Hong Kong Law Reform Commission

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THE LAW REFORM COMMISSION OF HONG KONG

REPORT ON

THE PROCEDURE GOVERNING THE ADMISSIBILITY

OF CONFESSION STATEMENTS

IN CRIMINAL PROCEEDINGS

This report can be found on the Internet at:
http://www.info.gov.hk/hkreform


Mr Peter K B Sit, Senior Government Counsel, was principally responsible for the writing of this Commission report.

CONTENTS

Preface

1. A short history of the reference

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

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

3. Comparative study of law and practice in other jurisdictions

Australia
Canada
England and Wales
Malaysia
New Zealand
Scotland
Singapore
South Africa

4. Options for reform

Arguments in favour of reform
Arguments in favour of continued use of the voir dire
The options for reform
Option A - Granting the court a discretion to direct that the question of admissibility be dealt with in the presence of the jury
Option B - Making the determination of the issue of admissibility of confession statements a matter for the jury in all cases
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

5. Our conclusions and recommendations

Reform of the voir dire
Other recommendations

Annex 1

List of those who commented on the consultation paper

Annex 2

Suggestions made by those commenting on the consultation paper

The Law Reform Commission was established by the Executive Council in January 1980 to consider such reforms of the laws of Hong Kong as may be referred to it by the Secretary for Justice or the Chief Justice.

The members of the Commission at present are:

The Hon Ms Elsie Leung Oi-sie, JP,
Secretary for Justice (Chairman)
The Hon Mr Justice Andrew Li, Chief Justice
Mr Tony Yen, JP, Law Draftsman
Mr Payson Cha, JP
Mr Eric Cheung
Mr Victor Chu Lap-lik
Mr Alan Hoo, SC
Mr Kwong Chi-kin
Dr Lawrence Lai, JP
The Hon Mrs Sophie Leung, JP
Professor Felice Lieh Mak, JP
The Hon Mr Justice Henry Litton,
Permanent Judge of the Court of
Final Appeal
Mr David Smith
Professor Raymond Wacks
Mr Roderick B Woo, JP

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House
39 Gloucester Road
Wanchai
Hong Kong

Telephone: 2528 0472
Fax: 2865 2902
E-mail: hklrc@hkreform.gcn.gov.hk
Website: http://www.info.gov.hk/hkreform