TNAG-0554-FCO40-649-Review-of-death-sentence-in-Hong-Kong-1975 — Page 165

9

It is

It has

that due weight cannot have been given to this factor.

certainly, in our view, one which merited express mention.

been held that where an inducement has once been held out the

prosecution must prove that any subsequent confession was not made

under the influence of that inducement. Counsel for the Crown

has emphasised that there was no finding that the earlier

statements were involuntary. While that is true it seems to us

that where the possibility of an inducement in the recent past

has not been negatived the prosecution must show that the effect

of any inducement there may have been has been dissipated. Indeed,

this may be more difficult than to negative an inducement the nature

of which is known, for the continuing effect of an inducement

depends in part upon the degree of inducement, in part upon the time which has elapsed since it was made and in part upon the

resistence of the individual defendant to that kind of inducement.

It follows that, where a judge has rejected one confession because

he was not satisfied that he knew the circumstances in which it

was taken, the degree of any inducement there may have been is not known and a longer time must be allowed before it can safely be said that any inducement there may have been must have dissipated. It is enough herc that even a very slight inducement might survive for more than 20 minutes and we are bound to say that we think the learned judge was not entitled to conclude that the answer of the first Applicant to the charge against him was voluntary. Counsel for the Crown has sought to support the decision of the learned judge by submitting that the judge was wrong to reject the three earlier statements once he disbelieved the allegation of the first Applicant. The answer to that is that the onus was on the prosecution to prove that each statement was voluntary and the fact that the first Applicant was disbelieved did not establish the voluntariness of the statement. If the answer was not proved to be voluntary it was not admissible and no question arises as to the exercise of any discretion to exclude it.

Would the jury undoubtedly have convicted the first Applicant if his confession had not been admitted? Mr. Bernacchi submits that they would not, because the only other evidence of substance was that of accomplices. We cannot, of course, say whether that is entirely correct. The learned judge directed the jury to treat MA Kam-yuen as an accomplice but he correctly left it to them to decide whether CHEUNG Chak-leung and KWAN Wai-on

Page 165Page 166