"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that a statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made."[1]

3.2 The definition laid down in Subramaniam has since been followed in Hong Kong.[2] In Cross & Tapper on Evidence, the rule against hearsay is stated in terms of the assertion contained in the statement:

"an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted"[3].

3.3 More recently, appellate courts in Hong Kong have cited the definition used in the Australian case of Walton v The Queen.[4] In the Court of Final Appeal's consideration of Wong Wai-man v HKSAR, the Walton definition was cited as follows:

"The hearsay rule applies only to out-of-court statements tendered for the purposes of directly proving that the facts are as asserted in the statement" [emphasis in original].[5]

3.4 Thus, if the purpose of adducing the statement is to prove the truth of an assertion contained in the statement then the hearsay rule will be triggered. But if the statement is being used as original evidence to prove a fact in issue then the hearsay rule will not be infringed. A statement can be used as original evidence to prove a fact in issue in one of two ways: directly or circumstantially. If the fact in issue was whether officer A gave the defendant a caution before taking his confession, then officer B, who was present at the time, is allowed to give evidence of what officer A said to the defendant as this could be direct evidence of a caution. Similarly, if the fact in issue was whether the victim threatened the defendant just before the alleged offence, a person present at the time is allowed to testify to what the victim said to the defendant as this would be direct evidence of a threat.

3.5 An out-of-court statement can also be an item of original circumstantial evidence used to prove a fact in issue. The Privy Council case of Ratten v The Queen[6] offers a good illustration. In Ratten, the deceased was shot dead by her husband (the appellant), who was subsequently convicted of murder. The defence asserted at the trial that the gun had accidentally discharged while the appellant was cleaning it. On appeal, the Privy Council was asked to decide whether the evidence of a telephone operator who testified that she had received a call at the material time from a sobbing and hysterical woman calling from the home of the deceased and the appellant, asking for the police, would amount to hearsay. It was held that the telephone operator's testimony of a statement from a sobbing and hysterical female to "Get me the police, please" was not hearsay as the statement was original evidence of the female caller's state of mind or emotional state. It was relevant as an item of circumstantial evidence that tended to rebut the appellant's defence of accident.[7]

3.6 The recounting by the telephone operator of the words of the female caller was not hearsay because the purpose of repeating the telephone message was merely to prove a factual situation (ie, the fact that a call was made from a sobbing and hysterical female at a certain time and from a certain place), and not the truth of the content of the statement.[8]

(B) Implied assertions

3.7 In the House of Lords case of R v Kearley, a majority of the Law Lords confirmed that implied assertions came within the definition of hearsay.[9] Most hearsay involves statements that contain an express assertion of facts. In Kearley, the majority held that even if there was neither an express nor intended assertion in the statement or conduct, the hearsay rule could still be infringed if proof of the fact in issue involved an implied assertion from the evidence.

3.8 In R v Kearley, the police arrested the defendant at his home after finding a small quantity of drugs and stolen property. While the police were still on the premises, a number of telephone calls were made to the house from persons wanting to buy drugs from the defendant. In addition, seven people called at the house asking for the appellant and offering to buy drugs for cash. None of the calls or visits was in the presence or hearing of the defendant. Kearley was charged with possessing drugs with the intention to supply. The evidence of the calls and visits (as observed by the testifying police officers) was tendered in evidence to prove the defendant's intention to supply at the time he was found in possession of the drugs. The majority held that to use this evidence for this purpose would infringe the hearsay rule. Lord Bridge summed up the legal position of implied assertions as follows:

"The speaker was impliedly asserting that he had been supplied by the defendant with drugs in the past. If the speaker had expressly said to the police officer that the defendant had supplied him with drugs in the past, this would clearly have been inadmissible as hearsay. When the only relevance of the words spoken lies in their implied assertion that the defendant is a supplier of drugs, must this equally be excluded as hearsay? This, I believe, is the central question on which this appeal turns. Is a distinction to be drawn for the purposes of the hearsay rule between express and implied assertions? If the words coupled with any associated action of a person not called as a witness are relevant solely as impliedly asserting a relevant fact, may evidence of those words and associated actions be given notwithstanding that an express assertion by that person of the same fact would only have been admissible if he had been called as a witness? Unless we can answer that question in the affirmative, I think we are bound to answer the certified question in the negative ….

Again, as my noble and learned friends, Lord Ackner and Lord Oliver of Aylmerton, point out, the recent decision of your Lordships' House in Reg v Blastland [1986] A.C. 41 clearly affirms the proposition that evidence of words spoken by a person not called as a witness which are said to assert a relevant fact by necessary implication are inadmissible as hearsay just as evidence of an express statement made by a speaker asserting the same fact would be."[10]

3.9 The Hong Kong Court of Appeal in R v Ng Kin-yee[11] "reluctantly" held that the court was bound by the decision of the House of Lords in Kearley.

3.10 The Hong Kong Court of Appeal in HKSAR v Or Suen-hong[12] revisited the decisions in Kearley and Ng Kin-yee. In Or Suen-hong, the applicant was charged with "being engaged in bookmaking" by "receiving bets by way of business", contrary to section 7(1)(a) of the Gambling Ordinance (Cap 148). On the night of his arrest, the applicant was seen by the police to have made 59 telephone calls from a flat. He was seen to have made notes after some of the calls. The police then entered the flat and seized a number of documents, some of which were later put before a prosecution expert in bookmaking for his opinion. Upon conviction, the applicant appealed on the ground, inter alia, that the prosecution expert witness was wrongly permitted to rely on the truthfulness of the contents of those documents as: "The contents of a document being hearsay made it inadmissible for the purpose of proving the truth of its contents and that therefore [the expert] ought not to [have] been permitted to form his opinion of [them]."[13]

3.11 The Court of Appeal rejected this ground of appeal since the betting slips were not being adduced for a hearsay purpose:

"The purpose in this case of the production of the documentary exhibits was to show that the applicant was in possession of the paraphernalia of betting, namely, betting slips. There are other such paraphernalia, namely, the telephones and the coloured pens next to the telephones. Those documentary exhibits contained the format and the jargon of the business, and the purpose of proving their possession, their nature, their format and their jargon, was to show, together with other evidence, that the flat was the venue for the conduct of a business of the kind run by bookmakers. To that end these documents were, in our judgment, admissible evidence and did not breach the prohibition against hearsay evidence."[14]

3.12 In other words, the evidence of betting slips found in the possession of the appellant was original circumstantial evidence from which it could be inferred that he was receiving bets "by way of a business". The case was thus distinguished from Kearley.

(C) Machine recorded information

3.13 The hearsay rule does not apply to statements containing information recorded by a machine. In R v Spiby, a machine-generated document showing phone calls being made from a certain hotel room in France to the defendant's telephone in England was admitted as evidence to link the defendant to the person staying in the hotel room.[15] Use of the record for this purpose appeared to be taking the document for its apparent truth that calls were being made from a certain hotel room in France to a certain telephone number in England, thereby infringing the hearsay rule. However, the Court of Appeal held that the hearsay rule was not engaged because the information in the document was recorded by "mechanical means without the intervention of a human mind".[16] Thus, documents containing machine recorded information do not come within the hearsay rule, assuming there is proof that the machine was operating properly during the material time.

3.14 This aspect of the hearsay rule explains why photographs or thermometer readings are admissible as real evidence without infringing the hearsay rule.

Common law exceptions to the hearsay rule

3.15 The early nineteenth century witnessed not only the firm establishment of the hearsay rule in England, but also the gradual creation by judges of the various common law exceptions to the rule. These common law exceptions were created to minimise the effects of a strict application of the rule in circumstances where cogent and reliable evidence would otherwise be excluded.

(A) Admissions and confessions of an accused

3.16 One of the most important exceptions to the hearsay rule is that for admissions and confessions made by an accused person. In a strict sense, the words "admission" and "confession" are slightly different in meaning. However, the law relating to their admissibility is the same.[17] For the purposes of this paper we will use the term "confession" to include an "admission".

3.17 When, in the course of an investigation into a criminal offence, a suspect has made a statement to anyone that tends to incriminate him, the statement is known as a confession. A confession is usually made in writing or orally by a suspect to a person in authority,[18] but it can be made to anyone. The fact that a suspect chooses to remain silent in the face of an allegation put to him is insufficient to constitute a confession. There must be some other factor which shows that the accused accepts the allegation put to him before it can amount to a confession.[19]

3.18 If the prosecution wishes to use the confession for its truth to incriminate the statement maker, the hearsay rule will be engaged. There is, however, a common law exception that allows the statement to be admitted for this purpose. Courts and commentators have identified two competing rationales for this exception. The first rationale is that confessions have an inherent reliability since a person would not normally say things against his own interest unless they were true. The second rationale looks not to the statement's inherent reliability but to the fact that the accused, as a party to the proceedings, cannot complain about the inability to cross-examine his own confession; indeed, the prosecution cannot compel the accused to enter the witness box to give evidence. The first of these rationales is the more commonly adopted.

3.19 It follows from the first rationale that a confession can only be used against the accused who made the confession and not against any of his co-accused. This is because the statement has inherent reliability only insofar as it is made against the interest of the confessor. In principle, those parts of the confession that do not have an incriminating tendency, such as exculpatory assertions, should not be admitted for their truth since the hearsay exception does not extend that far. The courts, however, have recognised the “mixed statement rule”, which allows the exculpatory parts of a mixed statement (ie a statement having both inculpatory and exculpatory parts) to be admitted for their truth as an exception to hearsay. Fairness to the defendant has prompted this development of the rule. Nevertheless, recognizing the lack of inherent reliability in self-serving exculpatory statements, the courts have found it appropriate to instruct lay jurors that the exculpatory parts may carry less weight than the incriminating parts.

3.20 Aside from these hearsay issues, there is another important factor that governs the admissibility of confessions. It has long been established (even before accused persons were competent to testify in their own defence) that, before a confession made to a person in authority can be admitted in evidence, the prosecution must prove beyond reasonable doubt that the confession was made voluntarily. An involuntary confession is one “obtained by fear of prejudice or hope of advantage excited or held out by a person in authority [or] by oppression.”[20]

3.21 Voluntariness is of such great importance that even if the prosecution wishes to use the confession for a non-hearsay purpose (such as to show that the accused made a prior inconsistent statement), that will not be permitted if the prosecution has failed to establish that the confession was voluntarily given. The position is different, however, where a co-accused wishes to cross-examine another co-accused on the latter's confession. It is clear in Hong Kong that if the cross-examination does not infringe the hearsay rule (eg by using the confession as a prior inconsistent statement), the co-accused is entitled to use an involuntary confession for this purpose. The legal position in Hong Kong of allowing a co-accused to use another's involuntary confession for the hearsay purpose of exculpating himself is less clear. In England, it has been held that the English test of voluntariness as set out in the Police and Criminal Evidence Act 1984 must be satisfied before the co-accused can use the confession for this purpose.

3.22 Where a confession has satisfied the test of voluntariness and is otherwise admissible, the court retains a discretion to exclude the confession if either its probative value is outweighed by its prejudicial effect or its admission would infringe the defendant's privilege against self-incrimination.[21] Voluntary confessions excluded under the latter head of discretion tend to be those obtained by fraud or other misconduct, or, in the case of an undercover agent, by interrogation.

(B) Co-conspirator's rule

3.23 There is an exception to the general rule that the confession statement of an accused cannot be used against his or her co-accused. Where any party to a conspiracy or joint-enterprise has made an out-of-court statement, be it oral or documentary, in furtherance of the conspiracy or joint-enterprise which implicates a co-accused, the statement is admissible against both its maker and the parties to the joint-enterprise or conspiracy. This is known as the co-conspirator's rule and is an exception to hearsay that is based on principles of agency rather than on any inherent reliability in the statement or the circumstances in which the statement was made.[22]

(C) Statements of persons now deceased

3.24 The common law relaxed the hearsay rule for the prior statements of persons who by the time of trial had passed away. There was no general test for admitting the hearsay statements of persons now deceased. Instead exceptions developed on an ad hoc basis and were confined to specific situations. Three of the more well-established exceptions applicable to criminal proceedings are described below.

Dying declarations

3.25 Under this common law exception, the conduct or statement (be it oral or in writing) of a victim who was under a settled, hopeless expectation of death at the time when the statement was made or conduct performed would be admissible as evidence of the cause of the victim's death in the trial of a person charged with murder or manslaughter.

3.26 The rationale for this exception was that a person aware of his imminent death would be most unlikely to fabricate any last words:

"declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice."[23]

Declarations in the course of duty

3.27 Where an oral or written statement was made by a person who was under a duty to do so because of his or her occupation, trade, business or profession, the statement is admissible for its truth when the person subsequently dies.

3.28 Sir Rupert Cross explained the position as follows:

"In criminal cases the oral or written statement of a deceased person made in pursuance of a duty to record or report his acts is admissible evidence of the truth of such contents of the statement as it was his duty to record or report, provided that the record or report was made roughly contemporaneously with the doing of the act, and provided the declarant had no notice to misrepresent the facts."[24]

3.29 The authorities make it clear that the deceased must be under a specific duty to make, record or report the declaration in question, and that the content of the declaration must be related to the duty of the deceased. Where the deceased was under no duty to produce the declaration, the exception would not apply. In R v O'Meally it was held that a statement made by a deceased person in the course of duty is not admissible in evidence unless the duty is specific and twofold: a duty to do a particular act and to record or report it when done.[25]

Declarations against proprietary interest

3.30 In R v Rogers,[26] it was held that a statement made by a person of a fact which he knew to be against his pecuniary or proprietary interest would, upon that person’s death, be admissible in criminal proceedings as evidence of that fact. For the statement to be admitted, the court must be satisfied that the deceased had had the means of knowing the facts as contained in the declaration and that he knew that the declaration was against his interest. Moreover, the declaration must be against either the pecuniary or proprietary interest of the deceased at the time when the statement was made.

3.31 The exception is limited to declarations against the declarant's own pecuniary or proprietary interest, and does not extend to admissions as to criminal liability.[27]

(D) Res gestae

3.32 The doctrine of res gestae was explained in R v Bond:

"Evidence is necessarily admissible as to acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances, and so could not be excluded in the presentment of the case before the jury without the evidence being thereby rendered unintelligible."[28]

3.33 The rationale for this exception is two-fold. First, a person who makes a statement that is so intertwined with the actions or events at the time would rarely have had an opportunity to fabricate the statement. Secondly, it would be artificial, if not practically impossible, to require the jury to ignore the spontaneous words of a person whose observed contemporaneous actions would be admissible.

3.34 Historically, courts applied the res gestae exception only when the statement was made at exactly the same time as the conduct in question was taking place. The modern law has become less formalistic and more aligned with the underlying rationale of the exception. In R v Andrews, the House of Lords held that where the victim related to a witness an account of the attack which was so unusual or startling or dramatic as to dominate the thoughts of the victim so as to exclude the possibility of concoction or distortion, and the statement was made in conditions of approximate but not exact contemporaneity, evidence of what the victim said would be admissible as to the truth of the facts recited under the res gestae exception.[29]

3.35 Unlike dying declarations, the doctrine of res gestae is not confined to statements made by a person who subsequently dies. More recently, the English Court of Appeal has held that the res gestae exception is not subject to a rider that disallows its application if the declarant is an available witness at the time of trial.[30] In this case involving a son's assaults on his elderly mother, the prosecution chose not to call the mother as a witness (even though she was available), opting instead to use her highly incriminating res gestae statements. The reason for not calling the mother was that by the time of trial she had recanted her original statements and was then supporting her son. The Court of Appeal held that while there was nothing in the law of hearsay to prevent the admission of the res gestae statements, it was possible that the trial court might consider the admission of the evidence would have an adverse effect on the fairness of the proceedings and, consequently, pursuant to section 78 of the Police and Criminal Evidence Act 1984, refuse to admit it.[31] Hong Kong courts do not have a similar statutory power to exclude. Any exclusion of the statement would be governed by the court’s residual power at common law to exclude.

(E) Statements made in public documents

3.36 A common law hearsay exception exists to admit statements in a public document for their truth. For such statements to be admitted, they must be made by a public officer[32] who was under a duty to make inquiry or who had personal knowledge of the matters stated, recorded or reported in the document. The document must be kept in a place to which the public is permitted access. A public document was defined in Sturla v Freccia as:

"a document that is made for the purpose of the public making use of it – especially where there is a judicial or quasi-judicial duty to inquire. Its very object must be that the public, all persons concerned in it, may have access to it."[33]

3.37 The rationale for the exception was that the truthfulness of the statement could be presumed from the nature of the document and the manner in which it was made. It would be both impractical and unnecessary to require the statement maker to be a witness since he could not generally be expected to recollect of the matters described in the document.

(F) Statements made in previous proceedings

3.38 In criminal proceedings, where a witness cannot testify because of death, critical illness, insanity, or because he is being kept out of the way by the opposite party, the common law allowed his evidence in previous proceedings to be admitted provided certain conditions were met. The English Court of Appeal in R v Hall[34] explained why evidence of relevant previous proceedings was admissible as an exception to the hearsay rule:

"… we think it plain that a deposition properly taken before a magistrate on oath in the presence of the accused and where the accused had had the opportunity of cross-examination was at least since 1554 admissible at common law in criminal cases if the original deponent was dead, despite the absence of opportunity to observe the demeanour of the witness. The only difference between such a deposition and the transcript of evidence given at a previous trial is that the transcript is not signed by the witness. Provided it is authenticated in some other appropriate way, as by calling the shorthand writer who took the original note, there seems no reason to think that such a transcript should not be equally receivable in evidence."[35]

3.39 The rationale for this common law exception was the relative guarantee of truth provided by the fact that the person had testified under oath and had been cross-examined in the earlier proceedings. The exception stemmed also from necessity, in that the witness was unavailable to testify in the later proceedings.

(G) Opinion evidence

3.40 An opinion may be based on matters or information which a person was told or taught by another, or which he has acquired from some other source, such as reading the works of others. Thus, an opinion expressed by a witness in court may be hearsay in nature.

3.41 The indiscriminate exclusion of opinion evidence would, however, be impracticable. There are many instances where witnesses are bound to express an opinion. For instance, a witness might say that he was able to see the detail of an incident clearly as the day was bright and the weather was fine. The words "bright" and "fine" are expressions of opinion. In addition, strict adherence to the rule prohibiting the expression of an opinion would also prohibit experts from expressing an opinion on matters of which neither the judge nor the jury have specialist knowledge.

3.42 There are therefore practical reasons for admitting opinion evidence as an exception to the hearsay rule in certain specific circumstances where the evidence is reliable and cogent. Accordingly, expert witnesses are permitted at common law to express an opinion on their area of expertise where the matter upon which the opinion is expressed is outside the knowledge and experience of the tribunal of fact:

"the law recognises exceptions to the hearsay rule and one of those exceptions applies to expert witnesses who are entitled to express opinions based on information, published or unpublished and usually in written form, received from other experts. Medical textbooks constitute a prime example. The relevant information must be of a type generally and reasonably relied upon and falling for evaluation within the relevant field of expertise. As was stated by Wells, J. in a very similar case to this -

‘It is now well settled that an expert, within proper limits, must be permitted to treat as a working truth data which he learns about from other experts.’ Reid v Kerr (1974) 9 SASR 367 at p. 390”[36]

Statutory exceptions to the hearsay rule

3.43 In Hong Kong, statutory exceptions to the hearsay rule are mainly to be found in the Evidence Ordinance (Cap 8) (the Ordinance), which provides a number of general exceptions for various forms of documentary evidence. Other more specific exceptions are scattered among various criminal law related Ordinances. There are over 100 different statutory hearsay exceptions that may be of relevance in Hong Kong criminal proceedings. However, for the purposes of this paper, we examine only the major statutory exceptions found in the Ordinance that are applicable in criminal proceedings.

(A) Depositions

3.44 Sections 70 and 73 of the Ordinance provide a scheme for admitting depositions of persons who are unable to be witnesses at the time of trial. They represent an extension of the common law exceptions for persons now deceased. Both sections are notorious for their lack of readability. This is understandable since their origins lie in English provisions enacted in the mid 1800s.

3.45 Under section 70 of the Ordinance, the deposition of a person whom the prosecution is unable to produce at trial as a witness shall be received in evidence, provided certain conditions are satisfied. Section 70 provides that, before admitting the deposition, the court must first be satisfied that the witness cannot be produced because:

i. he is dead;

ii. he is absent from Hong Kong;

iii. it is impracticable to serve process on him;

iv. he is too ill to travel;

v. he is insane;

vi. he is being kept out of the way by means of the procurement of the accused;

vii. he is resident in a country which prohibits his departure, or which he refuses to quit; or of the inability to find him at his last known residence in Hong Kong.

3.46 Evidence of the deposition will be admitted if these conditions are met and:

"… if it also appears from the certificate of the magistrate or other officer hereinafter mentioned that such person was examined before a magistrate, or other officer to whom the cognizance of the offence appertained, and that the usual oath was administered to him prior to his examination, and that the examination was taken in the presence of the person accused, and that he, or his counsel or solicitor, had a full opportunity of cross-examining such person, and that the evidence so taken was reduced into writing and read over to and signed by him and also by the magistrate or other officer as aforesaid .…"[37]

3.47 The obvious advantage of section 70 is that prior evidence of a deponent obtained under oath in the presence of a magistrate or an authorised officer, with the full opportunity for the defence to cross-examine the deponent, can now be received in evidence. The downside of the section, however, is that no reciprocal provision has been made for the defence. In a situation where the defence is unable to provide at trial a witness for reasons similar to those stated in section 70, and where the testimony of the witness might help to exculpate the accused of the allegation laid against him, that evidence will nevertheless be excluded.

3.48 Section 73 of the Ordinance provides, subject to certain conditions, that a written statement taken by a magistrate on oath of a person who is dangerously ill and unable to travel shall be admitted in evidence. In taking the statement, the magistrate must be satisfied that the person is "able and willing to give material information relating to an indictable offence or to a person accused thereof." Section 73 provides that:

"… if afterwards, on the trial of any offender or offence to which the [statement] 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."

3.49 In contrast to section 70, section 73 may be invoked by either the prosecution or the defence as long as there is a dangerously ill person who "is able and willing to give material information relating to an indictable offence or to a person accused thereof". The deposition obtained under section 73 shall be admitted in evidence "either for or against the person accused".

3.50 Another set of deposition provisions that have relevance in criminal proceedings is those that apply to children and mentally incapacitated persons in section 79E of the Criminal Procedure Ordinance (Cap 221). For children, the provision only applies for offences of sexual abuse, cruelty, or involving an assault, injury or threat to the child. It is also necessary to show for both these vulnerable witnesses that either the trial will be unavoidably delayed or exposure to the full trial would endanger the physical or mental health of the witness.[38] Similar to sections 70 and 73, the defendant must be given an opportunity to cross-examine the deponent at the time the deposition is taken.

(B) Business records

3.51 Section 22 of the Ordinance is the principal provision governing the admission of business records in criminal proceedings. Section 22(1) provides that a documentary statement shall be admitted in any criminal proceedings as prima facie evidence of any fact it contains if:

"(a) direct oral evidence of that fact would be admissible in those proceedings; and

(b) the document is or forms 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

(i) is dead or by reason of his bodily or mental condition unfit to attend as a witness;

(ii) is outside Hong Kong and it is not reasonably practicable to secure his attendance;

(iii) cannot be identified and all reasonable steps have been taken to identify him;

(iv) his identity being known, cannot be found and all reasonable steps have been taken to find him;

(v)