police powers, etc

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Chapter 15

POLICE POWERS, CONFESSIONS AND DISCRETION TO EXCLUDE EVIDENCE

Sect. Para.

I. Introduction . . . . . . . . . . . . . . . . . 15–1A. Arrest . . . . . . . . . . . . . . . . 15–2B. Stop and search . . . . . . . . . . . . . 15–14C. Entry, search and seizure . . . . . . . . . . . 15–20D. Questioning and treatment of persons . . . . . . . 15–30

II. ConfessionsA. The exclusion rule . . . . . . . . . . . . 15–56B. Admissibility of a confession . . . . . . . . . . 15–94C. Challenging a confession . . . . . . . . . . . 15–118D. Rules and directions . . . . . . . . . . . . 15–122

III. Related MattersA. Curial confessions . . . . . . . . . . . . . 15–145B. Admissions in previous proceedings . . . . . . . . 15–148C. Formal admissions. . . . . . . . . . . . . 15–152

I. INTRODUCTION

15–1The powers relating to the powers of the police to stop and search persons, to enterand search premises and to seize property therein, to make arrests, to detain personswithout charge and after charge and to question persons who have been detained arenot clearly set out in comprehensive legislative enactments. The Hong Kong Bill ofRights Ordinance and The Basic Law of Hong Kong contain provisions bearing onthe rights of the individual against unlawful interference with his person and property.The Police Force Ordinance contains a number of provisions setting out the policepowers of arrest, detention, search and treatment of offenders. These provisions arenot comprehensive and are supplemented by the common law. There is no legislationconcerning the questioning of suspects. Police officers and other law enforcementofficers are directed to follow the guidelines set out in the Rules and Directions for theQuestioning of Suspects and the Taking of Statements issued by the Secretary for Secur-ity in 1992.

[In August 1992, The Law Reform Commission of Hong Kong published a reporton arrest. Most of the proposals which can be implemented by administrative measureshave been, or are being, implemented. Legislative measures adopted include the Dan-gerous Drugs, ICAC and Police Force (Amendment) Ordinance which came into opera-tion on the 1 July 2001. It makes provision for the taking of intimate and non-intimatesamples. Other proposals requiring legislative change which have not yet been imple-mented include powers to stop and search, powers of entry, search and seizure, powersof arrest and powers of detention.]

A. Arrest

The Basic Law of Hong Kong, Art 28

15–228.—The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kongresident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitraryor unlawful search of the body of any resident or deprivation or restriction of the freedomof the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation ofthe life of any resident shall be prohibited.

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§ 15–3 Police Powers, etc [Chap. 15

Police Force Ordinance (Cap 232), s 50(1)

Arrest of suspected persons15–3 50.—(1) It shall be lawful for any police officer to apprehend any person who he reasonably

believes will be charged with or whom he reasonably suspects of being guilty of— (a) any offence for which the sentence is fixed by law or for which a person may (on a first

conviction for that offence) be sentenced to imprisonment; or (b) any offence, if it appears to the police officer that service of a summons is impractic-

able because— (i) the name of the person is unknown to, and cannot readily be ascertained by, the

police officer; (ii) the police officer has reasonable grounds for doubting whether a name given by

the person as his name is his real name; (iii) the person has failed to give a satisfactory address for service; or (iv) the police officer has reasonable grounds for doubting whether an address given

by the person is a satisfactory address for service.

Criminal Procedure Ordinance (Cap 221), s 101(2)

Apprehension of offenders101.—(2) Any person may arrest without warrant any person whom he may reasonably

suspect of being guilty of an arrestable offence.

An arrestable offence is defined by section 3 of the Interpretation and GeneralClauses Ordinance (Cap 1) as an offence for which the sentence is fixed by law or forwhich a person may under or by virtue of any law be sentenced to imprisonment for aterm exceeding 12 months, and an attempt to commit any such offence.

Where a private citizen purports to make and arrest under section 101 of the Crim-inal Procedure Ordinance (Cap 221), it is a condition precedent that an arrestableoffence has in fact been committed. It is not sufficient that the private citizen reasonablysuspects that an offence has been committed. It must be established that an arrest-able offence has been committed and that the citizen reasonably suspects the arrestedperson of being guilty of it: R v Self [1992] 3 All ER 476, CA.

What constitutes lawful arrest

15–4 Section 50(1) of the Police Force Ordinance, which is the main arrest provision forpolice officers, does not use the word arrest at all save in the marginal note. The sectionstates that a police officer may “apprehend” certain persons. This has been held tomean “arrest”: Chiu Chung-keng v Commissioner of Prisons (1950) 34 HKLR 65, 70.

In general, an arrest is constituted by a physical seizure or touching of the arrestedperson’s body, with a view to his detention; see, for example, R v Brosch [1988] Crim L R743, CA. But there may also be an arrest by mere words: see Alderson v Booth [1969]2 QB 216, 53 Cr App R 301, DC (arrest is constituted when any form of words is usedwhich is calculated to bring to the suspect’s notice, and does so, that he is under com-pulsion, and he thereafter submits to that compulsion); and R v Inwood 57 Cr App R529, CA (no magic formula, only the obligation to make it plain to the suspect by whatis said and done that he is no longer a free man; different procedures might be neededaccording to the person’s age, ethnic origin, language comprehension, intellectualqualities, and physical or mental disabilities).

Use of force

Criminal Procedure Ordinance (Cap 221), s 101A

Use of force in making arrest etc15–5 101A.—(1) A person may use such force as is reasonable in the circumstances in the preven-

tion of crime or in effecting or assisting in the lawful arrest of offenders or suspected offendersor of persons unlawfully at large.

(2) Subsection (1) shall replace the rules of the common law on the question when forceused for a purpose mentioned in the subsection is justified by that purpose.


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Sect. I] Introduction § 15–6

What is reasonable force depends on the circumstances: see Lindley v Rutter [1981]QB 128; Crawley v Att-Gen [1987] 1 HKLR 379. A police officer is entitled to use handcuffsor similar methods of restraint where it is necessary to prevent an escape or if the per-son has attempted to escape or evade arrest: see Osborne v Veitch (1818) 1 F & F 317; Levyv Edwards (1923) 1 C & P 40; Wright v Court (1825) 107 E R 1182; Leigh v Cole (1853) 6Cox CC 329; R v Taylor (1895) 59 JP 393; Lindley v Rutter, above; Crawley v Att-Gen, above.

It would seem that where handcuffs are unjustifiably resorted to, their use will consti-tute a trespass even though the arrest itself be lawful: R v Taylor (1895) 59 HP 393; Bibbyv Chief Constable of Essex (2000) 164 JP 297. The Police General Orders provide guide-lines concerning the use of handcuffs.

Information to be given on arrest

Hong Kong Bill of Rights Ordinance, Art 5(2)

15–65.—(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for hisarrest and shall be promptly informed of any charges against him.

This is a re-statement of the common law position: Christie v Leachinsky [1947] AC573. At common law, it is recognised that if the accused is aware of the general reasonsfor his arrest, it is not necessary to inform him: Christie v Leachinsky, above; R v Howell[1981] All ER 383. This is subject to an exception in the case of a person who escapes orproduces a situation where it is impractical to inform him of the reason for his arrest:Christie v Leachinsky, above; R v Howell, above. These requirements also apply where aprivate citizen makes an arrest: HKSAR v IP Kenneth [2006] 2 HKLRD 433, CFI.

In Abbassy v Commissioner of Police of the Metropolis 90 Cr App R 250, the Court ofAppeal (Civ Div) held that the obligation to inform the person arrested of the groundfor the arrest did not involve a requirement to use precise or technical language; whatwas required was that the person knew why he had been arrested. On the facts, it washeld that telling the person arrested that he was arrested for “unlawful possession” wassufficient. And in Clarke v Chief Constable of North Wales Police, The Independent, (C.S.),22 May 2000, CA (Civ Div), it was held that the duty to inform the arrestee of the groundsof arrest had been complied with where she was told that the arrest was “on suspicionof possession of controlled drugs”, notwithstanding that possession of Class C drugs isnot an arrestable offence. On the facts, the appellant would have understood that thearrest was for possession of a controlled drug for which there was a power of arrest. It isnot necessary that the officer giving the reason for arrest should be the same as theofficer depriving the arrestee of his liberty: Dhesi v Chief Constable of West Midlands Police,The Times, 9 May 2000, CA (Civ Div).

In Christie v Leachinsky [1947] AC 573 HL, Viscount Simon set out five propositions asto what information should be given to an arrested person (at 587–588):

“(1) If a policeman arrests without warrant upon reasonable suspicion of … crime of a sortwhich does not require a warrant, he must in ordinary circumstances inform the personarrested of the true ground of arrest. He is not entitled to keep the reason to himself or togive a reason which is not the true reason. In other words a citizen is entitled to know onwhat charge or on suspicion of what crime he is seized. (2) If the citizen is not so informedbut is nevertheless seized, the policeman, apart from certain exceptions, is liable for falseimprisonment. (3) The requirement that the person arrested should be informed of thereason why he is seized naturally does not exist if the circumstances are such that he mustknow the general nature of the alleged offence for which he is detained. (4) The require-ment that he should be so informed does not mean that technical or precise language needbe used. The matter is a matter of substance, and turns on the elementary proposition thatin this country a person is, prima facie, entitled to his freedom and is only required to submitto restraints on his freedom if he knows in substance the reason why it is claimed that thisrestraint should be imposed. (5) The person arrested cannot complain that he has not beensupplied with the above information as and when he should be, if he himself produces thesituation which makes it practically impossible to inform him, eg by immediate counterat-tack or by running away. There may well be other exceptions to the general rule in additionto those I have indicated, and the above propositions are not intended to constitute a formal


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or complete code, but to indicate the general principles of our law on a very importantmatter. These principles equally apply to a private person who arrests on suspicion.”

15–7 In R v Chalkley and Jeffries [1998] 2 Cr App R 79, the Court of Appeal, consideringChristie v Leachinsky (and, in particular, the speech of Lord Simmonds at 593–595),expressed the obiter opinion that the requirement that the person arrested be informedof the ground of arrest would be satisfied if he was told he was being arrested foroffence A, in relation to which there were reasonable grounds to suspect his guilt, whenthere was no actual intention to bring proceedings in relation to that offence, the truemotivation being to facilitate the investigation of more serious crime, by taking advan-tage of his temporary absence from his home. It would seem to follow that if there aregrounds for arrest and the individual is told of those grounds upon arrest, the arrest willbe lawful despite an ulterior motive, provided only that the ulterior motive falls withinthe lawful function of the person making the arrest.

Where there are grounds for arresting an individual for a number of offences ofdifferent levels of seriousness arising out of the same incident, it is unlawful and unfairto arrest and question only in relation to a lesser offence, and then when compromisinganswers have been made, to reveal that the investigation also relates to a more seriousoffence; before questioning a suspect, the police must ensure that he is aware of thetrue nature of the investigation: R v Kirk [2000] 1 Cr App R 400, CA. As to the con-sequences of a failure to comply with this requirement, see §15–33, below.

In Wheatley v Lodge [1971] 1 WLR 29, DC, it was held that a police officer arresting adeaf person or somebody who could not speak English had to do what a reasonableperson would do in the circumstances. In R v Fu Kat-sui [1989] 2 HKC 526, Bewley Jstated that where a police officer was dealing with a suspected illegal immigrant whomay not speak Cantonese, all the officer could do in the circumstances was to use hisjudgment. In Nicholas v Parsonage [1987] RTR 199, DC (followed in Mullady v DPP[1997] COD 422, DC), it was held that where an arrest is made, the person arrestedmust be told both the offence for which he is being arrested and the general arrestcondition used to justify the arrest. It was further held that the phrase “at the time ofarrest” does not mean simply the precise moment at which the constable lays his handson the defendant and says “I am arresting you”; it means a short but reasonable periodof time around the moment of arrest, both before and after. Whether words werespoken at the time of arrest or not was a matter of fact. Where an arrest is originallyunlawful, on the ground that the accused has not been told what acts are alleged tohave constituted the offence for which he was arrested, this unlawfulness is curedwhen he is informed of the details at the police station: R v Kulynycz [1971] 1 QB 367,55 Cr App R 34, CA. Where the initial arrest is valid and at the time of the arrest it isimpracticable, because of the accused’s physical resistance to the arrest, to inform himof the reason for the arrest, the arrest does not become invalid retrospectively when theofficer fails to state the ground of arrest at the police station: DPP v Hawkins 88 Cr AppR 166, DC. See also Chapman v DPP 89 Cr App R 190 at 197–198, DC, and Lewis v ChiefConstable of the South Wales Constabulary [1991] 1 All ER 206, CA (Civ Div).

In Dawes v DPP [1995] 1 Cr App R 65, DC, the defendant was detained by the auto-matic activation of the door locks inside a car specially adapted by the police as a trap.It was held on appeal that he was arrested the moment that he was trapped inside thecar, and that at that point the police were obliged to inform him of his arrest and hisgrounds of arrest as soon as practicable. Once the police discharged this duty, the arrestwas made lawful. On the facts, the police had fulfilled the duty, but the court recom-mended that in future the police fix such cars with a device which automatically tells theoffender that he has been arrested.

Consequences of arrest

Criminal Procedure Ordinance (Cap 221), s 101(5)

Summary apprehension of offender in certain cases15–7A 101.—(5) Every person who arrests any person under any of the provisions herein contained

shall (if the person making the arrest is not himself a police officer) deliver the person so


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arrested, and the property, if any, taken possession of by him, to some police officer in orderthat he may be conveyed as soon as reasonably may be before a magistrate, to be by him dealtwith according to law, or himself convey him before a magistrate, as soon as reasonably may be,for that purpose.

15–8Where a private citizen makes a lawful arrest either at common law or under statute,he should take the arrested person before a magistrate or police officer, not necessarilyforthwith, but as soon as reasonably possible: see John Lewis & Co Ltd v Tims [1952] AC676, HL; Dallison v Caffery [1965] 1 QB 348, CA (Civ Div); HKSAR v IP Kenneth [2006]2 HKLRD 433, CFI.

Police Force Ordinance, s 51

Person arrested to be delivered to custody of police officer in charge of police station15–951.—Every person taken into custody by a police officer with or without a warrant, except a

person detained for the mere purpose of taking his name and residence or detained undersection 54 [power of the police to stop, detain and search – see below], shall be forthwithdelivered into the custody of the officer in charge of a police station or a police officerauthorized in that behalf by the Commissioner.

This differs from the common law position in England and section 30 of the Policeand Criminal Evidence Act 1984 which requires that the arrested person shall be takento a police station as soon as practicable after the arrest. In HKSAR v Yeung Ka-yee &Others [2002] HKEC 1546 the Applicants sought leave to appeal against their convictionon a charge of murder. They had been arrested in Cheung Chau and taken to therooftop of a villa where the murder had been committed some eight days previously.The police said they did this so as to avoid media attention until such time as they couldbe taken by boat to a police station for interview. The trial judge had found this was abreach of section 51. On the application Stuart-Moore VP stated that it was not necessary“to decide what ‘forthwith’ in section 51 precisely means. It cannot mean ‘immediately’when there are good reasons for a delay”.

Police Force Ordinance, s 52(1)

Person arrested to be discharged on recognisance or brought before a magistrate15–1052.—(1) Whenever any person apprehended with or without a warrant is brought to the

officer in charge of any police station or a police officer authorized in that behalf by theCommissioner, it shall be lawful for such officer to inquire into the case and unless the offenceappears to such officer to be of a serious nature or unless such officer reasonably considers thatthe person ought to be detained, to discharge the person upon his entering into a recognizance,with or without sureties, for a reasonable amount, to appear before a magistrate or to surrenderfor service of a warrant of arrest and detention or for discharge at the time and place named inthe recognizance; but where such person is detained in custody he shall be brought before amagistrate as soon as practicable, unless within 48 hours of his apprehension a warrant for hisarrest and detention under any law relating to deportation is applied for, in which case he maybe detained for a period not exceeding 72 hours from the time of such apprehension. Everyrecognizance so taken shall be of equal obligation on the parties entering into the same andshall be liable to the same proceedings for the entreating thereof as if the same had been takenbefore a magistrate.

Hong Kong Bill of Rights Ordinance, Art 5(3)

Liberty and security of persons15–115.—(3) Anyone arrested or detained on a criminal charge shall be brought promptly before

a judge or other officer authorized by law to exercise judicial power and shall be entitled to trialwithin a reasonable time or to release. It shall not be the general rule that persons awaitingtrial shall be detained in custody, but release may be subject to guarantees to appear for trial,at any other stage of the judicial proceedings, and, should occasion arise, for execution of thejudgment.


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At common law once a person is in police custody a police officer may, in order tofacilitate an investigation, do what is reasonable, including taking the accused to thescene of the crime and to other places possibly connected with the crime and arrange anidentification parade provided his actions are reasonable: Dallison v Caffrey [1965] 1 QB 348.

Reasonable belief or reasonable suspicion

15–12 An officer effecting an arrest must have reasonable belief that the person arrestedwill be charged with an offence or reasonably suspect he is guilty of an offence: section50(1) of the Police Force Ordinance, above.

The test as to whether reasonable grounds for the suspicion to justify an arrest existedis partly subjective, in that the arresting officer must have formed a genuine suspicionthat the person being arrested was guilty of an offence, and partly objective, in thatthere had to be reasonable grounds for forming such a suspicion; such grounds couldarise from information received from another (even if it subsequently proves to befalse), provided that a reasonable man, having regard to all the circumstances, wouldregard them as reasonable grounds for suspicion; but a mere order from a superiorofficer to arrest a particular individual could not constitute reasonable grounds for suchsuspicion: O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, HL. Seealso Siddiqui v Swain [1979] RTR 454, 457, DC, in which “reasonable grounds to sus-pect” in the English Road Traffic Act 1972, section 8(5) (now the Road Traffic Act 1988,section 7) were said to “import the further requirement that the constable in fact sus-pects”; and Parker v Chief Constable of the Hampshire Constabulary (unrep., 25 June 1999,CA (Civ Div)), where it was held that an officer who had reasonable grounds to think it“possible” that one of two people in a car was someone he was entitled to arrest hadbeen justified in arresting that person.

As to having reasonable grounds for suspecting that an offence has been committed,it is not necessary that an officer should have in his mind specific statutory provisions,or that he should mentally identify specific offences with technicality or precision. Hemust, however, reasonably suspect the existence of facts amounting to an offence of akind that he has in mind; unless he can do that, he cannot comply with his obligationto inform the suspect of the grounds of arrest: Chapman v DPP 89 Cr App R 190, DC.The relevant principles regarding arrests made in fact on reasonable suspicion werecomprehensively reviewed by the Court of Final Appeal in Yeung May Wan & Others vHKSAR (2005) 8 HKCFAR 137, [2005] 2 HKLRD 212. The appellants were membersof a group who demonstrated outside a building containing the Liaison Office of theCentral People’s Government. They were charged, inter alia, with offences of obstruct-ing a public place and willfully obstructing police officers acting in the execution oftheir duty. At 165, Sir Anthony Mason NPJ stated as follows:

“The relevant principles”

(i) Need for genuine suspicion on reasonable grounds

71. An examination of the legal principles relevant to the two foregoing arguments maybegin with the proposition, well-established in relation to powers of arrest which are exercis-able on reasonable suspicion of guilt, that the arresting officer must have both a genuinesuspicion that the offence in question has been committed and reasonable grounds for thatsuspicion.

72. Leaving aside for the moment a question concerning the relevance of judicial review(mentioned later in this judgment), Woolf LJ in Castorina v The Chief Constable of Surrey (CA),The Times 15 June 1988, identified the relevant questions as follows:

‘(1) Did the arresting officer suspect that the person who was arrested was guilty of theoffence? The answer to this question depends entirely on the findings of fact as to theofficer’s state of mind.

(2) Assuming the officer had the necessary suspicion, was there reasonable cause for thatsuspicion? This is a purely objective requirement to be determined by the judge ifnecessary on facts found by a jury.’


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(ii) Suspicion in the mind of the arresting officer

73. The House of Lords in O’Hara made it clear that when considering whether thesesubjective and objective requirements have been met, one is concerned solely with what was inthe mind of the arresting officer. The House of Lords was dealing in that case with a provisionrequiring the arresting constable to have ‘reasonable grounds for suspecting [the personarrested] to be a person who is or has been concerned in ...... acts of terrorism’ and Lord Steynstated (at 292) that provisions employing such language ‘categorise as reasonable grounds forsuspicion only matters present in the mind of the constable.’

74. Lord Hope of Craighead (at 298) elaborated upon this as follows: ‘My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple butpractical one. It relates entirely to what is in the mind of the arresting officer when thepower is exercised. In part it is a subjective test, because he must have formed a genuinesuspicion in his own mind that the person has been concerned in acts of terrorism.In part also it is an objective one, because there must also be reasonable grounds forthe suspicion which he has formed. But the application of the objective test does notrequire the court to look beyond what was in the mind of the arresting officer. It is thegrounds which were in his mind at the time which must be found to be reasonablegrounds for the suspicion which he has formed. All that the objective test requires is thatthese grounds be examined objectively and that they be judged at the time when thepower was exercised.

This means that the point does not depend on whether the arresting officer himselfthought at that time that they were reasonable. The question is whether a reasonable manwould be of that opinion, having regard to the information which was in the mind ofthe arresting officer. It is the arresting officer’s own account of the information which hehad which matters, not what was observed by or known to anyone else.’

75. As Lord Steyn pointed out, it is by virtue of ‘the longstanding constitutional theory of theindependence and accountability of the individual constable’ that the law has come to fasten onthe mind of the arresting officer himself:

‘The information which causes the constable to be suspicious of the individual must be inexistence to the knowledge of the police officer at the time he makes the arrest. ...... Theexecutive “discretion” to arrest or not, as Lord Diplock described it in Mohammed-Holgate vDuke [1984] AC 437, 446, vests in the constable, who is engaged on the decision to arrestor not, and not in his superior officers.’ (O’Hara at 293D–E)

(iii) Who is the arresting officer?

76. The arresting officer is the constable who actually effected the arrest. Where severalconstables take part, they each qualify as an arresting officer. In Hussien v Chong Fook Kam [1970]AC 942 at 947, Lord Devlin explained what in law amounts to an arrest:

‘An arrest occurs when a police officer states in terms that he is arresting or when he usesforce to restrain the individual concerned. It occurs also when by words or conduct hemakes it clear that he will, if necessary, use force to prevent the individual from goingwhere he may want to go. It does not occur when he stops an individual to makeinquiries.’

(iv) Reasonable suspicion must relate to the material elements of the relevant offence

77. For the arresting officer to meet the statutory requirements of PFO s 50, the factsreasonably suspected by him to exist must be such that, if true, they would constitute thenecessary elements of the offence for which the power of arrest is sought to be exercised. AsSedley LJ in Clarke v Chief Constable of North Wales Police [1997] EWCA Civ 2432 (7 October 1997)put it:

‘...... the power of arrest without warrant depends on the existence in the mind of thearresting officer of reasonable suspicion of the material elements of an arrestable offence......’ (para 23)

78. This is illustrated by Chapman v DPP (1988) 153 JP 27 where the power of arrestdepended on the constable having a reasonable suspicion that the person to be arrested hadcommitted an arrestable offence, meaning an offence punishable with 5 years’ imprisonment.Bingham LJ pointed out that it was:

‘...... therefore necessary to consider ...... what arrestable offence, or what facts amountingto an arrestable offence, [the constable] reasonably suspected to have occurred.’ (at 33)


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79. The magistrates found that, on the basis of information received from fellow officers, theconstable suspected and had reasonable grounds for suspecting either a common assault or anassault on a police officer in the execution of his duty. However, neither of those offences werearrestable offences. An assault with the additional element of occasioning actual bodily harmwas an arrestable offence. But there was no evidence and no finding by the magistrates that theconstable had acted on suspicion or had reasonable grounds for suspecting that bodily injurywas a material element of the offence for which he was making the arrest. Bingham LJ added:

‘It is not of course to be expected that a police constable in the heat of an emergency, orwhile in hot pursuit of a suspected criminal, should always have in mind specific statutoryprovisions, or that he should mentally identify specific offences with technicality orprecision. He must, in my judgment, reasonably suspect the existence of facts amountingto an arrestable offence of a kind which he has in mind.’ (at 34)

80. The requirement is therefore one of substance and not of technicality. It comple-ments the related rule that upon making an arrest, the arresting officer must in ordinarycircumstances inform the person arrested in substance (without the necessity of using technicalor precise language) of the reason for the arrest: see Christie v Leachinsky [1947] AC 573 at 587.

81. In relation to a public place obstruction offence, a material element is that the obstruc-tion was unreasonable and the fact that the constitutional right to demonstrate was beingexercised has to be given substantial weight when assessing reasonableness.

(v) The standard of reasonable suspicion

82. As noted above, the standard set by PFO s 50 is one requiring the arresting officer to haveformed, at the time of arrest, a genuine suspicion of guilt held on grounds which are objectivelyreasonable. What is needed to meet that standard in any particular case is a question of fact anddegree.

83. In Hussien v Chong Fook Kam [1970] AC 942 at 948 (PC), Lord Devlin emphasised thatproving a reasonable suspicion is not the same as showing a prima facie case, describing thelatter as importing ‘a much stiffer test’. His Lordship continued:

‘Suspicion in its ordinary meaning is a state of conjecture or surmise where proof islacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting-point of aninvestigation of which the obtaining of prima facie proof is the end. When such proof hasbeen obtained, the police case is complete; it is ready for trial and passes on to its nextstage.’ (at 948)

84. Lord Devlin (at 949) also pointed out that prima facie proof consists of admissibleevidence whereas suspicion can take into account matters that could not be put in evidenceat all.

85. The requirement that the suspicion be ‘reasonable’ stiffens the test. As Sir FredrickLawton pointed out in Castorina v The Chief Constable of Surrey (above):

‘Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it ofa kind which a court would adjudge to be reasonable.’

(vi) The source and grounds for reasonable suspicion

86. Where the factual basis for the suspicion is within the arresting officer’s own knowledge,for instance, where he witnesses a crime in progress, the application of the reasonable suspiciontest is straightforward. However, in a modern police force, officers necessarily operate as a teamsubject to a chain of command. The information upon which arrests are made may come froma variety of sources, for instance, calls for assistance from fellow officers picked up on a beatradio, surveillance and detection reports by other police units, information from Interpol andreports from informants and members of the public. Often, as in the present case, a team ofofficers will be briefed about suspected offences by superior officers just prior to an operation.

87. These are matters which have received recognition in the case-law. The focus remainson the mind of the arresting officer who must be shown to have a genuine and reasonablesuspicion that the person arrested has committed a relevant offence, having in mind thematerial elements of that offence. But that officer’s reasonable suspicion may properly be basedupon any of those sources of hearsay information provided that such information leads him toform a genuine suspicion on grounds which an objective observer would regard as reasonable.

88. Lord Steyn in O’Hara (at 293) stated: ‘In order to have a reasonable suspicion the constable need not have evidence amountingto a prima facie case. Ex hypothesi one is considering a preliminary stage of the investiga-tion and information from an informer or a tip-off from a member of the public may be


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enough: Hussien v Chong Fook Kam [1970] AC 942, 949. ...... Hearsay information maytherefore afford a constable reasonable grounds to arrest. Such information may comefrom other officers: Hussien’s case, ibid.’

89. Lord Hope put it thus: ‘The information acted on by the arresting officer need not be based on his ownobservations, as he is entitled to form a suspicion based on what he has been told. Hisreasonable suspicion may be based on information which has been given to himanonymously or it may be based on information, perhaps in the course of an emergency,which turns out later to be wrong. As it is the information which is in his mind alonewhich is relevant however, it is not necessary to go on to prove what was known to hisinformant or that any facts on which he based his suspicion were in fact true. Thequestion whether it provided reasonable grounds for the suspicion depends on thesource of his information and its context, seen in the light of the whole surroundingcircumstances.’ (O’Hara at 298)

90. Dealing with police teamwork, Lord Hope added: ‘Many other examples may be cited of cases where the action of the constable whoexercises a statutory power of arrest or of search is a member of a team of police officers,or where his action is the culmination of various steps taken by other police officers,perhaps over a long period and perhaps also involving officers from other police forces.For obvious practical reasons police officers must be able to rely upon each other intaking decisions as to whom to arrest or where to search and in what circumstances. Thestatutory power does not require that the constable who exercises the power must be inpossession of all the information which has led to a decision, perhaps taken by others, thatthe time has come for it to be exercised. What it does require is that the constable whoexercises the power must first have equipped himself with sufficient information so thathe has reasonable cause to suspect before the power is exercised.’ (at 301–302)

91. In an operation such as that conducted in the present case, the arresting officers maybe subject to the supervision of superior officers throughout and it may be on the order of asuperior officer that they initiate the arrest action. It is recognised that, realistically, the arrest-ing officer will generally not be in a position to question that order. Indeed every police officeris under a statutory duty to obey all lawful orders of his superior officers and is liable to dismissalfor failure to do so: see ss 30 and 31 of the Police Force Ordinance, Cap 232. As Lord Roskillnoted in McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358 at 1361:

‘The arresting officer is not bound and indeed may well not be entitled to question thoseinstructions or to ask upon what information they are founded.’

92. However, this does not mean that the arresting officer is entitled simply to rely on the factthat a superior officer has ordered the arrest. It remains essential that the arresting officer mustbe equipped with a sufficient factual basis to found, in his own mind, the requisite reasonablesuspicion. It follows that where, for instance, a briefing precedes the arrest action, the officergiving the briefing must be careful to impart sufficient information to provide a proper factualbasis for a reasonable suspicion. And where the lawfulness of the arrest is subsequentlychallenged, evidence of the contents of the briefing may be important.

93. Lord Steyn dealt with orders from superior officers as follows: ‘Given the independent responsibility and accountability of a constable under a provisionsuch as section 12(1) of the Act of 1984 it seems to follow that the mere fact that anarresting officer has been instructed by a superior officer to effect the arrest is not capableof amounting to reasonable grounds for the necessary suspicion within the meaning ofsection 12(1). It is accepted, and rightly accepted, that a mere request to arrest withoutany further information by an equal ranking officer, or a junior officer, is incapable ofamounting to reasonable grounds for the necessary suspicion. How can the badge of thesuperior officer, and the fact that he gave an order, make a difference? In respect of astatute vesting an independent discretion in the particular constable, and requiring himpersonally to have reasonable grounds for suspicion, it would be surprising if senioritymade a difference. ...... Such an order to arrest cannot without some further informationbeing given to the constable be sufficient to afford the constable reasonable grounds forthe necessary suspicion.’ (at 293–294)

(vii) Applicability of judicial review principles

94. The provisions of PFO s 50 give the police officer the power to arrest upon the reason-able suspicion condition being met. But he obviously has a discretion and is not obliged tomake an arrest in every case where such condition is satisfied. Indeed, the authorities show thatthere may be cases where, notwithstanding the existence of a reasonable suspicion of guilt, an

archboldHK2013-015.fm 43 Wednesday, November 14, 2012 9:30 AM

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arrest may be made in bad faith or otherwise be made in circumstances justifying a judicialreview on the basis laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223. In Mohammed-Holgate v Duke [1984] AC 437 at 443, Lord Diplock, having notedthat the conditions precedent for an arrest had been fulfilled in the case at hand, continued asfollows:

‘...... since the wording of the subsection under which he acted is “may arrest withoutwarrant,” this left him with an executive discretion whether to arrest her or not. Since thisis an executive discretion expressly conferred by statute upon a public officer, theconstable making the arrest, the lawfulness of the way in which he has exercised it in aparticular case cannot be questioned in any court of law except upon those principles laiddown by Lord Greene MR in [the Wednesbury case] ..... The Wednesbury principles, as theyare usually referred to, are applicable to determining the lawfulness of the exercise of thestatutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, notonly in proceedings for judicial review but also for the purpose of founding a cause ofaction at common law for damages for that species of trespass to the person known asfalse imprisonment, for which the action in the instant case is brought.’

Entry of premises to affect arrest

Police Force Ordinance (Cap 232), s 50(3)

15–13 50.—(3) If any police officer has reason to believe that any person to be arrested has enteredinto or is in any place the person residing in or in charge of such place shall on demand of thatpolice officer allow him free ingress thereto and afford all reasonable facilities for searchtherein.

This section does not allow a police officer to enter private premises simply to con-duct investigations: R v Chan Oi Lin [1985] HKC 138.

B. Stop and Search


15–14 50.—(6) Where any person is apprehended by a police officer it shall be lawful for such officerto search for and take possession of any newspaper, book or other document or any portion orextract therefrom and any other article or chattel which may be found on his person or in orabout the place at which he has been apprehended and which the said officer may reasonablysuspect to be of value (whether by itself or together with anything else) to the investigation ofany offence that the person has committed or is reasonably suspected of having committed:

Provided that nothing in this subsection shall be construed in diminution of the powers ofsearch conferred by any particular warrant.

The power to seize items is restricted to those items which the officer reasonablysuspects to be of value in the investigation of an offence committed by that person.A police officer ordering a search must have reasons for doing so and reasonablegrounds for apprehending the suspect must persist at that time: R v Chan Sai-leong[1989] 2 HKLR 385.


15–15 54.—(1) If a police officer finds any person in any street or other public place, or on boardany vessel, or in any conveyance, at any hour of the day or night, who acts in a suspiciousmanner, it shall be lawful for the police officer—

(a) to stop the person for the purpose of demanding that he produce proof of his identityfor inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whetheror not the person is suspected of having committed any offence at any time; and

(c) if the police officer considers it necessary to do so— (i) to search the person for anything that may present a danger to the police officer;

and (ii) to detain the person during such period as is reasonably required for the

purpose of such a search.


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The suspicion required under this provision does not have an objective element,there is no requirement the suspicion be reasonable but there must be evidence that theofficer did in fact have a suspicion. An officer who has an intuitive suspicion may lawfullystop and search under section 54 although he may only arrest and detain where it is“necessary”: Att-Gen v Kong Chung-shing [1980] HKLR 533. The search is limited to any-thing that might present a danger to the officer. It would not permit a detailed search.

Police Force Ordinance, s 54(2) and (3)

15–1654.—(2) If a police officer finds any person in any street or other public place, or on boardany vessel, or in any conveyance, at any hour of the day or night, whom he reasonably suspectsof having committed or of being about to commit or of intending to commit any offence, itshall be lawful for the police officer—

(a) to stop the person for the purpose of demanding that he produce proof of his identityfor inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whetheror not the person is suspected of having committed any offence at any time;

(c) to search the person for anything that is likely to be of value (whether by itself ortogether with anything else) to the investigation of any offence that the person hascommitted, or is reasonably suspected of having committed or of being about tocommit or of intending to commit; and

(d) to detain the person during such period as is reasonably required for the purpose ofsuch a search.

(3) In this section, “proof of identity” has the same meaning as in section 17B of theImmigration Ordinance (Cap 115).

Subsection (2) of section 54 provides wider powers of search than those provided insubsection (1). The periods of detention are limited to such periods as are reasonablyrequired for the search. Section 54 carries no power of arrest. If an officer wishes toarrest a person he has detained he must comply with the provisions of section 50(1) ofthe Police Force Ordinance. There is no power to stop and search at common law,therefore an officer must comply strictly with the statutory requirements when he doesstop and detain a person: Kenlin v Gardner [1967] 2 QB 510, [1966] 3 All ER 931. Anofficer is permitted to stop a person to whom he wishes to speak; Donnelly v Jackman[1970] 1 WLR 562, 54 CR App R 229; Daniel v Morrison (1979) 69 Cr App R 142. Sec-tion 49 of the Public Order Ordinance (Cap 245) permits a police officer to requireany person to produce proof of identity for inspection for the purpose of preventing,detecting or investigating any offence for which the person may be imprisoned. Anyperson failing to comply commits an offence. There is no requirement that such arequest be made in a public place.

Offences against the Person Ordinance (Cap 212), s 56

Apprehension of person loitering at night and suspected of indictable offences15–1756.—Any police officer may take into custody, without a warrant, any person whom he

finds lying or loitering or being in any highway, yard, or other place during the night, and whomhe has good cause to suspect of having committed, or being about to commit, or intending tocommit any indictable offence mentioned in this Ordinance, and shall take such person, assoon as reasonably may be, before a magistrate, to be dealt with according to law.

Immigration Ordinance (Cap 115), s 17C

15–1817C.—(1) Every person who— (a) has attained the age of 15 years; and (b) (i) is the holder of an identity card or is required to apply to be registered under the

Registration of Persons Ordinance (Cap 177); or (ii) is the holder of a Vietnamese refugee card,

shall have with him at all times proof of his identity. (2) A person who is required by subsection (1) to have with him proof of his identity shall on

demand produce it for inspection by— (a) any police officer;


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(b) any immigration officer or immigration assistant; or (c) any person or member of a class of persons authorized for the purpose by the

Governor by order published in the Gazette, who is in uniform or who produces, if required to do so, documentary identification officiallyissued to him as proof of his appointment as a police officer, immigration officer, immigrationassistant or, as the case may be, person authorized under paragraph (c).

(3) Any person who fails to produce proof of his identity for inspection as required bysubsection (2) commits an offence and is liable on conviction to a fine at level 2:

Provided that it shall be a defence in proceedings for an offence under this subsection forthe person charged to prove that he had reasonable excuse for failing to produce proof ofidentity.

(4) In respect of any failure to produce proof of identity for inspection as required bysubsection (2), it shall be reasonable excuse for the purposes of subsection (3) if at the date ofthe alleged offence the defendant had no proof of identity with him because all proof ofidentity of which he was the holder, including any document specified in section 17B(b)(ii),had been lost or destroyed and—

(a) he had reported the loss or destruction to a police officer at a police station or, in thecase of an identity card, to a registration officer; or

(b) he had had no opportunity so to report the loss or destruction. (5) Where the Governor authorizes any person or class of persons for the purposes of

subsection (2)(c) he may limit the authority of such persons to such area, place or occasion orin such other manner as is specified in the order by which the authority is given.

(6) Nothing in this section shall affect the operation of any order made under regulation11(1) of the Registration of Persons Regulations (Cap 177 sub leg) (relating to the compulsorycarrying of identity cards).

Public Order Ordinance (Cap 245), s 33(6)

15–19 33.—(6) Where a police officer reasonably believes that— (a) an offence against section 18 or 19 [unlawful assembly and riot respectively] has been

committed, is being committed or may be committed in any place; and (b) offensive weapons have been or may be used in the course of the commission of such

offence, he may, within the vicinity of such place, stop and search any person in a public place in orderto ascertain whether that person has been guilty of an offence against this section.

C. Entry, Search and Seizure

(1) Introduction

The Basic Law of Hong Kong, Arts 29–30

15–20 29.—The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary orunlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.

30.—The freedom and privacy of communication of Hong Kong residents shall be protectedby law. No department or individual may, on any grounds, infringe upon the freedom andprivacy of communication of residents except that the relevant authorities may inspectcommunication in accordance with legal procedures to meet the needs of public security or ofinvestigation into criminal offences.

Hong Kong Bill of Rights, Art 14

Protection of privacy, family, home, correspondence, honour and reputation15–21 14.—(1) No one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.

There are a number of statutes which empower a magistrate to issue a warrant tosearch for and seize items and to enter premises for the purpose of doing so. Theseinclude a variety of statutes authorising a magistrate to issue a warrant authorising apolice officer to search for and seize certain items and to enter premises for the purposeof doing so.


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Certain statutes apply not only to police officers but to a wide range of governmentofficials including Independent Commission Against Corruption officers, Inland RevenueCommissioners, and Customs and Excise officials. Almost all legislation relating to anyaspect of public health or safety contains enforcement provisions, including powers ofinspection, entry and search.

(2) Statute


15–2250.—(7) Whenever it appears to a magistrate upon the oath of any person that there isreasonable cause to suspect that there is in any building, vessel (not being a ship of war or aship having the status of a ship of war) or place any newspaper, book or other document, orany portion or extract therefrom, or any other article or chattel which is likely to be of value(whether by itself or together with anything else) to the investigation of any offence that hasbeen committed, or that is reasonably suspected to have been committed or to be about to becommitted or to be intended to be committed, such magistrate may by warrant directed to anypolice officer empower him with such assistants as may be necessary by day or by night—

(a) to enter and if necessary to break into or forcibly enter such building, vessel or placeand to search for and take possession of any such newspaper, book or other docu-ment or portion of or extract therefrom or any such other article or chattel which maybe found therein; and

(b) to detain, during such period as is reasonably required to permit such a search tobe carried out, any person who may appear to have such newspaper, book or otherdocument or portion thereof or extract therefrom or other article or chattel in hispossession or under his control and who, if not so detained, might prejudice thepurpose of the search.

It is not a condition precedent to the issue of a warrant that other methods havebeen tried and failed or would be bound to fail, nor that other statutory procedure forsecuring the material exists: Billericay Justices and Dobbyn, Ex p Frank Harris (Coaches) Ltd[1991] CLR 472. Where there are grounds for seeking search warrants, the police areentitled to choose when to apply for them and when, within the time permitted bylaw, to execute them: Chief Constable of Warwickshire Constabulary, Ex p Fitzpatrick [1999]1 WLR 564.

The only permitted use of the seized articles is for the purpose of investigating andprosecuting crime, after which they must be returned to their true owner. Documentsand information may be communicated to others for the purpose of investigation andprosecution, and may perhaps disclosed to other public authorities. They may not bemade available to private individuals for private purposes: Marcel v Commissioner of Policefor the Metropolis [1992] Ch 225.

Where there is an assertion that material seized is subject to legal professional privi-lege, the issue should be determined in advance of trial by way of judicial review: ShunTak Holdings Ltd & Others v Commissioner of Police [1995] 1 HKCLR 48.

(3) Search and seizure of journalistic material

15–23Special provisions exist for the search and seizure of journalistic material. Section 82of the Interpretation and General Clauses Ordinance defines journalistic material as“material acquired or created for the purpose of journalism”.

Interpretation and General Clauses Ordinance, ss 83–89

Power to enter and search or seize15–2483.—A provision in any Ordinance which confers on, or authorizes the issue of a warrant

conferring on, any person the power to enter any premises and to search the premises or anyperson found on the premises or to seize any material (whether of a general or particular kindand whether or not the word “material” is used in that provision) shall not, in the absence ofan express provision to the contrary, be construed as conferring, or authorizing the issue of a


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warrant conferring, a power to enter premises where such entry is for the purpose of searchingfor or seizing material which is known or suspected to be journalistic material.

Application for production order in respect of journalistic material15–25 84.—(1) A person on whom there is or may be conferred under a provision in any

Ordinance, being a provision to which section 83 applies, the power to enter any premises andto search the premises or any person found on the premises or to seize any material, may applyto a judge of the Court of First Instance or District Court for an order under subsection (2) inrelation to material which is known or suspected to be journalistic material. (Amended 26 of1998, s 33)

(2) If on an application under subsection (1) a judge is satisfied that the conditions in sub-section (3) are fulfilled he may make an order that the person who appears to be in possessionof journalistic material specified in the application shall—

(a) produce it to the applicant to take away; or (b) give the applicant access to it,

not later than the end of the period of 7 days from the date of the order or the end of suchlonger period as the order may specify.

(3) The conditions to be fulfilled for the purposes of subsection (2) are that— (a) there are reasonable grounds for believing—

(i) that an arrestable offence has been committed; (ii) that there is material which consists of or includes material known or suspected

to be journalistic material on premises specified in the application; (iii) that the material is likely to be—

(A) of substantial value to the investigation of the arrestable offence; or (B) relevant evidence in proceedings for the arrestable offence;

(b) but for section 83 the applicant would be or could have been authorized under theprovision mentioned in subsection (1) to enter onto the premises specified in theapplication and to search the premises or a person found on the premises or to seizethe material specified in the application;

(c) other methods of obtaining the material— (i) have been tried and failed; or

(ii) have not been tried because they were unlikely to succeed or would be likely toseriously prejudice the investigation; and

(d) there are reasonable grounds for believing that it is in the public interest that an ordershould be granted, having regard to— (i) the benefit likely to accrue to the investigation; and

(ii) the circumstances under which a person in possession of the material holds it. (4) An application for an order under subsection (2) shall be made inter partes. (5) Any person who without reasonable cause fails to comply with an order made under sub-

section (2) commits an offence and is liable to a fine at level 6 and to imprisonment for 1 year.

Application for warrant to seize journalistic material15–26 85.—(1) A person on whom there is or may be conferred under a provision in any Ordin-

ance, being a provision to which section 83 applies, the power to enter any premises and tosearch the premises or any person found on the premises or to seize any material, may applyto a judge of the Court of First Instance or District Court for the issue of a warrant under sub-section (3) authorizing him to enter those premises for the purpose of searching for or seizingmaterial which is known or suspected to be journalistic material. (Amended 26 of 1998, s 34)

(2) An application for a warrant under this section shall not be made unless it has beenapproved by a person specified in Schedule 7 to be a directorate disciplined officer.

(3) If on an application under subsection (1) a judge— (a) is satisfied—

(i) that the conditions specified in section 84(3)(a), (c) and (d)(i) are fulfilled; and (ii) that one of the further conditions set out in subsection (5) is also fulfilled; or

(b) is satisfied that an order under section 84 relating to the material has not beencomplied with,

he may, subject to subsection (4), issue a warrant authorizing the applicant to enter onto the pre-mises and to search the premises and any person found on the premises and to seize any material.

(4) A warrant issued under subsection (3) shall not authorize any entry, search or seizureother than such entry, search or seizure as, but for section 83, would be or could have beenauthorized under the provision mentioned in subsection (1).

(5) The further conditions mentioned in subsection (3)(a)(ii) are—


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(a) that it is not practicable to communicate with any person entitled to grant entry to thepremises to which the application relates;

(b) that while it might be practicable to communicate with a person entitled to grantentry to the premises, it is not practicable to communicate with any person entitled togrant access to the material;

(c) that service of notice of an application for an order under section 84(2) may seriouslyprejudice the investigation.

(6) Subject to subsection (7), it shall be a term of any warrant issued under this section that aperson who seizes journalistic material pursuant to the warrant shall seal the material upon seiz-ure and shall hold the sealed material until otherwise authorized or required under section 87.

(7) Subsection (6) shall not apply where the judge is satisfied that there may be seriousprejudice to the investigation if the applicant is not permitted to have immediate access tothe material.

(8) Any person empowered by a warrant issued under this section may— (a) use such force as may be necessary to enter the premises specified in the warrant; (b) on the premises, seize such material, including journalistic material, as may be found

and as but for section 83 he would be or could have been authorized under theprovision mentioned in subsection (1) to take possession of;

(c) detain for a reasonable period any person found on the premises who may havesuch material in his possession or under his control and who if not so detained mayprejudice the purpose of the search.

Further provision for warrants under section 8515–2786.—(1) A warrant issued under section 85, other than a warrant to which subsection (7) of

that section applies, shall— (a) specify the name of the applicant and the court issuing the warrant; (b) contain a statement setting out—

(i) the terms of the warrant applying by virtue of subsection (6) of that section; (ii) the rights conferred under section 87 to apply within a specified period for the

immediate return of journalistic material seized under the warrant, and the con-sequences provided for in that section of not so applying.

(2) A person executing or seeking to execute such a warrant shall— (a) where the occupier of the premises being entered is present, supply the occupier with

a copy of the warrant; (b) where the occupier of the premises is not present but some other person who appears

to be in charge of the premises is present, supply that person with a copy of thewarrant;

(c) if there is no person present who appears to be in charge of the premises, leave a copyof the warrant in a prominent place on the premises.

(3) Where pursuant to such a warrant material is seized which is required to be sealed andheld, the person executing the warrant shall make an endorsement on the warrant setting outdetails of such material and shall return the warrant to the court from which it was issued.

Procedure in relation to sealed material15–2887.—(1) A person from whom journalistic material has been seized pursuant to a warrant

issued under section 85, other than a warrant to which subsection (7) of that section applies, ora person claiming to be the owner of such material, may within 3 days of such seizure apply tothe court from which the warrant was issued for an order under subsection (2).

(2) On an application under subsection (1), unless the judge is satisfied that it would bein the public interest that the material be made use of for the purposes of the investigation,he shall order that the material be immediately returned to the person from whom it wasseized; and in making a determination under this subsection the judge shall have regard to,among other things, the circumstances under which the material was being held at the time ofits seizure.

(3) If on an application under subsection (1) the judge determines not to grant an orderunder subsection (2), or where no application has been made under subsection (1) within theperiod specified in that subsection, the material may be unsealed.

(4) For the purpose of determining an application under subsection (1) a judge may requirethe person who seized the material to produce it to the judge for examination by him.

(5) An application for an order under subsection (1) shall be made inter partes.

Provisions supplementary to section 8488.—(1) In relation to material consisting of information contained in a computer—


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(a) an order under section 84(2)(a) shall have effect as an order to produce the materialin a form in which it can be taken away and in which it is visible and legible; and

(b) an order under section 84(2)(b) shall have effect as an order to give an applicantaccess to the material in a form in which it is visible and legible.

(2) Notice of an application for an order under section 84(2) may be served on a personeither by delivering it to him or by leaving it at his proper address or by sending it by post tohim in a registered letter.

(3) Such a notice may be served— (a) on a body corporate, by serving it on a person who is an officer of the body within the

meaning of section 2(1) of the Companies Ordinance (Cap 32); and (b) on a partnership, by serving it on one of the partners.

(4) For the purposes of section 84, the proper address of a person— (a) in the case of an officer of a body corporate, shall be that of the registered or principal

office of that body; (b) in the case of a partner of a firm, shall be that of the principal office of the firm; and (c) in any other case, shall be the last known address of the person to be served.

(5) Where notice of an application for an order under section 84 has been served on aperson, he shall not conceal, destroy, alter or dispose of the material to which the applicationrelates except—

(a) with the leave of a judge; or (b) with the written permission of the applicant, until—

(i) the application is dismissed or abandoned; or (ii) he has complied with an order under section 84 made on the application.

(6) Any person who knowingly contravenes subsection (5) commits an offence and is liableto a fine at level 6 and to imprisonment for 1 year.

Miscellaneous15–29 89.—(1) The costs of any application under this Part and of anything done or to be done in

pursuance of an order made under it shall be at the discretion of the judge. (2) For the avoidance of doubt, it is declared that nothing in this Part shall be construed as

requiring a judge to make an order under this Part where he considers that, in all the circum-stances of the case, it would not be in the public interest to make that order.

(3) Unless a judge otherwise directs, proceedings inter partes under this Part shall be held inopen court.

(4) Rules of court may provide for the practice and procedure applying to proceedingsunder this Part.

D. Questioning and Treatment of Persons

(1) Introduction

15–30 There are no detailed provisions for the treatment of persons detained in policecustody similar to the extensive provisions contained in the Police and Criminal Evid-ence Act 1984. The Act has been supplemented by a series of codes of practice. Thetreatment of persons in police custody is dealt with by the Police General Orders whichdo not have the force of law but officers who breach them may face disciplinary pro-ceedings. The Rules and Directions for the Questioning of Suspects and the taking ofStatements (“The Rules and Directions”) issued by the Secretary for Security in 1992deal not only with the questioning of suspects but also a variety of matters concerningthe treatment of persons in police custody. They replaced and expanded the old Judges’Rules. As with the old Judges’ Rules, the Rules and Directions are not rules of law buttheir breach may lead to the exclusion of a statement by an accused: see below.

Hong Kong Bill of Rights, article 6

Rights of persons deprived of their liberty15–31 6.—(1) All persons deprived of their liberty shall be treated with humanity and with respect

for the inherent dignity of the human person. (2) (a) Accused persons shall, save in exceptional circumstances, be segregated from con-

victed persons and shall be subject to separate treatment appropriate to their status as unconvictedpersons.


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(b) Accused juvenile persons shall be separated from adults and brought as speedily aspossible for adjudication.

(3) The penitentiary system shall comprise treatment of prisoners the essential aim of whichshall be their reformation and social rehabilitation. Juvenile offenders shall be segregated fromadults and be accorded treatment appropriate to their age and legal status.

(2) Searches of detained persons

15–32The Police General Orders require that a person detained in police custody issearched on detention and the Duty Officer is responsible for the handling of prisoner’sproperty.

(3) Right to have someone informed when arrested

15–33Direction 8(a) provides that provided no unreasonable delay or hindrance is likely tobe caused to the processes of investigation of the administration of justice, a person incustody, or present with the police and under investigation by them, should be allowedto speak on the telephone to his friends.

Direction 8(d) provides that a person in custody, or present with the police andunder investigation by them, should be informed of his rights and the facilities availableto him, and in addition notices describing them should be displayed at convenient andconspicuous places at police stations.

There are no special provisions for children and young persons save that they shouldonly be interviewed in the presence of a parent or guardian, or, in their absence, aperson not a police officer of the same sex. In addition, a child or young person shouldnot be arrested or even interviewed at school if such action can possibly be avoided.Where it is essential to conduct the interview at school the consent of the head teacheror his nominee should be obtained: direction 5 of the Rules and Directions.

(4) Access to legal advice

15–34Article 11(2)(b) of the Bill of Rights provides that in the determination of any crim-inal charge against him, every person shall be entitled, as a minimum guarantee, in fullequality, to have adequate time and facilities for the preparation of his defence and tocommunicate with the counsel of his own choosing.

Rules and Directions for the Questioning of Suspects and the Taking of Statements, direction 8

Facilities for defence15–358.—(a) Provided that no unreasonable delay or hindrance is reasonably likely to be caused

to the processes of investigation or the administration of justice:— (i) A person in custody, or present with the police and under investigation by

them, should be allowed to speak on the telephone to his friends and consultand communicate privately, whether in person or in writing or on the telephone,with a solicitor or barrister. He shall be provided on request with a current list ofsolicitors provided by the Law Society.

(ii) A person in custody, or present with the police and under investigation bythem, should be allowed to have a solicitor or barrister present to advise him atany interview between that person and a police officer.

(iii) A solicitor or barrister claiming to have been instructed by a third party to act onbehalf of a person in custody, or present with the police and under investigationby them, should be allowed to communicate privately with that person, unless theperson states, in the presence of only the requesting lawyer and an independentofficer not below the rank of inspector, or a sergeant if an inspector is notavailable, that he does not wish to consult with the lawyer concerned.

(iv) The letters of a person in custody, or present with the police and underinvestigation by them, should be sent by post or other—

(v) A person who has made a cautioned statement or answered questions undercaution is entitled to a copy of such statement or record of interview and this


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should be supplied as soon as possible after each interview. The only exception iswhere hindrance is reasonably likely to be caused to the administration of justice.

If it is decided to deny a person a copy of his cautioned statement or record of interview, thereasons for this decision must be fully recorded, either within detention records or the investigat-ing officer’s notebook. In such circumstances, no further statements should be obtained and nofurther interviews should be conducted with that person until a copy of the cautioned statementor record of interview has been made available. A refusal must not continue beyond the pointwhere the person is formally charged.

To deny a person a copy of his cautioned statement or record of interview is a serious matterand such action may be the subject of enquiry at his subsequent trial.

(b) A police officer may only delay or prevent communication between a solicitor or barristerand a person in custody, or present with the police and under investigation by them, if hehas reasonable grounds for believing that unreasonable delay, or hindrance to the processesof investigation or to the administration of justice, is likely to be caused if such communicationis permitted. The fact that a solicitor or barrister might advise that person not to make,or continue to make, a statement, or not to answer questions, or not to assist the police in theirenquiries, should not in itself be treated by a police officer as a ground for delaying orpreventing communication between the solicitor or barrister and that person.

(c) A person in custody or present with the police and under investigation by them, shouldbe supplied on request with writing materials.

(d) A person in custody, or present with the police and under investigation by them, shouldbe informed of his rights and the facilities available to him, and in addition notices describingthem should be displayed at convenient and conspicuous places at police stations.

15–36 In R v Samuel [1988] QB 615, 87 Cr App R 232, Hodgson J, giving the judgment ofthe Court of Appeal, describing the right of access to legal advice as “one of the mostimportant and fundamental rights of a citizen” (at 630, 245). Where it is sought tojustify denial of the right of access to a solicitor on “reasonable grounds”, that cannot bedone except by reference to specific circumstances, including evidence about the per-son detained or the actual solicitor involved. Section 56(8) of the Police and CriminalEvidence Act only allows a police officer to delay access to a solicitor where the officerhas reasonable grounds for believing that allowing access will lead to interference withor harm to evidence connected with a serious arrestable offence or interference with orphysical injury to other persons; or will lead to the alerting of other persons suspectedof having committed such an offence but not yet arrested for it; or will hinder therecovery of any property obtained as a result of such offence.

“Therefore, inadvertent or unwitting conduct apart, the officer must believe the solicitorwill, if allowed to consult with a detained person, thereafter commit a criminal offence.Solicitors are officers of the court. We think that the number of times that a police officercould genuinely be in that state of belief will be rare. Moreover it is our view that, to sustainsuch a basis for refusal, the grounds put forward would have to have reference to a specificsolicitor. We do not think they could ever be successfully advanced in relation to solicitorsgenerally [Samuel, above, at 626, 242].”

(5) Questioning of suspects

15–37 Section 11(2)(b) of the Hong Kong Bill of Rights Ordinance guarantees that in thedetermination of any criminal charge everyone shall be entitled not to be compelled totestify against himself or to confess guilt.

Rules and Directions for the Questioning of Suspects and the Taking of Statements, rr I–III

15–38 I. When a police officer is trying to discover whether, or by whom, an offence has beencommitted, he is entitled to question any person, whether suspected or not, from whom hethinks that useful information may be obtained. This is so whether or not the person in questionhas been taken into custody so long as he has not been charged with the offence or informedthat he may be prosecuted for it.

II. As soon as a police officer has evidence which would afford reasonable grounds forsuspecting that a person has committed an offence, he shall caution that person or cause him tobe cautioned before putting to him any questions or further questions, relating to that offence.


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The caution shall be in the following terms:— “You are not obliged to say anything unless you wish to do but what you say may be putinto writing and given in evidence.”

When after being cautioned a person is being questioned, or elects to make a statement, acontemporaneous record shall be kept, so far as is practicable, of the time and place at whichany such questioning or statement began and ended and of the persons present.

III. (a) Where a person is charged with or informed that he may be prosecuted for an offencehe shall be cautioned in the following terms:—

“Do you wish to say anything? You are not obliged to say anything unless you wish to do sobut whatever you say will be taken down in writing and may be given in evidence.”

(b) It is only in exceptional cases that questions relating to the offence should be put to theaccused person after he has been charged or informed that he may be prosecuted. Suchquestions may be put where they are necessary for the purpose of preventing or minimizingharm or loss to some other person or to the pubic or for clearing up an ambiguity in a previousanswer or statement.

Before any such questions are put the accused should be cautioned in these terms:— “I wish to put some questions to you about the offence with which you have been charged(or about the offence for which you may be prosecuted). You are not obliged to answerany of these questions, but if you do the questions and answers will be taken down inwriting and may be given in evidence.”

Any questions put and answers given relating to the offence must be contemporaneouslyrecorded in full and the record signed by that person or if he refuses by the interrogatingofficer.

(c) When such a person is being questioned, or elects to make a statement, a contem-poraneously record shall be kept, so far as is practicable, of the time and place at which anyquestioning or statement began and ended and of the persons present.

Rules and Directions for the Questioning of Suspects and the Taking of Statements, principle (d)

15–39(d) when a police officer who is making enquiries of any person about an offence hasenough evidence to prefer a charge against that person for the offence, he should without delaycause that person to be charged or informed that he may be prosecuted for the offence.

(6) Recording of interviews

15–40The Rules and Directions provide guidance to police officers as regards the taking ofstatements from suspects under caution but unlike the situation in other jurisdictionsthere are no special provisions relating to the tape-recording or visual recording of inter-views. Special provisions are made for children and young persons under 16 but not forother vulnerable persons.

Rules and Directions for the Questioning of Suspects and the Taking of Statements, rr 4–6

Written statements15–41Rule IV.—All written statements made after caution shall be taken in the following manner—

(a) If a person says that he wants to make a statement he shall be told that it is intendedto make a written record of what he says. He shall always be asked whether he wishesto write down himself what he wants to say, if he says that he cannot write or thathe would like someone to write it for him, a police officer may offer to write thestatement for him. If he accepts the offer the police officer shall, before starting, askthe person making the statement to sign, or make his mark to, the following:—

“I, … , wish to make a statement. I want someone to write down what I say.I have been told that I need not say anything unless I wish to do so and thatwhatever I say may be given in evidence.”

(b) Any person writing his own statement shall be allowed to do so without any promptingas distinct from indicating to him what matters are material.

(c) The person making the statement, if he is going to write it himself, shall be asked towrite out and sign before writing what he wants to say, or before any questioning, thefollowing—


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“I make this statement of my own free will. I have been told that I need notsay anything unless I wish to do so and that whatever I say may be given inevidence.”

(d) Whenever a police Officer writes the statement he shall take down the exact wordsspoken by the person making the statement, without putting any questions other thansuch as may be needed to make the statement coherent, intelligible and relevant tothe material matters; he shall not prompt him.

(e) When the writing of a statement by a police officer is finished the person making itshall be asked to read it and to make any corrections, alterations, or additions hewishes. When he has finished reading it he shall be asked to write and sign or makehis mark on the following Certificate at the end of the statement:—

“I have read the above statement and I have been told that I can correct, alter oradd anything I wish. This statement is true. I have made it of my own free will.”

(f) If the person who has made a statement refuses to read it or to write the above-mentioned Certificate at the end of it or to sign it, the senior police officer presentshall record on the statement itself, and in the presence of the person making it, whathas happened. If the person making the statement cannot read, or refuses to read it,the officer who has taken it down shall read it over to him and ask him whether hewould like to correct, alter or add anything to what has been recorded and to put hissignature or make his mark at the end. The police officer shall then certify on thestatement itself what he has done.

Written records15–42 Rule V.—The questioning of suspects shall be recorded in the following manner:—

(a) Accurate records must be made of each interview with a person suspected of anoffence.

(b) If an interview with a suspect takes place in a police station, or other premisesproviding reasonable privacy and facilities for such interview, a contemporaneouswritten record of the interview must be made. The only exception to this rule will bewhere equipment is available to record the interview by mechanical means.

(c) Where a contemporaneous written record of an interview has been made, it mustimmediately after completion be read over to the suspect, and he should be given theopportunity to read it. The suspect must also be given an opportunity to make anycorrections alterations or additions he wishes to the record, and afterwards he shouldbe invited to write and sign the following Certificate at the end of the record.

“I, … have read the above record of interview, consisting of ........ pages. It is anaccurate record of questions asked, and answers I provided.”

(Signed) If the suspect cannot read, or refuses to read the record, or to write and sign the Certificate,

the senior officer present shall record within the record of interview, and in the presence of thesuspect, what has happened. Nothing recorded in a record of interview shall be obliterated byeither the interviewing officer or the suspect. The record must accurately reflect the total ofwhat occurred during the interview.

[Rule VI.—If at any time after a person has been charged with, or has been informed that hemay be prosecuted for an offence, a police officer wishes to bring to the notice of that personany written statement made by, or record of an interview with, another person, who in respect ofthe same offence has also been charged or informed that he may be prosecuted, he shall handto that person a true copy of such written statement or record of interview, but nothing shall besaid or done to invite any reply or comment. If that person says that he would like to make astatement in reply, or starts to say something, he shall at once be cautioned or further cautionedas prescribed by Rule lll(a).]

Rules and Directions for the Questioning of Suspects and the Taking of Statements, direction 5

Interrogation of children and young persons15–43 5.—As far as practicable, children and young persons under the age of 16 years (whether

suspected of crime or not) should only be interviewed in the presence of a parent or guardian,or, in their absence, some person who is not a police officer and is of the same sex as the child.A child or young person should not be arrested, or even interviewed at school if such action canpossibly be avoided. Where it is found essential to conduct the interview at school, this shouldbe done only with the consent, and in the presence, of the head teacher, or his nominee.


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(7) Identification

15–44An arrested person is not obliged to participate in an identification parade. Policeprocedures require that a suspect be handed a notice informing the suspect of thisright: see below. The notice will inform the suspect that evidence of the suspect’s refusalto participate in a parade may be given in evidence in subsequent court proceedings atwhich time the witness may be given the opportunity of identifying the suspect and thatthe police may make alternative arrangements for identification. No adverse inferencemay be drawn from a suspect’s refusal to participate in an identification parade: R v IpLai-sheung [1988] HKLY 229.

(8) Fingerprints, intimate photographs and other samples

Police Force Ordinance, ss 59–59H

Finger-prints, photographs, etc15–4559.—(1) Where a person has been arrested under the powers conferred by this or any other

law, any police officer may take, or cause to be taken under the supervision of a police officer— (a) photographs, finger-prints, palm-prints and the weight and height measurements of

that person; and (b) sole-prints and toe-prints of that person if the officer has reason to believe that such

prints would help the investigation of any offence. (2) The identifying particulars of a person taken under subsection (1) may be retained by the

Commissioner, except that if— (a) a decision is taken not to charge the person with any offence; or (b) the person is charged with an offence but discharged by a court before conviction or

acquitted at his trial or on appeal, the identifying particulars, together with anynegatives or copies thereof, shall as soon as reasonably practicable be destroyed or, ifthe person prefers, delivered to that person.

(3) Notwithstanding subsection (2), the Commissioner may retain the identifying particularsof a person who—

(a) has been previously convicted of any offence; or (b) is the subject of a removal order under the Immigration Ordinance (Cap 115).

(4) Notwithstanding subsection (2)(a), the Commissioner may retain, until the person attainsthe age of 18 years, or until a period of 2 years has elapsed since the person was cautioned ashereinafter referred to, whichever is the later, the identifying particulars of a person under theage of 18 years who has been arrested for an offence, who has not been charged with that offence,but who has instead, in accordance with guidelines approved by the Secretary for Justice, beencautioned by a police officer of the rank of superintendent or above as to his future conduct.

(5) Where a person is convicted of an offence, any police officer may take or cause to betaken all or any of the identifying particulars of that person whether or not such particularsare already in the possession of the Commissioner, and the Commissioner may retain anyidentifying particulars so taken unless and until the conviction is set aside on appeal.

(6) In this section, “identifying particulars” in relation to a person means photographs,finger-prints, palm-prints, sole-prints, toe-prints and the weight and height measurements ofthat person.

The police may use the photographs for purposes connected with the prevention,detection, and prosecution of crime and the apprehension of suspects: Hellewell v ChiefConstable of Derbyshire [1995] 1 WLR 804, QBD (Laws J).

Intimate samples15–4659A.—(1) In any investigation in respect of an offence committed or believed to have been

committed, an intimate sample may be taken from a person for forensic analysis only if— (a) a police officer of or above the rank of superintendent (“authorizing officer”)

authorizes it to be taken; (b) the appropriate consent is given; and (c) a magistrate gives approval under section 59B for it to be taken.

(2) An authorizing officer may only give an authorization as required under subsection(1)(a) if he has reasonable grounds—


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(a) for suspecting that the person from whom the intimate sample is to be taken hascommitted a serious arrestable offence; and

(b) for believing that the sample will tend to confirm or disprove the commission of theoffence by that person.

(3) An authorizing officer must give an authorization pursuant to subsection (2) in writing. (4) Where an authorization has been given pursuant to subsection (2), a police officer may

request the person from whom the intimate sample is to be taken and that person’s parent orguardian if he is under the age of 18 years, to give the appropriate consent to the taking of thesample and the police officer, in making the request, shall inform the person and his parent orguardian, as the case may be—

(a) of the nature of the offence in which the person is suspected to have committed; (b) that there are reasonable grounds to believe that the sample will tend to confirm or

disprove the commission of the offence by that person; (c) that he may or may not give his consent to the taking of the sample; (d) that if he consents to the taking of the sample, he may at any time withdraw that

consent before the sample is taken; (e) that the sample will be analysed and the information derived from such analysis may

provide evidence that might be used in criminal proceedings for such offence or anyother offence;

(f) that he may make a request to a police officer for access to the information derivedfrom the analysis of the sample; and

(g) that if the person is subsequently convicted of any serious arrestable offence, any DNAinformation derived from the sample may be permanently stored in the DNA data-base maintained under section 59G(1) and may be used for the purposes specified insubsection (2) of that section.

(5) The person from whom an intimate sample was taken pursuant to subsection (1) isentitled to access to the information derived from the analysis of the sample.

(6) The appropriate consent must be given in writing and signed by the person or personsgiving the consent.

(7) An intimate sample— (a) of urine may only be taken from a person by a police officer of the same sex as that

person; (b) of a dental impression may only be taken from a person by a registered dentist; (c) other than urine or dental impression, may only be taken from a person by a

registered medical practitioner.

Magistrate’s approval for the taking of intimate samples15–47 59B.—Where an authorization and the appropriate consent as required under section

59A(1)(a) and (b) have been given, a police officer shall make an application to a magistrate inaccordance with Schedule 3 for the magistrate’s approval as required under section 59A(1)(c)and the magistrate may give his approval in accordance with that Schedule.

An “intimate sample” is defined by section 3 of the Police Force Ordinance as mean-ing a sample of blood, semen or any other tissue fluid; urine; hair other than head hair;a dental impression; a swab taken from a private part of a person’s body of from aperson’s body orifice other than the mouth. “Appropriate consent” is defined by thesame section as, in relation to a person who has attained the age of 18, the consent ofthat person, and for someone below that age, the consent of both that person and of hisparent or guardian.

Non-intimate samples15–48 59C.—(1) In any investigation in respect of any offence committed or believed to have been

committed, a non-intimate sample may be taken from a person with or without his consent forforensic analysis only if—

(a) that person is in police detention or is in custody on the authority of a court; and (b) a police officer of or above the rank of superintendent (“authorizing officer”)

authorizes it to be taken. (2) An authorizing officer may only give an authorization as required under subsection

(1)(b) if he has reasonable grounds— (a) for suspecting that the person from whom the non-intimate sample is to be taken has

committed a serious arrestable offence; and


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(b) for believing that the sample will tend to confirm or disprove the commission of theoffence by that person.

(3) An authorizing officer— (a) subject to paragraph (b), must give an authorization pursuant to subsection (2) in

writing; (b) where it is impracticable to comply with paragraph (a), may give such authorization

orally, in which case he must confirm it in writing as soon as practicable. (4) Where an authorization has been given pursuant to subsection (2), a police officer shall,

before the taking of a non-intimate sample, inform the person from whom the sample is to betaken—

(a) of the nature of the offence in which the person is suspected to have committed; (b) that there are reasonable grounds to believe that the sample will tend to confirm or

disprove the commission of the offence by that person; (c) of the giving of the authorization; (d) that he may or may not consent to the taking of the sample; (e) that if he does not consent to the taking of the sample, the sample will still be taken

from him by using reasonable force if necessary; (f) that the sample will be analysed and the information derived from such analysis may

provide evidence that might be used in criminal proceedings for such offence or anyother offence;

(g) that he may make a request to a police officer for access to the information derivedfrom the analysis of the sample; and

(h) that if he is subsequently convicted of any serious arrestable offence, any DNA informa-tion derived from the sample may be permanently stored in the DNA databasemaintained under section 59G(1) and may be used for the purposes specified insubsection (2) of that section.

(5) The person from whom a non-intimate sample was taken pursuant to subsection (1) isentitled to access to the information derived from the analysis of the sample.

(6) Any consent given for the taking of a non-intimate sample pursuant to this section mustbe given in writing and signed by the person or persons giving the consent.

(7) A non-intimate sample may only be taken by— (a) a registered medical practitioner; or (b) a police officer, or a public officer working in the Government Laboratory, who has

received training for the purpose. (8) A police officer may use such force as is reasonably necessary for the purposes of taking

or assisting the taking of a non-intimate sample from a person pursuant to this section.

15–49Section 3 of the Ordinance defines a “non-intimate sample” as meaning a sample ofhair; a sample taken from a nail of from under a nail; a swab taken from any part. Otherthan a private part, of a person’s body or from the mouth but not any other bodyorifice; saliva; an impression of any part of a person’s body other than an impression ofa private part; and impression of the face of the identifying particulars described insection 59(6), above.

Limitations on use of samples and results of forensic analysis15–5059D.—(1) Without prejudice to subsection (4), no person shall have access to, dispose of or

use an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C exceptfor the purposes of—

(a) forensic analysis in the course of an investigation of any offence; or (b) any proceedings for any such offence.

(2) Without prejudice to subsection (4), no person shall have access to, disclose or use theresults of forensic analysis of an intimate sample or a non-intimate sample taken pursuant tosection 59A or 59C except—

(a) for the purposes of— (i) forensic comparison and interpretation in the course of investigation of any

offence; (ii) any proceedings for such an offence; or (iii) making the results available to the person to whom the results relate; or

(b) for the purposes of section 59G(1) and (2) where the results are of forensic DNAanalysis.

(3) Any person who contravenes subsection (1) or (2) commits an offence and is liable onconviction to a fine at level 4 and to imprisonment for 6 months.


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(4) Whether or not an intimate sample or a non-intimate sample taken pursuant to sec-tion 59A or 59C or the results of forensic analysis of the sample has been destroyed undersection 59H, no person shall use the sample or results in any proceedings after—

(a) it is decided that a person from whom the sample was taken shall not be charged withany offence;

(b) if the person has been charged with one or more such offences— (i) the charge or all the charges, as the case may be, is or are withdrawn;

(ii) the person is discharged by a court before conviction of the offence or all theoffences, as the case may be; or

(iii) the person is acquitted of the offence or all the offences, as the case may be, attrial or on appeal,

whichever occurs first. (5) Whether or not a non-intimate sample taken pursuant to section 59F or DNA information

derived from the sample has been destroyed under section 59H(7), no person shall use thesample or information in any proceedings after the Commissioner receives a notice servedunder section 59F(6).

Non-intimate samples of swabs from the mouths of convicted persons15–51 59E.—(1) Where a person—

(a) has been convicted of a serious arrestable offence on or after the commencement ofthis section; and

(b) either— (i) has not had an intimate sample or a non-intimate sample taken from him before

the conviction; or (ii) has had an intimate sample or a non-intimate sample taken from him before the

conviction but the sample was destroyed under section 59H(1) or (4) or section10G(1) or (4) of the Independent Commission Against Corruption Ordinance(Cap 204),

then a police officer of the rank of superintendent or above may authorize the taking of a non-intimate sample of a swab from the mouth of the person for the purposes of section 59G(1)and (2).

(2) Where an authorization has been given under subsection (1), a police officer shall,before the taking of a non-intimate sample of a swab from the mouth, inform the person fromwhom the sample is to be taken—

(a) of the giving of the authorization; (b) of the grounds for giving it; (c) that any DNA information derived from the sample may be permanently stored in the

DNA database maintained under section 59G(1) and may be used for the purposesspecified in subsection (2) of that section; and

(d) that the person may make a request to a police officer for access to the DNA informa-tion derived from the sample.

(3) A non-intimate sample of a swab from the mouth of a person may only be taken by apolice officer who has received training for the purpose.

(4) A police officer may use such force as is reasonably necessary for the purposes of takingor assisting the taking of a non-intimate sample of a swab from the mouth of a person pursuantto this section.

(5) The person from whom a non-intimate sample of a swab from the mouth was takenpursuant to subsection (1) is entitled to access to the DNA information derived from thesample.

(6) A non-intimate sample of a swab from the mouth of a person may only be taken within12 months after the person has been convicted of a serious arrestable offence.

Non-intimate samples given voluntarily15–52 59F.—(1) Any person who has attained the age of 18 years may voluntarily give an authoriza-

tion to a police officer of the rank of superintendent or above— (a) for the taking of a non-intimate sample from him (“volunteer”); (b) for the storage of DNA information derived from the sample in the DNA database

maintained under section 59G(1); and (c) for the use of the DNA information for the purposes specified in section 59G(2).

(2) An authorization given under subsection (1) must be in writing and signed by thevolunteer.

(3) A police officer of the rank of superintendent or above may accept the authorizationgiven under subsection (1).


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(4) Where an authorization has been given pursuant to subsection (1), a police officer shall,before the taking of a non-intimate sample, inform the person from whom the sample is to betaken—

(a) the DNA information derived from the sample may be stored in the DNA databasemaintained under section 59G(1) and may be used for the purposes specified insubsection (2) of that section;

(b) that he may make a request to a police officer for access to the information; and (c) that he may at any time withdraw his authorization given for the purposes referred to

in subsection (1)(b) and (c). (5) A non-intimate sample may only be taken from a person by—

(a) a registered medical practitioner; or (b) a police officer, or a public officer working in the Government Laboratory, who has

received training for the purpose. (6) Where a non-intimate sample is taken from a volunteer pursuant to this section, the

volunteer may, at any time by notice in writing to the Commissioner, withdraw his authorizationgiven for the purposes referred to in subsection (1)(b) and (c).

DNA database15–5359G.—(1) There shall be maintained (whether in computerized form or otherwise), by the

Government Chemist on behalf of the Commissioner, a DNA database storing DNA informationderived from an intimate sample or a non-intimate sample taken from a person pursuant to—

(a) section 59A or 59C if the person has been subsequently convicted of any seriousarrestable offence;

(b) section 10E of the Independent Commission Against Corruption Ordinance (Cap 204)if the person has been subsequently convicted of any serious arrestable offence;

(c) section 59E; or (d) section 59F.

(2) No person shall— (a) have access to any information stored in the DNA database; or (b) disclose or use any such information, except to the extent necessary for the purposes

of— (i) forensic comparison with any other DNA information in the course of an

investigation of any offence by a police officer or an officer of the IndependentCommission Against Corruption;

(ii) producing evidence in respect of the DNA information in any proceedings forany such offence;

(iii) making the information available to the person to whom the information relates; (iv) administering the DNA database for the purposes of or connected with any of

the following— (A) paragraph (i), (ii) or (iii) or subsection (1); (B) section 59H; or

(v) any investigation or inquest into the death of a person under the CoronersOrdinance (Cap 504).

(3) Any person who contravenes subsection (2) commits an offence and is liable on convic-tion to a fine at level 4 and to imprisonment for 6 months.

Disposal of samples and records, etc15–5459H.—(1) The Commissioner shall take reasonable steps to ensure that—

(a) an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C;and

(b) a record to the extent that it contains information about the sample and particularsthat are identifiable by any person as particulars identifying that information with theperson from whom the sample was taken, which may be retained by him or on hisbehalf are destroyed as soon as practicable after— (i) if the person has not been charged with any offence, the expiry of—

(A) subject to subparagraph (B), 12 months from the date on which the samplewas taken (“the relevant period”); or

(B) such further period or periods as may be extended under subsection (2)(“the extended period”);

(ii) if the person has been charged with one or more offences within the relevantperiod and the extended period, if any— (A) the charge or all the charges, as the case may be, is or are withdrawn;


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(B) the person is discharged by a court before conviction of the offence or allthe offences, as the case may be; or

(C) the person is acquitted of the offence or all the offences, as the case may be,at trial or on appeal,

whichever occurs first. (2) A police officer of or above the rank of chief superintendent may extend or further

extend the relevant period for not more than 6 months for each extension if he is satisfied onreasonable grounds that it is necessary to the continuing investigation of the offence or offencesin relation to which the sample was taken that the sample and the record concerned beretained.

(3) Subsection (1) shall not affect any DNA information which has already been permanentlystored in the DNA database pursuant to section 59G(1)(a), (b) or (c).

(4) Without prejudice to the operation of subsections (1) and (2), if— (a) a person from whom an intimate sample or a non-intimate sample was taken pursuant

to section 59A or 59C has been convicted of one or more offences; and (b) there is no other charge against the person in relation to an offence which renders

the retention of the sample necessary, then the Commissioner shall take reasonable steps to ensure that the sample which may beretained by him or on his behalf is destroyed as soon as practicable after the conclusion of allproceedings (including any appeal) arising out of the conviction.

15–55 (5) Where a non-intimate sample of a swab was taken from the mouth of a person pursuantto section 59E and his conviction of the relevant serious arrestable offence has been sub-sequently quashed on appeal other than an order of re-trial, the Commissioner shall takereasonable steps to ensure that any DNA information derived from the sample which may beretained by him or on his behalf is destroyed as soon as practicable after the conviction isquashed.

(6) The Government Chemist, whilst maintaining the DNA database under section 59G(1),shall take reasonable steps to ensure that every non-intimate sample taken pursuant to section59E or 59F is retained only for as long as is necessary to enable DNA information to be obtainedfrom the sample, and is then destroyed.

(7) Where a non-intimate sample is taken from a person pursuant to section 59F and thatperson subsequently serves a notice to the Commissioner under subsection (6) of that section,the Commissioner shall take reasonable steps to ensure—

(a) in case the sample has not been analysed, that the sample is destroyed as soon aspracticable;

(b) in case the sample has been analysed but DNA information derived from the samplehas not been stored in the DNA database pursuant to section 59G(1)(d), that theDNA information is destroyed as soon as practicable;

(c) in case DNA information derived from the sample has been stored in the DNAdatabase pursuant to section 59G(1)(d), that the DNA information is removed fromthe DNA database and destroyed as soon as practicable, after the Commissionerreceives the notice.

II. CONFESSIONS

A. The Exclusion Rule

(1) Non-discretionary exclusion

15–56 The principle that the accused’s extra-judicial confession will be inadmissible as amatter of law in his trial, if extorted or obtained by threats or promises, has long beenentrenched in our criminal law. The judge or magistrate must exclude a confession ofthe accused if it is involuntary. The modern locus classicus of the principle of exclusion isas Lord Sumner stated in his opinion in Ibrahim v Rex [1914] AC 599, PC, at 609:

“It has long been established as a positive rule of English criminal law that no statement byan accused is admissible in evidence against him unless it is shown by the prosecution tohave been a voluntary statement in the sense that it has not been obtained from him eitherby fear of prejudice or hope of advantage exercised or held out by a person in authority.”

Lord Sumner followed the judgment of Cave J in R v Thompson [1893] 2 QB 12. Inturn, his own opinion was endorsed by the House of Lords in Commissioners of Customs


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Sect. II] Confessions § 15–57

and Excise v Harz and Power [1967] 1 AC 760 and DPP v Ping Lin [1976] AC 574; [1975]3 All ER 175, wherein Lord Hailsham added the word “oppression” to Lord Sumner’sdictum: (see also R v Rennie (1982) 74 Cr App R 207). The notion that “oppression”, per se,could render a confession inadmissible was accepted as settled law in R v Li Wai Fat[1977] HKLR 531 and was firmly endorsed in Secretary for Justice v Lam Tat Ming [2000]2 HKLRD 431 at 439. In R v Lam Yip Ying [1984] HKLR 419, Roberts CJ described LordSumner’s statement of principle as “the classic test of the voluntary nature of a confes-sion”. The Chief Justice remarked in his judgment (at 422) that “a gloss” had beenadded to the “Ibrahim” test in Seeraj Ajodha v The State [1982] AC 204, PC, which “appar-ently” decided that a confession obtained by fraudulent misrepresentation should beregarded as involuntary. In that case a police officer had falsely informed the accusedthat he was signing a document different in nature from that which he had, in fact,signed. Ajodha (above) was affirmed by the Court of Final Appeal in Secretary for Justice vLam Tat Ming (above). In R v Sang [1980] AC 204, Lord Diplock observed that that “aconfession obtained by threats or promises is inadmissible in evidence against him,because to admit it would be unfair”. This issue of “unfairness” will be considered in thesecond part of this section, when the “residual” discretion of the judge is discussed.A statement which is held involuntary in a criminal proceeding can be admissible in asubsequent disciplinary proceeding since voluntariness is not a criterion for admitt-ing evidence in such a proceeding: Tso Tak Keung v Secretary for the Civil Service [2009]3 HKLRD 497, CA.

The reliability principle

15–57The first recorded example of there being a judicial inquiry into the circumstances ofhow a confession had been induced is to be found in a report recorded in Year Book 30of the reign of Edward I (1302). In Robert de Skelbroke le Botiler ; a case of murder, theaccused alleged that he had made his confession in order to escape the cruelties he hadexperienced in gaol. The judges called for another prisoner to give evidence, as he hadpurported to contradict the accused’s contention. The report suggests that the judgesdid consider it necessary to conduct an enquiry into the circumstances of how the con-fession came to be made. The development and expression of the exclusionary ruleprobably began early in the middle ages. The common law has never recognised thevalidity of coerced confessions, especially where torture had been used. For a modernapplication of this principle in the context of confession evidence procured by tortureinflicted by foreign nationals and adduced in the Special Immigration Appeals Commis-sion in the United Kingdom, see A v Secretary of State for the Home Department [2006] 2 AC221, HL. The earliest appearance, in practice, of the exclusionary rule being appliedcan be traced back to the time of Hale, in the seventeenth century.

The ruling of the judges in R v Warickshall (1783) 1 Leach CC 263 is traditionallyregarded as the first, definitive, expression of the principle that a coerced confessionshould be excluded as evidence against the accused. The case is important in anotherrespect. The accused, who had been charged as an accessory after the fact to theft, hadmade a confession to the crime. The accused had confessed to her guilt and disclosedwhere the stolen property could be found. The accused’s confession was excluded onthe ground that it had been obtained by promises of favour. On the other hand, thejudges rejected the argument that the fact of the finding of the stolen goods should alsohave been excluded under the same principle. In R v Barker [1941] 2 KB 381, the Courtof Criminal Appeal held that fraudulently prepared documents produced by a tax payerin reliance upon a promise made by a tax inspector not to prosecute if the tax payerdisclosed past tax frauds, were inadmissible. The Court took the view (at 385) that suchdocuments “stand on precisely the same footing as an oral or written confession……brought into existence as the result of a promise, inducement or threat”. In Lam ChiMing v R [1991] 2 WLR 1082, PC, Lord Griffiths followed the observations of the judgesin Warickshall, above, that “Facts thus obtained, however, must be fully and satisfactorilyproved, without calling in the aid of any part of the confession from which they mayhave been derived”. In Lam Chi Ming v R, above, the appellant’s confession to the crime


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of murder had been ruled to be inadmissible, on the ground that it was involuntary.Following this confession the appellant had led the police to a location where he hadpointed out where the murder weapon could be found. The Privy Council was of theOpinion that the pointing gesture by the appellant was as much a part of his confessionas the accompanying words. The Board considered that the discovery of the weapon, insuch circumstances, had no evidential significance in the trial. This would not be so ifsome objective fact, independent of the confession, could be adduced by the prosecu-tion: for example, the accused’s fingerprints on the murder weapon. Two of the judges,Nares J and Eyre B, in Warickshall, above, laid down the principle, which has remainedthe clearest statement of the exclusionary rule to this day; that a coerced or inducedconfession might be untrue or at least unreliable.

15–58 “Confessions are received in evidence, or rejected as inadmissible, under a considerationwhether they are or not entitled to credit. A free and voluntary confession is deserving ofthe highest credit, because it is presumed to flow from the strongest sense of guilt, andtherefore is admitted as proof of the crime to which it refers; but a confession forced fromthe mind by the flattery of hope, or by torture or fear, comes in so questionable a shapewhen it is to be considered as the evidence of guilt, that no credit ought to be given to it;and therefore it is rejected.”

This statement of principle can be regarded as the progenitor of the “reliability test”.Implementation of this test presupposes that the court, having found that the confes-sion was extorted by fear or favour or even assault, must then consider whether or notany credit could be given to it. In fact, this is not how the law developed. During thenineteenth and up to the middle of the twentieth century it was commonplace forconfessions to be excluded where there had been some inducement or impropriety, nomatter how slight. This approach has been called the “absolute test rule”: see R v Moore(1852) 2 Den, at 525 and R v Fennel (1881) 7 QBD 147, and may have originated in thefact that in the trials of felony offences the accused was not permitted to give evidencein his own behalf until the Criminal Procedure Act 1898. In the fifth edition of Russellon Crimes and Misdemeanours, (1877), at volume III, p 442, the learned editors give thefollowing rationale of the “absolute” rule:

“A confession can never be received in evidence, where the prisoner has been influenced byany threat or promise; for the law cannot measure the force of the influence used, or decideupon its effect upon the mind of the prisoner and, therefore, excludes the declaration, if anydegree of influence has been exerted.”

The establishment of the modern rule of exclusion

15–59 It is submitted that the two rules or principles summarised above have been sub-sumed within one principle: a confession which has not been affirmatively proved tobe voluntary will not be admissible in evidence against the maker. This modern rule ofexclusion is exemplified in R v Ping Lin, above. On the other hand, it has never beenthe case that the “reasonable man” approach should be followed. The judges havenever used this test because to do so would be to ignore the obvious fact that mostdefendants do not act reasonably, when arrested and/or accused of a crime. They areoften in an agitated state of mind and can act irrationally. In R v Northam (1968) 52 CrApp R 97, Winn LJ rejected the notion of the “reasonable man” test, (at 104):

“It is not the magnitude, it is not the cogency to the reasonable man or to persons with suchknowledge as is possessed by lawyers and others which is the proper criterion. It is what theaverage, normal, probably quite unreasonable person in the position of the appellant at thetime might have thought was likely to result to his advantage from the suggestion agreed toby the police officer. The Court realises that this is imposing yet one more clog on theefficient performance of the police of their duties.”

In DPP v Ping Lin, above, the House of Lords held that where the admissibility of aconfession statement was questioned by the accused the prosecution must, as a matterof law and fact, prove that the statement in question was not obtained as a consequence


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of words or conduct by a person in authority. Lord Hailsham, in his speech made thefollowing statement of principle:

“If, as I have said, the test be as laid down by Lord Sumner and not any other, it follows thatwhat excludes [of a confession] is a chain of causation resulting from the words or conducton the part of the person in authority, (or as other cases have decided, by some personin his presence), giving rise to a decision by the accused by fear of prejudice or hope ofreward. The test of the chain of causation is objective as in “holding out”, and there neednot be an antecedent concluded bargain. No doubt the understanding by all the parties ofthe words and phrases used is part of the background which must be studied in order toarrive at the truth.”

15–60It is submitted that Lord Hailsham was not advocating the “reasonable man” test, but,instead, a test of the effect of the words and or conduct on the accused in the light ofhis particular idiosyncrasies of personality, experience, age, personal circumstances andthe circumstances of the case. What Lord Hailsham’s suggests is that a court, whenhaving to decide on the admissibility of a questioned confession, should place emphasison two factors: (1) the reasonable likelihood or possibility of an actuation of fear orhope in the mind of the accused by words or conduct on the part of a person in author-ity and, (2) that such fear or hope causes the accused to speak or act against his interest.

In Hong Kong however, the Court of Final Appeal has departed from this test in itsdecision, Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540. The Court has transformedPing Lin’s “chain of causation” assessment into a strict “two-stage approach” that hasboth an objective and subjective component: Chau Ching Kay, above at para 30. Accord-ing to the decision of Chan PJ (at para 30):

“[a] trial judge has to consider: (1) whether there is any conduct on the part of the personin authority which is capable of constituting an inducement, that is, something which iscapable of influencing the mind of the accused, and (2) whether the prosecution haveproved beyond reasonable doubt that such inducement had not influenced the mind ofthe accused. The first involves an examination of the conduct of the person in authority andthe second the effect of such conduct on the accused.”

The first question contemplates a reasonable person assessment, as Chan PJ indicatedlater in his judgment (at para 37): “the conduct on the part of the person in authoritymust be conduct which in the circumstances of the case is capable of being reasonablyunderstood to be either an acceptance of the offer made by the accused or a promiseof an advantage made by the person in authority” (emphasis added). Agreeing withLord Hailsham in Ping Lin, Chan PJ stated that applying the approach was ultimately“a matter of applying common sense to all the facts of the case”: para 35.

What DPP v Ping Lin, above, also holds is that it is not necessary for the court to findthat the person holding out the inducement is actuated by malice or some otherimproper motive: (see also R v Chan Yip-kan [1986] HKC 35). Such reasoning clearlyremoves the disciplinary factor as a justification for excluding a confession. DPP v PingLin, above, also removed the presumption of causation. In other words the judge wouldnot be obliged to exclude a confession only because the person in authority had actedimproperly. He must go on and find that the inducements or oppressive behaviour mayhave caused the accused to confess. The accused must have been influenced by theinducement. If he were not then the prosecution will have proved the admissibility ofthe confession. In other words the prosecution must prove that the confession wasvoluntary. In one of the earliest statements of the rule in this jurisdiction (R v Wong ChiuKwai [1908] HKLR 163), it was stated that a confession which had been obtained byviolence cannot be free and voluntary.

The person in authority

15–61In R v Northam, above, Winn LJ suggested that the causation test could govern theadmissibility of confessions made after an inducement had been held out by personsnot in authority (he also referred himself to a previous judgment of his in R v Richards[1967] 1 WLR 653). In R v Northam, at 103, he said:


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“… there was a distinction … between inducements by persons not in authority, with regardto which the proper test the court then (in Richards), said must be whether a confession wasin fact induced, whether there had been a persuasion of will of the individual to make sucha confession, whereas in the case of inducements offered by a person in authority, in par-ticular police authority, the question was: was any offer or promise made which was capableof constituting an inducement, as distinct from one which in fact induced?”

Neither the courts in this jurisdiction nor in England and Wales have ever preciselydefined who comes within the meaning of the phrase “person in authority”. It is prob-able that the best definition of this term is to be found in the words of Viscount Dilhornein Deokinnanan v R [1969] 1 AC 20, PC. He expressed the opinion, at page 33, that aperson in authority was anyone who “has authority or control over the accused or overthe proceedings or prosecution against him”. Viscount Dilhorne quoted, with approval,the statement of Bain J in R v Todd (1901) 4 CCC 514; 13 Man L R 364 at 376, (Canada).Here are some examples, which are not exhaustive, of when someone has been held tobe a “person in authority”:

(1) magistrates and their clerks: R v Cooper (1833) 5 C & P 535, and coroners: R vWaltho, The Times, 17 June 1905;

(2) police and other investigating officers, (such as Customs and Excise officers andofficers of the Independent Commission Against Corruption and the Immigra-tion Department), see R v Moore (1972) 56 Cr App R 373 and R v Butler [1941]1 KB 381;

(3) the person who arrested the accused and prison officers; (4) employers: R v Moore (1852) 2 Den 522; R v Ho Chi-hung (unrep., Crim App

No 1195 of 1981). (5) it is submitted that foreign police officers or officials, who have the authority to

arrest and question the suspect should also be within the category of persons inauthority.

In this context, a confession to a crime, made to a fellow employee was held not to bemade to a “person in authority”: Lam Sai-cheung v HKSAR [1998] 2 HKLRD 499, CFA.This was an application for leave to appeal. The judgment was short and to the point.The application was dismissed.

A useful summary of this ill-developed area of the law can be found in an article,“Confessions – The Person in Authority Requirement” [1981] Crim L R 94. These prin-ciples, in their generality, have been followed in this jurisdiction: R v Chau Mei-ling[1981] HKC 542. It is also a matter of perception. If the accused believes, on reasonablegrounds, that the person, to whom he makes the confession, is a person in authority,then this factor must be taken into account by the judge or magistrate: Secretary for Justicev Lam Tat-ming & Another [2000] 2 HKLRD 431 at 439. In R v Dixon & Smith (1992) 62A Crim R 465, Wood J suggested that:

“… unless the inducement comes from a person supposed by the accused to have somecapacity to carry it into effect, it would be unlikely to elicit a confession that would be other-wise withheld. I would accordingly hold that a person in authority includes any person con-cerned in the arrest, detention or examination of the accused, or who has an interest inrespect of the offence, or who is otherwise is seen by the accused, by virtue of his position, ascapable of influencing the course of the prosecution, or in a manner in which he is treatedin respect of it.”

15–62 The Supreme Court of Canada held in Rothman v R (1981) 59 CCC (2d) 30 that anundercover police officer, to whom a prisoner had unwittingly made a confessionalstatement, was not a person in authority because he had not been “regarded as such” bythe prisoner. The perception is subjective not objective. The judgment of the SupremeCourt in Rothman has been the subject of many articles and commentaries: see, forexample A.D. Gold’s “Confession – Person in Authority” (1981) 23 Crim LQ 334 and anarticle written by J.J. Avray, “Rothman v R: The Confession Rule” (1982) Supreme CourtL R 263. In R v Todd, above, two persons were retained by the police to associate witha suspect, Todd, and report on what he said to the chief of police. They were, in fact,informers. During his association with the informers, Todd claimed that he had mur-


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dered a man, which was the subject of the inquiry. It was on this evidence that Todd wasconvicted. In the Quebec Court of Appeal, Bubuc J, in upholding the trial judge’sruling that the confession was admissible, stated that had he employed an objective test,he would have been obliged to find that the two informers were, in reality, ad hoc police-men. That being so they would have been deemed to be “persons in authority”.

Eavesdropping on conversations between suspects or prisoners by the investigatingauthorities is regarded as an acceptable method of crime detection. In R v Ali & Hus-sain [1966] 1 QB 688: (1965) 4 Cr App R 230, police officers rigged up a listeningdevice in a room where the two appellants were placed together with a Pakistani liaisonofficer. The appellants were not under arrest nor, it seems, were they suspects. Unbe-known to the appellants, their conversation, which was in the Punjabi dialect of theUrdu language, was recorded on audio tape. This tape was the principal piece of evid-ence in the appellants’ trial for murder. This was not the first time that an audio taperecording had been admitted into evidence: see (1956) Crim L R 442. In Hopes &Another v HM Advocate (1960) SC( J) 104, a person, who was being blackmailed, hadworn a recording device, when discussing the payment of money with the blackmailer.Evidence of the conversation, as recorded, was given by a police officer and a stenographer,who had made a transcript of the tape recording, after listening to it played back severaltimes. The recording was held to be admissible. The victim could not have been a per-son in authority in such circumstances. In R v Stewart (1970) 54 Cr App R 210, a policeofficer disguised himself as a prisoner in order to record incriminating conversationsbetween the appellant and another prisoner. This was a deliberately executed operationto obtain incriminating evidence against a suspect. The Court of Appeal held that herethere was no “trap”. Even if this were the case voluntariness was not in issue. As it wasstated by Lord Cooper, in Lawrie v Muir (1950) SC( J) 19, the law strives to reconcile twohighly important interests, which are likely to be in conflict; that is the interest of thecitizen to be protected from illegal or irregular invasions of his liberty and the interestsof the community to ensure that evidence bearing upon the commission of crimeshould not be withheld on merely formal or technical grounds.

A confession made by an accused person to a fellow prisoner, (not an unusual occur-rence), provided it is otherwise voluntary, is not rendered involuntary because it hadnot been made to a person in authority. On the other hand, if the confession had beenextorted by the violence or threats of a fellow prisoner, the fact that he was not a “per-son in authority” would not inhibit the judge from exercising his residual authority toexclude the confession: R v Geesing (1985) 16 A Crim R 90. Then again, if the violenceor oppression were sufficient to over-bear the mind of the accused, it is likely that theresulting confession would be excluded as being involuntary.

What amounts to a “confession”

15–63There is no real distinction in principle between a person, who has been induced bythreat or promise to make a full confession and another, who has made one or moreincriminating statements: Commissioners of Customs and Excise v Harz and Power, above.It is submitted that a confession will necessarily include an admission. The two wordsconfession and admission are used synonymously in this chapter. However, the term“admission” is much wider in its meaning and includes admissions of fact, which may ormay not be made against the interest of the maker. There are statutory provisions whichpermit the court, in a criminal trial, to accept admissions, whether made formally orinformally or by operation of law. As it is generally understood the term “admission” ismore appropriate to civil proceedings. Such matters are not within the ambit of thischapter. For the purposes of this chapter a confession means a confession to the crime,which is the subject of the enquiry. It is submitted that the word “confession” meansany statement wholly or partly adverse to the person who made it: Ibrahim v Rex, above.A confession to a crime may be made by silence in the face of an accusation: R v Christie[1914] AC 545, HL, at p 554, Lord Atkinson was of the opinion that:

“[The accused] may accept the statement by word or conduct, action or demeanour, and it isthe function of the jury which tries the case to determine whether his words, action, conduct


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or demeanour at the time when the statement was made amount to an acceptance of it onthe whole or in part.”

This statement of principle has been followed in this jurisdiction: R v Cho Chak-bor[1983] HKLR 174. In Lam Chi-ming v R, above, the Board held that such issues as admis-sibility, relevance, voluntariness and the exercise of the discretion of the court toexclude unduly prejudicial material, can be the subject of the “special issue” procedure,(eg the voir dire) before being admitted into evidence. In Timothy v The State [2000]1 WLR 485 the Privy Council held that it was open for the accused to challenge theadmissibility of a purported admission made by gesture (as well as by silence and orconduct). See also Thongjai & Another v R [1997] HKLRD 678, [1998] AC 54.

Lord Diplock in Hall v R [1971] 1 WLR 298, PC, made it very clear that a person isentitled to refrain from answering questions put to him, for the purpose of discoveringwhether he had committed a criminal offence. It is only in exceptional circumstancesthat an adverse inference can be drawn from a failure to give an explanation or a denialin response to an accusation of a crime. In Parkes v R [1976] 1 WLR 1251, PC, LordDiplock reinforced his statement of principle in Hall, above, by pointing out that theremust be some conduct or something in the circumstances accompanying the silencewhich indicates that the accused had accepted the truth of the accusation. That beingthe case silence can amount to a “statement”. Lord Diplock added the further require-ment for admissibility in Hall: in that the accused’s reaction or lack of reaction shouldbe in response to an accusation made by a person “on even terms”. In R v Mitchell(1892) 17 Cox CC 503 at 508, Cave J noted:

“Undoubtedly, when persons are speaking on even terms, and a charge is made, and theperson charged says nothing, and expresses no indignation and does nothing to repel thecharge, that is some evidence to show that he admits the charge to be true. But where astatement is made in such circumstances that the prisoner cannot repel the charge, it isabsurd to say that his remaining silent is any evidence of the truth of the charge.”

15–64 Lord Justice Lawton, in R v Chandler (1976) 63 Cr App R 1 at 4, expressed somereservations about Lord Diplock’s opinion in Hall above. He believed that it was inconflict with what Lord Atkinson had said in Christie, above. The learned appeal judgeconsidered that a suspect, accompanied by his solicitor might well be regarded as beingon equal terms with the questioning police officer. He noted that the Court of Appealwas not bound by Hall, but by Christie. In Hall, above, Lord Diplock also made thisstatement of principle (at 112):

“In their Lordship’s view the distinction sought to be made (that is no caution had beengiven), is not a valid one … The caution merely serves to remind the accused of the rightwhich he already possesses at common law. The fact that in a particular case he has not beenreminded of it is no ground for inferring that his silence was not an exercise of that right,but was an acknowledgement of the truth of the accusation.”

The approach of Lord Diplock has been followed in numerous judgments of thecourts in Hong Kong, including the Court of Appeal: see R v Yeung Kam-chun (unrep.,Cr App No 822 of 1981); R v Chau Chi-hung (unrep., Cr App No 515 of 1982). In R vChan Kung Ling [1992] 1 HKCLR 43, the Court of Appeal stressed that in exceptionalcircumstances an accused could be cross-examined upon his failure to deny an accusa-tion. In Chan Kung Ling the accused, a police officer, had been subdued by two civiliansafter a robbery. He did not make any protest to them that they were mistaken. When apolice officer arrived on the scene a short time later the accused did not tell him that hewas a police officer. In evidence the accused stated that he was a police officer pursuingthe culprit. The Court of Appeal held that the accused could be cross-examined uponhis failure to inform the civilians or the police officer that he was a police officer andthat he was pursuing the robber. In the same appeal, Kempster JA disagreed on thispoint but not in the result and emphasised the right of a suspect to remain silent: heaffirmed the dictum of Lord Diplock in R v Hall, above.

15–65 The Court of Final Appeal has firmly held that a suspect’s silence in the face of policequestioning, after a caution has been given, is not to be “used against him in any way”:


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Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at para 55. The Court explained that a“person’s right against self-incrimination (his right of silence) would otherwise becomea possible source of entrapment. It is unfair for a person to have the right to remainsilent, and usually to have been reminded of this right through the caution, and thenfor his silence to be put against him at trial” (at para 56).

Consistent with these principles, the Court of Appeal in HKSAR v Chow Wing Man(unrep., CACC 613/2002, [2004] HKEC 993) quashed a murder conviction because thejury was allowed to see and hear a video-recording of the accused’s record of inter-view, during which he, on the advice of his legal advisor, repeatedly refused to answerquestions directly related to the murder investigation. The Court concluded that theaccused’s silence “in the face of highly pertinent questioning on issues of crucial signi-ficance, may … have had an adverse effect on his trial” in the sense that “the jury mayhave used the applicant’s refusal to answer as a reflection on his credibility” (at para 63).The case was distinguished from that of R v Mann [1972] 56 Cr App R 750 where therewere a number of questions voluntarily answered by the accused interspersed with ques-tions which he refused to answer. The English court held that in such a situation the“whole dialogue” should go before the jury (at 757). Chow was applied in HKSAR v LoLik Man (unrep., HCMA 629/2004, [2004] HKEC 1066), CFI where the magistrateerred by using the accused’s failure to protest in the record of interview as a reason forrejecting his claim that he did not make an earlier oral admission alleged by the police.The Court of Final Appeal returned to the issue of inference from silence again inHKSAR v Lam Sze Nga (2006) 9 HKCFAR 190. In this case, one of the issues was whetheror not the defendant made the oral confession recorded in the post-recording. Thedefendant alleged that the oral admission had not been made and she signed the post-recording involuntarily. She did not complain about that until five months later. TheCourt of Final Appeal held that the jury ought to be directed that if they were satisfiedthat the statement was signed involuntarily, the jury could not draw any adverse infer-ence from the defendant’s silence for five months before complaining (at para 28). Onretrial, the defendant was convicted of the same offence and the case went on appeal tothe Court of Appeal. The Court, in allowing the appeal, followed the Court of FinalAppeal on the point that the defendant could not be cross-examined on the delay with-out a proper warning to the jury. It further held that the defendant was protected by theright of silence even if she had not intended to avail herself of the right, as long as shehad not waived it. In deciding whether the defendant had waived the right, questionsabout the delay could be put to the defendant. However, once the jury found in favourof the defendant, then they should treat her as if she had maintained her right ofsilence, in which case no adverse inferences could be drawn against her. Since such adirection to the jury had not been given, the appeal was allowed and a re-trial ordered:HKSAR v Lam Sze Nga [2007] 2 HKLRD 75, CA, at para 52–54. The court remarked that:

“The right of silence is a fundamental right which an accused person enjoys under thecommon law whether he knows it or not. If he did not know of it or did not understand it orwas too frightened to even think about his position, then it must follow that he would nothave intended to exercise it. And yet, if the prosecution’s argument is correct, the ignorantor confused or frightened defendant who was honest enough to say that he did not speakup for those reasons would not enjoy the protection of the right of silence because he hadnot intentionally availed himself of it.” at §15–50.

Similarly in HKSAR v Jarhia Kuldeep Singh (unrep., CACC 96/2006, [2006] HKEC1655), CA, the court was concerned with the District Court judge’s remarks in relationto the defendant’s silence. The trial judge commented that the defendant’s “Notanswer” reply was an “unlikely reaction by someone who had been falsely accused ofsaying something incriminating”. The judge approached the defendant’s silence as amatter which went to credibility and thus erred as this was using his silence against him.Generally, if the defendant answered none of the questions during the interview, therecording of the interview showing the “one-sided dialogue” ought not to be admitted:Chan Kau Tai, at para 133, adopting R v Mann (1972) 56 Cr App R 750 and HKSAR vChow Wing Man (unrep., CACC 613/2002, [2004] HKEC 993). The position is the same


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if the only answers from the defendant consisted of corrections of mistakes of the inter-viewer: Chan Kau Tai, at para 135. Moreover, the prosecution cannot simply argue thatthe evidence, otherwise inadmissible, ought to be admitted as it formed part of thewhole picture: Chan Kau Tai, at para 138. However, in Chan Kau Tai, it was held thatgiven the particular circumstances of that case (the lack of objection by the defencecounsel during the trial at first instance, the benefit to the defendant in admitting theevidence and the absence of prejudicial effect), the one-sided dialogue could be admitted.

What if during the interview, only a few questions are not answered? Should thosequestions be excised? Chan Kau Tai held that in that situation, the jury “was entitled tosee the whole course of interview” (para 134). The court also mentioned the lack ofobjection by the defence counsel at trial as being a relevant consideration (para 134).The Criminal Law Revision Committee in its 11th Report, (1972, UK), endorsed theviews expressed in Customs and Excise Commissioners v Harz and Power [1967] 1 AC 760,HL; that no distinction should be drawn between full confessions and admissions ofsome elements of the offence charged which may, at first glance, appear to be innocu-ous or even exculpatory: see also Kwan Ping Pong & Another v R [1977] HKLR 220, PC,and R v Lee Yi Choi (unrep., Crim App 131/1985, [1986] HKLY 212]. In this contexta “statement” includes both recorded and unrecorded confessions. It is also of signi-ficance that Lord Reid in Harz, above, at p 819, sought to equate admissions with con-fessions. The oral confession made to a police officer, as recorded in his notebook,but not signed or acknowledged by the suspect, can be the subject of the special issueprocedure: Thongjai & Another v R, above.

A statement in the form of an apology may or may not constitute a confession oradmission. “In the case of crime, an apology will constitute an admission if it is a state-ment against the interests of the author of the statement”: HKSAR v Lau Ka Yee (2004)7 HKCFAR 510, at para 52. Such an apology might be described as an “equivocal admis-sion”. It has been held that where a conviction is based on an equivocal admission andthere is no other evidence to support the conviction, the conviction will be quashed: R vChan Yun Hung [1987] 2 HKC 228 at 231E, CA, which was cited in Lau Ka Yee, at para53. What amounts to a confession – a statement which, at least, is partly adverse to themaker – is a mixed question of law and fact. An issue may arise in a trial as to what isinculpatory or exculpatory. What may be exculpatory at first sight can turn out to bevery incriminating, if it can be shown to be false or the accused has departed from itsterms, when giving evidence in the trial. Such a statement can be regarded as a dis-guised confession. In Piché v R (1970) 11 DLR (3d) 709 the Supreme Court of Canadaheld, by a majority, that such an exculpatory statement must also satisfy the voluntari-ness test. There the Court adopted the reasoning of Chief Justice Burger in Miranda vArizona 384 US 436 at 477, where he stated:

“no distinction should be drawn between inculpatory statements and statements alleged tobe merely ‘exculpatory’. If a statement made were in fact exculpatory it would, of course,never be used by the prosecution. Statements merely intended to be exculpatory by thedefendant are often used to impeach his testimony at trial or to demonstrate untruths in thestatement given under interrogation and thus prove guilt by implication. These statementsare incriminating in any meaningful sense of the word.”

15–66 There must be few occasions when an exculpatory statement could be regarded asinvoluntary. On the other hand, there could be an occasion where the investigatingofficers insist that the suspect say something, he then tells them lies, which, on theirface, are exculpatory in nature, believing that if he said nothing he might suffer adverseconsequences.

It is submitted, that as a general rule, an exculpatory statement cannot be regarded asa “confession”, and if it is not a statement made against interest it is technically hearsay.It should only be elicited as part of the prosecution’s case if, on the prosecution’sevidence, it can be shown to be false or, in cross-examination of the accused, to proveinconsistency.

In section 82(1) of the Police and Evidence Act 1984 (PACE), the definition of con-fession, as interpreted by the courts in England, appears to be more narrowly drawn:


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“‘confession’ includes any statement wholly or partly adverse to the person who made it,whether made to a person in authority or not and whether made in words or otherwise.”

Thus PACE has dispensed with the common law requirement that an impugned con-fession should be made to a person in authority before it could be regarded as involun-tary. This is contrary to the law and practice in this jurisdiction. This is not to say that aconfession made to any person, when elicited by a high degree of threat, violence or bydeceit is admissible as evidence, because it was not made to a person in authority: R vLee Yi Choi [1985] 1 HKC 578. The common law principle, which is followed in thisjurisdiction, stipulates that it would be for the judge to exercise his inherent discretion,in the interest of ensuring a fair trial, to exclude such a confession. Some may regardthis approach as unnecessarily technical. The objective of PACE was to remove the moreobvious anomalies, which had become embedded in the common law.

In R v Sat-Bhambra (1989) 88 Cr App R 55 the Court of Appeal was inclined to theview that purely exculpatory statements were not “confessions” within the meaning ofsection 82(1) of PACE. The Court did not follow the contrary views expressed in Piché vR, above, and Miranda v Arizona, above. In support of its judgment the Court cited Crossand Tapperon Evidence, 9th edn, p 611 and Andrews and Hirst on Criminal Evidence, 1st edn,para 19.04. In both works, there is quoted the words of Lord Widgery in R v Pearce(1979) 69 Cr App R 365, in that: “A denial does not become an admission because it isinconsistent with another denial”. The notion that an exculpatory statement cannot betreated as a confession for the purposes of section 76 of PACE, merely because it is usedas a tool to contradict the evidence of an accused, has been confirmed in R v Park(1994) 99 Cr App R 270, CA. This is the literary approach; in that the words of thesection are construed on the premise that an exculpatory statement is neither whollynor partly adverse to the maker, though it may well become highly incriminating. TheHouse of Lords has affirmed the Sat-Bhambra interpretation of “confession” in R v Hasan[2005] UKHL 22, at para 57.

15–67In this jurisdiction we do not have a statutory regime like PACE; the principles relat-ing to the admissibility of a confession are entirely judge-made. Nor, since its enactment,does it appear that the provisions of PACE have had any real influence on the judges ofHong Kong. In many respects the provisions of PACE have made radical changes to thecommon law. The Judges’ Rules have been replaced by statutory codes. In Hong Kongthe Judges’ Rules of 1912 have been subsumed into the Rules and Directions for theQuestioning of Suspects and the Taking of Statements. These Rules and Directions wereissued by the Secretary for Security in October 1992, partly in response to the HongKong Bill of Rights and partly to make the rules relating to the questioning of suspectsmore structured and more relevant to modern conditions.

Reconstructions

15–68Participation in a “reconstruction” of a purported crime by a suspect is a relativelyrecent development in the investigative procedures of law enforcement. It is a speciesof admission against the interest of the accused, should he be charged with havingcommitted the crime: R v Li Shu-ling [1989] AC 270, [1989] 1 HKLR 82, PC. As suchwhat the suspect does or says during the reconstruction is evidence against him. Ifhis consent to the reconstruction of the crime has been induced by coercion or prom-ises it will be ruled to be inadmissible, like any other confession. The prosecution mustestablish that the accused’s participation was voluntary. Video recorded reconstructionsare admissible. In this regard R v Pang Shun-yee [1988] 2 HKLR 146 should not befollowed.

Admissions by agents

15–69In R v Downer (1880) 14 Cox CC 486 it was held that an agent, acting with the author-ity of the accused, may make an admission against the interest of the accused. Lawton LJin R v Turner (1975) 61 Cr App R set out the principles which could render admissible aconfession, (or admission), made by an agent of the accused:


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“First, a duly authorised agent can make admissions on behalf of his principal. Secondly, theparty seeking to rely on the admission must prove that the agent was duly authorised …Whenever a fact has to be proved, (ie the fact of due authorisation) any evidence havingprobative effect and not excluded by a rule of law is admissible to prove that fact: circum-stantial evidence is just as admissible as direct evidence.”

“Oppression”

15–70 The word “oppression” can be elusive of meaning. The Courts will usually apply whatit understands the word to mean as it applies to a given set of facts. In Burut v PP ofBrunei [1995] 2 HKC 305, PC, Lord Steyn gave a terse definition of this word. He sug-gested that the word “oppression” meant “any conduct calculated to sap the will of theperson being interviewed”. With respect, Lord Steyn’s words appear to suggest thatthere should be an element of calculation even design on the part of the interviewer orinvestigating police officer, before his conduct can be described as oppressive. It shouldbe noted, however, that the appellants in Burut were subjected to a “special procedure”,when being questioned by the Brunei police, because they had been accused of firearmsoffences. This “special procedure” includes questioning a suspect while he is hoodedand manacled. The appellants had not given evidence in the voir dire. Thus it might besaid that Lord Steyn was fashioning his words to fit the circumstances of the case. ThePrivy Council found that such a procedure was inherently oppressive and it was for theprosecution to prove to the requisite standard that this form of questioning was notoppressive and that the appellants’ wills had not been sapped thereby. There were manyother unsatisfactory features about this case, including the fact that the appellants hadbeen held in custody for a year before being brought before a magistrate. Anotherfeature of this appeal is that it was from the Brunei Court of Appeal, (which had dis-missed the appeals), upon which sat three appeal judges of Hong Kong. Two otherHong Kong judges had sat in the court of trial. In R v Li Wai-fat [1977] HKLR 531, theCourt of Appeal accepted that “oppression” was a factor to be considered in the trial ofthe special issue of admissibility. The Court also noted that making comparisons withother cases, where confessions had been excluded, was not the correct approach, thusechoing the words of Lord Hailsham in DPP v Ping Lin, above. Every case should bedecided on its own facts and circumstances. In Burut, above, the case of Att-Gen of HongKong v Wong Muk Ping [1987] AC 501; [1988] 1 HKLR 56 was noted.

In R v Prager [1972] 1 All ER 1114 (at p 1119); 52 Cr App R 1, Edmund Davies LJextended the meaning of oppression, (borrowing the words of Lord MacDermott in anaddress to the Bentham Club in 1968), in that it included:

“Questioning which by its nature, duration or other attendant circumstances (including thefact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind ofthe subject that his will crumbles and he speaks when otherwise he would have stayed silent.”

15–71 These views were endorsed by Li CJ in Secretary for Justice v Lam Tat-ming & Another[2000] 2 HKLRD 431 at 439, CFA, and in the Court of Appeal in HKSAR v LeungChin-ming [2001] 1 HKLRD 272. Li CJ, in Lam Tat-ming, above, at 439H, emphasisedthe principle that the rule of voluntariness was established as “an essential safeguard forthe accused against the coercive power of the law enforcement agencies”. He alsonoted, at letter J, that the right of silence is “deeply rooted in the common law. It hasbeen analysed to embrace a number of immunities”. Edmund Davies LJ, in Prager,above, also noted with approval the meaning given to the word by Sachs J in R v Priestly(1965) 51 Cr App R 1, wherein it was noted that what may be oppressive to a child or anold man may not be so to an experienced man of the world. This theme is picked up inLi Wai-fat v R [1977] HKLRD 531, where the Court of Appeal made the point that theappellants were experienced police officers, who knew of their rights to remain silent.They had been subjected to very long periods of questioning, each had been confinedin a windowless room and had been deprived of their personal belongings, includingtheir watches. The Court held that the confession statements were voluntary and thatthe appellants had not been subjected to such treatment such as to sap their free will.The Court may well take a different view if the suspect had been an ordinary member of


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the public, a young or aged person, or a person suffering from a disability, whether it bephysical or mental.

In R v Fulling [1987] QB 426, Lord Lane CJ (at 432), said that the word oppressionshould be given its ordinary dictionary meaning, which is:

“The Oxford English Dictionary as its third definition of the word runs as follows: ‘exercise ofauthority or power in a burdensome, harsh, or wrongful manner, unjust or cruel treatmentof subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens’.”

15–72Fulling was applied in R v Emerson (1991) 92 Cr App R 284. In R v Paris (1993) Cr AppR 99, the police were held to have acted oppressively in shouting at a suspect, tellinghim what they wanted him to say, after he had denied involvement in the offence onmore than 300 occasions. Oppressive behaviour at one interview may taint subsequentinterviews: R v Smith (WD) (1994) Cr App R 233, CA; Burut v PP, above.

What is oppressive is a question of fact: R v Prager, above. In R v Lo Sun-wah [1980]HKLR 253, the Court of Appeal took the view that a confession obtained after lengthyquestioning might be tainted with the suspicion of oppressive behaviour (see alsoHKSAR v Leung Chiu Ming [2001] 1 HKLRD 272). Whereas, Silke JA in R v Chan Tung-hoi[1985] 1 HKC 544 said:

“This court has often said that questions of themselves are not improper, provided that theyare not oppressive.”

Whether or not there has been oppression in an individual case will depend on manyfactors. They include length of time of the questioning; the duration of the interval oftime between interviews; the conditions wherein the interview is conducted, such as acold or very hot room; shouting, or insulting the suspect; keeping him chained or man-acled while the interview is conducted. It is submitted that unwarranted detention for asubstantial period of time, without explanation or the opportunity to contact familyfriends or a lawyer, may set the context in which an elicited confession is ruled to beinadmissible on the ground of oppressive circumstances. In Ashcraft v Tennessee [1944]322 US 143, (at 160), in the US Supreme Court, Jackson J pointed out that:

“The effect of threats alone may depend more on individual susceptibility of fear. But menare so constituted that many will risk the postponed consequences of yielding to a demandfor a confession in order to be rid of present or imminent physical suffering.”

There is clear authority for the proposition that evidence obtained in an oppressivemanner can be ruled to be inadmissible. In Callis v Gunn [1964] 1 QB 495, (a finger-print case), Lord Parker CJ spoke of evidence “obtained in an oppressive manner byforce or against the wishes of an accused”. In R v Hudson [1981] 72 Cr App R 163, theCourt of Appeal held that a combination of acts, some of which were unlawful andsome unfair by the investigating police officers, could raise doubts as to the voluntarynature of a confession. In Hudson, (1) there was an arrest against an instruction that nocharge would be preferred; (2) a breach of section 38(4) of the Magistrate’s Courts Act1952, in that following his arrest H had not been taken before a court (or charged)within 48 hours of his arrest; see section 52(1) of the Police Force Ordinance (Cap 232).H was kept in the police station for five days before being released; (3) that havingmade admissions on day one and day two of his detention, H was neither charged norwarned that he might be prosecuted – consequently H’s continued detention becameunlawful after the expiration of 48 hours; (4) H’s age and circumstances; and, some ofthe things H is alleged to have said during the interviews. In all H was questioned forsome 25 hours, he was asked more than 700 questions. It does not follow from thisdecision that any unlawful or unfair act would be regarded as sufficient to render aconfession inadmissible. At common law, breaches of the Judges’ Rules, and now theRules and Directions (see §§15–122 et seq, below) are rarely, if ever, sufficient in them-selves to impugn the admissibility of a confession.

In HKSAR v Cheung Kwok Chung [2004] HKEC 38 at para 24, the Court of Appealheld that showing a defendant his co-defendant’s statement, which incriminated theformer, without telling him that the co-defendant’s statement could not be used againsthim, did not in itself amount to oppressive conduct.


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The truth of a confession

15–73 A plea of guilty in the face of the court is the most cogent of confessions, providedthe Court is satisfied that the accused also accepts the facts, upon which the plea isgrounded. It is a rule of commonsense that an accused would not confess to a crimethat he had not committed. More often than not a suspect will “confess to the truth” inan extra-judicial statement. Yet when the matter comes to trial he will, very often, resilefrom his confession. He will contend that his confession was involuntary. The questionof whether or not the confession was free and voluntary will be decided as a “specialissue”. In such proceedings the accused can give evidence. The right of the accusedto give evidence on the special issue was, at one time, placed in doubt. This is nolonger the case. In R v Hammond (1941) 28 Cr App R 84, CA, the Court of CriminalAppeal had to decide upon the question of whether or not an accused could be askedif the confession he had made to the police was true. During the “trial within a trial”,(or voir dire), the accused in cross-examination had been asked if his statement weretrue, the accused said it was. The cross-examination then proceeded as follows:

“Q: What you are now saying is that you were forced into saying what was true by somethingthat was done. Is that right?

A: Yes, sir. Q: So you did kill Mr. Roberts? A: Yes, sir.”

On appeal, Humphries J found that the question was clearly admissible:

“It was a perfectly natural question to put, and was relevant to the issue whether the storywhich the appellant was telling of being attacked and ill-used by the police was true or false.”

15–74 In Hammond, above, the Court of Appeal criticised the judgments in two Canadiancases, R v Weighill (1945) 83 CCC 387, BC CA, and R v Hnedish (1958) 29 CR 347, SaskSC, which held to the contrary. In Hnedish, above, Chief Justice Hall remarked that“when the point comes squarely to be decided, another court will take a hard look atthe whole question”. In the two Canadian judgments the courts had held that the onlyissue was one of voluntariness. The Privy Council in Wong Kam-ming v R [1979] 2 WLR81, without hesitation, overruled Hammond, above. At page 85, Lord Edmund-Daviesmade the following trenchant observations:

“Their Lordships were told by counsel that in England and Wales it has become commonpractice for prosecuting counsel to ask the defendant in the voir dire whether his challengedstatement was in fact true. It is difficult to understand why this practice is permitted, andimpossible to justify it by claiming that in some unspecified way it goes to ‘credit’.”

Lord Hailsham disagreed, in part, with the majority Opinion of the Board. At page92, he suggested that in some circumstances, and subject to the discretion of the trialjudge to allow the question to be asked, the issue of the truth of a statement maybecome relevant to the larger issue of whether or not it was voluntary. He entered thiscaveate to the majority decision:

“Obviously, the judge must be allowed a discretion in the matter. He must not permit coun-sel to pursue the matter of truth or falsity of items in a confession for an ulterior reason or inan oppressive manner, or at undue length, but I am not able to say, a priori, that all mustnecessarily be irrelevant.”

Lord Edmund-Davies, at page 87, took the issue further, by posing two questions:

“But what if the confession is held admissible? In such circumstances, it is unlikely that theprosecution will need to do more than rely upon the confession itself. Nevertheless, in prin-ciple should they be prevented from proving in addition any admission made by the defen-dant on the voir dire? This question has exercised their Lordships a great deal, but even inthe circumstances predicated it is preferable to maintain a clear distinction between theissue of voluntariness, which alone is relevant to the voir dire, and the issue of guilt falling tobe decided in the main trial. To blur this distinction can lead, as has already been shown,to unfortunate consequences, and their Lordships have therefore concluded that the


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same exclusion of evidence regarding the voir dire proceedings from the main trial must beobserved, regardless of whether the challenged confession be excluded or admitted.”

15–75Later, at page 88, Lord Edmund-Davies, clearly conveyed the Opinion of the Board,which was to the effect that should the accused testify on the main issue, he could becross-examined on any inconsistencies between what he had said in the voir dire and hisevidence on the general issue. He likened the situation where the accused has givensworn testimony as a witness in a previous trial. See also R v Li Kim-hung [1969] HKLR84, Full Court; R v Ng Chun-kwan [1974] HKLR 319 and; R v Brophy [1982] AC 476,[1981] 2 All ER 705, HL. In such circumstances the cross-examiner should not suggestin his questioning of the defendant the nature or purpose the previous proceedingswherein the defendant had come to give evidence.

The prohibition on the admission of evidence adduced in the trial within a trial is notabsolute. In a trial before a judge alone, or a magistrate, the evidence given by prosecu-tion witnesses on the special issue can be considered by the court on the general issue.However, in R v Ng Chun-kwan, above, McMullin J made it clear that the only way inwhich evidence of an admission or statement made by an accused in the voir dire pro-ceedings may be adduced as evidence is by way of rebuttal, if the accused gives evidenceon the general issue. Such evidence of rebuttal may serve to weaken the case of theaccused, but it cannot strengthen the case for the prosecution. The accused’s untruth-fulness is a factor that the judge or magistrate is entitled to consider, when assessing theweight to be given to his evidence. On the other hand, if the accused elects not to giveevidence in his defence, nothing of what he testified to on the special issue can featureas evidence on the general issue, whether or not it be inculpatory or exculpatory. ln R vLai Chi-shing [1987] HKLR 422, CA, it was held that in a trial before a District Courtjudge, the evidence of prosecution witnesses, who had testified in the special issue,whether it be in a voir dire or in the alternative procedure, was admissible on the generalissue. There would be no need to call them twice. On the appeal Cons VP, made thepoint that the reason why there can be no reference to the accused’s evidence is that todo so would impinge upon his right of silence. In HKSAR v Sze Sun-man [1998] HKLRD(Yrbk) 401, the Court of Appeal held that the testimony of witnesses called by thedefence on the special issue, cannot be evidence, in any way, in the general issue. Withrespect it is not clear from the report why the distinction between prosecution anddefence witnesses was made. At page 236, Power VP, stated that he could not agree withthe proposition that there was no difference between prosecution and defence wit-nesses, he continued:

“We are satisfied that when a defendant calls evidence in the voir dire proceedings and laterindicates that he is not calling evidence on the general issue, the voir dire evidence cannot beused either for or against him on the general issue. Although it does not determine thematter, we cannot help but note that in a jury trial, clearly no use could be made of suchevidence as a jury would have no knowledge of any of the evidence given in the voir dire.”

This appeal highlights the distinction to be made between jury and non-jury trials.It is to be emphasised that the prohibition, in a jury trial, applies also to prosecutionwitnesses. They must give evidence again before the jury.

Can the issue of exclusion be revisited after the trial judge has admitted the confession into evidence?

15–76There is conflicting authority on the issue of whether the judge can reconsider hisdecision, admitting a confession into evidence. In R v Watson [1980] 2 All ER 293, CA,the Court of Appeal restated the general principle that the judge retains control overthe evidence submitted or adduced in a trial. That being so the judge can reconsiderhis ruling on the admissibility of evidence. It would not be enough for the judge just to“change his mind”. There should be some change of circumstance, which would warranta reversal of a previous ruling. In Watson, above (at 994A–C), Cumming-Bruce LJ held:

“In our view the judge was wrong to rule as he evidently did that he had no power to con-sider the relevance of evidence, given after the trial within a trial, upon the issue whether the


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written statements were not voluntary and therefore inadmissible. He should have allowedcounsel to develop his submission and should have ruled upon its merits.

It is the duty of the judge to exclude from the jury’s consideration evidence which isinadmissible. In the case of a written statement, made or signed by the accused, the judgemust be satisfied that the prosecution have proved that the contested statement was volun-tary, before allowing the jury to decide whether to act upon it. Experience has shown thatwhere the question of the voluntary character of a statement has been investigated anddecided at a trial within a trial, it is only in very rare and unusual cases that further evidencelater emerges which may cause the judge to reconsider the question whether he is still satis-fied that the statement was voluntary and admissible. But where there is such evidence, thejudge has power to consider the relevance of the admissibility of evidence upon which hehas already ruled.”

The occasions when the trial judge would permit counsel to question a previousruling on the issue of admissibility would be rare. In R v Murphy [1965] NILR 138, (TheNorthern Ireland Courts-Martial Appeal Court), Lord MacDermott LCJ asked himself ifthe discretion is spent once it has been exercised against the accused. At pages 143–144of the report, Lord MacDermott answered his own question thus:

“To say that it is then too late to reconsider the objection would, we think, be to run the riskof letting the technicalities of the situation prevail over the requirements of justice. Theadmission of a confession as voluntary, on evidence heard in the absence of the jury, may beshown by subsequent evidence to be clearly involuntary and therefore inadmissible. In suchcircumstances we consider it would undoubtedly be within the province of the court eitherto instruct the jury to disregard the evidence as no longer admissible or, in the absence ofother evidence capable of sustaining the charge, to direct an acquittal.”

15–77 The trial judge, therefore, can reconsider his decision. A similar approach wasregarded as acceptable by the Court of Appeal in R v Chan Chun-ming [1980] HKLR 785.In an earlier appeal, R v Ho Yiu-fai [1970] HKLR 415, the Full Court stated that, wherethe issue of the admissibility of a confession is in question, the judge sitting without ajury, must ensure that: (1) the defence is not left with the impression that the right ofcross-examination is limited to the issue of admissibility; (2) that the accused, (by givingevidence), is heard on the issue of admissibility; and, (3) that a ruling on the admissibil-ity of the confession is made at or before the close of the case for the prosecution (alsosee the judgment of McMullin J, as now reported in R v Leung Siu-ng [1992] 2 HKCLR).In R v Lam Yin-yung [1992] 2 HKCLR 53, the accused had not challenged his confessionbut during cross-examination of the police officer, who had taken down the statement,it became apparent that the confession, as recorded, may not have been voluntary. TheCourt of Appeal, on the basis that this was a non-jury trial, held that though the state-ment had been admitted into evidence the trial judge should have held, or reopened,the trial of the special issue, and then followed the steps of the procedure suggested inR v Ho Yiu-fa, above. If on the reopened trial of the special issue the judge finds that theconfession may not have been voluntary after all he will exclude it from the evidence. Ina jury trial, where such circumstances may also arise, the judge can adopt one of threecourses; (1) he can discharge the jury, if he thinks that the admission of the accused’sconfession was inadvertent, or without challenge, or perhaps where a crucial witness,who was absent at the voir dire stage, has since become available; (2) the trial judge cantell the jury to ignore the confession, as if it had not been made (not always the kind oflogic which would appeal to the lay person) or; (3) if the confession is crucial to theprosecution’s case, and there is no other evidence of any substance, sufficient in itself tofound a conviction, he should direct the jury to enter a verdict of not guilty. In R v LukSiu-keung [1984] HKLR 333, the Court of Appeal held that where the accused hadchosen to have the issue of admissibility heard and determined in front of the jury, andthe trial judge had concluded that the confession was inadmissible, the proper coursewould be to withdraw the confession from the jury and then direct them to ignore it.If there is no other evidence, the judge should direct the jury to return a verdict of notguilty and order the acquittal of the accused. There is clear authority in support of theproposition that the accused, at his request, may have the issue of admissibility decidedby the judge in the presence of the jury: Ajodha v The State, above.


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There is authority which appears to suggest that the trial judge or magistrate can beasked by the prosecution to reconsider his earlier decision to exclude a confession:HKSAR v Lok Kar Win & Others [2001] 1 HKLRD 733, (a decision of the Court of FirstInstance). This was a case of some complexity which, for reasons that are not imme-diately apparent, was tried before a magistrate. The accused appealed against theirrespective convictions on a variety of grounds. The learned appellate judge accepted theproposition that a judge or magistrate had the discretion to “reverse” an earlier rulingthat a confession was inadmissible. This was an observation made by him in response toa hypothesis advanced by counsel. The appellate judge ruled that in the peculiar cir-cumstances of the case the magistrate was right to admit into evidence the statementsmade by two of the appellants, on the ground that he had, at an earlier stage of the trial,been in fundamental error in holding that the evidence of a crucial witness for theprosecution was inadmissible. Subsequently, the magistrate changed his mind andallowed the witness, who was an accomplice, to give evidence both in the voir dire of twoof the appellants and on the general issue. The magistrate also ruled that the evidenceof the witness was relevant in the general issue against all the appellants. In this case themagistrate was “reversing” his decision regarding the evidence of a witness, not theinclusion of a confession, which he had earlier found to be inadmissible. The fact is thaton the first, erroneous ruling, there had been no evidence at all from the witness. Leaveto appeal to the Court of Final Appeal was refused by the Appeal Committee: (unrep.,FAMC No 27 of 1999).

With respect, this case is not authority for the proposition that a judge may reversehis ruling and thus admit into evidence a confession, which he had earlier ruled tobe inadmissible. On the other hand there appears to be nothing in the law or in theapplication of logic to prohibit a trial judge from reversing his decision to exclude aconfession. To support a ruling of this kind the circumstances would have to be veryexceptional.

Re-litigating the issue of admissibility

15–78The law on this point is not entirely satisfactory. There is a lack of clear authority. Itoften happens that an accused is tried on more than one occasion for the same crime.For example: the accused may have had his conviction reversed by the appeal court,with an order that he be retried; the jury may not be able to reach a valid verdict and somust be discharged, a new jury will be empanelled to try the case; the jury may bedischarged before the end of the trial, thus making it necessary for a new trial to beheld before a fresh jury; after the trial has commenced and some evidence heard it maybecome necessary for the indictment to be severed, thus causing one or more of theaccused to be tried separately before a different jury. In each of these situations theadmissibility of a confession made by the accused may have been the subject of a voirdire. The trial judge may have excluded the confession, or admitted it into evidence. Insuch circumstances, in the retrial the prosecution may seek to re-litigate the issue ofadmissibility, where the confession had been ruled to be inadmissible in the previoustrial. On the other hand the defence may seek to raise the issue of admissibility beforethe new judge, where the confession had been allowed into evidence by the first trialjudge. The Supreme Court of Canada in Duhamel v R (1984) 43 CR (3d) 1, 15 CCC (3d)491 found that the rule of issue estoppel does not apply to questions of admissibility incriminal proceedings. Issues of admissibility do not decide any substantive rights, nordoes the admission of a confession into evidence decide the issue of fact fundamental tothe guilt or innocence of the accused. The Court described the exclusion or admissioninto evidence of a confession as an autonomous issue unrelated to guilt or innocence;it was in the nature of an interlocutory finding. In conclusion the Supreme Court agreedwith the decision of the lower appeal court that there was nothing in the law to preventthe Crown from raising the issue of voluntariness in the second trial, in spite of thefact that the confession had been ruled to be inadmissible on a previous occasion. TheNew Zealand Court of Appeal, on very similar facts, came to the opposite conclusion:Bryant v Collector of Customs [1984] 1 NZLR 280.


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In Bryant, the appeal court followed the decision of the House of Lords in Hunter vChief Constable of West Midlands [1982] AC 529. In Bryant there had been an acquittal inthe first trial, because the trial judge had ruled that his confession was inadmissible. Theappellant had then been recharged and tried for another offence. The judge in thesecond trial held that he was not bound by the ruling on admissibility made by the firstjudge. After considering the evidence afresh the judge in the second trial ruled thatthe confession was admissible and duly convicted the appellant. On appeal the NewZealand Court of Appeal held that there had been a “final decision” in the first trial.The appeal court followed Hunter, above, and found that the re-litigation of the issue ofadmissibility in the second trial was an abuse of process of the court. However, the Courtleft open (at 285) the issue of:

“whether that principle has any application where … a new trial is ordered or whether thereare other considerations bearing on its application where that doctrine is invoked againstthe accused.”

15–79 In Hunter, above, Lord Diplock stated that in his opinion (one shared by the otherjudges) the term “issue estoppel” was restricted to the species of estoppel per rem judi-catam, that may arise in civil actions between the same parties or their privies. LordDiplock had first made this statement of principle in the case of Mills v Cooper [1967]2 QB 459. It was adopted and approved in DPP v Humphrys [1977] AC 1. In short, “issueestoppel” has no place in the criminal law (followed in R v Yu Wai-shan [1986] HKLR550). In Hunter, above, the plaintiff had sought to re-litigate the issue of the admissibilityof his confession, wherein he had admitted to committing a number of bombing out-rages, with others, in the Birmingham area during the 1970s. At his trial Mr Hunter’sconfession was admitted into evidence after a lengthy voir dire: his appeal against convic-tion was dismissed by the Court of Appeal. Mr Hunter took proceedings in the civilcourts to claim damages for the injuries which he claimed he had suffered at the handsof the investigating police officers. The House of Lords held that this action, as a matterof public policy, was an abuse of the process of the court, as Mr Hunter’s principalobjective was to reverse the findings of the judge and the jury in the criminal trial. Theissue relating to the admissibility of Mr Hunter’s confession necessarily involved the trialjudge and the jury finding that there had been no assaults or improper behaviourby the police. This was a “final decision” of the court, which had not been upset onappeal. The House of Lords did hold, however, that if fresh evidence had come to lightsince the trial, which had radically changed the aspect of the case, the intended plaintiffcould be permitted to proceed with his action.

In R v Rogers (1994) 181 CLR 251, the High Court of Australia came to a similarconclusion in regard to criminal proceedings: to re-litigate the admissibility of a confes-sion in a subsequent trial was an abuse of process. There appears to be some distinctionmade between the non-discretionary and discretionary exclusion of evidence. In R vEdwards (1997) 94 A Crim R 204, on appeal, it was held that it was permissible for thejudge in the second trial to re-open the issue of the admissibility of certain evidence,which had been excluded in the first trial on the ground that its prejudicial effect out-weighed any probative value it may have. In R v Cossey [1991] 1 NZLR 566, the NewZealand Court of Appeal held that the prosecution was entitled to re-litigate the issuesof admissibility in the second trial. The Court, in part, came to this conclusion becausethere had been no “final decision” in the first trial. The appellant’s conviction had beenquashed and a re-trial had been ordered. In a previous appeal, R v Fatu [1989] 3 NZLR419, the Court of Appeal had held that a “re-run” of the voir dire was not an abuse ofprocess. At the second trial the judge could give weight to the earlier ruling, though hewas not obliged to follow it. In R v Chu To-chung [1995] 2 HKCLR 18, Keith J considered,with some concern, the conflicting decisions of the courts on this point. He appears tohave found that the crucial issue is whether or not the decision in the previous trial was“final”. The learned judge referred to the case of R v Pervez [1983] Crim L R 108, inparticular Professor J.C. Smith’s commentary at p 109, the portion of that commentary,as quoted by Keith J, reads as follows:


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“… facts may emerge at the voir dire which would justify the judge in excluding a strictlyadmissible confession in the exercise of his discretion – such as a breach of the Judge’sRules. It does not seem satisfactory that a discretion should be exercised by any judge otherthan the judge in charge of the proceedings which result in a verdict.”

15–80It should be noted that in Pervez, above, the same judge had presided over both trials.In the first trial he had ruled that the confessions were admissible. Therefore to re-litigate the issue again before him would seem to be a waste of time. This is not to say thatcircumstances may have changed since the first trial, new evidence may have come tolight: this point was noted by Keith J. But he thought that the situation would, in principle,be the same, irrespective of whether or not the trial judge on the second trial was thesame or another, provided that new evidence was available which: (a) could not havebeen obtained with reasonable diligence for use at the first trial; (b) would probablyhave an important influence on the determination of the issue if it had been given inthe first trial; and (c) has the appearance of credibility about it. He ordered that a voirdire on the admissibility of the accused’s confession should be held. With respect it issuggested that this is a matter which should receive the attention of the Court of Appealat the first opportunity. There is no definitive authority in this jurisdiction on the point.

(2) Discretionary exclusion

15–81Even when the voluntary nature of a defendant’s confession, or incriminating asser-tions, has been proved, or admitted, judges are often invited to exercise their discretionto exclude them on the ground that there has been some breach of the Judges’ Rules,now the Rules and Directions (issued by the Secretary of Security in 1992). Judges rarelyaccede to these invitations. On the other hand, a judge in a criminal trial has always thediscretion to refuse to admit evidence where, in his opinion, its prejudicial effect out-weighs its probative value. The exclusionary discretion described here is often referredto as either “residual” or “inherent”. The paramount duty of a judge is to ensure thatthe parties receive a fair trial. The existence of this discretion was first clearly recognisedby the House of Lords in R v Christie [1914] AC 545. The classic statement of the rule isto be found in the words of Lord du Parcq, when delivering the opinion of the PrivyCouncil in Noor Mohammed v R [1949] AC 182 at 192:

“In all such cases the judge ought to consider whether the evidence is sufficiently substantial,having regard to the purpose to which it is professedly directed, to make it desirable in theinterests of justice that it should be admitted, If, so far as that purpose is concerned, it can inthe circumstances have only trifling weight, the judge will be right to exclude it. To say this isnot to confuse weight with admissibility. The distinction is plain, but cases must occur inwhich it would be unjust to admit evidence of a character gravely prejudicial to the accusedeven though there may be some tenuous grounds for holding it technically admissible.”

This passage was cited with approval by Lord Simon of Glaisdale, when delivering theleading speech in Harris v DPP [1952] AC 694, HL. The rule has been broadened inrecent times. The prejudice in this context concerns the effect the confession or incrim-inating statement may have upon the minds of the jury: R v Li Ming-kwan [1973] HKLR275. On the other hand, it is important to bear in mind that all relevant evidence isadmissible in a criminal trial. In Kuruma, Son of Kaniu v R [1955] AC 197, PC, (whereevidence had been obtained as the result of an illegal search), Lord Goddard stated inunequivocal terms that:

“The test to be applied in considering whether evidence is admissible is whether it is relevantto the matters in issue. If it is, it is admissible and the court is not concerned with how theevidence was obtained.”

Lord Goddard’s statement was considered and approved by the House of Lordsin Fox v Chief Constable of Gwent [1986] AC 281. It was held in R v Yu Yem-kin (1994)4 HKPLR 75 at 99–104, that the fact the search was inconsistent with Article 14 of theBill of Rights would not render inadmissible evidence thereby obtained.


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A fair trial

15–82 In obiter dictum, Lord Goddard, in Kuruma, Son of Kaniu v R, above, PC, suggested thatwhere a document had been obtained by a trick, “no doubt a judge might properly ruleit out”. In fact in making this observation Lord Goddard was following the rule asit applied in Scotland. Nevertheless, Lord Goddard’s obiter dictum has been cited andfollowed in several cases. In Jeffrey v Black [1978] 1 All ER 555, the Divisional Courtfollowed Kuruma, above, and stated that a court had the discretion to exclude evidenceif to admit it would be unfair or oppressive. But the Court added an important rider tothis general principle; that is, the discretion should only be exercised in exceptionalcircumstances when the police had acted not only without authority but had also beenguilty of trickery and had misled someone or in other respects had acted in a reprehen-sible manner. In King v R [1969] 1 AC 304, the Privy Council observed that “unfairness”is not susceptible of precise definition:

“It must be judged of in the light of all the material facts and findings and all the surround-ing circumstances. The position of the accused, the nature of the investigation, and thegravity or otherwise of the suspected offence may all be relevant. That is not to say that thestandard of fairness must bear some sort of inverse proportion to the extent to whichthe public interest may be involved, but different offences may pose different problems forthe police and justified different methods.”

The Court of Appeal in R v Keeton (1970) 54 Cr App R 267 (at p 271) made similarobservations in that “where the line is to be drawn is not capable of precise definition”.In this context reference is made to the case of R v Ali & Hussain (§15–62, above).Account can also be taken of the gravity of the offence charged. In R v Willis [1976]Crim L R 127, the Court of Appeal doubted this “so-called rule of fairness”, and sug-gested that the judge’s discretion was confined to evidence which had been obtainedin breach of the Judges’ Rules (now the Rules and Directions) and evidence whichhad minimal probative value but much prejudicial effect. Though the Court of Appealcertified the point as fit for consideration by the House of Lords, leave was refused bythe Appeals Committee.

It is submitted that the clearest guidance on this vexed and complex subject is to befound in the judgments of the judges of the House of Lords in R v Sang [1980] AC 402.The underlying principle that “fairness” relates to the processes of a criminal trialwas closely examined by all five speeches of the judges in Sang, above. The judgeswere careful to create some space between the judicial and executive functions ofgovernment. Though technically obiter their expressions of principle have been fol-lowed repeatedly in this jurisdiction: R v Lai Kin-ming [1984] HKC 1; R v Leung Cheuk-fan[1984] HKC 374; R v Lam Yip-ying [1984] HKLR 419; Secretary for Justice v Lam Tat-ming& Another [2000] 2 HKLRD 431. As Lord Diplock remarked in R v Sang (at p 431),there are impressive sources of authority to suggest that the judge has a wide discretionto exclude admissible evidence on the ground that it has been unfairly obtained. InNoor Mohammed v The King [1970] AC 304, PC, Lord du Parcq recognised that the courthas a discretion to exclude evidence of “similar facts” where its probable prejudicialeffect would outweigh any probative value it may have: also see Att-Gen v Siu Yuk-shing[1989] 1 WLR 236; [1989] 2 HKLR 97.

Sang

15–83 Lord Diplock, summed up his understanding of the principles involved as follows (at435 and 436):

“Nevertheless it has to be recognised that there is an unbroken series of dicta in the judg-ments of the appellate courts to the effect that there is a judicial discretion to exclude admis-sible evidence which has been ‘obtained’ unfairly or by trickery or oppressively, althoughexcept in R v Payne [1963] 1 WLR 637 there has never been a case in which those courtshave come across conduct so unfair, so tricky, or so oppressive as to justify them in holdingthat the discretion ought to have been exercised in favour of exclusion. In every one of thecases to which your Lordships have been referred where such dicta appear, the source fromwhich the evidence sought to be excluded has been obtained has been the defendant or,


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(in some of the search cases), premises occupied by him: and the dicta can be traced to acommon ancestor in Lord Goddard’s statement in Kuruma v The Queen [1955] AC 197,which I have already cited. That statement was not, in my view, ever intended to acknow-ledge the existence of any wider discretion that to exclude (1) admissible evidence whichwould probably have a prejudicial effect upon the minds of the jury that would be out ofproportion to its true evidential value: and (2) evidence tantamount to a self-incriminatoryadmission which was obtained from the defendant after the offence had been committed bymeans which would justify a judge in excluding an actual confession which had the like self-incriminating effect. As a matter of language, although not as a matter of application, thesubsequent dicta go much further than this; but in so far as they do so they have never beenconsidered by this House.”

And further down on 436:

“Outside this limited field in which for historical reasons the function of the trial judgeextended to imposing sanctions for improper conduct on the part of the prosecution beforethe commencement of the proceedings in inducing the accused by threats, favour or trick-ery to provide evidence against himself, your Lordships should, I think, make it clear thatthe function of the judge at a criminal trial, as respects the admission of evidence, is toensure that the accused has a fair trial according to law. It is no part of a judge’s function toexercise disciplinary powers over the police or prosecution as respects the way in whichevidence to be used at the trial is obtained by them. If it were obtained illegally there will bea remedy in civil law, it were obtained legally but in breach of the rules of conduct for thepolice, this is a matter for the appropriate disciplinary authority to deal with. What the judgeat the trial is concerned with is not how the evidence sought to be adduced by the prosecu-tion has been obtained, but with how it is used by the prosecution at the trial.”

15–84And at 437:

“I would accordingly answer the question certified in terms which have been suggested bymy noble and learned friend, Viscount Dilhorne, in the course of our deliberations in thiscase, (1) a trial judge in a criminal trial has always a discretion to refuse to admit evidenceif in his opinion its prejudicial effect outweighs its probative value, (2) save with regard toadmissions and confessions and generally with regard to evidence obtained from theaccused after commission of the offence, he has no discretion to refuse to admit relevantevidence on the ground that it was obtained by improper or unfair means. The court is notconcerned with how it was obtained. It is no ground for the exercise of discretion to excludethat the evidence was obtained as the result of the activities of an agent provocateur. I woulddismiss the appeal.”

Lord Fraser of Tullybelton adds the colour of subjectivity to the issue (at 450):

“The result will be to leave the judges with a discretion to be exercised in accordance withtheir individual views of what is unfair or oppressive or morally reprehensible. These adjec-tives do undoubtedly describe standards which are largely subjective and which are thereforeliable to variation. But I do not think there is any cause for anxiety in that. Judges of all courtsare accustomed to deciding what is reasonable and to applying other standards containing alargely subjective element. In exercising the discretion with which this appeal is concerned,judges will have the benefit of the decision of this House, fixing certain limits beyond whichthey should not go and they will also have valuable guidance of a more general nature in theopinion of Lord Widgery in Jeffery v Black, above, I do not think that it would be practical toattempt to lay down any more precise rules because the purpose of the discretion is thatit should be sufficiently wide and flexible to be capable of being exercised in a variety ofcircumstances that may occur from time to time but which cannot be foreseen.”

Lord Scarman, at 452, described the discretion as the “merciful face” of the law,where otherwise a strict application of the law might operate unfairly against the accused.The overriding duty of the judge is to ensure that the trial is fair; that is, to both sides.From the speeches of the judges in Sang the following principles can be identified:

15–85(1) there is one general discretion, not several specific discretions; (2) the judge has a discretion to exclude legally admissible evidence if justice so

requires, (Lord Reid in Myers v DPP [1965] AC 1001); (3) the formula of the prejudicial effect outweighing the probative value of evid-

ence, such as, for example, similar fact evidence, is not a complete statement ofthe principle;


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(4) the judicial discretion to exclude admissible evidence is confined to the “unfair”use of evidence in the trial. There can be no veto on the prosecution’s right toprosecute or to present admissible evidence, however obtained.

R v Sang, above, has been followed in numerous judgments in this jurisdiction,in particular: R v Lai Kin-ming [1984] HKC 1; R v Leung Cheuk-fan [1984] HKC 374;R v Lam Yip-ying [1984] HKLR 419; R v Cheung Ka-fai [1995] 2 HKCLR 184, at 195, and;Secretary for Justice v Lam Tat-ming & Another [2000] 2 HKLRD 431, at 440–441, [2000]2 HKC 693, at 702–703, CFA. The scope of this discretion has been delineated by Li CJin his judgment in R v Lam Tat-ming, above, at 440–441:

“The judge has the overriding duty to ensure a fair trial for the accused according to law.For this purpose, he has what should be regarded as single discretion to exclude admissibleevidence, including a voluntary confession, whenever he considers it necessary to secure afair trial for the accused. The essential question is not whether the law enforcement agencyhas acted unfairly in a general sense. It is not part of the court’s function to exercise disci-plinary powers over the law enforcement agencies or the prosecution as regards the way inwhich evidence they seek to adduce at trial was obtained by them: see R v Sang [1980] AC402, 436G; R v Cheung Kar-fai [1995] 2 HKCLR 184, 195. The court’s function is to considerwhether it would be unfair to the accused to use the confession though voluntary againsthim at his trial.

The test of unfairness is not that of a game governed by a sportsman’s code of fair play.See R v Sang [1980] AC 402, 456D-E; R v Swaffield (1997–8) 192 CLR 159, 185–6. Unfairnessin this respect is to be judged against and only against what is required to secure a fair trialfor the accused. R v Sang [1980] AC 402, 453C (Lord Scarman); R v Scott [1989] AC 1242,1256A-B. However, it is important to observe that in just society, the conviction of the guiltyis in the public interest, as is the acquittal of the innocent. See R v Sang [1980] AC 402, 437B(Lord Diplock), 456E-F (Lord Scarman); Attorney General v Lam Man-wah (No 2) [1992]2 HKC 70; [1992] HKLY 240 at 72C.

15–86 The requirement of a fair trial for the accused involves the observance of principlesincluding the following, which are relevant in this appeal: (1) No man is compelled toincriminate himself; his right of silence should be safeguarded. (2) No one can be convictedexcept upon the probative effect of admissible evidence. To ensure a fair trial for the accused,the court will exclude admissible evidence the reception of which will compromise theseprinciples: R v Sang [1980] AC 402, 436H–437D (Lord Diplock) and 455C-E (Lord Scarman).

Thus, where a confession has been obtained in breach of the Secretary for Security’s rulesand directions, (and previously the Judges’ Rules), this is a matter to be considered by thecourt in deciding whether to exercise its discretion to exclude. This should be regarded asrelating to the principle in (1). The case of R v Payne [1963] 1 WLR 637 should also beregarded as relating to the principle in (1). See R v Sang [1980] AC 402, 435D (LordDiplock), at 455D (Lord Scarman). [There], the defendant subjected himself to a medicalexamination at a police station following a car collision after it was made clear to him that itspurpose was to see if he was suffering from any illness and disability and it was no part of thedoctor’s duty to examine him to determine his fitness to drive. The judge in his discretionexcluded the doctor’s evidence that he was unfit to drive.”

The concept of fair trial has been developed further in the Court of Appeal decisionof HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, CA. The court accepted that the com-mon law had developed since Sang, so in deciding whether a trial is fair, the court must“take a broad view of the overall circumstances”, and “does not just look at the proced-ural fairness in the actual trial. It is also entitled to look at the overall behaviour of theinvestigating authority or the treatment of the accused”: at para 116. This notion of fairtrial is broader than the narrow conception of fair trial as expressed in Sang, whichseems to be only concerned with the forensic fairness of the actual trial.

The exercise of the discretion

15–87 The power to exclude admissible evidence should rarely be employed: R v Lam Yip-ying, above, (Roberts CJ at 424) and Mortimer JA in R v Chan King-hei [1995] 1 HKCLR288 at 292. This discretion has been described as “very limited”: Litton JA in R v ChowChi-hing [1993] HKEC 98. The circumstances, which may give rise to the exercise of thisdiscretion, are almost infinitely variable. It is not a useful exercise to make comparisonsbetween cases, since the facts are rarely the same. In R v Sang, above, for example, the


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House of Lords was concerned with the activities of an alleged agent provocateur. It heldthat that it was no defence at common law that an accused had been incited to commita crime by an agent employed by the police or other law enforcement agencies. Thougha suspect, induced by an undercover law enforcement officer to make damaging admis-sions to a crime, in respect of which the authorities already had sufficient evidence toarrest him, could successfully contend that it would be unfair for such admissions to beadmitted into evidence in his trial. In Secretary for Justice v Lam Tat-ming, above, Li CJconsidered this issue at some length, (at 442–444). As the Chief Justice pointed out thereal problem arises where the undercover officer or agent plays an active role in procur-ing the confession from the suspect:

“If it were not an undercover operation, the suspect would have been cautioned remindinghim of his right of silence and enabling him to make a choice whether or not to speak. Withan undercover operation, this obviously could not be done. In this situation, once the officeractively questions the suspect, we enter into an area which may engage the exercise of theresidual discretion.”

The Chief Justice, later in his judgment, puts this issue in perspective:

“In the exercise of the residual discretion whether to exclude a voluntary confession, thecourts may take into account as a factor of gravity of the offence. However, it would not beright to give great weight to this consideration because to do so would be to devalue theright to a fair trial to which all persons are entitled for all offences. But it is a relevant factor.The law’s approach to this matter has to take account of community interests, as well as therights of the suspects.

It is necessary to emphasise that the residual discretion is a judicial discretion, which is tobe exercised in a principled way. But the occasions where its exercise may be considered willinvolve a wide variety of facts and circumstances. Ultimately, the courts will have to apply theapproach in a commonsense way.

We are concerned with a confession obtained through undercover operation where thecrimes had already been committed and there is a suspect. In this situation the exercise ofthe residual discretion is likely to be engaged on the approach laid done in this judgment.That situation is to be contrasted with the undertaking of undercover operations to uncoverongoing criminal activities. There “the accusatory stage” with a suspect will, generally speaking,not have been reached and different considerations would apply even where incriminatingadmissions are made of past offences.”

15–88The Chief Justice reviewed a number of Hong Kong authorities, which he consideredwere generally consistent with his opinion, and which should now be read in the light ofhis judgment: Secretary for Justice v Lam Tat-ming, above, has been considered and appliedin HKSAR v Cheung Chi-siu [2001] 1 HKLRD 356; HKSAR v Lee King Man [2008] HKEC346, CA. This issue of what might be termed “pro-active” inducement by an undercoverpolice has recently been considered by the House of Lords in R v Looseley, Att-Gen’sReference (No 3 of 2000) [2002] 1 Cr App R 29, (360–408). In that case the appellant hadapplied to the trial judge for a permanent stay on the ground that the activities of theundercover police officer went far beyond mere observation and involved his asking theappellant to supply him with heroin, to which (on the trial judge’s findings) the appel-lant “readily agreed”. All five judges delivered judgments in a very detailed analysis ofthe issue. The judges agreed that Article 6 of the European Convention of HumanRights, which must now be taken account of in the United Kingdom, by virtue of sec-tion 2(1)(a) of the Human Rights Act 1998, was not only confined to a fair determina-tion of the question of guilt, there is also a right not to be tried at all, where this wouldamount to an abuse of state power. In Teixeira de Castro v Portugal (1998) 28 EHRR 101,the European Court of Human Rights decided that “right from the outset the appellantwas definitely deprived of a fair trial”, (at 116, para 38), because his conviction of drugoffences had been “instigated” by two police officers. In his speech in Looseley above,Lord Hoffman, stated at 374 (46):

“This is a situation of entrapment in which, in an appropriate case an English court wouldorder a stay of proceedings under the principles in Latif.”

And at 382 (74):


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“My Lords, every case depends on its own facts but there is nothing in the general principleapplied by the European Court or the cluster of factors to which it attached importancewhich suggests any difference from the current English approach to entrapment. The con-trary submission depends upon an excessively literal and technical analysis of some of thelanguage used by the Court. So for example the Court said at 116, para 38 of the judgmentthat—

“The two police officers did not confine themselves to investigating Mr Teixeira deCastro’s criminal activity in an essentially passive manner, but exercised an influencesuch as to incite the commission of the offence.”

This sentence is relied upon for the proposition that even in an authorised undercoveroperation the officer must take no active step such as offering to buy an illegal substance.Such conduct amounts to “incitement” of the offence. I do not believe that the courtintended to lay down such a rigid and prescriptive rule. The description of the policemen’sconduct must be seen as one of the various factors which led to the court’s conclusion thatthere had been an abuse of police power which denied the defendant a fair trial.”

15–89 In R v Latif & Another [1996] 2 Cr App R 92, HL, the House concluded that: (1) incriminal proceedings, weighing countervailing considerations of policy and justice, itwas for the trial judge, in the exercise of his discretion, to decide whether there had beenan abuse of process which amounted to an affront to the public conscience and therebyrequired those proceedings to be stayed; (2) in this case the appellants had not been pre-judiced in their defence, and; (3) though one of the appellants had not committed theoffence of importation, since this had been done by the customs officers, he had intendedto commit the full offence, firstly in Pakistan and secondly when he tried to collect theheroin in the United Kingdom for onward distribution. In other words, the trial judgemust conduct a balancing exercise, aware that in some circumstances the activities of anundercover agent may amount to an abuse of process. Article 6 of the European Con-vention of Human Rights is drawn in very similar terms to Article 11 of the Hong KongBill of Rights Ordinance (Cap 383), and also note Article 39 of the Basic Law.

In HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621, CA the Court applied Looseleyand Latif and added that another relevant circumstance was the nature of the offence.When a serious offence was of a sort normally carried out in secrecy and difficult todetect, then a more pro-active role on the part of the investigating authority is bothnecessary and excusable, at §15–25. Further, it held that before the right of silence of asuspect is breached, there must be some factor which prompts the suspect to talk, forexample, an interrogation or a special relationship between them whereby the subjectmay be placed under some compulsion to speak about the subject matter of the offencewhich he is suspended to have committed. And such a special relationship is not con-fined to formal relationships such as between doctor and patient, but any relationshipof trust, such as a family relationship or a close personal friendship whereby the suspectmay be placed under a compulsion to divulge information about his role in the commis-sion of the offence, see §§15–51—15–54.

As noted in §15–86 above, Chan Kau Tai recognised a new conception of fair trial.As such, the court stated that it has a discretionary power to exclude evidence obtainedas a result of breach of the rights guaranteed in the Basic Law or the ICCPR as appliedto Hong Kong (as the breach of the rights affects the fairness of the trial in the broadsense). Whether the discretionary power will be exercised depends on a balancing exer-cise of several factors including “the nature of the right involved and the extent ofbreach” (at para 116). See §19–33 below for further discussion of the principles ofexclusion of evidence obtained as a result of a breach of constitutional rights.

Breach/breaches of the Judges’ Rules or the Rules and Directions issued by the Secretary for Security (“Rules and Directions”)

15–90 The first step, which the judge must take, is to decide if the prosecution has provedthat the confession was voluntary. If it is held to be voluntary then the “residual” discre-tion vested in the judge can be invoked. The general tenor of the judgments of the


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higher courts in this jurisdiction, and England and Wales during the last fifty years, isthat a breach of the “Rules” will not be sufficient to exclude admissible evidence unlesssuch breach or breaches were manifold and significant. In some cases there may be afine line to be drawn between multiple breaches and oppressive conduct. In such a caseit could be argued that the confession had been produced by oppression, and was thusinadmissible in any event. A line has to be drawn, in order to ensure consistency ofapproach. In R v May (1952) 36 Cr App R 91, Lord Goddard recognized that there wasa discretion to exclude a confession, if it had been brought about by a breach orbreaches of the Judges’ Rules:

“The test of admissibility of a statement is whether it is a voluntary statement. There arecertain rules known as the Judges’ Rules which are not rules of law but rules of practicedrawn up for the guidance of police officers; and if a statement has been made in circum-stances not in accordance with the Rules, in law that statement is not made inadmissible if itis a voluntary statement, although in its discretion that court can always refuse to admit it ifthe court thinks there has been a breach of the rules.”

Lord Goddard was stating the principle in very general terms (which applies, byextension, to a breach of the Rules and Directions). Also see R v Voisin [1918] 1 KB 531and the observations of Silke VP in R v Ng Wai-fai (unrep., Crim App 238/1989),wherein he said:

“Clearly the conversation was permitted to continue in breach of the Judges’ Rules which, itmust be remembered, are rules for the guidance of police officers. While breaches of theJudges’ Rules may indicate impropriety and unfairness, such a breach, of itself, does notrender a confessional statement inadmissible.”

In HKSAR v Chiu Kwok Ho [2004] HKEC 179, CA, the police breached Rule II byquestioning the suspect about the trafficking of persons offence when he had only beencautioned about the less serious offence of assisting in the management of a vice estab-lishment. But the critical factor in why the Court of Appeal found it appropriate not tohave excluded the suspect’s two statements was that the defendant never suggested “thatbut for the breach of the Rules in relation to the first interview he would not, or mightnot, have answered questions; and would or might have decided to avail himself of legaladvice” (at para 27). In other words, a causal nexus between the breach and the makingof the voluntary confessions was absent.

Two other cases further illustrate the principle that not every breach of the Rules andDirections will lead to the exclusion of the confession. In HKSAR v Ip, Kenneth [2006]HKEC 682, CFI, the police did not caution the accused before making some inquiryconcerning the fact of the offence. In HKSAR v Mohammad Abid [2005] HKEC 2005,CFI, the statement from the accused was not recorded in the language used by theaccused when he answered the questions. In both cases, the court refused to excludethe evidence. In HKSAR v Shum Siu Kai [2009] HKEC 547, CFI, the Court noted that itwas “well established that breach of the rules and directions do not themselves render aconfession inadmissible. The criteria for admission of a statement is fairness. The volun-tary nature of a statement is the major factor in determining fairness.”

Physical, mental state and age of the defendant

15–91Section 77 of the Police and Criminal Evidence Act 1984 imposes an obligation uponthe court to warn the jury of the special need for care in convicting upon the confessionof a mentally handicapped person, obtained by the police otherwise than in the pres-ence of an independent person. In Hong Kong there is no such statutory safeguard. It issubmitted that in this jurisdiction judges should be careful to indicate to the jury theneed for caution. In some cases it might be necessary to go further and suggest to thejury that the mental condition of the defendant may affect the reliability of the confes-sion. The Rules and Directions are silent on this point. In R v Miller [1986] 3 All ER 119;83 Cr App R 192, a person, who was suffering from paranoid schizophrenia at the timewhen he was interviewed by the police, made a confession to the crime. Apparently,


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at the material time, the defendant was the victim of delusions and hallucinations. Thetrial judge admitted his confession into evidence. It was held by the Court of Appealthat the judge was not bound to rule the statement inadmissible but could exercise hisdiscretion to exclude it on the basis that it is was likely to be unreliable. Similar consid-erations would apply to where the accused was very young: R v Leung Lai Por [1978]HKLR 202 (see also Direction 5 of the Rules and Directions). In R v Hemi [1986] 2 NZLR116, the statement of a boy, aged 15, who was described as “street-wise”, aggressive andassured, was admitted, in spite of several breaches of the Judges’ Rules. Confessionsmade by tired, drunk or mentally unbalanced suspects may be excluded in the exerciseof the court’s discretion: R v Lim Tit Seng [1977–1979] HKC 409. Each case will bedecided on its own facts. A defendant who was diagnosed as having the mental age of achild of 10 years might confess to a crime, because he is very suggestible or confused orlacks sufficient understanding of the questions being asked. In such cases the confessionis likely to be excluded as being unreliable: R v Ratcliffe (1989) 4 CRNZ 300. Thisapproach is consistent with the authorities of R v Stewart (1972) 56 Cr App R 272; R vIsequilla [1975] 1 WLR 716; R v Chen Pak Chang [1980] HKLR 344. An admission madeunder hypnosis is not admissible: R v Booker (1928) 4 DLR 795. Similar considerationswould apply to confessions made under the influence of a “truth drug”. The mind ofthe suspect is said not to go with his act of speech. It is submitted that the evidentialburden of raising such an issue would lie with the defendant. On the other hand thepersuasive burden of proving that the confession is admissible always remains with theprosecution: R v Miller, above.

Though it is not clear where the line can be drawn, the appellate courts in Englandand Wales and in this jurisdiction have adopted a pragmatic, some would say robust,approach to the reception of evidence. All evidence, which is logically probative, (that isrelevant), is admissible. In R v Apicella (1985) 82 Cr App R 295, body tissue, thoughobtained without the consent of the accused, was held to be admissible in evidence. Ithas also been held that evidence obtained by a surreptitiously installed listening device,even though a trespass in a private home had been committed (probably resulting insome damage to the premises), was admissible subject to the probative value it may haveand subject to any discretion to exclude it on the grounds that the evidence had beenobtained by a trick: R v Khan [1996] 3 WLR 162. It has been held that Article 6(1) ofthe Hong Kong Bill of Rights Ordinance (Cap 383), does not have the effect of exclud-ing otherwise admissible evidence: R v Cheung Ka Fai & Another [1995] 2 HKCLR 184.Thus, other evidence obtained as a result of what has been said by the suspect duringa “tapped” telephone conversation would not, of itself, be inadmissible. Similarly, inHKSAR v Li Man Tak & Another (unrep., CACC 303/2005, [2006] HKEC 1724), CA, theCourt held that evidence obtained under covert surveillance, though in breach of theright of privacy, was not in itself inadmissible. The court must balance two main compet-ing interests which are the interest in protecting and enforcing the constitutionalityguaranteed rights and the interest in the detection of crime and bringing criminals tojustice. In the exercise of the judicial discretion, the court must ensure that the accusedhad a fair trial: at §15–95. Surreptitious filming of accused in a police cell has been heldto be a violation of the privacy rights under the European Convention for the Protec-tion of Human Rights and Fundamental Freedoms, but such violation does not affectthe admissibility of evidence so obtained as it does not impact upon the fairness of thetrial: R v Loveridge & Others, The Times, 3 May 2001.

In HKSAR v Yuen Shun Ying (unrep., CACC 273/2003, [2004] HKEC 526), CA, thedefendant killed her boyfriend, before trying to commit suicide by cutting her wristsand overdosing on sleeping pills. The defence argued on appeal that the admission ofthe defendant’s statement, taken over 37 hours after she was admitted to hospital, dur-ing which time she was treated in intensive care and given medication, compromisedthe fairness of her trial and should have been excluded. The Court disagreed, notingthat the police were investigating a murder case, and “the investigation of crimes needsto be swift and timely, and the longer the delay, the greater the risk of crucial evidencebeing lost” (para 53). Most importantly, the police had sought permission from thedoctors, who had considered the defendant fit to be interviewed.


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Admissibility of intercepted communication and private information obtained by covert surveillance

15–92On 9 August 2006, the Interception of Communications and Surveillance Ordinance(Cap 589) came into operation, turning a new leaf in privacy protection in Hong Kong.This Ordinance was enacted in response to a number of court challenges in 2006,culminating in Justice Hartmann’s declarations of unconstitutionality in Leung KwokHung v Chief Executive [2006] HKEC 239 which were affirmed on appeal in the Court ofAppeal, see [2006] HKEC 816. For background to these cases see 19–153A.

The Ordinance repealed the previous powers authorising interception of telecom-munications and postal articles without the need for court authorisation, see s 33 ofthe Telecommunications Ordinance (Cap 106) and s 13 of the Post Office Ordinance(Cap 98). The Ordinance also repealed the Interception of Communications Ordinance(Cap 532) which was hastily enacted prior to the handover in 1997 and was neverallowed to enter into force.

The Ordinance generally prohibits public officers from intercepting communicationsand carrying out covert surveillance unless authorised in accordance with the Ordinance(ss 4–5). This is a recognition of the constitutional rights to privacy in Articles 29 and30 of the Basic Law and Article 14 of the Hong Kong Bill of Rights. However no specificconsequences are set out in the Ordinance for when there has been a breach of theprohibitions.

The general rule is that interception must be authorised by a panel judge whomust be a Court of First Instance judge (s 8). However exceptions apply allowing forexecutive authorisations in cases of emergency (s 20). Section 61 provides that any tele-communication interception product shall not be admissible in evidence in any courtproceedings other than to prove that a relevant offence (ie offences related to the ille-gal disclosure of interception products) has been committed. The interception productand the particulars of the interception are not to be made available to any party, subjectto fair trial considerations where disclosure is required because the content tends toundermine the case for the prosecution or is of assistance to the case for the defence.There are also restrictions on what questions may be asked in a court proceeding con-cerning authorisations made under the Ordinance.

There are two types of covert surveillance under the Ordinance. Type 2 surveillanceinvolves Person A using a listening or optical surveillance device to listen to, monitor orrecord Person B who intends or reasonably expects Person A to hear or see his wordsand activities or otherwise consents to the listening, monitoring or recording. It alsocovers the use of optical surveillance or tracking devices if the use does not involve entryonto premises or interference with the interior of any conveyance or object, withoutpermission. Type 1 surveillance is all other forms of covert surveillance. As with inter-ception, the general rule is that Type 1 surveillance requires authorisation by a paneljudge except in emergencies. Type 2 surveillance can be authorised by an authorisingofficer designated as such by the relevant head of the law enforcement department.There are no restrictions on the admissibility of information obtained by authorisedsurveillance.

The Ordinance preserves legal professional privileges and imposes safeguards toensure that privileged communication is not intercepted and if intercepted is kept con-fidential and destroyed (see ss 31, 59, 62).

No specific provisions address the admissibility or use of information obtained byillegal interception or covert surveillance. Such evidence will have been obtained inbreach of the Basic Law and/or Bill of Rights, and the principles applicable to theadmissibility of such evidence apply. See HKSAR v Chan Kau Tai [2006] 1 HKLRD 400,CA which is discussed along with other cases at 19–34A.

Communications between spouses

15–93It is a common law rule of evidence that no evidence may be given of any commu-nication made between married spouses. Neither spouse may give evidence against the


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other in a criminal trial. There are some statutory exceptions to this rule. On the otherhand, independently proved postal or telecommunication messages between a husbandand wife can be admissible in evidence: R v Smithies (1832) 5 C & P 332; R v Simons(1834) 6 C & P 540; R v Bartlett (1837) 7 C & P 832. In Rumping v DPP [1964] AC 814,a letter written by a seaman, addressed to his wife, which he handed to his superiorofficer for mailing, was admitted into evidence. This letter never reached its addressee,because the officer had handed it over to the police when the accused was arrested.At the request of the police the officer opened the letter, which was found to containadmissions to the crime for which the accused was tried. In another case the accusedwas in custody of the police. He asked to make a telephone call to his wife. Without theknowledge of the accused a police officer listened to the conversation between theaccused and his wife at a switchboard in the police station. It was held that there wasnothing unfair or oppressive in the conduct of the police and what the accused had saidto his wife in the telephone conversation was admissible in evidence: R v Keeton (1970)54 Cr App R 267, CA.

B. Admissibility of a Confession

(1) The Principle of admissibility

15–94 An out of court statement made against the interest of the maker is admissible asevidence for the prosecution in a criminal trial. This is an exception to the rule againsthearsay. The rule against hearsay was summarised in Subramaniam v PP [1956] 1 WLR956 at 970 as follows:

“Evidence of a statement made to a witness by a person who is not himself called as a witnessmay or may not be hearsay. It is hearsay and inadmissible when the object is to establish thetruth of what is contained in the statement. It is not hearsay and is admissible when it isproposed to establish by the evidence, not the truth of the statement but the fact that it wasmade. The fact that a statement was made, quite apart from its truth, is frequently relevant inconsidering the mental state and conduct thereafter of the witness or of some other personin whose presence the statement was made.”

This dictum has been followed in this jurisdiction on numerous occasions, mostnotably in Secretary for Justice v Lui Kin-hong (1999) 2 HKCFAR 510; [2000] 1 HKLR 92,CFA. The purpose of the prosecution in adducing the evidence of a confession in a trialis twofold: first, to prove that the confession was uttered or made and secondly, that itwas true in its material respects. In R v Blastland [1986] AC 41, Lord Bridge restated thebasic principles of the rule against hearsay. In Blastland, above, the House had to dealwith the question of whether or not a confession to the subject crime made by a personother than the accused was admissible, if the maker were not called as a witness. TheHouse of Lords held that such a statement was inadmissible as its only purpose must beto establish that it was not the accused who committed the crime. On the other hand,a hearsay statement may be proved indirectly. It is trite law that the confession statementmade by one defendant in the absence of another defendant is not evidence againstthat other defendant. However, where the accused alleged that the police had con-cocted their respective confession statements, it was permissible for the trial judge tosuggest to the jury that they may compare each of the statements in order to determinewhether or not they were sufficiently similar in content and style in order to confirm orrebut the accuseds’ contentions. At the same time, the trial judge must make it clear tothe jury that they must not compare the statements for the purpose of establishing theirtruth: Wong Wai-man & Others v HKSAR (2000) 3 HKCFAR 322; [2000] 3 HKLRD 313.

As Bokhary noted at 318:

“Nevertheless the comparison exercise here in question stops short of using out-of-courtstatements for the purpose of directly proving, as against anyone other than the statement-maker himself, that the facts re as asserted in them. Accordingly the rule against hearsay isnot engaged and the complaint that it had been violated must fail.”


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15–95The appeal was allowed, however, because the evidence of “comparison” had noprobative value, or alternatively, if it did, the prejudicial effect of the admission of suchevidence greatly outweighed any probative value it may have had. An out-of-court con-fession made by an accused is admissible as cogent evidence of his admitted responsibil-ity for the charged offence. The primary condition of the confession’s admissibility isits authenticity, this requirement lies at the very heart of the subject of confessional state-ments. A confessional statement is usually oral; it is then recorded in one form oranother. In many if not most cases there is little dispute that the confession was made.The prosecution must prove the authenticity of the confession, having succeeded inthat endeavour it must then prove that the confession was voluntary. There are occa-sions where the defendant claims that the recorded confession is a concoction, and thathe was induced to sign the record.

Authenticity of a confession statement

15–96The regular use of confessions obtained during the investigation of a crime has beentraced back to the early thirteenth century. It is, therefore, necessary to consider whatfunction the trial judge has when the issue of authenticity is raised. In R v Roberts (1954)2 QB 329; (1953) 37 Cr App R 86, the accused was found to be “mute by visitation ofgod”; in modern parlance he was dumb. In that case the police had recklessly attributeda spoken confession to the accused. In such circumstances does the trial judge have thediscretion to rule the confession inadmissible? Devlin J (as he then was), the trial judge,warned the prosecution that he would not allow the statements to go in if he cameto the conclusion that there was no evidence “fit to go to the jury” that they had beenmade. The prosecution took the hint. The trial judge directed an acquittal as the onlyevidence against the accused was these very questionable admissions. It would appearthat Devlin J was using this phrase in the context of the judge’s function that the pro-secution must establish a prima facie case that the confession is authentic: see N. Bridge(1948) 12 MLR 273 at 275–277, Phipson on Evidence, 13th edn (1982), para 1.21 andCross and Tapper on Evidence, 9th edn, p 165. On the other hand the obiter dictum ofMurphy J in R v Cleland (1982) 43 ALR 619 at 627–628 appears to suggest that themaking of the confession statement must be proved to the same degree as its voluntari-ness, ie proof beyond a reasonable doubt. Thus the judge should not allow a jury tohear about an alleged confession, or should direct the jury to ignore it, if he could notbe satisfied that the accused had, in fact, made the confession attributed to him. How-ever, the distinction between authenticity and voluntariness has become blurred. Thusin Ajodha v State [1982] AC 204, PC, where the accused alleged that a confession (whichhe contended he had signed involuntarily) had been concocted by the police, wouldraise the issue of admissibility. The Privy Council recognised that the issues of voluntari-ness and authenticity may have become intertwined, and that it was a fallacy to supposethat these two issues were mutually exclusive. The fact that an accused signs a confes-sional statement is prima facie evidence that he adopts its contents. Of course the signingof a confessional statement is not the sine qua non of its acceptance by the accused. Theprosecution can prove an unsigned record of interview by evidence of the investigatingpolice officers, who had witnessed the confession being made.

The evidential effect of a confession

15–97In R v Warickshall (1783) 1 Leach CC 263 the court stated in robust terms the ration-ale for receiving confessions in evidence:

“A free and voluntary confession is deserving of the highest credit, because it is presumed toflow from the strongest sense of guilt, and therefore it is admitted as proof of the crime towhich it refers.”

Not all the authorities are so trusting of the efficacy of the “full and frank confession”.In R v Rennie [1982] 1 All ER 385 at 388, Lord Lane CJ added a note of realism:


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“Very few confessions are inspired solely by remorse. Often the motives of the accused aremixed and include a hope that an early admission may lead to an earlier release or a lightersentence. If it were the law that the mere presence of such a motive, even if promptedby something said or done by a person in authority, led inexorably to the exclusion of aconfession, nearly every confession would be rendered inadmissible. This is not the law.In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides thedominant motive for making the confession. In such a case the confession will not have beenobtained by anything said or done by a person in authority. More commonly the presence ofsuch hope will, in part at least, owe its origin to something said or done by such a person.There can be few prisoners who are being firmly but fairly questioned in a police station towhom it does not occur that if they might be able to bring both their interrogation and theirdetention to an earlier end by confession.”

It must be said, however, that there will always be a measure of concern where anoral confession has not been reduced into writing or some other method of recording.This concern was expressed long ago by Sir Michael Foster in his treatise, Crown Law(1732), p 243. In R v Thompson [1893] 1 QB 12 at 18, Cave J spoke with some irony ofthe supposedly familiar pattern in which prisoners appear to be the more penitent ininverse proportion to the quality of the evidence against them:

“I always suspect these confessions, which are supposed to be the offspring of penitence andremorse, and which nevertheless are repudiated by the prisoner at trial. It is remarkable thatit is a very occurrence for evidence of a confession to be given when proof of the prisoner’sguilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoneris not infrequently alleged to have been seized with the desire born of penitence andremorse to supplement it with a confession; [a] desire which vanishes as soon as he appearsin a court of justice.”

Lord Justice Lawton, not noted as being a friend of the criminal, a judge of greatexperience, wryly observed in R v Pattinson (1973) 58 Cr App R 417:

15–98 “In these very unusual circumstances luck seems to have been on the side of the prosecutionbecause they were suddenly presented with evidence which, if true and reliable, amountedto a confession of guilt. This is not the first time in the history of the administration of justicein this country that police officers have arrested a man and shortly before he was due toappear in court he has of his own volition supplied the evidence which was singularly lackingagainst him until that moment.”

As a matter of practice the trial judge in this jurisdiction is likely to look at some“hard” evidence to support a non-recorded oral confession. In R v Bryce [1992] Crim LR 728, CA, the circumstances of how the alleged oral confession came to be madeexcited the suspicions of the Court of Appeal. The Appellant had been interviewed, andhis “no comment” answers had been recorded on audio tape. However, it was alleged bythe prosecution that as soon as the tape recording machine had been switched off, theappellant volunteered a confession to the crime. Though a note was taken of this con-fession, the appellant refused to sign it. This alleged confession was the only evidencewhich the prosecution could produce against the appellant. In such circumstances, it issubmitted that a judge would be justified in finding that the defendant had no case toanswer. It is further submitted that where a confession or admission has not beenrecorded, contemporaneously or within a reasonable time thereafter, the court will beconcerned at the apparent laxity of the investigating police officers and must questiontheir veracity. As an oral confession, which is easy to concoct and hard to disprove andwhich is not properly recorded the judge or magistrate may, in the interests of justice,look for other evidence to be satisfied that (a) the confession was made, and (b) that itwas voluntary. With the introduction of the video recorded interviews many of the con-cerns which the courts may have had in the past, about the sufficiency of recordingconfessions, have been dissipated.

There may be occasions when an alleged confession does not marry with other undis-puted facts. This may suggest that the confession was not made, or if made, was notvoluntary. Indeed in this jurisdiction it has been the writer’s experience that some


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suspects have deliberately put forward false confessions either because they feared thatif they said nothing they may come to some harm or to deceive the investigating policeofficers. In either case, the “confession” would have little if any probative force andshould be excluded. If the remaining evidence were sufficient to raise a case for consid-eration by the jury then the trial should proceed.

At common law an accused may be convicted on his confession alone. This simpleproposition of law has, in recent years, been the subject of much debate. This debatehas been given some urgency by the recent Court of Appeal decisions in England andWales, such as in the appeals of the “Guildford Four”. In his report on the MaxwellConfait murder case, where three youths of weak intellect were wrongly convicted onthe evidence of false confessions, induced by oppressive questioning, Sir Henry Fishersuggested that the police had a duty in such cases to look for other evidence, either insupport or in contradiction of the confession: House of Commons HC 90, 12 December1977, paras 23.1 and 23.3. However, the Royal Commission on Criminal Procedure, setup in consequence of Sir Henry Fisher’s report, was unanimously of the opinion thatthe proposition that confession evidence should always be supported by other evidencewas unacceptable. The Royal Commission considered that the proposal advanced had

“such considerable implications for the resource and organisational aspects of the pre-trialprocedure and for the accused to speedy disposal as to be altogether too drastic a way ofremoving the risk of false confessions [Report, Cmnd 8092, January 1981, para 4.74].”

15–99In 1992 the Royal Commission on Criminal Justice returned again to this difficultquestion. On this occasion its members were unable to come to a unanimous conclu-sion: Report, Chapter 4, paras 56–87. In recent years there have been several attempts,by way of private members bills to change the law, so far without success. There is atendency, in such endeavours to change the law, to confuse admissibility with suffi-ciency. On the other hand, if the judge is so dissatisfied with the circumstances of whenand how the alleged confession came to be made, the authorities appear to suggest that(if there were no other evidence) the court could find that the evidence against theaccused was so tenuous, inconsistent or unreliable that it should not go to the jury, inaccordance with the principles enunciated in R v Galbraith [1981] 1 WLR 1039.

The law in Hong Kong

15–100In Hong Kong the common law prevails. Nevertheless, on 14 December 1984, TheLaw Reform Commission of Hong Kong presented a very detailed and comprehensiveReport on the subject of confession statements and their admissibility. The Commissionmade a number of recommendations; some of these recommendations have beenimplemented. The Commission in its Proposal No 4 (see also Proposal No 8) suggestedthat no person could be convicted if he exercised his right of silence. At the same time,provided that there had been compliance with the requirements of Proposal No 8 thejury would be entitled to draw “reasonable and proper” inferences from the accused’sfailure or refusal to answer questions and to put forward his defence. Included in thisproposal (No 4A) was the recommendation that the jury could draw adverse inferencesif the accused, when giving evidence, raises a defence which he had not mentionedwhen “interrogated by the police”. Clearly, the Commission was advocating a dilution ofthe accused’s “right of silence”. This recommendation has not been adopted in thisjurisdiction.

(2) Proving the fact that a confession was made

15–101A confession statement can be recorded down in writing by the defendant himselfor spoken by him. Statements made by defendants can be placed into three broad cat-egories: written, spoken and taped. The written statement under caution may be in thehand of the defendant, though more usually it is taken down by a police officer, actingas a scribe. The written statement may be in the form of a narrative or a record of


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questions and answers. The purely oral statement is one which has not been reducedinto writing, though a record may be made by the police officer in his notebook at thetime or later. The police officer, in this jurisdiction will often make a “post-record” inwriting on paper of what the defendant had said previously. If the defendant refuses tosign such a record, it can then be proved by the person who heard the defendant makethe statement, sometimes relying on an aide memoire (such as the notebook) made as thestatement was uttered or as soon after as is practical, when the memory of the witnesswas still fresh. This aide memoire is not evidence and should not be exhibited, unless it isbrought into evidence through cross-examination. The taking down in writing by apolice officer of what a defendant has said is the oldest form of recording a confession.At one time the majority of such statements were in the narrative form. The takingdown and the procedures for recording what the defendant has said in writing are nowregulated by Rules and Directions (see §§15–122 et seq, below). Today most, if not nearlyall statements taken from suspects are by way of questions and answers. This process hasbeen hastened by the increasing use of audio and video tape recordings. In all suchcases the defendant will be offered the record for verification.

By the beginning of 1991, all interviews at police stations in the United Kingdomwere being tape-recorded. Save for the ICAC little use has been made of audio-taperecording in this jurisdiction. Though at one time the Hong Kong Police were hesitantto embark on a programme of video-recording interviews with suspects, it has nowbecome an accepted investigative tool. Nearly all interviews conducted by the HongKong Police, involving serious crimes, are recorded on video-tape. This method ofrecording interviews with suspects has greatly assisted the police and other law enforce-ment agencies in securing the convictions of defendants. Many of the circumstances,which formerly gave rise to complaints, associated with the written recording of confes-sions, have been removed by the use of the video-recorder. Procedures have now beendeveloped by the Hong Kong Police and the Independent Commission Against Corrup-tion whereby (1) the defendant is asked if he or she consents to be interviewed on“video”; (2) the mechanics of the recording devices are explained to the defendant bythe interviewing officer; (3) the interview is filmed so that both the defendant, theinterviewing officer/s, together with any other persons present in the interview room,can be seen; (4) the interview is viewed on a television monitor in another room, usuallyby a more senior officer; (5) the video tape is played back to the defendant; and (6) thedefendant is given a copy tape of the interview as soon as it is concluded. The Rules andDirections are not expressed to apply to the video-recorded interview; they are designedto regulate the taking of written records of interviews. In fact, it is only since about 1995that the Hong Kong Police have begun to use, on a regular basis, video taping of inter-views as a tool in the investigation of crime. Videotape recordings are admissible of theevents they depict. If the recording includes sound and the language used in the inter-view is not English, a transcript of the proceedings will be created and a translation inEnglish will be made. The English translation of the transcript, if it is sought to beproduced as evidence in the trial, must be certified as a correct. The admissibility ofsuch transcripts is governed by sections 27 and 29A of the Evidence Ordinance (Cap 8).However, it should be noted that it is the video tape recording which is the primaryevidence. Summaries of the recorded interviews can be produced by agreement. Videotaped recordings can be edited, to remove any unduly prejudicial material. Similar con-siderations apply to video recorded “reconstructions”, in which the defendant took part.In R v Li Shu-ling [1989] AC 270; [1989] 1 HKLR 82, it was held that there is no distinc-tion between a video-taped interview and a reconstruction.

15–102 The written recorded interview is still the most widely used form of recording adefendant’s confession. And like the other forms of recording what the defendant hassaid, the primary requirement of proof is “authenticity”. It is therefore always necessary,(in the absence of agreement), for the person who witnessed/recorded the statementto testify to the effect that the record is genuine, has not been tampered with and is atrue and complete record of what was said. If the record is incomplete, this will not ofitself, impugn its admissibility, though the witness will be asked to provide a satisfactoryexplanation for the omissions in his record.


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(3) The burden of proof and the standard of proof required to admit a confessional statement into evidence

15–103Even where the admissibility of a confession is not challenged there must be someevidence sufficient to satisfy the trial court that the confession is voluntary: R v PoonChi-ming [1973] HKLR 414; DPP v Ping Lin [1976] AC 574; R v Leung Lai-por [1978]HKLR 202. The burden of proving that the confession was voluntary always remainswith the prosecution, the standard of proof is that of proof beyond all reasonable doubt:R v Li Ming-kwan [1973] HKLR 275; R v Sartori [1961] Crim L R 397: R v Kwan Cheung-tai [1959] HKLR 141; Mitchell v R [1998] 2 WLR 839. It would appear to be the case thatin Australia the standard of proof is proof on the balance of probabilities: Wendo v R(1963) 109 CRL 559. In Li Ming-kwan, above, the Court of Appeal, with some reluc-tance, accepted that the full criminal standard of proof should apply. As Huggins J said,(at 285, 286):

“We have yet to be persuaded of the wisdom of the decision in R v Sartori but we hesitate tointroduce further uncertainty by declining to follow that decision in a case which is not cer-tain to go to the Privy Council. We therefore agree that we should consider ourselves obligedto assume that the standard of proof required was proof beyond all reasonable doubt. Weare then left with the task of deciding whether there is any way in which we can avoid themore absurd consequences of a rigorous application of the rule. The only reasonable con-clusion seems to us to be that we must encroach upon an accused person’s alleged ‘right tosilence’ to the extent of insisting that when he objects to a confessional statement on theground that it was not voluntary he must give reasonable particulars [of his objections]. Wedo not propose to lay down any more precise rule and every case must be judged on its facts.The court must weigh the reasonable requirements of the prosecution in preparing to dis-charge the burden of proof which is upon it against the reasonable desire of the defence toavoid giving information which will unfairly forewarn the prosecution of its case and enableany dishonest witnesses who may be called by the prosecution to shape their evidenceaccordingly. Where particulars which ought to be given have not been given, it will then beopen to the court to draw the inference that no inducement arose at the time which wouldhave been indicated had had particulars been given. We have to ensure that the criminaljustice system remains an instrument for convicting the guilty and acquitting the innocentand does not become merely an instrument for acquitting both the guilty and the innocent.”

15–104In practice, prosecutors do not (and should not) reveal the contents of the defenceobjections to their witnesses. R v Li Ming-kwan, above, has been followed in this jurisdic-tion. It is also the practice in this jurisdiction that the prosecutor, when examining hiswitnesses, should confine himself to asking the police witness to respond to the broadlyframed common-form questions such as, did he threaten, assault, induce or otherwisecommit any other improper act in his dealings with the defendant. He should notattempt to “steal the thunder” from the defence. It is now accepted practice that theobjections will be provided in written form by the defence. In Mitchell v R, above, it wassuggested by the Privy Council that, where appropriate, the prosecution should not beinhibited from asking the defence to clarify their objections. If the admissibility of theconfession is not in dispute only the barest evidence will suffice to prove that it wasvoluntary. In such circumstances all that is necessary is for the witness to produce therecord and tell the court how it came to be made, and how it came to be recorded downin writing. Where the defendant is unrepresented the court should take particular careto satisfy itself that the admissibility of the confession is not contested.

It is not enough for the court to simply ask the unrepresented defendant if he hasany objections to the statements: HKSAR v Wong Hon Wai [2002] 3 HKLRD 258, para 16,CFI. Generally, and particularly in the circumstances of this case where it was knownthat the defendant suffered from a mental disorder, “the Magistrate should haveexplained to the unrepresented appellant that the prosecution had to prove the volun-tariness of the alleged admissions he had made and that the appellant had a right tochallenge the prosecution case in that regard” (at para 16).

Where the defendant is represented the better course would be for the parties toadmit the fact that the confession was made, and that it was the defendant who made it,pursuant to section 65C of the Criminal Procedure Ordinance (Cap 221), or have it


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read, in accordance with section 65B of the same Ordinance. The use of these proced-ures will save time and expense: R v Leung Lai-por, above. The fact that the defendantdoes not raise any formal issue as to the admissibility of his alleged confession does notabsolve the judge or magistrate from the requirement to hold a trial on the specialissue, if there is some material which might suggest that it was not voluntary: HKSAR vLee Ying-lun [1997] HKLY 263; this appeal was heard after 1 July 1997, see also thejudgment of Mortimer JA in R v Chu Chi-kwong [1995] 1 HKCLR 327.

The onus of proving the admissibility of a confessional statement always has restedwith the prosecution: R v Poon Chi-ming [1973] HKLR 414; DPP v Ping Lin [1976] AC574; R v Leung Lai-por [1978] HKLR 202. In some cases the admission of a confessionalstatement may not be challenged by the accused. In spite of such a concession the courtmust still be satisfied that there is sufficient evidence to establish that the confession isvoluntary and so admissible: R v Lee Fat [1969] HKLR 349; R v Leung Lai-por, above. It isnot appropriate for a witness to be asked if the confession was “voluntary”, this is anissue for the court to decide: R v Kwok Kwan-ho [1973] HKLR 231. Where the accused isunrepresented the court must satisfy itself whether or not there is an issue on the admis-sibility of a confession statement. If the accused asserts that he was induced to make theconfession the court must hold a trial of the special issue, either by way of a voir dire orthe “alternative procedure”, as the case may be. Where the accused denies making theconfession, whether it is recorded or not, the court will have to inquire into the circum-stances of how the alleged confession came into existence. The accused may allege thatat the time he was arrested he was subjected to intimidation or violence by the investi-gating police officers. In such a case, whether the confession be oral or in writing thecourt is obliged to hold an inquiry into the issue of the voluntariness of the allegedconfession: Thongjai & Another v R [1997] HKLRD 678, PC; HKSAR v Jennifer Lee [2003]1 HKLRD C6, CFI. The Board, in the Opinion delivered by Lord Hutton, took a broadview of the circumstances when a court should hold a voir dire on the admissibility of aconfession. In his speech Lord Hutton placed some emphasis on the judgment of theHigh Court of Australia in MacPherson v The Queen (1981) 147 CLR 512, where Gibbs CJand Wilson J made this statement of principle (at 522):

15–105 “The condition of the admissibility of a confession is that it was voluntarily made, and thejudge must be satisfied on the balance of probabilities that this confession was fulfilledbefore he admits the evidence. If the accused asserts that inducements were offered or pres-sure exerted but denies that he made the confession and the judge, without considering thequestion of voluntariness, admits police evidence that a confession was made, the obviouspossibility exists that the jury will accept the police evidence and find that the confession wasmade, and if that occurs they will have before them evidence that has not been found to beadmissible, and an important rule, which exists to protect accused persons, and to maintainproper standards of police investigation will have been subverted. Of course once the evid-ence of the confession is admitted the jury are not concerned with the question whether it isvoluntary; they have to consider only whether it was made and whether it was true, althoughthey are entitled to consider the circumstances surrounding the making of the statement indeciding upon its weight and value.”

(And at 525):

“The applicant, by the suggestions that he made in cross-examination raised a real questionas to the voluntariness of the confessions, and notwithstanding that the applicant deniedthat any confession was made the proper course was to hold a voir dire on which the judgecould decide whether the confessions were voluntary and admissible.”

In R v Thongjai, above, Lord Hutton (at 684E), said:

“Therefore where the prosecution alleges that the defendant made an oral admission, and acase is raised on behalf of the defendant that he did not make the oral admission and thathe was ill-treated by the police before or at the time of the alleged admission, two issues areraised which are not mutually exclusive. The first issue, which is for the judge to decide, iswhether on the assumption that the alleged admission was made, it is inadmissible as beinginvoluntary. The second issue, which is for the jury to decide if the judge rules that thealleged admission is admissible in evidence, is whether the admission was in fact made.”


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15–106Where the accused declines to sign the record of his alleged confession, the prosecu-tion will be required to prove as a fact that the accused adopted the writing as a truerecord of what he had said. The court should inquire into how the defendant may haveadopted the writing, whether by speech or conduct or otherwise: R v McGillivray (1993)97 Cr App R 232 at 237. If the accused alleges that he made the writing, or signeda written statement, recorded by the interviewing officer, under inducement or otherpressure, then this is an issue for a voir dire: Ajodha v State, above.

HKSAR v Tan Thuan Heng [2005] HKEC 1658, CFI, concerned an alleged oral admis-sion and a post-recording of that admission. The accused said he never made the oraladmission and he was just asked to sign the post-recording. The court distinguishedthe oral admission from the post-recording and, applying Thongjai, held that since theevidence alerted the court that there might be an issue as to whether the post-recordingwas signed voluntarily, the court should hold a voir dire whether or not the defence hadspecifically raised the objection. This case is to be contrasted with HKSAR v Jasbir Singh[2006] HKEC 272, CFI. The prosecution wanted to admit a post-recording, allegedto be a record of the oral admission of the accused. The accused stated that he nevermade the oral admission and he was forced to sign the post-recording in oppressivecircumstances. At trial, the defence counsel, in reply to the magistrate’s question asto whether a voir dire was needed, specifically acknowledged that the only issue waswhether the confession was being made, not on voluntariness. On appeal to the Courtof First Instance, Lunn J held that the magistrate was entitled to rely on the defencecounsel’s statement and discontinue his inquiry as to the voluntariness of the confession(at para 34).

(4) Mixed statements

15–107A mixed statement is an out-of-court statement made by a defendant that containsboth inculpatory and exculpatory parts. A mixed statement does not cease to be par-tially inculpatory merely because the facts that are said to inculpate are admitted by theparties at trial. The Court of Appeal made this clear in HKSAR v Yuen Man Tung(unrep., CACC 442/2003, [2004] HKEC 487) at para 18: “Whether a statement is or isnot wholly exculpatory is not a question resolved by having regard to the issues whichremain to be determined in the light of admissions made at the time of trial. Its natureis to be determined rather by its content at the time it is made. If it is adverse to theperson making it in relation to an important element of the offence charged – and thisis not intended to be an exhaustive delineation, but merely one that suffices for thepurpose of the present case – then self-evidently it is not wholly exculpatory”. Nor doesthe inculpatory part of the statement have to go to an element of the offence, it can becircumstantial in nature. If they are such as to be able to materially assist the prosecu-tion to prove its case against the defendant, then the nature of the statement is mixed:HKSAR v Lo Wai Ming [2007] 3 HKLRD 191, CA, at §15–20.

As to the evidential status of a “mixed” statement, wherein the accused “confesses andavoids” liability, there appears to be two schools of thought. The first, which has beencalled the purist view (see P. Murphy (Ed), Blackstone’s Criminal Practice (1996), para F17– 44)holds that in conformity with rule against hearsay, the self-serving parts are not evidenceof their truth, but form material which may be of use to a jury in evaluating the qualityof the admissions. The other school, which advocates the liberal approach, contends thatthe whole statement is admissible by way of an exception to the rule against hearsay, andthus is evidence of the truth of all the facts stated in it. The liberal approach has thelonger provenance. In R v Jones (1827) 2 C & P 629, the rule was that:

“… if a prosecutor uses the declaration of a prisoner, he must take the whole of it together,and cannot select one part and leave another.”

In R v Pearce (1979) 69 Cr App R 365, CA, Lord Lane CJ summarised what heregarded as the salient principles on this aspect of the rule of admissibility (at 369 &370). They can be stated as follows:


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(1) a statement which contains an admission is always admissible in evidence as adeclaration against interest and is evidence of the facts admitted;

(2) a statement which is not an admission is admissible to show the attitude andreaction of the defendant when he was first “taxed” with the accusation. How-ever, this is not to circumscribe the limits of admissibility. The longer the timethat elapsed since the first encounter the less weight can be given to the denial;

(3) a statement which is not itself an admission is admissible if it is made in the samecontext as an admission, whether in the course of an interview or in the form ofa voluntary statement. It would be unfair to admit only the statements againstinterest which excluding part of the same interview or series of interviews;

(4) it is the duty of prosecution to present the case fairly to the jury; (5) in practice most statements are given in evidence even when they are largely

selfserving. In the case of the carefully prepared written statement, which isclearly fashioned to put forward a “defence”, the trial judge will have no com-punction in ruling it to be inadmissible.

The liberal approach was adopted in HKSAR v Wong Chi Wan (unrep., CACC 156/2005, [2006] HKEC 600), CA. It was held that the exculpatory part of a mixed statementcan be used by the accused both to prove the material issue and credibility (at para 29).The judge’s comment on the mixed statement that “[the mixed statement] is not thetruth of what is stated therein … is just the defendant’s reaction” was held to constitutea material irregularity.

15–108 In R v Donaldson (1976) 64 Cr App R 59 the Court of Appeal had adopted the puristapproach. The appellant had made a mixed statement to the police. The appeal pro-ceeded on the complaint that the trial judge had excluded all those non-incriminatoryparts of the statement, as they “were not evidence”. It is to be noted that the appellanthad not given evidence in the trial. Lord Justice James (at 65) observed:

“When the Crown adduce a statement ruled upon as admissible it is for the jury to considerthe whole statement including any passages that contain qualifications or explanationsfavourable to the defendant, that bear upon the passages relied upon by the prosecution asan admission, and it is for the jury to decide whether the statement viewed as whole consti-tutes an admission. To this extent the statement may be said to be evidence of the factsstated therein. If the jury find that it is an admission they may rely upon it as proof of thefacts admitted. If the defendant elects not to give evidence then in so far as the statementcontains explanations or qualifications favourable to the defendant the jury, in decidingwhat, if any, weight to give to that part of the statement, should take into account that it wasnot made on oath and has not been tested by cross-examination.”

A similar approach had already been adopted by Lawton LJ in R v Sparrow [1973]1 WLR 488, though he appears to have recognised that it might well be very difficult forjuries to understand the rule (at 492):

“Many lawyers find difficulty in grasping the principle of the law of evidence. What juriesmake of it must a matter of surmise, but the probabilities are that they make very little.”

In R v Duncan (1981) 73 Cr App R 359 at 364, Lord Lane CJ preferred the liberalapproach:

“Where a ‘mixed’ statement is under consideration by the jury in a case where the defendanthas not given evidence, it seems to us that the simplest, and, therefore, the method mostlikely to produce a just result, is for the jury to be told that the whole statement, both theincriminating parts and the excuses or explanation, must be considered by them in decidingwhere the truth lies. It is, to say the least, not helpful to try to explain to the jury that theexculpatory parts of the statement are something less than evidence of the facts they state.”

But the principle that self-serving statements carry little or no weight was not entirelyabandoned (at 365):

“Equally, where appropriate, as it usually will be, the judge may, and should, point out thatthe incriminating parts are likely to be true (otherwise why say them?) whereas the excusesdo not have the same weight, nor is there any reason why, again where appropriate, thejudge should not comment in relation to the exculpatory remarks upon the election of theaccused not to give evidence.”


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Sect. II] Confessions § 15–109A

15–109The liberal approach eventually attained the approval of the House of Lords in 1988.In R v Sharp [1988] 1 WLR 7 the purist approach was rejected for two reasons, first,because it was considered that the weight of authority preferred the “liberal” view and,secondly, commonsense dictated that the only way in which a jury could use the self-serving parts of a mixed statement to “evaluate the facts in the admission” would be ifthey initially reached a conclusion as to the truth or possible truth of the explanationgiven by the accused.

It is submitted that there is no logical reason why the evidential status of a mixedstatement should depend upon whether or not the defendant goes into the witness box.Where the defendant exercises his right not to give evidence, he will be relying on theexculpatory content of his record of interview(s). Thus where the defendant bearsthe burden of raising an issue, such as self-defence or provocation, what he had told thepolice could be critical. It is submitted that if the option of election is to remain open toa defendant it is essential that the self-serving parts of the statement made by him arecapable of being evidence of their truth. In R v Hammand (1985) 82 Cr App R 65, theappellant admitted to the police that he had struck a man in the face but claimed thathe believed that the man was about to attack him. The trial judge ruled that this asser-tion made by the appellant was not evidence of self-defence thus making it necessaryfor the appellant to give evidence. The Court of Appeal held that the judge had erredand that the appellant could have the exculpatory portion of his statement placedbefore the jury as evidence of its truth. See also HKSAR v Kong Siu-ming & Others [2000]2 HKLRD 449, where the Court of Appeal held that the exculpatory parts of a state-ment contained sufficient evidence to raise the issue of self-defence. It was observed inHarz and Power, above, that a mixed statement can amount to a confession.

In Li Defan & Another v HKSAR [2001] HKEC 853, the Appeals Committee, on anapplication for leave to appeal to the Court of Final Appeal, followed the judgments inR v Duncan (1981) 73 Cr App R 359 at 365, and R v Sharp [1988] 1 WLR 7, HL. As theAppeal Committee held, it is plain that where a “mixed” statement is placed before thejury, the jury should be directed that the whole of the statement should be taken intoaccount in deciding where the truth lay. Where appropriate the trial judge should pointout to the jury that the incriminating parts were more likely to be true, whereas the self-serving parts might carry less weight. In HKSAR v Poon Hoi-wing [2001] HKEC 128,Stock JA, in delivering the judgment of the Court of Appeal, held that both the inculpa-tory and the exculpatory parts of a “mixed statement” are admissible as evidence of thetruth of what had been recorded therein. However, the Court was careful to emphasisethat the two parts might not carry the same weight. Stock JA pointed out that the excul-patory part of a “mixed” statement was also evidence of its truth because without it thetribunal of fact would be less able to fairly evaluate the facts admitted. In HKSAR v KongSiu-ming & Others [2000] 2 HKLRD 449 it was held that the reasoning in R v Duncan,above, and R v Sharp, above, also applied to proceedings in the District Court. TheCourt of Appeal in R v Vu Trong Minh [1995] 1 HKCLR 24, was of the opinion that R vSharp and R v Duncan, above, only applied where the defendant had not given evidence.If he does give evidence the trial judge is not obliged to direct the jury as to the eviden-tial weight of the exculpatory parts of his mixed “statement”.

15–109AHKSAR v Huang Xiang Rong [2010] 1 HKLRD 750, CA, addressed the important issueof how the judge should instruct the jury on the exculpatory part of a mixed statement.If in the defendant’s evidence she adopted the exculpatory explanation contained inher out-of-court statements, there was no requirement for the jury to be directed toconsider separately the exculpatory parts as evidence of the truth. A direction that theaccounts were consistent might be appropriate (para 61). However, if the defendantin her evidence gave an account, which although exculpatory, was different from theexculpatory account advanced in her mixed out-of-court statements, those statementsstood separately. Nevertheless, they remained evidence, so the judge was under a dutyto direct the jury to consider the truth of that account (para 62). The latter principlewas applied in this case to quash the appellant’s murder conviction. Her testimony attrial was materially different from the exculpatory explanation contained in her mixedstatement. However, the trial judge failed to give a balanced and fair review of the


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§ 15–109A Police Powers, etc [Chap. 15

appellant’s alternative case of manslaughter which was based on an account of the factsgiven in her mixed statement.

(5) The evidential status of a wholly exculpatory statement

15–110 The prosecution can produce an exculpatory statement made by the defendant toshow his reaction when taxed with the accusation: R v Higgins (1829) 3 C & P 603. It hasnow become acceptable practice for the prosecution to place in evidence statementsof the accused where the inculpatory element is minimal. This practice is predicated onthe basis that the prosecutor’s duty is to conduct his prosecution fairly. It is submittedthat the prosecution should not have the decision as to whether or not a mixed state-ment is adduced in evidence. At the end of the day it is for the judge to decide what isrelevant and what is not relevant. It is the duty of prosecution to adduce all relevantevidence in a criminal trial (one which is recognised in this jurisdiction). In deciding ifa statement is mixed as opposed to self-serving, the court should first look at the con-tents and not at the other evidence: Western v DPP [1997] 1 Cr App R 474. On the otherhand where the statement is wholly exculpatory different considerations will apply. InR v Cheung Hon-kwong [1990] 2 HKC 166, the Court of Appeal, citing R v Sharp, above,held that a wholly exculpatory statement was inadmissible, if it were elicited for thepurpose of proving the facts stated therein. On the other hand such a statement isevidence of the reaction of a defendant when accused of the offence made against him:Att-Gen v Li Siu Lam [1989] 12 HKLR 370. In R v Ma Wai-hung [1991] 1 HKLR 174, theCourt of Appeal held that it was wrong in law to hold a defendant’s statement inadmiss-ible solely because it was exculpatory. The weight of the reaction was a matter for thecourt. In R v Tooke (1990) 90 Cr App R 417, Lord Lane CJ stated that the test of admiss-ibility was as follows:

“It seems to us that the test which should be applied is partly that of spontaneity, partly thatof relevance, and partly that of asking whether the statement which is sought to be admittedadds any weight to the other testimony which has been given in the case. Of course it is noeasy task for the judge to decide in his discretion where the dividing line lies.”

The exculpatory statement cannot be offered as evidence of the consistency ofa defendant’s claims, nor is it evidence of the facts stated therein. An accused, whoadduces an exculpatory statement into evidence, but does not testify, may expose him-self to comment by the trial judge: Att-Gen v Li Suit-lam, above. The issue of consistencymay arise if it is suggested to the defendant, in cross-examination, that his evidence isa “recent invention”. What is asserted in the statement may suggest that the defendanthas been consistent in his denials from the outset. If the jury forms the conclusionthat the defendant has been consistent, they may give more weight to his testimonialassertions that he is not guilty of the offence charged. It has been held that a whollyexculpatory statement is not a “confession”, within the meaning of section 82 of thePolice and Criminal Evidence Act 1984.

(6) A confession based on hearsay

15–111 If the factual basis of a confession has its origins in information of which the defend-ant has no personal knowledge it may be inadmissible: Surujpaul v R [1958] 1 WLR1050; [1958] 3 All ER 300; (1958) 42 Cr App R 266, PC. The Board made the followingstatement of principle (at 1056):

“A voluntary statement made by an accused person is admissible as a ‘confession’. He canconfess as to his own acts, knowledge or intentions, but he cannot ‘confess’ as to acts ofother persons which he has not seen and of which he can only have knowledge by hearsay.A failure by the prosecution to prove an essential element in the offence cannot be cured byan admission of this nature.”

In some cases the only evidence that the defendant had in his possession a dangerousdrug is the admission by the defendant (based on what someone else told him) that


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he had had a dangerous drug in his possession. Such an admission may be prima facieevidence of the defendant’s knowledge of the nature of the substance. Such “informal”knowledge may come from the defendant’s prior knowledge or experience: Bird vAdams [1972] Crim L R 174, DC. In Bird v Adams the defendant was arrested for havingin his possession LSD. After being cautioned he admitted to having had 15 tablets of thesubstance and that he had sold them all to unknown persons. It was submitted at trialthat there was no evidence to prove that the defendant had had a prohibited drug inhis possession. The defendant did not give evidence. His appeal was dismissed by theDivisional Court, as the defendant had confessed not only to possession of a specificsubstance but had admitted to selling it. His conduct was such as to raise, at least, aprima facie case against him. The Divisional Court on another occasion held that a similaradmission might have little or no evidential value where the defendant had no special-ised chemical knowledge of the properties of the substance and what effect it may have:Robinson v Hughes [1987] Crim L R 644. Bird v Adams, above, was cited with approval inAtt-Gen v Chik Wai-lun [1987] HKLR 41. In Att-Gen v Chik Wai-lun the Court of Appealtook the view that an admission of membership of a triad society without more would beunlikely to be sufficient to prove the offence. In R v Chan Yiu-tong [1994] HKLY 362,Chan J (as he then was) held that a bare admission without any expert evidence wouldnot be enough to prove membership of a triad society. On the other hand in R v YunKai-hong & Another [1995] 1 HKCLR 269 the Court of Appeal held that a confessionto membership of a triad society may not require the support of expert evidence inevery case. Initiation rituals for entry into a triad society are now rare and usually quiteinformal in nature. An admission to membership of a triad society would be an issueof fact. More often than not expert evidence in such cases may not take the case anyfurther: R v Tsoi Sai-pui [1992] HKLY 309.

The issue of “hearsay” admissions is often encountered where knowledge or beliefis a crucial element of the offence. For example, in cases of dishonest handling, thehandler often relies on information from a third party. However, the admitted circum-stances of how the defendant came into possession of the property can raise a compel-ling inference that he knew or believed that it had been stolen: R v Hulbert (1979) 69 CrApp R 243. The defendant admitted that she had bought a quantity of goods fromvarious unnamed persons in a public house, in some cases she said that she had beentold that the purchased goods were stolen. Though the defendant’s admission as towhat she had been told was hearsay and as such could not be evidence that the goodswere stolen it could, nevertheless, be evidence of her knowledge or belief at the mate-rial time. The jury could be invited to draw the inference from the defendant’s admis-sions and the other circumstances that the defendant had dishonestly handled theproperty, which she had admitted to possessing. See also R v Sbarra (1918) 87 LJKB1003; R v Overington [1978] Crim L R 692; R v Korniak (1982) 76 Cr App R 145; and R vMcDonald (1980) 70 Cr App R 288.

(7) Use of a defendant’s confession by or against a co-defendant

15–112In R v Gunewardene [1951] 2 KB 600; (1951) 35 Cr App R 80, Lord Goddard statedthe principle in simple terms:

“If no separate trials are ordered, it is the duty of the Judge to impress on the jury that thestatement of one prisoner not made on oath in the course of a trial is not evidence againstthe other and must be entirely disregarded.”

This is a fundamental rule, (subject to some exceptions, which are referred to below).It is the duty of the judge to impress upon the jury that the out-of-court statement isnot evidence against another defendant for any purpose. Where one or more of thedefendants change their plea to one of guilty during a trial his statement(s) should bewithdrawn from the jury: R v Bowen [1972] Crim L R 312, CA. The general practice isthat in a criminal trial the defendants should be tried together: R v Moghal (1977) 65 CrApp R 56.


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Is the fundamental rule breached when in a joint trial of A and B the jury is entitledto use their findings of A’s guilt and the role A played, which are solely based on A’sconfession, as facts to be used evidentially in respect of B? In R v Hayter [2005] UKHL 6,three of the five Law Lords found that the fundamental rule was not breached if thejury arrived at their verdicts of guilt against A and B in this way. A distinction was madebetween using A’s confession against B, which was not permissible, and using a findingof A’s guilt against B, which was permissible. The permissibility of the latter is reinforcedby the policy underlying section 74 of PACE, which makes evidence of a person’s convic-tion for a certain offence admissible to prove that he or she committed that offence.

Lord Rodger in a strong dissent found that the prosecution was submitting in sub-stance that “the jury have a power to turn inadmissible into admissible evidence, and toconvict a defendant by using evidence that is inadmissible against him” (at para 47). Indirecting the jury on the distinction drawn by the majority, Lord Rodger believed that“[a]ny reasonable jury would find such a direction not just perplexing but impossible toapply” (at para 49). In Persad v Trinidad and Tobago [2007] 1 WLR 2379, PC, it was saidthat the Hayter rule applied in Trinidad and Tobago but that the circumstances in Persadwere distinguishable from those in Hayter which concerned the joint trial of defendants“for a joint offence” (§15–16).

In R v Lake (1976) 64 Cr App R 172, the Court of Appeal affirmed the general prin-ciple that an offence committed by two or more persons should be tried even if thismeant that inadmissible evidence would be given before the jury and the possible dan-ger that prejudice to one or more of the defendants may result (at 175). There will becases where the prejudicial effect of a co-defendant’s statement is so great against theother that no matter how strong may be the judge’s direction the jury would not be ableto put the effect of the statement out of their minds, that being so separate trials may beordered. Such orders will be rare: R v Chau Wai Keung & Another (unrep., Crim App No448 of 1992, [1993] HKLY 268). See also R v Chau Yong Tim [1993] 1 HKCLR 299 andTan Siew Gim v R [1995] 1 HKCLR 299. Where the prejudicial effect of one defendant’sstatement, is such that it can only be cured by editing his statement, then the judgeshould do so. In Lobban v The Queen [1995] 1 WLR 877, PC, Lord Steyn, in his Opinion,canvassed the principles governing the editing of co-defendant’s statements in somedetail (at 886G to 887B):

“It is now necessary to examine counsel’s argument [on editing a co-accused’s statement]from the point of view of legal principle. Two principles are clearly established. First, a trialjudge in a criminal trial always has a discretion to refuse to admit evidence, which is ten-dered by the prosecution, if in his opinion its prejudicial effect outweighs its probative value.This power has probably existed since Rex v Christie [1914] AC 545, but, in any event, it wasexpressly affirmed by the House of Lords in R v Sang [1980] AC 402. The power is based onthe trial judge’s duty in a criminal trial to ensure that a defendant receives a fair trial. Thewidth of the discretion is circumscribed by the purpose for which it exists. This common lawdiscretion is the foundation of a judge’s power to cause part of a written statement made bya defendant, which is adduced by the prosecution to be edited in the interests of justice. It iswide enough to allow a trial judge to exclude evidence, which is tendered by the prosecutionin a joint trial and which is probative of the case against one co-defendant on the groundthat it is unduly prejudicial against another co-defendant. R v Rogers and Tarran [1971] CrimL R 413 was such a case. In such cases it is in the interests of both defendants that thedisputed part of the document be edited: the distinctive feature of the present case is thatthere is a conflict between co-defendants as to editing.”

The second principle, which Lord Steyn alluded to, was that this discretion may onlybe exercised in relation to evidence tendered by the prosecution. There is no discretionto exclude relevant evidence sought to be adduced by one accused at the behest ofanother accused: R v Miller [1952] 2 All ER 667 at 669; Murdoch v Taylor [1965] AC 574.His Lordship also quoted an extract from Keane, The Modern Law of Evidence, 3rd edn,(1994), at 36, wherein the learned author stated in unequivocal terms that the discre-tion could only be exercised in relation to evidence tendered by the prosecution. Thejudge cannot prevent one accused from cross-examining his co-accused about his previ-ous convictions or bad character.


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Lord Steyn, at 887H to 888A, continues on the same theme:

15–113“Taking into account the rationale underlying the second principle, their Lordships haveconcluded the discretion envisaged in counsel’s submission, as deployed in a case such as thepresent, does not exist. The discretionary power to exclude relevant evidence applies only toevidence on which the prosecution proposes to rely. It exists to ensure a fair trial to thedefendant, or, in a joint trial, to each defendant without seeking to differentiate between thequality of justice afforded to each defendant. It does not extend to the exculpatory part of a‘mixed statement’ on which a co-defendant wishes to rely.”

And at 889C:

“Inevitably, the legal principles as their Lordships have stated them result in a real risk ofprejudice to co-defendants in joint trials where evidence is admitted which is admissibleagainst one defendant but not against the other defendants. One remedy is for a co-defendantto apply for a separate trial. The judge has a discretion to order a separate trial. The practiceis generally to order joint trials. But their Lordships observe that ultimately the governingtest is always the interests of justice in the particular circumstances of each case.”

And, under the heading of “Cross-examination of Lobban by prosecuting counsel onRussell’s statement” at 889E–F, Lord Steyn made this statement of the law:

“Prosecuting counsel cross-examined Lobban by putting to him Russell’s statement undercaution. It is trite law that prosecuting counsel may not cross-examine a defendant on astatement which is inadmissible in the case against him. The statement of Russell was inad-missible in the case against Lobban. It is difficult to understand how prosecuting counselcould have overlooked this most elementary of rules governing criminal procedure. Thejudge should have stopped the cross-examination of Lobban by the prosecutor on Russell’sstatement. This departure from established rules constituted a material irregularity.”

In this appeal the proviso was applied. Any dispute as to what should be edited can beresolved by the trial judge: R v Weaver and Weaver [1968] 1 QB 353; (1968) 51 Cr App R52, CCA; R v Knight and Thompson (1946) 31 Cr App R 52, CCA. On the other hand,once the defence case begins all options are open. No restriction can be placed on thecross-examination by one co-defendant of another, provided it is relevant.

(8) Use of a confession ruled or accepted to be inadmissible

15–114There is a clear distinction to be drawn between the use by the prosecution and bythe co-defendant of an inadmissible confession. The prosecution cannot cross-examinea defendant upon his confession, which has been ruled inadmissible: no more of whichshould be heard: R v Treacy (1945) 30 Cr App R 93. Information derived from theconfession can be used, provided the source is not revealed: R v Rice [1963] 1 QB 857.In R v Myers [1998] AC 124 the House of Lords held that in a joint trial of two or moredefendants, an extra-judicial confession (not relied on by the prosecution because ofaccepted breaches of Code C of the Police and Criminal Evidence Act 1984) made byone defendant may be put into evidence by the other defendant as evidence of the factsstated, provided that the confession is relevant to his defence. Where the maker of theconfession gives evidence which is inconsistent with the statement of confession, he maybe cross-examined upon it by the other defendant, provided that it is relevant to hisdefence: R v Rowson [1986] QB 17; (1985) 80 Cr App R 218, CA; Lui Mei-lin v R [1989]AC 288, PC. Where this occurs the trial judge should briefly explain the situation to thejury and, having regard to the circumstances in which the previous statement was made,he should tell the jury not to place any weight on it, in so far as it concerns the prosecu-tion’s case against the maker: R v Rowson, above. The judge should tell the jury whythe statement has been excluded and cannot therefore be relied on by the prosecution:R v Corelli [2001] Crim L R 913, CA. In the light of right of defendants to a fair trialunder Article 6 of the European Convention of Human Rights, applications to invokethe judicial discretion to order separate trials may become more frequent in the UnitedKingdom. In R v O’Boyle (1991) 2 Cr App R 202, the Court of Appeal, in a “whollyexceptional, if not unique” case, held that the trial judge had wrongly refused to orderseparate trials, when one defendant sought to cross-examine his co-defendant on a


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confession statement allegedly made in the United States, which had been ruled to beinadmissible by the trial judge. In Lui Mei-lin v R, above, the Privy Council advised thatwhere this situation is likely to occur, an application for a separate trial should be madeat the earliest opportunity.

In R v Myers, above, the House of Lords took the matter one step further. In effectthe judges held that a confession statement made by one of the defendants, whichimplicated her but exonerated the other defendant, could be put to the witnesses whohad taken and recorded the statement on behalf of the second defendant. In Meyersthe two accused were on trial for murder. The first accused had made the confessionstatement, but it had not been tendered in evidence by the Crown because there hadbeen breaches of Code C. The issue of admissibility had not been considered in thetrial. The second accused indicated that if the first accused were to give evidence he, thesecond accused would cross-examine the first accused on her statement. The first accusedapplied for a separate trial, this was refused by the trial judge, whose decision wasapproved by both appellate courts. The principal reason for refusing the applicationwas that it would or might cause injustice to the second accused, who would berestricted from adducing the evidence of the first accused’s admission. As it turned outthough the first accused did not give evidence and the second accused was permitted toadduce the evidence of the confession by calling the witnesses to whom the confessionhad been made. Lord Slynn, in his speech, at 166 C–D, made the point about relevance.As long as the material is relevant to the defence of an accused, it is admissible:

15–115 “A confession may be relevant both as to credibility and as to the facts in issue and it doesnot cease to be admissible because it does so. Indeed, so long as it is relevant to establish hisdefence or to undermine the prosecution case against him a defendant should in my view beallowed to cross-examine a co-defendant as to his confession which goes to the facts in issuerather than only to the credibility of the maker of the statement. He should not less beallowed to cross-examine the person to whom a statement is made as to the terms of thestatement as to the terms of the statement even though since the defendant has not givenevidence, the question of credibility has not arisen.”

Lord Hope, though agreeing with the other judges, did suggest that if the statementhad been ruled to be inadmissible on the ground that it was involuntary, it would beworthless as a piece of evidence (at 174E). Lord Hope, mindful that the trial judgewould have no discretion to prevent one defendant cross-examining another as to hischaracter or previous statements, suggested that (at 174G to 175B):

“It is at least open to question whether the rule extends to a case where the evidence whichthe defendant wishes to put in evidence consists of a confession which was made by a co-defendant in circumstances which section 76(2) of the Act of 1984 describes. While it wouldnot appear too accurate to describe such a confession as irrelevant, in a case where thedefendant’s case is that the offence was committed by the co-defendant, the circumstancesin which it was obtained may be said to have been such as to render it worthless for allpurposes, whoever it is who seeks to rely on it. On this view it would be a proper exercise ofhis discretion by the trial judge to exclude such evidence even although the other defendantwished to put it in evidence.”

15–115A While the co-accused in Myers was seeking to admit a confession that was not adducedby the prosecution, the principle is broad enough to allow an accused to rely on theconfession of a co-accused properly admitted for the prosecution. It was also consistentwith Lui Mei Lin v R [2989] 1 AC 288, PC, which held that “the counsel of a co-accusedis entitled to cross-examine an accused on his otherwise inadmissible out-of-court state-ment provided that it is relevant”: cited from HKSAR v Law Chung Ki [2005] 4 HKLRD499, CFA, para 13, which affirmed the decision of Lui Mei Lin. In HKSAR v Lee KwanKong [2006] HKEC 199, CA, the accused was charged with participating in a joint enter-prise to murder. Her defence was inter alia the withdrawal from the joint enterprise.One of the co-accused made a confession, which included a statement to the effect thatthe accused was sleeping when the final assaults were applied. It was held by the Courtof Appeal that the jury ought to be have been told that they could take the confession ofthe co-accused into account as it was relevant to the accused’s defence (at para 63).


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The rule in Lee Kwan Kong can also apply if the accused intended to rely on themixed statement of the co-accused. In HKSAR v Ho Kin Hang [2005] HKEC 1553, CA,it was held that if the exculpatory part of a co-accused’s mixed statement could berelevant to the accused’s defence, then the accused could rely on it notwithstanding itwas hearsay (at paras 30–32).

See also above at §11–13. 15–115BAn antecedent statement is an uncautioned statement taken from an accused by the

police in order to enable them to inform the court of his antecedents for the purpose ofsentence in the event of a guilty plea or a guilty verdict. While it is impermissible for theprosecution to cross-examine on it, the co-defendant is not precluded to do so. “Pre-cluding such cross-examination is inconsistent with the principle on which the PrivyCouncil acted in Lui Mei Lin v The Queen [1989] 1 AC 288 where their Lordships heldthat counsel for a co-accused is entitled to cross-examine an accused on his otherwiseinadmissible out-of-court statement provided that it is relevant. The otherwise inadmiss-ible out-of-court statement in Lui Mei Lin’s case happened to be a confession statementexcluded for involuntariness. But the principle applies equally to antecedent state-ments”: Law Chung Ki & Another v HKSAR (2005) 8 HKCFAR 701.

(9) Functions of the judge and jury

15–116Where there is a jury, it is the trial judge’s duty to rule on the admissibility of aconfession statement, if its voluntariness is put in issue. He will conduct a trial of thespecial issue, either by way of a voir dire, or in a “trial within a trial”. In this jurisdictionit is more usual for a voir dire to be conducted before any evidence on the general issueis heard. At the request of the defendant the issue of voluntariness may be heard beforethe jury. If the confession is admitted into evidence it is the function of the jury toconsider if it is true before they can act on it: R v Ovenall [1969] 1 QB 17. The circum-stances of how the confession came to be made can be considered by the jury as one ofthe factors in deciding whether or not the confession is true: R v Tam Wing Kwai [1976]HKLR 401. The jury must be satisfied so that they are sure that the confession is true.They may reject some parts of a statement as being not worthy of belief, yet still besatisfied that the admission to culpability is true. In this exercise, the jury must also takeaccount of the defendant’s testimony, should he give evidence. The duties of the juryare spelt out in s 59 of the Criminal Procedure Ordinance (Cap 221), which reads:

“59.—If on a trial by a jury of a person accused of an offence, a statement alleged to havebeen made by such accused is admitted in evidence, all evidence relating to the circum-stances in which the alleged statement was made shall be admissible for the purpose ofenabling the jury to decide upon the weight (if any) to be given to the statement; and if anysuch evidence has been taken in the absence of the jury before the admission of the state-ment, the HKSAR and such accused person shall have the right to have such evidencere-taken in the presence of the jury.”

The views of the trial judge as to the veracity of the witnesses, called in the voir dire oris his finding (which should not revealed to the jury), that the statement was voluntaryare irrelevant to the jury’s consideration of what weight they should give to the confes-sion: R v Poon Sai Ming (unrep., Crim App 410/1997, [1997] HKEC 217); Mitchell v R[1998] 2 WLR 839; Thompson v R [1998] 2 WLR 927; De Four v The State [1999] 1 WLR1731, PC.

In the summing up, the jury should be instructed to consider all the circumstances inwhich the confession was made in assessing the truth and weight of the confession. It isunnecessary to direct the jury specifically that the prosecution must satisfy them beyondreasonable doubt that the confession is voluntary, otherwise they must disregard it:Chan Wei Keung v The Queen [1967] 2 AC 160, PC. This has been settled common law fordecades. However, the House of Lords by a four to one majority in R v Mushtaq [2005]UKHL 25 fundamentally altered this position and expressly departed from Chan WeiKeung. It was held that s 76(2) of PACE requires that the jury be directed that, if theyconsider that the confession was, or may have been, obtained by oppression or in con-sequence of anything said or done which was likely to render it unreliable, they must


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disregard it (at paras 43, 47 & 59 (per Lord Rodger) and para 75 (per Lord Carswell)).The majority based their decision on the accused’s right against self-incriminationimplicit in Article 6 of the European Convention for the Protection of Human Rightsand Fundamental Freedoms. The existing position was incompatible with this right as itallowed the jury to treat the confession as true even if it was or may have been made as aresult of oppression or other improper circumstances. It awaits to be seen whether theCourt of Final Appeal will revisit the Chan Wei Keung position. Mushtaq has begun toextend its reach around the world in appeals before the Privy Council, see Ken Charles vThe Queen [2007] UKPC 47; R v Wizzard [2007] UKPC 21. In Wizzard, it was said thatChan Wei Keung did not accord with the principle against self-incrimination, a longrecognized principle of the common law, and that the decision was a “false step in thedevelopment of the common law” but that Mushtaq had now “re-established the correctapproach” (§15–37). The Judicial Studies Board’s revised Specimen Directions in Jury Trials(published in July 2009) notes that strictly speaking Chan Wei Keung remains the lawin Hong Kong, but as the decision pre-dated the Hong Kong Bill of Rights, “the safercourse” was to draft a specimen direction in accordance with the position articulated inMushtaq and Wizzard (pp 39.1–39.2).

In HKSAR v Okafor Peter Eric Nwabunwanne [2010] HKEC 435, CA, the trial judgefailed to follow the Judicial Studies Board’s current specimen direction on confessionevidence which provides in part as follows (see Specimen Directions in Jury Trials, p 39.1):

“1) Did the defendant in fact make the admissions? If you are not sure that he did, you mustignore them. If however you are sure he did, then:2) Are you sure that the admissions are true? In addressing that issue (whether the admis-sions/answers were true) decide whether they were, or may have been, made or given as aresult of [oppression] [something said or done which was likely to render them unreliable].If you conclude that the admissions/answers were or may have been obtained by (identifyingthe person or persons in authority) as a result of [oppression] [something said or donewhich was likely to render them unreliable] then you must disregard the admissions/answers.” (para 46)

The Court of Appeal noted that the specimen direction “directs the mind of [the]jury to the two focal issues of their assessment … namely, whether the appellant madethe admissions and, if so, whether they were true” (para 50). The judge’s failure toprovide any direction on the confession evidence was a serious omission that affectedthe safety of the conviction.

The District Court Judge and the Magistrate combine the dual roles of judge andjury. It is the practice in this jurisdiction for the judge or magistrate to decide on thespecial issue when he is hearing all the evidence of the prosecution on the general issue.He may adopt what has become to be known as the “alternative” procedure. He mustdecide before the close of the prosecution’s case (and after the accused has been giventhe opportunity to give evidence on the special issue) whether or not the confession isadmissible. If, usually at the request of the defence, the court holds a voir dire, only theevidence relating to the circumstances of the making of the confession will be given.This procedure may be appropriate where the confession is the only evidence of guiltand all the other facts can be admitted. It is submitted that it is for the Court, not theparties, to decide which procedure to adopt.

(10) Miscellaneous

15–117 The comparing of confession statements made by co-defendants, in order to deter-mine their truth is wrong. This should not be done. The ostensible purpose for such anexercise is to suggest that a comparison of co-defendants’ statement may assist the juryto determine if they are true. In Wong Wai-man & Others v HKSAR [2000] 3 HKLRD 313,Bohkary PJ stated that the comparison exercise was either irrelevant or at least moreprejudicial than probative. He did not believe that this exercise violated the rule againsthearsay. In rare cases the statements made by more than one accused may be used so asto demonstrate to the jury that the accused have cooperated in order to concoct a falsedefence after the commission of the alleged crime: Mawaz Khan v R [1967] 1 AC 545;


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[1966] 3 WLR 1275. In no other sense could the statement of one accused be used asevidence against his co-accused unless he had adopted its contents as true in evidence.A plea of guilty by one accused is not evidence against the other. Nor is the convictionof one accused relevant in any way to the guilt or innocence of another who is allegedto have participated in the same offence: R v Hui Chi-ming [1992] 1 AC 34; [1991]2 HKLR 537. All the jury needs to be told in such circumstances is they must only beconcerned with the accused before them: R v Mahmood & Manzur (1997) 1 Cr App R 414.A jury may draw inferences of fact from a confession made by the accused, but suchinferences will not be evidence against or for another accused in the same trial: R vHulbert (1979) 69 Cr App R 243; Att-Gen v Chik Wai-lun [1987] HKLR 41. Where thedefendant has made a confession under the self-generated hope that he may obtainsome advantage thereby, this will not be relevant to the issue of admissibility: R v Rennie[1982] 1 All ER 385; (1982) 74 Cr App R 207. It might be otherwise if the person inauthority (even if inadvertently) had contributed, in some way, to the belief that advant-age would be gained to the defendant into making a confession or offering incriminatoryinformation: R v Chan Yip-kan [1986] HKC 35; R v Choi Chun-keung [1985] HKLR 75.In R v Houghton & Franciosy (1978) 68 Cr App R 197, the defendant had offered himselfas an informer for the prosecution. His information had been used by the police andthe prosecution had also relied on his evidence in the trial, the Court stated that:

“An informer, who has himself knowingly been involved in the crime about which he istelling the police takes a chance that he may get some reward for what he is doing. TheCrown may decide not to prosecute him and call him as a witness against his former partnersin crime; but he can be prosecuted on the evidence which he has himself provided or on anyother evidence which is available. What the Crown cannot do is to prosecute him on theevidence which he has himself provided if he was induced to provide it by any offer ofadvantage made by a person in authority or by conduct on the part of the police whichcould reasonably have aroused in him an expectation of advantage.”

The fact that a confession, which has been ruled to be inadmissible, is supported byother evidence, which might suggest that it is true, does not make it admissible in evid-ence against the defendant: Lam Chi-ming v R [1991] 2 WLR 1082, PC.

C. Challenging a Confession

(1) Introduction

15–118Two most commonly used methods of determining the admissibility of a confessionstatement are (a) the “voir dire” and (b) the “alternative procedure”. It is necessarytherefore, where the admissibility of a confession is in question, that the trial judgeconducts an inquiry into the “special issue” of admissibility.

(2) The voir dire and trial by jury

15–119A voir dire should normally be conducted in the absence of the jury. The issue isconfined to one of whether or not a confession should be adduced in evidence as partof the prosecution case against the defendant. A voir dire may involve the resolution ofmore than one issue. The defendant can challenge the prosecution to prove that theconfession was a voluntary admission of culpability, or at least incriminatory to a greateror lesser degree, and/or he may also seek to persuade the trial judge to exercise hisresidual discretion, on the ground of ensuring a fair trial. A voir dire may be conductedin the presence of the jury at the specific request of the defendant: Ajodha v The State[1982] AC 204; [1981] 3 WLR 1; R v Wong Yun-fat [1986] HKLR 5. Where this courseis taken by the defendant there can be no objection to the prosecution’s opening tothe jury on the disputed confessional evidence. The defendant will not be able to giveevidence on the special issue during the prosecution’s case, as he could when the “alter-native procedure” is used in the District and Magistrates’ courts. In R v Chiang Chui-shun[1885] 2 HKC 377, Kempster J (as he then was) reaffirmed some basic principles:


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first, once a statement is admitted into evidence it is available for all purposes; sec-ondly, if the trial judge harbours any reasonable doubt as to the voluntariness of thestatement he should direct the jury to disregard it. If the confession was, in effect, essen-tial to proof of guilt, the judge should direct an acquittal and discharge the defendant.In some cases there may not be a voir dire at all, such as where the defendant requiresthe prosecution to adduce all its evidence in support of its case and then submits thatthe judge should not admit the confession statement on the basis that it was not volun-tary. It is not easy to understand the purpose of such a tactic. If no submission is madethe judge is under no obligation to make a ruling: Ajodha v The State, above. For exam-ple, where there is nothing more than allegations of misconduct by the police officersmade through cross-examination there would be no purpose in making a ruling, unless,of course, the police officers were to make damaging admissions in answer to questions(which is unlikely). In fact, a ruling, in the face of the jury, that the confession is admis-sible could well be very prejudicial to the defendant: R v Lee Wai [1962] HKLR 351.

Clearly, the better course is to hold the voir dire in the absence of the jury. Theevidence relating to the admissibility of the confession can be heard free from therestraints, which might otherwise apply should the jury be present. In Hong Kong a voirdire can be conducted (1) before the jury is empanelled: section 41(3) of the CriminalProcedure Ordinance (Cap 221) permits the court to hear and determine a preliminaryissue prior to the selection of the jury. A ruling is then made and the trial of the generalissue can commence. The advantages of this procedure are obvious. (2) The secondmethod is to hold the voir dire immediately after the jury has been empanelled. Thisprocedure may be appropriate where the confession is the major if not the only pieceof evidence implicating the defendant in the offence. In such a case, the prosecutioncould not open its case before a ruling has been made on the special issue. (3) Thirdly,the judge could conduct a “trial within a trial”; that is, during the course of the trial.The jury is sent away, and the voir dire is then heard by the judge. This method is rarelyused today. At the conclusion of the proceedings, and having considered all the evid-ence, which would include the testimony of the defendant (should he give evidence)the trial judge must make a ruling. The issue of voluntariness is one of fact: R v ChoiChun-keung [1985] HKLR 75. There is no need in most cases for the judge to give adetailed ruling: R v Leung Lai-por [1978] HKLR 202; R v Lam Yip-ying [1984] HKLR 419.In the majority of cases the less said the better. Where the trial is heard before a judgeor magistrate, sitting alone, there is more need to be cautious, since it is he who willhave to decide the general issue, which will involve his evaluating the evidence adducedby prosecution witnesses and the defence. Though it was, at one time, suggested that adefendant could not give evidence on the special issue, it is now clear that the defend-ant may do so and also call evidence on his behalf: section 54(1) of the Criminal Pro-cedure Ordinance (Cap 221). The defendant, instead of calling evidence may make asubmission of no case to answer on the issue of admissibility. Both the prosecution andthe defendant have the right to make submissions on the conclusion of the voir direproceedings. The defendant having the last word: R v Tsui Sheung [1968] HKLR 164.

15–120 In R v Booth (1982) 74 Cr App R 123, the Court of Appeal held that the trial judge isnot obliged to give reasons; he need only deliver a bare ruling. The same rule of prac-tice would apply where the trial judge or magistrate has been asked to exercise hisresidual discretion to exclude a confession: R v Ngo Ngan-ting [1976] HKLR 143. Shouldthe trial hold that the confession is admissible, it will be for the prosecution to adduce itinto evidence. When all the evidence in the trial is called in and the trial judge hassummed up the evidence the jury must then decide if they can give sufficient weight tothe confession, having regard to all the evidence, including any evidence adduced bythe defence. During the course of a voir dire, as in the alternative procedure, the defend-ant can give evidence if he wishes. His evidence is confined to the special issue. In somecases the defence may ask the judge to rule that there is no case to answer, before itdecides to call evidence for the defendant.

It is for the prosecution to decide what witnesses it intends to call in support of itscase in the voir dire. Having been provided with the particulars of the defendant’s objec-tions to the admissibility of the confession, the prosecutor should be careful to call those


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witnesses who can refute the allegations of impropriety. The prosecution is not obligedto adduce evidence of matters which fall outside the ambit of the particulars of objections:R v Ng Tat-shing [1977–1979] HKC 71. By the same token the defence must be carefulnot leave anything out. Failure to incorporate all the allegations of impropriety may wellprejudice the defendant not only in the voir dire, but also in any subsequent appealagainst conviction: R v Wu Hung-moon [1984] HKLR 354. Should the prosecution fail tocall a witness, against whom a specific allegation has been made, and who can be identified,this omission may well have a deleterious effect on the prosecution’s case: R v Ng Tat-shing, above; R v Choi Kam-shing (unrep., Crim App No 362 of 1978). On the otherhand, it is not necessary for the prosecution to call every single police officer who hadhad anything to with the defendant: R v Leung Wing-ning [1981] HKLR 96; R v Lo Wing-cheong [1979] HKLR 550. Nor is it necessary for the prosecution to call all the samewitnesses before the jury (some of whom may not be on the “back of the indictment”)which it had in the voir dire: R v Chan Chi-fai & Another [1994] HKLY 360.

(3) The alternative procedure

15–121This procedure can only be used where the trial is heard before a judge or magistratesitting alone. This procedure was approved by the Court of Appeal in R v Ho Yiu-fai[1970] HKLR 415, and confirmed in R v Lam Yin-yung [1992] 2 HKCLR 53. As in a voirdire the defendant must first provide particulars of his objections to the admissibility ofthe confession. In the alternative procedure the prosecution will proceed to call all theevidence on both the special and general issues. The defendant has the opportunity tocross-examine the prosecution witnesses in respect of both issues. Before the prosecu-tion closes its case, the defendant must be given the opportunity to give evidence andcall witnesses on the special issue, should he wish to do so. The trial judge or magistrateis required to give his ruling on the admissibility of the confession before the prosecu-tion closes its case: R v Kwan Wai-hung [1973–1975] 1 HKC 449. Should the court findthat the confession is admissible the trial will proceed into the case for the defence. Itshould be noted, however, that the evidence of the defendant on the special issue is notadmissible on the general issue: HKSAR v Tse Fei Tsz [2002] HKEC 1397, CA; HKSAR vMa Yee-keung [2000] HKEC 1136; R v Lam Ka-fai [1995] 1 HKCLR 155. It follows thatsuch evidence cannot be adopted by the defendant as part of his case on the generalissue, unless he gives evidence. Only the evidence which the defendant produces duringthe case for the defence on the general issue can be considered by the tribunal. Thougha defendant may call witnesses, who had testified on the special issue, they will not bepermitted to repeat their evidence. Such evidence as they can give must be confined tothe general issue. On the other hand the evidence of the prosecution witnesses, on boththe special and general issues in the trial need only be given once. It should be remem-bered that the alternative procedure is not the same as a voir dire: R v Lam Yin-yung,above. Subject to the approval of the tribunal there is no reason why a voir dire cannotbe conducted in the District Court or the Magistrate’s Court. This procedure might beappropriate where the only evidence against the defendant is his confession. It was heldin HKSAR v Sze Sun-man [1998] HKLRD (Yrbk) 401 that where the defendant callswitnesses in a voir dire (or in the alternative procedure), the testimony of those witnessesis not available either for or against the accused on the general issue; see also R v LaiChi-sing [1987] HKLR 422.

After both sides have been heard on the issue of admissibility the judge or magistratemust make a ruling. It is wrong to leave the ruling to the end of the case: R v Yeung-cheung [1959] HKLR 338; R v Kwan Wai-hung [1973–1975] HKC 449. There is norequirement for the court to give reasons for its ruling: R v Lam Yip-ying [1984] HKLR419. Though there is authority which suggests that the judge is under no obligationeven to give his reasons for admitting the confession into evidence in his Reasons forVerdict. The better view, it is suggested, is for the trial judge or magistrate, when hecomes to sum-up the case indicate the issues which he had decided and his grounds forrejecting the defence evidence on the special issue: R v Nguyen Van Truong & Vu DucHoa [1991] HKLY 236.


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D. Rules and Directions

(1) Introduction

15–122 On the 2 October 1992, the Judges’ Rules of 1912 were replaced by the “Rules andDirections for The Questioning of Suspects and the Taking of Statements” (“Rules andDirections”). The Secretary for Security directed that the Rules and Directions shouldhave effect from 1 October 1992 and should apply to all law enforcement agencies. Thisis in spite of the fact that the Rules and Directions only specifically mention policeofficers: however see Rule VII of the Rules and Directions. It appears that the 1912Rules did apply to Hong Kong: R v Li Wai-leung [1969] HKLR 642. In the same appealHogan CJ, who delivered the majority judgment, was of the opinion that the Judges’Rules of 1964 also applied to Hong Kong “in spirit”. It has never been clear to practi-tioners or judges what this phrase meant. In the same appeal the Court held that theJudges’ Rules were not rules of practice and procedure. In R v Leung Lai-por [1978]HKLR 202, it was pointed out by the Court of Appeal that the Rules of 1912 had neverbeen formally adopted in Hong Kong. Moreover, Huggins J, in the same appeal notedthat there could be no doubt that The Judges’ Rules of 1964 had no effect in HongKong. In R v Leung Cheuk-fan [1984] HKC 374, McMullin VP, at 391D–E, stated that:

“We do not need to review the many cases decided in Hong Kong in which some question,touching upon breaches of the “Judges’ Rules” has been canvassed on appeal and it notnecessary to rehearse yet once again the many comments which have fallen from the Benchin that regard. Suffice it to say that the rules, propounded in 1912 for the guidance of thepolice, continue to be relevant in this territory in the sense that the code of conduct whichthey recommend continues to be regarded in these courts as generally appropriate to theconduct of investigations in this territory.”

In an earlier part of his judgment (at 390D–E), McMullin VP gave his opinion ofwhat was the real issue in a voir dire:

“With the advent of the Judges’ Rules in their original form in 1912, we embark upon thelong and sometimes tortuous journey in the course of which the courts have sought in indi-vidual cases to determine whether, by the standard of conduct embodied in those rules, thebehaviour of the investigative authorities has been such as to call the voluntary character ofan individual statement into question.

In this area of the law one thing is certain: the primary concern of the judge in consider-ing the matter must always be whether the statement is voluntary in the sense that it is notthe fruit either of inducement or threat held out by some person in authority and furtherthat it is not the fruit of conduct so oppressive that there is a danger that it resulted from thewill of the person being interrogated having been overborne.”

15–123 In this appeal it was argued that the questioning of a person in custody was contraryto the Rules. This argument was rejected without calling upon the Crown to answer.This issue was once the subject of much debate. Today, there can be no doubt that thequestioning of a suspect under arrest is commonplace and is the usual method ofobtaining information from him. Later in his judgment McMullin VP suggested that the1964 Judges’ Rules did not apply in Hong Kong.

(2) Origin of the Judges’ Rules

15–124 In October 1906 Lord Alverstone CJ received a letter from the Chief Constable ofBirmingham, requesting his advice in the light of the fact that a judge on the MidlandCircuit had censured a member of his force for having administered a caution, whereasanother judge had criticised a constable for not having cautioned the suspect before hequestioned. During the next few years in the wake of conflicting decisions and dictathe Chief Justice consulted with other judges of the King’s Bench, which resulted in aset of four rules being formulated. In 1918 a further five rules were added, thus makingnine in all. The Judges’ Rules, as they came to be known, provided practical guidancefor police officers questioning suspects and taking statements from them. In R v Voisin(1918) 13 Cr App R 89, at p 96, Lawrence J stressed the need for the relevant authorities


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to enforce the observance of the Rules because statements obtained from suspectscontrary to the terms of the Rules might be rejected as evidence. During the next50 years further additions and amendments were made to the Rules, culminating in theJudges’ Rules of 1964.

(3) Code C

15–125Code C of The Police and Criminal Evidence Act 1984, in replacing the Judges’Rules, established an almost encyclopaedic corpus of rules for the arrest, detention,questioning and treatment of suspects. The object of Code C was to strike a balancebetween, on the one hand, the need to effectively investigate and prosecute crime andon the other hand, the need to protect the rights of the citizen from unwarrantedinterference with his liberty. Police officers are liable to disciplinary proceedings forfailure to comply with any provision of the Code.

(4) The Rules and Directions of 1992

15–126The Judges’ Rules may still have some relevance in interpreting the Rules and Direc-tions. However, there is no suggestion in the Rules and Directions or elsewhere thatJudges’ Rules have been revoked. In principle the courts will apply the Rules andDirections in the same spirit as they did the Judges’ Rules. A breach of the Rules andDirections does not, of itself, render a confession inadmissible. It is, of course, a factorto which the court must have regard. If there were substantial and significant breachesthen the tribunal may exclude the confession in the exercise of its inherent discretion.In some rare cases, the breaches of the Rules and Directions may be so reprehensibleand deliberate that the court may well have no choice other than to exclude the confes-sion on the ground that the prosecution cannot discharge its burden of proving that itwas voluntary. The object of the Rules and Directions is to ensure fairness to the suspector arrested person, and also to assist the police to carry out their investigations in a fairand proper manner. If a police officer follows the Rules he will be more able to rebutany complaints about his conduct. Another purpose is so reassure the public and thecourts that the rights of a person in the custody of the police are respected. The PrivyCouncil in Peart v The Queen [2006] 1 WLR 970, §15–24 stated three helpful proposi-tions on the legal significance of the Judges’ Rules:

“(i) The Judges’ Rules are administrative directions, not rules of law, but possess consider-able importance as embodying the standard of fairness which ought to be observed.

(ii) The judicial power is not limited or circumscribed by the Judges’ Rules. A court mayallow a prisoner’s statement to be admitted notwithstanding a breach of the Judges’Rules; conversely, the court may refuse to admit it even if the terms of the Judges’ Ruleshave been followed.

(iii) … (iv) The criterion for admission of a statement is fairness. The voluntary nature of the

statement is the major factor in determining fairness. If it is not voluntary, it will not beadmitted. If it is voluntary, that constitutes a strong reason in favour of admitting it,notwithstanding a breach of the Judges’ Rules; but the court may rule that it would beunfair to do so even if the statement was voluntary.”

Peart was applied in Williams v The Queen [2006] UKPC 21, PC where the “sovereignrequirement of fairness” (§15–26) was again emphasised.

(5) The preamble to the Rules and Directions

15–127Note:These Rules do not affect the principles: (a) That citizens have a duty to help a police officer to discover and apprehend

offenders; (b) That police officers, otherwise than by arrest, cannot compel any person against

his will to come to or remain in any police station;


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(c) That every person ay any stage of an investigation should be able to communic-ate and to consult with a solicitor or barrister. This is so even if he is in custody,provided that in such a case no unreasonable delay or hindrance is caused to theprocesses of investigation or the administration of justice by his doing so;

(d) That when a police officer who is making enquiries of any person about an incid-ent has enough evidence to prefer a charge against that person for the offence,he should without delay cause that person to be charged or informed that hemay be prosecuted for the offence; and

(e) That it is a fundamental condition of the admissibility of evidence against anyperson, equally of any oral answer given by that person to a question put by apolice officer and of any statement made by that person, that it shall have beenvoluntary, in the sense that it has not been obtained from him by fear of preju-dice or hope of advantage, exercised or held out by a person in authority, or byoppression.

That principle set out in paragraph (e) above is overriding and applicable in all cases.Within that principle the following Rules and Directions are put forward as a guideto all police officers conducting investigations. Non-conformity with these Rules andDirections may render answers and statements liable to be excluded from evidence insubsequent criminal proceedings.

These clauses of the preamble state common law principles and as such are distinctand separate from the Rules and Directions which follow. It is clear that the principalconcern is that the confession statement should be deemed to be “voluntary” before itcan be admitted into evidence. This principle is described as “overriding and applicablein all cases”. The preamble to the Rules and Directions is framed in very much the sameterms as the 1964 Judges’ Rules. Note (c) declares that a suspect has the right to consultprivately with a lawyer, this item is also to be found in item (c) of the 1964 Judges’ Rules.A breach would entitle a court to exclude a statement made by the accused: R v Lemsat-eff [1977] 1 WLR 812; R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277.Access to a lawyer was described as a common law right in R v Chief Constable of theRoyal Ulster Constabulary, Ex p Begley, R v Mc Williams [1977] 1 WLR 1475, HL. At the sametime, Lord Browne-Wilkinson in his speech rejected the argument that this commonlaw right extended to a solicitor being present and advising his client in the interviewroom. It is to be noted that both Mr Begley and Mr Williams had been arrested undersection 14(1) of the Prevention of Terrorism Act (Temporary Provisions) Act 1989,which specifically states that a person arrested pursuant to provisions of this Act had nolegal right to have a solicitor present during an interview. The appeal would have failedon this ground alone. During argument in the appeal reference was made to Murray vUnited Kingdom (unrep., 8 February 1996, 41/1994/488/570). However, in Murray, theEuropean Court had declined to make a ruling on whether or not a refusal to allow asolicitor to be present violated Article 6 of the European Convention of Human Rights.The House of Lords held that there is no positive law to support the proposition thatthe common law recognised a right in a suspect to have his solicitor when he is inter-viewed by a police officer. Lord Brown-Wilkinson, (at 1480F) stated that: “I am quitesatisfied that such a common law principle has not been established to date”.

15–128 Article 6 corresponds to Article 10 and Article 11(1) and (2) of the Hong Kong Billof Rights; see also Article 35 of the Basic Law. In R v Walsh (1990) 91 Cr App R 161, itwas held that there had been a breach of section 58 of the Police and Criminal evidenceAct 1984, which permits an arrested person to have access to a lawyer. In Walsh such arequest was refused by the investigating police officers. It should be noted that, in thiscase, there were breaches of Code C. The Court of Appeal held that breaches of thestatutory provision and Code C by the police officers were not cured because they hadacted in good faith (at p 163). However, where the breaches are substantial and signific-ant the court would be justified in excluding the confession. Moreover, if there werebad faith, this circumstance would only serve to aggravate the breach. The Court ofAppeal went on to make this statement of principle (at 163):

“To our minds it follows that if there are significant and substantial breaches of section 58or the provisions of the Code, then prima facie at least the standards of fairness set by


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Parliament have not been met. So far as a defendant is concerned, it seems to us also tofollow that to admit evidence against him which has been obtained in circumstances wherethese standards have not been met, cannot but have an adverse effect on the fairness of theproceedings. This does not mean, of course, that in every case of a significant and substantialbreach of section 58 or the Code of Practice the evidence concerned will automatically beexcluded. Section 78 does not so provide. The task of the court is not merely to considerwhether there would be an adverse effect on the fairness of the proceedings, but suchadverse effect that justice requires the evidence to be excluded.”

As the Court noted the fact there was other evidence should not be a considerationin the exercise of the judge’s discretion.

It is submitted that the denial of access to a lawyer may have an impact on the admiss-ibility of a confession, as it could be argued that such denial offended against the rightto a fair trial: Article 87 (right to a fair trial) and Article 35 (right to legal advice for thetimely protection of the arrested person’s rights) of the Basic Law. In Mohammed v TheState [1999] 2 WLR 552, the Privy Council was of the Opinion that the contravention ofa “constitutional” right was a cogent factor in favour of the exclusion of a voluntaryconfession. Yet at 561–563 Lord Steyn said that a voluntary confession was not automatic-ally inadmissible because there had been a breach of a constitutional provision, such assection 5(2) of the Constitution of Trinidad and Tobago (1976), which stipulated thatan arrested person should have the right to retain and instruct a legal advisor of his ownchoice “without delay” or to “hold communication with him”. Mohammed was applied inSimmons & Greene v The Queen [2006] UKPC 19, where the Board appeared to show lesstolerance for the breach of the constitutional right to retain and instruct counsel.

In R v Goodwin [1993] 2 NZLR 153, a five judge Court of Appeal considered theeffect of section 23(1)(b) of the New Zealand Bill of Rights 1990, which provides to theeffect that an arrested person: “Shall have the right to consult and instruct a lawyerwithout delay and to be informed of that right.” The Court of Appeal with varyingdegrees of emphasis held the opinion that once it had been established that there hadbeen a breach of section 23(1)(b), there should be exclusion of the record of interviewunless good reason is shown to the contrary. On the other hand good faith could rarelybe relevant and the consequences of exclusion should not be relevant in any event.

15–129Lamer J, speaking for the majority of the Supreme Court of Canada in Collins v TheQueen [1997] 233 CCC (3d) 1, considered the impact of the Canadian Charter of Rightson the denial of the right to an arrested person of the services of a lawyer. He madethe distinction (at 19–20) between “real evidence”, which existed independently ofthe breach and evidence which is generated subsequent to the breach: such as a self-incriminatory statement. As Lamer J pointed out such evidence often arises when thesuspect’s requests for the services of a lawyer have been refused, ignored or turnedaside. The Court concluded that the use of a self-incriminatory statement, followingupon a denial of the suspect’s right to counsel will go, generally, to the fairness of thetrial and should generally be excluded. In the judgment, reference was made to manyauthorities of the courts of Canada which support this proposition. The question whichthe courts may have to consider is whether or a suspect does have a constitutional right,as well as a common law right to have the services of a lawyer as soon as practicable afterhis arrest. The relevant part of Article 35 of the Basic Law reads as follows:

“Hong Kong residents shall have the right to confidential legal advice, access to the courts,choice of lawyers for timely protection of their lawful rights and interests of for representa-tion in the courts, and to judicial remedies.”

Reference is also made to Direction 8(a) of the Directions, (as set out below in§15–143). It is submitted that Article 35 extends the protection of the law back to themoment of arrest and detention.

Principle (d) of the preamble has the purpose of preventing “the continued holdingand questioning of a suspect concerning an offence when there is clearly sufficientevidence to warrant him being charged with that offence. The principle is designed toprotect a suspect from indefinite and unnecessary questioning and to enforce a proced-ure (in conjunction with other provisions in our law such as section 52(1) of the Police


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Force Ordinance, Cap. 232) ensuring that he will be brought before a court within areasonable time”: HKSAR v Tang Siu Chuen [2008] HKEC 461 at para 35, CA. The prin-ciple was considered in R v Lai Kin-ming [1984] HKC 1. In that appeal the Court heldthat this principle was not intended to bring a halt to the investigatory process but toinhibit the “manufacture as distinct from the uncovering of evidence”. With respect it isnot easy to understand how far this principle can be taken. It may be very difficult todistinguish between what is “manufactured” and what is “uncovered”: note the observa-tions of Keith J at 129 of R v Chuen Wui-shing [1993] 2 HKCLR 125. According toHKSAR v Yip Siu Tak [2002] HKEC 475, para 13, CFI, there is “no hard and fast rule” asto what constitutes “enough evidence” for the purposes of Principle (d). In this case,while it was “possible” to charge the defendant after obtaining his initial non-verbatimoral admission, PW1 was entitled to hold a “formal interview to confirm the contents ofthe notebook entry and to obtain corroborating evidence from independent sources insupport of the admission” (at para 13). The Court of Appeal in HKSAR v Tang Siu Chuenconfirmed that principle (d) does not require investigators to cease questioning and tobring charges immediately upon the making of an oral admission by the suspect:

“the principle is not intended to be applied unrealistically so as to prevent proper inquiriesbeing made of a suspect. It may be for example that at quite an early stage in an interviewwith police a suspect admits an offence. That does not mean that the interview cannot pro-ceed. In our view the interviewing officer is entitled to make further inquiries of the suspectduring that interview so as to place that admission in a fair and proper context” (at para 36).

The principle does not prevent the police from putting questions to a suspect caughtred handed with drugs in his possession: HKSAR v Chan Wai Keung [2003] 1 HKLRD901, CFI. Deputy Judge McMahon, as he then was, stated that the answer to the ques-tion, whether there was “enough evidence”, varied from case to case and recognisedthat police officers should be accorded a fair degree of latitude in assessing when therewas enough evidence to lay a charge. In HKSAR v Chan Wai Keung [2003] 1 HKLRD901, CFI, the judge provided a useful discussion of the significance and meaning ofPrinciple (d). First, he noted that the principle applied at a point when the police werealready making inquiries of the suspect rather than before such inquiries were made (atpara 9). The principle does not prevent the police from putting questions to a suspectcaught red handed with drugs in his possession, as were the facts in this case. Echoingthe approach in Yip Siu Tak, above, Deputy Judge McMahon found that the answer tothe question, whether there was “enough evidence”, varied from case to case. Impor-tantly, it was recognised that police officers should be accorded a fair degree of latitudein assessing when there was enough evidence to lay a charge.

The judge found that the purpose of principle (d), when taken together with RuleIII(b), was to prevent the police from “subjecting a suspect to enquiries not for anyproper investigatory purpose but so as to have him or allow him to simply furtherincriminate himself ” (at para 17).

(6) The Rules

15–130 There are seven Rules. They are set out as follows:

RULES

15–131 I. When a police officer is trying to discover whether, or by whom, an offence has beencommitted he is entitled to question any person, whether suspected or not, (from) whom hethinks that useful information may be obtained. This is so whether or not the person in questionhas been taken into custody so long as he has not been charged with the offence or informedthat he may be prosecuted for it.

II. As soon as a police officer has evidence which would afford reasonable grounds forsuspecting that a person has committed an offence, he shall caution that person or cause him tobe cautioned before putting to him any questions or further questions, relating to that offence.

The caution shall be in the following terms: “You are not obliged to say anything unless you wish to do but what you say may be putinto writing and given in evidence.”


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When after being cautioned a person is questioned, or elects to make a statement, a contem-poraneous record shall be kept, so far as is practicable, of the time and place at which any suchquestioning or statement began and ended and of the person present.

Note: There can be no doubt that a police officer has the right, and even duty, toquestion persons whom he believes may assist him in the investigation of a crime: R vLeung Chor [1963] HKLR 825; R v Li Wai-ming [1965] HKLR 631. This does not allowthe police officer to arrest a person solely in order to ask him questions. Should theperson, in answer to a question, make an incriminatory statement the police officer willhave to consider if he should immediately administer a caution before asking anyfurther questions. The purpose of the caution is to remind the suspect of his right tosilence: Hall v R [1971] 1 WLR 298, at p 301G; Secretary for Justice v Lam Tat-ming &Another [2000] 2 HKLRD 431 at 440. The threshold is “reasonable grounds”. Most of theauthorities on this subject favour the proposition that reasonable grounds should bebased on evidence which would be admissible in a court of law: R v Osbourne & Virtue[1973] 1 QB 678, followed in HKSAR v Fung Wing-ching [1998] 2 HKLRD 736. In Beese vGovernor of Ashford Remand Centre [1973] 3 All ER 689 at 693, it was held by the House ofLords that the Judges’ Rules did not apply to questioning by foreign detectives. Byextension, it can be argued that a similar ruling would be made in respect of the Rulesand Directions: they would be deemed only to have a domestic application.

III. (a) Where a person is charged with or informed that he may be prosecuted for an offencehe shall be cautioned in the following terms:

“Do you wish to say anything? You are not obliged to say anything unless you to do so butwhatever you say will be taken down in writing and may be given in evidence.”

(b) It is only in exceptional cases that questions relating to the offence should be put to theaccused person after he has been charged or informed that he may be prosecuted. Suchquestions may be put where they are necessary for the purpose of preventing or minimisingharm or loss to some other person or to the public or for clearing up an ambiguity in a previousanswer or statement.

Before any such questions are put the accused should be cautioned in these terms: “I wish to put some questions to you about the offence with which you have been charged(or about the offence for which you may be prosecuted). You are not obliged to answerany of these questions, but if you do the questions and answers will be taken down inwriting and may be given in evidence.”

15–132Any questions put and answers given relating to the offence must be contemporaneouslyrecorded in full and the record signed by that person or if he refuses by the interrogatingofficer.

(c) When such a person is being questioned, or elects to make a statement, a contem-poraneous record shall be kept, so far as is practicable, of the time and place at which anyquestioning or statement began and ended and of the persons present.

Note: It has been held that there is nothing unfair for a police officer to question asuspect for an offence, other than the one for which he has been arrested, without firstadministering a further caution. It is not necessary for a suspect to be reminded again ofhis constitutional rights: R v Wong Choi-foon (unrep., Mag App 918/1992). On the otherhand the Court of Appeal had held in R v Yeung Kin-chung & Wong Shan (unrep., CrApp 434/1990) that the suspect should be further cautioned in such circumstances.The suspect must be made aware of the true nature of the investigation. In R v Kirk[2000] 1 WLR 567 the Court of Appeal stated that the police must, at the very least,inform the suspect of the nature of the investigation. The Court of Appeal had in mindArticle 5(2) of the European Convention of Human Rights, which reads:

“Everyone who is arrested shall be informed promptly, in a language which he understands,of the reasons for his arrest and of any charge against him.”

This Article is echoed in this jurisdiction by Article 5(2) of the Hong Kong Bill ofRights (Cap 383), and Article 39 of the Basic Law. Kirk was followed in HKSAR v PangHo Yin [2010] 3 HKLRD 515, CA, a case where the defendant was arrested for posses-sion of a dangerous drug and possession of a firearm and properly cautioned for these


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offences before police questioning. However, the defendant was not re-cautioned whenhaving made reference to his own involvement in drug trafficking activities, the policeproceeded to ask him extensive questions about the trafficking. The Court of Appealquashed the trafficking conviction on the grounds that the confession was unfairlyobtained—

“The right to choose whether to speak or to remain silent is denuded of its force if the choiceis based on a material misapprehension, created by the circumstances of his questioning, asto the nature of the peril in which, by such answers as he might advance, he may placehimself” (para 32). The question was not whether the defendant was aware of his right tosilence, but “whether the choice as exercised remained an informed choice once the focusof the investigation had changed” (para 37).

In Christie v Leachinsky [1947] AC 573, HL, Viscount Simon laid out five propositions(which have now been incorporated into s 28 of the Police and Criminal Evidence Act1984), they can be found at pp 587 and 588 of the report. Having stated his proposi-tions, Lord Simon went on to say:

“There may well be other exceptions to the general rule in addition to those I have indicatedand the above propositions are not intended to constitute a formal or complete code, but toindicate the general principles of our law on a very important matter. These principlesequally apply to a private person who arrests on suspicion.”

See also R v Chalkley and Jeffries [1998] 2 Cr App R 79 where reference is made toLord Simon’s speech.

In HKSAR v Yip Siu Tak [2002] HKEC 475, CFI, the police officer breached RulesIII(c) and IV(d) and (e) by failing to keep a contemporaneous record of the defend-ant’s admission. Nevertheless, the court held that the officer’s non-verbatim writtensummary of the defendant’s admission did not have to be excluded under the residualdiscretion. The case was distinguished from HKSAR v Wong Kai (unrep., Mag App 553/1997), in which the only evidence against the defendant was his non-verbatim recordof an admission, and the court was concerned that the officer “felt it was within hisprovince to rewrite the words of a suspect” (at para 10).

(7) Questions after charge

15–133 Questioning a suspect on matters in respect of which he has been charged should berare and exceptional. In Ng Wai-ming [1980] HKLR 228, Roberts CJ stated that it was apractice “which we deprecate”. It does not always follow that the court will exclude theanswers given by the suspect to such questioning: see R v Tsui Shing-yau [1980] HKLR706; R v Tam Wing Kwai [1976] HKLR 401. However in R v Tsui Shing Yau, Roberts CJrepeated his concern that the practice of questioning suspects after they had beencharged and brought before the magistrate’s court was wholly rare and exceptional and“improper”. The Rules do not prevent the police from questioning a suspect, in suchcircumstances, about other offences: R v Buchan (1964) 48 Cr App R 126.

More recently, the Privy Council summarised the law within the following proposi-tion: “If a prisoner has been charged, the Judges’ Rules require that he should not bequestioned in the absence of exceptional circumstances. The court may neverthelessadmit a statement made in response to such questioning, even if there are no excep-tional circumstances, if it regards it as right to do so, but would need to be satisfied thatit was fair to admit it. The increased vulnerability of the prisoner’s position after beingcharged and the pressure to speak, with the risk of self-incrimination or causing preju-dice to his case, militate against admitting such a statement”: Peart v The Queen [2006] 1WLR 970, para 24, per Lord Carswell. In Peart, the 18-year-old appellant was chargedwith capital murder and whilst detained in custody he was interviewed by police who ina series of 63 questions elicited statements that were damaging to the appellant’s case attrial. He had not had the services of a lawyer before the interview. The Board was notsatisfied that the appellant’s answers were given voluntarily and even if they were it wastheir Lordships’ opinion they were given in circumstances that made it unfair to admitthe evidence.


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(8) Written statements

15–134IV. All written statements made after caution shall be taken in the following manner: (a) When a person says that he wants to make a statement he shall be told that it is intended

to make a written record of what he says. He shall always be asked whether he wishes to writedown himself what he wants to say: if he says that he cannot write or that he would like someoneto write it for him, a police officer may offer to write the statement for him. If he accepts theoffer of the police officer shall, before starting, ask the person making the statement to sign, ormake his mark to the following:

“I ………….. , wish to make a statement. I want someone to write down what I say. I havebeen told that I need not say anything unless I wish to do so and that whatever I say maybe given in evidence.”

(b) Any person writing his own statement shall be allowed to do so without prompting asdistinct from indicating to him what matters are material.

(c) The person making the statement, if he is going to write it himself, shall be asked to writeout and sign before writing what he wants to say, or before any questioning, the following:

“I make this statement of my own free will. I have been told that I need not say anythingunless I wish to do so and that whatever I say may be given in evidence.”

(d) When the writing of a statement by a police officer is finished the person making it shallbe asked to read it and to make any corrections, alterations, or additions he wishes. When hehas finished reading it he shall be asked to write and sign or make his mark on the followingCertificate at the end of the statement:

“I have read the above statement and I have been told that I can correct, alter or addanything I wish. This statement is true. I have made it of my own free will.”

(e) If the person who has made a statement refuses to read it or to write the above-mentionedCertificate at the end of it or to sign it, the senior police officer present shall record on thestatement itself, and in the presence of the person making it, what has happened. If the personmaking the statement cannot read, or refuses to read it, the officer who has taken it down shallread it over to him and ask him whether he would like to correct, alter or add anything to whathas been recorded and put his signature or make his mark at the end. The officer shall thencertify on the statement itself what he has done.

Note: In HKSAR v Tang Siu Chuen [2008] HKEC 461, CA, it has stated that Rule IV(a)“does not require the suspect himself to write the declaration but simply to sign thatdeclaration, nor is there any requirement … for the officer to ask the suspect whetherhe wishes to write the declaration” (at para 40).

(9) Interview records

15–135V. The questioning of suspects shall be recorded in the following manner: (a) Accurate records must be made of each interview with a person suspected of an offence. (b) If an interview with a suspect takes place in a police station, or other premises providing

reasonable privacy and facilities for such interview, a contemporaneous written record of theinterview must be made. The only exception to this rule will be where equipment is available torecord the interview by mechanical means.

(c) Where a contemporaneous written record of an interview has been made, it must imme-diately after completion be read over to the suspect, and he should be given the opportunity toread it. The suspect should also be given an opportunity to make any corrections alterations oradditions he wishes to the record, and afterwards he should be invited to write and sign thefollowing Certificate at the end of the record:

“I, … have read the above record or interview, consisting of … pages. It is an accuraterecord of questions asked, and answers I provided.”

If the suspect cannot read, or refuses to read the record, or to write and sign the Certificate,the senior officer present shall record within the record of interview, and in the presence of thesuspect, what has happened. Nothing recorded in a record of interview hall be obliterated byeither the interviewing officer or the suspect. The record must accurately reflect to total of whatoccurred during the interview.

VI. If at any time after a person has been charged with, or has been informed that he may beprosecuted for an offence, a police officer wishes to bring to the notice of that person anywritten statement made by, or record of an interview with another person, who in respect of thesame offence has also been charged or informed that he may be prosecuted, he shall hand tothat person a true copy of such written statement or record of interview, but nothing shall be


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said or done to invite any reply or comment. If that person says that he would like to make astatement in reply, or starts to say something, he shall at once be cautioned or further cautionedas prescribed by Rule III(a).

Note: It is now regarded as perfectly proper for a police officer to conduct an inter-view in question and answer form. In R v Tang Koon-wah (unrep., Crim App No 254 of1988), Hunter J considered that “statements” taken in this way were “fairer and morereliable”. The police officer may assist the suspect to write out characters which thelatter is not able to write. Where the suspect writes or speaks his own statement there isnothing wrong in the interviewing officer’s asking him to clarify dates, places andnames. Subject always to the caveat that he must not prompt or suggest what should bewritten. Rule VI permits “cross-serving” of statements or records of interview, whetherwritten, or recorded on audio or video tape. This has become a common feature ofpolice investigations. “Cross-serving” of a statement or record of interview, made by onesuspect upon another suspect, both believed to be concerned in committing the samecrime, is aimed at obtaining a reaction from the suspect. If something is said or done inorder to elicit a reply by the suspect, after he has read or seen the record, it is likely thatthe trial judge will exercise his inherent jurisdiction to exclude the reaction or responsemade by the suspect: R v Tsou Shing-hing [1989] HKLY 161. Cautioning a suspect beforehanding him a co-suspect’s statement or record of interview is not regarded as inviting aresponse from him. For an illustration of conduct that was short of breaching Rule VI,see HKSAR v Cheung Kwok Chung [2004] HKEC 38, CA.

VII. Persons other than police officers with the duty of investigating or charging offendersshall, so far as may be practicable, comply with these Rules.

DIRECTIONS

1. Procedure generally15–136 (a) Police officers’ notebooks should be used for taking statements only when no other

stationer is available. (b) When a person is being questioned or elects to make a statement, a record should be

kept of the times at which, during the questioning or making of a statement, there wereintervals or refreshment was taken. The nature of the refreshment should be noted. In nocircumstances should alcoholic drink be given.

(c) In writing down a statement, the words used should not be translated into “official”vocabulary; this may give a misleading impression of the genuineness of the statement.

(d) Care should be taken to avoid any suggestion that the person’s answers can only be usedagainst him, as this may prevent an innocent person making the statement which might help toclear him of the charge.

2. Record of Interview15–137 Rule II and Rule III (c) demand that a record should be kept of the following matters:

(a) When, after being cautioned in accordance with Rule II, the person is being questionedor elects to make a statement – of the time and place at which any such questioning began andended and of the persons present:

(b) When, after being cautioned on accordance with Rule III (a) or (b), a person is beingquestioned or elects to make a statement – of the time and place at which any questioning orstatement began and ended and of the persons present.

In addition to the records required by these Rules, full records of the following mattersshould additionally be kept:

(i) Of the time or times at which cautions were given, and (ii) Of the time when a charge was made and/or the person who was arrested, and

(iii) Of the matters referred to in paragraph 1(b) above. If two or more police officers are present when the questions are being put or the statement

made, the records made should be countersigned by the other officers present.

3. Interviews in the police station15–138 When a suspect is questioned in a police station or other premises affording reasonable

privacy and facilities for interview, a contemporaneous record must be made of all interviewsconducted there.


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4. Comfort and refreshment15–139Reasonable arrangements should be made for the comfort and refreshment of persons being

questioned. Whenever practicable both the person being questioned or making a statement andthe officers asking the questions or taking the statement should be seated.

5. Questioning of children and young persons15–140So far as practicable, children and young persons under the age of 16 years (whether

suspected of a crime or not) should only interviewed in the presence of a parent or guardian,or, in their absence, some person who is not a police officer and is of the same sex as the child.A child or young person should not be arrested, or even interviewed at school if such action canpossibly be avoided. Where it is found essential to conduct the interview at school, this shouldbe done only with the consent, and in the presence of the head teacher, or his nominee.

Note: The police must make a serious attempt to obtain the attendance of a parentor guardian or adult member of the family before interviewing the young person. InAtt-Gen v Lam Man-wah (No 2) [1992] HKLY 240, the Court of Appeal held that the lackof knowledge of the parent or guardian was wholly irrelevant. Such person is not presentin order to provide legal advice to the suspect, he or she is present in order to reassurethe young person. The adult person who is present need not be in locus parentis of thechild or young person. No distinction is made in the Rules between a “child” and a“young person”. Applying the norms of commonsense, the younger the suspect, themore care the police must take.

6. Statements made in a language other than English15–141In the case of a person making a statement or answering questions in a language other than

English: (a) Whenever possible all interviews should be conducted in the mother tongue of the

suspect unless he chooses, or consents, to use another language in which he obviouslyproficient.

(b) The statement or record of interview should be recorded in the language used by theperson making the statement or answering the questions.

(c) A certified English translation should be made in due course and be proved as an exhibitwith the original statement or record of interview.

(d) The person making the statement or answering the questions should sign the statementor record of interview. Apart from the question of apparent unfairness, to obtain a signature of asuspect to an English translation of what he said in another language can have little or no valueas evidence if he suspect disputes the accuracy of this record of his statement or record ofinterview.

7. Supply to accused persons of written statement of charges15–142(a) The following procedure should be adopted whenever a charge is preferred against a

person arrested without warrant for any offence: The accused person should forthwith be given a written notice containing a copy of the

entry of the charge sheet giving particulars of the offence with which he is charged. So far aspossible the particulars of the charge should be stated in simple language so that the accusedperson may understand it, but they also show clearly the precise offence in law with which he ischarged. Where the offence charged is a statutory one, it should be sufficient for the latterpurpose to quote the section of the statute which created the offence.

The written notice should include some statement on the lines of the caution given orally tothe accused person in accordance with the Rules after a charge has been preferred. The formof notice should begin with the following words:

“You are charged with the offence(s) shown below. You are not obliged to say anythingunless you wish to do so but whatever you say will be taken down in writing and may begiven in evidence.”

(b) Once the accused person has appeared before the court, it is not necessary to serve himwith a written notice of any further charges which may be preferred. If, however, the policedecide, before he has appeared before a court, to modify the charge or to prefer furthercharged, it is desirable that the person concerned should be formally charged with the furtheroffence and given a written copy of the charge as soon as it is possible to do so, having regard tothe particular circumstances of the case. If the accused person has been released on bail, it maynot always be practicable or reasonable to prefer a new charge at once, and in cases where he is


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due to surrender to his bail within forty-eight hours, or other cases of difficulty it will besufficient for him to be formally charged with the further offence and served with a writtennotice of the charge after he has surrendered to his bail and before he appears before the court.

8. Facilities for the defence15–143 (a) Provided that no unreasonable delay or hindrance is reasonably likely to be caused to the

processes of the investigation or the administration of justice: (i) A person in custody, or present with the police and under investigation by them,

should be allowed to speak on the telephone to his friends and consult and commun-icate privately, whether in person or in writing or on the telephone, with a solicitor orbarrister. He shall be provided on request with a current list of solicitors provided bythe Law Society.

Note: some of the larger police stations do carry a list of solicitors, which is providedby the Law Society, who are prepared without fee, to attend upon suspects detained in apolice station. It is the writer’s experience that investigating police officers rarely if everinform the suspect that the lawyer’s services will be provided free of charge.

(ii) A person in custody, or present with the police and under investigation by them,should be allowed to have a solicitor or barrister present to advise him at any interviewbetween that person and a police officer.

(iii) A solicitor or barrister claiming to have been instructed by a third party to act onbehalf of a person in custody, or present with the police and under investigation bythem, should be allowed to communicate privately with that person, unless the personstates, in the presence of only the requesting lawyer and an independent police officernot below the rank of inspector, or a sergeant if an inspector is not available, that hedoes not wish to consult with the lawyer concerned.

(iv) The letters of a person in custody, or present with the police and under investigationby them, should be sent by post or otherwise with the least possible delay.

(v) A person who has made a cautioned statement or answered questions under caution isentitled to a copy of such statement or record of interview and this should be suppliedas soon as possible after each interview. The only exception is where hindrance isreasonably likely to be caused to the administration of justice.

If it is decided to deny a person a copy of his cautioned statement or record of interview,the reasons for this decision must be fully recorded, either within detention records or theinvestigating officer’s notebook. In such circumstances, no further statements should beobtained and no further interviews should be conducted with that person until a copy of thecautioned statement or record of interview has been made available. A refusal must notcontinue beyond the point where the person is formally charged.

To deny a person a copy of his cautioned statement or record of interview is serious matterand such action may be the subject of enquiry at his subsequent trial.

Note: by necessary implication the “record of interview” also applies to a video-taperecording of the interview. It is the practice of the police to provide a copy tape to thesuspect after the interview is concluded.

(b) A police officer may only delay or prevent communication between a solicitor or barristerand a person in custody, or present with the police and under investigation by them, if hehas reasonable grounds for believing that unreasonable delay; or hindrance to the processesof investigation or the administration of justice, is likely to be caused if such communication ispermitted. The fact that a solicitor or barrister might advise that person not to make, orcontinue to make, a statement, or not to answer questions, or not to assist the police in theirenquiries, should not in itself be treated by a police officer as a ground for delaying orpreventing communication between he solicitor of barrister and that person.

(c) A person in custody, or present with the police and under investigation by them, shouldbe supplied on request with writing materials.

(d) A person in custody, or present with the police and under investigation by them, shouldbe informed of his rights and the facilities available to him, and in addition notices describingthem should be displayed at convenient and conspicuous places at police stations.

15–144 Note: It is now the universal practice of the police and other law enforcement agen-cies in Hong Kong to supply an arrested person with what is known as a “Notice to


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Sect. III] Related Matters § 15–145

Persons in Custody/Investigation”. This notice sets out in English and Chinese 10 basicrights of the suspect. In all police stations there are posted, at convenient places, includ-ing interview rooms, notices in the same terms. The investigating officer will usuallyhand a copy of a printed notice to the suspect, he will ask the suspect to read it, and signthe notice if he understands its contents. In many cases the police officer will alsoexplain the notice to the suspect. The police officer will then countersign the notice,marking the date and time when the notice was given to the suspect and when hesigned it. It should be noted that the Rules and Directions apply to both those in cus-tody and those persons “present with the police and under investigation by them”. TheRules and Directions are not exclusively confined to persons who are under arrest. Forexample a person may be cautioned without being arrested.

The fact that officers serve a Notice to Persons in Custody on the defendant indicatesthat they consider notices posted in the police station and interview room insufficientto comply with Direction 8(d): HKSAR v Leung Sai Tong [2002] HKEC 452, para 11, CFI.In Leung Sai Tong, the police were in breach of Direction 8(d) when they suspectedthe defendant’s involvement in the commission of the offence but continued to take astatement from him without having given him the Notice to Persons in Custody.

In HKSAR v Tang Siu Chuen [2008] HKEC 461, CA, the Court noted that compliancewith Direction 8(d) did not require that the Notice be read out to the suspect. But asthe purpose of the direction was to ensure that the arrested person understood hisrights, “it may be that in certain circumstances it is desirable to read the Notice to anarrested person, because for example of his age, infirmity or illiteracy” (para 26).

III. RELATED MATTERS

A. Curial Confessions

(1) Plea of guilty at trial

15–145Where the defendant in open court freely and voluntarily confesses that he is guiltyof the offence of which he is charged, this plea is an admission to each and every ele-ment of the offence. At common law the plea is deemed to be a confession. A plea ofguilty now comes within the definition of “confession” for the purposes of section 82(1)of the Police and Criminal Evidence Act 1984. Where the defendant pleading guilty tothe offence is taken to have admitted the allegations particularised in the Count orCharge, including any averment which may not be necessary to support a conviction butcan amount to a factor of aggravation: R v Riley [1996] 1 QB 309; 18 Cox CC 285. It isnot sufficient for counsel to plead guilty on behalf of his client; the defendant mustanswer for himself: R v Heyes [1951] 1 KB 29; 34 Cr App R 161. The confession of guiltmay be made on arraignment, or on the reading of the charge or at any subsequentstage of the proceedings. The defendant may, with the consent of the court withdraw hisoriginal plea of not guilty and enter a plea of guilty; Holdsworth’s Case (1832) 1 Lew 279.(See also §4–27).

There can be only one plea to a Count or Charge on the indictment. If a defendantpleads not guilty to the Count or Charge but admits guilt to a lesser or alternativeoffence, the prosecution may be prepared to accept the plea. If it does not then the pleais deemed to have been withdrawn and a “nullity”; the defendant is tried on his plea ofnot guilty to the stated Count or Charge: R v Hazeltine [1967] 2 QB 857; (1967) Cr AppR 351; R v McGregor-Read [1999] Crim L R 860, CA; and R v Yeardley [2000] 2 WLR 366;[2000] 2 Cr App R 141. It would appear to be the case, that if the proffered plea isrejected and the defendant is subsequently acquitted of the named offence, his admis-sion cannot found a conviction for the lesser or alternative offence: R v Hazeltine, above,nor can the admission be deemed to be an admission of the facts of the offence;the prosecution must still prove the offence: R v Fung Wai-chung [1989] HKLY 204.However, the admission cannot be said to be a nullity. If the trial proceeds and thedefendant gives evidence he can be cross-examined on his admission should it be incon-sistent with his testimony and relevant to the issues: R v Hazeltine, above. If the defendant


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changes his plea to one of guilty after the jury has been empanelled, he is deemed tohave been placed in the “charge” of the jury. Once the defendant has been placed incharge of the jury the judge must direct the jury to return a verdict of guilty, providedthat he is satisfied that the change of plea is free, voluntary and informed: R v Hancock(1932) 23 Cr App R 16. Failure to take a verdict will render the trial a nullity: R v Heyes,above; R v Ellis ( James), (1973) 57 Cr App R 571, CA.

(2) Admission of the facts

15–146 A defendant may plead guilty to murder: R v Yim Yat-hong [1929] 24 HKLR 8. Thereis only one sentence for the crime of murder. In Practice Direction (Plea of Guilty: Statementof Facts) [1968] 1 WLR 529, the Chief Justice directed that on a plea of guilty to anindictment of murder, in spite of the fact that in law only one sentence can be imposed,the prosecution should state the facts in open court. Otherwise the press and the publicwould be deprived of the right, inherent in our system of law, to know the circumstancesof the crime. With the introduction of legislation which permits independent bodies toreview long sentences, a confession to murder, coupled with some powerful mitigatingfactors, is likely to be considered as relevant to the Long-term Sentences Review Board’srecommendation at some future time. Of course where the circumstances are trulyexceptional, such as the “mercy killing”, a heartfelt confession might well result in theexercise of the Chief Executive’s discretion to order an early release or commute thesentence. See also the provisions of the Long-Term Prison Sentences Review Ordinance(Cap 524), by which the Long-Term Prison Sentences Review Board was established,and section 11 of the Ordinance.

The practice informing the court of the facts of the case, before sentence, is nowuniversal in its application, and applies to all pleas of guilty, irrespective of the gravity ofthe crime. There can be no conviction until sentence has been imposed. In Hong Kongthe prosecution will tender a statement of the facts. Should the defendant accept thesefacts they become agreed evidence which is binding on both parties: section 65C of theCriminal Procedure Ordinance (Cap 221). If there is any material disagreement as to thefacts the judge, in his discretion, may decide to hold a “Newton Hearing”: R v Newton(1982) 4 Cr App R (S) 388; R v Tolera 1 Cr App R (S) 29, at p 31; R v Chung Kam-fai[1993] 1 HKCLR 178, at p 187. The Court will not hold a “Newton Hearing”, where itconsiders that it will make no difference to sentence: R v Kam Chun-pang (unrep., CrimApp No 504 of 1991).

Where the plea is imperfect or equivocal, and the court of trial has wrongly entereda conviction based on such a plea, the Court of Appeal will allow the appeal againstconviction, enter a plea of Not Guilty and order a re-trial: R v Ingleson [1913] 1 KB 512;11 Cr App R 21. If the defendant is unrepresented, care should be taken in order toensure that the defendant understands the charge, especially if on the papers he hasa viable defence: R v Griffiths (1932) 23 Cr App R 153; R v Blandford Justices, Ex p G(an infant) [1967] 1 QB 82, DC.

(3) Equivocal or involuntary pleas of guilty

15–147 Where the defendant pleads guilty to an offence, albeit unhappily and reluctantly,after receiving “strong advice” from his counsel, and the appeal court holds that thedefendant may have lost the power to make a voluntary and deliberate choice, it willfind that the plea was a nullity: R v Pearce [1976] Crim L R 119, CA; R v Hall [1968]2 QB 767. A judge may not accept an equivocal plea or a plea which is involuntary:R v Ingleson (1915) 1 KB 512: R v Turner [1970] 2 QB 321; Foster (Haulage) v Roberts[1978] 2 All ER 751, (1978) 67 Cr App R 305; R v Chan Shun [1991] HKLY 272. Whereit is suggested that the plea of guilty was equivocal, the judge would be likely to considerthe following factors:

(1) In order for a plea of guilty to be deemed to be equivocal the defendant musthave added a qualification, which if true may show that he is not guilty of theoffence.


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(2) After an unequivocal plea has been entered and before sentence is passed, thetrial court can permit the defendant to change his plea to one of not guilty. It isa matter for the court’s discretion: Foster (Haulage) v Roberts, above. For examplehe plea may have been induced by threats, fraud, misrepresentation or unduepressure, (including from the court);

(3) In determining whether to allow a reversal of plea, the court should ask itselfthree questions, (a) was the plea equivocal or unequivocal? (b) During thecourse of the proceedings did anything happen which makes it clear to courtthat it should consider exercising its discretion to permit a change of plea? And(c) by not allowing the change of plea did the trial court exercise its discretionwrongly?

A plea of guilty should not be accepted if it appears that it may have been made underduress: R v Li Bing-quen (unrep., Mag App No 964 of 1985); R v Wong Pak-ki [1987]2 HKC 254. A plea based on a serious misrepresentation to the accused by the prosecu-tor might render a plea of guilty a nullity: R v Li Yeun-chu [1993] HKLY 329; R v Lam Yin[1995] 2 HKCLR 124. The issue can be stated simply: does the confession of guilt reflectthe defendant’s consciousness of guilt? A mere change of mind will not suffice. Theburden of proof to establish that there are grounds to warrant a reversal of the plea ofguilty is upon the defendant: R v Forde [1923] 2 KB 400. These principles also apply tothe case where the defendant has been committed to the High Court or sentence, onhis plea of guilty. Section 81B(3) of the Criminal Procedure Ordinance (Cap 221),empowers the judge of the Court of First Instance to permit the plea to be withdrawn.

(See also §4–26.)

B. Admissions in Previous Proceedings

By the defendant

15–148A confession or admission made by a defendant in previous proceedings can beadmissible in subsequent proceedings, if it is relevant to the issues. There is no distinc-tion, in principle, between such a confession and an extra-judicial confession. An admis-sion against interest, as already stated is an exception to the rule against hearsay. Thiscircumstance is most often to be found on a retrial. The confession can be proved by aproperly authenticated transcript of the previous proceedings or by a witness who heardthe confession being made. Whether such a confession should be admitted in the sub-sequent proceedings will sometimes be governed by the exercise of the trial judge’sinherent discretion, in the interests of ensuring that there is a fair trial. Should thedefendant give evidence in the second or subsequent trials, what he had stated in evid-ence in the previous trial can be put to him on the basis that his present testimony isinconsistent with what he had said in the previous trial.

By a witness

15–149A witness in previous proceedings may have heard or witnessed a confession oradmission being made by the defendant. If he is available then he can be called as awitness in the subsequent trial, provided of course that it is relevant to the issues. Atcommon law, the record of the evidence of a witness, given in a previous trial, (whetherin civil or criminal proceedings), is admissible in subsequent trial proceedings: R v Hall[1973] QB 496; [1973] 1 All ER 1; R v McGregor [1968] 1 QB 371; [1967] 2 All ER 267.The admission of such evidence is subject to the conditions, as laid down in Hall, above.They can be summarised as follows:

(1) the witness must have given his evidence on oath or affirmation in the previousproceedings;

(2) the issues must have been substantially the same between the parties; (3) there must have been full opportunity for cross-examination of the witness; (4) the witness cannot be called in the present proceedings, because he is dead,

suffering under a mental disability (which need not be permanent), seriously ill


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(R v Thompson [1982] QB 647, at p 659), or prevented from testifying by theopposing party.

It would seem to be case that, at common law, mere absence from the jurisdictionof the witness would not qualify under this rule: R v Scaife (1851) 17 QB 238 at 243. InHall, above, the Court of Appeal recognised that there is a discretion to exclude suchevidence, if it were unfair to admit it. Moreover, the Court considered that the lack ofopportunity of the second court to observe the demeanour of the witness might be afactor in the exercise of the discretion. Canadian statutes, which permit the use of suchtestimony in subsequent proceedings have been held to be consistent with the CanadianCharter of Rights and Freedoms: Potvin v R [1989] 1 SCR 525 and, by extension, Article11(2)(e) of the Hong Kong Bill of Rights.

The testimony of the witness in previous proceedings will be proved by producing thetranscript, which may have been taken from an electronic recording or by a shorthandwriter. In the former case, the transcript can be produced by virtue of section 29A of theEvidence Ordinance (Cap 8), or by the shorthand writer asserting that the transcriptionof the shorthand record is accurate and complete. It has been held in the Court of FirstInstance, that the record of testimony in the previous proceedings can be proved byresort to sections 22 of the Evidence Ordinance (Cap 8): HKSAR v Lee Chi-hung [2000]HKLRD (Yrbk) 176. Contrary to the judgment of that case, it is respectfully submittedthat, at common law, the trial judge does retain the residual discretion to exclude oredit such evidence in the interests of justice: Hall, above.

Section 70 of the Evidence Ordinance (Cap 8), in effect, repeats the common lawrule, and subject to the conditions stated therein, permits the depositions of a witnesstaken by a magistrate or other officer, such as a coroner, to be adduced in evidence incriminal proceedings. This procedure is only available to the prosecution.

Evidence on a retrial

15–150 Where the Court of Appeal orders a retrial pursuant to section 83E of the CriminalProcedure Ordinance (Cap 221), section 83F of the Ordinance, provides that para-graph 1 of the Sixth Schedule, shall apply as follows:

1. On a retrial, section 70 of the Evidence Ordinance (admissibility in evidence in criminalproceedings of depositions of person dead, etc) shall not apply to the depositions of any personwho gave evidence at the original trial or to any written statement by such a person tenderedunder section 81A of the Magistrates Ordinance, in any committal proceedings before theoriginal trial; but a transcript of the record of the evidence given by any witness at the originaltrial, may, with the leave of the judge, be read as evidence—

(a) by agreement between the prosecution and the defence; or (b) if the judge is satisfied that the witness is dead or unfit to give evidence or to attend for

that purpose, or that all reasonable efforts to find him or to secure his attendancehave been made without success,

and in either case may be so read without further proof, if verified and in accordance with therules and orders under section 9.

Evidence in coronial proceedings

15–151 It has been held that a statement made by a deponent who has since died, may beread in subsequent proceedings, if it is signed by him and both the coroner and theaccused have had the opportunity to question him: R v Cowle (1907) 71 JP 152. Thisproposition was not accepted by the Court of Appeal in Bird v Keep [1918] 2 KB 692.Also see R v Butcher (1900) 64 JP 808; R v Black (1909) 74 JP 71. In Australia it has beenheld that the trial court does have the discretion to exclude such depositions fromevidence: R v Collins [1986] R 37.

Where during the course of an inquest it becomes apparent to the coroner that thedeath of a person (the subject of the Inquest) may have been the result of a criminal actby a person, whether he appears at the inquest or not, he may adjourn the proceedingsand refer the matter to the Secretary for Justice, to decide if a criminal prosecutionshould be instituted. This provision applies to the suspected offences of murder,


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manslaughter, infanticide and causing death by dangerous driving: section 35 of theCoroners Ordinance (Cap 504). Witnesses who are ordered to attend upon an inquestcan be compelled to give evidence, subject to the proviso that he may refuse to answerquestions which may incriminate him: Rule 11 of the Coroners Rules (Cap 504). It issubmitted that there is a duty upon the Coroner to remind the witness of his right notto answer such questions. Should the witness, having been so warned, choose to make aconfession or incriminating admission, this statement can be admissible in his trial. Theconfession can be proved by producing the certified transcript of the proceedings or bya witness who heard the utterance being made. It is submitted that Rule 11 is manda-tory. Should the witness be asked a question, which is likely to elicit an incriminatoryresponse and the witness is not warned before making his answer, the answer cannot beevidence against the witness, should he be prosecuted for an offence, in respect ofwhich the answer is relevant.

C. Formal Admissions

15–152Any extra-judicial or curial confession can be admitted by agreement in the trial. Thisshould be the preferred approach. The more evidence which can be “agreed” theclearer will be the issues and, it is hoped, the shorter the trial. All admissible facts, whichare capable of being admitted without the necessity of strict proof, can be admitted inaccordance with the procedures provided for in sections 65B and 65C of the CriminalProcedure Ordinance (Cap 221). There is an important difference in the legal effectof these two sections. Facts admitted under section 65C are conclusive of those factsirrespective of the testimonial evidence at trial. However, witness statements admittedunder section 65B are admitted as such, and the facts therein can be weighed like testi-monial evidence. The prosecution’s failure to use the correct section in HKSAR v AuKoon Yip and Others [2004] HKEC 274, CA was ultimately fatal to its case. At common lawthe only admission (apart from admissions made outside court and proved by evidence)is the plea of guilty in the face of the court: R v Bateman (1845) 1 Cox CC 186; R v Riley[1896] 1 QB 309.

Section 65B

15–153(This provision does not apply to committal proceedings) This section lays down four basic requirements for the admission of a witness statement: (1) the statement purports to have been signed made by the person who is named as

the maker; (2) the statement contains a declaration by that person to the effect that it is true to

the best of his knowledge and belief; (3) before the hearing at which the statement is tendered in evidence, a copy of the

statement is served by or on behalf of the party proposing to tender it, on eachof the other parties to the proceedings;

(4) none of the other parties or their solicitors, within 14 days from the service ofthe copy of the statement, serves a notice on the party so proposing, objecting tothe statement being tendered in evidence under this section.

By agreement a statement may be read in the trial without the necessity of havingto serve prior notice. The court may of its own motion or upon the application of anyparty to the proceedings call for the attendance of the witness to give evidence. Thestatement of a witness is subject to the rules of evidence to the same extent as if hehad given evidence from the witness box. His statement, that part which is admissiblein evidence, shall, unless the court directs otherwise, be read out in open court. Thestatement now becomes an exhibit and is evidence of what is stated therein. Whatweight is attached to such evidence is a matter for the jury.

Section 65C

15–154It is now commonplace for much of the evidence proposed to be adduced in a crim-inal trial to be reduced into writing and presented to the court and or jury as “Admitted


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Facts”. Facts so admitted are deemed to be conclusively proved and shall be evidence inany appeal or retrial. It has been held that where there is other evidence which appearsto be inconsistent with the admitted fact, the admitted fact shall prevail: R v Chan Chun-man [1986] HKLY 210. Pursuant to section 65C(4) an admission may be withdrawn onlyby leave of the court. The court will not give leave merely because it has become appar-ent, in retrospect, to the party that his admission may now be inconvenient. In R v LeeShek-ching [1987] HKLR 31, Huggins VP stated that the gravity of the offence chargedshould not be relevant, nor the fact that the prosecution has not been embarrassed bythis change of tack. The learned appeal judge, though agreeing that the discretion ofthe trial judge should remain unfettered, appears to have declined to accept the argu-ment that an application to withdraw an admission was analogous to a withdrawal of aplea of guilty. In an earlier appeal the Court of Appeal considered that it could be arelevant factor: R v Hunt [1974] HKLR 31. Inferences may be drawn from admittedfacts, just as from any other evidence. The party making the admission may supplementit by other evidence. On the other hand, the admitting party cannot adduce evidencewhich is inconsistent with his admission: R v Chan Chun-man [1986] HKLY 210; R v TamWing-Kwong [1988] 2 HKLR 313.

It is important to note that any admitted fact must be one of which oral evidencecould have been given: section 65C(1). If the admissions are agreed prior to the hear-ing, they must be put into writing. Though, strictly speaking, an admission made duringa trial can be made orally, it is customary for such admissions to be reduced into writing.“Admitted Facts” should be signed either by the party himself or his legal representative,in the case of a corporation, by a director or authorised manager, secretary or clerk. Aschedule of admitted facts may be made in either official language. It is must also beapproved by the party’s legal representative, (if he is represented), either before orduring the hearing. There is authority to the effect that an unrepresented defendantmay make admissions under this provision: R v Lee Man-woo [1974] HKLR 331.

In criminal proceedings only the prosecutor and the defendant are entitled to makeadmissions under this section.


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