10.1 The content of entries appearing in non-public records is governed, in the absence of statutory provisions, both by provisions against hearsay and by the primary evidence rule, effectively rendering them inadmissible save under special circumstances.

10.2 There do not appear to be any conceptual difficulties with the existing statutory exceptions to the hearsay rule. They are recognised as being necessary and working with no obvious disadvantages. The requirement that the original document itself must be produced, together with the further requirement that it must have been adopted or executed or connected with a party (or other person relevant) to the issues before the court, has been relaxed in respect of certain defined categories of records.

10.3 Specific legislation has been introduced in the Evidence Ordinance (Cap 8) in respect of copies of the content of

(1) entries or matters recorded in a banker's record (section 20);

(2) similar entries or records where a bank has ceased business – (section 20A);

(3) documentary records made by a person "under a duty" to make such – generally referred to as "business records" (sections 22 and 22B); and

(4) documents produced by a computer (sections 22A and 22B).

10.4 The common theme of each section is that the production of the record/document concerned constitutes prima facie proof of its contents, provided that there has been compliance with the conditions leading to its creation. It is necessary to turn briefly to each category of document.

Bankers' records

10.5 The admissibility of a banker's record is governed by section 20. A "bank" and a "banker's record" are defined in section 2. Further, section 19B enables the Financial Secretary to "designate" a foreign bank carrying or having carried on business outside Hong Kong, whereupon the provisions of section 20 are extended to its records.

10.6 The definition requires that the document/record which it is sought produce is one which is used in the ordinary course of business of the bank. In R v Law Ka-fu the history of the definition was related:

"The enactment recognized that the records which banks use today are very different from those used in former times. Today the records of banks, which they use to carry out their ordinary business, are composed of tapes, microfilms, computer printouts and, we are satisfied, as we set out below, fax transmissions. We note that even before the amendment the admissibility of the information in the banker's record was in no way governed by whether or not it had come to be recorded in the banker's books as a result of hearsay. As long as the requirements were satisfied, regardless of whether it was the result of hearsay, it was admissible. Once the entry was made in the banker's book, whether it came from the bank's employee or any other source, it was admissible."[1]

10.7 In considering whether credit card transaction slips completed by the merchant but then forwarded to the bank for its use became part of the bank's records the court said:

"… once they were sent to the bank and placed in its records they must, we are satisfied, be regarded as documents in the bank's record and the matters referred to therein are matters recorded in the ordinary course of the bank's business. The slips, like any other matter in the bank's records, were clearly there to be referred to and acted upon by the bank's employees."[2]

10.8 Section 20(1)(a) requires that the entry concerned be made or recorded in the "ordinary course of business" of the bank and be in its custody and control. Other than where the copy to be produced has been made by a photographic process or generated by a computer, the copy is required to have been compared with the original entry and to be certified to be correct. Production of computer-generated records is subject to substantially the same requirements as for any computer-generated document (see 10.23 et seq below).

10.9 Although the content of the original records of a bank would otherwise themselves be hearsay, the provisions of this section permit not only the production of the records as prima facie proof of the entries but of copies of those entries. The English Law Commission recommended the retention of the exception to the hearsay rule in respect of bankers' records and especially recommended the retention, without amendment, of the Bankers' Books Evidence Act 1879, sections 3 and 4 of which are of similar practical effect[3].

10.10 Banker's records are to be regarded as a distinct category of documents possessing particular features, especially reliability. Notionally their records would otherwise be capable of being produced under section 22 or section 22A. Our view is that this constitutes a sound reason for not extending the provisions of section 20 to other institutions.

Recommendation 34

We recommend that the exception in respect of bankers' records be retained but that its implementation should form part of the general exception in regard to the production of records as appears in Recommendations 35, 36 and 37 below.

"Business" records

10.11 The ambit of section 22 of the Evidence Ordinance (Cap. 8), as qualified by reference to section 22B, is obviously substantially wider than merely business records. The section only applies where it is sought to prove the truth of the content of the record, not where it is sought to use the document for any other purpose.

10.12 It was the decision in Myers v DPP[4] that spurred the introduction of statutory provisions for the admission of business records. The House of Lords held that records found in the accused's possession of engine numbers of various vehicles, the entries having been made by unidentifiable employees, were inadmissible hearsay. The House of Lords held that the prosecution was required to call each of the employees to testify to the making of the various entries, but allowed that each such employee would have been entitled to refer to the records themselves to "refresh" his memory if necessary.

10.13 The Criminal Evidence Act 1965 introduced provisions in terms similar to those which presently prevail in Hong Kong. The English legislation has been amended several times. Under section 68 of the Police and Criminal Evidence Act 1984 it remained a stipulation that only records made by a person acting under a "duty" were admissible. However, that was changed by section 24 of the Criminal Justice Act 1988 which now governs the position in England in respect of criminal proceedings.

10.14 The proposals contained in the Bill leading to the 1988 Act were of interest in our deliberations. They closely resembled the provisions of the Civil Evidence Act 1968, with control over the admissibility of hearsay evidence exercised by affording the court the discretion to exclude evidence which was found not in the interests of justice to admit (ie an exclusionary discretion). The proposals in the Bill went beyond earlier recommendations which had recommended an inclusionary discretion. Neither survived the Bill's passage.

10.15 A particular feature of the 1988 Act is that it no longer includes a requirement that the person making the record or entry must have acted under a "duty", the only stipulation being that:

"(i) … the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and

(ii) the information contained in the document was supplied by a person…who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with."

10.16 In its review of the law of hearsay the English Law Commission recommended that automatic admissibility be retained for business documents, in the broadest sense, subject to a discretion vested in the court to direct that a document not be admissible if the statement's reliability is doubtful[5].

10.17 There are specific legislative provisions in other common law countries which permit of admissibility of records made in the course of trade or business but which also dispense with the concept of the maker of the record acting under a "duty" [6]. Views within the Sub-committee differed as to the retention of the necessity for the record to have been compiled by a person acting under a duty. The majority were in favour of dispensing with such a requirement, expressing the view that the over-riding consideration of inherent reliability rendered such a requirement redundant.

10.18 Section 22 was introduced in Hong Kong by way of amendment in 1984. Its predecessor had been limited primarily to the admissibility of records made during the carrying on of a business or trade. Section 22 now provides for the prima facie admissibility of a fact contained in a statement in a document subject to:

(1) direct oral evidence of that fact being admissible in those proceedings; and

(2) the document forming part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and

(3) the person who supplied the information either not being available to testify or it being unrealistic to expect him to testify for defined reasons.

10.19 Where the information was supplied through an intermediary each person through whom it was supplied must also have been acting under a duty (section 22(3)). "Acting under a duty" includes a reference to a person acting in the course of any occupation or employment, or for the purposes of any paid or unpaid office held by him.

10.20 Section 22 is subject to the provisions of section 22B. This permits of a copy of a document, rather than the original, being admissible (section 22B(1)). The court is empowered to draw inferences from, amongst other things, the form and contents of the document in which the statement is contained (section 22B(2)). Section 22B(3) makes specific provision in respect of factors affecting the weight to be attached to the statement in the document, while section 22B(4) imports into criminal proceedings certain definitions contained in the provisions relating to hearsay in civil proceedings. Those definitions are of particular significance in respect of storage media.

10.21 One of the factors which the Court of Final Appeal was required to consider in Secretary for Justice v Lui Kin-hong[7] was whether it was permissible to have regard to the content of the document itself when determining whether its contents were admissible under section 22. The Court found that it was so permissible, the phrase "is admitted" being construed as "is the subject of an application to be admitted".[8] The draftsmanship of section 22B(2) in particular came in for criticism.

Computer records

10.22 This is an aspect which is by far the most complex of this area. There have been legislative attempts to keep pace with the changing methods and systems of business practices and commerce. Even these modest efforts have been overtaken regularly by changes in technology. It is a field which is the subject of ongoing consideration, with differing solutions proposed, in diverse jurisdictions.

10.23 In Canada the Uniform Law Conference of Canada proposed a Uniform Electronic Evidence Act which uses the term "electronic records" instead of the usual terms "computer evidence" or "computer output"[9]. An "electronic record" would encompass data on magnetic strips on cards, data contained in smart cards (the new Identity Cards being issued by the Department of Immigration would fall into this category), computer-generated faxes or hard copies of electronic mail.

10.24 The Canadian proposal requires the party seeking to introduce a computer record into evidence to discharge

"the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be"

whilst the court is also required to consider the "reliability" of the record keeping system.

10.25 The New Zealand Law Commission devised a rule which covered all forms of storage, including sound and video recordings. Their concern was to avoid a situation where the form of the document produced from a machine (in the broad sense) was a bar to its being received in court. The New Zealand Commission’s rule provides a presumption that the machine "did what that party asserts it to have done".[10]

10.26 The admissibility in Hong Kong of the content of documents generated by computer is presently governed by section 22A, read with section 22B. The definition of "computer" in section 22A(12) of the Evidence Ordinance (Cap. 8) is

"…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 there from by calculation, comparison or any other process."

This definition is capable of amendment by Legislative Council resolution to encompass devices performing functions of a similar character.[11] Different media are used for storage of data. It is our view that section 22A(12)’s definition of computer is wide enough to encompass all forms of media, especially when read with the definition of "document" contained in section 46.

10.27 Section 22A of Cap 8 was described in Lui Kin-hong as a "remarkable provision". Particular criticism was made of the lack of a provision (similar to that which appears in section 22) that the information input into the computer was input by a person who had personal knowledge of the facts. A possible explanation for this shortcoming may be found in the fact that section 22A which introduced in 1984, at the same time as the amendment to section 22. At that time, automated input into computers was only beginning to gain momentum: for example, individual credit card transactions were frequently processed by hand and the bank's copies of the transaction slips retained to be processed later. A batch of such slips would then be delivered to the bank where the information contained in the slips would be input by an employee of the bank. Plainly, the person inputting that information would not have any knowledge of the facts represented by the transaction slips and a requirement similar to that in section 22 may well have frustrated the purpose of the section.

10.28 Nowadays, the employee who concludes the transaction, or a co-employee, processes the entry at the time of the transaction and it is that entry which automatically is entered into the eventual record, which would meet the requirements of any condition similar to that contained in section 22.

10.29 Similarly, there is no requirement in section 22A that the person who entered the information into the computer was under a duty to do so.

10.30 We recognise the necessity to distinguish between computer records stored, maintained or generated in the course of a business undertaking where there would be a greater propensity towards reliability and those stored, maintained or generated in a non-business environment. The necessity for a distinction has also been recognised in deliberations in Singapore[12]. We also recognise that records generated entirely by a computerised system without any human intervention would be admissible as real evidence and not affected by the hearsay rule.

10.31 Section 22A allows the production in evidence of documents generated by the computer as prima facie proof of the truth of their contents, subject to a variety of stipulated conditions. The computer which generates the document must have been used to "store, process or retrieve information for the purposes of any activities carried on by any body or individual", and that information must have been supplied to the computer in the course of those activities. There must be evidence that "appropriate" measures were in force to prevent unauthorised interference with the computer and that it was either operating properly or, if not, was malfunctioning in a way such as would not affect the production of the document or accuracy of its contents.

10.32 A distinction appears to be drawn between a single entry in a computer and entries over a period. In the latter event (section 22A(3)(c)), the document produced by the computer must have been produced under the direction of a person having practical knowledge and experience of computer operation.

10.33 The provisions relating to the production of computer-generated documents contain an important exception: a statement contained in a computer-generated document is not admissible in evidence either for or against an accused if that accused had occupied a "responsible position" in relation to that computer or the "relevant activities" as defined. The section further provides for the proof of the various conditions to be furnished by way of certificate and stipulates the procedure to be followed.

10.34 Broadly similar requirements to facilitate proof of computer-generated records are to be found in the various Acts in the Australian States of South Australia[13], Queensland[14] and Victoria.[15]

10.35 Given the lengthy procedures required for amendment of existing or introduction of new legislation, the prospects of the legal system catching up to, let alone keeping pace with, technological developments appears remote. The Sub-committee considers that piecemeal legislation in an attempt to do so is undesirable.