Chan Muk-ching v. The Queen

CACC000444/1977

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Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 12th September, 1977.

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JUDGMENT

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Huggins, J.A.:

Once again we are faced with the vexed question What is the extent of a judge's discretion to exclude admissible evidence in a criminal case? The matter arises in this way. The Appellant was charged with robbery. There is no doubt but that a robbery occurred on 2nd October 1975. Employees of a bank had collected a large quantity of cash from the Housing Authority estates at Wah Fu and Wong Cheuk Hang and were conveying it in a motor-car along Nam Fung Road when the car was rammed by another car. Several persons jumped from this other car, threatened the bank employees with a variety of weapons and suspected weapons and then made off with the cash, which was contained in four brief-cases. None of the robbers was identified by the bank employees but the prosecution relied upon evidence of a finger-print as establishing that the Appellant was one of them. Further, as I understand it, the prosecution suggested that the position of the finger-print indicated that it must have been made by a particular robber whose actions were described in some detail. This man came to the off-side of the car with a knife and a hammer in his left hand. He put his right hand through the open front window, unlocked the rear door and then opened the rear door also with his right hand. The evidence was that he then removed three of the brief-cases from behind the rear seat with his right hand, transferring one of them to his left hand (in which, apparently, he still retained the knife and the hammer). The finger-print was alleged to be that of his left ring finger and was found on the inside of the glass of the off-side rear door near the top. Unfortunately the evidence did not reveal with certainty the direction in which the print was pointing: the first photograph in Exhibit P5 suggests that the print was pointing upwards, but the officer who took the photograph was not asked to confirm that this reproduction was the right way up. Accordingly we cannot rule out the possibility that the print was made from outside the car at a time when the window was open. Nevertheless, there was unchallenged evidence that the rear window was wound up at the time of the robbery.

2. The main contention on behalf of the Appellant was that finger-prints used for comparison had been taken from the Appellant in circumstances of excessive violence. It was conceded that by virtue of s.59 of the Police Force Ordinance it was legitimate for the police to take the Appellant's finger-prints after his arrest and that it would have been lawful for them to use no more force than was necessary to do so. However, the allegation was that the Appellant was subjected to brutal assaults both before and after the taking of the finger-prints and it was submitted that if that allegation was true the taking of those prints was unlawful.

3. I do not understand it to be contended that the evidence of the finger-prints was inadmissible but only that the judge ought to have excluded the evidence in the exercise of his discretion or at least to have enquired into the facts which, it is said, ought to have been the basis of the exercise of his discretion. The view taken by the learned judge was that he had no discretion to exclude the evidence and accordingly he declined to hold a voire dire. With respect I think that that went too far and counsel for the Crown concedes that it was wrong. The material part of s.59 of the Police Force Ordinance reads as follows:

"It shall be lawful for any police officer to take the .. finger-prints ... -

It is not contested that the Appellant had been so arrested but Mr. Bernacchi argues that if a police officer uses unwarranted force in taking finger-prints he loses the benefit of this section and the evidence ought to be excluded. I do not think the officer does lose the benefit of the section, although he lays himself open to both criminal and civil proceedings for an unlawful assault. A distinction must be drawn between the fact of taking the finger-prints and the manner in which they are taken. A defendant who has been arrested by a police officer acting under a lawful warrant but with the use of excessive force has no right to be released.

4. The discretion to exclude admisible evidence has been stated in three ways:

Mr. Bernacchi submits that Wong Kam-ming v Reg. was wrongly decided and that Jeffrey v Black 1977 The Times, July 15, in which judgment was given only two days after ours is inconsistent with it. No doubt Mr. Bernacchi can obtain some comfort from the later case, but it does not go as far as he suggests. As McMullin, J. pointed out in argument, the Lord Chief Justice said that the discretion to exclude was open

"if the police not only had acted without authority, but had also been guilty of trickery, or had misled someone, or had been oppressive or unfair, or in other respects had acted reprehensively". (The emphasis is mine).

Here the police did not act without authority.

5. Even if Wong Kam-ming v Reg. was wrongly decided (and I have not been persuaded that it was), I am satisfied that a discretion in the third form cannot be supported. If that case was rightly decided then I am in no doubt but that it would have been an error to exclude the finger-prints of the Appellant here. The probative value of the print was enormous and in my view the "prejudice" would have been nil even had the Appellant made good the very serious allegations he levelled against the police through his counsel. If the true test of "what is in the interests of justice" be whether the admission of the evidence would render the trial unfair, I am equally satisfied, again assuming all the facts in favour of the Appellant, that there could be no possible unfairness in admitting evidence which the police had lawful authority to obtain. To hold otherwise would be to allow the misuse of the law of evidence to punish the police for conduct for which the law has provided other ample remedies. As there was power to use reasonable force to take the Appellant's finger-prints, it cannot fairly be said in the circumstances of this case that to admit the evidence would be "offering a positive inducement to authorities to proceed by irregular methods" and I must deny any suggestion that by holding the evidence of the finger-prints to be admissible I will be associating myself with any impropriety of which the police may have been guilty. The position might have been different in England, where the police do not have the same powers of taking finger-prints as have the Royal Hong Kong Police Force: see Callis v Gunn (1963) 48 Cr. App. R. 36.

6. The second ground of appeal was that the finger-print could not have been made by the Appellant, even if he was the robber who removed the three brief-cases, by reason of the position of the print on the car. It is sufficient to say that the unlikelihood, let alone the impossibility, of that robber's having left the print at the time of the robbery has not been demonstrated.

7. Next it was submitted that the trial judge failed to appreciate the disparities between the Appellant's finger-prints and that found on the vehicle. No disparity was proved. Then complaint was made that a further set of finger-prints taken from the Appellant was not placed before the court below. I see no reason why the prosecution should have produced those prints. It was open to the defence to call for them if they wished and to make whatever they could of any failure to comply with a request for them.

8. Finally it was contended that the presence of a finger-print of the Appellant on the car was insufficient to establish his presence at the time of the robbery. Mr. Bernacchi argued that the print could have been impressed there at any time during the previous three days. It is, perhaps, surprising that the prosecution did not deal with this matter more fully. One would have expected an attempt to be made to prove that the Appellant was never near the car at any time other than that of the robbery. What was proved was that the car belonged to the bank and that it was kept for the purpose of conveying cash from place to place. Outside working hours it was in the custody of the driver, who kept it at his home in Yu Kong Village near Aberdeen. There he kept the doors locked. During working hours, when not in actual use, the car was parked outside the bank at Quarry Bay. Usually the driver locked the doors and they were looked on the day of the robbery while the car was at Quarry Bay. However, the driver was not sure whether they were locked when the car was parked at Wong Cheuk Hang. At Wah Fu he did not leave the car that day. In these circumstances it was certainly possible that the Appellant could have had access to the inside of the car and have left this finger-print before the robbery. The burden on the Crown was not to prove that it was impossible for that to have happened but that there was no reasonable possibility that it had happened. In my view the jury were entitled to find, as they must have done, that the print was made at the time of the robbery: any other conclusion would involve a coincidence which they were justified in rejecting as fanciful. The Appellant had the right to remain silent, but I agree with counsel for the Crown that the evidential burden had been transferred.

9. I would dismiss the appeal.

12th September 1977.

Representation:

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Coram: Huggins & Pickering, JJ.A. & McMullin, J.

Date of Judgment: 12th September, 1977.

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JUDGMENT

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Pickering, J.A.:

In the recent case of Cheung Kwan-sang and Wong Kam-ming v. The Queen⁽¹⁾ it fell to a differently constituted Court of Appeal - differently constituted in that whilst the President and the other member of this Court were also members of that Court, I was not and the Court was presided over by the learned Chief Justice - to consider the question of whether there exists a general discretion to exclude admissible evidence in circumstances in which it appears to the Court that it would be unfair or oppressive to admit the evidence. By a majority, the Court in that case, following Noor Mohamed v. The King⁽²⁾, decided that the only discretion to exclude evidence is that which arises where the prejudicial effect of such evidence exceeds the probative value.

2. The issue is one of considerable complexity bedevilled as it is by considerations of principle and public policy and obfuscated by a clash of views in this and other jurisdictions. It is a matter of some relief that the warm invitation extended by the Court in Cheung Kwan-sang and Wong Kam-ming v. The Queen to take the issue to Her Majesty's Judicial Committee of the Privy Council, has been acted upon and to know that guidance from the ultimate appellate level may well shortly provide the final authoritative approach to this thorny problem. In the meantime the issue has again arisen in the case at bar and again the learned President and my brother McMullin find themselves ranged at different ends of the intellectual arena. It is my formidable responsibility - for there can be no half-way-house-to align myself with one or other of the stated views and that in the uncomfortable knowledge that if at the end of the day I find myself disposed to the wider view that will result in conflicting majority decisions of this Court upon the issue. In discharging my task I have looked for and found assistance in the very lucid judgments of the learned President of this Court and of my brother McMullin in Cheung Kwan-sang and Wong Kam-ming v. The Queen⁽¹⁾ and in their draft judgments in the instant case which I have had the benefit of reading. I have however found that assistance less complete than I could have wished, by reason of the very persuasiveness of all four judgments. Initially I found myself in the position where, to adapt the words of the old song, I could have loved either (view) loved I not the other more.

3. The scope of the enquiry in Cheung Kwan-sang and Wong Kam-ming v. The Queen was wider than that with which we are now engaged in that in the former case the Court was concerned to enquire (inter alia) whether R. v. Hammond⁽³⁾ was correctly decided and should be followed. With the question whether it is permissible, upon an enquiry into the admissibility of a confessional statement, to cross-examine an accused as to the truth of the statement, we are not now concerned. Our enquiry is as to the existence or otherwise of a general discretion to exclude admissible evidence in cases in which it appears to the Court that it would be unfair or oppressive to admit it. Since the majority decision of this Court in Cheung Kwan-sang and Wong Kam-ming v. The Queen, the Court of Appeal in England, in Jeffrey v. Black⁽⁴⁾ has had further occasion to deal with the matter and to that decision I will return.

4. The existence or otherwise of the alleged general discretionary power has been considered in a number of cases during the last three decades. In Noor Mohamed v. The King⁽²⁾ what was in issue was the admissibility of evidence of similar acts. In that case Lord du Parcq said:-

"It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust, to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge."

5. In Kuruma v. The Queen⁽⁵⁾ the principle was in my view expanded when Lord Goddard, C.J., said:-

"No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasized in the case before this Board of Noor Mohamed v. The King, and in the recent case in the House of Lords, Harris v. Director of Public Prosecutions. If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out. It was this discretion that lay at the root of the ruling of Lord Guthrie in H.M. Advocate v. Turnbull."

6. That expansion was accepted in Callis v. Gunn⁽⁶⁾ Lord Parker, C.J., saying:-

"That is dealing with admissibility in law, and as Lord Goddard C.J. points out, and indeed as is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle."

7. Two cases which intervened between Kuruma and Callis v. Gunn were R. v. Court⁽⁷⁾ and R. v. Payne⁽⁸⁾ in both of which it was held that the trial judge should have exercised his discretion to exclude admissible evidence.

8. In another 1962 case, Rumping v. Director of Public Prosecutions⁽⁹⁾, Ashworth, J., said:-

"There is of course ample authority for the proposition that a judge has an overriding discretion to exclude evidence even if such evidence is in law admissible."

9. In Myers v. Director of Public Prosecutions⁽¹⁰⁾, Lord Reid said:-

"In argument the Solicitor-General maintained that, although the general rule may be against the admission of private records to prove the truth of entries in them, the trial judge has a discretion to admit a record in a particular case if satisfied that it is trustworthy and that justice requires its admission. That appears to me to be contrary to the whole framework of the existing law. It is true that a judge has a discretion to exclude legally admissible evidence if justice so requires, but it is a very different thing to say that he has a discretion to admit legally inadmissible evidence."

10. That constituted a very clear recognition, although obiter, in the House of Lords, of the discretion which we are considering.

11. In King v. Reg.⁽¹¹⁾, the court, although declining to interfere with the exercise of the judge's discretion - he having admitted the evidence - clearly recognised the existence of a discretion to exclude evidence obtained as the result of a search for which there was no legal justification.

12. In H.M. Advocate v. Turnbull⁽¹²⁾, a Scots case, Lord Guthrie excluded documents which had been illegally obtained, on account of unfairness to the accused since the actions of the police were not justified by any circumstances of urgency but were deliberately undertaken in order to obtain from the accused's private papers evidence on which further charges against him might be founded.

13. In Northern Ireland, in Reg. v. Murphy⁽¹³⁾, it was again held that the court has a discretionary jurisdiction to reject evidence which, though admissible, would operate unfairly against the accused. In that case MacDermott, L.C.J., said:-

"Another proposition of law must now be examined. It is the proposition that Mr. Kelly, for the appellant in this appeal, put in the forefront of his argument and it may be stated thus - In a criminal trial the court has a discretion to reject admissible evidence which might operate unfairly against the accused. We consider that this also is established law and that its scope is not confined to statements made by the accused whether by way of confession or otherwise. It is a principle that has been repeatedly recognised in recent times."

14. Later in his judgment he quoted the direction given to the court below by the Judge Advocate which was in these terms:-

and commented that the court considered that direction to be correct.

15. Two Australian cases in which the like discretion has been held to exist are The Queen v. Ireland⁽¹⁴⁾ and R. v. Demicoli⁽¹⁵⁾. To the former, a decision of five judges of the High Court of Australia, I will revert.

16. Most recently, indeed only two days after delivery of the judgment of this Court in Cheung Kwan-sang and Wong Kam-ming v. The Queen⁽¹⁾ - the Court of Appeal in England in Jeffrey v. Black⁽⁴⁾, a case in which the police, whilst searching a man's dwelling in connection with the alleged theft of a sandwich found cannabis there, held that the justices had not been justified in refusing to admit that evidence. However Lord Widgery, L.C.J., having held that although the justices had been wrong in holding the evidence of the finding of cannabis actually inadmissible, said that that was not the end of the matter "because the justices, like any other criminal tribunal in England, had a discretion to decline to allow evidence to be called by the prosecution if it were thought that it would be unfair or oppressive to admit it". The Lord Chief Justice added that "it was a discretion which every criminal judge had all the time in respect of all evidence tendered by the prosecution."

17. There is thus a not inconsiderable body of authority at different levels and in various jurisdictions to the effect that there does indeed exist a general discretion to exclude admissible evidence in circumstances in which it appears to the Court that it would be unfair or oppressive to admit it. On the other hand there are cases, probably the latest of which is the majority decision of this Court in Cheung Kwan-sang and Wong Kam-ming v. The Queen, which deny the existence of any such general discretion. Thus in the British Columbian case of R. v. Sigmund, Howe, Defendaand Curry⁽¹⁶⁾, Davey, C.J.B.C., said:-

18. It is to be observed that the disclaimer of knowledge of any other authority than Callis v. Gunn⁽⁶⁾ involved a nescience of R. v. Court⁽⁷⁾, R. v. Payne⁽⁸⁾, Rumping v. Director of Public Prosecutions⁽⁹⁾, Myers v. Director of Public Prosecutions ⁽¹⁰⁾, H.M. Advocate v. Turnbull⁽¹²⁾, and Reg. v. Murphy⁽¹³⁾ all decided well before the disclaimer was made. It is legitimate to doubt whether, had these other authorities been brought to the attention of Davey, C.J.B.C., he would have turned his back upon the broader view in which event the narrow majority decision in The Queen v. Wray⁽¹⁷⁾ could not have derived support from what was at that time the only Canadian case in which a choice had fallen to be made between the two views.

19. To put that last remark in context I must consider The Queen v. Wray in which the Canadian Supreme Court, by a minimal majority of 4:3, likewise adopted the narrower view that the only discretion to exclude admissible evidence was that limited discretion recognised in Noor Mohamed v. The King⁽²⁾. The leading judgment in The Queen v. Wray was that of Martland, J., who said:-

"I turn next to the statement that a trial Judge in a criminal case has a discretion to reject evidence, even of substantial weight, if its admission would be unjust or unfair to the accused. The origin of this proposition is to be found in the Kuruma case, cited above. In that case the Judicial Committee of the Privy Council held that illegally obtained evidence was nevertheless legally admissible against an accused, and affirmed the conviction of the accused based upon such evidence. Lord Goddard did, however, say, in the course of his reasons, at p. 204:

"He supported his statement by reference to the judgment of the Privy Council in Noor Mohamed v. The King, [1949] A.C. 182, and that of the House of Lords in Harris v. Director of Public Prosecutions, [1952] A.C. 694. In both those cases the matter in issue was as to the admissibility of evidence of other prior offences, and it was in relation to the use of that kind of evidence that the frequently quoted dictum of Lord du Parcq, in the Noor Mohamed case, supra, was stated."

20. I found myself quite unable to agree that in citing the Noor Mohamed and Harris cases Lord Goddard was confining his dictum to the admissibility of evidence of other prior offences. It is I think instructive to cite a little more of Lord Goddard's judgment that was cited by Martland, J. The whole passage from which the extract cited by Martland, J. was taken, runs as follows:-

"No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasized in the case before this Board of Noor Mohamed v. The King, and in the recent case in the House of Lords, Harris v. Director of Public Prosecutions. If, for instance, some admission of some piece of evidence, e.g. a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out." (The emphasis is mine.)

21. In that passage the discretion was stated in the widest terms and the reference to Noor Mohamed v. The King⁽²⁾ and Harris v. Director of Public Prosecutions⁽¹⁸⁾ was by way of illustration only. That the reference was not intended to be exclusive can be readily seen not only from the use of the word "always" but also from the example given by Lord Goddard of evidence being obtained by a trick, a circumstance which has nothing whatever to do with evidence of prior offences. In my view Kuruma went, and was intended to go, considerably further than Noor Mohamed. Martland, J. went on to say that the allowance of admissible evidence relevant to the issue before the court and of substantial probative value might operate unfortunately for the accused, but not unfairly. I hope to be able to demonstrate when I come to consider principle that it can operate both unfortunately and unfairly. Martland, J. went on to say:-

"It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the Court is trifling, which can be said to operate unfairly."

22. As it seems to me the effect of that passage is to shrink the principle enunciated in Kuruma and followed in the various other cases which I have cited, and to revert to the narrower principle of Noor Mohamed which principle was quoted in Kuruma purely as an example of the much wider discretion held in that case, to exist. Nonetheless this dictum of Martland, J. was cited with apparent approval in the majority judgment of this Court in Cheung Kwan-sang and Wong Kam-ming v. The Queen⁽¹⁾ so that the decision in that case rested largely upon a dictum which I can only regard as fallacious.

23. I am, with respect obliged to dissent from the confidently asserted statement in the majority judgment in Cheung Kwan-sang that:

"The principle is clear: in a criminal case the Court has a discretion to exclude admissible evidence where the probative value of that evidence is outweighed by the prejudice which would result from its admission."

24. On the weight of authority it seems to me that the principle is wider than that and is that there exists a general discretion to exclude admissible evidence in circumstances in which it appears to the Court that it would be unfair or oppressive to admit the evidence.

25. I have thus far discussed authority and it may be apposite to turn to principle. Accepting that the Court is primarily concerned to ensure that an accused person is convicted only upon relevant and admissible evidence it still cannot, in a grave case, shut its eyes to the manner in which that evidence was obtained. The administration of justice, of which a fair trial is but one very important facet, should burn like a pure flame but that flame does not come into existence at the door of the courtroom in an act of spontaneous combustion. It had, or should have had, its existence throughout the enquiry which led to the courtroom and if during that enquiry it was quenched by behaviour on the part of the enquirers so excessive that it ought not in consequence to be relied upon by the Crown, that excess is

Representation:

B. Bernacchi, Q.C. 7 R. Leung (W.K. Poon & Co.) for appellant.

I.H. Polson for Crown/respondent

(1) Cr. App. 1049/1976

(2) 1949 A.C. 182

(3) 1941 28, Cr. App. R.84

(4) The Times, July 15th, 1977

(5) 1955 A.C. 197

(6) 1964 1.Q.B. 495

(7) 1962 Crim. L.R. 697

(8) 1963 1.W.L.R. 637

(9) 1962 C.A.R. 397

(10) 1965 A.C. 1009

(11) 1968 2 All E.R. 610

(12) 1951 S.C.(J.) 96

(13) 1965 N.I. 138

(14) (1970) 44 A.L.J.R. 263

(15) (1971) Qd. R. 358

(16) 1968 1.C.C.C. 92 60 W.W.R. 257

(17) 1970 4.C.C.C. 1

(18) 1952 A.C. 694

(19) 1950 S.C.(J.) 19

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Coram: Huggins & Pickering, JJ.A. & McMullin, J.

Date of Judgment: 12th September 1977.

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JUDGMENT

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McMullin, J.:

I take the view that the only ground of appeal which is of substance is that raised as the first ground in the memorandum which reads as follows:

It was alleged in this case that police officers, purporting to act within their powers under section 59 of the Police Force Ordinance, took fingerprints of the appellant, who was not agreeing to give them voluntarily, by the use of force which amounted to extreme, and, indeed, criminal, brutality. The evidence thus obtained was not merely important but was in fact vital to the proof of the Crown's case. A single fingerprint upon the inner surface of the rear window of a motor car from which a very large amount of cash had been taken by several robbers was the only evidence to connect the appellant with that robbery. This print had been found by the police on the day of the robbery.

2. Mr. Bernacchi for the appellant concedes that the situation in Hong Kong differs from that in England inasmuch as in Hong Kong there is positive legal cover for the taking of fingerprints whereas in England the matter is governed by common law and an accused person need not give prints if he does not wish to. Counsel invokes a number of authorities among which he relies strongly upon two. Firstly there is the case of Callis v. Gunn⁽¹⁾ a case decided in 1963; secondly, there is a very recent decision of the Court of Appeal (Criminal Division) in Jeffrey v. Black a short report of which appears in The Times for July the 15th 1977. In the former case Justices had dismissed an information in a case in which the only evidence against the appellant consisted of fingerprints found upon a gas meter which had been broken and from which money had been extracted. The charge was dismissed by the Justices on the basis that the fingerprints of the appellant had been taken by the police without first duly warning the appellant that he had a right to refuse to give them. The Court of Appeal held that the Justices had wrongly exercised their discretion to exclude the evidence of the police officer concerned and the case was sent back for re-hearing. The learned Lord Chief Justice, Lord Parker, giving the judgment of the court said (page 40):

"In my judgment, fingerprint evidence taken in these circumstances is admissible in law subject to this overriding discretion. That discretion, as I understand it, would certainly be exercised in excluding the evidence if there was any suggestion of it having been obtained oppressively, by false representations, by a trick, by threats, by bribes, anything of that sort."

In the present case no evidence was given as to the manner in which the fingerprints of the appellant were taken but counsel for the appellant in the court below submitted that they had been taken as a result of a course of conduct which he purported to describe in considerable detail and which, if true, disclosed that the police had behaved outrageously immediately before the taking of the prints and that indeed the prints had been obtained only as a result of this treatment. Counsel then asked that this matter should be tried as a separate issue. The learned judge however found that he had no discretion to exclude the fingerprints and refused to equate the situation then presonted to him with the situation which arises in cases in which an accused person. challenges the admissibility of a statement on grounds that it has been taken by means which render it involuntary. Mr. Bernacchi's contention is that if the alleged mistreatment had occurred then the behaviour of the police was such as to exceed the authority vested in them by section 59 so that, in effect, they were unlawfully taking the fingerprints. Their position therefore would be considerably more reprehensible than the situation of the police in Callis v. Gunn⁽¹⁾ who merely took the prints without informing the appellant of his rights as a citizen. A somewhat similar problem was presented to the Court of Appeal in Jeffrey v. Black⁽²⁾. In that case a man had been arrested for stealing a sandwich from a public house and the officers who arrested him without his consent and without first obtaining a search warrant entered a bed-sitting room which he occupied and found therein a quantity of cannabis. He was charged under the Misuse of Drugs Act, 1971. The Justices before whom the case was taken having heard that the defendant had not given the police officers permission to search his premises held that the evidence thus obtained could not be used against him. On appeal once again the Court of Appeal found that the discretion of the Justices had been improperly exercised and the case was returned for re-hearing. In The Times Report the learned Lord Chief Justice, Lord Widgery, is recorded as having used language to the following effect:

It is said that up to the point at which they exceeded their authority (if such was the case) the police were acting lawfully in taking the prints and that this distinguishes the present case from Jeffrey v. Black⁽²⁾. I can see the attraction of that argument but the point for the defendant is that the cover of lawful authority had been totally dissolved by the use of force which placed the act of the police in the realm of criminal liability and that it would be artificial and disingenuous to suggest that the evidence thus obtained should be regarded as the fruit of some notional part of the total force alleged to have been used which might be regarded as not exceeding the bounds of legitimate force.

3. In CHEUNG Kwan-sang and WONG Kam-ming v. The Queen⁽³⁾ question of whether such a general discretion to exclude admissible evidence exists was very recently considered by the appellate court of this territory. In that case the primary question at issue was whether admissions made by an accused person upon the hearing of the special issue as to admissibility of a statement could be introduced as substantive evidence upon the general issue even although the statement had been excluded. Underlying that issue was the more fundamental question as to the propriety of asking an accused person in cross-examination, upon that special issue, whether he admitted that the statement whose validity was challenged was in fact the truth. The Court of Appeal in England in the case of R. v. Hammond⁽⁴⁾ had said that that question was a relevant question on the issue of voluntariness since the answer thereto might go to the credit of the accused person upon the separate issue. In CHEUNG Kwan-sang and WONG Kam-ming v. The Queen⁽³⁾ the majority of the court held with the Court of Appeal in Hammond⁽⁴⁾ that the question was a permissible one and further that any admission made as a result of the question being put was admissible against the appellant on the trial of the general issue. The court also held that there was no general discretion to exclude inadmissible evidence which went wider than the principle enunciated in Noor Mohamed v. R.⁽⁵⁾. The court took the view that the only discretion in the matter was geared to the consideration as to whether the prejudicial effect of the admission of the evidence upon the case of the accused would outweigh the probative value of the evidence itself. The court rejected the idea that there was a wider discretion which could be exercised by a judge in excluding evidence on the basis that he thought that it was in some general sense unfair to admit it. Since there is some hope that the decision in that case may receive consideration at the ultimate appellate level I prefer, as the dissenting judge on that occasion, to add as little as may be necessary to what I then said by way of applying to the present case the principles which were debated at length before us in the earlier case in the sense in which I then sought to interpret them. Firstly, I advanced the view that we should depart from the decision in Hammond⁽⁴⁾ and hold in future that the truth of the disputed statement was not a relevant factor upon the trial of admissibility, but with that aspect of the matter we are not concerned in the present case. Secondly, I suggested that, even if that were not correct, the putting of the question as to the truth of the statement upon the voir dire had the effect of putting the accused person to the test of a plea upon oath and that that was something prejudicial to the administration of justice inasmuch as it might exert unjustified pressure upon an accused person and encourage perjury. Finally, I suggested - and this is the only proposition which is of direct relevance in the present case - that, in any event, even if the other two points were not of substance there must remain in the trial judge a general discretion to exclude, upon the general issue, the answer put to the accused upon the voir dire if the statement being debated in the separate trial was found to have been obtained by means so outrageous as to bring the administration of justice into disrepute. I do not now propose to refer again to the various authorities to which I resorted in support of that suggestion. It appears to me however that the decision in Jeffrey v. Black⁽²⁾ which was not before the court on the previous occasion tends strongly in favour of the view that such a wider discretion does exist. If it does it may cover many different kinds of circumstance and clearly could apply in a case in which highly probative and relevant evidence had been obtained by means which the court considered disgraceful. I appreciate that the argument for the Crown in the present case sought to make a discinction between preserving the due administration of justice and keeping the police upon the path of righteousness. Strictly speaking it may be true that the administration of justice in the criminal courts is a concept which primarily concerns the fairness of the court's own procedure in trying accused persons on charges brought before it. The court is primarily concerned to see that an accused person is convicted only upon relevant and admissible evidence. I concede that the court is not primarily conerned to supervise the behaviour of those organs of the executive power which are charged with the duty of obtaining the evidence upon which criminals are brought to trial. But equally clearly no court can be wholly unconcerned with the methods employed by the officers of the executive. The familiar inquisition into the voluntary character of alleged confessions itself amply testifies to the existence of this area of concern. Admittedly the basis of that concern is, in part, the need to ensure that untrue confessions are not relied upon but many judges have spoken for a wider interest in excluding such evidence. To my mind it might be a dangerous casuistry to make too sharp a distinction between the executive and the judicial functions when it comes to the issue of justice. I prefer to believe that there may occur certain extreme cases in which the courts would be prepared to exercise what might be termed their declaratory moral function in order to keep the wells of justice sweet by refusing to act upon relevant and admissible evidence even at the extreme expense of refusing to convict a palpably guilty person. There is a highly relevant passage in the judgment of Lord Cooper in the case of Lawrie v. Muir⁽⁶⁾ a passage set out in the judgment of Cartwright, C.J. in The Queen v. Wray⁽⁷⁾ it is in the following terms:

"The law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the state to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be done shall not be withheld from courts of law on any mere formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection for the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action for damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the state cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods."

It may be that it would only be in the most flagrant cases which, one hopes, would in the nature of things be rare indeed, that such a power would need to be resorted to but one can at least envisage circumstances in which it would be a hollow claim tbat a man had had a fair trial simply because the court had fairly applied its own rules while, as it were, lifting its robe clear of the contamination in the material presented to it for judgment. The argument is that a trial cannot begin to be fair where citizen rights are grossly disregarded ab initio.

4. Had this been a case in which there was an abundance of reliable evidence apart from the fingerprint evidence to support the conviction I might have been prepared to say that, even assuming that the learned judge was wrong to hold that he had no discretion to exclude the latter evidence, the appeal should be dismissed. But if the view expressed herein is correct I think the proper course is to quash the conviction. I say so because this challenged evidence was the only evidence against the appellant. In its absence he must necessarily have been acquitted; indeed, without it he could scarcely have been brought to trial. In these circumstances there could not be any legitimate resort to the proviso to s.83(3) of the Criminal Procedure Ordinance. I would like to add that I have considered the question of re-trial but in my opinion this is not an appropriate case for such an order. The following factors lead me to that view: (a) The appellant cannot be said to have raised his objection on the spur of the moment; at the trial it was conceded by the prosecution that the appellant had complained of ill-treatment before the trial and that injuries were found on his body two or three days after arrest and the court was informed that an investigation into the complaint had been instituted; (b) the actual alignment of the fingerprint on the rear window was never established and could have had a bearing on the possibility of the print having been put there by casual contact from outside the car; (c) the appellant had a clear record and was not arrested until some fifteen months after the offence so that the possibility of his being able to account for his movements on the day of the robbery was slight, as was any possibility of his being able to call evidence to account for a chance contact between himself and the window of the car.

5. For these reasons I would allow the appeal and quash the conviction and set aside the sentence.

Representation:

(1) 38 Crim. App. R. 36.

(2) The Times July 15th 1977.

(3) Crim. App. 1049/1976

(6) (1950) S.C. (J) 19 at p.26.

(7) (1970) 4 Can. Cr. Cas. 1.