Revision notes for Evidence – Basic Principles.1. PURPOSE OF LAW OF EVIDENCE
2. ISSUES AND FACTS
Facts versus evidence:
Facts are used to determine issues. The resolution of issues determines the outcome of a case. For example in criminal
cases, the accused’s mens rea is an issue that m...
Facts versus evidence:
Facts are used to determine issues. The resolution of issues determines the outcome of a case. For example in criminal
cases, the accused’s mens rea is an issue that must be determined.
Evidence is different, as they do not directly determine issues. While facts are generally derived from evidence, only
facts that have been accepted or “found” by the judge/jury can determine issues.
Summary: In evidence we always are finding our TARGET FACTS/FACTS IN ISSUE.
3. WHERE DO FACTS COME FROM
a) Three types of admissible evidence: The tribunal of fact may have recourse to the following admissible sources in
the fact-finding process:
Type Description
Viva Voce i. The most common form; a live witness who testifies on oath or affirmation about things or events which he
Evidence or she has observed.
(Oral/ written ii. Generally it is the past observations of the witness that is admissible His or her opinion is not admissible.
Testimony Opinion evidence can only be admitted in exceptional circumstances, and usually only if it qualifies as expert
from a evidence.
Witness)
Real Evidence i. Physical objects such as photographs, weapons, clothing, documents, etc…
CCTV footage is real evidence as it allows tribunal of fact to form their own opinion (HKSAR v
Wong Cho Shing)
ii. Test: whether the inspection of real evidence enables the tribunal of fact to form ‘its own perception of the
nature and qualities of the object in question’ (Ian Dennis, The Law of Evidence)
Documentary i. The contents of the documents can prove the truth of the events
Evidence - examples: public documents (Ordinances, Treatments, Bankruptcy documents), judicial documents,
private documents (business records, letters/emails, contracts, records of communication)
ii. Advantages of documentary evidence:
- It could sometimes give direct evidence proving the subject matter in dispute; and/or
- It has more weight compared to testimony because they often record the material events at a nearer
time to matters in dispute and relatively not vulnerable to diminished memory of witness
Significance between Documentary Evidence & Real Evidence (using CCTV footage as an example):
- If CCTV footage is classified as Real Evidence, assuming that it is relevant, the jury has to then
decide whether it is authentic beyond doubt (R v Murphy & Another; HKSAR v Lee Chi Fai &
Others)
- For Documentary Evidence, s22A Evidence Ordinance has to be engaged in determining its
admissibility and has to satisfy the hearsay exception.
This applies to photographs and videos as well- if documentary, they can be hearsay (e.g. there are captions
on the photographs)
PROOF WITHOUT EVIDENCE
b) Judicial Notice
i. Judicial notice allows the tribunal of fact to find a commonly known fact without receiving evidence.
“The party who asks that judicial notice be taken of a fact has the burden of convincing the judge:
(a) that the matter is so notorious as not to be the subject of dispute among reasonable men, or
(b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of
indisputable accuracy”. Cross and Tapper on Evidence
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, Facts can be judicially noticed with or without inquiry.
With inquiry: baseball team who on the World series in 1987 not notorious, but fact can be determined with a
little inquiry.
Without inquiry: Judge takes judicial notice of ‘white powder’ as ‘heroine’. Notorious and no need for inquiry.
ii. Strength is that it is a useful doctrine that can save valuable court time.
iii. Danger is that:
- Judges may draw upon personal knowledge which may not be as notorious as they might think.
- Combined with this danger is the pitfall of taking judicial notice of fact without giving adequate notice to the
parties, who might want to contest the truth of the fact with contrary evidence.
iv. The Hong Kong courts have taken judicial notice of the following facts (non-exhaustive list of examples):
Fact: White powder = heroin
Fact: The underworld and pimps use drugs to control women to make them prostitutes
Fact: The different ways in which casual workers secure employment in Hong Kong
Fact: The geographical boundaries of Hong Kong
Fact: The premises under the control and management of the Housing Authority
Fact: The fact that baldness of vehicle tires may be a source of danger.
Fact: All the common law, Ordinance, and subsidiary legislation. (See the Interpretation and General Clauses
Ordinance (Cap 1) s.11.
c) Presumptions:
i. Persuasive presumption: Statutory and common law presumptions generally allow the tribunal of fact to presume a fact
until a party proves otherwise. I.e. the common law presumption of innocence and some other examples.
ii. Table of examples:
Dangerous s. 47 presumption of possession and knowledge of dangerous drugs. s. 1 to s. 3.
Drugs
Ordinance
(Cap 134)
United s. 4 Specification by Chief Executive of persons and property as terroritsts, terrorist associates or
Nations terrorist property. (1), (5) and (6)
(Anti-
Terrorism
Measures)
Ordinance
(Cap 575)
Parent and s. 5 Presumptions as to paternity and legitimacy. (1)-(4).
Child
Ordinance
(Cap 429)
iii. In a criminal case, if the prosecution relies on a presumption (typically where it presumes fact B from proof of fact A) to
prove its case, the defendant may raise a BL/HKBORO complaint on the basis that his/her presumption of innocence has
been infringed. This is because presumptions effectively place the onus of proof on the defendant to prove his or her
innocence. In Att-Gen [1993] AC 951 at 970; PC: accepted that it would be difficult to justify such a presumption unless
there was a “substantial assurance that the presumed fact is more likely than not to flow from the proved fact”.
iv. Conclusive presumption: equivalent of common law’s irrebuttable presumption of law. Example: doli incapax (i.e.
persons under age of 10 has no criminal responsibility) under s3 of the Juvenile Offenders Ordinance
d) Formal Admissions or Agreed Facts
i. The parties to a case can come together to present the court with agreed facts, which the court can accept as true without
further proof. Form: can be formal written agreed statement of facts; or oral admission by the party in the courtroom.
ii. Agreed or admitted facts must meet the requirements in ss. 65C of the CPO (Cap 221). It is important to note that agreed
facts admitted under s. 65C are conclusive and will bind the court even if there is inconsistent evidence at trial. (Regina v
Chan Chun-man [1986] HKC 261, CA; HKSAR v Au Koon Yip & Others [2004] HKEC 274, CA.
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, - In civil proceedings, agreed or admitted facts come under the terms of Order 27 of the Rules of the High Court.
iii. Not to be confused: (i) Formal admissions (ii) out of court admissions (iii) confessions tendered as evidence in the case.
4. THE FACT FINDING PROCESS
a) The two judges in every trial: in every trial there is a judge of law and the judge of facts i.e. (the tribunal of law/
tribunal of fact). = Two distinct functions of judging, distinct and separate.
i. Jury trials:
1. Jury is the judge of facts (Decides all questions of fact in order to determine the issues and outcome of the
case e.g. weight/ credibility/ reliability of evidence)
2. Trial judge is the judge of law. (Decides all questions of law e.g. admissibility).
a) Trial judge should not invade the province of the jury and find the facts.
b) Trial judge must ensure that inadmissible evidence is not heard by the jury, as it might contaminate
the jury’s fact-finding process. Hence, acts as gate keeper between counsel and the jury to protect
the integrity of the fact-finding process.
ii. Non-jury trials:
1. Two roles rest on the same person. The trial judge wears two hats as judge of both the law and facts.
2. In conducting a judge alone trial, such as those in Hong Kong’s magistracies or District Court, the trial
judge must still maintain the theoretical distinction and separation between the two roles.
3. The trial judge will inevitably hear inadmissible evidence. Policy of the law has been to recognize that
trial judges are capable of ignoring inadmissible evidence and its prejudicial effects, and reaching a
reliable verdict based only on the facts as found.
b) Credibility and reliability assessment
i. Terms used interchangeably but different.
1. Credibility: Referring to the trustworthiness of the witness and his or her testimony. (Requires
consideration of whether the witness is honest).
2. Reliability: on the other hand, is concerned with the accuracy other than the veracity of the witness’
evidence. In other words, reliability looks at the extent to which the witness is likely to have to have been
mistaken in his or her observations.
3. Therefore an honest but mistaken witness is credible but unreliable.
ii. In summing up to the jury, trial judges often instruct the jury that they may accept all of a witness’ testimony,
some of it, or none at all. HKSAR v Tang Kwok Wah (2002) 5 HKCFAR 209, 225, CFA.
iii. Facts affecting the credibility of witness.
1. i.e. a witness’ criminal convictions
2. i.e. a witness’ close relationship with one of the parties.
c) Burden of Proof
i. Material facts: material facts are facts decisive of the issues that must be proven.
1. The general rule is that: the party bringing the case will have the legal burden of proving these material
facts. If that party fails to do so, it will lose the case.
2. If that party succeeds, it can still lose if the other party proves the facts which support an available defence
(e.g. self-defence in a murder case).
ii. Burden of proof:
1. Legal: A party discharges its legal burden of proof if the tribunal of fact finds the material facts while
applying the proper standard of proof.
a) criminal: P Must prove material facts beyond reasonable doubt
i. There is NO legal burden whatsoever on D (A Solicitor v Law Society; Tsang Wai Man v
HKSAR CFA)
b) civil, plaintiff must prove material facts (i.e. facts alleged in the pleading supporting a cause of
action) on a balance of probabilities.
2. Evidential burden: parties sometimes have an evidential burden to raise an issue (e.g. defence of
provocation for murder). Evidential burdens are not legal burdens of proof, in that failure to discharge an
evidential burden does not necessarily result in the loss of the case.
i. Typically, adducing some evidence of the issue in question will be enough to discharge the
evidential burden at which point the opposing party would have a legal burden to disprove the
issue raised.
Standards of proof
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