3. Judicial notice

3. Judicial notice

Some matters are deemed to be established even though no evidence is introduced to support them because they are “judicially noticed”. They are judicially noticed because they are taken to be within the knowledge of judges or the jury.

Judicial notice occurs when judges or juries accept certain facts as within their knowledge. It functions as a substitute for proof. Once a fact is judicially noticed, it is considered conclusive, meaning no evidence can be presented to contradict it, and arguments from counsel are not allowed.

Judicial notice of facts

The Courts are entitled to “take judicial notice” of matters which are so notorious or clearly established or susceptible of demonstration by reference to a readily obtainable and authoritative source. Examples include:

• order of years, months, days of the week, dates of holidays;
• ordinary weights and measures;
• general geography of the region involved;
• basic matters relating to the human body, e.g. normal gestation period of a baby is about 9 months;
• meaning of words including colloquialisms, slang words and similar expressions;
• what is immoral / indecent; and
• prevalence of offences within the jurisdiction (in particular during sentencing).

Judicial notice of law

Judges, including magistrates, are charged with the duty of knowing the law of the common law and the practice and procedure of the courts of Hong Kong. This means that courts will take judicial notice of Hong Kong Ordinances and Regulations and do not require evidence as to what the law is in Hong Kong.

It is the primary duty of judges to apply the law to the facts of each case based on the evidence presented. Judges receive assistance in this process through legal submissions made by the parties or their representatives, but they are not bound by these submissions. If the parties or their lawyers fail to address relevant legal principles or incorrectly state the law, the judge must disregard those submissions and apply the correct law to the facts.

The limits, however, of this aspect of judicial notice must also be stated. Judges take judicial notice of uncontroverted and indisputable law only. Where the law must be interpreted or is debateable or disputed, argument will be led by the parties.