Hong Kong Ordinances

EVIDENCE ORDINANCE - SECT 73

Power to take deposition of person dangerously ill, etc., and admissibility thereof

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2

(1) Whereas it may happen that a person, who is dangerously ill, and unable to
travel, may be able to give material and important information relating to an
indictable offence or to a person accused thereof, and it is desirable, in the
interest of truth and justice, that means should be provided for perpetuating
such testimony and for rendering the same available in cases of necessity-
(Amended 8 of 1912 s. 34; 5 of 1924 Schedule) Whenever it is made to appear,
to the satisfaction of any magistrate, that any person who is dangerously ill
and unable to travel, is able and willing to give material information
relating to an indictable offence or to a person accused thereof, it shall be
lawful for the said magistrate to take in writing his statement upon oath, and
such magistrate shall thereupon subscribe the same, and shall add thereto by
way of caption a statement of his reason for taking the same, and of the day
and place when and where the same was taken, and of the names of the persons,
if any, assisting at the taking thereof, and, if the same relates to any
offence for which any accused person is already committed or bailed to appear
for trial, shall transmit the same with the said addition to the Registrar of
the High Court, and in all other cases to the magistrates' clerk, who are
respectively required to preserve the same and file it for record; and if
afterwards, on the trial of any offender or offence to which the same may
relate, the person who made the said statement is proved to be dead, or if it
proved that there is no reasonable probability that such person will be able
to attend and give evidence at the trial, it shall be lawful to read such
statement in evidence, either for or against the person accused, without
further proof thereof, if the same purports to be signed by the magistrate by
or before whom it purports to be taken, and provided it is proved, to the
satisfaction of the court, that reasonable notice of the intention to take
such statement has been given to the person (whether prosecutor, or person
accused) against whom it is proposed to be read in evidence, and that such
person, or his counsel or solicitor, had or might have had, if he had chosen
to be present, full opportunity of cross-examining the person who made the
same. (Amended 51 of 1911; 63 of 1911 Schedule; 8 of 1912 s. 34; 23 of 1915 s.
4; 20 of 1922 s. 3; 27 of 1937 Schedule; 47 of 1997 s. 10; 25 of 1998 s. 2)

(2) No such statement shall be rejected on the ground of any failure to comply
with any of the provisions of subsection (1) with regard to the notice or the
caption unless the court is of opinion that the person accused was
substantially prejudiced by such failure. (Added 20 of 1922 s. 3) [cf. 1867 c.
35 s. 6 U.K.]