b. Admissibility and weight of confession

b. Admissibility and weight of confession

The determination of admissibility is a legal question decided by the judge and pertains to whether a piece of evidence can be admitted in a trial. Not all relevant evidence is automatically considered admissible. The field of evidence law encompasses various principles that aim to either reduce the prejudicial value of relevant evidence or completely exclude it based on other policy considerations.

Equivocal Statements 

Where the prosecutor seeks to rely on an equivocal statement as an admission: 

1. Judge must determine whether the statement is reasonably capable of being an admission probative of a relevant fact in issue – i.e. if the maker “intended by the admission to convey what the admission appears to assert”. 
2. Jury should be permitted to consider the whole of what transpired, placing the statement in context.
3. Jury should be told that they can only rely on the statement against the defendant if they find beyond reasonable doubt that the defendant in fact made the statement; and viewed in context, the statement was indeed intended to be an admission probative of a fact in issue; and the substance of the admission was truthful. 

For example, in HKSAR v Zhou Limei, during questioning under caution, when asked about the white powder, the defendant responded in Cantonese, saying, “我諗呢一啲係毒品啩” (translated as “I suppose this is a dangerous drug”). The court held that this statement did not amount to an admission that the defendant had knowledge that the white powder inside her suitcase was a dangerous drug all along based on the defendant’s uncertain and non-committal response. The more equivocal the statement, the less may be its probative value.

There are two main grounds of challenge in admissibility of confession: 

1. Voluntariness: The voluntariness rule requires the prosecution to prove beyond reasonable doubt that the confession is not obtained from the accused by fear of prejudice or hope of advantage excited or held out; or by oppression; or by fraud by a person in authority. 
2. Residual discretion to exclude: Court may exercise residual discretion to exclude an “otherwise admissible” (i.e. voluntary) confession.

In contrast, the assessment of weight or probative value of evidence is the responsibility of the jury. It is the task of the fact-finding tribunal to decide how much significance should be given to a specific piece of evidence. There are no fixed rules governing the evaluation of weight. In Hong Kong law, substantial trust is placed in the common sense of ordinary jurors and professional judges.