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Following is the speech by the Acting Secretary for Justice, Mr Ian Wingfield in moving the Second Reading of the Evidence (Amendment) Bill 1998 in the Legislative Council today (Wednesday):

Madam President,

I move that the Evidence (Amendment) Bill 1998 be read a second time.

The purpose of the Bill is to improve the existing law and procedures in respect of hearsay evidence in civil proceedings by abolishing the rule against the admission of such evidence and introducing a simpler system for its admission.

The Bill follows the recommendations contained in a report by the Law Reform Commission published in July 1996.

Evidence is described as being hearsay where a witness proposes to testify to a particular fact on the basis of what he has been told by another, whether that communication was made to him directly or indirectly. Historically, such evidence was treated with caution. At common law, it is inadmissible as evidence of any fact asserted subject to a number of exceptions. These exceptions were developed by judges to cover circumstances where long experience suggested that there was good reason to rely upon such evidence.

In Hong Kong, the common law rule and its exceptions were replaced by a statutory system contained in Part IV of the Evidence Ordinance, which was based on the English Civil Evidence Act 1968. The statutory system, nevertheless, preserves certain long established rules governing the admissibility of hearsay evidence formerly admissible at common law, in a fashion that retains the existing case law and allows it to develop.

The categories of hearsay statement described in the Ordinance are not made unconditionally admissible. Parties wishing to adduce such a statement have to comply with the procedural requirements specified in Order 38 of the Rules of the High Court, which were based on the English Rules of the Supreme Court. These requirements include, for example, the giving of a notice of intention to adduce hearsay evidence by a party who wishes to do so, not later than 21 days before application is made to set down for trial; and the giving of a counter-notice by the opposing party if he wishes the maker of the hearsay statement to attend court.

The present rule has been criticised as unduly complex and wasteful of resources and time. The overwhelming majority of those who responded to the Commission's consultation paper supported the abolition of the present rule.

There has been similar criticism of the hearsay rule in many common law jurisdictions and a number of them have effectively abolished the rule. In England, the hearsay rule in civil proceedings was abolished by the Civil Evidence Act 1995 upon which our Bill is largely based. Similar reform has also been effected in Scotland by virtue of the Civil Evidence (Scotland) Act 1988, under which the hearsay rule as well as the requirement for prior notification of hearsay evidence were abolished.

The Law Reform Commission noted that the modern trend of civil litigation is to place all relevant evidence before the court and to let the court decide the weight to be attached to it. They considered that relevant evidence should not be excluded solely on the ground that it is hearsay. Hearsay is something that should go to weight and not admissibility. The Commission recommended that in civil proceedings, whether held with or without a jury, evidence containing hearsay of whatever degree should be admissible. At the same time, safeguards should be provided in order to avoid possible abuses of the relaxation of the hearsay rule.

The Law Reform Commission further recommended that the present hearsay notice and counter-notice requirements be removed. The issue as to whether such a notice should be given should be left to informal arrangement between the parties. The Commission considered that the present judicial case management system, and the requirement that parties exchange pre-trial witness statements, would help to ensure that questions concerning hearsay evidence are dealt with before trial and would minimize the risk of surprise at trial even if hearsay notices were dispensed with. In addition, the court has power to take account of a failure to give informal notification of an intention to adduce hearsay evidence through its control of proceedings and costs.

The Law Reform Commission also noted there are problems with the existing law regarding the admissibility of copy documents and business records. Firstly, under the existing law, it is unclear whether a hearsay statement contained in a document can be proved in civil proceedings by the production of a copy produced from a copy of that document. In the business world today, it is common to use copy documents and even copies of copies. The Law Reform Commission therefore recommended that a statement contained in a document should be capable of being proved in civil proceedings, either by the production of that document, or by the production of a copy of that document, authenticated in such manner as the court might approve. It should be immaterial how many removes there are between a copy and the original.

Secondly, the present rules governing the admissibility of business records, including computer records, are out-dated and cumbersome and do not meet the requirements of a modern automated office. The present rules are based on the assumption that there is a person who supplied the information contained in the record. Problems may arise when it is sought to prove the absence of an entry from the records, since there cannot be a supplier of non-existent information. The Commission recommended that the present system be replaced by a simpler regime and that computer records of a business should be admissible in civil proceedings in the same way as other business records. In addition, the Commission suggested that the absence of an entry should be capable of being formally proved by the oral evidence or affidavit of an officer of the business or public body to which the records belong.

The Administration accepts the Law Reform Commission's recommendations. The proposed system would improve the efficiency of civil proceedings and dispense with time-consuming and costly procedural requirements.

I now turn to the Bill. Clause 2 repeals Part IV of the Evidence Ordinance. It abolishes the common law rule against hearsay evidence in civil proceedings and provides safeguards against possible abuses of that abolition. It also provides for the admissibility of a copy of a document regardless of how many removes there are between the copy and the original. In addition, it introduces a simpler system for the admission of business records and provides a wide definition of "records" that covers records in any form. This will allow computer records of a business to be admissible in civil proceedings in the same way as other business records.

Clauses 3, 4, 5 and 6 make consequential amendments to the Evidence Ordinance and other enactments, including the Rules of the High Court.

Madam President, the Bill would improve the law of evidence in civil proceedings. It will rid our law of a number of defects and artificial requirements and will achieve a useful saving of time and costs for parties to civil proceedings. I commend the Bill to the Council.

End/Wednesday, July 15, 1998

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