08a LLAW3102 2021 S1 SGTQ08 Hearsay

LLAW3102
– Evidence I
Study Guide and Tutorial Questions (20‐21, S1) – Topic 08

THE UNIVERSITY OF HONG KONG
DEPARTMENT OF LAW
LLAW3102 – EVIDENCE I
ACADEMIC YEAR 2020 ‐ 2021 (SEMESTER 1)
STUDY GUIDE
TOPIC 8 – HEARSAY

A. Topic Learning Outcome
Students who have adequately prepared for and participated in the lecture and tutorial of this
topic will be able to understand: ‐
1. the common law rule against evidence used for hearsay purpose;
2. identifying evidence used for hearsay and non‐hearsay purposes;
3. the rationale behind the common law rule against evidence used for hearsay purpose;
4. the common law exceptions to the rule against evidence used for hearsay purpose;
5. the statutory exceptions to the rule against evidence used for hearsay purpose; and
6. the proposed amendments of the Evidence Ordinance in relation to evidence used for a
hearsay purpose in criminal proceedings.

B. Tutorial
The tutorial questions of this course serve as ‘checkpoints’ for students to facilitate their self‐
assessments of:‐ (i) how well they understand the fundamental concepts of individual topics; and
(ii) how they can apply the theories learned to resolve hypothetical fact‐pattern questions.

Most (if not all) questions in the final examination will also be hypothetical fact‐pattern questions.

Before attending the tutorial session, please read the tutorial questions for Topic 8 and prepare
brief answers to each of the tutorial questions. You will be asked to discuss your answers with
your classmates and course tutor.

C. Essential Readings for Topic 8
Statutory Provisions
 Evidence Ordinance (Cap. 8), ss 17A, 20, 22, 22A, 22B, 70, 73.
 Criminal Procedure Ordinance (Cap. 221), s65B
Cases
 Oei Hengky Wiryo v HKSAR (No.2) (2007) HKCFAR 98
 R v Kearley [1992] 2 AC 228
 R v Ng Kin‐yee [1994] 2 HKCLR 1
 HKSAR v Or Suen Hong [2001] 2 HKLRD 669
 Subramaniam v Public Prosecutor [1956] 1 WLR 965
 R v Blastland [1986] 1 AC 41
 Mawaz Khan & Anor v R [1967] AC 454
 R v Spiby (1990) 91 Cr App R 186
Created and edited by J.C.K. Yeung Page 1 of 40
Department of Law of the University of Hong Kong
Version: October 2020
LLAW3102 – Evidence I

 Ratten v R [1972] AC 378
 R v Rogers (1995) 1 Cr App R 374
 R v Andrews [1987] AC 281
 Nembhard v R [1981] 1 WLR 1515
 Mills v R [1995] 1 WLR 511
 Sparks v R [1964] AC 964
 HKSAR v Ang SuWen, Pauline (Unrep. CACC 428/2005, 1st August 2007)
D. Optional Further Readings for Topic 8
Textbooks
 S.N.M. Young, Hong Kong Evidence Casebook (Hong Kong: Sweet & Maxwell Asia, 2004),
Chapter 4;
 I.H. Dennis, The Law of Evidence (London: Sweet & Maxwell, 2017), 6th edn, Chapter 16, [12‐
018] – [12‐019]
 H.M. Malek (ed), Phipson on Evidence (London: Sweet & Maxwell, 2018), 19th edn, Chapter
28.

Statutory Provisions
 Evidence Ordinance (Cap. 8), ss 46 ‐ 55B;
 The Rules of the High Court (Cap. 4A), O38, rr20‐22
 The Rules of the District Court (Cap. 336H), O38, rr20‐22

Others
 Evidence (Amendment) Bill 2018
 The Law Reform Commission of Hong Kong, Report on the Hearsay in Criminal Proceedings
(Hong Kong, 2009).


8.1 – Overview
The topic of hearsay is often regarded as a confusing and difficult topic in the law of evidence.
The common law rule had a deserved reputation for being technical and difficult. It puzzled generations
of students, and sometimes provoked striking judicial confusion [footnote omitted] or disagreement.
[footnote omitted] However, it is worth emphasising at the outset that the underlying ideas of a rule
against hearsay are reasonably clear and are not difficult to relate to general concerns of the law of
evidence.1
To facilitate students’ understanding about the rules related to hearsay, the Study Guide of this topic
shall be divided into two parts.
In the first part of the Study Guide, the common law rule against evidence used for hearsay purpose
will be introduced. With the introduction of the common law rule, students should be able to identify
when a piece of evidence will be used for hearsay and non‐hearsay purposes. The reasons for having
the common law rules will also be discussed.
In the second part of the Study Guide, various common law and statutory exceptions to the common
law rule in both civil and criminal proceedings will be examined.
8.2 – The Common Law Rule and Definitions of Hearsay
Difficulties of defining the rule and the terms of hearsay
It is difficult to understand what hearsay is about without referring to the common law rule against
evidence used for hearsay purpose. What makes the study of hearsay even more difficult is that there
are various definitions for the common law rule against hearsay evidence.
In Hong Kong, it may be helpful to begin the study of hearsay by looking at the following paragraph in
Oei Hengky Wiryo v HKSAR (No.2) (2007) HKCFAR 98: ‐
35. As Lord Reid pointed out in Myers v DPP [1965] AC 1001 at p.1019:
It is difficult to make any general statement about the law of hearsay evidence which is entirely
accurate.
However, a reasonable working definition of the hearsay rule is that an oral or written assertion,
express or implied, other than one made by a person in giving oral evidence in court proceedings is
inadmissible as evidence of any fact or opinion so asserted…
In the practitioners’ textbook, the definition of the common law rule used to be:‐
Oral or written statements made by persons who are not parties and who are not called as witnesses
are inadmissible to prove the truth of the matters stated.2
And there is a statutory definition of ‘hearsay’ set out in s46 of the Evidence Ordinance (Cap. 8)
(“EO”):‐3

1 I.H. Dennis, The Law of Evidence (London: Sweet & Maxwell, 2017), 6th edn, [16‐001].
2 H.M. Malek (ed), Phipson on Evidence (London: Sweet & Maxwell, 2018), 19th edn, [28‐03].
3 Please note this is the interpretation section of Part IV of the Evidence Ordinance related to Hearsay Evidence in Civil
Proceedings. Such a statutory definition does not apply to criminal proceedings.

CAP 8 EVIDENCE ORDINANCE
Section 46 Interpretation
In this Part, unless the context otherwise requires—
…
hearsay ( 傳聞 )—
(a) means a statement made otherwise than by a person while giving oral evidence in the proceedings
which is tendered as evidence of the matters stated;
(b) includes hearsay of whatever degree;
…

The preferred definition of the common law rule?
A comparison of the definition of the common law rule set out in Oei Hengky Wiryo v HKSAR (No.2)
(2007) HKCFAR 98 (“the HKCFA Definition”) and the one set out in the older editions of Phipson on
Evidence (“the Textbook Definition”) shows the following major differences:‐
 In terms of the scope of the statement, the HKCFA Definition also catches the out‐of‐court
statements previously made by the person who is currently testifying in court,4 whereas
the Textbook Definition limits the scope to statements made by a person who is not a party
to the proceedings and who is not a witness; and

 In terms of the purpose of adducing the statement, the Textbook Definition only catches
the out‐of‐court statements which are used to prove the truth of the matters stated in the
statements, whereas the ‘truth’ requirement is not mentioned in the HKCFA Definition.

Given that:‐
(i) the common law rule against hearsay may also apply to a witness who testifies in court
when he/she refers to a previous statement he/she made out of court (see the discussions
in the Study Guide of Topic 2 about refreshing memory and rebuttal of recent fabrication);5
and
(ii) when witnesses of opinion testify in court, parties may be relying on the assertion of the
opinion, the factual basis supporting the witnesses of opinion to form their views are not
something being relied on or asserted by the parties. In other words, the parties are not
asserting the truth of the facts forming the basis of the witnesses’ opinion.6
After taking these factors into account, students should be able to see why the HKCFA Definition should
be preferred. For the purpose of this course, the discussions of the common law rule against hearsay
will be based on the HKCFA Definition.
Identifying hearsay
Having defined the common law rule against hearsay, it is possible to examine what this rule exactly
prohibits. In this regard, the common term of ‘hearsay evidence’, used by many primary and secondary
materials, has been causing a lot of confusion among students and practitioners. The use of the term
‘hearsay evidence’ makes people think whether or not a piece of evidence is hearsay depends on the
type of evidence. For example, ‘a documentary evidence must be hearsay evidence.’ It is incorrect. It
has been said that ‘there is no such things as hearsay evidence, only hearsay uses.’7 Even if an out of

4 As suggested by the wording ‘…other than one made by a person in giving oral evidence in court proceedings’
5 Malek (ed) (See n 2 above), [28‐07].
6 Ibid, [28‐06].
7 Ibid, [28‐13], citing P. Roberts and A. Zuckerman, Criminal Evidence (Oxford: Oxford University Press, 2004), p 587.

court statement was made by a person not testifying at trial, whether the statement should be treated
as hearsay or not still depends on what assertion that the party is attempting to make. Applying the
HKCFA Definition of the rule against hearsay, if the party is not relying on the facts or opinion asserted
in the statement, then the statement will not be treated as hearsay.
Note to students 8.1 – Terminology
To avoid confusion, students should approach the question of identification of hearsay by asking ‘whether a
piece of evidence is or is not used for a hearsay purpose’ instead of simply asking ‘whether a piece of evidence
is hearsay evidence’.

The following examples may help students identify when a piece of evidence is used for a hearsay
purpose and when it is used for a non‐hearsay purpose: ‐
Example 8.1 – Oral Testimony by an Eyewitness
Issue in Dispute
Suppose Victor (“V”) was injured by a person and according to V, it was Dennis (“D”) injuring him. D denied
injuring V and claimed it was a mistaken identity case. The case was eventually brought to the court. The
central issue of the case was: ‐ ‘Whether D was the person injuring V’.

Available Evidence
Eddie (“E”), an eyewitness of the incident, claimed he saw what happened at the material time. He testified
in Court as the 2nd prosecution witness and in his testimony, he said ‘I saw D injuring V.’
 Here, E’s testimony is NOT evidence used for a hearsay purpose because E was the witness testifying
in court and he was simply telling the court what he saw at the material time.

Mary (“M”), V’s mother, also testified in Court as the 5th prosecution witness. In her testimony, M said ‘I saw
my son was injured when he reached home. I asked my son “who hurt you?” and my son said “it was D injuring
me.”’
 As to whether M’s testimony was evidence used for hearsay purpose, it depended on the assertion
which the prosecution sought to prove.
o If the prosecution simply wished to prove ‘M saw her son with injuries when V reached
home,’ then this would not be evidence used for a hearsay purpose because V was the
witness testifying in court and she simply told the court what she saw at the material time.
o However, if the prosecution sought to use M’s testimony to prove that ‘It was D injuring V’,
then this would be evidence used for a hearsay purpose because:‐
(i) the statement made by V to M was not a statement made by a person when giving
oral evidence in legal proceedings; and
(ii) the prosecution relied on the facts asserted in the statement made by V to M
(i.e. it was D committing the offence).

Example 8.2 – Documentary Hearsay
Suppose Daniel (“D”) was charged with one count of indecent assault (contrary to s122 of the Crimes
Ordinance (Cap. 200)), the complainant, Venus (“V”) testified in Court. In cross‐examination, counsel for D
suggested to V that she was fabricating facts of the case.


To rebut the allegation of recent fabrication, the prosecutor sought to ask whether D made a recent complaint
shortly after the alleged indecent assault. Venus said she did mention it in an email to her social worker,
Winnie (“W”). The email correspondence was adduced as an exhibit of the case.

 The email correspondence would be used for a hearsay purpose if the prosecution sought to rely on
a sentence in the email to prove it was D indecently assaulted V because the email correspondence
was a written statement made by V on an occasion other than giving evidence in court; and the use
of the email by the prosecution would be to assert the contents stated there.

 In contrast, if the purpose of adducing the email correspondence was simply to show ‘V did make a
recent complaint’ (which V would have already said so in re‐examination) without relying on the any
facts so asserted in the email, this would not be a piece of evidence used for hearsay purpose.

Implied Assertions
As mentioned in the HKCFA Definition, the common law rule against hearsay applies to both express
and implied assertions of fact or opinion. While it is often easy to see when an express assertion is
made by a statement maker other than the one who is giving evidence in court proceedings (see
Example 8.1 above in relation to the testimony of M that ‘my son said it was V injuring him.’),
sometimes students may find it difficult to identify the implied assertions of facts of or opinion. Being
unable to identify the implied assertion of the statement maker will affect the identification and
application of the rule against hearsay.
The case of R v Kearley [1992] 2 AC 228 may be useful in understanding what an implied assertion is.
The defendant in the case was charged with possession of a controlled drug with intent to supply.8
After the defendant was arrested at home and in the absence of defendant, the police officers pick up
several phone calls to the defendant’s home where the persons calling were asking to be supplied
with drugs. There were also visitors coming to the defendant’s home and asked to be supplied with
drugs.9
The House of Lords was invited to decide on the following issue:‐
…whether evidence may be adduced at a trial of words spoken (namely a request for drugs to be
supplied by the defendant), not spoken in the presence or hearing of the defendant, by a person not
called as a witness, for the purpose not of establishing the truth of any fact narrated by the words, but
of inviting the jury to draw an inference from the fact that the words were spoken (namely that the
defendant was a supplier of drugs).10
It was held that the evidence about what the phone callers and visitors said were inadmissible because:
‐
(i) the state of mind of the callers and/or visitors making the request for drugs was of no
relevance to the question whether the defendant was a supplier;11 and
(ii) by asking for a supply of “usual amount”, the callers/visitors’ requests were impliedly
asserting that “the defendant had supplied them with drugs in the past.” Even if the
callers/visitors made a direct assertion that “the defendant had supplied them with drugs
in the past”, without calling person making that statement as witness, that direct assertion

8 R v Kearley [1992] 2 AC 228, 230B.
9 Ibid, 252‐253.
10 Ibid, 230C.
11 Ibid, 243D.

would have been inadmissible as hearsay. There should be no distinction drawn for the
purposes of hearsay rule between express and implied assertions.12
The Court of Appeal in Hong Kong followed R v Kearley [1992] 2 AC 228 in the case R v Ng Kin Yee
[1994] 2 HKCLR 1.
While an implied assertion of the statement made by a person other than the one giving oral evidence
in the course of the court proceedings is held inadmissible by R v Kearley [1992] 2 AC 228, it is
necessary to the distinguish the scenarios of:‐ (i) implied assertion used for a hearsay purpose; and (ii)
original circumstantial evidence.
This was the matter to be decided by the Court of Appeal in HKSAR v Or Suen Hong [2001] 2 HKLRD
669. The defendant was charged with bookmaking, contrary to s7(1)(a) of the Gambling Ordinance
(Cap. 148) and was convicted in the District Court.13
During the search of the defendant’s residence, the police found some betting slips.14 In the appeal
against conviction hearing, the defendant sought to challenge the admissibility of the these betting
slips found by the police by arguing that the contents of the betting slips ought not be admissible on
the ground that they were implied assertions ‘that the person who made the document was engaged
in bookmaking.’15 The defendant argued that R v Kearley [1992] 2 AC 228 and R v Ng Kin Yee [1994] 2
HKCLR 1 should be applied.16
The Court of Appeal in Hong Kong, however, dismissed this ground of appeal. Read the following
paragraphs of the judgment to understand the underlying reason. 17
The applicant asserts that he is assisted by the House of Lords' decision in R v Kearley [1992]
2 AC 228 and by the Hong Kong case which followed it, R v NG Kin‐yee [1994] 2 HKCLR 1, [1993] 2 HKC
148. We do not think that these cases assist the applicant.
The basis upon which the telephone calls to the appellant in Kearley were held by the majority
to be inadmissible, was that the state of mind of the callers was irrelevant, and in so far as the calls
were said to carry an implied assertion that the appellant had in the past supplied drugs to them, the
evidence of the calls and what was said in them was inadmissible as hearsay, for the object of adducing
this evidence was to show the truth of the implied assertions. The decision of the House of Lords has,
to use the words of Lord Hoffmann in Secretary of Justice v. Lui Kin Hong (1999) 2 HKCFAR 510, at p.503,
[2000] 1 HKLRD 92, at p.112, "been heavily criticized", and whether it is a decision which will in future
be followed in Hong Kong is a matter with which we need not be concerned. However, for present
purposes, it suffices to pose the test posed by the majority in the House of Lords. And if we ask the
question whether the exhibits in the present case were adduced to establish the truth of the assertions
said to be implicit in them, we must first ask what suggestions were implicit in them. Implicit in the
exhibits might be said to be suggestions that such and such a bet was placed with a bookmaker on a
certain date. Unlike the case of Kearley, and all the Commonwealth cases on bookmaking to which it
referred, there was not in any of the documents in this case an implied assertion that anyone placed
bets with this applicant. In a passage recently cited with approval by the Court of Final Appeal in Wong
Wai Man & Others v. HKSAR (2000) 3 HKCFAR 322 at p.327, [2000] 3 HKLRD 313 at pp. 317‐318, Mason
CJ, in R v. Walton (1989) 166 CRL 283 said (at p.288) that:

12 Ibid, 243G.
13 HKSAR v Or Suen Hong [2001] 2 HKLRD 669, 670J.
14 Ibid, 671E‐671G.
15 Ibid, 676C‐676E.
16 Ibid, 678D.
17 Ibid, 678D‐679J.

"The hearsay rule applies only to out‐of‐court statements tendered for the purpose of directly
proving that the facts are as asserted in the statement."
The fact is that in the present case the exhibits were not tendered to prove directly the facts said to be
implicit in them, namely, that those particular bets were placed with someone, but rather that, even
though they may well have been placed with someone ‐ one knows not whom, for the records do not
say ‐ this applicant was in possession of records of this type. In this way, the nature of the evidence and
its contents and its implied assertion and its purpose can be distinguished from the evidence under
discussion in the Kearley case and in the Hong Kong bookmaking case which has followed.
Betting slips, and section 7(1)(a)
It is then said that in any event the making of a betting slip was not evidence per se of an offence
under section 7(1)(a) and, further than that, that the possession of a betting slip was not admissible for
the purpose of proving a section 7(1)(a) offence.
The basis for this argument flows from the provision which is section 19(3) of the Ordinance, which
provision is recited in the summary we have provided of relevant provisions. Mr Wong SC, on behalf of
the applicant, says that since this subsection provides that possession of a betting slip gives rise to a
presumption that the person in possession has been assisting another in bookmaking (the section
7(1)(c) offence), its probative use is excluded for the purpose of proving a section 7(1)(a) offence.
The point is, with respect, untenable. All that section 7(1)(c) does is to provide a statutory
presumption which, assuming the evidence is sufficient to raise it, a defendant has then the burden of
displacing. It hardly means that a court is to exclude evidence of the possession of betting slips in the
case of other offences under the Ordinance no matter how relevant that evidence may be. If the
evidence is relevant to any charge levelled under the Ordinance, then it is admissible unless there exists
some rule which specifically excludes its admissibility. Section 7(1)(c) excludes nothing. No one suggests
that in a section 7(1)(a) prosecution the mere possession of a betting slip suffices to establish a case of
running a business of bookmaking. What, however, it might do, is to establish such proof in the light of
all the circumstances in which it is found, those other circumstances to be shown by other admissible
evidence.
It is worth noting that the case against this applicant was proved by much more than the evidence
said to be inadmissible. The betting slips which were adduced show the keeping of records such as
might be kept in a bookmaking business. The fact that the applicant was actually receiving bets on the
day in question was proved by the uncontested evidence of calls coming in to his flat at an average
frequency of about one every three minutes over a period of three hours on a racing night; by the fact
that he was seen making notes frequently when receiving these calls; and by the fact that there were
found different coloured pens by the telephone.
Degree of hearsay
With the basic understanding of when evidence is used for a hearsay purpose, students should find it
easier to understand the concept of degree of hearsay. Evidence used for hearsay purpose can be:‐ (i)
first‐hand hearsay; or (ii) multiple hearsay.
 First‐hand hearsay – ‘If a witness heard the statement from someone who personally perceived
the matter stated, the statement is first‐hand hearsay.’ 18 Consider the following graphical
illustration:‐


 Multiple hearsay – it is also possible to have ‘hearsay upon hearsay’, 19 consider the following
graphical illustration:‐

Using the evidence for a non‐hearsay purpose
‘if the court is not asked to believe the declarant’s statement, the evidence is described as “original”
evidence and the hearsay rule does not apply…The party adducing the evidence does not rely on the
facts spoken.’20 In such circumstances, the admissibility of the statement is primarily governed by the
its relevance to the fact in issue, subject to other exclusionary rules in the law of evidence.21 Below are
some of the examples which the evidence is adduced for a non‐hearsay purpose.
 A statement used to show the state of mind of the person being told about the statement – In
the case of Subramaniam v Public Prosecutor [1956] 1 WLR 965, the defendant was charged with
possession of ammunition.22 At trial, he gave evidence about how he was forced to accompany the
terrorists and to carry arms and ammunitions. And that one of the terrorist told the defendant that
the defendant ‘was being taken to their leader.’23 The trial judge held the evidence of conversation
between the defendant and the terrorists was inadmissible because it was evidence used for
hearsay purpose.24 The Judicial Committee of the Privy Council held the trial judge was wrong:‐

In ruling out peremptorily the evidence of conversation between the terrorists and the appellant
the trial judge was in error. 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 of the evidence 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

19 Ibid.
20 Ibid, [28‐16].
21 Ibid, [28‐18].
22 Subramaniam v Public Prosecutor [1956] 1 WLR 965, 969.
23 Ibid, 970.
24 Ibid.

statement, but the fact that it was made. The fact that the 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. In the case before
their Lordships statements could have been made to the appellant by the terrorists, which,
whether true or not, if they had been believed by the appellant, might reasonably have induced in
him an apprehension of instant death if he failed to conform to their wishes.25

 A statement used to show the state of knowledge of the statement maker – In R v Blastland
[1986] 1 AC 41, the defendant was convicted of buggery and murder.26 At trial, the defendant gave
evidence that he did attempt to bugger the boy but it was another person killing the deceased.27
At trial, counsel for the defendant sought to adduce evidence about the statements made by
another suspect that the deceased was murdered on multiple occasions but the trial judge held
they were used for hearsay purpose and therefore inadmissible. 28 The House of Lords had to
decide:‐

Whether evidence of words spoken by a third party who is not called as a witness is hearsay
evidence if it is advanced as evidence of the fact that the words were spoken and so as to indicate
the state of knowledge of the person speaking the words if the inference to be drawn from such
words is that the person speaking them is or may be guilty of the offence with which the defendant
is charged. 29

Despite dismissing the defendant’s appeal on the ground of lack of direct and immediate relevance
to an issue arising at the trial, the House of Lords recognised that the use of statement made to a
witness by a third party to show the state of mind of the statement maker is not a use of evidence
for a hearsay purpose.

It is, of course, elementary that statements made to a witness by a third party are not excluded by
the hearsay rule when they are put in evidence solely to prove the state of mind either of the
maker of the statement or of the person to whom it was made. What a person said or heard said
may well be the best and most direct evidence of that person's state of mind. This principle can
only apply, however, when the state of mind evidenced by the statement is either itself directly in
issue at the trial or of direct and immediate relevance to an issue which arises at the trial. It is at
this point, as it seems to me, that the argument for the appellant breaks down. The issue at the
trial of the appellant was whether it was proved that the appellant had buggered and murdered
Karl Fletcher [the deceased]. Mark's [the other suspect of the case] knowledge that Karl had been
murdered was neither itself in issue, nor was it, per se, of any relevance to the issue. What was
relevant was not the fact of Mark's knowledge but how he had come by that knowledge. He might
have done so in a number of ways, but the two most obvious possibilities were either that he had
witnessed the commission of the murder by the appellant or that he had committed it himself. The
statements which it was sought to prove that Mark made, indicating his knowledge of the murder,
provided no rational basis whatever on which the jury could be invited to draw an inference as to
the source of that knowledge. To do so would have been mere speculation.30

 Using the out of court statement for the purpose of proving such a statement was false – in
Mawaz Khan & Anor v R [1967] AC 454, the defendants were convicted of murder by the Supreme

25 Ibid.
26 R v Blastland [1986] 1 AC 41, 50F.
27 Ibid, 50H – 51A.
28 Ibid, 51H – 52B.
29 Ibid, 52F.
30 Ibid, 54D‐54F.

Court of Hong Kong and were sentenced to death. 31 Both defendants did not testify at trial
although they did make a joint alibi when each of them was interviewed by the police officers.32
The trial judge gave the following directions to the jury:‐

A statement which is made by an accused person in the absence of the other is not evidence
against the other: it is evidence against the maker of the statement but against him only… The
Crown's case here is not that these statements are true and that what one says ought to be
considered as evidence of what actually happened. What the Crown say is that these statements
have been shown to be a tissue of lies and that they disclose an attempt to fabricate a joint story.
Now, members of the jury, if you come to that conclusion then the fabrication of a joint story
would be evidence against both. It would be evidence that they had co‐operated after the alleged
crime. 33

On appeal, the Privy Council had to consider whether the direction was wrong.34

Their lordships agree with Hogan C.J. and Rigby A.J. in accepting the generality of the
proposition maintained by the text writers and to be found in Subramaniam's [footnote omitted]
case that a statement 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. Not only therefore can the
statements of each appellant be used against each appellant individually, as the learned judge
directed, but they can without any breach of the hearsay rule be used, not for the purpose of
establishing the truth of the assertions contained therein, but for the purpose of asking the jury to
hold the assertions false and to draw inferences from their falsity.

The statements were relevant as tending to show that the makers were acting in concert and
that such action indicated a common guilt. This is a factor to be taken into account in conjunction
with the circumstantial evidence to which reference has been made in determining the guilt or
innocence of the accused persons.
Reasons for having the common law rule against hearsay
While the above examples do not form the complete and exhaustive illustration of all possible
circumstances of when a piece of evidence is used for a hearsay purpose and when it is used for a non‐
hearsay purpose, the basic ability to identify evidence used for hearsay purpose shall enable student
to understand the reasons for having the common law rule against hearsay:‐
 Unreliability of evidence used for a hearsay purpose – ‘Much hearsay evidence – particularly
compounded hearsay – is potentially untrustworthy because repetition encourages distortion
[footnote omitted] and loss of detail and opportunity to cross‐examine the maker of the statement
provides opportunities for fraud.’35
 The rule against hearsay promotes an accurate fact‐finding process – the strict enforcement of
the rule against hearsay shall:‐ (i) ensure that the tribunal of facts will not be able to rely on
unreliable hearsay evidence; (ii) by requiring the statement maker to testify in court, the statement
maker’s demeanour can be observed by the tribunal of facts; and (iii) the statement maker will be
subject to cross‐examination of the opponents’ counsel.36

31 Mawaz Khan & Anor v R [1967] AC 454, 459D.
32 Ibid, 459D, 461D.
33 Ibid, 455B‐C.
34 Ibid, 461G – 462A.
36 Ibid, [28‐11].

 Unfairness to parties to proceedings – if evidence used for hearsay purpose is allowed, parties
and/or legal representatives of the parties will not be able to cross‐examine the person(s) making
accusation(s) against them. This would be unfair to the parties.37
Some miscellaneous issues
This subsection of the Study Guide will discuss several miscellaneous issues related to the common law
rule against hearsay and/or the definition of hearsay.
 Admissibility of evidence as a question of law – It should be noted that whenever there is an

argument among parties as to whether a piece of evidence is used for hearsay purpose and
therefore inadmissible, it is a question of law to be decided by the tribunal of law;38
 Non‐application to statements not made by a person – the common law rule against hearsay does
not apply to evidence which is not a statement made by a person.39 In R v Spiby (1990) 91 Cr App
R 186, the English Court of Appeal had to decide whether a printout generated by the
computerised system monitoring the guests’ telephone calls in a hotel was admissible to prove the
assertion stated in the printout.40 It was held that the common law rule against hearsay would not
apply to a statement with ‘information which is recorded by mechanical means without the
intervention of a human mind…provided…it is accepted that the machine is reliable.’ 41 Such a
printout was further held to be real evidence.42

As to the difference between ‘a computer record with information recorded by mechanical means
without the intervention of a human mind’ and ‘a computer record which requires input by a
person’, see the discussions below:‐

o For example of ‘a computer record with information recorded by mechanical means
without the intervention of a human mind’:‐
An elementary example is a maximum and minimum thermometer. This records two
items of information in the course of 24 hours and there is no doubt that a witness could
give evidence of the reading he took from it if that were relevant to the issue before the
court. A fortiori, the instrument itself could be produced, if it were possible to do so. if it
still bore the relevant readings. It would not be necessary to call a professor of physics to
prove how a thermometer works because that is. surely, such a matter of common
knowledge as to be judicially noticed. The same is true of a camera which photographs an
event or a tape recorder which records a conversation where the event or conversation
is in issue or relevant to the issue before the court. A radar speedometer similarly makes
a record of an event‐the speed of a passing vehicle‐and it is no different in legal principle
from the thermometer.43

o For example a computer record which requires input by a person:‐
The situation would have been quite different if a telephone operator in the hotel had
had herself to gather the information. then type it into a computer bank. And there came

37 Ibid, [28‐12].
39 Ibid.
40 R v Spiby (1990) 91 Cr App R 186, 188.
41 Ibid, 191‐192, citing Smith, “The Admissibility of Statement by Computer” [1981] Crim LR 387.
42 R v Spiby (1990) 91 Cr App R 186, 192.
43 Ibid, 191‐192, citing Smith, “The Admissibility of Statement by Computer” [1981] Crim LR 387.

then a print‐out from that computer. There the human mind would have been involved.
That would have been hearsay evidence.44
8.3 – Exceptions to the Common Law Rule against Hearsay
Even if a piece of evidence is used for the hearsay purpose, the evidence may still be admissible if it
falls within any of the exceptions to the common law rule against hearsay. These exceptions can be
developed from the common law or created by statutory provisions.
Common law exceptions to the rule against hearsay
 Res Gestae – ‘When the fact that words were spoken or written is relevant independently of
whether or not they are true or the declarant [is] honest, the words are sometimes described as a
“verbal act” and the admissibility attributed to fact that the “verbal act” forms part of the res
gestae.’45 It can also be used ‘to explain the admissibility of non‐verbal conduct that is closely
proximate in time, place and circumstance to something that is in issue.’46 The reason for allowing
the admission of res gestae statements is said to be that they are either the facts in issue or
relevant to the facts in issue.47

To understand the concept of res gestae better, the following discussions in Ratten v R [1972] AC
378 may offer some assistance:‐

The expression "res gestae", like many Latin phrases, is often used to cover situations insufficiently
analysed in clear English terms. In the context of the law of evidence it may be used in at least three
different ways:

1. When a situation of fact (e.g. a killing) is being considered, the question may arise when does the
situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the
firing of the gun or the insertion of the knife, without knowing in a broader sense, what was happening.
Thus in O'Leary v. The King (1946) 73 C.L.R. 566 evidence was admitted of assaults, prior to a killing,
committed by the accused during what was said to be a continuous orgy. As Dixon J. said at p. 577:

"Without evidence of what, during that time, was done by those men who took any significant part in the
matter and especially evidence of the behavior of the prisoner, the transaction of which the alleged
murder formed an integral part could not be truly understood and, isolated from it, could only be
presented as an unreal and not very intelligible event."

2. The evidence may be concerned with spoken words as such (apart from the truth of what they
convey). The words are then themselves the res gestae or part of the res gestae, i.e., are the relevant
facts or part of them.

3. A hearsay statement is made either by the victim of an attack or by a bystander ‐ indicating directly
or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on
whether it was made as part of the res gestae. A classical instance of this is the much debated case
of Reg. v. Bedingfield (1879) 14 Cox C.C. 341 , and there are other instances of its application in
reported cases. These tend to apply different standards, and some of them carry less than conviction.
The reason, why this is so, is that concentration tends to be focused upon the opaque or at least
imprecise Latin phrase rather than upon the basic reason for excluding the type of evidence which this

44 R v Spiby (1990) 91 Cr App R 186, 192.
46 Ibid.
47 Ibid.

group of cases is concerned with. There is no doubt what this reason is: it is twofold. The first is that
there may be uncertainty as to the exact words used because of their transmission through the
evidence of another person than the speaker. The second is because of the risk of concoction of false
evidence by persons who have been victims of assault or accident. The first matter goes to weight.
The person testifying to the words used is liable to cross‐examination: the accused person (as he could
not at the time when earlier reported cases were decided) can give his own account if different. There
is no such difference in kind or substance between evidence of what was said and evidence of what
was done (for example between evidence of what the victim said as to an attack and evidence that he
(or she) was seen in a terrified state or was heard to shriek) as to require a total rejection of one and
admission of the other.

The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid
reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion
this should he recognised and applied directly as the relevant test: the test should be not the uncertain
one whether the making of the statement was in some sense part of the event or transaction. This
may often be difficult to establish: such external matters as the time which elapses between the events
and the speaking of the words (or vice versa), and differences in location being relevant factors but
not, taken by themselves, decisive criteria. As regards statements made after the event it must be for
the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in
circumstances of spontaneity or involvement in the event that the possibility of concoction can be
disregarded. Conversely, if he considers that the statement was made by way of narrative of a
detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt
his account, he should exclude it. and the same must in principle be true of statements made before
the event. The test should be not the uncertain one, whether the making of the statement should be
regarded as part of the event or transaction. This may often be difficult to show. But if the drama,
leading up to the climax, has commenced and assumed such intensity and pressure that the utterance
can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be
received. The expression "res gestae" may conveniently sum up these criteria, but the reality of them
must always be kept in mind: it is this that lies behind the best reasoned of the judges' rulings.
…
These authorities show that there is ample support for the principle that hearsay evidence may be
admitted if the statement providing it is made in such conditions (always being those of approximate
but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction
or distortion to the advantage of the maker or the disadvantage of the accused.

Before applying it to the facts of the present case, there is one other matter to be considered, namely
the nature of the proof required to establish the involvement of the speaker in the pressure of the
drama, or the concatenation of events leading up to the crisis. On principle it would not appear right
that the necessary association should be shown only by the statement itself, otherwise the statement
would be lifting itself into the area of admissibility. There is little authority on this point. In Reg. v.
Taylor [1961 (3)] S.A.L.R. 616 where witnesses said they had heard scuffles and thuds during which the
deceased cried out "John, please don't hit me any more, you will kill me," Fannin J. said that it would
be unrealistic to require the examination of the question (sc. of close relationship) without reference
to the terms of the statement sought to be proved. "Often the only evidence as to how near in time
the making of the statement was to the act it relates to, and the actual relationship between the two,
will be contained in the statement itself," (p. 619). Facts differ so greatly that it is impossible to lay
down any precise general rule: it is difficult to imagine a case where there is no evidence at all of
connection between statement and principal event other than the statement itself, but whether this
is sufficiently shown must be a matter for the trial judge. Their Lordships would be disposed to agree
that, amongst other things, he may take the statement itself into account.

In the present case, in their Lordships' judgment, there was ample evidence of the close and intimate
connection between the statement ascribed to the deceased and the shooting which occurred very

shortly afterwards. They were closely associated in place and in time. The way in which the statement
came to be made (in a call for the police) and the tone of voice used, showed intrinsically that the
statement was being forced from the deceased by an overwhelming pressure of contemporary event.
It carried its own stamp of spontaneity and this was endorsed by the proved time sequence and the
proved proximity of the deceased to the accused with his gun. Even on the assumption that there was
an element of hearsay in the words used, they were safely admitted. The jury was, additionally,
directed with great care as to the use to which they might be put. On all counts, therefore, their
Lordships can find no error in law in the admission of the evidence. They should add that they see no
reason why the judge should have excluded it as prejudicial in the exercise of discretion.48

An example of the application of the principle set out in Ratten v R above is R v Andrews [1987] AC
281. In that case, the House of Lords had to decide whether the victim’s identification of the
defendant, who passed away before the trial, could be admitted as part of the res gestae.49

The trial judge
My Lords, may I therefore summarise the position which confronts the trial judge when faced in a
criminal case with an application under the res gestae doctrine to admit evidence of statements, with
a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as
"hearsay evidence?"

1. The primary question which the judge must ask himself is ‐ can the possibility of concoction or
distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular
statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic
as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that
event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be
entitled to conclude that the involvement or the pressure of the event would exclude the possibility
of concoction or distortion, providing that the statement was made in conditions of approximate but
not exact contemporaneity.

3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the
event which has excited the statement, that it can be fairly stated that the mind of the declarant was
still dominated by the event. Thus the judge must be satisfied that the event, which provided the
trigger mechanism for the statement, was still operative. The fact that the statement was made in
answer to a question is but one factor to consider under this heading.

4. Quite apart from the time factor, there may be special features in the case, which relate to the
possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to
support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a
malice which resided in him against O'Neill and the appellant because, so he believed, O'Neill had
attacked and damaged his house and was accompanied by the appellant, who ran away on a previous
occasion. The judge must be satisfied that the circumstances were such that having regard to the
special feature of malice, there was no possibility of any concoction or distortion to the advantage of
the maker or the disadvantage of the accused.

5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of
human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility
of the statement and is therefore a matter for the jury. However, here again there may be special

48 Ratten v R [1972] AC 378, 388‐392.
49 R v Andrews [1987] AC 287, 294D – 295E.

features that may give rise to the possibility of error. In the instant case there was evidence that the
deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another
example would be where the identification was made in circumstances of particular difficulty or where
the declarant suffered from defective eyesight. In such circumstances the trial judge must consider
whether he can exclude the possibility of error.

Croom‐Johnson L.J., in giving the judgment of the Court of Appeal Criminal Division) dismissing the
appeal, stated, in my respectful view quite correctly, that the Common Serjeant had directed himself
impeccably in his approach to the evidence that he had heard. It is perhaps helpful to set out verbatim
how the judge stated his conclusions:

"I am satisfied that soon after receiving very serious stab wounds the deceased went downstairs for
help unassisted and received some assistance. He was able to talk for a few minutes before he became
unconscious. I am satisfied on the evidence ‐ and not only the primary evidence but the inference of
fact to which I am irresistibly driven ‐ that the deceased only sustained the injuries a few
minutes before the police arrived and subsequently, of course, the ambulance took him to hospital.
Even if the period were longer than a few minutes, I am satisfied that there was no possibility in the
circumstances of any concoction or fabrication of identification. I think that the injuries which the
deceased sustained were of such a nature that it would drive out of his mind any possibility of him
being activated by malice and I cannot overlook as far as the identification was concerned, he was
right over Mr. O'Neill who was a former co‐defendant with the accused."

Where the trial judge has properly directed himself as to the correct approach to the evidence and
there is material to entitle him to reach the conclusions which he did reach, then his decision is final,
in the sense that it will not be interfered with on appeal. Of course, having ruled the statement
admissible the judge must, as the Common Serjeant most certainly did, make it clear to the jury that
it is for them to decide what was said and to be sure that the witnesses were not mistaken in what
they believed had been said to them. Further, they must be satisfied that the declarant did not concoct
or distort to his advantage or the disadvantage of the accused the statement relied upon and where
there is material to raise the issue, that he was not activated by any malice or ill‐will. Further, where
there are special features that bear on the possibility of mistake then the juries' attention must be
invited to those matters.

My Lords, the doctrine of res gestae applies to civil as well as criminal proceedings. There is, however,
special legislation as to the admissibility of hearsay evidence in civil proceedings. I wholly accept that
the doctrine admits the hearsay statements, not only where the declarant is dead or otherwise not
available but when he is called as a witness. Whatever may be the position in civil proceedings, I would,
however, strongly deprecate any attempt in criminal prosecutions to use the doctrine as a device to
avoid calling, when he is available, the maker of the statement. Thus to deprive the defence of the
opportunity to cross‐examine him, would not be consistent with the fundamental duty of the
prosecution to place all the relevant material facts before the court, so as to ensure that justice is done.

My Lords, I would accordingly dismiss this appeal.

 Statements made by the deceased persons – There are 2 exceptions to the rule against hearsay
related to the statements made by the deceased:‐ (i) the declaration against the deceased’s
pecuniary/proprietary interest; and (ii) the dying declarations by the deceased to the cause of the
his/her imminent death. Given that the statement maker is the deceased, allowing this exception
can be the only way to put the facts mentioned in the deceased’s statement as evidence.

o Declarations against the deceased’s pecuniary/proprietary interest – the test as to when
the deceased’s declaration against his/her own pecuniary/ proprietary interest could be

admitted, as an exception to the common law rule against hearsay was set out in R v
Rogers (1995) 1 Cr App R 374. The defendant in this case was convicted of possession of
heroin with intent to supply and possession of a firearm without a certificate. The defence
of him was that the drug found on him was simply for personal use and the gun and the
heroin found under the floorboards of the premises in which he was arrested did not
belong to him and he had no knowledge of them. Those items belonged to another person
known as Law.50

Law had already passed away before the trial and the defence called Law’s wife to give
evidence. Among other things, Law’s wife wanted to give oral evidence about a statement
made by Law before his death, which Law admitted that there were people after him for
the money for the heroin that the police had found. Law also told his wife that the supplied
heroin for the defendant for personal use and said the defendant knew nothing about the
guns and heroin stored under the floorboard. Yet the trial judge held the above declaration
was inadmissible.51

On appeal, the Court of Appeal had to decide whether the statement made by Law to his
wife could amount to an exception to the rule against hearsay and it set out the test for
admissibility of declarations against the deceased’s pecuniary/proprietary interest as
follows:‐

All the textbook writers whose views we have been referred to, that is to say Archbold ,
Blackstone , Cross and Phipson seem to take it for granted that the exception applies in
criminal cases, and in our judgment it does.

In order for the exception to apply, four conditions have to be satisfied. First of all, that the
deceased must have had a peculiar means of knowing the facts stated in the declaration.
Quite plainly here, he would know the facts from his own personal knowledge. Secondly,
the interest against which his declaration is made must be either proprietary or pecuniary.
In The Sussex Peerage Case (1844) 11 Cl. & Fin. 85 , 105, Lord Brougham said this:

“The law in Higham v. Ridgway (1808) 10 East 109 has been carried far enough, although not too
far. The rule, as understood now, is that the only declarations of deceased persons receivable in
evidence, are those made against the proprietary or pecuniary interests of the party making them,
when the subject‐matter of such declarations is within the peculiar knowledge of the party so
making them.”

Thirdly, it must be against the interest of the deceased at the time that the statement was
made, in other words, it must be a present obligation and not one arising in the future.
Fourthly, the declarant must know that the declaration is against his interests.52

The appeal was dismissed on the ground that Law’s statement did not satisfy the second
condition.53

o Dying declarations by a deceased person as to the cause of that person’s imminent death
– this exception is best summarised by Cross on Evidence which explained that ‘an oral or

50 R v Rogers (1995) 1 Cr App R 374, 376G – 377B.
51 Ibid. 377D‐378E.
52 Ibid, 378G ‐379C.
53 Ibid, 379E.

written declaration of a deceased person is admissible evidence of the cause of his death
at a trial for his murder or manslaughter provided he was under a settled hopeless
expectation of death when the statement was made and provided he would have been a
competent witness if called to give evidence at the trial.’54

In Nembhard v R [1981] 1 WLR 1515, the defendant was charged with murdering a police
officer who was shot outside his home and died hours later. The assailant escaped and
there were no eye‐witnesses.55 The wife of the deceased police officer ran out of the house
after hearing the shots. She was told by the deceased, who was bleeding profusely, that
the deceased was going to die and he named the assailant.56

The deceased’s wife testified in court and the judge ruled that the dying declaration of the
deceased was admissible.57 The defendant appealed to the Privy Council on the grounds
that:‐
(i) the trial judge was wrong in admitting the dying declaration for failing to
assess for himself the criticism that had been made of the wife as a witness
and also that he had been in error when he held that there was sufficient
evidence to show that the deceased had a hopeless settled expectation of
death when making the statement; and
(ii) the jury should have been warned that it would be dangerous to convict a
person upon words of a dying declaration in the absence of corroboration.58

In dismissing the appeal, the Privy Council made the following comments:‐
It is not difficult to understand why dying declarations are admitted in evidence at a trial
for murder or manslaughter and as a striking exception to the general rule against hearsay.
For example, any sanction of the oath in the case of a living witness is thought to be
balanced at least by the final conscience of the dying man. Nobody, it has been said, would
wish to die with a lie on his lips. So it is considered quite unlikely that a deliberate untruth
would be told, let alone a false accusation of homicide, by a man who believed that he
was face to face with his own impending death. There is the further consideration that it
is important in the interests of justice that a person implicated in a killing should be
obliged to meet in court the dying accusation of the victim, always provided that fair and
proper precautions have been associated with the admission of the evidence and its
subsequent assessment by the jury. In that regard it will always be necessary for the jury
to scrutinise with care the necessarily hearsay evidence of what the deceased was alleged
to have said both because they have the problem of deciding whether the deponent who
has provided the evidence can be relied upon and also because they will have been denied
the opportunity of forming a direct impression against the test of cross‐examination of
the deceased's own reliability.
Against those considerations the question in this part of the case is simply whether the
need for care in assessing the significance of a dying declaration requires that a jury should
be specifically directed that it would be dangerous to convict on that evidence in the
absence of corroboration. Before providing the answer the practical implications and
effect of the directions actually given by Smith C.J. in the present case deserve to be put

54 J.D. Heydon and R Cross, Cross on Evidence (Sydney: Butterworths, 1996), 5th edn, p564.
55 Nembard v R [1981] 1 WLR 1515, 1517C.
56 Ibid, 1517D.
57 Ibid, 1517G.
58 Ibid, 1518A.

beside the complaint that he should have said still more. In this part of the summing up
Smith C.J. began by putting in contrast the evidence given on oath by a witness who has
appeared in person in the courtroom and the hearsay evidence of a dying declaration. And
he took pains to describe the basis upon which a dying declaration was regarded as
admissible and the tests which must be satisfied in that regard. He went on to direct the
jury that before they could act on the dying declaration they themselves must be satisfied
as to the reliability of the wife, both in terms of veracity and accuracy, and that if so
satisfied then they must still assess the probative value of the dying declaration itself. Inter
alia, he said:
“Do you believe Mrs. Campbell? Do you believe her that she went out there? Do you
believe her that her husband told her the things which she said she was told? That you
have to decide first of all … If you believe her that the deceased did tell her then, you have
to examine the circumstances and say whether in the light of what he is supposed to have
said, you are convinced by this, taking all the circumstances into account, so that you can
feel sure that in fact it was this accused who shot the deceased.” And later: “Now if you
believe her that the deceased did tell her this, you will have to test the statement and say
whether you can rely implicitly on it. If you believe the statement was made, Mr. Campbell
is saying how he got his injuries and who caused them, if you believe he made the
statement and he has described accurately what he said took place, were the
circumstances such that he could identify positively the person who attacked him in order
to convince you that a mistake has not been made in the identification of the person who
shot him? In other words, you have to examine it in the same way as you would examine
the evidence if he had come here and said the same thing.”
At that point Smith C.J. expressly drew the attention of the jury to the fact that the dying
declaration had not been tested by cross‐examination. He said:
“Another thing which you bear in mind when you consider evidence of this sort is that you
have not had the advantage of the witness coming here and having what he said tested
by cross‐examination. The statement is there, it is not tested, so it suffers or it is at a
disadvantage in so far as you are concerned as against evidence given from the witness
box where the witness states a fact and counsel can test him or her on it as to whether it
is true or not.”
There follows a lengthy and entirely accurate warning concerning the various problems
that can and do arise in the area of identification evidence and the circumstances that
were relevant in assessing the deceased's identification of the defendant as his assailant.
Then Smith C.J. summarised what he had been saying in the following way:
“If you feel sure the statement was made to her you have to examine the circumstances which must
have existed at the time when Mr. Campbell was shot; you have to take into account his state of
mind when he made the statement; was he in a state of mind where you would tell that you could
safely rely on what he was saying, as being the truth? You have to take into account the caution that
I have given about mistaken identity and whether the circumstances were such, having regard to
distance, light and so forth, that you can feel that a mistake was not made in the identity of the
[defendant]. And if you are not sure whether a mistake was made or not, or if you do not think that
you can safely rely at all on what the deceased is alleged to have said, then you must acquit the
[defendant].”
Their Lordships have thought it appropriate to repeat the foregoing passages from the
very fair and helpful summing up by Smith C.J. in this case because they demonstate so
clearly, if demonstration were necessary, that adequate and proper directions to a jury do
not require nor depend upon the strait‐jacket of previous enunciation by the higher courts
of some precisely worded formula. Certainly a jury must be given adequate assistance in
respect of those questions of fact and law that seem to require it. But in general this is a
responsibility that can be sufficiently discharged by the application of fairness and the
good common sense of the judge.

Some attempt was made by counsel to argue by analogy that the comparatively recent
example of the decision in Reg. v. Turnbull [1977] Q.B. 224 justified the definition of a new
rule of law as to the need for corroboration in the area of dying declarations. But their
Lordships accept neither the analogy nor its application in the present case. Turnbull does
not purport to change the law. It provides a most valuable analysis of the various
circumstances which commonsense suggests or experience has shown may affect the
reliability of a witness's evidence of identification and make it too dangerous in some of
the circumstances postulated to base a conviction on such evidence unless it is supported
by other evidence that points to the defendant's guilt. Turnbull sets out what the
judgment itself described as “guidelines for trial judges” who are obliged to direct juries
in such cases. But those guidelines are not intended as an elaborate specification to be
adopted religiously on every occasion. A summing up, if it is to be helpful to the jury should
be tailored to fit the facts of the particular case and not merely taken ready‐made “off the
peg.” In any event in the present context their Lordships regard it as unnecessary and
believe it would be a mistake to lay down some new rule, whether of practice or of law,
that then might have to be followed almost verbatim before a judge could feel sure that
he had discharged his general duty to leave with the jury a clear consciousness of their
need for care in assessing the significance of a dying declaration. Furthermore their
Lordships are satisfied that the eminently fair and sensible summing up in the present
case was more than adequate for the purpose of giving every necessary assistance and
direction to the jury.
…
The argument that Smith C.J. wrongly admitted the relevant evidence as a dying
declaration can be dealt with shortly. As mentioned counsel contended both that there
was insufficient evidence to justify a finding that at the crucial time the deceased was
under a hopeless settled expectation of death and also that the Chief Justice had failed to
assess the probative quality of the wife's evidence concerning the matter. They are issues
that turn upon the record of what Smith C.J. said when ruling in favour of the evidence.
As to all this, their Lordships appreciate that there are references in the ruling to an
assumption to be made concerning what the witness gave in evidence which, when
examined in isolation from the surrounding record, may seem to carry a degree of
ambiguity. It may appear at first sight that Smith C.J. was prepared to adopt the wife's
evidence without assessing it. But their Lordships are of opinion that the approach was
designed to test the wider significance of her evidence as it bore upon the true attitude
of mind of the deceased himself. It is beyond argument that in the very context of the
assumption there is further reference to an evaluation of the alleged inconsistencies
already mentioned which counsel had relied upon to support his submission that the
evidence was unreliable. The ruling was given orally and although the part of it under
review is elliptical their Lordships are clearly of opinion that Smith C.J. did not misdirect
himself: that he well understood the need to assess the quality of the deponent's evidence
just as he then proceeded quite properly to test the statement said to have been made by
the deceased himself against the latter's state of mind at the relevant time.
For these reasons this ground of appeal too must fail.59
In Mills v R [1995] 1 WLR 511, the Privy Council was invited to consider whether a statement
made by a witness saying that he heard the deceased victim telling another person (who
was not called to give evidence) that the first defendant chopped him up was admissible as

59 Ibid, 1518C – 1521F.

an exception to the rule against hearsay.60 The Privy Council dismissed the appeal and held,
inter alia, that the deceased victim’s last words were closely related to the attack on him
and were contemporaneous. The chance of having concoction or distortion could be
disregarded. The declaration was therefore held to be admissible as an exception of res
gestae. Below are the discussions of the Privy Council:‐
The dying declaration: Issues (c) and (d)
It will be recalled that shortly before he died the deceased in the presence of Dopson Wynter
uttered to Leonard Gordon the following words: “Jules and him bwoy dem chop me up.” This
piece of evidence emerged unexpectedly at the trial. The prosecution had intended to call
Leonard Gordon. He could not be found. In the circumstances counsel for the prosecution
decided not to call the evidence of the last words of the deceased. She so informed counsel for
the defendants. But, as sometimes happens, Dopson Wynter blurted out the piece of
evidence. Counsel for the defendants sought no ruling from the trial judge, and he did not cross‐
examine on the point. No doubt his strategy was to play down the importance of this evidence.
To some extent the judge in his summing up went along with this approach. The judge said:
“The prosecution has one other little piece of evidence and that is what the deceased
himself is alleged to have said ‘Jules and his boys dem chop me up.’ Obviously you haven't
seen the deceased he hasn't given any evidence before you but the present rule of law is
that if the deceased made a statement shortly before his death in connection with his
death and there is no suggestion that he had a motive to fabricate then you the jury can
consider the statement as part of the evidence in the case and give it what weight you
know it deserves. We are told that the deceased had been taken to court about two years
before by [the first defendant] and he was put on probation. You will take that into
consideration and you will take into consideration also the relationship which existed. It
was about relationships for 13 years when you're considering how much weight if any to
give to the statement ‘Jules and him bwoy dem chop me up.’ ”
It is against this background that the relevant grounds of appeal must be examined.
Counsel submitted that the admissibility of the deceased's last words must be tested against the
law governing dying declarations. The rule is usually stated to be that a statement of a deceased
is admissible as evidence of the cause of his death at a trial for his murder or manslaughter if the
deceased was under a settled hopeless expectation of death when he made the statement:
Nembhard v. The Queen [1981] 1 W.L.R. 1515 . Counsel said that this ancient rule had come to
the end of its useful life and should be rejected by their Lordships. He said that there was merit
in a more pragmatic approach allowing the admission of the final words of a deceased victim,
whatever his state of mind, provided that strict warnings are given by the judge to the jury as to
the weight of the words. Counsel said that the exception governing dying declarations was based
on the religious view that no man “who is immediately going into the presence of his Maker, will
do so with a lie on his lips:” Reg. v. Osman (1881) 15 Cox C.C. 1 , 3. The theory was that impending
death acted as a substitute for the oath.
Their Lordships accept that the modern approach in the law is different: the emphasis is on the
probative value of the evidence. That approach is illustrated by the admirable judgments of Lord
Wilberforce in the Privy Council in Ratten v. The Queen [1972] A.C. 378 and Lord Ackner in
the House of Lords in Reg. v. Andrews (Donald) [1987] A.C. 281 , and notably by the approach in
the context of the so‐called res gestae rule that the focus should be on the probative value of the
statement rather than on the question whether it falls within an artificial and rigid category such
as being part of a transaction. Non constat that their Lordships should now reject the exception
governing dying declarations. On the contrary, a re‐examination of the requirements governing
dying declarations, against the analogy of Ratten v. The Queen [1972] A.C. 378 and Reg. v.

60 Mills v R [1995] 1 WLR 511, 514F.

Andrews (Donald) [1987] A.C. 281 , may permit those requirements to be restated in a more
flexible form. How far such a relaxation should go would be a complex problem. On an
extrajudicial occasion Lord Maugham, in criticising the narrow limits of the exception, stated the
case for a substantial relaxation: “Observations on the Law of Evidence with Special Reference to
Documentary Evidence,” (1939) 17 Can.B.R. 469 . Lord Maugham said, at p. 483:
“If a man, who subsequently dies of poison, tells someone that he became ill shortly after
visiting a named acquaintance who gave him a cup of coffee, I cannot see any sensible
reason for excluding this evidence for what it is worth. If the friend has recently purchased
poison of the same kind as that which caused the death and the statement of the dead
man is admitted, there is some chance of convicting a horrible murderer.”
See also Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial , 3rd ed. (1963),
pp. 200–203. But such a development would only be prudent in the light of a detailed analysis of
the merits and demerits of such a course than was afforded by the argument in the present case.
It is also unnecessary to embark on such a course in order to dispose of the present appeal since
it is self‐evident that the deceased's last words were admissible under another exception to the
hearsay rule, namely the so‐called res gestae rule.
In the present case the deceased's last words were closely associated with the attack which
triggered his statement. It was made in conditions of approximate contemporaneity. The
dramatic occurrence, and the victim's grave wounds, would have dominated his thoughts. The
inference was irresistible that the possibility of concoction or distortion could be disregarded. In
fact the judge was not asked to rule that the evidence was inadmissible. If a ruling had been
sought the trial judge would inevitably have ruled that the evidence of the last words of the
deceased, once it had been blurted out by the witness, were admissible. By emphasising to their
Lordships the high probative value of the deceased's last words counsel underlined the
inevitability of a ruling that the evidence would have been ruled admissible if one had been
sought. While in a sense something had gone wrong at the trial, good sense and fairness did not
require the judge to exclude highly probative evidence which the jury had heard.
Counsel further argued that the judge erred in not giving an express ruling on the admissibility of
the evidence. Since the defence sought no ruling, the judge was not called on to embark on an
investigation which could have had only one result, namely the admission of the evidence.
Finally, relying on Nembhard v. The Queen [1981] 1 W.L.R. 1515 , counsel submitted that the
judge failed in not giving a separate direction about the fallibility of the identification inherent in
the deceased's last words. The judge had already fully directed the jury on the dangers of visual
identification. There had been no separate cross‐examination on the danger of the deceased
mistakenly identifying his assailants. Fairness did not require a repetition of what the judge
earlier said. The judge's directions were fair and sufficient.
It follows that all the grounds of appeal advanced on behalf of the first, second and third
defendants are rejected. It further follows that none of these grounds avail the fourth
defendant.61
 Prior Identifications – the case of Sparks v R [1964] AC 964 is a good illustration of how hearsay
identification could arise. The defendant was alleged to have indecently assaulted a girl aged 3.
The victim child did not testify. However, the mother who was not an eye‐witness of the assault
testified that the victim child, shortly after the assault, made a statement to the mother that it was
a coloured boy assaulting her.62 At trial, the defendant, being a white man, sought to argue that
the mother’s testimony as to the identification should have been admissible.63

61 Mills v R [1995] 1 WLR 511, 520H – 522H.
62 Sparks v R [1964] AC 964, 966‐967.
63 Ibid, 978.

It was held by the Privy Council that the mother’s evidence as to what the victim child said to her
would have been hearsay evidence. And there was no rule which permitted the hearsay evidence
merely because it related to identity. Below are the discussions in the case:‐

Their Lordships must also reject a further submission which was made that evidence of the
speaking of the words could be given as evidence which identified the assailant. As was said by
Lord Normand in Teper v. The Queen [footnote omitted]: "The special danger of allowing hearsay
evidence for the purpose of identification requires that it shall only be allowed if it satisfies the
strictest test of close association with the event in time, place and circumstances. 'Identification
is an act of the mind, and the primary evidence of what was passing in the mind of a man is his
own testimony, where it can be obtained. It would be very dangerous to allow evidence to be
given of a man's words and actions, in order to show by this extrinsic evidence that he identified
the prisoner, if he was capable of being called as a witness and was not called to prove by direct
evidence that he had thus identified him': Christie's case, per Lord Moulton. [footnote omitted]"

Their Lordships were referred to certain observations at page 161 in Reg. v. Wallwork,[footnote
omitted] but do not consider that those observations are to be interpreted in any sense contrary
to what was said by Lord Normand in the passage above cited or to what was said in Reg. v.
Lillyman. [footnote omitted] There is no rule which permits the giving of hearsay evidence merely
because it relates to identity.64

Statutory exceptions to the rule against hearsay
There are many statutory exceptions available and this Study Guide does not seek to have in‐depth
discussions of all of these exceptions. Some of these statutory exceptions apply to civil proceedings
only while some apply to criminal proceedings. Some apply to both civil and criminal proceedings.
An example of statutory exception applicable to both civil and criminal proceedings will be the
banker’s record under s20 of EO.
 Bank Record – a copy of the entry in the banker’s record is another statutory exception to the
hearsay rule. Read s20 of EO to see what the criteria for adducing the copy of the bank record.

CAP 8 Evidence Ordinance
Section 20 Copy of entry in banker’s record
(1) Subject to this section, a copy of any entry or matter recorded in a banker’s record shall, on its
production without further proof, be admitted in any proceedings as prima facie evidence of the matters,
transactions and accounts therein recorded if—
(a) it is proved—
(i) that such entry was made or matter recorded in the ordinary course of business; and
(ii) that such record is in the custody or control of the bank; and
(b) except in the case of a copy made by any photographic process and subject to subsection
(3), it is proved by some person who has examined the copy with the original entry, that the
copy has been examined with the original entry and is correct.

(2) A bank or officer of a bank shall not, in any proceedings other than proceedings instituted by or against
the bank, be compelled to produce any banker’s record the contents of which can be proved under this
section, or to appear as a witness to prove the matters, transactions or accounts therein recorded,
except—
(a) in civil proceedings, by order of a judge made for special cause;

64 Ibid, 981.

(b) in criminal proceedings, by order of the court of trial.

(3) In the case of a banker’s record kept by means of a computer, it shall not be necessary to prove the
matters referred to in subsection (1)(b) in relation to a document produced by the computer which is
tendered in evidence under this section as a copy of a matter recorded therein if (subject, in the case of
civil proceedings, to any rules of court made under section 54 of the High Court Ordinance (Cap. 4) with
respect to this subsection) it is proved— (Amended 25 of 1998 s. 2)
(a) that the document was so produced under the direction of a person having practical
knowledge of and experience in the use of computers as a means of storing, processing or
retrieving information;
(b) that during the period when the computer was used for the purpose of keeping such record,
appropriate measures were in force for preventing unauthorized interference with the
computer; and
(c) that during that period, and at the time that the document was produced by the computer,
the computer was operating properly or, if not, that any respect in which it was not operating
properly or was out of operation was not such as to affect the production of the document or
the accuracy of its contents,
and for the purposes of this subsection computer ( 電腦 ) has the same meaning as in section
22A.

(4) In any proceedings, the matters referred to in subsection (1)(a) and (b) and subsection (3)(a), (b) and
(c) in relation to a banker’s record may be proved, orally or by affidavit, by any officer of the bank, and
any such affidavit shall, on its production without further proof, be admitted in evidence and may include
an explanation of the contents of the copy of any entry or matter recorded in such banker’s record which
is tendered in evidence or any abbreviations, symbols or other markings appearing in such copy that may
be relevant in the proceedings, and a description of the banker’s record, its nature and use, and the
procedures followed in keeping it; and for the purposes of this subsection it shall be sufficient for a matter
referred to in subsection (1)(a)(i) or (3)(c) to be stated in an affidavit to the best of the knowledge and
belief of the person making the affidavit.

(5) In relation to any criminal proceedings—
(a) this section shall apply to any document or record used in the ordinary business of a body
designated by the Financial Secretary under section 19B(1) for the purposes of such criminal
proceedings as it applies to a banker’s record, and a reference in this section to a bank shall, in
its application to such document or record, be construed as a reference to the body so
designated; but (Amended 67 of 1986 s. 3)
(b) this section shall not apply to any document or record used—
(i) by a deposit‐taking company or restricted licence bank which is a company
registered under Part I or IX of the Companies Ordinance (Cap. 32) as in force from time
to time before the commencement date* of section 2 of Schedule 9 to the Companies
Ordinance (Cap. 622) or under Part 3 or 17 of the Companies Ordinance (Cap. 622);
(ii) by a deposit‐taking company or restricted licence bank which is a non‐Hong Kong
company as defined by section 2(1) of the Companies Ordinance (Cap. 622) if such
document or record is used in its ordinary business in Hong Kong,
and for the purposes of this paragraph deposit‐taking company or restricted licence bank ( 接
受存款公司或有限制牌照銀行 ) means a company which is required by the Banking Ordinance
(Cap. 155) to be authorized thereunder as a deposit‐taking company or restricted licence bank.
(Amended 27 of 1986 s. 137; 3 of 1990 s. 55; 49 of 1995 s. 53; 28 of 2012 ss. 912 & 920)
(Replaced 37 of 1984 s. 5)

In criminal proceedings, there will be a significant change of the statutory exceptions with the
introduction of the new Part IVA of the EO (see section 8.4 below). Given that provisions of the new
Part IVA of EO have not come into effect at the time of writing of this Study Guide, students may, for
the purpose of the exam, disregard the new Part IVA of the EO.

 S65B of the Criminal Procedure Ordinance (Cap. 221) (“CPO”) – the effect of s65B of the CPO is
that, subject to the compliance with the conditions set out in s65B(2), a written statement by any
person shall be admissible as evidence as if it is the oral evidence given by that person.
CAP 221 CRIMINAL PROCEDURE ORDINANCE
Section 65B Proof by written statement

(1) In any criminal proceedings, other than committal proceedings, a written statement by any person
shall, subject to the conditions contained in subsection (2), be admissible as evidence to the like extent
as oral evidence to the like effect by that person.

(2) A statement may be tendered in evidence under subsection (1) if—
(a)the statement purports to be signed by the person who made it;
(b)the statement contains a declaration by that person to the effect that it is true to the best of
his knowledge and belief;
(c)before the hearing at which the statement is tendered in evidence, a copy of the statement
is served, by or on behalf of the party proposing to tender it, on each of the other parties to the
proceedings; and
(d)none of the other parties or their solicitors, within 14 days from the service of the copy of the
statement, serves a notice on the party so proposing objecting to the statement being tendered
in evidence under this section:
Provided that paragraphs (c) and (d) shall not apply if the parties agree before or during the hearing that
the statement shall be so tendered.

(3) If a statement tendered in evidence under subsection (1)—
(a)is made by a person under the age of 21, it shall give his age;
(b)is made by a person who cannot read it, it shall be read to him before he signs it and shall be
accompanied by a declaration by the person who so read the statement to the effect that it was
so read;
(c)subject to any directions of the court, is made in a language other than an official language,
it shall be accompanied by a translation in an official language and, unless otherwise agreed by
or on behalf of the prosecutor and defendant (or, if more than one, all the defendants), the
translation shall be certified by the court translator; (Amended 20 of 1988 s. 2; 51 of 1995 s. 13)
(d)refers to any other document as an exhibit, the copy served on any other party to the
proceedings under subsection (2)(c) shall be accompanied by a copy of that document or by
such information as may be necessary in order to enable the party on whom it is served to
inspect that document or a copy thereof.

(4) Notwithstanding that a written statement made by any person may be admissible as evidence by
virtue of this section—
(a)the party by whom or on whose behalf a copy of the statement was served may call the
person making the statement to give evidence; and
(b)the court may, of its own motion or on the application of any party to the proceedings either
before or during the hearing, require the person making the statement to attend before the
court and give evidence.

(5) So much of any statement as is admitted in evidence by virtue of this section shall, unless the court
otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given
orally of so much of any statement as is not read aloud.

(6) Any document or object referred to as an exhibit and identified in a written statement admitted in
evidence under this section shall be treated as if it had been produced as an exhibit and identified in
court by the maker of the statement.

(7) A document required by this section to be served on any person may be served—
(a) by delivering it to him or to his solicitor; or

(b) in the case of a body corporate, by delivering it to the secretary or clerk of the body at its
registered or principal office or by sending it by registered post addressed to the secretary or
clerk of that body at that office.

(8) In this section, court ( 法庭 ) includes the District Court and a magistrate. (Added 34 of 1972 s. 11)
(Added 5 of 1971 s. 6)[cf. 1967 c. 80 s. 9 U.K.]

 Negative Assertions – s17A EO sets out the provision for a party in criminal proceedings to rely
on the absence of an expected record entry as correctly reflecting the fact that what was not
recorded was not done.
CAP 8 Evidence Ordinance
Section 17A Evidence in criminal proceedings to prove unrecorded event did not happen

(1)Where in any criminal proceedings the happening of an event of any description is relevant, and it is
proved that a system has been followed whereby a person acting under a duty has compiled a record of
the happening of all events of that description, evidence that there is no record of the happening of the
event in question shall be admitted as prima facie evidence to prove that the event did not happen.

(2) This section shall not apply to any record compiled in connexion with any criminal proceedings or with
any investigation relating or leading to any criminal proceedings.

(3) Where evidence is tendered under this section, the court may require that the whole or part of the
record concerned be produced and, in default, may reject the evidence or, if it has been received, exclude
it.

(4) Any reference in this section to a person acting under a duty includes a reference to a person acting
in the course of any occupation in which he is engaged or employed or for the purposes of any paid or
unpaid office held by him.
(Added 37 of 1984 s. 3)

The case of HKSAR v Ang SuWen, Pauline (Unrep. CACC 428/2005, 1st August 2007) gives an
example of how s17A EO was applied. The defendant in that case falsely represented that she
obtained 2 university degrees.65 The prosecution sought to adduce evidence from representatives
from the 2 institutions to show that there were no graduates having the same name of the
defendant. Under s17A EO, the absence of such graduation records could be used to prove the
defendant was not the graduate of the 2 institutions. On appeal, the defendant sought to
challenge the evidence that both representatives failed to show that ‘a system has been followed
whereby a person acting under a duty has compiled a record of the happening of all events of that
description’ during the material time.66 The appeal was dismissed and the Court of Appeal held
that it was permissible to have the proof for the purpose of s17A of EO by inference instead of by
direct evidence.67

 Documentary records – documentary records may be admitted in criminal proceedings as prima
facie evidence of the facts stated therein provided that the conditions set out in s22 of EO have
been fulfilled.
Section 22 Evidence in criminal proceedings from documentary records
(1) Subject to this section and section 22B, a statement contained in a document shall be admitted in any
criminal proceedings as prima facie evidence of any fact stated therein if—

65 HKSAR v Ang SuWen, Pauline (Unrep. CACC 428/2005, 1st August 2007), [1].
66 Ibid, [9], [19].
67 Ibid, [10] – [18], [20] – [25].

(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
(c) the person who supplied the information—
(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) cannot reasonably be expected (having regard to the time which has elapsed since
he supplied or acquired the information and to all the circumstances) to have any
recollection of the matters dealt with in that information; or
(vi) having regard to all the circumstances of the case, cannot be called as a witness
without his being so called being likely to cause undue delay or expense.

(2) A statement made in connexion with any criminal proceedings or with any investigation relating or
leading to any criminal proceedings shall not be admissible under this section.

(3) Subsection (1) applies whether the information was supplied directly or indirectly but, if it was
supplied indirectly, only if each person through whom it was supplied was acting under a duty; and that
subsection applies also where the person who compiled the record also supplied the information.

(4) Where in any criminal proceedings a statement based on information supplied by any person is given
in evidence by virtue of this section—
(a) any evidence which, if that person had been called as a witness, would have been admissible
as relevant to his credibility as a witness shall be admissible for that purpose in those
proceedings; and
(b) evidence tending to prove that that person has, whether before or after supplying the
information, made a statement (whether oral or otherwise) which is inconsistent with that
information shall be admissible for the purpose of showing that he has contradicted himself:
Provided that nothing in this subsection shall enable evidence to be given of any matter of
which, if the person in question had been called as a witness and had denied that matter in
cross‐examination, evidence could not have been adduced by the cross‐examining party.

(5) A statement which is admissible by virtue of this section shall not be capable of corroborating
evidence given by the person who supplied the information on which the statement is based.

(6) In deciding for the purposes of subsection (1)(c)(i) whether a person is unfit to attend as a witness the
court may act on a certificate purporting to be signed by a medical practitioner registered or deemed to
be registered under the Medical Registration Ordinance (Cap. 161).

(7) Any reference in this section to a person acting under a duty includes a reference to a person acting
in the course of any occupation in which he is engaged or employed or for the purposes of any paid or
unpaid office held by him.

(8) This section does not apply to any document to which section 22A applies.
(Replaced 37 of 1984 s. 7)

 Documentary Evidence from Computer Records – the admissibility conditions of documentary
evidence from computer records used for hearsay purpose are set out in s22A EO.
Section 22A Documentary evidence in criminal proceedings from computer records


(1) Subject to this section and section 22B, a statement contained in a document produced by a computer
shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if—
(a) direct oral evidence of that fact would be admissible in those proceedings; and
(b) it is shown that the conditions in subsection (2) are satisfied in relation to the statement and
computer in question.

(2)The conditions referred to in subsection (1)(b) are—
(a) that the computer was used to store, process or retrieve information for the purposes of any
activities carried on by any body or individual;
(b) that the information contained in the statement reproduces or is derived from information
supplied to the computer in the course of those activities; and
(c) that while the computer was so used in the course of those activities—
(i)appropriate measures were in force for preventing unauthorized interference with
the computer; and
(ii)the computer was operating properly or, if not, that any respect in which it was not
operating properly or was out of operation was not such as to affect the production of
the document or the accuracy of its contents.

(3) Notwithstanding subsection (1), a statement contained in a document produced by a computer used
over any period to store, process or retrieve information for the purposes of any activities ( the relevant
activities ) carried on over that period shall be admitted in any criminal proceedings as prima facie
evidence of any fact stated therein if—
(a) direct oral evidence of that fact would be admissible in those proceedings;
(b) it is shown that no person (other than a person charged with an offence to which such
statement relates) who occupied a responsible position during that period in relation to the
operation of the computer or the management of the relevant activities—
(i) can be found; or
(ii) if such a person is found, is willing and able to give evidence relating to the operation
of the computer during that period;
(c) the document was so produced under the direction of a person having practical knowledge
of and experience in the use of computers as a means of storing, processing or retrieving
information; and
(d) at the time that the document was so produced the computer was operating properly or, if
not, any respect in which it was not operating properly or was out of operation was not such as
to affect the production of the document or the accuracy of its contents,
but a statement contained in any such document which is tendered in evidence in criminal proceedings
by or on behalf of any person charged with an offence to which such statement relates shall not be
admissible under this subsection if that person occupied a responsible position during that period in
relation to the operation of the computer or the management of the relevant activities.

(4) Where over a period the function of storing, processing or retrieving information for the purposes of
any activities carried on over that period was performed by computer, whether—
(a)by a combination of computers operating over that period; or
(b)by different computers operating in succession over that period; or
(c)by different combinations of computers operating in succession over that period; or
(d)in any other manner involving the successive operation over that period, in whatever order,
of one or more computers and one or more combinations of computers,
all the computers used for that purpose whether by one or more persons or bodies during that period
shall be treated for the purposes of this section as constituting a single computer.

(5) Subject to subsection (6), in any criminal proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate—
(a) identifying the document containing the statement and describing the manner in which it
was produced, and explaining, so far as may be relevant in the proceedings, the nature and
contents of the document;
(b) giving such particulars of any device involved in the production of that document as may be
appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate,
and purporting to be signed by a person occupying a responsible position in relation to the
operation of the relevant device or the management of the relevant activities (whichever is
appropriate) shall, on its production without further proof, be admitted in those proceedings as
prima facie evidence of any matter stated in the certificate; and for the purposes of this
subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.

(6) Unless the court otherwise orders, a certificate shall not be admitted in evidence under subsection
(5) unless 14 days’ notice in writing of the intention to tender such certificate in evidence, together with
a copy thereof and of the statement to which it relates, has been served—
(a) where the certificate is tendered by the prosecution, on the defendant (or, if more than one,
on each defendant) or his solicitor;
(b) where the certificate is tendered by a defendant, on the Secretary for Justice, (Amended L.N.
362 of 1997)
but nothing in this subsection shall affect the admissibility of a certificate in respect of which notice has
not been served in accordance with the requirements of this subsection if no person entitled to be so
served objects to its being so admitted.

(7) Notwithstanding subsection (5), a court may (except where subsection (3) applies) require oral
evidence to be given of any of the matters mentioned in subsection (5).

(8) Any person who in a certificate tendered in evidence under subsection (5) makes a statement which
he knows to be false or does not believe to be true shall be guilty of an offence and shall be liable on
conviction to a fine of $50,000 and to imprisonment for 2 years.

(9) For the purposes of this section—
(a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate
form and whether it is so supplied directly or (with or without human intervention) by means of
any appropriate equipment;
(b) where, in the course of activities carried on by any individual or body, information is supplied
with a view to its being stored, processed or retrieved for the purposes of those activities by a
computer operated otherwise than in the course of those activities, that information, if duly
supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a computer whether it was produced
by it directly or (with or without human intervention) by means of any appropriate equipment.

(10) The Criminal Procedure Rules Committee constituted under section 9 of the Criminal Procedure
Ordinance (Cap. 221) may make rules with respect to the procedure to be followed under this section.
(Amended 13 of 1995 s. 27)

(11) Nothing in this section affects the admissibility of a document produced by a computer where the
document is tendered otherwise than for the purpose of proving a fact stated in it.

(12)Subject to subsection (4), in this section computer ( 電腦 ) means any device for storing, processing
or retrieving information, and any reference to information being derived from other information is a
reference to its being derived therefrom by calculation, comparison or any other process.

(13)The Legislative Council may by resolution amend subsection (12) so as to make it cover devices
performing functions of a similar character to the functions performed by the devices mentioned in that
subsection.
(Added 37 of 1984 s. 7)

 Supplementary provisions to ss 22 and 22A EO – it should be noted that both ss22 and 22A EO
are subject to s22B EO:‐


Section 22B Provisions supplementary to sections 22 and 22A

(1) Where in any criminal proceedings a statement contained in a document is admissible in evidence by
virtue of section 22 or 22A, it may be proved by the production of that document or (whether or not that
document is still in existence) by the production of a copy of that document or of the material part
thereof.

(2) Where in any criminal proceedings a statement contained in a document is admitted in evidence by
virtue of section 22 or 22A, the court may draw any reasonable inference from the circumstances in
which the statement was made or otherwise came into being or from any other circumstances, including
the form and contents of the document in which the statement is contained.

(3) In estimating the weight, if any, to be attached to a statement admitted in evidence by virtue of
section 22 or 22A, regard shall be had to all the circumstances from which any inference can reasonably
be drawn as to the accuracy or otherwise of the statement and, in particular—
(a) in the case of a statement falling within section 22, to the question whether or not the person
who supplied the information from which the record containing the statement was compiled
did so contemporaneously with the occurrence or existence of the facts dealt with in that
information, and to the question whether or not that person, or any person concerned with
compiling or keeping the record containing the statement, had any incentive to conceal or
misrepresent the facts; and
(b) in the case of a statement falling within section 22A, to the question whether or not the
information which the information contained in the statement reproduces or is derived from
was supplied to the relevant computer, or recorded for the purpose of being supplied to it,
contemporaneously with the occurrence or existence of the facts dealt with in that information,
and to the question whether or not any person concerned with the supply of information to that
computer, or with the operation of that computer or any equipment by means of which the
document containing the statement was produced by it, had any incentive to conceal or
misrepresent the facts.

(4) In sections 22 and 22A and this section document ( 文件 ), copy ( 副本 ) and statement ( 陳述 ) have
the same meaning as in Part IV.

(5) Nothing in section 22 or 22A shall prejudice the admissibility of any evidence that would be admissible
apart from that section.
(Added 37 of 1984 s. 7)

 Deposition – under ss 70 and 73 EO, it is possible for the court to take deposition from a witness
out of court and to have the deposition used for a hearsay purpose.
Section 70 Admissibility in evidence in criminal proceedings of deposition of person dead, etc.

Whenever it is proved by the oath of any credible witness, or in any other manner whatsoever it appears,
to the satisfaction of the Court of First Instance, that the Secretary for Justice, or other person conducting
a prosecution on behalf of the Crown, is unable to produce at the trial any person as a witness, in
consequence of the death of such person, or of his absence from Hong Kong, or of the impracticability of
serving process on him, or of his being so ill as not to be able to travel, or of his being insane, or of his
being kept out of the way by means of the procurement of the person accused, or of his being resident
in a country the laws of which prohibit his absenting himself therefrom, or which he refuses to quit after
application made to him in that behalf or because he cannot be found at his last‐known place of residence
in Hong Kong; 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, so much of the evidence as would have been admissible, if the said person had been produced
and examined before the said court in the ordinary manner, shall be read and received in evidence.
(Amended 50 of 1911; 51 of 1911; 62 of 1911 Schedule; 63 of 1911 Schedule; 20 of 1922 s. 2; 37 of 1984
s. 11; L.N. 362 of 1997; 25 of 1998 s. 2)
[cf. 1848 c. 42 s. 17 U.K.]

Section 73 Power to take deposition of person dangerously ill, etc., and admissibility thereof

(1) Whereas it may happen that a person, who is dangerously ill, and unable to travel, may be able to
give material and important information relating to an indictable offence or to a person accused thereof,
and it is desirable, in the interest of truth and justice, that means should be provided for perpetuating
such testimony and for rendering the same available in cases of necessity— (Amended 8 of 1912 s. 34;
5 of 1924 Schedule)Whenever it is made to appear, to the satisfaction of any magistrate, that any person
who is dangerously ill and unable to travel, is able and willing to give material information relating to an
indictable offence or to a person accused thereof, it shall be lawful for the said magistrate to take in
writing his statement upon oath, and such magistrate shall thereupon subscribe the same, and shall add
thereto by way of caption a statement of his reason for taking the same, and of the day and place when
and where the same was taken, and of the names of the persons, if any, assisting at the taking thereof,
and, if the same relates to any offence for which any accused person is already committed or bailed to
appear for trial, shall transmit the same with the said addition to the Registrar of the High Court, and in
all other cases to the magistrates’ clerk, who are respectively required to preserve the same and file it
for record; and if afterwards, on the trial of any offender or offence to which the same 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.
(Amended 51 of 1911; 63 of 1911 Schedule; 8 of 1912 s. 34; 23 of 1915 s. 4; 20 of 1922 s. 3; 27 of 1937
Schedule; 47 of 1997 s. 10; 25 of 1998 s. 2)

(2) No such statement shall be rejected on the ground of any failure to comply with any of the provisions
of subsection (1) with regard to the notice or the caption unless the court is of opinion that the person
accused was substantially prejudiced by such failure. (Added 20 of 1922 s. 3)

In civil proceedings, the major provisions related to the use of hearsay can be found in Part IV (ss 46‐
55B) of the Evidence Ordinance (Cap. 8) (“EO”) and Part III of O38 (i.e. O38 rr 20‐22) of the Rules of the
High Court (Cap. 4A) (“RHC”) and the Rules of the District Court (Cap. 336) (“RDC”). While for the exam
purpose, the statutory exceptions to civil proceedings are not examinable in the Evidence course, it is
essential for students to have a basic understanding of these rules, which can be useful for the study
of Civil Procedure course in the LLB/JD Curriculum and other courses in the PCLL Curriculum.
As discussed in the first part of the Study Guide, s46 EO gives a definition to ‘hearsay’ applicable to
Part IV of the EO. S47 of the EO sets out the statutory admissibility rule in the context of civil
proceedings:‐
Section 47 Admissibility of hearsay evidence


(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless—
(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and
(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the
evidence is not prejudicial to the interests of justice.

(2) The court may determine whether or not to exclude evidence on the ground that it is hearsay—
(a) in the case of civil proceedings before a jury, at the beginning of the proceedings and in the
absence of the jury;
(b) in the case of any other civil proceedings, at the conclusion of the proceedings.

(3) Nothing in this Part shall affect the admissibility of evidence admissible apart from this section.

(4) The provisions of sections 48 to 51 shall not apply in relation to hearsay evidence admissible apart from
this section, notwithstanding that it may also be admissible by virtue of this section.

(Replaced 2 of 1999 s. 2)[cf. 1995 c. 38 s. 1(1), (3) & (4) U.K.]

For a party to wishing to adduce hearsay evidence, it is necessary to comply with the notice
requirements set out in s47A EO.
Section 47A Notice of proposal to adduce hearsay evidence

(1) Provision may be made by rules of court—
(a) specifying hearsay evidence in relation to which subsection (2) shall apply; and
(b) as to the manner in which (including the time within which) the duties imposed by that subsection
shall be complied with in the cases where it does apply.

(2) A party proposing to adduce in civil proceedings hearsay evidence which falls within subsection (1)(a) shall,
subject to subsections (3) and (4), give to the other party or parties to the proceedings—
(a) such notice, if any, of that fact; and
(b) on request, such particulars of or relating to the evidence,
as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with
any matters arising from its being hearsay.

(3) Subsection (2) may be excluded by agreement of the parties, and compliance with the duty to give notice
may in any case be waived by the person to whom notice is required to be given.

(4) A failure to comply with subsection (2), or with rules under subsection (1)(b), shall not affect the
admissibility of the evidence but may be taken into account by the court—
(a)in considering the exercise of its powers with respect to the course of proceedings and costs; and
(b)as a matter adversely affecting the weight to be given to the evidence in accordance with section
49.
(Added 2 of 1999 s. 2)[cf. 1995 c. 38 s. 2 U.K.]

S48 EO allows rules to be made by courts in civil proceedings to call the statement maker who made
the out of court statement to be a witness in court for cross‐examination, and to allow party to call
additional evidence to attack or support the statement used for hearsay purpose.
Section 48 Power to call witness for cross‐examination on hearsay statement, etc.
Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement
made by a person and does not call that person as a witness—


(a) any other party to the proceedings may, with the leave of the court, call that person as a witness
and cross‐examine him on the statement as if he had been called by the first‐mentioned party and
as if the hearsay statement were his evidence in chief;

(b) any party to the proceedings may call additional evidence to attack or support the reliability of
the hearsay statement or to attack or support the reliability of that additional evidence.

(Replaced 2 of 1999 s. 2)[cf. 1995 c. 38 s. 3 U.K.]

The relevant rules can be found under O38 rr20‐22 of the RHC and RDC.
CAP 4A THE RULES OF THE HIGH COURT
Order 38 Evidence
…
III. Hearsay Evidence

20. Application and interpretation (O. 38, r. 20)

(1) In this Part of this Order the Ordinance ( 條例 ) means the Evidence Ordinance (Cap. 8) and any expressions
used in this Part and in Part IV of the Ordinance have the same meanings in this Part as they have in the said
Part IV.

(2) This Part of this Order shall apply in relation to the trial or hearing of an issue or question arising in a cause
or matter, and to a reference, inquiry and assessment of damages, as it applies in relation to the trial or hearing
of a cause or matter.

(3) In this Part—
hearsay evidence ( 傳聞證據 ) means evidence consisting of hearsay within the meaning of section 46 of the
Ordinance.
(2 of 1999 s. 6)

21.Power to call witness for cross‐examination on hearsay evidence and to call additional evidence to attack
or support hearsay evidence (O. 38, r. 21)

(1) Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the
person who made the statement to give evidence, the Court may, on application—
(a) allow another party to call and cross‐examine the person who made the statement on its contents;
(b) allow any party to call—
(i) additional evidence to attack or support the reliability of the statement;
(ii) additional evidence to attack or support that first‐mentioned additional evidence.

(2) Where the Court allows another party to call and cross‐examine the person who made the statement, it
may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be
followed.(2 of 1999 s. 6)

22.Powers exercisable in chambers (O. 38, r. 22)
The jurisdiction of the Court under rules 20 and 21 may be exercised in chambers.(2 of 1999 s. 6)
…
CAP 336H THE RULES OF THE DISTRICT COURT
Order 38 Evidence
…
III. Hearsay Evidence

20. Application and interpretation (O. 38, r. 20)
20.Application and interpretation (O. 38, r. 20)


(1) In this Part of this Order the Ordinance (條例) means the Evidence Ordinance (Cap. 8) and any expressions
used in this Part and in Part IV of the Ordinance have the same meanings in this Part as they have in the said
Part IV.

(2) This Part of this Order shall apply in relation to the trial or hearing of an issue or question arising in a cause
or matter, and to a reference, inquiry and assessment of damages, as it applies in relation to the trial or hearing
of a cause or matter.

(3) In this Part—
hearsay evidence ( 傳聞證據 ) means evidence consisting of hearsay within the meaning of section 46 of the
Ordinance.

21.Power to call witness for cross‐examination on hearsay evidence and to call additional evidence to attack
or support hearsay evidence (O. 38, r. 21)

(1) Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the
person who made the statement to give evidence, the Court may, on application—
(a) allow another party to call and cross‐examine the person who made the statement on its contents;
(b) allow any party to call—
(i) additional evidence to attack or support the reliability of the statement;
(ii) additional evidence to attack or support that first‐mentioned additional evidence.

(2)Where the Court allows another party to call and cross‐examine the person who made the statement, it
may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be
followed.

22.Powers exercisable in chambers (O. 38, r. 22)
The jurisdiction of the Court under rules 20 and 21 may be exercised in chambers.
…

S49 EO sets out that when the court is considering the weight to be given to the evidence used for
hearsay purpose, the court should have regard to any circumstances from which any inference can be
reasonably drawn as to the reliability or otherwise of the evidence.
Section 49 Considerations relevant to weighing of hearsay evidence

(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have
regard to any circumstances from which any inference can reasonably be drawn as to the reliability or
otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was
adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence
of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another
or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an
attempt to prevent proper evaluation of its weight;
(g) whether or not the evidence adduced by the party is consistent with any evidence previously
adduced by the party.
(Replaced 2 of 1999 s. 2) [cf. 1995 c. 38 s. 4 U.K.]

S50 EO deals with the requirement of competence of the statement maker who made the statement
used for hearsay purpose (and therefore not testifying in court) and how such a person’s credibility
can be challenged.
Section 50 Competence and credibility

(1) Hearsay evidence shall not be admitted in civil proceedings if or to the extent that it is—
(a)shown to consist of; or
(b)to be proved by means of,
a statement made by a person who at the time he made the statement was not competent as a witness.

(2) Subject to subsection (3), where in civil proceedings hearsay evidence is adduced and the maker of the
original statement, or of any statement relied upon to prove another statement, is not called as a witness—
(a) evidence which if he had been so called would be admissible for the purpose of attacking or
supporting his credibility as a witness is admissible for that purpose in the proceedings; and
(b) evidence tending to prove that, whether before or after he made the statement, he made any
other statement inconsistent with it is admissible for the purpose of showing that he had
contradicted himself.

(3) Evidence shall not be given under subsection (2) of any matter of which, if the maker referred to in that
subsection had been called as a witness and had denied that matter in cross‐examination, evidence could not
have been adduced by the cross‐examining party.

(4) In subsection (1), not competent as a witness ( 沒有資格作證人 ) means suffering from such mental or
physical incapacity, or lack of understanding, as would render a person incompetent as a witness in civil
proceedings.


S51 EO has already been discussed in previous topic related to prior inconsistent statement of
witnesses. In civil proceedings, if the previous statement of a witness is admitted, it can be used as
hearsay evidence and original evidence. i.e. as evidence of the facts so asserted in the previous
statement and as evidence relevant to the statement maker’s credibility.
Section 51 Previous statements of witnesses
(1) Subject to subsections (2) to (7), the provisions of this Part as to hearsay evidence in civil proceedings shall
apply equally, but with any necessary modifications, in relation to a previous statement made by a person
called as a witness in the proceedings.

(2) Subject to subsection (3), a party who has called or intends to call a person as a witness in civil proceedings
shall not in those proceedings adduce evidence of a previous statement made by that person, except—
(a) with the leave of the court; or
(b) for the purpose of rebutting a suggestion that his evidence has been fabricated.

(3) Subsection (2) shall not be construed as preventing a witness statement (that is, a written statement of
oral evidence which a party to the proceedings intends to lead) from being adopted by a witness in giving
evidence or treated as his evidence.

(4) Subject to subsection (5), where in the case of civil proceedings section 12, 13 or 14 applies, this Part shall
not authorize the adducing of evidence of a previous inconsistent or contradictory statement otherwise than
in accordance with those sections.

(5) Subsection (4) is without prejudice to any provision made by rules of court under section 48.

(6) Nothing in this Part shall affect any of the rules of law as to the circumstances in which, where a person
called as a witness in civil proceedings is cross‐examined on a document used by him to refresh his memory,
that document may be made evidence in the proceedings.

(7) Nothing in this section shall be construed as preventing a statement of any description referred to above
from being admissible by virtue of section 47 as evidence of the matters stated.

S52 EO preserves some common law exceptions previously recognized.
Section 52 Evidence formerly admissible at common law
(1) The common law rule effectively preserved by section 54(1) and (2)(a) of this Ordinance (admissibility of
admissions adverse to a party) as in force immediately before the relevant day is superseded by the provisions
of this Part.

(2) The common law rules effectively preserved by section 54(1) and (2)(b) to (d) of this Ordinance as in force
immediately before the relevant day, that is, any rule of law whereby in civil proceedings—
(a) published works dealing with matters of a public nature (for example, histories, scientific works,
dictionaries and maps) are admissible as evidence of facts of a public nature stated therein;
(b) public documents (for example, public registers, and returns made under public authority with
respect to matters of public interest) are admissible as evidence of facts stated therein; or
(c) records (for example, the records of certain courts, treaties, Crown grants or Government grants,
pardons and commissions) are admissible as evidence of facts stated therein,
shall continue to have effect.

(3) The common law rules effectively preserved by section 54(3) and (4) of this Ordinance as in force
immediately before the relevant day, that is, any rule of law whereby in civil proceedings—
(a) evidence of a person’s reputation is admissible for the purpose of proving his good or bad
character; or
(b) evidence of—
(i) reputation or family tradition is admissible for the purpose of proving or disproving
pedigree or the existence of a marriage; or
(ii) reputation is admissible for the purpose of proving or disproving the existence of any
public or general right or of identifying any person or thing,
shall continue to have effect in so far as they authorize the court to treat such evidence as proving or
disproving that matter:
Provided that where any such rule applies, reputation or family tradition shall be treated for the purposes of
this Part as a fact and not as a statement or multiplicity of statements about the matter in question.

(4) The words in which a rule of law mentioned in this section is described are intended only to identify the
rule and shall not be construed as altering it in any way.

(5) In this section, relevant day ( 有關日期 ) means the day on which section 2 of the Evidence (Amendment)
Ordinance 1999 (2 of 1999) comes into operation*.

S53 allows the use of copies of evidence for hearsay purpose, regardless of how many removes there
are between the original and the copy.
Section 53 Proof of statements contained in documents


(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be
proved—
(a) by the production of that document; or
(b) whether or not that document is still in existence, by the production of a copy of that document
or of the material part of it,
authenticated in such manner as the court may approve.

(2) It is immaterial for the purpose of subsection (1) how many removes there are between a copy and the
original.

S54 EO deals with admissibility of records of a business or public body provided that the record
concerned has been certified by an officer of the business and the public body.
Section 54 Proof of records of business or public body

(1) A document which is shown to form part of the records of a business or public body may be received in
evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public body if there is produced to
the court a certificate of that effect signed by an officer of the business or body to which the records belong.

(3) For the purposes of subsection (2)—
(a)a document purporting to be a certificate signed by an officer of a business or public body shall
be deemed to have been duly given by such an officer and signed by him; and
(b)a certificate shall be treated as signed by a person if it purports to bear his signature or a facsimile
of his signature.

(4) In this section—
business ( 業務 ) includes any activity regularly carried on over a period of time, whether for profit or not, by
any body (whether corporate or not) or by an individual;
officer ( 高級人員 ) includes any person occupying a responsible position in relation to the relevant activities
of the business or public body or in relation to its records;
public body ( 公共機構 ) includes any executive, legislative, municipal, or urban council, any Government
department or undertaking, any local or public authority or undertaking, any board, commission, committee
or other body whether paid or unpaid appointed by the Chief Executive or the Government or which has
power to act in a public capacity under or for the purposes of any enactment;
records ( 紀錄 ) means records in whatever form, and includes computer‐generated records.

(5) The court may, having regard to the circumstances of the case, direct that all or any of the provisions of
this section do not apply in relation to a particular document or record, or description of documents or
records.

S55 EO deals with admissibility of evidence that a particular statement is not contained in records of
the business or body.
Section 55 Statement not contained in business records

(1) In any civil proceedings, the evidence of an officer of a business or public body that any particular
statement is not contained in the records of the business or body shall be admissible as evidence of that fact
whether or not the whole or any part of the records have been produced in the proceedings.

(2) The evidence referred to in subsection (1) may, unless the court otherwise directs, be given by means of
the affidavit of the officer.

(3) Section 54(4) shall apply to the interpretation of this section as it applies to the interpretation of section
54.

S55B EO sets out the saving provision that the courts’ powers to exclude evidence on grounds other
than that it is hearsay shall not be affected by Part IV of the EO and that nothing in Part IV of the EO
shall affect the proof of documents by other means other than the way mentioned in ss53‐55 EO.
Section 55B Savings

(1) Nothing in this Part affects any powers of the court to exclude evidence on grounds other
than that it is hearsay.

(2) Nothing in this Part affects the proof of documents by means other than those specified in
section 53, 54 or 55.
(Added 2 of 1999 s. 2)[cf. 1995 c. 38 s. 14(1) & (2) U.K.]

8.4 – Development of the Statutory Exceptions
The Evidence (Amendment Bill) 2018 was gazetted on 22nd June 2018.68 A new Part IVA will soon be
inserted to the existing EO, setting out further circumstances when evidence for hearsay purpose can
be admitted in criminal proceedings. This part is said to be responding to the report of the Law Reform
Commission in 2009 on hearsay evidence in Criminal Proceedings.69
In future, students should pay attention to how evidence can be adduced for hearsay purpose
pursuant to the new Part IVA provisions of EO.
*** End of Topic 8 ***

68 An electronic copy of the Bill is available through the webpage of the Legislative Council <
https://www.legco.gov.hk/yr17‐18/english/bills/b201806221.pdf>
69 The Law Reform Commission of Hong Kong, Report on the Hearsay in Criminal Proceedings (Hong Kong, 2009), available
at <https://www.hkreform.gov.hk/en/docs/rcrimhearsay_e.pdf>

THE UNIVERSITY OF HONG KONG
DEPARTMENT OF LAW
LLAW3102 – EVIDENCE I
ACADEMIC YEAR 2020 ‐ 2021 (SEMESTER 1)
TUTORIAL QUESTIONS (TOPIC 8 – HEARSAY)

Discussion Questions for Tutorial 870
Question 1 ‐ Background Information
Dickson has been charged with one count of robbery and one count of murder.
The prosecution case is that in the evening of 8th January 2019, the deceased, Viola, was walking from
the Yuen Long MTR station to her village house in Wong Choi Village which was about 800 metres
away from the Station. When Viola was walking along a village footpath with poor illumination,
Dickson pointed a knife at Viola, forcing her to surrender the diamond bracelet and money. Viola
resisted and Dickson stabbed her to death.
Viola’s body was found in the morning of 9th January 2019. No fingerprints of Dickson were found on
the folding knife killing Viola. Dickson was identified as one of the suspects. He was arrested by the
police in village house on 12th January 2019.
The arresting officer found the following items while performing a house search:‐
(i) A handwritten invoice from a camping equipment store in Yuen Long dated 8th January
2019 showing a folding knife was sold by the camping equipment store at HK$150.00;

(ii) A diamond bracelet manufactured by Gigantic Molecular Diamond Ltd, with a serial
number of 31022018.
Dickson remained silent upon being arrested and it is not likely for him to testify in court. The
prosecution has been put to strict proof.
As a mini‐pupil of the prosecuting counsel on fiat (i.e. a private practitioner prosecuting on behalf of
the HKSAR), you are now preparing the agenda for a conference with the officer‐in‐charge of this
murder and robbery case (“OC Case”). The OC Case sent several questions to your pupil master
through email. Your pupil master wishes to see if you can answer these queries from the OC Case. And
in case you cannot form an opinion on the questions raised, explain what other information you will
need in order to reach a conclusion.
Question 1
a) The purchase of knife on the day of the robbery and murder (as revealed by the invoice of the
camping equipment store dated 8th January 2019) could be an important piece of
circumstantial evidence, can the evidence be admissible if it is adduced by the prosecution
through the arresting officer who retrieved the invoice from Dickson?

b) Suggest a possible method to make the fact mentioned by the invoice be admitted to the court
as evidence?

70 The facts and names mentioned in the hypothetical questions are fictitious.

c) The police has been told that Gigantic Molecular Diamond Ltd maintains a computerised
customer relationship management system which records the items purchased by different
customers joining the loyalty programme with the serial number of the jewellery purchased
recorded.

A loyalty programme membership card was found by the belonging of Viola. If the prosecution
wishes to use the data recorded by customer relationship management system to show that
the diamond bracelet retrieved from Dickson with the serial number of 31022018 was in fact
purchased by Viola herself and therefore likely to be a property belonging to Viola, how can
such a computer record be shown to the court in order to prove the fact concerned?

Question 2 ‐ Background Information
This time you and your pupil master are acting for the defendant, Mario, who has been charged with
one count of living on earnings of prostitution of others. On 4th October 2019, the Special Duties Squad
of the Mong Kok District raided a residential unit in Sai Yee Street where Mario and two other ladies
were found.
There were no signs of prostitution activities. However, when Mario and the two ladies were being
detained by the police officers for checking their identity cards and performing a house search, a police
constable, in the absence of Mario, answered 4 phone calls to the telephone installed in the residential
unit.
Among these 4 phone calls:‐
(i) Caller A hung up immediately after the police constable spoke ‘hello?’;
(ii) Caller B asked ‘are there any new goods with reasonable price?’;
(iii) Caller C said ‘Hey Mario, the lady I met last time was disastrous. I want to have a refund’;
(iv) Caller D said ‘Hi, you must a new to the business, can you please leave me a message to
Mario that I will be coming to view the flat tomorrow evening?’
The only piece of evidence against the Mario will likely be the testimony of the police constable
answering the phone call. While it is impossible to identify who the callers were, the prosecutor wants
the police constable answering the phone calls to testify in court to invite the court to draw inference
from the phone conversation that the Mario was in fact aiding other person’s prostitutions with other,
thereby satisfying the element of offence set out under s137(2) of the Crimes Ordinance (Cap. 200)
Question 2
a) Advise on the admissibility of the intended prosecution evidence against Mario.

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