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Annex 2
Suggestions made by
those commenting on the consultation paper
(1) Greater use of audio or video recording of
interviews
A number of respondents argued that the greater
use of audio or video recording of interviews would protect officers of the law
enforcement agencies from unwarranted allegations of improper conduct at the
time when the interview was conducted, while also protecting the accused from
abuse by the law enforcement
agencies.
(2) Summaries of
video-recorded interviews
The ICAC
suggested that administrative or legislative arrangements should be introduced
to require the defence actively to negotiate with the prosecution to produce a
mutually acceptable summary of the video-recorded interview for use at the
trial. The ICAC argued that such measures would bring about a substantial
saving of resources necessary to transcribe and translate the whole of the
video-recorded interview.
(3) Earlier
defence disclosure of allegations of
improprieties
Suggestions were made that
the defence should make early disclosure of all issues relevant to the
admissibility of the any confession statement. Matters to be disclosed should
include details of any defence allegations of improper circumstances relating to
the taking of the confession, medical reports etc. Early disclosure would
enable both sides to prepare fully for the hearing and avoid any wastage of
court time through adjournment of the
proceedings.
(4) Revisiting the
recommendations contained in the Commission’s 1985 Report
A number of respondents suggested that
the proposals and recommendations made in the 1985 Report on Confession
Statements and their Admissibility in Criminal Proceedings should be
revisited, and argued that these proposals and recommendations would provide
additional safeguards to protect the rights of the
accused.
(5) Adoption of provisions
similar to the English Police and Criminal Evidence Act 1984
(PACE)
Enactment in Hong Kong of
provisions similar to those in PACE was favoured by a number of respondents,
together with adoption of the Codes of Practice contained in
PACE.
(6) Changing the wording currently used to caution
suspects
It was suggested by some respondents that the
wording of the present caution should be changed, along the lines provided in
Code E of the Codes of Practice at section 60 of PACE:
“You do not have to say anything.
But it may harm your defence if you do not mention when questioned something
which you later rely on in court. Anything you do say may be given in
evidence.”
(7) The creation of an independent organisation to
monitor the Police
Some respondents argued that an independent body
should be established to replace the present Complaints Against the Police
Office.
(8) Changing the police “pre-interview”
procedure
To provide additional protection to arrested
persons from possible abuse by law enforcement officers, it was suggested by
some respondents that an arrested person should be first interviewed in private
by a “duty defence lawyer” before he is interviewed by the police.
The interview by the police should then be conducted in the presence of the
lawyer.
(9) Legal empowerment of judges to reject a
confession
It was suggested that the Rules and Directions for
the Questioning of Suspects and the Taking of Statements currently used in Hong
Kong should be laid before the Legislative Council and approved, or referred to
the Court of Appeal by the Secretary for Justice, to empower judges with clear
authority to reject any statement where there has been a substantive breach of
the Rules and Directions.(10) Preparation
of transcript by persons outside law enforcement
agencies To avoid any possible conflict
of interest, it was suggested that the transcript of a video-recorded interview
should be prepared by persons outside law enforcement agencies.
(11) Admitting statement-taker’s
statement in evidence under section 65B of the Criminal Procedure Ordinance (Cap
221) It was suggested that court time
could be saved by amending section 65B of the Criminal Procedure Ordinance to
allow the admission of the written statements of law enforcement officers,
subject to cross-examination.
(12) More stringent rules on particulars of
objections
In order to avoid groundless allegations
concerning the admissibility of a confession statement, it was suggested that
more stringent rules as to the particulars of objections should be designed and
observed.
(13) Better use of the
pre-trial review (PTR) procedure
Suggestions were made that court time
could be saved by a more effective use of the PTR procedure. It was suggested
that alternatives to requiring a full transcript of a video-recorded interview
should be discussed and agreed by the parties at the PTR. Officers relevant to
the voir dire should be identified at the PTR, and the judge should
ascertain at the PTR whether the defence would opt to run the voir dire
before the jury. The defence should elect at the PTR for the alternative
procedure, or for a separate voir dire.
(14) A new system to enhance protection for arrested
persons
It was suggested that a new system to enhance
protection for arrested persons should be developed in consultation with the law
enforcement agencies, the Bar Association and the Law Society. The system
should then be tested over a trial period before deciding whether or not to
proceed with any of the options proposed in the consultation paper.