Hong Kong Ordinances

EVIDENCE ORDINANCE - SECT 22A

Documentary evidence in criminal proceedings from computer records

(Past version on 30/06/1997).

(1) Subject to this section and section 22B, a statement contained in a
document produced by a computer shall be admitted in any criminal proceedings
as prima facie evidence of any fact stated therein if-

   (a)  direct oral evidence of that fact would be admissible in those
        proceedings; and

   (b)  it is shown that the conditions in subsection (2) are satisfied in
        relation to the statement and computer in question.

(2) The conditions referred to in subsection (1)(b) are-

   (a)  that the computer was used to store, process or retrieve information
        for the purposes of any activities carried on by any body or
        individual;

   (b)  that the information contained in the statement reproduces or is
        derived from information supplied to the computer in the course of
        those activities; and

   (c)  that while the computer was so used in the course of those activities-

        (i)    appropriate measures were in force for preventing unauthorized
               interference with the computer; and

        (ii)   the computer was operating properly or, if not, that any
               respect in which it was not operating properly or was out of
               operation was not such as to affect the production of the
               document or the accuracy of its contents.

(3) Notwithstanding subsection (1), a statement contained in a document
produced by a computer used over any period to store, process or
retrieve information for the purposes of any activities ("the relevant
activities") carried on over that period shall be admitted in any criminal
proceedings as prima facie evidence of any fact stated therein if-

   (a)  direct oral evidence of that fact would be admissible in those
        proceedings;

   (b)  it is shown that no person (other than a person charged with an
        offence to which such statement relates) who occupied a responsible
        position during that period in relation to the operation of the
        computer or the management of the relevant activities-

        (i)    can be found; or

        (ii)   if such a person is found, is willing and able to give evidence
               relating to the operation of the computer during that period;

   (c)  the document was so produced under the direction of a person having
        practical knowledge of and experience in the use of computers as a
        means of storing, processing or retrieving information; and

   (d)  at the time that the document was so produced the computer was
        operating properly or, if not, any respect in which it was not
        operating properly or was out of operation was not such as to affect
        the production of the document or the accuracy of its contents, but a
        statement contained in any such document which is tendered in evidence
        in criminal proceedings by or on behalf of any person charged with an
        offence to which such statement relates shall not be admissible under
        this subsection if that person occupied a responsible position during
        that period in relation to the operation of the computer or the
        management of the relevant activities.

(4) Where over a period the function of storing, processing or retrieving
information for the purposes of any activities carried on over that period was
performed by computer, whether-

   (a)  by a combination of computers operating over that period; or

   (b)  by different computers operating in succession over that period; or

   (c)  by different combinations of computers operating in succession over
        that period; or

   (d)  in any other manner involving the successive operation over that
        period, in whatever order, of one or more computers and one or more
        combinations of computers, all the computers used for that purpose
        whether by one or more persons or bodies during that period shall be
        treated for the purposes of this section as constituting a single
        computer.

(5) Subject to subsection (6), in any criminal proceedings where it is desired
to give a statement in evidence by virtue of this section, a certificate-

   (a)  identifying the document containing the statement and describing the
        manner in which it was produced, and explaining, so far as may be
        relevant in the proceedings, the nature and contents of the document;

   (b)  giving such particulars of any device involved in the production of
        that document as may be appropriate for the purpose of showing that
        the document was produced by a computer;

   (c)  dealing with any of the matters to which the conditions mentioned in
        subsection (2) relate, and purporting to be signed by a person
        occupying a responsible position in relation to the operation of the
        relevant device or the management of the relevant activities
        (whichever is appropriate) shall, on its production without further
        proof, be admitted in those proceedings as prima facie evidence of any
        matter stated in the certificate; and for the purposes of this
        subsection it shall be sufficient for a matter to be stated to the
        best of the knowledge and belief of the person stating it.

(6) Unless the court otherwise orders, a certificate shall not be admitted in
evidence under subsection (5) unless 14 days' notice in writing of the
intention to tender such certificate in evidence, together with a copy thereof
and of the statement to which it relates, has been served-

   (a)  where the certificate is tendered by the prosecution, on the defendant
        (or, if more than one, on each defendant) or his solicitor;

   (b)  where the certificate is tendered by a defendant, on the Secretary for
        Justice, (Amended L.N. 362 of 1997) but nothing in this subsection
        shall affect the admissibility of a certificate in respect of which
        notice has not been served in accordance with the requirements of this
        subsection if no person entitled to be so served objects to its being
        so admitted.

(7) Notwithstanding subsection (5), a court may (except where subsection (3)
applies) require oral evidence to be given of any of the matters mentioned in
subsection (5).

(8) Any person who in a certificate tendered in evidence under subsection (5)
makes a statement which he knows to be false or does not believe to be true
shall be guilty of an offence and shall be liable on conviction to a fine of
$50000 and to imprisonment for 2 years.

(9) For the purposes of this section-

   (a)  information shall be taken to be supplied to a computer if it is
        supplied to it in any appropriate form and whether it is so supplied
        directly or (with or without human intervention) by means of any
        appropriate equipment;

   (b)  where, in the course of activities carried on by any individual or
        body, information is supplied with a view to its being stored,
        processed or retrieved for the purposes of those activities by a
        computer operated otherwise than in the course of those activities,
        that information, if duly supplied to that computer, shall be taken to
        be supplied to it in the course of those activities;

   (c)  a document shall be taken to have been produced by a computer whether
        it was produced by it directly or (with or without human intervention)
        by means of any appropriate equipment.

(10) The Criminal Procedure Rules Committee constituted under section 9 of the
Criminal Procedure Ordinance ( Cap 221) may make rules with respect to the
procedure to be followed under this section. (Amended 13 of 1995 s. 27)

(11) Nothing in this section affects the admissibility of a document produced
by a computer where the document is tendered otherwise than for the purpose of
proving a fact stated in it.

(12) Subject to subsection (4), In this section "computer" (電腦) means any
device for storing, processing or retrieving information, and any reference to
information being derived from other information is a reference to its being
derived therefrom by calculation, comparison or any other process.

(13) The Legislative Council may by resolution amend subsection

(12) so as to make it cover devices performing functions of a similar
character to the functions performed by the devices mentioned in that
subsection. (Added 37 of 1984 s. 7)

"computer" (電腦)