The Queen v. Li Hung Wah and Others

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CRIMINAL JURISDICTION

CASE NO. 162 AND 169 OF 1972

(CONSOLIDATED FOR TRIAL)

_________________

Between

_________________

Coram: Judge Davies in Court

Date: 29^th November 1972

__________________

RULING

__________________

1. I am now asked to decide how to exercise my discretion to either admit or reject as evidence, a statement written by A2 during an interview with D/Sergt Mak at Fanling Police Headquarters C.I.D. room on 6.9.72.

2. Before announcing my decision, it seems appropriate to make certain observations on the matter of confessions generally.

3. I am sure that wherever the English system of criminal procedure is followed there is no single problem confronting judges and magistrates, which causes so much difficulty as that of admissibility of confessions. At least two attempts have been made to formulate principles or guidelines to assist in the solution of the problem, which we now refer to as the “old” and the “new” judges rules.

4. With the greatest respect to the well-meaning brains behind them, both are an abject failure; and the reason why they cannot provide the solution we seek is that a human problem cannot be solved by any legal formula. The worthy men might have served the cause of justice better, if, instead of attempting the impossible they had seen fit to recommend a fundamental change in the law of evidence which I am convinced will ultimately become inevitable – namely that all extra-judicial confessions be treated alike, either admissible or inadmissible.

5. Some 12 years ago, I had the benefit of a private discussion with an East African Supreme Court Judge who, as a matter of principle, never admitted in evidence any confession made by an accused person to a police officer which was afterwards retracted in Court. I was then unconvinced that such a ruthless method of solving the problem was really necessary. It seemed, at the time, to negate the concept that each and every difficulty of this type should be solved on its merits. Though the test must be reduced to the simplest possible form, I considered the straightforward question “Was the statement made voluntarily?” to be an attractive way of dealing with it.

6. I am now, however, increasingly aware that even this is often unsatisfactory. The whole concept of confession goes deep into the history of mankind, with marked undertones of religion and mysticism. It is primarily a psychological matter.

7. For example, even the word “voluntarily” means different things to different people. To some it conveys the mere absence of violence, threats or improper inducements. I doubt however if it means just that to many of the suspects inside police stations. That test ignores completely the effect which environment and stress can have on the human mind. How can one explain away the not inconsiderable number of persons who without apparent duress or inducement, confess to the police crimes which it has been afterwards proved, they did not commit and indeed could not have committed?

8. In my view it is somewhat dangerous to think that if any confession is admitted into evidence which was not truly voluntary, the matter can easily be rectified later when its weight has to be considered together with the rest of the evidence. In a jury trial, no matter how the judge has summed up to the jury, one can never be until such time as its voluntariness has been ruled upon as a matter certain how much weight will nevertheless be attached to the accused’s statement; and in a trial without jury, no matter that the judge or magistrate is legally-trained, he is also human, and perhaps even subconsciously, the true effect or his mind of reading a confession is incalculable.

9. The longer my experience the more I incline towards the view that ultimately the force of voire dire proceedings must be done away with. Earlier this year there were discussions on this subject between the acting Chief Justice and the Attorney General. Judges were invited to submit their comments on the problem. I do not know what conclusions, if any, were reached, but I personally feel that some positive action is necessary, and as soon as possible.

10. It is interesting to recall that the object of the original judges rules was not so much to bind the courts as to restrain police officers from using improper methods to obtain confessions. It follows from this that it is immaterial whether the confession contains the truth or is false. It was the intention behind the rules that all confessions improperly obtained, whether true or false, should be excluded from production in evidence. The logic behind this was that if the courts are prepared to admit a statement extracted from an accused by improper means, whether it contains the truth or not, it would encourage the police to use similar methods in the future. The result of using such methods could obviously result in confessions by innocent persons.

11. To give respect where it is due, I think it is a measure of the tenacity of the Bench, that for years, judges and magistrates have wrestled with a problem which in all conscience, most of them view with distaste and rule upon with misgiving.

12. In Wong Kam Cheung v R (1967) H.K.L.R. 610, the President of the Full Court, (Hogan C.J.) said obiter:

13. “The practice of holding a voire dire in order to determine whether an alleged confession should or should not be admitted, finds its origin in the desire to keep the document or statement from the jury until such time as its voluntariness has been ruled upon as a matter of law.

14. The reasons which prompted the introduction of the somewhat cumbersome procedure of a trial within a trial in such circumstances, have little relevance to the situation which exists when a judge is sitting alone ……”. With those comments I humbly and emphatically agree.

15. As I earlier stated, the question before me is whether to admit or reject a statement made by A2.

16. Learned Crown Counsel, and A2, have properly approached the issue on the basis of its determination by voire dire.

17. It was my original intention to approach it in the same way. The contest has run its full course, and if bound on that evidence alone, to declare a victor, my verdict would go to the Crown, for D/Sergt. Mak’s credibility was in my view far superior to that of A2 and his witness A1.

18. The cross-examination of these latter two, and the evidence in rebuttal given by D.P.C.6881, has virtually destroyed the defence case in the voire dire proceedings.

19. Having gone thus far, should I then admit the statement of A2 in evidence?

20. The answer clearly is yes, unless I do not regard the voire dire proceedings as the only basis for the exercise of my discretion.

21. Faced with the question of whether or not to admit A2’s confression to D/Sergt. Mak, which he (A2) maintains was not voluntary, the approach of Mr. Justice Cram (as he then was) commends itself to me, and I would exercise my discretion against the admission of this document in evidence despite the evidence before me in the voire dire proceedings.

22. This is because I believe that the voluntariness (in the very widest sense) of any confession made to a police officer and later retracted in court by the accused person, must always be in doubt.

23. What then is the real value of voire dire proceedings; if one feels from the very outset that a doubt exists?

24. If the statement is the result of true remorse and contrition felt in the police station, then is not the accused likely to maintain that attitude when he is before the court, and agree to the admission in evidence of his statement?

25. The very fact that he adopts a different attitude in court must give rise to an obvious suspicion that his statement to the police was not a free expression, made in full realization of all the consequences.

26. I decline to admit the document in evidence.

27. Perhaps the Crown may wish to consider an application under section 81(2) of the C.P. Ordinance.

Mrs. Jackson-Lipkin, c.c. for Crown

2^nd Accused in person

Court Note to all Addressees:

28. “As a post-script to this ruling, I would add a pertinent observation which I had intended to include in the ruling, but was unable to do so because of difficulty in finding the reference prior to the delivery in open court. It is not therefore part of the record, although I may decide to mention the ruling in my trial judgment; and if so, the quotation will then be included.

29. It is the well-known dictum of Cave, J. in R v. Thompson (1893) 2 Q.B. (and quoted by Rigby, J. (as he then was), when delivering the judgment of the Full court in Chan Hung v. R. (1961) H.K.L.R. 721, at p.727):

30. “I would add that for my part I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse, to supplement it with a confession; a desire which vanishes as soon as he appears in a court of justice”.

31.In my view, no comment which could be made 80 years later, and on the opposite side of the Globe, more adequately sums up the problem faced by the courts in deciding whether or not to admit retracted confessions in evidence.”