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Judicial Discretion and Its Extent


Before looking into the operation of judicial discretion in practice, it is necessary to find its definition as it is where this article should begin. The concept of discretion, that is central to the understanding of the judicial process, differs from deciding a question by applying a fixed rule of decision in the way that the decision-maker is able to decide between alternative courses of action. According to Galligan, discretion is any power entrusted to an official which leaves the decision-maker with 'some significant scope for settling the reasons and standards according to which the power is to be exercised, and for applying them in the making of specified decisions.' A clearer interpretation of the definition was given by Aharon, who defines discretion as the power given in a person with authority to choose between two or more alternatives, when each of the alternatives is lawful. Therefore, it can be said that judicial discretion means the power the law gives the judge to choose among several lawful alternatives. There must be more than one possible and lawful courses of action by which the judge can choose the one that most appeals to him. A very important question that we need to ask is why judicial discretion is necessary. Actually, quite a number of legal philosophers have criticized the concept of judicial discretion. Dicey referred discretion as identical to arbitrariness and a hindrance to the Rule of Law. At the same time, Gibbon believed that judicial discretion is the 'first engine of tyranny'. The opposition to the concept of judicial discretion stems from the mistrust of the judges who make their decisions not on the basis of clear rules but biases, evil and dishonest motives. Rules, on the other hand, are much more certain. However, rules can never be applied in an entirely mechanical fashion that would result in the admission of gravely prejudicial evidence(though technically speaking, it is admissible) and thus would be unfair to a party. Judicial discretion allows for the flexibility and although it creates uncertainty, it is necessary to avoid potential injustice. The judges can thus exclude evidence which is legally admissible but prejudicial evidence so that the fairness to the accused in a criminal trial can be ensured.

EXCLUSION OF PREJUDICIAL EVIDENCE At common law, judges have discretion to exclude evidence which is admissible. In Noor Mohammed v R , it was held that it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible and the decision must be left to the discretion and the sense of fairness of the judge. In R v Sang , Lord Diplock gave an important obiter that the trial judge has a discretion to exclude the evidence where the prejudicial effect of evidence outweighs its probative value if its admission would result in an unfair trial. Another category of evidence that judges can also exercise discretion to exclude is those that are illegally or improperly obtained. But as far as this question is concerned, I will only focus on the exclusion of prejudicial evidence in the rest of the article. The discretion to exclude evidence unfairly prejudicial to the defence owes its existence partly to the judicial mistrust of jurors. Jurors may misuse the evidence in the sense that false inferences are drawn from the evidence or putting more weight on evidence than it deserves. When exercising the discretion, judges are required to balance the prejudicial effect of evidence against its probative value. But we must

bear in mind that evidence which is prejudicial only in the sense that it incriminates the accused is not prejudicial for the purposes of the discretion. So how little probative value or how great prejudicial effect on the accused of a piece of evidence has can the judges exercise their discretion? In R v Christie , it was held that evidence should not be given if 'seriously prejudicial and of little value in its direct bearing of the case'. And in Noor Mohammed v R mentioned above, the evidence is of 'trifling weight' or 'gravely prejudicial character' though 'technically admissible'. Also in DPP v Boardman , Lord Salmon referred to the exclusion of evidence of 'minimal value'. Later on, a modified test emerged and evidence of considerable probative value could also be excluded provided that the prejudicial effect is substantial. The discretion to exclude evidence more prejudicial than probative can be applied to any type of admissible evidence. In the following, I will try to explain how the discretion operates in several different kinds of evidence.


Similar fact evidence is the evidence that the accused has behaved on other occasions in a way similar to the way he is alleged to have behaved on the occasion which gave rise to the indictment. According to Pattenden, the questions of admissibility and discretionary exclusion of similar fact evidence are almost inseparably interwined. The landmark case of this area of law is DPP v Boardman . Prior to its decision, the courts classified situations in which the prosecution may wish to use similar fact evidence and laid down rules allowing it whenever a particular defence was put forward. An example would be whenever offences involving homosexual acts are alleged against an accused who is homosexual, then the jury may be told of his homosexuality. All these old categories were discarded by the House of Lords in Boardman v DPP and it was held that each case should be looked at individually. It also provided that similar fact evidence would be admissible if its prejudicial effect on the accused in the eyes of the jury is either justified or outweighed by its probative value. Therefore, the judge must be able to ensure two things before admitting a particular piece of similar fact evidence. Firstly, he or she must be satisfied that the evidence is probative of the accused's guilt. Secondly, he or she must be satisfied that the prejudice to the accused is not so great that the jury would convict because they are prejudiced rather than because they have sufficient evidence of guilt. It is in the latter that the judge can exercise judicial discretion. At the summing up immediately after the trial closed, he can give the jury directions on how they should approach certain pieces of evidence. If he is satisfied that he can ensure that the jury look at the similar fact evidence for its true probative strength, and are not simply prejudiced and have the possibility to jump to a false conclusion, he can allow the evidence to be admitted. On the other hand, he may exercise his discretion and take away that piece of similar fact evidence. But there may be cases where though the prejudicial effect of a similar fact evidence is overwhelming, the probative force is so great that it is sufficient to ensure a conviction. No injustice would be done if the evidence is admitted in those cases. The situation will be different in trials where a judge sits alone. In Attorney General v Siu Yuk-shing , it was held that : "The risk of such prejudice overhearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone...... In a trial by judge alone, the exercise of excluding the evidence on the grounds of prejudice becomes somewhat unreal...... If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial weight if he rules that it is admissible." This approach was followed in R v Kwan Ping-chung .

CONFESSIONS Under common law, a confession may be given in evidence against a defendant as an exception to the rule against the admission of hearsay evidence. A confession must satisfy the voluntariness requirement in order to be admissible. The prosecution needs to prove beyond reasonable doubt that the confession was not obtained by fear of prejudice or hope of advantage, excited or held out by a person in authority. But even it is proved to be voluntarily and prima facie admissible, judges have discretion at common law to exclude the confession. There are two basis on which the discretion can be exercised. Firstly, a voluntary confession may be excluded on the ground of unfairness. In a Hong Kong murder case, R v Lee Yi-choi , the accused was arrested and was suspected to be related to the murder. He refused to tell anything to the police. Then a fellow-prisoner (who turned out to be a detective employed by the police) was put into the same cell of the accused. The accused made a full confession of his involvement in the murder to the 'fellow-prisoner'. According to McMullin V-P, though the confession was voluntary, it was obtained 'by any reasonable standard unfairly procured' and was thus excluded in the exercise of the discretion. In another Hong Kong case, R v Ho Chung-yam , the accused voluntarily made a confession to the police in the hope of becoming a police witness but the police did not hold out any hope of advantage. The confession was excluded by discretion as what the police did rendered the confession involuntary. A confession or admission could also be excluded if its prejudicial effect exceeded its probative value. Confessions that fall into this ground of discretionary exclusion include those made by the mentally ill that are too untrustworthy to leave to the jury. In R v Manchant , it was held that a judge 'has a discretion as to whether to refuse or to admit to evidence a confession which came from a mind which at the time was possibly irrational and what the defendant said may have been the product of delusion and hallucinations.' However, not all confessions made by the mentally ill will be excluded, as in R v Miller , the judge admitted the confession made by the accused under a disordered state because he was satisfied that the jury could distinguish what was fact and fantasy in the confession. A final point to note is that judges could also exclude documents recording confessions if in his opinion the admission of the documents would prejudiice the defendant.

EVIDENCE OF BAD CHARACTER It is widely recognized that a fair trial may be threatened if the jury become aware of the accused's bad character. Nevertheless, bad character evidence is often admissible. Judges have discretion to exclude those tendered by the the prosecution. Usually, the question of discretionary exclusion of bad character evidence arises when the prosecution seeks to cross-examine the accused pursuant to section 54(1)(f) of the Criminal Procedure Ordinance . According to the provision, an accused shall not be asked, and shall not be required to answer even if asked any question tending to show that he has commited or been convicted of or been charged with any other offence than wherewith he is then charged, or is of 'bad character' unless : (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged in the same proceedings.

The first exception to s. (1)(f) relates to similar fact evidence and thus is not our focus here. The judge has the discretion to disallow cross-examination whichever the above exceptions the prosecution seeks to rely on. But for a co-accused, the judge only has the discretion to disallow cross-examination if he or she tries to rely on s.(1)(f)(ii) but not s.(1)(f)(iii). Now, let's turn to the first limb of s.(1)(f)(ii). An accused who claims to be of good character may be crossexamined by the prosecution to show the contrary according to the subsection. It was held in Murdoch v Taylor that the judge has the discretion to disallow the cross-examination and according to R v Powell , it is the prejudicial effect versus probative value principle that governs the exercise of the discretion. Under the second limb of s.(1)(f)(ii), the accused may be cross-examined by the prosecution if he or she attacks prosecution witnesses. The judge has the discretion to disallow the cross-examination in order to ensure a fair trial both to the accused and to the prosecution. The judge needs to balance the prejudicial effect of the admission of evidence of bad character on the defence against the potential damage to the prosecution case of the accused's attack on the prosecution witnesses. Finally, under s.(1)(f)(iii), an accused who gives evidence against a co-accused can be cross-examined about his bad character by either the prosecution or the co-accused. The judge only has a discretion to disallow cross-examination if the party seeks to carry out the cross-examination is the prosecution. On the other hand, there is no discretion in the judge to prevent the co-accused from cross-examining the accused as the co-accused is entitled to cross-examine as of right. During the cross-examination, the coaccused seeks to defend himself by pointing out to the jury that the man who is giving evidence agaisnt him is unworthy of belief, support by proof of bad character. The right to do so should not be restricted.

CONCLUSION Apart from the three categories of evidence that I have mentioned above, the discretion to exclude more prejudicial than probative can be applied to any other type of evidence, for example, identification evidence, inflammatory evidence, et cetera. However, that kind of unlimited power of the judges must have some kinds of specific restrictions in order to avoid arbitrariness. One should aim to confine, structure and check discretionary - but not to remove it as it is neither practical nor desirable.

BIBLIOGRAPHY Barak, Aharon, Judicial Discretion. New Haven : Yale University Press, c1989. Bruce, Andrew & McCoy Gerard, Criminal Evidence in Hong Kong. Hong Kong : Butterworths, 1991 Galligan, D.J., Discretionary Powers : A Legal Study of Official Discretion. Oxford : Clarendon, 1986. Keane, Adrian, LL.B., The Modern Law of Evidence. London : Butterworths, 1998. Kent Law School Law of Evidence Homepage. Pattenden, Rosemary, Judicial Discretion and Criminal Litigation. Oxford [England] : Clarendon Press, 1990. Piragoff, Donald K., Similar Fact Evidence : Probative Value and Prejudice. Toronto, Ont. : Carswell, 1981. Tillers, Peter, The Dynamic Evidence Page. Uglow, Steve, Evidence : Text and Materials. London : Sweet & Maxwell, 1997.
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