ATTORNEY GENERAL v. LI SIU LAM

The admission of entirely exculpatory statements in criminal trials.

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J U D G M E N T

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Silke, V.P. :

1. Li Siu Lam was, after a trial in the District Court at which he gave no evidence, acquitted on two charges. The first of robbery and the second of blackmail.

2. In the course of the prosecution evidence counsel then appearing for the Crown informed the Court that he did not seek to rely on three cautioned statements made by Li, they being considered self serving. It was accepted at trial and before this Court that these were largely exculpatory. Mr. Howard, with him Miss Poon, who appeared for Li both here and below, made a submission that it was the duty of the Crown to place all evidence before the Court. He went on that if the Crown did not seek to produce them then he would wish to put them in.

3. The taker of one of the statements was then called in evidence. He was a police officer present at Li's arrest. In the course of cross-examination Mr. Howard asked him to produce all the statements. Objection was taken to this course by the Crown but the trial judge admitted them into evidence as, he later said, "relevant to the attitude of Li at the time he made them, in order to provide a balanced picture and in order to put the interviews Li had had with the police in context." He placed no reliance upon them in coming to his final conclusion.

4. The Crown sought, by way of case stated, to appeal the trial judge's decision: the real point at issue being the admission of the statements.

5. On 4th November 1988 the judge signed a case. In January 1989 the matter came on for hearing and, after this Court had heard full argument, judgment was reserved. We made it clear at that time that no order inimical to Li, and from now on we shall refer him as "the Respondent", would be made in the light of the acquittal by the trial judge which was based on his assessment of the case for the Crown and disregarding the statements. Both the Crown and Mr. Howard were anxious to obtain a decision of this Court on the statement point.

6. It then transpired that the person who made the original application on behalf of the Attorney General under the provisions of section 84 of the District Court Ordinance, Cap. 336 to Judge Roy to state a case was not authorised so to do and the proceedings were therefore a nullity.

7. This came about, as set out more fully in the Attorney General v. Wong Kwai Fun and another CA 516/88 (unreported), because of a difference between Gazette Notification 3176 of 1983 and Gazette Notification 1813 of 1986. The latter altered the designation of the proper legal officer authorised to apply to a judge of the District Court to state a Case. This notification was a public notification of the legal officers authorised by the Attorney General under the provisions of section 7 of the Legal Officers Ordinance, Cap. 37 to discharge certain of the Attorney General's functions.

8. The matter was raised before this Court in a hearing on 26th May 1989. The original appeal was dismissed for want of jurisdiction but leave, and this not simply without objection from the Respondent but with his counsel's enthusiastic agreement, was granted under the provisions of section 84 to extend time for the proper legal officer to make a fresh application.

9. This has now been done and a Case was, on 2nd June 1989, signed by Judge Roy.

10. The question of law is stated as being:

"Whether I erred in law in directing the admission into evidence of the caution (sic) statements made by the Respondent?"

11. On the matter being relisted for hearing today Mr. Cheung, who now appears for the Attorney General and Mr. Howard informed us, as indeed was indicated would be the case on 26th May, that they adopt in full the previous arguments and without addition. Neither wishes to address us further.

12. In the light of that we go on to consider the issue.

13. The Appellant contends that the Crown is not obliged to adduce self serving statements and he relies for this proposition on R. v. Cheng Chiu [1980] HKLR 50 at 58 where Sir Denys Roberts, C.J., in delivering the judgment of the Court, said, having considered the probative value of self serving statements:

"We are not suggesting there is any obligation upon the Crown to adduce in evidence statements of a self serving nature."

14. However, the Chief Justice then went on, following Pearce (1979) Cr.L.Rev. 658 - now more fully reported in (1979) 69 Crim.App.R. 365 - to accept that it would be unfair to tender only that part of a statement which is against the interest of an accused while withholding another part of that, or other, interviews which were, as he described them, "self serving".

15. Cheng Chiu was in part overruled by The Queen v. Leung Kam Kwok [1986] HKLR 188: [1985] 81 Cr.App.R. 83: where the Judicial Committee indicated that when a mixed unsworn statement was before a jury then the admission was that which was admissible and the rest was there to show the context in which the admission was made, but whatever was said by way of explanation or excuse was not evidence of its truth. If such a statement was not supported by an accused in the witness box then the trial judge should, when dealing with the admission, also refer to that explanation or excuse. It would then be for the jury to evaluate the admission and the explanation or excuse as it thought fit.

16. In R. v. Sharp [1988] 1 WLR 7 the House of Lords, however, departed from that part of the ruling in Leung Kam Kwok as to the use to be made of mixed statements. The House approved the direction to the jury as formulated by Lord Lane in Duncan [1981] 73 Cr.App.R. 359.

17. There Lord Lane said at page 365:

"Where a `mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state."

18. Of course, the weight to be attached to an admission differs from the weight to be attached to the explanation or the excuse and a jury should be so directed but the whole is before the Court as evidence of the facts stated.

19. Where in Cheung Chiu Sir Denys Roberts said at page 57:

"For these reasons, we take the view, if we have correctly analysed the English law as being - that a self-serving statement admitted at the instance of the Crown is evidence not of the truth of its contents but only of the defendant's attitude at the time - that law ought not to be followed in Hong Kong."

he was using the term "self-serving" - or as he earlier described it "exculpatory or self-serving" - in the context of the statement which lay for the consideration of the Court there: an admission of acts which amounted to theft but which contained a denial of the charged offence, robbery. That amounted in reality to a mixed statement and not to one which was entirely self-serving. The purpose was, as endorsed in Sharp, to avoid the necessarily confused directions by a trial judge who had to attempt to draw a distinction between, as Lord Havers put it in Sharp at page 15:

"Evidence which is evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts."

20. It is now clear law that the whole of a voluntary mixed statement should be before the Court in order to place whatever admissions it contains in context, to give a balanced picture and to enable the jury to consider the entirety of its contents in deciding where the truth lies.

21. The judgment in Cheung Chiu, having said there was no legal obligation, went on to commend, at page 58 - in England a similar reference was made in McCarthy (1980) 71 Crim.App.R. 142 at 145 - the practice of a prosecutor putting before the jury, or a judge alone, voluntary self serving statements and advised that it should be continued. I would echo that commendation and add: always if the defence so request but subject to the limitations which emerge from the later portions of this judgment. As was said in McCarthy at page 145 "One of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime."

22. It is not, other than in very limited circumstances, open to an accused himself to attempt to introduce such a statement. These are first: where it is made part of the res gestae; and second: in order to rebut an allegation of recent invention. I do not intend to delineate upon these two particular exceptions as they are not germain to the point at issue but they do underline the better practice as instanced in Cheng Chiu and McCarthy.

23. It is clear that the purpose of admitting such statements into evidence is and can only be to show the reaction of an accused to police enquiries: Storey (1968) 52 Cr.App.R. 334. Lord Widgery, L.C.J., delivering the judgment of the Court of Appeal on the Storey appeal, spoke of a voluntary statement - and the Court was there considering a statement of that nature made after a flat had been searched, cannabis found and the maker taken to a police station - as being in evidence at trial:

"... because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts."

24. However, the authorities make it clear beyond peradventure that an entirely self serving statement is not evidence of the facts it contains nor is is admissible to show consistency.

25. Pearce applied and extended Storey by stating that admission is not limited to statements made on first encounter with the notice and that the expresson "first taxed" as used by Lord Widgery was not to be read as circumscribing the limits of admissibility.

26. Pearce however did go on to qualify the general proposition by further stating that where an accused produces a carefully prepared written statement to the police with a view to its being made part of the prosecution evidence then a trial judge would "plainly'' exclude it.

27. While not referred to in the judgment in Pearce, the qualification follows the line taken in R. v. Thatcher [1969] 1 WLR 227 and subsequently reiterated in R. v. Newsome [1980] 71 Cr.App.R. 325. This might be termed the prohibition against an accused's making use of set pieces. It is obvious that if it is carefully prepared, with or without legal advice, that such a statement lacks the necessary requisite of spontaneity.

28. I accept that this qualification must he right for it is the spontaneity of a reply, and thereby a reaction either to first enquiries or, in certain cases, to subsequent investigations, that provides the cloak of admissibility. I do not accept the argument of Mr. Cross that "vital relevance" outside reaction has also to be shown in order to have it admitted.

29. The longer the time there is between the offence and the proffering of a self serving statement the more the likelihood, depending on circumstances, there is that it is one calculated and designed to assist the accused. That same qualification, though in a more limited form, applies to statements made subsequent to a first reaction statement and which merely repeat it. Repetition is not reaction and consistency is not a reason for admissibility.

30. Further if, as we apprehend the position to be here, no inculpatory statement or statements are before the Court then the giving of a "balanced picture" or the putting of an accused's "police interviews in context" do not arise.

31. It is necessary for juries to be reminded, and judges sitting alone to be seen to remind themselves, in clear and careful term of the basis upon which a self serving statement is before them and the use to which they may put it.

32. There may be many occasions where it is unnecessary but I would have thought that, before a self serving statement is produced, there should be a careful enquiry by the trial judge for it is for him to draw the line and to avoid the admission of prepared defences which are being given the colour of spontancous reaction. The overriding consideration is a fair trial - both fair to the prosecution and to the accused - and the entitlement of the jury to know, if there he one, what the initial reaction of an accused was.

33. I am not here considering statements which the prosecution wish to produce for the purpose of knocking them down again - this usually being a cautious attempt to avoid allowing an accused to give evidence contrary to something he had said upon arrest. That particular issue may lie for consideration on another occasion.

34. But I adopt and emphasise the words of Lawton, L. J. in McCarthy where he said at page 145;

"    The court wishes to say this ... that when an accused person does given an exculpatory account of his movements and then does not support it by evidence of his own or other evidence the judge is entitled to invite the jury's attention in Direct terms, provided of course that be does not suggest that the failure amounts to any evidence upon which the prosecution can rely."

    If it is becoming a practice for counsel in criminal cases [and it is my view that such a practice is arising in Hong Kong] where their clients have made exculpatory statements, not to call them in evidence, they should think very long and hard before they continued with that practice, because comment from the Bench is likely to lead the jury to think that there is something very odd about such tactics."

35. Turning to this instant appeal: given that the only statements sought to be produced were entirely self serving the trial judge was right to admit them as reaction, given that they came within the rubric of spontaneity and that they were not merely repetitions of first reaction, but he was wrong to find further reasons for admission in the providing of a "balanced picture" and in the putting of the Respondent's "police interviews in context". I would therefore answer the question nosed with a limited negative.

36. As section 84 requires us to take either one of the courses set out in its paragraph (c) sub-paragraph (i) or (ii), I prefer to find, given the acquittal of the Respondent on grounds which are not affected by the answer given here, that there is no sufficient ground for this Court to interfere and I therefore dismiss the appeal.

Power, J.A. :

37. I agree with the terms of the judgment just delivered by Silke, V. P., with the answer given and with the order he proposes.

Penlington, J.A. :

38. I agree with the judgment just delivered by Silke, V. P.. The fundamental issue, it seems to me, is that if there is relevant - and therefore admissible - evidence available it can be called for and the defence may so seek to have a prosecution witness produce a statement made by the accused if so relevant. If however the statement is entirely exculpatory it is in my view only relevant as showing the accused's reaction on arrest. This has been the law for a long time. R. v. Baldrey (1852) 5 C.C.C. at 165 per Pollock B.. The most important factor therefore is the period of time between the charging of the accused with the crime, or any other point of time when he became aware that he was likely to be charged, and the making of the statement. This clearly must be a decision for the trial judge in each instance. If he considers that the statement was made under circumstances that make it relevant as to the accused's reaction he should allow the defence to ask that it be produced by the officer who recorded it. If those circumstances indicate that it would not show genuine reaction but only a contrived explanation made for the purpose of evading liability the Crown has no obligation to produce it and it would also be rejected if sought to be produced by the accused as part of his case. This is the principle which I think now emerges from the recent decisions in Pearce, McCarthy and Newsome.

39. Here the trial judge allowed the statements to be called for and produced, one of the reasons being that they were evidence of Li's attitude to the charge. There is no reason here to question that decision and I agree with the answer to the question in the case stated as set out by Silke, V.P..