Read the full judgment text of FACC 9/1999 on BabelCite. This FACC judgment was delivered on 26 June 2000 before Li CJ, Litton PJ, Ching PJ, Bokhary PJ, Mason NPJ.
Criminal law – evidence – confessions – voluntariness – residual discretion to exclude admissible evidence – undercover operation by law enforcement agency – completed offences and suspects – right of silence – fair trial – Police and Criminal Evidence Act 1984 s.78 – common law – Prevention of Bribery Ordinance (Cap 201) s.4(2)(a) – District Court Ordinance (Cap 336) s.84. The 1st and 2nd respondents, police officers, faced charges of soliciting and accepting protection monies from a person nicknamed 'Ngau Wing' between December 1992 and March 1993 to facilitate triad-related decoration works, contrary to s.4(2)(a) of the Prevention of Bribery Ordinance, Cap 201. In June 1996, after the offences had long been completed, the ICAC arrested Ngau Wing and mounted an undercover operation from November 1996 to April 1997 using Ngau Wing (granted immunity in return for cooperation) and Heung Kai, an ICAC undercover officer. During 39 tape-recorded telephone conversations and meetings, the respondents made incriminating statements. The trial Judge ruled the evidence involuntary and inadmissible, the prosecution offered no evidence, and the respondents were acquitted with costs. The Secretary for Justice appealed by Case Stated. The Court of Appeal held the trial Judge misapplied the voluntariness test but that it would have been open to him to exclude the evidence in residual discretion. Held (Li CJ, Litton PJ, Ching PJ, Bokhary PJ, Mason NPJ agreeing), allowing the appeal: The proper approach to the residual discretion to exclude a voluntary confession obtained by a law enforcement agency through an undercover operation from a suspect of completed offences. The judge has a single discretion to exclude admissible evidence, including a voluntary confession, whenever necessary to secure a fair trial for the accused. Unfairness is judged against what is required for a fair trial, not against general notions of fair play or as disciplinary control over law enforcement. Fair trial principles include safeguarding the right of silence and the requirement that conviction rest only on the probative effect of admissible evidence. In the absence of an undercover operation, a suspect questioned after caution has the safeguards of the caution and the voluntariness rule, and the residual discretion will seldom be exercised. In an undercover operation, neither safeguard applies because the suspect cannot be cautioned and does not perceive the person in authority. The discretion must fill that gap. Where the undercover officer plays a passive role, merely hearing, overhearing or recording a volunteered confession, the discretion will not ordinarily be exercised to exclude. Where the officer actively questions the suspect and the questioning amounts to interrogation, the discretion will ordinarily be exercised to exclude the confession as such interrogation derogates from the right of silence and prejudices fair trial. Drawing attention to the incident, in the absence of other circumstances, is not interrogation. The gravity of the offence is a relevant but not weighty factor. Undercover operations are a necessary weapon and unavoidably involve subterfuge; the law accepts this. The discretion is judicial and is to be exercised in a principled, commonsense way. Because the 39 tape transcripts were not before the Court, the question whether the evidence should have been excluded in the exercise of the discretion could not be satisfactorily determined, and the matter was remitted to the trial Judge. Orders: appeal allowed; acquittals and costs order in favour of the respondents reversed; matter remitted to His Honour Judge Gill for trial to be resumed; no order as to costs in the Court of Appeal and this Court.
Legal issues: Scope of residual discretion to exclude voluntary confession obtained through undercover operation
Outcome: Appeal allowed; acquittals and costs order in favour of respondents reversed; matter remitted to the trial Judge for the trial to be resumed.