HKSAR v. PANG HIU SAN

Press Summary (English)

Press Summary (Chinese)

FACC No 3 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 3 OF 2014 (CRIMINAL)

(ON APPEAL FROM CACC NO 127 OF 2012)

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REASONS FOR JUDGMENT

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Judgment of the Court:

1. At the conclusion of the hearing of the appeal, we quashed the conviction, allowed the appeal and ordered a re-trial.  These are our reasons.

Introduction

2. No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement.[1]  Admissibility is a matter for the judge and is normally resolved in a voir dire.  If the evidence is held to be admissible, it will go before the jury whose concern is with the weight to be given to its contents.[2]  At the trial, all evidence relating to the circumstances in which the alleged statement was made are admissible for the purpose of enabling the jury to decide upon the weight (if any) to be given to the statement; whether or not such evidence has been taken in the absence of the jury before the admission of the statement.[3]

3. In this appeal we are concerned with first, in what circumstances a direction should be given to a jury about the voluntariness of a confession notwithstanding the fact that an accused denies making the confession, and secondly, in the event that such a direction is required , whether it is: 

“… sufficient for a judge to warn the jury that they may consider that they should give no weight to a confession and disregard it if they conclude that it may have been obtained as the result of oppression; or whether the judge must go further and direct them that if they so conclude they are required to disregard it.” [4]emphasis supplied.

4. The answer provided by a majority of the House of Lords in R v Mushtaq and subsequent decisions of the Privy Council, was that the judge must direct the jury as to voluntariness where the circumstances of the case suggest that the confession was, or may have been, induced by oppression and, if they conclude that the confession may have been obtained as the result of oppression they must disregard it.  This is commonly called the Mushtaq direction.  In July 2009, the Hong Kong Judicial Institute (“Judicial Institute”) issued new specimen directions[5] based on the Mushtaq direction.  In HKSAR v Ho Wing To (No 2) [2012] 1 HKLRD 1023, the Court of Appeal adopted the Mushtaq direction, although it recognized that Chan Wei Keung v R [1967] 2 AC 160, a decision of the Privy Council on appeal from Hong Kong, was to the opposite effect.[6]  This court is not bound by Chan Wei Keung but must decide for ourselves what is appropriate for Hong Kong.[7]  Mr William Tam, Deputy Director of Public Prosecutions, quite properly did not invite us to follow Chan Wei Keung.  However, he submitted that “as in Wizzard, the appellant in the present case denied making any confession but alleged police misconduct.[8]  The Privy Council held in Wizzard that a specific direction on voluntariness was not required.”[9]  This submission required careful consideration.

5. We have considered the relevant authorities and are of the opinion that a Mushtaq direction is required in Hong Kong where the circumstances suggest that the statement was, or may have been, induced by oppression, including cases where the defendant denied making the confession. Some of these authorities show that the courts were, for many years, uncertain whether, when the defendant denied making the confession, the court was required, indeed permitted, to deal with the voluntariness of a denied statement.  How the uncertainty was removed may help provide an answer to the instant appeal.

The Background

6. The appellant was convicted after trial before a jury of the offence of trafficking in 1 kilogram of a mixture containing 0.86 kilogram of cocaine.

7. The prosecution case is simple.  The appellant was arrested by a group of policemen, after a tip-off, at about 5:55 pm on 15 July 2011 in the corridor on the ground floor of King Wah House, Shan King Estate, Tuen Mun.  He was searched on the spot by DPC 53274 (“PW1”), who found a paper bag inside the appellant’s shoulder bag.  PW1 took out the paper bag and felt its weight.  He opened it in front of the appellant.  Inside the paper bag, PW1 saw a brick of suspected drugs (in transparent bag) inside.  He then arrested the appellant for trafficking and cautioned him in Cantonese.  The appellant replied in fluent Cantonese but with a Mandarin accent, “Ah Sir, I am caught. I carried the drugs for somebody else.”.  This statement was the relevant statement to be considered in the present appeal: it was a confession of knowledge.  A few minutes later, at about 6:05 pm, PW1 and his colleague took the appellant to Room C2003 in King Wah House, the home of the appellant’s ex-wife.  They searched Room C2003 but nothing was found. There, at 6:40 pm, PW1 post-recorded the oral statement in his note book, which was then signed by the appellant.  Later that night, in a video-recorded interview under caution, the appellant admitted, inter alia, that because he was in financial difficulties, he agreed to carry the drug for a person called “Ah Wong” for $6,000.  The prosecution case was that all three statements were made by the appellant voluntarily.

8. The defence case[10] was that as the appellant was walking in the corridor, at least four to five people rushed toward him, two on each side who twisted his arms.  At the same time, one of the policemen pressed his head down while another took out a white paper bag from his shoulder bag.  He then turned the appellant’s shoulder bag upside down, pouring all the contents onto the ground.  The appellant was then handcuffed but he was not cautioned.  Nor was he formally arrested.  He was made to stand against a wall for about 9 minutes.  The appellant denied he made the oral statement.  He was then taken to Room C2003, where his ex-wife was.  Many policemen swore at him and told him to shut up.  The appellant asked PW1 to loosen his handcuff a bit and he was told he should co-operate and sign a statement.  He signed it although he couldn’t see what had been written because he did not have his reading glasses.  He claimed that he had been threatened before the video-interview and he was taught what to say by the police.

9. As for the white paper bag inside his shoulder bag, the appellant’s case was that he thought it contained money.  He said, his son, Pang Cheung was arrested in May 2010 for trafficking in dangerous drugs, and was eventually sentenced to about 9 years’ imprisonment.  After his son was arrested, his son asked him to ask his boss “Ah Wong” for what he called “private meal money” as well as money for lawyers.  But because the appellant’s ex-wife did not wish to contact the boss, he did so.  On the first occasion, which was about one month after his son’s arrest, he contacted Ah Wong, and was told to wait at a taxi stand near King Wah House.  A young man came in a car and gave him money saying that it came from the boss.  That was the private meal money and it was $50,000.  As for the money for the lawyers, he said he asked Ah Wong for the money on a number of occasions, but Ah Wong said the prospect of a successful defence was poor, and a lot of money was needed, and Ah Wong suggested a “family settlement allowance” instead.  He and his ex-wife then lost contact with Ah Wong until 14 July 2011, when Ah Wong called his ex-wife and said that the syndicate decided to provide $300,000 as family settlement allowance.  So the appellant went to his ex-wife’s home at 9:00 am on 15 July to await instructions.  To cut a long story short, at 5:30 pm, outside King Wah House, the same young man came in a taxi and gave him a white paper bag through the window and said it was money from the boss.  The appellant did not look at the content and put it into his shoulder bag and walked back to King Wah House.  He was arrested in the corridor on the ground floor of King Wah House.

Proceedings Below

10. At trial, a voir dire was held.  In the appellant’s case[11] we were informed:

“10. The learned trial judge held a voir dire to determine the admissibility of the alleged oral admission after which he ruled the appellant did make the alleged oral admission voluntarily.”

11. The respondent’s case[12], filed in response stated:

“8. At the trial, the prosecution sought to adduce into evidence the appellant’s oral admission, the post-record of the oral admission and the video-recorded interview. Objection was taken to the admissibility of the evidence and a voir dire was conducted by the trial judge. Both the post-record and the video-recorded interview were excluded after the voir dire but the judge ruled that the prosecution was permitted to lead evidence before the jury of the oral admission at the scene of arrest.”

12. These submissions suggested that the oral statement was dealt with in the voir dire.  Shortly before the hearing of this appeal, we asked for a transcript of the ruling on voir dire as well as the written grounds of objection (“the grounds”) produced at trial.  The grounds made no mention of the oral statement.  The transcript of the judge’s brief ruling stated expressly that he was not satisfied with the voluntariness of the two written statements, one of which, of course, purported to be a record of the oral statement.  The judge said at the end of his ruling, after saying that he was not satisfied with the voluntariness of the written statements[13]:

“For the oral narration, the verbal admission, you [the prosecution][14] still have the right to call this police constable to give evidence about it. You [the defence[15]] have the right to say that I did not say that. During that time, that may bring up other matters. I do not know. It is for you to control your witness or else it may be unfavourable to you. This is it.”

13. Before us, Mr Tam submitted that the voluntariness of the oral statement was not dealt with in the voir dire because there was no challenge to its voluntariness: the grounds did not refer to it, nor did the judge’s ruling mention voluntariness in respect of it.  Mr Richard Wong for the appellant suggested that counsel then appearing for the defendant, not Mr Richard Wong, did not object to the admissibility of the oral statement, because counsel was not aware that a double-barrelled attack was possible.  But no attempt had been made to confirm that with trial counsel.  Be that as it may, in the Court of Appeal, the second of the two grounds of appeal was:

“The trial judge only directed the jury to consider whether the applicant had in fact made the oral admission without directing them to consider whether the admission had been or might have been made under threat or inducement by the police.”

14. The submission of Mr Henry Ma, who appeared for the appellant in the Court of Appeal only, was recorded in the judgment of the Court of Appeal in these terms:

“33. Mr Ma submitted that the applicant's evidence was that, upon interception and search by the police, he was subjected to violence and threat, and that the police neither formally arrested him nor cautioned him. Mr Ma submitted that the trial judge should therefore have directed the jury to consider whether the admission made by the applicant was (or might have been) rendered unreliable by oppression from someone with authority …”

15. We believe it does not matter, for the disposal of this appeal, whether a voir dire had been held to enquire into the voluntariness of the oral statement.  Had a voir dire been held in respect of the oral statement it would have been clear its voluntariness was understood to be in issue.  However, the critical question was whether the voluntariness of the oral statement was an issue before the jury and whether the jury ought to have been given directions as to this aspect notwithstanding the denial that he made the relevant statement.

16. Before the jury, the appellant gave evidence[16] about the circumstances of his arrest.  He said four to five men rushed towards him, grabbed his arms and pressed his head down.  He was then handcuffed and hooded, and after a few minutes taken to Room C2003.  No one opened the white paper bag in front of him or formally arrested or cautioned him.  He denied making the oral statement.  Whether we proceed on the basis of the facts summarized in the summing up or the version quoted in the judgment of the Court of Appeal, we have no doubt that they raised an issue of voluntariness in relation to the oral statement which had to be considered by the jury when they were deciding what, if any, weight should be given to the oral statement.

17. It was not disputed at trial that the drugs were found in a white paper bag inside the appellant’s shoulder bag.  His knowledge of the contents of the bag was the critical issue at trial.  He gave evidence about how the bag came to be in his possession and his belief that the bag contained money for his son.  In such circumstances, Pang J directed the jury in these terms:

“… both prosecution witnesses said that the police did formally arrest the Defendant and [caution] him thereafter, and that under caution, the Defendant admitted that he carried the dangerous drugs for someone else. On the other hand, the Defendant denied all these. So what do you do? You decide where the truth lies. The most important thing is that if you think that the Defendant did not, or may not have said ‘Ah Sir, I am caught. I carry the dangerous drugs for someone else’, then you will have to forget it, as if you have never heard of it and rely on other testimonies and evidence to decide the case. On the contrary, if you are sure that the Defendant did say those words, then this sentence may prove that the Defendant knew that dangerous drugs were inside the white paper bag, it may even be a piece of strong evidence that he trafficked in the dangerous drugs.”

18. The Court of Appeal dismissed the defendant’s appeal.  Chu JA, giving the judgment of the court, said:

“34. In our view, although the applicant's evidence was that when he was intercepted on the ground floor of King Wah House, the police grabbed hold of his hands and pressed his head down, he also said that he did not say anything until his arrival at his ex-wife’s resident. This being the case, all that the jury had to decide was whether the applicant had made the oral admission under caution that he carried the dangerous drug for someone else. As to whether he made the oral admission as a result of threat or inducement by the police, this was simply not the defence case, nor did the applicant give evidence to that effect at the trial before the jury. It was not necessary for the trial judge to give directions in his summing-up as to whether the admission was made under threat or inducement by the police and whether its contents were true.”

This Appeal

19. We gave leave to appeal so that we could consider whether on the evidence the jury should have been directed on the voluntariness of the oral statement.  If so, the content of such directions would also be in issue.

Double-Barrelled Attack

20. We mentioned earlier uncertainty about the treatment of confessions which the defendant denied making but where there was evidence of oppressive conduct at or before the alleged making.  As late as 1997, the position in Hong Kong was that the court had no jurisdiction to consider the admissibility of an oral confession which the defendant denied making. 

21. That was so, notwithstanding that in Ajodha and Others v The State [1982] AC 204, the Privy Council, on appeal from the Court of Appeal of Trinidad and Tobago, gave an affirmative answer to the question:

“when the prosecution proposes to tender in evidence a written statement of confession signed by the accused and the accused denies that he is the author of the statement but admits that the signature or signatures on the document are his and claims that they were obtained from him by threat or inducement, does this raise a question of law for decision by the judge as to the admissibility of the statement?”[17]

22. Lord Bridge explained at page 220F:

“The fallacy, ... is to suppose that a challenge by an accused person to a statement tendered in evidence against him on the ground that he never made it and a challenge on the ground that the statement was not voluntary are mutually exclusive, so as to force upon the judge a choice between leaving an issue of fact to the jury and deciding an issue of admissibility himself. In all cases where the accused denies authorship of the contents of a written statement but complains that the signature or signatures on the document which he admits to be his own were improperly obtained from him by threat or inducement, he is challenging the prosecution's evidence on both grounds and there is nothing in the least illogical or inconsistent in his doing so.”

23. In Thongjai, the Privy Council was concerned with two appeals from Hong Kong.  The facts in the case of the appellant, Lee Chun Kong, are surprisingly similar to the case under appeal.  Lee was charged with trafficking in dangerous drugs.  The prosecution case was that upon arrest, with packets containing a large quantity of heroin being found on him, Lee said “Ah Sir, don’t need to say anything.  You already know it is white powder.” Later, Lee signed the record of his oral statement in the constable’s notebook.  Later still, at the police station, he made a further written statement.  Lee denied making the oral statement.  Lee’s case was that he was at the lift lobby to his home:

“… when suddenly three men rushed up to him, one pushed him to the floor and immediately punched and kicked him, and his nose bled. He was made to squat facing the wall, his hands were handcuffed behind his back and he was hooded with a hood with eyeholes.”

24. A voir dire was held into the admissibility of these two written statements.  They were ruled inadmissible by the trial judge.  But the judge refused to hold a voir dire in respect of the oral statement on the ground that he had no jurisdiction to do so.  The prosecution was permitted to adduce the evidence of his oral admission at the trial before the jury.  Lee’s appeal to the Court of Appeal was unsuccessful.  However, he succeeded before the Privy Council and a re-trial was ordered.

25. Lord Hutton, in delivering the judgment of the Privy Council said that the principles stated by Lord Bridge in Ajdoha also applied to oral admissions[18] and that it is erroneous to think that if the defendant denies making the oral statement, then there is no issue of admissibility for the trial judge to decide on a voir dire, even if the defendant alleges that he was improperly treated by the police before or at the time of making the oral admission.[19]

26. The position in Australia was the same.  In MacPherson v The Queen [1981] 147 CLR 512 where the prosecution relied on an oral confession of the accused who complained of oppressive police conduct but whose evidence was that:

“I didn’t say anything to the police except my name and address.”

27. Gibbs CJ and Wilson J said at 522:

“… although the question whether any confession was made is one for the jury and not for the judge, a voir dire is required when the accused disputes that any confession was made, but also claims that there was such inducement or pressure that if a confession was made it was not voluntary. The recent decision of the Judicial Committee in (Ajodha) supports this conclusion.”

28. They also explained, if the court could not decide on admissibility first, the jury:

“… will have before them evidence that has not been found to be admissible, and an important rule which exists to protect accused persons, and to maintain proper standards of police investigation, will have been subverted. Of course once the evidence of the confession is admitted the jury are not concerned with the question whether it was voluntary; they have to consider only whether it was made and whether it was true, although they are entitled to consider the circumstances surrounding the making of the statement in deciding upon its weight and value ...”

29. The above authorities show that, there is no difference between  situations where the defendant admits making the admission (oral or in writing) but raises the issue that it was not voluntary, and where he denies making the statement but claims that, if he did make it, he made it involuntarily.  In both situations, a voir dire should be held.  Should the confessions be admitted by the judge, they will go before the jury to decide on the weight, if any, to be accorded to them. Although, in the case where an accused denied making the statement, the jury must also decide whether he had made the statement.

Direction to the Jury

30. We turn to consider how the jury should approach a confession when there was evidence before them which suggest that the confession was or may have been obtained as the result of oppression. 

31. In R v Bass [1953] 1 QB 680, a decision of the Court of Criminal Appeal, Byrne J, speaking for himself as well as for Lord Goddard CJ and Parker J said :

“… when a statement has been admitted by the judge he should direct the jury to apply to their consideration of it the principle as stated by Lord Sumner, and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregarded it.”

32. Lord Sumner’s principle was quoted by Byrne J in the immediately preceding paragraph of his judgment and read:

“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.”

33. In Basto v the Queen (1954) 91 CLR 628, the High Court of Australia, said the passage from the judgment of Byrne J quoted above:

“… cannot be right. The admissibility of evidence is not for the jury to decide, be it dependent on fact or law: and voluntariness is only a test of admissibility”[20]

34. The High Court explained  :

“… the question what probative value should be allowed to the statements made by the prisoner is not the same as the question whether they are voluntary statements nor at all dependent upon the answer to the latter question. A confessional statement may be voluntary and yet to act upon it might be quite unsafe; it may have no probative value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth.”

35. Chan Wei Keung (1967) 2 AC 160, is a decision of the Privy Council on appeal from Hong Kong, where the majority in the Court of Appeal was of the view that it was necessary to give a separate direction to the jury that they must be satisfied beyond reasonable doubt as to the voluntariness of the confessions before giving them any consideration.  The Privy Council after considering Basto as well as other Australian and Canadian decisions to similar effect, disapproved of R v Bass and concluded that no such direction was necessary. 

36. There, the matter rested until Mushtaq.  In Mushtaq, the certified point of law or general public importance  before the House of Lords [21] was:

“Whether in view of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms[22], a judge, who had ruled pursuant to section 76(2)[23] of the Police and Criminal Evidence Act 1984 (PACE) that evidence of the alleged confession has not been obtained by oppression, nor has it been obtained in consequence of anything said or done which is likely to render unreliable any confession, is required to direct the jury, if they conclude that the alleged confession may have been so obtained, they must disregard it.” (1515)

37. The judge had directed the jury that if they are sure that the accused had made the statement and that it was true they may rely on it: 

“…even if it was or may have been made as a result of oppression or other improper circumstances.”[24]

38. Hence, Lord Rodger of Earlsferry pointed out in his judgment (which had  the concurrence of Lord Steyn and Lord Phillips) it was important to note that:

“the Crown's contention is that in cases where the jury have rightly concluded that the confession was obtained by oppression or other improper means, they are to be told that they can still rely on it if they think that it is true.”

39. This stark statement lays bare the importance of the issue.  In our respectful view, the majority[25] in Mushtaq provided the only acceptable answer.

40. Lord Rodger rejected that contention in these words:

“44. At various points during the hearing before the House, it was emphasised that under the present system if a jury think that a confession was, or may have been, obtained by oppression, they are unlikely to accord it any weight or value. So there was no real difference between a situation where a jury give no weight or value to a confession in this way and one where they are told that they must disregard it. For all practical purposes, the present system achieved what the appellant was seeking.”

45.  That argument falls short if the rule against admitting an involuntary confession is not based simply on its potential unreliability.  And it is indeed clear that, according to the more modern analysis at least, the rule rests on a rather wider basis.  Giving the opinion of the Privy Council in Lam Chi-ming v the Queen [1991] AC 212, 220E-F, Lord Griffiths said:

‘their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution established that it was voluntary.’ [26]

Therefore, even if a jury would be unlikely to rely on a confession which they considered had been obtained by compulsion, the question still remains whether, having regard to the principle that a man cannot be compelled to incriminate himself and having regard to the importance attached to proper behaviour by the police, the jury are entitled to relied on a confession which they consider was, or may have been, obtained by oppression or other improper means.

46.  Since the three considerations mentioned by Lord Griffiths lie behind section 76(2), it respectfully seems to me that it is inconsistent with the very purpose of that provision to affirm that the jury are entitled to rely on a confession in such circumstances.  Under section 76(2), if an objection to a confession is raised, the judge must exclude it unless he is satisfied beyond a reasonable doubt that it was not obtained by oppression or any other improper means.  The evidence is excluded because, for all the kinds of reasons explained by Lord Griffiths, Parliament considers that it should not play any part in the jury’s verdict.  It flies in the face of that policy to say that a jury are entitled to rely on a confession even though, as the ultimate arbiters of all matters of fact, they properly consider that it was, or may have been, obtained by oppression or any other improper means.

47.  In my view, therefore, the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider that the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. In giving effect to the policy of Parliament in this way, your Lordships are merely reverting to the approach laid down by the Court of Criminal Appeal … in R v Bass.”

41. Lord Rodger then quoted the passages quoted in paras 31 and 32 above and continued:

“It seems clear that the court saw the direction to disregard the confession in such circumstances as part and parcel of the jury’s exercise of attributing the appropriate weight to the confession: in circumstances where they found that it had not been voluntary, for reasons going back to the time of Lord Hale, they should give it no weight and should disregard it.”

42. Lord Rodger recognized that he was departing from Chan Wei Keung but considered that s 76(2) PACE required a different approach, and:

“49. If there were any doubt about the proper approach, however, it would be removed by article 6(1) of the Convention … It is well known that among the rights implied into article 6(1) is a right against self-incrimination…”

43. Wizzard supports this new approach, there, Lord Phillips, rejected the argument that Mushtaq had departed from the common law and was not applicable in Jamaica[27], and said [28]:

“The relevant principle derived both from section 76 (2) of PACE and article 6 of the ECHR is the principle against self-incrimination. That is a long-recognised principle of the common law. The approach in R v Bass accorded with that principle. The approach in Chan Wei Keung v The Queen did not. The latter decision was a false step in the development of the common law. Mushtaq has re-established the correct approach and is, in consequence, applicable in Jamaica.”

44. In Mushtaq, Lord Carswell was of the view, that the right not to incriminate oneself is a constituent element of a fair procedure under Article 6(1) and it would not be compatible with the Convention right to a fair hearing for the possibility to be left open that the jury may take into account a confession made by an accused person and rely upon it in assessing his guilt on a charge of a criminal offence if they consider that the content is true, notwithstanding the fact that they consider that it has been or may have been obtained as the result of oppression.

45. Lord Carswell also agreed that Chan Wei Keung and Basto should no longer be followed, buthe took the view that the Bass direction[29] was sufficient to accommodate s 76(2) and that s 76(2) did not require the judge to direct the jury to disregard a confession which was or may have been obtained by oppression.

46. Lord Hutton in his dissenting judgment, had in mind the division of function between the judge and the jury, the former being concerned with the admissibility of the confession and the latter, its reliability, and said the division of functions has significant advantages, for example, it ensures that if the judge rules a confession inadmissible, the jury will never become aware of the confession and because the evidence given on the voir dire by the defence is not revealed to the jury, the defendant is not inhibited in the voir dire from giving evidence.

47. With respect, these are good reasons for, and no doubt explain why, voluntariness should first be considered by the judge on a voir dire.  On the voir dire the court is not concerned with the reliability of the confession. A true but involuntary confession may not be admitted.[30]  After the voir dire, the issue of the voluntariness of the statement may be repeated before the jury.  With respect, we cannot agree with Basto that voluntariness is only concerned with admissibility.  The jury is as much concerned with the voluntariness of the confession as the judge.  Though, prior to Mushtaq, only as far as its voluntariness might affect reliability.[31]

48. Lord Hutton approved the opinion stated in Mirfield on Silence, Confessions and Improperly Obtained Evidence (1997) pp 51, 52 that:

“… There seems to be no good reason for the accused to have two bites of the cherry in relation to the issue of admissibility.”

49. If the voir dire is understood and justified as a protection for the defendant who would otherwise be put into an impossible position.  It is not a first bite of the cherry but basic fairness to an accused.  The jury are the ultimate arbiters of fact and but for the inherent injustice to the defendant identified by Lord Hutton, voluntariness would be decided by the same jury which have to determine guilt.

50. Moreover, as Hong Kong Archbold 15-116 noted “At the request of the defendant the issue of voluntariness may be heard before the jury.”  Presumably, in that event, the jury would be directed to disregard the confession if they conclude that it was or may have been involuntary.  If that is correct, since, even after a voir dire, the question of voluntariness of the confession remains a matter for the jury, and the jury may not be told about the voir dire, or the view of the judge on voluntariness, it is difficult to see why they should not be directed to disregard the confession if they conclude that the confession was or may have been involuntary.

51. Moreover, the temporal nature of the judge’s decision on admissibility is shown by the fact that he may change his mind after the voir dire and in the course of the trial.[32]  

The position now to apply in Hong Kong

52. In Hong Kong we do not have the equivalent of s 76(2) PACE.  But, when commenting on the principles relating to voluntariness, Li CJ said:

“The underlying rationale is based both on the need to ensure the reliability of confessions as well as the right of silence…The right of silence is deeply rooted in the common law.”[33]

53. However, we have the equivalent of Article 6(1) in Article of the Hong Kong Bill of Rights.[34]

54. In our opinion, Chan Wei Keung should no longer be followed in Hong Kong and the common law is as stated in Mushtaq and Wizzard.  It follows that in our respectful view the Court of Appeal in Ho Wing To (No 2) and the Judicial Institute were right in adopting the Mushtaq direction.

55. We return to Mr Tam’s submission that :

“43. … as in Wizzard, the Appellant in the present case denied making any confession but alleged police misconduct. The Privy Council held in Wizzard that a specific direction on voluntariness was not required.”

56. In Wizzard, Lord Phillips said:

“35. A Mushtaq direction is only required where there is a possibility that the jury may conclude (i) that a statement was made by the defendant, (ii) the statement was true but (iii) the statement was, or may have been, induced by oppression.”

57. Mr Tam submitted that (iii) is only satisfied if there was actual evidence from the defence that, if the confession was made, it was induced by oppression.  Mr Tam submitted that if the defendant had said he had been beaten up by the police at or before the time of the alleged confession but claimed that he had remained silent, (iii) would not be satisfied.  We do not agree. The burden remains on the prosecution to prove before the jury that the confession is voluntarily made.  Evidence relating to the circumstances in which the confession was allegedly made is relevant to the jury’s consideration.  If circumstances[35] exist on which the jury could reasonably conclude that the confession was, or may have been, induced by oppression, the jury should be given a Mushtaq direction.

58. In a suitable case, the jury may reject the denial but are satisfied that it was voluntary.  As Mason J pointed out in MacPherson, a defendant may deny making the statement because: 

“… he may have thought, justifiably, that he would damaged that case by maintaining strongly before the jury an alternative case that the admissions made were not voluntary.” (532)

59. Returning to the three conditions in Wizzard, we believe all three are arguably satisfied in this case.

60. In Wizzard, the Privy Council concluded on the facts, condition (iii) was not satisfied.  However, Lord Phillips said:

“36. … The appropriate direction (had there been evidence that the statement under caution had been forced out of the appellant by violence) would have been a Mushtaq direction.”

61. The facts in Wizzard are difficult and we will not go into them.  It is unnecessary to do so.  The clear statements in Wizzard quoted in paras 56 and 60 above are sufficient for the present purpose.

62. Moreover, in Benjamin v The State [2012] UKPC 8 on appeal from the Court of Appeal of the Republic of Trinidad and Tobago[36], when dealing with the argument that no Mushtaq direction was necessary because the appellants denied making the statements, Lord Kerr said in the judgment of the Privy Council :

“A Mushtaq Direction

14. A Mushtaq direction is one which instructs the jury that if they consider that written or oral statements were, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it...

15. On this appeal the respondent argues that the position in Wizzard is replicated by the circumstances of the present case. Both appellants had denied that they had made statements. Applying the reasoning in Wizzard, therefore, no Mushtaq direction was needed. The Board does not accept this submission. It was clearly open to the jury to conclude that the appellants had made the statements attributed to them. After all, it was emphatically the prosecution's case that they had done so – indeed, had made the statements in the presence of justices of the peace. Likewise, it was open to the jury to find that the statements were true; this was again the prosecution's categorical case. Finally there was evidence on which the jury could have concluded that the appellants' signatures were appended to the statements as a result of oppression. All three conditions necessary to activate a Mushtaq direction were therefore present.

16.  The Board in Wizzard considered that the fact that the appellant in that case had made an unsworn statement from the dock, denying that he had made the confession which the police claimed he did, meant that a Mushtaq direction was not required. It is, with respect, somewhat difficult to understand why this should be so. Simply because the appellant had denied making the statement, it does not follow that the jury could not find that he had done so.”

63. With respect, we agree.  To distinguish confessions according to whether the defendant denied making them harks back to the time when whether voluntariness could be in issue when the defendant denied the making of the confession was uncertain.  That issue was put to rest in Thongjai. We would not permit it to be resurrected in any shape or form.

64. In the instant case, a Mushtaq direction should have been given.  Although the respondent’s case originally asserted this in the alternative, Mr Tam rightly did not contend that the learned judge’s submission satisfied Mushtaq.  For these reasons, we allowed the appeal, and quashed the conviction.  Mr Tam asked for a re-trial, which Mr Wong, rightly did not oppose.  A re-trial was ordered.