2. Specific statutory exceptions

2. Specific statutory exceptions

There are specific statutory exceptions to the hearsay rule.

By consent

In a criminal proceeding, hearsay evidence can be admitted with the consent of the parties pursuant to Section 65B or 65C of the Criminal Procedure Ordinance (Cap. 221) if the evidence is admissible. See “What evidence is admissible?”.

Documentary records

Section 22 of the Evidence Ordinance (Cap. 8) provides that a document which forms part of a record compiled by a person acting under a duty from information supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information is admissible.

It is a precondition that, before this exception is invoked, the Court is satisfied that the person who supplied the information falls under one of the following categories:

1. is dead or by reason of his bodily or mental condition unfit to attend as a witness; 
2. is outside Hong Kong and it is not reasonably practicable to secure his attendance;
3. cannot be identified and all reasonable steps have been taken to identify him; 
4. his identity being known, cannot be found and all reasonable steps have been taken to find him; 
5. 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 
6. 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. 

However, such a statement would not be admissible under Section 22(2) of the Evidence Ordinance (Cap. 8), if they are created in connection with any criminal proceedings or investigations related to criminal proceedings. 

Documents that are generated from a computer are governed by a separate provision, section 22A of the Evidence Ordinance (Cap. 8).

Public documents

At common law, public documents are generally admissible as evidence. Section 18 of the Evidence Ordinance (Cap. 8) further provides that any copy or extract of the public document shall be admissible in evidence in court provided it is proved to be an examined copy of extract, or it purports to be signed and certified as a true copy of extract by the officer to whose custody the original is entrusted.

Bank records

Section 20 of the Evidence Ordinance (Cap. 8) provides that a copy of any entry or matter recorded in a banker’s record shall be admitted as evidence. The Court only has to be satisfied that such entry or matter was recorded in the ordinary course of the business of the bank, and that such record is in the custody or control of the bank. The section further provides that these can be proved by an affidavit sworn by any officer of the bank.

Computer records

Section 22A of the Evidence Ordinance (Cap. 8) provides that a statement contained in a document produced by a computer shall be admitted as evidence. 

The Court only has to be satisfied that:

1. the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body or individual;
2. the information produces or is derived from information supplied to the computer in the course of those activities; and 
3. appropriate measures were in force for preventing unauthorised interferences with the computer and that the computer was operating properly.

The section further provides that these can be proved by a certificate signed by a personnel responsible for the operation of the relevant computer.