Legislative Council

LC Paper No. LS 225/98-99

Object(s) of the Bill

1. To amend the Evidence Ordinance (Cap. 8) to abolish the common law requirement that a jury must be given a warning about the danger of convicting an accused charged with any sexual offence (including incest) on the uncorroborated evidence of the person in respect of whom that offence is alleged to have been committed; and
   
   
2. abolish the statutory requirements in relation to certain sexual offences under the Crimes Ordinance (Cap. 200) that prosecution evidence must be corroborated before an accused can be convicted.

LegCo Brief Reference

2. L/M(1) to LP5015/19/1/1C V dated 23 June 1999 issued by the Department of Justice.

Date of First Reading

3. 7 July 1999.

Comments

4. At present, the rules relating to corroboration of evidence in respect of sexual offences are as follows:

1. before an accused can be convicted of specific sexual offences under the Crimes Ordinance (offences relating to procuring a person by threats or intimidation to do an unlawful sexual act, procuring a person to become a prostitute, etc.), the evidence of the complainant in those offences must be corroborated in some material particular by other independent evidence; and
   
   
2. in other sexual offences such as rape and indecent assault, the common law requires that the trial judge must warn the jury (or himself in a trial without a jury) about the danger of convicting an accused on the uncorroborated evidence of the victim; but the jury (or the trial judge in a trial without a jury) may convict on such evidence, despite its being uncorroborated, if having paid due heed to the warning, the jury (or the trial judge) are convinced about the guilt of the accused.

5. The Bill now seeks to abolish both the common law practice of applying the corroboration rules in sexual offences (new section 4B, as added by clause 2) and the statutory requirements for corroborative evidence in sexual offences under the Crimes Ordinance (clause 3). In fact, the corroboration rules which had applied to the evidence of accomplices and to the evidence of children were abolished in Hong Kong in 1994 and 1995 respectively. These rules have been criticized for their complexity and for the problems in directing juries relating to the meaning of corroboration, to what evidence is capable of constituting corroboration, etc. For those reasons, the corroboration rules were abolished in England in 1994. According to the Administration, the corroboration rules applying to sexual offences have also been abolished in New Zealand and some Australian states.

6. In 1996, the Administration proposed the abolition of the corroboration rules in relation to sexual offences by way of the Evidence (Amendment) Bill 1996. However, the proposal was not pursued ultimately for reasons set out in paragraph 9 of the LegCo Brief. The Administration considers that there is a sound case for pursuing the abolition of the corroboration rules now in view of the criticism made of the rules by the Court of Appeal in HKSAR v Kwok Wai-chau (Cr. App. 502/97) on 5 June 1998. The Court of Appeal's criticism is set out in paragraph 10 of the LegCo Brief.

7. If enacted, new section 4B will not apply to trials and committal proceedings that commenced before the commencement of that section.

8. For Members' information, following the queries raised by members of the LegCo Panel on Administration of Justice and Legal Services ("the AJLS Panel") when the Panel was consulted on the Bill on 27 May 1999, the Administration has replied that some common law jurisdictions still retain the corroboration rules for sexual offences. Those jurisdictions include the United States of America, Scotland, Ireland, Singapore, Malaysia, India, Bermuda, Brunei, South Africa and Papua New Guinea.

Public Consultation

9. A total of 40 organizations including the Hong Kong Bar Association, the Law Society of Hong Kong, and a number of non-government organizations have been consulted. Among the 23 responses received, 20 indicated support, the Bar Association and the Legal Aid Department opposed to the proposal, and the Law Society, on the other hand, reserved its position.

Consultation with the LegCo Panel

10. The AJLS Panel was consulted on the Bill at its meeting on 27 May 1999. Members of the Panel had divided views on the proposal and recommended that a Bills Committee be set up to discuss the proposal in greater detail.

Conclusion

11. In the light of the recommendation of members of the AJLS Panel and the diversity of views expressed by various organizations on the proposal, Members may consider setting up a Bills Committee to study the Bill in detail. In the meantime, we have raised certain technical points with the Administration on the Bill and are waiting for the Administration's reply.


Prepared by


FUNG Sau-kuen, Connie
Assistant Legal Adviser
Legislative Council Secretariat
5 July 1999