CHOW KAM SHING v. R.

1993, No. 180
(Criminal)

H E A D N O T E

Direction to juries on disputed confessions.

In general, trial judges should tell the jury : that they are concerned with the truth of the disputed confession; that they should take into account all the circumstances in which it was made when deciding whether they are sure that it is true; and that any pressure on an accused to make a confession lessens the reliability of any confession he makes. Where the allegations of impropriety are of a very serious nature, the judge would be wise to add that if the jury are unsure that the confession was made in circumstances free from such impropriety, then they should give it no weight.

IN THE COURT OF APPEAL

1993, No. 180
(Criminal)

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J U D G M E N T

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Bokhary JA (giving the judgment of the Court):

1. When called on before us, this was an application for leave to appeal against conviction and sentence. As to conviction, in respect of which many grounds were advanced, we gave leave to appeal on one ground only. We will come to that ground in a moment. Before that, the background should be outlined.

2. It stands thus. The appellant and two other men were tried before Woo J and a jury on an indictment containing five counts.

3. Of those five counts, the appellant, who was the 3rd accused below, faced only one. That was the 1st count. It was of a conspiracy, between the 1st accused and this appellant, to rob.

4. On April 8, 1993, by a majority of six to one, they were convicted of that conspiracy - in respect of which the appellant was, on April 22, 1993, sentenced to nine years' imprisonment.

5. The prosecution relied upon a confession statement signed by the appellant. Without it, there would be no evidence on which he could be convicted.

6. According to the police officers concerned, that statement was a record of what the appellant said to them of his own free will, they wrote down accurately, and he signed of his own free will.

7. According to the appellant however, he had no knowledge of what was in the statement. It was, he said, fabricated by those officers, who then forced him to sign it by beating him until he agreed to do so.

8. The judge admitted the statement in evidence after a trial within a trial in the jury's absence. Thereafter, the dispute as to how it came to be made was gone into afresh before the jury.

9. Coming now to the ground on which we gave leave to appeal against conviction, it is necessary to quote four paragraphs from the transcript of the summing-up:-

"Where an admission to an offence is made by a person in custody, if the admission is not made voluntarily, there is a risk that the admission may not be true or reliable. Whether the Judges' Rules were complied with is a factor you may take into consideration. Your task as the jury is to decide whether the admission or confession - they are sometimes interchangeably used, admission or confession - whether the admission is made by the defendant. That is a question of fact - whether the defendant made the admission; and secondly whether the admission is true or not. There are 2 questions as Mr LEE has put it - whether the defendant made the admission; secondly if you are satisfied that the defendant made the admission, whether that admission contains the truth or not. If you think that the admission in any of the statements is not made by the defendant concerned, namely exhibit P 5 made by D1, exhibit P 7 made by D2 and exhibit P 8 made by D3 - then you just ignore these 3 documents. Throw them away if you are not satisfied beyond a reasonable doubt that these 3 defendants made their respective admissions in those statements.

Also if you think that the admission was made by a defendant involuntarily - that means not voluntarily - you may attach little or no weight to it. On the other hand once you are satisfied that an admission is made by a defendant, then even if you think that the admission was obtained by force. threats or inducements, you may still rely on the admission if you are satisfied beyond reasonable doubt that it contains the truth.

It is for you to determine whether or not an admission is true and you need not ignore an admission which you think is true but which you think may not be voluntary. However, if you consider the admission may have been given not voluntarily, it is a factor which you may consider and which would entitle you to discount its reliability.

You must remember that it is for the prosecution to prove beyond reasonable doubt that the admission contained in each of the defendants' cautioned statements is true, and if you have any reasonable doubt whether the admission is made by a defendant or a reasonable doubt whether the admission contains the truth or whether an admission is reliable, then you must ignore that admission altogether."

10. As can be seen, the judge expressly left it open to the jury to find that the appellant's admission was true even if they thought that he had been forced to make it - something which he alleged and the police officers denied.

11. When the judge spoke of the admission being true, he must have been referring to what the appellant was alleged to have said. And when the judge spoke of the admission which the appellant was forced to make, the reference must have been to the appellant's signature.

12. Of course, finding that the oral admission was true necessarily involves finding that it had been made.

13. If the jury thought that the signature had been forced out of the appellant, it would be unsafe for them to rely on it as evidence that the appellant had really said what one of the police officers wrote down as his, the appellant's statement.

14. The only evidence of that which would be left would be the testimony of the police officers that the appellant had really said what one of them wrote down as his, the appellant's statement. But it would also be unsafe for the jury to rely on such testimony if they thought that the police officers had forced the appellant to sign the statement and then lied about it in the witness- box, dishonestly saying that he had signed it of his own free will.

15. In those circumstances, leaving it open to the jury to find that the appellant's admission was true even if they thought that he had been forced to make it was leaving them with an unsafe basis on which to convict. It was, in the circumstances, a misdirection.

16. On that misdirection, this appeal would have to be allowed unless we are satisfied that it did not result in a miscarriage of justice.

17. So it comes down to this question: is there any danger that the jury really convicted on the basis that the appellant's admission was true although he had been forced to make it? Looking at the case realistically in the light of the whole of the evidence and the way in which the case was fought, we do not think that there is any such danger. The choice before the jury was a stark one. Did the appellant make the admissions orally and then sign or did the police officers concoct the whole statement and then coerce the appellant into signing? In convicting, the jury must have felt sure that the appellant's confession statement was free of impropriety.

18. Accordingly, we apply the proviso and dismiss the appeal against conviction.

19. Before parting with that appeal, we remind trial judges of the pitfalls of making it a practice to tell the jury in terms that it is open to them to find a disputed confession true even if they thought that it had been or might have been obtained by violence, threats, inducements or oppression. The present case would have fallen into the pit if it had not been held back by the application of the proviso.

20. There is a wide range of things which would render a confession involuntary and therefore inadmissible. If the judge, dealing in a trial within a trial with the admissibility of a disputed confession, is not sure that the confession is free from anything of that kind, then the confession would never be placed before the jury. But if the judge is sure of that, and the confession is therefore placed before the jury, the defence would of course be entitled to renew its allegation of impropriety over the making of the confession. At that stage however, the enquiry would be as to weight not admissibility: in other words, truth not voluntariness.

21. Not everything which affects admissibility has the same impact on weight. Some, for example torture, would, as a matter of reality, render the confession worthless. Others, for example the offer of a meal, may leave genuine scope for finding that the confession is nevertheless true.

22. Each case depends on its own facts. In general however, trial judges should simply tell the jury: that they are concerned with the truth of the disputed confession; that they should take into account all the circumstances in which it was made when deciding whether they are sure that it is true; and that any pressure on an accused to make a confession lessens the reliability of any confession he makes. Where the allegations of impropriety are of a very serious nature, the judge would be wise to add that if the jury are unsure that the confession was made in circumstances free from such impropriety, then they should give it no weight.

23. It remains to hear counsel on sentence.

[The application for leave to appeal against sentence was heard on August 25, 1994; and the Court's judgment thereon was delivered on August 30, 1994.]

24. Other cases in our list on that day left us with insufficient time to give judgment in the application for leave to appeal against sentence on the day on which it was heard. We do so now.

25. In passing sentence on the applicant and his co-accused, this is what the Judge, referring to the applicant as "D3", said:

"The only evidence of the conspiracy in count one is contained in admissions made in D1's cautioned statement (Exhibit P5) and D3's cautioned statement (Exhibit P8). The jury must have found them guilty on the basis of their respective admissions.

The gist of the admissions is that D3 recruited D1 and another man to come to Hong Kong from China to rob, and that D3 requested D1 to buy a gun in China and to bring it to Hong Kong for the purpose of robbery - which D1 did.

D3 also paid them some money for coming to Hong Kong. When D1 and the other man sneaked into Hong Kong it was D3 who received them and provided them with a lodging. It is therefore clear that D3 played the role of the instigator, planner and organiser and D1 just acted as one of the perpetrators.'

26. That view of the case is borne out by the applicant's admissions even without reference to anybody else's.

27. On that view of the case, the sentence of nine years' imprisonment passed on the applicant is justified on its own, and is not rendered unjustified by the less severe sentences passed on his co-accused.

28. There is no basis for interfering with that sentence; and leave to appeal against it is refused.