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.