Wong Kam-ming

Crime – Evidence – Confession – Admissibility – Voir dire – Defendant cross-examined as to truth of statement and admitting participation in offence – Whether cross-examination proper – Statement ruled inadmissible – Crown adducing evidence of and cross-examining on defendant’s admissions in voir dire – Whether permissible

A group of men attacked the manager of a massage parlour. They killed him and wounded two others. The defendant was one of six charged with murder and malicious wounding. The only evidence connecting him with the attack was his own signed statement given to the police to the effect that he had been present at the scene and had there “chopped” someone with a knife. At the start of the trial the defence challenged the admissibility of the statement on the ground that it had not been made voluntarily. The judge dealt with that issue in the absence of the jury by a voir dire. The defendant gave evidence on the voir dire and testified that he had made the statement but had not been cautioned, that the police had offered inducements to him to make it and that he had been forced to copy out and sign it. Cross-examined by the Crown the defendant admitted that he had been present at the scene and involved in the attack. The judge ruled the statement inadmissible. The trial of the general issue continued and in order to establish that the defendant had been at the scene counsel for the Crown called the two shorthand writers who had recorded the voir dire to testify that in that proceeding the defendant had admitted being

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present. The defence objected. The judge ruled that the shorthand writers’ testimony was admissible and rejected a submission that there was no case for the defendant to answer. The defendant gave evidence and was cross-examined as to discrepancies between his evidence and what he had said at the voir dire. The defendant was convicted of murder and malicious wounding. The Court of Appeal dismissed his appeal against conviction.

On the defendant’s appeal to the Judicial Committee: –

Held, allowing the appeal, (1) (Lord Hailsham of St. Marylebone dissenting) that on a voir dire as to the admissibility of a defendant’s challenged statement the prosecution should not ask questions in cross-examination of the defendant with the object of establishing the truth of the statement and that accordingly the Crown’s cross-examination on the voir dire was improper (post, pp. 256A-C, 257B-C).

Rex v. Hammond [1941] 3 All E.R. 318, C.C.A. wrongly decided.

Reg. v. Hnedish (1958) 26 W.W.R. 685 approved.

(2) That, where on a voir dire a defendant’s statement had been ruled inadmissible, the prosecution was not entitled at the trial of the general issue to adduce evidence as to what the defendant said during the voir dire or to cross-examine him on the basis of what he said; that, accordingly, the calling of the shorthand writers and the Crown’s cross-examination were substantial irregularities which resulted in evidence being wrongly placed before the jury without which they could not have convicted and that, therefore, the defendant’s convictions on all counts should be quashed (post, pp. 258D-E, 259E-F, 260C-F, 261B-G).

Rex v. Treacy [1944] 2 All E.R. 229, C.C.A. applied.

Per curiam. Where an impugned confession is ruled admissible and the defendant elects to give evidence on the general issue testifying as to the reliability of the confession (as opposed to its voluntariness) and in so doing gives answers markedly different from his testimony on the voir dire there is no justification in legal principle or any other ground which renders cross-examination on the basis of the discrepancies impermissible (post, pp. 259F – 260A).

Decision of the Court of Appeal of Hong Kong reversed.

The following cases are referred to in the judgments:

Chan Wei Keung v. The Queen [1967] 2 A.C. 160; [1967] 2 W.L.R. 552; [1967] 1 All E.R. 948, P.C.

Chitambala v. The Queen [1961] R. & N. 166.

DeClercq v. The Queen (1968) 70 D.L.R. (2d) 530.

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.).

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

Li Kim-hung v. The Queen [1969] H.K.L.R. 84.

Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319.

Reg. v. Hnedish (1958) 26 W.W.R. 685.

Reg. v. Wright [1969] S.A.S.R. 256.

Rex v. Hammond [1941] 3 All E.R. 318; 28 Cr.App.R. 84, C.C.A.

Rex v. Treacy [1944] 2 All E.R. 229; (1944) 30 Cr.App.R. 93, C.C.A.

[1980] A.C. 247 Page 249

The following additional cases were cited in argument:

Harris v. Director of Public Prosecutions [1952] A.C. 694; [1952] 1 All E.R. 1044, H.L.(E.).

Jeffrey v. Black [1978] Q.B. 490; [1977] 3 W.L.R. 895; [1978] 1 All E.R. 555, D.C.

Reg. v. Abbott [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; [1955] 2 All E.R. 899, C.C.A.

Reg. v. Erdheim [1896] 2 Q.B. 260.

Reg. v. Garside (1967) 52 Cr.App.R. 85, C.A.

Reg. v. Gauthier (1975) 27 C.C.C. (2d) 14.

Reg. v. Harz; Reg. v. Power [1967] 1 A.C. 760; [1967] 2 W.L.R. 297; [1967] 1 All E.R. 177, H.L.(E.).

Reg. v. McGregor [1968] 1 Q.B. 371; [1967] 3 W.L.R. 274; [1967] 2 All E.R. 267, C.A.

Reg. v. Murphy [1965] N.I. 138. Ct.-M.A.C.

Reg. v. Rice [1963] 1 Q.B. 857; [1963] 2 W.L.R. 585; [1963] 1 All E.R. 832, C.C.A.

Reg. v. Roberts (1953) 37 Cr.App.R. 86.

Reg. v. Van Dongen (1975) 26 C.C.C. (2d) 22.

Reg. v. Wray (1970) 4 C.C.C. 1.

Rex v. Power [1919] 1 K.B. 572, C.C.A.

Wan v. United States (1924) 266 U.S. 1.

APPEAL (No. 21 of 1978) by Wong Kam-ming, the defendant, from a judgment (July 12, 1977) of the Court of Appeal of Hong Kong (Briggs C.J. and Huggins J.A.; McMullin J. dissenting) dismissing his appeal against his conviction on October 1, 1976, before Commissioner Garcia and a jury of the murder of Lam Shing alias Lam Chung and malicious wounding on December 28, 1975.

The facts are stated in the judgment of the majority of their Lordships.

Charles Fletcher-Cooke Q.C., William Glossop and George Warr for the defendant. The issues on this appeal are (1) whether on the voir dire a defendant may be asked in cross-examination whether the contents of the confession statement are true; (2) whether, if such a question may be asked, the trial judge has a discretion to exclude it and what are the limits of that discretion; (3) whether the Crown may lead evidence of what was said in answer to questions on the voir dire at the trial of the general issue; (4) whether, if such evidence may be led, the judge has a discretion to exclude it; and (5) whether, if such evidence may not be led, the defendant may be cross-examined on it and at the trial of the general issue.

On the voir dire it is wrong for the Crown to put the question “Is the statement true?” to the defendant. The defendant would be bound to answer the question notwithstanding that his answer might incriminate him, and to allow such a question infringes a fundamental principle of the common law. Even if in principle the question may be put the judge has a discretion to exclude it. There are practical difficulties if the question is permitted: the probative value of the answer is outweighed by the prejudice to the defendant. Public policy must also be taken into account in that the public would be outraged if there were a confession on

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the voir dire followed by an acquittal on the trial of the general issue. As to whether a confession is voluntary, see Wan v. United States (1924) 266 U.S. 1, 14.

Rex v. Hammond [1941] 3 All E.R. 318 was wrongly decided. See Rex v. Hnedish (1958) 26 W.W.R. 685, 687, 688 for the beginnings of doubt about the correctness of the decision in Hammond’s case. See also Chitambala v. The Queen [1961] R. & N. 166, 168-171; Li Kim-hung v. The Queen [1969] H.K.L.R. 84; Reg. v. Wright [1969] S.A.S.R. 256, 259, 265, 279 and Reg. v. Van Dongen (1975) 26 C.C.C. (2d) 22. In DeClercq v. The Queen (1968) 70 D.L.R. (2d) 530 the Supreme Court of Canada followed Rex v. Hammond [1941] 3 All E.R. 318 but see the dissenting judgments of Hall, Spence and Pigeon JJ. at pp. 548, 551, 553. Notwithstanding that Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319 is authority for the proposition that although the Crown may not lead the answers given by the defendant on the voir dire it may put them to the defendant in cross-examination, that case is in direct opposition to Rex v. Treacy [1944] 2 All E.R. 229 which was not referred to. If evidence given on the voir dire is excluded in the sense that the Crown cannot lead it then it ought not to be used at all. In Reg. v. Gauthier (1975) 27 C.C.C. (2d.) 14 evidence given on the voir dire was not available to either party. Where at the trial at the close of the case for the prosecution a defence submission of no case to answer is wrongly rejected by the judge and the defendant then gives evidence on oath and by that evidence himself produces a case to answer, the principle in Reg. v. Abbott [1955] 2 Q.B. 497 applies.

If the defendant’s submissions on issues (1) and (2) are not accepted, nevertheless the Crown is not permitted to lead evidence on the trial of the general issue of what was said on the voir dire because what was said was not voluntary and is subject to the same objections as extra-judicial confessions. For the position arising in the parallel situation before 1898, see Greenleaf, A treatise on the Law of Evidence, 16th ed. (1899), vol. 1, paras 224, 225.

Even if the Crown may lead evidence at the trial of the general issue of what was said on the voir dire the trial judge has a discretion not to admit it and in the instant case it should have been excluded because the answers were inextricably entwined with the making of the confession: see per Bray C.J. in Reg. v. Wright [1969] S.A.S.R. 256, 263. Either all the questions and answers can be put in evidence or none at all and therefore if some of them are clearly inadmissible then none can be used.

On the trial of the general issue the defendant may not be cross-examined on his answers given on the voir dire. The defendant relies on Rex v. Treacy [1944] 2 All E.R. 229: if a statement is inadmissible then no more should be heard of it. The answers given on the voir dire amount to confessions and are either admissible when led by the Crown or not at all.

John Marriage Q.C. and Daniel Marash (Crown Counsel, Hong Kong) for the defendant. The issues which arise are those outlined by the defendant. The Crown does not challenge the relevant authorities. It has become the practice on the voir dire to ask the defendant the question “Is the statement true?”.

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As to issue (1), the Crown may only put the question “Is it true?” if the question is designed to obtain evidence which is relevant to the issue before the tribunal. Usually it is relevant to the issue of admissibility of a confession statement to know if the statement is true. The reason that the court considers whether a statement has been induced is that an induced statement is likely to be an untrue one.

[LORD DIPLOCK. That is contrary to authority: see Ibrahim v. The King [1914] A.C. 599 and Chan Wei Keung v. The Queen [1967] 2 A.C. 160.]

It must assist the trial judge to know whether a statement is true or false although it is conceded that it may not be relevant in every case and may not be so on the general issue. On the voir dire the court is enquiring how the statement came to be made and its truth is usually relevant to that. The possibility of asking the question “Is it true?” should not be excluded as a matter of principle. It was rightly put in Rex v. Hammond [1941] 3 All E.R. 318. Even if that case was wrongly decided it was right to put the question in the instant case because a major part of the attack on admissibility was concoction to which the answer was relevant. It is conceded that a general practice of putting the question “Is it true?” is not justified: regard must always be paid to relevance. Guilt is not always relevant but sometimes it may be. Counsel must be satisfied of relevance and prepared to justify the question if challenged. On the voir dire the judge’s decision on inducement is final but once a confession statement is admitted the question of concoction is strictly one for the jury.

[LORD HAILSHAM OF ST. MARYLEBONE. Once the judge is satisfied on the voir dire that the statement was voluntary it must go to the jury. If he decides it was not voluntary he decides that there was no statement at all, i.e. that the statement was not the defendant’s act.]

There is a practical difficulty where the defendant alleges part inducement and part concoction. It may be that a court must draw a distinction between “verbals” and a confession statement. A confession statement is a piece of evidence to be put before the jury if admissible. “Verbals” do not exist until the police officers give evidence before the jury. On the voir dire if a judge was not satisfied that a defendant had made the statement at all, in practice he would exclude it to be safe. He would not rule it admissible and put himself in the position of having to go on and direct the jury that it must be satisfied that the defendant had made the statement in the first place. [Reference was made to Reg. v. Roberts (1953) 37 Cr.App. R. 86.]

As to issue (2), it is always open to the trial judge to require counsel to satisfy him that a question as to the truth of a confession statement is relevant but there is no general discretion to exclude such cross-examination. A question may always be excluded according to the principle in Harris v. Director of Public Prosecutions [1952] A.C. 694 that the answer would have a higher prejudicial than probative value.

[LORD EDMUND-DAVIES. On the voir dire no question of prejudice arises; the judge rules on relevance and admissibility and there is no place for discretion.]

The trial judge may have no discretion as such to allow or disallow

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putting of irrelevant questions. In the instant case the question as to truth was relevant to the issues of inducement and concoction. The truth of a statement is always relevant to concoction and may be to inducement if the concoction throws light on the inducement.

As to issue (5), cross-examination of the defendant on the trial of the general issue before the jury on the basis of evidence given by him on the voir dire is unobjectionable in law, subject to the overriding discretion of the trial judge. It is conceded that it is not the practice for the prosecution to use the evidence given on the voir dire to create a case for the Crown. It is right that if a confession is ruled inadmissible it cannot be inserted by a back door: see Rex v. Treacy [1944] 2 All E.R. 229. But a finding that a statement is inadmissible does not affect the admissibility of evidence of what has gone on oath at the voir dire. The evidence given there is not necessarily contaminated by the inadmissible statement and prosecution witnesses can give evidence about it and the defendant can be cross-examined. It is not repugnant that witnesses who have given evidence to prevent admission of a statement should be cross-examined as to what they have said.

As to issue (3), the prosecution should not introduce by way of cross-examination matters which are capable of proof and which could have been proved as part of the prosecution case: see Reg. v. Rice [1963] 1 Q.B. 857. But whether that is a rule of law or of practice the effectiveness of a cross-examination must depend on the ability of the prosecution to prove the matter put. What happens at the voir dire can be used by the prosecution in cross-examination on the trial of the general issue and then on ordinary principles evidence may then be called to substantiate the prosecution case. There is no rule of law that what has happened on the voir dire is sacrosanct and cannot be so used. If the prosecution has evidence of a confession it must call it in chief. Even where a statement has been obtained by torture and the question “Is it true?” is put on the voir dire and answered “Yes,” the prosecution can lead evidence of that confession subject to the discretion of the trial judge and subject to the rule in Rex v. Treacy [1944] 2 All E.R. 229. Whether under section 13 of the Hong Kong Evidence Ordinance (Cap. 8) or under Lord Denman’s Act, the prosecution is entitled to call to give evidence a person who heard a previous statement in order to show that the second statement is untrue. It is permissible at a retrial to bring evidence of what was said at the previous trial: see Reg. v. McGregor [1968] 1 Q.B. 371. There is no distinction between that situation and a defendant’s being cross-examined as to what he said on the voir dire: in neither situation can the defendant’s statements be said to have been involuntary: see Reg. v. Erdheim [1896] 2 Q.B. 260 and Reg. v. Hartz; Reg. v. Power [1967] 1 A.C. 760, although it is conceded that in both those cases there was specific statutory provision.

As to issue (4), there is a line of Commonwealth authority which shows that the discretion of the trial judge is limited: see Reg. v. Wray (1970) 4 C.C.C. 1. “Unfairness” is the touchstone for the approach of the Judicial Committee to the exercise by the trial judge of his discretion: see Reg. v. Murphy [1965] N.I. 138 and Jeffrey v. Black [1978] Q.B. 490.

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Committee should on appeal give general guidance as to its proper exercise, The judge should take into account the probative value of the evidence, the interests of justice, the conduct of the police and the gravity of the offence. A balance must be struck between the interests of the prosecution and those of the defendant. On wrongful refusal by the trial judge to uphold a submission of no case to answer: see Rex v. Power [1919] 1 K.B. 572; Reg. v. Abbott [1955] 2 Q.B. 497 and Reg. v. Garside (1967) 52 Cr.App.R. 85.

Fletcher-Cooke Q.C. in reply. Any difficulties or unfairness which might result if the prosecution cannot put the question “Is it true?” on the voir dire are outweighed by considerations of public policy. If the question may be asked defendants will be deterred from giving evidence on the voir dire. It is important that they should not be inhibited because otherwise statements obtained by torture or threats might not be excluded as they should. It is an important principle of justice that the safety of a potential defendant should not be endangered in the hands of the police. It is a rule of law and not a matter for the discretion of the court that the question should not be put. It would be sufficient for the present defendant were the principle to be that unless a defendant volunteers on the voir dire that the statement is false the question should not be put. But it is submitted that the principle is wider. The truth of a statement is irrelevant to its voluntariness and it follows that the question should not be put in any circumstances on the voir dire.

Cur. adv. vult.

December 20. The judgment of the majority of their Lordships was delivered by LORD EDMUND-DAVIES.

This is an appeal by special leave granted by this Board from a judgment of the Court of Appeal of Hong Kong, dismissing the appeal of the defendant, Wong Kam-ming, against his conviction in October 1976 of the murder by the Supreme Court (Commissioner Garcia and a jury). The indictment charged the defendant and five other males upon counts of murdering one man and of maliciously wounding two others. The case for the Crown was that the accused men were part of a gang who went to a massage parlour in Kowloon and there fatally attacked the manager and wounded others in retaliation for an earlier attack on one of their number. Four of the accused were acquitted on all charges, while the other two (including the defendant) were convicted on each.

When the trial opened, the only evidence implicating the defendant consisted of a signed statement which he had given to the police. In this he admitted being one of those present in the massage parlour, that at one stage he had a knife in his hand, and that he had “chopped” one of those present. Defending counsel having intimated to the court that he challenged the admissibility of this statement on the ground that it was not voluntary, before the Crown opened its case the judge (in the absence of the jury) proceeded to deal with the issue of admissibility on the voir dire. After two police witnesses had testified to its making, the defendant gave evidence that he was never cautioned, that he was questioned at length

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while in custody, that he was grabbed by the shirt and shaken, that an inducement was offered that if he confessed his “sworn brother” would not be arrested, and that he had been forced to copy out and sign a statement drafted by the police. Under cross-examination he was asked a series of questions based on the detailed contents of the statement, and directed at establishing its truth. At this stage it is sufficient to say that, at the conclusion of the voir dire, the trial judge excluded the statement.

This ruling placed the Crown in dire difficulty, for it is common ground that without it they could not establish even that the defendant was present in the massage parlour at any material time. Finding themselves in that situation. they resorted to a course of action which none of their Lordships had hitherto ever heard of. Prosecuting counsel indicated to the trial judge (in the absence of the jury) that he proposed to establish, by reference to what had transpired in the voir dire, that the defendant had:

“… in circumstances where there is no question of involuntariness, admitted he was present and involved in the incident with which we are concerned.”

As authority for submitting that he should be allowed to prove such admission by calling the shorthand writer present during the voir dire he cited Reg. v. Wright [1969] S.A.S.R. 256, to which reference must later be made. Defending counsel’s objection was overruled, the trial judge holding that Reg. v. Wright was good law, and expressly refusing to exercise in favour of the defendant any discretion he might have to exclude the proffered new evidence. Two shorthand writers were then called to produce extracts from their transcripts of what the defendant had said during the voir dire, and this despite a renewed objection by defending counsel. A submission of “no case” was likewise overruled, the trial judge saying: “The main point here is presence at the scene at the relevant time.” Defending counsel thereupon called the defendant. Following his evidence in chief, he was closely cross-examined by reference to the shorthand transcript of what he had said on the voir dire, prosecuting counsel repeatedly pointing out discrepancies and observing at one stage: “That is extraordinarily different from the evidence you have given thistime.” And in the course of summing-up the judge told the jury that the defendant:

“… in certain proceedings held on August 25 and 26 this year gave answers to certain questions put to him in cross-examination by … Crown counsel, and such answers indicate that he was present in the premises of the [massage] parlour on the night of December 28, 1975. A copy of those questions and answers is also in your hands.”

Following upon these proceedings which, it will be seen, had taken several unusual turns, the jury, as already indicated, convicted the defendant upon all three charges, and he was sentenced to death on the murder charge. The conduct of the trial has been attacked in several respects, and these were conveniently summarised by counsel for the defendant in framing the following questions. 1. During the cross-examination of a defendant in the voir dire as to the admissibility of his challenged

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statement, may questions be put as to its truth? 2. If “Yes,” has the court a discretion to exclude such cross-examination, and (if so) was it properly exercised in the present case? 3. Where, although the confession is held inadmissible, the answers to questions 1 and 2 are nevertheless in favour of the Crown, is the prosecution permitted, on resumption of the trial of the main issue, to adduce evidence of what the defendant said during the voir dire? 4. If “Yes,” is there a discretion to exclude such evidence, and (if so) was it properly exercised here? 5. Even although it be held that the answer to question 3 is “No,” may the defendant nevertheless be cross-examined upon what he said during the voir dire? Their Lordships proceed to consider these questions.

Questions 1 and 2: relevance of truth of extra-judicial statements

In Rex v. Hammond [1941] 3 All E.R. 318 prosecuting counsel was held entitled to ask the accused, when cross-examining him during the voir dire, whether a police statement which the accused alleged had been extorted by gross maltreatment was in fact true, and elicited the answer that it was. Upholding the propriety of putting the question, Humphreys J. said in the Court of Appeal, at p. 321:

“In our view, [the question] clearly was not inadmissible. It was a perfectly natural question to put to a person, and it was relevant to the issue of whether the story which he was then telling of being attacked and ill-used by the police was true or false… it surely must be admissible, and in our view it is admissible, because it went to the credit of the person who was giving evidence. If a man says, ‘I was forced to tell the story. I was made to say this, that and the other,’ it must be relevant to know whether he was made to tell the truth, or whether he was made to say a number of things which were untrue. In other words, in our view, the contents of the statement which he admittedly made and signed were relevant to the question of how he came to make and sign that statement, and, therefore, the questions which were put were properly put.”

Although much criticised, that decision has frequently been followed in England and Wales and in many other jurisdictions, though it would serve little purpose to refer to more than a few of the many decisions cited by counsel. Mention must, however, be made of De Clercq v. The Queen(1968) 70 D.L.R. (2d) 530, a majority decision of the Supreme Court of Canada following Rex v. Hammond, where Martland J. said, at p. 537:

“… it does not follow that the truth or falsity of the statement must be irrelevant… An accused person, who alleged that he had been forced to admit responsibility for a crime committed by another, could properly testify that the statement obtained from him was false. Similarly, where the judge conducting the voir dire was in some doubt on the evidence as to whether the accused had willingly made a statement, or whether, as he contended, he had done so because of pressure exerted by a person in authority, the admitted truth or the alleged falsity of the statement could be a relevant factor in deciding

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whether or not he would accept the evidence of the accused regarding such pressure.”

Their Lordships were told by counsel that in England and Wales it has become common practice for prosecuting counsel to ask the defendant in the voir dire whether his challenged statement was in fact true. It is difficult to understand why this practice is permitted, and impossible to justify it by claiming that in some unspecified way it goes to “credit.” As McMullin J. said in his dissenting judgment in the instant case:

“… I cannot see that the answer to this question has any material relevance even to the issue of credibility. Where the answer to the question ‘Is this confession the truth?’ is ‘No’ the inquiry is no further advanced. The credibility of the defendant in relation to the alleged improprieties can scarcely be enhanced or impaired by an answer which favours his own interests in opposing the admission of the statement. On its own, demeanour apart, it is neutral.”

The cogency of these observations may be respectfully contrasted with those of Huggins J.A. who said, in delivering the majority judgment:

“… although questions may be put to the defendant as to the truth of his extra-judicial confession that does not make the truth or falsehood of that confession relevant to the issue of voluntariness: what is relevant – because it goes to the credibility of the defendant – is that the defendant asserts that the extra-judicial confession is true or false.”

But the basis of this assertion is unclear. If the defendant denies the truth of the confession or some self-incriminating admission contained in it, the question whether his denial is itself true or false cannot be ascertained until after the voir dire is over and the defendant’s guilt or innocence has been determined by the jury – an issue which the judge has no jurisdiction to decide. If, on the other hand, the defendant made a self-incriminating admission that the statement is true, then, as one critic has expressed it:

“If the confession is true this presumably shows that the accused tends to tell the truth, which suggests that he is telling the truth in saying the police were violent.-” (Heydon, Cases and Materials on Evidence (1975), p. 181.)

The sole object of the voir dire was to determine the voluntariness of the alleged confession in accordance with principles long established by such cases as Ibrahim v. The King [1914] A.C. 599. This was emphasised by this Board in Chan Wei Keung v. The Queen [1967] 2 A.C. 160, while the startling consequences of adopting the Hammond approach were well illustrated in the Canadian case of Reg. v. Hnedish (1958) 26 W.W.R. 685, 688, where Hall C.J. said:

“Having regard to all the implications involved in accepting the full impact of the Hammond decision which can, I think, be summarised by saying that regardless of how much physical or mental torture or abuse has been inflicted on an accused to coerce him into telling what is true, the confession is admitted because it is in fact true

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regardless of how it was obtained, I cannot believe that the Hammond decision does reflect the final judicial reasoning of the English courts … I do not see how under the guise of ‘credibility’ the court can transmute what is initially an inquiry as to the ‘admissibility’ of the confession into an inquisition of an accused. That would be repugnant to our accepted standards and principles of justice; it would invite and encourage brutality in the handling of persons suspected of having committed offences.”

It is right to point out that counsel for the Crown did not seek to submit that the prosecution could in every case properly cross-examine the defendant during the voir dire regarding the truth of his challenged statement. Indeed, he went so far as to concede that in many cases it would be wrong to do anything of the sort. But he was unable to formulate an acceptable test of its propriety, and their Lordships have been driven to the conclusion that none exists. In other words, in their Lordships’ view, Rex v. Hammond [1941] 3 All E.R. 318 was wrongly decided, and any decisions in Hong Kong which purported to follow it should be treated as overruled. The answer to question 1 is therefore “No,” and it follows that question 2 does not fall to be considered.

Questions 3 and 4

Their Lordships turn to questions 3 and 4. As part of its case on the main issue, may the prosecution lead evidence regarding the testimony given by the defendant on the voir dire? As already related, the trial judge originally thought that this question required a negative answer, but he was led to change his mind by the decision in Reg. v. Wright [1969] S.A.S.R. 256, where the Supreme Court of South Australia held that the Crown was entitled to lead such evidence, subject to the discretion of the trial judge to disallow it. But the weight of judicial authority is against such a conclusion. The earliest relevant decision appears to be that of the Federal Supreme Court of Southern Rhodesia in Chitambala v. The Queen [1961] R. & N. 166, where Clayden A.C.J. said at pp. 169-170:

“In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement, or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him… To me it seems clear that deprivation of rights in this manner, and the changing of a trial of admissibility into a full investigation of the merits, cannot be part of a fair criminal trial.”

This decision was followed in Hong Kong in Li Kim-hung v. The Queen [1969] H.K.L.R. 84 and in Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319. In the latter McMullin J. (who dissented in the instant case) said, in giving judgment of the Full Court. at p. 328:

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“… what the accused said on the voir dire may not be used as substantive evidence against him or his co-accused…. In this respect evidence on the voir dire is distinguishable from an extra-judicial confession and the basis for the distinction lies in the accused’s right to remain silent upon the trial of the general issue even though he has elected to give evidence on the voir dire.”

Yet in the instant appeal counsel for the Crown felt constrained to submit that, even were the trial judge to exclude a confession on the ground that torture had been used to extort it, any damaging statements made by the defendant on the voir dire could nevertheless properly be adduced as part of the prosecution’s case. Boldness could go no further.

Fortunately for justice, their Lordships have concluded that, where the confession has been excluded, the argument against ever admitting such evidence as part of the Crown case must prevail. But what if the confession is held admissible? In such circumstances, it is unlikely that the prosecution will need to do more than rely upon the confession itself. Nevertheless, in principle should they be prevented from proving in addition any admission made by the defendant on the voir dire? This question has exercised their Lordships a great deal, but even in the circumstances predicated it is preferable to maintain a clear distinction between the issue of voluntariness, which is alone relevant to the voir dire, and the issue of guilt falling to be decided in the main trial. To blur this distinction can lead, as has already been shown, to unfortunate consequences, and their Lordships have therefore concluded that the same exclusion of evidence regarding the voir dire proceedings from the main trial must be observed, regardless of whether the challenged confession be excluded or admitted. It follows that question 3 must be answered in the negative, and question 4 accordingly does not arise.

Question 5

Question 5 remains for consideration by their Lordships. Notwithstanding the answer to question 3, in the event of the defendant giving evidence in the main trial, may he be cross-examined in respect of statements made by him during the voir dire? In the instant case the majority of the court held that he could, and McMullin J. (who dissented) had earlier been of the same view, having said in Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319, 328:

“The only way in which evidence of an admission made by the accused on the voir dire may be adduced in evidence is by way of rebuttal if he gives evidence on the general issue and if that evidence is inconsistent with what he has said on the voir dire… we cannot see any warrant for the contention… that everything which transpires in the course of a voir dire is to be regarded as having acquired an indefeasible immunity from all further resort for any purpose whatsoever.”

The problem is best approached in stages. In Rex v. Treacy [1944] 2 All E.R. 229, where the defendant’s answers under police interrogation were held inadmissible, it was held that he could not be cross-examined to

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elicit that he had in fact given those answers, Humphreys J. saying. at p. 236:

“In our view, a statement made by a prisoner under arrest is either admissible or it is not admissible. If it is admissible, the proper course for the prosecution is to prove it… If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination.”

In their Lordships’ judgment, Rex v. Treacy was undoubtedly correct in prohibiting cross-examination as to the contents of confessions which the court has ruled inadmissible. But what if during the voir dire the accused has made self-incriminating statements not strictly related to the confession itself but which nevertheless have relevance to the issue of guilt or innocence of the charge preferred? May the accused be cross-examined so as to elicit those matters? In the light of their Lordships’ earlier conclusion that the Crown may not adduce as part of its case evidence of what the accused said during a voir dire culminating in the exclusion of an impugned confession, can a different approach here be permitted from that condemned in Rex v. Treacy? Subject to what was said as to the court’s discretion to exclude it in proper circumstances, counsel for the Crown submitted that it can be, citing in support section 13 of the Hong Kong Evidence Ordinance (c. 8), which was based on the familiar provision in section 4 of the Criminal Procedure Act 1865 of the United Kingdom, relating to the confrontation of a witness with his previous inconsistent statements. But these statutory provisions have no relevance if the earlier statements cannot be put in evidence. And, having already concluded that the voir dire statements of the defendant are not admissible during the presentation of the prosecution’s case, their Lordships find it impossible in principle to distinguish between such cross-examination of the defendant on the basis of the voir dire as was permitted in the instant case by the trial judge and upheld by the majority of the Court of Appeal and that cross-examination based on the contents of an excluded confession which, it is common ground, was rightly condemned in Rex v. Treacy [1944] 2 All E.R. 229.

But what if the voir dire resulted in the impugned confession being admitted, and the defendant later elects to give evidence? If he then testifies to matters relating, for example, to the reliabilityof the confession (as opposed to its voluntariness, which ex hypothesi, is no longer in issue) and in so doing gives answers which are markedly different from his testimony given during the voir dire may he be cross-examined so as to establish that at the earlier stage of the trial he had told a different story? Great injustice could well result from the exclusion of such cross-examination, and their Lordships can see no justification in legal principle or on any other ground which renders it impermissible. As has already been observed, a defendant seeking to challenge the admissibility of a confession may for all practical purposes be obliged to testify in the voir dire if his challenge is to have any chance of succeeding, and his evidence is then (or certainly should be) restricted strictly to the issue of admissibility of the

[1980] A.C. 247 Page 260

confession. But the situation is quite different where, the confession having been admitted despite his challenge, the defendant later elects to give evidence during the main trial and, in doing so, departs materially from the testimony he gave in the voir dire. Having so chosen to testify, why should the discrepancies not be elicited and demonstrated by cross-examination? In their Lordships’ view, his earlier statements made in the voir dire provide as acceptable a basis for his cross-examination to that end as any other earlier statements made by him – including, of course, his confession which, though challenged, had been ruled admissible. Indeed, for such purpose and in such circumstances, his voir dire statements stand on no different basis than, for example, the sworn testimony given by a defendant in a previous trial where the jury had disagreed. No doubt the trial judge has a discretion and, indeed, a duty to ensure that the right of the prosecution to cross-examine or rebut is not used in a manner unfair or oppressive to the defendant and no doubt the judge is under an obligation to see to it that any statutory provisions bearing on the situation (such as those earlier referred to) are strictly complied with. But, subject thereto, their Lordships hold that cross-examination in the circumstances predicated which is directed to testing the credibility of the defendant by establishing the inconsistencies in his evidence is wholly permissible.

In the instant case, however, the challenged confession was excluded. It therefore follows that in the judgment of their Lordships no less than three substantial irregularities occurred in the trial: (1) in the voir dire the defendant was cross-examined with a view to establishing that his extra-judicial statement was true; (2) in the trial proper, the Crown was permitted to call as part of its case evidence regarding answers given by the defendant during the voir dire; and (3) the defendant was permitted to be cross-examined so as to demonstrate that what he had said in chief was inconsistent with his statement in the voir dire. As a result, evidence was wrongly placed before the jury that the defendant was one of those present in the massage parlour at the material time and that he had then been in possession of a weapon. But for that evidence, it is common ground that the submission of “no case” made by the defending counsel must have succeeded.

It follows that their Lordships will humbly advise Her Majesty that this appeal should be allowed and the conviction quashed.

LORD HAILSHAM OF ST. MARYLEBONE delivered the following dissenting judgment.

I regret that for the reasons which follow there is a substantial portion of the advice of the majority in this case from which I must respectfully record my dissent.

I wish to begin, however, by making it plain that I entirely endorse the result proposed. This is because I entirely agree with the proposed answer to the third of the questions posed by counsel for the defendant and referred to in the advice of the majority, and this is sufficient to dispose of the whole appeal. I also agree with both parts of the proposed answer to the fifth question. Once a statement has been excluded I consider that, to adapt the words of Humphreys J. in Rex v. Treacy

[1980] A.C. 247 Page 261

[1944] 2 All E.R. 229, nothing more should be heard of the voir dire unless it gives rise to a prosecution for perjury.

I have stated elsewhere (Director of Public Prosecutions v. Ping Lin [1976] A.C. 574) that the rule, common to the law of Hong Kong and that of England, relating to the admissibility of extra-judicial confessions is in many ways unsatisfactory, but any civilised system of criminal juris-prudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. For this reason it is necessary that the defendant should be able and feel free either by his own testimony or by other means to challenge the voluntary character of the tendered statement. If, as happened in the instant appeal, the prosecution were to be permitted to introduce into the trial the evidence of the defendant given in the course of the voir dire when the statement to which it relates has been excluded whether in order to supplement the evidence otherwise available as part of the prosecution case, or by way of cross-examination of the defendant, the important principles of public policy to which I have referred would certainly become eroded, possibly even to vanishing point.

I also agree with the opinion of the majority that when and if the statement has been admitted as voluntary and the prosecution attempt to cross-examine a defendant on discrepancies between his sworn testimony on the voir dire and his evidence on the general issue at the trial, rather different considerations apply. By the time that evidence is given the statement will have been admitted on the ground that the prosecution has succeeded in establishing to the satisfaction of the judge beyond reasonable doubt that it was properly obtained, and the whole evidence relating to the statement will have to be rehearsed once more, this time in front of the jury (where there is one) in order that they may form a conclusion not as to its admissibility but as to the reliability of the admissions made. It seems to me that in those circumstances the statements on oath by the defendant on the voir dire as material for cross-examination do not, from the point of view of public policy, stand in any other situation than any other statements made by him, including the statement which has been admitted. For this purpose the true analogy is the position of his sworn testimony in a previous trial where the jury have disagreed. No doubt the trial judge has a discretion to see that the right of the prosecution to cross-examine or rebut is not used in a manner unfair or oppressive to the defendant, and no doubt the judge is under a strict obligation to see that any statutory provisions (for instance those in the Criminal Evidence Act 1898 or its Hong Kong equivalent) are rigorously complied with. But, in my view, once the substantive

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statement is admitted on the voir dire, the fewer the artificial rules limiting the admissibility of evidence which may be logically probative the better. I therefore agree with both parts of the advice tendered by the majority to the fifth of the questions propounded by counsel in argument.

The reservations I feel about the opinion of the majority in this case are therefore confined to the views they express in relation to questions (1) and (2). In order to avoid prejudice to the defendant the voir dire normally takes place in the absence of a jury. It is therefore a trial on an issue of fact before a judge alone. It is open to the defendant (presumably under the provisions of the Criminal Evidence Act 1898 or its Hong Kong equivalent) to give evidence and there are limits imposed by that Act or the equivalent Ordinance on what may be asked him in cross-examination. Subject to these limitations, and to any other general rules of evidence (such as those relating to hearsay) it seems to me that the only general limitations on what may be asked or tendered ought to be relevance to the issue to be tried, as in any other case in which an issue of fact is to be tried by a judge alone, and as to this, subject to appeal, the judge is himself the arbiter on the same principles as in any other case in which he is the judge of fact. It appears to be the opinion of the majority that it is possible to say a priori that in no circumstances is the truth or falsity of the alleged confession relevant to the question at issue on the voir dire or admissible as to credibility of either the prosecution or defence witnesses. I disagree. It is common ground that the question at issue on the voir dire is the voluntary character of the statement. This is the factum probandum, and, since the burden is on the prosecution, the prosecution evidence is taken before that of the defence. The voir dire may take place, as in the instant appeal, at the beginning of the trial, when all that is known of the facts must be derived from the depositions, or from counsel’s opening. More frequently, however, the voir dire takes place at a later stage in the trial when the prosecution tenders the evidence, usually of the police, in support of the voluntary character of the statement. By that time many facts are known and much of the evidence has been heard. I can conceive of many cases in which it is of the essence of the defence case on the voir dire that the confession, whose voluntary character is in issue, is in whole or part untrue, and, it may be, contrary to admitted fact. If the defence can succeed in establishing this or even raising a serious question about it either as the result of cross-examining the prosecution witnesses, or by evidence led by the defence itself, serious doubt can be raised as to the voluntary nature of the confession. How can it be said, counsel for the defence might wish to argue, that the defendant can have provided so much inaccurate information to his own detriment, unless he was forced to do so by some improper means? If the defence can be allowed to make the point, which seems to me to be a valid one, it must be open to the prosecution to cross-examine upon it when it is the turn of the defence witnesses to be scrutinised. It must be remembered that it is frequently the case that the alleged confession is not always, as in the instant appeal, a written statement copied out in the writing of the defendant. though the point can arise even in such a case. Often, perhaps more often, the statement in question may have been oral,

[1980] A.C. 247 Page 263

and the case on the voir dire for the defence may be that it was obtained only after a long period in custody, perhaps without rest, food, or drink, as the result of a long and harassing interrogation at which either no caution was administered or improper pressures were brought to bear. In such circumstances it seems to me inevitable that the truth or otherwise of what is alleged to have been said, and what was actually said in response to what questions or the accuracy of what is alleged to have been copied down in the police notebooks (and the questions though logically separate are often difficult to separate in practice) must be investigated in order to establish, or cast doubt upon, the voluntary character of the confession. I am the first to deprecate what counsel for the Crown, who has a wide experience of current practice at the Central Criminal Court and elsewhere, admitted without justifying, to be a growing habit of counsel for the prosecution, namely to begin his cross-examination on the voir dire in every case with a question directed to the truth or otherwise of the confession. Though I tend to regard the use made in the advice of the majority of the passage in Heydon, Cases and Materials on Evidence (1975), p. 181, as an example of the fallacy known as ignorantia elenchi, I agree with them that it is no answer when the admissibility of an alleged confession has been challenged on the ground that it was improperly obtained, that it was a confession of the truth and not the reverse. But the counsel for the prosecution may be entitled to know the exact limits of the case he has to meet. Has he to answer the suggestion that the confession is more likely to be involuntary because it was so contrary to fact? Can he himself rely on the argument that it is inconceivable that a detailed albeit admittedly truthful confession of a really serious crime, as for instance murder, was elicited as the result of a relatively trivial inducement such for instance as being allowed to see a close relative for a short time? I am wholly unable to see that these are not questions and arguments which can in particular cases have a bearing on the voluntary or involuntary character of statements tendered in evidence by the prosecution and therefore, in suitable cases, investigated at the voir dire. Disputes not infrequently occur on the voir dire not merely as to the facta probanda but as to what was said and at what stage (e.g. before or after a caution) and though a voir dire is not required at all when the defence case is that no statement of any sort was made, the more usual situation at the voir dire is that what is in dispute between the parties is not merely whether what was said was voluntary (the factum probandum) on the voir dire or whether anything was said (a question for the jury, and not the judge) but exactly what was said and in what circumstances and at what point of time, and as the result of what inducement if any (facta probantia or reprobantia. but not probanda). For these questions, which must be investigated before a judge admits a statement on the voir dire, it seems to me impossible to say a priori that every question of truth or falsity of the statements must be excluded, and although I agree that in the ultimate resort the questions will be for the jury if the statement is admitted, the judge may often be in a position when he is compelled to form an opinion as to the relative reliability of rival versions of what took place in order to form an opinion as to whether what was said was said voluntarily or as the consequence of inducement.

[1980] A.C. 247 Page 264

An example of another kind is where the prosecution case is that a statement was originally volunteered orally and subsequently signed voluntarily by the accused, and the case for the accused is that the statement was concocted by the police, written down by the police and then signed by the accused under improper pressures. In this case the prosecution may wish to say that details in the alleged concoction could only have come from the accused and were accurate facts not otherwise known at the time, and the accused may wish to point to inaccuracies in the statement as pointing to concoctions. In each case, although not directly affecting the allegation of signature under pressure, the accuracy or otherwise of the contents of the confession must be open to some inquiry on the voir dire. Obviously the judge must be allowed a discretion in the matter. He must not permit counsel to pursue the matter of the truth or falsity of items in a confession for an ulterior reason or in an oppressive manner, or at undue length, but I am not able to say a priori that all must necessarily be irrelevant. I am somewhat fortified in this view by the reflection that if the voir dire is decided in favour of the prosecution, almost all of the evidence given is repeated at the trial of the general issue, where the factum probandum is guilt or innocence and not the voluntary or involuntary character of the statement admitted. Contrary, I believe, to what is suggested at one point in the majority opinion, the jury are absolutely free to form their own view of the circumstances in which the statement was obtained irrespective of the opinion of the judge (as to which in theory at least they are wholly ignorant) in order to form their own opinion as to the facts relied on by the prosecution or the defence on the general issue. Though the judge has found the confession to be voluntary, and therefore admissible, the jury is perfectly entitled to act on the contrary belief and therefore to disregard it as unreliable. It is of course not logically necessary that the converse of this position is also true, namely, that the judge can be assisted by his view of the truth or otherwise of the material contained in an alleged statement in order to determine whether the statement is wholly voluntary or not. In many cases no doubt (Rex v. Hammond [1941] 3 All E.R. 318 was one), the judge will be wholly uninfluenced in his decision by whether the confession contained accurate or inaccurate material and in such a case either the question is improper, or the answer irrelevant. But I am not prepared to say a priori that in all cases it must always be so. In my opinion questions of relevance or otherwise can only seldom be decided a priori, as in my view the opinion of the majority purports to do, but are far better left to the logical faculties of the trial judge in the context of the concrete case which he has to try. For these reasons I would give different answers to questions (1) and (2) to those proposed by the majority. I agree with their answers to questions (3) and (4) and to both aspects of (5) and that the appeal must in consequence be allowed.

Solicitors: Hatchett, Jones & Kidgell; Charles Russell & Co.

T. J. M

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