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Will it become easier to admit hearsay evidence in criminal proceedings?

On 21 April 2017, the Department of Justice issued a Consultation Paper on Evidence (Amendment) Bill 2017 (the Proposed Bill) inviting views on the reform of the law on hearsay evidence in criminal proceedings by a detailed legislative scheme. The proposal seeks to implement the recommendations of the report on “Hearsay in Criminal Proceedings” published by the Law Reform Commission of Hong Kong in November 2009 and makes related legislative amendments. 

The Proposed Bill extends and clarifies the scope under which hearsay evidence can be admitted in criminal proceedings. Under the Proposed Bill, hearsay evidence would be admissible if the relevant parties agree, if the admission is not opposed, if the court grants permission to admit the evidence, if it falls within one of the common law exceptions preserved, or if it falls within a statutory exception. 

This article discusses the major situations under which hearsay evidence is admissible under the Proposed Bill. 

What is hearsay? 

Hearsay is a statement that (a) was made by a person other than a witness; (b) is offered in evidence at the proceedings to prove the truth of its content; and (c) is a written, non-written or oral communication which was intended to be an assertion of the matter communicated. 

Existing Law 

Under the existing law, hearsay evidence is generally inadmissible in criminal proceedings, unless it falls within one of the common law or statutory exceptions. The exclusion of hearsay evidence is due to the lack of opportunity for the opponent of the party who presents the evidence to cross-examine the original statement-maker to test the reliability of the evidence. 

What is the major mechanism introduced under the Proposed Bill? 

The Proposed Bill provides that hearsay evidence is admissible with the leave of the court (i.e. permission of the court) where:

  1. the declarant (i.e. the person who made the statement) is identified to the court’s satisfaction;
  2. oral evidence given in the proceedings by the declarant would be admissible of that matter;
  3. the condition of necessity is satisfied;
  4. the condition of threshold reliability is satisfied;
  5. the court is satisfied that the probative value of the evidence is greater than any prejudicial effect it may have on any party to the proceedings. 

What is the condition of necessity? 

The condition of necessity will be satisfied where the declarant is dead, unfit to be a witness, outside Hong Kong and it’s not reasonably practicable to secure his attendance at the proceedings or for examination, cannot be found, or refuses to testify on the ground of self-incrimination. 

What is the condition of threshold reliability? 

The condition of threshold reliability will be satisfied where the circumstances provide a reasonable assurance that the statement is reliable.   

The court shall have regard to all circumstances relevant to the statement’s apparent reliability, including the nature and contents of the statement, the circumstances in which it was made, circumstances that relate to the truthfulness and the accuracy of the observation of the declarant, and whether the statement is supported by other admissible evidence. 

Does the Proposed Bill provide any safeguard? 

Under the Proposed Bill, the court must direct the acquittal of the accused if:

  1. the case against an accused is based wholly or partly on hearsay evidence admitted with the leave of the court; and
  2. the court considers that it would be unsafe to convict the accused. 

Under what other circumstances will hearsay evidence be admissible? 

Admission by agreement 

The parties can reach an oral agreement before the court or jointly produce a written agreement to the court for the admission of hearsay evidence. 

Admission not opposed by other parties 

A party who proposes to adduce hearsay evidence may give a hearsay evidence notice to each other party and the responsible court officer. If no party gives an opposition notice within 14 days from the day of the hearsay evidence notice, then the hearsay evidence is admissible. 

Under common law rules 

The Proposed Bill specifically preserves certain common law rules relating to the admission of hearsay evidence, including those relating to admissibility of admissions, confessions and statements against self-interest made by an accused, statements made during the course or in furtherance of a joint enterprise or conspiracy, expert opinion, public information, reputation as to character, reputation or family tradition, res gestae, and admissions by agents. 

Other evidence 

The Proposed Bill provides for the admission of hearsay evidence for proving credibility and previous statements made by a witness for proving the truth of its content under certain circumstances. 

Next Step 

The Department of Justice is currently inviting views of the Judiciary, legal professional bodies and other interested parties on the Proposed Bill by the end of July 2017.

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