THE LAW REFORM COMMISSION OF HONG KONG REPORT HEARSAY IN CRIMINAL PROCEEDINGS This report can be found on the internet at: <http://www.hkreform.gov.hk> November 2009 The Law Reform Commission of Hong Kong was established by the Executive Council in January 1980. The Commission considers for reform such aspects of the law as may be referred to it by the Secretary for Justice or the Chief Justice. The members of the Commission at present are: Chairman: Mr Wong Yan-lung, SC, JP, Secretary for Justice Members: The Hon Mr Justice Andrew Li, Chief Justice Mr Eamonn Moran, Law Draftsman Mr John Budge, SBS, JP The Hon Mr Justice Chan, PJ Mrs Pamela Chan, BBS, JP Professor Felice Lieh-Mak, JP Mr Peter Rhodes Mr Paul Shieh, SC Professor Michael Wilkinson Ms Anna Wu, SBS, JP Mr Benjamin Yu, SC, JP The Secretary to the Commission is Mr Stuart M I Stoker and its offices are at: 20/F Harcourt House 39 Gloucester Road Wanchai Hong Kong Telephone: 2528 0472 Fax: 2865 2902 E-mail: [email protected] Website: http://www.hkreform.gov.hk THE LAW REFORM COMMISSION OF HONG KONG REPORT HEARSAY IN CRIMINAL PROCEEDINGS CONTENTS Chapter Page Preface 1 Terms of reference 1 The sub-committee 1 Working method 2 What is "the rule against hearsay"? 2 Criticisms of the rule and reform in other jurisdictions 3 Report 3 1 Brief history of the hearsay rule 4 2 Justification for the hearsay rule 7 3 The present law 10 Scope of the hearsay rule 10 (A) Statement and definition of the rule 10 (B) Implied assertions 12 (C) Machine recorded information 14 Common law exceptions to the hearsay rule 15 (A) Admissions and confessions of an accused 15 (B) Co-conspirator's rule 17 (C) Statements of persons now deceased 18 (D) Res gestae 19 (E) Statements made in public documents 20 (F) Statements made in previous proceedings 21 (G) Opinion evidence 21 Statutory exceptions to the hearsay rule 22 (A) Depositions 22 i Chapter Page (B) Business records 24 (C) Computer records 26 (D) Banking records 28 (E) Public documents 29 (F) Official documents 30 (G) Other notable documentary hearsay exceptions 30 4 Cardinal principles and the shortcomings of the 32 present law Widespread criticism of the common law position 32 Is Hong Kong exceptional? 36 Principles of reform and the identification of shortcomings 37 Shortcomings 37 (1) Evidentiary rules should, within the limits of justice 38 and fairness to all parties, facilitate and not hinder the determination of relevant issues (2) Conviction of the innocent is always to be avoided. 40 All accused have a fundamental right to make full answer and defence to a criminal charge (3) Evidentiary rules should be clear, simple, 43 accessible, and easily understood (4) Evidentiary rules should be logical, consistent, and 44 based on principled reasons (5) Questions of admissibility should be determinable 47 with a fair degree of certainty prior to trial so that the legal adviser may properly advise the client on the likely trial outcome (6) Evidence law should reflect increasing global 48 mobility and modern advancements in electronic communications 5 International developments 49 Introduction 49 The international trend 49 Reforms proposed or adopted in other jurisdictions 51 Australia 51 Canada 55 England and Wales 58 New Zealand 69 Scotland 74 South Africa 78 6 The need for reform 80 ii Chapter Page 7 Safeguards as a condition for reform 86 8 Options considered and the version recommended 89 The proposed model of reform 89 Rejected options and proposals 90 The polar extremes: no change and free admissibility 90 Best available evidence 93 Discretion to admit only defence hearsay 94 Broad discretion to admit – the South African model 96 The three main options 98 Option 1 ("the English model") : wide "pigeonhole 98 exceptions" with a narrow discretion to admit Option 2 ("the United States model") : codification 103 Option 3 ("the New Zealand Law Commission model") : 105 discretion based on necessity and reliability 9 Proposed model for reform: the Core Scheme 112 Overview of proposed model 112 The proposed Core Scheme 113 Explanation 117 Definition of "hearsay" (proposal 1) 117 Implied assertions outside the definition (proposal 1) 118 Multiple hearsay (proposal 1) 120 Definition of "criminal proceeding" (proposal 2) 120 Exclusionary rule retained (proposal 2) 122 Effect on the common law (proposals 3-5) 123 Continued operation of existing statutory exceptions 128 (proposal 4) Admission by consent (proposal 6) 129 New discretionary power to admit hearsay (proposal 7) 129 Admission of evidence relevant to credibility and reliability 146 of declarant (proposal 14) Power to direct verdict of acquittal (proposal 15) 148 Safeguards check 152 10 Special topics 154 Banking, business and computer records 154 Bankers' records 154 "Business" records 156 Computer records 158 Prior statements of witnesses 162 Prior inconsistent statements 163 Prior consistent statements 175 Other issues 183 iii Chapter Page Pre-trial procedures 184 Sentencing 185 England: hearsay admissible by prosecution in conspiracy 185 sentencing Canada: hearsay admissible by prosecution in sentencing 186 Australia: no hearsay by prosecution in sentencing 187 New Zealand: no hearsay by prosecution in sentencing 188 Consistent law reform: conviction and sentencing 188 Extradition 189 11 Human rights implications 190 Relevant human rights provisions in Hong Kong 190 Basic Law 190 Hong Kong Bill of Rights 191 The accused's right to "examine the witnesses against him" 192 European jurisprudence on human rights and hearsay 197 Application of principles to the proposed model 201 12 Summary of recommendations 205 The need for reform 205 Safeguards as a condition for reform 205 Options considered and the version recommended 205 Proposed model for reform: the Core Scheme 206 Special topics 209 Annex List of those who responded to the consultation paper 212 iv Preface __________ Terms of reference 1. In May 2001, the Chief Justice and the Secretary for Justice directed the Law Reform Commission: To review the law in Hong Kong governing hearsay evidence in criminal proceedings, and to consider and make such recommendations for reforms as may be necessary. The sub-committee 2. Following that referral, a sub-committee was appointed by the Commission. Its membership was: Hon Mr Justice Stock Justice of Appeal (Chairman) But Sun Wai Solicitor (from July 2006) Peter Chapman Senior Assistant Director of Public Prosecutions Department of Justice Alan Hoo, SBS, SC, JP Senior Counsel Andrew Lam Solicitor (until June 2006) Gerard McCoy, SBS, QC, SC Senior Counsel Professor of Law, City University of Hong Kong Adjunct Professor of Law, University of Canterbury, New Zealand Anthony Upham Associate Professor School of Law City University of Hong Kong Hon Mr Justice Wright Judge of the Court of First Instance Simon Young Associate Professor Faculty of Law University of Hong Kong 1 Peter Sit Secretary (until February 2008) Byron Leung Secretary (from March 2008) Working method 3. It was apparent from the sub-committee’s introductory meeting on 30 August 2001 that the subject matter and the approach to it might be controversial, the question having been raised at that very first meeting whether there would be room for a minority report. It was agreed that the first question to address was whether there were any existing problems with the law as it now stood. The work of the committee became complex, requiring detailed study of the rationale for the rules and their exceptions, of criticisms made in common law jurisdictions of the present state of the law, whether those criticisms were valid in Hong Kong, and of solutions proposed elsewhere. 4. All this required preparation of papers by individual committee members, the co-option of further members, and the formation of subgroups to prepare suggested solutions and drafts. No fewer than 73 papers directed at specific issues of discussion were produced, and 19 plenary meetings of the sub-committee held, in the process of preparing a consultation paper setting out the sub-committee's provisional recommendations. That consultation paper was published in November 2005 and distributed widely within the legal profession. 5. A total of 39 responses to the consultation paper were received from the individuals and organisations listed at the Annex to this report. Those responses were carefully considered by the sub-committee in the course of formulating its final recommendations. We express our gratitude to the members of the sub-committee for the immense amount of work which they devoted to this project and we thank all those who took time to share with the sub-committee their views on this complex and controversial subject. What is "the rule against hearsay"? 6. The rule against hearsay in criminal proceedings renders hearsay evidence generally inadmissible in criminal proceedings unless that evidence falls within one of the common law or statutory exceptions to the rule. A simple explanation of the term hearsay would be that "when A tells a court what B has told him, that evidence is called hearsay".1 The need to exclude hearsay evidence when it is adduced to prove the truth of the original statement is mainly based on the assumption that indirect evidence might be untrustworthy and unreliable, particularly in so far as it is not subject to cross- examination. The law's requirement that only first hand testimony of the statement-maker can be admitted in evidence ensures that the witness's credibility and accuracy can be tested in cross-examination. 1 R May, Criminal Evidence (Sweet & Maxwell, 3rd edition, 1995), at 179. 2 Criticisms of the rule and reform in other jurisdictions 7. Despite this rationalisation, the hearsay rule has been the subject of widespread criticism over the years from academics, practitioners and the Bench.