The Secretary for Justice v. Lam Tat Ming and Another

FAMC000024/1999

FAMC No. 24 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 615 OF 1998)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 6 October 1999

Date of Determination: 6 October 1999

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DETERMINATION

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee.

2. This matter concerns a prosecution brought against two police officers for corruption. The trial began in the District Court on 20 May 1998. Objection was made by the defence to the admissibility of tapes of conversations passing between the defendants and an informer who was, at the time, acting under the instructions of the ICAC. A voir dire was held pursuant to which the Judge ruled the recordings inadmissible. There being no other evidence implicating the defendants in the offences charged, they were found not guilty and awarded costs.

3. The matter then went on appeal to the Court of Appeal upon a Case stated by the court pursuant to s.84 of the District Court Ordinance, Cap. 336.

4. The Court of Appeal in 3 separate judgments given on 16 July 1999 held that in so far as the trial judge had concluded that the "deception" practised by the informer on the defendants rendered the taped conversations "involuntary" and inadmissible the judge had erred. But the Court of Appeal nevertheless dismissed the prosecution's appeal because it concluded that the trial judge had a wide discretion to exclude the evidence and had properly exercised that discretion.

5. On the same day the Court of Appeal was asked under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, to certify a question of law of great and general importance for this Court. The Court of Appeal acceded to that application, saying at the same time that the question might need refining later on.

6. The question as now refined reads as follows:-

"What is the scope of the discretion vested in a judge to exclude an admission made to a law enforcement officer by an accused person which is proved to be voluntarily made and where the admission was made in circumstances in which:

(1) the accused was not under arrest or in custody at the time of making the admission; and

(2) the accused was unaware at the time of making the admission that the person to whom it was made was a law enforcement officer and had the maker been aware of the true identity and status of the officer or the agent of the officer he may not have made the admission?"

7. We are satisfied that this merits consideration by the Court of Final Appeal and we accordingly give leave to appeal on the question as stated above.

Representation:

Mr A A Bruce SC, SADPP & Mr McWalters, SADPP (of Department of Justice) for Applicant

Mr Andrew Macrae SC (instructed by M/S So & Co.) for 1st Respondent

Mr James P. Chandler & Mr Martyn Richmond (instructed by M/S Lau & Leung) for 2nd Respondent