9.1 The Sub-committee’s proposed model of reform consists of the Core Scheme and a series of proposals on special topics. The Core Scheme is a package of proposals aimed at addressing the most pressing shortcomings of the present law. The special topics address important hearsay related topics, including out-of-court statements of witnesses testifying orally in court (known as “viva voce” witnesses), existing statutory hearsay exceptions, and hearsay evidence in non-trial proceedings. This chapter is principally concerned with the Core Scheme while Chapter 10 addresses the special topics.

9.2 There are four critical points that must be kept in mind when considering the terms of the Core Scheme:

(a) The Scheme is presented as a package proposal rather than a series of individual proposals. In the deliberations and work of the Sub-committee, each part of the package was delicately structured and balanced against other parts of the package. This is not to say, strictly speaking, that the Scheme must be taken as a whole or rejected. Nor is it to say that individual parts of the package cannot be subject to further consideration and refinement. Rather, the point is simply that the Scheme must be read and understood holistically, as a system for the fair and principled admission of hearsay evidence.

(b) While the terms of the Scheme do not purport to be precise legislative language, its construction was certainly prepared with legislative logic and structure in mind. Certain expressions were chosen with the specific intention of being directly transplanted into legislation. Those words and phrases are specifically highlighted in the proposed Core Scheme below.

(c) The Scheme is a product of the best ideas and practices from the pre-eminent common law jurisdictions around the world that have applied the hearsay rule in criminal proceedings. It has benefited from this wealth of international experience and commentary.

(d) The Scheme has been tested against the safeguards identified in Chapter 7. It is recommended as the model that most effectively addresses the shortcomings in the existing law while adhering to the safeguards required by adversarial proceedings and fair trial standards.

The proposed Core Scheme

9.3 The Core Scheme is a package of 16 proposals, the terms of which are stated below. The passages in bold italics are words or phrases that were the subject of particular discussion and are intended by the Sub-committee to be adopted in any legislation.

The Core Scheme

1. Hearsay means a statement that

(a) was made by a person (the declarant) other than a witness;

(b) is offered in evidence at the proceedings to prove the truth of its content;[1] and

2. Hearsay evidence may not be admitted in criminal proceedings except under the terms of these proposals.

3. Unless otherwise stipulated, all previous common law rules relating to the admission of hearsay evidence (including the rule excluding statements containing implied assertions) are abolished.

4. Nothing contained in these proposals shall affect the continued operation of existing statutory provisions that render hearsay evidence admissible.

5. The common law rules that relate to admissibility of the following evidence are not affected by these proposals:

(a) admissions, confessions, and statements against interest made by an accused;

(b) acts and declarations made during the course and in furtherance of a joint enterprise or conspiracy;

(d) evidence admissible upon application for bail.

6. (a) Hearsay evidence shall be admitted where each party against whom the evidence is to be adduced agrees to its admission for the purposes of those proceedings.[3]

(b) An agreement under this proposal may with the leave of the court be withdrawn in the proceedings for the purposes of which it is made.

7. Subject to the provisions of proposal 13 below, hearsay evidence is admissible only where –

(a) the declarant is identified to the court's satisfaction;

(b) oral evidence given in the proceeding by the declarant would be admissible of that matter;

(i) necessity and

(ii) threshold reliability

stipulated in proposals 9 to 13 below are satisfied; and

(d) the court is satisfied that any prejudicial effect it may have on any party to the proceedings is not out of proportion to its probative value.[4]

8. The burden of proof is on the party adducing the hearsay evidence to satisfy the conditions in proposal 7 on a balance of probabilities.

9. The condition of necessity will be satisfied only:

(a) where the declarant is dead;

(b) where the declarant is unfit to be a witness, either in person or in any other competent manner, at the proceedings because of his physical or mental condition;

(c) where the declarant is outside Hong Kong and it is not reasonably practicable to secure his attendance, or to make him available for examination and cross-examination in any other competent manner;[5]

(d) where the declarant cannot be found and it is shown that all reasonable steps have been taken to find him;

(e) where the declarant appears as a witness and refuses to testify on the ground of self-incrimination; or

(f) where the declarant, after having a reasonable opportunity to refresh his memory, does not have an independent recollection of the matters dealt with in the proposed evidence.

10. The condition of necessity will not be satisfied where the circumstances said to satisfy the condition have been brought about by the act or neglect of the party offering the statement, or someone acting on that party's behalf.

11. The condition of threshold reliability will be satisfied where the circumstances provide a reasonable assurance that the statement is reliable.[6]

12. In determining whether the threshold reliability condition has been fulfilled, the court shall have regard to all circumstances relevant to the statement's apparent reliability, including –

(a) the nature and contents of the statement;

(b) the circumstances in which the statement was made;

(c) any circumstances that relate to the truthfulness of the declarant;

(d) any circumstances that relate to the accuracy of the observation of the declarant;[7]

(e) whether the statement is supported by other admissible evidence; and

(f) the absence of cross-examination of the declarant at trial.

13. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless there are sufficient confirmatory circumstances that clearly indicate the trustworthiness of the statement.[8]

14. Notice - Rules of Court are to be made for the giving of notice; that evidence is to be treated as admissible if notice has been properly served, and no counter notice has been served; that the failure to give notice means that the evidence will not be admitted save with the court's leave; that where leave is given, the tribunal of fact may draw inferences, if appropriate, from the failure to give notice; and that the failure to give notice may attract costs.

15. Where in any proceedings hearsay evidence is admitted by virtue of these proposals –

(a) any evidence which, if the declarant had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings; and

(b) evidence tending to prove that the declarant had made a statement inconsistent with the admitted statement shall be admissible for the purpose of showing that the declarant has contradicted himself.[9]

16. (a) At the conclusion of the case for the prosecution in any proceedings in which hearsay evidence is admitted, the court may direct the acquittal of an accused against whom such evidence has been admitted under the terms of these proposals where the judge considers that, taking account of the factors listed at proposal 16(b), and notwithstanding the fact that there is a prima facie case against the accused, it would be unsafe to convict the accused.

(b) In exercising its discretion under this proposal, the court shall have regard to

(i) the nature of the proceedings;

(ii) the nature of the hearsay evidence;

(iii) the probative value of the hearsay evidence;

(iv) the importance of such evidence to the case against the accused;[10] and

(v) any prejudice to an accused which may eventuate consequent upon the admission of such evidence.[11]

Recommendation 10

The Core Scheme envisages admitting hearsay in only one of four ways: consent of the parties (proposal 6), an existing statutory exception (proposal 4), a preserved common law exception (proposal 5), or the general discretionary power to admit hearsay (proposal 7).