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THONGJAI & ANOR v THE QUEEN

Criminal Law and Procedure — Confession — Oral admission denied — Ill-treatment by police alleged around time of alleged oral admission — Trial judge declined jurisdiction in voir dire on oral admissions — Whether trial judge had jurisdiction to rule on admissibility of alleged oral admission — Correct procedure to be followed when oral admission denied and ill-treatment alleged considered

刑法與刑事訴訟程序 — 供認 — 口頭之承認被拒 — 所指口頭承認之時間左右,指稱受警方虐待 — 於口頭承認之預備訊問中,法官拒絕行使司法管轄權 — 法官是否有司法管轄權以裁定被指口頭承認之可接納性 — 當口頭承認被拒及出現虐待之指稱時應採用之程序被考慮

These two appeals dealt with the same issue and were heard together. Both accused denied making an oral admission, and each claimed he was ill-treated by the police either before or after the time of the alleged admission. In both cases the trial judge declined jurisdiction in a voir dire on the verbal admissions, claiming it was a matter for the jury to decide. Both appellants were convicted of their charges after trial. The Court of Appeal dismissed their appeals against convictions. They now appealed to the Privy Council. The Crown asked their Lordships to apply the proviso to s 83(1) of the Criminal Procedure Ordinance (Cap 221) in the case of Thongjai.

Held, allowing the appeals:

  1. It was desirable that a trial judge should give brief reasons for ruling that a confession was inadmissible (at 114B/C).
  2. An accused person could challenge an oral admission both on the basis that he never made it and that he was ill-treated by police before or at the time of the alleged admission. The two were not mutually exclusive. The first issue, which was for the judge to decide, was whether on the assumption the alleged admission was made it was inadmissible as being involuntary. The second issue, which was for the jury if the judge ruled the alleged admission was admissible, was whether the admission was made. Ajodha v The State [1982] AC 204 considered. Macpherson v The Queen(1981) 147 CLR 512 adopted (at 116E-F).
  3. It was erroneous to say that if the defendant denied making the alleged oral admission there was no issue of admissibility for the trial judge to decide on a voir dire, even if the defendant alleged he was improperly treated around the time he was making the alleged oral admission. R v Cheung Hon Yeung [1993] 1 HKC 26considered. R v Lee Man Liu [1992] 2 HKCLR 41 and R v Chu Chi Kwong [1995] 1 HKCLR 327 overruled (at 121G-122A).
  4. In Thongjai’s case the trial judge probably considered he was bound by the majority decision in R v Cheung Hon Yeung [1993] 1 HKC 26 to hold if a[1997] 2 HKC 109 at 110defendant denied making an oral admission, the trial judge had no jurisdiction on a voir dire to rule that the admission, if made, was involuntary. This ruling was erroneous and contrary to the principles established in Ajodha v The State [1982] AC 204Ajodha v The State [1982] AC 204 and R v Cheung Hon Yeung [1993] 1 HKC 26distinguished (at 123I-124A).
  5. It was sufficient to raise the issue of voluntariness of an admission for the trial judge’s consideration if an allegation of ill-treatment was raised in cross-examination in a voir dire; the defendant did not have to give evidence to support the allegation (at 124E).
  6. In the second appeal, the trial judge wrongly ruled that as the appellant’s case was that he had not made the oral admission, it was not a matter for him, but for the jury and the Court of Appeal failed to distinguish between the present case and R v Cheung Hon Yeung [1993] 1 HKC 26 where there was no suggestion of ill-treatment by the accused. R v Cheung Hon Yeung [1993] 1 HKC 26 distinguished (at 126C-E).
  7. In both the present cases, the trial judge should have ruled in the voir dire whether the Crown had proved that the alleged oral admission was voluntary. In each case, the judge erred in holding that he would not give such a ruling. Further, it could not be concluded that in either case that if the judge had considered the issue, he would have had inevitably ruled that the oral admission was admissible (at 126G-127A).
  8. It was not appropriate to apply the proviso to s 83 of the Criminal Procedure Ordinance (Cap 221) in the case of Thongjai as the defence was that another person, whom the Crown accepted existed, had been conducting an association with the wife of the deceased and that the police had considered that that person and the wife might have been part of a conspiracy to kill the deceased (at 127B/C-D).
  9. In both cases, 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. The convictions were unsafe and must be quashed. Both cases would be remitted to the Court of Appeal to decide whether to order a new trial (at 127E, G).

Cases referred to

Ajodha v The State [1982] AC 204

MacPherson v The Queen (1981) 147 CLR 512

heung Hon Yeung [1993] 1 HKC 26 ; [1993] 1 HKCLR 292

R v Chu Chi Kwong [1995] 1 HKCLR 327

R v Lee Man Liu [1992] 2 HKCLR 41

Reid v The Queen [1980] AC 343 ; [1979] 2 All ER 904

State v Fowler, The [1970] 16 WIR 452

Williams v Ramdeo [1966] 10 WIR 397

Legislation referred to

(HK) Criminal Procedure Ordinance (Cap 221) s 83(1)

Appeals

These were appeals against convictions by two appellants. The two cases, dealing with the same issue, were heard together. Thongjai was appealing against conviction for murder from a decision by the Court of Appeal on 16 July 1996 rejecting his appeal on four different grounds other than those argued before the Privy Council. The first appellant was convicted after trial on 24 November 1994 by a jury and Duffy J. In the second case, Lee Chun Kong was appealing against conviction for trafficking in dangerous drugs. He was convicted by Cheung J and a jury and the Court of Appeal dismissed his appeal. The facts appear sufficiently in the following judgment.

James Guthrie QC and Farzana Aslam (Director of Legal Aid) for the first appellant.

James Guthrie QC and Aidan Casey (Director of Legal Aid) for the second appellant.

Darryl Saw QC and YM Liu (MacFarlanes) for the respondent.

The issue which arises on both of these appeals against conviction, which were heard together, is whether, when a defendant denies that he made an oral admission to the police but also alleges conduct by the police before or at the time of the alleged admission which might render the admission involuntary and inadmissible if it had been made, the trial judge should conduct a voir dire to determine the voluntariness of the alleged admission notwithstanding that the defendant denies that he made it.

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.

Lindy Course

AJODHA V THE STATE

The defendant A was tried in 1975 on charges of murder, robbery and rape. The only prosecution evidence against him was a confession statement which he had signed. His defence was that he was not the author of the statement and that he had been forced to sign it. He was convicted of murder. Similarly, at the trial of the defendants C, F and N in 1976 for murder, the main evidence against each of them was a signed confession statement and the defence was that the defendants were not the authors of the confessions, that and N had been forced to sign and that F had been tricked into signing. The defendants were convicted. At neither trial was any objection taken to the admissibility of the statements. The Court of Appeal dismissed the defendants’ appeals against conviction.
On the defendants’ appeals to the Judicial Committee:-

Held, allowing the appeals, that where in a criminal trial the prosecution tendered in evidence a confession statement signed by the defendant the prosecution was relying on the signature as the defendant’s acknowledgment of the statement as his own and that since it was well established that for such a confession to be admissible the prosecution had to show that it had been made voluntarily, a defendant’s allegation that his signature had been obtained by force or by a

[1982] A.C. 204 Page 205

trick necessarily raised the issue of the voluntariness of the statement itself and that that was an issue which had to be determined by the trial judge; and that, accordingly, the judge ought to have ruled on admissibility and, since each defendant had been wrongly deprived of the safeguard of such a ruling the trial had been materially defective and the convictions should be quashed (post, pp. 214D-E, 220C-F, 221B-G, 222A-B, D – 223A).
Ibrahim v. The King [1914] A.C. 599, P.C. applied.
Herrera and Dookeran v. The Queen (1966) 11 W.I.R. 1 and Williams v. Ramdeo (1966) 10 W.I.R. 397 overruled.
Decision of the Court of Appeal of Trinidad and Tobago reversed.

The following cases are referred to in the judgment:

Director of Public Prosecutions v. Ping Lin [1976] A.C. 574; [1975] 3 W.L.R. 419; [1975] 3 All E.R. 175, C.A. and H.L.(E.).

Gransaul v. The Queen (unreported) April 9, 1979, P.C.

Harper v. The State (1970) 16 W.I.R. 353.

Herrera v. The Queen (1966) 11 W.I.R. 1.

Ibrahim v. The King [1914] A.C. 599. P.C.

Reg. v. Anderson (1929) 21 Cr.App.R. 178, C.C.A.

Reg. v. Watson (Glenroy) (1975) 24 W.I.R. 367.

State v. Fowler (1970) 16 W.I.R. 452.

State v. Gobin (1976) 23 W.I.R. 256.

State v. Ramsingh (1973) 20 W.I.R. 138.

Williams v. Ramdeo (1966) 10 W.I.R. 397.

The following additional cases were cited in argument:

Abbott v. The Queen [1977] A.C. 755; [1976] 3 W.L.R. 462; [1976] 3 All E.R. 140, P.C.

Baksh v. The Queen [1958] A.C. 167; [1958] 2 W.L.R. 536, P.C.

Callis v. Gunn [1964] 1 Q.B. 495; [1963] 3 W.L.R. 931; [1963] 3 All E.R. 677, D.C.

Holder v. The Queen [1980] A.C. 115; [1978] 3 W.L.R. 817, P.C.

Mwangi s/o Njeroge v. The Queen (1954) 21 E.A.C.A. 377.

Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648; [1980] 3 W.L.R. 855, P.C.

Paul v. The State (unreported) June 26, 1980, Court of Appeal of Trinidad and Tobago.

Ragho Prasad v. The Queen [1981] 1 W.L.R. 469; [1981] 1 All E.R. 319, P.C.

Reg. v. Charles (1961) 3 W.I.R. 534.

Reg. v. Farley (1961) 4 W.I.R. 63.

Reg. v. Middleton [1975] Q.B. 191; [1974] 3 W.L.R. 335; [1974] 2 All E.R. 1190, C.A.

Reg. v. Payne [1963] 1 W.L.R. 637; [1963] 1 All E.R. 848, C.C.A.

Reg. v. Roberts [1954] 2 Q.B. 329; [1953] 3 W.L.R. 178; [1953] 2 All E.R. 340.

Reg. v. Roberts (1970) 114 S.J. 413; [1970] Crim.L.R. 464, C.A.

Reg. v. Robson [1972] 1 W.L.R. 651; [1972] 2 All E.R. 699.

Reg. v. Sang [1980] A.C. 402; [1979] 2 W.L.R. 439; [1979] 2 All E.R. 46, C.A.; [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222, H.L.(E.).

Reg. v. Stewart (1972) 56 Cr.App.R. 272.

[1982] A.C. 204 Page 206

Reg. v. Thompson [1893] 2 Q.B. 12, D.C.

Reg. v. Watson (Campbell) [1980] 1 W.L.R. 991; [1980] 2 All E.R. 293, C.A.

State v. Plowell (1976) 24 W.I.R. 215.

Wong Kam-ming v. The Queen [1980] A.C. 247; [1979] 2 W.L.R. 81; [1979] 1 All E.R. 939, P.C.

APPEALS (No. 24 of 1980; No. 8 of 1981; No. 13 of 1981 and No. 9 of 1981) by special leave in forma pauperis by Seeraj Ajodha, Peter Chandree, Dennis Fletcher and Lincoln Noreiga from judgments of the Court of Appeal of Trinidad and Tobago. The defendant Ajodha was tried on an indictment charging him with murder, robbery and rape before McMillan J. and a jury of 12 in the High Court at San Fernando and convicted of murder on January 17, 1975. His appeal against that conviction was dismissed by the Court of Appeal (Sir Isaac Hyatali C.J., Phillips and Rees JJ.A) on July 18, 1977. The defendants Chandree, Fletcher and Noreiga were charged with murder and tried in the High Court at Port of Spain before Braithwaite J. and a jury of 12. They were all convicted of murder on May 17, 1976. Their appeal against conviction was dismissed by the Court of Appeal (Sir Isaac Hyatali C.J., Corbin and Scott JJ.A.) on July 15, 1977.

The facts are stated in the judgment.

At the conclusion of the arguments on March 5, 1981, their Lordships announced that the appeals would be allowed for reasons to be given at a later date.

Barbara Calvert Q.C. with Aditya-Kumar Sen for the defendant Ajodha, with Derek Zeitlin for the defendant Chandree, with Michael Burton for the defendant Fletcher and with D. John Dickson for the defendant Noreiga. A confession statement of which the defendant is not the author but which he has signed is a confession subject to the general rules relating to the admissibility of confession statements. A signature on a confession statement is an adoption of it and if the signature has been obtained by duress that goes directly to the voluntariness of the statement itself. In the instant cases there should have been a voir dire to determine the issue of admissibility. In each case the trial judge erred in that he delegated to the jury the function of deciding on admissibility. The issue of whether the defendant made a statement and of its admissibility was fundamental to the determination of guilt and the defendants’ convictions should be quashed.

A trial judge should hold a voir dire as soon as he appreciates from the nature of the defendant’s case that there is a challenge to admissibility. He may be alerted to the issue either by the nature of the defendant’s evidence or by the thrust of the cross-examination. The defendants do not contend for a position as extreme as that in Canada. It is accepted that counsel has a discretion whether to ask for a voir dire: such a request will depend on the circumstances of the case. In the instant cases no discretion was exercised because all those taking part

[1982] A.C. 204 Page 207

in the trials assumed that it was established law that in the circumstances a defendant could not challenge the admissibility of the statements and that any objection would be overruled. Assuming that a challenge to admissibility is open to a defendant, in a case where the only evidence against him is a non-voluntary confession, it is likely that defence counsel will be in dereliction of his duty if he raises no objection. It is conceded that there may arise circumstances where the holding of a voir dire would not be in a defendant’s interests.

If a defendant alleges that he was forced to sign a confession statement that raises the issue of voluntariness. It is wrong in law to distinguish between a statement made by the defendant but extracted by duress, undue influence or other inducement and a statement which the defendant has not made but which he has been forced to sign by one of those methods. By signing a statement the signor is regarded as adopting it and the same rules should apply as to its actual making. A forced adoption automatically raises admissibility which must be considered by the trial judge: it cannot be regarded merely as an issue of non est factum. The prosecution has to show affirmatively both that a confession statement was voluntary and that it was made by the defendant: see Reg. v. Roberts [1954] 2 Q.B. 329. But see also Reg. v. Robson [1972] 1 W.L.R 651, 654 which is not correct. The courts of Trinidad and Tobago have misunderstood the nature of the issue of voluntariness where there is a signature. For the general law as to admissibility see Reg. v. Thompson [1893] 2 Q.B. 12Ibrahim v. The King [1914] A.C. 599 and Director of Public Prosecutions v. Ping Lin[1976] A.C. 574. It is established law that where a trial judge is deciding whether a confession is voluntary he is deciding a question of fact. Similarly where he considers whether a signature is voluntary. Where he decides that even though a statement may be true, it was forced on the defendant, the statement is not admissible. The judge is not concerned with the truth of the contents but only with whether it is the defendant’s statement, i.e. whether it was forcibly adopted by him or was voluntary. It is conceded that there is little difference between that and a totally forged statement. But nevertheless the issue of a forced signature is not one for the jury. The rationale for a distinction is that a confession statement is of exceptional weight: the prosecution relies on the signature on a confession statement as an authentication and witnessing by the defendant that he made it. Different rules apply to oral conversations. In the case of a written statement there should be no distinction between an issue of total fabrication coupled with forced adoption and an issue of whether a statement was made under duress: in both cases it is a fundamental principle that there is a right to a voir dire: see Wong Kam-ming v. The Queen [1980] A.C. 247, 263.

[LORD KEITH(£ KINKEL. This point was not taken at the trial. If counsel did not challenge admissibility and ask for a voir dire ought he to be allowed to rely on the course that he took as a ground of appeal?]

If at the trial it appeared to be settled law that a point could not be taken a failure to take it should not prevent an appeal. In the instant case the point was raised in the Court of Appeal. Judicial opinion in

[1982] A.C. 204 Page 208

common law countries has been divided as to the law on the point in issue here. For the position in Fiji, see Ragho Prasad v. The Queen [1981] 1 W.L.R. 469. Before 1975 in Trinidad and Tobago it was settled law that the question of whether a defendant had been forced to sign a statement was an issue for the jury: see Reg. v. Charles (1961) 3 W.I.R. 534 and Reg. v. Farley (1961) 4 W.I.R. 63. Subsequently the position in the West Indies changed and the defendants rely on State v. Plowell (1976) 24 W.I.R. 215; Reg. v. Glenroy Watson (1975) 24 W.I.R. 367 and State v. Gobin (1976) 23 W.I.R. 256, 278 where Haynes C. encapsulates the defendants’ submission.

If it appears to the trial judge that the issue of voluntariness is raised in any form the defendant is entitled to a ruling on voluntariness. The judge should send the jury out and ask counsel if the defence takes issue on admissibility. There is no case exactly in point but Reg. v. Campbell Watson [1980] 1 W.L.R. 991 is of assistance. See also Paul v. The State(unreported) June 26, 1980, Court of Appeal of Trinidad and Tobago. For the position in East Africa see Mwangi s/o Njeroge v. The Queen (1954) 21 E.A.C.A. 377.

Even if the defendants are wrong and an allegation that a defendant was forced to sign a confession statement does not go to voluntariness the trial judge has a discretion to rule out admissible evidence where its prejudicial effect outweighs its probative value. On the facts of the instant cases that should have been done. Where a trial judge is alerted to the question of admissibility he should exercise such discretion even though not specifically requested to do so by counsel. The defendants rely on Callis v. Gunn [1964] 1 Q.B. 495, 501; see also Reg. v. Middleton [1975] Q.B. 191, 197, 198 and Reg. v. Sang [1980] A.C. 402, 431, 434, 437, 439-440, 456.

The question of the admissibility of a confession statement must be considered strictly in accordance with law. The prosecution has to prove that a statement was voluntary. If the signature is involuntary the whole statement is tainted and if wrongly admitted for the jury to consider must affect the fairness of the trial. That is because on the voir dire the judge only rules on whether the statement or signature was voluntary whereas the jury is concerned with whether the contents are true as well.

For the statutory provisions as to the array of jurors see section 16 of the Jury Ordinance. It is contrary to the intention of the legislature for a lesser charge to be tried with one for murder: see Gransaul v. The Queen (unreported) April 9, 1979, P.C. It is conceded that the mere fact that another charge was tried with the murder charge does not render the conviction of murder a nullity but the conviction ought to be quashed where evidence has been admitted on the lesser charge which was inadmissible or prejudicial on the murder charge. In the case of the defendant Ajodha the evidence admitted on the charge of rape and robbery confused the jury: the joinder of counts led automatically to prejudice.

Burton following for the defendant Fletcher. This was a joint venture. The prosecution must show that it was the intention of each defendant or that it was the common design to kill or cause grievous bodily harm. The trial judge ought to have left the issue of manslaughter to the jury.

[1982] A.C. 204 Page 209

Since this is a capital case the Judicial Committee ought to consider the point: see Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648.

[LORD KEITH OF KINKEL. The issue is not sufficiently alive to warrant a hearing before their Lordships.]

It is the duty of the trial judge to inquire whether it is necessary to hold a voir dire. A fraud or a trick has the same vitiating effect as a threat. If a person signs a statement under a mistake, the statement is not voluntary. Any such question as to the obtaining of a signature raises an issue of voluntariness to be considered by the judge. In the instant case the prosecution had to show that the statement written by another was adopted by the defendant and made his own by his signature and it failed to do so. Even if the issue was a combination of the questions as to whether the statement had been made at all and whether it had been induced by a trick the trial judge ought to have ruled on whether the trick induced the statement: see Reg. v. Glenroy Watson, 24 W.I.R. 367, 380. If contrary to the defendant’s submissions the issue was not one of voluntariness the judge should have considered excluding the statement in the exercise of his discretion: see Callis v. Gunn[1964] 1 Q.B. 495Reg. v. Song [1980] A.C. 402 and Reg. v. Middleton [1975] Q.B. 191. Where there is scope for a trial judge to exercise his discretion to exclude evidence and he needs assistance in deciding on its exercise a voir dire is appropriate: see Reg. v. Roberts(1970) 114 S.J. 413 and Reg. v. Stewart (1972) 56 Cr.App.R. 272.

Stuart McKinnon Q.C.Jonathan Harvie and Lionel Jones (senior state counsel, Trinidad and Tobago) for the state. The courts of Trinidad and Tobago are administered according to the law of England subject to the local legislation. The Judicial Committee is concerned with English law for the time being in force (see section 7 of the Criminal Procedure Act and section 2 of the Evidence Act, chapters 12:02 and 7:02 of the Laws of the Republic of Trinidad and Tobago 1980) and it is not looking at a group of local courts developing their own law on evidence and admissibility. The state agrees with much contained in the defendants’ submissions but those propositions can only apply where an objection to admissibility has been taken at the trial. It is well established that a trial judge must be satisfied that a confession is voluntary but that does not mean that it is necessary or desirable that in every case or in the majority of cases there should be a voir dire. Whether or not an allegation that a signature was forced raises an issue of voluntariness depends on the circumstances of the case. In England if the defence objects to the admission of a statement in the form “I was forced to sign” the judge would determine (in the absence of the jury) whether authorship was the sole issue or whether voluntariness was raised as well. The issue of voluntariness arises if the defendant has by his signature been forced to adopt the statement as true, correct and his own. The defence can also object and ask for a voir dire to determine whether in his discretion the trial judge would be right to exclude the statement even though the primary question is one of authorship, i.e. whether there was any confession at all, and therefore primarily one for the jury.

If a defendant objects to the admission of a confession statement on the ground that he was forced to sign that raises an issue of voluntariness

[1982] A.C. 204 Page 210

-examination of prosecution witnesses defence counsel puts to a witness that the defendant was forced to sign that does not raise the issue: that is not evidence but merely a denial of the prosecution’s allegations. As to whether where an issue of voluntariness emerges in the course of the trial the judge ought to ask the defendant whether he is challenging the admissibility of the confession statement and impose a voir dire, it must be borne in mind that the defence may not want a voir dire. Difficulties would also arise if a trial judge were bound to alert the defence to the raising of the issue of voluntariness and of the necessity of holding a voir dire: the question would then arise whether the omission of such a warning would amount to a mistrial.

In the instant cases there was no objection at the trial to the admission of the confession statements. On the state of the authorities the point could have been raised and the defendants should have raised it if they wanted a voir dire. It is conceded that the trial judge was bound by the decisions in Herrera v. The Queen (1966) 11 W.I.R. 1 and Williams v. Ramdeo (1966) 10 W.I.R. 397. For the development of the present position in the West Indies, see Reg. v. Charles, 3 W.I.R. 534; Reg. v. Farley, 4 W.I.R. 63; Williams v. Ramdeo, 10 W.I.R. 397; Herrera v. The Queen, 11 W.I.R. 1; State v. Fowler (1970) 16 W.I.R. 452; Harper v. The State (1970) 16 W.I.R. 353; State v. Ramsingh (1973) 20 W.I.R. 138 and State v. Gobin, 23 W.I.R. 256. Those cases are almost solely concerned with the nature of the objection taken. In so far as the Trinidad and Tobago authorities relate to a defendant’s being forced to sign a confession statement not of his own making, the state cannot support them. Duress and fraud in such circumstances cannot be distinguished. The concession is confined to the area of confession statements. It is not necessary for the state to concede that the same would apply to a trick. But in the instant case if there had been evidence of a trick there could have been a voir dire and the trial judge in the exercise of his discretion would have been entitled to exclude the statement. If a trick raises only the issue of authorship that issue should be considered by the jury. It is necessary to bear in mind that the rules regarding the admissibility of confession statements are anomalous and governed by considerations of policy: see Ibrahim v. The King [1914] A.C. 599. That is reflected in State v. Gobin, 23 W.I.R. 256 and Director of Public Prosecutions v. Ping Lin [1976] A.C. 574. The reason behind the rule is that it is the fairest way of testing voluntariness.

It is not the law in the West Indies that there should always be a voir dire where a confession statement is tendered. That would lead to practical difficulties in the conduct of the trial. It is not always in a defendant’s interest that there should be a voir dire. It is not accepted that there should always be a voir dire when the issue of voluntariness emerges in the course of the trial. Such a situation begs the question whether confession has been opened to the jury. Under present prevailing practice that situation would not normally arise. Reg. v. Glenroy Watson, 24 W.I.R. 367, is a long way from laying down a general principle. If the defence wishes for a voir dire a formal objection to admissibility should be taken at the trial. That is the law and practice

[1982] A.C. 204 Page 211

in Trinidad and Tobago. If the defendant is not represented the trial judge must in his discretion decide whether a voir dire is appropriate to ensure a fair trial. But that does not mean that the trial judge has a duty to order a voir dire so that a trial is invalid if he does not. It would impose an intolerable burden on trial judges to direct that whenever a point as to voluntariness arises (even by way of cross-examination) they have a duty to hold a voir dire. There is no authority for a proposition that there should be some procedure whereby a trial judge should ask some question of counsel in the absence of the jury to draw attention to a possible issue of admissibility. But it is conceded that if there is an explicit challenge to admissibility the trial judge must rule on it: although he need not necessarily hold a voir dire before doing so.

In the instant cases it was arguable that the signatures amounted to an adoption of the statements and the allegations of duress and a trick raised the issue of voluntariness. It was open to the defendants’ counsel to object to the admissibility of the statements. The law in Trinidad and Tobago was not settled beyond argument. For the position in 1966 see Williams v. Ramdeo, 10 W.I.R. 397 and Herrera v. The Queen, 11 W.I.R. 1, and compare those cases with the decisions of the Court of Appeal of Guyana in Harper v. The State, 16 W.I.R. 353, 354, 358 and State v. Fowler, 16 W.I.R. 452, 456, 458, 460-462, 466, 471, 475. It is clear that the Guyana decisions only diverge from the position in Trinidad and Tobago on the proper interpretation to be placed on an objection and on the notion that a defendant’s denial of having made any confession at all may raise an issue for the jury but need not necessarily do so if the defendant goes on to say how the statement came into existence. For a further attempt by the Court of Appeal of Guyana to settle the law see State v. Ramsingh, 20 W.I.R. 138, 144, 147, 153-155, 162-163, 168, 177, 180, 182, 188. It is conceded that the trial judges in Trinidad and Tobago were bound by the decisions of the Trinidad and Tobago Court of Appeal and that Guyana is a separate jurisdiction but in the instant cases counsel could have taken the point by properly analysing the objections on the basis of the defendants’ adoption of the statements.

Where a defendant is represented and no objection is taken to admissibility of a confession statement a trial judge should assume that counsel has deliberately taken the decision not to object. If counsel then asks questions in cross-examination which make it clear that the defendant disputes the voluntariness of the statement it is for counsel to decide (when the time comes for the statement to be put in evidence) whether to object. It is not for the trial judge to do so. Questions asked in cross-examination do not amount to evidence sufficient to raise the issue. If a defendant makes a statement from the dock challenging voluntariness a trial judge must ensure that he is satisfied that the statement was voluntary: if there is compelling material which calls for the judge to decide on voluntariness he must send the jury out and consider the position. He might have to direct the jury to disregard the evidence of the confession statement or, if it was the only evidence against the defendant, direct an acquittal. Compelling material would be that which

[1982] A.C. 204 Page 212

statement was voluntarily made. For the trial judge’s continuing obligation to be satisfied as to voluntariness, see Reg. v. Campbell Watson [1980] 1 W.L.R. 991. Where a defendant is unrepresented any question of admissibility is to be dealt with under the trial judge’s inherent discretion to ensure a fair trial; there would be no practical difficulty in his explaining the position to the defendant and informing him of his rights.

The law is that a defendant challenging admissibility and desiring a voir dire must ask for one and there cannot be a doctrine entitling counsel not to ask for a voir dire in circumstances where it is bound to be impossible afterwards to determine whether he wanted one or not. Such a position would make the administration of justice impossible; it would enable a defendant to appeal on the issue if he could show that he might have wanted a voir dire. Even if at the time of the trial the state of the law was such that it seemed that any objection would be bound to fail the defendant must show that he demonstrated at that time that he wanted a voir dire. It is not the correct approach in circumstances such as those under consideration here for an appellate court to say that it must be satisfied that the defendant did not want a voir dire. The defendant should not be put in a position where a failure to ask for a voir dire is equivalent to his having had such a request repelled.

As to whether an order for a new trial would be appropriate were the Judicial Committee to allow the appeals: see Baksh v. The Queen [1958] A.C. 167Holder v. The Queen [1980] A.C. 115 and Abbott v. The Queen [1977] A.C. 755.

Harvie following. If a defendant insists that he does not want a voir dire the trial judge has no power to order one: see Reg. v. Anderson (1929) 21 Cr.App.R. 178, 182. It is a fundamental principle that the jury should not be asked to leave the court save with the consent or at the request of the defendant. That is so whether or not the defendant is represented. The trial judge has no duty to inquire whether a voir dire is necessary unless a formal objection to admissibility is taken. But he may inquire of witnesses, counsel or the defendant as he sees fit to make sure that he knows how the case is being put. In doing so he may take into account the competence of counsel according to circumstances as they appear in the course of the trial.



Solicitors: Gasters; Ingledew Brown Bennison & Garrett; Gasters; Ingledew Brown Bennison & Garrett; Charles Russell & Co.

T. J. M

Deokinanan v R

 

On October 15, 1963, the appellant with three other men went up the river in their employer’s launch to buy timber. One of the men had on him $5,000 and 1,000 guilders for the purchase. On October 24, the appellant returned to his employer and told

[1969] 1 A.C. 20 Page 21

him that there had been an explosion and that he had found himself in the water and the others were missing. On october 26 the bodies of the other three men were found floating in the river with severe wounds. When the missing boat was found there was no sign of any explosion or collision; the anchor and chain and cutlasses were missing. The appellant was arrested and put in prison. At his trial for murder evidence was given by B, his trusted friend that he (B) had seen the appellant on November 6, 1963, in the waiting room of the prison, having gone to him at the request of the appellant’s brother; that the appellant had admitted to B that he had hidden the money; that B promised to help to recover the money, intending to tell the police any further information the appellant might give him; that a police constable having given certain instructions, B was placed in a lockup in the police station, though not charged with any offence, in the hope that he would get information from the appellant and communicate it to the police; and that the appellant and B were alone together in the cell for one hour and the appellant told B how he had murdered one of the other three men. On the next day the money was recovered from the exact spot mentioned by the appellant. The appellant was convicted. He appealed on the ground that B’s evidence was inadmissible. The appeal was dismissed.

On appeal:-

Held, dismissing the appeal, (1) that the evidence showed that the same atmosphere and relationship which obtained at the first interview prevailed at the subsequent interview in that the appellant continued to regard B as his trusted friend, and that the questions B asked were not tied to or hinged on any promises and there was no compulsion on the appellant to confess to the murder, B never having promised to assist only if he was told; and that, accordingly, the prosecution had established at the trial that the confession was not induced by any promise or hope of advantage held out to the appellant and was free and voluntary (post, p. 30F-G).

(2) That the appellant thought that B was his trusted friend, that at the time of the confession B was no more than a possible witness for the prosecution and the mere fact that a person might be a witness for the prosecution did not make him a person in authority, and that, accordingly, the confession had not been obtained from the appellant either by fear of prejudice or hope of advantage exercised or held out by a person in authority and was admissible (post, pp. 30G – 31A, E).

Reg. v. Thompson [1893] 2 Q.B. 12; 9 T.L.R. 435; Ibrahim v. The King [1914] A.C. 599; 30 T.L.R. 383, P.C. and Reg. v. Wilson (David); Reg. v. Marshall-Graham [1967] 2 Q.B. 406; [1967] 2 W.L.R. 1094; [1967] 1 All E.R. 797, C.A. applied.

Dictum of Bain J. in Rex v. Todd (1901) 13 Man.L.R. 364, 376 approved.

Judgment of the Court of Appeal, Guyana, affirmed.

[1969] 1 A.C. 20 Page 22

APPEAL No. 19 of 1967 by special leave to appeal in forma pauperis (May 24, 1967) from the judgment (December 20, 1966) of the Court of Appeal of the Supreme Court of Guyana (Stoby C. and Luckhoo J.A., Cummings J.A. dissenting) dismissing the appeal of the appellant, Deokinanan,against his conviction (November 23, 1965) for murder and sentence of death passed on him by the Supreme Court of British Guiana (criminal jurisdiction) (Persaud J. and a jury).

The facts are stated in the judgment of their Lordships.



1968 January 30, 31, February 1. T. O. Kellock Q.C. and Louis Blom-Cooper for the appellant. First, the trial judge in deciding whether the confession was made voluntarily erred in law in taking into consideration whether or not the statement was true. The rule of law is clear that any promise made to induce a statement by an accused after he has been charged makes that statement inadmissible in evidence against the accused. B had induced the appellant to believe that he, (B), was in a position to help him. There was no evidence that the appellant asked B to see him the second time. One must look at it from the point of view of the accused subjectively. Did he see a hopeful advantage held out to him by B? Two promises were made by B, first, that he would find out the prosecution evidence, and secondly, that he would find the money and hand it to the appellant’s father with the express purpose that the money would be used to suborn the prosecution witnesses. Both these stages were vital to enable the appellant to escape from the prosecution. It was on the strength of those promises and inducements that B asked the appellant the vital question “how the bodies got chopped?”

1968, March 25. The reasons for the report of their Lordships was delivered by VlSCOUNT DILHORNE.

On November 23, 1965, the appellant was convicted of the murder of Motie Singh after trial by jury in the Supreme Court of British Guiana.

He appealed to the Court of Appeal of Guyana which by a majority (Stoby C. and Luckhoo J.A., Cummings J.A. dissenting) dismissed the appeal. Now by special leave of the Judicial Committee, he appeals to the Privy Council.

At the trial evidence was given that on october 15, 1963, the appellant, Motie Singh and two men named Heera and Dindial had gone up the River Corentyne in a launch belonging to one Raghubar to buy timber for Raghubar’s sawmill at Crabwood Creek near the mouth of the river. Before they left Raghubar gave Motie Singh $2,000 and on October 22, at Acabor about 150 miles up river he gave Motie Singh a further $3,000 and 1,000 Dutch guilders for the purchase of timber.

On October 24, at about 6.30 a.m., the appellant came on foot to Claude Chung’s camp at Sunrop and asked to be taken down to Crabwood Creek. He told Chung that he and three others were coming down the river the previous night in Raghubar’s launch when they met with an accident. He told Chung that “a boat had jammed theirs up the river in the centre of the river between Powis Island and the Dutch shore”: that he could not say much of what really happened because he and two others were sleeping and the other was steering: “and suddenly he felt a bounce

  • Footnote 9     [1967] 1 A.C. 760.
  • Footnote 10     4 C. & P. 221, 223.
  • Footnote 11     (1852) 2 Den. 522, 526.
  • Footnote 12     (1852) 2 Den. 430, 444.
  • Footnote 13     (1901) Man.L.R. 364, 368, 373, 375-378.
  • Footnote 14     (1946) 86 Can.C.C. 9, 10. 13; [1946] 1 W.W.R. 328.
[1969] 1 A.C. 20 Page 26

on the launch and found himself in the water” and that when he came to the surface he saw a big boat make two circles in the river and then go away.

The appellant got a lift in a canoe which was going downstream, and in the course of the journey he told one of the men in the boat about the accident. He did not tell him that there had been a collision.

The same day he reported to Raghubar at Crabwood Creek. He told him that when the launch was in front of Maam Island there had been an explosion and he had found himself in the water. He said that he had not seen any vessel in the vicinity.

The appellant was then taken to the police station where he made a statement. He did not then say there had been an explosion but that he had felt an impact and had heard the beating of an engine but could not say what the launch had collided with.

A search was made. At 4 a.m. the next day, October 25, the search party, which consisted of the appellant, two policemen and Raghubar, were by Maam Island when the appellant pointed to a place in the river and said “This is the spot.” Nothing was found there.

On 26 October, the body of Dindial was found floating in the river by Ann’s Creek about 25 miles up river from Maam Island, and the bodies of Heera and Motie Singh were found floating in the river at Cow Landing about five miles from Ann’s Creek. All three had wounds caused by a sharp cutting instrument. Motie Singh had a severe wound in his neck and he and Heera had had their stomachs cut open.

The bodies were put in a boat belonging to one Balchand, a logger, and the boat was towed by a launch down to Crabwood Creek. Balchand, who said that in 1963 he was a great friend of the appellant, travelled in the launch with the appellant and others. On the way down the appellant said that he would like to speak to Balchand but P.C. Ramjattan would not allow him to do so.

On October 28 the missing boat was found, sunk near Powis Island. It was brought to the surface. There was no sign of an explosion or collision. Cutlasses which had been on board were missing; so was the anchor and chain. The sea cork had been taken out and there was no doubt that the launch had been deliberately sunk.

The appellant was arrested and taken to the New Amsterdam Prison.

[1969] 1 A.C. 20 Page 27

On November 3, a brother of the appellant, called “Preacher,” spoke to Balchand, and as a result Balchand went to the prison to see the appellant on November 6. The appellant was brought to the waiting room and Balchand’s account of what happened was as follows:

“Accused said to me, ‘Bal man, ah glad you come, I want to see you very important.’ I asked him what was it all about so important. He said that he wanted me to help him because he knew I had an engine and a boat. I asked him what I could do to help him. He said that he got the money in Powis Island, and he wanted me to go to the island.

“The prison officer was patrolling behind the accused and he changed the conversation. In the presence of the accused, the prison officer said that the time was up. I then left the prison.”

Balchand also said that on this occasion he had told the appellant that he would try his best to assist him by going for the money. It was, he said, his intention to tell the police any information he got from the appellant.

Mr. Kellock for the appellant did not contend that what the appellant had said to Balchand on this occasion was inadmissible in evidence. Balchand’s promise to help by going for the money was not given expressly or impliedly on condition that the appellant told him what had happened. The appellant’s admission that he got the money showed that his stories of an accident were not true.

On November 7, Balchand went to the magistrates’ court and saw P.C. Ramjattan. He said that Ramjattan gave him certain instructions but what they were, he was not, nor was Ramjattan, asked to say.

On November 12 Balchand went to Whim police station. After speaking to Sergeant Barker, he was placed in the lockup though not charged with any offence. He was put there in the hope that he would get information from the appellant and communicate it to the police. Cummings J.A., in his dissenting judgment, expressed the view that he had been placed there by the police, with knowledge on the part of the police, that he would hold out an inducement to the appellant to confess. There is nothing in the record to justify the conclusion that he was instructed by the police to hold out any inducement to the appellant. Indeed, it seems somewhat unlikely that the police would take a step which might render any information obtained from the appellant inadmissible in evidence.

At about 1 p.m. the appellant was brought to the station and

[1969] 1 A.C. 20 Page 28

placed in the cell with Balchand. They were alone together for about an hour. Balchand’s account of what happened is as follows:

“In the lockups at Whim, accused told me ‘Man Bal, what you ah doing here, you got the money.’ I told him that I did not get the money as I did not have proper directions. He told me that as we were together, he would tell me the correct spot where the money was. He told me to go to Powis Island – the head of the island, and ‘go in 25 rods from the head of the island, and must go and search for a mora tree about 5 to 6 inches thick shaven on the trunk with a cutlass, and with a vine tied with some young mora leaves around the trunk, and from the tree you must go 6 rods low side, and you will see a large big mora tree with some spurs around and some old tacooba longside the large mora tree, and dig under the mora tree root 6 inches and you will see the money there.’ He said that I must take $1,000 for myself, and give his father-in-law the balance of the money. He also told me to tell his father-in-law that he must not forget the buck men who had seen him running in the island. I promised him that I will do that.

“I asked him how the money got missing. He said whilst they were coming on the river, ‘We slipped out the money and hide it in the launch.’ I asked him how the bodies got chopped. He told me that Dindial caused the whole trouble. He said that while they were coming, Motie Singh and Heera wanted to go to the Dutch police station to report the loss of the money; that Heera and Dindial had an argument, and Dindial told Heera to stop the launch; that Heera said ‘no man, abee a go report the matter at the Dutch police station.’ That while arguing Dindial picked up a cutlass, gave Heera several chops. He said that Motie Singh went to assist Heera, and he (the accused) picked up his cutlass, and chopped Motie Singh on his neck; and the two of them decide to burst the belly of the men, to tie them and sink them with the boat anchor.

“I told the accused that I would try and assist to get the money.”

After the conversation Balchand told the appellant that he was in the lockup on a warrant for a fine. This was untrue.

When Balchand left the lockup, he spoke to Superintendent Soobrian and the next day he went with police officers to Powis Island where the money, amounting to $4,780 and 1,000 Dutch guilders, were found hidden exactly as the appellant had said.

Counsel at the trial objected to the admission in evidence of the statements made by the appellant to Balchand at Whim police station on the ground that they were induced by a promise to help the accused held out by a witness with the knowledge and consent of a person in authority, that is to say, Sergeant Barker, and were

[1969] 1 A.C. 20 Page 29

not made voluntarily. The trial judge ruled that the evidence was admissible. The question to be decided in this appeal is whether he was right to do so.

In Ibrahim v. The King1 Lord Sumner said2:

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

In Reg. v. Thompson3 Cave J. said4:

“If it” (the confession) “proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible.”

In Reg. v. HarzReg. v. Power,5 decided in the House of Lords on the same day as judgment was given in the Court of Appeal in this case, the accused had been told that if questions put to him were not answered, he would be prosecuted for failing to answer them, and the question for decision was whether the answers given were admissible in evidence on his trial for conspiracy to cheat and defraud the Commissioners of Customs and Excise. It was argued that as the threat did not relate to the charge or contemplated charge against the accused, it was admissible.

Lord Reid, with whom the other noble Lords agreed, was of the opinion6 that the admissibility of a statement induced by a threat did not depend on whether the threat related to the charge or contemplated charge against the accused. If the confession was induced by a threat, it was not voluntary and was not admissible.

Although this case was concerned with a threat, it is interesting to note that Lord Reid in this respect drew7 no distinction between a threat and other forms of inducement whether by a promise of favour or the holding out of a hope of advantage.

In the light of what has been said in the cases referred to, the question for decision in this case is whether the prosecution established at the trial that the appellant’s confession was free and voluntary and that he was not induced to confess by any promise or hope of advantage held out to him by a person in authority.

[1969] 1 A.C. 20 Page 30

The appellant did not give evidence at the trial. Balchand’s evidence as to the conversation at Whim police station was not contradicted nor was it challenged in cross-examination.

At their meeting on November 6, Balchand told the appellant that he would try to help him by going for the money. That promise was not conditional upon the appellant telling Balchand what had happened. Balchand went to the prison to see the appellant at the request of the appellant’s brother. The appellant said that he was glad Balchand had come as he thought Balchand was a friend upon whom he could rely to assist him.

At Whim police station Balchand repeated the promise he had already given and he was told by the appellant what to do with the money when he had found it. As Luckhoo A.J. said in his careful and thorough judgment, nothing had happened to make Balchand appear to the appellant in a different light to that in which he had appeared on November 6.

Luckhoo A.J. rightly said:

“The very first words spoken by the appellant, who was the first to speak, would indicate that the same atmosphere and relationship which obtained at ‘the prison conversation’ prevailed. His words were ‘What you doing here, Bal, you got the money?’ ‘Bal’ was still his trusted friend, the recovery of ‘the money’ was still his earnest desire.”

Luckhoo A.J. held that the two questions Balchand asked “were not tied to or hinged on any promises. They were independent of any promise to assist. …” He went on to say:

“If he” (the appellant) “did not care to satisfy Balchand’s curiosity and tell of ‘How the money got missing?’ and ‘How the bodies got chopped?’ there was no compulsion. Balchand had never promised (nor was it suggested that he did so) to assist only if he was told.”

Their Lordships entirely agree with these observations. On the evidence given by Balchand, the appellant cannot have thought that his confession was the price he had to pay for Balchand’s help. In their Lordships’ opinion it was established that the confession was not induced by any promise or hope of advantage held out to the appellant and was free and voluntary.

Further, even if a promise by Balchand had induced the confession, Balchand was not and could not in their Lordships’ opinion have been regarded by the appellant as a person in authority. It has long been established that a confession must be

[1969] 1 A.C. 20 Page 31

induced by a person in authority to be inadmissible in evidence (see Rex v. Row8; Rex v. Gibbons9; Reg. v. Moore10.

In Reg. v. Wilson (David)Reg. v. Marshall-Graham,11 Lord Parker C.J. said12:

“The first question that rises is whether Captain Birkbeck was a person in authority. There is no authority so far as this court knows which clearly defines who does and who does not come within that category. It is unnecessary to go through all the cases; it is clear, however, in Reg. v. Thompson13 that the chairman of a company whose money was said to have been embezzled by the prisoner was held to be a person in authority. It is also clear that in some cases it has been held that the prosecutor’s wife is a person in authority, and in one case that the mother-in-law of a person whose house had been destroyed by arson was said to be a person in authority vis-à-vis a young girl employed by the owner of the house, in other words she was looked upon as a person in authority in relation to that girl.

“Mr. Hawser in the course of the argument sought to put forward the principle that a person in authority is anyone who can reasonably be considered to be concerned or connected with the prosecution, whether as initiator, conductor or witness. The court find it unnecessary to accept or reject the definition, save to say that they think that the extension to a witness is going very much too far.”

In this case at the time of the confession Balchand was no more than a possible witness for the prosecution and their Lordships agree that the mere fact that a person may be a witness for the prosecution does not make him a person in authority.

Sir Kenneth Stoby, Chancellor, based his judgment in the Court of Appeal primarily upon the ground that Balchand was not and could not have appeared to the appellant to be a person in authority. Cummings J.A., in his dissenting judgment, said that Balchand must have appeared to the appellant from the part he played in the search to have been “close to the police” and “someone who perhaps in the mind of the accused could influence the course of investigation by virtue of his position.” He thought that Balchand “could reasonably in the mind of the accused have been regarded as a person in authority.”

Their Lordships do not agree. In their opinion the evidence shows clearly that the appellant did not so regard him. He thought

[1969] 1 A.C. 20 Page 32

that Balchand was his friend. If he had not thought that and had thought that Balchand was “close to the police,” it is not likely that he would have asked Balchand to become in effect an accessory after the fact. He cannot have thought Balchand when he met him in the lockup at Whim a person in authority.

Mr. Kellock argued that a person in authority meant a person who could fulfil the promise made and that as Balchand could have done what he promised, he was a person in authority. He contended that in the cases where confessions induced by promises made by persons in authority had been excluded, the promisor always had power to fulfil the promise.

If this be the case, it does not follow that that is the meaning to be given to the words “person in authority.” The fact that a person could have kept his promise may show the reality of the promise and that it was a real inducement, but it is not a definition of those words. Mr. Kellock was unable to cite any case in support of his contention. In their Lordships’ opinion his contention cannot be sustained.

Mr. Kellock also argued that it was to be inferred from the decision in Reg. v. HarzReg. v. Power14 that it was no longer necessary and part of the law that to be inadmissible a confession has to be induced by a person in authority. He submitted that it is illogical that a confession should not be regarded as inadmissible if the inducement came from someone without authority and yet a confession brought about by the same inducement is inadmissible if induced by a person in authority. Although the inducement is the same, in one case the confession is regarded as free and voluntary and in the other it is not.

This question was not considered in Reg. v. HarzReg. v. Power14 and it cannot be concluded that the decision in that case inferentially declared that what has long been regarded as part of the law was not the law.

In Rex v. Todd15 the accused was induced to confess by two detectives who were not peace officers, representing that they were members of an organised gang of criminals and that to gain admission to the gang he had to satisfy them that he had committed a crime of a serious nature. Dubuc J. held that the promise was not made by a person in authority and consequently the confession was admissible. Bain J., who was of the same opinion, said16

  • Footnote 14     [1967] 1 A.C. 760.
  • Footnote 15     (1901) 13 Man.L.R. 364.
  • Footnote 16     Ibid. 376.
[1969] 1 A.C. 20 Page 33

“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe …”

The fact that an inducement is made by a person in authority may make it more likely to operate on the accused’s mind and lead him to confess. If the ground on which confessions induced by promises held out by persons in authority are held to be inadmissible is that they may not be true, then it may be that there is a similar risk that in some circumstances the confession may not be true if induced by a promise held out by a person not in authority, for instance if such a person offers a bribe in return for a confession.

There is, however, in their Lordships’ opinion, no doubt that the law as it is at present only excludes confessions induced by promises when those promises are made by persons in authority.

For the reasons stated, their Lordships humbly advise Her Majesty that the appeal should be dismissed.

Solicitors: Leman, Harrisson & Flegg; Charles Russell & Co.

SPENCER v. HARDING

Advertisement for Tenders – Contract.

The defendants sent out a circular, as follows:- “We are instructed to offer to the wholesale trade for sale by tender the stock in trade of A., amounting, &c., and which will be sold at a discount in one lot: payment to be made in cash: the tenders will be received and opened at our offices,” &c.:-

Held, that this did not amount to a contract or promise to sell to the person who made the highest tender.

THE second count of the declaration stated that the defendants by their agents issued to the plaintiffs and other persons engaged in the wholesale trade, a circular in the words and figures following, that is to say, “28, King Street, Cheapside, May 17th, 1869. We are instructed to offer to the wholesale trade for sale by tender the stock in trade of Messrs. G. Eilbeck & Co., of No. 1, Milk Street, amounting as per stock-book to 2503l. 13s. 1d., and which will be sold at a discount in one lot. Payment to be made in cash. The stock may be viewed on the premises, No. 1, Milk Street, up to Thursday, the 20th instant, on which day, at 12 o’clock at noon precisely, the tenders will be received and opened at our offices. Should you tender and not attend the sale, please address to us sealed and inclosed, ‘Tender for Eilbeck’s stock.’ Stock-books

(1870) L.R. 5 C.P. 561 Page 562

may be had at our offices on Tuesday morning. Honey, Humphreys, & Co.:” And the defendants offered and undertook to sell the said stock to the highest bidder for cash, and to receive and open the tenders delivered to them or their agents in that behalf, according to the true intent and meaning of the said circular: And the plaintiffs thereupon sent to the said agents of the defendants a tender for the said goods, in accordance with the said circular, and also attended the said sale at the time and place named in the said circular: And the said tender of the plaintiffs was the highest tender received by the defendants or their agents in that behalf: And the plaintiffs were ready and willing to pay for the said goods according to the true intent and meaning of the said circular: And all conditions were performed, &c., to entitle the plaintiffs to have their said tender accepted by the defendants, and to be declared the purchasers of the said goods according to the true intent and meaning of the said circular; yet the defendants refused to accept the said tender of the plaintiffs, and refused to sell the said goods to the plaintiffs, and refused to open the said tender or proceed with the sale of the said goods, in accordance with their said offer and undertaking in that behalf, whereby the plaintiffs had been deprived of profit, &c.

Demurrer, on the ground that the count shewed no promise to accept the plaintiffs’ tender or sell them the goods. Joinder.

Holl, in support of the demurrer. Although the declaration is somewhat ambiguous, it is evidently intended to raise the question whether one who advertises for tenders for the purchase of goods thereby engages to sell them to the highest bidder. The nearest analogous case is that of an advertisement for tenders for building. it has never been held or suggested that the advertiser is bound to accept the lowest tender. Suppose here there had been only one tender, would the defendants have been bound to accept that? The advertisement clearly does not amount to a contract; it only invites offers.

Morgan Lloyd, contrà. The words of the circular and the averments in the declaration taken together, disclose a contract on the part of the defendants to sell the goods to whoever should make the highest tender. This is not like the case of tenders for a

(1870) L.R. 5 C.P. 561 Page 563

building. There, the acceptance of the lowest tender is always subject to the architect’s judgment as to the character and capacity of the builder. Here, the offer is to sell for cash. The allegation in the count may be sustained either by evidence of a direct promise, or by evidence of the custom of the trade.

[WILLES, J. All the averments are governed by the words, “according to the true intent and meaning of the said circular.” It therefore comes round to the question, what is the true meaning of that document.]

The nearest analogy is that of advertisements offering rewards for the discovery and conviction of an offender, of which one of the leading instances is the case of Williams v. Cawardine (1), where Littledale, J., says: “The advertisement amounts to a general promise to give a sum of money to any person who shall give information which might lead to the discovery of the offender.”

WILLES, J. I am of opinion that the defendants are entitled to judgment. The action is brought against persons who issued a circular offering a stock for sale by tender, to be sold at a discount in one lot. The plaintiffs sent in a tender which turned out to be the highest, but which was not accepted. They now insist that the circular amounts to a contract or promise to sell the goods to the highest bidder, that is, in this case, to the person who should tender for them at the smallest rate of discount; and reliance is placed on the cases as to rewards offered for the discovery of an offender. In those cases, however, there never was any doubt that the advertisement amounted to a promise to pay the money to the person who first gave information. The difficulty suggested was that it was a contract with all the world. But that, of course, was soon overruled. It was an offer to become liable to any person who before the offer should be retracted should happen to be the person to fulfil the contract of which the advertisement was an offer or tender. That is not the sort of difficulty which presents itself here. If the circular had gone on, “and we undertake to sell to the highest bidder,” the reward cases would have applied, and there would have been a good contract in respect of the persons. But the question is, whether there is here any offer to enter

(1)     4 B. & Ad. 621, 623. And see Thatcher v. England, 3 C. B. 254.

(1870) L.R. 5 C.P. 561 Page 564

into a contract at all, or whether the circular amounts to anything more than a mere proclamation that the defendants are ready to chaffer for the sale of the goods, and to receive offers for the purchase of them. In advertisements for tenders for buildings it is not usual to say that the contract will be given to the lowest bidder, and it is not always that the contract is made with the lowest bidder. Here there is a total absence of any words to intimate that the highest bidder is to be the purchaser. It is a mere attempt to ascertain whether an offer can be obtained within such a margin as the sellers are willing to adopt.

KEATING and MONTAGUE SMITH, JJ. , concurred.

Attorneys for plaintiffs: Herbert, Lloyd, & Lane.

Attorneys for defendants: Reed, Phelps, & Sidgwick.

Surujpaul called Dick v Reginam

  • Privy Council – British Guiana – Criminal law – Accessory before the fact – One accused found guilty as accessory before the fact, but all accused acquitted as principals – Whether conviction of the one sustainable – Criminal Law (Offences) Ordinance (Laws of British Guiana, 1957, c 10), s 24, s 25.
The appellant, together with four others, was charged in one count with the murder of A. One accused was acquitted at the close of the case for the prosecution. Owing to uncertainty who were present at the time when A was killed, the jury were asked with regard to each of the other accused whether they found him guilty or not guilty of being an accessory before the fact to murder or guilty or not guilty as principal. All accused were acquitted save the appellant, who was found guilty of being an accessory before the fact to the murder of A, but was found not guilty as principal. The appellant had made a statement to the police in which he had said that two of the accused, other than himself, had shot A.

Held – The conviction of the appellant of being an accessory before the fact to murder must be quashed because it was inconsistent with the acquittals of all accused of murder, there being no sufficient evidence to have enabled the jury to have concluded as against the appellant that one or more of the accused had committed the murder.

[there’s no sufficient evidence as to the actual commission of the crime, but only as to the existence of the plot; and that the appellant cannot “confess” as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay]

R v Hughes ((1860), Bell, CC 242) and R v Rowley ([1948] 1 All ER 570) considered.

[R v Hughes can be distinguished on the ground that although in Hughes the principal was acquitted, there was sufficient evidence to establish the commission of the crime (being the principal’s own confession), in this case there’s no sufficient evidence]

Appeal allowed.

Cases referred to in opinion

R v Hughes (1860), Bell, CC 242, 29 LJMC 71, 1 LT 450, 24 JP 101, 14 Digest (Repl) 108, 726.

R v Rowley [1948] 1 All ER 570, 112 JP 207, 32 Cr App Rep 147, 14 Digest (Repl) 112, 775.

Appeal

Appeal in forma pauperis by special leave by Surujpaul called Dick against a judgment of the Court of Criminal Appeal of British Guiana (Stoby Ag CJ, Luckhoo and Date JJ), dated 8 January 1958, dismissing the appellant’s appeal from his conviction on 29 July 1957, at the Criminal Assizes for the County of Berbice in British Guiana before Phillips J sitting with a jury, of being an accessory before the fact to the murder of Claude Allen, a police constable, on 9 March 1957. The appellant was sentenced to death. The facts appear in the judgment of the Board.

W P Grieve for the appellant.

J G Le Quesne for the Crown.

2 October 1958. The following opinion was delivered.

The appellant was convicted at the criminal assizes for the County of Berbice in British Guiana on 29 July 1957, of being an accessory before the fact to the murder of Claude Allen and was sentenced to death. His appeal to the Court of Criminal Appeal of British Guiana was dismissed on 8 January 1958. He appealed in forma pauperis by special leave to Her Majesty in Council, and this appeal was heard by the Board on 22, 23, 24 July 1958.

[1958] 3 All ER 300 at 301

The appellant was charged with four other men in one count with the murder of Claude Allen on 9 March 1957. The other four men will be referred to as accused Nos 2, 3, 4 and 5. At the end of the case for the prosecution, accused No 2 was, on the direction of the trial judge, acquitted by the jury. Owing to uncertainty as to which, if any, of the remaining accused was actually present and taking part in the murder and which, if any, might have been accessories before the fact, the jury were quite properly asked with regard to each accused whether they found him guilty or not guilty of being accessory before the fact to murder, and whether they found him guilty or not guilty as principal. They found the accused guilty as an accessory before the fact to murder and not guilty as principal, accused Nos 3, 4 and 5 they found not guilty as accessories and not guilty as principals. The appellant contended that these verdicts were contradictory and inconsistent and, accordingly, his conviction should be quashed. The Court of Criminal Appeal rejected this contention on the ground that the jury must have come to the conclusion on the evidence legally admissible against the appellant that he was accessory before the fact to murder committed by the other accused, although they were not satisfied on the evidence legally admissible against each of the other accused considered separately that the Crown had discharged the burden of proving the guilt of any one of them.

Section 24 and s 25 of the Criminal Law (Offences) Ordinance, c 10 of the Laws of British Guiana, are as follows:

“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.”

These sections are for all practical purposes identical with s 1 and s 2 of the English Accessories and Abettors Act, 1861, which in their turn had previously appeared respectively in the Acts of 1848a and 1826b.

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

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

It may be convenient at this stage to refer to a passage in Russell on Crime (11th Edn), Vol 1, at pp 134 and 135 which shortly and accurately states the nature of this crime. It is as follows:

“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.”

In the present case, it was essential to the conviction of any one of the accused as accessory before the fact for the Crown to prove that he had counselled, procured or commanded one or more of the other accused persons to murder Claude Allen, and that such person or persons had in fact murdered the said Allen. By their verdict, the jury have found that murder by any one of the accused has not been proved, but that none the less the appellant was guilty of having counselled one or more of them to commit murder and that one or more of them, unspecified, in fact committed it. This certainly appears, at first sight at any rate, an inconsistent and contradictory verdict.

In the course of the argument, their Lordships were referred to several authorities, some dealing with the law as to conspiracy, which was said to be analogous for present purposes, and to the history and origins of the law with regard to principals and accessories, but it is sufficient to refer to the only two cases which really throw much light on the present question.

The first is R v Hughes ((1860), Bell, CC 242). This was a case reserved by the Recorder of Manchester for the opinion of the Court of Queen’s Bench. The prisoner Hughes had been charged together with one Hall in the first two counts of the indictment with larceny and in the third count alone with receiving. Both prisoners pleaded not guilty and were put in charge of the jury, whereupon counsel for the prosecution intimated that he did not propose to offer any evidence against Hall and applied that he should be acquitted in order that he might be called as a witness for the prosecution against Hughes. The recorder acceded to this request and Hall was acquitted. He was called as a witness and testified that he had stolen the goods in question and sold or given them to Hughes. The jury returned a general verdict of guilty against Hughes. The question reserved for the court was (ibid, at p 245):

“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.”

The judgment of the court was delivered by Erle CJ. He said (ibid, at p 248) that the Criminal Procedure Act, 1848, s 1, had made the crime of being an accessory a substantive felony, and that the old law which made the conviction of the principal felon a condition precedent to the conviction of the accessory had been done away with. He added that the accessory, “whether he is tried before or at the same time as the principal … may be found guilty”, although the principal be acquitted. In the report of this case in 1 LT 450 at p 452, instead of the words italicised above the sentence reads:

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

The variation is, perhaps, of little importance since, in the case with which the court was dealing, the principal had been acquitted on the same indictment and by the same jury, albeit the acquittal of the principal was reached in the absence of any evidence of the commission of the felony, whereas there was ample evidence of such commission in the evidence adduced on the trial of Hughes.

The second and more recent case is R v Rowley ([1948] 1 All ER 570). In this case, the appellant had been charged at Birmingham City Quarter Sessions in one count together with two other men with breaking and entering and stealing, and in a second count together with the other two with receiving. In a further

[1958] 3 All ER 300 at 303

count the appellant was charged alone as an accessory after the fact to the felonious receiving by the other two. At the trial, the appellant’s plea on this last count was taken first. He pleaded guilty and was sentenced. The trial of the other two men proceeded and they were acquitted on all counts. On appeal to the Court of Criminal Appeal (Lord Goddard CJ Humphreys and Singleton JJ), counsel for the Crown conceded that the procedure adopted had been quite irregular. Humphreys J in delivering the judgment of the court quashing the conviction said (ibid, at p 571):

“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 … “

The judgment then proceeded to comment on the undesirability of the course which had been adopted at the trial of taking the plea of the accessory before the trial of the principal felons.

It is to be observed that R v Hughes was not cited to the court, and it is true that counsel for the Crown did not seek to support the conviction. None the less, whatever the true view may be with regard to the technicalities, the course which had been adopted by the Recorder of Manchester in the last-mentioned case would now be regarded with even greater disapproval than that of the assistant recorder of Birmingham in R v Rowley.

Their Lordships do not consider it necessary in this case to decide whether writ of error would have lain by reason of error on the record which could not be cured by reference to the evidence. They are content to deal with the case on the basis on which counsel for the Crown sought to uphold the conviction, namely, by looking at the evidence to see if the inconsistency on the record is real or only apparent. The case for the Crown was that the accused men had engaged in a plot to rob the overseer of an estate of the wages of the estate workers, and that, on 9 March 1957, Walter Cameron, the overseer, was in a land rover driven by a man named Ashroof together with a police escort, Claude Allen, near a place called New Dam, when two of the accused wearing masks and armed with a stick and a double barrelled shotgun held them up. Cameron threw the wages to the man with a stick, a shot from the rear of the vehicle was fired and Allen was wounded. Five masked men were seen running away, and Allen died later in the day.

The case for the prosecution rested largely on the evidence of a man named Dhajoo, whom the jury were rightly told to treat as an accomplice. His evidence went to prove the existence of a plot by the accused to rob the payroll and to make use of masks and to hide guns in preparation for the robbery. If believed, there could be little doubt of the existence of the plot, and there was material in all the circumstances from which they might have drawn the inference that the plan was carried out by all or some of the accused and that, in the course thereof, the murder was committed. But the jury, whatever they may have thought with regard to the evidence of the plot, evidently did not consider it sufficient to warrant the conviction of any of the accused as a principal. But it is said on behalf of the Crown that, as against the appellant, they may have found something in his statement to the police which would amount, with Dhajoo’s evidence, to sufficient evidence and admissible against him that the crime was committed by one or more of those who had been “counselled or procured” by the appellant so to do. This necessitates a close examination of the statement, but it may here be observed that, although such statement may afford very strong corroboration of Dhajoo’s evidence with regard to the part taken by the appellant in the plot

[1958] 3 All ER 300 at 304

and as to his counselling or inciting the others to commit robbery or murder, it is difficult to see how it can afford any evidence as to the actual commission of the crime at which, by their verdict, the jury have found he was not proved to have been present and assisting. A voluntary statement made by an accused person is admissible as a “confession”. He can confess as to his own acts, knowledge or intentions, but he cannot “confess” as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay. A failure by the prosecution to prove an essential element in the offence cannot be cured by an “admission” of this nature.

The passage in the statement of the appellant relied on by the Crown is as follows:

“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.”

A statement of this nature cannot, in their Lordships’ opinion, be regarded as equivalent to evidence by witnesses of the acts spoken to in this conversation and as sufficient to warrant as against the appellant a finding that Chandee (No 2), and/or Battle Boy (No 4), both of whom the jury acquitted, in fact committed the murder.

Their Lordships find it difficult to believe that, in any event, the jury applied this process of reasoning in arriving at their verdict. They consider it much more likely that the jury failed to appreciate the distinction between incitement to murder or conspiracy and being an accessory before the fact, and that the passage in the trial judge’s summing-up dealing with the appellant’s case may have contributed to this result. He said:

“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.”

In so saying, their Lordships do not desire to be unduly critical of the learned trial judge’s summing-up taken as a whole. This was a most difficult and troublesome case to deal with and was not made easier for judge or jury by the numerous objections which were taken at various stages, none of which is now relied on.

Whatever may have actuated the jury in coming to these inconsistent verdicts, their Lordships are satisfied on an examination of the evidence that there was no distinction with regard to the evidence relating to the commission of the substantive offence as between the appellant and the other accused which could justify the result arrived at.

Their Lordships have, accordingly, humbly advised Her Majesty that this appeal be allowed, the verdict against and sentence on the appellant be quashed and a verdict of not guilty entered.

Solicitors: Lawrence Jones & Co (for the appellant); Charles Russell & Co (for the Crown).

G A Kidner Esq Barrister.

Central London Property Trust Ltd v High Trees House Ltd

CENTRAL LONDON PROPERTY TRUST, LTD. v. HIGH TREES HOUSE, LTD.

KING’S BENCH DIVISION

[1947] KB 130, [1956] 1 All ER 256, [1946] WN 175

HEARING-DATES: 18 July 1946 18 July 1946

Estoppel — Estoppel in pais — Estoppel by conduct — Lease of flats — Written promise to reduce rent owing to war- time conditions — No consideration — Reduced rent paid — Binding effect of promise — Effect of ending of war-time conditions.

Landlord and Tenant — Rent — Reduction of rent — Lease of flats — Written promise to reduce rent owing to war- time conditions — No consideration — Reduced rent paid — Binding effect of promise — Effect of ending of war-time conditions.

HEADNOTE:

Landlords let a new block of flats in 1937 to H. Ltd. (called “the tenants”), on a ninety-nine years’ lease at a ground rent of £ 2,500 a year. Few of the flats had been let at the outbreak of war in 1939, and, in view of the tenants’ difficulty in paying the rent out of profits in prevailing conditions, the landlords agreed in writing in 1940 to reduce the rent to £ 1,250. No duration of the reduction of rent was specified and there was no consideration for it. The tenants paid the reduced rent. By early in 1945 the whole block of flats was let. On Sept. 21, 1945, the landlords wrote asking that the full rent of £ 2,500 should be paid and claiming arrears of £ 7,916. They subsequently brought a test action to recover the balance of rent for the quarters ending Sept. 29 and Dec. 25, 1945.

Held: (i) the promise of a reduction of rent, being intended to be legally binding and to be acted on, and having been acted on by the tenants, was binding on the landlords to the extent that they would not be allowed to act inconsistently with it, although it was not the subject of estoppel at common law; but

(ii) the promise was for a reduction of rent which was temporary and was to endure so long only as the block of flats was not substantially let, and, since the block of flats was substantially let early in 1945, the landlords were entitled to the full rent for the quarters ending Sept. 29 and Dec. 25, 1945.

INTRODUCTION:

Action. The landlords let a block of flats to the tenants on a ninety-nine years’ lease under seal in 1937 at a ground rent of £ 2,500, which in view of war-time conditions and without consideration they agreed in writing in 1940 to reduce to £ 1,250. Early in 1945 the flats became fully occupied and in September, 1945, the landlords claimed that rent was payable at the full rate of £ 2,500 and they also claimed arrears in respect of earlier years. They brought a test action for the recovery of the full rent for the two quarters ending on Sept. 29, 1945, and Dec. 25, 1945. The tenants contended that the reduced rent was payable for the whole term of the lease, or alternatively that it was payable up to September, 1945, on the ground that the landlords were estopped from now claiming the additional rent or alternatively that they were bound by their promise of a reduction in the rent, which was made with the intention that it should be binding and should be acted on and which was, in fact, acted on by the tenants.

COUNSEL:

Robert Fortune for the landlords. Ronald Hopkins for the tenants.

PANEL: Denning, J.

JUDGMENT:

DENNING, J.: On Sept. 27, 1937, Central London Property Trust, Ltd., the landlords, let a block of flats to High Trees House, Ltd., the tenants, for a term of ninety-nine years from Sept. 29, 1937, at a rent of £ 2,500 a year, the lease being by deed and properly executed. Those two companies were closely linked. The plaintiffs held all the shares of the defendant company (the tenants) and they were linked by directors and secretaries.

This new block of flats had not been fully occupied by the beginning of the war in 1939 owing to the absence of people from London; I think only one-third of it had been let by the outbreak of war. With war conditions prevailing, it was plain to those who ran these companies that the rent payable under the lease could not be paid out of the profits. In those circumstances, as a result of discussions, an arrangement was made between the directors concerned, which was put into writing. On Jan. 3, 1940, the landlords wrote to the tenants in these terms:

“We confirm the arrangement made between us by which the ground rent should be reduced as from the commencement of the lease to £ 1,250 per annum”;
and at a meeting of the plaintiff company (the landlords) in April, 1940, the resolution was confirmed that the tenants be charged ground rent from Mar. 1, 1939, at the reduced rate of £ 1,250 a year in place of the £ 2,500 a year provided in the lease.

I am satisfied that that arrangement was intended simply as a temporary expedient to deal with the exceptional conditions then prevailing, under which the block of flats was only partially let. The arrangement had no reference to events in which the block of flats was wholly let, if they subsequently occurred. Indeed, having regard to the close connection between these two companies, I do not suppose anything would have come before the courts but for the fact that in March, 1941, the debenture-holders of the plaintiff company (the landlords) appointed a receiver, by whom the affairs of the landlords have since been managed.

Before and after his appointment the tenants paid the reduced rent of £ 1,250 a year; in one bad year they could not pay even that, but paid a smaller amount. Otherwise £ 1,250 a year was paid in 1941, 1942, 1943, and 1944. Even when the premises were fully let, at the beginning of 1945, the reduced rent of £ 1,250 was paid. The receiver had not looked into the lease, or realised what the rent was. Only in September, 1945, did he realise that the rent reserved was £ 2,500 a year. Accordingly, on Sept. 21, 1945, he wrote to the tenants saying that the £ 2,500 a year must be paid, and also arrears, which he says are £ 7,916.

No payment being received, he brings this action to test the position in law. It concerns two periods, which provide a critical test of the rights of the parties. Rent is claimed of £ 625 for the quarter ending Sept. 29, 1945, and also of £ 625 for the quarter ending Dec. 25, 1945.

The tenants said first that the reduction of £ 1,250 was to apply throughout the term of ninety-nine years, and that the reduced rent was payable during the whole of that time. Alternatively, they said that was payable up to Sept. 24, 1945, when the increased rent would start.

If I consider this matter without regard to recent developments in the law there is no doubt that the whole claim must succeed. This is a lease under seal, and at common law, it could not be varied by parol or by writing, but only by deed; but equity has stepped in, and the courts may now give effect to a variation in writing (see Berry v. Berry (1), [1929] 2 K.B. 316). That equitable doctrine could hardly apply, however, in this case because this variation might be said to be without consideration.

As to estoppel, this representation with reference to reducing the rent was not a representation of existing fact, which is the essence of common law estoppel; it was a representation in effect as to the future — a representation that the rent would not be enforced at the full rate but only at the reduced rate. At common law, that would not give rise to an estoppel, because, as was said in Jorden v. Money (2) (1854) (5 H.L. Cas. 185), a representation as to the future must be embodied as a contract or be nothing. So at common law it seems to me there would be no answer to the whole claim.

What, then, is the position in view of developments in the law in recent years? The law has not been standing still even since Jorden v. Money (2). There has been a series of decisions over the last fifty years which, although said to be cases of estoppel, are not really such. They are cases of promises which were intended to create legal relations and which, in the knowledge of the person making the promise, were going to be acted on by the party to whom the promise was made, and have in fact been so acted on. In such cases the courts have said these promises must be honoured. There are certain cases to which I particularly refer: Fenner v. Blake (3) ([1900] 1 Q.B. 426), Re Wickham (4) (1917) (34 T.L.R. 158), Re William Porter & Co., Ltd. (5) ([1937] 2 All E.R. 361) and Buttery v. Pickard (6) (1946) (174 L.T. 144). Although said by the learned judges who decided them to be cases of estoppel, all these cases are not estoppel in the strict sense. They are cases of promises which were intended to be binding, which the parties making them knew would be acted on and which the parties to whom they were made did act on. Jorden v. Money (2) can be distinguished because there the promisor made it clear that she did not intend to be legally bound, whereas in the cases to which I refer the promisor did intend to be bound. In each case the court held the promise to be binding on the party making it, even though under the old common law it might be said to be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for breach of such promises, but they have refused to allow the party making them to act inconsistently with them. It is in that sense, and in that sense only, that such a promise gives rise to an estoppel. The cases are a natural result of the fusion of law and equity; for the cases of Hughes v. Metropolitan Ry. Co. (7) (1877) (2 App. Cas. 439), Birmingham & District Land Co. v. London & North Western Ry. Co. (8) (1888) (40 Ch.D. 268), and Salisbury v. Gilmore (9) ([1942] 1 All E.R. 457), show that a party will not be allowed in equity to go back on such a promise. The time has now come for the validity of such a promise to be recognised. The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted on, is binding, notwithstanding the absence of consideration, and if the fusion of law and equity leads to that result, so much the better. At this time of day it is not helpful to try to draw a distinction between law and equity. They have been joined together now for over seventy years, and the problems have to be approached in a combined sense.

It is to be noticed that in the sixth interim report of the Law Revision Committee, it was recommended that such a promise as I have referred to should be enforceable in law even though no consideration had been given by the promisee. It seems to me that, to the extent I have mentioned, that has now been achieved by the decisions of the courts.

I am satisfied that such a promise is binding in law, and the only question is the scope of the promise in the present case. I am satisfied on the evidence that the promise was that the ground rent should be reduced to £ 1,250 a year as a temporary expedient, while the block of flats was not fully or substantially fully let owing to the conditions prevailing. That means that this reduction of rent applied up to the end of 1944. But early in 1945 the flats were fully let and the rents received from them (many were not caught by the Rent Restrictions Acts) had been increased more than originally anticipated. At all events the revenue from them must have been very considerable. The conditions prevailing when the reduction was made had completely passed away, as I find, by the early months of 1945. I am satisfied that the promise was understood by all parties only to apply in the conditions prevailing at the time of the flats being partially let, and the promise did not extend any further than that. When the flats became fully let early in 1945 the reduction ceased to apply.

In those circumstances under the law as I hold it, it seems to me that the quarter’s rents are fully payable for the quarter ending Sept. 29, 1945, and the quarter ending Dec. 25, 1945, which are the amounts claimed in this action.

If it had been a case of estoppel, it might have been said that the estoppel in any event would end with the ending of the conditions to which the representation applied, or alternatively only on notice. But in either case it is only a way of asking what is the scope of the representation. I prefer to apply the principle that the promise, intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply.It is binding as covering the period down to early 1945, and from that time full rent is payable. I therefore give judgment for the amount claimed, credit to be given for the £ 275 paid and accepted.

DISPOSITION:

Judgment for the landlords.

SOLICITORS:

Henry Boustred & Sons (for the landlords); Callingham, Griffith & Bate (for the tenants).

Cantonese phonology and Japanese On’yomi

On’yomi 音読み refers to the Japanese approximation (or even transliteration in some cases) of the pronunciation of the Chinese characters at the time they were imported to Japan.

Cantonese is a language of the Chinese languages. There are several observable patterns in modern Cantonese phonology that correspond to On’yomi readings. It should be noted that Chinese characters were imported separately at different eras. There is no one general rule that governs the transliteration. Also, some characters may bear more than one On’yomi readings. Nevertheless, the below may serve for pedagogical purposes, or as mnemonics for Cantonese-speaking Japanese learners/ Japanese-speaking Cantonese learners.

This entry will be kept updated according to the author’s own Japanese study.

  1. Since generally each Chinese character has only one syllable, an On’yomi reading will not have more than 2 moras.
  2. The consonant ng- at the beginning becomes g- e.g. 牛 ngau4 > gyuu, 藝 ngai6 > gei, 岸 ngon6 > gan, 額 ngaak9 > gaku, 癌 ngaam4 > gan. An On’yomi starting with a “g” may suggest the character used to have a beginning “ng” consonant in Middle Chinese e.g. 義 yi6 > gi, 儀 yi4 > gi, 議 yi5 > gi.
  3. Generally the consonant in modern Cantonese reading can be transliterated to the Japanese approximation  e.g. s- > s-/sh-, t- > t-/ch-, l- > r-, z- > z-/ch- etc. But h- in Cantonese may become k/g-, as in 氣(気) hei3 > ki, 海 hoi2 > kai, 學(学) hok9 > gaku, 校 hau6 > kou, 客 haak8 > kyaku; f- may become k-, as in 花 faa1 > ka, 火 fo2 > ka; m- may become b-, as in 母 mou3 > bo(u), man3 > ban, 物 mat9 > butsu. These represent sound change that happened in Cantonese after Japanese had adopted the On’yomi.
  4. A short vowel in Modern Cantonese is generally also a short vowel in On’yomi, e.g. 主 zyu2 > ju, 雨 yu5 > u, 火 fo2 > ka, 書 syu1 > syo, 所 so2 > syo, 處(処) cyu5 > syo.
  5. A short “o” may become “a” e.g. 阿 o1 > a, 我 ngo5 > ga, 火 fo2 > ka, 左 zo2 > sa, 可 ho2 > ka, 過 gwo3 > ka, 魔 mo1 > ma, 羅 lo4 > ra, 倭 wo1 > wa, 安 on1 > an. It has been argued that there has been an “a > o” vowel shift in Chinese.
  6. -iu becomes -you e.g. 鳥 niu5 > chou, 尿 niu6 > nyou, 標 biu1 > hyou, 表 biu2 > hyou, 小 siu2 > syou,ciu1 > chou, 朝 ziu1 > chou, 妖 yiu2 > you, 要 yiu3 > you.
  7. -ng becomes a long vowel of either “u”, “e”, or “o” in On’yomi (there are no diphthongs in Modern Japanese. “ou” is just a long “o”, and “ei” is just a long “e”) e.g. 風 fung1 > huu, 空 hung1 > kuu, 港 gong2 > kou.
  8. But if the On’yomi was adopted during or after the Tang Dynasty, -ng becomes -n e.g. 明 ming4 is read myou (Go’on) or mei (Kan’on) (both with a long vowel), but min for the meaning “Ming Dynasty” (this On’yomi was of course adopted during the time of the Ming Dynasty, which was after Tang).
  9. Generally, -m becomes -n.
  10. Unlike Mandarin, checked tones in Middle Chinese are preserved in both Modern Cantonese and Japanese On’yomi. -k in Cantonese will become -k(i/u) e.g. 式 sik7 > shiki, 夕 zik9 > seki, 國(国) kwok8 > koku, 學(学) hok9 > gaku; -t will become -chi/tsu e.g. 一 yat7 > ichi,yat9 > nichi,yuet9 > g(a/e)tsu, 切 cit8 > setsu.
  11. -p in Cantonese, on the other hand, is irregular in On’yomi. It may become a long vowel in On’yomi e.g. 集/習 zaap9 > syuu,sap9 > juu,kap7 > kyuu,yip9 > you,hap9 > gou,taap8 > tou, 甲 gaap8 > kou, 蠟(蝋) laap9 > rou, 協/脅 hip8 > kyou; or -tsu e.g. 立 laap9 > ritsu, 雜(雑) zaap9 > zatsu, 接 zip8 > setsu [This has something to do with a phonologically phenomenon called ハ行転呼]
  12. Different pronunciations to differentiate meanings represented by the same character can also be seen in both, e.g. 重 is read zung6/chou in 貴重/尊重/珍重/慎重/莊(荘)重 (meaning precious/respect/important/prudent/respect); but read cung5/jyuu in 重複/重量 (meaning duplication/weight)

Should Hong Kong citizens be allowed to join the PLA? A comparative perspective

(this is only a draft)

Introduction

When the sovereignty of Hong Kong was transferred from Britain to the People’s Republic of China (PRC), the former Crown colony was turned into a Special Administrative Region (SAR). Under the new constitutional order, the SAR is allowed a “high degree of of autonomy and enjoy executive, legislative, and independent judicial power”.[1. The Basic Law of Hong Kong (“BL”), Article 2.] The “socialist system” and policies in the rest of PRC are not practiced in the SAR.[2. Ibid., Article 5.] Despite the “high degree” of autonomy, there are areas over which the SAR does not have control. Defence is one of them.[3. Ibid., Article 14.] The Beijing authority will station its troops in Hong Kong. Expenditure for the garrison is also borne by the Beijing authority.[4. Ibid., Article 14(5).] The SAR does not have its own army.

As the title has already indicated, this article investigates whether or not Hong Kong citizens can and should be allowed to join the People’s Liberation Army. Relevant laws will be examined in answering the former issue, and the situation in the United Kingdom and the United States in relation to their respective dependent territories will be investigated in answering the latter issue.

Hong Kong after the transfer of sovereignty

Previous English-influenced laws remain in force in Hong Kong, except for those which contravene the city’s mini-constitution.[5. Ibid., Articles 8 and 160.] Generally, PRC laws are not applied to the SAR, except for a selected few.[6. Ibid., Article 18.] Those are mainly related to the national identity, territorial sovereignty, and the act of state.[7. Ibid., Annex III.] However, the Military Service Law of PRC, which stipulates, inter alia, the enlistment method of the People’s Liberation Army (PLA), is not on the list. It can be inferred, literally, that the Military Service Law does not apply to the SAR. Considering that there are not statutes in the Hong Kong law that stipulates how Hong Kong permanent residents can be recruited into the PLA (there cannot be such legislation anyway – defence is not within the purview of the SAR), the author argues that, prima facie, Hong Kong citizens are denied the right to serve their sovereign in a military manner.

The above, the author admits, is only an inference from the literal reading of the laws. How they should be correctly interpreted in law is of course another matter. The power to interpret the city’s mini-constitution, along with the power to amend it, is vested in Beijing.[8. Ibid., Articles 158 and 159.] Interpretations released by the Beijing authority are automatically binding to Hong Kong courts.[9. Ibid., Article 158(3).] The Court of Final Appeal has previously succumbed to the position.[10. Lau Kong Yung v Director of Immigration FACV 10/1999.] There has been no interpretation released regarding the People’s Liberation Army yet. A literal reading of the mini-constitution suggests that such interpretation can only be sought by the Court of Final Appeal in Hong Kong, in adjudicating an arguable case.[11. BL, Article 158(3).] Although the first-ever interpretation of the mini-constitution was sought by the executive branch of the SAR,[12. The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Tenth Session of the Standing Committee of the Ninth National People’s Congress on 26 June 1999).] it was after the government was not satisfied with a Court of Final Appeal decision.[13. Ng Ka Ling v Director of Immigration FACV 14/1998.] Arguably, if there is no court case, there is no interpretation. Since there is no constitutional review about Hong Kong permanent residents’ right to join the PLA so far, there is no interpretation to rebut the presumption that Hong Kong permanent residents are denied from so doing yet.

Surrounding evidence also supports the proposition. A member of the Central Military Commission purportedly had said that although he would welcome Hong Kong residents to join the PLA, the government had to “sort out the legalities” first.[14. Unspecified reporter, ‘Deprived no longer: Hong Kong people get to go to war’ CNN International (8 June 2011) <http://travel.cnn.com/hong-kong/life/chinese-army-may-recruit-hong-kong-311670>] A member of a major pro-Beijing political party in Hong Kong had also submitted a proposal to allow to Hong Kong residents join the PLA voluntarily to the The Chinese People’s Political Consultative Conference.[15. Joyce Ng, ‘Joining the PLA will help young Hongkongers ‘understand the country better’ South China Morning Post (Hong Kong 24 Feb 2015) <http://www.scmp.com/news/hong-kong/article/1721946/joining-pla-will-help-young-hongkongers-understand-country-better>] These support the proposition that the Military Service Law of PRC does not apply to the HKSAR.

The conclusion is baffling. As the Nationality Law of PRC applies to the SAR,[16. (n8)] Hong Kong permanent residents of Chinese descent, even born during the colonial era, are regarded by the Chinese authority as Chinese nationals.[17. See, for example, Explanations of Some Questions by the Standing Committee of the National People’s Congress Concerning the Implementation of the Nationality Law of the People’s Republic of China in the Hong Kong Special Administrative Region (Adopted at the Nineteenth Session of the Standing Committee of the Eighth National People’s Congress on 15 May 1996).] Hong Kong permanent residents of non-Chinese descent, but who have been naturalised in accordance with the Nationality Law are equally Chinese nationals as their counterparts in mainland China. There is no provision in the Military Service Law that restricts a soldier’s place of birth. A prima facie inconsistency exists here. Technically, all Chinese nationals have a duty to perform military service when called upon. The Military Service Law is enacted “pursuant to Article 55 of the Constitution”,[18. The Military Service Law of the People’s Republic of China, Article 1.] which stipulates, “it is the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression”. If many, if not most, of the permanent residents in Hong Kong are Chinese nationals, why are they denied from joining the PLA? Does Article 55 of the PRC Constitution not apply to the SAR either?

We will now turn to the situation in other sovereign states, in order to examine whether Hong Kong permanent residents are justified to join the PLA.

United Kingdom and the Commonwealth

Most former colonies of the United Kingdom have joined the Commonwealth of Nations[19. Formerly the “British Commonwealth”.] and many of them still have the British monarch as their head of state. The British monarch, therefore, is still the nominal sovereign of many of these former colonies. She, or He, as the case may be, has the duty to appoint Governors to these states.

Unlike the situation between Hong Kong and the People’s Republic of China, soldiers from across the Commonwealth have a long tradition of service in the British Army. According to the British Army,[20. The British Army, ‘A Regular Army Interim Guide for Commonwealth Citizens and their Families’ (army.mod.uk 2008) <http://www.army.mod.uk/documents/general/20080208-CommonwealthFamsGuideRegArmy-DPS%28A%29-U.pdf>, Section 3.] upon request, Commonwealth citizens living outside the UK will be invited to submit an application. The Home Office may require that the applicant have his support and accommodation during the selection process, which takes place within the UK for 6 to 12 weeks, sponsored.[21. Ibid.] A Commonwealth citizen also needs to have lived in the UK for at least 5 years before he can become a regular soldier.[22. The British Army, ‘Can I join? Eligibility for Officers and Soldiers’ (army.mod.uk 2015) <http://www.army.mod.uk/join/How-to-join.aspx>] The applicant must not have been out of the UK for a continuous period of more than 180 days during this 5 year period. This requirement does not apply to the Army Reserve.[23. Ibid.] Besides these two requirements, a Commonwealth applicant is assessed in the same way as a British applicant.[24. (n20)]

A Commonwealth citizen is defined in the British law[25. British Nationality Act 1981.] as either a full British citizen, a British Overseas Territories citizen, a British Overseas citizen, a British subject, a British National (Overseas), or a national of any of the specified countries. Before the transfer of sovereignty, Hong Kong citizens were British Overseas Territories citizens. They only lost such status upon the transfer of sovereignty.[26. The Hong Kong (British Nationality) Order 1986 stipulates that “on and after 1st July 1997 the British Nationality Act 1981 shall have effect as if in Sch. 6 to that Act (British Dependent Territories) the words ‘Hong Kong’ were omitted”.] What follows from the laws is that Hong Kong citizens were entitled to join the British Army before the transfer of sovereignty but not to join the People’s Liberation Army after. This only strikes the author as ironic. Moreover, between 1985 and 30th June 1997, the nationality British National (Overseas) (BN(O)), which arguably was tailor-made for the transfer of sovereignty, was open to Hong Kong citizens to apply. BN(O) would be granted for life upon successful registration but non-hereditary.[27. Hong Kong Act 1985.] As of today, the Commonwealth citizenship still includes BN(O).[28. (n25)] What is even more ironic is that some Hong Kong permanent citizens, even after the “transfer of sovereignty”, may be entitled to serve in their former sovereign’s armed forces but not the current’s.

United States and Puerto Rico

Puerto Rico is a territory of the United States of America. Its defence was overtaken by the United States following the Treaty of Paris of 1898 as a result of the Spanish-American War. More than 2 hundred thousand US citizens from Puerto Rico have served in the U.S. Armed Forces since 1917.[29. Puerto Rico Federal Affairs Administration, ‘Puerto Rico at a Glance’ (praff.pr.gov 2015) <http://webcache.googleusercontent.com/search?q=cache:BQ63zcavTt0J:prfaa.pr.gov/pr_factsnd2.asp+&cd=2&hl=en&ct=clnk&gl=hk>] As of 2015, there are more than ten thousand Puerto Rican active duty military personnel serving across different branches of the US Armed Forces.[30. Ibid.]

Puerto Ricans are natural-born US citizens by birth.[31. 8 U.S. Code § 1402 – Persons born in Puerto Rico on or after April 11, 1899 (1941).] Puerto Ricans enjoy most of the rights and privileges of any other US citizen born in the 50 federal states. However, Puerto Ricans have no right to determine who can become their head of state. According to Article II of the US Constitution, the President is voted by the Electors of each State. Since Puerto Rico is not an incorporated state of the federation, Puerto Ricans cannot vote in the general presidential elections. It may be argued that this is similar to the HKSAR, but the HKSAR does have its own delegation to the National People’s Congress of the PRC (NPC). The NPC will vote to decide who get the jobs high at the hierarchy, such as the Standing Committee thereof[32. Constitution of the People’s Republic of China, Article 65.] and the President of the PRC.[33. Ibid., Article 62.] The HKSAR delegation must be distinguished from the local Legislative Council (LegCo), which arguably receives more attention from the general public in Hong Kong.

However, because of their US citizenship, Puerto Ricans are eligible for the US draft. In fact, most male US citizens between the ages of 18 and 25 are statutorily required to register within 30 days of their 18th birthdays to the Selective Service System.[34. 50 U.S. Code § 453.] Citizens registered to the System are potentially subject to military conscription. As long as the person is a US citizen, there is no restriction to his place of birth in the Military Selective Service Act. The law is similar to the Military Service Law of PRC, which requires “male citizens who will be 18 years old by December 31” to register for military service by September 30 that year according to local arrangements.[35. Military Service Law of the People’s Republic of China, Article 13.]

Conclusion

If even Puerto Ricans, who are not entitled to choose their own head of state, are allowed to serve their sovereign’s armed forces, there is no reason in law that Hong Kong permanent residents who are Chinese nationals should be banned from joining the People’s Liberation Army. Neither does it make sense that Hong Kong citizens could serve in the former sovereign’s armed forces but not the current’s. If it is the case, as the mini-constitution of the HKSAR says, that the HKSAR is an inalienable part of the PRC,[36. BL., Article 1.] then excluding Hong Kong citizens from the PLA does not only deprive them of the right to pursue a career in their “motherland’s” armed forces, but also the right to defend their own home.

The author believes that the confusion stems from ambiguity of the Basic Law, that of the PRC Constitution, and that in the interrelationship between the two. In the recently held Seminar for the 25th Anniversary of the Promulgation of the Basic Law, the Chinese authority has once again declared its rights over the SAR.[37. Unspecified reporter, ‘Wang: Six rights of the Central Government over Hong Kong’ (translated) Ming Pao Canada (3 April 2015) <http://www.mingpaocanada.com/realtimenews/VAN/content_hk_NEW.cfm?aid=164431&m=0>] All comments aside, there is one statement that the author believes is worth discussion. It was said that “there are things not stipulated in the Basic Law but should be taken for granted [because they are stipulated in the Constitution]”.[38. Ibid.] “These things” are suggested to include that the head of state is the President of the PRC.[39. Ibid.] The only reference, so far, in the Basic Law, to the PRC Constitution is in the preamble, saying that “[the SAR is] established in accordance with … Article 31 of the Constitution of the People’s Republic of China”.[40. Mirroring this, Article 31 of the PRC Constitution stipulates that “the State may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions”.] On the other hand, it seems true that if the Basic Law stipulates that act of state is the responsibility of the Beijing authority, then the head of state of the HKSAR must be that of the PRC, who, according to the PRC Constitution, is the President.[41. Constitution of the People’s Republic of China, Articles 80 and 81.] That is, the statement is arguably true. But this only begs the question: To what extent? How is the PRC Constitution applied to the HKSAR, and how much thereof? There are provisions in the PRC Constitution that obviously are inconsistent with the Basic Law.[42. One obvious example is that while the very first Article of the PRC Constitution stipulates that “the People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants”, Article 5 of the Basic Law expressly says that the “socialist system” will not be practiced in Hong Kong. It is also emphasised in the preamble.] The author suggests further investigation regarding this issue. Lastly, there is also the ambiguity as to which of the State or the Chinese Communist Party does the People’s Liberation Army belong.

用組合數學來證明恆等式

證明 \sum_{k=1}^{n}k\binom{n}{k}=n2^{n-1} ,其中 n 是正整數。

這道題目是以前香港高考純數試卷中的常客。

考評局的評分標準老師會教我們考慮二項式定理(Binomial Theorem),得
(x+1)^n=\sum_{k=0}^{n}\binom{n}{k}x^k

接著,把方程式的兩邊同時對 x 微分,得
n(x+1)^{n-1}=\sum_{k=1}^{n}k\binom{n}{k}x^{k-1}

最後,代入 x=1 即完成證明。

或者大家未接觸過純數,讓我們試試用組合數學(Combinatorics)來證明。

先想像一下這個情景:我們要由 n 人之中選出一些人(最少一人、最多全部人)來成立一個委員會,再委派委員會內的其中一人當會長。委員會的組合方法有多少種呢?

根據定義,由 n 人選出 k 人的方法有 \binom{n}{k} 種;而由 k 人之中選出一人當會長的方法有 k 種。因為 k 的取值範圍是由 1n,所以根據基本的組合數學法則,總共有 \sum_{k=1}^{n}k\binom{n}{k} 種委派方法,這是恆等式的左方。

另一方面,由 n 人中選出一人當委員會的會長,選法有 n 種;而會長以外的 n-1 人中,每個人都有兩種可能性(會員或非會員),選法有 2^{n-1} 種。因此,總共有 n2^{n-1} 種委派方法,這是恆等式的右方。

以上兩種委派方法應該會得出相等答案,因此我們欲證明的恆等式成立。這個就是用組合數學來證明恆等式的例子,而這類證明則被稱為組合證明(Combinatorial Proof)。

一般來說,組合證明的做法就是先虛構一個與組合數學有關的情景,接著證明恆等式的兩邊都是(由兩種不同的方向找出來)這個問題的答案。

還有很多恆等式有組合證明,如 \binom{m+n}{r}= \sum_{k=0}^{r}\binom{m}{k}\binom{n}{r-k}\binom{n+1}{r+1}= \sum_{k=r}^{n}\binom{k}{r}

組合證明華麗和生動有趣,比數論證明可以更清楚展示恆等式背後的意義。當然,要虛構一個情景出來,需要很強的觀察力和創意,絕對不是一件容易的事。

延伸閱讀:Notes on Combinatorial Arguments from University of Victoria