BACK

POLICY PAPER

MORE PAPERS

Consultation Paper on "The Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings"

22 February 1999

The Secretary
The Law Reform Commission
20^th Floor, Harcourt House
39 Gloucester Road
Wanchai, Hong Kong

Dear Sir/Madam,

Consultation Paper on "The Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings"

The Consultation Paper refers in the main to trials in the Court of 1^st Instance, that is the High Court. The vast majority of criminal trials, of course, take place in the District and Magistrates’ Courts, where proposals for a greater participation of the jury have no application.

Hong Kong judges appear to be concerned that court resources are being overburdened by the present procedures. Presumably this is the reason, rather than to achieve greater fairness to the Defence or the Prosecution, that the Law Reform Commission is examining the situation. However, we do consider it important politically in Hong Kong, but also from the perspective of international advisers, that alterations to our laws and regulations do not, and do not seem to, cut down human rights. Having said that, we do have proposals that include a fairer balance in favour of the prosecution, which we refer to below.

The Consultation Paper proposes consideration of three options that all emanate from The Hon Mr Justice Litton, for whom we have only the very greatest respect but each of which we find unsatisfactory for the reasons given below, and two of the options we believe clearly prejudices unduly an accused person’s position.

Options A. and C. envisage giving to the Court a discretion to decide whether or not a voir dire will be heard in the presence of a jury. Option B. would make a voir dire a matter for the jury to hear and to adjudicate upon.

It seems to us that Option A. and Option C. are dangerous in that we remain of the view that the ordinary juryman/woman is likely to lack the ability – hopefully possessed by professional judges and magistrates – to put a purported confession right out of his/her mind in the event of it being ruled inadmissible. Option B. is unsatisfactory because of the likely difficulty of getting an ordinary juryman/woman to comprehend the difference between the truth of a statement as distinguished from its admissibility.

While, therefore, we oppose all three Options, we do, nevertheless, see value in the proposal included in Option C. to lower the standard of proof for determining voluntariness to that in civil proceedings. That is from proof beyond reasonable doubt to that on a balance of probabilities. We say this particularly bearing in mind that in voir dires the prosecution is called upon to prove a negative – that is that the statement has not been improperly procured, that there has not been force used, nor duress, nor an offer of advantage. And we say this also conscious of the fact that there is a ‘long-stop’ in that the prosecutions case as a whole still has to be proved beyond all reasonable doubt.

We also would propose that a procedure be introduced so that the prosecution and indeed the court be properly informed before the trial of the details of the defence allegations as to any improper circumstances so that they can be checked out, which is difficult when, as now, they are in large part made only at the trial itself. That is greater use of a Pre-Trial Review, perhaps taking a leaf from the civil procedure on Summons for Directions. There may be difficulty in extending this to the magistracies, although not insuperable.

We note that the Consultation Paper states that it is not concerned with the PROCEDURES for taking statements. But there is a reference to video-taping of interviews and the ICAC experience that this has proved effective in reducing the number of challenges to admissibility and the number of statements rejected. In our view the single most important step that could be taken to ensure justice being done, and being seen to be done (to both defence and prosecution), is making it mandatory that all interviews be fully video-taped. It is often said that this is a matter of resources and economics. But the court time that would be saved would, surely, more than compensate as time went on. In our view this step should be given priority.

Finally, we cannot conclude without referring to the surprisingly large number of statements found by the courts to be inadmissible. Why is this? Are the procedures too stringent or the police too incompetent or corrupt? We suggest an enquiry into the matter. This is the real question that needs to be asked and to be answered.

Yours sincerely,