The top court yesterday laid down guidelines for judges considering whether confessions obtained during undercover operations can fairly be used as evidence.
Two police officers acquitted of corruption charges in a lower court were ordered to stand trial again by the Court of Final Appeal, which set out the guidelines for the first time. The five judges unanimously allowed the appeal by the Secretary for Justice and quashed the acquittal made by the then District Court Judge David Gill in June 1998.
Chief Justice Andrew Li Kwok-nang said the judge in the new trial would have to consider all facts - including the transcripts of the taped confessions - according to the guidelines when considering whether to exclude confessions from the two officers.
Inspector Lam Tat-ming, 45, and Sergeant Ng Sai-hing, 43, allegedly received $500,000 in bribes from an informer and triad member identified as 'Ngau Wing' in 1992 and 1993 to protect a decorating business.
They were said to have confessed to having taken bribes during the undercover operation with assistance from 'Ngau Wing' and another Independent Commission Against Corruption undercover agent, who was wired with a recording device.
The two were acquitted in June 1998 after Judge Gill ruled the ICAC had tricked them into admitting their guilt and said the confessions were involuntary. The Court of Appeal later upheld the decision, ruling the confessions were voluntary but still inadmissible.
Yesterday, Mr Justice Li said the courts would have to ensure defendants would receive a fair trial when considering whether to exclude such confessions.
'Thus, the court may exclude the confession where the confession or evidence of it is so unreliable that no jury properly directed may convict, for example, where the recording is so poor or, in the absence of a recording, the recollection of the undercover agent is so poor that it should not be allowed to go before a jury.' He said whether an accused's right to remain silent had been jeopardised was also relevant. The court, Mr Justice Li said, might also consider the gravity of the offence. 'The law's approach to this matter has to take into account community interests, as well as the rights of suspects,' he said. 'Ultimately, the courts will have to apply the proper approach in a commonsense way.' Mr Justice Li also said: 'The use of undercover operations plays an important part in society's struggle to combat crime, especially serious crime . . . They therefore unavoidably involve elements of subterfuge, deceit and trickery. The law accepts that law-enforcement agencies may find it necessary to resort to tactics of that kind.' The Court of Final Appeal bench also included Mr Justice Henry Litton, Mr Justice Charles Ching, Mr Justice Kemal Bokhary and non-permanent judge Sir Anthony Mason. The case is now to be returned to the District Court.