4. Confession

4. Confession

In general terms, a confession or admission refers to a statement made by a defendant that goes against their own interests. Confessions can be presented as oral or written evidence, or both. Admission can also be inferred from one’s conduct or demonstrated through actions.

Confessions hold significant evidential value in criminal trials as they are inherently self-incriminating statements, making them highly valuable as evidence. However, to prevent potential abuse by law enforcement officials, the common law has established strict rules. When subjected to intense interrogation, defendants may yield to pressure out of embarrassment, fear, or exhaustion. Therefore, it is crucial to provide law enforcement officers with appropriate guidelines to minimize the risk of obtaining inaccurate admissions.

Admission can take different forms, including formal admission based on admitted facts according to section 65C of the Criminal Procedure Ordinance, or a guilty plea made by verbally accepting the brief facts. It can also be an informal admission, such as an out-of-court statement.

Out-of-Court Statement

Regarding out-of-court admission, it can be presented in various forms, including:

• Testimony given by a law enforcement officer or other individuals that recount the defendant's oral evidence regarding the confession.
• Confession recorded in a police notebook, where a law enforcement officer documents what the defendant admitted at the time of arrest.
• Documentation of an interview, where a law enforcement officer records in a statement the exact words spoken by the defendant.
• A video-recorded interview capturing both the defendant's spoken words and visual representation of the confession.

Apology

It is important to note that apology does not automatically result in an admissible confession. Nonetheless, an apology could be interpreted along with the defendant’s conduct and might be regarded as an unequivocal confession. 

In the case of Lau Ka Yee v HKSAR (2004) 7 HKCFAR 510, a priest apologized to the victim, an altar boy, during a meeting. The circumstances, including the defendant's active pursuit of the meeting, the content of the apology with reference to being sexually abused in the past, and the defendant's emotional breakdown, led the court to conclude that the apology served as an unequivocal confession.

Confession by conduct

A confession can be conveyed not only through spoken words but also through demonstration or gesture. The principle is that a confession made through demonstration or gesture can have the same damaging effect on the defendant as a verbal confession. However, for the jury to accept the meaning behind such a demonstration or gesture, they must find that it is the only logical inference that can be drawn from it. For example, if the accused has confessed orally and subsequently guided the police to a specific location, indicating where the murder weapon could be discovered, this could also be regarded as confession by conduct. 

Confession by re-enactment

A confession can be made through the defendant’s re-enactment of the crime. This re-enactment can be recorded on video, either alongside an oral confession or as a separate recording at the actual crime scene. Additionally, the re-enactment can be performed by actors other than the defendant. For the admissibility of such re-enactments, certain procedural safeguards must be followed. The defendant must be properly warned that participation in the re-enactment is optional, and they should have the opportunity to provide comments on their own re-enactment and the recorded video as soon as possible after its completion. Re-enactments are considered appropriate when they can effectively demonstrate the essential elements of the crime. For example, a defendant can demonstrate how they strangled the victim with their hands and then tied a rope around the victim’s neck.