The Secretary for Justice v. Lam Tat Ming and Another

CACC000615B/1998

CACC615/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 615 OF 1998

(ON APPEAL FROM DCCC 529 OF 1997)

-------------------------------

Coram: Hon. Stuart-Moore, V.-P., Mayo, J.A. & Woo, J.

Date of Hearing: 16 July 1999

Date of Ruling: 16 July 1999

--------------------

R U L I N G

--------------------

Stuart-Moore, V.-P. (giving the ruling of the Court):

1. Mr. Bruce, S.C. on behalf of the Appellant, has by Notice of Motion invited this Court to certify under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that there exists in the decision of the Court of Appeal today in CACC 615/98, a question of law of great and general importance. The question as presently framed is lengthy. I shall read it as it stands:

"Whether, as a matter of law, and if so to what extent, a judge in criminal proceedings, in determining whether to admit into evidence an admission made by an accused person is entitled, in the exercise of the discretion vested in him to exclude an admission, where:

(1) either the judge is satisfied that the admission was voluntarily made or there is no issue as to the voluntariness of the admission; and

(2) either the judge is satisfied that the reception into evidence of the admission:

* is not more prejudicial than probative; or

* will not affect the fairness of the trial of the accused;

where the admission was made in circumstances in which:

(1) the accused was not under arrest or otherwise in the custody of a law enforcement officer at the time of making the admission;

(2) the admission was made to a law enforcement officer or an agent of a law enforcement officer; and

(3) the accused was unaware at the time of making the admission that the person who heard or otherwise received the admission was a law enforcement officer or an agent of a law enforcement officer but, had he been aware of the true identity and status of the officer or the agent of the officer he may not have made the admission?"

2. We have considered the question and have decided in principle that we should certify as we have been asked to do. We need only to say that the question at the moment is quite clearly in an unrefined state. Although its terms of reference are perfectly clear, if leave in due course is sought, we have little doubt that Mr. Bruce will seek to refine the question as it stands.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. & Mr. Joseph To, S.G.C. for Secretary for Justice/Appellant.

Mr. Andrew Macrae, S.C., inst'd by M/s So & Co. for 1st Respondent.

Mr. James P. Chandler & Mr. Martyn Richmond inst'd by M/s Lau & Leung Solicitors for 2nd Respondent.