THE ATTORNEY GENERAL v. LAM MAN WAH

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal by the Attorney General by way of case stated against an order of His Honour Judge Caird in the District Court whereby he ruled that the respondent had no case to answer in relation to a charge of wounding with intent to do grievous bodily harm. The appeal is brought under the provisions of section 84 of the District Court Ordinance. The charge against the respondent arose from an incident at Lok Wah Commercial Complex Kowloon on 5th May 1990. The respondent was at that time 16 years old. The allegation of the prosecution is that the respondent was one of a group of about 5 or 6 youths (aged between 15 to 17 years) who attacked a boy of 15 with sharpened water pipes. The only evidence against the respondent was a cautioned statement he made on 15th June 1990 which contained an admission to involvement in the offence.

2. At the trial the defence objected to the admission of the cautioned statement and the judge held a voir dire. The judge rejected all allegations of impropriety made against the police yet he ruled against the admissibility of the statement as evidence.

3. Now what happened was this. The respondent was cautioned at 5.50 p.m. on 15th June 1990 in the presence of his mother. As the interview progressed the respondent and his mother signed the statement on various occasions including at the end after the statement had been read back to them. The judge was satisfied that "nothing untoward had occurred". The judge said that he concurred with the police officer who took the statement who said that he thought the reason the mother was there was to "prove what was said by her son was said voluntarily". Nevertheless the judge ruled the statement inadmissible because the mother had seemed to the police officer "to be a person who had not received a good education"; he therefore concluded that the mother was not in a position to properly advise the son as to his legal rights. So he excluded the statement in the exercise of his residual discretion.

4. Now, there is clear law to the effect that the residual discretion vested in a trial judge is not a general licence to exclude evidence which is relevant and probative in proof of guilt. As Sir Denys Roberts CJ remarked in the case of Lam Yip-Ying [1984] HKLR 419 at 424 the power to exclude confessions on the ground of unfairness should seldom be employed: "Firstly because it involves the judge in withdrawing relevant and admissible evidence from the jury whose function it is to weigh such evidence. Secondly because in almost all cases the kind of conduct which will constitute "unfairness" should already have excluded the confession as involuntary."

5. Now, the presence of the mother during the interview in this case was clearly intended to reassure the young suspect. She was not there in the capacity of a legal adviser. Moreover the police were not in a position to assess her knowledge of the law. The mother's knowledge of the law was wholly irrelevant to the matters the judge had to consider.

6. In coming to the view as he did, the judge said at paragraph 12 of the Case Stated: "To conclude, as I considered that the mother was not in a position properly to advise the son as to his rights, I was not prepared to admit the alleged confession into evidence. I realise that the Respondent was extremely fortunate." In my judgment this is not a proper exercise of the residual discretion vested in a trial judge to exclude confession statements. In this context it would be helpful to recall what Lord Diplock said in the case of Reg. v. Sang [1980] AC 402 at 437B: "The fairness of a trial according to law is not all one-sided. It requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted".

7. There is no requirement in Hong Kong law that when a young person is interviewed by the police there must be present a parent or guardian. But Police General Orders, which are internal rules to govern the conduct of the police, do make provisions for such attendance. These rules were duly observed in the present case.

8. In my judgment the answer to the question posed in the Stated Case, namely, whether the judge had erred in law in declining to admit the cautioned statement into evidence must be answered in the affirmative. In my view the judge erred in declining to admit the cautioned statement into evidence. I would order, pursuant to section 84(c) (ii) of the District Court Ordinance, that the judge's ruling of no case to answer be set aside, and I would direct that the judge should admit the cautioned statement into evidence and continue with the hearing of the charge against the respondent.

Mortimer, J.:

9. I agree.

Sears, J.:

10. I also agree.

Litton, J.A.:

11. Consequent upon our judgment on this appeal, we direct that the case be listed before District Judge Caird for rehearing as soon as possible. Pending the hearing or further order we direct that the respondent be admitted to bail in the sum $1000 with a surety in like amount and that such recognizance as might be necessary should be entered into within the next 24 hours to ensure that the respondent is not detained overnight today. The condition of bail is that the respondent remains in Hong Kong pending trial or further order and attends trial at the time appointed. He should surrender his travel documents and should report twice weekly on Tuesdays and Fridays between the hours of 6 p.m. and 9 p.m. to Sau Mau Ping Police Station.