The Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings

This consultation paper can be found on the Internet at: http://www.info.gov.hk during the consultation period.

Mr Peter Kwok Bun SIT, Government Counsel, was principally
responsible for the writing of this consultation paper.

This Consultation Paper has been prepared by the Law Reform Commission. It does not represent the final views of the Law Reform Commission, and is circulated for comment and criticism only.

The Law Reform Commission would welcome submissions on the proposals contained in this Consultation Paper. You are invited to make your views known to the Law Reform Commission, in writing, by 28 February 1999. All correspondence should be addressed to :

It may be helpful for the Commission, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

Anyone who responds to this consultation paper will be acknowledged by name in the subsequent report. If an acknowledgement is not desired, please indicate so in your response.

THE LAW REFORM COMMISSION
OF HONG KONG

CONSULTATION PAPER

Chapter	*Page*

Introduction	1

Background	1
Video recording of interviews	2
A re-examination of procedural reform	4

*1. Procedures governing the admissibility of admissions and confessions: the “voir dire” and the “alternative procedure”*	5

A definition of “voluntariness”	6
The court’s residual discretionary power	7
The admissibility of a confession and the “voir dire” procedure	8
The admissibility of a confession and the “alternative procedure”	11

2. Comparative study of law and practice in other jurisdictions	13

Introduction	13
Australia	13
Canada	16
England and Wales	16
Malaysia	18
New Zealand	20
Scotland	21
Singapore	23
South Africa	23

3. Options for reform	25

Reasons for reform	25
Arguments in favour of continued use of the voir dire	28
Options for reform	30
Option A - Granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury	31
Option B - Making the determination of the issue of admissibility of confession statements a matter for the jury in all cases	33
Option C - Granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury, coupled with a lowering of the standard of proof for determining voluntariness to that of civil proceedings	34
Changing the standard of proof	35
Conclusion	36

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

CONSULTATION PAPER ON

THE PROCEDURE GOVERNING THE ADMISSIBILITY
OF CONFESSION STATEMENTS
IN CRIMINAL PROCEEDINGS

THE LAW REFORM COMMISSION
OF HONG KONG

CONSULTATION PAPER

CONTENTS

Chapter

Page

Hong Kong Law Reform Commission

THE LAW REFORM COMMISSION OF HONG KONG

CONSULTATION PAPER ON

THE LAW REFORM COMMISSION OF HONG KONG

CONSULTATION PAPER

CONTENTS

Chapter

Page

THE PROCEDURE GOVERNING THE ADMISSIBILITY
OF CONFESSION STATEMENTS
IN CRIMINAL PROCEEDINGS

THE LAW REFORM COMMISSION
OF HONG KONG