The procedure governing the admissibility of confession statements in criminal proceedings - [2000] HKLRC 2 (July 2000) - Chapter 5

5.1 It is clear from the previous chapter that the general sentiment of the majority of those who commented on our consultation paper is against changing the present voir dire procedure governing the admissibility of confession statements. We note in particular that a substantial proportion of those legal practitioners who responded object to any of the options proposed. The Law Society, the Bar, the Prosecutions Division of the Department of Justice, the Legal Aid Department, JUSTICE, the Hong Kong Human Rights Monitor and the Hong Kong Young Legal Professionals Association were amongst those who rejected the three options for reform proposed.

5.2 In contrast, the ICAC, the Immigration Department, the Police and the Customs and Excise Department all supported Option B, as they believe that a properly directed jury should be capable of making an objective assessment of the voluntariness and fairness of a confession, without being tainted by knowledge of the issues when the confession is subsequently ruled inadmissible. There was no reason to suppose that a jury should be incapable of putting out from their mind evidence of a confession which they have themselves ruled inadmissible.

5.3 CAPO supported Option C, as they believe that the lowering of the standard of proof to that adopted in civil proceedings would not adversely affect the requirement that a confession must be proved to have been made voluntarily before it can be admitted in evidence.

5.4 We have considered carefully the views expressed by all those who responded to the consultation paper. In terms of pure numbers, those who are against change along the lines proposed in the consultation paper are in a comfortable majority. In reaching our conclusions, however, we have been persuaded by the strength of the arguments advanced by those who oppose change, rather than by mere weight of numbers. We agree that the primary consideration must be to ensure that the fairness of the present criminal process (and the protection it provides for an accused person against abuse) is not jeopardised by measures aimed at greater efficiency. We are persuaded that the voir dire provides an important protection to the rights of the accused, and acts as a disincentive to abuse by members of the law enforcement agencies. While there are undoubtedly adverse cost and efficiency implications of the present procedure for determining admissibility of confession statements, those must be balanced with the need to adequately protect an accused person’s rights.

5.5 We are further convinced by the suggestion made by a number of respondents that reform of the procedure for determining the admissibility of confession statements is to look at the problem from the wrong end: if adequate mechanisms are built in to prevent abuse at the time the confession is made, the need to rely on the voir dire becomes academic. With that in mind, we note the significant reduction in the number of challenges to confession statements following the introduction of video recording, and it seems reasonable to suppose that that trend will continue as the use of video recording becomes more widespread.

5.6 We would observe also in this regard that the adoption of the recommendations which we put forward in two of our earlier reports (on Confessions and Arrest) would in our view have put in place procedures which would have effectively removed the need for the voir dire in all but exceptional cases by:

a) establishing a regulated framework for the supervision and treatment of persons in custody (the Arrest report); and

b) providing an independent tribunal at an early stage of the criminal process before which an accused person could raise any complaint of improper conduct on the part of the law enforcement agencies in the taking of a confession statement (the Confession report).

It is to be regretted that the Administration has rejected the recommendations in one report (Confessions) and failed to implement key recommendations of the other (Arrest). We shall return to this later in this chapter.

5.7 We accept the force of the arguments which have been advanced against each of the options for reform contained in our consultation paper. We have accordingly concluded that none of these options should be adopted, and we recommend that the present voir dire procedure governing the admissibility of confession statements should be retained.

Other recommendations

Greater use of audio or video recording of interviews

5.9 In Chapter 1 of this report, mention was made of the positive effect of videotaping interviews conducted by the Police and ICAC. It is clear from the experience of the Police and ICAC that the use of videotape has proved effective in reducing the number of challenges to the admissibility of confession statements.

5.10 The practical procedure undertaken when an interview is videotaped minimises the likelihood that allegations of impropriety will be made at a later stage. At the start of a videotape interview, the interviewing officer will record on the videotape the location of the interview room, the date and time of the interview, and the identity of the interviewing officer and any other officers present in the interview room. The interviewee’s consent to be video-interviewed without the presence of a legal representative will also be recorded on video. The interviewee will be told that three tapes will be made of the interview, one of which will be given to him or his legal representative. The interviewing officer will then caution the interviewee and remind him that he is not obliged to say anything unless he wishes to, and that whatever he says may be given in evidence. If there is a short break during the interview, the recording equipment will be kept running. Where the break is a long one, such as a meal break, the interview will be suspended and the time of suspension will be recorded by the interviewing officer on the tape. The interview tape will then be removed. When the interview recommences, a new tape will be used for the continued interview. Again, the interviewing officer will record on the tape the time of commencement of the continued interview.

5.11 If a new tape is required, the interviewing officer will inform the interviewee and record the time of cessation of recording on the first tape and the time of commencement of recording on the second tape. At the end of the interview, the interviewing officer will ask if there is anything the interviewee wishes to clarify or to add to his statement. The concluding time of the interview will be stated and recorded on video.

5.12 The Police themselves support the widespread use of videotaping of interviews, and the number of interview rooms with videotape facilities at police stations has increased in recent years to the current total of 63. These are used to interview persons whose cases are likely to be heard in the District Court or the Court of First Instance of the High Court. With a further of seven interview rooms planned by April 2000, each major police station will soon be provided with at least one such facility.

5.13 Although the proposal to videotape interviews of suspects is unlikely to fully cure the problems arising from the taking of confession statements, we are convinced that the number of challenges to the admissibility of confession statements could be reduced as a result, without diminishing the protection rightly given to the accused.

5.14 For these reasons, we recommend the greater use of video recording of interviews. The use of videotape would be in the best interests of both the prosecution and the defence. On the one hand, officers of the law enforcement agencies would be protected from unwarranted allegations of wrongdoing at the time when the interview took place. The accused, in turn, would be protected from improper conduct on the part of law enforcement officers during the interview.

5.15 We wish to commend the Police for their extension of videotaping facilities to an increased number of police stations and recommend that this process be continued further.

Adoption of provisions similar to the Police and Criminal Evidence Act 1984

5.16 While there is empirical evidence that the wider use of videotape has reduced the number of challenges to confession statements, no one would suggest that such challenges will disappear altogether. In giving its support to the wider videotaping of interviews, the Law Society, for instance, cautions that videotaping interviews might not be a total solution to the problem as it is still possible for a suspect to be forced, threatened, induced or improperly treated by the law enforcement agency prior to the commencement of the interview. Such improprieties are, of course, unlikely to be evident from the video recording.

5.17 We believe that this particular problem could be addressed by the introduction in Hong Kong of the relevant provisions of the English Police and Criminal Evidence Act 1984 (PACE). Our Report on Arrest (the Arrest Report) published in November 1992 examined in detail the provisions of PACE governing the powers to stop, search and arrest, and the rules regulating the questioning and treatment of suspects by the Police in England.

5.18 A number of those who responded to the consultation paper referred with approval to the changes which had been introduced in England and Wales by PACE and suggested that the introduction in Hong Kong of provisions similar to those in PACE would enhance the legitimate rights of the accused and render maltreatment of suspects less likely to occur. The result, suggest these respondents, would be a substantial reduction in the number of challenges to the admissibility of confession statements.

5.19 Specifically, it was suggested that the relatively low rate of voir dire proceedings in England might be attributable to the enactment of PACE which, inter alia, had replaced the vague common law concept of “voluntariness” by a statutory code of practice which strictly controls the ways arrested persons are handled as well as the manner in which interviews of those arrested are conducted. In Hong Kong, the Rules and Directions for the Questioning of Suspects and the Taking of Statements offer guidance to the law enforcement agencies in this respect, but they are not mandatory and a breach would not necessarily render a confession inadmissible. The introduction of a statutory code of practice modelled on PACE would avoid this problem, since any significant breach of the code would result in the confession being rejected. It was argued that in England the rate of challenges to the admissibility of confession statements is far lower than in Hong Kong because the defence in England know that if the code has been strictly followed, there is little point in contesting admissibility. The practical effect, it is suggested, is that under such a clear system voir dire proceedings have virtually disappeared.

5.20 Section 35 of PACE introduced the concept of “designated police stations”. These are police stations which the chief officer of police has determined have adequate facilities for the purpose of detaining arrested persons. Each designated police station must have one or more “custody officers”. A custody officer must be of at least the rank of sergeant (section 36(3)). His duties are set out in sections 37 and 38 of PACE. In a nutshell, the custody officer must ensure that those in detention are treated in accordance with the Act and the related Codes of Practice, both as regards conditions and questioning and charging. A detailed written custody record must be kept in respect of each step taken in the prisoner’s period of detention. Section 40 provides that periodic reviews of the prisoner’s detention must be carried out. Where the prisoner has been arrested but not yet charged, the review must be carried out by an officer of at least the rank of inspector who has not been directly involved in the investigation.

5.21 Section 58 of PACE provides that a person arrested and held in police custody is entitled to consult a solicitor privately at any time. The Arrest Report described the section as “arguably the most important protection conferred by PACE.”^[71] A request under section 58 must be permitted as soon as is practicable, save where the offence alleged is a serious arrestable offence and an officer of at least the rank of superintendent has authorised the suspension of that right. Where the offences are not serious arrestable offences, section 58 provides that the right of a person in police custody to consult a solicitor privately is unqualified.

5.22 We note that while some reforms have been introduced by the Administration in Hong Kong administratively since the publication of the Arrest Report, and there are plans to introduce further legislative changes, key elements of the PACE scheme remain unimplemented. We agree with the views of those who responded to our consultation paper and urged full implementation of the Arrest Report’s recommendations. In our view, the adoption of those reforms would significantly reduce the risk of abuse by law enforcement agencies, while at the same time minimising the likelihood of spurious complaints by detained persons of mistreatment by law enforcement officers. The result would, we believe, be a reduction in the number of challenges to admissibility at trial which necessitate a voir dire.

5.23 We accordingly urge the Administration to implement in full and without further delay the recommendations of our earlier Arrest Report.

Summaries of interviews

5.24 The consultation paper referred to a particular concern regarding videotaped interviews which had been raised by the ICAC. The ICAC had referred to the insistence of defence counsel on the provision of full transcripts of the interview in every case. This represents (to quote the ICAC) a “massive drain on resources”. According to the ICAC^[72], a one-hour videotape will normally take an average of three working days to transcribe, and four working days to translate. Time is also needed for the translated transcript to be certified by the Judiciary's Translation/Certification Section, a process which may take up to 14 working days for magistrates’ court cases and up to 28 working days for District Court cases. The ICAC further pointed out that a one-hour interview would generate on average about 125 pages of typewritten transcript. Before transcription, the transcriber first needs to read an interview summary to acquaint himself with the necessary background information. Periodically during the transcription process, he will need to refer to the summary to ensure accuracy, and may occasionally need to confer with the interviewing officer to clarify any doubt or confusion. When words spoken during the interview are indistinct, or where more than one person speaks at a time, it can be difficult to determine precisely what was said, or to whom. The tape has to be played back several times to help identifying who said what, and to whom. The translation process is equally time consuming.

5.25 In the opinion of the ICAC, the problem caused by the substantial amount of time needed to transcribe and translate videotape interviews was not insurmountable but required the co-operation of the legal profession:

“Once a video interview has been conducted, a copy of the tape is supplied to the interviewee or his legal representative. If and when a decision is taken to prosecute the interviewee, investigators prepare a summary of the video interview, only including verbatim dialogue in respect of parts of the interview they consider to be incriminating, contentious or otherwise particularly material. After consideration by Government Counsel, a copy of the summary is served on the defence who are invited to either agree it, or make proposals for revision to include additional verbatim dialogue which they consider to be of particular relevance. The idea is that, through negotiation, it should be possible for both prosecution and defence to arrive at a summary of the interview which is not so time-consuming to prepare as a transcript, yet meets both their needs. The summary would then be adduced as evidence of the interview. In practice, though, barristers and solicitors representing defendants have, without exception, steadfastly refused to subscribe to this process, preferring instead to demand a transcript of the entire interview in every case.”^[73]

5.26 The ICAC suggested that there should be an administrative or legislative requirement for defence lawyers to subscribe conscientiously to the objective of reaching consensus on the summary of interview. The ICAC believes that unless a summary can be agreed between the prosecution and defence, video-taped records of interview under caution would generally need to be both transcribed and translated into English. In advancing the suggestion, the ICAC explained^[74]:

“What should be helpful is some sort of mechanism to compel legal representatives to at least actively consider negotiation with the prosecution to produce mutually acceptable summaries of video recorded interview under caution....

... we believe that a practice direction from the Hong Kong Judiciary would go a long way towards persuading lawyers who have no other incentive than the general public interest to seriously consider the need for transcriptions, and to make them accountable to the courts in instances where they appear to have been unreasonable in this respect.”

5.27 While those who commented on this aspect of the consultation paper appreciated that providing a full transcript of the interview in every case required considerable resources, there was strong opposition to the suggestion that the parties should be obliged to agree a summary of the interview in place of the full transcript. It was argued that the defence needed to be made fully aware of precisely what the accused had said during the interview. A full transcript was necessary to ensure that vital points were not missed while viewing the tape of the interview. Many of these respondents consider it unrealistic to expect that the defence would be able in any significant number of cases to agree to a summary being produced in evidence, as the defence would almost invariably wish to refer to the full transcript if the voluntariness of the confession were raised as an issue at trial. Accordingly, these respondents maintain that a full transcript is essential to do justice to the accused, and oppose any administrative or legislative stipulation requiring summaries of interviews unless the choice is left to the defence.

5.28 With regard to the considerable time and resources required to prepare a full transcript, it was pointed out by some respondents that time spent by the ICAC preparing a transcript before trial results in a saving of time for the court during trial. A full transcript benefits not only the defence, but must often be resorted to by the judge, particularly where the judge is not Chinese speaking and the interview is conducted in that language. It was also pointed out by some respondents that the problem could be minimised if efforts could be made, save for complex cases, to keep the interview short.

5.29 We agree that it is important that the defence maintain the right to have access to a full transcript of the video interview, rather than merely a summary, to ensure that the rights of the accused are not compromised and we do not therefore recommend the adoption of the ICAC’s proposal. We nevertheless consider that defence counsel should in every case give fair consideration to the possibility of agreeing a summary of the interview, rather than automatically demanding a full transcript.

Earlier defence disclosure of allegations of improprieties

5.30 A number of respondents believe that early disclosure, and with some specificity, by the defence of what the issues in the voir dire would be, as well as advance disclosure of medical reports, would reduce much court time and costs incurred in the voir dire proceedings.

5.31 These respondents propose that either express power should be given to the court, or that a set of procedures should be established, so as to enable both the court and the prosecution to be properly informed at a time before the commencement of the trial of the details of the defence’s allegations of any improper circumstances relating to the taking of the confession. It is argued that much court time could be saved as a result. Under the present practice, substantive allegations of impropriety on the part of the law enforcement officers are not unusually made only at the commencement of the hearing, resulting frequently in the adjournment of the case in order to accommodate incidental requests, such as time needed to arrange for the relevant police officers to be identified by the accused, or to arrange for expert witnesses such as doctors to comment on the truthfulness of the allegations.

5.32 We consider that much could be achieved by more effective use of the existing pre-trial review (PTR). The present Practice Direction on Criminal Proceedings in the Court of First Instance^[75] sets out the matters of which counsel will be expected to inform the court at the PTR. Paragraph 6(f) of Practice Direction 9.3 provides that defence counsel will be expected to inform the judge at the PTR as to “whether objection is to be taken to the admissibility of any of the prosecution evidence, and how long the hearing of such objection is likely to take”. We suggest that it would be useful to include in the Practice Direction a requirement that both the court and the prosecution should be properly and fully informed by the defence at the PTR of the specific details of any allegations of impropriety which relate to the taking of a confession statement.

5.33 We believe that the PTR should so far as is practicable be presided over by the judge to whom the trial of the case is to be assigned. This would reduce the time needed for the judge at trial to familiarise himself with any matters which have previously been raised at the PTR.

5.34 A practical measure which we consider would save court time would be a requirement (perhaps by way of practice direction) that the prosecution should prepare an index setting out the brief details of the contents of each interview in every case in which it is proposed to present evidence of more than one statement by the accused. This index should be provided to the court and defence counsel to assist at the PTR. Such an index would, we believe, help not only to clarify the issues to be contested at trial, but would also result in a more realistic and accurate estimation of the time needed for the voir dire and the trial proper. We believe that a more effective utilisation of the PTR would be achieved as a result. In addition, by identifying areas of contention at an early stage, all parties would be left with adequate time to make any necessary preparations in respect of the key issues (such as arranging for expert witnesses, and conducting legal research on any relevant point of law). This should in turn minimise the likelihood of any unnecessary wastage of court time arising from subsequent applications for adjournment.

Revisiting the recommendations contained in the Commission’s 1985 Report

5.35 The Bar and a number of others who responded to our consultation paper believed that the Commission should revisit the proposals and recommendations made in the 1985 Report on Confession Statements and their Admissibility in Criminal Proceedings (the Report). The Bar points out that additional safeguards should be provided to protect the rights of the accused, rather than to attempt to take away their existing rights and protections.

5.36 The central recommendation in the Report called for the establishment of a panel of lay panelists made up of Justices of the Peace, before whom the accused would be brought within twenty-four hours of having made a statement. The intention was that the accused would then have the opportunity to raise any complaint as to his treatment at the hands of the law enforcement agency.

5.37 The Commission recommended in the Report that where the prosecution intended to produce at trial evidence of statements made, and answers to questions given, by the accused or to produce in evidence the accused’s failure to answer questions put to him by a law enforcement officer, the accused must be brought within 24 hours of being charged before a lay panelist who should, in the interview of the accused, inform the accused of his rights and inquire into the manner in which the accused had been treated by the law enforcement officers since the arrest. In this interview, the lay panelist should make known to the accused his independence from, and impartiality to, any law enforcement agency. The lay panelist should also specifically inform the accused that any failure on his part to report to the panelist in the interview any mistreatment by the law enforcement agency may result in any subsequent complaint being disbelieved. The lay panelist should also read to the accused any records of interviews and written statements allegedly given by him. The accused should then be asked to comment on the accuracy of these records. The lay panelist should also inform the accused in the interview of his right to deny involvement in the offence alleged should he consider himself innocent, or to admit his guilt and to offer assistance to the law enforcement agency with their investigation should be consider himself guilty of the offence charged. The lay panelist would also inform the accused that an early admission of guilt may attract more lenient treatment by the court. It was recommended that the interview of the accused by the lay panelist should be tape-recorded and that the record should be admissible in evidence as prima facie evidence of its contents.

5.38 Taken together the Commission believed that the Report’s recommendations would significantly reduce the frequency of objections to the admissibility of confession statements, resulting in a reduction of court time devoted to voir dire hearings.

5.39 It was always the Commission’s stated intention that the recommendations and proposals put forward in the Report should be treated as a package, and that one part of the scheme should not be implemented in the absence of another. The system of lay panelists, however, was rejected by the Administration, partly because of concern that the very large number of additional JPs required would dilute the entire JP scheme.

5.40 In the light of the Administration’s rejection of the central recommendation of the Report, we consider that very little purpose would be served by our revisiting the Report again. While we do not ourselves favour re-visiting the Report, we nevertheless recommend in the light of the comments we have received that the Administration should itself reconsider its earlier rejection of the proposal to introduce a system of lay panelists.

Hong Kong Law Reform Commission

Chapter 5 - Our conclusions and recommendations

Reform of the voir dire

Other recommendations

Greater use of audio or video recording of interviews

Adoption of provisions similar to the Police and Criminal Evidence Act 1984

Summaries of interviews

Earlier defence disclosure of allegations of improprieties

Revisiting the recommendations contained in the Commission’s 1985 Report