confession statements and their admissibility in criminal proceedings

191 Pages·2005·1.03 MB·English

THE LAW REFORM COMMISSION OF HONG KONG
REPORT
CONFESSION STATEMENTS AND THEIR ADMISSIBILITY
IN CRIMINAL PROCEEDINGS
(TOPIC 8)
TERMS OF REFERENCE

WHEREAS :

On 15 January 1980, His Excellency the Governor of Hong
Kong Sir Murray MacLehose, GBE, KCMG, KCVO in Council directed the
establishment of the Law Reform Commission of Hong Kong and appointed it
to report on such of the laws of Hong Kong as might be referred to it for
consideration by the Attorney General or the Chief Justice;

On 11 November 1981 the Honourable Attorney General and
the Honourable Chief Justice referred to this Commission for consideration a
topic in the following terms :-

"Confession Statements and their Admissibility in Criminal
Proceedings

(1) To what extent are current laws and procedures on the
above matters as applied in Hong Kong suited to the best
interests of the community, including those of the
individual.

(2) What changes, if any, in law or procedure are necessary
or desirable?"

At its Seventh Meeting on 13 November 1981 the Commission
appointed a sub-committee to research, consider and advise on this topic.

At its Twenty-second Meeting on 28 October 1983 the
Commission received and considered the report of the sub-committee.

We have made in our report recommendations which will meet
the problems described therein.

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NOW THEREFORE DO WE THE UNDERSIGNED MEMBERS OF THE LAW
REFORM COMMISSION OF HONG KONG PRESENT OUR REPORT ON
CONFESSION STATEMENTS AND THEIR ADMISSIBILITY IN CRIMINAL
PROCEEDINGS, INCLUDING A MINORITY REPORT

Dated this 14th day of December 1984.

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THE LAW REFORM COMMISSION
OF HONG KONG

REPORT

CONFESSION STATEMENTS AND
THEIR ADMISSIBILITY IN CRIMINAL PROCEEDINGS

__________________________________________

CONTENTS

Page

Terms of Reference ii

Signature Page iii

Contents iv

Introduction vi

Chapter

1. Scope of the Report 1

2. A layman's introduction to the admissibility of confession 3
statements

3. A brief summary of Hong Kong Law and practice relating to 7
the admissibility of confession statements

4. The right to silence 9

5. An introduction to our proposals 14

6. Proposals 25

7. Summary of Recommendations in English 48

8. Summary of Recommendations in Chinese 55

9. Minority Report 61

iv
Page

Annexures

1. Outline of Hong Kong Law 68

2. Court statistics on voir dire proceedings 88

3. Comparative statistics on voir dire proceedings in England 102
and Hong Kong

4. The voir dire - a costing exercise 105

5. Organisations and individuals consulted for information, 110
views and assistance

6. Materials 111

7. The Judges' Rules and Administrative Directions 124

8. Comparative Law 135

9. Chinese translation of Statements in Proposals 5, 7 and 8 176

10. List of offences for which fingerprints are taken 180

11. Police Stations where arrested persons may be detained in 182
custody
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INTRODUCTION

Appointment of sub-committee

1. On 13 November 1981 the Commission appointed a sub-
committee to research, consider and then advise it upon aspects of
confession statements and their admissibility in criminal proceedings. The
members of the sub-committee were :

Hon T.S. Lo Commission Member
(Chairman)

Dr Ambrose King Commission Member

Dr Philip Kwok Commission Member

Mr K. Bokhary, QC Barrister

Mr R.K. Brown Director of Management & Inspection
Services
Royal Hong Kong Police

Mr Adrian Keane School of Law,
(retired in August 1982) University of Hong Kong

Mr Martin C.M. Lee, Q.C. Barrister

Mr W.R. Marshall Assistant to the Attorney General

Mr R.E. Moore Solicitor, Executive Director of
Jardine, Matheson & Co. Ltd.

Mr P.R. Moss Assistant Principal Legal Aid Counsel,
Legal Aid Department

Hon Mr Justice Penlington Justice of the High Court

Mr Roderick B. Woo Solicitor
F. Zimmern & Co.

2. The Secretaries of the sub-committee were :

Davis Hui Crown Counsel

S.M.I. Stoker Senior Crown Counsel

Colin White Senior Crown Counsel
(retired in March 1983)
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In addition, David Lyons, Senior Crown Counsel, was largely responsible for
drafting the sub-committee report while S.H. Cotsen, Senior Crown Counsel,
prepared the preliminary background paper.

Method of Working

3. The sub-committee began its deliberations with a consideration
of an introductory paper prepared by Mr. Costen. The first formal meeting of
the sub-committee was held on 8th January 1982 at which it was decided that
a press release should be issued inviting submissions from members of the
public. A release was given to the press on 28th January 1982 and appeared
in 3 Chinese evening papers, 11 Chinese daily papers and 2 English papers.
Letters were sent to a number of persons and bodies concerned in the
administration or teaching of the law and to others who were likely to be able
to assist the sub-committee in their task, seeking their views on the matters
within the terms of reference.

4. A working party was formed to define the areas which the sub-
committee should examine. It reported back to the sub-committee in
February 1982, having isolated the issues to be discussed.

5. Over the succeeding 14 months, the sub-committee met a total
of 30 times. Papers on particular aspects of the subject of Confessions were
prepared by sub-committee members. Mr Keane prepared a paper on Hong
Kong Law which forms the basis of Annexure 1. In addition, a paper
endeavouring to cost the present voir dire system was prepared by the
Secretaries (Annexure 4).

6. As a pre-requisite of any realistic examination of the subject, it
was felt that the members of the sub-committee should familiarise themselves
with police procedures and practice and a number of activities were organised
to achieve this end. The sub-committee viewed documentary programmes on
police operations and a number of visits to police stations in both Hong Kong
and Kowloon were organised, thanks to the assistance of the Commissioner
of Police and Chief Superintendent J.C. Clemence.

7. The sub-committee met officers from Lai Chi Kok Reception
Centre and questioned them regarding admission procedures and the ways in
which complaints by inmates of improper police conduct are handled. Over
the period of the sub-committee's deliberations, a variety of materials from a
number of jurisdictions was circulated to members. The materials to which
the sub-committee was referred are listed at Annexure 6. Statistics relating to
voir dire proceedings in courts in Hong Kong were collated and an analysis
made with the help of staff of the Government Census and Statistics
Department. These figures and the explanatory flow charts are shown at
Annexure 2.

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8. The mass of information which the sub-committee accumulated
in the course of its deliberations led in due course to a clarification of the
issues involved and discussion centred on a paper prepared by the
Secretaries which, taking account of materials and submissions received by
the sub-committee, presented a series of proposals for change. This paper
was discussed at length and amended proposals were unanimously agreed
by the sub-committee on 19th April 1983.

9. The sub-committee's report was considered at length by the
Commission at regular meetings held between October 1983 and December
1984. Comments and views of those with special interest or expertise in the
subject were elicited by the Commission. This report has been produced after
long and detailed study by both the sub-committee and the Commission. The
proposals which are the result of that study and form the essence of the report
are to be found at Chapter 6.

10. In an area of the law which is as controversial as this, we
recognize that unanimity of view is unlikely to be achieved. Some members
of the Commission expressed reservations as to certain aspects of the Report
and we have found ourselves unable to reconcile these differences of opinion.
Accordingly, we include at Chapter 9 the view of that minority in respect of
some of the recommendations of the Commission's Report.

Acknowledgements

11. We express our gratitude to all those who have assisted in the
completion of the Report either by expressing views or supplying us with the
facts and figures which have formed the foundation for our proposals. A list of
those who have assisted us appears at Annexure 5. We record a particular
debt of gratitude to the staff of the Law Reform Commission secretariat for
their assistance in the lengthy task of compiling this Report.

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Chapter 1

Scope of the report

_______________________________

1.01 After examining those areas of law relevant to the matters within
our terms of reference we are of the view that the current laws and
procedures relating to confession statements and their admissibility in criminal
proceedings as applied in Hong Kong could be improved to better suit the
interests of the community and the individual.

1.02 We have identified ten particular areas of concern where we
believe the current laws and procedures to be deficient:-

(i) The law determining the admissibility of confession statements
is in many respects uncertain;

(ii) It is inconsistently applied;

(iii) In some cases, excessively technical criteria are applied which
are remote from the realities of life;

(iv) The current law sometimes results in the exclusion from
evidence of confession statements made by arrested persons
which should, in the interests of ascertaining the truth, be
admissible;

(v) The laws and established procedures regulating the
interrogation of suspects by law enforcement officers are
confused;

(vi) They are inappropriate for Hong Kong;

(vii) They are unnecessarily complex, and not understood by many
law enforcement officers;

(viii) They are often, either intentionally or unintentionally, not
observed;

(ix) These laws and established procedures may not prove sufficient
protection for a suspect in custody;

(x) A disproportionate amount of Court time and both public and
private money is expended on determining the admissibility of
confession statements in criminal trials.

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1.03 The entire system of police investigation, the cautioning of
suspects and the taking of statements are affected by the laws relating to the
right to silence and the criteria for admissibility of statements made. We have,
therefore, endeavoured to draft a "composite system" which raises these
issues and which contains a series of proposals to cover not only all of the
aspects of an investigation where law enforcement officers have interview
contact with a suspect but also relevant proposals of principle relating to law
enforcement officers' powers generally on questioning suspects, the suspect's
rights, court procedures, test of admissibility of evidence and general
proposals for the better administration of justice as are relevant to the topic.

1.04 We favour a system whereby, if a suspect in custody makes a
statement or admission or fails to answer questions which are put and such
statement, admission or failure to answer may be adduced in evidence by the
prosecution, then as soon as possible after the admissions are made or the
questions put and the suspect is charged, the suspect should be brought
before a member of a specially appointed panel who would make enquiries of
the suspect to determine whether or not the suspect acknowledges that he
made the statements or admissions attributed to him or that he failed to
answer questions and what, if any, complaints the suspect has of his
treatment whilst in custody. It was also felt that the member of the specially
appointed panel should, if the suspect requests, be able to arrange for the
suspect to be transferred forthwith from Police to gaol custody pending his
being brought before a Magistrate.

1.05 In Chapter 5 we have outlined the objectives of our proposals
and in Chapter 6 we have stated the proposals together with some of the
considerations we consider relevant to each proposal. Our proposals
recommend changes to the law and the establishment of a uniform code of
conduct for law enforcement agencies established under the authority of
general Standing Orders issued by the Commanding Officers of the various
agencies to replace the Judges' Rules. The uniform code of conduct will be
approved by the Governor in Council and will be published in the Hong Kong
Government Gazette. These proposals necessarily involve a conflict between
the interests of the State, which require that those who breach the laws of the
State be apprehended and convicted for their crimes, and the interests of the
individual, which require that the individual should not be subjected to
unnecessary interference with his liberties.

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