8. What is hearsay?

8. What is hearsay?

Hearsay means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated. In other words, hearsay is (i) an out-of-court statement not made by a person while giving oral evidence in Court, and (ii) adduced in this Court to prove the truth of its contents.

Rule of hearsay

Hearsay is an exclusionary rule in the law of evidence. Relevant evidence, which is hearsay, is inadmissible in criminal proceedings. The rule applies to both the prosecution and the defence.

Examples of hearsay

An oral assertion at the scene is hearsay. For example, a victim of assault is not allowed to testify that, after she was hit, she heard a bystander shouted “the man who hit you went into the room”. The proper way is for the prosecution to identify the bystander and call him or her to testify orally as to his or her observation at the time.

An assertive conduct can also be hearsay. In a similar situation, the victim is also not allowed to testify that, after she asked “who hit me”, a bystander pointed at the defendant. Although it was not technically a statement, the pointing of the finger constitutes an assertion that the defendant was the person who hit the victim. Similarly, the proper way is to identify the bystander and call him to testify orally as to his or her observation at the time.

Written or printed documents, if adduced to prove the truth of its contents, are also hearsay. For example, a bag of coffee beans printed with the word “product of Brazil” cannot be adduced to prove that the coffee beans were actually produced in Brazil.

What is not hearsay?

As the definition suggests, the statement or assertive conduct will only be excluded as hearsay if they are adduced to prove the truth of its content. In other words, if they are adduced for other purposes, they are not to be regarded as hearsay.

For example, a bag of coffee beans printed with the word “product of Brazil” may be admissible if it is adduced to prove that the seller misrepresented the product’s origin, e.g. if the coffee beans were actually a product of Vietnam. This is particularly common in cases involving the Trade Descriptions Ordinance, Cap.362.

Further, in a false accounting case, accounting records can be admissible if they are adduced to prove the act of false accounting. They cannot be adduced to prove the existence of the actual fund flow in the company as shown in those accounting records.

Another common example in the modern days is the use of WhatsApp and WeChat records. They are obviously statements made out of court. However, there are consistent authorities which held that if they are adduced only for the purpose to establish the state of mind of the participants in the conversations, they are not adduced to prove the truth of its content, and therefore not hearsay. 

Reason for the hearsay rule

The most important rationale for the hearsay rule is reliability. A statement made by someone else other than the person testifying in Court is not the best evidence and is not delivered on oath. The truthfulness and accuracy of the words spoken cannot be tested by cross-examination, and cannot be assessed by observing the demeanour of the person when those words are spoken.

Another rationale is that there is a long-established principle of the common law that the defendant in a criminal trial should have the right to confront witnesses accusing him of the offence. It is a matter of fairness to the defendant and the criminal justice system.