The trial of Thakoen Gwitsa Thaporn Thongjai

The case for the prosecution was that on 22 January 1993 about 4.45pm police officers were called to a seventh floor flat in Robinson Road, Hong Kong. A number of police officers arrived at the scene about 5.05pm. They found the dead body of Mohan Tolani, the occupier of the flat, lying on the floor of the sitting room. The body had been battered and[1997] 2 HKC 109 at 112was covered in blood and the scene showed signs of a struggle. The police officers then searched the flat. Constable Lee Kin Man discovered an open wardrobe in the master bedroom, and on shining a torch into the wardrobe he found the appellant Thongjai sitting inside. The appellant was wearing only a pair of shorts. He was frightened, shivering and was bleeding from a laceration on one of his wrists.

The appellant was a young man from Thailand who spoke no Chinese and the police officers at the scene spoke no Thai. Therefore the police officers arranged for an interpreter to come to the flat and the interpreter arrived several hours later about 8.00pm. Until the arrival of the interpreter the appellant was kept under arrest in the flat and he was made to sit handcuffed on the floor in the dark. It was part of the prosecution case that after the arrival of the interpreter the appellant made an oral confession to her in the flat that he killed Mohan Tolani and Constable Lee Kin Man made the following note in his notebook of the confession as translated at the time by the interpreter:

I did follow the deceased into the house with an intent to rob. After that I started a dispute with him and struck him unconscious with a glass bottle and a hammer.

It was also part of the prosecution case that after he had been taken from the flat to the police station, the appellant through the same interpreter made four further confessions to the killing which were written down by the police and signed by the appellant, one being made about 11.00pm on 22 January and the others on subsequent dates.

The appellant was charged with the murder of Mohan Tolani and he was tried by Duffy J and a jury. Before the jury was empanelled Duffy J sat on 12 September 1994 to conduct a voir dire. In the voir dire it was made clear on behalf of the appellant that he denied making the alleged oral confession in the flat. At one stage during the course of the prosecution evidence in the voir dire, apparently in the light of the obvious unreliability of the evidence of the interpreter and her lack of credibility as a witness, the learned trial judge asked Crown counsel if he still wished to seek to have the four written statements signed by the appellant admitted in evidence, and Crown counsel stated that he no longer sought to adduce those four statements in evidence. However, for a reason to which their Lordships will refer at a later stage in this judgment, the trial judge then ruled that he had no jurisdiction to make a ruling that the oral confession alleged to have been made in the flat was inadmissible. This ruling brought the voir dire to an end and the appellant had no opportunity to give evidence in the voir dire.

On 11 November 1994, a number of weeks after the conclusion of the voir dire, a jury was empanelled and the main trial commenced. In the trial the interpreter and the police gave evidence of the oral confession in the flat. The appellant gave evidence in his own defence denying that he was[1997] 2 HKC 109 at 113responsible for killing the deceased. In summary his evidence was that he had travelled to Hong Kong with a man called Singh with the purpose of eventually going to Macau for a business transaction. He had gone to the flat with Singh. Singh had given him beer to drink, he had felt dizzy, and he had fallen asleep on the sofa. He had woken to find the victim dead, whereupon he had panicked and hid. The case made by the appellant was that it was Singh who carried out the killing, and the appellant denied making the alleged oral confession to the police.

At the conclusion of the trial on 24 November 1994 the jury convicted the appellant of the murder of Mohan Tolani and he was sentenced to life imprisonment. The appellant applied for leave to appeal against the conviction to the Court of Appeal of Hong Kong on four grounds. These grounds were rejected by the Court of Appeal which dismissed the application on 16 July 1996. None of these four grounds were pursued on the appeal to their Lordships’ Board and it is therefore unnecessary to refer to them further.

The trial of Lee Chun Kong

The case for the prosecution was that in the early hours of 20 August 1993 a number of police officers in plain clothes were keeping observation on a number of flats on the same floor of an apartment block at Castle Peak Road, Hong Kong. About 6.20am Police Constable Ma Tze Kin saw the appellant leaving the flat of a man named Lui carrying a black briefcase. Constable Ma Tze Kin shouted at the appellant to stop to be searched but he attempted to flee, and he was then seized by the police at the doors of the lift and the briefcase was searched in his presence. Inside it the police found a number of packets, wrapped in paper, which contained a large quantity of heroin. It was alleged by Constable Ma Tze Kin that he asked the appellant what was in the packets and the appellant replied:

Ah Sir, don’t need to say anything. You already know that it is white powder.

It was also part of the prosecution case that after the appellant had made the oral confession Constable Ma Tze Kin wrote down the confession in his notebook and the appellant then signed it in the apartment block. It appears that in the voir dire and in the main trial this writing in the notebook was referred to as a written statement (Exh PP 139). In addition it was part of the prosecution case that after being taken to the police station the appellant made a further written statement to Detective Constable Lum Fai Pui (Exh PP 137).

The appellant was charged with trafficking in a dangerous drug and he was tried by Cheung J and a jury. Before the jury was empanelled Cheung J sat on 20 October 1994 to conduct a voir dire. In the voir dire it was made clear on behalf of the appellant that he denied making the[1997] 2 HKC 109 at 114alleged oral confession at the doors of the lift. The admissibility of the two written statements was challenged in the voir dire. The case made on behalf of the appellant was that the writing of the confession in his notebook by Constable Ma Tze Kin and the signature thereto of the appellant were not done at the time of the arrest but had been done subsequently at the police station and that in the police station he had been threatened and punched. The learned trial judge ruled that the two written statements were inadmissible but gave no reasons for this ruling. Their Lordships wish to observe that it is desirable that a trial judge should give brief reasons for ruling that a confession is inadmissible, as his reasons may assist in clarifying issues if there should be an appeal.

The alleged oral confession made at the doors of the lift was treated as a separate confession and the trial judge ruled, in effect, as did the trial judge in the case of Thongjai, that he did not have jurisdiction to make a ruling that the oral confession was inadmissible. Their Lordships will also return to this ruling at a later stage in this judgment.

On 25 October 1994 a jury was empanelled and the main trial commenced. In the trial the police gave evidence of the oral confession at the doors of the lift. The appellant gave evidence in his own defence. In summary his evidence was that in the course of his employment as floor manager of a nightclub he had come to know Lui, who was a customer, and that sometimes when his work in the club finished he would go with Lui for a drink. Lui told him that he was in the business of gold trading and foreign exchange. On the night of 19 August 1993 the appellant had a row with his girlfriend. He then went to work in the nightclub where he saw Lui. He left the nightclub about 4.30am to go for a drink with Lui. They went to a bar but it was closed. As he did not want to go home to his girlfriend for fear of arguing with her and waking her family, he accepted Lui’s suggestion that they should go to Lui’s flat. They arrived there about 5.30am and had chatted for about 35 or 40 minutes when his girlfriend telephoned him on his mobile telephone and asked him to come home. Lui then offered to give him a lift home, and just as the appellant was about to leave the flat Lui told him to wait, saying that as they were going to Kowloon it would be convenient for him to deliver some documents to someone. Lui then went into a room in the flat and emerged with two briefcases. As they were leaving the flat Lui asked the appellant to hold the briefcases while he locked the door. The appellant took the briefcases and went to the lift 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. The briefcases were opened in his presence and one of the police officers asked him what the contents were. He replied that he did not know, that Lui had asked him to hold them and that Lui had said that they contained[1997] 2 HKC 109 at 115documents. He heard Lui being asked about the contents and replying ‘Ah, sir, the white powder is not mine’. That was the first mention by anyone of white powder. The appellant further said that he did not make the alleged oral admission and that when he tried to explain that he did not know the briefcase contained drugs a police officer crouched down and punched him. At the conclusion of the trial on 28 October 1994 the appellant was convicted by the jury of the offence of trafficking in a dangerous drug, and he was sentenced to 21 years’ imprisonment.

The appellant applied for leave to appeal against his conviction to the Court of Appeal of Hong Kong which dismissed his application, and their Lordships will refer to the judgment of the Court of Appeal at a later stage in this judgment.

The holding of a voir dire where the defendant denies the making of the alleged admission

The leading authority on the issue which arises on these appeals is the judgment of this Board delivered by Lord Bridge of Harwich in Ajodha v The State [1982] AC 204 , [1981] 2 All ER 193. In order to set in their legal context the submissions and rulings on the voir dires in the trials of the present appellants it will be appropriate at this point to refer to the judgment in Ajodha, and also to the judgments of the High Court of Australia in MacPherson v The Queen (1981) 147 CLR 512 and the judgments of the Court of Appeal of Hong Kong in R v Cheung Hon Yeung [1993] 1 HKC 26, [1993] 1 HKCLR 292.

The appeals heard by this Board in Ajodha arose by reason of a difference of judicial opinion in Caribbean appellate courts as to whether an issue is raised for the decision of the trial judge as to the admissibility of a written statement where the defendant 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. A line of authorities had established the following principle, as stated by the Court of Appeal of Trinidad and Tobago in Williams v Ramdeo(1966) 10 WIR 397, 398:

In our judgment, a clear distinction falls to be drawn between an objection that a statement made by a person charged with an offence was not made voluntarily and an allegation that he never made any statement at all. In the case of an objection that a statement was not made voluntarily, a judge sitting with a jury or a magistrate sitting without one must hear the relevant evidence and on it decide whether or not to admit the statement: if admitted, it will then have to be weighed along with the rest of the evidence in order to find whether the person charged is guilty or not. In the case of an allegation by the person charged that he made no statement at all, the statement must be admitted and the allegation will fall to be considered along with the rest of the evidence in the case and a verdict must be reached after consideration of the whole.[1997] 2 HKC 109 at 116

The principle was also concisely summarised by Bollers CJ in the Court of Appeal of Guyana in State v Fowler (1970) 16 WIR 452, 465 as follows:

I need hardly say that an accused person cannot raise a double-barrelled attack on a statement on the grounds that (a) it is not free and voluntary, and (b) it is not made by him …

This principle was held to be erroneous by this Board in Ajodha, and Lord Bridge stated at 220F-H (AC), 201h/j-201a (All ER):

The fallacy, in their Lordships’ respectful opinion, which underlies the reasoning of the judgments in the cases considered above … 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.

Whilst the statements considered by the Board in Ajodha were written statements, their Lordships are clearly of opinion that the principle stated by Lord Bridge applies also to oral admissions. Therefore where the prosecution alleges that the defendant made an oral admission, and the case is raised on behalf of the defendant that he did not make the oral admission and that he was ill-treated by the police before or at the time of the alleged admission, two issues are raised which are not mutually exclusive. The first issue, which is for the judge to decide, is whether, on the assumption that the alleged admission was made, it is inadmissible as being involuntary. The second issue, which is for the jury to decide if the judge rules that the alleged admission is admissible in evidence, is whether the admission was in fact made.

The principle stated by Lord Bridge at 220F-H (AC) and 200h/j-201a (All ER) was applied by the High Court of Australia in MacPherson v The Queen (above) where the admissions alleged by the police were oral admissions. The judgments in MacPherson were delivered shortly after the delivery of the judgment in Ajodha and the judgments of the High Court referred to that judgment. The headnote reads:

At a trial for murder where the accused was not represented, evidence was given by police officers of confessions which they said the accused had made. The accused put to the police in cross-examination that he had made no confession but that they had made threats to induce him to confess. The trial judge did not inform the accused of his right to ask for the voluntary nature of any confession he may have made to be determined on voir dire in the absence of the jury, and he did not conduct a voir dire. The accused was convicted.[1997] 2 HKC 109 at 117

Held, that the suggestions made by the accused in cross-examination raised a real question concerning the voluntary nature of the confessions, and although the accused had denied making a confession and had not sought a voir dire, the judge should have held a voir dire to determine whether any confession that may have been made had been voluntary.

In their judgment Gibbs CJ and Wilson J stated at p 522:

The condition of the admissibility of a confession is that it was voluntarily made, and the judge must be satisfied on the balance of probabilities that this condition was fulfilled before he admits the evidence. If the accused asserts that inducements were offered or pressure exerted but denies that he made a confession, and the judge, without considering the question of voluntariness, admits police evidence that a confession was made, the obvious possibility exists that the jury will accept the police evidence and find that the confession was made, and if that occurs they 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.

And at p 525:

The applicant, by the suggestions that he made in cross-examination raised a real question as to the voluntariness of the confessions, and notwithstanding that the applicant denied that any confession was made the proper course was to hold a voir dire on which the judge could decide whether the confessions were voluntary and admissible.

In his submissions on behalf of the Crown Mr Saw QC relied on the following passage in the judgment of Lord Bridge in Ajodha at 221H-222E (AC) and 201h-202c (All ER):

It may be helpful if their Lordships indicate their understanding of the principles applicable by considering how the question should be resolved in four typical situations most likely to be encountered in practice.

(1) The accused admits making the statement (orally or in writing) but raises the issue that it was not voluntary. This is a simple case where the judge must rule on admissibility and, if he admits the evidence of the statement, leave to the jury all question as to its value and weight.

(2) The accused, as in each of the instant appeals, denies authorship of the written statement but claims that he signed it involuntarily. Again, for the reasons explained, the judge must rule on admissibility, and, if he admits the statement, leave all issues of fact as to the circumstances of the making and signing of the statement for the jury to consider and evaluate.

(3) The evidence tendered or proposed to be tendered by the prosecution itselfindicates that the circumstances in which the statement was taken could arguably lead to the conclusion that the statement was obtained by fear of[1997] 2 HKC 109 at 118prejudice or hope of advantage excited or held out by a person in authority. In this case, irrespective of any challenge to the prosecution evidence by the defence, it will be for the judge to rule, assuming the prosecution evidence to be true, whether it proves the statement to have been made voluntarily.

(4) On the face of the evidence tendered or proposed to be tendered by the prosecution, there is no material capable of suggesting that the statement was other than voluntary. The defence is an absolute denial of the prosecution evidence. For example, if the prosecution rely upon oral statements, the defence case is simply that the interview never took place or that the incriminating answers were never given; in the case of a written statement, the defence case is that it is a forgery. In this situation no issue as to voluntariness can arise and hence no question of admissibility falls for the judge’s decision. The issue of fact whether or not the statement was made by the accused is purely for the jury.

(Their Lordships have highlighted the parts of the passage upon which Mr Saw particularly relied).

Mr Saw submitted that the instant cases did not come within situation (2) because the alleged admission was oral and not written. He submitted (particularly in relation to the case of Lee Chun Kong) that the present case did not come within situation (3) because the evidence for the prosecution did not indicate circumstances leading to the conclusion that the admission was involuntarily. Mr Saw therefore submitted that the present case fell within situation (4).

Their Lordships do not accept these submissions. It is clear that in the passage commencing at 221H (AC) and 201h (All ER) Lord Bridge was not intending to deal with every type of situation which could arise but was only referring to four typical situations. Their Lordships are satisfied that the type of situation envisaged by Lord Bridge in situation (2) is not confined to the making of a written statement, and that if the present situation had arisen in Ajodha Lord Bridge would have worded situation (2) as follows:

The accused, as in each of the instant appeals, denies that he made the oral statement but claims that, if he did make it, he made it involuntarily. Again, for the reasons explained, the judge must rule on admissibility and, if he admits the oral statement, leave all issues of fact as to the circumstances of the making of the statement for the jury to consider and evaluate.

Their Lordships are also satisfied that Lord Bridge was not intending to state that an issue of voluntariness for the judge to decide can only arise if the evidence of the prosecution suggests that the admission may be involuntary. The word ‘simply’ in situation (4) makes it clear that Lord Bridge was considering the situation where the defendant makes no allegation of improper conduct by the police. As Brennan J pointed out in MacPherson at p 547, in Ajodha the issue of voluntariness was raised, not[1997] 2 HKC 109 at 119on the evidence of the prosecution, but by the defendants, Lord Bridge stating at 221E-G (AC) and 201e/f (All ER):

In the instant appeals there can be no doubt that the case presented in cross-examination on behalf of the defendants and what was said by the defendants either in evidence or in a statement from the dock in the case of the defendants Ajodha, Chandree and Noreiga raised in each case an issue as to the voluntariness of their signatures and thus of their statements, on the simple ground that they were beaten into signing.

Their Lordships further observe that the decision in MacPherson is directly contrary to Mr Saw’s submissions.

In R v Cheung Hon Yeung (above) the defendant was convicted of the offence of possession of dangerous drugs for the purpose of unlawful trafficking. The facts and the course of the trial were these. The defendant was travelling in a taxi which was stopped by the police. The defendant was carrying a bag which contained a block of heroin wrapped in brown paper. The defendant was arrested and asked to get out of the taxi. On the pavement a police officer cautioned him and it was the evidence of the police officer that the defendant replied saying that he had bought the white powder for his own consumption by means of ‘Ack-Ack Gun’ (which means smoking the drug in a cigarette).

The defendant was then taken to the police station. It was the prosecution case that in the police station, about an hour after the initial arrest, the police officer who had cautioned the defendant at the scene post-recorded in his notebook the fact of the arrest, the reason for it and the caution. He further post-recorded the words in which the defendant had replied to the caution. Having done this he asked the defendant did he understand and, if he did, would he sign the entry in the notebook, which the defendant did. The defendant then added ‘The white powder is bought by me for self consumption. Give me a chance’. This further statement was written down and read over to the defendant who also read it himself and the defendant signed the further statement.

At the trial the admissibility of the entry in the notebook of the defendant’s reply to the caution at the scene and his subsequent statement in the police station was challenged and a voir dire was held. In the course of the voir dire the defendant gave evidence that in the police station a police sergeant had threatened him that if he did not co-operate he would be beaten up. After this threat the sergeant tapped him on the head with a document that he was holding and told him not to ‘play on’ but to co-operate and say that the drugs were for his own consumption and that at the worst he would be bound over or fined. The defendant then wrote down, at the sergeant’s instructions, the statement which was the subject of the voir dire. The defendant’s explanation for doing so was that the sergeant had told him to write it and that it would mitigate on his behalf.[1997] 2 HKC 109 at 120These allegations were denied by the police sergeant and by the police officer who had arrested the defendant at the scene.

At the conclusion of the voir dire the learned trial judge ruled that the entry in the notebook and the subsequent statement were inadmissible and stated:

Although I am satisfied from the evidence that the accused was not assaulted, I am however not satisfied the post-entry exercise occurred in the manner as described by the two officers.

I will therefore give the benefit of the doubt to the accused and rule that the evidence relating to the making of the post-entry, the post-entry itself and the subsequent admission as not being admissible.

Ms Ma (who was Crown counsel), it is a matter for you whether you wish to pursue with the verbal at the scene at the trial.

At the trial before the jury the police gave evidence of the oral admission at the scene of the arrest. On the application to the Court of Appeal for leave to appeal it was argued that as the trial judge had doubted the credibility of the police officer who alleged that the defendant had made an oral admission at the scene, he should also have excluded that oral admission from evidence.

Substantial parts of the judgments of the Court of Appeal related to the question whether the trial judge had a discretion to exclude an oral admission where evidence on the voir dire caused him to doubt the credibility of the police officer who claimed that the admission had been made to him. It is unnecessary on these appeals for their Lordships to express an opinion on this point, and they do not propose to do so. But in the course of the judgments certain observations were made which their Lordships consider have led to a degree of misunderstanding at trials in Hong Kong.

It is clear that the defendant made no suggestion of any threat or inducement or other impropriety on the part of the police officer who cautioned him at the scene and who claimed that he had made the oral admission. In his judgment Macdougall JA stated at 40E (HKC) and 305 (HKCLR):

… there was no allegation by the defence that that [oral] admission had been obtained as a result of any unfairness or improper means on the part of the police, nor was there any evidence to that effect either on the voir dire or before the jury.

Therefore the only issue was whether or not the oral admission had been made, which was a matter of fact for the jury and the situation was that described by Lord Bridge in the following passage already cited in his judgment in Ajodha at 222C-E (AC) and 202b-c (All ER):

The defence is an absolute denial of the prosecution evidence. For example, if the prosecution rely upon oral statements, the defence case is simply that the[1997] 2 HKC 109 at 121interview never took place or that the incriminating answers were never given; in the case of a written statement, the defence case is that it is a forgery. In this situation no issue as to voluntariness can arise and hence no question of admissibility falls for the judge’s decision. The issue of fact whether or not the statement was made by the accused is purely for the jury. (Emphasis added)

In his judgment R v Cheung Hon Yeung (with which Power JA agreed) Macdougall JA stated at 39D/E-G, 39I-40A (HKC) and 304-305 (HKCLR):

Where an accused person denies that he made an oral admission at the time of arrest, and alleges that he made an involuntary written admission after the police officer concerned had made a post recording of the earlier non-existent oral admission, it is then the function of the judge to hold a voir dire to determine whether the written admission made was made voluntarily.

Although, in the process of doing so, the judge will almost invariably hear evidence as to all the circumstances leading up to the making of the written admission, including those of the making of the alleged earlier oral admission, no issue as to the voluntariness of the oral admission can arise. Since the accused contends that he did not make the oral admission he cannot be heard to say that it was involuntary. The only issues that arise in respect of the alleged oral admission are, first, whether it was made and, second, if so, what weight should be given to it. …

Where … the trial is before a judge and jury, it is the function of the jury to decide whether the oral admission was made and, if so, what weight they should attach to it. Whatever view the judge might have formed of the testimony of that officer in the course of the voir dire held to determine the issue of admissibility of the written admission, the issues relating to the oral admission remain exclusively within the province of the jury to resolve.

Macdougall JA then cited part of the passage from 222D (AC) [202d (All ER)] of the judgment of Lord Bridge in Ajodha which their Lordships have set out above.

In the context of the case where, as Macdougall JA stated, there was no suggestion by the defendant of threat or inducement or other impropriety by the police at the time of the alleged oral admission, it was correct for Macdougall JA to state that the only issue was whether the oral admission had been made, and, if so, what weight should be given to it. But the passage from his judgment cited above, if read in isolation from the facts of the case, could be read to mean (and their Lordships think has been read in the courts in Hong Kong to mean) that if the defendant denies making the alleged oral admission, 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 alleged oral admission. If the passage were given that meaning it would constitute an erroneous statement of the law and would be contrary to the principle established in Ajodha and MacPherson (above). R v Lee Man Liu [1992] 2 HKCLR 41 and R v Chu Chi Kwong [1995] 1 HKCLR 327 are other cases where the Court of Appeal of Hong Kong has stated that where[1997] 2 HKC 109 at 122a defendant denies making an oral admission he cannot also contend that the trial judge should exclude the alleged admission as being involuntary. It follows, in the respectful opinion of their Lordships, that the statement in these cases was also erroneous.

Their Lordships now return to consider the course of the voir dires in the trials of the two appellants.

The voir dire in the trial of the appellant Thongjai

Their Lordships consider that the evidence adduced by the Crown on the voir dire in the trial of the appellant Thongjai gave rise to an issue whether the alleged oral admission was a voluntary one, because the evidence showed that after his arrest the appellant, who had a laceration to one of his wrists, was made to sit handcuffed on the floor in the dark in the flat for a period of about three hours before he made the alleged oral confession to the interpreter. In the course of the cross-examination of the interpreter in the voir dire the following question and answer were recorded:

Q. Well, inside Robinson Road you told us that the man was shivering and appeared to be very cold and was bleeding and he looked frightened and he was handcuffed, correct?

A. Yes.

In the voir dire, after Crown counsel, in response to an inquiry from the judge, stated that he no longer sought to adduce the four written statements in evidence, counsel for the appellant, Mr Buchanan, advanced a number of submissions in relation to the oral admission. These submissions were interwoven but their Lordships are satisfied that Mr Buchanan made it clear to the learned trial judge that he was submitting that the judge should exclude the oral admission from evidence on the ground that the Crown had not proved that it was voluntary, and that the judge rejected this submission on the ground that he had no jurisdiction to exclude it. This is made clear by the following passages in the transcript. After Mr Buchanan had advanced a submission that the evidence of the interpreter was so unreliable that the judge should not allow evidence of the oral admission to be given to the jury the judge stated:

Court: It is not a matter of the quality of evidence at this stage, Mr Buchanan. It is simply a matter of whether or not a voir dire requires to be conducted. Obviously it doesn’t. It is not a matter of your submission, or anybody else’s submission at this stage; it is a matter that goes to the jury.

Mr Buchanan: I hear what your Lordship says, but I am not in a position at this stage to concede that that is necessarily so.

Court: It is not a matter of whether you concede it or not, Mr Buchanan. The fact of the matter is that that is the law. This statement is not being objected to on the grounds of its involuntariness; it is being objected to on the grounds of it was never said.[1997] 2 HKC 109 at 123

The judge later observed to Crown counsel:

Court: We are not any longer in a voir dire situation.

Mr Halley: That would be my argument.

Court: The voir dire has come to an end. I was holding an enquiry into whether or not certain documents were admissible. That has come to an end. It is as if it never took place. I am now in a position, as I understand it, subject to anything you have got to say, that you are saying to me: I don’t want to adduce any of this in evidence any more, all I want to adduce is that verbal reply.

Mr Halley: That is correct.

Court: And that is something which the jury must determine, not me.

Mr Halley: My view is, my Lord, the voir dire is at an end, since I am no longer seeking to adduce those documents.

Court: I have, as I understand it, no jurisdiction to exclude that evidence.

At a later stage in the voir dire Mr Buchanan handed written submissions to the judge which included the following paragraphs:

21 . It is respectfully submitted that the Prosecution to introduce such an ‘admission’ into evidence must prove:

…

(iv) It was freely said in circumstance whereby the prosecution can prove beyond doubt it was voluntary and made in non-oppressive circumstances.

…

(25) The evidence of [the interpreter] is completely confused and unreliable. Before the prosecution can properly be allowed to tender the alleged admission before the Jury there must be sufficient evidence to establish that the admission was made and made in circumstances of voluntariness and non-oppression.

(26) Bearing in mind the evidence of [the interpreter] the prosecution fail upon both fronts.

…

(28) Both logic and common-sense dictate that the evidence of the ‘verbal’ does not come from a credible or reliable source and that even if this Court was satisfied that something was said by the defendant in all the circumstances it cannot be proven that the ‘admission’ was made as alleged let alone freely volunteered.

Mr Buchanan then made some further oral submissions and the learned trial judge ruled:

Mr Buchanan has put all the points that he could possibly put in support of his submission but the point, in my view, is quite a short one. It’s a question of weight, not admissibility.

Their Lordships consider it to be very probable that in making this ruling the learned trial judge considered that he was bound by the majority[1997] 2 HKC 109 at 124judgments in Cheung Hon Yeung to hold that if a defendant denied making an oral admission, the trial judge had no jurisdiction on a voir dire to rule that the admission, if made, was involuntary. For the reasons which their Lordships have already given this ruling was erroneous and was contrary to the principle established in Ajodha.

The voir dire in the trial of the appellant Lee Chun Kong

In the voir dire on the trial of Lee Chun Kong it was put to Constable Ma Tze Kin in cross-examination, and denied by him, that when he seized the appellant at the lift he pushed him to the ground and punched and kicked him and that this assault caused the appellant’s nose to bleed. It was also put to the Constable that the appellant had not made the alleged admission but after being told that he was arrested on suspicion of possessing drugs he replied ‘I don’t possess dangerous drug. It was Lui Man Bun who told me to carry the brief case’, whereupon the constable punched him in the chest.

The appellant did not give evidence on the voir dire. Mr Saw submitted that as the police denied the allegations of assault and as the appellant did not give evidence in support of these allegations, no issue as to the voluntariness of the alleged admission was raised, assuming that the trial judge would have jurisdiction to consider such an issue. Their Lordships do not accept that submission. It is sufficient to raise the issue of voluntariness for consideration by the trial judge if an allegation of ill-treatment is put to a police officer in cross-examination, even if the defendant does not give evidence in support of the allegation. This is what occurred in MacPhersonwhere the defendant made allegations of ill-treatment in his cross-examination of the police officers, but gave no evidence in support of the allegations and made no reference to the ill-treatment in his statement from the dock. In their judgment Gibbs CJ and Wilson J stated at p 524:

As we have already pointed out, once a real question arises as to the voluntariness of a confession tendered in evidence, the judge has a duty to satisfy himself of the voluntariness of the confession, and usually must hold a voir dire for that purpose, even if the accused does not object to the evidence or seek a voir dire.

See also Mason J at pp 532-533 and Brennan J at p 547.

During the evidence of Constable Ma Tze Kin in the course of the voir dire the following exchange occurred between the learned trial judge and counsel for the appellant:

Court: Mr Gerber, you are only objecting to the written statements, is that correct?

Mr Gerber: I am challenging the verbals also, but at this stage it is the written part that I have to deal with. The defendant denies[1997] 2 HKC 109 at 125about having said what he is said to have said by this witness, of course, and that this witness says he wrote in his notebook.

Court: That would not be part of the voir dire, then. If the case of the defendant is that he has never said those things, then this is a matter for the jury to decide.

Mr Gerber: That’s one view. It depends. Some judges take one view and some the other. If your Lordship were to hold that this man is incredible, might I say at the end of his evidence, if you hold that he is incredible, since he is the only person to speak to what the defendant is alleged to have said verbally before it was written down (indistinct). There are two views, some judges take the view that they can’t rely upon the earlier one, other judges say that must always be a matter for the jury.

Court: I have the Court of Appeal Case, the Crown against (indistinct). It’s a matter for the jury.

Mr Gerber: It’s a matter for the jury. Well, perhaps we can deal with that when the time comes. But I object to the recordings, the cautioned statements, and post records and the like.

Their Lordships think it very probable, as suggested by counsel, that the reference to the Court of Appeal case was a reference to R v Cheung Hon Yeung (above). At the conclusion of the voir dire the learned trial judge gave the following ruling, referring only to the two written statements:

I am not satisfied that PP 139 and PP 137 were voluntarily made. I shall rule them inadmissible as evidence.

Before the Court of Appeal one of the grounds of appeal was that as the learned trial judge had ruled the written entry of the oral admission to be inadmissible he should also have excluded evidence of that oral admission. In his judgment (with which the other members of the Court concurred) Mayo JA stated:

The applicant had signed the post recorded statement prepared by PC 46825 and this contained the confession that he said the police knew that there was white powder in the brief case. At the trial the applicant contended that this statement was not a voluntary statement. Cheung J held a voir dire and ruled that he was not satisfied that the statement was a free and voluntary statement.

The 3rd ground of appeal is that in the light of this ruling the judge should not have allowed the officer to give evidence that the applicant had made this admission when he was arrested. Alternatively if the evidence had been left in he should have given a strong warning to the jury of the danger of placing reliance upon such admission.

Mr Macrae for the applicant referred us to R v Cheung Hon Yeung [1993] 1 HKCLR 292 where a similar situation had arisen. He placed particular reliance upon the minority judgment of Silke VP who commented upon the illogicality of allowing verbal admissions to be admitted as evidence when the judge had ruled the written admission to have been involuntary.[1997] 2 HKC 109 at 126

This view was however at variance with the judgments of Power and Macdougall JJA (as they then were). The majority view was that the oral testimony was admissible. Mr Macrae contended that it appeared that the trial judge was unaware that he had a discretion to exclude the evidence. No application was made to the judge by counsel representing the applicant and there is no reason to suppose that the judge was not fully aware of the position. All of the evidence was before the jury including the applicant’s testimony to the effect that he had been subjected to a brutal assault prior to making the admission complained of. There is no substance in this ground of appeal.

For the reasons which they have already given, their Lordships are of opinion that the ruling of the Court of Appeal was incorrect. Contrary to the statement of the court, counsel for the appellant had sought to exclude the oral admission in the course of the voir dire and he expressly stated to the judge ‘I am challenging the verbals also’, but the judge then erroneously ruled that, as the appellant’s case was that he had not made the oral admission, it was not a matter for him but a matter for the jury.

The Court of Appeal was also in error in stating that a similar situation had arisen in R v Cheung Hon Yeung (above) because, in that case, as their Lordships have already observed, there was no suggestion by the defendant that he had been ill-treated by the police before or at the time of the making of the alleged oral admission, and the Court of Appeal failed to distinguish between two situations. One situation is where the only allegation made by the defendant is that he had not made the alleged admission. The other situation is where the defendant alleges both that he had not made the admission and that he had been ill-treated before or at the time of the making of the alleged admission. In the latter situation the trial judge should hold a voir dire to decide whether (in case the jury find that the admission was made) the admission was made in circumstances which rendered it involuntary.

Accordingly in the opinion of their Lordships in the trials of both appellants the trial judge should have made a ruling in the voir dire whether the Crown had proved that the alleged oral admission was voluntary, and in each case the judge wrongly held that he would not give such a ruling. Mr Saw submitted that in each case, if the trial judge had considered the issue of voluntariness, he would have ruled that the oral admission was voluntary, and therefore his decision that he had no jurisdiction to give a ruling on admissibility had led to no injustice. Mr Saw argued that in Thongjai’s case there was no oppression because the police had no reasonable alternative other than to keep the appellant handcuffed in the flat until the arrival of the interpreter. In Lee Chun Kong’s case Mr Saw argued that the judge would have accepted the police evidence that they had not assaulted the appellant at the lift. Their Lordships do not accept these submissions and are of opinion that on the state of the[1997] 2 HKC 109 at 127evidence in the voir dires no conclusion can be reached that in either case the judge, if he had considered the issue, would inevitably have ruled that the oral admission was admissible. Moreover in the case of Thongjai the ruling of the trial judge effectively prevented the calling of the appellant in the voir dire to give evidence as to his treatment by the police and the circumstances in which he was held in the flat before he made the alleged admission to the interpreter.

Mr Saw invited their Lordships to apply the proviso to s 83(1) of the Criminal Procedure Ordinance (Cap 221) in the case of Thongjai having regard to the strong circumstantial evidence that he was found hiding in the flat in which Mohan Tolani had been killed. Their Lordships recognise that this evidence, viewed in isolation, constituted a case of very considerable strength against the appellant. However it was the defence case that the appellant had been duped by Singh into being a scapegoat, and the Crown accepted that Singh existed, that he had been conducting an association with the wife of the deceased, and that the police considered that Singh and the wife might have been party to a conspiracy to kill the deceased. In these circumstances their Lordships consider that it would not be appropriate to apply the proviso.

Therefore the conclusion of their Lordships is that in each case the appellant was deprived of the very important safeguard of a ruling by the trial judge as to the admissibility of the alleged oral admission which was an important part of the case against him, and accordingly that in each case the conviction of the appellant was unsafe and cannot stand.

The alleged offences took place a number of years ago, but in the circumstances of each case their Lordships consider it appropriate to remit each case to the Court of Appeal of Hong Kong to consider, in the light of the guidance given by the judgment of this Board delivered by Lord Diplock in Reid v The Queen [1980] AC 343, whether to order a new trial.

For the reasons given their Lordships will humbly advise Her Majesty that the appeals should be allowed and the convictions quashed and that the two cases be remitted to the Court of Appeal of Hong Kong to consider whether to order new trials.

• 9     [1967] 1 A.C. 760.
• 10     4 C. & P. 221, 223.
• 11     (1852) 2 Den. 522, 526.
• 12     (1852) 2 Den. 430, 444.
• 13     (1901) Man.L.R. 364, 368, 373, 375-378.
• 14     (1946) 86 Can.C.C. 9, 10. 13; [1946] 1 W.W.R. 328.

• 1     [1914] A.C. 599; 30 T.L.R. 383, P.C.
• 2     [1914] A.C. 599, 609.
• 3     [1893] 2 Q.B. 12; 9 T.L.R. 435.
• 4     [1893] 2 Q.B. 12, 15.
• 5     [1967] 1 A.C. 760; [1967] 2 W.L.R. 297; [1967] 1 All E.R. 177, H.L.(E.).
• 6     [1967] 1 A.C. 760, 818.
• 7     Ibid. 819.

• 8     (1809) Russ. & Ry. 153.
• 9     (1823) 1 C. & P. 97.
• 10     (1852) 2 Den. 522.
• 11     [1967] 2 Q.B. 406; [1967] 2 W.L.R. 1094; [1967] 1 All E.R. 797, C.A.
• 12     [1967] 2 Q.B. 406, 415.
• 13     [1893] 2 Q.B. 12.

• 14     [1967] 1 A.C. 760.
• 15     (1901) 13 Man.L.R. 364.
• 16     Ibid. 376.

[1958] 3 All ER 300 at 301

“24. Everyone who becomes an accessory before the fact to any felony, whether it is a felony at common law or by virtue of any statute for the time being in force, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon.

“25. Everyone who counsels, procures, or commands any other person to commit any felony, whether it is a felony at common law or by virtue of any statute for the time being in force, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished.”

^a     See the Criminal Procedure Act, 1848, s 1 (repealed)

^b     See the Criminal Law Act, 1826, s 9 (repealed)

“A simple but important point is sometimes overlooked, namely, that when the law relating to principals and accessories as such is under consideration there is only one crime, although there may be more than one person criminally liable in respect of it; if there are more than one person, then the question arises as to the category in which each one is to be placed, that is, whether he is accessory before the fact, or principal in the first or second degree or an accessory after the fact. There is one crime, and that it has been committed must be established before there can be any question of criminal guilt of participation in it. It is true that one who procures, advises, solicits or instigates in any way another person to commit a crime is himself guilty of the common law misdemeanour of incitement whether or not the offence solicited is carried out; but incitement is a different offence from

[1958] 3 All ER 300 at 302

the one which is solicited; if and when the latter offence is committed then, and not until then, the inciter becomes a party to it, and if it be a felony, he is classed as an accessory before the fact, the fact being the crime which the incited person, has, in the character of principal in the first degree, carried out.”

“Whether, as the facts showed that Hughes, if guilty at all of the larceny, was guilty only as an accessory before the fact, and Hall, the principal, having been acquitted, I ought not to have told the jury that Hughes was entitled to his acquittal on the counts for larceny, and that they were to confine their attention to the count for receiving only.”

“Whether the principal be tried before or at some time after the accessory before the fact, still there may be guilt in the accessory.”

[1958] 3 All ER 300 at 303

“As a result, there is error on the record which cannot be cured by amendment. Writs of error are abolished and have been abolished since 1908 by the Criminal Appeal Act, 1907, but this court has the power which the Court of King’s Bench used to exercise in dealing with error on the record. Where there are no means of amending the record so as to make it consonant with the proved facts of the case and where it is inconsistent with itself, as the record is here, the only course this court can take is to quash the conviction … “

[1958] 3 All ER 300 at 304

“When Chandee [No. 2 accused] came back Sunday morning 10.3.57 about five o’clock, he and Jagolall [No. 5] begin to gaff, and Jagolall ask Chandee why he shoot the man, and Chandee say when I say stick it up the man put he hand pon the revolver foh draw am out, and then Chandee and Battle Boy [No. 4] shoot am.”

“If you feel sure that the evidence does not prove that he was there on the dam, but that he conspired with others to rob this payroll money and to commit this crime of robbery with violence with loaded guns, then you may convict him of the offence of being an accessory before the fact to murder.”