"正如上訴方指出，裁判官以禁止傳聞證供為理由，阻止辯方對上訴人及DW3的部分主問，是不對的。當時，這兩名證人，正要覆述與Anna源於4月5號和9號兩次「見工」的對話，但目的只在顯示對後者的了解，及對整個涉案情況所因而產生的認知，因此不會構成不可呈證的傳聞。就此，辯方有向裁判官解釋，裁判官實在沒有理由反對。還有，這個錯誤，雖然在某程度上得到了減輕（主控在盤問時問到Anna的若干資料），但它的發生，卻始終令人難以肯定，上訴人的說法已全面地得到應有的展述。裁判官指「上訴人對於Anna的背景資料一概不知，甚至連Anna有沒有洗碗的工作經驗也不清楚」[3]，就相當可能來自這個錯誤、所產生的印象。（其實裁判官在這點也有錯：上訴人和DW3都曾供稱知道Anna有這方面的經驗。）"
第一, 周燕珠只是阻止了上訴人及DW3的部分主問，理由是傳聞證供，涉及和這Anna的對話。這段的分析在法律上可成立？單是最後括號裏指出周燕珠犯錯這一點已經錯誤，理由是大老爺把傳聞證供當作證供接納了，否則上訴人和DW3怎會知道Anna有洗碗的經驗，極其量是Anna告訴他們，這不就是傳聞證供嗎？就算真的有Anna這個人，Anna真的告訴過他們有洗碗經驗，那麽他們就真的知道Anna有這經驗？我呸！就算不講甚麽傳聞證供的法則，你已侮辱了思考的智慧。
辯方在審訊時可以覆述和Anna談話涉及的課題，the nature of what was transpired but not as to the truth of its content. 可能我十幾年沒有接觸hearsay這東西，我記錯了，抑或是法改會兩年前發hearsay諮詢文件改了這法則？（印象中看過法改會對hearsay發諮詢文件。）講甚麽主控盤問減輕了這錯誤，with respect, nonsense. 主控盤問有關Anna的資料，很明顯在discredit her existence. 請告訴我，上訴人及DW3這種對話屬於exception to hearsay的那一項？各位匿名可以批評我錯，你們一定有書參考，我只有一本過期的Archbold. I am all ears. 恭侯你們再入來留言教我這man in the street.
標少好認真…… 不如先冷靜，後討論啦 :)
回覆刪除Let me provide all of you my chain of thoughts…
(我學標少包拗頸ja… 當練習一下考試答題, 請各位賜教)
The issues are:-
1. whether it is hearsay or not hearsay;
2. IF it is hearsay, whether admissible or inadmissible;
3. ‘water-blowing’ extra-legally: if you are the magistrate, what should you do in order to convict/acquit as you will?
1. it’s NOT hearsay at all, because:-
The examination as to the contents of the job interviews was to prove:-
(i) whether there is any job interview conducted with Anna; and hence
(ii) whether Anna existed.
(e.g. in Subramaniam v PP 1956, threats made to D is not hearsay, but that the threats were made)
But it was NOT to prove whether the contents in job interviews were true (i.e. whether Anna had the experience of washing).
2. Even if it IS hearsay,
(a) why is it inadmissible? implied assertion (Kearley 1992)? previous consistent statement (Roberts 1942)? (btw, are the contents in the job interviews relevant in the first place?)
(b) why is it admissible? res gestae – contemporaneous statements, e.g. R v Moghal 1977 ?
(I’m stuck here, any thoughts?)
3. What should the magistrate do?
(a) disbelieve D; or
(b) believe in D (and acquit him)?
(answers depends on the circumstances… maybe: magistrate has the advantage of dealing with the witness)
個人意見:
若果裁判官(or Bill Siu)不相信有Anna這個人，不過好像「釘唔到」被告，請問鑽唔鑽到法律”lar”? On the facts, 裁判官以為自己鑽到，不過比法官打殘左，但係又比被告鑽到wor，只好appeal allowed 啦! 裁判官或心想:「被告，即使我比你問關於Anna, 我唔信你bor，不過你好彩/唔好彩!」
唔知啱唔啱,
請賜教,
PHLI
I agree with point 1. It's NOT hearsay at all, for the reasons stated. Point 2 is thus academic. Point 3 - the magistrate should hear all admissible evidence (including the oral conversation) with an open mind, assuming that the Defendant is innocent and his story true, and be seen to have done so, before making a finding of fact one way or another. This is the law of Hong Kong (HKSAR v Kevin Egan, et al, CFA) whether you like it or not. The magistrate failed to do this. The appeal was allowed correctly for the correct reason. The magistrate should be reprimanded. If you disagree, as you are of course fully entitled to, at least show me one authority which suggests that what the magistrate did could be right as a matter of Hong Kong law?
刪除Bill Siu, I read your posts from time to time. In my view, this time you are way off. You built your entire argument on the assumption of guilt ("Anna clearly did not exist", etc), when the law of Hong Kong required the exact opposite (the defendant must be assumed innocent, and his story true). With respect, how can you get it so wrong? We are just discussing this and no harm would be done whatever you think or say about this, but if you really think it's okay to proceed on the assumption of guilt, you are doing what the CFA says should never be done.
刪除Thank you for your comments. Without the benefit of reading the transcript, our discussion relies on reading between the lines of the appeal judgement and some guesswork. I agree with point 1 if it only limits to the nature of the conversation instead of verbatim repeating of the dialogue. I do not see how and its purpose, it should be adduced other than the nature of the conversation took place. At the back of my mind I may have jumped to the conclusion that Anna did not exist. It matters not. After all, there are rules of the game we have to comply with. I have no dispute about it. On this hearsay point alone, I do not find Miranda at fault. Save being long winded and repetitive, I stop here.
回覆刪除Sorry mates if you feel I am argumentative. I truly am within the perimeters of the law.
I think you misunderstood the law of hearsay completely. Whether it's verbatim or not is completely irrelevant. The point is purpose. A Defendant can always say "the policeman said if I don't admit the allegation he will hit me". It's verbatim. And it's not hearsay at all because what the evidence is about is what was said and the effect it had on the Defendant's mind. It is not used to prove that the policeman will actually hit him. That's the distinction. The key is the purpose. If you think the key is "general nature" vs "verbatim repetition", then the error you have committed is, with respect, so profound it went way beyond the scope of this judgment. This is law school 101 mate. You won't be able to pass PCLL / LPC / BVC / College of Law Course without getting this one right!
刪除The same is true for, say, the offence of claiming to be a member of a triad society. Any person can quote the entire conversation verbatim (eg "my big brother is xxx of yyy. where are you from), and it's NOT hearsay, because the verbatim quotation is to prove that that was said, as opposed to he is actually a triad member, so the entire conversation is admissible verbatim. This is not an exception. It is simply NOT hearsay. The same is true for the conversation with Anna. It doesn't matter whether the evidence is verbatim quotation, paraphrasing, or just saying the nature of what was said. All 3 versions would NOT be hearsay and would be admissible. Please tell me you understand this? Please forgive me if I sounded slightly rude. I am just very surprised you got it wrong.
刪除匿名 12:46 ： 並非針對 billsiu，只是陳明事實，billsiu 並沒有法律學位或律師資格，如非事實，billsiu 當然可以〈絕對應該〉澄清。
刪除Thanks for the lecture. The police's threat example shows the effect on the person renders certain statement inadmissible. He does not actual hit the deft. If he does, the allegation is assault instead. Claiming MOTS is not a charge of being. There is no need to prove the utterer actually is MOTS. Otherwise you will face the same hurdle about the truth of the content. These two anologies are not appropriate. Maybe I should not use verbatim to describe. What the court faced was that even the details of the conversation with Anna were adduced, they could only show what were said between them. What were said about the background of Anna is still hearsay. The appellant and DW3 could not verify its veracity. The court can hear about what were said but after hearing, the background of Anna is still not evidence for the court to consider. The bracketed statement in para 13 points out the exact problem. The appeal court could not say the appellant and DW3 testified they knew Anna had experience. The appellant and DW3's evidence was they were told by Anna that she had such experience. The fact remains unknown if Anna really has such experience should she ever exist. I regard this as hearsay and I think Miranda probably shared this line of thought. In a nutshell, the appellant and DW3 could only testify the nature of the conversations, in general term or verbatim, there is no evidence before the court that Anna really has experience in washing dishes. Miranda refused to hear the detail of the conversation because at the end of the day, they could not establish what Anna was except what they could observe about her.
刪除If the appellants were allowed to testify the detail of the conversation, the prosecutor could simply ask, "You do not know her and you do not know if she told you the truth?" Where did this conversation lead to? The mere fact that something was said. That is all. You think there is no hearsay issue here?
I believe the point of the CFI judge is simply this: -
刪除A magistrate cannot stop a Defendant from giving evidence about a conversation which could have shown how the Defendant acquired information about Anna, and thus (the Defendant would argue) made it reasonable for him to have trusted Anna, only to then turn round and make a finding of fact to the effect that the Defendant knew nothing about Anna and thus his story should not be believed.
Had the Defendant been allowed to give the evidence he was about to give before he was stopped, he would have told the magistrate what he knew about Anna by reason of the details of the conversation.
The fact that the Defendant did not spend a million dollars to hire a private investigator to check Anna's gender or date of birth or DNA sequence or IQ or EQ is quite beside the point.
The evidence (as to what was said between Anna and the Defendant) could have changed the magistrate's mind as to whether to believe the Defendant, or as to whether the Defendant should be given the benefit of the doubt.
Since such evidence never came out (the Defendant was stopped), no one knows how important or unimportant the evidence would have been.
The conviction is thus unsafe.
As simple as that.
The Defence clearly never intended to adduce evidence of the conversation to show that Anna is beautiful or has 3 breasts as a matter of fact etc. (this would be caught by the hearsay rule).
All that the Defence wanted to do was to show that a detailed conversation took place between the Defendant and Anna, through which the Defendant got to know sufficient details about Anna to have been convinced that Anna can become his contractor. This is NOT caught by the hearsay rule because the truth or otherwise of Anna's assertions in the conversation is of no importance.
Anna could have asserted, in the conversation, that she graduated from HKU with an LLM (who knows?). Since the Defence is not using the conversation to prove that she in fact had an LLM from HKU, but only using the conversation to prove that the Defendant believed she did and the reason thereof, it is fine!
Where did the conversation lead to? It led to the Defendant believing (wisely or unwisely) that it would be a good idea to contract out the work to Anna in the manner as he ultimately did.
It doesn't matter whether Anna actually has an LLM from HKU. The Defence was just trying to show what made the Defendant did what he did.
The Defence was entitled, in all fairness, to run that case, but was stopped. Hence the conviction being quashed.
The judgment on appeal is thus perfectly logical, legally unassailable, absolutely correct, and in no way unreasonable.
If I were the CFI judge, I would also quash the conviction, for the exact same reasons. The trial wasn't fair and the conviction wasn't safe.
I would, however, have ordered a re-trial.
Thank you for your detailed comment and your time. I am persuaded. I will withdraw these two blogs in two days' time to allow people who have seen them keep track of the development in the discussion.
刪除May I ask this: would you convict the deft if you were to hear the re-trial? Given what we have acquired about the facts in the judgement.
That depends on the evidence he was about to give (before he was stopped)! :)
刪除Dear Bill,
回覆刪除In 香港特別行政區 訴 羅華保, Pang J said, at para 13:-
“正如上訴方指出，裁判官以禁止傳聞證供為理由，阻止辯方對上訴人及DW3的部分主問，是不對的。當時，這兩名證人，正要覆述與Anna源於4月5號和9號兩次「見工」的對話，但目的只在顯示對後者的了解，及對整個涉案情況所因而產生的認知，因此不會構成不可呈證的傳聞。”
of which Bill commented:-
“第一, 周燕珠只是阻止了上訴人及DW3的部分主問，理由是傳聞證供，涉及和這Anna的對話。這段的分析在法律上可成立？單是最後括號裏指出周燕珠犯錯這一點已 經錯誤，理由是大老爺把傳聞證供當作證供接納了，否則上訴人和DW3怎會知道Anna有洗碗的經驗，極其量是Anna告訴他們，這不就是傳聞證供嗎？就算 真的有Anna這個人，Anna真的告訴過他們有洗碗經驗，那麽他們就真的知道Anna有這經驗？”
With all due respect, I must disagree with Bill. I submit that a statement made to a witness by a third party is not excluded by the hearsay rule when put in evidence to prove the defendant's state of knowledge. In 羅華保, the Defendant and DW3 said Anna told them she had experiences in washing dishes. The purpose of introducing this evidence, I submit, was to establish (i) the Defendant and DW3 did meet an Anna; (ii) the Defendant and DW3 had subjective beliefs in Anna’s credentials because of what Anna told them. The Defence apparently was not using this evidence to establish if Anna in fact had such credentials, which, of course, would be hearsay.
I do agree that in 羅華保, the existence of Anna was highly questionable and probably moonshine. But to suggest that the Defendant and DW3 could not give evidence as to what Anna had told them because Anna (probably) did not exist was to put the cart before the horse. The learned Magistrate could have let the Defendant and DW3 gave their stories regarding the alleged conversations, and then pointing out the improbable nonsenses in their stories which would very likely to have transpired if the Prosecutor who worth his salt did the cross-examination properly. And then the Defendant could be properly nailed.
LW
Some food for thought, please see below.
刪除LW
Phipson on Evidence (17th ed, 2010)
Para 28-13
It is the purpose for which an out-of-court statement is tendered as evidence that determines whether or not it is hearsay: "there is no such thing as hearsay evidence, only hearsay uses".
"The classic classroom teaser posits a witness who testifies that he spoke by telephone with his brother in London, who said, 'It is raining in London'. To the professor's query as to whether that brotherly utterance is hearsay, the only intelligent answer is 'I don't have the foggiest'. It depends on the purpose for which the statement is offered. If it is offered to prove that at a given time it was raining in London, it is, of course, hearsay. If it is offered to prove that at a given time the brother was alive and able to speak, it is, with equal certainty, non-hearsay. The first purpose needs the brother to be shown to be trustworthy. The second purpose is indifferent to trustworthiness, and the hearsay rule is only designed to guarantee trustworthiness."
Para 28-20
Statements relevant to the state of mind of the person addressed.
In Subramaniam v Public Prosecutor the accused was charged with illegal possession of ammunition. His defence was that he had been captured by terrorists and was acting under duress. The Privy Council held that the trial judge had wrongly excluded his evidence of threats by the terrorists and quashed the conviction pointing out that what mattered was not whether the threats had been genuine but whether the accused had believed them.
"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement."
For the same reason that the threats uttered in Subramaniam were original evidence, words spoken to the accused by the deceased shortly before the deceased's murder are original evidence when offered to support a defence of provocation.
Para 28-21
Statements that show the declarant's state of knowledge.
…
In the leading English case of R. v Blastland the accused was charged with the buggery and murder of a 12-year-old boy. His defence was that although he had attempted to bugger the boy, a third party had been responsible for the murder. At his trial he was not permitted to call witnesses to testify that before the boy's body was discovered a third party (who had at one time confessed to the crime) had said that a boy had been murdered. The trial judge described this as "an implied admission of the knowledge of the crime". Lord Bridge recognised that a statement made to a witness by a third party is not excluded by the hearsay rule when put in evidence to prove the defendant's state of knowledge but in this instance the House of Lords decided that the third party's awareness that the boy was dead was not of "direct and immediate relevance to an issue which arises at the trial". Lord Bridge said:
"[T]he admissibility of a statement tendered in evidence as proof of the maker's knowledge … must always depend on the degree of relevance of the state of mind sought to be proved to the issue in relation to which the evidence is tendered."
It has been suggested that the test of "direct and immediate relevance" is too demanding in the context of defence evidence but when the evidence is offered by the prosecution a high standard of relevance guards against the risk that more weight may be attached to the evidence than it deserves.
Thank you all for the teaching. In that case I should not withdraw the blogs so that people can see these comments and my mistake. I am indebted to you all.
刪除I am not trying to be annoyingly long winded. It is only for discussion. I quote this from para 13:
刪除裁判官指「上訴人對於Anna的背景資料一概不知，甚至連Anna有沒有洗碗的工作經驗也不清楚」[3]，就相當可能來自這個錯誤、所產生的印象。（其實裁判官在這點也有錯：上訴人和DW3都曾供稱知道Anna有這方面的經驗。）
Do you think this part of the judgement is correct? My question is Miranda said the appellant had no knowledge whatsoever about Anna's background but Pang J said she faulted because the appellant and DW3 testified that they knew. Do you think Pang J got mixed up as well. He virtually accepted as a fact they knew about Anna instead of heard what Anna claimed.
It's still not hearsay mate.
刪除The magistrate was only talking about the Defendant's subjective knowledge about Anna (i.e. what the Defendant knew from the conversations). Likewise, Pang J was only talking about the Defendant's subjective knowledge about Anna (i.e. what the Defendant knew from the conversations).
Neither of them was talking about the objective credentials of Anna because the charge was not about that.
Anna could have lied to the Defendant. Doesn't matter. Anyone could have lied to anyone. Any document could be a forgery. Even if you hire an independent investigator to do a background check, that investigator can also lie to you. The key is what the Defendant believed at the time and whether it was a reasonable belief.
It would only be hearsay if the focus was not on the Defendant's subjective knowledge, but on Anna's objective credentials.
Anna's objective credentials have no relevance here. It is what the Defendant claimed to have heard (and claimed to have believed) that matters.
If Anna was charged with "driving whilst disqualified", then her objective credentials (whether she was qualified or disqualified) would have been relevant.
If the Defendant was charged with having unlawful sexual intercourse with a girl under the age of 13 and the girl in question was Anna, then whether Anna was in fact under 13 would have been relevant.
Not the case here.
Pang J was just saying it was wrong for the magistrate to have found, as a fact, that the Defendant knew nothing about Anna, when the evidence was to the contrary, namely, that they believed (rightly or wrongly) that Anna had relevant experience because Anna told them so and they believed her.
Dear Bill,
刪除Pang J said "其實裁判官在這點也有錯：上訴人和DW3都曾供稱知道Anna有這方面的經驗".
For the sake of discussion, assuming had the learned Magistrate not stopped Deft/DW3, they would have testified that during the job interviews Anna told them she was a HK resident aged 99 and had been washing dishes for 66 years (and said nothing more), which formed the basis of Deft/PW3’s knowledge/beliefs as to Anna's background and working experiences.
Assuming both Deft/PW3 asserted to the Court that they knew Anna's background and her job experiences, but without the opportunities of explaining the basis of their knowledge/beliefs (i.e., the “hearsay” stuff).
We don't have the full transcript, and we can only guess. My guess is the learned Magistrate's ruling that Deft "對於Anna的背景資料一概不知，甚至連Anna有沒有洗碗的工作經驗也不清楚" could have come from Deft's answers under cross-examination. The Prosecutor might have asked Deft questions relating to his understanding of Anna's background/job experiences that were not within the ambit of the alleged job interviews, for examples, "do you know where did Anna live?", "do you know who was her previous employer?", “do you know her salary in her last job?” ("the X-Qs"). Assuming Deft could not answer the X-Qs, the learned Magistrate might have formed the impression that Deft "對於Anna的背景資料一概不知，甚至連Anna有沒有洗碗的工作經驗也不清楚". But had the learned Magistrate allowed Deft/DW3 to give evidence as to their conversations with Anna during the job interviews, she might not necessarily come to that conclusion because she would be in a position to know that Deft's inability to answer the X-Qs was because the answers to the X-Qs did not come up in the job interviews, so Deft could not know them.
That, in my view, was the lurking doubt resulting from the erroneous exclusion of Deft/DW3's evidence concerning their conversations with Anna. Thus, Pang J said "雖然在某程度上得到了減輕（主控在盤問時問到Anna的若干資料），但它的發生，卻始終令人難以肯定，上訴人的說法已全面地得到應有的展述。"
p.s., to 匿名 above, please leave your initials/pseudonym for better ID, thanks.
LW
Thanks. The anonymous above you was involved in the case himself. He knows more than the reading of the judgment and he thoroughly thought about the case beforehand. I asked the residual question to find out who he is.
刪除Anyway I learn a lot. Profusely grateful to you all.
No no no no no... I was not involved in the case. I just happened to know the law on this inside out because I studied it. The names of the lawyers involved are published. I am not one of them and I don't know any of them. Don't get this wrong! :)
刪除"The Anonymous Above"
I respect anonymity. Haha this coincidental knowledge of the law and the case in minute detail suggests otherwise. Anyway, thanks. If you happen to know the people involved inside out, send my regards to Selwyn.
刪除If you are really interested in the law in this area, and why Pang J was plainly right, just read R v Blastland [1986] AC 41 (Eng. HL) and all cases that cited it :)
回覆刪除"The Anonymous Above"
Thanks. I will read it on the plane.
回覆刪除