THE LAW REFORM COMMISSION OF HONG KONG

REPORT

CONFESSION STATEMENTS AND THEIR ADMISSIBILITY IN CRIMINAL PROCEEDINGS

(TOPIC 8)

ii

TERMS OF REFERENCE WHEREAS :

On 15 January 1980, His Excellency the Governor of Hong Kong Sir Murray MacLehose, GBE, KCMG, KCVO in Council directed the establishment of the Law Reform Commission of Hong Kong and appointed it to report on such of the laws of Hong Kong as might be referred to it for consideration by the Attorney General or the Chief Justice;

On 11 November 1981 the Honourable Attorney General and the Honourable Chief Justice referred to this Commission for consideration a topic in the following terms :-

"Confession Statements and their Admissibility in Criminal Proceedings

(1) To what extent are current laws and procedures on the

above matters as applied in Hong Kong suited to the best interests of the community, including those of the individual.

(2) What changes, if any, in law or procedure are necessary

or desirable?"

At its Seventh Meeting on 13 November 1981 the Commission appointed a sub-committee to research, consider and advise on this topic.

At its Twenty-second Meeting on 28 October 1983 the Commission received and considered the report of the sub-committee.

We have made in our report recommendations which will meet the problems described therein.

iii

NOW THEREFORE DO WE THE UNDERSIGNED MEMBERS OF THE LAW REFORM COMMISSION OF HONG KONG PRESENT OUR REPORT ON CONFESSION STATEMENTS AND THEIR ADMISSIBILITY IN CRIMINAL PROCEEDINGS, INCLUDING A MINORITY REPORT

Dated this 14th day of December 1984.

iv

THE LAW REFORM COMMISSION OF HONG KONG REPORT CONFESSION STATEMENTS AND THEIR ADMISSIBILITY IN CRIMINAL PROCEEDINGS __________________________________________ CONTENTS Page Terms of Reference ii Signature Page iii Contents iv Introduction vi Chapter 1. Scope of the Report 1 2. A layman's introduction to the admissibility of confession

statements 3

3. A brief summary of Hong Kong Law and practice relating to

the admissibility of confession statements 7

4. The right to silence 9 5. An introduction to our proposals 14 6. Proposals 25 7. Summary of Recommendations in English 48 8. Summary of Recommendations in Chinese 55 9. Minority Report 61

v

Page Annexures 1. Outline of Hong Kong Law 68 2. Court statistics on voir dire proceedings 88 3. Comparative statistics on voir dire proceedings in England

and Hong Kong 102

4. The voir dire - a costing exercise 105 5. Organisations and individuals consulted for information,

views and assistance 110

6. Materials 111 7. The Judges' Rules and Administrative Directions 124 8. Comparative Law 135 9. Chinese translation of Statements in Proposals 5, 7 and 8 176 10. List of offences for which fingerprints are taken 180 11. Police Stations where arrested persons may be detained in

custody 182

vi

INTRODUCTION Appointment of sub-committee 1. On 13 November 1981 the Commission appointed a sub-committee to research, consider and then advise it upon aspects of confession statements and their admissibility in criminal proceedings. The members of the sub-committee were : Hon T.S. Lo (Chairman)

Commission Member

Dr Ambrose King Commission Member Dr Philip Kwok Commission Member Mr K. Bokhary, QC Barrister Mr R.K. Brown Director of Management & Inspection

Services Royal Hong Kong Police

Mr Adrian Keane School of Law, (retired in August 1982) University of Hong Kong Mr Martin C.M. Lee, Q.C. Barrister Mr W.R. Marshall Assistant to the Attorney General Mr R.E. Moore Solicitor, Executive Director of

Jardine, Matheson & Co. Ltd. Mr P.R. Moss Assistant Principal Legal Aid Counsel, Legal Aid Department Hon Mr Justice Penlington Justice of the High Court Mr Roderick B. Woo Solicitor F. Zimmern & Co. 2. The Secretaries of the sub-committee were : Davis Hui Crown Counsel S.M.I. Stoker Senior Crown Counsel Colin White (retired in March 1983)

Senior Crown Counsel

vii

In addition, David Lyons, Senior Crown Counsel, was largely responsible for drafting the sub-committee report while S.H. Cotsen, Senior Crown Counsel, prepared the preliminary background paper. Method of Working 3. The sub-committee began its deliberations with a consideration of an introductory paper prepared by Mr. Costen. The first formal meeting of the sub-committee was held on 8th January 1982 at which it was decided that a press release should be issued inviting submissions from members of the public. A release was given to the press on 28th January 1982 and appeared in 3 Chinese evening papers, 11 Chinese daily papers and 2 English papers. Letters were sent to a number of persons and bodies concerned in the administration or teaching of the law and to others who were likely to be able to assist the sub-committee in their task, seeking their views on the matters within the terms of reference. 4. A working party was formed to define the areas which the sub-committee should examine. It reported back to the sub-committee in February 1982, having isolated the issues to be discussed. 5. Over the succeeding 14 months, the sub-committee met a total of 30 times. Papers on particular aspects of the subject of Confessions were prepared by sub-committee members. Mr Keane prepared a paper on Hong Kong Law which forms the basis of Annexure 1. In addition, a paper endeavouring to cost the present voir dire system was prepared by the Secretaries (Annexure 4). 6. As a pre-requisite of any realistic examination of the subject, it was felt that the members of the sub-committee should familiarise themselves with police procedures and practice and a number of activities were organised to achieve this end. The sub-committee viewed documentary programmes on police operations and a number of visits to police stations in both Hong Kong and Kowloon were organised, thanks to the assistance of the Commissioner of Police and Chief Superintendent J.C. Clemence. 7. The sub-committee met officers from Lai Chi Kok Reception Centre and questioned them regarding admission procedures and the ways in which complaints by inmates of improper police conduct are handled. Over the period of the sub-committee's deliberations, a variety of materials from a number of jurisdictions was circulated to members. The materials to which the sub-committee was referred are listed at Annexure 6. Statistics relating to voir dire proceedings in courts in Hong Kong were collated and an analysis made with the help of staff of the Government Census and Statistics Department. These figures and the explanatory flow charts are shown at Annexure 2.

viii

8. The mass of information which the sub-committee accumulated in the course of its deliberations led in due course to a clarification of the issues involved and discussion centred on a paper prepared by the Secretaries which, taking account of materials and submissions received by the sub-committee, presented a series of proposals for change. This paper was discussed at length and amended proposals were unanimously agreed by the sub-committee on 19th April 1983. 9. The sub-committee's report was considered at length by the Commission at regular meetings held between October 1983 and December 1984. Comments and views of those with special interest or expertise in the subject were elicited by the Commission. This report has been produced after long and detailed study by both the sub-committee and the Commission. The proposals which are the result of that study and form the essence of the report are to be found at Chapter 6. 10. In an area of the law which is as controversial as this, we recognize that unanimity of view is unlikely to be achieved. Some members of the Commission expressed reservations as to certain aspects of the Report and we have found ourselves unable to reconcile these differences of opinion. Accordingly, we include at Chapter 9 the view of that minority in respect of some of the recommendations of the Commission's Report. Acknowledgements 11. We express our gratitude to all those who have assisted in the completion of the Report either by expressing views or supplying us with the facts and figures which have formed the foundation for our proposals. A list of those who have assisted us appears at Annexure 5. We record a particular debt of gratitude to the staff of the Law Reform Commission secretariat for their assistance in the lengthy task of compiling this Report.

1

Chapter 1 Scope of the report _______________________________ 1.01 After examining those areas of law relevant to the matters within our terms of reference we are of the view that the current laws and procedures relating to confession statements and their admissibility in criminal proceedings as applied in Hong Kong could be improved to better suit the interests of the community and the individual. 1.02 We have identified ten particular areas of concern where we believe the current laws and procedures to be deficient:-

(i) The law determining the admissibility of confession statements is in many respects uncertain;

(ii) It is inconsistently applied; (iii) In some cases, excessively technical criteria are applied which

are remote from the realities of life; (iv) The current law sometimes results in the exclusion from

evidence of confession statements made by arrested persons which should, in the interests of ascertaining the truth, be admissible;

(v) The laws and established procedures regula