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The Law Reform Commission of Hong Kong

Hearsay in Criminal Proceedings

Sub-committee

Consultation Paper

Hearsay in Criminal Proceedings

This consultation paper can be found on the Internet at:

http://www.hkreform.gov.hk

November 2005

This Consultation Paper has been prepared by the Hearsay in Criminal Proceedings Sub-committee of the Law Reform Commission. It does not represent the final views of either the Sub-committee or the Law Reform Commission, and is circulated for comment and discussion only.

The Sub-committee would be grateful for comments on this Consultation Paper by 28 February 2006. All correspondence should be addressed to:

The Secretary

The Hearsay in Criminal Proceedings

Sub-committee

The Law Reform Commission

20th Floor, Harcourt House

39 Gloucester Road

Wanchai

Hong Kong

Telephone: (852) 2528 0472

Fax: (852) 2865 2902

E-mail: hklrc@hkreform.gov.hk

It may be helpful for the Commission and the Sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential.

It is the Commission's usual practice to acknowledge by name in the final report anyone who responds to a consultation paper. If you do not wish such an acknowledgment, please say so in your response.

The Law Reform Commission

of Hong Kong

Hearsay in Criminal Proceedings

Sub-committee

Consultation Paper

Hearsay in Criminal Proceedings

_______________________________

CONTENTS

Chapter	Page
Preface	1
Terms of reference	1
The Sub-committee	1
Working method	2
What is "the rule against hearsay"?	2
Criticisms of the rule and reform in other jurisdictions	3
Consultation paper	3
1 Brief history of the hearsay rule	5
2 Justification for the hearsay rule	8
3 The present law	11
Scope of the hearsay rule	11
(A) Statement and definition of the rule	11
(B) Implied assertions	12
(C) Machine recorded information	14
Common law exceptions to the hearsay rule	15
(A) Admissions and confessions of an accused	15
(B) Co-conspirator's rule	17
(C) Statements of persons now deceased	17
(D) Res gestae	19
(E) Statements made in public documents	20
(F) Statements made in previous proceedings	20
(G) Opinion evidence	21
Statutory exceptions to the hearsay rule	22
(A) Depositions	22
(B) Business records	24
(C) Computer records	26
(D) Banking records	27
(E) Public documents	29
(F) Official documents	29
(G) Other notable documentary hearsay exceptions	30
4 Cardinal principles and the shortcomings of the present law	32
Widespread criticism of the common law position	32
Is Hong Kong exceptional?	36
Principles of reform and the identification of shortcomings	37
Shortcomings	38
(1) Evidentiary rules should, within the limits of justice and fairness to all parties, facilitate and not hinder the determination of relevant issues	38
(2) Conviction of the innocent is always to be avoided. All accused have a fundamental right to make full answer and defence to a criminal charge	40
(3) Evidentiary rules should be clear, simple, accessible, and easily understood	43
(4) Evidentiary rules should be logical, consistent, and based on principled reasons	44
(5) Questions of admissibility should be determinable with a fair degree of certainty prior to trial so that the legal adviser may properly advise the client on the likely trial outcome	47
(6) Evidence law should reflect increasing global mobility and modern advancements in electronic communications	48
5 International developments	49
Introduction	49
The international trend	49
Reforms proposed or adopted in other jurisdictions	51
Australia	51
Canada	55
England and Wales	58
New Zealand	68
Scotland	72
South Africa	76
6 The need for reform	78
7 Safeguards as a condition for reform	80
8 Options for reform	83
A model for the present law	83
Rejected options and proposals	84
The polar extremes: no change and free admissibility	84
Best available evidence	86
Discretion to admit only defence hearsay	87
Broad discretion to admit ¡V the South African model	89
The three main options	91
Option 1 ("the English model") : Wide "pigeonholes exceptions" with a narrow discretion to admit	91
Option 2 ("the United States model") : Codification	95
Option 3 ("the New Zealand Law Commission model") : Discretion based on necessity and reliability	97
9 Proposed model of reform ¡V the Core Scheme	107
Overview of proposed model	107
The proposed Core Scheme	108
Explanation and justification	111
Definition of "hearsay" (proposal 1)	111
Implied assertions outside the definition (proposal 1)	112
Multiple hearsay (proposal 1)	113
Definition of "criminal proceeding" (proposal 2)	114
Exclusionary rule retained (proposal 2)	116
Effect on the common law (proposals 3-5)	116
Continued operation of existing statutory exceptions (proposal 4)	120
Admission by consent (proposal 6)	121
New discretionary power to admit hearsay (proposal 7)	121
Admission of evidence relevant to credibility and reliability of declarant (proposal 15)	137
Discretionary power to direct verdict of acquittal (proposal 16)	139
Safeguards check	142
10 Special topics	144
Banking, business and computer records	144
Bankers' records	144
"Business" records	146
Computer records	148
Prior statements of witnesses	152
Prior inconsistent statements	153
Prior consistent statements	164
Other issues	171
Pre-trial procedures	172
Sentencing	173
England: hearsay admissible by prosecution in conspiracy sentencing	174
Canada: hearsay admissible by prosecution in sentencing	175
Australia: no hearsay by prosecution in sentencing	175
New Zealand: no hearsay by prosecution in sentencing	176
Consistent law reform: conviction and sentencing	176
Extradition	177
11 Human rights implications	178
Relevant human rights provisions in Hong Kong	178
Basic Law	178
Hong Kong Bill of Rights	179
The accused's right to "examine the witnesses against him"	180
European jurisprudence on human rights and hearsay	185
Application of principles to the proposed model	189
12 Summary of recommendations	192
Options for reform	192
Banking, business and computer records	196
Prior statements of witnesses	197
Pre-trial procedure	198
Sentencing	198