Hong Kong Case Law: Decisions & Judgments

Topic

Discretion to exclude evidence

Legal area

Court

17 Mar 2023

HKSAR v. KONG MING LING

Citation

[2023] HKCFI 739
Court

Court of First Instance
Case number

HCCC69/2020

Having accepted the prosecution witnesses as credible on all material matters, the court found the verbal admissions and the post-record were voluntary and copies of the notice and post-record were served; the stop, arrest and premises search were lawful under relevant statutory powers; no breach or unfairness was so grave as to justify exercising the discretion to exclude evidence; accordingly both the admissions/post-record and the drug seizures were admissible.
22 May 2012

HKSAR v. MUHAMMAD RIAZ KHAN

Citation

HKSAR v. MUHAMMAD RIAZ KHAN
Court

Court of Final Appeal
Case number

FACC13/2010

The court held that evidence obtained in breach of a defendant's constitutional rights may nevertheless be admitted under a discretionary balancing test: admission is permissible if it is conducive to a fair trial, reconcilable with respect for the right(s) infringed, and unlikely to encourage future breaches. Applying that test to the secretly recorded hotel-room conversation, the recording was properly admitted and the appellant's conviction was upheld.
27 Jan 2012

HKSAR v. OKAFOR PETER ERIC NWABUNWANNE

Citation

HKSAR v. OKAFOR PETER ERIC NWABUNWANNE
Court

Court of Appeal
Case number

CACC437/2010

A trial judge is not universally obliged to give a reasoned ruling on admissibility of contested admissions, but where the rationale for admitting or refusing to exclude evidence is not apparent from the trial record or circumstances, the judge must provide reasons because failure to do so is an error of law that frustrates meaningful appellate review.
4 Nov 2010

MUHAMMAD RIAZ KHAN v. HKSAR

Citation

MUHAMMAD RIAZ KHAN v. HKSAR
Court

Court of Final Appeal
Case number

FAMC52/2010

Leave to appeal was granted under the point of law limb of s.32(2) limited to the single question whether courts have a discretion to admit or exclude evidence obtained in breach of rights under the Basic Law or Bill of Rights and, if so, what principles govern that discretion; leave under the substantial and grave injustice limb was refused.
28 Jun 2010

HKSAR v. PANG HO YIN

Citation

HKSAR v. PANG HO YIN
Court

Court of Appeal
Case number

CACC264/2009

Once the applicant volunteered that he had engaged in trafficking the police should have administered a fresh caution before pursuing extensive questions about trafficking; failure to do so deprived the applicant of an informed choice whether to remain silent in relation to a materially more serious offence, the trial judge therefore mis-exercised his discretion in admitting the detailed admissions, and the conviction based on that material was quashed; no retrial ordered as proper exercise of discretion would likely have excluded the evidence.
4 Nov 2004

LAU KA YEE MICHAEL v. HKSAR

Citation

LAU KA YEE MICHAEL v. HKSAR
Court

Court of Final Appeal
Case number

FACC9/2004

The statements and conduct at the June 1995 meeting amounted to a voluntary, unequivocal admission which, in context, had substantial probative value supporting the complainant's testimony; the trial judge properly exercised her discretion not to exclude the admission and to prefer the prosecution psychiatric evidence, and therefore the convictions and sentence were safe.
2 Aug 2001

NINA KUNG v. WANG DIN SHIN

Citation

NINA KUNG v. WANG DIN SHIN
Court

Court of Final Appeal
Case number

FAMV18/2001

The Appeal Committee refused leave because the Court of Appeal had correctly recognized and properly exercised the discretion to grant a stay in appropriate circumstances and had applied that discretion in the round on the facts of this case; the matter did not warrant further appellate determination on grounds of law development or public importance
14 Dec 2000

HKSAR v. NIP KWAI WING

Citation

HKSAR v. NIP KWAI WING
Court

Court of Appeal
Case number

CACC117/2000

The Court upheld the trial judge's findings that the challenged statements were properly admissible and sufficiently reliable despite isolated breaches; the judge was entitled to reject PW4/Suen's evidence and to prefer police evidence on credibility, making the conviction safe; the sentence was within principled discretionary range using Chan Sik-ming tariff and appropriate differences in mitigation justified the disparity with Suen, so no interference was warranted.
8 Oct 1999

HKSAR v. IU SHUI TAI

Citation

HKSAR v. IU SHUI TAI
Court

Court of Appeal
Case number

CACC235/1999

The trial judge properly evaluated the voir dire and medical evidence and was entitled to find the cautioned statements voluntary; no basis existed to exercise the discretion to exclude the statements because there was no grave injustice or unfairness; the Applicant's admissions and conduct provided sufficient evidence that the representation was false; the sentence of two years imprisonment was within a reasonable range and not manifestly excessive, therefore the appeals were dismissed.
4 Oct 1999

THE SECRETARY FOR JUSTICE v. LEE WAI MAN

Citation

THE SECRETARY FOR JUSTICE v. LEE WAI MAN
Court

Court of First Instance
Case number

HCMA871/1999

The magistrate erred in law by excluding the unheard accomplice PW1's evidence on the basis of documentary material; the discretion to exclude admissible evidence is very narrow, unheard accomplice evidence will not ordinarily qualify for exclusion, and the matters relied upon by the magistrate related to weight not admissibility; therefore the acquittal cannot stand and a retrial before a different magistrate is ordered.