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Following is the speech by the Secretary for Justice, Ms Elsie Leung in moving the Second Reading of the Evidence (Amendment) Bill 1999 in the Legislative Council today (Wednesday):

Madam President,

I move that the Evidence (Amendment) Bill 1999 be read the second time.

The purpose of the Bill is to abolish the formal rules of evidence requiring corroboration (or a warning by the judge of the dangers of convicting on the uncorroborated evidence of a single witness) in sexual offence cases, which is the last category of cases to which the rules still apply. Similar rules were abolished in relation to the evidence of accomplices and children in 1994 and 1995 respectively.

The current law

Let me first explain the background and the problem we seek to resolve. Corroboration is evidence which confirms the accuracy of other evidence in a material particular. In criminal cases, it must confirm or tend to confirm the guilt of the accused.

There are two aspects to the corroboration requirement under current law. Firstly, in sexual offences cases, the judge is, as a matter of practice, required to warn the jury of the danger of conviction on the uncorroborated evidence of a single witness, and to explain what can (and what cannot) amount to corroborative evidence. Secondly, there are seven specific sexual offences under the Crimes Ordinance in respect of which the prosecution's evidence must, as a matter of law, be corroborated.

Criticism of the Corroboration Rules

The requirement for a warning to be administered by the judge has been criticised as inflexible as the requirement means that a direction from the trial judge is mandatory regardless of his assessment of the reliability of the evidence, or of the assistance that the jury need to be given in assessing that evidence.

The warning has been criticised for its complexity as what can and cannot amount to corroboration are difficult and complex and have given rise to errors and appeals.

The requirement for corroboration in the seven specific offences is an exception to the general principle that it is the quality, rather than the quantity, of evidence which should count in a criminal trial.

A further criticism of the requirement for corroboration is that it applies according to the definitions of the offence, rather than according to the circumstances of the particular case before the court.

Protection of the Defendant's rights

I have taken into account concerns that have been expressed by the legal profession regarding the need to protect the rights of defendants. It has been suggested, for example, that a warning is an essential safeguard for the defendant against allegations that may be based on jealousy, fantasy or spite. However, I am of the view that the existing law provides defendants with ample protection against such dangers even without the corroboration rules.

Trial judges have a general obligation to use their experience and judgement to assist the jury to assess and to make sense of the evidence. This include putting defences not raised in the accused's own submissions to the jury. Where items of the prosecution evidence are actually or potentially unreliable or open to criticism, the judge must guide the jury on those matters.

The Court of Appeal can and will correct the position where the judge has misdirected the jury (or failed to give a direction where one was required) concerning the credibility of a witness. This control applies as much in sexual offence cases as in any other criminal case.

The corroboration rules in respect of sexual offences have already been abolished in England, Canada, most of the Australian States and New Zealand. Judges of the Court of Appeal in Hong Kong have also stated in June 1998 that the continued existence of the rules in respect of sexual offences in Hong Kong is inexplicable. [HKSAR v Kwok Wai-chau (Cr. App. 502/97. dated 5.6.1998)]

I now turn to the provisions of the Bill.

The Bill

Clause 2 of the Bill adds a new section 4B to the Evidence Ordinance to effect the proposed abrogation.

Clause 3 of the Bill provides for repeal of the seven subsections in the Crimes Ordinance which require corroborative evidence in respect of specified sexual offences.

Madam President, by abolishing the corroboration rules in sexual offence cases, the Bill will remove the inconsistency between the treatment of the evidence of witnesses in sexual offence cases and that in other cases. Since most victims in sexual offence cases are female, the Bill will also be a positive move towards removing indirect discrimination against women in relation to giving evidence in court. This I believe will also encourage victims of sexual offences to come forward to report such crimes and to give evidence in court.

Madam President, I commend the Bill to the Council.

End/Wednesday, July 7, 1999

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