Li Wai Leung v. The Queen

CACC000398/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 398 OF 1969

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Coram: Hogan, C.J., Blair-Kerr, J. and Huggins, J.

Date of Judgment: 30 December 1969

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JUDGMENT

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Huggins, J:

1. In this case each member of the court has prepared a separate judgment but from the fact that I have decided to deliver the judgment which I myself prepared it should not be inferred that I dissent from anything which Blair-Kerr, J. has said: my only reason for adding to what my Lords have to say upon the vexed question which here arises is that it may be of value to see the approach of three different minds.

2. The evidence of D.P.C. Wan Kon-man was to the effect that acting upon instructions he went to an address where he saw the appellant. He asked the appellant's name and whether he had any nickname and having received replies to these questions he took the appellant back to the police station "for investigation". On the face of this evidence there was no suggestion that the appellant was being arrested and certainly no indication of any justification for an arrest. It is not disputed that at the police station a list of unsolved crimes was read to the appellant and, without his having first been cautioned, he was asked whether he had committed any of them. He made a reply the nature of which we do not know, but in the course of it he was stopped and cautioned. It is reasonable to infer that the caution was the result of something he said, otherwise one may suppose he would have been cautioned at the outset, but whether what he said in any way suggested an admission of guilt we do not know. However, evidence was led of a statement alleged to have been made by the appellant after the caution and, the admission of this statement having been objected to on the ground that the appellant was forced to make it, evidence was taken on the voire dire. In the course of that evidence the appellant's father stated that the police had said to the appellant "come with me to the police station to surrender yourself to Tai Lam Chung Prison", although the officer himself denied telling him "the reason for (his) arrest" was that he had escaped from Tai Lam Chung Prison. Although the learned District Judge ruled that the written statement upon which so much of the case turns was voluntary he did not refer expressly to the Judges' Rules and made no finding whether the appellant was under restraint at the time when he made the statement.

3. I must accept responsibility for having raised the question whether the failure to refer to the Judges' Rules indicated a failure to consider a material aspect of the case. I did so fully appreciating that the Judges' Rules are not rules of law, but having regard to the authority which they appeared to have been accorded by the decisions of the courts, and in this connexion I had in mind what may remain of the authority accorded to them by Reg. v. Bass⁽¹⁾ since the decisions in Chan Wai-keung v. Reg.⁽²⁾ and Reg. v. Ovenell⁽³⁾. In the last of these cases one may still find a hint that where there has been a breach of the Judges' Rules the judge must expressly so find and then go on expressly to exercise a discretion whether to admit the statement despite such breach. If that was not the opinion of the Court of Appeal one might have expected a more forthright ruling that the judge was not directly concerned to answer the question whether there had been a breach of the Judges' Rules but only the question whether the statement was voluntary.

4. That the Judges' Rules are not rules of law is clear. They originated as advice given to the police by the English judges with the aim of achieving some uniformity of practice in a field where individual judges had imposed widely different views. The effect of the Rules was to be that if they were observed in the taking of the statement the police could be sure that no judge would, in the absence of ground for suspecting some active inducement, exercise his discretion to reject the statement. On the other hand, failure to observe the Rules would not necessarily result in the rejection of a statement: the judge's discretion remained. In Lam Tuk-yu v. Reg.⁽⁴⁾ this court said:

"If the prosecution demonstrates to a court of law that there has been no duress or inducement of any kind, the mere fact that there has been a breach of the Judges' Rules does not, ipso facto, render a statement made by an accused person inadmissible. There is no rule of law or practice which would preclude the police from attempting to satisfy a court of law that an 'uncautioned' statement was freely and voluntarily made in the technical sense in which the word 'voluntarily' is used in this branch of the law."

5. It has, indeed, been questioned whether the Judges' Rules have any application at all in Hong Kong. Had I been asked to answer this question with things as they stood 50 years ago I might have given a different answer, but I have no doubt at all that the "Rules", first drafted in 1912 and added to in 1918, must now be honoured by the judges in Hong Kong until they indicate that in future they will not be guided by them. For many years the judges in Hong Kong have consistently referred to the "Rules", with the result that even though the judges here have never directly given to the Hong Kong police advice similar to that which was given by the English judges to the English police they have nevertheless led the Hong Kong police to believe that they concur with that advice. I could not bring myself to break faith with the police and to rely on the fact that the judges have never formally adopted the "Rules". I am the more convinced that it would be wrong to do so because it is within my knowledge that when the English judges made new "rules" in 1964 there was some discussion (a) whether those "rules" automatically applied in Hong Kong and (b) whether, if they did not, the Hong Kong judges should expressly adopt them. In the event it was decided that until further notice there should be no change and I have not the slightest doubt that that was generally understood to mean that we would continue to have regard to the position in England from 1918 to 1964. Whether it is desirable that the judges should give advice of this nature to the police and whether the advice should be that which was given by the English judges in 1964 are questions which I do not desire to discuss in this judgment.

6. For my part I cannot help thinking that it is unfortunate that the interpretation of the Judges' Rules has ever been discussed in the course of trials. The issue for the judge when an extra-judicial confession is tendered in evidence is whether this confession is admissible. The basic rule is that a statement (like any other evidence) is admissible if it is relevant. It has been said that there is a general discretion to exclude evidence which is legally admissible if its admission would be "unfair" to the accused. I do not think that is the law and I think it would be prejudicial to the proper administration of justice if the judges were to arrogate to themselves any such discretion. In this connection I favour the view expressed by the Irish judges in The People (Attorney General) and O'Brien v. McGrath⁽⁵⁾. Mr. President Davitt said at p.74:

"I doubt very much if a judge has any general discretion to decline to apply the rules of evidence according to his idea of sportsmanship"

and McLoughlin, J. warned against "the modern tendency ...... to strangle the interests of the state in bringing offenders to justice by a relaxation of the strict rules of law in accordance with some vague consideration of fairness or fair play to the accused". That there is a limited discretion to exclude admissible evidence is clear. That discretion is exercisable where "unfairness" arises from the fact that the probative value of the evidence is far outweighed by its probable prejudicial effect upon a jury or upon assessors: see Noor Mohamed v. R.⁽⁶⁾, Harris v. Director of Public Prosecutions⁽⁷⁾ and Kuruma v. Reg.⁽⁸⁾. It would seem a trifle illogical to exercise this discretion where a judge is sitting alone but it has been done, presumably because the evidence if admitted might be aimed at forcing the accused to elect to give evidence, and I am not prepared to say it was wrong to do so.

7. It is questionable whether the exclusion of extra-judicial confessions not proved affirmatively to be voluntary (which hereinafter I shall call "involuntary confessions") rests upon a discretion to exclude admissible evidence or upon their inherent inadmissibility, but that there is a rule of practice, now amounting to a rule of law, that a judge should not allow such confessions to go into evidence has been said too often to allow of any doubt. In Kuruma v. Reg.⁽⁸⁾ the Privy Council said at p.205:

"It is right, however, that it should be stated that the rule with regard to the admission of confessions, whether it be regarded as an exception to the general rule or not, is a rule of law which their Lordships are not qualifying in any degree whatsoever".

The "general rule" there referred to was that if evidence is relevant "it is admissible and the court is not concerned with how the evidence was obtained". However, it is not vital to our enquiry whether an excluded confession is strictly admissible or inadmissible but rather are we concerned with the basic reason behind its exclusion.

8. Whether the origin of the rule was that a man should not be allowed to incriminate himself, or that an involuntary confession was dangerous because an accused was formerly not permitted to give evidence to explain what he had said, or that an involuntary confession was as likely to be false as to be true (or a combination of one or more of these) I cannot accept that a sound basis for the rule is to be found in the discouragement of improper police methods and I respectfully agree with Mr. President Davitt when he said in The People v. McGrath⁽⁵⁾:

"I do not suggest that a judge, if in the course of trying a case he becomes aware of an offence or irregularity committed by, say, a police or prison officer, should be completely unconcerned as to whether the matter is properly dealt with. I do take the view that he should not try to deal with it indirectly by what I conceive to be a mis-use of the law of evidence."

As it seems to me the only sound basis for continuing the rule is that involuntary confessions are as likely to be untrue as they are to be true and that consequently their probative value is nil, while the possible prejudice to the accused if they be untrue is incalculable. Thus in R. v. Jane Warickshall⁽⁹⁾ Nares, J. said:

"It is a mistaken notion, that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith: no such rule ever prevailed. The idea is novel in theory, and would be as dangerous in practice as it is repugnant to the general principles of criminal law. Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not intitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected."

The shape of the modern law was first determined by Reg. v. Baldry⁽¹⁰⁾ where Lord Campbell, C.J. said at p.432:

"I doubt whether the rule excluding confessions made in consequence of an inducement held out, proceeds upon the presumption that the confession is untrue; but rather that it would be dangerous to receive such evidence, and that for the due administration of justice it is better that it should be withdrawn from the consideration of the jury."

Pollock, C.B. agreed that:

"The law does not presume that (an involuntary statement) is untrue; but rather that it is uncertain whether a statement so made is true."

The issue in that case, however, was whether the confession which had been admitted in evidence really was "voluntary" and Parke, B. said at p.444:

"By the law of England, in order to render a confession admissible in evidence it must be perfectly voluntary; and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority, vitiates a confession. The decisions to that effect have gone a long way; whether it would not have been better to have allowed the whole to go to the jury, it is now too late to inquire, but I think there has been too much tenderness towards prisoners in this matter. I confess that I cannot look at the decisions without some shame when I consider what objections have prevailed to prevent the reception of confessions in evidence; and I agree with the observation of Mr. Pitt Taylor, that the rule has been extended quite too far, and that justice and common sense have, too frequently, been sacrificed at the shrine of mercy. We all know how it occurred. Every Judge decided by himself upon the admissibility of the confession, and he did not like to press against the prisoner, and took the merciful view of it. If the question were res nova I cannot see how it could be argued that any advantage is offered to a prisoner by his being told that what he says will be used in evidence against him. I have the most unfeigned respect for Coleridge J. and Maule J., and in deference to their decisions, I offered to reserve a case at Aylesbury, but I cannot concur in their judgment. I have reflected on Reg. v. Drew and Reg. v. Morton, and I have never been able to make out that any benefit was held out to the prisoner by the caution employed in those cases."

The facts there were that a constable had said to the prisoner "he need not say anything to criminate himself: what he did say would be taken down, and used as evidence against him" and it was held that that did not render the prisoner's subsequent confession involuntary. Despite that decision the judges continued to display a bewildering lack of uniformity in approach to the interpretation of the word "voluntary" and, as I have already indicated, the Judges' Rules were an attempt to bring about a measure of uniformity. Unfortunately they have not been entirely successful and in some jurisdictions a further attempt has been made by legislation, e.g. s.141 of the Evidence Act 1928 of the State of Victoria. It may be that identical or similar legislation would be valuable in Hong Kong but this is not an appropriate place for me to express any view upon that: my task is to endeavour to ascertain when a statement is "voluntary" under our present law.

9. The difficulty in these cases arises from the fact that compulsion may take many forms and may vary greatly in degree. The most common forms are, of course, direct threats and promises of temporal advantage. There are, however, more insidious forms of compulsion, the pressure sometimes being more in the imagination of the accused than real. O'Bryan, J. said in R. v. Burnett⁽¹¹⁾:

"A confession may cease to be voluntary for various reasons. A person may be threatened, or an inducement held out, or the whole surrounding circumstances may be such as to lead to the conclusion or to a lack of satisfaction that the person making the confession was acting voluntarily. A man's mind may be overborne in a variety of ways. Persons who are sick, or in ill health, or in a debilitated condition may, and I would add in most cases are, very much more easily overborne than a person who is in robust health".

It was, I suspect, with this in mind that r.3 of the Judges' Rules was drafted:

"Persons in custody should not be questioned without the usual caution being first administered".

Some, though not necessarily all, persons in custody feel that the mere fact of restraint is an inducement or a threat and therefore it is desirable that they should not be questioned unless they are first cautioned. This restriction applies to questioning not only in respect of the offence for which he is in custody but also in respect of any other offence: Lee Wai v. Reg.⁽¹²⁾. That a caution was considered sufficient to dispel the fear or expectation indicates that the pressure in such cases was thought to be minimal. It follows that in the absence of a caution a judge may well find factors sufficient to satisfy him that the pressure produced by the restraint has been lifted.

10. In the present case I think the issue comes down to this, what was the learned judge required to set out in his judgment and are we entitled to assume that he considered all the material factors when he found that the cautioned statement was voluntary although he has not mentioned them? I approach the matter in this way.

11. The onus on the Crown is to establish that the confession was voluntary. Nothing more is required. In particular the fact that the judges have thought it right to give advice to the police does not increase the legal onus which is on the Crown. The duty of the judge is to rule on the issue of voluntariness and, in so far as the circumstances of the case may require, to indicate his reason for coming to his conclusion. It is a fundamental difference between a judge and a jury that the one is required to give reasons and the other is not. It is, I apprehend, incumbent on a judge when ruling upon the admissibility of an extra-judicial confession to make some reference to the arguments advanced on behalf of the accused and, where it may be necessary for the proper consideration of those arguments, to make findings of fact. It is not incumbent on him to refer expressly to the Judges' Rules and it is questionable whether he should allow counsel to make express reference to them although, if the substance of one or more of the rules is directly relevant, it would perhaps be unduly fastidious to prevent him from doing so provided that he does not mislead the jury by suggesting that they are rules of law.

12. When the accused's statement was tendered in evidence in this case he objected on the ground that he had been induced to make it, not by improper questioning but by violence. This allegation was apparently disbelieved by the learned judge although he did not say so in so many words. There was an express finding that the statement was voluntary and, subject to one further consideration, in this case I think that was enough. Had the objection been expressly based upon an allegation of questioning while the accused was in custody it may be that a ruling which made no finding whether the accused was in custody would be open to attack as not giving sufficient consideration to the defence case, but that is not the position here.

13. Does it make any difference that the accused was not represented before the District Court? While the judges no doubt do endeavour so far as is compatible with their judicial functions to protect the interests of an unrepresented party there is no special right or privilege enjoyed by such a party. The appellant alleged that his confession was not voluntary and indicated the nature of the inducement. Unless the evidence was such that there was manifestly some other inducement it was not incumbent on the learned judge to deal expressly with any other possible inducement. We are not, however, to assume that the judge did not have regard to all material factors. If the uncautioned answer to the question put by the police was a confession and if it had been sought to put that answer in evidence, it is possible that it would have been excluded as not being voluntary. There was, however, no suggestion of any active threat or inducement which might have continued to operate on the mind of the accused despite the administration of a caution. The learned judge may well have thought that the very slight pressure arising from the mere fact of restraint was as readily dispelled by the caution as if the uncautioned answer had not already been given.

14. It was for these reasons that I thought the appeal should be dismissed.

30th December, 1969.

(1) 1953 1 Q.B. 680

(2) 1967 A.C. 160

(3) 1968 1 All E.R. 933

(4) Cr. App. No.111 of 1968

(5) (1965) 99 Irish Law Times 59.

(6) 1949 A.C. 182.

(7) 1952 A.C. 694.

(8) 1955 A.C. 197.

(9) (1783) 1 Leach 263.

(10) (1852) 2 Den. 430.

(11) 1944 V.L.R. 115, 116.

(12) 1962 H.K.L.R. 351.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 398 OF 1969

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Coram: Hogan, C.J., Blair-Kerr J. and Huggins J.

Date of Judgment: 30 December 1969

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JUDGMENT

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Hogan, C.J. :-

15. Although counsel for the appellant has devoted much time and thought to the appeal, I think the only argument advanced to us which merits detailed attention is the submission that the written statement made by the accused on which the prosecution relied must have been preceded by a question to the accused at a time when he was in custody and before he had been cautioned, and that, although we are not aware of the form of the question and the answer, either may have been such as to have influenced the subsequent statement made after caution and to have rendered it inadmissible as not being a voluntary statement.

16. This may seem a somewhat tenuous ground of appeal but it gains impetus from the manner in which the current attitude of the courts to the admission of the statements by defendants has evolved. Professor Cross in his book on Evidence⁽¹⁾ has summarised the current position in the following words :-

"When considering the admissibility of a confession, it is therefore necessary to bear in mind first, the possibility that it may be inadmissible as a matter of law because it was not voluntary, secondly, the possibility that it may have been obtained by a breach of the Judges' Rules and therefore, though voluntary, liable to be rejected at the judge's discretion, thirdly, that it is liable to rejection at discretion because it was obtained in some other circumstances which would render its reception unfair to the accused.".

17. This position has, however, been the subject of increasing controversy in recent years and it would seem that Professor Cross's ref ...(illegible) to the exercise of a discretion might be more appropriately regarded as the assessment of factors bearing on the voluntary nature of a confession.

18. The rule excluding improperly induced confessions can, following the opinion of the Privy Council delivered by Lord Sumner in Ibrahim v. R.⁽²⁾, be regarded as well settled in English law. Its origin is, however, less certain. Cowen and Carter in their 'Essays on the Law of Evidence'⁽³⁾ say:-

"Wigmore has shown that the rule is not of great historical antiquity, and assumed its present form in R. v. Warickshall⁽⁴⁾ in 1783, after a less precise enunciation by Lord Mansfield a few years earlier in R. v. Rudd⁽⁵⁾.".

This contrasts with Lord Sumner's statement in Ibrahim v. R.⁽²⁾ that the rule went back to Lord Hale. There seems little doubt that previously torture had been used to extract admissions for use in judicial proceedings.

19. Although the exclusion of involuntary statements is well settled, the courts' approach to the questioning of people in custody and its effect on subsequent statements is open to argument. Dealing with the case before him, Lord Sumner, in Ibrahim v. R.⁽²⁾, said:-

He then referred to a number of English cases, and said:-

"When judges excluded such evidence, it was rather explained by their observations on the duties of policemen than justified by their reliance on rules of law ............................................ The English law is still unsettled, strange as it may seem, since the point is one that constantly occurs in criminal trials. Many judges, in their discretion, exclude such evidence, for they fear that nothing less than the exclusion of all such statements can prevent improper questioning of prisoners by removing the inducement to resort to it. This consideration does not arise in the present case. Others, less tender to the prisoner or more mindful of the balance of decided authority, would admit such statements, nor would the Court of Criminal Appeal quash the conviction thereafter obtained, if no substantial miscarriage of justice had occurred...".

20. Lord Sumner went on to express the view that it would be very desirable that the rule of English law on this matter should be settled by authority, but emphasized that this could be done only by a court exercising "the revising functions of a general Court of Appeal".

21. The measure of uncertainty thus prevailing was, to some extent, relieved in England not by a decision of a Court of Appeal but by the advice contained in what are known as the Judges Rules, promulgated by the judges in England as the result of a request for guidance in 1912 ...(illegible) the Chief Constable of Birmingham whose officers had been subjected to what appeared to be contradictory criticism. In weighing this advice, however, it seems desirable to bear in mind the reasons advanced for rejecting confessions not proved to be voluntary although those have not, as yet, emerged with the clarity attaching to the principle itself. Professor Cross in his book on Evidence⁽¹⁾ lists four of these.

22. Professor Cross went on to suggest a fifth reason, the all-important necessity of discouraging improper Police methods which, on this analysis, would become an end in itself. He suggests that whilst the first two reasons mentioned above could now have little but historical interest, allowance for each of the other three should be made when considering the details and application of the present law.

23. The last of these reasons would suggest that the judges should share in imposing a measure of control and restraint on the efforts of the Police in their endeavour to trace and bring criminals to justice and should use for this purpose the power to exclude evidence. Whether, in so doing, the judges would be moving away from the traditional position of an English Judge, as arbiter in an essentially accusatorial system, towards that of an officer with a measure of responsibility for the methods adopted in the investigation of crime, may be open to question, just as it may also be questioned whether it is desirable to assume a measure of control within an area where the basic responsibility rests on other shoulders.

24. Certainly if this measure of control is desirable in itself the request by the Chief Constable of Birmingham afforded an excellent opportunity of which advantage was taken by the issue of the "Rules".

25. The third of the original four Rules - subsequently increased to nine - read as follows:-

"(3) Persons in custody should not be questioned without the usual caution being first administered.".

26. Subsequent events led to the appointment in 1928 of a Royal Commission to examine into Police methods generally in the United Kingdom which issued a series of recommendations. In commenting on the Rules they said that diverse rulings by different Courts in different cases were a source of great embarrassment to the Police and that there were marked divergencies of opinion as to the meaning of the Rules and as to the practice throughout the country. They added however:-

27. They concluded with the following significant paragraph:-

28. In England the recent amendments to the original Rules embodied many of the recommendations made by the Royal Commission but, apparently, this recommendation, LIX, did not commend itself, though there would appear to be less danger of misunderstanding if the guidance takes the form of instructions issued by the appropriate police authority after approval by the judges.

29. The title "Judges Rules" has perhaps tended to give the advice a role and status greater than was intended. On occasions the "Rules" are appealed to as compelling a Court to exclude evidence, admissible at law, merely because there has been some departure from the Rules although there would appear to be little justification for such exclusion if the departure concerned only the letter of the Rules and involved no serious infringement of their spirit or derogation from the purpose they were intended to serve.

30. The Rules themselves have not perhaps been framed in the manner most apt to fulfil their purpose of indicating only the circumstances which could lead to the exclusion of certain statements made by an accused. Unless their origin and context is kept in mind some of the Rules give the impression of prescribing the manner in which the Police should conduct themselves not only when seeking evidence with a view to its production in Court but also when endeavouring to investigate and discover the authors of crime, although the Rules both in their new and in their old form started with the basic tenet that, when endeavouring to discover the author of a crime, a police officer is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained.

31. The new Rules make it clear that, in so far as the admission of evidence is concerned, the limitations to be placed on this general statement when a person is in custody refer primarily to the putting of questions to a prisoner about the crime for which he is being held in custody. The judges in England have now advised that after a prisoner has been charged or informed that he may be prosecuted, such questions should only be put when they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement and that even then they should be preceded by a caution.

32. When the questions relate not to the crime for which a person is in custody but to some other offence the limitations are different and the judges have now advised that, in respect of such an offence, if a police officer has evidence which would afford reasonable grounds for suspecting that a prisoner has committed such other offence, he should not question him or question him further about it without a caution.

33. The earlier version of the Rules did not bring out this distinction so clearly. Taken literally, the former Rule 3 would seem to advise against questioning a prisoner about any offence, whether he was held in custody for it or not, without first administering a caution, but it seems doubtful whether, in framing the Rule in this way, the English judges had in mind anything other than the offence for which the prisoner was being held. See, on this point, the observations of the judges in the Hong Kong case of R. v. Lee Wai⁽⁷⁾. In any event there would seem to be no justification now for any merely mechanical application of this piece of advice to offences for which the prisoner is not being held when the judges in England, whatever the original intention, have clearly indicated that, in their view, it should no longer be applied in this way.

34. There is no need to maintain the Rules for their own sake but only in so far as they contribute to the purpose of ensuring that, whilst the Police will retain their proper freedom to investigate, the Courts will also maintain their right to reject confessions which are not voluntary because they have been induced by threat or promise or obtained by methods such as unfair interrogation which can be taken to render them involuntary; whether the interrogation be unfair through having been unduly prolonged or pursued when the accused was tired or otherwise unfit to sustain it.

35. When considered against the background of the overall purpose of the Rules there is clearly a danger in attaching undue importance to the administration of a caution which could become merely a ritual. Pressures of one kind or another might be brought to bear almost as readily after a caution as before it. The essential test is whether the statement can properly be regarded as voluntary and any attempt to substitute something more ritualistic or mechanical is not to be encouraged.

36. Reference has been made to the English case of R. v. Buchan⁽⁸⁾ where the headnote may not reflect quite accurately the terms of the judgment. The Court of Criminal Appeal there said:-

"it seems to this court that the chairman omitted to pay due regard to the fact that albeit the defendant was questioned whilst in custody, he was being questioned upon offences other than those for which he was in custody and, in those circumstances, it has always been the law or the practice of this court, whether under the old Rules or the new Rules, which have just come into force, that it is permissible to question a man albeit in custody in regard to other offences.".

This passage makes no reference to a caution but the fact that the accused in Buchan's case⁽⁸⁾ had been cautioned might justify the paraphrase in the headnote which says:-

"Held, (1). that it was permissible under rule 3 of the Judges' Rules of 1930, and also under rule 1 of the Judges' Rules of 1964, to question a defendant in custody, after he had been cautioned, upon offences other than the one for which he was in custody.".

37. But Lord Parker, L.C.J. went on to say with reference to the decision of the Divisional Court in Callis v. Gunn⁽⁹⁾ :

In relying on Callis v. Gunn⁽⁹⁾ and equating the position in the two cases, the Court would seem to have subordinated the giving of a caution to the basic test as to whether the answers were voluntary.

38. To sum up, the origin and nature of the so-called Judges Rules would seem clearly to indicate that it is wrong to exclude a statement merely because of a technical departure from the Rules and that in seeking to determine, for the purpose of exercising a discretion, whether there has been a substantial departure from the spirit and purpose of the Rules, regard may properly be had to the modifications recently made in England and that the Courts should be slow to exercise their discretion by rejecting a statement which satisfies the new Rules.

39. As indicated in Lee Wai's case⁽⁷⁾, there may have been some doubt as to whether the judges in framing the Rules in their original form intended Rule 3 to apply to the case of a prisoner who was being questioned in respect of an offence other than that on which he was being held. The new Rules have removed that doubt and it would seem reasonable for the Hong Kong Courts to be guided by this new interpretation.

40. The Rules have frequently been referred to by the Courts in Hong Kong and, although they are neither law in England nor such practice and procedure as might be applicable under the provisions of section 9 of the Supreme Court Ordinance, it is very natural that Courts in Hong Kong should look to these views of the judges in England as affording valuable assistance in the exercise of the power to determine what material may be introduced as evidence, particularly if they are called, as Lord Sumner suggests, not to apply a rule of law but to be guided by considerations derived from public policy. When taking advantage of this assistance, however, it is necessary to bear in mind that the advice of the English judges was directed to social conditions somewhat different from those which prevail in Hong Kong with its very mobile population and more limited opportunities for investigation and interrogation outside a police station. Moreover, there has been, on occasions in the past, a tendency, in Hong Kong as elsewhere, and a tendency in which I have shard, to apply the Rules as if they were a statute prescribing conditions the infringement of which would make evidence inadmissible. There never has been any justification for treating them as legislation and it would, of course, be still more inappropriate now to use, in this way, advice given in a form which has since been modified at its source. There never was any justification for applying the Rules, in their earlier form, to the letter as distinct from the spirit and, in determining what is the spirit and purpose of the Rules to-day, I think it would be appropriate for Courts, when the Rules are in question, to have regard to the modifications made in 1964 so that, without necessarily tying the Police to the detail of each new Rule and each caution mentioned in the new Rules, account could be taken, if a departure from the older Rules is alleged, of the extent to which the taking of the statement complied with the general pattern and purpose of the Rules in their new form.

41. In the case before us, the written statement appears to have been voluntary and the evidence does no more than suggest the possibility of what would appear to have been at most a technical breach of Rule 3 of the former Judges' Rules read in its stricter sense. For the reasons indicated I would not be disposed to reject the statement on that account and would agree with Huggins, J. that the appeal should be dismissed.

Representation:

Charles Ching, assigned for the Appellant.

I. A. Evans, Crown counsel, for the Respondent.

(1) 3rd Edition, page 446.

(2) (1914) A.C. 599, 609-614.

(3) 1956 Ed. page 41.

(4) (1783) 1 Leach, C.C. 263.

(5) (1775) 1 Leach, C.C.115.

(6) (1852) 2 Den. Cr.C. 430 at p.445.

(6) (1852) 2 Den. Cr.C. 430

(1) 2nd Edition, pages 446, 447.

(7) (1962) H.K.L.R. 351, 370.

(8) (1964) 1 W.L.R. 365, 368.

(9) (1963) 3 W.L.R. 931; (1963) 3 All E.R. 677, D.C.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 398 OF 1969

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Coram: Full Court (Hogan, C.J., Blair-Kerr & Huggins JJ.) 

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JUDGMENT

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Blair-Kerr J.:

42. The law of England governing the admission in evidence of statements by accused persons to persons in authority has been clear since the decision of the Privy Council in Ibrahim v. R.⁽¹⁾; and, being a Privy Council decision in an appeal from Hongkong, the Courts of the Colony are bound by it. No statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

43. It is not altogether clear as to how far the rule is in force in certain other common law jurisdictions. For example, s.141 of the Victoria Evidence Act, 1928, provides that:-

"No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to a person confessing, unless the judge or other presiding officer is of the opinion that the inducement was really calculated to cause an untrue admission of guilt to be made."

Similar legislation has been enacted from time to time in New Zealand.

44. In R. v. Walker⁽²⁾, the Chief Justice of the Supreme Court of Victoria said:-

"The law of Victoria differs from that of England in this respect - that the fact that a confession of guilt is not voluntary is not sufficient in Victoria to warrant the rejection of the evidence. But such confession must be received in evidence unless the judge shall be of opinion that an inducement has been given which was really calculated to cause an untrue admission of guilt to be made."

And in Cornelius v. R., ⁽³⁾ Mann C.J. said that:-

"the position in Victoria is that the practice of examining and cross-examining prisoners is neither forbidden nor limited nor regulated by the law of the land".

However, the decision in Cornelius was appealed⁽⁴⁾; and it appears from the judgments of the High Court of Australia in that case and in two later cases, (R. v. Jeffries⁽⁵⁾, and The King v. Lee & others⁽⁶⁾) that the rule enunciated in Ibrahim⁽¹⁾ still applies to some extent in Australia and that s.141 of the Victoria Evidence Act has been given a rather narrow interpretation. It would appear that the law on the subject is not finally settled. (vide Cohen & Carter "Essays on the Law of Evidence" pp.42-58)

45. The reasons behind the common law rule as to voluntariness have never been clearly stated, so far as I am aware. In his History of the Criminal Law, Stephen says⁽⁷⁾:-

"..... (torture) was never recognised as a part of the law of England .......... There is, however, proof that it was practised for the purpose of obtaining evidence under Henry VIII and his three children and also during the reigns of James I and Charles I, and that not only in political cases, but also in the case of common crimes;"

I presume what Stephen had in mind was instruments such as the rach and the thumb-screw. No doubt torture inflicted by such means resulted in many guilty persons confessing to crimes which they had committed. But the tragedy of such a system was that many innocent persons also confessed to crimes which they had not committed simply because their judgment became warped, and death or imprisonment appeared to them at the time to be preferable to suffering, for an indefinite period, the pain inflicted by the torture instruments.

46. There appears to be little doubt but that, in formulating the rule as to voluntariness, the judges were endeavouring to ensure, so far as possible, that no untrue confession would be admitted in evidence.

47. At the beginning of the 19th century, the rack, the thumb-screw and such-like instruments had long since been abolished; but, there were still hundreds of offences in the criminal calendar which were punishable by death. It was particularly important in those days that the courts did everything in their power to ensure that no untrue confession was admitted in evidence. After all, there were no disciplined and well-trained police forces throughout the country; and furthermore, prior to 1898, an accused person could not give evidence in his own defence. He was precluded from testifying as to the circumstances in which the alleged statement was made. It is hardly surprising that some judges went to ridiculous lengths and excluded confessions which today would have been admitted in evidence. The pendulum had certainly swung to the opposite extreme. This, no doubt, was what prompted Baron Parke to say in Baldry⁽⁸⁾:-

"I confess that I cannot look at the decisions without some shame when I consider what objections have prevailed to prevent the reception of confessions in evidence ...... I agree ....... that the rule has been extended quite too far, and that justice and common sense have, too frequently, been sacrificed at the shrine of mercy."

48. Logically, of course, circumstances tending to show that a statement is "involuntary" should go to weight rather than admissibility. But, it has been said that juries are not to be trusted, even under the most careful direction, to give little or no weight to statements obtained under duress. If that is so, it is a sad commentary on our much-vaunted jury system.

49. At any rate, whatever the reasons are for the retention today of the common law rule as to voluntariness, the law has been clear since 1914; with the result that even although a judge may feel that a confession is true, if the prosecution have not satisfied him beyond reasonable doubt as to its voluntariness, it is not admissible in evidence.

50. Taylor, in his famous text-book on evidence, says⁽⁹⁾:-

"..... all reflecting men are now generally agreed that, deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in the law, their value depending on the sound presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience."

Nevertheless, there continue to be two schools of thought as to how far a person should be permitted to incriminate himself. When crime rates are low, there are those who feel that an accused person has some kind of constitutional right not to be questioned at all either before or after arrest. This approach to the investigation of crime might be summed up in the words: "Let the prosecution catch him if they can; but, if the criminal gets away, good luck to him".

51. There are others (and I am one) who feel that the administration of justice is not a game; that police officers, counsel, judge and jury, are all, in one way or another, engaged in a most serious inquiry concerning the guilt or otherwise of the person accused; and that, in framing our system of checks and balances, we should have some regard to the conditions under which we live.

52. Be that as it may, for a great many years, it has been considered right and proper in England and Hong Kong that, at some stage, the person who has aroused police suspicion should be warned that he need not say anything further but that, if he does choose to do so, whatever he says may be given in evidence; and the question has always been: at what stage should such a warning be given?

53. In 1912, Lord Alverstone received a letter from the Chief Constable of Birmingham. In that letter, the Chief Constable referred to the fact that, on the same circuit, one judge had censured a police officer for having cautioned a prisoner whilst another judge had censured another police officer for having omitted to do so. On each occasion the court was concerned with the admissibility in evidence of a statement made by an accused person.

54. As a result, the judges of the King's Bench Division met and four "rules" were formulated and forwarded to the Home Office for the guidance of the police. In R. v. Voisin⁽⁴⁾, these rules were described by the Court of Criminal Appeal thus:-

"...... these rules have not the force of law; they are administrative directions, the observance of which the Police authorities should enforce on their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners contrary to the spirit of these rules may be rejected as evidence by the Judge presiding at the trial.

55. It seems to me that the most important word in that passage is "may". As my brother Mr. Justice Huggins says, the "rules" never were anything more than advice. Lord Alverstone, no doubt, was conscious of the fact that there was a difference of approach among the judges of the King's Bench Division; and he was really saying to the Chief Constable:- "Tell your officers that, if they follow these precepts, they cannot be faulted no matter who happens to be presiding over the court". He was not purporting to alter the law.

56. In 1918 the judges' rules were increased to nine; and they remained in that form until January, 1964, when a new set of rules were formulated and published in Home Office Circular No.31/1964.

57. The Judges Rules do not apply in a number of common law jurisdictions; and, in my view, it is an open question whether they should be referred to at all in a Hong Kong court when a question arises as to whether a statement made by an accused person to a person in authority should, or should not, be admitted in evidence. They have been referred to on many occasions in the past; but the point has never been taken as to whether it was proper for counsel to submit to a Hong Kong court that there had been a "breach" of one of "the Judges' Rules". The Judges of the Supreme Court of Hong Kong have never formulated any rules; and the English "rules", not being matters of practice or procedure, are not applicable to Hong Kong by virtue of s.9(3) of the Criminal Procedure Ordinance. If it were otherwise, the "old" English rules would have ceased to apply in Hong Kong when the "...(illegible)" rules were published in England in January, 1964.

58. My main objection to the Judge's Rules is that they almost invariably tend to cloud the issue which the court has to decide. The only question which calls for a decision is: "Did the accused make the statement voluntarily in the technical sense in which this word is used in this branch of the law?" But, more often than not, the court finds itself interpreting the Judges' Rules as if they were statutory provisions, deciding whether there has been a breach of such rules, and deciding whether to exercise its discretion. I have even heard counsel solemnly submit that, in the event of the court admitting the accused's statement despite a breach of the Judges' Rules, it should "apply the proviso!". If the rules are nothing but advice to the police, it should seldom, if ever, be necessary for courts of law to refer to them at all in their judgments.

59. For myself, I think that the time has come for the judges of this court to resolve that, whatever may have been the practice hitherto, questions regarding the admissibility of statements made by accused persons to police officers, or other persons in authority, shall be decided in accordance with the law applicable there to without reference to any "Judges' Rules" - old or new.

60. Rule 3 is the rule which most frequently comes up for discussion in the courts. No doubt the police endeavour to follow this rule; but, at times, they must find it extremely difficult to do so. Conditions here are quite different from those prevailing in England. Can one imagine a Hong Kong police officer, who has questioned an unemployed person in a squatter hut or a Resettlement Estate, saying to the suspect, who may have a long list of previous convictions and perhaps associations with Macau or Taiwan, (with which territories Hong Kong has no extradition treaties):- "I intend to check your story; and I may find it necessary to ask you some further questions in a few days' time; therefore, I should be obliged if you would inform me where I may contact you!!"

61. Under s.50(1) of the Police Force Ordinance, a police officer may arrest any person whom he reasonably suspects of being guilty of an offence. But his reasonable suspicion may have been induced by reports from informers whom he is unable to call as witnesses. The result is that the officer may have no admissible evidence at all against the suspect when he decides to arrest him. I suspect that, in many cases, much of the questioning which would, in similar circumstances, be conducted by English police officers in the homes and offices of suspects, of necessity is conducted by Hong Kong police officers in the police station.

62. It is really quite absurd that police officers should be forced into the position of having to testify in courts of law that they "invited" the accused to accompany them to the police station. They may, or may not, have spoken to the accused in terms which could conceivably be interpreted as "an invitation". But, clearly, such an "invitation", however communicated to the accused, is not one which he is usually in a position to refuse. More often than not the accused is under restraint. The accused knows it; and the police know it.

63. It is sometimes said that lawful restraint, per se, must be presumed, in every case, to operate as an "inducement" to make a statement and that this is the reason for Rule 3 of the Judges Rules. It is true that, if a person knows that he is under suspicion, his reaction may well be: "Let me explain." To himself he may say: "I must try to talk my way out of this predicament." If he has in fact committed an offence and he believes that it is pointless to try to dispute it, his attitude to the police may be: "A fair cop; I may as well come clean." Alternatively, the suspect may be innocent of the offence of which he is suspected and he may wish to put his cards on the table at the earliest opportunity. A great deal depends upon the temperament of the suspect, on how much evidence he thinks the police have, and on many other considerations. But whether the suspect has or has not committed an offence, why should he be discouraged from saying what he wishes to say? Surely, the only possible reason is that he might say something which eventually proves to be self - incriminating. But it may also be very much in a person's interests to make a statement at the earliest possible opportunity.

64. The fact that, for some reason or other, a person, may wish to speak as soon as he is under restraint is, in my view, no reason for discouraging him from doing so. If there is an "inducement" to speak at such a time it is not the kind of inducement which the Judicial Committee of the Privy Council in Ibrahim⁽¹⁾ had in mind. The words of Lord Sumner at p.609 make it clear that what their Lordships had in mind was inducement as a result of "fear of prejudice or hope of advantage exercised or held out by a person in authority." Provided the prosecution proves that the police did not do or say anything to the suspect which could reasonably have resulted in his being induced to make a statement because of fear of prejudice or hope of advantage, any statement made by him at such a time is admissible in evidence and is worthy of the most careful consideration by the Court, should the suspect ever be brought to trial.

65. There are those who feel that the police are not to be trusted and that courts of law should presume that the police will bring pressure to bear upon a suspect as soon as they have him inside the police station. There are also those who feel that in any event it is "unsporting" for a court of law to admit self-incriminating evidence. It may be that the judges in England had these considerations in mind when they framed rule 3 in 1912. If so, all I can say is that I find myself in total disagreement with that approach. Every witness, whether he be a police officer or an accused person, is entitled to be heard by a tribunal which is not only completely unbiassed but which has not fettered itself by "rules" affecting its decisions on credibility. As regards the "unsporting" viewpoint, as I have already said, the administration of justice is not a game.

66. In Cornelius⁽⁴⁾, the High Court of Australia said:

"'It would be a lamentable thing if the police were not allowed to make inquiries and if statements made by prisoners were excluded because of a shadowy notion that if prisoners were left to themselves they would not have made them' (per Darling J. R. v. Cooke (1918) 4 T.L.R. 515 at 516). A statement need not be spontaneous or volunteered in order to be voluntary. But, on the other hand, no doubt can be felt that interrogation may be made the means or occasion of imposing upon a suspected person such a mental and physical strain for so long a time that any statement he is thus caused to make should be attributed not to his own will, but to his inability further to endure the ordeal and his readiness to do anything to terminate it. The difficulty of defining a standard in such a matter is necessarily almost insuperable, and, perhaps for this reason, it has been found necessary by the Courts in England on grounds of policy to adopt the practice which there prevails of setting aside convictions if the rules made by the Home Office on the advice of the judges have been ignored".

67. With the greatest respect, I would have thought that in each case the question is one of fact, that is to say: Was this statement, alleged to have been made by this particular accused in given circumstances, a voluntary statement? I do not see why it should be assumed that courts are incapable of resolving such an issue. There is no "standard". Each case has to be considered on its own facts; and courts of law have to be trusted to do their job properly.

68. Furthermore, it seems to me that, in deciding whether a statement is, or is not, voluntary, courts tend to place far too much emphasis on whether the accused has been "cautioned". What advantage is there in cautioning a suspect if this is followed by a threat that he will receive a severe beating if he does not talk?

69. In this case, the accused was clearly under arrest. He was an escaped prisoner. He must have known that he would not be released, and that he would be returned to Tai Lam Chung Prison. As regards the police, whatever the position may have been when they took the accused to the police station, it is difficult to believe that they had not become aware that the accused was an escaped prisoner soon after his arrival at the police station.

70. We do not know why the police decided to question the accused about outstanding offences. One reason may have been that the modus operandi of the person who committed those offences was the same as the modus operandi adopted by the accused on previous occasions.

71. The accused said that he was beaten up and forced to copy a prepared statement; and the trial judge, having heard both sides, rejected the accused's allegations. The only evidence as to the form of the questions put to the accused came from D.P.C. 2198, who said in evidence:-

"I read records of offences in a file and I asked him had he done any of those offences."

For myself, I can see nothing in the evidence to support the view that the accused was improperly induced to make a statement. The police did not attempt to adduce evidence of what the accused said in reply to questions before caution, presumably because they felt that they were precluded from doing so because of rule 3 of the Judges' Rules. Be that as it may, they then cautioned him; and, after caution, the accused wrote out his own statement. There was no evidence that there was any further questioning after caution. In my view there was no breach of rule 3; and there was no necessity for the judge to refer to this rule in his judgment. The statement was clearly a voluntary statement and was properly admitted in evidence.

(1) (1914) A.C. 599.

(2) (1887) 13 V.L.R. at 474

(3) (1936) Argus L.R. 519

(4) (1936) 55 C.L.R. p.235

(5) (1947) 47 S.R. (N.S.W.) p.284

(6) (1950) 82 C.L.R. p.133

(7) Vol.1 p.222

(8) (1852) 2 Den C.C. 430.

(9) Vol. 1 p.544

(4) (1918) 13 C.A.R. p.89 at p.96

(4) (1936) 55 C.L.R. at 251/2.