Legislative Council

LC Paper No. LS 3/98-99

Paper for the House Committee Meeting
of the Legislative Council
on 17 July 1998

Legal Service Division Report on
Evidence (Amendment) Bill 1998

Object(s) of the Bill

To amend the Evidence Ordinance (Cap. 8) in order to give effect to the recommendations of the Hong Kong Law Reform Commission to abolish the rule against hearsay evidence in civil proceedings and introduce a simpler system for the admission of hearsay evidence in those proceedings.

LegCo Brief Reference

2. LP/5019/5 issued by the Legal Policy Division of the Department of Justice in June 1998.

Date of First Reading

3. 15 July 1998.

Background

4. This Bill was based on the recommendations of the Hong Kong Law Reform Commission ( the LRC ) contained in its report entitled Report on Hearsay Rule in Civil Proceedings (Topic 3)�which was published in July 1996.

5. Hearsay is a statement made otherwise than by a person giving oral evidence in legal proceedings. At common law, a hearsay assertion is inadmissible as evidence of any fact asserted. This common law rule against hearsay was based on the view that such evidence is unsafe and unsatisfactory since the maker of a hearsay assertion would not have been bound by a solemn declaration to tell the truth, nor would the jury have the benefit of seeing the witness and observing his or her demeanour in order to assess the reliability of the evidence. Exceptions to the rule against hearsay have evolved from cases where judicial experience demonstrated that evidence was sound despite its hearsay nature, and where the circumstances necessitated reliance on a source that might otherwise be excluded.

6. Until 1969 the hearsay rule in civil proceedings in Hong Kong was governed by the common law, with the addition of several statutory exceptions based upon English legislation. The Evidence (Amendment) Ordinance (No. 25 of 1969) added Part IV to the Evidence Ordinance (Cap. 8) ( the Ordinance ), which has replaced the common law rule against hearsay and many of the common law exceptions. However, it preserves certain long established rules governing admissibility of hearsay evidence formerly admissible at common law and retains the existing case law on those exceptions.

7. The categories of hearsay statement described in Part IV of the Ordinance are admissible only if certain procedural requirements specified in the Rules of the High Court are complied with. Under those rules, a party who wishes to adduce a hearsay statement must serve a notice on all parties of his intention to do so, and the opposing party must serve a counter-notice if he wishes the maker of the hearsay statement to attend court.

8. In Hong Kong, the complexities of the notice requirements specified in Part IV of the Ordinance and the relevant Rules of the High Court have resulted in problems in complying with them and unnecessary inconvenience caused by the procedure. According to the LRC Report, some practitioners have reacted to the inconvenience by serving defective hearsay notices or serving them late while some avoid using the rules altogether. Moreover, the LRC considered that the current rules governing admissibility of business and other records are outdated and do not meet the requirements of the modern automated office. Part IV of the Ordinance and the above rules are based on the English Civil Evidence Act 1968 and the English Rules of the Supreme Court. In England, because of the criticism of the complexity of the rules and procedures, the Civil Evidence Act 1995 ("the 1995 Act") was enacted to abolish the exclusionary rules against hearsay and introduce a simpler system for the admission of hearsay evidence in civil proceedings.

Comments

9. The Bill, which is modelled on the 1995 Act, seeks to remove the complexities and shortcomings of the exclusionary rule embodied in Part IV of the Ordinance and provides a new system for the admission of hearsay evidence in civil proceedings. The main provisions of the Bill are set out as follows :

Admissibility of hearsay evidence subject to safeguards

10. The Bill provides that in civil proceedings, evidence should not be excluded on the ground that it is hearsay and hearsay of whatever degree should be admissible. At the same time, safeguards should be provided in order to avoid possible abuse of the relaxation of the hearsay rule.

11. These safeguards include provision enabling parties to call for cross-examination a person whose statement has been tendered as hearsay evidence (new section 48), guidelines to assist the court in estimating the weight to be given to hearsay evidence adduced (new section 49), and provision for a party to call evidence to attack or support the credibility of the person who makes the hearsay statement (new section 50).

Proof of documents and copies of documents

12. Under the Ordinance, a hearsay statement contained in a document can be proved in civil proceedings by the production of the document itself or by the production of a copy of the document. However, it is not clear whether a copy of a copy is admissible.

13. New section 53 provides that a statement contained in a document admissible as evidence in civil proceedings is capable of being proved by the production of that document or by the production of a copy thereof or a copy of a copy, notwithstanding how many removes there are between the copy and the original, authenticated in such manner as the court might approve.

Business, computerised and other records

14. The Bill simplifies the rules governing the admissibility of business, computerised and other records. New section 54 provides that a document, including a document stored by computer, which forms part of the records of a business or public body may be received in evidence without further proof and the definition of "records" should cover records in any form, and includes computer-generated records.

Notice of intention to adduce hearsay

15. Members may wish to note that while the 1995 Act has introduced a new, simplified notice provision, the Bill does not make any provision for the giving of notice of intention to adduce hearsay.

16. Under the 1995 Act, a party proposing to adduce hearsay evidence in civil proceedings is required to give notice of the fact and particulars of the evidence, where reasonable and practicable. This duty, and the manner of its exercise, is subject to rules of court which allow the requirement to give notice to be disapplied where appropriate. Failure to comply with this duty will not render the hearsay evidence inadmissible but may attract cost or other procedural sanctions at the court's disposal.

17. However, the LRC considered that no special provision should be made for the giving of notice of intention to adduce hearsay evidence and the issue as to whether such a notice should be given should be left to informal arrangement between the parties. According to the LRC, the present judicial case management system, and the requirement for exchange of witness statements, would put all parties on notice of any documentary and oral hearsay evidence before trial and would thereby minimize the risk of surprise at trial even if hearsay notices are dispensed with.

Other provisions

18. The Bill preserves certain common law exceptions to the rule against hearsay. Those exceptions include published works dealing with matters of a public nature, public documents and records.

19. If enacted, the Bill will come into operation on a day to be appointed by the Secretary for Justice by notice in the Gazette. However, the amendments contained in the Bill and the consequential amendments specified in the Schedule thereto will not apply to civil proceedings commenced before the commencement of the Bill after it is enacted.

Public Consultation

20. According to paragraph 20 of the LegCo Brief, a draft of the Bill has been sent to the Judiciary, the Hong Kong Bar Association and the Law Society of Hong Kong for comments. The Judiciary has no comment on the Bill except the drafting of some provisions of the Bill. The legal profession, in general, support the Bill. However, the Bar Association considers that the Bill should vest a residual discretion in the court to exclude hearsay evidence in certain cases. On the other hand, the Law Society is concerned about the absence of a formal notice requirement in the Bill.

Consultation with the LegCo Panel

21. There has not been any consultation with any LegCo Panel.

Conclusion

22. The Legal Service Division is seeking the Administration's comments on certain technical points of the Bill. In light of the views and concerns expressed by the legal profession set out in paragraph 20 above, Members may consider setting up a Bills Committee to study the Bill in detail.

Prepared by

FUNG Sau-kuen, Connie
Assistant Legal Adviser
Legislative Council Secretariat
13 July 1998