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Hong Kong Law Reform Commission |
Chapter
7
Safeguards as a condition
for reform
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7.1 As
indicated in Chapter 6, we regard any reform of the law relating to the
admissibility of hearsay evidence as being necessarily subject to effective
safeguards against potentially undesirable consequences arising from that admissibility.
7.2 Very
few, if any, common law jurisdictions have recommended or adopted provisions which
admit hearsay in criminal proceedings without any safeguards. The range of safeguards adopted is
diverse, and we have identified and propose a number of essential safeguards as
a pre-requisite for the introduction of any reform.
(a) which may
cause injustice to the accused;
(b) which is
unnecessary in the context of the issue to be decided; or
(c) the
reliability of which
i is
not obviously apparent by virtue of its provenance or setting; or
ii in
other cases, cannot be tested.
7.3 We
hold the view that if these two safeguards are assured injustice to an accused
person, as well as to the prosecution, will be avoided, for inherent in these
safeguards is the protection of fundamental rights.
7.4 We
further recognise that any reform must avoid
(a) conferring
too wide a discretion on the tribunal to admit hearsay evidence, which could
lead to inconsistency of approach;
(b) the
possibility for abuse of the new rules by either the prosecution or the defence;
(c) undue
proliferation of issues of admissibility;
(d) undue
prolongation of hearings;
(e) distortion
of the tribunal's fact finding process;
and
(f) the
admissibility of multiple hearsay.
It is also axiomatic
that any reform must be compatible with the Basic Law, the Hong Kong Bill of
Rights Ordinance (Cap 383), and the International Covenant on Civil and
Political Rights as applied to
7.5 Particular
consideration was given by the Sub-committee as to whether different standards
of admissibility should be applied where the defence, as opposed to the prosecution,
seeks to introduce hearsay evidence. That issue was considered both by the
English Law Commission[1] and the Australian Law Reform
Commission[2].
7.6 The
majority of the Sub-committee is of the view that the identified safeguards
render any differential unnecessary; that such a provision would run contrary
to the general principle of symmetry in the trial process; and that rules of
evidence should apply evenly and equally to all parties. A minority of the Sub-committee,
however, holds the view that the rules should apply with different, and more
permissive, effect to the defence.
7.7 Where
the oral testimony of a declarant is important and
necessary, but that declarant is unavailable,
substitute hearsay evidence should only be considered admissible if the
unavailability of the declarant is regarded as a
pre-requisite to such admissibility.
7.8 Simple
unavailability of the declarant would not be a ground
per se for admissibility, the potential evidence still having to satisfy
the general test of reliability proposed.
Nor would unwillingness on the part of a declarant
to attend to testify orally equate to unavailability of that declarant.
7.9 The
application of the "best evidence" principle requires a party to
adduce the oral non-hearsay testimony of witnesses if it is reasonably
obtainable. In the situation where
oral testimony is unobtainable, the party seeking to introduce the hearsay
evidence would be required still to produce the hearsay evidence that it
possesses that offers the tribunal of fact the best opportunity to see and hear
the declarant.
7.10 We
addressed the situation where a number of persons are jointly charged and one
of the accused wishes to tender hearsay evidence advantageous to his case but
prejudicial to that of a co-accused.
We take the view that such a situation is not infrequently encountered
in respect of non-hearsay evidence and is addressed by the tribunal's ability
to order a separation of trials.
Recommendation 2
We recommend that any reform of the existing law of hearsay in