HKSAR v. Ho Wing To and Another

CACC 264/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2010

(On Appeal From High Court Criminal Case No. 222 of 2009)

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BETWEEN

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Before : Hon Stock VP, Cheung JA and Macrae J in Court

Date of Hearing : 14 July, 17-18 November 2011

Date of Judgment : 27 January 2012

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J U D G M E N T

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Hon Stock VP :

1.It should be noted that the application in this case was heard in conjunction with an application in the case of HKSAR v Okafor CACC 437 of 2010, the judgment in which is also handed down today. The two cases were heard partly together to receive submissions on the extent to which reasons should be given upon voir dire hearings directed at the exclusion of statements against interest. The judgment in Okafor addresses that general issue in some detail. Submissions as to the merits of each individual application for leave to appeal against conviction were advanced separately from submissions on that general issue. The present judgments address only the specific merits of this applicant’s case.

2.The facts of this particular case are fully summarised in the judgment of Cheung JA.

3.He has intimated at paragraph [47] that I address the issue of discretion and the judge’s failure to provide reasons for her refusal to exclude Ho’s admissions in the exercise of her discretion.  This I now do.

4.The failure of reasons in relation to discretion can readily be understood when one appreciates – as I did not when first I was concerned about the absence of reasons – that no application was made to the judge to exercise the discretion to exclude any of the statements made by this applicant.  The applicant’s case at all material times was that he made none of the admissions attributed to him, save to the extent that he was forced to rehearse and then repeat a story provided to him by the police; and as for contacting his parents or an adult, his case was that no such opportunity was ever afforded him.

5.As Mr Iu conceded before us, the sole issue he raised before the court below was that of voluntariness and an examination of the full submissions he made and of his interchanges with the judge show that to be so.  At no stage did he ask the judge to exclude the admissions as a matter of fairness.  Insofar as he referred the judge to the fact that the applicant’s parents had not been informed, that was not a submission made in the context of discretion but quite clearly made in the context of his attack on the credibility of the police officers on the issue of voluntariness.  Their credibility was attacked on the basis that, contrary to their evidence, Ho had made no admissions whatsoever save those seen on the video recording which he had been forced to rehearse, with assaults upon him beforehand.  The question of the absence of telephone calls to the parents was put on this basis: that whereas the police evidence was that they thought that the parents or guardians should be informed, that evidence was shown to lack credibility because no effort was made even on their own evidence to secure the presence of an adult until 11 pm; therefore, so the argument went, their protestations of concern were not to be believed – a mere example of their lack of credibility.

6.I accept that the absence of an application for the exercise of discretion to exclude a statement against interest does not absolve a judge from himself or herself raising a discretion issue of his or her own motion should one clearly arise.  The issue that was suggested to have arisen in this case was that the police should have ensured the presence of an adult in the company of the applicant after his arrest and when questions were asked of him.

7.Yet the applicant was at the material time aged a few months short of his 17^th birthday and the rules for interviewing suspects do not themselves require such steps to be taken in the case of someone that age.  Whilst that is not necessarily conclusive of the matter, it is material.  There may be circumstances which suggest, in the case of someone who has already passed his 16^th birthday that, nonetheless, steps should be taken to ensure the presence of an adult.  Such circumstances might well include the case of an evidently immature or upset or bewildered person aged 16 years.  In this context it is noteworthy that:

(1)  everyone at trial saw the video of the interview of the accused – as we have not – and there was no suggestion made by counsel for the accused, either at trial or before us, that it revealed the applicant to be uncertain of himself or less mature than his age would suggest; and

(2)  the judge commented in the course of discourse with counsel that she could see “by looking at the video recorded interview, he didn’t look tired at all, he was very alert.”

8.Insofar as it was suggested that the applicant should have been allowed to contact his parents, failing which the police should have contacted them, we see from the record the judge’s express reference to the evidence – and it is to be remembered that the police evidence was believed – that the applicant had said that he did not wish to inform his family.  That was hardly surprising in the circumstances given the serious problems which he had encountered with his father, problems which had landed him, the applicant, in hospital.

9.The fact that the police at one stage thought it fair to offer the applicant an opportunity to contact an adult and that he then sought to do so, does not mean that the failure later to insist on his contacting an adult was unfair when one considers the fact that the police gave the applicant ample opportunity to try again, if he wished, and that he declined the opportunity.  The fact that the judge specifically commented on the applicant’s positive demeanour in the record of interview is not in this context to be overlooked.

10.I am satisfied, therefore, that this was not a case that called for a reasoned ruling by the judge for the refusal to exclude the statements against interest in the exercise of her discretion.  It seems to me plain enough from the record, the essential relevant features of which for present purposes I have identified, why she so refused.  Nor was there any need to provide reasons beyond those given for ruling the statements to be voluntary – the reasons are plain enough from the record as a whole.

11.I agree with Cheung JA that there was no error by the judge in her summing-up.

12.Since we specifically invited submissions on the question of discretion, I would grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal but, for the reasons I have given, I would dismiss the appeal.

Hon Cheung JA :

13.This is the 1^st applicant’s application for leave to appeal against conviction of the offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134).  He was convicted after trial before Verina Bokhary J sitting with a jury and was sentenced to eight years’ imprisonment.  He was tried together with the 2^nd applicant who was charged with ‘tenant permitting premises to be used for the unlawful storage of dangerous drugs’, contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance.  She pleaded guilty and was sentenced to two years and eight months’ imprisonment.  This Court had previously on 28 July 2010 allowed her appeal against sentence and reduced the sentence to two years’ imprisonment.

Facts 

14.On 10 March 2009 the Police conducted an anti-drug operation in Yat Tung Estate, Tung Chung, Lautau Island.  They obtained search warrants in respect of two premises, one of which was a flat occupied by the 2^nd applicant.  She was a tenant in that flat.  The Police had information that she lived there with her two children and a teenager.

15.The Police first intercepted the 1^st applicant in a nearby shopping centre at about 10.45 p.m.  The 1^st applicant told the Police that he lived at 310 Shun Yat House which was the flat occupied by the 2^nd applicant.  The Police took the 1^st applicant to the flat.  The 2^nd applicant was inside the flat.  The Police showed her the search warrant and entered the flat.  After gaining entrance to the flat, two Police officers explained to the 2^nd applicant about the purpose of the search.  The 1^st applicant was sitting nearby and guarded by two Police officers.  While the Police was explaining things to the 2^nd applicant, the 1^st applicant said to the officer guarding him (‘PW1’) that

‘ Ah Sir, there is no need to search. The stuff is in my room. I bring you to get it.’

(‘the first admission’).

16.The 1^st applicant together with PW1 and another Police officer then entered the master bedroom and found a transparent plastic box placed on top of a cabinet.  Inside the plastic box were packets of dangerous drugs.  Upon analysis later on, they were 34.33 grammes of methamphetamine hydrochloride, 17.12 grammes of ketamine in powder form, 253 tablets of 29.80 grammes of ketamine and some small quantities of cannabis.  PW1 declared arrest of the 1^st applicant for trafficking in psychotropic drugs and cautioned him.  The 1^st applicant replied,

‘ Ah Sir, I was told by a friend to put the stuff inside the plastic box here.’

(‘the second admission’).

17.The Police also found fingerprints of the 1^st applicant on the plastic box.  The fingerprints of a person nicknamed ‘Ho Ma’ and another person Lee Cheuk Ming were found on the box as well.

18.At about 1.00 a.m. the Police concluded the search in the flat.  Between 1.05 a.m. and 1.45 a.m. PW1 post-recorded in his notebook the arrest of the 1^st applicant. After the drugs were found and the second admission made by him (‘the post record of the 2^nd admission’), the 1^st applicant signed on the notebook.  He was then taken to the North Lautau Police Station. 

19.When the 1^st applicant was handed over to the Duty Officer of the Police Station at about 2.45 a.m. he had enquired with the 1^st and 2^nd applicants whether they would like to contact their family members.  They said no.  There was a Police computer entry made at 4.22 a.m. that day indicating that the 1^st and 2^nd applicants had refused to inform the family members about their arrest. 

20.At 3 a.m. PW1 post-recorded in his notebook the first admission made by the 1^st applicant. This notebook entry was not signed by the 1^st applicant.  At about 5 p.m. on 13 January 2009 an antecedent statement was taken from the 1^st applicant in respect of his address and contact telephone number. 

21.The next event of significance that happened was at about 8.10 p.m. when PW2 and PW3 who were assigned to interview the 1^st applicant signed out the 1^st applicant from the cell.  They told the 1^st applicant to make telephone calls in the interviewing room to ask his parents or guardians to accompany him for the video interview.  PW2 said that he did so for the sake of fairness because the 1^st applicant was at that time aged 16.  He also asked the 1^st applicant if he needed to find a lawyer.  The 1^st applicant said no but he wanted to look for an adult to accompany him in the video interview.  The 1^st applicant made ten odd to twenty phone calls but he said that was unable to find any person.  He did not speak on the phone.  The 1^st applicant then said that he needed time to think over whether he needed a person to accompany him in the interview.  PW2 then handed back the 1^st applicant to the report room. 

22.At around 10 p.m., PW2 signed out the 1^st applicant again.  PW2 asked the 1^st applicant whether he was able to find a guardian or an adult to accompany him in the video interview.  He said that he was still unable to look for one.  PW2 further asked him whether he would like to have a lawyer to accompany him.  The 1^st applicant replied that there was no need.  The 1^st applicant then asked PW2 whether it was possible for him to do the interview without the company of a guardian or an adult.  PW2 explained to him that it was only for the reason of fairness that the Police would like him to look for an adult to accompany him in the interview because he was aged 16.  PW2 further explained to him that if he found it alright to do the interview alone then it would be alright.  The 1^st applicant then said he would do the interview alone and there was no need for a lawyer or an adult to accompany him. 

23.The Police then began the interview by referring to the second admission and the post record of the second admission. The 1^st applicant said that the drugs in the plastic box were ‘Ice’, ‘K Chai’, ‘Fing Tau’ and cannabis.  The friend who told him to put the drugs there was ‘Ho Ma’.  He was told to put the dangerous drugs in the plastic box two weeks ago.  He described how ‘Ho Ma’ asked him to meet a person in the street who would give him the dangerous drugs.  It happened on three occasions.  On the first occasion he was given ten odd packets of ‘Ice’.  ‘Ho Ma’ told him the dangerous drugs were ‘taking it for sale’.  On the second occasion he was given one ounce of ‘K Chai’ and on the third occasion which was on 10 March 2009 half an ounce of ‘Ice’ and a bit of cannabis were given to him.  He told the Police the price of the drugs.  He said that the scissors, gloves and plastic bags found in the flat were used for packing the drugs. 

24.The 1^st applicant said that apart from collecting the drugs on the three occasions he had also sold drugs. The buyer would call him up directly, telling him what kind of drugs and the quantity and the 1^st applicant would arrange to meet him, gave him the goods and collected the money.

(‘the third admission’)

Trial within trial : the 1^st applicant’s case

25.The judge conducted a trial within trial on the issue of admissibility of the three admissions.  I will deal with the 1^st applicant’s case in respect of the admissions. 

26.He said that he was first intercepted by the Police at a different spot in the shopping centre.  He was not told of the reasons for his being stopped there.  He was then taken to a car park where he was told to stay inside a car and wait.  His phone was taken away from him when it rang.  Then he was taken to the ground floor of Shun Yat House where another police party joined them.  He was then taken to the second floor near the staircase where he was assaulted by the Police.  He was told that if he did not want to get beaten he would just ring the door bell when they arrived at Room 310.  When the parties arrived at Room 310, PW1 took him to the toilet and closed the door.  Inside the toilet he was questioned by PW1 about the whereabouts of the dangerous drugs.  The 1^st applicant said that he did not know.  He was then assaulted by PW1.  He denied that he had made any admissions as alleged as to the location of drugs.  When the drugs were found in the flat PW1 told him to co-operate and admit the quantity or he would end up with more trouble.  PW1 told him that the Police was going after a boy called ‘Ho Ma’ and if he was co-operative the Police would not ‘do him’ otherwise he would be charged.  When the 1^st applicant indicated his reluctance he was assaulted.  PW1 told him that he had written in his notebook that it was a friend who had asked the 1^st applicant to place the dangerous drugs there and if he co-operated and pointed that person out there would be no trouble for him.  The 1^st applicant felt frightened and did according to what he was told and he initialled in the notebook. 

27.After arriving at the police station PW1 filled in his notebook entry to complete the time period between 1.30 a.m. and 1.45 a.m.  He then gave the 1^st applicant a sample declaration for him to copy to the notebook and sign.  He was then detained overnight.  At around 4.30 p.m. he was taken out for fingerprint and taking of an antecedent statement in which he told the Police officer of his parents’ address and telephone number. 

28.At 8 p.m. the 1^st applicant was taken out by PW2 who gave him a piece of paper which contained information about how ‘Ho Ma’ instructed him to collect the dangerous drugs on three occasions in the past two weeks and the costs of ‘Ice’.  PW2 told him to repeat the information in the interview.  He was also told that if he was asked questions not covered by the information in the paper he was to make up the answer so that he would be a witness to testify against ‘Ho Ma’.  He was also told that since the 2^nd applicant had two sons and ‘Ho Ma’ had caused her such a serious trouble it would be better for him to testify again ‘Ho Ma’ in order to help the 2^nd applicant out.  He was not allowed to find his parent to attend the interview. 

29.On 12 March 2009 he was taken for a home search and he was taken to Court on 13 March 2009. 

30.On 23 April 2009 the police office visited him at Pik Uk Prison and asked him if he would be a witness against ‘Ho Ma’.  He refused. 

31.The 1^st applicant also explained how he came to live in the 2^nd applicant’s flat.  He had a dispute with his father who chopped him on the head.  After he was discharged from the hospital he came to live in the 2^nd applicant’s flat.  The 1^st applicant was introduced to the 2^nd applicant in 2007.  He slept in the sitting room of the flat.  The 1^st applicant’s mother confirmed the story of the 1^st applicant.  The Police had told the family that the 1^st applicant and his father must live apart after the chopping incident and it was arranged for the 1^st applicant to live with the 2^nd applicant.  The mother went with the 1^st applicant to the 2^nd applicant’s home.  She met the 2^nd applicant for the first time.  No rent was charged.  The mother gave the 1^st applicant HK$60 for food and brought him soup every day.  After he moved into the flat he met ‘Ho Ma’ in the flat.  ‘Ho Ma’ lived upstairs in the same block.  Prior to 10 March 2009 ‘Ho Ma’ would come to the flat almost every day.

32.In respect of his fingerprints found on the plastic box his evidence was that the box was normally put on the mah-jong table in the sitting room and when mah-jong was played the box would be placed on a green stool.  The box contains things like mobile phone chargers, nail clippers and mah-jong chips. 

33.On the night of 8 March 2009 he had taken the phone chargers out of the box and had replaced it in the box the following morning.  There were no packets of drugs or powder in the box at that time.  The plastic box was bought by him, the 2^nd applicant and a person called Lee Cheuk Ming from a store about two weeks after he had started residing in the flat. 

Ruling by the Judge on the admissions

34.The Judge held that the admissions were admissible.  This is what the Judge said :   

‘ I am satisfied beyond reasonable doubt that all the out-of-court statements, both oral and written, which the prosecution seeks to rely upon and which the accused disputes, were made freely and voluntarily, without any ill-treatment, violence, threat, inducement, coaching, deception, trickery, oppression or other improprieties whatsoever.

I am also satisfied beyond reasonable doubt that there is nothing which makes it appropriate to exclude any of his admissions by an exercise of discretion.  I rule that all the disputed out-of-court statements, both oral and written, may be given in evidence before the jury.’

Evidence of the 1^st applicant at trial

35.The 1^st applicant gave evidence on how he came to live in the premises.  He also gave evidence as to the circumstances of his arrest and events that took place after he was brought to the flat.  He gave evidence along the lines of the evidence he gave in respect of the trial within trial. 

Grounds of Appeal

36.The focus of this appeal is on the admissibility of the three admissions made by the 1^st applicant and the Judge’s direction to the jury on the admissions.

37.Mr. Thomas Iu and Mr. Raymond Chan, counsel for the the 1^st applicant challenged the admissibility of the three admissions on the basis that the prosecution failed to prove the voluntariness of the admissions, the evidence on the admissions was inherently unreliable and the admissions were obtained from the 1^st applicant in the absence of his parents or an accompanying adult.

38.Counsel further submitted that the Judge’s direction to the jury on the admissions was confusing, wrong and misleading.

Voluntariness : credibility of the Police’s evidence

39.It is submitted by Mr. Iu that given the evidence of the encounter of the Police officer and the 1^st applicant and their subsequent arrival of the flat it is unlikely the 1^st applicant would have made the first admission.  It had all the hall mark of a fabrication by the Police in order to explain the finding of the drugs.  While the Police had chosen to post-record the second admission at the flat the post-recording of the first admission was not done at the flat at all.  The Police had explained that the first admission should not be considered as an admission because the 1^st applicant just took the initiative to tell PW1 about those things.  The explanation given by the Police on why the first admission was not post-recorded at the flat was unconvincing.  When PW1 post-recorded the first admission in the police station at 3 a.m. he did not ask the 1^st applicant to initial the notebook.  He simply said that there was no need for him to give the notebook to the 1^st applicant to initial.  This defied commonsense when the Police had asked the 1^st applicant to sign other documents. 

40.It is submitted that the Judge did not mention any of these matters in her summing-up.  It is not known how she had resolved these matters in the light of her brief ruling. 

41.In respect of the second admission it is submitted that despite the 1^st applicant telling the Police that his friend asked him to put the dangerous drugs there the Police did not follow up and ask the 1^st applicant who his friend was.  This was only asked when the Police conducted the video interview.  The Police knew at that time the targeted person was ‘Ho Ma’. 

42.It is submitted that the Police had not advised the 1^st applicant to contact his parents following his arrest and before the post-recording of the second admission took place. 

43.In respect of the video interview, counsel submitted that the Police did not contact the 1^st applicant’s parents.  The Police officer’s evidence about allowing the 1^st applicant to make phone calls was not recorded by the Police in their notebook. 

44.In respect of the Duties Officer’s evidence that the 1^st and 2^nd applicants told him that they would not want to contact their family members, again this was not recorded in his notebook.

45.I do not accept the 1^st applicant’s challenge on the credibility of the Police witnesses.  The Judge had the opportunity of observing the Police officers and the 1^st applicant giving evidence on the three admissions.  She was the best person to assess the issue of credibility.  This Court would usurp the function of the Judge if we were to make a fresh finding based solely on the transcript of the evidence. 

46.Although the first admission was not referred to by PW2 when he began to conduct the video interview he had referred to the second admission when he recited the facts.  In any event the absence of the first admission in the video interview was not a matter that was brought out in the cross-examination of PW2.  I am not persuaded that the Judge was in any way wrong when she found that the admissions were voluntarily made. 

Discretion

47.Stock VP has discussed in his judgment the challenge to the exercise of discretion by the Judge and the failure of discrete reasons provided in that regard.  I agree with his judgment.

The Judge’s direction on the admissions

48.The 1^st applicant also submitted that the Judge had given confusing, misleading and wrong direction to the jury on how they should deal with the admissions. 

49.To understand this challenge it is necessary to refer to the law in this regard.  In R v. Bass [1953] 1 QB 680 the English Court of Appeal per Byrne J at 684 stated that :

‘ It is to be observed, as this court pointed out in Rex v Murray, that while it is for the presiding judge to rule whether a statement is admissible, it is for the jury to determine the weight to be given to it if he admits it, and thus, when a statement has been admitted by the judge, he should direct the jury to apply for their consideration of it the principle as stated by Lord Sumner (viz, in Ibrahim v Rex), and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.’

50.In Chan Wei Keung v The Queen [1967] 2 AC 160the Privy Council disapproved the ruling in R v Bass that where the judge has ruled that a confession is voluntary he should then tell the jury that if they are not satisfied that the confession was made voluntarily, they should give it no weight at all and disregard it.  In other words the jury may rely on it if they consider the content to be true.  The Privy Council applied the reasoning of the High Court of Australia in Basto v The Queen [1954] 91 CLR 628, 640 which stated that :

‘ That a statement may not be voluntary and yet according to circumstances may be safely acted upon as representing the truth is apparent if the case is considered of a promise of advantage being held out by a person in authority. A statement induced by such a promise is involuntary within the doctrine of the common law but it is plain enough that the inducement is not of such a kind as often will be really likely to result in a prisoner’s making an untrue confessional statement.’

51.The House of Lords in R v. Mushtaq [2005] UKHL 25 disapproved of Chan Wai Keung.  It held that section 76(2) of PACE requires the jury to be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they must disregard it.

52.Lord Rodger held that :

‘ 44. At various points during the hearing before the House, it was emphasised that under present system if a jury think that a confession was, or may have been, obtained by oppression, they are unlikely to accord it any weight or value. So there was no real difference between a situation where a jury give no weight or value to a confession in this way and one where they are told that they must disregard it. For all practical purposes, the present system achieved what the appellant was seeking.

45.  That argument falls short if the rule against admitting an involuntary confession is not based simply on its potential unreliability.  And it is indeed clear that, according to the more modern analysis at least, the rule rests on a rather wider basis.  Giving the opinion of the Privy Council in Lam Chi-ming v The Queen [1991] AC 212, 220E - F, Lord Griffiths said:

“Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary.”

Therefore, even if a jury would be unlikely to rely on a confession which they considered had been obtained by compulsion, the question still remains whether, having regard to the principle that a man cannot be compelled to incriminate himself and having regard to the importance attached to proper behaviour by the police, the jury are entitled to rely on a confession which they consider was, or may have been, obtained by oppression or other improper means.’

53.The majority decision was based on the accused’s right against self-incrimination implicit in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘EH’).  The then existing position was incompatible with this right as it allowed the jury to treat the confession as true even if it was or may have been made as a result of oppression or other improper circumstances.

54.In Wizard v the Queen (Jamaica) [2007] UKPC 21 the Privy Council applied Mushtaq.  Lord Phillips of Worth Matravers held that :

‘ 37. Mr Guthrie submitted that the position at common law was correctly stated in Chan Wei Keung v The Queen. Mushtaq was a departure from the common law consequent upon the effect, within the jurisdiction of England and Wales, of section 76(2) of PACE and section 6 of the Human Rights Act. It followed that Mushtaq was not applicable in Jamaica. Their Lordships do not agree. The relevant principle derived both from section 76(2) of PACE and article 6 of the ECHR is the principle against self-incrimination. That is a long recognised principle of the common law. The approach in R v Bass accorded with that principle. The approach in Chan Wei Keung v. The Queen did not. The latter decision was a false step in the development of the common law. Mushtaq has re-established the correct approach and is, in consequence, applicable in Jamaica.’

See also a summary of position in Hong Kong Archbold 2011 para. 15-116.

55.To reflect the decision of Mushtaq, the UK Judicial Studies Board Standard Direction on admission is now as follows :

‘ The prosecution say that the defendant made a confession on which you can rely. The defendant says that although he made the confession it was obtained by [oppression] [something said or done which was likely to render it unreliable] [and that it is untrue]. (Summarise the parties’ evidence and/or arguments on the matter.) If you think that the confession was or might have been obtained by [something said or done which was likely to render it unreliable] you must disregard it even if you think that it was or may have been true. If, however, you are sure that the confession was not obtained in this way, and that it was true, you may take it into account when considering your verdict.’

56.The standard direction issued by the Hong Kong Judicial Studies Board on admission provides, among other things, that,

‘ In deciding whether you can safely reply upon the admissions, you must decide two issues:

1.  Did the defendant in fact make the admissions?  If you are not sure that he did, you must ignore them. If however you are sure he did, then:

2.  Are you sure that the admissions are true?  In addressing that issue (whether the admissions/answers were true) decide whether they were, or may have been, made or given as a result of [oppression] [something said or done which was likely to render them unreliable].  If you conclude that the admissions/answers were or may have been obtained by (identifying the person or persons in authority)as a result of [oppression] [something] said or done which was likely to render them unreliable] then you must disregard the admissions/answers.

In this case, the defendant alleges that (summarise the allegation).  If you conclude that that allegation is or may be correct and that the admissions/answers were or may have been obtained as a result of that conduct, then you must disregard the admissions/answers.

If, however, you are sure that the defendant made the admissions and that they were not obtained in that way, you must nonetheless decide whether you are sure that the admissions are true.  If, for whatever reason, you are not sure that the admissions are true, you must disregard them.  If on the other hand, you are sure that they are true, you may rely on them.  (Remind the jury of any specific weaknesses in the confession evidence which may reflect on its reliability.)

57.The note to this direction stated that :

‘ The last two paragraphs of this direction depart from the previous directions which advised the jury that a finding of oppressive circumstances led, not necessarily to rejection of the confession, but to an assessment of weight. That reflected the law in Chan Wei Keung v The Queen [1967] 2 AC 160 which enabled the jury to rely on a confession even if it was or may have been made as a result of oppression or other improper circumstances, so long as the jury were sure it was made and that it was true. Strictly speaking, that remains the law in Hong Kong but that approach has now disapproved by the Privy Council in Wizard v the Queen [2007] UKPC 47 which endorses R v Mushtaq [2005] UKHL 25; [2005] 1 WLR 1513 as being declaratory of the common law. Chan Wei Keung pre-dated the Hong Kong Bill of Rights Ordinance and the Basic Law and the consequential constitutional protection of the right against self-incrimination. It is this right that forms the core of the decisions in Mushtaq and Wizard. It therefore seems to those drafting these directions that a direction along the new suggested line is much the safer course.’

58.The rule against self-incrimination is found in Article 11(2)(g) of the Hong Kong Bill of Rights as entrenched by Article 39 of the Basic Law. 

59.In the present case the Judge had on several occasions directed the jury on how they should approach the 1^st applicant’s admissions.  They are reproduced as follows :

(1)   Before you can act on any admission by the accused, you must be sure that he made such admission and that it is true.  That conclusion is open to you if, upon careful consideration of all the evidence and submissions in this case, you are sure that the prosecution witnesses’ evidence of the interview and of the taking of the notebook entry is honest and reliable.

(2)   I will now give you certain general directions in regard to disputed admissions.

(3)   Whenever you are faced with a disputed admission, the question, members of the jury, is whether you are sure that the accused made a true admission.  Are you sure that the accused made it?  If you are not, then ignore the alleged admission.  If you are sure that the accused made it, then you are concerned with the truth of the admission.

(4)   In deciding whether you are sure that any disputed admission is true, you should take into account all the circumstances in which it was made.  Any pressure on an accused to make an admission lessens the reliability of an admission which the accused makes.

(5)   That applies to any form of pressure.  In particular, I tell you this : here is this case the allegations of impropriety made by the accused against the police include allegations of impropriety of a very serious nature indeed such as assaults, threats and inducements.

(6)   If a jury is unsure that any admission was made in circumstances free from those improprieties of that nature, then it should give that admission no weight.  If, on the other hand, a jury is sure that an admission was made in circumstances free from impropriety of that nature, then it may act on such admission.

(7)   If you think that any of these serious allegations by the accused are or may be true, then you should attach no weight to any admission in the statement.  If, on the other hand, you feel sure that there is nothing in any of these allegations, then you are entitled to accept the admission as reliable.  And if you are sure of the reliability of a record of interview and are sure that it is a true statement made by the accused under caution, you will be entitled to act on the admission by the accused in that record of interview.

(8)   Members of the jury, the video-recorded interview was conducted by DSPC Hung in the presence of DSPC Lee – but if you think that the defence allegations of violence, threats and inducement by other Police officers are or might be true, then you should ignore not only the evidence about the accused having said that there was no need to search etc. and the notebook entry, but also the video-recorded interview conducted by DSCP Hung in the present of DSPC Lee even if you are sure that they themselves behaved properly.  Those allegations have a bearing on the video-recorded interview even if such bearing may be called indirect. Of course, whether you think that those allegations are or might be true is a matter for you.

(9)   If you feel sure that admissions were made, were made free from impropriety of any kind, were therefore unaffected by anything rendering them unreliable, and are true, then you may act on such admissions.

60.Mr. Iu submitted that :

(1)  the jury was never told that weight and value of such admissions was for them, not just ‘whether they were true admissions’;

(2)  having correctly directed the jury to disregard the admission ‘if they are unsure that any admission was made in circumstances free from impropriety of that nature, then it should give that admission no weight’, the Judge failed to direct the jury that this is so even if they think the admission was or may have been true.

61.It is clear from the Judge’s direction that she did not repeat the mistake made in Chan Wai Keung.  In my view the jury was not required to be directed specifically that the weight and value of the admissions was a matter for them.  In my view, paragraphs 6 and 7 of the directions had sufficiently covered this point.

62.While the exact wording of the UK Standard Direction was not adopted in the present case, I do not consider it is necessary for the Judge to follow the UK Direction word by word and to direct the jury specifically that if they think the confession was or might have been obtained improperly they must disregard it even if they think that it was true or might have been true.  It is clear from the directions given by the Judge, the central theme that was impressed on the jury was that they could only act on the admissions if they are satisfied that they were made in circumstances free from impropriety.  This was the pre-condition for them to consider the admissions.  It is not necessary to remind the jury the manner as suggested by Mr. Iu. 

63.Accordingly I rule against the 1^st applicant on this ground.  I too would grant leave but dismiss the appeal.

Hon Macrae J :

64.I agree with the judgments of Stock VP and Cheung JA.

Hon Stock VP :

65.Accordingly the applicant is granted leave to appeal against conviction and the hearing of the application is treated as the hearing of the appeal but the appeal is dismissed.

Mr. Edmond Lee, SPP of Department of Justice, for the Respondent (on 14 July 2011)

Mr. Kevin Zervos, DPP and Mr. Edmond Lee, Ag. SADPP of Department of Justice, for the Respondent (on 17-18 November 2011)

Mr. Thomas Iu and Mr. Raymond Chau, instructed by Messrs Cham & Co., for the 1^st Applicant