Hong Kong Law Reform Commission

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Chapter 1 – A short history of the reference

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1.1

As noted in the preface, the consultation paper sought comment on a number of options for reform of the way in which the admissibility of confession statements is determined in criminal cases. Specifically, it endeavoured to identify ways to simplify trial procedure, and to reduce the extensive time and resources devoted in jury trials to the hearing of evidence on whether or not a confession statement was made voluntarily.

1.2	These concerns were not new. As far back as October 1985, the Commission had examined the issues raised by the determination of the admissibility of confession statements in its Report on Confession Statements and their Admissibility in Criminal Proceedings (the Report).

1.3

The Report made a wide range of recommendations for reform, covering both substantive law and procedural matters. The Report looked not only at the procedure adopted in court for determining the admissibility of confession statements, but also at the practice adopted in the taking of such statements. Among the Report’s recommendations was the establishment of a clear framework for the taking of confession statements from suspects. The Report recommended that when the prosecution might wish to adduce at any subsequent trial evidence of a statement made by the accused, the accused should be brought before a Justice of the Peace (JP) within 24 hours of being charged, where he would be given the opportunity to raise any complaint as to his treatment since arrest. The record of the JP’s interview would be tape-recorded and would be admissible at trial. The purpose of the proposed scheme was to provide an early opportunity for the accused to raise any complaint of police impropriety (and so enable its prompt investigation), and to discourage objections to the admissibility of a confession statement being first raised at trial.

1.4

It was always the Commission’s stated intention that the 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. Taken together, the Commission believed that the Report’s recommendations would significantly reduce the amount of court time devoted to voir dire hearings, by reducing the frequency of objections to the admissibility of confession statements. In the event, the Administration rejected the Commission’s central recommendation for the setting up of a system of lay panelists (drawn from the ranks of JPs) to entertain early complaints from suspects.

1.5	Notwithstanding the Administration’s rejection of the key element of the Commission’s 1985 package of reforms, a number of improvements have since been made to the practices adopted in the taking of confession statements. The aim of these improvements was to provide greater protection to suspects whilst they were under investigation and interrogation by the law enforcement agencies.
1.6	One such improvement was the reflection of some of the Report’s recommendations in the Rules and Directions for the Questioning of Suspects and the Taking of Statements^[1] (the Rules and Directions), promulgated by the Secretary for Security in October 1992, which provide clear guidelines on the questioning and taking of statements from suspects by members of the Hong Kong Police Force, the Customs and Excise Department, the Immigration Department and the Independent Commission Against Corruption (ICAC).
1.7	Since the publication of the Report, there has also been an increasing use of video recording in the taking of statements from accused persons. The reasonable expectation would be that the use of such facilities would lead to a significant reduction in the number of objections taken at trial to the admissibility of confession statements. This would in turn reduce the amount of court time to be devoted to the hearing of objections to the admissibility of statements taken from accused persons.
1.8	The ICAC first began experiments with the videotaping of interviews in March 1989. In 1991, the video system became the established method of interviewing suspects, and progressively more interviewing facilities were made available. Since 1997, virtually all interviews have been conducted with the use of video. The number of voir dire hearings which have arisen from video recorded interviews are shown in Table 1 below, while Table 2 shows the equivalent figures arising from interviews recorded in writing over the same period.

Table 1 – No. of voir dires arising from video recorded ICAC interviews

	1991	1992	1993	1994	1995	1996	1997
(a) Persons prosecuted	91	183	460	294	311	368	267
(b) No. of pleas of Not Guilty	42	79	83	129	145	211	159
(c) b as % of a	46.2%	43.2%	18%	43.9%	49.6%	57.3%	59.6%
(d) No. of voir dires	5	9	22	18	28	35	29
(e) d as % of b	11.9%	11.4%	26.5%	14%	19.3%	16.6%	18.2%
(f) No. admitted as evidence	4	9	17	15	20	10	23
(g) f as % of d	80%	100%	77.3%	83.3%	71.4%	28.6%	79.3%

Table 2 – No. of voir dires arising from written records of ICAC interviews

	1991	1992	1993	1994	1995	1996	1997
(a) Persons prosecuted	8	12	89	13	55	69	-
(b) No. of pleas of Not Guilty	8	9	11	4	15	22	-
(c) b as % of a	100%	75%	12.4%	30.8%	27.3%	31.9%	-
(d) No. of voir dires	3	1	2	2	1	-	-
(e) d as % of b	37.5%	11.1%	18.2%	50%	6.7%	-	-
(f) No. admitted as evidence	1	0	2	2	1	-	-
(g) f as % of d	33.3%	0%	100%	100%	100%	-	-

1.9

The ICAC “are absolutely convinced that [videotaping] is the fairest and most equitable means of recording interviews of suspects by law enforcement officers.”^[2] They point out that its advantages include the fact that “it is very difficult to dispute the actual content of an interview when the interview is recorded on videotape, and the lack of opportunity for suspects to make unfounded allegations - criminal or otherwise - against law enforcement officers in respect of the actual interviews.”

1.10

Videotaping of interviews by the Police was first introduced in 1993. There are currently 63 Video Interview Rooms to interview persons whose cases are likely to be heard in the District Court or the Court of First Instance of the High Court, and a further seven are planned by April 2000, with each major police station to be provided with at least one such facility. Table 3 shows a comparison between the rates of challenge to videotaped and non-videotaped interviews by the Police.

Table 3 - Comparison of challenges in court to videotaped and non-videotaped Police interviews in 1997^[3]

	High Court	District Court
(a) Persons charged (Not all persons charged are interviewed)	542	1966
(b) Videotaped interviews	169	151
(c) b as % of a	31%	7.7%
(d) Non-videotaped interviews	346	1414
(e) d as % of a	63.9%	72%
(f) Videotaped interviews challenged	26	18
(g) f as % of b	15%	12%
(h) Non-videotaped interviews challenged	115	496
(i) h as % of d	33%	35%
(j) Videotaped interviews not admitted into evidence	7%	3%
(k) j as % of b	4%	2%
(l) Non-videotaped interviews not admitted into evidence	43	116
(m) l as % of d	12%	8%

1.11

It is clear from both the ICAC and Police experience that the use of videotape has proved effective in reducing the number of challenges to the admissibility of confession statements, and that where objection is raised there is less likelihood that the statement will subsequently be rejected if the interview has been videotaped.

1.12

While the changes which have been introduced in respect of the questioning of suspects have had some impact on the frequency of voir dire proceedings, the problem of misconduct in the questioning of a suspect made prior to the video-taped interview remains, and substantial court time is still devoted to the hearing of objections to the admissibility of confession statements.

1.13

In a letter to the Secretary of the Commission of 12 January 1998, Mr Justice Litton suggested that it would be timely for the Commission to re-examine the issue of admissibility of confession statements afresh. He pointed out that criminal trial judges hold the view that the process by which the question of admissibility of confession statements is considered separate from evidential weight is unsatisfactory. This is particularly so in jury trials. Much court time is at present spent by the judge sitting alone hearing the witnesses in a voir dire to determine admissibility, only to have the same witnesses called over again before the jury to consider the question of evidential weight, once the confession statement is admitted.

1.14

In the light of Mr Justice Litton’s letter, we considered at the Commission meetings in April and June 1998 the existing procedure for the admission of confession statements in criminal proceedings and examined the approach adopted in a number of overseas jurisdictions. We concluded that the procedural aspects for the determination of the admissibility of confession statements at trial should be re-examined. The consultation paper and the consultation exercise conducted in the period between 25 November 1998 and 28 February 1999 were the results.

1.15

It is important to stress at the outset of this report, as we did in the consultation paper, that the scope of the consultation was restricted to the procedural question as to how the admissibility of a confession is determined at trial. This narrow scope of study was adopted because matters of substantive law and practice relevant to the questioning of suspects by the law enforcement agencies had already previously been addressed in our earlier Report.

^[1] Published in Special Supplement No. 5 to the Hong Kong Government Gazette, 2 October 1992.

^[2] Extract from a letter to the Secretary to the Law Reform Commission of 5 August 1998. The Commission is indebted to the ICAC for providing the statistical data contained in Tables 1 and 2.

^[3] From information provided in a letter from the Police to the Secretary to the Law Reform Commission on 10 July 1998, for which the Commission is grateful.