HKLII

Hong Kong Law Reform Commission
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Preface


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1. On 25 November 1998, in response to concerns as to the amount of court time spent on the hearing of objections in criminal trials to the admissibility of confession statements taken by law enforcement agencies from accused persons, the Law Reform Commission (the Commission) published its Consultation Paper on the Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings (the consultation paper), to seek input from the community as to the preferred ways of improving the present court procedure governing the admissibility of confession statements in jury trials.

2. As matters relating to the substantive law and the procedures governing the questioning of suspects by law enforcement agencies had been dealt with in an earlier Commission report published in 1985 entitled the Report on Confession Statements and their Admissibility in Criminal Proceedings, the consultation paper confined itself to the procedural question as to how the admissibility of confession statements is determined at trial. Accordingly, the consultation paper did not venture into matters of substantive law, or of the procedures to be adopted for the questioning of suspects by law enforcement agencies.

3. One of the main catalysts for the consultation paper was concern at the substantial amount of court time spent on the hearing of evidence relevant to the admissibility of confession statements. Under the present system, much court time is spent by the judge sitting alone hearing the witnesses in a “trial within a trial” (or voir dire, as it is termed by lawyers) conducted in the absence of the jury to determine the special issue of “admissibility”, only to have the same witnesses called over again before the jury to consider the general issue of evidential weight once the confession statement is ruled admissible by the judge. Not infrequently the same evidence which is relevant to the issue of admissibility is also relevant to evidential weight and credibility of the accused, and the witnesses must testify twice, once before the judge sitting alone, and later in the jury’s presence.

4. It is against this background that the procedure governing the admissibility of confession statements at trial was re-examined in the consultation paper, to see if there were alternatives to the voir dire procedure so that court time and costs would be saved. Three options for reform were proposed as follows in the consultation paper:

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; and
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. The three options for reform were not proposed solely for the purpose of reducing the time and resources spent in determining the admissibility of confession statements. It was also hoped that the procedure at trials involving a jury could be simplified and made more effective, while bearing constantly in mind the need to ensure fairness.

6. While the consultation paper sought comment principally on the specific options for procedural reform identified, it also invited general comments on other means of improving the present procedure governing the admissibility of confession statements in jury trials. The consultation period lasted from 25 November 1998 to 28 February 1999 and elicited responses from a range of individuals and organisations. In addition, the paper was discussed by the Fight Crime Committee and by participants at a Forum organised by the Faculty of Law of Hong Kong University. This report is the result of our careful consideration of all these responses, and of the detailed discussion within the Commission as to the best way forward.

7. We have been greatly assisted in our consideration of this subject by the advice and comments given by experts in this area of the law, both in Hong Kong and in a number of other jurisdictions. In Hong Kong, we are particularly grateful to all those who responded to our consultation paper. These individuals and organisations are listed at Annex 1. We wish to express our thanks also to the Hong Kong Police and the Independent Commission Against Corruption for their assistance in providing the statistical data contained in both the consultation paper and this report.