THE QUEEN v. CHU TO CHUNG

 HEADNOTE

Subject to one exception, where a defendant is retried following the quashing of his conviction, a voir dire to determine the voluntariness of any admissions allegedly made by him must be held at the retrial, even if (a) a voir dire was held at the original trial to determine the voluntariness of those admissions, (b) the trial judge found as a fact that the admissions were made voluntarily, (c) the grounds of appeal had not included a challenge to the judge's findings of fact on the voir dire, and (d) the conviction was quashed on grounds which were unrelated to those findings. The exception is where the judge at the retrial presided over the original trial, and regards his recollection of the witnesses and the evidence at the first trial as sufficient to carry out the duty cast upon him by R. v. Watson [1980] 1 W.L.R. 991.

IN THE HIGH COURT OF HONG KONG

CRIMINAL JURISDICTION

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RULING

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INTRODUCTION

1. The Defendant is charged with rape. He pleads not guilty. He was originally tried by Deputy Judge Yeung and a jury. He was convicted and sentenced to eight years' imprisonment. However, he appealed against his conviction to the Court of Appeal. The Court of Appeal allowed his appeal, quashed his conviction and ordered a retrial. It is that retrial which I am currently trying.

2. The Defendant objects to the admissibility of some of the evidence which the Crown proposes to call. That evidence relates to various admissions which the Defendant is alleged to have made to police officers. He claims that, to the extent that he is found to have said what they have attributed to him, those admissions were not made by him voluntarily. That is denied by the Crown. Since the admissibility of that evidence, therefore, is dependent on facts which are in dispute, it was originally proposed that before the jury was empanelled a voir dire should be held. It was assumed by both counsel, and by Gall J. on the pre-trial review, that the fact that this is a retrial was irrelevant to whether a voir dire should be held.

3. When this trial began yesterday, I questioned the correctness of that assumption. Broadly speaking, the admissions which the Defendant asks me to rule inadmissible (on the ground that they were made involuntarily) are the same admissions as he sought to persuade Deputy Judge Yeung to rule inadmissible. Deputy Judge Yeung held a voir dire, and having heard the relevant witnesses he found that the admissions were made voluntarily, which resulted in him ruling that the evidence of the admissions was admissible. His findings of fact, and his consequential ruling on the admissibility of the evidence, were final in the sense that his ruling was never challenged. The perfected grounds of appeal drafted by counsel did not seek challenge the findings of fact which caused Deputy Judge Yeung to rule as he did. The grounds of appeal related to what were alleged to be, and were upheld by the Court of Appeal to have been, misdirections in the judge's summing-up to the jury.

4. In these circumstances, it occurred to me that since the admissibility of the evidence is dependent on facts which are in dispute, but since those facts were finally determined in favour of the Crown at the earlier trial, a second voir dire to determine those facts would be tantamount to re-litigating issues of fact which should be regarded as having been conclusively decided. I asked counsel to address me on that issue. The conclusions I have arrived at have been reached with the benefit of those submissions.

ISSUE ESTOPPEL

5. The general rule of public policy is that there should be finality in litigation. That has resulted in recent years in a debate relating to the extent to which the courts should prevent the re-litigation of issues which have already been decided. One of the products of that debate has been the emergence of the doctrine of issue estoppel. Thus, in Mills v. Cooper [1967] 2 QB 459, Diplock L.J. (as he then was) said at pp. 468G-469A:

"... a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or the incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him."

6. However, a division has arisen in common law jurisdictions about the application of the doctrine of issue estoppel to criminal proceedings. Both the Supreme Court of Canada and the High Court of Australia have held that issue estoppel is part of the criminal law in their jurisdictions. In the U.K., on the other hand, the law has developed differently. In D.P.P. v. Humphreys [1977] A.C.1, Lord Hailsham recognised the existence of "a doctrine applicable to criminal proceedings which is in some ways analogous to issue estoppel, and has sometimes been described by that name ... [It] is available to the accused but not the Crown... [It] precludes the Crown from adducing evidence or making suggestions which are inconsistent with a previous verdict of acquittal when its real effect is determined" (pp. 40G-41B). However, all the other members of the House of Lords in Humpheys rejected without qualification the application of the doctrine of issue estoppel to the English criminal law. Indeed, the Court of Appeal in Hong Kong assumed that Humpheys had laid the question to rest one and for all, because in R. v. Yu Wai-Shan [1986] H.K.L.R. 550 the Court did not question the correctness of counsel's concession to that effect.

7. Speaking for myself, I have some reservations about the unqualified rejection of the application of the doctrine of issue estoppel to all aspects of criminal proceedings. In my view, there ought to be some scope for its application to findings of fact made by the judge when ruling on interlocutory applications relating to the admissibility of evidence which depends on facts in dispute - provided, of course, that those findings of fact can be said to have finally determined the admissibility of the evidence to which those findings relate. That cannot be said to have happened if the defendant is ultimately acquitted, because in the absence of a right of appeal by the Crown, there is no route by which those findings of fact can be reviewed by a higher court. But if the defendant is ultimately convicted, and he either chooses not to challenge by way of appeal the findings of fact made by the judge relating to the admissibility of that evidence, or if such a ground of appeal is rejected, I have not been able to discern any consideration of public policy which requires that issue to be re-litigated in any subsequent trial if the defendant's conviction is quashed on other grounds.

8. However, if I gave effect to that view, I would, I think, be swimming against the tide of modern authority in England and Hong Kong. I turn therefore to a consideration of an alternative route by which the courts in recent years have attempted to outlaw the re-litigation of issues which have already been decided - namely, by the invocation of the doctrine of abuse of process.

ABUSE OF PROCESS

9. In Hunter v. The Chief Constable of the West Midlands Police [1982] A.C. 529, the House of Lords held that where a final decision has been made in criminal proceedings, it is an abuse of the court's process to mount a collateral attack on that decision in subsequent civil proceedings. In that case, a voir dire had been held at the trial of various defendants to determine whether confessions alleged to have been made by them to police officers were admissible in evidence. The trial judge held that the confessions had not been obtained by the use of violence as the defendants had alleged, and that they had been made voluntarily. He therefore ruled them to be admissible. The Defendants were convicted, and their applications for leave to appeal against their convictions were subsequently refused. However, one of them then commenced civil proceedings for damages for assault against the police and the Home Office. It was held that the institution of the civil action against the police was an abuse of the court's process. The proper method of attacking the findings of fact of the trial judge on the voir dire would have been to make the contention that the findings of fact were either erroneous in law or contrary to the weight of the evidence a ground of his appeal against conviction. The trial judge's findings of fact, and his consequential ruling that the evidence was admissible, became final when the trial ended with the return of the jury's verdict of guilty. The civil action therefore amounted to an impermissible attempt to launch a collateral attack in subsequent proceedings on the decision made by another court of competent jurisdiction in earlier proceedings, in which the Plaintiff had had every opportunity of contesting the decision which had ultimately been made in those proceedings. It was that which constituted the abuse of the court's process.

10. In my view, this reasoning applies whether the subsequent proceedings are criminal or civil. Indeed, that was what the New Zealand Court of Appeal held in Bryant v. Collector of Customs [1984] 1 N.Z.L.R. 280. In that case, the Defendant had been tried on a charge of stealing certain goods. In the course of that trial, a voir dire had been held to determine whether various admissions alleged to have been made by the Defendant to police officers were admissible in evidence. The trial judge had ruled them inadmissible since he had not been satisfied that they had been made voluntarily. The result was that there was insufficient evidence against the Defendant to allow the case to go to the jury, and the judge entered an acquittal. However, the Defendant was subsequently tried on a charge of smuggling the same goods into New Zealand. The judge at that trial ruled that he was not bound by the ruling at the previous trial. After considering the question afresh, he ruled that the statements were admissible, and the Defendant was subsequently convicted. That conviction was quashed on appeal. It was held that the prosecution had not been entitled to re-litigate the issue of the voluntariness of the admissions made by the Defendant to the police. The attempt to introduce the admissions in evidence at the second trial amounted to a collateral challenge to a final decision of another court of competent jurisdiction. It was, therefore, an abuse of the process of the court.

11. In my judgment, these two cases represent a sure and intellectually compelling foundation for incorporating into the law of Hong Kong the principle of public policy against allowing collateral attacks in subsequent criminal proceedings on a final decision made by a court of competent jurisdiction in earlier criminal proceedings against the same defendant. However, "whether that principle has any application where ... a new trial is ordered or whether there are other considerations bearing on its application where that doctrine is invoked against the accused" were issues expressly left open in Bryant (see p. 285, lines 1-4). Both of these situations occur in the present case.

12. Mr. Llewellyn for the Crown argues that if the principle applies at all, it must be applied even-handedly. What is sauce for the goose is sance for the gander. If the Crown is not entitled to re-litigate the voluntariness of admissions once they have been held to have been made involuntarily, there is no basis for permitting a defendant to re-litigate the voluntariness of his admissions once they have been held to have been made voluntarily. Moreover, Mr. Llewellyn submits that the findings of fact made by the judge in the voir dire at the first trial do not cease to be final simply because the conviction of the defendant at the first trial is quashed and a new trial is ordered - provided, of course, that the quashing of the conviction was wholly unrelated to the findings of fact in the voir dire. If (as in this case) the grounds of appeal did not seek to challenge the findings of fact made by the trial judge in the voir dire, and if (as in this case) the conviction of the Defendant was quashed solely on the grounds of misdirection in the summing-up by the trial judge, the quashing of the conviction and the order for a new trial should not prevent the re-litigation of issues to which those findings of fact related. To hold otherwise, so the argument goes, would be to give to the Defendant the windfall of having a second opportunity to argue an issue which had already been properly and fairly decided adversely to him. It is said that there is no consideration of public policy which requires the Defendant to be accorded such a benefit.

13. These submissions, persuasive though they are, suffer in my view from one serious vice. They fail to give adequate weight to the well-established principle, articulated in R. v. Watson [1980] 1 W.L.R. 991, that a finding at the conclusion of the voir dire that the statements alleged to have been made by the defendant were made voluntarily, and are therefore admissible in evidence, is a finding which the judge is entitled to revisit at any stage in the trial. Indeed, it is his duty to rule that the statements are not admissible in evidence after all if, during the trial, a shift in the factual basis of the evidence in support of the finding that the statements were made voluntarily causes him to have doubts as to the correctness of his previous ruling.

14. I take the point that the rest of the evidence given at the Defendant's first trial did not cause Deputy Judge Yeung to have any doubts as to the correctness of his previous ruling. It is therefore said that his decision on the voluntariness of the Defendant's admissions became final when the jury pronounced its verdict of guilty. However, Mr. Llewellyn conceded - rightly in my view - that the duty of the trial judge to remain astute to shifts in the factual basis of the evidence in support of the finding that the statements were made voluntarily applies not merely to the judge at the original trial, but also to the judge at the second trial. If the judge at the second trial is not the same judge who presided over the first trial, he will not have seen and heard the evidence which caused the judge at the first trial to rule that the statements had been made voluntarily.

15. In those circumstances, I do not see how the judge at the second trial could carry out the duty which Mr. Llewellyn accepts Watson casts upon him. In my view, the argument to that effect by Professor J.C. Smith in his commentary on R. v. Pervez and Khan [1983] Crim.L.R. 108 at p. 109 is correct. Professor Smith added:

"... facts may emerge at the voire dire which would justify the judge in excluding a strictly admissible confession in the exercise of his discretion - such as a breach of the Judge's Rules. It does not seem satisfactory that a discretion should be exercised by any judge other than the judge in charge of the proceedings which result in a verdict."

I agree with that as well.

16. It follows that, for this reason alone, a decision by a judge at the end of a voir dire that an admission alleged to have been made by a defendant to police officers was made voluntarily and is therefore admissible in evidence is not a decision which has the characteristics of the kind of finality which would justify the invocation of the doctrine of abuse of process, unless the judge at the subsequent trial was the same judge, and regarded his recollection of the evidence at the first trial (and his view of the witnesses) as sufficient to carry out the duty which Watson casts upon him. Even then, however, the Defendant would be entitled to have the whole question of the voluntariness of the admissions re-litigated if he was able to satisfy the court that there is new evidence which

However, since I did not preside over the Defendant's original trial, I rule that a voir dire should be held to determine the admissibility in evidence of the admissions allegedly made by him.

SECTION 83F OF THE CRIMINAL PROCEDURE ORDINANCE

17. Finally, I should refer to section 83F(1) of the Criminal Procedure Ordinance (Cap. 221) in view of one of the arguments deployed by Mr. Souyave for the Defendant. Section 83F(1) provides that when a person is to be retried for an offence pursuant to an order made by the Court of Appeal to that effect, he shall be tried "on a fresh indictment". Mr. Souyave submits that by that provision the legislature must be taken to have intended that all issues decided in the first trial could be re-litigated in the second. I should be surprised if that were so. I suspect that that argument reads far too much into section 83F(1). If the matter is properly researched, I suspect that it would be found that section 83F(1) was intended to be no more than a procedural device to give effect to the order for a new trial.