Human Rights in Hong Kong Criminal Trials
2 HONG KONG OFFERS a unique perspective and makes a distinctive contribution to the dialogue on human rights and criminal evidence. For more than 150 years, Hong Kong was a British colony, with final appeals heard by the Judicial Committee of the Privy Council in London. Criminal trials in the colony were modelled on those in English courts. On 1 July 1997, Hong Kong became the only common law jurisdiction under Chinese sovereignty. Colonial appeals to London were abolished, and Hong Kong established its own Court of Final Appeal (CFA) with a mechanism that allowed visiting foreign judges to hear cases as Hong Kong judges. This chapter explores the evolution and development of human rights standards in Hong Kong criminal trials post-1997. It will be shown that the Privy Council’s legacy continues to live on in the evolving jurisprudence of the CFA, which has assumed the mantle of protector of defendants’ rights and interests. Far from rolling back any of the previous human rights standards, the CFA has extended them to other areas by employing traditional common law discourse and initiating new constitutional developments, though its general approach in relation to remedies for constitutional breaches has been pragmatic and cautious. Even before the handover, defendants could invoke constitutional rights in trial proceedings. The Hong Kong Bill of Rights Ordinance (HKBORO) 1991 contained a set of rights that were taken almost verbatim from the International Covenant on Civil and Political Rights (ICCPR).2 The HKBORO was introduced by the British to reassure local inhabitants following the 1989 Beijing massacre in Tiananmen Square. When the new constitutional order began there was a pervasive fear of Chinese intervention and erosion of rights and freedoms. However, China allowed the Hong Kong Bill of Rights (HKBOR)3 to continue after 1997, even though the ICCPR was and continues to be non-binding on the Chinese mainland.4 Hong Kong’s post-1997 constitution, the Basic Law, provided for a rich set of rights, in addition to those in the HKBOR.5 It also established a local judiciary of final adjudication and promised to maintain the underlying principles and institutions for the administration of criminal justice which were inherited from the British.6 An additional post-1997 concern, namely the unknown quality and independence of a new cohort of local judicial officers (the main reason for having foreign judges on the final court), proved groundless in large part due to the leadership of the first Chief Justice, Andrew Li, who retired in August 2010. Hong Kong’s law of criminal evidence currently resembles English evidence law in the early 1980s. Hong Kong has not adopted a local version of the Police and Criminal Evidence Act 1984, or any of the statutory interventions that have since transformed criminal procedure in England and Wales.7 Unlike elsewhere, criminal justice issues have rarely been politicised in Hong Kong, which has yet to become fully democratic.8 In the absence of legislative erosion of rights, whether arising from political programmes, the demands of special interest groups or other social pressures, common law norms under the stewardship of judges continue to steer the direction of criminal trials. The post-9/11 anti-terrorism legislation enacted in Hong Kong was mild compared to that in many other jurisdictions.9 When Hong Kong tried to enact controversial national security legislation in 2003 it was ultimately shelved after large-scale public protests.10 Another telling illustration is Hong Kong’s rape shield legislation,11 which is still based on the Sexual Offences (Amendment) Act 1976 provisions that were superseded in England and Wales more than a decade ago. In Hong Kong, however, the original legislative scheme enacted in 1978 has not attracted any challenges or calls for reform, probably because it confers sufficient discretion on trial judges to balance the defendant’s right to make full answer and defence with the complainant’s right to privacy. In these social and political circumstances, human rights in the administration of criminal justice are safeguarded not so much through judicial activism and creative constitutional adjudication as by the absence of serious threats to fair trial rights due to political inertia. The next Section provides a brief overview of the Privy Council’s jurisprudence and impact in Hong Kong, before turning to consider more recent developments. Owing to the prohibitive cost and other barriers to access, the Privy Council decided only some 56 Hong Kong criminal appeals. About half of these cases concerned matters relating to evidence or trial procedure, and each case had the potential to shape and reinforce fundamental criminal justice values in the colony. The Privy Council’s Hong Kong criminal evidence decisions articulated legal principles, generally reflecting a humane and liberal approach to criminal justice, that continue to be cited throughout the common law world. These decisions defined the character of criminal trials in Hong Kong. One contributing factor shaping this approach may have been the large number of capital appeals in homicide cases heard by the Privy Council.12 Judgments in those days did not frame the issues in terms of a defendant’s ‘human rights’, at least not until after the passage of the HKBORO in 1991. They were mostly concerned with common law duties and principles, which, as we would say now, had inherent human rights content. The most important evidence jurisprudence from Hong Kong appeals was that on confession evidence. Sadly, the frequency of confession cases reflected an historical period when suspects in police custody complained bitterly, often for good reasons, about their treatment by the authorities.13 The most famous confession case to come from Hong Kong was Ibrahim, known throughout the common law world for Lord Sumner’s authoritative statement of the prosecution’s onus to prove the voluntariness of a confession ‘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’.14 Although Ibrahim was not a case of official misconduct, it made clear as early as 1914 that Hong Kong law would follow English criminal law in matters of criminal evidence.15 Many important legal principles that still contribute to the corpus of the common law of confessions derive from Hong Kong cases. In Wong Kam-ming the Privy Council confronted the novel situation of the prosecution—in a desperate attempt to save its case following the judge’s ruling to exclude a confession—seeking to adduce in the trial proper the voir dire testimony of the accused.16 Local courts were prepared to allow this but the Privy Council held that the accused should not be asked on the voir dire about the truth or falsity of his out-of-court statements, as this might result in improper self-incrimination.17 In addition, the accused’s voir dire testimony was declared to be inadmissible in the trial proper if the confession statement is excluded.18 The very last Hong Kong criminal case decided by the Privy Council in 1998 was also an important confession case favouring the interests of defendants.19 Their Lordships held that where there was evidence of possible involuntariness in the making of an oral admission, the trial judge had a duty to rule on voluntariness, and thus the admissibility of the statement, irrespective of whether the issue was raised by the accused or counsel.20 The decision overturned a practice in local courts to decline to rule on admissibility on the ground that the sole issue was the jury’s factual determination of whether or not the statement had been made.21 Another memorable case is Law Shing-huen which held that where oppression taints the admissibility of the defendant’s first statement, a second statement, even if given under caution, will only be admissible if the prosecution can establish beyond reasonable doubt that the oppression had dissipated when the statement was taken.22 In Li Shu-ling, the Privy Council imposed strict conditions on the admissibility of video-recorded re-enactment evidence involving the accused by requiring that such evidence should be created only with the accused’s informed and voluntary consent.23 But the high-water mark of protective confession case law was the quashing of the murder convictions in Lam Chi-ming.24 The Privy Council confirmed that physical or other derivative evidence corroborating the truth of a tainted confession statement could not make admissible an otherwise involuntary and inadmissible statement. This was because the rejection of an improperly obtained confession was not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.25 Lam Chi-ming was an illustration of the maxim that the ends do not justify the means irrespective of the seriousness of the offence charged. The Privy Council, however, did not always adopt the most protective course. The Hong Kong Full Court in Chan Wei Keung, having dismissed the murder appeal ex tempore, characteristically changed its mind by the time reasons were to be given.26 The majority concluded that it was necessary for the trial judge to direct the jury ‘that if they were not satisfied that [the statements] were voluntarily made they should give them no weight at all and disregard them’.27 The Privy Council disagreed, on the basis that such a direction would improperly invite the jury to consider an issue of admissibility which was for the judge alone to decide.28 Forty years later in 2007, the Privy Council said of Chan Wei Keung that it did not accord with the principle against self-incrimination and that it was ‘a false step in the development of the common law’.29 This volte face came as a result of the House of Lords’ majority decision in Mushtaq (which essentially followed the path taken by the Hong Kong Full Court in 1965).30 Hong Kong courts have yet to revisit the issue.31 Errors in directions on the burden and standard of proof were never treated lightly in Hong Kong appeals. In Chan Kau, Woolmington v DPP’s application in Hong Kong was confirmed in no uncertain terms: ‘it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits no exception save only in the case of insanity, which is not strictly a defence’.32 The Privy Council also made clear that if the evidence disclosed a possible defence, such as self-defence or provocation, the onus remained throughout ‘upon the prosecution to establish that the accused is guilty of the crime … and the onus is never upon the accused to establish’ these defences.33 In the drug trafficking case of Kwan Ping Bong the issue was whether the proviso34 ought to apply notwithstanding the trial judge’s reversal of the burden of proof on the knowledge element.35 Lord Diplock, disagreeing with the decision of the Court of Appeal, held that it could not apply as there was ‘no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged’.36 Consequently, a ‘misdirection as to the onus of proving an essential fact in issue at the trial seldom provides an appropriate case for the application of the proviso’.37 Similarly the Privy Council reversed the Court of Appeal’s application of the proviso in a murder case in which the trial judge’s summing up was seriously flawed, particularly in having ‘no clear statement to the jury that the onus of proof rested on the prosecution and that it was not for the accused to prove his innocence’.38 The Privy Council’s only HKBORO decision on criminal evidence concerned challenges to two offences containing ‘reverse onus’ clauses requiring proof of particular elements by the defence.39 In Lee Kwong-kut, the accused’s challenge to the charge of possessing property reasonably suspected of having been stolen or unlawfully obtained succeeded because the burden of proving an essential ingredient of the offence (failure to give a satisfactory account to the magistrate) had been unreasonably imposed on the defendant. In the companion case of Lo Chak-man, a parallel challenge failed because it was not unreasonable to require the defendant to establish absence of knowledge or suspicion when charged with a money-laundering offence predicated on reasonable grounds to believe that another person was a drug trafficker or had benefited from drug trafficking. Critical reaction to Lee Kwong-kut was mixed.40 On the one hand, the Privy Council was prepared to strike down criminal offences that impermissibly reversed the burden of proof. It also held that compliance with the presumption of innocence under the HKBORO turned on the substance of the provision and not its form, eg regardless of whether it was drafted as a legislative ‘defence’.41 On the other hand, Lord Woolf’s criticisms of the two-step approach to justification analysis under the Canadian Charter of Rights and Freedoms appeared to signal a closing of the mind to comparative law experience.42 The Privy Council preferred what appeared to be a less rigorous one-step approach providing limited guidance for application in future cases.43 According to Lord Woolf: [I]ssues involving the [HKBOR] should be approached with realism and good sense, and kept in proportion … [R]igid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime …44 Hong Kong’s resolve to combat police corruption during the 1970s and 80s produced numerous Privy Council appeals from corruption offence convictions. While their Lordships were well aware of the importance of Hong Kong’s struggle against corruption at that time, the Privy Council maintained its independence and kept the prosecution to the highest standards of criminal due process. In quashing the convictions in Tsang Ping-nam, the Board stated: [H]owever distasteful it may be to allow a self-confessed corrupt police officer to escape conviction for his gravely corrupt activities, it was wholly illegitimate for the Crown to seek to overcome their difficulties of proof by charging attempts to pervert the course of justice upon [inconsistent and unsupported alternative bases].45 In this case, the appellant police sergeant had resiled from his previous statements implicating fellow officers, thereby precipitating their acquittals. As no affirmative evidence existed to prove that Tsang had committed perjury or made false statements, it was illegitimate to charge him with attempting to pervert the course of justice without distinguishing between the mutually inconsistent theories that he was either lying in court or in his original police statements (but not on both occasions).46 The Privy Council also rejected the prosecution’s attempt on appeal to justify the conviction on an entirely new basis.47 More generally, fair trial interests were safeguarded by the Privy Council’s willingness to allow appeals where unduly prejudicial evidence had been admitted at trial or where there were serious errors in the trial judge’s conduct of the case. For example, in Chan Kwok-keung48 the trial judge had misdirected the jury that evidence of the defendant’s flight, by stowing away on a boat to Macau some 10 months after the offence in question, was capable of corroborating the evidence of an accomplice. The Privy Council allowed the appeal and quashed the accused’s conviction of murder. However, complaints of unfairness were considered in their context and without resort to formulaic reasoning. Thus, in Attorney General v Siu Yuk-shing49 the Board said that the risk of unfair prejudice flowing from evidence of the accused’s previous conviction was ‘of infinitely less significance’ in cases tried by a judge sitting alone without a jury. One area in which the Privy Council might have done more to protect the interests of defendants was in relation to the prosecution’s use of unsavoury witnesses, such as informants and accomplices. A practice had developed, and continues to flourish today, for the prosecution and law enforcement authorities to confer immunity on such witnesses to secure their testimony at trial. The Hong Kong courts were rightly wary of these self-serving witnesses. In Wong Muk Ping, the Court of Appeal thought it was necessary to direct the jury to consider whether a suspect witness’s credibility was ‘so bad’ that it should not be relied upon, even if corroborated.50 The Privy Council, however, deprecated this two-stage approach as it was unusual and even ‘dangerous’ to assess the credibility of evidence given by a witness in isolation from other evidence in the case.51 In Chan Wai-keung, the accused was charged with murder and had allegedly confessed to an informant, who was himself awaiting sentence on a serious drug trafficking offence by the time he testified at Chan’s murder trial.52 An immunity agreement implicitly promised a discounted sentence if the informant cooperated by giving testimony consistent with his previous police statements. To complicate matters the prosecutor in the murder trial then took the initiative to have the informant’s sentencing hearing adjourned for one month in order to secure his testimony before he was sentenced.53 Counsel for Chan argued before the Privy Council that to allow the informant to testify while awaiting sentence on an entirely unrelated matter was improper and abusive. Although critical of the prosecutor’s strategy, Lord Mustill, writing for the Board, said that it was neither unfair nor abusive for the court to receive the informant’s testimony, where the jury was made fully aware of the terms of the informant’s immunity arrangement and pending sentencing hearing, and where the informant had given his statements to the authorities prior to his own offending.54 As mentioned earlier, initial concerns over Chinese intervention affecting the quality or independence of the judiciary have not materialised, at least not during the tenure of the first Chief Justice. Appointments to the bench, mostly from amongst senior members of the local Bar, have been on merit. The appellate courts have remained independent and protective of rights, although they have been pragmatic and cautious at times. The CFA did not adopt Lee Kwong-kut’s attitude of shunning recourse to comparative law, while at the same time its constitutional jurisprudence has not allowed disputes to ‘get out of hand’.55 To stay on firm ground, constitutional ideas are typically borrowed or ‘migrated’ from other jurisdictions, particularly from the European Court of Human Rights (ECtHR), rather than being entirely novel innovations.56 In contrast to the Privy Council, the CFA’s primary role of addressing points of law of great and general importance has had to give way, at least in the short-term, to a large proportion of cases that called for the correction of errors in lower courts. Few would dispute that Hong Kong courts have exhibited strong judicial independence since 1997. This has occurred not only because the Basic Law makes independence a constitutional imperative, but also because both the Hong Kong and Chinese authorities have in practice refrained from interfering with the exercise of local judicial power.57 In contrast to the more closely watched issues of cross-border migration and political reform, the Chinese Government has generally shown little interest in what occurs in Hong Kong’s criminal courts (Falun Gong or politicised issues aside).58 Independence is perhaps best illustrated in the prosecution’s low, 40% success rate in final appeals. This figure must be understood in the context of a leave jurisdiction wholly controlled by the court that sees only a small percentage of convicted persons obtaining leave each year.59 The institutional mechanism allowing eminent foreign judges to sit as non-permanent judges (NPJs) of the CFA has been instrumental in ensuring judicial independence and leadership in many areas of the law.60 The Chief Justice has authority to choose one foreign judge to sit on each appeal.61 In the past decade-and-a-half a foreign judge has sat in more than 95% of all CFA appeals. Sir Anthony Mason, who has been an NPJ since 1997, stands out as the foreign judge who has contributed the most (both time and leadership) to the court’s jurisprudence, especially in criminal and constitutional law cases.62 Two cases at opposite ends of his tenure on the court illustrate his independence and concern for defendants’ rights. In Chim Hon Man, Sir Anthony, writing his very first Hong Kong judgment, quashed the conviction of a person charged with child sexual abuse offences.63 The prosecution’s use of a specimen count was rejected for failing to give the defendant sufficient notice of the allegations against him. This decision effectively ended the use of specimen counts in prosecuting sexual offences and set the Department of Justice on a policy mission to try to plug the law-enforcement gap perceived by some to have been created by the Court’s decision.64 Eleven years after Chim, Sir Anthony joined in a judgment that quashed Nancy Kissel’s conviction for the murder of her Merrill Lynch banker husband.65 The case attracted international attention, not only for its salacious details but also for the robust manner in which the final court reversed the Court of Appeal’s decision on the merits and refused to follow the appeal court judges’ decision to apply the proviso to condone any misdirection or procedural irregularity.66 The CFA ruled that the prosecution’s cross-examination of the defendant and the admission of prejudicial hearsay evidence had resulted in an irreparably unfair trial, precluding any application of the proviso. The CFA grants leave to appeal on certified points of law of great and general importance or where there may have been a substantial and grave injustice.67 In early cases, the CFA indicated that leave to appeal on the second limb would be granted only exceptionally, since the Court was not intended to function as a second venue for rehearing criminal appeals.68 However, a review of CFA practice from 1997 to 2010 reveals that the Court granted leave on the second limb in a significant proportion of cases.69 It has also widened the ambit of review in appeals from magistrates courts to allow for a rehearing of the evidence.70
Human Rights in Hong Kong Criminal Trials
INTRODUCTION
1. THE PRIVY COUNCIL’S LEGACY
(a) Law of Confessions
(b) Presumption of Innocence Taken Seriously
(c) Procedural Due Process and Fair Trials
2. JUDICIAL INDEPENDENCE IN CRIMINAL APPEALS POST-1997