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Hong Kong Law Reform Commission |
Chapter
6
The need for reform
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6.1 After
considering the law as it stands at present and examining its identified
shortcomings, we conclude that a clear case for reform has been made out. At the same time, we recognise that any
reform must incorporate effective safeguards, as unrestricted relaxation of the
rules may run counter to the interests of justice as a whole, whether those of accused
persons or of the community.
6.2 We
are equally convinced that any new formulation of the law of hearsay should be
capable of being tested against identifiable objectives. First among these is the need to provide
a unified set of rules which can be easily understood and consistently applied,
thus making the law clear, simple and accessible.
6.3 Present
rules relating to hearsay evidence may be difficult to locate and, once
located, to comprehend. Much of the
law of evidence is to be found in reported decisions, supplemented in some
instances by statutory provisions.
There remains, even today, ongoing debate as to the exact content of the
common law exceptions to the hearsay rule. The existing rules are irrational
and have developed on a piecemeal, case by case, basis which does not best
serve the interests of justice. The
proposed reforms would provide a system of logical rules and principle leading
to rationalisation and clarification of the law.
6.4 The
public interest is as much served by the exclusion of false evidence fabricated
against an accused person as it is by the exclusion of evidence fabricated by
another to exonerate an accused. Conversely,
it cannot be in the public interest to exclude evidence which is cogent and
reliable merely on the basis that it fails to satisfy a rigid application of
the hearsay rule. We have set out
in Chapter 4 the numerous criticisms of the present law which have been expressed
by the courts and by authoritative writers on the law. We have also identified some of the more
startling consequences of the application of the hearsay rule as presently
formulated. Our examination in
Chapter 5 of the law and proposals for reform in other jurisdictions make it
clear that no leading common law jurisdiction which has examined the hearsay
rule has concluded other than that the existing law demands reform. We are in no doubt that the case for
reform in
6.5 The
existing rules are largely inflexible, unable to address situations that arise
in a rapidly-evolving community. A
reform of the rules would permit of sufficient flexibility to cope with
situations outside predetermined categories but using a methodology within a
structured framework.
6.6 Examples
are abundant under the present regime of evidence which is relevant to an issue
being excluded by the inflexible operation of existing rules. Whether such a situation is, in itself,
or results in, a miscarriage of justice we view it as obvious that evidence
which is relevant to an issue and is needed in respect of that issue should be
admissible, subject to appropriate safeguards.
6.7 Moreover
the effect of the present rules is to exclude evidence which is reliable or the
reliability of which may be tested.
The contemplated reform would facilitate the admission of evidence found
to be reliable but maintain the exclusion of that found to be unreliable.
6.8 We
are of the view that the proposed reforms will result in the admissibility of
relevant and reliable evidence, where need exists for such evidence, at the
same time as providing a comprehensible and principled approach to that
admissibility.
Recommendation 1
As there is compelling evidence supporting a need for reform, we
recommend that the existing law of hearsay in