HKSAR v. OKAFOR PETER ERIC NWABUNWANNE

CACC 437/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 437 OF 2010

(ON APPEAL FROM HCCC 74/2010)

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REASONS FOR JUDGMENT

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Hon Stock VP:

Introduction

1.  The facts of the appeal in Mr Okafor’s case are fully set out in the judgment of Macrae J.  I respectfully agree with the reasons he provides for the dismissal on 18 November 2011 of Okafor’s appeal against conviction.

2.  The purpose of this separate judgment is to address an issue of general importance raised in this appeal as well as in the case of HKSAR v Ho Wing To (CACC 264 of 2010), the judgment in which is also handed down today.

3.  The issue is this: when a tribunal decides to admit into evidence a statement against interest in the face of a challenge as to its voluntariness or to refuse an invitation to exercise its discretion to exclude the evidence on the basis of unfairness:

(1) is the tribunal obliged in every such instance to give reasons for its decision;

(2) if not, are there nonetheless circumstances in which reasons must be given; and

(3) does a failure to give reasons ever amount to an error of law such as to render the conviction - if one follows - susceptible to reversal on appeal?

4.  For the purpose only of addressing that issue, we consolidated the hearing of the two appeals:

(1) In Okafor’s case, the issue was initiated by counsel for Okafor in his perfected grounds of appeal; whereas

(2) in Ho’s case, the issue was generated by the Court’s understanding at the initial hearing of his application that the court below had been invited to exercise its discretion in that applicant’s favour; this Court’s perception at that hearing that the facts in Ho’s case suggested possible unfairness immediately prior to and at the time of Ho’s admissions against interest; and the Court’s consequential concern that it was unable to discern from the brief ruling given the basis upon which the court had decided not to exclude the admissions in the exercise of its residual discretion.

5.  In both cases rulings were given but they were in short form, by which I mean that they were devoid of reasons.  Thus:

(1) In Okafor’s case, the judge merely said that having considered fully the evidence and submissions, he found the challenged testimony, namely, the oral exchanges with the applicant at the first hospital to which he was taken, as well as the notebook entry she subsequently made, to be admissible and that he saw no reason to exercise his discretion to exclude evidence of them.

(2) In Ho’s case, the judge’s ruling was in a form similar to that regularly seen, at least in voir dire rulings in the Court of First Instance, save that the circumstances which may constitute involuntariness were, helpfully, more fully spelt out than is normal:

“I have carefully considered all the evidence. … I have now heard all the arguments advanced by counsel. It is undesirable for me to say more than is necessary. All that I will say is this.

I am satisfied beyond reasonable doubt that all the out-of-court statements, both oral and written, which the prosecution seeks to rely upon and which the accused disputes, were made freely and voluntarily, without any ill-treatment, violence, threat, inducement, coaching, deception, trickery, oppression or other improprieties whatsoever.

I am also satisfied beyond reasonable doubt that there is nothing which makes it appropriate to exclude any of his admissions by an exercise of discretion.  I rule that all the disputed out-of-court statements, both oral and written, may be given in evidence before the jury.”

Why the issue now arises

6.  As we shall see from decisions going back several decades, it has for long been the law in Hong Kong that there is no general obligation to give reasons for admissibility rulings upon such applications although there will be instances – so the line of authority goes – where good practice dictates the provision of reasons.

7.  It may therefore be a matter of surprise to those attuned to this area of the criminal law in this jurisdiction, that the issue now falls for consideration for it may, with force, be said that the principles have long been established.

8.  However, there are several reasons for revisiting the issue:

(1) Many of the decisions on the point in this jurisdiction were delivered before the enactment of the Hong Kong Bill of Rights Ordinance and before the Basic Law came into effect and the suggestion is directly made in the grounds of appeal in Okafor’s case that the common law position, encapsulated in those decisions, sits ill with the protections afforded by those two instruments; and

(2) This Court’s concern that the frequent statements in the past about the absence of a general obligation to give reasons and to the desirability for reasons in certain cases as a matter of “good practice”, has been applied, or is in danger of being applied, too restrictively.

The arguments

9.  There are several possible answers to the questions posed:

(1) that it is always incumbent on the judge in such cases to provide reasons;

(2) that, save where statute so requires, a judge is only required to provide reasons in certain circumstances, most particularly when the absence of reasons deprives the convicted person of a meaningful or effective appeal; and

(3) that it is not incumbent on a judge to provide reasons and the failure to do so will never constitute an error of law.

10.  Whilst the thrust of the written submissions made in Okafor’s case by Mr Bruce SC was that a reasoned ruling was always required, he resiled from that position in his oral argument though not to a significant degree, for his ultimate position was that in relation to rulings on the admissibility or discretionary exclusion of admissions against interest, a reasoned ruling was almost always required: a ruling was only not required in cases where the issue at hand was a simple issue of fact.

11.  Mr Bruce’s stance was adopted by Mr Iu on behalf of Ho although in his case the emphasis was on reasons for not exercising a discretion where questions of unfairness were raised.

12.  Mr Zervos SC for the respondent invited an approach which had its emphasis towards the other end of the spectrum.  He suggested that the starting point and the general principle was that there was no obligation to give reasons although there were cases where it was good practice to do so, though good practice was not to be equated with a legal requirement.

13.  We are told that the problem posed is one which in practice is restricted to trials in the Court of First Instance.  That is because there are no statutory provisions specifically directed at the giving of reasons at that level and because the Magistrates’ Court and District Court invariably adopt what is known as the alternative procedure whereby the “special issue”, namely, the issue of admissibility of a statement against interest and the question of discretion, if it arises, is determined on the basis of the evidence led by the prosecution in the course of proving its case as a whole and on such evidence as is led by the accused on the special issue.  Moreover, a magistrate is required to provide a statement of his findings but only, we note, when an appeal is lodged: section 114 Magistrates Ordinance, Cap. 227. Presumably such statements of findings include relevant findings as to admissibility of statements against interest and the exercise of discretion, where that arises, but it is hoped that this judgment will in any event assist magistrates.

14.  A District Court judge is always required to provide reasons for verdict and these tend, as a matter of practice, to include reasons for admitting a statement against interest, where there has been a challenge, or for refusing to exercise the court’s discretion to exclude such a statement.

15.  In the Court of First Instance, the judge determines issues of law – including the admissibility of statements against interest – and the jury determines issues of fact relevant to their verdict for which the jury does not give reasons, a point upon which Mr Zervos places considerable emphasis.  He argued, if I understood him correctly, that there is less cause in jury cases to require the delivery of reasons in relation to the admissibility of statements against interest because, if the statement is admitted, the issue is effectively re-litigated before the jury, not as to admissibility but as to weight.

The Hong Kong authorities

16.  Whatever the practice may be at the particular levels of court, the principles which emerge from the authorities and which we emphasise in this judgment are principles of general application.

17.  Insofar as the authorities – certainly the earlier ones in this jurisdiction – evidence a theme which shies away from the giving of reasons for evidential rulings, there is no distinct articulation of the rationale but it likely emerged from several considerations, in particular:

(1) that the rulings in question are evidential and it is neither practicable nor necessary to require judicial tribunals to provide reasons for every evidential or procedural ruling that arises, still less so where the reason or reasons are self-evident; and

(2) where a statement against interest is admitted against the background of contested issues of fact, it is inappropriate for expressions of disbelief of an accused’s evidence to be articulated in mid-trial and, in cases of trial by judge and jury, creative of an uncomfortable air and of a risk that the ruling and its reasons might by mischance be leaked to members of the jury.

18.  One can readily dispose of the second of these concerns, for it can be avoided in practice by delaying the giving of reasons, where reasons are required, to the end of the proceedings as a whole.

19.  In a helpful written submission, Mr Zervos and Mr Edmond Lee have drawn to our attention the Hong Kong cases going back to 1975.  I refer to a few of them:

(1) R v Leung Lai Por & others [1975] HKLR 202 where at 212, Huggins J, as he then was, said in relation to the exercise of discretion that:

“Just as there is no obligation on a judge to give detailed reasons for holding a confession to be admissible, so there is no obligation upon him to give detailed reasons for declining to exclude evidence, even when he is formally asked to exclude it.”

(2) Khan Mohammed Hasham v R, CACC 777 of 1979, 30 January 1980, unreported, in which Leonard J held:

“There is no obligation on the trial judge, at the conclusion of the voir dire, to give reasons for his ruling that the statement is voluntary and therefore admissible nor for the manner in which he exercises a discretion arising from breach of the Judges Rules. … As is clear from Director of Public Prosecutions v Ping Lin (1975) 3 All E R p. 175, we should only disturb his decision if satisfied that he had made a completely wrong assessment of the evidence or had failed to apply the correct principles.”

I pause to comment that it is difficult to see how an appellate tribunal can make such a determination without reasons for the ruling, so one is bound to assume that that Court had it in mind that, absent a reasoned ruling, the reasons would be sufficiently clear from the nature of the challenge, the evidence adduced and the record.

(3) R v Hui Chuen Kit, CACC 378 of 1985, 29 May 1991, unreported, at p. 7 where Power JA, as he then was, said that in neither the United Kingdom nor in Hong Kong “has the judge ever been required to give full reasons when admitting a contested statement.” (Emphasis added)

(4) It cannot however be thought that Hui Chuen Kit, by its reference to the absence of the need to give “full” reasons, was taken to imply that some reasons had always to be given. We see from R v Chan King Hei and others [1995] 1 HKCLR 288 at 291 – that is after the enactment of the Hong Kong Bill of Rights Ordinance, although that Ordinance does not appear to have been prayed in aid on the point – that reference was made by counsel acting for the applicants to a suggestion in the then current edition of Archbold that “it would greatly assist defence counsel, in considering an appeal and in formulating grounds of appeal, and also the Court of Appeal, if an appeal proceeds, if the judge were to give a short reasoned judgment.” Mortimer JA, delivering the judgment of the Court, did not accept that proposition as applicable to Hong Kong, saying:

“We repeat that it is not necessary for a judge to give reasons for his decision on a voir dire. If he chooses not to give reasons he will not be criticised. Indeed, it is often the best course. It is a consequence of the different roles of judge and jury. It demonstrates that admissibility is a matter for the judge. Weight and credibility are for the jury whatever view the judge may have formed of the evidence given by the witnesses on the voir dire – which will often include the accused himself.”

He affirmed, at 292, that the same approach applied to reasons for the exercise of a discretion.

(5) In an appeal from the District Court, Stuart-Moore J, as he then was, in R v Leung Tung Wing [1995] 2 HKCLR 271 at 273 stated that whilst there was no requirement to provide reasons, reasons had in that case “very properly” been included in the Reasons for Verdict “because the interviews provided the only area of evidential disputes in the trial.”

(6) In Fan Koon Hung v HKSAR, FAMC 31 of 1999, 11 February 2000, unreported, one of the questions posed for certification and for the grant of leave was whether after a voir dire the trial judge who refused to admit into evidence written records of oral admissions should permit oral testimony of those same admissions by the same witness whose written record he had refused to admit, without the trial judge stating his reasons for so doing.  The Appeal Committee, per Bokhary PJ, said as to that question that:

“… it would have been helpful if the judge had said why he admitted the verbal admissions but excluded the post record and the record of interview … . But it is settled and sound law that there is no general rule by which judges are obliged to give reasons for their rulings on the admissibility or otherwise of disputed admissions.”

20.  So the principle appeared somewhat cemented, namely, that there was no obligation to provide a reasoned ruling either for the admission of a disputed statement or for the exercise of the residual discretion to exclude; and the high water mark of this approach was Chan King Hei above with its suggestion that not giving reasons was “often the best course.”

Clarification

21.  I myself doubt whether it was ever intended by these various dicta to dissuade judges in all cases from giving reasoned rulings, as opposed to an intention to save judges from giving reasoned rulings where the reasons were otherwise readily discernible or from giving full reasons where a short statement of reasons would do.  However, for present purposes it matters not what the intention was, because there has since been, and in any event needs to be, a sea change; or, if not a sea change, then a clarification.

22.  That sea change or clarification is clear from the judgment of Chan PJ in Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540 at 552 where he said:

“25. A judge is not obliged to give reasons for making a ruling on the admissibility of a confession statement. However there may be occasions when good practice requires reasons, such as where there is a question of law or there is an exercise of a discretion. See Wallace & Another v The Queen [1997] 1 Cr App R 396. Also Thongjai & Another v R [ 1997] 2 HKC 109 at p 114B where it is considered desirable to give brief reasons when ruling a confession statement inadmissible since such reasons may assist in clarifying issues should there be an appeal.”

23.  Wallace and Fuller v R [1997] 1 Cr App R 396 to which reference was there made was a decision of the Privy Council.  I note that an argument was advanced before their Lordships similar to that originally put forward by Mr Bruce in this case, namely, that there was or should be a rule of general application that the judge should always express reasons for any procedural ruling given during the trial.  Their Lordships rejected that argument saying that there could not be a rule of general application such as that propounded on behalf of the appellants but Lord Mustill added, in passages that merit full citation, at 407 - 408:

“Undoubtedly there will be occasions when good practice requires a reasoned ruling. For example, where the judge decides a question of law sufficient, but no more, must be displayed of his reasoning to enable a review on appeal. Again, on a mixed question of law and fact the judge should state his findings of fact so that the law can be put in context. Similarly, the exercise of discretion will often call for an account (however brief) of the judge’s reasoning, especially where the issue concerns the exercise of the discretion as well as the way in which it should be exercised. These are no more than examples. In every case it will depend on the circumstances whether reasons should be given, and if so with what particularity. Frequently, there will be everything to gain and little to lose by the giving of reasons, even if only briefly. But other situations are different, as the present case well shows.

Here, the trial judge was faced with an irreconcilable conflict of evidence between police officers and defendants, turning on credibility alone. No principles of law were in issue and there was no discretion to be exercised. The only question was whether the judge believed one set of witnesses or the other. His ruling leaves the answer in no doubt. Simply to announce that he accepted the account given by the officers and the justice, and found the appellants’ story unworthy of credit would not have advanced an appeal. Furthermore, although in cases where reasons are given and it is prudent for the judge to say no more than strictly necessary, it is hard to see how a mere summary would have been appropriate in the present case; for there was always the risk that if anything was omitted in the interest of brevity the defendants would argue on appeal that the judge had overlooked it. In practice, he could scarcely have stopped short of a full reasoned analysis. Their Lordships can see nothing to recommend such a course, and good reason not to follow it. In a case hinging on confessions the tasks of the judge and of the jury, although technically distinct, are in reality very much the same. The decision of the jury is announced in a non-speaking verdict at the end of the trial. For the judge to expound in detail almost at the beginning of the trial his reasons for preferring one story to the other would wholly unbalance the proceedings. His reasons which would be given in the presence of the public, the advocates and the defendants would inevitably leave their mark not only on the future conduct of the trial but also on its atmosphere. Furthermore, although the jury may well have a general inkling of what happens on a voir dire the risk that a lapse in security would allow the jury to learn why the judge considered the defendants’ evidence unworthy even to raise a serious doubt as to the voluntary nature of the evidence was too serious to justify whatever gain, if any, there might be at the appellate level. In truth, nobody in the present case who had heard the evidence, the cross-examination and submissions of counsel could have doubted why the judge decided as he did. It is not surprising that none of the counsel asked the judge to explain his ruling.

In rejecting the first ground of appeal their Lordships are neither stating a general rule as to the giving of reasons for interlocutory decisions, nor recognising categories of situation in which reasons should always or should never be given. In every instance, it is for the judge to decide whether the interests of justice call for the giving of reasons, and if so with what degree of particularity.” (Emphasis added)

24.  The problem thus far in this analysis is that neither the Court of Final Appeal nor the Privy Council’s decisions, though affirming what is good practice, addressed the consequence of not following good practice when it is required.  That no doubt was because in neither case was it held that the circumstances called for that practice to be followed.  The potential difficulty with the label “good practice” is that it takes the colour of mere guidance or advice from which judges may , especially in the light of the historical emphasis against the giving of reasons, be apt not to appreciate that there are circumstances which positively require a reasoned explanation of the ruling, the failure to provide which may constitute an error of law; a danger which is perhaps augmented if Lord Mustill’s comment that “it is for the judge to decide whether the interests of justice call for the giving of reasons” is misunderstood as suggesting that the judge’s decision is not amenable to successful appeal.  Furthermore, the risks and disadvantages that flow from the giving of reasons in mid-trial are real enough but are risks and disadvantages avoided by the delivery of reasons, where reasons are required, at the end of the trial.

25.  We have been treated to a study of those authorities which discuss the objectives and the benefits underlying the giving of reasons.  It suffices for present purposes to say that they include the imposition of a desirable intellectual discipline upon the tribunal; enabling the parties to decide whether there exist viable grounds of appeal; guidance in the future to the public or to sectors of the public interested in or affected by a particular category of case; the enhancement of consistency in decision making; and the engendering of public confidence: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, 290.  See also R v Sheppard (2002) 162 C.C.C. (3d) 298 at 319-321 from which Mr Bruce emphasises the comment of Binnie J, at 319 [55], that “the delivery of reasoned decisions is inherent in the judge’s role.”

26.  But an analysis of the objective in and the benefit of giving reasons does not lead to a conclusion that a separate articulation of specific reasons is always necessary – “separate” in the sense of a reasoned ruling.  

27.  Sheppard itself – in a discussion directed at reasons for verdict – acknowledges, at 320, that “the basis for the conviction … may be clear from the record” and that “the question is whether, in all the circumstances, the functional need to know has been met.” (Emphasis added)  So too, added Binnie J, even where reasons acquire particular importance because the tribunal has had to address difficult issues of unsettled law or to resolve contradictory evidence on an important issue, the need for a discrete articulation of those reasons may be obviated where “the basis of the trial judge's conclusion is apparent from the record.” (Emphasis added)

28.  The essential point seems to me to be this: that a defendant in a criminal case is entitled to know why an adverse decision of a tribunal on a material issue has been made.  In the event of a conviction, those acting for him are under a duty to advise whether there are viable grounds of appeal and, in the event of the presentation of an application for leave to appeal against conviction, the appellate tribunal must have sufficient information with which conscientiously to determine the points raised on appeal.  If those acting for a convicted defendant or the appellate court are deprived of that information, the appellate machinery is, for the purpose of the point raised, rendered ineffective.  It does not, in my judgment, need the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, to which effect is given by article 39 of the Basic Law, with its protection of the right of such a person to have his conviction reviewed by a higher tribunal, to tell us that the right of appeal is not a true right if it is rendered meaningless or ineffective.

29.  In a criminal case a statement against interest is often, though not always, a central part of the case against the accused.  A challenge to its admissibility or an invitation to exclude it in the exercise of the court’s residual discretion is therefore an important issue in a case.  The merit of the challenge or of the invitation will vary.  Sometimes, as in Okafor’s case, it will be patently unmeritorious; indeed sometimes, as in Okafor’s case, what is clothed by defence counsel as such a challenge or invitation has in reality nothing to do with admissibility (voluntariness) or discretion (fairness) but is revealed rather as an issue of fact for the fact-finder; for example, whether the admission was made.  Some cases will have more merit; some may have complex issues of law; and some questions of discretion may be finely balanced. Whatever the merit, the reason for the rejection of the argument or the refusal to exercise discretion in favour of the defendant should not be a secret.  The reason should be clear either from what has transpired in the court of trial during the canvassing of the issues, from the nature of the issues themselves, from the evidence or a combination of these; or, indeed, from a reasoned ruling.  This means that if the basis of the tribunal’s determination is clear from the circumstances as revealed by the record, there is no need for the provision of reasons; for in such a case the tasks of the adviser and of the appellate tribunal are not obstructed.  If the basis for the decision is not clear from the circumstances – which includes the evidence, the nature of the challenge, exchanges in the course of the proceedings – then reasons should be provided, otherwise the convicted defendant is effectively deprived of his right of appeal in relation to a material issue in the case.

30.  It is to be hoped that what I say in this judgment will not be read as if it were a statute with hard-edged rules, still less that it should be thought that the absence of reasons is in itself a ground of appeal in this context (as to which latter point see R v Barrett (1995) 96 CCC (3d) 319; and R v Burns [1994] 1 SCR 656 at 664).  The purpose of this judgment is to articulate principles against which tribunals, as well as those advising convicted persons, may test whether a discrete set of self-contained reasons in this area is required in a particular case and to provide some examples of where they may be required.

31.  Furthermore, it is to be emphasised that where reasons are required, how much needs to be said is as long as a piece of string: in other words, sufficient for the particular purpose, which means that it depends on all the circumstances.  This is respectfully to endorse the statement by Binnie J in Sheppard above at 320 that:

“The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.”

And in a more recent decision of the Supreme Court of Canada, R v R.E.M. [2008] 3 SCR 3 at [37] – albeit a case, as with most of the cases cited (save Barrett above and R v Woodard (2008) 245 CCC (3d) 522), to do with reasons for verdict rather than the admission or exclusion of evidence – McLachlin CJ said:

“… the cases confirm that a trial judge's reasons should not be viewed on a stand-alone, self-contained basis.  The sufficiency of reasons is judged not only by what the trial judge stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial.  The question is whether, viewing the reasons in their entire context, the foundations for the judge’s conclusions – the “why” for the verdict – are discernible.  If so, the functions of reasons for judgment are met.” (Original emphasis)

32.  It is further to be emphasised that this judgment is not to be taken as opening the door to a requirement for the giving of reasons on every procedural issue.  If the reason is self-evident from the context and the exchanges, then no distinct time need be devoted to giving reasons.  In other cases, the very briefest of distinct reasons may well suffice:

“There are innumerable rulings given in trials in response to objections for which reasons should normally neither be requested or given – those relating to the form of questions, those relating to their capacity to elicit inadmissible evidence, those relating to their tendency to infringe privilege. Sometimes reasons for rulings on relevance should be given, because they offer a guide to counsel in their future conduct, and the time lost in giving that ruling is outweighed by the time saved in ensuring future compliance with it. But if reasons were to be given for every ruling, trials would become interminable.”

Evans v The Queen (2007) A Crim R 232 at [244].

Examples

33.  There are dangers in providing examples of situations which may require the delivery of a reasoned ruling.  The first danger is that it might be thought that they constitute an exhaustive list and the second that it might be thought that in all such cases within the example categories a reasoned ruling must be given, no matter how clear the reason is from the record.  Neither approach to the examples would be justified.  The examples are provided to illustrate the type of case where it may well be difficult readily to cull the reasons from the record and where a reasoned ruling tends to be called for:

(1) Where a real issue arises for the exercise of discretion. As we have earlier seen, Lord Mustill said in Wallace and Fuller at 407:

“… the exercise of discretion will call for an account (however brief) of the judge’s reasoning, especially when the issue concerns the existence of discretion as well as the way in which it should be exercised.”

So, for example, where there has been a significant breach of the rules for the interviewing of suspects but the tribunal decides nonetheless not to exclude statements against interest that follow the breach, the circumstances might cry out for an explanation from the tribunal, absent which the accused’s advisers and the appellate court are left in the dark.  To take an example within the example, if a person aged under 16 years is not afforded the opportunity to have his or her guardian or some other adult present before any questions are asked and it is decided, for some reason, that in the circumstances of the case there can still be a fair trial, it is obviously incumbent on the decision-maker to say why.

(2) Where the decision turns upon a somewhat difficult or novel issue of law, it must be made apparent that the tribunal has grasped the issue and correctly addressed it: see R.E.M. above at [55]; and also Chau Ching Kay at [25].

(3) Where there is material and obviously inconsistent or contradictory testimony on an important issue, a tribunal should, if the statement against interest is admitted, generally explain, even if briefly, how the contradiction has been resolved or, if it be the case, why it does not matter.  I have emphasised the word “material” because there is an unhealthy obsession amongst some counsel with immaterial inconsistencies in evidence, both internal to the testimony of one witness or as between witnesses.  Whilst inconsistencies may be of the kind that truly affect reliability, inconsistencies should be approached realistically recognising that some inconsistencies are, with the passage of time, inevitable; some are more apparent than real especially when one remembers that witnesses when testifying are often apt to use loose language; sometimes the questions to which answers are given are obscure or double-barreled; sometimes the witness is merely confused; although, of course, there are occasions when an inconsistency is such that the evidence should not be relied upon.  The reliability of a witness’ testimony is more often truly tested by inherent probabilities and improbabilities, a direction of cross-examination which is too seldom utilized precisely because it is too often considered that establishing an inconsistency is the be-all and end-all of cross-examination.

(4) Where a judge finds that there has been some improper behaviour on the part of the investigating authorities but that nonetheless the statement is voluntary: for example, where some inducement has been held out but by reason of intervening events or by the conduct of the suspect, perhaps on the advice of someone representing him, it is clear that the inducement has had no effect whatsoever.  This may be a rare occurrence, but is an example of a situation where reasons are called for unless perfectly apparent from the record.

(5) Where an earlier statement against interest is ruled inadmissible or is excluded in the exercise of the tribunal’s discretion but a later one is admitted, the legal advisers and the appellate tribunal are entitled to know, either from the record or from a reasoned ruling, why the voluntariness of the later statement or the discretionary circumstances for its exclusion are not infected by the circumstances that led to the exclusion of the earlier statement.

The consequences

34.  What are the consequences when the reasons for a material decision arising on a voir dire are not apparent from the record or from a reasoned ruling?

35.  The answer, in my judgment, is that an error of law is thereby constituted.  The proposition seems to me to be self-evident but in any event, there is ample support for it:

(1) In Woodard above at [25], Chartier JA said :

“… the failure to give reasons on an evidentiary ruling … is not fatal in and of itself when the decision is supportable on the evidence or when the basis for the decision is apparent from the circumstances. When it is not, the door to appellate intervention is opened.” (Emphasis added)

(2) In Sheppard above at [28] Binnie J said:

“It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate courts to determine the correctness of the trial decision, and a functional test requires the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. … a simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.”

This case

36.  For the reasons given by Tong J in Okafor’s case, it is perfectly apparent from the record that no question of voluntariness arose and that, even if somehow it or the issue of discretion raised its head above the parapet, Okafor was patently anxious to unburden himself.  The real challenge was to the accuracy of the police evidence as to what Okafor said.  There was no reason for the judge to say more than he did say in his ruling.

Hon Cheung JA:

37.  I agree with the judgment of Stock VP and with the reasons provided by Macrae J for our dismissing this appellant’s appeal against conviction.

Hon Macrae J:

38.  The appellant was convicted after trial before Tong J and a jury of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He was sentenced to 11 years and 6 months’ imprisonment.  He appeals against his conviction only.

39.  On 18 November 2011 we granted the application for leave to appeal against conviction, treated the hearing of the application as the hearing of the appeal and dismissed the appeal.  We said we would give our reasons in due course.  These are my reasons.

The facts

40.  The appellant, who is a Nigerian national resident in Germany, arrived in Hong Kong as a visitor from the mainland through the Lok Ma Chau border crossing at 3:24 a.m. on 19 January 2007.  At 10:08 a.m. the same day, the appellant presented himself at the accident and emergency department of the Kwong Wah Hospital in Mong Kok, Kowloon complaining of abdominal pain.  After he had been registered, he was physically examined by a medical officer, Dr Wong Kin Ho.  During that examination, the appellant told Dr Wong that four days previously whilst in the mainland he had swallowed 30 plastic bags of cocaine: however, he had not been able to pass any of the plastic bags out of his system.  Various tests were then performed on the appellant including an x-ray of his abdomen, which revealed the shadow of multiple bags in his intestine.  Dr Wong then discussed the matter with a senior doctor at the hospital, as a result of which the police were informed.

41.  Accordingly, at 11:45 a.m. a woman police constable together with two other police officers arrived at the hospital to investigate the matter.  After an initial briefing by Dr Wong, who said that the appellant was fit to be interviewed, the woman police constable spoke to the appellant and asked him what had happened.  The appellant told her that if he could successfully deliver the drugs to Holland from the mainland he would receive US$5000; and that he had already received half of that amount. The officer asked the appellant whether anybody had forced him to swallow the plastic bags but he said that he had done so voluntarily for money.  When asked what was in the bags, the appellant said it was cocaine.  The officer then arrested the appellant for trafficking in a dangerous drug and cautioned him. The appellant replied “Sorry.  I have financial problem.” The woman police constable immediately took out her notebook and made a record of the appellant’s reply under caution and asked him to sign on her notebook.  However, the appellant said he was in pain and could not sit up to sign.  He was subsequently transferred to the custodial ward of Queen Elizabeth Hospital.

42.  At about 6:45 p.m. on the same day, the woman police constable went to Queen Elizabeth Hospital, where she issued and read out to the appellant a Notice to Persons in Custody.  She also read over to him a post-record of the conversation she had earlier had with him at the Kong Wah Hospital including his reply to the caution, reminding him that he was still under caution but could make any additions, amendments or corrections to the post-record.  The appellant said that he did wish to add something, which the officer then recorded in these terms: “I did tell who pay me.  That is Mr Chan arrange this trip.  But you didn’t mention.” She then handed the notebook to the appellant who, in his own handwriting, wrote: “Mr Jean (sic) took advantage of me because of money problem with the German Customs.” To the closing declaration, which the appellant also wrote upon the officer’s instruction, he added “and I am begging for mercy”.  The appellant then signed and initialled the woman police constable’s notebook.

43.  It was an admitted fact that at 3:05 a.m. on 21 January 2007, the appellant excreted 28 objects wrapped in tinfoil and plastic from his body.  Later at 6:15 p.m., he excreted 2 further similar objects.  These objects were subsequently found to contain 296.84 grammes of a mixture containing 214.22 grammes of heroin hydrochloride, the subject matter of the count on the indictment.

The voir dire and ruling

44.  Between 2:05 p.m. and 10:30 p.m. on 21 January 2007, the appellant was further interviewed under caution by another police officer.  This record of interview, which was not objected to, was produced at trial by way of admitted fact.  However, the admissibility of the admissions made to the woman police constable at the Kwong Wah Hospital and the post-record signed at Queen Elizabeth Hospital (together with the Notice to Persons in Custody) was objected to and was the subject of voir dire proceedings.  At the conclusion of those proceedings, the judge gave a ruling in the following terms:

“Having considered fully the evidence and the submissions, I find that what the prosecution seeks to produce are admissible, that is the oral exchange, the notebook entries and the notice. I also see no cogent reason to exercise my discretion to exclude any of them. That is my ruling.”

The argument on appeal

45.  Mr Bruce SC for the appellant has focused his attack in this appeal upon the adequacy of the judge’s ruling as to admissibility.  He submits, firstly, that given the pain and discomfort that the appellant was obviously in when questioned by the woman police constable at both the Kwong Wah Hospital and Queen Elizabeth Hospital, it was unfair to admit his oral answers and the subsequent written record of those answers into evidence.  Secondly, he submits that the caution was not administered on a timely basis so as to make clear to the appellant at an early stage that he was a suspect who stood to be arrested for a serious offence.  It is argued that since both complaints went to the fairness of the trial and engaged the judge’s discretion, it was incumbent on the judge to give a ruling so as to explain why he had refused to exercise that discretion in the appellant’s favour.

Application of applicable principles

46.  I have had the advantage of reading the judgment of Stock VP on the question of whether and in what circumstances judges are obliged to give reasons for their rulings as to admissibility on a voir dire.  I entirely agree with his distillation of the relevant authorities and his conclusion as to the principles which should apply to the position in Hong Kong.

47.  However, in my judgment, this was not a case which required the trial judge to say anything more than he did say because in reality the issue was not whether the appellant was being unfairly questioned in the circumstances but whether the woman police constable had accurately and faithfully recorded what he had said to her.

48.  The appellant’s own evidence during the voir dire was that he had initially been to a private clinic where he told a doctor in terms:

“Please, I have cocaine in me, and I need to report -- go to government hospital to report to the police.”

49.  Accordingly, he claimed he was put in a taxi and sent to the Kong Wah Hospital.  When he arrived at the accident and emergency department, the appellant said he reported to a policeman who was at a police post that he had cocaine in him and he needed to make a report to the police. He then registered with the hospital and was seen by Dr Wong, whom he immediately told he had been forced to swallow cocaine.  Having been x rayed, it was the appellant’s evidence that he asked Dr Wong about the police and was reassured by him that they were on their way.  When the police did arrive, the appellant said he told the officers that he had been forced to swallow cocaine against his will and that he had been threatened that if he reported to the police they would kill his wife and children.  He said he wanted the police to contact Interpol so as to ensure that his wife and children were protected. Indeed, this was the case that had been put in cross-examination to the woman police constable.

50.  It seems clear, therefore, that it was the appellant’s case that he wanted to tell Dr Wong and the police about the drugs that were inside him.  If that were so, he was still going to tell them whether he was in pain and discomfort or not.  We wonder how on the appellant’s own case it could conceivably have been unfair for a police officer to listen to and record what he was saying.  The real issue, so far as the defence were concerned, was whether the woman police constable had accurately and faithfully recorded what he said and not whether it was unfair for him to say what he was determined to tell her.

51.  The same may be said about the complaint as to the timing of the caution.  Assuming that the appellant should have been cautioned earlier – and it is arguable as to precisely when that should have been – the reality is that if the appellant were so insistent on telling the police about the drugs in his body and the threat hanging over his family, he was still going to do so even had he been cautioned.  Indeed, that is exactly what he did when later formally interviewed under caution; which interview was not objected to.

52.  In my judgment, the judge was correct to rule as he did.  Indeed, it would have been extraordinary given the real nature of the issue if he had ruled otherwise.

53.  As for whether he should in the circumstances have given reasons for his ruling, it should be pointed out that the judge engaged Mr Bruce extensively on the issue of discretion during his submissions at the conclusion of the voir dire.  Those exchanges between bar and bench run to more than 15 pages of transcript and it is quite obvious to anyone reading them – and it would be quite clear to any appellate court looking at the transcript – how the judge’s mind was working on the issue. Indeed, he suggested to Mr Bruce that his argument on admissibility was “…for want of a better word, an artificial attack”.  Given that the real nature of the complaint was the accuracy of the woman police constable’s record of the conversation rather than its admissibility, that is a characterisation with which I would respectfully agree.

Conclusion

54.  For these reasons, I agreed that the appeal should be dismissed.