Bills Committee on Evidence (Amendment) Bill 1998 (Minutes) 17 September 1998

Legislative Council

LC Paper No. CB(2)536/98-99
(These minutes have seen by
the Administration)

Ref : CB2/BC/2/98

Bills Committee on Evidence (Amendment) Bill 1998
Minutes of meeting held on Thursday, 17 September 1998 at 10:45 am in the Chamber of the Legislative Council Building

Members Present :

Hon Margaret NG (Chairman)
Hon Albert HO Chun-yan
Hon Martin LEE Chu-ming, SC, JP
Hon Eric LI Ka-cheung, JP
Hon Jasper TSANG Yok-sing, JP
Hon Ambrose LAU Hon-chuen, JP

Public Officers Attending:

Mr Michael SCOTT: Senior Assistant Solicitor General
Ms Daphne SIU: Senior Government Counsel

Attendance by Invitation:

The Hong Kong Bar Association: Mr Alan K K LEONG, SC
Mr K Y THONG
Faculty of Law of The University of Hong Kong
Miss Janice BRABYN: Lecturer
School of Law of the City University of Hong Kong
Mr Tony UPHAM: Associate Professor
Mr Francis BURKETT: Associate Professor

Clerk in Attendance:

Mrs Percy MA: Chief Assistant Secretary (2)3

Staff in Attendance:

Miss Connie FUNG: Assistant Legal Adviser 3
Mr Paul WOO: Senior Assistant Secretary (2)3

I. Confirmation of minutes of meeting on 29 July 1998
(LC Paper No. CB(2)242/98-99)

The minutes of the meeting held on 29 July 1998 were confirmed.

II. Meeting with deputations
(LC Paper Nos. CB(2)217/98-99(01); CB(2)219/98-99(03) and CB(2)219/98-99(04))

2. The Chairman welcomed representatives of the Hong Kong Bar Association; Faculty of Law of the University of Hong Kong and School of Law of the City University of Hong Kong respectively to attend the meeting.

Hong Kong Bar Association

3. Mr Alan K K LEONG informed the meeting that the Hong Kong Bar Association ("the Bar") was in general in support of the fundamental objective of the Bill, which was to abolish the common law rule against hearsay evidence in civil proceedings, subject to a number of comments. In sum, the Bar's observations were three-fold -

The Bill should vest a residual discretion in the court to exclude hearsay evidence in civil proceedings in appropriate circumstances, particularly in cases where the prejudicial effect of the evidence outweighed its probative value. Given that the proposed new regime provided for the admission of hearsay of whatever degree, the Bar was not satisfied that proposed section 55B(1) was sufficient safeguard to avoid possible abuse of the relaxation of the hearsay rule. In this regard, the Bar suggested that the court should be given an express residual discretion to exclude hearsay evidence to be exercised in certain situations. It proposed that in any event, the new section 55B(1) be revised as follows -
There should be provisions for the giving of notice of intention to adduce hearsay evidence to provide certainty to parties to the litigation as to what evidence to expect at trial. The Bar was in support of a simple procedure and proposed that the Rules of the High Court could be amended with the inclusion of a provision requiring all parties to give a list of the documentary hearsay evidence they intended to adduce, say, within 21 days after the case had been set down for trial.
In respect of transitional arrangements, as the proposed amendments in the Bill were procedural in nature, they should follow the general principle governing retrospectivity of procedural legislation, i.e. to apply to civil proceedings commenced before the commencement of the Bill after it was enacted.

4. Referring to the new section 55B(1) proposed by the Bar and as quoted in papagraph 3 (a) above, Mr Martin LEE opined that "the right of the court to exclude evidence on grounds other than that it is hearsay" already preserved the right thereafter mentioned in the section. The latter part of that section therefore appeared to be repetitive and unnecessary. Mr K Y THONG replied that it was intended to be an avoidance of doubt provision . In response to the Chairman, he added that the section was proposed irrespective of whether members decided to support the Bar's proposal concerning discretionary power of the court to exclude hearsay evidence.

5. On the drafting of section 55B(1), Mr Martin LEE suggested to amend "rights of the court" to "powers of the court". The Administration noted the view.

Adm

6.Concerning the Bar's view in paragraph 3 (c) above in relation to transitional arrangements, Senior Assistant Solicitor General (SASG) said that there was a legal presumption that legislation did not have retrospective effect unless it expressly said so. In the end, it was a matter of policy to be decided by the Administration. The Administration was of the opinion that if the Bill was given retrospective effect to apply to civil proceedings already commenced before the Bill was enacted, it would unnecessarily complicate such proceedings. He added that the proposed transitional arrangements followed the approach of the English Civil Evidence Act 1995.

Faculty of Law of the University of Hong Kong

7. Miss Janice BRABYN said that the Faculty supported the proposal to abolish the hearsay rule in civil proceedings. On the point of possible unfairness and prejudicial effect of hearsay evidence, Miss BRABYN opined that the concern could be addressed with the court's inherent power to determine the appropriate weight to be attached to any hearsay evidence adduced. It was considered unnecessary to provide expressly for a residual discretion for the court to exclude hearsay evidence as it was unlikely that the court would place significant weight on a piece of hearsay evidence if it saw serious difficulties with the reliability of such evidence. Regarding the issue of notice of intention to adduce hearsay evidence, given the power of the court in judicial case management and pre-trial proceedings, a special provision for formal notice requirement seemed to be unnecessary. However, Miss BRABYN agreed that legal practitioners were in the best position to decide whether such requirement was necessary.

School of Law of the City University of Hong Kong

8. Mr Tony UPHAM said that the School of Law was in agreement that the rule against hearsay, which was increasingly seen as an artificial restriction on the admission of relevant evidence, should be abolished. The major concern of the School of Law was on notice requirments. In order to minimise the potential abuse of "trial by ambush", it was desirable for an effective formal notice procedure to be adopted whereby solicitors or counsel had a statutory duty to give advance notice and to disclose the nature of any hearsay evidence to be adduced, whilst reserving to the parties the option of waiving the notice requirement. Such categorisation process should be done at as early a stage of the litigation as possible to assist the court and to allow the litigants to make an early assessment of the full strength of their case, and hence to achieve saving of time and costs.

9. Mr Francis BURKETT added that the Law Reform Commission (LRC) recognised the need to require parties to litigation to identify hearsay evidence upon which they proposed to rely. He considered that such identification process, which included a declaration as to whether any of the makers of the hearsay statements was required to be called as a witness, should take place at the very early stage of the interlocutory proceedings and before the hearing for the listing application.

10. Mr Francis BURKETT further pointed out that the English Civil Evidence Act 1995 had put in place a simplified notice procedure which was capable of a liberal interpretation and had contemplated the making of rules of court for its application. In practice, however, such rules of court had yet to be made. The current situation in England was that the old notice procedure under the English Civil Evidence Act 1968 had continued been adopted. The system somehow worked smoothly without causing serious problems.

III. Meeting with the Administration
(LC Paper Nos. CB(2)225/98-99(01); CB(2)219/98-99(01); CB(2)219/98-99(02);
CB(2)286/98-99(01))

Residual discretion for the court to exclude hearsay evidence

11. Mr Martin LEE pointed out that in criminal trials, the court was very strict in adhering to the exclusionary hearsay rule. In some cases, criminal matters could lead to civil actions such as claims for civil damages. With the proposed abolition of the hearsay rule in civil proceedings, there was nothing to prevent a party from bringing a civil action based on hearsay. Mr LEE said that for the sake of providing a satisfactory safeguard against possible abuse, it was necessary that the court should have a residual discretion to exclude hearsay evidence, where appropriate, in civil proceedings. He added that whilst the court was trusted with the ability to attach appropriate weight to any hearsay evidence, there was no reason why it should not be given the discretion to exclude hearsay evidence in a given case where it saw fit, having regard to all the circumstances of the case.

12. Mr Albert HO opined that should the court be given a discretion to exclude hearsay evidence, then for cases tried with a jury, that discretion should be exercisable by the court at the early stage of trial and in the absence of the jury, upon the application of the party opposing to the intended use of hearsay, to avoid any prejudicial effect of the hearsay evidence being brought to bear on the jury.

13. In response to the points raised by Mr Albert HO, Mr Alan K K LEONG said that the Bar had no particular view as to the stage of the proceedings at which the court should exercise the discretionary power. In the context of jury trials, the admissibility of hearsay evidence could be contested before the evidence was adduced and in the absence of the jury. Mr Tony UPHAM pointed out that jury trials were very rare in civil cases. He doubted the necessity to include an express provision in the legislation to deal specifically with the procedures to be followed in jury trials in relation to hearsay evidence.

14. On the point of express discretion for the court to exclude hearsay evidence, Miss Janice BRABYN commented that the proposal was only justifiable in cases of a jury trial for the purpose of protecting the jury from unduly prejudicial evidence. She saw no grounds to extend such discretion to cover cases tried without a jury, as it would invite uncecessary and time-consuming arguments by solicitors or counsel on the admissibility of hearsay evidence.

15. Senior Assistant Solicitor General(SASG) said that to provide expressly for a residual discretion for the court to exclude hearsay evidence in civil proceedings represented a radical change not contemplated by the LRC. He said that similar to the Bill, the English Civil Evidence Act 1995 did not provide such a discretion to the court. The Administration adopted the view that a statutory discretionary power to exclude repetitious and superfluous evidence applied whether or not the evidence was of a hearsay nature. If the prejudicial effect of hearsay evidence outweighed its probative value, it would best be dealt with by the court's power to exclude such evidence on the grounds of insufficient relevance or weight. In a jury trial, the problem of prejudicial or unreliable evidence could be overcome by the judge giving warning or direction to the jury in determining whether to accept the evidence and the weight to be given to it.

16. Referring to paragraph 23 of the Administration's paper (LC Paper No. CB(2)225/98-99(01)), Mr Martin LEE said that he did not share the view of the New Zealand Law Commission that judges in civil cases, by reason of their experience and training, should be able to assess the risks pertaining to hearsay evidence and juries had shown themselves capable of mastering difficult tasks. Mr LEE held that it was a risky and uncertain state of affair if one had to rely on a clear direction to be given by the judge to the jury on what weight should be attached to hearsay evidence. Furthermore, the power of the court to exclude evidence was only exercisable in relation to superfluous evidence, not hearsay evidence which would become automatically admissible if the Bill was passed. Mr LEE considered that as the object of the Bill involved a fundamental change of the law to allow hearsay evidence formerly inadmissible in civil proceedings to be admissible, an adequate safeguard in the form of a residual discretion for the court to exclude hearsay evidence on grounds of unfairness was necessary.

17. Mr TSANG Yok-sing asked whether the introduction of a residual discretion for the court to exclude hearsay evidence would lead to the reintroduction of the rule against hearsay by another route. In response to the Chairman, Mr K Y THONG said that such conclusion did not necessarily follow. He said that a residual discretion would only be exercised in rare circumstances where there was severe prejudice and unfairness. It was therefore very much an exception rather than the rule. Mr Martin LEE added that as general admissibility of hearsay evidence was provided for under the Bill, the burden would be much heavier on the party who sought to have the hearsay evidence excluded by resorting to the discretionary power of the court.

18. Mr K Y THONG clarified that the Bar's view was that the argument for a residual discretion for the court to exclude hearsay evidence was based on the grounds of severe prejudice and unfairness arising from admission of such evidence. Such discretion should apply to jury and non-jury trials alike. He said that in respect of hearsay evidence, prejudicial effect and weight were separate and independent matters, hence not mutually exclusive. Hearsay evidence could be of considerable weight and yet severely prejudicial.

Notice procedure for intended use of hearsay

19. Mr Albert HO enquired whether an informal notice of intention to use hearsay evidence could be deemed to have been served if such hearsay evidence was borne out in the witness statements. Mr K Y THONG responded that witness statements normally dealt with oral hearsay but not necessarily documentary hearsay. The Bar therefore suggested that a list of proposed documentary hearsay sought to be adduced be provided within 21 days after the case had been set down for trial.

20. Mr Martin LEE suggested further simplification of the Bar's proposal. Instead of the existing notice and counter-notice procedure, he recommended that in the event of a party opposing to the evidence proposed to be adduced by the other party because of its hearsay nature, it was for the opposing party to serve notice to the adducer if it wished to call the maker of the hearsay statement to attend court.

21. The meeting went through the paper provided by the Administration (LC Paper No.CB(2)225/98-99(01)).

The Bill and the LRC recommendations

22. Assistant Legal Adviser (ALA) said that the Bill reflected the recommendations of the LRC contained in its Report on Hearsay Rule in Civil Proceedings published in July 1996.

Hearsay notice

23. With regard to hearsay notice, ALA said that the LRC recommendation and the Bill followed the Scottish approach instead of the English Civil Evidence Act 1995, i.e. whether prior notice of hearsay was required should be left to be determined by parties informally.

Proposed sections 48,49 and 55

24. Members noted the following -

Section 48(b) reflected the Bar's suggestion to provide for rules of court to be made to allow parties to call additional evidence to attack or support the reliability of the hearsay statement. ALA pointed out that there was no equivalent to section 48(b) in the English Civil Evidence Act 1995.
Section 49(g) incorporated the Bar's view to include an additional factor in the guidelines for weighing of hearsay evidence, i.e. whether the evidence adduced was consistent with previously adduced evidence.
Section 55 followed the Scottish approach, i.e. the absence of an entry in the records of the business or public body could be proved by oral evidence as well as affidavit of an officer.

Section 54(5)

25. In response to the Chairman, ALA advised that section 54(5) followed the English Civil Evidence Act 1995. On the operation of section 54(5), SASG said that the English Law Commission recognised that although business documents or records had been regarded as reliable evidence, there were bound to be exceptions in varied circumstances. To address this view, section 54(5) provided the court with a general discretion to disapply the preceding provisions in section 54, having regard to the nature of the documents/records and the particular circumstances of the case.

26. ALA said that the discretion of the court provided under section 54(5) included a discretion to disapply section 54(1) in suitable circumstances, i.e. the court could exercise the discretion not to receive a document in evidence even through such document was shown to form part of the records of a business or public body.

27. Mr Martin LEE said that documentary hearsay evidence might take the form of a document or record which fell within the provisions of section 54(5) and hence be capable to be excluded by the court. He queried that as section 54(5) only dealt with documentary records, the discretion for the court to refuse to receive the evidence could not be exercised in the case of a party choosing to give evidence on the same document/record orally. He considered that the discretionary power vested in the court under this part should also apply in respect of oral evidence.

28. In response, SASG said that records of business or public body referred to in section 54 were prima facie admissible in evidence and section 54(5) qualified that depending on the court's assessment of the reliability of a particular record, the court could reject that record as being automatically admissible without further proof. As for oral evidence, the focus in terms of reliability was not on admissibility but on weight.

Hearsay in other common law jurisdictions

29. Regarding the views submitted by overseas legal professional bodies, the meeting noted that legal practitioners in both Scotland and England and Wales were generally supportive of the abolition of the hearsay rule in civil proceedings but they made no specific comments in respect of hearsay notice requirements.

30. Mr Martin LEE expressed the view that detailed reference should be made to the experiences in other common law jurisdictions such as Ireland, South Africa, New Zealand, Australia and Canada etc. where the approach in relation to hearsay evidence differed in varying degrees from the practices adopted in Scotland and England and Wales.

31. SASG reiterated that the thrust of the LRC's recommendations was that reliability, rather than admissibility, of hearsay evidence was the focal point for consideration. He said that the arguments for the abolition of the hearsay rule were elucidated in the letter from Messrs Simpson & Marwick, W.S. submitted by the Law Society of Scotland (LC Paper No. CB(2)219/98-99(01)), which set out that "the time consuming arguments over admissibility of hearsay as an exception to the previous rules no longer arise and parties can focus on the true issues which have to be resolved, rather than the admissibility of evidence. Parties can still make submissions on the admissibility and reliability of evidence at the close of evidence and in many cases the trend is to try and identify for the court the appropriate weight which should be applied to the type of evidence given to the court.........."

32. As regards notice procedures, SASG said that the overwhelming responses from legal practitioners was that the present formal notice provisions in relation to adduction of hearsay evidence was essentially a waste of time and the more satisfactory way to go about it was by way of informal arrangements, subject to the practice directions of the court. This was supported by the Bar which pointed out in its reply to the LRC consultation that the main complaints were directed not so much at the difficulty of compliance with the notice procedure but rather at the unnecessary inconvenience caused by the procedure. The Hong Kong Law Society also held the view that the existing rules gave rise to additional and unnecessary expense in the conduct of litigation. They were of the opinion that abolition would merely reflect the reality of the present situation and would dispense with the need for what were generally regarded as artificial procedural requirements.

IV. Next meeting

33. Members agreed that the next meeting would be held on 28 September 1998 at 10:45 am to discuss, inter alia, the following issues -

whether notice of intention to adduce hearsay evidence was required, and if so, whether it should be formal or informal notice requirement, and at what stage of the proceedings it should be given; and
whether the court should be vested with a residual discretion to exclude hearsay evidence in cases where its admission would be unfair and would cause severe prejudice, and if so, whether it should be confined to jury trial or trial in general.

34. There being no other business, the meeting ended at 12:50 pm.

Legislative Council Secretariat
30 October 1998

Legislative Council

Bills Committee on Evidence (Amendment) Bill 1998 Minutes of meeting held on Thursday, 17 September 1998 at 10:45 am in the Chamber of the Legislative Council Building

Bills Committee on Evidence (Amendment) Bill 1998
Minutes of meeting held on Thursday, 17 September 1998 at 10:45 am in the Chamber of the Legislative Council Building