains 15107 both inculpatory and exculpatory parts. A mixed statement does not cease to be partially inculpatory merely because the facts that are said to inculpate are admitted by the parties at trial. The Court of Appeal made this clear in HKSAR v Yuen Man Tung (unrep., CACC 442/2003, [2004] HKEC 487) at para 18: Whether a statement is or is not wholly exculpatory is not a question resolved by having regard to the issues which remain to be determined in the light of admissions made at the time of trial. Its nature is to be determined rather by its content at the time it is made. If it is adverse to the person making it in relation to an important element of the offence charged and this is not intended to be an exhaustive delineation, but merely one that suffices for the purpose of the present case then self-evidently it is not wholly exculpatory. Nor does the inculpatory part of the statement have to go to an element of the offence, it can be circumstantial in nature. If they are such as to be able to materially assist the prosecution to prove its case against the defendant, then the nature of the statement is mixed: HKSAR v Lo Wai Ming [2007] 3 HKLRD 191, CA, at 1520. As to the evidential status of a mixed statement, wherein the accused confesses and avoids liability, there appears to be two schools of thought. The first, which has been called the purist view (see P. Murphy (Ed), Blackstones Criminal Practice (1996), para F17 44) holds that in conformity with rule against hearsay, the self-serving parts are not evidence of their truth, but form material which may be of use to a jury in evaluating the quality of the admissions. The other school, which advocates the liberal approach, contends that the whole statement is admissible by way of an exception to the rule against hearsay, and thus is evidence of the truth of all the facts stated in it. The liberal approach has the longer provenance. In R v Jones (1827) 2 C & P 629, the rule was that:
if a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another.

In R v Pearce (1979) 69 Cr App R 365, CA, Lord Lane CJ summarised what he regarded as the salient principles on this aspect of the rule of admissibility (at 369 & 370). They can be stated as follows:

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(1) a statement which contains an admission is always admissible in evidence as a declaration against interest and is evidence of the facts admitted; (2) a statement which is not an admission is admissible to show the attitude and reaction of the defendant when he was first taxed with the accusation. However, this is not to circumscribe the limits of admissibility. The longer the time that elapsed since the first encounter the less weight can be given to the denial; (3) a statement which is not itself an admission is admissible if it is made in the same context as an admission, whether in the course of an interview or in the form of a voluntary statement. It would be unfair to admit only the statements against interest which excluding part of the same interview or series of interviews; (4) it is the duty of prosecution to present the case fairly to the jury; (5) in practice most statements are given in evidence even when they are largely selfserving. In the case of the carefully prepared written statement, which is clearly fashioned to put forward a defence, the trial judge will have no compunction in ruling it to be inadmissible. The liberal approach was adopted in HKSAR v Wong Chi Wan (unrep., CACC 156/ 2005, [2006] HKEC 600), CA. It was held that the exculpatory part of a mixed statement can be used by the accused both to prove the material issue and credibility (at para 29). The judges comment on the mixed statement that [the mixed statement] is not the truth of what is stated therein is just the defendants reaction was held to constitute a material irregularity. In R v Donaldson (1976) 64 Cr App R 59 the Court of Appeal had adopted the purist 15108 approach. The appellant had made a mixed statement to the police. The appeal proceeded on the complaint that the trial judge had excluded all those non-incriminatory parts of the statement, as they were not evidence. It is to be noted that the appellant had not given evidence in the trial. Lord Justice James (at 65) observed:
When the Crown adduce a statement ruled upon as admissible it is for the jury to consider the whole statement including any passages that contain qualifications or explanations favourable to the defendant, that bear upon the passages relied upon by the prosecution as an admission, and it is for the jury to decide whether the statement viewed as whole constitutes an admission. To this extent the statement may be said to be evidence of the facts stated therein. If the jury find that it is an admission they may rely upon it as proof of the facts admitted. If the defendant elects not to give evidence then in so far as the statement contains explanations or qualifications favourable to the defendant the jury, in deciding what, if any, weight to give to that part of the statement, should take into account that it was not made on oath and has not been tested by cross-examination.

A similar approach had already been adopted by Lawton LJ in R v Sparrow [1973] 1 WLR 488, though he appears to have recognised that it might well be very difficult for juries to understand the rule (at 492):
Many lawyers find difficulty in grasping the principle of the law of evidence. What juries make of it must a matter of surmise, but the probabilities are that they make very little.

In R v Duncan (1981) 73 Cr App R 359 at 364, Lord Lane CJ preferred the liberal approach:
Where a mixed statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanation, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state.

But the principle that self-serving statements carry little or no weight was not entirely abandoned (at 365):
Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?) whereas the excuses do not have the same weight, nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.

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The liberal approach eventually attained the approval of the House of Lords in 1988. 15109 In R v Sharp [1988] 1 WLR 7 the purist approach was rejected for two reasons, first, because it was considered that the weight of authority preferred the liberal view and, secondly, commonsense dictated that the only way in which a jury could use the selfserving parts of a mixed statement to evaluate the facts in the admission would be if they initially reached a conclusion as to the truth or possible truth of the explanation given by the accused. It is submitted that there is no logical reason why the evidential status of a mixed statement should depend upon whether or not the defendant goes into the witness box. Where the defendant exercises his right not to give evidence, he will be relying on the exculpatory content of his record of interview(s). Thus where the defendant bears the burden of raising an issue, such as self-defence or provocation, what he had told the police could be critical. It is submitted that if the option of election is to remain open to a defendant it is essential that the self-serving parts of the statement made by him are capable of being evidence of their truth. In R v Hammand (1985) 82 Cr App R 65, the appellant admitted to the police that he had struck a man in the face but claimed that he believed that the man was about to attack him. The trial judge ruled that this assertion made by the appellant was not evidence of self-defence thus making it necessary for the appellant to give evidence. The Court of Appeal held that the judge had erred and that the appellant could have the exculpatory portion of his statement placed before the jury as evidence of its truth. See also HKSAR v Kong Siu-ming & Others [2000] 2 HKLRD 449, where the Court of Appeal held that the exculpatory parts of a statement contained sufficient evidence to raise the issue of self-defence. It was observed in Harz and Power, above, that a mixed statement can amount to a confession. In Li Defan & Another v HKSAR [2001] HKEC 853, the Appeals Committee, on an application for leave to appeal to the Court of Final Appeal, followed the judgments in R v Duncan (1981) 73 Cr App R 359 at 365, and R v Sharp [1988] 1 WLR 7, HL. As the Appeal Committee held, it is plain that where a mixed statement is placed before the jury, the jury should be directed that the whole of the statement should be taken into account in deciding where the truth lay. Where appropriate the trial judge should point out to the jury that the incriminating parts were more likely to be true, whereas the selfserving parts might carry less weight. In HKSAR v Poon Hoi-wing [2001] HKEC 128, Stock JA, in delivering the judgment of the Court of Appeal, held that both the inculpatory and the exculpatory parts of a mixed statement are admissible as evidence of the truth of what had been recorded therein. However, the Court was careful to emphasise that the two parts might not carry the same weight. Stock JA pointed out that the exculpatory part of a mixed statement was also evidence of its truth because without it the tribunal of fact would be less able to fairly evaluate the facts admitted. In HKSAR v Kong Siu-ming & Others [2000] 2 HKLRD 449 it was held that the reasoning in R v Duncan, above, and R v Sharp, above, also applied to proceedings in the District Court. The Court of Appeal in R v Vu Trong Minh [1995] 1 HKCLR 24, was of the opinion that R v Sharp and R v Duncan, above, only applied where the defendant had not given evidence. If he does give evidence the trial judge is not obliged to direct the jury as to the evidential weight of the exculpatory parts of his mixed statement. HKSAR v Huang Xiang Rong [2010] 1 HKLRD 750, CA, addressed the important issue 15109A of how the judge should instruct the jury on the exculpatory part of a mixed statement. If in the defendants evidence she adopted the exculpatory explanation contained in her out-of-court statements, there was no requirement for the jury to be directed to consider separately the exculpatory parts as evidence of the truth. A direction that the accounts were consistent might be appropriate (para 61). However, if the defendant in her evidence gave an account, which although exculpatory, was different from the exculpatory account advanced in her mixed out-of-court statements, those statements stood separately. Nevertheless, they remained evidence, so the judge was under a duty to direct the jury to consider the truth of that account (para 62). The latter principle was applied in this case to quash the appellants murder conviction. Her testimony at trial was materially different from the exculpatory explanation contained in her mixed statement. However, the trial judge failed to give a balanced and fair review of the

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appellants alternative case of manslaughter which was based on an account of the facts given in her mixed statement.

(5) The evidential status of a wholly exculpatory statement

15110
The prosecution can produce an exculpatory statement made by the defendant to show his reaction when taxed with the accusation: R v Higgins (1829) 3 C & P 603. It has now become acceptable practice for the prosecution to place in evidence statements of the accused where the inculpatory element is minimal. This practice is predicated on the basis that the prosecutors duty is to conduct his prosecution fairly. It is submitted that the prosecution should not have the decision as to whether or not a mixed statement is adduced in evidence. At the end of the day it is for the judge to decide what is relevant and what is not relevant. It is the duty of prosecution to adduce all relevant evidence in a criminal trial (one which is recognised in this jurisdiction). In deciding if a statement is mixed as opposed to self-serving, the court should first look at the contents and not at the other evidence: Western v DPP [1997] 1 Cr App R 474. On the other hand where the statement is wholly exculpatory different considerations will apply. In R v Cheung Hon-kwong [1990] 2 HKC 166, the Court of Appeal, citing R v Sharp, above, held that a wholly exculpatory statement was inadmissible, if it were elicited for the purpose of proving the facts stated therein. On the other hand such a statement is evidence of the reaction of a defendant when accused of the offence made against him: Att-Gen v Li Siu Lam [1989] 12 HKLR 370. In R v Ma Wai-hung [1991] 1 HKLR 174, the Court of Appeal held that it was wrong in law to hold a defendants statement inadmissible solely because it was exculpatory. The weight of the reaction was a matter for the court. In R v Tooke (1990) 90 Cr App R 417, Lord Lane CJ stated that the test of admissibility was as follows:
It seems to us that the test which should be applied is partly that of spontaneity, partly that of relevance, and partly that of asking whether the statement which is sought to be admitted adds any weight to the other testimony which has been given in the case. Of course it is no easy task for the judge to decide in his discretion where the dividing line lies.

The exculpatory statement cannot be offered as evidence of the consistency of a defendants claims, nor is it evidence of the facts stated therein. An accused, who adduces an exculpatory statement into evidence, but does not testify, may expose himself to comment by the trial judge: Att-Gen v Li Suit-lam, above. The issue of consistency may arise if it is suggested to the defendant, in cross-examination, that his evidence is a recent invention. What is asserted in the statement may suggest that the defendant has been consistent in his denials from the outset. If the jury forms the conclusion that the defendant has been consistent, they may give more weight to his testimonial assertions that he is not guilty of the offence charged. It has been held that a wholly exculpatory statement is not a confession, within the meaning of section 82 of the Police and Criminal Evidence Act 1984.

(6) A confession based on hearsay

15111
If the factual basis of a confession has its origins in information of which the defendant has no personal knowledge it may be inadmissible: Surujpaul v R [1958] 1 WLR 1050; [1958] 3 All ER 300; (1958) 42 Cr App R 266, PC. The Board made the following statement of principle (at 1056):
A voluntary statement made by an accused person is admissible as a confession. He can confess as to his own acts, knowledge or intentions, but he cannot confess as to acts of other persons which he has not seen and of which he can only have knowledge by hearsay. A failure by the prosecution to prove an essential element in the offence cannot be cured by an admission of this nature.

In some cases the only evidence that the defendant had in his possession a dangerous drug is the admission by the defendant (based on what someone else told him) that

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he had had a dangerous drug in his possession. Such an admission may be prima facie evidence of the defendants knowledge of the nature of the substance. Such informal knowledge may come from the defendants prior knowledge or experience: Bird v Adams [1972] Crim L R 174, DC. In Bird v Adams the defendant was arrested for having in his possession LSD. After being cautioned he admitted to having had 15 tablets of the substance and that he had sold them all to unknown persons. It was submitted at trial that there was no evidence to prove that the defendant had had a prohibited drug in his possession. The defendant did not give evidence. His appeal was dismissed by the Divisional Court, as the defendant had confessed not only to possession of a specific substance but had admitted to selling it. His conduct was such as to raise, at least, a prima facie case against him. The Divisional Court on another occasion held that a similar admission might have little or no evidential value where the defendant had no specialised chemical knowledge of the properties of the substance and what effect it may have: Robinson v Hughes [1987] Crim L R 644. Bird v Adams, above, was cited with approval in Att-Gen v Chik Wai-lun [1987] HKLR 41. In Att-Gen v Chik Wai-lun the Court of Appeal took the view that an admission of membership of a triad society without more would be unlikely to be sufficient to prove the offence. In R v Chan Yiu-tong [1994] HKLY 362, Chan J (as he then was) held that a bare admission without any expert evidence would not be enough to prove membership of a triad society. On the other hand in R v Yun Kai-hong & Another [1995] 1 HKCLR 269 the Court of Appeal held that a confession to membership of a triad society may not require the support of expert evidence in every case. Initiation rituals for entry into a triad society are now rare and usually quite informal in nature. An admission to membership of a triad society would be an issue of fact. More often than not expert evidence in such cases may not take the case any further: R v Tsoi Sai-pui [1992] HKLY 309. The issue of hearsay admissions is often encountered where knowledge or belief is a crucial element of the offence. For example, in cases of dishonest handling, the handler often relies on information from a third party. However, the admitted circumstances of how the defendant came into possession of the property can raise a compelling inference that he knew or believed that it had been stolen: R v Hulbert (1979) 69 Cr App R 243. The defendant admitted that she had bought a quantity of goods from various unnamed persons in a public house, in some cases she said that she had been told that the purchased goods were stolen. Though the defendants admission as to what she had been told was hearsay and as such could not be evidence that the goods were stolen it could, nevertheless, be evidence of her knowledge or belief at the material time. The jury could be invited to draw the inference from the defendants admissions and the other circumstances that the defendant had dishonestly handled the property, which she had admitted to possessing. See also R v Sbarra (1918) 87 LJKB 1003; R v Overington [1978] Crim L R 692; R v Korniak (1982) 76 Cr App R 145; and R v McDonald (1980) 70 Cr App R 288.

(7) Use of a defendants confession by or against a co-defendant

In R v Gunewardene [1951] 2 KB 600; (1951) 35 Cr App R 80, Lord Goddard stated 15112 the principle in simple terms:
If no separate trials are ordered, it is the duty of the Judge to impress on the jury that the statement of one prisoner not made on oath in the course of a trial is not evidence against the other and must be entirely disregarded.

This is a fundamental rule, (subject to some exceptions, which are referred to below). It is the duty of the judge to impress upon the jury that the out-of-court statement is not evidence against another defendant for any purpose. Where one or more of the defendants change their plea to one of guilty during a trial his statement(s) should be withdrawn from the jury: R v Bowen [1972] Crim L R 312, CA. The general practice is that in a criminal trial the defendants should be tried together: R v Moghal (1977) 65 Cr App R 56.

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Is the fundamental rule breached when in a joint trial of A and B the jury is entitled to use their findings of As guilt and the role A played, which are solely based on As confession, as facts to be used evidentially in respect of B? In R v Hayter [2005] UKHL 6, three of the five Law Lords found that the fundamental rule was not breached if the jury arrived at their verdicts of guilt against A and B in this way. A distinction was made between using As confession against B, which was not permissible, and using a finding of As guilt against B, which was permissible. The permissibility of the latter is reinforced by the policy underlying section 74 of PACE, which makes evidence of a persons conviction for a certain offence admissible to prove that he or she committed that offence. Lord Rodger in a strong dissent found that the prosecution was submitting in substance that the jury have a power to turn inadmissible into admissible evidence, and to convict a defendant by using evidence that is inadmissible against him (at para 47). In directing the jury on the distinction drawn by the majority, Lord Rodger believed that [a]ny reasonable jury would find such a direction not just perplexing but impossible to apply (at para 49). In Persad v Trinidad and Tobago [2007] 1 WLR 2379, PC, it was said that the Hayter rule applied in Trinidad and Tobago but that the circumstances in Persad were distinguishable from those in Hayter which concerned the joint trial of defendants for a joint offence (1516). In R v Lake (1976) 64 Cr App R 172, the Court of Appeal affirmed the general principle that an offence committed by two or more persons should be tried even if this meant that inadmissible evidence would be given before the jury and the possible danger that prejudice to one or more of the defendants may result (at 175). There will be cases where the prejudicial effect of a co-defendants statement is so great against the other that no matter how strong may be the judges direction the jury would not be able to put the effect of the statement out of their minds, that being so separate trials may be ordered. Such orders will be rare: R v Chau Wai Keung & Another (unrep., Crim App No 448 of 1992, [1993] HKLY 268). See also R v Chau Yong Tim [1993] 1 HKCLR 299 and Tan Siew Gim v R [1995] 1 HKCLR 299. Where the prejudicial effect of one defendants statement, is such that it can only be cured by editing his statement, then the judge should do so. In Lobban v The Queen [1995] 1 WLR 877, PC, Lord Steyn, in his Opinion, canvassed the principles governing the editing of co-defendants statements in some detail (at 886G to 887B):
It is now necessary to examine counsels argument [on editing a co-accuseds statement] from the point of view of legal principle. Two principles are clearly established. First, a trial judge in a criminal trial always has a discretion to refuse to admit evidence, which is tendered by the prosecution, if in his opinion its prejudicial effect outweighs its probative value. This power has probably existed since Rex v Christie [1914] AC 545, but, in any event, it was expressly affirmed by the House of Lords in R v Sang [1980] AC 402. The power is based on the trial judges duty in a criminal trial to ensure that a defendant receives a fair trial. The width of the discretion is circumscribed by the purpose for which it exists. This common law discretion is the foundation of a judges power to cause part of a written statement made by a defendant, which is adduced by the prosecution to be edited in the interests of justice. It is wide enough to allow a trial judge to exclude evidence, which is tendered by the prosecution in a joint trial and which is probative of the case against one co-defendant on the ground that it is unduly prejudicial against another co-defendant. R v Rogers and Tarran [1971] Crim L R 413 was such a case. In such cases it is in the interests of both defendants that the disputed part of the document be edited: the distinctive feature of the present case is that there is a conflict between co-defendants as to editing.

The second principle, which Lord Steyn alluded to, was that this discretion may only be exercised in relation to evidence tendered by the prosecution. There is no discretion to exclude relevant evidence sought to be adduced by one accused at the behest of another accused: R v Miller [1952] 2 All ER 667 at 669; Murdoch v Taylor [1965] AC 574. His Lordship also quoted an extract from Keane, The Modern Law of Evidence, 3rd edn, (1994), at 36, wherein the learned author stated in unequivocal terms that the discretion could only be exercised in relation to evidence tendered by the prosecution. The judge cannot prevent one accused from cross-examining his co-accused about his previous convictions or bad character.

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Lord Steyn, at 887H to 888A, continues on the same theme:

Taking into account the rationale underlying the second principle, their Lordships have 15113 concluded the discretion envisaged in counsels submission, as deployed in a case such as the present, does not exist. The discretionary power to exclude relevant evidence applies only to evidence on which the prosecution proposes to rely. It exists to ensure a fair trial to the defendant, or, in a joint trial, to each defendant without seeking to differentiate between the quality of justice afforded to each defendant. It does not extend to the exculpatory part of a mixed statement on which a co-defendant wishes to rely.

And at 889C:
Inevitably, the legal principles as their Lordships have stated them result in a real risk of prejudice to co-defendants in joint trials where evidence is admitted which is admissible against one defendant but not against the other defendants. One remedy is for a co-defendant to apply for a separate trial. The judge has a discretion to order a separate trial. The practice is generally to order joint trials. But their Lordships observe that ultimately the governing test is always the interests of justice in the particular circumstances of each case.

And, under the heading of Cross-examination of Lobban by prosecuting counsel on Russells statement at 889EF, Lord Steyn made this statement of the law:
Prosecuting counsel cross-examined Lobban by putting to him Russells statement under caution. It is trite law that prosecuting counsel may not cross-examine a defendant on a statement which is inadmissible in the case against him. The statement of Russell was inadmissible in the case against Lobban. It is difficult to understand how prosecuting counsel could have overlooked this most elementary of rules governing criminal procedure. The judge should have stopped the cross-examination of Lobban by the prosecutor on Russells statement. This departure from established rules constituted a material irregularity.

In this appeal the proviso was applied. Any dispute as to what should be edited can be resolved by the trial judge: R v Weaver and Weaver [1968] 1 QB 353; (1968) 51 Cr App R 52, CCA; R v Knight and Thompson (1946) 31 Cr App R 52, CCA. On the other hand, once the defence case begins all options are open. No restriction can be placed on the cross-examination by one co-defendant of another, provided it is relevant.

(8) Use of a confession ruled or accepted to be inadmissible

There is a clear distinction to be drawn between the use by the prosecution and by 15114 the co-defendant of an inadmissible confession. The prosecution cannot cross-examine a defendant upon his confession, which has been ruled inadmissible: no more of which should be heard: R v Treacy (1945) 30 Cr App R 93. Information derived from the confession can be used, provided the source is not revealed: R v Rice [1963] 1 QB 857. In R v Myers [1998] AC 124 the House of Lords held that in a joint trial of two or more defendants, an extra-judicial confession (not relied on by the prosecution because of accepted breaches of Code C of the Police and Criminal Evidence Act 1984) made by one defendant may be put into evidence by the other defendant as evidence of the facts stated, provided that the confession is relevant to his defence. Where the maker of the confession gives evidence which is inconsistent with the statement of confession, he may be cross-examined upon it by the other defendant, provided that it is relevant to his defence: R v Rowson [1986] QB 17; (1985) 80 Cr App R 218, CA; Lui Mei-lin v R [1989] AC 288, PC. Where this occurs the trial judge should briefly explain the situation to the jury and, having regard to the circumstances in which the previous statement was made, he should tell the jury not to place any weight on it, in so far as it concerns the prosecutions case against the maker: R v Rowson, above. The judge should tell the jury why the statement has been excluded and cannot therefore be relied on by the prosecution: R v Corelli [2001] Crim L R 913, CA. In the light of right of defendants to a fair trial under Article 6 of the European Convention of Human Rights, applications to invoke the judicial discretion to order separate trials may become more frequent in the United Kingdom. In R v OBoyle (1991) 2 Cr App R 202, the Court of Appeal, in a wholly exceptional, if not unique case, held that the trial judge had wrongly refused to order separate trials, when one defendant sought to cross-examine his co-defendant on a

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confession statement allegedly made in the United States, which had been ruled to be inadmissible by the trial judge. In Lui Mei-lin v R, above, the Privy Council advised that where this situation is likely to occur, an application for a separate trial should be made at the earliest opportunity. In R v Myers, above, the House of Lords took the matter one step further. In effect the judges held that a confession statement made by one of the defendants, which implicated her but exonerated the other defendant, could be put to the witnesses who had taken and recorded the statement on behalf of the second defendant. In Meyers the two accused were on trial for murder. The first accused had made the confession statement, but it had not been tendered in evidence by the Crown because there had been breaches of Code C. The issue of admissibility had not been considered in the trial. The second accused indicated that if the first accused were to give evidence he, the second accused would cross-examine the first accused on her statement. The first accused applied for a separate trial, this was refused by the trial judge, whose decision was approved by both appellate courts. The principal reason for refusing the application was that it would or might cause injustice to the second accused, who would be restricted from adducing the evidence of the first accuseds admission. As it turned out though the first accused did not give evidence and the second accused was permitted to adduce the evidence of the confession by calling the witnesses to whom the confession had been made. Lord Slynn, in his speech, at 166 CD, made the point about relevance. As long as the material is relevant to the defence of an accused, it is admissible:

15115

A confession may be relevant both as to credibility and as to the facts in issue and it does not cease to be admissible because it does so. Indeed, so long as it is relevant to establish his defence or to undermine the prosecution case against him a defendant should in my view be allowed to cross-examine a co-defendant as to his confession which goes to the facts in issue rather than only to the credibility of the maker of the statement. He should not less be allowed to cross-examine the person to whom a statement is made as to the terms of the statement as to the terms of the statement even though since the defendant has not given evidence, the question of credibility has not arisen.

Lord Hope, though agreeing with the other judges, did suggest that if the statement had been ruled to be inadmissible on the ground that it was involuntary, it would be worthless as a piece of evidence (at 174E). Lord Hope, mindful that the trial judge would have no discretion to prevent one defendant cross-examining another as to his character or previous statements, suggested that (at 174G to 175B):
It is at least open to question whether the rule extends to a case where the evidence which the defendant wishes to put in evidence consists of a confession which was made by a codefendant in circumstances which section 76(2) of the Act of 1984 describes. While it would not appear too accurate to describe such a confession as irrelevant, in a case where the defendants case is that the offence was committed by the co-defendant, the circumstances in which it was obtained may be said to have been such as to render it worthless for all purposes, whoever it is who seeks to rely on it. On this view it would be a proper exercise of his discretion by the trial judge to exclude such evidence even although the other defendant wished to put it in evidence.

15115A

While the co-accused in Myers was seeking to admit a confession that was not adduced by the prosecution, the principle is broad enough to allow an accused to rely on the confession of a co-accused properly admitted for the prosecution. It was also consistent with Lui Mei Lin v R [2989] 1 AC 288, PC, which held that the counsel of a co-accused is entitled to cross-examine an accused on his otherwise inadmissible out-of-court statement provided that it is relevant: cited from HKSAR v Law Chung Ki [2005] 4 HKLRD 499, CFA, para 13, which affirmed the decision of Lui Mei Lin. In HKSAR v Lee Kwan Kong [2006] HKEC 199, CA, the accused was charged with participating in a joint enterprise to murder. Her defence was inter alia the withdrawal from the joint enterprise. One of the co-accused made a confession, which included a statement to the effect that the accused was sleeping when the final assaults were applied. It was held by the Court of Appeal that the jury ought to be have been told that they could take the confession of the co-accused into account as it was relevant to the accuseds defence (at para 63).

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The rule in Lee Kwan Kong can also apply if the accused intended to rely on the mixed statement of the co-accused. In HKSAR v Ho Kin Hang [2005] HKEC 1553, CA, it was held that if the exculpatory part of a co-accuseds mixed statement could be relevant to the accuseds defence, then the accused could rely on it notwithstanding it was hearsay (at paras 3032). See also above at 1113. An antecedent statement is an uncautioned statement taken from an accused by the 15115B police in order to enable them to inform the court of his antecedents for the purpose of sentence in the event of a guilty plea or a guilty verdict. While it is impermissible for the prosecution to cross-examine on it, the co-defendant is not precluded to do so. Precluding such cross-examination is inconsistent with the principle on which the Privy Council acted in Lui Mei Lin v The Queen [1989] 1 AC 288 where their Lordships held that counsel for a co-accused is entitled to cross-examine an accused on his otherwise inadmissible out-of-court statement provided that it is relevant. The otherwise inadmissible out-of-court statement in Lui Mei Lins case happened to be a confession statement excluded for involuntariness. But the principle applies equally to antecedent statements: Law Chung Ki & Another v HKSAR (2005) 8 HKCFAR 701.

(9) Functions of the judge and jury

Where there is a jury, it is the trial judges duty to rule on the admissibility of a 15116 confession statement, if its voluntariness is put in issue. He will conduct a trial of the special issue, either by way of a voir dire, or in a trial within a trial. In this jurisdiction it is more usual for a voir dire to be conducted before any evidence on the general issue is heard. At the request of the defendant the issue of voluntariness may be heard before the jury. If the confession is admitted into evidence it is the function of the jury to consider if it is true before they can act on it: R v Ovenall [1969] 1 QB 17. The circumstances of how the confession came to be made can be considered by the jury as one of the factors in deciding whether or not the confession is true: R v Tam Wing Kwai [1976] HKLR 401. The jury must be satisfied so that they are sure that the confession is true. They may reject some parts of a statement as being not worthy of belief, yet still be satisfied that the admission to culpability is true. In this exercise, the jury must also take account of the defendants testimony, should he give evidence. The duties of the jury are spelt out in s 59 of the Criminal Procedure Ordinance (Cap 221), which reads:
59.If on a trial by a jury of a person accused of an offence, a statement alleged to have been made by such accused is admitted in evidence, all evidence relating to the circumstances in which the alleged statement was made shall be admissible for the purpose of enabling the jury to decide upon the weight (if any) to be given to the statement; and if any such evidence has been taken in the absence of the jury before the admission of the statement, the HKSAR and such accused person shall have the right to have such evidence re-taken in the presence of the jury.

The views of the trial judge as to the veracity of the witnesses, called in the voir dire or is his finding (which should not revealed to the jury), that the statement was voluntary are irrelevant to the jurys consideration of what weight they should give to the confession: R v Poon Sai Ming (unrep., Crim App 410/1997, [1997] HKEC 217); Mitchell v R [1998] 2 WLR 839; Thompson v R [1998] 2 WLR 927; De Four v The State [1999] 1 WLR 1731, PC. In the summing up, the jury should be instructed to consider all the circumstances in which the confession was made in assessing the truth and weight of the confession. It is unnecessary to direct the jury specifically that the prosecution must satisfy them beyond reasonable doubt that the confession is voluntary, otherwise they must disregard it: Chan Wei Keung v The Queen [1967] 2 AC 160, PC. This has been settled common law for decades. However, the House of Lords by a four to one majority in R v Mushtaq [2005] UKHL 25 fundamentally altered this position and expressly departed from Chan Wei Keung. It was held that s 76(2) of PACE requires that the jury be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they must

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disregard it (at paras 43, 47 & 59 (per Lord Rodger) and para 75 (per Lord Carswell)). The majority based their decision on the accuseds right against self-incrimination implicit in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The existing position was incompatible with this right as it allowed the jury to treat the confession as true even if it was or may have been made as a result of oppression or other improper circumstances. It awaits to be seen whether the Court of Final Appeal will revisit the Chan Wei Keung position. Mushtaq has begun to extend its reach around the world in appeals before the Privy Council, see Ken Charles v The Queen [2007] UKPC 47; R v Wizzard [2007] UKPC 21. In Wizzard, it was said that Chan Wei Keung did not accord with the principle against self-incrimination, a long recognized principle of the common law, and that the decision was a false step in the development of the common law but that Mushtaq had now re-established the correct approach (1537). The Judicial Studies Boards revised Specimen Directions in Jury Trials (published in July 2009) notes that strictly speaking Chan Wei Keung remains the law in Hong Kong, but as the decision pre-dated the Hong Kong Bill of Rights, the safer course was to draft a specimen direction in accordance with the position articulated in Mushtaq and Wizzard (pp 39.139.2). In HKSAR v Okafor Peter Eric Nwabunwanne [2010] HKEC 435, CA, the trial judge failed to follow the Judicial Studies Boards current specimen direction on confession evidence which provides in part as follows (see Specimen Directions in Jury Trials, p 39.1):
1) Did the defendant in fact make the admissions? If you are not sure that he did, you must ignore them. If however you are sure he did, then: 2) Are you sure that the admissions are true? In addressing that issue (whether the admissions/answers were true) decide whether they were, or may have been, made or given as a result of [oppression] [something said or done which was likely to render them unreliable]. If you conclude that the admissions/answers were or may have been obtained by (identifying the person or persons in authority) as a result of [oppression] [something said or done which was likely to render them unreliable] then you must disregard the admissions/ answers. (para 46)

The Court of Appeal noted that the specimen direction directs the mind of [the] jury to the two focal issues of their assessment namely, whether the appellant made the admissions and, if so, whether they were true (para 50). The judges failure to provide any direction on the confession evidence was a serious omission that affected the safety of the conviction. The District Court Judge and the Magistrate combine the dual roles of judge and jury. It is the practice in this jurisdiction for the judge or magistrate to decide on the special issue when he is hearing all the evidence of the prosecution on the general issue. He may adopt what has become to be known as the alternative procedure. He must decide before the close of the prosecutions case (and after the accused has been given the opportunity to give evidence on the special issue) whether or not the confession is admissible. If, usually at the request of the defence, the court holds a voir dire, only the evidence relating to the circumstances of the making of the confession will be given. This procedure may be appropriate where the confession is the only evidence of guilt and all the other facts can be admitted. It is submitted that it is for the Court, not the parties, to decide which procedure to adopt.

(10) Miscellaneous
15117
The comparing of confession statements made by co-defendants, in order to determine their truth is wrong. This should not be done. The ostensible purpose for such an exercise is to suggest that a comparison of co-defendants statement may assist the jury to determine if they are true. In Wong Wai-man & Others v HKSAR [2000] 3 HKLRD 313, Bohkary PJ stated that the comparison exercise was either irrelevant or at least more prejudicial than probative. He did not believe that this exercise violated the rule against hearsay. In rare cases the statements made by more than one accused may be used so as to demonstrate to the jury that the accused have cooperated in order to concoct a false defence after the commission of the alleged crime: Mawaz Khan v R [1967] 1 AC 545;

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[1966] 3 WLR 1275. In no other sense could the statement of one accused be used as evidence against his co-accused unless he had adopted its contents as true in evidence. A plea of guilty by one accused is not evidence against the other. Nor is the conviction of one accused relevant in any way to the guilt or innocence of another who is alleged to have participated in the same offence: R v Hui Chi-ming [1992] 1 AC 34; [1991] 2 HKLR 537. All the jury needs to be told in such circumstances is they must only be concerned with the accused before them: R v Mahmood & Manzur (1997) 1 Cr App R 414. A jury may draw inferences of fact from a confession made by the accused, but such inferences will not be evidence against or for another accused in the same trial: R v Hulbert (1979) 69 Cr App R 243; Att-Gen v Chik Wai-lun [1987] HKLR 41. Where the defendant has made a confession under the self-generated hope that he may obtain some advantage thereby, this will not be relevant to the issue of admissibility: R v Rennie [1982] 1 All ER 385; (1982) 74 Cr App R 207. It might be otherwise if the person in authority (even if inadvertently) had contributed, in some way, to the belief that advantage would be gained to the defendant into making a confession or offering incriminatory information: R v Chan Yip-kan [1986] HKC 35; R v Choi Chun-keung [1985] HKLR 75. In R v Houghton & Franciosy (1978) 68 Cr App R 197, the defendant had offered himself as an informer for the prosecution. His information had been used by the police and the prosecution had also relied on his evidence in the trial, the Court stated that:
An informer, who has himself knowingly been involved in the crime about which he is telling the police takes a chance that he may get some reward for what he is doing. The Crown may decide not to prosecute him and call him as a witness against his former partners in crime; but he can be prosecuted on the evidence which he has himself provided or on any other evidence which is available. What the Crown cannot do is to prosecute him on the evidence which he has himself provided if he was induced to provide it by any offer of advantage made by a person in authority or by conduct on the part of the police which could reasonably have aroused in him an expectation of advantage.

The fact that a confession, which has been ruled to be inadmissible, is supported by other evidence, which might suggest that it is true, does not make it admissible in evidence against the defendant: Lam Chi-ming v R [1991] 2 WLR 1082, PC.

C. Challenging a Confession (1) Introduction

Two most commonly used methods of determining the admissibility of a confession 15118 statement are (a) the voir dire and (b) the alternative procedure. It is necessary therefore, where the admissibility of a confession is in question, that the trial judge conducts an inquiry into the special issue of admissibility.

(2) The voir dire and trial by jury

A voir dire should normally be conducted in the absence of the jury. The issue is 15119 confined to one of whether or not a confession should be adduced in evidence as part of the prosecution case against the defendant. A voir dire may involve the resolution of more than one issue. The defendant can challenge the prosecution to prove that the confession was a voluntary admission of culpability, or at least incriminatory to a greater or lesser degree, and/or he may also seek to persuade the trial judge to exercise his residual discretion, on the ground of ensuring a fair trial. A voir dire may be conducted in the presence of the jury at the specific request of the defendant: Ajodha v The State [1982] AC 204; [1981] 3 WLR 1; R v Wong Yun-fat [1986] HKLR 5. Where this course is taken by the defendant there can be no objection to the prosecutions opening to the jury on the disputed confessional evidence. The defendant will not be able to give evidence on the special issue during the prosecutions case, as he could when the alternative procedure is used in the District and Magistrates courts. In R v Chiang Chui-shun [1885] 2 HKC 377, Kempster J (as he then was) reaffirmed some basic principles:

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first, once a statement is admitted into evidence it is available for all purposes; secondly, if the trial judge harbours any reasonable doubt as to the voluntariness of the statement he should direct the jury to disregard it. If the confession was, in effect, essential to proof of guilt, the judge should direct an acquittal and discharge the defendant. In some cases there may not be a voir dire at all, such as where the defendant requires the prosecution to adduce all its evidence in support of its case and then submits that the judge should not admit the confession statement on the basis that it was not voluntary. It is not easy to understand the purpose of such a tactic. If no submission is made the judge is under no obligation to make a ruling: Ajodha v The State, above. For example, where there is nothing more than allegations of misconduct by the police officers made through cross-examination there would be no purpose in making a ruling, unless, of course, the police officers were to make damaging admissions in answer to questions (which is unlikely). In fact, a ruling, in the face of the jury, that the confession is admissible could well be very prejudicial to the defendant: R v Lee Wai [1962] HKLR 351. Clearly, the better course is to hold the voir dire in the absence of the jury. The evidence relating to the admissibility of the confession can be heard free from the restraints, which might otherwise apply should the jury be present. In Hong Kong a voir dire can be conducted (1) before the jury is empanelled: section 41(3) of the Criminal Procedure Ordinance (Cap 221) permits the court to hear and determine a preliminary issue prior to the selection of the jury. A ruling is then made and the trial of the general issue can commence. The advantages of this procedure are obvious. (2) The second method is to hold the voir dire immediately after the jury has been empanelled. This procedure may be appropriate where the confession is the major if not the only piece of evidence implicating the defendant in the offence. In such a case, the prosecution could not open its case before a ruling has been made on the special issue. (3) Thirdly, the judge could conduct a trial within a trial; that is, during the course of the trial. The jury is sent away, and the voir dire is then heard by the judge. This method is rarely used today. At the conclusion of the proceedings, and having considered all the evidence, which would include the testimony of the defendant (should he give evidence) the trial judge must make a ruling. The issue of voluntariness is one of fact: R v Choi Chun-keung [1985] HKLR 75. There is no need in most cases for the judge to give a detailed ruling: R v Leung Lai-por [1978] HKLR 202; R v Lam Yip-ying [1984] HKLR 419. In the majority of cases the less said the better. Where the trial is heard before a judge or magistrate, sitting alone, there is more need to be cautious, since it is he who will have to decide the general issue, which will involve his evaluating the evidence adduced by prosecution witnesses and the defence. Though it was, at one time, suggested that a defendant could not give evidence on the special issue, it is now clear that the defendant may do so and also call evidence on his behalf: section 54(1) of the Criminal Procedure Ordinance (Cap 221). The defendant, instead of calling evidence may make a submission of no case to answer on the issue of admissibility. Both the prosecution and the defendant have the right to make submissions on the conclusion of the voir dire proceedings. The defendant having the last word: R v Tsui Sheung [1968] HKLR 164. In R v Booth (1982) 74 Cr App R 123, the Court of Appeal held that the trial judge is 15120 not obliged to give reasons; he need only deliver a bare ruling. The same rule of practice would apply where the trial judge or magistrate has been asked to exercise his residual discretion to exclude a confession: R v Ngo Ngan-ting [1976] HKLR 143. Should the trial hold that the confession is admissible, it will be for the prosecution to adduce it into evidence. When all the evidence in the trial is called in and the trial judge has summed up the evidence the jury must then decide if they can give sufficient weight to the confession, having regard to all the evidence, including any evidence adduced by the defence. During the course of a voir dire, as in the alternative procedure, the defendant can give evidence if he wishes. His evidence is confined to the special issue. In some cases the defence may ask the judge to rule that there is no case to answer, before it decides to call evidence for the defendant. It is for the prosecution to decide what witnesses it intends to call in support of its case in the voir dire. Having been provided with the particulars of the defendants objections to the admissibility of the confession, the prosecutor should be careful to call those

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witnesses who can refute the allegations of impropriety. The prosecution is not obliged to adduce evidence of matters which fall outside the ambit of the particulars of objections: R v Ng Tat-shing [19771979] HKC 71. By the same token the defence must be careful not leave anything out. Failure to incorporate all the allegations of impropriety may well prejudice the defendant not only in the voir dire, but also in any subsequent appeal against conviction: R v Wu Hung-moon [1984] HKLR 354. Should the prosecution fail to call a witness, against whom a specific allegation has been made, and who can be identified, this omission may well have a deleterious effect on the prosecutions case: R v Ng Tatshing, above; R v Choi Kam-shing (unrep., Crim App No 362 of 1978). On the other hand, it is not necessary for the prosecution to call every single police officer who had had anything to with the defendant: R v Leung Wing-ning [1981] HKLR 96; R v Lo Wingcheong [1979] HKLR 550. Nor is it necessary for the prosecution to call all the same witnesses before the jury (some of whom may not be on the back of the indictment) which it had in the voir dire : R v Chan Chi-fai & Another [1994] HKLY 360.

(3) The alternative procedure

This procedure can only be used where the trial is heard before a judge or magistrate 15121 sitting alone. This procedure was approved by the Court of Appeal in R v Ho Yiu-fai [1970] HKLR 415, and confirmed in R v Lam Yin-yung [1992] 2 HKCLR 53. As in a voir dire the defendant must first provide particulars of his objections to the admissibility of the confession. In the alternative procedure the prosecution will proceed to call all the evidence on both the special and general issues. The defendant has the opportunity to cross-examine the prosecution witnesses in respect of both issues. Before the prosecution closes its case, the defendant must be given the opportunity to give evidence and call witnesses on the special issue, should he wish to do so. The trial judge or magistrate is required to give his ruling on the admissibility of the confession before the prosecution closes its case: R v Kwan Wai-hung [19731975] 1 HKC 449. Should the court find that the confession is admissible the trial will proceed into the case for the defence. It should be noted, however, that the evidence of the defendant on the special issue is not admissible on the general issue: HKSAR v Tse Fei Tsz [2002] HKEC 1397, CA; HKSAR v Ma Yee-keung [2000] HKEC 1136; R v Lam Ka-fai [1995] 1 HKCLR 155. It follows that such evidence cannot be adopted by the defendant as part of his case on the general issue, unless he gives evidence. Only the evidence which the defendant produces during the case for the defence on the general issue can be considered by the tribunal. Though a defendant may call witnesses, who had testified on the special issue, they will not be permitted to repeat their evidence. Such evidence as they can give must be confined to the general issue. On the other hand the evidence of the prosecution witnesses, on both the special and general issues in the trial need only be given once. It should be remembered that the alternative procedure is not the same as a voir dire : R v Lam Yin-yung, above. Subject to the approval of the tribunal there is no reason why a voir dire cannot be conducted in the District Court or the Magistrates Court. This procedure might be appropriate where the only evidence against the defendant is his confession. It was held in HKSAR v Sze Sun-man [1998] HKLRD (Yrbk) 401 that where the defendant calls witnesses in a voir dire (or in the alternative procedure), the testimony of those witnesses is not available either for or against the accused on the general issue; see also R v Lai Chi-sing [1987] HKLR 422. After both sides have been heard on the issue of admissibility the judge or magistrate must make a ruling. It is wrong to leave the ruling to the end of the case: R v Yeungcheung [1959] HKLR 338; R v Kwan Wai-hung [19731975] HKC 449. There is no requirement for the court to give reasons for its ruling: R v Lam Yip-ying [1984] HKLR 419. Though there is authority which suggests that the judge is under no obligation even to give his reasons for admitting the confession into evidence in his Reasons for Verdict. The better view, it is suggested, is for the trial judge or magistrate, when he comes to sum-up the case indicate the issues which he had decided and his grounds for rejecting the defence evidence on the special issue: R v Nguyen Van Truong & Vu Duc Hoa [1991] HKLY 236.

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[Chap. 15

15122

On the 2 October 1992, the Judges Rules of 1912 were replaced by the Rules and Directions for The Questioning of Suspects and the Taking of Statements (Rules and Directions). The Secretary for Security directed that the Rules and Directions should have effect from 1 October 1992 and should apply to all law enforcement agencies. This is in spite of the fact that the Rules and Directions only specifically mention police officers: however see Rule VII of the Rules and Directions. It appears that the 1912 Rules did apply to Hong Kong: R v Li Wai-leung [1969] HKLR 642. In the same appeal Hogan CJ, who delivered the majority judgment, was of the opinion that the Judges Rules of 1964 also applied to Hong Kong in spirit. It has never been clear to practitioners or judges what this phrase meant. In the same appeal the Court held that the Judges Rules were not rules of practice and procedure. In R v Leung Lai-por [1978] HKLR 202, it was pointed out by the Court of Appeal that the Rules of 1912 had never been formally adopted in Hong Kong. Moreover, Huggins J, in the same appeal noted that there could be no doubt that The Judges Rules of 1964 had no effect in Hong Kong. In R v Leung Cheuk-fan [1984] HKC 374, McMullin VP, at 391DE, stated that:
We do not need to review the many cases decided in Hong Kong in which some question, touching upon breaches of the Judges Rules has been canvassed on appeal and it not necessary to rehearse yet once again the many comments which have fallen from the Bench in that regard. Suffice it to say that the rules, propounded in 1912 for the guidance of the police, continue to be relevant in this territory in the sense that the code of conduct which they recommend continues to be regarded in these courts as generally appropriate to the conduct of investigations in this territory.

In an earlier part of his judgment (at 390DE), McMullin VP gave his opinion of what was the real issue in a voir dire :
With the advent of the Judges Rules in their original form in 1912, we embark upon the long and sometimes tortuous journey in the course of which the courts have sought in individual cases to determine whether, by the standard of conduct embodied in those rules, the behaviour of the investigative authorities has been such as to call the voluntary character of an individual statement into question. In this area of the law one thing is certain: the primary concern of the judge in considering the matter must always be whether the statement is voluntary in the sense that it is not the fruit either of inducement or threat held out by some person in authority and further that it is not the fruit of conduct so oppressive that there is a danger that it resulted from the will of the person being interrogated having been overborne.

15123

In this appeal it was argued that the questioning of a person in custody was contrary to the Rules. This argument was rejected without calling upon the Crown to answer. This issue was once the subject of much debate. Today, there can be no doubt that the questioning of a suspect under arrest is commonplace and is the usual method of obtaining information from him. Later in his judgment McMullin VP suggested that the 1964 Judges Rules did not apply in Hong Kong.

(2) Origin of the Judges Rules

15124
In October 1906 Lord Alverstone CJ received a letter from the Chief Constable of Birmingham, requesting his advice in the light of the fact that a judge on the Midland Circuit had censured a member of his force for having administered a caution, whereas another judge had criticised a constable for not having cautioned the suspect before he questioned. During the next few years in the wake of conflicting decisions and dicta the Chief Justice consulted with other judges of the Kings Bench, which resulted in a set of four rules being formulated. In 1918 a further five rules were added, thus making nine in all. The Judges Rules, as they came to be known, provided practical guidance for police officers questioning suspects and taking statements from them. In R v Voisin (1918) 13 Cr App R 89, at p 96, Lawrence J stressed the need for the relevant authorities

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to enforce the observance of the Rules because statements obtained from suspects contrary to the terms of the Rules might be rejected as evidence. During the next 50 years further additions and amendments were made to the Rules, culminating in the Judges Rules of 1964.

(3) Code C
Code C of The Police and Criminal Evidence Act 1984, in replacing the Judges 15125 Rules, established an almost encyclopaedic corpus of rules for the arrest, detention, questioning and treatment of suspects. The object of Code C was to strike a balance between, on the one hand, the need to effectively investigate and prosecute crime and on the other hand, the need to protect the rights of the citizen from unwarranted interference with his liberty. Police officers are liable to disciplinary proceedings for failure to comply with any provision of the Code.

(4) The Rules and Directions of 1992

The Judges Rules may still have some relevance in interpreting the Rules and Direc- 15126 tions. However, there is no suggestion in the Rules and Directions or elsewhere that Judges Rules have been revoked. In principle the courts will apply the Rules and Directions in the same spirit as they did the Judges Rules. A breach of the Rules and Directions does not, of itself, render a confession inadmissible. It is, of course, a factor to which the court must have regard. If there were substantial and significant breaches then the tribunal may exclude the confession in the exercise of its inherent discretion. In some rare cases, the breaches of the Rules and Directions may be so reprehensible and deliberate that the court may well have no choice other than to exclude the confession on the ground that the prosecution cannot discharge its burden of proving that it was voluntary. The object of the Rules and Directions is to ensure fairness to the suspect or arrested person, and also to assist the police to carry out their investigations in a fair and proper manner. If a police officer follows the Rules he will be more able to rebut any complaints about his conduct. Another purpose is so reassure the public and the courts that the rights of a person in the custody of the police are respected. The Privy Council in Peart v The Queen [2006] 1 WLR 970, 1524 stated three helpful propositions on the legal significance of the Judges Rules:
(i) The Judges Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed. (ii) The judicial power is not limited or circumscribed by the Judges Rules. A court may allow a prisoners statement to be admitted notwithstanding a breach of the Judges Rules; conversely, the court may refuse to admit it even if the terms of the Judges Rules have been followed. (iii) (iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary.

Peart was applied in Williams v The Queen [2006] UKPC 21, PC where the sovereign requirement of fairness (1526) was again emphasised.

(5) The preamble to the Rules and Directions

Note: 15127 These Rules do not affect the principles: (a) That citizens have a duty to help a police officer to discover and apprehend offenders; (b) That police officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station;

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(c) That every person ay any stage of an investigation should be able to communicate and to consult with a solicitor or barrister. This is so even if he is in custody, provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so; (d) That when a police officer who is making enquiries of any person about an incident has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence; and (e) That it is a fundamental condition of the admissibility of evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression. That principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules and Directions are put forward as a guide to all police officers conducting investigations. Non-conformity with these Rules and Directions may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings. These clauses of the preamble state common law principles and as such are distinct and separate from the Rules and Directions which follow. It is clear that the principal concern is that the confession statement should be deemed to be voluntary before it can be admitted into evidence. This principle is described as overriding and applicable in all cases. The preamble to the Rules and Directions is framed in very much the same terms as the 1964 Judges Rules. Note (c) declares that a suspect has the right to consult privately with a lawyer, this item is also to be found in item (c) of the 1964 Judges Rules. A breach would entitle a court to exclude a statement made by the accused: R v Lemsateff [1977] 1 WLR 812; R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277. Access to a lawyer was described as a common law right in R v Chief Constable of the Royal Ulster Constabulary, Ex p Begley, R v Mc Williams [1977] 1 WLR 1475, HL. At the same time, Lord Browne-Wilkinson in his speech rejected the argument that this common law right extended to a solicitor being present and advising his client in the interview room. It is to be noted that both Mr Begley and Mr Williams had been arrested under section 14(1) of the Prevention of Terrorism Act (Temporary Provisions) Act 1989, which specifically states that a person arrested pursuant to provisions of this Act had no legal right to have a solicitor present during an interview. The appeal would have failed on this ground alone. During argument in the appeal reference was made to Murray v United Kingdom (unrep., 8 February 1996, 41/1994/488/570). However, in Murray, the European Court had declined to make a ruling on whether or not a refusal to allow a solicitor to be present violated Article 6 of the European Convention of Human Rights. The House of Lords held that there is no positive law to support the proposition that the common law recognised a right in a suspect to have his solicitor when he is interviewed by a police officer. Lord Brown-Wilkinson, (at 1480F) stated that: I am quite satisfied that such a common law principle has not been established to date. Article 6 corresponds to Article 10 and Article 11(1) and (2) of the Hong Kong Bill 15128 of Rights; see also Article 35 of the Basic Law. In R v Walsh (1990) 91 Cr App R 161, it was held that there had been a breach of section 58 of the Police and Criminal evidence Act 1984, which permits an arrested person to have access to a lawyer. In Walsh such a request was refused by the investigating police officers. It should be noted that, in this case, there were breaches of Code C. The Court of Appeal held that breaches of the statutory provision and Code C by the police officers were not cured because they had acted in good faith (at p 163). However, where the breaches are substantial and significant the court would be justified in excluding the confession. Moreover, if there were bad faith, this circumstance would only serve to aggravate the breach. The Court of Appeal went on to make this statement of principle (at 163):
To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the Code, then prima facie at least the standards of fairness set by

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Parliament have not been met. So far as a defendant is concerned, it seems to us also to follow that to admit evidence against him which has been obtained in circumstances where these standards have not been met, cannot but have an adverse effect on the fairness of the proceedings. This does not mean, of course, that in every case of a significant and substantial breach of section 58 or the Code of Practice the evidence concerned will automatically be excluded. Section 78 does not so provide. The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such adverse effect that justice requires the evidence to be excluded.

As the Court noted the fact there was other evidence should not be a consideration in the exercise of the judges discretion. It is submitted that the denial of access to a lawyer may have an impact on the admissibility of a confession, as it could be argued that such denial offended against the right to a fair trial: Article 87 (right to a fair trial) and Article 35 (right to legal advice for the timely protection of the arrested persons rights) of the Basic Law. In Mohammed v The State [1999] 2 WLR 552, the Privy Council was of the Opinion that the contravention of a constitutional right was a cogent factor in favour of the exclusion of a voluntary confession. Yet at 561563 Lord Steyn said that a voluntary confession was not automatically inadmissible because there had been a breach of a constitutional provision, such as section 5(2) of the Constitution of Trinidad and Tobago (1976), which stipulated that an arrested person should have the right to retain and instruct a legal advisor of his own choice without delay or to hold communication with him. Mohammed was applied in Simmons & Greene v The Queen [2006] UKPC 19, where the Board appeared to show less tolerance for the breach of the constitutional right to retain and instruct counsel. In R v Goodwin [1993] 2 NZLR 153, a five judge Court of Appeal considered the effect of section 23(1)(b) of the New Zealand Bill of Rights 1990, which provides to the effect that an arrested person: Shall have the right to consult and instruct a lawyer without delay and to be informed of that right. The Court of Appeal with varying degrees of emphasis held the opinion that once it had been established that there had been a breach of section 23(1)(b), there should be exclusion of the record of interview unless good reason is shown to the contrary. On the other hand good faith could rarely be relevant and the consequences of exclusion should not be relevant in any event. Lamer J, speaking for the majority of the Supreme Court of Canada in Collins v The 15129 Queen [1997] 233 CCC (3d) 1, considered the impact of the Canadian Charter of Rights on the denial of the right to an arrested person of the services of a lawyer. He made the distinction (at 1920) between real evidence, which existed independently of the breach and evidence which is generated subsequent to the breach: such as a selfincriminatory statement. As Lamer J pointed out such evidence often arises when the suspects requests for the services of a lawyer have been refused, ignored or turned aside. The Court concluded that the use of a self-incriminatory statement, following upon a denial of the suspects right to counsel will go, generally, to the fairness of the trial and should generally be excluded. In the judgment, reference was made to many authorities of the courts of Canada which support this proposition. The question which the courts may have to consider is whether or a suspect does have a constitutional right, as well as a common law right to have the services of a lawyer as soon as practicable after his arrest. The relevant part of Article 35 of the Basic Law reads as follows:
Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests of for representation in the courts, and to judicial remedies.

Reference is also made to Direction 8(a) of the Directions, (as set out below in 15143). It is submitted that Article 35 extends the protection of the law back to the moment of arrest and detention. Principle (d) of the preamble has the purpose of preventing the continued holding and questioning of a suspect concerning an offence when there is clearly sufficient evidence to warrant him being charged with that offence. The principle is designed to protect a suspect from indefinite and unnecessary questioning and to enforce a procedure (in conjunction with other provisions in our law such as section 52(1) of the Police

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Force Ordinance, Cap. 232) ensuring that he will be brought before a court within a reasonable time: HKSAR v Tang Siu Chuen [2008] HKEC 461 at para 35, CA. The principle was considered in R v Lai Kin-ming [1984] HKC 1. In that appeal the Court held that this principle was not intended to bring a halt to the investigatory process but to inhibit the manufacture as distinct from the uncovering of evidence. With respect it is not easy to understand how far this principle can be taken. It may be very difficult to distinguish between what is manufactured and what is uncovered: note the observations of Keith J at 129 of R v Chuen Wui-shing [1993] 2 HKCLR 125. According to HKSAR v Yip Siu Tak [2002] HKEC 475, para 13, CFI, there is no hard and fast rule as to what constitutes enough evidence for the purposes of Principle (d). In this case, while it was possible to charge the defendant after obtaining his initial non-verbatim oral admission, PW1 was entitled to hold a formal interview to confirm the contents of the notebook entry and to obtain corroborating evidence from independent sources in support of the admission (at para 13). The Court of Appeal in HKSAR v Tang Siu Chuen confirmed that principle (d) does not require investigators to cease questioning and to bring charges immediately upon the making of an oral admission by the suspect:
the principle is not intended to be applied unrealistically so as to prevent proper inquiries being made of a suspect. It may be for example that at quite an early stage in an interview with police a suspect admits an offence. That does not mean that the interview cannot proceed. In our view the interviewing officer is entitled to make further inquiries of the suspect during that interview so as to place that admission in a fair and proper context (at para 36).

The principle does not prevent the police from putting questions to a suspect caught red handed with drugs in his possession: HKSAR v Chan Wai Keung [2003] 1 HKLRD 901, CFI. Deputy Judge McMahon, as he then was, stated that the answer to the question, whether there was enough evidence, varied from case to case and recognised that police officers should be accorded a fair degree of latitude in assessing when there was enough evidence to lay a charge. In HKSAR v Chan Wai Keung [2003] 1 HKLRD 901, CFI, the judge provided a useful discussion of the significance and meaning of Principle (d). First, he noted that the principle applied at a point when the police were already making inquiries of the suspect rather than before such inquiries were made (at para 9). The principle does not prevent the police from putting questions to a suspect caught red handed with drugs in his possession, as were the facts in this case. Echoing the approach in Yip Siu Tak, above, Deputy Judge McMahon found that the answer to the question, whether there was enough evidence, varied from case to case. Importantly, it was recognised that police officers should be accorded a fair degree of latitude in assessing when there was enough evidence to lay a charge. The judge found that the purpose of principle (d), when taken together with Rule III(b), was to prevent the police from subjecting a suspect to enquiries not for any proper investigatory purpose but so as to have him or allow him to simply further incriminate himself (at para 17).

(6) The Rules

15130
There are seven Rules. They are set out as follows: RULES

15131

I. When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, (from) whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it. II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence. The caution shall be in the following terms: You are not obliged to say anything unless you wish to do but what you say may be put into writing and given in evidence.

1010

Sect. II]

Confessions

15132

When after being cautioned a person is questioned, or elects to make a statement, a contemporaneous record shall be kept, so far as is practicable, of the time and place at which any such questioning or statement began and ended and of the person present.

Note: There can be no doubt that a police officer has the right, and even duty, to question persons whom he believes may assist him in the investigation of a crime: R v Leung Chor [1963] HKLR 825; R v Li Wai-ming [1965] HKLR 631. This does not allow the police officer to arrest a person solely in order to ask him questions. Should the person, in answer to a question, make an incriminatory statement the police officer will have to consider if he should immediately administer a caution before asking any further questions. The purpose of the caution is to remind the suspect of his right to silence: Hall v R [1971] 1 WLR 298, at p 301G; Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431 at 440. The threshold is reasonable grounds. Most of the authorities on this subject favour the proposition that reasonable grounds should be based on evidence which would be admissible in a court of law: R v Osbourne & Virtue [1973] 1 QB 678, followed in HKSAR v Fung Wing-ching [1998] 2 HKLRD 736. In Beese v Governor of Ashford Remand Centre [1973] 3 All ER 689 at 693, it was held by the House of Lords that the Judges Rules did not apply to questioning by foreign detectives. By extension, it can be argued that a similar ruling would be made in respect of the Rules and Directions: they would be deemed only to have a domestic application.
III. (a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms: Do you wish to say anything? You are not obliged to say anything unless you to do so but whatever you say will be taken down in writing and may be given in evidence. (b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused should be cautioned in these terms: I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence. Any questions put and answers given relating to the offence must be contemporaneously 15132 recorded in full and the record signed by that person or if he refuses by the interrogating officer. (c) When such a person is being questioned, or elects to make a statement, a contemporaneous record shall be kept, so far as is practicable, of the time and place at which any questioning or statement began and ended and of the persons present.

Note: It has been held that there is nothing unfair for a police officer to question a suspect for an offence, other than the one for which he has been arrested, without first administering a further caution. It is not necessary for a suspect to be reminded again of his constitutional rights: R v Wong Choi-foon (unrep., Mag App 918/1992). On the other hand the Court of Appeal had held in R v Yeung Kin-chung & Wong Shan (unrep., Cr App 434/1990) that the suspect should be further cautioned in such circumstances. The suspect must be made aware of the true nature of the investigation. In R v Kirk [2000] 1 WLR 567 the Court of Appeal stated that the police must, at the very least, inform the suspect of the nature of the investigation. The Court of Appeal had in mind Article 5(2) of the European Convention of Human Rights, which reads:
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

This Article is echoed in this jurisdiction by Article 5(2) of the Hong Kong Bill of Rights (Cap 383), and Article 39 of the Basic Law. Kirk was followed in HKSAR v Pang Ho Yin [2010] 3 HKLRD 515, CA, a case where the defendant was arrested for possession of a dangerous drug and possession of a firearm and properly cautioned for these

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offences before police questioning. However, the defendant was not re-cautioned when having made reference to his own involvement in drug trafficking activities, the police proceeded to ask him extensive questions about the trafficking. The Court of Appeal quashed the trafficking conviction on the grounds that the confession was unfairly obtained
The right to choose whether to speak or to remain silent is denuded of its force if the choice is based on a material misapprehension, created by the circumstances of his questioning, as to the nature of the peril in which, by such answers as he might advance, he may place himself (para 32). The question was not whether the defendant was aware of his right to silence, but whether the choice as exercised remained an informed choice once the focus of the investigation had changed (para 37).

In Christie v Leachinsky [1947] AC 573, HL, Viscount Simon laid out five propositions (which have now been incorporated into s 28 of the Police and Criminal Evidence Act 1984), they can be found at pp 587 and 588 of the report. Having stated his propositions, Lord Simon went on to say:
There may well be other exceptions to the general rule in addition to those I have indicated and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter. These principles equally apply to a private person who arrests on suspicion.

See also R v Chalkley and Jeffries [1998] 2 Cr App R 79 where reference is made to Lord Simons speech. In HKSAR v Yip Siu Tak [2002] HKEC 475, CFI, the police officer breached Rules III(c) and IV(d) and (e) by failing to keep a contemporaneous record of the defendants admission. Nevertheless, the court held that the officers non-verbatim written summary of the defendants admission did not have to be excluded under the residual discretion. The case was distinguished from HKSAR v Wong Kai (unrep., Mag App 553/ 1997), in which the only evidence against the defendant was his non-verbatim record of an admission, and the court was concerned that the officer felt it was within his province to rewrite the words of a suspect (at para 10).

(7) Questions after charge

15133
Questioning a suspect on matters in respect of which he has been charged should be rare and exceptional. In Ng Wai-ming [1980] HKLR 228, Roberts CJ stated that it was a practice which we deprecate. It does not always follow that the court will exclude the answers given by the suspect to such questioning: see R v Tsui Shing-yau [1980] HKLR 706; R v Tam Wing Kwai [1976] HKLR 401. However in R v Tsui Shing Yau, Roberts CJ repeated his concern that the practice of questioning suspects after they had been charged and brought before the magistrates court was wholly rare and exceptional and improper. The Rules do not prevent the police from questioning a suspect, in such circumstances, about other offences: R v Buchan (1964) 48 Cr App R 126. More recently, the Privy Council summarised the law within the following proposition: If a prisoner has been charged, the Judges Rules require that he should not be questioned in the absence of exceptional circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoners position after being charged and the pressure to speak, with the risk of self-incrimination or causing prejudice to his case, militate against admitting such a statement: Peart v The Queen [2006] 1 WLR 970, para 24, per Lord Carswell. In Peart, the 18-year-old appellant was charged with capital murder and whilst detained in custody he was interviewed by police who in a series of 63 questions elicited statements that were damaging to the appellants case at trial. He had not had the services of a lawyer before the interview. The Board was not satisfied that the appellants answers were given voluntarily and even if they were it was their Lordships opinion they were given in circumstances that made it unfair to admit the evidence.

1012

Sect. II]

Confessions (8) Written statements

15135

IV. All written statements made after caution shall be taken in the following manner: 15134 (a) When a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say: if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. If he accepts the offer of the police officer shall, before starting, ask the person making the statement to sign, or make his mark to the following: I .. , wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence. (b) Any person writing his own statement shall be allowed to do so without prompting as distinct from indicating to him what matters are material. (c) The person making the statement, if he is going to write it himself, shall be asked to write out and sign before writing what he wants to say, or before any questioning, the following: I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence. (d) When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations, or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following Certificate at the end of the statement: I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will. (e) If the person who has made a statement refuses to read it or to write the above-mentioned Certificate at the end of it or to sign it, the senior police officer present shall record on the statement itself, and in the presence of the person making it, what has happened. If the person making the statement cannot read, or refuses to read it, the officer who has taken it down shall read it over to him and ask him whether he would like to correct, alter or add anything to what has been recorded and put his signature or make his mark at the end. The officer shall then certify on the statement itself what he has done.

Note: In HKSAR v Tang Siu Chuen [2008] HKEC 461, CA, it has stated that Rule IV(a) does not require the suspect himself to write the declaration but simply to sign that declaration, nor is there any requirement for the officer to ask the suspect whether he wishes to write the declaration (at para 40).

(9) Interview records

V. The questioning of suspects shall be recorded in the following manner: 15135 (a) Accurate records must be made of each interview with a person suspected of an offence. (b) If an interview with a suspect takes place in a police station, or other premises providing reasonable privacy and facilities for such interview, a contemporaneous written record of the interview must be made. The only exception to this rule will be where equipment is available to record the interview by mechanical means. (c) Where a contemporaneous written record of an interview has been made, it must immediately after completion be read over to the suspect, and he should be given the opportunity to read it. The suspect should also be given an opportunity to make any corrections alterations or additions he wishes to the record, and afterwards he should be invited to write and sign the following Certificate at the end of the record: I, have read the above record or interview, consisting of pages. It is an accurate record of questions asked, and answers I provided. If the suspect cannot read, or refuses to read the record, or to write and sign the Certificate, the senior officer present shall record within the record of interview, and in the presence of the suspect, what has happened. Nothing recorded in a record of interview hall be obliterated by either the interviewing officer or the suspect. The record must accurately reflect to total of what occurred during the interview. VI. If at any time after a person has been charged with, or has been informed that he may be prosecuted for an offence, a police officer wishes to bring to the notice of that person any written statement made by, or record of an interview with another person, who in respect of the same offence has also been charged or informed that he may be prosecuted, he shall hand to that person a true copy of such written statement or record of interview, but nothing shall be

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said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as prescribed by Rule III(a).

Note: It is now regarded as perfectly proper for a police officer to conduct an interview in question and answer form. In R v Tang Koon-wah (unrep., Crim App No 254 of 1988), Hunter J considered that statements taken in this way were fairer and more reliable. The police officer may assist the suspect to write out characters which the latter is not able to write. Where the suspect writes or speaks his own statement there is nothing wrong in the interviewing officers asking him to clarify dates, places and names. Subject always to the caveat that he must not prompt or suggest what should be written. Rule VI permits cross-serving of statements or records of interview, whether written, or recorded on audio or video tape. This has become a common feature of police investigations. Cross-serving of a statement or record of interview, made by one suspect upon another suspect, both believed to be concerned in committing the same crime, is aimed at obtaining a reaction from the suspect. If something is said or done in order to elicit a reply by the suspect, after he has read or seen the record, it is likely that the trial judge will exercise his inherent jurisdiction to exclude the reaction or response made by the suspect: R v Tsou Shing-hing [1989] HKLY 161. Cautioning a suspect before handing him a co-suspects statement or record of interview is not regarded as inviting a response from him. For an illustration of conduct that was short of breaching Rule VI, see HKSAR v Cheung Kwok Chung [2004] HKEC 38, CA.
VII. Persons other than police officers with the duty of investigating or charging offenders shall, so far as may be practicable, comply with these Rules. DIRECTIONS

15136

1. Procedure generally (a) Police officers notebooks should be used for taking statements only when no other stationer is available. (b) When a person is being questioned or elects to make a statement, a record should be kept of the times at which, during the questioning or making of a statement, there were intervals or refreshment was taken. The nature of the refreshment should be noted. In no circumstances should alcoholic drink be given. (c) In writing down a statement, the words used should not be translated into official vocabulary; this may give a misleading impression of the genuineness of the statement. (d) Care should be taken to avoid any suggestion that the persons answers can only be used against him, as this may prevent an innocent person making the statement which might help to clear him of the charge. 2. Record of Interview Rule II and Rule III (c) demand that a record should be kept of the following matters: (a) When, after being cautioned in accordance with Rule II, the person is being questioned or elects to make a statement of the time and place at which any such questioning began and ended and of the persons present: (b) When, after being cautioned on accordance with Rule III (a) or (b), a person is being questioned or elects to make a statement of the time and place at which any questioning or statement began and ended and of the persons present. In addition to the records required by these Rules, full records of the following matters should additionally be kept: (i) Of the time or times at which cautions were given, and (ii) Of the time when a charge was made and/or the person who was arrested, and (iii) Of the matters referred to in paragraph 1(b) above. If two or more police officers are present when the questions are being put or the statement made, the records made should be countersigned by the other officers present. 3. Interviews in the police station When a suspect is questioned in a police station or other premises affording reasonable privacy and facilities for interview, a contemporaneous record must be made of all interviews conducted there.

15137

15138

1014

Sect. II]

Confessions

15142

4. Comfort and refreshment Reasonable arrangements should be made for the comfort and refreshment of persons being 15139 questioned. Whenever practicable both the person being questioned or making a statement and the officers asking the questions or taking the statement should be seated. 5. Questioning of children and young persons So far as practicable, children and young persons under the age of 16 years (whether 15140 suspected of a crime or not) should only interviewed in the presence of a parent or guardian, or, in their absence, some person who is not a police officer and is of the same sex as the child. A child or young person should not be arrested, or even interviewed at school if such action can possibly be avoided. Where it is found essential to conduct the interview at school, this should be done only with the consent, and in the presence of the head teacher, or his nominee.

Note: The police must make a serious attempt to obtain the attendance of a parent or guardian or adult member of the family before interviewing the young person. In Att-Gen v Lam Man-wah (No 2) [1992] HKLY 240, the Court of Appeal held that the lack of knowledge of the parent or guardian was wholly irrelevant. Such person is not present in order to provide legal advice to the suspect, he or she is present in order to reassure the young person. The adult person who is present need not be in locus parentis of the child or young person. No distinction is made in the Rules between a child and a young person. Applying the norms of commonsense, the younger the suspect, the more care the police must take.
6. Statements made in a language other than English In the case of a person making a statement or answering questions in a language other than 15141 English: (a) Whenever possible all interviews should be conducted in the mother tongue of the suspect unless he chooses, or consents, to use another language in which he obviously proficient. (b) The statement or record of interview should be recorded in the language used by the person making the statement or answering the questions. (c) A certified English translation should be made in due course and be proved as an exhibit with the original statement or record of interview. (d) The person making the statement or answering the questions should sign the statement or record of interview. Apart from the question of apparent unfairness, to obtain a signature of a suspect to an English translation of what he said in another language can have little or no value as evidence if he suspect disputes the accuracy of this record of his statement or record of interview. 7. Supply to accused persons of written statement of charges (a) The following procedure should be adopted whenever a charge is preferred against a 15142 person arrested without warrant for any offence: The accused person should forthwith be given a written notice containing a copy of the entry of the charge sheet giving particulars of the offence with which he is charged. So far as possible the particulars of the charge should be stated in simple language so that the accused person may understand it, but they also show clearly the precise offence in law with which he is charged. Where the offence charged is a statutory one, it should be sufficient for the latter purpose to quote the section of the statute which created the offence. The written notice should include some statement on the lines of the caution given orally to the accused person in accordance with the Rules after a charge has been preferred. The form of notice should begin with the following words: You are charged with the offence(s) shown below. You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. (b) Once the accused person has appeared before the court, it is not necessary to serve him with a written notice of any further charges which may be preferred. If, however, the police decide, before he has appeared before a court, to modify the charge or to prefer further charged, it is desirable that the person concerned should be formally charged with the further offence and given a written copy of the charge as soon as it is possible to do so, having regard to the particular circumstances of the case. If the accused person has been released on bail, it may not always be practicable or reasonable to prefer a new charge at once, and in cases where he is

1015

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[Chap. 15

due to surrender to his bail within forty-eight hours, or other cases of difficulty it will be sufficient for him to be formally charged with the further offence and served with a written notice of the charge after he has surrendered to his bail and before he appears before the court.

15143

8. Facilities for the defence (a) Provided that no unreasonable delay or hindrance is reasonably likely to be caused to the processes of the investigation or the administration of justice: (i) A person in custody, or present with the police and under investigation by them, should be allowed to speak on the telephone to his friends and consult and communicate privately, whether in person or in writing or on the telephone, with a solicitor or barrister. He shall be provided on request with a current list of solicitors provided by the Law Society.

Note: some of the larger police stations do carry a list of solicitors, which is provided by the Law Society, who are prepared without fee, to attend upon suspects detained in a police station. It is the writers experience that investigating police officers rarely if ever inform the suspect that the lawyers services will be provided free of charge.
(ii) A person in custody, or present with the police and under investigation by them, should be allowed to have a solicitor or barrister present to advise him at any interview between that person and a police officer. (iii) A solicitor or barrister claiming to have been instructed by a third party to act on behalf of a person in custody, or present with the police and under investigation by them, should be allowed to communicate privately with that person, unless the person states, in the presence of only the requesting lawyer and an independent police officer not below the rank of inspector, or a sergeant if an inspector is not available, that he does not wish to consult with the lawyer concerned. (iv) The letters of a person in custody, or present with the police and under investigation by them, should be sent by post or otherwise with the least possible delay. (v) A person who has made a cautioned statement or answered questions under caution is entitled to a copy of such statement or record of interview and this should be supplied as soon as possible after each interview. The only exception is where hindrance is reasonably likely to be caused to the administration of justice. If it is decided to deny a person a copy of his cautioned statement or record of interview, the reasons for this decision must be fully recorded, either within detention records or the investigating officers notebook. In such circumstances, no further statements should be obtained and no further interviews should be conducted with that person until a copy of the cautioned statement or record of interview has been made available. A refusal must not continue beyond the point where the person is formally charged. To deny a person a copy of his cautioned statement or record of interview is serious matter and such action may be the subject of enquiry at his subsequent trial.

Note: by necessary implication the record of interview also applies to a video-tape recording of the interview. It is the practice of the police to provide a copy tape to the suspect after the interview is concluded.
(b) A police officer may only delay or prevent communication between a solicitor or barrister and a person in custody, or present with the police and under investigation by them, if he has reasonable grounds for believing that unreasonable delay; or hindrance to the processes of investigation or the administration of justice, is likely to be caused if such communication is permitted. The fact that a solicitor or barrister might advise that person not to make, or continue to make, a statement, or not to answer questions, or not to assist the police in their enquiries, should not in itself be treated by a police officer as a ground for delaying or preventing communication between he solicitor of barrister and that person. (c) A person in custody, or present with the police and under investigation by them, should be supplied on request with writing materials. (d) A person in custody, or present with the police and under investigation by them, should be informed of his rights and the facilities available to him, and in addition notices describing them should be displayed at convenient and conspicuous places at police stations.

15144

Note: It is now the universal practice of the police and other law enforcement agencies in Hong Kong to supply an arrested person with what is known as a Notice to

1016

Sect. III]

Related Matters

15145

Persons in Custody/Investigation. This notice sets out in English and Chinese 10 basic rights of the suspect. In all police stations there are posted, at convenient places, including interview rooms, notices in the same terms. The investigating officer will usually hand a copy of a printed notice to the suspect, he will ask the suspect to read it, and sign the notice if he understands its contents. In many cases the police officer will also explain the notice to the suspect. The police officer will then countersign the notice, marking the date and time when the notice was given to the suspect and when he signed it. It should be noted that the Rules and Directions apply to both those in custody and those persons present with the police and under investigation by them. The Rules and Directions are not exclusively confined to persons who are under arrest. For example a person may be cautioned without being arrested. The fact that officers serve a Notice to Persons in Custody on the defendant indicates that they consider notices posted in the police station and interview room insufficient to comply with Direction 8(d): HKSAR v Leung Sai Tong [2002] HKEC 452, para 11, CFI. In Leung Sai Tong, the police were in breach of Direction 8(d) when they suspected the defendants involvement in the commission of the offence but continued to take a statement from him without having given him the Notice to Persons in Custody. In HKSAR v Tang Siu Chuen [2008] HKEC 461, CA, the Court noted that compliance with Direction 8(d) did not require that the Notice be read out to the suspect. But as the purpose of the direction was to ensure that the arrested person understood his rights, it may be that in certain circumstances it is desirable to read the Notice to an arrested person, because for example of his age, infirmity or illiteracy (para 26).

III. RELATED MATTERS A. Curial Confessions (1) Plea of guilty at trial

Where the defendant in open court freely and voluntarily confesses that he is guilty 15145 of the offence of which he is charged, this plea is an admission to each and every element of the offence. At common law the plea is deemed to be a confession. A plea of guilty now comes within the definition of confession for the purposes of section 82(1) of the Police and Criminal Evidence Act 1984. Where the defendant pleading guilty to the offence is taken to have admitted the allegations particularised in the Count or Charge, including any averment which may not be necessary to support a conviction but can amount to a factor of aggravation: R v Riley [1996] 1 QB 309; 18 Cox CC 285. It is not sufficient for counsel to plead guilty on behalf of his client; the defendant must answer for himself: R v Heyes [1951] 1 KB 29; 34 Cr App R 161. The confession of guilt may be made on arraignment, or on the reading of the charge or at any subsequent stage of the proceedings. The defendant may, with the consent of the court withdraw his original plea of not guilty and enter a plea of guilty; Holdsworths Case (1832) 1 Lew 279. (See also 427). There can be only one plea to a Count or Charge on the indictment. If a defendant pleads not guilty to the Count or Charge but admits guilt to a lesser or alternative offence, the prosecution may be prepared to accept the plea. If it does not then the plea is deemed to have been withdrawn and a nullity; the defendant is tried on his plea of not guilty to the stated Count or Charge: R v Hazeltine [1967] 2 QB 857; (1967) Cr App R 351; R v McGregor-Read [1999] Crim L R 860, CA; and R v Yeardley [2000] 2 WLR 366; [2000] 2 Cr App R 141. It would appear to be the case, that if the proffered plea is rejected and the defendant is subsequently acquitted of the named offence, his admission cannot found a conviction for the lesser or alternative offence: R v Hazeltine, above, nor can the admission be deemed to be an admission of the facts of the offence; the prosecution must still prove the offence: R v Fung Wai-chung [1989] HKLY 204. However, the admission cannot be said to be a nullity. If the trial proceeds and the defendant gives evidence he can be cross-examined on his admission should it be inconsistent with his testimony and relevant to the issues: R v Hazeltine, above. If the defendant

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changes his plea to one of guilty after the jury has been empanelled, he is deemed to have been placed in the charge of the jury. Once the defendant has been placed in charge of the jury the judge must direct the jury to return a verdict of guilty, provided that he is satisfied that the change of plea is free, voluntary and informed: R v Hancock (1932) 23 Cr App R 16. Failure to take a verdict will render the trial a nullity: R v Heyes, above; R v Ellis ( James), (1973) 57 Cr App R 571, CA.

(2) Admission of the facts

15146
A defendant may plead guilty to murder: R v Yim Yat-hong [1929] 24 HKLR 8. There is only one sentence for the crime of murder. In Practice Direction (Plea of Guilty: Statement of Facts) [1968] 1 WLR 529, the Chief Justice directed that on a plea of guilty to an indictment of murder, in spite of the fact that in law only one sentence can be imposed, the prosecution should state the facts in open court. Otherwise the press and the public would be deprived of the right, inherent in our system of law, to know the circumstances of the crime. With the introduction of legislation which permits independent bodies to review long sentences, a confession to murder, coupled with some powerful mitigating factors, is likely to be considered as relevant to the Long-term Sentences Review Boards recommendation at some future time. Of course where the circumstances are truly exceptional, such as the mercy killing, a heartfelt confession might well result in the exercise of the Chief Executives discretion to order an early release or commute the sentence. See also the provisions of the Long-Term Prison Sentences Review Ordinance (Cap 524), by which the Long-Term Prison Sentences Review Board was established, and section 11 of the Ordinance. The practice informing the court of the facts of the case, before sentence, is now universal in its application, and applies to all pleas of guilty, irrespective of the gravity of the crime. There can be no conviction until sentence has been imposed. In Hong Kong the prosecution will tender a statement of the facts. Should the defendant accept these facts they become agreed evidence which is binding on both parties: section 65C of the Criminal Procedure Ordinance (Cap 221). If there is any material disagreement as to the facts the judge, in his discretion, may decide to hold a Newton Hearing: R v Newton (1982) 4 Cr App R (S) 388; R v Tolera 1 Cr App R (S) 29, at p 31; R v Chung Kam-fai [1993] 1 HKCLR 178, at p 187. The Court will not hold a Newton Hearing, where it considers that it will make no difference to sentence: R v Kam Chun-pang (unrep., Crim App No 504 of 1991). Where the plea is imperfect or equivocal, and the court of trial has wrongly entered a conviction based on such a plea, the Court of Appeal will allow the appeal against conviction, enter a plea of Not Guilty and order a re-trial: R v Ingleson [1913] 1 KB 512; 11 Cr App R 21. If the defendant is unrepresented, care should be taken in order to ensure that the defendant understands the charge, especially if on the papers he has a viable defence: R v Griffiths (1932) 23 Cr App R 153; R v Blandford Justices, Ex p G (an infant) [1967] 1 QB 82, DC.

(3) Equivocal or involuntary pleas of guilty

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Where the defendant pleads guilty to an offence, albeit unhappily and reluctantly, after receiving strong advice from his counsel, and the appeal court holds that the defendant may have lost the power to make a voluntary and deliberate choice, it will find that the plea was a nullity: R v Pearce [1976] Crim L R 119, CA; R v Hall [1968] 2 QB 767. A judge may not accept an equivocal plea or a plea which is involuntary: R v Ingleson (1915) 1 KB 512: R v Turner [1970] 2 QB 321; Foster (Haulage) v Roberts [1978] 2 All ER 751, (1978) 67 Cr App R 305; R v Chan Shun [1991] HKLY 272. Where it is suggested that the plea of guilty was equivocal, the judge would be likely to consider the following factors: (1) In order for a plea of guilty to be deemed to be equivocal the defendant must have added a qualification, which if true may show that he is not guilty of the offence.

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(2) After an unequivocal plea has been entered and before sentence is passed, the trial court can permit the defendant to change his plea to one of not guilty. It is a matter for the courts discretion: Foster (Haulage) v Roberts, above. For example he plea may have been induced by threats, fraud, misrepresentation or undue pressure, (including from the court); (3) In determining whether to allow a reversal of plea, the court should ask itself three questions, (a) was the plea equivocal or unequivocal? (b) During the course of the proceedings did anything happen which makes it clear to court that it should consider exercising its discretion to permit a change of plea? And (c) by not allowing the change of plea did the trial court exercise its discretion wrongly? A plea of guilty should not be accepted if it appears that it may have been made under duress: R v Li Bing-quen (unrep., Mag App No 964 of 1985); R v Wong Pak-ki [1987] 2 HKC 254. A plea based on a serious misrepresentation to the accused by the prosecutor might render a plea of guilty a nullity: R v Li Yeun-chu [1993] HKLY 329; R v Lam Yin [1995] 2 HKCLR 124. The issue can be stated simply: does the confession of guilt reflect the defendants consciousness of guilt? A mere change of mind will not suffice. The burden of proof to establish that there are grounds to warrant a reversal of the plea of guilty is upon the defendant: R v Forde [1923] 2 KB 400. These principles also apply to the case where the defendant has been committed to the High Court or sentence, on his plea of guilty. Section 81B(3) of the Criminal Procedure Ordinance (Cap 221), empowers the judge of the Court of First Instance to permit the plea to be withdrawn. (See also 426.)

B. Admissions in Previous Proceedings By the defendant

A confession or admission made by a defendant in previous proceedings can be 15148 admissible in subsequent proceedings, if it is relevant to the issues. There is no distinction, in principle, between such a confession and an extra-judicial confession. An admission against interest, as already stated is an exception to the rule against hearsay. This circumstance is most often to be found on a retrial. The confession can be proved by a properly authenticated transcript of the previous proceedings or by a witness who heard the confession being made. Whether such a confession should be admitted in the subsequent proceedings will sometimes be governed by the exercise of the trial judges inherent discretion, in the interests of ensuring that there is a fair trial. Should the defendant give evidence in the second or subsequent trials, what he had stated in evidence in the previous trial can be put to him on the basis that his present testimony is inconsistent with what he had said in the previous trial.

By a witness
A witness in previous proceedings may have heard or witnessed a confession or 15149 admission being made by the defendant. If he is available then he can be called as a witness in the subsequent trial, provided of course that it is relevant to the issues. At common law, the record of the evidence of a witness, given in a previous trial, (whether in civil or criminal proceedings), is admissible in subsequent trial proceedings: R v Hall [1973] QB 496; [1973] 1 All ER 1; R v McGregor [1968] 1 QB 371; [1967] 2 All ER 267. The admission of such evidence is subject to the conditions, as laid down in Hall, above. They can be summarised as follows: (1) the witness must have given his evidence on oath or affirmation in the previous proceedings; (2) the issues must have been substantially the same between the parties; (3) there must have been full opportunity for cross-examination of the witness; (4) the witness cannot be called in the present proceedings, because he is dead, suffering under a mental disability (which need not be permanent), seriously ill

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(R v Thompson [1982] QB 647, at p 659), or prevented from testifying by the opposing party. It would seem to be case that, at common law, mere absence from the jurisdiction of the witness would not qualify under this rule: R v Scaife (1851) 17 QB 238 at 243. In Hall, above, the Court of Appeal recognised that there is a discretion to exclude such evidence, if it were unfair to admit it. Moreover, the Court considered that the lack of opportunity of the second court to observe the demeanour of the witness might be a factor in the exercise of the discretion. Canadian statutes, which permit the use of such testimony in subsequent proceedings have been held to be consistent with the Canadian Charter of Rights and Freedoms: Potvin v R [1989] 1 SCR 525 and, by extension, Article 11(2)(e) of the Hong Kong Bill of Rights. The testimony of the witness in previous proceedings will be proved by producing the transcript, which may have been taken from an electronic recording or by a shorthand writer. In the former case, the transcript can be produced by virtue of section 29A of the Evidence Ordinance (Cap 8), or by the shorthand writer asserting that the transcription of the shorthand record is accurate and complete. It has been held in the Court of First Instance, that the record of testimony in the previous proceedings can be proved by resort to sections 22 of the Evidence Ordinance (Cap 8): HKSAR v Lee Chi-hung [2000] HKLRD (Yrbk) 176. Contrary to the judgment of that case, it is respectfully submitted that, at common law, the trial judge does retain the residual discretion to exclude or edit such evidence in the interests of justice: Hall, above. Section 70 of the Evidence Ordinance (Cap 8), in effect, repeats the common law rule, and subject to the conditions stated therein, permits the depositions of a witness taken by a magistrate or other officer, such as a coroner, to be adduced in evidence in criminal proceedings. This procedure is only available to the prosecution.

Evidence on a retrial
15150
Where the Court of Appeal orders a retrial pursuant to section 83E of the Criminal Procedure Ordinance (Cap 221), section 83F of the Ordinance, provides that paragraph 1 of the Sixth Schedule, shall apply as follows:
1. On a retrial, section 70 of the Evidence Ordinance (admissibility in evidence in criminal proceedings of depositions of person dead, etc) shall not apply to the depositions of any person who gave evidence at the original trial or to any written statement by such a person tendered under section 81A of the Magistrates Ordinance, in any committal proceedings before the original trial; but a transcript of the record of the evidence given by any witness at the original trial, may, with the leave of the judge, be read as evidence (a) by agreement between the prosecution and the defence; or (b) if the judge is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or to secure his attendance have been made without success, and in either case may be so read without further proof, if verified and in accordance with the rules and orders under section 9.

Evidence in coronial proceedings

15151
It has been held that a statement made by a deponent who has since died, may be read in subsequent proceedings, if it is signed by him and both the coroner and the accused have had the opportunity to question him: R v Cowle (1907) 71 JP 152. This proposition was not accepted by the Court of Appeal in Bird v Keep [1918] 2 KB 692. Also see R v Butcher (1900) 64 JP 808; R v Black (1909) 74 JP 71. In Australia it has been held that the trial court does have the discretion to exclude such depositions from evidence: R v Collins [1986] R 37. Where during the course of an inquest it becomes apparent to the coroner that the death of a person (the subject of the Inquest) may have been the result of a criminal act by a person, whether he appears at the inquest or not, he may adjourn the proceedings and refer the matter to the Secretary for Justice, to decide if a criminal prosecution should be instituted. This provision applies to the suspected offences of murder,

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manslaughter, infanticide and causing death by dangerous driving: section 35 of the Coroners Ordinance (Cap 504). Witnesses who are ordered to attend upon an inquest can be compelled to give evidence, subject to the proviso that he may refuse to answer questions which may incriminate him: Rule 11 of the Coroners Rules (Cap 504). It is submitted that there is a duty upon the Coroner to remind the witness of his right not to answer such questions. Should the witness, having been so warned, choose to make a confession or incriminating admission, this statement can be admissible in his trial. The confession can be proved by producing the certified transcript of the proceedings or by a witness who heard the utterance being made. It is submitted that Rule 11 is mandatory. Should the witness be asked a question, which is likely to elicit an incriminatory response and the witness is not warned before making his answer, the answer cannot be evidence against the witness, should he be prosecuted for an offence, in respect of which the answer is relevant.

C. Formal Admissions
Any extra-judicial or curial confession can be admitted by agreement in the trial. This 15152 should be the preferred approach. The more evidence which can be agreed the clearer will be the issues and, it is hoped, the shorter the trial. All admissible facts, which are capable of being admitted without the necessity of strict proof, can be admitted in accordance with the procedures provided for in sections 65B and 65C of the Criminal Procedure Ordinance (Cap 221). There is an important difference in the legal effect of these two sections. Facts admitted under section 65C are conclusive of those facts irrespective of the testimonial evidence at trial. However, witness statements admitted under section 65B are admitted as such, and the facts therein can be weighed like testimonial evidence. The prosecutions failure to use the correct section in HKSAR v Au Koon Yip and Others [2004] HKEC 274, CA was ultimately fatal to its case. At common law the only admission (apart from admissions made outside court and proved by evidence) is the plea of guilty in the face of the court: R v Bateman (1845) 1 Cox CC 186; R v Riley [1896] 1 QB 309.

Section 65B
(This provision does not apply to committal proceedings) 15153 This section lays down four basic requirements for the admission of a witness statement: (1) the statement purports to have been signed made by the person who is named as the maker; (2) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief; (3) before the hearing at which the statement is tendered in evidence, a copy of the statement is served by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (4) none of the other parties or their solicitors, within 14 days from the service of the copy of the statement, serves a notice on the party so proposing, objecting to the statement being tendered in evidence under this section. By agreement a statement may be read in the trial without the necessity of having to serve prior notice. The court may of its own motion or upon the application of any party to the proceedings call for the attendance of the witness to give evidence. The statement of a witness is subject to the rules of evidence to the same extent as if he had given evidence from the witness box. His statement, that part which is admissible in evidence, shall, unless the court directs otherwise, be read out in open court. The statement now becomes an exhibit and is evidence of what is stated therein. What weight is attached to such evidence is a matter for the jury.

Section 65C
It is now commonplace for much of the evidence proposed to be adduced in a crim- 15154 inal trial to be reduced into writing and presented to the court and or jury as Admitted

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Facts. Facts so admitted are deemed to be conclusively proved and shall be evidence in any appeal or retrial. It has been held that where there is other evidence which appears to be inconsistent with the admitted fact, the admitted fact shall prevail: R v Chan Chunman [1986] HKLY 210. Pursuant to section 65C(4) an admission may be withdrawn only by leave of the court. The court will not give leave merely because it has become apparent, in retrospect, to the party that his admission may now be inconvenient. In R v Lee Shek-ching [1987] HKLR 31, Huggins VP stated that the gravity of the offence charged should not be relevant, nor the fact that the prosecution has not been embarrassed by this change of tack. The learned appeal judge, though agreeing that the discretion of the trial judge should remain unfettered, appears to have declined to accept the argument that an application to withdraw an admission was analogous to a withdrawal of a plea of guilty. In an earlier appeal the Court of Appeal considered that it could be a relevant factor: R v Hunt [1974] HKLR 31. Inferences may be drawn from admitted facts, just as from any other evidence. The party making the admission may supplement it by other evidence. On the other hand, the admitting party cannot adduce evidence which is inconsistent with his admission: R v Chan Chun-man [1986] HKLY 210; R v Tam Wing-Kwong [1988] 2 HKLR 313. It is important to note that any admitted fact must be one of which oral evidence could have been given: section 65C(1). If the admissions are agreed prior to the hearing, they must be put into writing. Though, strictly speaking, an admission made during a trial can be made orally, it is customary for such admissions to be reduced into writing. Admitted Facts should be signed either by the party himself or his legal representative, in the case of a corporation, by a director or authorised manager, secretary or clerk. A schedule of admitted facts may be made in either official language. It is must also be approved by the partys legal representative, (if he is represented), either before or during the hearing. There is authority to the effect that an unrepresented defendant may make admissions under this provision: R v Lee Man-woo [1974] HKLR 331. In criminal proceedings only the prosecutor and the defendant are entitled to make admissions under this section.

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