 |
Hong Kong Law Reform Commission |
Preface
Terms
of reference
1. In
May 2001, the Chief Justice and the Secretary for Justice directed the Law
Reform Commission:
To
review the law in
The Sub-committee
2. Following
that referral, a sub-committee was appointed by the Commission. Its membership is:
|
Hon Mr Justice Stock
(Chairman) |
Justice of Appeal |
|
Peter Chapman |
Senior Assistant Director of Public Prosecutions Department of Justice |
|
Alan Hoo, |
Senior Counsel |
|
Andrew Lam |
Solicitor |
|
Gerard McCoy, |
Senior Counsel Professor of Law, Adjunct Professor
of Law, |
|
Anthony Upham |
Associate Professor |
|
H H Judge Wright |
Judge of the District Court |
|
Simon Young |
Associate Professor Faculty of Law |
|
Peter Sit |
Secretary |
Working method
3. It
was apparent from the introductory meeting on
4. All
this required preparation of papers by individual committee members, the
co-option of further members, and the formation of subgroups to prepare
suggested solutions and drafts.
5. There
was a proposal early on that the question be put to the Bar Association whether
there was a perceived problem with the existing rules. The majority of the sub-committee
failed, however, to see that that would be a useful exercise, since any
response would be without the benefit of a detailed exposition of the rules,
which are complex, the suggested problems, and of studies elsewhere. Yet the question
was in fact put to the Criminal Law and Procedure Committee of the Law Society
by the Chairman of that Committee, who is also a member of the sub-committee, who
informed the sub-committee on
6. The provisional recommendations
set out in this consultation paper are the product of extensive research and
detailed debate. The process has
been lengthy and has included the production of no fewer than 73 papers directed
at specific issues of discussion
7. The
Sub-committee met on 19 occasions.
What
is "the rule against hearsay"?
8. The
rule against hearsay in criminal proceedings renders hearsay evidence generally
inadmissible in criminal proceedings unless that evidence falls within one of
the common law or statutory exceptions to the rule. A simple explanation of the term hearsay
would be that "when A tells a court
what B has told him, that evidence is called hearsay".[1] The need to exclude hearsay evidence
when it is adduced to prove the truth of the original statement is mainly based
on the assumption that indirect evidence might be untrustworthy and unreliable,
particularly in so far as it is not subject to cross-examination. The law's requirement that only first
hand testimony of the statement-maker can be admitted in evidence ensures that
the witness's credibility and accuracy can be tested in cross-examination.
Criticisms
of the rule and reform in other jurisdictions
9. Despite
this rationalisation, the hearsay rule has been the subject of widespread
criticism over the years from academics, practitioners and the Bench. One of the main criticisms is that the
rule is strict and inflexible, and excludes hearsay evidence even if it is
cogent and reliable.[2] The inadmissibility of hearsay evidence
that is otherwise cogent and relevant to the determination of the guilt or
innocence of an accused sometimes results in the exclusion of evidence which by
standards of ordinary life would be regarded as accurate and reliable. This can result in absurdity and also in
injustice.
10. The
complexity of the rule and the lack of clarity of its exceptions have also been
criticised. Lord Reid in Myers v DPP[3] described the rule as "absurdly technical"[4] and observed that "it is difficult to make any general
statement about the law of hearsay which is entirely accurate."[5]
11. In the
light of these criticisms, proposals for reform have been put forward in every
common law jurisdiction where the subject has been studied for the purpose of
reform. As noted above, the law of
hearsay is a topic which many other jurisdictions have recognised as being in
need of attention. In each instance
where a review has been carried out, there has been recognition of the need for
change.
12. This
consultation paper sets out in Chapter 1 the history and nature of the rule
against hearsay in criminal proceedings; examines in Chapter 2 the
justification for the rule; sets out in Chapter 3 the present law that governs
the admissibility of hearsay evidence in criminal proceedings; and examines in
Chapter 4 the shortcomings of the existing law. Chapter 5 describes reforms that have
been proposed or carried out in other common law jurisdictions; explains in
Chapter 6 the need for reform; examines in Chapter 7 the notion of introducing
safeguards as a condition for reform; and presents in Chapter 8 a number of
possible options for reform, with their respective advantages and disadvantages.
Chapter 9 introduces the proposed model of reform ("the Core Scheme")
; deals with a number of special topics in Chapter 10; addresses the issue of
human rights in Chapter 11; and in Chapter 12 summarises all our
recommendations for reform.
13. The
purpose of this consultation paper is to elicit comment on the suggested need
for reform and on the way in which the hearsay law should be shaped in