The Queen v. Ip Tat Shing and Others

DCCC 90/1971

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CRIMINAL JURISDICTION

ACTION NO. 90 OF 1971

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Coram:  Judge O’Connor in Court.

Date of Ruling: 29^th February 1972

R U L I N G

1. I have to decide whether or not a confession is admissible and if so whether it should be excluded in the exercise of discretionary power.

The Law

2. The law as to admissibility of statements made by accused persons has given rise to many decisions and as is to be expected many of them are not reconcilable.

3. The law of evidence has developed and is still developing, the present tendency in general being to admit all evidence which has a probative value, so long as its probative value is not exceeded by its prejudicial effect.

4. Prejudicial in this respect refers to the damage that would be done to a defendant’s case by an improper use of the evidence, not damage that would be done by a proper use.

5. R. v Sigmund 1968 Canadian Cr. C. 92 and where the case is being tried by a judge without jury (or by a magistrate), the words of Hogarth J. in Evans v. F (1964) South Australian State Reports 131 at 147 are apposite:

“In order to exercise his discretion to exclude the evidence the magistrate would have to consider it and its allegedly prejudicial effect, and assuming that he were to exercise his discretion to exclude it, the law proceeds on the assumption that he is able to shut out from his mind what he should ignore as being unduly prejudicial.  It is not unreasonable to expect that the same magistrate could perform the mental feat of admitting evidence which is technically admissible, but of not giving it weight beyond its probative value.”

and see remarks of Huggins J. in R. v. LI Wai-leung 1969 H.K.L.R. 642.  However, as regards voluntary confessions, the discretion to exclude appears to be on a somewhat wider principle than risk of prejudice, and is apparently based on fairness.  In some cases, the distinction between admissibility and exercise of discretionary powers in respect of statements by accused persons is not sufficiently distinguished.  They are distinct matters though related and to a degree overlapping and interwoven.  However there is a vital distinction.  The question of discretion only arises if the evidence is admissible.  If it is not admissible then the question of discretion does not arise.

6. In referring to cases one must of necessity be selective.  I, myself think the law is most clearly set out in the decision of the High Court of Australia in R. v. LEE (1950) 82 Commonwealth Law Reports 133, which I consider demonstrates a full knowledge and understanding of the law.  It sets out the Common Law and the decision is not dependent on local legislation.  I also find of particular assistance the decisions in R. v. Corr 1968 Northern Ireland Reports 193 and R. V. LI Wai-leung 1969 H.K.L.R. 642.

7. For a confession made by an accused person to be admissible in law there are two rules to which it must conform:-

(1)         It must be relevant;  and

(2)         It must be voluntary.

There is an exception as to the necessity for voluntariness where one accused seeks to have admitted in evidence a confession made by a co-accused R. v. Attard, R. v. Mifsud (1970) 1 New South Wales Reports 750, but in such circumstances a special direction to the jury is necessary as to the purposes which for which confession is admitted. The rules apply also to admissions which do not amount to confessions.

8. Commissioners of Customs and Excise v. Mars 1967 2 H.K.L.R. 297.  The wording of the Judges’ Rules referred to at page 304 therein, as emphasised by Lord Reid, would indicate that the rule as to voluntariness also applies to an exculpatory statement made by an accused if the Crown wishes to lead it e.g. to show a concocted story.  This has been specifically held by the Supreme Court of Canada in Piche v. R. (1970) Canadian Criminal Cases 27, and there is a similar implication in Lee’s case at page 146 and page 152, and it was so assumed without being decided in A.G. v. McCabe 1927 Irish Reports 129.  It is not clear from the report whether or not this test was applied to the statement in Mawaz Khan v. R.  1966 3 W.L.R. 1275.

9. I do not propose to deal with the question of relevance which seldom causes difficulty, but pass on to the matter of voluntariness.  Many of the cases and authors treat voluntariness as if it is merely a matter of whether or not there were threats or inducements held out by a person is authority.  However those are simply one class of matters that show involuntariness, and the rule is not thereby fully stated.  These cases and authors are too narrowly construing the words of Lord Sumner is Ibrahim v. R. 1914 A.C. 599, 609 where he said

“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.  The burden of proof in the matter has been decided by high authority in recent times in R. v. Thompson [1893] 2 Q.B. 12 …………

The appellant’s objection was rested on the two bare facts that the statement was preceded by and made in answer to a question, and that the question was put by a person in authority and the answer given by a man in his custody.  This ground, in so far as it is a ground at all, is a more modern one.  With the growth of a police force of the modern type, the point has frequently arisen, whether, if a policeman questions a prisoner in his custody at all, the prisoner’s answers are evidence against him, apart altogether from fear of prejudice or hope of advantage inspired by a person in authority.”

10. The passage of Lord Sumner was considered by Lord McDermott in R. v. Corr 1968 Northern Ireland Reports 193, 210 where after quoting it, he continued:

If the definition which resides in the words ‘not …… obtained ….. “by fear of prejudice or hope of advantage exercised or held out by a person in authority’ is to be applied literally, the statements in question were in our view rightly admitted as voluntary, for the police made no threats offered no inducements, and did nothing to create a fear of prejudice or arouse appellants’ hopes ……….  But should this definition be expanded beyond its literal meaning ……….

The rule of law described by Lord Sumner cannot have been intended to apply to all statements which are alleged not to be voluntary, for it relates solely to the conduct of persons in authority;  and it is plain also, if only from what Lord Sumner himself said towards the end of the passage just quoted and from his review of the authorities in the same case, that he did not intended his words to apply necessarily to the questions by a person in authority of a suspect in custody.  Whether conduct of that sort would render a statement obtained by it inadmissible was one of the matters raised by the facts of Ibrahim’s case, but it was not decided and cannot yet be regarded as entirely settled.  As Lord Sumner indicated, the rule he stated is one of policy rather than logic, being directed to the control of those, such is the police, who are in a position of power and authority.  But, while this explains why the scope of the rule is confined to what arises from the conduct of this class of persons, it would be verging on the irrational to limit it also to instances of threats or inducements inspiring fear or hope and so as to exclude other forms of conduct by the same class which might be no less capable of eroding the will of the suspect concerned.  The effect of a vigorous cross-examination or – to use the words of Pigot C.B. in R. v Johnston (1864) 15 Irish Common Law Reports 60, 122 – of ‘ a series “of searching interrogatories’ on one who is not free to get away from his questioner may, in certain circumstances, be to arouse hope of release or fear of further retention or other prejudicial result in the mind of the suspect, according to whether or not he makes answer or keeps silent.  But it may also act more directly by subjecting to the person questioned to a degree of pressure which saps his will and makes him talk.  We think such pressure may well lie within the principle of the rule enunciated by Lord Sumner although not within its express terms, and may thus suffice to make statements obtained by it inadmissible in point of law.”

It is to be observed that Lord McDermott was expressing his view that the observation of Lord Sumner may extend to other conduct by those in authority then the instances mentioned by Lord Sumner.  Lord McDermott did not extend this other conduct – which is referred to as oppression in the preamble to the new Judges’ Rules, and see the note to Priestley’s case at page 1 (1967) 51 Criminal Appeal Reports – to conduct by persons not in authority.  However the High Court of Australia has held that the basic principle of voluntariness would include oppression by any person.  In R. v. Lee (1950) 82 Commonwealth Law Reports 133, it said at page 144 referring to the judgment of Dixon J. in McDermott (1948) 76 Commonwealth Law Reports 501,

“These rules stated in abbreviated form are – (1) that such a statement may not be admitted is evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority unless it is shown that the inducement has been removed.  These two ‘rules’ are, of course well established, but it is important, we think, in this case to observe that they seem to be not really too independent and co-ordinate rules.  There seems to be really only one rule, the rule that a statement must be voluntary in order to be admissible.  Any one of a variety of elements, including a threat or promise by a person in authority will suffice to deprive it of its voluntary character.  It is implicit in the statement of the rule and it is now well settled that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible.”

11. This decision appears to me to state the position admirably as to admissibility in law.  The statement must be ‘voluntary’ using that word in its broad sense.  Although it must be ‘voluntary’ it need not be ‘volunteered’.

12. A.G. v. McCabe 1927 Irish Reports 129

13. R. v. Lee 82 Commonwealth Law Reports at 149

It appears that the new Judges’ Rules envisage oppression as being something rendering the confession involuntary, and as being additional to fear of prejudice or hope of advantage held out by someone in authority.  See rules (1964 1 W.L.R. 153) state at para.(e) of the introduction:

“That it is a fundamental condition of the admissibility ……………., that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.”

The word ‘ oppression’ is not subject to the phrase ‘person in authority’  and Winn L.J. was giving expression to the recognition of a wide interpretation of what may render a statement involuntary than the strict terms of Ibrahim’s case would warrant, when in R. v. Richards 1967 1 W.L.R. 653 at 655 after referring to inducements from a person in authority, he went on to say:

“This sphere of inducement is quite separate from the sphere in which persons not in authority make promises or threats which are alleged subsequently to have induced a statement or confession. In that sphere the essential question is always what was in fact the effect of the inducement.  Did it go so far as to deprive the person to whom it was made of free will and choice as to whether or not he would make a statement as he did?”

See also the remarks of Winn L.J. in R. v. Northam 52 Criminal Appeal Reports 97.  This view of the law might be considered to be narrowed down by the decision in Deokinanan v. R. 1968 3 W.L.R. 83, however that decision is within a narrow compass.  The ratio was that there had been no threat or inducement at all.  It then went on (obiter) to state at page 92:

“There is, however, in their Lordships’ opinion, no doubt that the law as it is at present only excludes confessions induced by promises when those promises are made by persons in authority.”

As is pointed out by Supreme Court, New Zealand in Manisani v. R. 1971 New Zealand Law Reports 269.  This passage is only dealing with inducement by promises, and not with threats or force.  Nor it may be added with ‘oppression’.  Further Deckinanan’s case leaves it open that the passage quoted is only referring to instances where it is conclusively presumed that the statement is not voluntary, as distinct from the other class of cases referred to by Winn L.J. in Richards’ case.  It is to be observed that the Court in Nanisani while holding that to be inadmissible the statement must be induced by some other person, in the sense is that it is not sufficient that the accused’s will is overborne by something arising within himself, the Court did confirm that the New Zealand Courts take a broad view as to what may render a statement inadmissible as not being voluntary.  See also R. v. Williams 1959 New Zealand Law Reports 502.

14. The brief report to hand of R. v. Prager 1972 Criminal Law Review 31 supports a broad view.

15. It is for the Crown to prove that the confession is voluntary in the sense above referred to.  The weight of evidence necessary to discharge such onus depends on the circumstances of the particular case.  A scintilla may suffice R. v. Lee Fat 1969 H.K.L.R. 349 and see A.G. (N.S.W.) v. Martin (1909) 9 Commonwealth Law Reports 713.  In England and Hong Kong, the burden is proof beyond reasonable doubt.

16. R. v Sartori 1961 Criminal Law Review 397

17. R. v. Wilson and Marshall Graham 1967 2 W.L.R. 1094

18. R. v. WONG Kam-ming 1970 H.K.L.R. 446

The rule is different in Australia Bende v. R. (1963) 109 Commonwealth Law Reports 559, and see article ‘Admissibility of Confessions – the Standard of Proof’ in 1964 Criminal Law Review 287.  When deciding whether the statement is voluntary, the Court looks at all the evidence before it, and exercises its common sense in concluding whether it is voluntary.  Among other matters which it considers are the behaviour of the police, and when judging this behaviour reference can be had to any rules of police conduct, or any persuasive matter indicating what might be improper conduct.  It is under this heading that the Judges’ Rules whether old or new are borne in mind when deciding voluntariness.  However, voluntariness does not depend on whether or not the rules have been observed or broken.  The rules are a convenient guide as to how the police should behave, and they assist in deciding whether or not the statements were made voluntarily.  That a breach of the rules does not render a statement necessarily other than voluntary would appear to be self obvious.  The leading case on this is R. v. Voisin 1918 1 K.B. 531 which has been followed so frequently as to be well settled law.  See for example R. v Svenell 1968 2 W.L.R. 1543.   R. v. Prager 1972 Criminal Law Review 31.  It is however interesting to note that Voisin’s case was not concerned with the admissibility of a confession at all, but with the admission of real evidence.  It was not concerned with using against an accused a statement as evidence of the truth or otherwise of its contents. This was recognised by the observations of Lunn J. during argument.

19. In the judgment of the Full Court in R. v NG Sik-chiu Criminal Appeal No. 1/67 delivered by Rigby, S.P.J. (as then was) the following passage occurs:

This argument seems to suggest that the rules are some form of ritual or incantation which must be observed with unvarying precision if any incriminating statement made by as accused is to be admitted, and overlooks the fact that the rules are simply rules of practice which the judges have indicated should be observed so as to assist them in determining whether a statement should or should not be excluded as not being voluntary.  The core of the matter is whether the statement is voluntary or not and this is the ground on which the judge must make his decision: ……….”

Incidentally this passage like R. v. Prager would indicate that the question of discretion does not arise.

20. Once he has decided the confession is voluntary it follows that it is admissible in law.  However though admissible in law there is a discretion in the Court to exclude it.  In this point the first point to note is that the discretion is a discretion to exclude not a discretion to admit.  This point was made clearly, when dealing with an allied discretion.  In King v. R.  1968 W.L.R. 391 at 397 in the words of Lord Hodson:

“It should be prefaced that in the Scottish cases to which reference will be made the court is directing its mind to the admissibility of evidence and in this connection to a discretion to be exercised whether or not to admit evidence in cases where it could be said to be unfair to the accused to do so.

In the English cases the evidence under consideration is admissible in law (whether illegally obtained or not) and the exercise of discretion is called for in order to decide whether, even though admissible, it should be excluded in fairness to the accused.  The same and is reached in both jurisdictions though by a slightly different route.”

In Lee’s case, the Court said at page 152:

“The discretion rule represents an exception to a rule of law, and we think that it is for the accused to bring himself within the discretion.  We have called attention to the great breadth of the common law rule that a statement is not admissible unless it is proved to be voluntary.  If it is proved to be voluntary then it is prima facie admissible.  It is admissible as a matter of law unless reason is shown for rejecting it in the exercise of a discretion.”

And Lord Devlin in ‘The Criminal Prosecution in England’ writes as follows:

“The essence of the thing is that a judge must be satisfied that some unfair or oppressive use has been made of police power. If he is so satisfied, he will reject the evidence notwithstanding that there is no rule which specifically prohibits it:  if he is not so satisfied, he will admit the evidence even though there may have been some technical breach of one of the Rules.  It must never be forgotten that the Judges’ Rules were made for the guidance of the police and not for the circumscription of the judicial power.”

(Page 46, Yale University Press Edition).  That passage carries the clear implication that the discretion is one to exclude.  In R. v. LI Kar-wah 1970 H.K.L.R. 572, the discretion is referred to in terms which indicate it is a discretion to admit.  However it does not appear that the Court was there specifically directing itself as to where the onus lay.  In practice the distinction will rarely be of any importance.

21. This discretion to exclude a voluntary confession appears to be separate and distinct from another discretionary power, namely that to exclude relevant admissible evidence on the grounds that its prejudicial effect outweighs its probative effect.  It is to be noted that the rule as to prejudicial effect balanced against probative value is directed to ensuring a fair trial, and has nothing to do with whether or not the evidence was obtained by unfair means.  The unfairness relates to unfairness at the trial.  The discretionary power to exclude confessions also appears to be distinct from, and not to depend on the existence or non-existance of another suggested discretionary power, that is a general power to exclude evidence of any nature of a substantial probative value on the ground that it has been obtained unfairly.  In R. v. LI Wai-leung 1969 H.K.L.R. 642, two of the judges doubted that there was any such general discretionary power.  The Supreme Court, Canada has held that there is no general discretionary power to exclude evidence of a substantial probative value on grounds that it was obtained by unfair means, as distinct from evidence the admission of which would prejudice a fair trial.  See R. v. Wray (1970) 4 Canadian Criminal Cases 1, where the English authorities are reviewed.  This case also has valuable dissenting judgments.  See also the article ‘Judicial discretion to exclude prejudicial evidence in criminal cases’ 1968 Cambridge Law Journal 291.

22. The existence of a discretion to exclude a voluntary confession on the grounds of unfairness is however well established.  The short report of R. v. Prager 1972 Criminal Law Review 31 is not very clear but it does state that the trial judge exercised his discretion.  Elsewhere in the report it would appear that it was considered the only question was voluntariness.  It may be that there was not considered to be sufficient basis of facts to raise discretion in a realistic sense.  A fuller report is awaited.

23. A cursory reading of R. V. LI Wai-leung 1969 H.K.L.R. 642 might give the impression that it held there was no discretion to exclude a voluntary confession.  Indeed the head note would so suggest.  However a close examination will I think show that it did not hold that there was no discretion.  Rather it was dealing with facts which on the basis of the findings of the trial judge, gave no grounds to bring the discretionary powers into operation.  Hogan, C.J. at page 645 indicated that matters which are considered as going to discretion might more appropriately be regarded as factors bearing on the voluntary nature of the confession.  It is to be observed that he was not there stating a rule of law.  As I see it he was simply saying, in tentative terms, that matters that go to discretion are more appropriate for consideration on question of admissibility.  He was stating perhaps what he thought would be desirable, rather than what he thought the law was.  I would respectively agree that circumstances relevant to discretion are often relevant to admissibility and vice versa.  That Hogan, C.J. considered that law to be that there is a residual discretion is indicated by what he said when summing up the law at page 652:

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

He was there clearly recognising that there is a discretion to exclude a voluntary statement.  If it is not voluntary it is not admissible in law, and no question of a discretion would arise.  At the conclusion of his judgment Hogan, C.J. said,

“In the case before us the written statement appears to have been voluntary and the evidence does no more than suggestion the possibility ………. of a technical breach of ………. Judges’ Rules ……….  For the reasons indicated I would not be disposed to reject the statement on that account……….”     

That passage indicates the following first that the test of admissibility in law is – was it voluntary?  Secondly there is a discretion to exclude even if it is voluntary and thirdly that the discretion is to exclude not to admit.  In the circumstances and the state of the evidence there was no call to exercise the discretion.  The judgment of Blair-Kerr, J. was dealing with the question of admissibility in law. I do not think it lays down that there is no residual discretion.  The judgment of Huggins, J. is based on the fact that the statement was voluntary.  The accused’s objection to it was that he had been induced by violence to make it.  The trial judge had rejected that allegation and Huggins, J. accepted that finding.  The position therefore was that there was nothing urged by the accused, and supported by credible evidence, which would call for consideration of the discretion to exclude, and in those circumstances Huggins, J. was I with respect agree, not concerned with the question of discretion.  Once the finding of voluntariness had been made on the particular facts of that case, there were no facts left to act as a function for the exercise of a discretion.  It therefore appears from an analysis of the judgments in R. v. LI Wai-leung that it is not an authority for laying down the law as being that there is no discretion to exclude an admissible confession.  It is to be observed that in the subsequent case of R. V. LI Kar-wah 1970 H.K.L.R. 572, the Full Court – of which Huggins, J. was a member – referred to there being a discretion.  A judge may in his judicial discretion refuse to admit a voluntary statement even if the Judges’ Rules have been complied with, and may admit it even though they have been broken.  Whether or not they have been observed will be a factor, and in many cases a cogent factor in deciding the matter.  The real test is fairness, and in his regard I refer to the remarks – made in a different context – of Lord McDermott is R. V. Murphy 1965 Northern Ireland Reports 138 at 149 :

“Unfairness in this context cannot be closely defined, but it must be judged in the light of all the material facts and findings and all the surrounding circumstances.  The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offences, may all be relevant.”

This passage was approved by the Privy Council in King v. R. 1968 3 W.L.R. 391.  In the leading Canadian case Bondreau v. R. (1949) 94 Canadian Criminal Cases 1, referring to the question of voluntariness, used the following words, which I consider are also appropriate as to the discretion:

“The underlying and controlling question remains:  Is the statement freely and voluntary made?  Here the trial judge has found that it was.  It could be a serious error to place the ordinary modes of investigation of crime in a straight jacket of artificial rules;  and the true protection against improper interrogation or any kind of pressure of inducement is to leave the broad question to the Court.  Rigid formulas can be both meaningless to the weakling and absurd to the sophisticated or hardened criminal;  and to introduce a new rite as an inflexible preliminary condition would serve no genuine interest of the accused but add on unreal formalism to that vital breach of the administration of justice.”

In R. v McDermott (1948) 76 Commonwealth Law Reports 501 at 513 Dixon J. said,

“In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.”

The High Court in Lee’s case after quoting that passage continued page 151:

“In our opinion, the rule is fully and adequately stated in those two passages.  What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend on the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.”

It is clear from a later passage that “unfairness in admitting” refers not to unfairness at the trial, but unfairness arising from the circumstances under which the confession was made.  In Lee’s case, the High Court also indicated that as regards the discretionary power, the likelihood of the  confession being true was a very relevant matter.  I quote:-

“Surely, if the judge thought that the ‘impropriety’ was calculated to cause an untrue admission to be made, that would be a very strong reason for exercising his discretion against admitting the statement in question.  If on the other hand he thought that it was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason for allowing the evidence to be given.”

24. I go on to consider the facts in the light of my understanding of the law.

25. When the prosecution commenced to lead the statement in evidence, objection was taken on the ground that it was not voluntary, that is to say the statement was retracted.  Then the witnesses were cross-examined by the defence and defendant gave evidence to the effect that it was not really his statement at all, in that he did not say, or even really know its contents.  That was not retracting it, but repudiating it.  Then Counsel’s address at the end was on basis that it was repudiated.  As I see it the defence allege that defendant was coerced and induced to sign his name to a document, the contents of which was not his statement, and of which he was not fully aware.  Of course the onus is not on the defendant to show it inadmissible.  Briefly the Crown case is that on information, Inspector Jorge procured a number of search warrants on the afternoon of 10^th November.  He later varied this to say that for premises at Shakkipmei was obtained on 9^th November.  Ex facie all the warrants appear to have issued on the 9^th.  The warrants were directed to ‘each and all’ police officers and commanded them ‘forthwith to enter …..’.  This command was not obeyed, as they were not executed till two days later.  P.W.1 – Inspector Jorge endorsed the warrants as having been executed by himself.  In fact he was not even present. 

26. The Crown story continues that on 11^th November at 9.30 a.m., P.W. 6 executed a warrant at Mei King Mansion, 11^th floor and at 9.45 a.m. the same morning executed one at Mei King Building, 12^th floor, where defendant was found together with some articles apparently part of the stolen property.  The defendant was told to come back to Station with police.  He was not handcuffed.  In the station, P.W. 6 commenced to question him, the questions and answers being the disputed statement.  After a few questions, the defendant made an admission, whereupon he was cautioned, and thereafter he made a confession, after which he was asked a question.

27. As result of information contained in the statement, which indicated there was some property suspected to be stolen at an address in Shekkipmei, the defendant took the police to his mother’s residence at Shekkipmei, where the police executed a search warrant.  At 1.10 p.m. the defendant led police to his brother-in-law’s address, but when they got there the police realised it was the premises at 11^th floor, Mei King Building, where they had already executed a warrant.

28. The defence case is that when police executed the warrant at 12^th floor Mei King Building, they handcuffed defendant to a co-tenant and took them both to the station.  That defendant was told to admit, slapped, hit with fists and threatened if he did not admit his relatives would be charged.  The police then took him to the address at Shekkipmei, as distinct from defendant taking the police.  He says that other police were already there.  (The P.W.6 denies other police there).  That defendant was taken back to the station where he was again beaten, kicked and the soles of his feet beaten with a rubber hose.  He was hit a fist blow on the eye-brow, causing him to bleed and blood got on his skirt, he was given a plaster for the cut and about 4 p.m. brought by the police to his home at 12^th floor, Mei King Building, to change his shirt, the police keeping the blood stained one.  He was taken back to the station and put in a call about mid-night.  It is alleged that on the way to the cell he exchanged a few words with his wife (who gave evidence).  He says he was given nothing to eat or drink from 10 a.m. on 11^th November until the morning of 12^th November, when he was again threatened and told his relatives would be charged if he did not admit.  Eventually he agreed, and P.W.6 wrote a document, every now and again asking defendant to sign his name, which defendant did.  The defendant denied that he ever went to 11^th floor, Mei King Building with P.W.6.

29. There are a number of matters in the evidence that indicate defendant untruthful.  I will mention a few.  He said he had bought the clothes for himself to wear.  He was in Court asked to put them on.  They were too big for him. He had said his right hand was handcuffed to the co-tenant.  Later he said that they got into the car handcuffed together and he, defendant, sat in rear right immediately next to her right hand rear door.  On realising the inconsistency his attempt to re-establish his credit was not convincing.  His explanation of why in the statement he admitted some charges and denied other rings false. His alleged lack of knowledge and curiosity as to the contents of the statements, which he says continued until he was in the witness box, is quite incredible.

30. The evidence of himself and his wife is contradictory as to what shirt he was wearing in the cells at mid-night.

31. On defendant’s evidence, the police had beaten him up with considerable brutality, and had caused an injury to his eye-brow which bled causing blood to go on to his shirt.  The police put a plaster on the cut, and then the police, apparently realising the risk they ran in having the defendant wearing a blood stained shirt, they decided to get rid of the evidence of the shirt.

32. I pause here, and on the basis that this incident of the bleeding injury and blood stained shirt is true, and that the police realised the significance of the blood on the shirt, I put myself in the position of the police.  Surely they would not have taken the defendant with a plaster on his eye, wearing the blood stained shirt, in daylight, back to his home where he was likely to be seen by, and have an opportunity to complain to his friends or indeed any passer-by.

33. The defendant’s story is too far fetched.  If the incident of the bleeding injury and blood stained shirt had occurred, and the police wished to falsify evidence, I find it incredible that they would do what defendant suggest.  There are simpler more obvious steps they could have taken.

34. I have set out enough to indicate that defendant is a thoroughly unreliable witness.  It does not of course follow that all he says is unworthy of credit.  It would be an easy road but an evasion of one’s judicial duties, to take the easy way out and hold that because a witness is demonstrably untruthful on many matters, that his evidence should be discarded in toto.  As was said in S. v. Ivanisevic1967 (4) South African Reports 572.

“Some innocent people meet accusations by simply telling the truth.  Other who are equally innocent of the accusation take refuge in some invented story, because they are not satisfied that the truth alone would be sufficient o carry conviction.”

35. The P.W.6 says that the circumstances of defendant first coming to the station were that on executing the search warrant and finding some property he said to defendant (and others present).

“The three of you come to the police station as we wish to ask you something in respect of the burglary case.”

The P.W.6 says that he had been told by his superior to take defendant to the station.  Clearly the defendant was in custody.  I consider the P.W.6 would not have permitted defendant to refuse to go to the station. The custody appears to have been unlawful.  I go on the basis that it was unlawful.  He was not cautioned prior to making the basic admission upon which all the statement depends.

36. Part of defendant’s case is that he was threatened that if he did not admit his relatives would be charged.  His wife had been taken into custody with him.  It is admitted by PW.6 that she was put in a cell.  It is not disputed that she was not released until 6 p.m. on the 12^th.  She says, that she was not interrogated but that when she asked the police when could she leave, they told her to wait and see what would happen, and would not allow her to leave.  This matter of not being interrogated, and of being told to wait and see what would happen, came forth in a convincing manner in cross-examination. I give credit to this evidence.  It appears she was kept in unlawful custody from about 10 or 11 a.m. on 11^th November to 6 p.m. on 12^th.  I ask myself why was this so.  What could be the explanation for it, particularly having regard to the fact that she says she was not interrogated.  Bear in mind defendant alleges he was threatened that unless he admitted his relatives would be charged.  If that allegation were true the threat would of course have added force if his wife were in custody.  It would also explain what has no other obvious explanation, that is the fact of her being kept in custody and then released.  There is another point to bear in mind in this connection and it is that the police allege the statement was taken on the morning and early afternoon of 11^th November.  The defendant says it was written on the afternoon of 12^th.  Having regard to the dispute as to when the statement was written it is significant that the wife was released at 6 p.m. on 12^th.  It is also perhaps of significance that defendant was not formally charged until 8.15 p.m. on 12^th November.  If the statement in question was taken on the morning and early afternoon of 11^th November, one asks ones self why was he not charged until the evening of the 12^th.

37. The statement itself may well be true and I make no finding on that.  It is not necessary for me to do so as admissibility does not depend on its truth and no useful purpose, in the circumstances, would be served by such a finding.  Having regard to the matters I have set out I have that I consider a reasonable doubt as to whether the statement was voluntary insomuch as I consider it may well have resulted from a threat that his wife, who was then in custody, would be charged if he did not admit the offence.

38. I wish to make it quite clear that that occurred in the voire dire is not evidence in the trial proper.

39. I rule the statement inadmissible.