Cap. 8activeordinance

Evidence Ordinance

證據條例

Full legislation

s.77F

Admissibility in criminal proceedings of evidence obtained pursuant to letter of request

(1)
Subject to this section and
section 77G
, any deposition, together
                with any document or thing exhibited or annexed thereto, which is received by the
                Registrar pursuant to a letter of request issued by him under
section 77E
in respect of any criminal proceedings, shall on its production without further
                proof be admitted in those criminal proceedings as prima facie evidence of any fact
                stated in the deposition and in the document (if any) exhibited or annexed thereto
if—
(a)
it is agreed by or on behalf of the prosecution and every person charged
                    with an offence to which that fact relates that such deposition together with
                    any such document or thing exhibited or annexed thereto may be tendered in
                    evidence; or
(b)
in the case of a deposition having exhibited or annexed thereto any
                    document of a kind referred to in subsection (2) but no other document, the
                    conditions mentioned in that subsection in relation to a document of that kind
                    are satisfied; or
(c)
in the case of a deposition having exhibited or annexed thereto any
                    combination of documents consisting of any document of a kind referred to in
                    subsection (2) and any other
document—
(i)
in respect of such first-mentioned document, the conditions mentioned
                        in that subsection in relation to a document of that kind are satisfied;
                        and
(ii)
in respect of such other document, the court is satisfied that that
                        document is the original thereof, or a copy thereof made by any photographic
                        process, and that, having regard to the matters referred to in paragraph
(d
)(
i)
, (ii) and (iii), no unfairness is likely to occur in
                        those criminal proceedings consequent upon the deposition and that document
                        being admitted in evidence under this section; or
(Amended
67 of 1986 s. 5
)
(d)
in the case of any other deposition, the court is satisfied that any
                    document (if any) exhibited or annexed thereto is the original thereof, or a
                    copy thereof made by any photographic process, and that, having regard to the
                    following
matters—
(Amended
67 of 1986 s. 5
)
(i)
whether it is reasonably practicable to secure the attendance of the
                        deponent, taking into account for that purpose his bodily or mental
                        condition or the delay or expense likely to be caused in securing his
                        attendance;
(ii)
whether the deponent was cross-examined before such court or tribunal;
                        and
(iii)
any other matter which, in the circumstances, appears to the court to
                        be relevant,
no unfairness is likely to occur in those criminal proceedings
                    consequent upon the deposition and any document (if any) exhibited or annexed
                    thereto being admitted in evidence under this section.
(2)
The conditions referred to in subsection
(1
)(
b)
and
(c
)(
i)
are—
(a)
in relation to a document (
the foreign document
) which
                        falls within subsection
(2
)(
a)
of
section 19A
, that
                        the deposition having the foreign document exhibited or annexed
thereto—
(i)
shall have been made by a person having custody or control of any
                            record, book or document from which the foreign document is
                            derived;
(ii)
shall contain an explanation of the nature and contents of the
                            foreign document; and
(iii)
without prejudice to any other matter contained or referred to
                            therein, shall contain such averments of fact relating to the foreign
                            document as are sufficient to show whether it falls within subsection
(2
)(
a
)(
i)
or (ii) of that section;
(b)
in relation to a document which is a record, or a copy of any entry or
                    matter recorded in a record, used in the ordinary business of a body formed or
                    established outside Hong Kong and carrying on the business of banking outside
                    Hong Kong, or which (having formerly carried on the business of banking outside
                    Hong Kong) is being or has been wound up or dissolved or has otherwise ceased to
                    carry on such business, that the deposition having that document exhibited or
                    annexed
thereto—
(Amended
67 of 1986 s. 5
)
(i)
shall have been made by an officer of such body or, in the case of any
                        such body which is being or has been wound up or dissolved or has otherwise
                        ceased to carry on such business, by any person who is, or is an officer of,
                        a person responsible for administering its affairs;
(Amended
67 of 1986 s. 5
)
(ii)
shall contain an explanation of the nature and contents of that
                        document; and
(iii)
without prejudice to any other matter contained or referred to therein,
                        shall contain such averments of fact relating to that document as would, if
                        the document were a copy of an entry or matter recorded in a banker’s record
                        and tendered in evidence under
section 20
, be sufficient to prove
                        in respect thereof the matters required to be proved under that section in
                        respect of a copy of any such entry or matter;
(c)
in relation to a document which is or forms part of a record falling within
                    subsection
(1
)(
b)
of
section 22
or is a copy of such a
                    document,
that—
(i)
the deposition having that document exhibited or annexed
thereto—
(A)
shall have been made by a person having custody or control of such
                            record; and
(B)
shall contain an explanation of the nature and contents of that
                            document; and
(C)
without prejudice to any other matter contained or referred to
                            therein, shall contain or be supported by such evidence, whether by
                            averments of fact contained therein or otherwise, relating to that
                            document as would, if the document were a statement tendered in evidence
                            under that section, be sufficient to prove that nothing in subsection
                            (2) or (3) of that section prevented its being admitted in evidence
                                thereunder;
(Amended
18 of 2014 s. 48
)
(ii)
it is shown (whether by averments of fact contained in the deposition
                        or otherwise) that any of the circumstances referred to in subsection
(1
)(
c)
of that section except in sub-paragraph (ii) thereof,
                        affect the person who supplied the information from which such record was
                        compiled; and
(Amended
18 of 2014 s. 48
)
(iii)
(if the deposition is an affidavit, affirmation or declaration relating
                        to a request referred to in
section 77G(4A)
) the court is
                        satisfied that no unfairness is likely to occur in the criminal proceedings
                        referred to in subsection (1) consequent upon the deposition and that
                        document being admitted in evidence;
(Added
18 of 2014 s. 48
)
(d)
in relation to a document or a copy of a document produced by any device
                    which is a computer within the meaning of
section 22A
, that the
                    deposition having that document exhibited or annexed
thereto—
(i)
shall have been made by a person who, at any
                        time during the period over which the computer was used to store, process or
                        retrieve information for the purposes of any activities (
the relevant
                            activities
) carried on over that period, occupied a responsible
                        position in relation to the operation of the computer or the management of
                        the relevant activities;
(ii)
shall contain an explanation of the nature and contents of that
                        document; and
(iii)
without prejudice to any other matter contained or referred to therein,
                        shall contain such averments of fact as would, if that document were a
                        statement tendered in evidence under that section, be sufficient (in
                        relation to the use of that computer over that period) to satisfy the
                        requirements of subsection (2) of that section.
(3)
A deposition, or any document or thing exhibited or annexed thereto, shall not
                be admitted in criminal proceedings by virtue of this section as evidence of any
                fact unless direct oral evidence of that fact would be admissible in those
                proceedings.
(4)
Where a deposition having exhibited or annexed thereto any document of a kind
                referred to in subsection (2) contains matter other than averments made in respect
                of such document pursuant to subsection
(1
)(
b)
or
(c
)(
i)
or
                for the purposes of
section 77G(4)
, such matter shall not be admitted in
                evidence in criminal proceedings by virtue of this section unless the court is
                satisfied that, having regard to the matters referred to in subsection
(1
)(
d
)(
i)
, (ii) and (iii), no unfairness is likely to occur in those
                criminal proceedings consequent upon its being so admitted.
(5)
A certificate purporting to be signed by the Registrar and certifying that any
                deposition to which such certificate is attached, together with any document or
                thing exhibited or annexed thereto (if any), has been received by him pursuant to a
                letter of request issued by him under
section 77E
in respect of any
                criminal proceedings referred to in the certificate, shall on its production without
                further proof be admitted in those criminal proceedings as conclusive evidence of
                the facts contained therein.
(6)
References in this section to a letter of request issued by the Registrar under
section 77E
in respect of any criminal proceedings include references
                to a letter of request issued by him in respect of any criminal proceedings (whether
                instituted or not) at any time after 1 January 1984 and before the
                    commencement
#
of the Evidence (Amendment) Ordinance 1984 (
37 of
                1984
) to a court or tribunal exercising jurisdiction outside Hong Kong
                requesting such court or tribunal to assist in obtaining evidence for the purposes
                of those criminal proceedings.