The Secretary for Justice v. Lam Tat Ming and Another

CACC000615C/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)

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

Date of Hearing: 24 June 1999

Date of Delivery of Judgment: 16 July 1999

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J U D G M E N T

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Stuart-Moore, V.-P.:

Background

1. This matter comes before the Court as an appeal, under the terms of section 84 of the District Court Ordinance, Cap. 336, by way of case stated. The Secretary for Justice appeals against verdicts of acquittal which were entered by Judge Gill in the District Court after he had ruled that the evidence of confessions, allegedly made by the Respondents, were inadmissible on the ground that they were involuntary. The confessions represented a substantial part of the prosecution's case at trial so that, when they were ruled out, the prosecution offered no further evidence and the verdicts were then entered.

The Charges

2. The 1st Respondent faced four charges and the 2nd Respondent faced one charge brought under section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. The offences related to dates between December 1992 and March 1993. The 1st and 2nd Respondents were both serving members of the Hong Kong Police Force at the material time. The prosecution alleged in charge 1 that the 1st Respondent had solicited an advantage from a person nicknamed "Ngau Wing" of $450,000 "as an inducement to or reward for or otherwise on account of (the 1st Respondent) performing an act in his capacity as a public servant, namely to use his position as a police officer to facilitate members of the Fuk Yee Hing triad society to carry out decoration works at housing units of Phase II of Fullview Garden at Siu Sai Wan, Chaiwan".

3. In charges 2, 3 and 4, the 1st Respondent was alleged in each case to have accepted an advantage in the sum of $150,000. Charge 5 similarly alleged that the 2nd Respondent had accepted an advantage in the sum of $75,000.

The Prosecution's Case

4. All of these matters came to light for the first time in October 1994 when Ngau Wing made a complaint to ICAC. Following this, ICAC were unable to locate Ngau Wing until June 1996 when he was arrested for offering an advantage to a public servant. In due course, ICAC decided to use Ngau Wing in an undercover operation with the primary object of obtaining supporting evidence against the Respondents of the allegations that had been made. Ngau Wing was eventually given full immunity from prosecution.

5. Between November 1996 to April 1997, Ngau Wing was in conversation by telephone with both Respondents. These calls were recorded. From time to time, meetings with the Respondents were arranged. Ngau Wing adopted the part of a senior triad society member and an ICAC undercover operative, known as "Heung Kai" played the role of his follower and minder. Both of them were wired with tape-recorders. In particular, Ngau Wing was instructed to talk to the Respondents about the events relating to the charges and to attempt to draw out admissions from them as to these events.

6. It was during these meetings that the 2nd Respondent was implicated for the first time. It emerged that he had been with the 1st Respondent when one of the three payments of $150,000 was made and that the 2nd Respondent took half. By the stage when the Respondents were arrested and charged in April 1997, there were 39 tapes recording the conversations.

District Court Proceedings

7. Counsel in the court below mounted a challenge to the admissibility of the tape-recorded evidence. A voir dire was held, following arraignment, to determine its admissibility. Ngau Wing, Heung Kai and a chief ICAC investigator gave evidence.

8. Ngau Wing's evidence disclosed a number of important factors. Firstly, he had convictions going back more than 30 years and he was a long-standing member of a triad society. Secondly, there was no evidence from banking records to support the payments to the Respondents. Thirdly, Ngau Wing bore a grudge against the 1st Respondent which had led him to make his original complaint. Fourthly, it was accepted that the purpose of the meetings was to attempt to obtain admissions from the 1st Respondent and, after the 2nd Respondent came into the picture, from the 2nd Respondent also.

9. It was argued by Mr. Chandler on behalf of the 2nd Respondent at trial that, while the use of undercover operatives to obtain evidence of on-going criminal offences was permissible, it was an illegitimate use of such tactics to attempt to gain evidence of confessions to past offences. He argued that, as the challenged evidence had been obtained as the direct result of trickery and deception, it was involuntary and therefore inadmissible.

10. These submissions found favour with the trial judge who found that the Respondents had incriminated themselves as the result of the deception practised upon them and that, but for the trick which had been practised on them, they would in all likelihood not have incriminated themselves. In these circumstances, he ruled that the evidence of the conversations of both Respondents with Ngau Wing and Heung Kai was inadmissible because the confessions which had been obtained were involuntary. The judge took into account, in coming to this conclusion, R v Lam Yip-ying, (1984) HKLR 419, which provides authority for saying that a judge must ask himself, at the conclusion of a voir dire to determine the admissibility of a confession statement, if the prosecution had established beyond reasonable doubt that the statement was voluntary in the sense that it was not obtained by threats, promises, oppression or deception.

Case Stated - Voluntariness of Confessions

11. In stating a case for the opinion of the Court of Appeal, the trial judge posed four questions. The first three of these are:

"(i) Whether in the circumstances I applied the correct test to the issue as to whether the challenged evidence had been voluntarily obtained from the respondents?

(ii) If the answer to (i) is yes, whether in the circumstances of this case it was, as a matter of law, open to me to rule the challenged evidence inadmissible as being involuntarily obtained?

(iii) If the answer to (i) is no, what is the correct test as to voluntariness of potentially inculpatory evidence obtained in the circumstances of this or similar cases?"

12. I do not need to dwell at length upon these questions. Mr. Macrae, S.C. for the 1st Respondent, is in agreement with Mr. Bruce, S.C. who appears on behalf of the Secretary for Justice, that the test which is set down in Lam Yip-ying was misapplied to the facts of this case.

13. Mr. Chandler, for the 2nd Respondent, while maintaining the stance he originally took at trial by adopting his written arguments, accepted that if he was wrong, he bore responsibility for guiding the trial judge down the wrong path.

14. If it had not been for the ruling made by the judge that the statements were involuntary, the trial judge would also have had to consider whether the evidence should be excluded in the exercise of his discretion, based upon unfairness. This requires separate consideration later in this judgment when dealing with the fourth question posed in the Case Stated.

15. So far as the law relating to voluntariness is concerned, this Court was in complete agreement with Mr. Bruce that this is to be found in the judgment of Lord Sumner in Ibrahim v R, (1914) AC 559 at page 609, as qualified by Ajodha v The State, (1982) AC 204. The legal principles underlying the concept of voluntariness were later compendiously stated by Roberts C.J. in R v Lam Yip-ying, (1984) HKLR 419 where, in summary, an admission is rendered involuntary "if it was obtained by threats, promises, oppression or deception".

16. The judge, in the appeal now before us, rightly in my view expressed himself as having relied upon Lam Yip-ying as providing the test for voluntariness. The so-called "deception" limb of the voluntariness principles stems from the decision in Ajodha where Lord Bridge referred to what he termed "fraudulent misrepresentation". In Lam Yip-ying, Roberts C.J. (at page 422I) preferred to give it the "simpler description" of deception. It is conceivable, perhaps, that the use of the word 'deception' could be understood to have extended the concept being considered by Lord Bridge.

17. The deception in Ajodha was a fraudulent misrepresentation made by a person in authority to an accused in respect of the nature of the document that the person in authority was trying to persuade the accused to sign. The deception went to the adoption of the admission and not to its making. The signature to the confession was willingly made and was therefore voluntary in the sense that it had not been brought about by coercion, but it was appended to the confession statement under a misapprehension as to the nature of the document.

18. The headnote in Ajodha, based upon what is said in the report at pages 220E-F and 221F-G, reads:

"..... where in a criminal trial the prosecution tendered in evidence a confession statement signed by the defendant, the prosecution was relying on the signature as the defendant's acknowledgement of the statement as his own and that since it was well established that for such a confession to be admissible the prosecution had to show that it had been made voluntarily, a defendant's allegation that his signature had been obtained by force or by a trick necessarily raised the issue of the voluntariness of the statement itself and that that was an issue which had to be determined by the trial judge; ...."

19. It is only in respect of this narrow issue, namely the adoption by signature of the confession document, that deception is relevant. Neither Ajodha nor Lam Yip-ying suggest any wider scope for the deception limb of voluntariness nor are we aware that there has been a case where the scope of the deception limb has been extended to cover deceitful conduct employed by a law enforcement officer to prompt a suspect to volunteer an incriminating statement. As an example, in R v Lee Yi-choi, [1985] 1 HKC 578, where a detective was introduced into the accused's cell under the guise of a fellow prisoner in order to obtain a confession, this was held by this Court to raise not an issue of voluntariness, but rather the exercise of the judge's discretion to exclude voluntary admissions. This was further reinforced by Litton J.A. (as he then was) in R v Chow Chi-hing, (1993) 2 HKC 214 at 217E who stated that the trial judge in that case had no jurisdiction to extend the 'concept of voluntariness'.

20. Again, as Mr. Bruce pointed out, it is not without interest that in England, where the law has been codified by the Police and Criminal Evidence Act, 1984, (PACE) different provisions apply to reflect the common law position. Section 76 regulates the voluntariness of confessions. Deception and trickery of the kind under consideration in this appeal are not covered by the scope of that section. These considerations fall under section 78 which provides for 'the exclusion of unfair evidence'.

21. This Court had no difficulty in deciding that the way in which the judge directed himself demonstrates a misunderstanding of the scope of Lam Yip-ying. Properly understood and applied, Lam Yip-ying provides the correct test by which to gauge whether or not evidence of a confession has been obtained voluntarily. More specifically, the judge had extended the application of deception in the context of voluntariness to include the kind of conduct which can have no bearing upon whether the confessions were voluntary.

22. Accordingly, I would answer the first three questions posed in the case stated in the following way:

(i) Yes. The correct test which was to be applied is that which is set out in R v Lam Yip-ying, (1984) HKLR 419. However, the test under the 'deception' limb of the principles for deciding voluntariness was misunderstood.

(ii) No. In the present circumstances, the conduct of the undercover agents was not the kind of deception that can render an admission involuntary.

(iii) This only required an answer if (i) above was answered in the negative.

23. However, this is not the end of the matter.

Case Stated - Discretion to exclude confession evidence unfairly obtained

24. The fourth question of law for the opinion of the Court of Appeal arising from the Case Stated is framed in the following way:

"(iv) Whether, in the alternative, upon the facts I found to have been proven, it would have been open to me to exclude the challenged evidence in the exercise of my discretion, based in unfairness, it having been implicit in my decision founded in involuntariness that I found that manifest unfairness had been practised upon the respondents by the undercover operatives?"

25. The judge set out at paragraph 23 in the Case Stated the factors he found relevant to the exercise of discretion in each Respondent's case as follows:

"(a) The alleged offence was committed in 1992/93. There was no entrapment or participation in ongoing criminal offences;

(b) the allegations were grave;

(c) the complainant was of bad character and as a consequence it was legitimate for the ICAC to attempt to obtain evidence supporting his allegations;

(d) having regard to the respondents' stance that they had been tricked/deceived into supplying evidence of admission, I should consider:

(i) the materiality/effect of the deception;

(ii) the intention behind the deception;

(iii) the extent to which the deception was a means to protect the operation;

(e) covert operations by their nature involved a deception and whether in the circumstances, on the balance, it was reasonable to use the means employed to obtain evidence;

(f) the respondents were police officers, mature adults;

(g) the Rules and Directions for the Questioning of Suspects applied only to those persons in custody or were about to be placed in custody;

(h) the extent of the control exercised by the handling officers over the undercover operatives."

26. The judge also considered that the factors he should take into account in deciding whether to exercise his discretion to exclude the evidence of the admissions would include:

"(a) whether the predominant object of the undercover operatives, who were acting as agents of the ICAC, was to obtain evidence of admission;

(b) whether the 2nd respondent had applied himself to the deception or whether in the circumstances the undercover operatives had sought him out."

27. He found also that it was irrelevant that the Respondents were police officers. He stated that:

"There had been a breach of the right to protection against self incrimination and a flagrant breach of the Secretary for Security's Rules and Directions for the Questioning of Suspects and the Taking of Statements."

28. The discretion to exclude evidence, other than the evidence of an admission, was considered in depth by the House of Lords in R v Sang, (1980) AC 402. The certified question for their Lordships in Sang was:

"Does a trial judge have a discretion to refuse to allow evidence - being evidence other than evidence of an admission - to be given in any circumstances in which such evidence is relevant and of more than minimal probative value." (Emphasis added).

29. Although Sang was not directly concerned with the discretion to exclude the evidence relating to confessions, their Lordships nevertheless made a number of important references which touched upon the discretion to exclude confession evidence. In particular, at page 436C-437C, Lord Diplock said:

"... I propose to exclude, as the certified question does, detailed consideration of the role of the trial judge in relation to confessions and evidence obtained from the defendant after commission of the offence that is tantamount to a confession. It has a long history dating back to the days before the existence of a disciplined police force, ... The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer ... That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.

Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour, or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them .....

A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason." (Emphasis added).

30. The Appellant has taken Sang as authority not only for the undoubted discretion to exclude evidence which would otherwise be admissible but also as authority that the discretion to exclude otherwise admissible evidence, including confessions, should only be exercised for the purpose of ensuring that a defendant obtains a fair trial.

31. Mr. Macrae, on the other hand, submitted that different considerations apply to confession evidence, and that the discretion in Sang was only related to the exclusion of evidence other than admissions. He submitted that, in relation to confessions, there is a discretion to exclude such evidence if the manner in which voluntary confessions had been obtained was unfair. It has never, he submitted, been the law that for the trial judge to exclude such evidence, he must find that a fair trial would be prejudiced by its inclusion.

32. In developing his argument, Mr. Macrae referred to R v Lee Yi-choi, (1985) 1 HKC 578, to which reference has already been made, where a confession was obtained from a defendant in a police cell by a police officer who was posing as a fellow prisoner. One of the grounds of appeal was that the judge had a discretion to exclude from the jury's consideration a confession obtained by a trick and that in the circumstances this should have been exercised in favour of the applicant. The Court of Appeal, while recognising that subterfuge is often an indispensable weapon in the police armoury for the detection of crime, stated that stricter standards must apply when a suspect is in custody. The Court of Appeal's conclusion that the confession should not have been admitted was based solely on the manner in which the confession was obtained, not on the effect of the confession on the fairness of the trial.

33. At page 588E, McMullin V.-P. said:

"... it is apparent to us that the admission in evidence of the applicant's confession did endanger the principles which exist in law to secure fair trials and that the administration of justice was thereby brought into disrepute. The end, being the conviction of the applicant, did not justify the means employed. The learned judge was wrong both in directing himself that he could not, as the law presently stood, exclude it, as he apparently wished, and, sequentially, in failing so to do.

In reaching our conclusion we have throughout borne in mind the brutality and cold-blooded sequelae of the crime under investigation and the dilemma in which the police were placed. The test of unfairness is not that of a game and evidence bearing upon the commission of crime and necessary to enable malefactors to be brought to justice should not be withheld merely on formal or technical grounds."

34. In the present context, Lee Yi-choi does little more than reaffirm the existence of a discretion to exclude voluntary confessions. The Court had earlier considered the circumvention of the rules in relation to persons in custody by a person who was "in fact in authority". In this important respect, it is to be distinguished from the case which we are presently considering.

35. There is, of course, a long line of authority where the Courts have recognised the use of informants and the employment of deceit and trickery as necessary weapons for law enforcement. However, in the vast majority of these cases, it is the evidence of the crime itself which has been gathered by such means, not evidence of a confession to the crime earlier committed.

36. Clearly, when the Courts have to decide upon the admissibility of a confession where trickery or deceit of some kind has been employed, each case will depend upon its own unique circumstances. As an example of this, in HKSAR v Ng Wai-man, (1998) 3 HKC 103, where police had posed as fellow prisoners in order to eavesdrop on a conversation which incriminated the defendant, the Court of Appeal found that the trial judge had correctly distinguished Lee Yi-choi's case (above) and stated at page 111E:

"(The judge) recognised that the police officers had in no sense induced a confession by trick or otherwise. They had merely acted as eavesdropping spectators in a case of the utmost gravity."

37. The Court went on to reaffirm the existence of a residual discretion to exclude evidence obtained unfairly or by trickery and found that there was nothing in the conduct of the eavesdropping police officers which could be described as "unfair" in the sense that it would require the exercise of the discretion.

38. It is apparent that the circumstances of the present case are very different to those which pertained in Lee Yi-choi and Ng Wai-man. In this case, the undercover operatives deliberately sought out the 1st Respondent with a view to obtaining admissions from him and, when the 2nd Respondent came into the picture, he was also targeted for the same purpose.

39. In an extensive and extremely helpful review of a number of authorities from the Common Law world, Mr. Bruce was only able to cite R v Jelen and Katz, (1990) 90 Cr. App. R., decided in the English Court of Appeal, where a situation of a similar kind to the present case had arisen and where the Court's discretion in relation to admissibility was considered. It is to be noted, however, that this was a decision, like a number of others that were cited, which was based upon the provisions of section 78 of PACE which provides:

"In any proceedings the Court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the Court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it." (Emphasis added).

40. Hong Kong has no similar provision. Bearing in mind this important qualification, in Jelen and Katz a suspect (Dempsey) who was questioned by the police, agreed to tape-record a conversation with Jelen, without his knowledge, before Jelen had been questioned by police. The view of the police at that stage was that they would have been required to caution Jelen if they had questioned him and that they had insufficient evidence on which to arrest and charge. In these circumstances, the police released Dempsey on bail and asked him to obtain corroboration of what he had told them by arranging for Dempsey to record a conversation with Jelen.

41. In the course of the judgment, Auld J. said at page 464:

"As to the suggestion that the police were using Dempsey in this way to avoid the requirements of the Code of Practice governing them if they had chosen to question Jelen at that stage, the judge pertinently observed that Jelen had not been arrested. The provisions of the Code governing the detention, treatment and questioning of persons by police officers are for the protection of those who are vulnerable because they are in the custody of the police. They are not intended to confine police investigation of crime to conduct which might be regarded as sporting to those under investigation."

42. However, in R v Christou, (1994) 1 QB 979, the English Court of Appeal considered the passage just cited from Jelen and Katz. Lord Taylor C.J. described it as "not quite accurate", pointing out that PACE did not exclusively deal with persons who were in custody. Later, at page 991, Lord Taylor C.J. said:

"It would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the code and with the effect of circumventing it."

43. In Christou, it should be observed, police had mounted a 'sting' operation where they had set up a shop which was wired for audio and video recording. Over a period of several months, persons came to the shop endeavouring to sell stolen property. The Court held that the questions asked by police officers of the defendants, in the particular circumstances of that case were, for the most part, "necessary to conduct the bartering and to maintain their cover" and not questions "about the offence". In the light of the decision in Christou, I am unable to place much reliance upon Jelen and Katz.

44. This brings me to a consideration of two final cases with which, in the present context, I feel it necessary to consider. The first of these is R v Cheung Hon-yeung, (1993) 1 HKCLR 292. It is not relevant, for present purposes, whether and to what extent this case might now be decided differently in the light of Thongjai & Another v R, (1997) HKLRD 678. Cheung Hon-yeung was concerned with a judge's discretion to refuse to admit the evidence of an oral admission. Mr. Bruce relied upon this case to demonstrate the categories of evidence which a judge may exclude, in the exercise of his discretionary power, on the ground that there had been unfairness. Mr. Bruce, in particular, relied upon the passage at page 300 where Power V.-P. said:

"As I read the judgment in R v Sang, in particular that of Lord Diplock, there are three categories of admissible evidence which a judge has the power to exclude. The first covers admissions made by a defendant where it has not been proved that they were made freely and voluntarily. Lord Diplock, at p. 436 explains the basis for this power in the following terms :

'The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer, or in its popular English mistranslation, 'the right to silence'. That is why there is no discretion to exclude evidence discovered as a result of an illegal search, but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.'

The second is where the judge is satisfied that the prejudicial effect of the evidence outweighs its probative value. Evidence of bad character and of similar facts are the two leading types of evidence of this kind. Another type of evidence falling within this category is where the evidence is equivocal, as it was in the case of R v Christie, [1940] AC 545 where the Crown sought to lead evidence of the silence of the accused contending that in the circumstances it amounted to an admission.

The third category is a much less certain one. This covers evidence obtained unfairly or by trickery. Into this category fall what might be described as quasi-confessions such as that in R v Payne, [1963] 1 WLR 637. It is, however, to be noted that this is the only recorded case in which a discretion has been exercised to exclude evidence in this category. It may well be that the categories will in time be extended. However, as the law now stands, it seems clear from the decision in R v Sang that while a judge has a general discretion to ensure a fair trial that discretion does not extend to the rejection of otherwise admissible evidence outside the three categories set out above."

45. This passage was later cited in R v Lam Ka-fai, (1995) 1 HKCLR 155 at 161 which was concerned with whether evidence of an irregularly conducted identification parade should have been introduced at trial. It is apparent, however, that the report of Cheung Hon-yeung's case contains an error. In the "first category", Power V.-P. spoke of "admissions made by a defendant where it has not been proved that they were made freely and voluntarily". It is clear that the discretionary power to exclude will only arise after the admission has been found to be voluntary or it will already have been excluded. Later in the report of Cheung Hon-yeung's case, at page 301, the error, which can be assumed to be a typographical one, is contradicted by the statement:

"No issue under the first category, i.e. that the statement was not made freely and voluntarily fell for determination."

46. The difficulty, however, is that without correction, the citation where the misprint occurs was read with approval in Lam Ka-fai's case (above) and then adopted to maintain the proposition at page 161 that:

"There is a 'general discretion' but it is limited to the exclusion of evidence obtained 'unfairly or by trickery' and is exercised only when the use of such evidence will prevent the accused from obtaining a fair trial. There are two quite different considerations involving 'fairness'. In the first the court must look at the evidence impugned and determine whether it was unfairly obtained. In the second, being satisfied that there is evidence which was so obtained, the court must determine whether the admission of such evidence might prevent the accused from receiving a fair trial. If it might then the court must exercise its discretion and exclude it. The 'fairness' involved in the first consideration is wholly different from the 'fairness' involved in the second consideration.

The first, if established, calls into play the real issue which is whether the evidence is such as might prevent the accused from obtaining a fair trial.

Lord Diplock made this clear, in R. v. Sang when he said, at p.436:

'Outside this limited field (the power to exclude confessional statements not proved to have been made voluntarily) in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence, is to ensure that the accused has a fair trial according to law .....'"

(Emphasis added).

47. The part which appears in brackets in this citation had not been said by Lord Diplock, namely that there was a "power to exclude confessional statements not proved to have been made voluntarily". Lord Diplock, in the passage quoted earlier in this judgment, said that there was a discretion "to exclude evidence which the accused has been induced to produce voluntarily if the method of the inducement was unfair".

48. More importantly, Mr. Macrae submitted that Mr. Bruce on behalf of the Appellant, had inadvertently fallen into the trap of using Lam Ka-fai's case to support the proposition that it was a requirement (based upon Sang's case), for the exercise of the discretion to exclude a confession which was improperly or unfairly obtained, for the defendant to show that the use of the confession would or might deprive him of a fair trial. In this context, it has to be remembered that the discretion under consideration in Sang, taken from the certified question in that case, was the discretion to exclude evidence other than the evidence of an admission. Their Lordships in Sang answered the certified question by holding that:

"(i) A trial judge has always a discretion to exclude evidence whose prejudicial effect outweighs its probative value.

(ii) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to exclude relevant admissible evidence on the ground that it was obtained by improper or unfair means. The Court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of an agent provocateur."

(Emphasis added).

49. The case of Lam Ka-fai was in no sense concerned with confessions and it seems to me that Power V.-P.'s judgment cannot, therefore, have been directed at evidence of this kind. This is particularly so as Power V.-P. demonstrates general agreement with Lord Diplock's judgment in Sang when attempting to adopt what had been said in that case.

50. At the risk of repeating myself, in Sang it was plainly stated that confessions are an exception to the general rule that the Court is not usually concerned with the manner in which evidence has been obtained. Unlike the position with other forms of evidence where the court is considering the very limited discretionary power to exclude, there is in my judgment no requirement for a defendant to show that the use of a confession which has been obtained "unfairly or by trickery" will prevent him from obtaining a fair trial before the confession can be ruled inadmissible on the ground of unfairness.

Conclusion

51. Accordingly, I would answer the fourth question which is asked in the Case Stated in the following way:

52. Yes, on the facts which were found to have been proved, it was open to exclude the challenged evidence in the exercise of discretion based upon unfairness.

53. Having regard to the way in which the trial judge expressed the fourth question in the Case Stated, saying that it was "implicit" in his "decision founded in involuntariness" that he found "manifest unfairness had been practised upon the Respondents by the undercover operatives", it is abundantly plain that if this case was returned to the District Court for the trial to be resumed under section 84(c)(ii) of the District Court Ordinance, the judge would be bound in the exercise of his discretion to make a ruling that the confessions were inadmissible. There is, in these circumstances, no purpose to be served in making such an order. I am satisfied, therefore, that no sufficient ground has been put before this Court for interfering with the verdicts of acquittal. Accordingly, I would dismiss the appeal.

Mayo, J.A.:

54. During the course of the submissions which were made to us, it transpired that the important issue which has to be resolved on this case stated is the fourth question posed by Judge Gill.

"(iv) Whether in the alternative, upon the facts I found to have been proven, it would have been open to me to exclude the challenged evidence in the exercise of my discretion, based in unfairness, it having been implicit in my decision founded in involuntariness that I found that manifest unfairness had been practised upon the respondents by the undercover operatives?"

55. Mr. Bruce, S.C. for the Appellant understandably based his arguments upon the speeches delivered by Lord Diplock & Lord Scarman in R. v. Sang [1980] AC 402 and the manner in which the principles which were laid down in the case have been applied in Hong Kong.

56. In particular he placed reliance upon our Court of Appeal judgments in R. v. Cheung Hon-yeung [1993] 1 HKCLR 292 and R. v. Lam Ka-fai [1995] 1 HKCLR 155. He submitted that it had been established in these cases that there was a limited judicial discretion to exclude evidence which would otherwise be admissible. The basis upon which the discretion would be exercised would be ensuring that a defendant had a fair trial. Power, J.A. (as he then was) said this at p. 300 of Cheung Hon-yeung:

"As I read the judgments in R. v. Sang, in particular that of Lord Diplock, there are three categories of admissible evidence which a judge has the power to exclude. The first covers admissions made by a defendant where it has not been proved that they were made freely and voluntarily. Lord Diplock, at p.436 explains the basis for this power in the following terms:

'The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer, or in its popular English mistranslation, "the right to silence". That is why there is no discretion to exclude evidence discovered as a result of an illegal search, but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.'

The second is where the judge is satisfied that the prejudicial effect of the evidence outweighs its probative value. Evidence of bad character and of similar facts are the two leading types of evidence of this kind. Another type of evidence falling within this category is where the evidence is equivocal, as it was in the case of R. v. Christie [1940] AC 545 where the Crown sought to lead evidence of the silence of the accused contending that in the circumstances it amounted to an admission.

The third category is a much less certain one. This covers evidence obtained unfairly or by trickery. Into this category fall what might be described as quasi-confessions such as that in R. v. Payne [1963] 1 WLR 637. It is, however, to be noted that this is the only recorded case in which a discretion has been exercised to exclude evidence in this category. It may well be that the categories will in time be extended. However, as the law now stands, it seems clear from the decision in R. v. Sang that while a judge has a general discretion to ensure a fair trial that discretion does not extend to the rejection of otherwise admissible evidence outside the three categories set out above."

57. Power, V.-P. also delivered a judgment in Lam Ka-fai in which he adopted the analysis of the law he had propounded in Cheung Hon-yeung and went on to say:

"There is a 'general discretion' but it is limited to the exclusion of evidence obtained 'unfairly or by trickery' and is exercised only when the use of such evidence will prevent the accused from obtaining a fair trial. There are two quite different considerations involving 'fairness'. In the first the court must look at the evidence impugned and determine whether it was unfairly obtained. In the second, being satisfied that there is evidence which was so obtained, the court must determine whether the admission of such evidence might prevent the accused from receiving a fair trial. If it might then the court must exercise its discretion and exclude it. The 'fairness' involved in the first consideration is wholly different from the 'fairness' involved in the second consideration.

The first, if established, calls into play the real issue which is whether the evidence is such as might prevent the accused from obtaining a fair trial.

Lord Diplock made this clear, in R. v. Sang when he said, at p.436:

'Outside this limited field (the power to exclude confessional statements not proved to have been made voluntarily) in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial.

A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason.'

Evidence is not automatically excluded because it has been obtained by some perceived unfairness. If there has been unfairness the judge is called upon to determine whether it is such as requires him to exercise his discretion to exclude the evidence. He must do so if the admission of the evidence will deny the accused a fair trial - that is the determining factor. This determination must depend upon the facts in each case."

58. The nearest case to the facts referred to in this case stated cited by Mr. Bruce was the case of R. v. Jelen and Katz [1990] 90 Cr. App. R. 456. The facts of that case and the findings of the English Court of Appeal are accurately and succinctly encapsulated in the headnote at p. 457:

"The appellant K and the applicant J were charged with conspiracy to commit false accounting. Evidence in the form of a tape recording was in issue. A witness, who was questioned by the police, agreed to tape record a conversation with the applicant J, without the latter's knowledge, who at the time had not been questioned by the police. The trial judge ruled that the tape recording was admissible, that it was not evidence against the appellant, K; but might shed light on the general trustworthiness of the witness. Both K and J were convicted. On appeal by K and on an application for leave to appeal by J on the grounds that the tape recording was not admissible against K, inter alia, that evidence of the tape recording should have been excluded by the judge as unfair under the discretion given to him under section 78(1) of the Police and Criminal Evidence Act 1984; further that evidence should have been excluded under section 76(2) of the 1984 Act as being a confession obtained in circumstances which rendered it unreliable:

Held, dismissing the appeal and refusing the application, that the tape recording had been properly admitted in evidence; that the judge's statement that the tape recording was not evidence against the appellant, K, was correct; nevertheless, subsequent comments on the tape recording in relation to the general trustworthiness of the witness should have been omitted, for it had wrongly blurred the distinction between that evidence which was capable of amounting to corroboration in the case of J and K, and that which was not. The judge's comment was tantamount to saying that the tape recording, although not formally admissible in or corroborative against the co-defendant, was nevertheless capable of being both in the sense of independently supporting the witness's general veracity. That was clearly wrong for only evidence admissible against a co-defendant could throw light on the truthfulness of the witness's evidence against him. However, there was an overwhelming case against both J and K, and no other grounds of appeal rendered the conviction in each case unsafe or unsatisfactory."

59. There were however important distinguishing features in the facts of the case. In Jelen and Katz the maker of the statements had sought out the person who had recorded the conversation whereas in the instant case it had been part of the deception which had been practised upon the Respondents that ICAC had asked Ngau Wing and Heung Kai to approach them under the guise of a former friendship between the 1st Respondent and Ngau.

60. Mr. Bruce also referred us to a number of Australian cases. These were not of great assistance to us as there are material differences in the law there.

61. Mr. Macrae, S.C. for the 1st Respondent submitted that the Government had wholly misconceived this application. This stemmed from a misunderstanding as to what had been decided in R. v. Sang. It was manifest from the question posed at p. 424 in that case that different criteria applied when the evidence in question related to a confession:

"Certificate that point of law of general public importance involved, namely, 'Does a trial judge have a discretion to refuse to allow evidence - being evidence other than evidence of admission - to be given in any circumstances in which such evidence is relevant and of more than minimal probative value."

62. The reasoning justifying this can be seen from a passage from Lord Diplock's speech at p. 436 of the case part of which was cited by Power, V.-P. in Lam Ka-fai:

"My Lords, I propose to exclude, as the certified question does, detailed consideration of the role of the trial judge in relation to confessions and evidence obtained from the defendant after commission of the offence that is tantamount to a confession. It has a long history dating back to the days before the existence of a disciplined police force, when a prisoner on a charge of felony could not be represented by counsel and was not entitled to give evidence in his own defence either to deny that he had made the confession, which was generally oral, or to deny that its contents were true. The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation 'the right to silence.' That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.

Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial."

63. This was in conformity to the view expressed by Lord Scarman at p. 455:

"What does 'fair' mean in this context? It relates to the process of trial. No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere. No man is to be convicted save upon the probative effect of legally admissible evidence. No admission or confession is to be received in evidence unless voluntary. If legally admissible evidence be tendered which endangers these principles (as, for example, in Reg. v. Payne [1963] 1 W.L.R. 637), the judge may exercise his discretion to exclude it, thus ensuring that the accused has the benefit of principles which exist in the law to secure him a fair trial; but he has no power to exclude admissible evidence of the commission of a crime, unless in his judgment these principles are endangered."

64. I have no doubt that this is correct and that different criteria apply in relation to confessions and evidence of a like nature.

65. It is next necessary to consider the cases of Cheung Hon-yeung and Lam Ka-fai. It would appear that the Court of Appeal were in error in their understanding of the principles laid down in Sang.

66. Shortly before the passage earlier cited from Power, V.-P.'s judgment at p. 161, line 36 of Lam Ka-fai, he deals with the question of confessions in this way at line 7:

"We were referred to the landmark decision of R. v. Sang [1980] AC 404. I will refer to a summary of the important points in that decision contained in R. v. Cheung Hon-yeung Criminal Appeal No. 132 of 1992 (see [1993] 1 HKCLR 292) which states:

'As I read the judgements in R. v. Sang, in particular that of Lord Diplock, there are three categories of admissible evidence which a judge has the power to exclude. The first covers admissions made by a defendant where it has not been proved that they were made freely and voluntarily.'"

67. With the greatest respect to the Judge this makes no sense. How could the statement be admissible if it has not been proved to have been voluntary?

68. The consequence of this is that the passages from these two cases earlier referred to do not in my view correctly state the law so far as the court's discretion to exclude confessions is concerned.

69. While bearing in mind the warning contained in Lord Diplock's speech in Sang that everything will depend upon the facts in each individual case, it is nonetheless possible to derive some assistance from the judgment of Lord Taylor at p.440 of R. v. Smurthwaite and Gill [1994] 98 Cr. App. R. 437 so far as covert investigatory procedures are concerned.

"In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors that the judge may take into account are as follows: Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? What was the nature of any entrapment? Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence? How active or passive was the officer's role in obtaining the evidence? Is there an unassailable record of what occurred, or is it strongly corroborated? In Christou and Wright (1992) 95 Cr. App. R. 264, [1992] 1 Q.B. 979, this Court held that discussions between suspects and undercover officers, not overtly acting as police officers, were not within the ambit of the Codes under the 1984 Act. However, officers should not use their undercover pose to question suspects so as to circumvent the Code. In Bryce (1992) 95 Cr. App. R. 320, [1992] 4 All E.R. 567, the Court held that the undercover officer had done just that. Accordingly, a further consideration for the judge in deciding whether to admit an undercover officer's evidence, is whether he has abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the Codes.

Beyond mentioning the considerations set out above, it is not possible to give more general guidance as to how a judge should exercise his discretion under section 78 in this field, since each case must be determined on its own facts. (See Samuel (1988) 87 Cr. App. R. 232, [1988] Q.B. 615, 245, Parris (1989) 89 Cr. App. R. 68, 72 and Jelen and Katz (1990) 90 Cr. App. R. 456, 465, and other cases cited in Archbold (1993) at paragraph 15.364.)"

70. Turning to the present case it is necessary to see how the Judge approached this problem. He said at paragraphs. 38 & 39 of the case stated:

"38. In making my ruling on the admissibility of the challenged evidence I directed myself that my role was succinctly stated in the leading case in Hong Kong on the issue, R v LAM Yip-ying, [1984] HKLR 419, which is authority for the proposition that, at the end of the voir dire held to determine the admissibility of a confession statement, the duty is on the trial judge to ask himself if the prosecution has established beyond reasonable doubt that the statement is voluntary in the sense that it was not obtained by threats, promises, oppression or deception. If he is satisfied then he must admit it.

39. I further directed myself there remained for me the right to exclude the challenged evidence if I was of the view that it was obtained unfairly or that its use in evidence would be unfair. But that discretion should be sparingly exercised; first, because admissible relevant evidence should not be withdrawn from consideration in the trial proper and secondly, because the element of fairness would, in almost all cases, have been considered in the issue of voluntariness."

71. This approach was in accordance with the footnote appended to the judgment at p. 424 of R. v. Lam Yip-ying [1984] HKLR 419.

"Footnote

It may be of help if we summarize the duty which lies on a trial judge at the end of a voir dire, when he must ask himself -

(a) has the Crown established beyond reasonable doubt that the statement is voluntary in the sense described above; and

(b) if he is so satisfied, and the evidence suggests that it was obtained 'unfairly', or that its use in evidence would be unfair, should he exercise his discretion to exclude it?

The power to exclude confessions on the ground of unfairness should seldom be employed. Firstly, because it involves the judge in withdrawing relevant and admissible evidence from the jury, whose function it is to weigh such evidence. Secondly, because in almost all cases, the kind of conduct which would constitute 'unfairness' should already have excluded the confession as involuntary.

As this court has previously said, it is not necessary for a trial judge to give reasons for his finding as to whether a statement is voluntary or not, nor for his refusal to exercise his residual discretion."

72. I am satisfied that this test is in conformity to the test laid down in Sang.

73. Paragraphs 41 and 42 of the case stated contain the Judge's findings of fact and the conclusions he reached in relation to them.

"Findings of Fact

41. From the evidence adduced on the voir dire I found as a fact that:

(i) Heung Kai was and is an ICAC officer commonly utilised as and experienced in the field of an undercover agent;

(ii) Ngau Wing was under express instructions to seek out the 1st respondent and, when he came into the frame, the 2nd respondent;

(iii) Ngau Wing's purpose was specific and his instructions were specific. He had to so engage the respondents that they might make confessions, admissions or otherwise reveal their involvement in crime undertaken several years ago. He was required to lie to maintain the cover and to encourage incriminating evidence and, along with Heung Kai, did so;

(iv) the subterfuge spanned a number of months and a number of telephone calls and meetings. It was in fact destined to last for as long as was necessary for the objective to be achieved;

(v) the respondents were made to believe over the passage of time occupied by the various telephone calls and meetings that Ngau Wing was looking out for his own interests assisted and protected by Heung Kai;

(vi) the respondents came to be unguarded in what they said, treating Ngau Wing and Heung Kai as equals, having swallowed the bait, unmindful of their true identity and the monitoring and recording.

Conclusion

42. From the same evidence adduced I also came to the conclusion that:

(i) For the purpose of the exercise Ngau Wing was an ICAC operative whose expenses were paid by the ICAC, whose movements, conduct, what he was to say and what he was to ask, were specifically directed and controlled by the ICAC;

(ii) Ngau Wing, under threat of prosecution but with the prospect, which did eventuate, of immunity, was committed to do as he was told. He was anything but a free agent. So whilst pretending to be, as it were, one of the boys he was, to all intents and purposes for the duration of this operation, of the ICAC;

(iii) in essence, though the respondents had not been arrested and were not in custody, the circumstances were no different from that where a suspect is encouraged to make a statement explaining his involvement or absence of that in an offence that has been committed but without the rules and procedures that protect his right to avoid self-incrimination."

74. Bearing in mind that the Judge was exercising a discretion reposed in him, it would appear to me to be quite clear that the answer to the fourth question posed in the case stated must be in the affirmative. I have had the advantage of reading Stuart-Moore, V.-P. and Woo, J's judgments in draft and with the greatest respect I agree with the observations they have made in respect of the first three questions posed. The consequence of this is that in my view this application should be dismissed.

Woo, J.:

75. This is a case stated by Judge Gill of the District Court, on the application of the Appellant pursuant to section 84 of the District Court Ordinance, Chapter 336, for the purpose of an appeal to the Court of Appeal on questions of law which arose before the District Judge.

76. In May 1998, the 1st and 2nd Respondents appeared before the District Judge for trial on a charge sheet dated 6th May 1997, by which the 1st Respondent was charged with four offences and the 2nd Respondent was charged with one offence.

77. The 1st charge was against the 1st Respondent only, for soliciting an advantage, contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. The particulars of offence read:

"LAM Tat-ming, being a public servant, namely a police inspector of the Royal Hong Kong Police Force, on a day between the 1st day of November 1992 and the 31st day of December 1992, in Hong Kong, without lawful authority or reasonable excuse, solicited an advantage, namely a gift, loan, fee or reward in the sum of $450,000 Hong Kong currency, from a person nicknamed 'Ngau Wing' as an inducement to or reward for or otherwise on account of the said LAM Tat-ming performing an act in his capacity as a public servant, namely to use his position as a police officer to facilitate members of the Fuk Yee Hing triad society to carry out decoration works at housing units of Phase II of Fullview Garden at Siu Sai Wan, Chaiwan."

78. The 2nd, 3rd and 4th charges were also against the 1st Respondent only, each for accepting an advantage, contrary to the same section 4(2)(a) of the Prevention of Bribery Ordinance, Cap 201. Each of these three charges was in relation to a sum of $150,000 allegedly accepted by the 1st Respondent from Ngau Wing respectively on or about 31st December 1992, 10th February 1993 and between 1st March and 31st March 1993, as an inducement to or reward for or otherwise on account of the 1st Respondent performing an act in his capacity as a public servant, in the same way as particularised under the 1st charge.

79. The 5th charge was against the 2nd Respondent only, for accepting an advantage, contrary to the same section 4(2)(a) of the Prevention of Bribery Ordinance, Cap 201, in that he, being a public servant, namely a sergeant of the Royal Hong Kong Police Force, on or about the 10th day of February 1993, without lawful authority or reasonable excuse, accepted an advantage in the sum of $75,000 from the 1st Respondent as an inducement to or reward for or otherwise on account of the 2nd Respondent performing an act in his capacity as a public servant, namely to carry out police patrol at Fullview Garden at Siu Sai Wan, Chaiwan, and to pass on patrol information to the 1st Respondent, a police inspector, so as to facilitate members of the Fuk Yee Hing triad society to carry out decoration works at housing units of Phase II of the said Fullview Garden.

80. To the said charges both Respondents pleaded not guilty and the trial commenced with a voir dire to determine the admissibility of 39 conversations to which the Respondents were party. Upon the District Judge ruling that these conversations were inadmissible, the Appellant offered no further evidence whereupon at the invitation of the Appellant the Judge dismissed all the charges and acquitted the Respondents. The Appellant was ordered to pay the Respondents the costs incurred by them in their defence of the charges.

81. The Appellant, being dissatisfied with the orders of acquittal in respect of both Respondents has, pursuant to section 84 of the District Court Ordinance, applied to the Judge in writing on 9th June 1998 to state and sign a case in order to appeal to the Court of Appeal.

The Case Stated

82. The case stated was in respect of the correctness of the Judge's ruling made at the conclusion of the voir dire to exclude evidence of the 39 conversations to which the Respondents were party. In the detailed case stated, the Judge included the factual basis upon which he made his ruling. The following is quoted from the case stated:

"The Appellant's Case

5. It was the appellant's case, as revealed in its opening, that a man, known in this trial by the nickname of Ngau Wing, approached the offices of the ICAC in October 1994 and made a complaint that late in 1992 the 1st respondent, a serving police officer, had solicited an advantage of $450,000 in return for protection for decoration work to be undertaken in a housing development under construction. Then, on three separate occasions spanning late 1992 and early 1993, Ngau Wing paid to the 1st respondent $150,000 being the protection money asked for. This complaint was in due course to give rise to the first four charges against the 1st respondent.

6. Having made his complaint Ngau Wing and the ICAC lost contact, but in June 1996 he was relocated, brought to the ICAC, videoed under caution, and arrested for offering an advantage to a public servant.

7. Senior officers of the ICAC then resolved to mount an undercover operation whose primary objective was to infiltrate those police circles that Ngau Wing claimed to have mixed in for the purpose of obtaining evidence to support the allegations which he had made of bribes having been sought and received. Secondary to that was the prospect that further police corruption might be uncovered. (emphasis added)

8. In return for his cooperation he and the Attorney General became parties to a series of participating informant agreements under which he was granted immunity from prosecution for criminal offending. But that immunity expressly did not extend to the prospective prosecution of the offence for which he had been arrested.

9. Over a period of several months spanning November 1996 to April 1997 Ngau Wing was instructed to make contact with the 1st respondent and, when he came to feature, the 2nd respondent, and to meet them. He telephoned them both from phones located in the offices of the ICAC. The calls were monitored and recorded. Ngau Wing was told what to say.

10. When meetings were set up he was told to attend and what to say. He was accompanied by an ICAC undercover operative known for the purposes of this trial as Heung Kai. Ngau Wing adopted the part of a senior triad society member and Heung Kai played the role of his follower and minder. Prior to each meeting they were briefed, Ngau Wing was instructed to talk to the respondents about what happened in 1992 and 1993 and in doing so attempt to draw from them admissions or other inculpatory material that might go towards establishing a case against them in respect of the corruption he had complained of. Heung Kai was instructed to do likewise within the constraints of his role as Ngau Wing's subordinate.

11. During the course of each meeting both Ngau Wing and Heung Kai were wired with tape recorders and the contents of the conversations entered into were recorded. It was during the course of the meetings that the 2nd respondent came to be implicated, and in particular as having been with the 1st respondent when one of the three payments of $150,000 was purportedly made by Ngau Wing and to whom half of this amount was allegedly paid.

12. The operation became overt at the end of April 1997. Both respondents were arrested and charged, the 2nd respondent facing the 5th charge arising out of his alleged participation.

13. In all, there were 39 tapes of the conversations. These have been transcribed into written Chinese and then in turn translated into English. The prosecution sought to introduce the tapes' transcripts and translations into evidence.

The Respondents' Case

14. The respondents made no concessions as to the authenticity and accuracy of the tape recorded evidence and intended to put the appellant to strict proof on this issue. However as a preliminary issue the respondents challenged the admissibility of the evidence which was to be adduced by Ngau Wing and Heung Kai of what was said during the course of the various telephone conversations and meetings of the parties, and the recordings and transcripts of the recordings of the conversations the parties engaged in."

83. The evidence in the voir dire also disclosed that Ngau Wing by his own admission had criminal convictions going back more than 30 years: in 1995 he was sentenced to a training centre for a period from nine months to three years; sometime in the 1970s he was convicted of being a member of a triad society; and he had become a member of a triad society in 1963 and remained one to the date of the trial. Ngau Wing was testifying under an immunity from prosecution which covered the following offences committed between 1963 and 22nd October 1994, namely, member of a triad society, lending monies at an unlawful rate of interest, operating a gambling establishment, possessing false identity cards, bribing police officers for protection from raids on gambling establishment, selling and exhibiting obscene video tapes, and assault and criminal intimidation of debtors and those close to them. It was also admitted by Ngau Wing that he had originally gone to the ICAC in October 1994 because he bore a grudge against the 1st Respondent and was angry with him because he thought the 1st Respondent had cheated him.

84. After setting forth the parties' submissions, the District Judge had the following to say:

"Directions on the Voir Dire

34. I regarded the challenge mounted by both respondents to the admissibility of this evidence as arising out of the doctrine that no one can be required to be his own betrayer. ...the burden falls on the prosecution, in the face of a challenge to the contrary, to prove such admissions, confessions or incriminating statements were made voluntarily. (emphasis added)

35. If it cannot, then evidence of such admissions, confessions or incriminating statements is rendered in admissible. If it can, then the evidence will come in, although there remains reserved to the court an inherent power to exclude it if to do otherwise would deny the defendant a fair trial. (emphasis added)

36. The kernel of the respondents' case was that the respondents were the subject of a trick or oppression or a deception. Their circle was entered by Ngau Wing and Heung Kai who, whilst playing the part of a triad senior and his follower, were in fact employed by or acting on specific instructions of the ICAC. Under that guise, they proceeded by further trickery, namely by lies and overt threats, to trap them into making admissions or incriminating statements. (emphasis added)

37. ...

38. ...

39. ...

40. I was of the opinion that on that issue of voluntariness it was for me to consider whether in this case there was deception and whether the incriminating material resulted because of it. This issue is very much a matter of fact with each case turning on its own particular circumstances. In determining this issue I asked myself the following questions (emphasis added):

(i) Was there deceit? and

(ii) did the respondents incriminate themselves as a result of it?

I then looked to the evidence to find answers to these questions.

Findings of Fact

41. From the evidence adduced on the voir dire I found as a fact that :

(i) Heung Kai was and is an ICAC officer commonly utilised as and experienced in the field of an undercover agent;

(ii) Ngau Wing was under express instructions to seek out the 1st respondent and, when he came into the frame, the 2nd respondent;

(iii) Ngau Wing's purpose was specific and his instructions were specific. He had to so engage the respondents that they might make confessions, admissions or otherwise reveal their involvement in crime undertaken several years ago. He was required to lie to maintain the cover and to encourage incriminating evidence and, along with Heung Kai, did so; (emphasis added)

(iv) the subterfuge spanned a number of months and a number of telephone calls and meetings. It was in fact destined to last for as long as was necessary for the objective to be achieved; (emphasis added)

(v) the respondents were made to believe over the passage of time occupied by the various telephone calls and meetings that Ngau Wing was looking out for his own interests assisted and protected by Heung Kai;

(vi) the respondents came to be unguarded in what they said, treating Ngau Wing and Heung Kai as equals, having swallowed the bait, unmindful of their true identity and the monitoring and recording. (emphasis added)

Conclusion

42. From the same evidence adduced I also came to the conclusion that :

(i) For the purpose of the exercise Ngau Wing was an ICAC operative whose expenses were paid by the ICAC, whose movements, conduct, what he was to say and what he was to ask, were specifically directed and controlled by the ICAC;

(ii) Ngau Wing, under threat of prosecution but with the prospect, which did eventuate, of immunity, was committed to do as he was told. He was anything but a free agent. So whilst pretending to be, as it were, one of the boys he was, to all intents and purposes for the duration of this operation, of the ICAC;

(iii) in essence, though the respondents had not been arrested and were not in custody, the circumstances were no different from that where a suspect is encouraged to make a statement explaining his involvement or absence of that in an offence that has been committed but without the rules and procedures that protect his right to avoid self-incrimination. (emphasis added)

43. To both the questions set out in paragraph 40, I therefore answered "yes" because I was satisfied in the circumstances that the respondents were subjected to a deception and by that tricked into incriminating themselves when in all likelihood they would not have done so but for that trick. (emphasis added)

44. I came to these conclusions not influenced by the 2nd respondent's case that he made no admissions under caution post arrest and thus post events dealt with in the voir dire.

Ruling on the Voir Dire

45. I therefore ruled that the evidence sought to be admitted which comprised that adduced by Ngau Wing and Heung Kai of conversations with the 1st and 2nd respondents and the recordings of these conversations was involuntary and thus inadmissible." (emphasis added)

85. There are four questions of law posed by the Judge in the case stated for the opinion of this Court, namely,

(i) Whether in the circumstances I applied the correct test to the issue as to whether the challenged evidence had been voluntarily obtained from the Respondents?

(ii) If the answer to (i) is yes, whether in the circumstances of this case it was, as a matter of law, open to me to rule the challenged evidence inadmissible as being involuntarily obtained?

(iii) If the answer to (i) is no, what is the correct test as to voluntariness of potentially inculpatory evidence obtained in the circumstances of this or similar cases?

(iv) Whether in the alternative, upon the facts I found to have been proven, it would have been open to me to exclude the challenged evidence in the exercise of my discretion, based in unfairness, it having been implicit in my decision founded in involuntariness that I found that manifest unfairness had been practised upon the Respondents by the undercover operatives?

Voluntariness

86. "Voluntariness" in the context of confessions is the basis of the District Judge's ruling under challenge and is crucial for the determination of the first three questions in the case stated. One can start the test of voluntariness with Ibrahim v R [1914] AC 559, an appeal to the Privy Council from Hong Kong, where one can find the often-quoted statement of Lord Sumner at 609-610:

"It has long been established as a positive rule of English criminal law, that 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. The principle is as old as Lord Hale."

87. The test was adopted and qualified by Lord Hailsham in DPP v Ping Lin [1976] AC 574 at 600D :

"The trial judge should approach his task by applying the test enunciated by Lord Sumner in a common sense way to all the facts in the case in their context much as a jury would approach it if the task had fallen to them. In the light of all the facts in their context, he should ask himself this question, and no other:

'Have the prosecution proved that the contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority (or where it is relevant, as is not the case on appeal here), by oppression?'"

88. The concept of oppression was explained in R v Prager [1972] 1 WLR 260 at 266 by Edmund Davies, L.J. that it imports something which tends to sap, and has sapped, the free will which must exist before a confession is voluntary.

89. A further gloss was placed on the test in Ajodha v The State [1982] AC 204 where Lord Bridge said at 221F:

"Fletcher's case was slightly different in that he was claiming that his signature to what in fact was a confession statement was obtained by the fraudulent misrepresentation that he was signing a document of entirely a different character. But it is conceded by counsel for the state, as their Lordships think quite rightly, that this equally raises an issue as to whether this statement was the voluntary statement of the defendant and therefore goes to admissibility."

90. This concept that a fraudulent misrepresentation will render a confession involuntary was adopted by Roberts, C.J. in Lam Yip-ying (1984) HKLR 419 at p 422H, thus

"...a statement is involuntary and so inadmissible if it was obtained by threats, promises, or oppression or 'deception' (to give fraudulent misrepresentation a simpler description)."

91. There is no need to deal specifically with threats or promises or oppression, for none of those formed the express basis of the District Judge's decision under appeal. The only ground which might be said to be relevant is "deception".

92. Before I deal with the scope of "deception", it is important to note that the ambit of "voluntariness" has been well defined by authorities and should not be extended. After referring to the cases of Ibrahim, Ping Lin, Ajodha and R v Sang [1980] AC 402, Roberts, C.J. said at p 422I in Lam Yip-ying as follows:

"None of the cases suggests that any discretion resides in a judge to widen the categories of conduct which will make a confession involuntary."

93. Litton J.A., as he then was, in R v Chow Chi Hing [1993] 2 HKC 214, at 217E also expressed the same view:

"The judge has no jurisdiction to extend the 'concept of voluntariness' nor any discretion willy-nilly to exclude evidence which in law was otherwise admissible. A trial judge's residual discretion in these circumstances is very limited as this court has made clear recently in R v Choi Tak Hing (Crim App 382/92, unreported) on 19 March 1993."

Deception

94. Where none of the settled grounds such as threats, promises, oppression or deception applies, a confession cannot be said to be involuntary. More to the point regarding the present appeal, a confession that is made to an undercover policeman by an accused or a suspect not knowing the true status of the officer is not involuntary. It was so held in Lee Yi-choi [1985] 1 HKC 578 where a confession was obtained from the accused in custody by a police officer posing as a fellow inmate in the same cell. McMullin, V-P at p 585G said:

"It has not been suggested that the confession was irrelevant or induced by fear of prejudice or hope of advantage excited or held out by a person believed by him to be in authority, or by oppressive conduct in the sense outlined in R. v. Prager [1972] 1 WLR 260. In contrast to the case of the first appellant in Ajodha v. The State [1982] AC 204, where a written confession had been signed under a misapprehension as to its character, he was the true author. The confession was, we are satisfied, voluntary. In Canada, the Supreme Court has held that disapproval of methods used to obtain it will not preclude the reception in evidence of a voluntary statement. R. v. Rothman (1981) 59 CCC (2d) 30."

95. Mr. Chandler for the 2nd Respondent relies on a number of Australian cases regarding the meaning of voluntariness, which was interpreted as a person exercising and being able to exercise free choice to speak or to be silent (see McDermott v R (1948) 76 CLR 501; Cleland v R (1982) 151 CLR 51; Van Der Mear (1988) 62 ALJR 656; Foster v R (1993) 66 A Crim R 112). He also cites Canadian authorities to demonstrate that voluntariness has been understood in that jurisdiction as free choice whether to make a statement to the police (see R v Hebert (1990) 77 CR (3d) 145; R v Broyles (1991) 9 CR (4d) 11). However, these Commonwealth authorities were decided on the basis that the courts would prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities, and so are of limited value for ascertaining the scope of "voluntariness" in our law.

96. In spite of the authorities cited from Australia and Canada, I am not persuaded that "involuntariness" includes a case where a suspect or an accused willingly talks to a person whose true status he does not know, or whose true status is concealed from him by the addressee. The status of the addressee cannot be likened to the character of the document that a suspect or accused signed as in Ajodha, for the status of the addressee would only in extremely rare situations properly be classified as a matter that vitiates the will of the speaker. For example, if a suspect boasts of a crime that he has committed to a friend or stranger, not knowing but thinking that the addressee will not repeat that to the police, his statement cannot be said to have been involuntarily made if his friend or the stranger goes to report it to the police. If the stranger tells him a false name, I do not think that will affect the voluntariness of his statement either. If an undercover policeman conceals his true status, the suspect's conversation with him is subject to a similar, albeit probably greater, danger of exposure as he faces his own friend or a stranger to which he would like to divulge his misdeeds. I do not think that normally absence of knowledge of the true status of the addressee, either self-induced by the speaker or induced by a trick by the addressee, affects voluntariness. Conversely, the character of the document signed by the signatory does affect his will, because if he has been misled to believe that it is a document of an entirely different character from what he is told, then his will is not to sign it; his wish or intent to sign a document not of the character as represented to him vitiates his intent to sign the document.

97. The confessions in the 39 conversations recorded between Ngau Wing and Heung Kai of the one part and the 1st Respondent and/or the 2nd Respondent of the other part cannot be said to come within any of the rules of voluntariness summarised above.

Discretion - Unfairness

98. It is well settled that while a confession may be proved to have been voluntarily made and therefore admissible, the trial judge retains a residual discretion to exclude it from evidence. It is submitted on behalf of the 1st and 2nd Respondents that the ground for the exercise of this residual discretion can be generally called "fairness".

99. In Lam Yip-ying, supra, Roberts C.J. also dealt with the residual discretion of the trial judge to exclude evidence. At p 423E of the report, he said:

"It was not in dispute at the hearing of the appeal that a residual discretion resides in a trial judge to refuse to admit, on the ground of unfairness, any evidence, including a statement which he has ruled to be of a voluntary nature (See R. v. Sang [1980] AC 402, Lai King-ming v. R. Crim App No. 380/83, unreported and Leung Cheuk-fan v. R. Crim App No. 964/83, unreported).

Unfairness may arise either by virtue of the circumstances in which a statement was taken or because its use in evidence would be unfair to the defendant." (emphasis added)

100. Later on, the Chief Justice dealt with the correlation between involuntariness and unfairness. At p 424 of the report, he said:

"It may be of help if we summarize the duty which lies on a trial judge at the end of a voir dire, when he must ask himself-

(a) has the Crown established beyond reasonable doubt that the statement is voluntary in the sense described above; and

(b) if he is so satisfied, and the evidence suggests that it was obtained 'unfairly', or that its use in evidence would be unfair, should he exercise his discretion to exclude it?

The power to exclude confessions on the ground of unfairness should seldom be employed. Firstly, because it involves the judge in withdrawing relevant and admissible evidence from the jury, whose function it is to weigh such evidence. Secondly, because in almost all cases, the kind of conduct which would constitute "unfairness' should already have excluded the confession as involuntary." (emphasis added)

101. In AG v Lam Man-wah (No 2) [1992] 2 HKC 70 at 71H, the Court of Appeal endorsed the principle that once a confession is found to be voluntary the power to exclude it should be seldom employed. It stressed that the residual discretion vested in a trial judge is not a general licence to exclude evidence which is relevant and probative in proof of guilt. See also Litton, J.A.'s statement on the limited scope of the residual discretion in R v Chow Chi Hing cited above.

102. In R v Murphy [1965] NI 138, 149, Lord MacDermott dealt with unfairness in which a statement was taken, as follows:

"Unfairness in this context cannot be closely defined. It must be judged in the light of all the material facts and findings and all the material circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence may all be relevant."

103. In R v Sang [1980] AC 402, Lord Scarman said at pp 456H-457A:

"...the principle of fairness, though concerned exclusively with the use of evidence at trial, is not susceptible of categorisation or classification and is wide enough to embrace the way in which, after the crime, evidence has been obtained from the accused."

104. Lord Frazer expressed a similar view at p 450E that:

"the purpose of the discretion is such that it should be sufficiently wide and flexible to be capable of being exercised in a variety of circumstances that may occur from time to time but cannot be foreseen."

105. Lord Diplock in the same case, on the other hand, pointed out that the purpose of the exercise of the discretion was limited to attempting to secure for the accused a fair trial. He said at pp 436G-437C:

"The function of a judge at a criminal trial as respects the admission of evidence is to see that the accused has a fair trial according to law. It is no part of the judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used in the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained but how it is used by the prosecution at trial.

A fair trial according to law involves, in the case of a trial upon indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt upon evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of the judicial function to exclude it for this reason."

106. I am mindful that in Sang, the House of Lords was not asked to deal with confessional statements. However, what had fallen from their Lordships is apposite for our consideration in this case. I accept the analysis of the relevant authorities by Mr. Macrae, SC for the 1st Respondent, and have given due weight to the difference in legal treatment between confessions and other kinds of evidence. It can be discerned from the above statements of the law on "unfairness" or otherwise that there are two kinds of "unfairness": unfairness in the conduct of obtaining a confession and unfairness by the admission of evidence including confessions which will prevent the accused from having a fair trial.

107. Counsel for the Respondents have not sought to argue that the admission of the 39 confessions of their clients would undermine a fair trial for them. Their only complaint is that the conduct of the ICAC in obtaining the confessions was unfair. The scheme was to use Ngau Wing, an undisputed accomplice of the alleged corruption involving the two Respondents, with Heung Kai, an ICAC officer who posed as Ngau Wing's follower, to renew friendship with the Respondents with the aim to obtain confessions from them relating to the alleged corruption. Ngau Wing and Heung Kai were constantly acting under the directions of a senior ICAC officer, and by various ways of questioning they pursued the Respondents to achieve the aim. The methods adopted with the concealment of the true status of the two witnesses being ICAC operatives amounted to tricks perpetrated on the Respondents who, but for those tricks, would never have divulged anything incriminatory of themselves.

108. Mr. Bruce, SC for the Appellant draws our attention to R v Jelen and Katz (1990) 90 Cr App R 456 where the witness Dempsey agreed with the police to tape record a conversation with one of the accused persons, Jelen, and without letting Jelen know, did tape record an incriminating statement made by Jelen. The Court of Appeal in England held at p 464 as follows:

"It is true, as submitted by counsel for Katz and Jelen, that this case went beyond the deliberate overhearing of a defendant in conversation. It involved the instigation by Dempsey of a recorded discussion with Jelen in which he deceived Jelen. There was undoubtedly an element of entrapment. But did that make it unfair so as to require the judge, in the exercise of his discretion, to exclude the evidence? He took that view that it was not unfair, and we can see no reason to disagree with him."

109. Mr. Bruce therefore suggests that although Ngau Wing was described by the District Judge as an ICAC operative, he was in the same position as Dempsey in Jelen and Katz, and his having conversations with the Respondents and having those conversations taped should, on examination of the circumstances, not be treated differently as unfair. This submission should apply all the same regarding the conduct of Heung Kai, the ICAC offer who accompanied Ngau Wing in the scheme posing as the latter's follower. However, Mr. Macrae points out that in Jelen and Katz what the Court of Appeal did was to agree with the trial judge's conclusion that the obtaining of the admissions from Jelen was not unfair and the exercise of his discretion in admitting the evidence was based on his various findings including the following:

"Nobody advanced any misleading information to Mr Jelen to make him speak in terms which he otherwise would not have spoken ...

"Mr Jelen, at this stage, had not been arrested. He had never been interviewed and there seems to me to be enough in the circumstances of this case to suggest that none of the action of the police was improper in any way."

110. In Swaffield and Pavic (1998) 96 A Crim R 96, where two situations of obtaining confessions were examined. Swaffield made admissions to an undercover police officer posing as a purchaser of illegal drugs concerning his involvement in an earlier arson in respect of which the police had withdrawn committal proceedings against him. The conversations were covertly recorded without Swaffield's knowledge. Pavic was suspected by the police of having committed a murder and following his exercise of his right to refuse to answer questions, the police engaged a friend of Pavic to question him as their agent without the usual caution being given and the admissions were taped. The High Court of Australia held that Swaffield's confessions were properly excluded and Pavic's were properly admitted, for the reasons that can be found in Kirby J.'s judgment at 147 of the report:

"The fact that the conversations were with an undercover police officer is not alone decisive. It is necessary to consider the way in which the conversations proceeded. Having examined the transcripts, I have concluded that Constable Marshall did not speak to the accused as an acquaintance might have done, neutrally or indifferently. Instead, by his questions, he actively sought to elicit critical information - such that the exchange is properly to be characterised as akin to a police interrogation. Such an interrogation by an undercover police officer unfairly derogated from Mr Swaffield's free choice to speak or be silent. The resulting confessional statements ought therefore to have been excluded in the exercise of the residual discretion."

111. Earlier on at p 144 of the report, Kirby J. also had the following to say:

"Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology ... The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the right to exercise a free choice to speak or to be silent. Or it will be crossed where police have exploited any special characteristics of the relationship between the suspect and their agent so as to extract a statement which would not otherwise have been made." (emphasis added)

112. Although the extent of the rules for protection of the accused's right to be silent in Australia seem wider than those in Hong Kong and England, I accept the submission of Mr. Macrae that the key distinguishing feature in the High Court of Australia's treating the confessions of Swaffield on the one hand and Pavic on the other differently was that there was deliberate elicitation of critical information akin to police interrogation from Swaffield.

The Right to be Silent

113. Mr. Macrae relies on the Respondents' right to remain silent. It is to be noted that the right to remain silent or the right not to be required to be one's own betrayer is premised in many of the authorities upon the accused's position vis-à-vis that of the investigating authority, to prevent oppression of the citizen by the police or other authorities of the state. Their respective positions are not equal and the accused is therefore vulnerable and easily susceptible to any threat or inducement uttered by the investigating agent who is the person in authority to which the suspect is subject. If, however, the accused does not appreciate that he is conversing or dealing with a person in authority, then his right to remain silent may not be affected, and if he volunteers a confession without it being elicited from him, there may well be no occasion for the court to exercise its discretion to exclude the confession. This notwithstanding that the investigating officer has not disclosed his actual status to the accused or has by design concealed his true position from him.

114. One facet of the rule regarding investigation by undercover operation is that where a suspect is in custody, his dealing with any person in authority will be treated as not on equal terms, for he is vulnerable and more easily susceptible to coercion, however slight. Thus in R v Lee Yi-choi where a confession was obtained from an accused in custody by an undercover police officer posing as a fellow inmate in the same custodial cell, the Court of Appeal overturned the judge's ruling that he had no discretion to exclude the confession. McMullin, V-P had this to say, at 586-588:

"As to the latter maxim and whether or not Jeremy Bentham was right in saying that 'innocence claims the right of speaking as guilt invokes the privilege of silence' it is unquestionably the law that no inference adverse to an accused person is to be drawn from his failure or refusal to answer questions put by a police constable or other person in authority for the purpose of discovering whether he has committed a criminal offence. A suspect is accordingly entitled to elect whether or not to answer such questions. Different consideration applies when persons are speaking on equal terms. By concealing the fact that his cell-mate was in fact a person in authority the police deprived the applicant of the opportunity to exercise this common law right and breached the English Judges' Rules of Practice propounded in 1912 which normally are, and, as this court indicated in R. v. Leung & Ors (Crim. App. 194//83, unreported), certainly should be observed in Hong Kong requiring a person in custody to be cautioned, and thus informed or reminded of his relevant right, before any attempt is made to question him in relation to the offence with which he has been charged. ....

... Further, we would emphasize that while subterfuge is a recognised and often indispensable weapon in the police armoury for the detection of crime, stricter standards must apply when a suspect is in custody. Public confidence in the integrity of the judicial process must not be prejudiced.

Applying the approach outlined by the House of Lords in R. v. Sang [1980] AC 402 and of this court in R. v. Leung & Ors (Crim. App. 194/83, unreported), it is apparent to us that the admission in evidence of the applicant's confession did endanger the principles which exist in law to secure fair trials and that the administration of justice was thereby brought into disrepute. The end, being the conviction of the applicant, did not justify the means employed. The learned judge was wrong both in directing himself that he could not, as the law presently stood, exclude it, as he apparently wished, and, sequentially, in failing so to do." (emphasis added)

115. In Australia, Kirby J. in Swaffield and Pavic accepted that the right to be silent was "to prevent oppression by the police or other authorities of the State". Insofar as there is any reasonable doubt that there was oppression to sap the will of the suspect or accused so as to obtain his confession, as defined in the authorities cited above, that right is fully protected by the law mandating the exclusion of the confession as being involuntary. Moreover, if the course of investigatory conduct is such that a confession is elicited by the investigating agent in unfair derogation of the right to silence, then the confession may be excluded on the ground of unfairness.

Conclusions

116. My conclusions are that the Judge was wrong in holding that the confessions were not made voluntarily by the Respondents. I am of the view that the Judge had erred in his understanding of the word "deception" in the context of this branch of the law. The confessions contained in the 39 taped conversations were voluntarily made by the 1st and 2nd Respondents.

117. The Judge has, however, undoubted residual discretion to exclude the confessions which were otherwise admissible by applying the rule that the circumstances in the obtaining of the confessions are unfair, or that the admission of the evidence would prevent the Respondents from having a fair trial. Although what he considered was whether the admission of the confessions would deny the Respondents a fair trial (see paragraph 35 of the case stated cited above), he also apparently had in mind the exercise of his residual discretion under the first limb of "unfairness", as he described the scheme as manifestly unfair to the Respondents and concluded that the scheme was tantamount to encouraging a suspect to make a statement explaining his involvement or otherwise in an offence that has been committed but without the rules and procedure that protect his right to avoid self-incrimination. On the facts in the case stated, it cannot be said that there was no material upon which he could exercise his discretion to exclude the confessions.

118. I would answer the questions in the case stated as follows:

(i) Yes, save that the Judge misunderstood the ambit of "deception".

(ii) No.

(iii) The question now requires no answer.

(iv) Yes, the Judge has the undoubted discretion and there was material upon which it would have been open to him to exclude the challenged evidence in the exercise of that discretion.

119. In the result, I agree with my brethren, whose judgments I have the privilege of reading in draft, that the appeal should be dismissed.

Representation:

Mr. Andrew Bruce, S.C., S.A.D.P.P. & Mr. I.C. McWalters, S.A.D.P.P. 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 for 2nd Respondent.

Remarks:
On application by the Secretary for Justice to the Court of Final Appeal: Leave to appeal is granted. Please refer to Determination FAMC000024/1999.

(I) On application by the Secretary for Justice to the Court of Final Appeal: Leave to appeal is granted. Please refer to FAMC24/1999. (II) Please refer to FACC9/1999 for the relevant appeal(s) to the Court of Final Appeal.