R. v. CHAN LAP MAN, RAYMOND and Others

1995, No. 372
1995, No. 373
(Consolidated)

IN THE HIGH COURT OF HONG KONG

CRIMINAL JURISDICTION

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R U L I N G

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1. Mr Iu, on behalf of counsel for all the defendants, has made an application for an order that the prosecution produce "statistics" in respect of the High Court and District Court criminal proceedings in the past five years in which the police officers who are allegedly involved as described in the defendants' grounds of objections in the voir dire proceedings before me have given evidence in support of the adducing of confessional statements of accused persons. The purpose is to enable the defence to use the material for cross-examining such officers in the present proceedings regarding the admissibility of confessions taken by them or the taking of which allegedly involved them.

2. The reasoning in support of the application is as follows:

(1) the grounds of objections of the defendants in the present voir dire include allegations that the police officers concerned fabricated the confessional statements and that the defendants were subjected to violence and threats by reason of which they signed the statements;

(2) one of the key issues in the voir dire is the credibility of the police officers concerned;

(3) evidence of impropriety of police officers shown in a former trial is admissible in a subsequent trial relating to alleged similar impropriety;

(4) the prosecution is therefore obliged to disclose information about such impropriety.

3. Mr Wan, joining the application, although his client, the 3rd defendant, is not involved in the voir dire proceedings, submits that knowledge of such former proceedings in which the police officers concerned in the present case have given evidence in respect of the admissibility of confessional statements and of such impropriety must be possessed by such officers, and such knowledge of theirs should be considered to be knowledge or information in the possession of the prosecution. It follows, therefore, so Mr Wan argues, the prosecution is obliged to disclose the required information to the defence.

4. There are broadly two main questions for me to decide:

(1) whether the police officers concerned should be allowed to be cross-examined on matters relating to former proceedings in which they have given evidence regarding admissibility of confessions; and

(2) whether the prosecution is under an obligation to provide the defence with such statistics or information as sought.

5. On the first question, Mr Iu relies on the recent case of Williams and Smith [1995] 1 Cr App R 74, in which the Court of Appeal in England held that cross-examination of police officers as to the fabrication of evidence given by them in other cases resulting in acquittals was permissible. The Court followed the judgment of Lord Lane CJ in Edwards [1991] 93 Cr App R 48 at 59, which was cited at pp. 78G-79A of the report:

"In our judgment, if the circumstances surrounding those two cases which we have described had been known to the defence, it would have been relevant and admissible to put to the officers in question that they had given evidence in the trials, that in each of the trials there was an issue as to whether alleged confessions had been fabricated and that the trials had ended in the way described. There was in each case a sufficient connection between the evidence given by the police officers and the eventual outcome of the trial to entitle the defence to cross-examine the officers concerned about these matters upon the question of their credibility in the instant case." (emphasis added)

6. What is the sufficient connection between the evidence given by the police officers in a trial and the eventual outcome of the trial so as to entitle the defence to cross-examine the officers concerned in another trial? The answer can be found at p. 57 of the report on Edwards where Lord Lane had this to say:

"... where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact." (emphasis added)

What is important is not simply that in former or other proceedings a confession sought to be adduced was not admitted in evidence, but that the officer's evidence crucial for the admissibility of the confession is demonstrated to have been disbelieved. Otherwise, the fact that the officer had given evidence in any such proceedings is irrelevant, and he should properly not be cross-examined on them or their outcome or his conduct raised in them. See also Blackstone's Criminal Practice, 1995, para. F7.9 and R. v. Y [1992] Crim LR 436 at 437.

7. What the defence seeks now is statistics or information about former proceedings in which the officers involved in the present voir dire proceedings had given evidence. The information sought falls far short of the requirement for relevance for being admissible evidence.

8. I now turn to the question of the prosecution's obligation to disclose. Mr Iu is frank to admit that the application is an attempt to have the duty of the prosecution as to disclosure expanded. The learned editors of Archold 1995, at para. 8-132, have this to say,

"The question raised by this decision [i.e., Edwards] is to what extent either the prosecution, or the defence, or both will be obliged to make inquiries into previous trials when faced with an allegation of fabrication of admissions by police officers. Will the defence be obliged to put the prosecution on notice so that full enquiries can be made? Clearly, if the issue is to be raised at trial, counsel would need to be in possession of the facts of all such previous trials resulting in acquittals in order to assist the judge in the exercise of his discretion as to whether to allow cross-examination. The Court of Appeal stated that such an exercise would be rare, being limited to those cases where a sufficient connection can be established between the evidence of the police officers and the eventual outcome of the trial. How this is to be determined remains to be seen. Will the judge be expected to hear evidence or decide on the basis of the submissions of counsel?"

9. Archbold, at para. 8-131, paraphrased the limit to the rule in Edwards thus:

"Where the acquittal in case A did not necessarily indicate that the jury disbelieved the officer, such cross-examination was not to be allowed: the verdict of not guilty might mean no more than the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness to be lying. Therefore their Lordships stated, it would be rare that the judge, in his discretion, would allow cross-examination about the activities of a witness in other cases. One of the considerations was the necessity of keeping the criminal process within proper bounds and avoiding the pursuit of side issues which were of only marginal relevance to the jury's decision."

10. The ultimate arbiter of what must be disclosed is the courts and not the prosecutor. Subject to that, the extent of the obligation to disclose can be seen from the observation of Jowitt, J. in R. v. Melvin (unreported; see Cross & Tapper on Evidence, 8th Ed., pp. 271-2) as follows:

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence that the prosecution proposes to use; (3) to hold a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

Thus, any unused material in the possession of the prosecution, e.g., a statement of a witness which contains information inconsistent with the evidence that he is expected to give, must be disclosed.

11. What the defence seeks is that the prosecution make available to it statistics or information relating to former proceedings in which the police officers who have given and who will give evidence in the present voir dire proceedings had given evidence relating to admissibility of confessions. Such statistics or information may be relevant insofar as they can lead to the obtaining of evidence by the defence as to former impropriety or discreditable conduct of the officers concerned. This, as Mr Wan puts it, is a step before the defence is properly allowed to cross-examine the officers on former impropriety and is required for giving the defence a lead to obtain evidence of such impropriety. Miss Millar, for the prosecution, has informed me that the prosecution, including the Police, does not have such statistics or information, save in the following case. Where impropriety of police officers has been found by the courts or where their evidence has been disbelieved by the courts, criminal charges or disciplinary proceedings would invariably be brought against the officers, and in such cases, the Police does keep a record. Miss Millar has no objection to disclose such records, and before I give this ruling, I have ordered the prosecution to provide the defence with such records, if any, relating to the police officers concerned in the instant case. For it is one of the rules intimated in Edwards, at pp. 51 and 56 of the report, that it may be a material irregularity in the trial if the prosecution fails to disclose that police officers who are witnesses in the proceedings have been found guilty of police disciplinary offences.

12. It appears to me whether I should accede the to application is a balancing exercise. Fairness to both the prosecution and the defence and practicability must be carefully weighed.

13. There are considerations which operate against ordering the prosecution to provide the information sought. Accepting that the prosecution does not have the required statistics or information, apart from the records mentioned above, it could be said to be too onerous a burden imposed on the prosecution to compel it to make enquiries to acquire the information so as to assist the defence. The prosecution should not be asked to prepare the case for the defence. Each of the defendants is legally represented, with solicitors and counsel, and they can make whatever enquiries they deem fit, to obtain all necessary information to assist the defendant's case or attack the prosecution's. The court should not impose a duty on the prosecution that may amount to oppression, while the defence can itself make its own enquiries to obtain the same result.

14. On the other hand, while the prosecution does not have the information sought ready at hand, it is a simple matter and will not require much effort and time for the police officers concerned to provide, as far as their memories go, the information whether they have given evidence relating to admissibility of confessions in criminal proceedings in the High Court or District Court in the past five years, and if so, whether such confessions were in fact admitted or rejected by the courts. This would not impose too onerous a burden on the prosecution, and would at the same time, enable the defendants, as properly advised, whether they should make further enquiries as to whether such information can be used for their purposes.

15. I am impressed by the submission of Mr Wan that knowledge in this respect of the police officers, as opposed to lay witnesses who have not provided the police or the prosecution with any such required information, should properly be treated as knowledge of the prosecution. I am also influenced by the decision in R. v. Maguire [1992] 2 WLR 767 at 782D-783G, where non-disclosure of potentially exculpatory material not known to prosecuting counsel (it was known to a forensic scientist employed by the prosecuting authority) was held to provide a basis for a conviction to be set aside on the ground that there had been a material irregularity at trial. In that case, the Court of Appeal in England held that in relation to the obligation of the prosecution to disclose, knowledge did not stop at that possessed by members of the prosecuting authority.

16. I do not, however, think it proper to order the prosecution to have the information provided by the police officers checked or verified by having to make enquiries with regard to records of the criminal proceedings disclosed in the information, for that would be unjustifiably compelling the prosecution to assist in searching for information in support of the defence case. The lateness of the application, over ten days after the commencement of the voir dire and not at an early stage of the pre-trial reviews, also adds force to my reasoning for this restriction of the extent and quality of the information to be disclosed. Without this limited information, on the other hand, the defence would hardly know where to start in its pursuit of possibly very relevant evidence. I think the order I make, in the circumstances, strikes an even balance at practicability and fairness to the prosecution and to the defence.

17. For all these reasons, I rule that the prosecution should provide to each of the defendants in the voir dire proceedings information in writing, not in the form of statistics, as to whether the police officers identified in his grounds of objections have given evidence relating to admissibility of confessions in criminal proceedings in the High Court or District Court in the past five years, and if so, the information should also include the identity of such cases and whether the confessions sought to be admitted in each of the cases were in fact admitted or rejected by the courts. The information ordered is that to be sought by the prosecution from the police officers concerned, which is subject to the strength or otherwise of their memories.