Lam Tat Ming is my favourite Hong Kong case because it includes the ingredients of crime and corruption like a Law and Order episode, making it an interesting and memorable case. The case ended up in the Court of Final Appeal, where Chief Justice Li handed down a judgment at odds with those of the lower courts. Lam Tat Ming has become an important case in the law of evidence with respect to voluntariness and residual judicial discretion.

Background

The two defendants in the case were police officers charged with accepting protection money from triad members. The ICAC had conducted an undercover operation that resulted in 39 secretly recorded audiotapes containing incriminating statements made between the defendants and the undercover officer. However, the tape evidence was challenged and excluded by the trial judge on the basis that the recorded conversations were involuntary, leading to the defendant’s acquittal.

Law

The prosecution appealed to the Court of Appeal, to no avail. When the matter reached the Court of Final Appeal, Li CJ found the trial judge had erred by failing to recognise the absurdity of the outcome:

“It would be absurd to suggest in the context of such an operation that a caution could be administered to the suspect ... the use of undercover operations plays an important part in society’s struggle to combat crime.”

Hence, deception during an undercover operation cannot render confessions obtained thereby involuntary.

However, Li CJ also set out the principles for residual judicial discretion. A judge may exclude admissible evidence, including a voluntary confession, to ensure a defendant’s fair trial if it finds that the probative value of the evidence is outweighed by the risk that the evidence will be unfairly prejudicial.

Impact

This case advanced criminal jurisprudence by illustrating the importance of balancing the needs of due process and crime control.

The voluntariness principle is an important safeguard against coercive power but, in this case, Li CJ distinguishes deception to prevent the hindrance of controlling crime. The decision as to admissibility still ultimately rests with the judge, who may exercise residual judicial discretion in order to uphold due process. Lam Tat Ming acts as a clear reminder to law enforcement agencies to be meticulous when undertaking their duties, especially when dealing with confessions.

Franklin Koo