The Procedure Governing the Admissibility of Confession Statements in Criminal Proceedings
(HKLRC Report)
The law provides that before the prosecution can introduce evidence of an accused's confession statement to a criminal trial, they must satisfy the court "beyond reasonable doubt" that the statement was given voluntarily. Where the case is being heard before a jury, the judge will usually exclude the jury while he hears evidence as to the way in which the statement was obtained in what is called a "voir dire", or "trial within a trial." Only when the judge rules that the confession was made voluntarily will the confession be put before the jury for their consideration as part of the evidence against the accused.
The principal reasons for excluding the jury from the "voir dire' are, first, that the question of admissibility is a matter of law for the judge alone to decide and, second, that there a risk that members of the jury might be unable to exclude from their minds details of a confession once they have heard it, even if it is subsequently ruled inadmissible.
This report, published in July 2000, examined alternatives to the present procedure. Concerns had been voiced that much court time is spent by the trial judge sitting alone hearing the witnesses in a "voir dire" to determine admissibility, only to have the same witnesses called over again before the jury to consider the question of evidential weight once the confession is admitted. An alternative approach would save both court time and costs.
The Commission's report concluded that the "voir dire" should be retained, on the grounds that it provides an important protection to the rights of the accused, and acts as a disincentive to abuse by members of the law enforcement agencies. The report nevertheless made a number of other suggestions for reform, one of which was to encourage greater use of video recording of interviews.
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| Report (PDF) (MS Word) |