Legislative Council

LC Paper No. CB(2)906/98-99
(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 Thursday, 29 October 1998 at 2:30 pm in Conference Room B of the Legislative Council Building

Members Present :

Hon Margaret NG (Chairman)
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


Members Absent:

Hon Albert HO Chun-yan

Public Officers Attending:

Mr Michael SCOTT

Deputy Solicitor General (Acting)

Mr Geoffrey FOX

Senior Assistant Law Draftsman

Ms Lonnie NG

Senior Government Counsel

Ms Daphne SIU

Senior 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. Discussion of outstanding issues
(LC Paper Nos. CB(2)465/98-99; 217/98-99(01); 509/98-99(01) and 512/98-99(01))

The Chairman informed members that in response to the Bills Committee's proposals that the court should be given a residual discretion to exclude hearsay evidence under exceptional circumstances and that there should be statutory provisions for a simplified notice procedure for adducing hearsay evidence, the Administration had prepared draft Committee Stage amendments ("CSAs") for the Bills Committee's consideration (LC Paper No. CB(2)465/98-99(02)). Members considered that the proposed CSAs to a large extent had addressed the Bills Committee's concerns expressed at previous meetings.

2. Members noted that the Judiciary did not support the draft CSAs proposed by the Administration. In the Judiciary's opinion, adopting the CSAs would undermine the main objectives of the Law Reform Commission's recommendations. The germane parts of the Judiciary's comments were set out in the Administration's letter to the Bills Committee dated 27 October 1998 (circulated vide LC Paper No. CB(2)512/98-99(01)). The Judiciary was in favour of adopting the original proposals in the Bill.

3. Senior Assistant Law Draftsman ("SALD") advised that the original position of the Administration was that it did not object to moving the CSAs. However, in view of the adverse comments made by the Judiciary which the Administration only received a few days ago, the Administration had to carry out further internal consultation before it could finalise its decision.

Examination of the draft CSAs
Proposed new section 47(1)(b)

4. Members noted that proposed new section 47(1)(b) stated that "In civil proceedings, evidence shall not be excluded on the ground that it is hearsay unless the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice."

Ground of "unfairness"

5. Referring to the Administration's paper prepared for an earlier meeting of the Bills Committee (LC Paper No. CB(2) 225/98-99(01)), Mr Martin LEE said that in New Zealand and Australia, the court had the power to exclude hearsay evidence on ground of unfair prejudice. He enquired whether "unfairness" to a party could be included as a separate ground for exclusion of hearsay evidence.

6. The Chairman said that if unfairness referred to lateness or failure to comply with rules of court relating to a duty to give notice to adduce hearsay evidence as required under proposed new sections 47A(1)(b) and 47A(2) in the CSAs, then the use of "unfairness" as a valid ground for exclusion of hearsay evidence would conflict with proposed new section 47A(4) which provided that non-compliance with rules of court would not affect the admissibility of the evidence, but the court could take this into account in imposing costs and attaching weight to such evidence. The Chairman was not in favour of further broadening the grounds for exclusion.

7. Deputy Solicitor General (Acting) ("DSG(Ag)") added that other scenarios of unfairness, such as unreasonable failure of the party adducing the hearsay evidence to call the maker of the original hearsay statement as a witness as mentioned by Mr Martin LEE, could be dealt with under proposed section 49(2)(a) in the Bill. SALD supplemented that in clear-cut cases of severe unfairness, even if a piece of hearsay evidence had not been excluded under proposed new section 47(1)(b) on application of the party opposing to the admission of the evidence, there was nothing to preclude the court from attaching absolutely no weight to the evidence admitted under proposed section 49 in the Bill.

"Exclusion" vs "Admission" of hearsay evidence

8. Some members opined that the drafting of proposed new section 47(1)(b) could be improved. Members discussed the effect of changing the phrase "the exclusion of the evidence is not prejudicial to the interests of justice" to "the admission of the evidence is prejudicial to the interests of justice". Mr Martin LEE said that this would place the burden of proof heavier on the party objecting to the admission of the evidence. Mr Ambrose LAU pointed out that the proposed change would make it easier for hearsay evidence to be admitted.

9. DSG(Ag) explained that in some cases, even if the admission of hearsay evidence was prejudicial to the interests of justice, the court did not want to exclude it because the exclusion would be equally prejudicial. SALD said that that he could redraft the subsection into a double-hurdle provision without changing its substance.

10. After discussing various alternatives, the Chairman requested the Administration to review the drafting of the proposed subsection to see whether the court, in exercising its discretion to exclude hearsay evidence, should also be required to consider whether the admission of such evidence was prejudicial to the interests of justice. The Administration agreed. "Interests of justice" vs "Interests of a party"

Adm

11. Mr Martin LEE considered the phrase "prejudicial to the interests of justice" in proposed new section 47(1)(b) to be wider than necessary as very little public interest was usually involved in civil proceedings. Members discussed the various suggested versions put forward by Mr LEE to redraft the subsection to replace the phrase "interests of justice" by "interests of a party". SALD said that the Administration would have to reconsider these suggestions which represented substantial changes to the CSAs proposed by the Administration.

12. The Chairman considered that the question of whether the court should have power to exclude evidence which was "prejudicial to the interests of a party" or "prejudicial to the interests of justice" was a matter of legislative intent. From the practical point of view, it would be easier to prove that a piece of hearsay evidence was prejudicial to the interests of a party than it was to prove that the evidence was prejudicial to the interests of justice. In the latter case, it was necessary for the court to balance the interests of all parties to litigation concerned. She said that proposed new section 47(1)(b) should reflect the policy and legislative intent to enable the court to exercise its discretion to exclude hearsay evidence in the appropriate manner.

13. Assistant Legal Adviser ("ALA") pointed out that "prejudicial to the interests of justice" had a wider scope of meaning than "prejudicial to the interests of a party". She agreed that it was easier to prove to the satisfaction of the court the latter than the former. Mr TSANG Yok-sing considered that any changes to the newly proposed section 47(1)(b) should not make it easier for hearsay evidence to be excluded, as this would likely arouse even stronger objection from the Judiciary.

14. SALD said that proposed new section 47(1)(b) was not an avoidance of doubt provision to prescribe what the court should do. Its purpose was to leave it to the court to determine, in a given case, whether or not a piece of hearsay evidence should be excluded on the basis of its being prejudicial to the interests of justice, having regard to all the arguments put forward by the parties concerned. He said that the term "interests of justice" was used in other legislation as well. It should be a matter for the court to judge what interests of justice were really involved in the particular circumstances of a case.

15. In response to a suggestion made by a member, the Chairman said that giving examples in legislation to illustrate the meaning of prejudice to the interests of justice was unnecessary as the court and counsel to parties to litigation generally faced no difficulties with how interests of justice should be interpreted in a given case. She opined that any attempt to qualify the meaning might confuse rather than clarify the matter. She said that the fundamental issue was whether the court, in exercising its discretion to exclude hearsay evidence, should balance the interests of all parties, or should only have regard to the interests of the party opposing to the use of such hearsay evidence.

16. In response to Mr Martin LEE, SALD confirmed that the factors specified in proposed section 49(2)(a) - (g) of the Bill were relevant to the consideration of whether or not the evidence was prejudicial to the interests of justice, and that the list was not exhaustive.

17. After some further discussion, Mr Martin LEE said that he had no objection to new section 47(1)(b) proposed by the Administration.

Proposed new section 47(1A)

18. The Administration advised that this proposed section specified that in the case of civil proceedings before a jury, the court might determine whether or not to exclude evidence on the ground that it was hearsay at the beginning of the proceedings and in the absence of the jury. The provision would avoid unnecessary costs and time-wasting brought about by interlocutory hearings and appeals to deal with admissibility of hearsay evidence.

Proposed new section 47A

19. SALD advised that proposed section 47A(1)(a) was modelled on section 2 of the English Civil Evidence Act 1995 but did not follow the latter verbatism as to the working of the notice procedure for intention to adduce hearsay evidence. Contrary to the UK system, the intention of the current proposal was to dispense with the general requirement for notice, except in respect of those classes of hearsay evidence and civil proceedings to which rules of court had been made to specify that the notice procedure provided in proposed section 47A(2) should apply. He further pointed out that proposed section 47A(4) was a substantive provision to ensure that admissibility of hearsay evidence would not be affected even if there was a failure to comply with the notice requirement in proposed section 47A(2), or with rules under proposed section 47A(1)(b).

20. As regards the rationale of proposed section 47A(1) to specify classes of hearsay evidence or civil proceedings in relation to which proposed section 47A(2) should apply, SALD explained that it was considered that the rule-making body of the Judiciary, in light of its experience and in consultation with the legal profession, could best determine which classes of hearsay evidence or civil proceedings were most appropriate to be caught by the requirement to give notice to adduce hearsay evidence. Proposed section 47A(1) therefore entrusted the Judiciary's rule-making body to make the necessary rules of court. This approach was more temperate than having a blanket application of the provision to all classes of hearsay evidence or civil proceedings as the court might find it necessary to disapply the provision to some of those classes. He added that in view of proposed section 47A, it was not intended that consequential amendments be made to the High Court Ordinance (Cap. 4) or the Rules of the High Court.

21. In answer to the question raised by Mr Martin LEE, ALA said that "civil proceedings" was generally defined under proposed section 46 in the Bill. The Administration advised that civil proceedings covered judicial reviews and matrimonial proceedings.

22. In response to members, SALD said that the use of the terminology of "classes" of hearsay evidence or civil proceedings in proposed section 47A(1)(a) followed the meaning of the word used in section 2 of the English Civil Evidence Act 1995. The rules of court referred to in proposed section 47A(1) were subsidiary legislation which would be subject to the normal procedures of vetting by the Legislative Council. ALA added that it was for the Rules Committee of the High Court, comprising members the Judiciary, the Department of Justice and the legal profession, to make rules of court.

23. The Chairman agreed that it should be a matter for the Rules Committee to decide whether the requirement to give notice to adduce hearsay evidence should apply to certain classes of hearsay evidence or civil proceedings. Yet, she opined that proposed section 47A(1)(a) should be drafted in more general terms to provide more flexibility to the rule-making body, without compelling it to specify classes of hearsay evidence or civil proceedings to which the notice requirement should apply. She said that the concern of the Bills Committee was to have a simplified and informal notice mechanism to deal with intended use of hearsay evidence in appropriate circumstances. SALD agreed to reconsider the drafting of the proposed subsection along this line. Clause-by clause examination of the Bill

Adm

24. ALA drew the meeting's attention to the following proposed sections in the Bill which might require minor amendments -

1. proposed section 54(3) - to amend "purposes" to "purpose" as suggested by the Judiciary; and

2. proposed section 55B(1) - to substitute "rights" with "powers" as previously recommended by Mr Martin LEE.

25. The Administration agreed to consider the proposed amendments and introduce CSAs where necessary.

Adm

II. The way forward