Bills Committee on Evidence (Amendment) Bill 1998 (Minutes) 29 July 1998

LC Paper No. CB(2)242/98-99
(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 Wednesday, 29 July 1998 at 10:45 am in Conference Room A 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 Agnes CHEUNG: Senior Government Counsel
Ms Daphne SIU: Government Counsel

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. Election of Chairman

Mr Martin LEE Chu-ming was elected as the presiding member.

1.Miss Margaret NG was nominated by Mr Albert HO Chun-yan and the nomination was seconded by Mr Ambrose LAU. Miss Margaret NG accepted the nomination. There being no other nominations, Miss Margaret NG was elected as Chairman of the Bills Committee. Miss Margaret NG then took the chair.

II. Withdrawal of membership

2.Members noted that Mr TAM Yiu-chung had withdrawn from the membership of the Bills Committee.

III. Meeting with the Administration
(the Bill - circulated vide LC Paper No. CB(3)16/98-99;
the Legislative Council Brief - Ref: LP/5019/5; and
the Legal Service Report - Ref: LC Paper No. LS3/98-99)

3.At the invitation of the Chairman, Senior Assistant Solicitor General (SASG) gave a brief outline on the Bill. He said that at common law, a hearsay assertion was inadmissible as evidence of any fact asserted. However, this common law rule had proved to be outdated and unsatisfactory. The Bill now sought to amend the Evidence Ordinance (Cap. 8) in order to implement the recommendations of the Law Reform Commission of Hong Kong (the LRC) to abolish the rule against hearsay evidence in civil proceedings and introduce a simpler system for the admission of hearsay evidence. He added that while the Bill aimed to abolish the rule against hearsay evidence in civil proceedings, it also introduced safeguards such as provisions enabling the parties to call for cross-examination of a person whose statement had been tendered as hearsay evidence as well as guidelines to assist the court in estimating the weight to be given to hearsay evidence adduced. The Bill also removed the present procedural requirements specified in the Rules of the High Court for one party wishing to adduce hearsay statements to give notice of intention to do so and for the opposing party to serve a counter-notice if he wished the maker of the hearsay statement to attend court. The LRC considered that the issue as to whether such a notice should be given should be left to the judicial case management system and informal arrangement between the parties concerned.

4.SASG advised that the Administration had consulted the Hong Kong Bar Association and the Law Society of Hong Kong respectively on the Bill. While both the Bar Association and the Law Society were in general agreement with the Bill, the former took the view that the Bill should vest a residual discretion in the court to exclude hearsay evidence in certain cases. The latter, on the other hand, was not convinced that the issue of notification of intention to adduce hearsay evidence should be determined on an informal basis.

Notification requirement

5.On the requirement for notification of intention to adduce hearsay evidence, SASG said that initially both the Bar Association and the Law Society were of the opinion that some form of formal notification was desirable. In the light of public consultation, the LRC had come to the view that the present judicial case management procedures established by the practice directions of the High Court and the requirement for parties to exchange pre-trial witness statements were sufficient safeguards to help minimise the risk of surprise at trial even if hearsay notices were dispensed with. The LRC had also taken note of the fact that in actual practice, most legal practitioners did not follow any form of notification procedures, and that a formal notice requirement would simply be duplicative of the judicial case management procedures. The LRC therefore recommended that the present hearsay notice and counter-notice requirements specified in the Rules of the High Court be abolished. While the Bar Association finally agreed with the recommendation, the Law Society maintained the view that a system of formal notification was necessary.

6.SASG said that the Administration was of the view that subject to the safeguards, a formal notification requirement would not be necessary. If future operation showed that some form of formal notification should be introduced, the matter could still be dealt with by other means, such as by way of subsidiary legislation or practice directions of the court.

Residual discretion in the court to exclude hearsay evidence

7.In response to Mr Ambrose LAU's concern about the Bar Association's view that the court should be vested with a residual discretion to exclude hearsay evidence, the Administration explained that although there was no formal provision in the Bill in this respect, the court nevertheless had an inherent power under the common law to regulate proceedings, and to disregard evidence including hearsay statements which was considered to be unfair and prejudicial. The Administration advised that proposed section 55B in the Bill preserved the right of the court to exclude evidence on grounds other than that it was hearsay.

8.Mr Martin LEE pointed out that the concern of the Bar Association was that given that the Bill allowed hearsay of whatever degree to be admissible in civil proceedings, the judge and jury would be faced with the difficult task of estimating the appropriate weight to be given to each and every piece of such hearsay evidence. The burden would become all the more onerous in the case of evenly contested civil suits where both parties might adduce second-hand or multiple hearsay statements. Mr LEE added that if the Bill was enacted as proposed, the court had to act on every hearsay statement it received indiscriminately. Owing to the difficulty in verifying the reliability of hearsay statements, this might create unfairness and injustice. Mr LEE opined that the Bar Association's suggestion to provide the court with an express statutory power to refuse admission of hearsay evidence in certain cases would do justice to the parties concerned.

9.In response, SASG said that even if there were statutory provisions for the court to exclude hearsay evidence, the court would still have to assess the reliability of the hearsay evidence in question on grounds of, for example, cogency and safety, before it could decide on its admissibility or otherwise.

10.Mr Albert HO said that there could be counter-argument to the Bar Association's position in that an express statutory provision giving the court a discretionary power to exclude hearsay evidence might necessitate the holding of preliminary hearings to consider the admissibility of hearsay evidence, the outcome of which could be subject to appeal. Hence, the proposed system which allowed general admissibility of hearsay and let the court to decide the weight to be attached to it had the merit of shortening the proceedings.

11.The Chairman said that it was the Bar Association's position that the court should be vested with a residual discretion to exclude evidence on the ground that it was hearsay. She pointed out that there was a substantial difference between "admissibility" and "weight" of hearsay evidence. As far as litigation was concerned, one party could not bring an action in court without any admissible evidence. The question of weight came into play only after evidence was admitted in court. The proposal to abolish the exclusionary rule against hearsay would render all hearsay evidence admissible in civil proceedings. The shift of the focus from "admissibility" all the way to "weight" might result in a lot more court actions brought on the ground of hearsay evidence as well as more lengthened trials as some hearsay evidence might in the end turn out to carry no weight. Consequently this would lead to a wastage of court's time and increased costs.

12.The Chairman added that in the case of a jury trial where a lot of "rumours", or hearsay assertions, were tendered as evidence, and where the court had to admit all such hearsay evidence, the question must arise as to whether the jury, being composed of lay persons, would be able to decide how much weight should be put on such hearsay evidence. Pointing out that there must be a purpose for adopting the rule against hearsay in the first place, she cautioned that any decision to abolish the exclusionary rule must be made carefully taking into account the material impacts on civil litigation, and whether the protection currently available to some people would be removed following the abolition of the hearsay rule.

13.Echoing the Chairman's view, Mr Martin LEE expressed concern that removal of the hearsay rule might encourage both frivolous actions and defences. This would bring about more civil proceedings which might not have been possible in the first place under the present rule.

14.The Administration advised that the safeguard to avoid possible abuses fell back on the question of weight to be given by the court to hearsay evidence. Case law demonstrated that in civil proceedings, where the court found that any hearsay evidence was of limited relevance or value, or where the admission of such evidence would give rise to unfairness and severe prejudice, the court could attach minimal weight to, or disregard, such evidence. In the case of a jury trial, the judge could assist or give directions to the jury in estimating the weight, if any, to be given to hearsay evidence. In justifiable circumstances, such as where the hearsay evidence was completely superfluous, the court could impose costs on the parties concerned. The Administration added that proposed section 49 in the Bill contained guidelines which the court should have regard to in estimating the weight to be given to hearsay evidence adduced. Such guidelines would also assist counsel representing the parties in a trial to act prudently in deciding whether any hearsay evidence should be adduced.

Consequences of removing the rule against hearsay

15.In response to members's questions, the Administration advised that the LRC's study had made no reference to the possibility and likely impact of a significant rise in the number of litigation cases following the abolition of the hearsay rule. The LRC had considered the point on fairness of trial and concluded that justice would not be compromised, given the power of the court to decide on the weight to be accorded to hearsay evidence adduced. The Administration believed that with sufficient safeguards, admitting hearsay of whatever degree would enhance justice because the court would be able to consider all relevant evidence which might otherwise be excluded.

16.Mr Eric LEE Ka-cheung said that civil proceedings, particularly those involving commercial litigation, usually underwent a prolonged period of trial. He was concerned that the general relaxation of the hearsay rule might open up possibilities for people to abuse the system by presenting extensive hearsay evidence, including those in the form of media reports, in the course of trial. He opined that it might be worthwhile to include provisions in the legislation to limit the scope of hearsay evidence which could be admitted in court. Following on Mr LEE's point, the Chairman asked whether it would be possible, should the Bill be passed, to cross-examine a witness with a media report about him or anything he was supposed to have knowledge of.

17.The Administration replied that there was no express provision in the Bill to limit the scope of admissible hearsay evidence, apart from proposed section 49 which dealt with guidelines and factors which the court should have regard to on weighing of hearsay evidence. By virtue of the amendments proposed in the Bill, a media report about a person could be admissible in court for the purpose of cross-examining such person if it could be shown that the person had personal knowledge of the matter being dealt with. As to the danger of possible abuse of the system by parties tendering large quantities of hearsay assertions which carried no weight, SASG responded that people normally would not go for litigation without a good case and any prudent lawyers would advise their clients to exercise due caution before seeking to introduce hearsay evidence. As far as the courts were concerned, SASG said that judges were competently trained in sifting evidence and estimating the weight, if any, to be given to hearsay evidence. The Administration was satisfied that the operation of proposed section 49 in the Bill, coupled with the power of the court to impose costs for superfluous hearsay, would be sufficient safeguards to prevent abuse.

18.Mr Martin LEE doubted the deterrent effect of imposing costs. He said that in actual practice, the court rarely imposed costs on a party solely because it had adduced unreliable hearsay evidence.

Provisions as to rules of court

19.In reply to Mr Martin LEE's question, the Administration confirmed that the power to make rules of court referred to in proposed section 55A was vested in the Chief Justice.

20.Mr Martin LEE noted that the Bill proposed, inter alia, the abolition of the requirement of formal hearsay notification (proposed repeal of Order 38, rules 20 to 34 of the Rules of the High Court (Cap. 4 sub. leg.)). He said that one of the major considerations of the Bills Committee would be to determine whether some form of formal notification should be retained. He opined that if in the end it was agreed that some modified form of notification was necessary and such changes should be implemented by way of subsidiary legislation made under proposed section 55A, the Bills Committee should scrutinize the subsidiary legislation and the Bill as a package.

21.Existing law and practice in relation to hearsay evidence in civil proceedings in common law jurisdictions

22.Some members considered that the proposal to abolish the hearsay rule in civil proceedings was a drastic departure from the existing system and carried significant implications on civil litigation. Members agreed that the practice in other major common law jurisdictions in dealing with hearsay evidence in civil proceedings should be looked at in order to decide which approach would be best applicable to Hong Kong.

23.In response, the Administration advised that the practice adopted in other common law countries had been summarised in Appendix IV of the LRC's Report on Hearsay Rule in Civil Proceedings (Topic 3) published in July 1996. In short, the New Zealand model provided for the admissibility of hearsay evidence in civil proceedings as evidence of the fact asserted, subject to a number of conditions, for example, if the maker of the statement had personal knowledge of the matter dealt with in the statement and was unavailable to give evidence. In Australia, the hearsay rule was retained. In the United States of America, the hearsay rule was preserved, subject to a large number of exceptions. In Canada, the rule against hearsay had not been codified but the common law position was maintained, i.e. the courts had held that hearsay evidence in civil proceedings was not admissible subject to exceptions in certain circumstances. In Northern Ireland, the courts recognised the rule against hearsay. While the Law Reform Advisory Committee for Northern Ireland in 1990 preferred abolition of the hearsay rule subject to safeguards, the option had not been implemented. In Scotland, the Civil Evidence (Scotland) Act 1988 abolished the rule against hearsay and removed any requirement for notification of hearsay evidence. In England and Wales, the 1993 Report of the English Law Commission recommended the abolition of the exclusionary rule subject to certain procedural safeguards. The Civil Evidence Act 1995 implemented the recommendations of the English Law Commission by abolishing the exclusionary rule against hearsay in civil proceedings and introducing a simpler system for the admission of hearsay evidence. With the exception of a simplified form of notification adopted by England and Wales, the proposed amendments in the Bill in fact were largely based on the provisions of the UK Civil Evidence Act 1995.

24.Some members were concerned that adoption of the Scottish model, which allowed the admissibility of hearsay evidence without any form of notification requirement, might be a step too far for Hong Kong to take at this stage. To facilitate more in-depth study by the Bills Committee, members requested the Administration to provide a paper with the following information -

a comparison on existing law and practice in relation to hearsay evidence in civil proceedings in other common law jurisdictions (e.g. Scotland, England and Wales, Northern Ireland, Ireland, Australia, New Zealand, Canada and USA) vis a vis the proposals in the Bill, including exceptions to the hearsay rule, safeguards against abuse of general admission of hearsay evidence and notification requirement of intention to use hearsay evidence;
information on relevant commentaries on the operation of the systems on hearsay evidence in civil proceedings in the countries listed in (a) above; and
a comparison between the provisions of the Bill and the recommendations of the LRC's Report on Hearsay Rule in Civil Proceedings published in July 1996, highlighting major differences, if any.

25.Members also agreed that the Bills Committee should make particular reference to the experience in England and Wales as well as Scotland following abolition of the rule against hearsay in civil proceedings in those countries. In this regard, the Clerk would write to the legal professional bodies in those countries for their views on the operation of their systems, particularly from the perspective of legal practitioners.

Deputations

26.Members agreed to invite the following organisations to provide written submissions on the Bill and to present their views at the next meeting -

Hong Kong Bar Association;
the Law Society of Hong Kong;
Faculty of Law of the University of Hong Kong; and
School of Law of the City University of Hong Kong.

Other documents

27.The meeting agreed that copies of the following documents should be made available for members* reference -

the 1996 LRC's Report on Hearsay Rule in Civil Proceedings (to be provided by the Administration);
Reports of the English Law Commission and Scottish Law Commission on the subject of hearsay evidence in civil proceedings (to be provided by the Administration); and
the Civil Evidence Act 1995 of the UK (to be provided by Assistant Legal Adviser).

IV. Next meeting

28.The next meeting was scheduled for 17 September 1998 at 10:45 am to receive deputations and to continue discussion with the Administration on the Bill.

29.There being no other business, the meeting ended at 12:20 pm.

Legislative Council Secretariat
11 September 1998