Legislative Council

LC Paper No. CB(2)676/98-99
(These minutes have been seen
by the Administration

Ref : CB2/BC/2/98

Bills Committee on Evidence (Amendment) Bill 1998
Minutes of meeting held on Monday, 28 September 1998 at 10:45 am in Conference Room B 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 Benjamin CHEUNG

Deputy Solicitor General (Special Duties)

Mr Michael SCOTT

Senior Assistant Solicitor General

Mr Geoffrey FOX

Senior Assistant Law Draftsman

Mr Thomas LEUNG

Senior Government Counsel
Law Reform Commission

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. Meeting with the Administration
(LC Paper Nos. CB(2)225(01) and CB(2)217(01); Legislative Council Brief - File Ref: LP/5019/5; and the Bill)

The Chairman said that the meeting should focus mainly on two major issues which arose from previous deliberations on the Bill, namely -

1. 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; and
   
   
2. 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.

Residual discretion for the court to exclude hearsay evidence
Documentary vis-a-vis oral hearsay evidence

2. Referring to proposed section 54 on "Proof of records of business or public body", Mr Martin LEE pointed out that the power of the court provided for under section 54(5) to disapply all or any of the provisions of the section was only applicable to written records. By invoking section 54(5), the court may direct that section 54(1) be disapplied to a particular document or record, hence rendering it inadmissible as evidence in civil proceedings. However, the party involved could get around the situation by seeking to adduce oral evidence on the same document or record, the admissibility of which was provided for under the Bill.

3. The Chairman said that the power of the court to disapply the provisions of section 54 to evidence in the form of written records in effect amounted to a residual discretion of the court to exclude written hearsay evidence. She queried why the power of the court under proposed section 54(5) was only applicable to business documents/records, but not oral evidence.

4. Senior Government Counsel, Law Reform Commission responded that proposed section 54 dealt with admissibility of business records as evidence in civil proceedings without further proof. The Law Reform Commission ("LRC")'s view was that because of the high risk of error associated with the compilation of documentary business records which were produced in large quantities day-in day-out, it was necessary to provide the court with such power under proposed section 54(5), to be exercised in circumstances where the reliability of the records was in doubt. On members' concern about inconsistency in the application of proposed section 54(5) to written business records vis-a-vis oral hearsay evidence, he said that in his personal view, proposed section 54(5) could be deleted.

5. The Chairman and Mr Martin LEE said that if the principle that the court should have a discretion to exclude business records which had a high risk of being prejudicial was accepted, the same principle should apply to other kinds of evidence, including oral hearsay evidence, whose prejudicial effect might seriously outweigh its probative value.

6. Senior Assistant Solicitor General (SASG) responded that the discretion provided under proposed section 54(5) was not equivalent to a discretion of the court to exclude evidence altogether in a specific case. For example, where the court exercised the power under proposed section 54(5) to disapply subsection (1) to a particular business document/record, that document/record could still be admissible as evidence, but only subject to further proof. He said that proposed section 54(5) allowed the court to examine the evidence that was put before the trial in full. SASG added that section 54 followed exactly section 9 of the English Civil Evidence Act 1995. In adopting this approach, the English Law Commission recognised that although business and other records had long been treated as a class of evidence which could be regarded as reliable, there were bound to be exceptions in certain cases. The legislation therefore provided the court with a discretion to take exceptional steps where it considered necessary, such as requiring further proof of a particular record. Senior Assistant Law Draftsman supplemented that proposed section 54(5) enabled the court to impose or alter restrictions on proof of business records where appropriate. By disapplying proposed section 54(2), for instance, the court might direct that certain records needed to be proved by means other than a certificate required under proposed section 54(2), or certain records be admitted without further proof in the absence of such certificate.

7. Mr Martin LEE considered that the exercise of the court's discretionary power under proposed section 54(5) could result in exclusion of a certain class of documents/records from being admitted as evidence. He queried why such power of the court could not be applied to other categories of evidence, particularly oral evidence of a hearsay nature.

8. In response, SASG said that proposed section 54(5) should be seen in the context of whether the records in question required "further proof" for them to be recieved in evidence. Rather than excluding the records altogether, proposed section 54(5) enabled the party to adduce sufficient further proof to make them admissible. As regards hearsay evidence, under the proposed reform, parties to litigation were allowed to make submissions as to weight and admissibility of hearsay evidence, and the court could estimate the appropriate weight, if any, to be attached to hearsay evidence. This would do better justice to the parties concerned. He added that if at the end of the day the court decided that a piece of hearsay evidence was so unfairly prejudicial that it should not be given any weight, the result would effectively be the same as if the evidence had not been admitted in the first place.

9. In reply to Mr TSANG Yok-sing's enquiries, SASG said that records of business or public bodies were admissible as evidence in civil proceedings, subject to meeting the specific conditions prescribed in the existing Evidence Ordinance. Proposed section 54 provided a simplified system for admission by removing some of the formalities and technicalities in the existing legislation.

"Half-way house" proposal of Mr Martin LEE

10. Mr Martin LEE and Mr Ambrose LAU shared the view that the court should have power to exercise a residual discretion to exclude hearsay evidence in suitable circumstances, particularly in the case of jury trials. Referring to the point made in the Legislative Council Brief on the Bill that the court already had inherent common law power to exclude evidence, Mr LAU said that such exclusionary power could not apply to hearsay evidence with the enactment of the Bill, which provided for general admissibility of hearsay evidence in civil proceedings.

11. Mr Martin LEE said that while he supported in principle the object of the Bill which was to abolish the rule against hearsay, he was not convinced that the proposed amendments in relation to admission of hearsay evidence were the best approach to deal with the issue. He pointed out that some overseas common law jurisdictions adopted somewhat different practices. In New Zealand, the court in a jury trial might exclude otherwise admissible hearsay evidence on the basis that its prejudicial effect would outweigh its probative value. In Australia where the exclusionary hearsay rule was retained, the court had a discretion to exclude evidence if its probative value was substantially outweighed by the danger that the use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing. Mr LEE said that under existing law in Hong Kong, as a general rule, hearsay evidence was not admissible unless the court allowed it and subject to the procedural requirements of the court such as serving of notice of intended use of hearsay by the adducing party etc. He doubted the propriety of taking the drastic step to remove the rule against hearsay and the procedural notice requirements altogether as proposed in the Bill. In this respect, Mr LEE suggested a "half-way house" approach in which case hearsay evidence would be generally admissible in civil proceedings, and the court could exercise an ultimate discretion in exceptional circumstances to exclude hearsay evidence on application of the party opposing to the admission of the evidence. It was for the opposing party to satisfy the court that the case was an exceptional one and that there were sufficient grounds for excluding the hearsay evidence.

12. On Mr Martin LEE's "half-way house" proposal, SASG said that so long as the exclusionary discretion was preserved, the problem of the existing system could not be remedied, i.e. a case might be defeated because the court had not been provided with all the relevant information as a result of the exclusion of certain hearsay evidence. This would work against the principle of access to justice. He added that the LRC had adopted the view of the English Law Commission that there should be consistency in treatment of different types of evidence and that a residual discretion of the court to exclude only hearsay evidence was not necessary. The LRC also considered that the best way to deal with hearsay evidence in cases where the question of prejudicial effect might arise was for the court to attach appropriate weight to the evidence after fully considering the arguments put forward by the parties to litigation. SASG opined that prejudicial effect seemed to be a highly subjective type of guideline for the court. To have hearsay evidence excluded at an early stage of the trial on grounds of prejudicial effect might prevent cases from being properly presented and therefore would be prejudicial to the party that wished to rely on such evidence.

13. Mr Martin LEE said that if subjectivity was a problem at all, it could be argued that all judicial decisions were subjective, including the court's decision to attach weight to hearsay evidence. The Chairman pointed out that judges had all along been exercising various powers without being charged for acting subjectively.

14. Referring to the question of access to justice, Mr Martin LEE said that it was a presumption that cases could be more properly presented if hearsay evidence of whatever degree was automatically admissible. It could be argued that cases brought solely on the ground of hearsay evidence which was highly prejudicial and unreliable should not have been admitted in the first place because it was unfair to the party against whom the hearsay evidence was adduced. On the question of weight as opposed to admissibility, he said that if the court chose to attach some weight to a piece of hearsay evidence and as a result of which the adducing party had won the case, it would be extremely difficult for the other party to appeal against the court's decision.

15. SASG explained that in some civil trials, a party might only have hearsay evidence to rely on and there might be cogency and safety in the evidence concerned. He reiterated that the question of prejudicial effect of evidence could be overcome by the court exercising its power to determine the weight to be given to the evidence, according to the guidelines prescribed in proposed section 49 in the Bill. The court was obliged to apply the prescribed standard of proof to hearsay evidence, having had the benefit of the full arguments and all the available evidence in the case. He cautioned that to provide a residual discretion for the court to exclude hearsay evidence would lead to the undesirable situation of having a trial within a trial; apart from the full hearing of the case, another hearing would have to be held to decide whether certain hearsay should be excluded as evidence. This would add unnecessary complications to the court proceedings and invite possible abuse of the process.

16. The Chairman said that in Mr Martin LEE's proposal, the discretion to exclude hearsay evidence would only be exercised by the court in very exceptional circumstances, and subject to the party opposing to the admission of hearsay evidence having successfully convinced the court beyond doubt that the hearsay evidence was so prejudicial that it should not be admitted as evidence. The court should have taken into account all relevant arguments before it decided to exclude any hearsay evidence.

17. Addressing the concern about prejudicial effect of hearsay evidence, SASG supplemented that the circumstances that the court would have regard to in estimating the weight to be given to hearsay evidence as described in proposed section 49(f) covered prejudicial hearsay evidence which might "cloud" the mind of the judge and jury from proper evaluation of the evidence. He said that the court could always exercise discretion to accord appropriate weight to the evidence, taking into account the possibility of its prejudicial effect outweighing probative value.

18. Mr Albert HO opined that the primary purpose of the Bill was to simplify the existing procedures in dealing with hearsay evidence in civil proceedings. He supported in principle that the law should provide a residual discretion for the court to exclude hearsay evidence, provided that the objective to simplify proceedings would not be defeated. He agreed to Mr Martin LEE 's view that the onus of proof should be on the party objecting against the use of hearsay evidence. However, Mr HO was concerned that the major problem of complexity characteristic of the existing system would still remain unresolved. He reiterated that the decision of the court on whether or not to exclude hearsay evidence in appropriate cases should be taken at the trial, and in the case of jury trials, in the absence of the jury. He added that the only scenario he could accept for the court to exercise discretion to exclude hearsay evidence at the pre-trial stage was where one party contested to have the hearsay evidence excluded for the purpose of striking out the case without trial.

19. Mr Martin LEE said that under his "half-way house" proposal, the discretion of the court to exclude hearsay evidence in exceptional circumstances, such as in the case of jury trials, should be exercised as soon as the judge was fully satisfied with the need to do so. The discretion to exclude hearsay evidence could be exercised, in some cases, at the early stage of the trial, thus saving a lot of the court's time and costs. In other circumstances where the judge had yet to make up his mind, the method of "de bene esse" could be applied, i.e. the judge could first let in the hearsay evidence and defer the ruling on the objection to the hearsay evidence to a later stage.

20. The Chairman opined that "de bene esse" was not meant for dealing with weight of evidence but relevance of evidence. There was a distinction between weight and admissibility. To address the question of prejudicial effect of hearsay evidence, she said that the court should be provided with a residual discretion to exclude hearsay evidence in exceptional circumstances, instead of relying on its power to assess weight to be attached to hearsay evidence.

Notice procedure for intended use of hearsay

21. The Chairman said that it could be taken as the view of the Bills Committee that a simplified notice procedure should be introduced for intended use of hearsay evidence in order to minimise the risk of "trial by ambush". Members noted the recommendation of the Hong Kong Bar Association that the Rules of the High Court should be amended with the inclusion of a provision for all parties to file a list of the documentary hearsay evidence they intended to adduce at trial, say, within 21 days after the case had been set down for trial (item 3 of Mr Mohan Bharwaney's letter dated 15 May 1998 attached vide LC Paper No. CB(2)217/98-99(01)).

22. Mr Martin LEE suggested that the Rules of the High Court could be amended to the effect that parties to litigation intending to adduce hearsay evidence were required to provide information on the hearsay evidence in the witness statements to be served to the other side. Based on the witness statements exchanged, the other party could then decide whether to lodge an objection and require the maker of the hearsay statement to attend court. Mr LEE further proposed that objection to intended use of hearsay evidence, if any, might be made at pre-trial reviews conducted by the trial judge together with solicitors or counsel.

23. Mr Albert HO said that the Bar Association had pointed out that witness statements usually dealt with oral evidence instead of documentary evidence. He suggested that a list of documentary hearsay evidence intended to be adduced at trial should be served by the parties together with the witness statements.

24. On notice requirement, Assistant Legal Adviser pointed out that unless a Committee Stage amendment was introduced to the Bill to provide for a specific provision on notice requirement in the principal Ordinance, amendments to the Rules of the High Court, as proposed by the Bar Association, might not be effected in the Bill by way of consequential amendments. The Rules would have to be amended in accordance with the provisions of the High Court Ordinance.

The way forward

25. To facilitate discussion at the next meeting, the Administration was requested to -

1. provide a comparison between the relevant provisions of the existing Ordinance and proposed section 54 in relation to proof of records of business or public body vis-a-vis hearsay evidence;
   
   
2. consider members' proposal that the court should be given a residual discretion to exclude hearsay evidence under exceptional circumstances, to be exercised at the end of a trial except when it was a jury trial in which case the question of admissibility of hearsay might be argued at the beginning of the trial in the absence of the jury. It was for the party objecting to the admission of hearsay evidence to argue to the satisfaction of the court that the evidence should be excluded;
   
   
3. consider members' proposal that there should be statutory provisions on a simplified notice procedure whereby any party intending to adduce hearsay evidence was required to give advance notice to the other party. The Administration might wish to make reference to the Bar Association's recommendation mentioned in paragraph 20 above; and
   
   
4. comment on a new section 55B(1) proposed by the Bar Association which had been discussed at the previous meeting (item 8 of Mr Mohan Bharwaney's letter mentioned above).

26. Members requested the Administration to consider, in the light of the views expressed, whether CSAs should be introduced to the Bill to implement new changes. The Administration was requested to submit draft CSAs, if any, for consideration by the Bills Committee at the next meeting.

Adm

II. Next meeting

27. The next meeting was scheduled for 29 October 1998 at 2:30 pm.

28. There being no other business, the meeting ended at 12:45 pm.

Legislative Council Secretariat
19 November 1998