Hearsay in Criminal Proceedings
(HKLRC Consultation Paper)
On 30 November 2005, the Hearsay in Criminal Proceedings Sub-committee released a consultation paper on Hearsay in Criminal Proceedings.
Evidence is described as hearsay where a witness proposes to testify as to a particular fact on the basis of what he has been told by another. Under the existing law, hearsay evidence is inadmissible in criminal proceedings unless it falls within one of a number of common law or statutory exceptions.
A major criticism of the hearsay rule, however, is that it is too strict and inflexible, and sometimes results in the exclusion of evidence which, by the standards of ordinary life, would be regarded as accurate and reliable. In addition, the various exceptions to the rule are complex and uncertain.
The sub-committee examined the law and proposals for reform in a number of other jurisdictions, and concluded that there should be a comprehensive and principled approach under which relevant and cogent hearsay evidence would be admitted where the need existed for such evidence.
The sub-committee recommends that, as a general rule, the present rule against the admission of hearsay evidence should be retained, but there should be greater scope to admit hearsay evidence in specific circumstances.
The sub-committee recommends that hearsay evidence should be admissible:
- if it falls within one of several common law exceptions to be preserved;
- if it falls within an existing statutory exception;
- if the parties agree; or
- under the court's discretionary power to admit hearsay in prescribed circumstances.
The Sub-committee recommends that before the court is able to admit hearsay evidence under its discretionary power, the court must be satisfied on a balance of probabilities that it is "necessary" to admit the hearsay evidence, and that that evidence is 'reliable'. Furthermore, the sub-committee believes that hearsay evidence should not be admitted if its prejudicial effect is out of proportion to its probative value.
In order to give greater protection to an accused person against whom a prima facie case has been made out, where hearsay evidence has been admitted, the trial judge should have the power to direct a verdict of acquittal of the accused at the end of the prosecution's case if the judge considers that, taking account of a number of factors, including the nature of the proceedings, the nature of the hearsay evidence, the probative value of the hearsay evidence, the importance of such evidence to the case against the accused and any prejudice to an accused resulting from the admission of the hearsay evidence, it would be unsafe to convict.
The sub-committee also makes recommendations in relation to other specific aspects of hearsay, including the admissibility of banking, business and computer records, and prior statements of witnesses.
The sub-committee invites comments principally on the specific options and recommendations set out in the consultation paper, but would welcome any other proposals to improve the present law governing the admissibility of hearsay evidence in criminal proceedings.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Consultation Paper (PDF) (MS Word)|