c. Admissibility Procedure

c. Admissibility Procedure

To guarantee best practices, the prosecution and the court should be informed before the hearing if there is an objection to the admissibility of any evidence, including confessions. The trial judge should decide whether to use one of the following processes to evaluate admissibility based on the specifics of the case:

• Voir dire, a.k.a “trial within a trial”; or
• Alternative procedure

Voir Dire

It is customary in Hong Kong to conduct a voir dire prior to selecting the jury. Section 41(3) of the Criminal Procedure Ordinance also provides guidance in the procedure. It is theoretically possible to hold the voir dire after empanelling the jury, but prior to the prosecution’s opening statement. It might even be conducted during the trial, right before the confession evidence is presented by the prosecution. 

If the defence gives notice of its intention to object to the admissibility of the confession before the hearing, it will be improper for the prosecution to bring up the confession during the opening statement.

Normally, a voir dire is conducted without the jury present; however, for strategic purposes, the defendant may want to have the jurors present during the voir dire, although the issue of admissibility (being a question of law) remains to be decided by the judge. It would not be inappropriate for the prosecution to bring up the confession during the opening statement if the voir dire is conducted in front of the jury. Furthermore, the court may choose to call back a prosecution witness for additional questioning if the defendant brings up the voluntariness issue for the first time during testimony.

If the voir dire is conducted before the jury and the judge has doubts about the voluntariness of the confession, he should instruct the jury to disregard it and, if the confession is critical to the prosecution's case, order an acquittal at this point. On the other hand, if the judge is concerned that the jury would be unfairly swayed, he may choose not to clearly announce to the jury that he ruled that the confession was voluntary beyond a reasonable doubt.

If the voir dire is conducted in the absence of the jury and the confession is admitted, the jury should not be informed. However, if the defendant’s responses at trial change significantly from those at the voir dire, the prosecution may cross-examine the defendant about the differences.

Alternative Procedure

In a trial before a single judge without jury, it is clear that conducting a voir dire would result in redundant repetition of court procedures. This would be the case in both the District Court and the Magistrates Court. The same judicial officer would serve as both a factual and legal tribunal, assessing both the admissibility of evidence and the ultimate factual issue. It “makes no difference” whether the trial judge chooses to do a voir dire or another method. By using the alternative procedure, the trial judge determines:

• The Special Issue, viz, the admissibility of the evidence; and
• The General Issue, viz, the ultimate factual dispute.

By adopting the alternative procedure, the court can avoid conducting a separate “mini-trial” to determine a specific issue before proceeding with the general issue. Instead, both the prosecution and defence present their witnesses who testify on both the general and special issues. The defence has the opportunity to cross-examine the prosecution witnesses on both issues. Just before the prosecution concludes its case, the trial judge decides whether the defendant needs to provide a defence on the special issue. If necessary, the defendant can choose to present evidence and call defence witnesses. However, during this stage, the defendant and defence witnesses are only allowed to testify and be cross-examined on the special issue.

Once the alternative procedure hearing is complete, the judge will make a ruling on the special issue. It is important that this decision is made before hearing all the evidence, including the general issue. Following this determination, the trial will continue with the general issue, and the defendant and defence witnesses will only provide testimony and be cross-examined on the general issue for the remainder of the trial.