2.1 The
nature of confession statements is set out in a chapter entitled “A
Layman’s Introduction to the Admissibility of Confession
Statements” in the Commission’s earlier
Report:[4]
“When,
in the course of an investigation into a criminal offence, a suspect has made a
statement to the police tending to show that he has committed that offence, the
statement is known as a confession. If the suspect is subsequently charged with
committing the offence, the prosecution may wish to use that statement as
evidence in support of its case against the defendant. However, before the
prosecution can use that statement as evidence against a defendant who objects
to it being put in evidence, the trial judge has to decide whether to allow the
prosecution to do so, or, as lawyers would say, the trial judge has to rule
whether the statement is admissible in evidence. In order to be able to rule
that the confession is admissible, the judge has to be satisfied that the
confession was made by the defendant voluntarily. He decides that question
after hearing evidence from witnesses about the circumstances in which the
defendant made the confession. If, after hearing that evidence, the judge is
not entirely satisfied that the confession was made voluntarily, he has to rule
that the confession is inadmissible in evidence. The prosecution cannot use it
as evidence against the defendant, and what may be a very important part of its
case against him is lost.”
2.2 In a
strict sense, the words “admission” and “confession” are
slightly different in meaning. However, the law relating to their admissibility
in evidence is the same[5] and for the
purposes of this report we use the term “confession” to include an
admission.
2.3 In essence, a confession can be
made in writing or orally by a suspect to anyone. However, when it is made to a
“person in authority”[6]
such as a law enforcement officer involved in the investigation or the interview
of a suspect, the confession should be preceded by a caution, as a suspect is
entitled to remain silent on matters that might incriminate him. In any event,
the content of this statement can be either partially or wholly incriminating in
implicating the suspect in the offence(s) subsequently laid against him. In
certain circumstances, the gestures, actions, conduct or demeanour (or, indeed,
any reaction) of a suspect in the face of questions put to him could also amount
to a confession.
2.4 In a trial, the
prosecution may wish to adduce a confession as evidence of the guilt of an
accused. In general, a confession can only be admitted in evidence if the trial
judge is of the opinion that the statement has been obtained from the accused
“voluntarily”.
A definition of
“voluntariness”
2.5 It is a fundamental principle that for a
confession to be admitted as evidence for the jury’s consideration, the
trial judge must be sure, or be satisfied beyond reasonable doubt in a trial
within a trial (known by lawyers as a voir dire), that the confession was
made “voluntarily” by the
defendant.
2.6 In Ibrahim v R, Lord
Sumner defined the concept of “voluntariness” as
follows:
“It has long been established
as a positive rule of English Criminal law, that no statement by the accused is
admissible 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.”[7]
2.7 This
definition of Lord Sumner was followed by the House of Lords in Commissioners
of Customs & Excise v Harz &
Power[8]and DPP v Ping
Lin.[9]In R v
Sang,[10] Lord Salmon held that
a confession obtained as a result of threats or promises would be unfair to the
accused. A confession statement obtained in such a way would be inadmissible as
evidence.
2.8 These judicial decisions are
followed in Hong Kong and it is clear that “a statement is involuntary,
and so inadmissible, if it was obtained by threats, promises, oppression or
‘deception’”.[11] 2.9 The
test for “voluntariness” set out in the line of authorities quoted
above is reflected in the Rules and Directions. Note (e) to the Rules and
Directions provides as follows:
“...
it is a fundamental condition of the admissibility in 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.”
2.10 In short, a
confession obtained by force, threat of force, hope of advantage or oppression
exercised or held out by a person in authority such as a police officer involved
in the investigation or the interview of a suspect will render the statement
inadmissible.
The court’s
residual discretionary power
2.11 Even where a confession is voluntarily made, a
trial judge may exercise his residual discretionary power to refuse to admit the
confession if he is of the opinion that on all the evidence before him, or in
the light of all the material circumstances, it would be unfair to the defendant
to admit the confession in evidence. In R v Sang, Lord Diplock explained
how this discretion should be
exercised:
“So I would hold that there
has now developed a general rule of practice whereby in a trial by jury the
judge has a discretion to exclude evidence which, though technically admissible,
would probably have a prejudicial influence on the minds of the jury, which
would be out of proportion to its true evidential
value.”[12]
2.12 In
the same judgment, however, Lord Diplock held that this discretion should seldom
be exercised:
“... the function of the
judge at a criminal trial as respects the admissibility of evidence is to ensure
that the accused has a fair trial according to law. It is no part of a
judge’s 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 was obtained illegally there will be a remedy in civil
law; if it was 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. A fair trial according to law involves
... that there should be excluded from the jury information about the accused
which is likely to have an influence on their minds prejudicial to the accused
which is out of proportion to the true probative value of admissible evidence
conveying that
information.”[13]
He
went on:
“... the fairness of a trial
according to law is not all one-sided; it requires that those who are
undoubtedly guilty should be convicted as well as that those about whose guilt
there is any reasonable doubt should be acquitted. However much the judge may
dislike the way in which a particular piece of evidence was obtained before
proceedings were commenced, if it is admissible evidence probative of the
accused’s guilt it is no part of his judicial function to exclude it for
this
reason.”[14]
2.13 The
principle that such a residual discretion of the judge should be sparingly used
was again restated in R v Lam
Yip-ying:
“The power to exclude
confessions on the ground of unfairness should seldom be employed. First,
because it involves the judge in withdrawing relevant and admissible evidence
from the jury, whose function it is to weigh such evidence. Secondly, because
in almost all cases, the kind of conduct which would constitute
‘unfairness’ should already have excluded the confession as
involuntary.”[15]
2.14 Although
a breach of the various provisions of the Rules and Directions would not
automatically lead to the exclusion of a confession (as the Rules and Directions
are rules of practice for the guidance of law enforcement officers, rather than
rules of law), that breach might be a factor to be considered by the trial judge
in any exercise of his discretion to exclude the confession.
The admissibility of a
confession and the “voir
dire procedure”
2.15 We turn now to consider the relevant procedure
currently adopted in the Court of First Instance of the High Court where an
accused is tried by a judge and a jury. Where the prosecution has indicated its
intention to produce a confession in evidence, it is the duty of the prosecution
to prove beyond reasonable doubt that the confession was obtained voluntarily.
In R v CHU Chi-kwong, it was held
that:
“... the burden of proof lay
throughout on the prosecution to prove that the alleged confession was
voluntary; and it was open to an accused, even where the accused denied making
any confession, to ask the trial judge to rule (either in a voir dire or during
the trial) on the admissibility of the alleged
confession.”[16]
2.16 In
the case where the admissibility of the confession statement is not objected to
or challenged by the defence, the statement would generally be admitted once the
relevant prosecution witness, usually the statement taker, has testified to the
voluntariness of the statement. The usual ground for objection by the defence
is that the statement was not obtained voluntarily from the accused. The
question of whether or not the statement is admissible is a question of law, and
as such must be decided by the judge, rather than by the jury, who are masters
of fact. Admissibility is normally determined in the absence of the jury
following a voir dire, and this procedure is outlined in the
Commission’s earlier
Report:
“Where a criminal trial is
being conducted before a jury and the judge has to decide whether a confession
is admissible, he hears evidence on the matter and makes his ruling normally in
the absence of the jury. When that question is about to arise in the course of
the trial, the judge, at the request or with the consent of the defence, asks
the jury to withdraw and to remain out of court until he has made his ruling.
If, after hearing the evidence on the matter, the judge rules that the
confession is admissible, the jury is asked to return to court and the
confession is put before them for their consideration as part of the evidence
against the defendant. If on the other hand the judge rules that the confession
is inadmissible, the jury, on their return to court, is not told anything about
a confession having been made by the defendant. The judge has ruled that the
confession cannot be used in evidence so the jury cannot be allowed to consider
it or even know that a confession was made. Lawyers call that part of the
proceedings when the jury is out of court ‘a trial within a trial’
or ‘a voir
dire’.”[17]
2.17 The
practice was summarised by the Privy Council in Ajodha v The State
(P.C.):
“In a simple case, where
the sole issue is whether the statement, admittedly made by the accused, was
voluntary or not, it is a commonplace that the judge first decides that issue
himself, having heard evidence on the voir dire, normally in the absence of the
jury. If he rules in favour of admissibility, the jury will then normally hear
exactly the same evidence and decide essentially the same issue albeit not as a
test of admissibility but as a criterion of the weight and value, if any, of the
statement as evidence of the guilt of the
accused.”[18]
2.18 Thus, when the admissibility of a
confession is challenged or objected to by the defence, the prosecution must
adduce evidence by calling witnesses to testify as to the circumstances leading
to the giving of the confession statement. On hearing all the evidence relating
to the circumstances in which the defendant made the confession, the trial judge
can proceed to rule on the admissibility of the confession. As explained
earlier, a confession will be ruled inadmissible if the trial judge is of the
opinion that the prosecution has failed to prove beyond reasonable doubt that
the confession was given voluntarily by the accused. On the other hand, if the
trial judge is satisfied that the confession was given voluntarily by the
accused, it would generally be admitted in evidence against the accused, save
where the judge has exercised his residual discretionary power to exclude
otherwise admissible evidence.
2.19 The reason
for excluding the jury from court while the trial judge is hearing evidence
relevant to admissibility is that:
“If
members of the jury remained in court, they would learn that the defendant had
made a confession and perhaps also what he had said in it. If the judge then
ruled that the confession was inadmissible, he would have to tell them to ignore
the confession when they came to decide whether the defendant was guilty or not.
The jury would find it extremely difficult to put out of their minds the fact
that the defendant had confessed. Even if each one of them did manage to put
that fact out of his mind, there would always remain the lurking suspicion that
the jury had taken into account against the defendant a matter which was not
allowed to form part of the prosecution’s case against
him.”[19]
2.20 Normally,
a voir dire on the “special issue” of admissibility of a
confession statementis held before a jury is empanelled as the defence
would in most cases indicate in the pre-trial review its intention to object.
However, there is nothing to prevent the holding of a voir dire after the
jury has been empanelled.
2.21 In a voir
dire, only matters relevant to the circumstances in which the defendant had
made the confession will be heard. In other words, only evidence relevant to
the “special issue” as opposed to the “general issue” of
guilt or innocence of the accused will be heard by the trial judge in the
absence of the jury. If the confession is ruled admissible, the witnesses
testify again in the main trial in the presence of the jury on matters leading
to the obtaining of the confession. The jury then decides on the weight to be
attached to this testimony, the credibility of each witness, and the truth of
the confession before they finally decide on the guilt or innocence of the
accused. The defence is entitled to lead evidence in the main trial before the
jury that the accused had not in fact made the statement, or that its content
was fabricated by the law enforcement officer, or that the statement made by the
defendant was untrue as he was compelled to give the statement under threat,
force or inducement. In these circumstances, evidence relevant to the
admissibility of the confession which was previously presented by witnesses in
the voir dire will have to be adduced again for the consideration of the
jury. On this occasion, however, the question to be determined is not the
admissibility of the statement (which is a decision for the judge alone)
but the weight to be attached to the statement. The result,
nevertheless, is that the same witnesses must be called twice to give
substantially the same evidence: once in the voir dire and again in the
trial proper. It was the consequent lengthening of the trial process which
prompted an examination of the problem by the Commission and the proposals
contained in the Commission’s earlier
Report.
2.22 The voir dire conducted in
the absence of the jury is not a mandatory procedure. On the defence’s
request, the question of admissibility of a confession can be dealt with in the
presence of the jury, although the issue of admissibility (being a question of
law) remains to be decided by the judge. In Ajodha v The State, it was
held that:
“Though the case for the
defence raises an issue as to the voluntariness of a statement in accordance
with the principles indicated earlier in this judgment, defending counsel may
for tactical reasons prefer that the evidence bearing on that issue be heard
before the jury, with a single cross-examination of the witnesses on both sides,
even though this means that the jury hear the impugned statement whether
admissible or not. If the defence adopts this tactic, it will be open to
defending counsel to submit at the close of the evidence that, if the judge
doubts the voluntariness of the statement, he should direct the jury to
disregard it, or, if the statement is essential to sustain the prosecution case,
direct an acquittal. Even in the absence of such a submission, if the judge
himself forms the view that the voluntariness of the statement is in doubt, he
should take the like action proprio
motu.”[20]
However,
it is rare for a request to be made to hold a voir dire in the presence
of the jury and the usual practice is for the voir dire to beconducted in their absence.
The admissibility of a
confession and the “alternative procedure”
2.23 As mentioned earlier in this chapter, the main
reason for excluding the jury from the voir dire proceedings is the
concern that if they remain in court when the issue of admissibility is heard,
and the confession is subsequently ruled inadmissible, they may find it
extremely difficult to put out of their minds the fact that the defendant had
confessed. However, for cases heard and adjudicated by a single judge without a
jury, the situation is different. The magistrates’ courts and the
District Court in Hong Kong are courts presided over by a single judge. In
these courts, the trial magistrates and judges are judges both of law and facts.
They are professional judges and are presumed to be able to put out of their
minds the fact that a defendant had confessed should they rule on hearing the
relevant evidence that the confession is inadmissible as it was obtained
involuntarily. A special procedure called the “alternative
procedure” is generally adopted in these courts which avoids the need to
call the same witness to give evidence twice where a confession is challenged.
Although parties in these courts are still entitled to have the special issue of
admissibility of a confession dealt with in a voir dire, the prevailing
practice is that most cases are dealt with by way of the “alternative
procedure”.
2.24 The “alternative
procedure” was approved in Ho Yiu-fai & others v
R.[21] Under this
procedure, the judge or the magistrate records any objection to the admission of
the confession at the time when the prosecution seeks to adduce it in evidence.
The confession is marked “provisional prosecution exhibit” and the
magistrate or the judge then proceeds to hear evidence from all prosecution
witnesses, both on the special issue of admissibility of the confession and on
the general issue of the guilt or innocence of the accused. The prosecution
witnesses are then cross-examined by the defence on matters arising from both
issues. After the prosecution witnesses have completed their testimony on both
issues, the magistrate or the judge proceeds to rule on whether there is a case
to answer for the accused in respect of the special issue of admissibility. If
there is a case to answer on the special issue, the accused can elect to give
evidence or to call upon his own witnesses to give evidence. However, at this
stage, the evidence to be given by the accused or his witnesses, both in
examination-in-chief and cross-examination, is restricted to matters relevant to
the special issue of admissibility of the confession and does not extend to the
general issue of guilt or innocence. When the defence evidence on the special
issue has been heard, the magistrate or the judge rules on the question of
admissibility. If the confession is ruled admissible, it is admitted in
evidence as a “prosecution exhibit”. The prosecution then formally
closes its case and the trial continues in the normal way, with the accused
electing whether or not he and any defence witnesses will give evidence on
matters relating to the general issue. Bruce and McCoy
explain:
“Following the ruling on the
admissibility of the admission or confession in cases using the alternative
procedure, the case for the prosecution closes. From that point, the procedure
of the trial is the same as a normal criminal trial. The only exception is that
a practice has developed that if the accused or a witness called by the accused
gave evidence on the issue of admissibility of the admission or confession, and
again gives evidence on the general issue, the court simply allows the accused
or the witness called by him to confirm their earlier testimony rather than
having the evidence given on the admissibility issue repeated again. However,
that renders him liable to further cross-examination either on matters germane
to the facts and circumstances concerning the special issue as well as topics
relevant to the general issue. If the accused does not choose to testify in the
general issue the testimony he gave in the alternative procedure is not
available on the general
issue.”[22]
[4]
At page
4. [5]
Bruce and McCoy, Criminal Evidence in
Hong Kong (Issue 7, 1999), at A[1] of Division V. According to Bruce and
McCoy, the words admission and confession are often treated as having a slightly
different meaning. “Confession” is often treated as a full and
detailed
admission. [6] Persons in authority include
employers, persons arresting the suspect, police and other investigating officer
etc. [7] [1914]
AC 559, at 609.
[8] [1967] 1 AC
760. [9] [1976] AC
574. [10] [1980] AC 402, at
445. [11]R v Lam Yip-ying [1984] HKLR
419. [12] Cited above, at
434-435. [13] Cited above, at
436-437. [14]
Cited above, at
436-437. [15] [1984] HKLR 419, at
424. [16] [1995] 1 HKCLR 327, at
327. [17] At pages
4-5. [18] [1982]
AC 204, at
221. [19] Page 5 of the
Report. [20] Cited above, at
223. [21] [1970] HKLR
415. [22]
Bruce and McCoy, Criminal Evidence in Hong Kong (Issue 8, 1999), at
[953] of Division V.
