EVIDENCE ORDINANCE, 1889
Title
EVIDENCE ORDINANCE, 1889
Description
No. 2 of 1889.
An Ordinance to consolidate the law of evidence.
[18th January, 1889.]
1. This Ordinance may be cited as the Evidence Ordi-
nance, 1889.
21. In this Ordinance,
(a) Bank means any corporation, company, or society
established by charter or under or by virtue of any Act of
Parliament or Ordinance, lawfully carrying on the business
of bankers, or any foreign banking company carrying on
business in this Colony and recognised as such for the
purposes of this Ordinance by an order of the Governor in
Council published in the Gazette.
(b) Banker's book includes any ledger, day book, cash
book, account book, or any other book,used in the orinary
business of the bank.
* As amended by Law Rev. Ord., 1923.
(c) The court: includes the Chief Justice and any other
judge, also every magistrate, justice, officer of any court,
commissioner, arbitrator, or other person having, by law or
by consent of parties, authority to hear, receive, and examine
evidence with respect to or concerning any action, suit, or
other proceeding civil or criminal, or with respect to any
matter submitted to arbitration or ordered to be inquired
into or investigated under any commission.
PART I.
ADMISSIBLE WITNESSES AND EVIDENCE.
3. The folldwing persons only shall be incompetent to give
evidence in any proceedings:-
(1) children under seven years of age unless they appear
capable of receiving just impressions of the facts respecting
which they are examined and of relating them truly; and
(2) persons of unsound mind, who, at the time of their
examination, appear incapable of receiving just imprssions
of respecting which they are exainined or of
relating in truly; and no person who is known to be of
unsound shall be liable to be summoned as a witness
without the consent previously obtained of the court or person
before whom his attendance is required.
4. In all proceedings before the court, the parties and the
husbands and wives of the parties thereto, and the persons
in whose behalf any proceedings may be brought, or
instituted, or opposed, or defended, shall except as herein-
after excepted, be competent and compellable to give
evidence, either viva voca or by deposition, according to the
practice of the court, on behalf of either or any of the
parties to the proceedings.
5. Nothing in this Ordinance shall render any husband
competent or compellable to give evidence for or against his
wife, or any wife competent or compellable to give evidence
or against her husband, in any criminal proceedings.
* But see No. 14 of 1906, ss. 2, 5.
6. In no proceedings shall a husband be compellable, to
disclose any communication made to him by his wife during
the marriage nor shall a wife be compellable to disclose
any communication made to her by her husband during the
marriage.
7. No person offered as a witness any proceedings shall
be excluded by reasion of incapacity from crime or interest
from giving evidence, either in person or by deposition,
according to the practice of the court, on the trial or hearing
of any proceedings or at any stage thereof.
8. Nothing in this Ordinance shall render any person who
in any criminal proceedings is charged with an indictable
offence or any offence punishable on summary conviction
compellable to give evidence for or against himself, or shall
render any person in any proceedings compellable to answer
any question tending to criminate himself.
9. In any proceedings instituted in consequence of adultery,
the parties to such, proceedings and the husbands and wives
of such parties shall be cornpetent to give evidence in
relation thereto : Provided that no such witness, whether a
party to the proceedings or not, shall be liable to be asked
or bbund to answer any question tending to show that he or
she has been guilty of adultery, unless such witness has
already given evidence in the same proceedings in disproof
of his or her alleged adultery.
10. The parties to any action for breach of promise of
marriage shall be competent to give evidence in such action
Provided always that no plaintiff in any action for breach of
proimse of marriage shall recover a verdict unless his or her
testimony is corroborated by some other material evidence
in support of such promise.
11. A party producing a witness in any proceedings shall
not be allowed to impeach his credit by general evidence of
bad character, but he may in case the withness, in the opinion
of the court, proves adverse, contradict him by other
evidence or, by leave of the court, prove that he has made at
other times a statement inconsistent with his present
testimony, but, before such last-mentioned proof can be given,
the circumstances of the supposed statement, sufficient to,
designate the particidar occasion, must be mentioned to the
witness, and he must be asked whether or not he has made
statement.
12. If a witness in any proceedings, on cross-examination
as to a former statement inade by him relative to the subject-
matter of the proceedings and inconsistent with his present
testimony, does not distinctly admit that he has made such
statement, proof may be given that he did in fact make it;
but, before such proof can be given, the circumstances of the
supposed statement, sufficient to designate the particular
occassion, must be mentioned to the witness, and he must be
asked whether or not he has made such statement.
13. A witness in any proceedings rnay be cross-examined
as to previous statement made by him in writing or reduced
into writing, relative to the subject-matter of the proceedings,
without such writing being shown to him; but if it is
intended to contradict such witness by the writing, his atten
tion must, before such contradictory proof can be be
called to those parts of the writing are to be used for
the purpose of so contradicting him: Provided always that
it shall be competent for the court, at any time during the
trial or hearing of the proceedings, to require the production
of the writing for its inspection, and the court may there
upon make such use of it for the purposes of the trial or
hearing as it may think fit.
14. A witness in any proceedings may be questioned as to
whether he has been convicted of any felony or misdemeanor,
on being so questioned, if he either denies or does not
admit the fact or refuses to answer, it shall be lawful for the
cross-examining or opposite party to prove such conviction,
and in such case, and also whenever it may be necessary to
the trial and conviction or acquittal of any person
charged with an indictable offence, a certificate, record, or
extract of the conviction containing the substance and effect
only (omitting the formal part) of the conviction for such
offence, purporting to be signed by the clerk of the court or
other officer having the custody of the records of the court
where the offender was convicted, or acquitted, or by the
deputy such clerk, or officer, shall, on proof of the identity
But see No. 14 of 1906, s. 2 (f).
of the person, be sufficient evidence of such conviction or
acquittal, without proof of the signature or official character
of the person appearing to have signed the same.
15. It shall not be necessary in any proceedings to prove
by the attesting witness any instrument to the validity of
which attestation is not requisite; and such instrument may
be proved by admission or otherwise as if there had been no
attesting witness thereto.
16. Comparison of a disputed writing with any writing
proved to the satisfaction of the court to be genuine shall be
permitted to be made by witnesses in any proceedings, and
such writings, and the evidence of witnesses respecting the
same, may be submitted to the court and to the jury, if any,
as evidence of the genuineness or otherwise of the writing
in dispute.
PART II.
ADMISSIBLE DOCUMENTS.
17. Whenever any book or other document is of such a
public nature as to be admissible in evidence on its mere
production from the proper custody, and no enactment exists
which renders its contents provable by means of a copy, any
copy thereof or extract therefrom shall be admissible in
evidence in the court, provided it is proved to be an examined
copy or extract or provided it purports to be signed and
cetified as a true copy or extract by the officer to whose
custody the original is entrusted, and which officer is hereby
required to furnish such certified copy or extract to any person
applying at a reasonable time for the same, on payment of a
reasonable sum for the same, not exceeding twenty-five cents
for every folio of ninety words.
18. Whenever, by any enactment, any certificate, official
or public document, or proceeding of any corporatio or joint-
stock or other company, or any certified copy of any document,
by-law, entry in any register or other book, or of any other
proceeding is receivable in evidence of any particular in the
court or before the Legislative Council or any committee
thereof, the same shall respectively be admitted in evidence,
provided they respectively purport to be sealed or impressed
with a stamp, or sealed and signed, or signed alone, as
required, or impressed with a stamp, and signed, as directed
by the enactment, without any proof of the seal or stamp,
where a seal or stamp is necessary, or of the signature or of
the official character of the person appearing to have signed
the same, and without any further proof thereof, in every
case in which the original record could have been received in
evidence.
19. Every oath, affidavit, and notarial act, administered,
sworn, or done, under or in accordance with the provisions
of section 6 of the Commissioners for Oaths Act, 1889, as
amended by section 2 of the Commissioners for Oaths Act,
1891, shall be as eflectual as if duly administered, sworn, or
done by or before any lawful authority in the Colony.
20. Subject to the provisions of this section, a copy of an
entry in a banker's book shall in all proceedings be received
as prima^ facie evidence of such entry and of the matters,
transactions, and accounts therein recorded:
(1) Provided that such book was, at the time of, making
entry, one of the ordinary books of the, bank, and the
entry was made in the usual and ordinary course of business,
and the book is in the custody or control of the bank; such
proof may be given by a partner or officer of the bank orally
or by an affidavit sworn before any person authorised to take
affidavits;
(2) Provided, also, that it is proved, orally or by affidavit
worn as aforesaid, by some person, who has examined the
copy with the original entry, that the copy has been examined
with the original entry and is correet; and
(3) Provided, further, that a banker or officer of a bank
shall not, any proceedings to which the bank is not party,
be compelled to produce any banker's book the contents of
which can be proved under this Ordinance, or to appear as a
witness o prove the matters, transactions, or accounts therein
recorded except by order of a judge made for special cause.
21.-(1) On the application of any party to any procedings,
the court or a judge may order that such party be at liberty
to inspect and take copies of any entries in a banker's book
for any of the purposes of such proceedings.
* As amended by No. 23 of 1915.
(2) An order under section may be made either with
or without summoning the bank or any other party, and shall
be served on tho bank three clear days before the same is to
be obeyed, unless the court or judge otherwise directs.
(3) The costs of and application to the court or judge
under or for the purposes of this section, and the costs of
anything done or to be done under an order of the court or
judge, made under or for the purposes of this section, shall
be in the discretion of the court or judge, who may order
the same or any part thereof to be paid to any party by the
bank, where the same have been occasioned by default or
delay on the part of the bank.
(4) Any such order against a bank may be enforced as if
the bank were a party to the proceeding.
22. General holidays, within the meaning of the Holidays
Ordinance, 1912 shall be excluded from the computation of
time under sections 20 and 21.
23. All proclamations, treaties, and other acts of state of
any foreign state or of any British possession, and all
judgments, decrees, orders, and other judicial proceedings of
any court of justice or any consulate in any foreign state or
in any British possession, and all affidavits, pleadings, and
other legal documents filed or deposited in any such court or
consulate may be proved in the courts of this Colony either
by examined copies or by copies authenticated as hereinafter
mentioned: that is to say, if the document sought to be
proved is a proclamation, treaty or other act of state, the
authenticated copy to be admissible in evidence must purport
to be sealed with the seal of the foreign, state or British.
possesion to which the original document belongs, and if
the document sought to be proved is a judgment, decree,
order, or other judicial, proceeding of any court of justice or
any consulate in any foreign state or in any British posses-
sion, or an affidavit, pleading, oe other legal document filed
or deposited in any such court, or consulate, the authenticated
copy to be, admissible in evidence must purport either to be
sealed with the seal of such court or consulate, or, in the
event of such court having no seal, to be signed by the judge
or, if there are more judges than one, by any one of the
judges of such court, and such judge shall attach to his
* As amended by Law Am. Ord., 1923.
signature a statement in writing on the said copy that the
court of justice whereof he is a judge has no seal; but if
of the aforesaid authenticated copies purport to be sealed
or signed as hereinbefore respectively directed, the same shall
respectively be admitted in evidence in every case in which
the orignial document could have been received in evidence,
without any proof of the seal, where a seal is necessary, or of
the signatrue, or of the truth of the statement attached
thereto, where such signature and statement are necessary,
of the judicial character of the person appearing to have
made such signature and statement.
23A.-(1) Copies of Acts, Ordinalices and statutes passed
by the legislature of any British possession, and of orders,
regultions, and other instruments issued or under the
authority of any such Act, Ordinance, or statute, if purporting
to be printed by the Government printer, shall be received
in evidence by all courts in this Colony without any proof
being given that the copies were so printed.
(2) Every person who prints any copy or pretended copy of
any such Act, Ordinance, statute, order, regulation, or instru-
ment which falsely purports to have been printed by the
Government printer, or tenders in evidence any such copy
or pretended copy which falsely purports to have been so
printed knowing that it was not so printed, shall be liable, to
imprisonment for any term not exceeding twelve months.
(3) In this section, Government printer means, as
repects ally British possession, the printer purporting to
be the printer authorised to print the, Acts, Ordinances, or
statutes of the legislature of that possession, or otherwise to
the Government printer of that possession.
(4) The Governor in Council may by order extend this
section to Cyprus and to any British protectorate, and when
so extended this section shall apply as if Cyprus or the
protectorate were a British possession, and with such other
necessary adaptations as may be made by the order.
24.-(1) All answers to interrogatories, disclaimers,
examinations, affidavits and attestations of honour, and all
other documents required to be sworn in causes or matters
* As amenaed by Law Am. Ord., 1923.
+ On the outbreak of war with Turkey in 1914, the island of Cyprus was annexed
to the British Crown by Order in Council of the 4th November, 1914.,
depending in the Supreme Court, and also acknowledgments
required for the purpose of enrolling any deed in the said
court, shall and may be sworn, and taken in England, Scotland,
or Ireland, or the Channel Islands, or in my other colony or
place under the dominion of His Majesty before any court,
judge, notary public, or person lawfully authorised to
administer oaths, in such country, colony, or place respec-
tively, or before any of His Majesty's consular officers in any
place out of, His Majesty's dominions.
(2) The judges and officers of the Supreme Court shall
take judicial notice of the seal or signature, as the case may
be, of any such court, judge, notary public, person, or
consular officer attached, appended, or subscribed to any
document as aforesaid.
25.-(1) Any document purporting to have affixed, im-
pressed, or subscribed thereon or thereto the seal and
signature of any British ambassador, envoy, minister, charge
d'affaires, secretary of embassy or of legation, or consular
officer in testimoliy of any such oath, affidavit, or act having
been administered, sworn, had or done by or before him
under the Acts mentioned, in section 19 shall be admitted
evidence without proof of any such seal and signature or of
the official character of such person.
(2) In this section, consular officer includes every
consul-general, consul, vice-consul, pro-consul, consular agent,
acting conul-general, acting consul, acting vice-consul, and
acting consular agent.
26. In civil proceedings-
(1) entries in books of accouht kept in the course of
business, with such a reasonable degree of regularity as may
be satisfactory to the court, shall be admissible in evidence,
whenever they refer to a matter into which the court has to
inquire,but shall not alone be sufficient evidence to charge
.any person with liability;
(2) the Hongkong Government Gazette and any Govern-
ment Gazette of any British possession may be proved by
the produdtion thereof;
* As amended by No. 23 of 1915.
(3) all proclamations, acts of state, whether legislative or
executive, nominations, appointments, and other official com-
munications of the government appearing in any such
Gazette may be proved by its production;
(4) the cout may, on matters of public history, literature,
science, or art, refer, for the purposes of evidence, to such
published books, maps, or charts as the court may consider
to be of authority on the subject to which they relate;
(5)-(a) books printed or published under the authority
of the Government of a foreign country, and purporting, to
contain the statutes, code, or other written law of such
country, and also printed and published books of reports of
decisions of the courts of such country, and books proved to
be commonly admitted in such courts as evidence of the law
of such country, shall be admissible as evidence of the law of
such foreign country; and
(b) maps made under the authority of any Government or
of any public municipal body, and not made for the purpose
of any litigated question,
shall prima facie be deemed to be correct, and shall be
admitted in evidence without further proof.
27. All documents whatsoever legally and properly filed
or recorded in any foreign court of justice or consulate
according to the law and practice of such court or consulate,
and all copies of such documents, shall be admissible in
evidence in the courts of this Colony on being proved in
like manner as any documents filed or recorded in any
foreign court are provable under this or any other Ordinance;
and all documents whatsoever so filed or recorded in any
foreign court or consulate, and all copies of such documents,
shall, when so proved and admitted, be held authentic and
effectual for all purposes of evidence as the same would be
held in such foreign court or consulate.
28. All courts, judges, magistrates, justices of the peace,
officers of the courts, commissioners acting judicially, and
other judicial officers shall take judicial notice of the
signature of the judges, provided such signatrue is attached
or appended to any judgment, decree, order, certificate, or
othe judicial or official document.
PART III.
DEPOSITIONS.
29. Whenever it is proved be the Oath of any credible
witness, or in any other manner whatsoever it appears, to the
satisfaction of the Supreme Court, that the Attorney Gleneral,
or other person conducting a prosecution on behalf of the
Crown, is unable to produce at the trial any person as a
witness, in bonsequence of the death of such person, or of his
absence from the Colony, or of the impracticability of serving
process on him, or of his being so ill as not, to be able to
travel, or of his beiiig insane, or of his being kept out of the
way by means of the procurement of the person accused, or
of his being resident in a country the laws of which prohibit
his absenting himself therefrom, or which he refuses to
quit after application made to him in that behalf or because
he cannot be found at his last-known place of residence in
the Colony; and if it also appears from the certificate of the
magistrate or other officer hereinafter mentioned that such
person was examined before a magistrate, or other officer to
whom the cognizance of the offence appertained, and
that the usual oath was administered to him prior to his
examination, and that the examination was taken in the
presence of the person accused, and that he, or his counsel
or solicitor, had a full opportunity of cross-examining such
person, and that the evidence so taken was reduced into
person, and that the evidence so taken was reduced into
writing and read over to and signed by him and also
by the magistrate or other officer as aforesaid, so much of
the evidence as would have been admissible, if the said person
had been prodticed and examined before the said court in the
Ordinaiy manner, shall be read and received in evidence.
30. The production from the custody of the proper officer
of the certificate referred to in section 29 shall be sufficient
proof of the signature of such magistrate or other officer
aforesaid, unless it is proved that such examination was not
taken in`maliner aforesaid or was not in fact signed by
person examined or by the magistrate or officer aforesaid
purporting to sign the same.
31. No objection to the reception in evidence of the
examination of any person shall be permitted to prevail on
the ground that the particular esamination of such person
* As amended by No. 20 of 1922.
was not signed by the magistrate or other officer as aforesaid,
if it appears, in manner aforesaid; that the depositions wherein
such examination was included were so signed.
32.-(1) Whereas it may happen that a person, who is
dangerously ill and unable to travel, may be able to give
material, and important information relating to an indictable
offence or to a person accused thereof, and it is desirable, in
the interests of truth and justice, that means should be
provided for prepetuating such testimony and for rendering
the same available in cases of necessity:-
Whenever it is made to appear, to the satisfaction of any
magistrate or justice of the peace, that any person who is
dangerously ill and unable to travel, is able and willing to
give mateial information relating to an inductable offence
or to a person accused thereof, it shall be lawful for the
said magistrate or any justice of the eace to tak e in writing
his statement upon oath, and such magistrate or justice
shall threeupon subscribe the same, and shall add thereto
by way of caption a statement of his reason for taking the
same, and of the day and place when and where the same
was taken, and of the names of the persons, if any, assisting
at the taking thereof, and, if the same relates ot any offence
for which any accused person is already committed or bailed
to appear for trial, shall transmit the same with the said
addition to the Registrar of the Supreme Court, and in all
other cases to the magistrates; clerk, who are respectively
required to preserve the same and file it for record; and if
afterwards, on the trial of any offender or offnece to which
the same may relate, the person who made the said
statement is proved to be dead, or it it is proved that there
is no reasonable probability that such person will be able
to attend and give evidence at the trial, it shall be lawful to
read such statement in evidence, either for or against the
person accused, without further proof thereof, if the same
purports to be signed by the magistrate of justice by or
before whom it purports to be taken, and provided it is
proved, to the satisfaction of the court, that reasonable
notice of the intention to take such statement has been
served on the person (whether prosecutro, or person accused)
against whom it is proposed to be read in evidence, and that
such person, or his counsel or solicitor, had or might have
* As amended by No. 23 of 1915, No. 20 of 1922 and Law Am. Ord., 1923.
had, if he had chosen to be present, full opportunity of
cross-examining the person who made the same.
(2) No such statement shall be rejected on the ground of
any failure to comply with any of the provisions of sub-
section (1) with regard to the notice or the caption unless
the court is of opinion that the person accused was sub-
stantially prejudiced by such failure.
33. Whenever a prisoner in actual custody has been
served with or has received notice, of an intention to take
such statement as is mentioned in section 32, the judge
or magistrate by whom the prisoner was committed, or the
visting justices of the prison in which he is confined, may,
by an order in writing direct the gaoler having the custody
of the prisoner to convey him to the place mentioned in the
said notice for the purpose of being present at the taking of
the statement; and such gaoler shall convey the prisoner
accordingly, and the expenses, if any, of such conveyance
shall be paid out of the Treasury.
[ss. 34 and 35, rep. No. 8 of 1912; ss. 36 and 37, rep.
No. 42 of 1912.]
PART 1V.
COMMISSIONS TO TAKE EVIDENCE.
38.- (1) Where, on an application for this purpose, it is
made to appear to the court or judge that any of His
Majesty's courts or tribunals of competent jurisdiction outside
the Colony has duly authorised, by commission, order, or
other process, the obtaining the testimony in or in relation
to any civil proceedings pending in or before such court or
tribunal of any witness out of the jurisdiction of such court or
or tribunal and, within the jurisdiction of the Supreme Court,
it shall be lawful for the, court or judge to order the
examination before the person appointed, and in manner and
form directed by such commission, order, or other process as
aforesaid, of such witness accordingly, so far as not repugnant
to the laws and practice of the Colony.
(2) It shall be lawful for the court or judge, by the same
or any subsequent order, to command the attendance of any
person to be anmed in such order for the purpose of being
examined or of producing any writings or other documents.
* As amended by Law REv., Ord., 1923.
to be mentioned in such order, and to give all such directions
as to the time, place, and manner of such examination and
all other matters connected therewith as may appear
reasonable and just.
(3) Any such order may be enforced, and any disobedience
thereof punished, in like manner as in case of an order made
by the court or judge in any action or other proceeding.
39.-(1) Where, on an application by summons for this
purpose, it is made to appear to the court or judge that any
court or tribunal of competent jurisdiction in a foreign
country, before which any civil or comnercial or criminal
proceedings are pending, is desirous of obtaining the
testiirioiiy in relation to such proceedings of any witness
within the jurisdiction of the Supreme Court, it shall be
lawful for the court or judge to order the examination upon
oath, upon interrogatories, or otherwise, before any person
named in such order, of such witness accordingly.
(2) It shall be lawful for the court or judge by the same
or any subsequent order, to command the attendance of any
person to be named in such order for the purpose of being
examined or of producing any writings or other documents
to be mentioned in such order, and to give, all such directions
as to the time, place, and manner of such examination and
all other matters conncected therewith as may appear reason-
able and just.
(3) Any such order may be enforced in like manner as all
order made by the conrt or judge in any action or other
proceediiig.
40. A certificate under the hand of the ambassador,
minister or other diplomatic agent of any foreign power,
received as such by His Majesty, or in case there be no such
diplomatic agent, then of the consul-general or consul of my
such foreign power at London, received and, admitted as
such by His Majesty or of the consul-general, consul, or vice-
consul, of any such foreign power in the Colony, received and
admitted as such, that any matter in relation to which an
application is made under this Ordinance is a civil, or com-
mercial, or criminal matter pending before a court or tribunal
in the country of which he is the diplomatic agent or consul
having jurisdiction in the matter so pending, and that such
court or tribunal is desirous of obtaining the testimony of
the witness to whom the application relates, shall be evidence
of the matters so certified ; but where no such certificate is
produced, other evidence to that effect shall be admissible.
41. When, under ally such commission, order, or other
process as is mentioned in section 38, or under any order
made under section 39, any witness is to be examined, such
witness shall be examined upon oath, affirmation and declara-
tion, or declaration alone or otherwise according to the law
and practice of the Colony: Provided always-
(1) that every person whose attendance is required under
any such commission, order, or other process shall be
entitled to the like conduct money and payment of expenses
and loss of time as on attendance at the trial or hearing of
and loss of time as on attendance at the trial of hearing of
any action or other proceeding before the Supreme Court;
(2) that every person examined under any such commis-
sion, order, or other process shall have the like right to refuse
to answer questions tending, to criminate himself and all
such other questions to which he would be entitled to object
in similar proceedings before the Supreme Court; and
(3) that no person shall be compelled to produce, under
any such order as aforesaid, any writing or other document
that he would not be compellable to produce at the trial or
the hearing of any action or other proceeding before the
Supreme Court.
PART V.
OATHS, AFFIRMATIONS, ETC.
42. The court is hereby empowered to administer an oath
to all such persons as are legally called or appear voluntarily
before it.
43.-(1) Any oath may be administered and taken in the
form and manner following:-
The person taking the oath shall hold the New Testament,
or, in the case of a Jew the Old Testament, in his uplifted
hand, and shall say or repeat after the officer administering
the oath the words I swear by Almighty God that
followed by the words of the oath prescribed by law.
* As amended by No. 20 of 1922 and Law Rev. Ord., 1923.
(2) The officer shall, unless the person about to take the
oath voluntarily objects thereto, or is physically incapable of
so taking the oath, administer the oath in the form and
manner aforesaid without question:
Provided that, in the ease of a person who is neither it
Christian nor a Jew, the oath may be administered in any
manner which is now lawful.
(3) In this section officer includes evey person au-
thorised to admirtister oaths.
44. If any person to whom an oath is administered desires
to swear with uplifted hand, in the form and manner in
which an oath is usually adiministered in Scotland, he shall
be permitted so to do, and the oath shall be administered to
him in such form and manner without further question.
45. Where an oath has been duly administered and
taken the fact that the person to whom the same was
administered had, at the time of taking such oath, no
religious belief, shall not for any purpose affect the validity
of such oath.
46.-(1) Every person upon objecting to being sworn,
and stating, as the ground of such objection, either that he
has no religious belief, or that the taking of an oath is
contrary to his religious belief, shall he permitted to make
his solemn affirmation instead of taking an oath in all places
and for all, purposes where an oath is or shall be by
law.
(2) Every person who is neither a Christian nor a Jew shall
be permitted to make his solemn affirmation instead of taking
oath in all places and for all purposes where an oath is or
shall be required by law.
(3) Every such affirmation shall be as follows:-
I, A.B., do solemnly, sincerely, and truly declare and affirm,
and then proceed with the words of the oath prescribed by
law, omitting any words of imprecation or calling to
witness.
* As amended by No. 20 of 1922 and Law Rev. Ord., 1923.
+ As amended by No. 20 of 1922, No. 21 of 1922 and Law Rev. Ord., 1923.
(4) Every affirmation in, writing shall commence I,
, of do solemnly and sincerely
and the form in lieu of jurat shall be Affirmed a!
, this day of ,19
Before me.
(5) Every affirmation shall be of the same force and effect,
as an oath in the usual form.
47. If any person taking all oath or making an affirmation
is ignorant of the English language the oath or affirmation
shall be, interpreted to him by a sworn interpreter.
PART VI.
MISCELLANEOUS.
48. Whenever any forged document has been admitted in
evidence by virtue of this Ordinance, the court or the person
who has admitted the same, may, at the request of any party
against whom the same is so admitted in evidence, direct
that the same shall be impounded and be kept in the custody
of such officer of the court or other proper person, for such
period, and subject to such conditions as to the court or
person may seem meet.
49. In any prosecution for murder or manslaughter any
medical notes or report by any Government medical officer
which purport to relate to the deceased shall be admissible
in evidence upon Proof of the handwriting of such Grovern-
ment medical officer, and upon proof of his death or absence
from the Colony.
50. On the hearing of any indictable offence it shall be
the duty of the magistrate to take down in the minute of
proceedings any material statement or observation made,
and any evidence given, by the accused in the course
of the proceedings, and, without prejudice to any other
method of proof, any such statement or observation or
evidence so taken down shall be admissible ill evidence
against the accused on his trial upon production of the minute
of proceedings.
As amended by No. 20 of 1922, No. 21 of 1922 and Law Rev. Ord., 1923.
As amended by Law Rev. Ord., 1923.
As amended by No. 11 of 1922, No. 21 of 1922 and Law Rev. Ord., 1923.
51.-(1) It shall be lawful for the Governor or any judge
on application by affidavit, to issue a warrant or order under
his hand for bringing up any prisoner or person confined in
prison any sentence or under commitment for trial or
otherwise (except under process in any civil proceedings)
before any court, judge, magistrate, or other judicature to
make his defence or to be examined as a witness in any pro-
ceedings depending or to be inquired of or determined in or
before such court, judge, magistrate, or judicature.
(2) Such prisoner or person shall be brought under the
same care and custody, and be dealt with in like manner in
all respects as a prisoner required by any writ of habeas
corpus awarded by the Supreme Court to be brouht before
the said court to be examined as a withness in any cause or
matter depending before the said court is by law required to
be dealt with.
52. Nothing in this Ordinance shall be construed to
repeal any provislons contained in the Wills Act, 1837.
[Originally No. 2 of 1889. No. 23 of 1915. No. 11 of 1922. No. 20 of 1922. No. 21 of 1922. Law Rev. Ord., 1924.] Short title. Interpretation. 14 & 15 Vict.c. 99, s. 16. Incompetency from immature age or unsoundness of mind. Evidence of parties. 14 & 15 Vict.c. 99, s. 2; 16 & 17 Vict.c. 83, s. 1. Evidence of husband and wife. 14 & 15 Vict.c. 99, s. 3; 16 & 17 Vict.c. 83, s. 2. Privilege of husband and wife. 16 & 17 Vict.c. 83, s. 3. No incapacity from crime or interest. 6 & 7 Vict.c. 85, s. 1. Exception as to defendant in criminal proceedings. 14 & 15 Vict.c. 99, s. 3. [cf. No. 14 of 1906.] Evidence of parties and their husbands and wives in proceedings for adultery. 32 & 33 Vict.c. 68, s. 3. Evidence of parties in action for breach of promise. 32 & 33 Vict.c. 68, s. 2. Discreding a witness. 17 & 18 Vict.c. 125, s.22; 28 & 29 Vict.c. 18, s.3. Proof of contradictory statement of adverse witness. 28 & 29 Vict.c. 18, s. 4. Cross-examination as to previous staement in writing. 17 & 18 Vict.c. 125, s. 24; 28 & 29 Vict.c. 18, s. 5. Proof of conviction and previous conviction for indictable offence. 14 & 15 Vict.c. 99, s. 13; 17 & 18 Vict.c. 125, s. 25; 28 & 29 Vict.c. 18, s. 6; 24 & 25 Vict.c. 112, s. 18. Attesting witness need not be called. 17 & 18 Vict.c. 125, s. 26; 28 & 29 Vict.c. 18, s. 7. Comparison of disputed with genuine writing. 17 & 18 Vict.c. 125, s. 27. Copy of document of public nature. 14 & 15 Vict.c. 99, s. 14. Official documents. 8 & 9 Vict.c. 113, s. 1. Admissibility of notarial acts done before British diplomatic and consular officers. 52 Vict.c. 10, s. 6 (1); 54 & 55 Vict.c. 50, s. 2. Copy of entry in banker's book. 42 & 43 Vict.c. 11, ss. 3-6. Court of judge may direct copies of entries in banker's book to be taken. 42 & 43 Vict.c. 11, ss. 7, 8. Certain days not to be counterd. 42 & 43 Vict.c. 11, s. 11. Ordinance No. 5 of 1912. Proof of foreign or colonial act of state, judgment, etc. 14 & 15 Vict.c. 99, s. 7. Proof of statues of British possessions. Cyprus and protectorates. Swearing of answer, etc., in Supreme Court in England, etc. 15 & 16 Vict.c. 86, s. 22. Admissibility of document having seal and signature of British ambassador, etc. 18 & 19 Vict.c. 42, s. 3. Definition of consular officer. 52 Vict.c. 10, s. 6(1); 54 & 55 Vict.c. 50, s. 2. Proof of various matters in civil procedings. Admissibility of document filed in foreign court or consulate. Courts to take judicial notice of signature of judges, etc. 8 & 9 Vict.c. 113, s.2. Admissibility in evidence in criminal proceedings of deposition of person dead, etc. 11 & 12 Vict.c. 42, s. 17. Prima facie proof of examination having been duly taken. Objection that deposition tendered was not signed by magistrate. Power to take deposition of person dangerously ill, and not likely to recover and to make it evidence in certain events. 30 & 31 Vict.c. 35, s. 6. Provision for prisoner being present at taking of statement. 30 & 31 Vict.c. 35, s. 7. Order for examination of witnesses in the Colony in relation to action pending before British Court. 22 Vict.c. 20, s. 1. [cf. No. 3 of 1901, s. 326A.] Order for examination of witnesses in the Colony in relation to proceedings pending in foreign country. 19 & 20 Vict.c. 113, s. 1. [cf. No. 3 of 1901, s. 326A.] Effect of certificate of Ambassador, etc., as evidence in support of application. 19 & 20 Vict.c. 113, s.2. [cf. No. 3 of 1901, s. 326A.] Examination of witness under ss. 38 & 39. 19 & 20 Vict.c. 113, ss. 3, 4, 5; 22 Vict.c. 20, ss. 3, 4. Administration of oath by the court. 14 & 15 Vict.c. 99, s. 16. Normal manner of administration of oaths. 9 Edw. 7, c. 39, ss. 2, 3. Swearing with uplifed hand. 51 & 52 Vict.c. 46, s. 5. Validity of oath not affect by absence of religious belief. 51 & 52 Vict.c. 46, s. 3. Affirmation in lieu of oath. 51 & 52 Vict.c. 46, s. 1. 51 & 52 Vict.c. 46, s. 2. 51 & 52 Vict.c. 46, s. 4. Interpretation of oaths and affirmations. Impounding of forged document admitted in evidence. 8 & 9 Vict.c. 113, s. 4; 14 & 15 Vict.c. 99, s. 17. Admissibility of certain medical notes and reports. Observations and evidence of accused person before magistrate to be taken down and to be admissible at trial on production of the minute of proceedings. Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict.c. 30, s. 9. Saving as to 7 Will. 4 & 1 Vict.c. 26.
An Ordinance to consolidate the law of evidence.
[18th January, 1889.]
1. This Ordinance may be cited as the Evidence Ordi-
nance, 1889.
21. In this Ordinance,
(a) Bank means any corporation, company, or society
established by charter or under or by virtue of any Act of
Parliament or Ordinance, lawfully carrying on the business
of bankers, or any foreign banking company carrying on
business in this Colony and recognised as such for the
purposes of this Ordinance by an order of the Governor in
Council published in the Gazette.
(b) Banker's book includes any ledger, day book, cash
book, account book, or any other book,used in the orinary
business of the bank.
* As amended by Law Rev. Ord., 1923.
(c) The court: includes the Chief Justice and any other
judge, also every magistrate, justice, officer of any court,
commissioner, arbitrator, or other person having, by law or
by consent of parties, authority to hear, receive, and examine
evidence with respect to or concerning any action, suit, or
other proceeding civil or criminal, or with respect to any
matter submitted to arbitration or ordered to be inquired
into or investigated under any commission.
PART I.
ADMISSIBLE WITNESSES AND EVIDENCE.
3. The folldwing persons only shall be incompetent to give
evidence in any proceedings:-
(1) children under seven years of age unless they appear
capable of receiving just impressions of the facts respecting
which they are examined and of relating them truly; and
(2) persons of unsound mind, who, at the time of their
examination, appear incapable of receiving just imprssions
of respecting which they are exainined or of
relating in truly; and no person who is known to be of
unsound shall be liable to be summoned as a witness
without the consent previously obtained of the court or person
before whom his attendance is required.
4. In all proceedings before the court, the parties and the
husbands and wives of the parties thereto, and the persons
in whose behalf any proceedings may be brought, or
instituted, or opposed, or defended, shall except as herein-
after excepted, be competent and compellable to give
evidence, either viva voca or by deposition, according to the
practice of the court, on behalf of either or any of the
parties to the proceedings.
5. Nothing in this Ordinance shall render any husband
competent or compellable to give evidence for or against his
wife, or any wife competent or compellable to give evidence
or against her husband, in any criminal proceedings.
* But see No. 14 of 1906, ss. 2, 5.
6. In no proceedings shall a husband be compellable, to
disclose any communication made to him by his wife during
the marriage nor shall a wife be compellable to disclose
any communication made to her by her husband during the
marriage.
7. No person offered as a witness any proceedings shall
be excluded by reasion of incapacity from crime or interest
from giving evidence, either in person or by deposition,
according to the practice of the court, on the trial or hearing
of any proceedings or at any stage thereof.
8. Nothing in this Ordinance shall render any person who
in any criminal proceedings is charged with an indictable
offence or any offence punishable on summary conviction
compellable to give evidence for or against himself, or shall
render any person in any proceedings compellable to answer
any question tending to criminate himself.
9. In any proceedings instituted in consequence of adultery,
the parties to such, proceedings and the husbands and wives
of such parties shall be cornpetent to give evidence in
relation thereto : Provided that no such witness, whether a
party to the proceedings or not, shall be liable to be asked
or bbund to answer any question tending to show that he or
she has been guilty of adultery, unless such witness has
already given evidence in the same proceedings in disproof
of his or her alleged adultery.
10. The parties to any action for breach of promise of
marriage shall be competent to give evidence in such action
Provided always that no plaintiff in any action for breach of
proimse of marriage shall recover a verdict unless his or her
testimony is corroborated by some other material evidence
in support of such promise.
11. A party producing a witness in any proceedings shall
not be allowed to impeach his credit by general evidence of
bad character, but he may in case the withness, in the opinion
of the court, proves adverse, contradict him by other
evidence or, by leave of the court, prove that he has made at
other times a statement inconsistent with his present
testimony, but, before such last-mentioned proof can be given,
the circumstances of the supposed statement, sufficient to,
designate the particidar occasion, must be mentioned to the
witness, and he must be asked whether or not he has made
statement.
12. If a witness in any proceedings, on cross-examination
as to a former statement inade by him relative to the subject-
matter of the proceedings and inconsistent with his present
testimony, does not distinctly admit that he has made such
statement, proof may be given that he did in fact make it;
but, before such proof can be given, the circumstances of the
supposed statement, sufficient to designate the particular
occassion, must be mentioned to the witness, and he must be
asked whether or not he has made such statement.
13. A witness in any proceedings rnay be cross-examined
as to previous statement made by him in writing or reduced
into writing, relative to the subject-matter of the proceedings,
without such writing being shown to him; but if it is
intended to contradict such witness by the writing, his atten
tion must, before such contradictory proof can be be
called to those parts of the writing are to be used for
the purpose of so contradicting him: Provided always that
it shall be competent for the court, at any time during the
trial or hearing of the proceedings, to require the production
of the writing for its inspection, and the court may there
upon make such use of it for the purposes of the trial or
hearing as it may think fit.
14. A witness in any proceedings may be questioned as to
whether he has been convicted of any felony or misdemeanor,
on being so questioned, if he either denies or does not
admit the fact or refuses to answer, it shall be lawful for the
cross-examining or opposite party to prove such conviction,
and in such case, and also whenever it may be necessary to
the trial and conviction or acquittal of any person
charged with an indictable offence, a certificate, record, or
extract of the conviction containing the substance and effect
only (omitting the formal part) of the conviction for such
offence, purporting to be signed by the clerk of the court or
other officer having the custody of the records of the court
where the offender was convicted, or acquitted, or by the
deputy such clerk, or officer, shall, on proof of the identity
But see No. 14 of 1906, s. 2 (f).
of the person, be sufficient evidence of such conviction or
acquittal, without proof of the signature or official character
of the person appearing to have signed the same.
15. It shall not be necessary in any proceedings to prove
by the attesting witness any instrument to the validity of
which attestation is not requisite; and such instrument may
be proved by admission or otherwise as if there had been no
attesting witness thereto.
16. Comparison of a disputed writing with any writing
proved to the satisfaction of the court to be genuine shall be
permitted to be made by witnesses in any proceedings, and
such writings, and the evidence of witnesses respecting the
same, may be submitted to the court and to the jury, if any,
as evidence of the genuineness or otherwise of the writing
in dispute.
PART II.
ADMISSIBLE DOCUMENTS.
17. Whenever any book or other document is of such a
public nature as to be admissible in evidence on its mere
production from the proper custody, and no enactment exists
which renders its contents provable by means of a copy, any
copy thereof or extract therefrom shall be admissible in
evidence in the court, provided it is proved to be an examined
copy or extract or provided it purports to be signed and
cetified as a true copy or extract by the officer to whose
custody the original is entrusted, and which officer is hereby
required to furnish such certified copy or extract to any person
applying at a reasonable time for the same, on payment of a
reasonable sum for the same, not exceeding twenty-five cents
for every folio of ninety words.
18. Whenever, by any enactment, any certificate, official
or public document, or proceeding of any corporatio or joint-
stock or other company, or any certified copy of any document,
by-law, entry in any register or other book, or of any other
proceeding is receivable in evidence of any particular in the
court or before the Legislative Council or any committee
thereof, the same shall respectively be admitted in evidence,
provided they respectively purport to be sealed or impressed
with a stamp, or sealed and signed, or signed alone, as
required, or impressed with a stamp, and signed, as directed
by the enactment, without any proof of the seal or stamp,
where a seal or stamp is necessary, or of the signature or of
the official character of the person appearing to have signed
the same, and without any further proof thereof, in every
case in which the original record could have been received in
evidence.
19. Every oath, affidavit, and notarial act, administered,
sworn, or done, under or in accordance with the provisions
of section 6 of the Commissioners for Oaths Act, 1889, as
amended by section 2 of the Commissioners for Oaths Act,
1891, shall be as eflectual as if duly administered, sworn, or
done by or before any lawful authority in the Colony.
20. Subject to the provisions of this section, a copy of an
entry in a banker's book shall in all proceedings be received
as prima^ facie evidence of such entry and of the matters,
transactions, and accounts therein recorded:
(1) Provided that such book was, at the time of, making
entry, one of the ordinary books of the, bank, and the
entry was made in the usual and ordinary course of business,
and the book is in the custody or control of the bank; such
proof may be given by a partner or officer of the bank orally
or by an affidavit sworn before any person authorised to take
affidavits;
(2) Provided, also, that it is proved, orally or by affidavit
worn as aforesaid, by some person, who has examined the
copy with the original entry, that the copy has been examined
with the original entry and is correet; and
(3) Provided, further, that a banker or officer of a bank
shall not, any proceedings to which the bank is not party,
be compelled to produce any banker's book the contents of
which can be proved under this Ordinance, or to appear as a
witness o prove the matters, transactions, or accounts therein
recorded except by order of a judge made for special cause.
21.-(1) On the application of any party to any procedings,
the court or a judge may order that such party be at liberty
to inspect and take copies of any entries in a banker's book
for any of the purposes of such proceedings.
* As amended by No. 23 of 1915.
(2) An order under section may be made either with
or without summoning the bank or any other party, and shall
be served on tho bank three clear days before the same is to
be obeyed, unless the court or judge otherwise directs.
(3) The costs of and application to the court or judge
under or for the purposes of this section, and the costs of
anything done or to be done under an order of the court or
judge, made under or for the purposes of this section, shall
be in the discretion of the court or judge, who may order
the same or any part thereof to be paid to any party by the
bank, where the same have been occasioned by default or
delay on the part of the bank.
(4) Any such order against a bank may be enforced as if
the bank were a party to the proceeding.
22. General holidays, within the meaning of the Holidays
Ordinance, 1912 shall be excluded from the computation of
time under sections 20 and 21.
23. All proclamations, treaties, and other acts of state of
any foreign state or of any British possession, and all
judgments, decrees, orders, and other judicial proceedings of
any court of justice or any consulate in any foreign state or
in any British possession, and all affidavits, pleadings, and
other legal documents filed or deposited in any such court or
consulate may be proved in the courts of this Colony either
by examined copies or by copies authenticated as hereinafter
mentioned: that is to say, if the document sought to be
proved is a proclamation, treaty or other act of state, the
authenticated copy to be admissible in evidence must purport
to be sealed with the seal of the foreign, state or British.
possesion to which the original document belongs, and if
the document sought to be proved is a judgment, decree,
order, or other judicial, proceeding of any court of justice or
any consulate in any foreign state or in any British posses-
sion, or an affidavit, pleading, oe other legal document filed
or deposited in any such court, or consulate, the authenticated
copy to be, admissible in evidence must purport either to be
sealed with the seal of such court or consulate, or, in the
event of such court having no seal, to be signed by the judge
or, if there are more judges than one, by any one of the
judges of such court, and such judge shall attach to his
* As amended by Law Am. Ord., 1923.
signature a statement in writing on the said copy that the
court of justice whereof he is a judge has no seal; but if
of the aforesaid authenticated copies purport to be sealed
or signed as hereinbefore respectively directed, the same shall
respectively be admitted in evidence in every case in which
the orignial document could have been received in evidence,
without any proof of the seal, where a seal is necessary, or of
the signatrue, or of the truth of the statement attached
thereto, where such signature and statement are necessary,
of the judicial character of the person appearing to have
made such signature and statement.
23A.-(1) Copies of Acts, Ordinalices and statutes passed
by the legislature of any British possession, and of orders,
regultions, and other instruments issued or under the
authority of any such Act, Ordinance, or statute, if purporting
to be printed by the Government printer, shall be received
in evidence by all courts in this Colony without any proof
being given that the copies were so printed.
(2) Every person who prints any copy or pretended copy of
any such Act, Ordinance, statute, order, regulation, or instru-
ment which falsely purports to have been printed by the
Government printer, or tenders in evidence any such copy
or pretended copy which falsely purports to have been so
printed knowing that it was not so printed, shall be liable, to
imprisonment for any term not exceeding twelve months.
(3) In this section, Government printer means, as
repects ally British possession, the printer purporting to
be the printer authorised to print the, Acts, Ordinances, or
statutes of the legislature of that possession, or otherwise to
the Government printer of that possession.
(4) The Governor in Council may by order extend this
section to Cyprus and to any British protectorate, and when
so extended this section shall apply as if Cyprus or the
protectorate were a British possession, and with such other
necessary adaptations as may be made by the order.
24.-(1) All answers to interrogatories, disclaimers,
examinations, affidavits and attestations of honour, and all
other documents required to be sworn in causes or matters
* As amenaed by Law Am. Ord., 1923.
+ On the outbreak of war with Turkey in 1914, the island of Cyprus was annexed
to the British Crown by Order in Council of the 4th November, 1914.,
depending in the Supreme Court, and also acknowledgments
required for the purpose of enrolling any deed in the said
court, shall and may be sworn, and taken in England, Scotland,
or Ireland, or the Channel Islands, or in my other colony or
place under the dominion of His Majesty before any court,
judge, notary public, or person lawfully authorised to
administer oaths, in such country, colony, or place respec-
tively, or before any of His Majesty's consular officers in any
place out of, His Majesty's dominions.
(2) The judges and officers of the Supreme Court shall
take judicial notice of the seal or signature, as the case may
be, of any such court, judge, notary public, person, or
consular officer attached, appended, or subscribed to any
document as aforesaid.
25.-(1) Any document purporting to have affixed, im-
pressed, or subscribed thereon or thereto the seal and
signature of any British ambassador, envoy, minister, charge
d'affaires, secretary of embassy or of legation, or consular
officer in testimoliy of any such oath, affidavit, or act having
been administered, sworn, had or done by or before him
under the Acts mentioned, in section 19 shall be admitted
evidence without proof of any such seal and signature or of
the official character of such person.
(2) In this section, consular officer includes every
consul-general, consul, vice-consul, pro-consul, consular agent,
acting conul-general, acting consul, acting vice-consul, and
acting consular agent.
26. In civil proceedings-
(1) entries in books of accouht kept in the course of
business, with such a reasonable degree of regularity as may
be satisfactory to the court, shall be admissible in evidence,
whenever they refer to a matter into which the court has to
inquire,but shall not alone be sufficient evidence to charge
.any person with liability;
(2) the Hongkong Government Gazette and any Govern-
ment Gazette of any British possession may be proved by
the produdtion thereof;
* As amended by No. 23 of 1915.
(3) all proclamations, acts of state, whether legislative or
executive, nominations, appointments, and other official com-
munications of the government appearing in any such
Gazette may be proved by its production;
(4) the cout may, on matters of public history, literature,
science, or art, refer, for the purposes of evidence, to such
published books, maps, or charts as the court may consider
to be of authority on the subject to which they relate;
(5)-(a) books printed or published under the authority
of the Government of a foreign country, and purporting, to
contain the statutes, code, or other written law of such
country, and also printed and published books of reports of
decisions of the courts of such country, and books proved to
be commonly admitted in such courts as evidence of the law
of such country, shall be admissible as evidence of the law of
such foreign country; and
(b) maps made under the authority of any Government or
of any public municipal body, and not made for the purpose
of any litigated question,
shall prima facie be deemed to be correct, and shall be
admitted in evidence without further proof.
27. All documents whatsoever legally and properly filed
or recorded in any foreign court of justice or consulate
according to the law and practice of such court or consulate,
and all copies of such documents, shall be admissible in
evidence in the courts of this Colony on being proved in
like manner as any documents filed or recorded in any
foreign court are provable under this or any other Ordinance;
and all documents whatsoever so filed or recorded in any
foreign court or consulate, and all copies of such documents,
shall, when so proved and admitted, be held authentic and
effectual for all purposes of evidence as the same would be
held in such foreign court or consulate.
28. All courts, judges, magistrates, justices of the peace,
officers of the courts, commissioners acting judicially, and
other judicial officers shall take judicial notice of the
signature of the judges, provided such signatrue is attached
or appended to any judgment, decree, order, certificate, or
othe judicial or official document.
PART III.
DEPOSITIONS.
29. Whenever it is proved be the Oath of any credible
witness, or in any other manner whatsoever it appears, to the
satisfaction of the Supreme Court, that the Attorney Gleneral,
or other person conducting a prosecution on behalf of the
Crown, is unable to produce at the trial any person as a
witness, in bonsequence of the death of such person, or of his
absence from the Colony, or of the impracticability of serving
process on him, or of his being so ill as not, to be able to
travel, or of his beiiig insane, or of his being kept out of the
way by means of the procurement of the person accused, or
of his being resident in a country the laws of which prohibit
his absenting himself therefrom, or which he refuses to
quit after application made to him in that behalf or because
he cannot be found at his last-known place of residence in
the Colony; and if it also appears from the certificate of the
magistrate or other officer hereinafter mentioned that such
person was examined before a magistrate, or other officer to
whom the cognizance of the offence appertained, and
that the usual oath was administered to him prior to his
examination, and that the examination was taken in the
presence of the person accused, and that he, or his counsel
or solicitor, had a full opportunity of cross-examining such
person, and that the evidence so taken was reduced into
person, and that the evidence so taken was reduced into
writing and read over to and signed by him and also
by the magistrate or other officer as aforesaid, so much of
the evidence as would have been admissible, if the said person
had been prodticed and examined before the said court in the
Ordinaiy manner, shall be read and received in evidence.
30. The production from the custody of the proper officer
of the certificate referred to in section 29 shall be sufficient
proof of the signature of such magistrate or other officer
aforesaid, unless it is proved that such examination was not
taken in`maliner aforesaid or was not in fact signed by
person examined or by the magistrate or officer aforesaid
purporting to sign the same.
31. No objection to the reception in evidence of the
examination of any person shall be permitted to prevail on
the ground that the particular esamination of such person
* As amended by No. 20 of 1922.
was not signed by the magistrate or other officer as aforesaid,
if it appears, in manner aforesaid; that the depositions wherein
such examination was included were so signed.
32.-(1) Whereas it may happen that a person, who is
dangerously ill and unable to travel, may be able to give
material, and important information relating to an indictable
offence or to a person accused thereof, and it is desirable, in
the interests of truth and justice, that means should be
provided for prepetuating such testimony and for rendering
the same available in cases of necessity:-
Whenever it is made to appear, to the satisfaction of any
magistrate or justice of the peace, that any person who is
dangerously ill and unable to travel, is able and willing to
give mateial information relating to an inductable offence
or to a person accused thereof, it shall be lawful for the
said magistrate or any justice of the eace to tak e in writing
his statement upon oath, and such magistrate or justice
shall threeupon subscribe the same, and shall add thereto
by way of caption a statement of his reason for taking the
same, and of the day and place when and where the same
was taken, and of the names of the persons, if any, assisting
at the taking thereof, and, if the same relates ot any offence
for which any accused person is already committed or bailed
to appear for trial, shall transmit the same with the said
addition to the Registrar of the Supreme Court, and in all
other cases to the magistrates; clerk, who are respectively
required to preserve the same and file it for record; and if
afterwards, on the trial of any offender or offnece to which
the same may relate, the person who made the said
statement is proved to be dead, or it it is proved that there
is no reasonable probability that such person will be able
to attend and give evidence at the trial, it shall be lawful to
read such statement in evidence, either for or against the
person accused, without further proof thereof, if the same
purports to be signed by the magistrate of justice by or
before whom it purports to be taken, and provided it is
proved, to the satisfaction of the court, that reasonable
notice of the intention to take such statement has been
served on the person (whether prosecutro, or person accused)
against whom it is proposed to be read in evidence, and that
such person, or his counsel or solicitor, had or might have
* As amended by No. 23 of 1915, No. 20 of 1922 and Law Am. Ord., 1923.
had, if he had chosen to be present, full opportunity of
cross-examining the person who made the same.
(2) No such statement shall be rejected on the ground of
any failure to comply with any of the provisions of sub-
section (1) with regard to the notice or the caption unless
the court is of opinion that the person accused was sub-
stantially prejudiced by such failure.
33. Whenever a prisoner in actual custody has been
served with or has received notice, of an intention to take
such statement as is mentioned in section 32, the judge
or magistrate by whom the prisoner was committed, or the
visting justices of the prison in which he is confined, may,
by an order in writing direct the gaoler having the custody
of the prisoner to convey him to the place mentioned in the
said notice for the purpose of being present at the taking of
the statement; and such gaoler shall convey the prisoner
accordingly, and the expenses, if any, of such conveyance
shall be paid out of the Treasury.
[ss. 34 and 35, rep. No. 8 of 1912; ss. 36 and 37, rep.
No. 42 of 1912.]
PART 1V.
COMMISSIONS TO TAKE EVIDENCE.
38.- (1) Where, on an application for this purpose, it is
made to appear to the court or judge that any of His
Majesty's courts or tribunals of competent jurisdiction outside
the Colony has duly authorised, by commission, order, or
other process, the obtaining the testimony in or in relation
to any civil proceedings pending in or before such court or
tribunal of any witness out of the jurisdiction of such court or
or tribunal and, within the jurisdiction of the Supreme Court,
it shall be lawful for the, court or judge to order the
examination before the person appointed, and in manner and
form directed by such commission, order, or other process as
aforesaid, of such witness accordingly, so far as not repugnant
to the laws and practice of the Colony.
(2) It shall be lawful for the court or judge, by the same
or any subsequent order, to command the attendance of any
person to be anmed in such order for the purpose of being
examined or of producing any writings or other documents.
* As amended by Law REv., Ord., 1923.
to be mentioned in such order, and to give all such directions
as to the time, place, and manner of such examination and
all other matters connected therewith as may appear
reasonable and just.
(3) Any such order may be enforced, and any disobedience
thereof punished, in like manner as in case of an order made
by the court or judge in any action or other proceeding.
39.-(1) Where, on an application by summons for this
purpose, it is made to appear to the court or judge that any
court or tribunal of competent jurisdiction in a foreign
country, before which any civil or comnercial or criminal
proceedings are pending, is desirous of obtaining the
testiirioiiy in relation to such proceedings of any witness
within the jurisdiction of the Supreme Court, it shall be
lawful for the court or judge to order the examination upon
oath, upon interrogatories, or otherwise, before any person
named in such order, of such witness accordingly.
(2) It shall be lawful for the court or judge by the same
or any subsequent order, to command the attendance of any
person to be named in such order for the purpose of being
examined or of producing any writings or other documents
to be mentioned in such order, and to give, all such directions
as to the time, place, and manner of such examination and
all other matters conncected therewith as may appear reason-
able and just.
(3) Any such order may be enforced in like manner as all
order made by the conrt or judge in any action or other
proceediiig.
40. A certificate under the hand of the ambassador,
minister or other diplomatic agent of any foreign power,
received as such by His Majesty, or in case there be no such
diplomatic agent, then of the consul-general or consul of my
such foreign power at London, received and, admitted as
such by His Majesty or of the consul-general, consul, or vice-
consul, of any such foreign power in the Colony, received and
admitted as such, that any matter in relation to which an
application is made under this Ordinance is a civil, or com-
mercial, or criminal matter pending before a court or tribunal
in the country of which he is the diplomatic agent or consul
having jurisdiction in the matter so pending, and that such
court or tribunal is desirous of obtaining the testimony of
the witness to whom the application relates, shall be evidence
of the matters so certified ; but where no such certificate is
produced, other evidence to that effect shall be admissible.
41. When, under ally such commission, order, or other
process as is mentioned in section 38, or under any order
made under section 39, any witness is to be examined, such
witness shall be examined upon oath, affirmation and declara-
tion, or declaration alone or otherwise according to the law
and practice of the Colony: Provided always-
(1) that every person whose attendance is required under
any such commission, order, or other process shall be
entitled to the like conduct money and payment of expenses
and loss of time as on attendance at the trial or hearing of
and loss of time as on attendance at the trial of hearing of
any action or other proceeding before the Supreme Court;
(2) that every person examined under any such commis-
sion, order, or other process shall have the like right to refuse
to answer questions tending, to criminate himself and all
such other questions to which he would be entitled to object
in similar proceedings before the Supreme Court; and
(3) that no person shall be compelled to produce, under
any such order as aforesaid, any writing or other document
that he would not be compellable to produce at the trial or
the hearing of any action or other proceeding before the
Supreme Court.
PART V.
OATHS, AFFIRMATIONS, ETC.
42. The court is hereby empowered to administer an oath
to all such persons as are legally called or appear voluntarily
before it.
43.-(1) Any oath may be administered and taken in the
form and manner following:-
The person taking the oath shall hold the New Testament,
or, in the case of a Jew the Old Testament, in his uplifted
hand, and shall say or repeat after the officer administering
the oath the words I swear by Almighty God that
followed by the words of the oath prescribed by law.
* As amended by No. 20 of 1922 and Law Rev. Ord., 1923.
(2) The officer shall, unless the person about to take the
oath voluntarily objects thereto, or is physically incapable of
so taking the oath, administer the oath in the form and
manner aforesaid without question:
Provided that, in the ease of a person who is neither it
Christian nor a Jew, the oath may be administered in any
manner which is now lawful.
(3) In this section officer includes evey person au-
thorised to admirtister oaths.
44. If any person to whom an oath is administered desires
to swear with uplifted hand, in the form and manner in
which an oath is usually adiministered in Scotland, he shall
be permitted so to do, and the oath shall be administered to
him in such form and manner without further question.
45. Where an oath has been duly administered and
taken the fact that the person to whom the same was
administered had, at the time of taking such oath, no
religious belief, shall not for any purpose affect the validity
of such oath.
46.-(1) Every person upon objecting to being sworn,
and stating, as the ground of such objection, either that he
has no religious belief, or that the taking of an oath is
contrary to his religious belief, shall he permitted to make
his solemn affirmation instead of taking an oath in all places
and for all, purposes where an oath is or shall be by
law.
(2) Every person who is neither a Christian nor a Jew shall
be permitted to make his solemn affirmation instead of taking
oath in all places and for all purposes where an oath is or
shall be required by law.
(3) Every such affirmation shall be as follows:-
I, A.B., do solemnly, sincerely, and truly declare and affirm,
and then proceed with the words of the oath prescribed by
law, omitting any words of imprecation or calling to
witness.
* As amended by No. 20 of 1922 and Law Rev. Ord., 1923.
+ As amended by No. 20 of 1922, No. 21 of 1922 and Law Rev. Ord., 1923.
(4) Every affirmation in, writing shall commence I,
, of do solemnly and sincerely
and the form in lieu of jurat shall be Affirmed a!
, this day of ,19
Before me.
(5) Every affirmation shall be of the same force and effect,
as an oath in the usual form.
47. If any person taking all oath or making an affirmation
is ignorant of the English language the oath or affirmation
shall be, interpreted to him by a sworn interpreter.
PART VI.
MISCELLANEOUS.
48. Whenever any forged document has been admitted in
evidence by virtue of this Ordinance, the court or the person
who has admitted the same, may, at the request of any party
against whom the same is so admitted in evidence, direct
that the same shall be impounded and be kept in the custody
of such officer of the court or other proper person, for such
period, and subject to such conditions as to the court or
person may seem meet.
49. In any prosecution for murder or manslaughter any
medical notes or report by any Government medical officer
which purport to relate to the deceased shall be admissible
in evidence upon Proof of the handwriting of such Grovern-
ment medical officer, and upon proof of his death or absence
from the Colony.
50. On the hearing of any indictable offence it shall be
the duty of the magistrate to take down in the minute of
proceedings any material statement or observation made,
and any evidence given, by the accused in the course
of the proceedings, and, without prejudice to any other
method of proof, any such statement or observation or
evidence so taken down shall be admissible ill evidence
against the accused on his trial upon production of the minute
of proceedings.
As amended by No. 20 of 1922, No. 21 of 1922 and Law Rev. Ord., 1923.
As amended by Law Rev. Ord., 1923.
As amended by No. 11 of 1922, No. 21 of 1922 and Law Rev. Ord., 1923.
51.-(1) It shall be lawful for the Governor or any judge
on application by affidavit, to issue a warrant or order under
his hand for bringing up any prisoner or person confined in
prison any sentence or under commitment for trial or
otherwise (except under process in any civil proceedings)
before any court, judge, magistrate, or other judicature to
make his defence or to be examined as a witness in any pro-
ceedings depending or to be inquired of or determined in or
before such court, judge, magistrate, or judicature.
(2) Such prisoner or person shall be brought under the
same care and custody, and be dealt with in like manner in
all respects as a prisoner required by any writ of habeas
corpus awarded by the Supreme Court to be brouht before
the said court to be examined as a withness in any cause or
matter depending before the said court is by law required to
be dealt with.
52. Nothing in this Ordinance shall be construed to
repeal any provislons contained in the Wills Act, 1837.
[Originally No. 2 of 1889. No. 23 of 1915. No. 11 of 1922. No. 20 of 1922. No. 21 of 1922. Law Rev. Ord., 1924.] Short title. Interpretation. 14 & 15 Vict.c. 99, s. 16. Incompetency from immature age or unsoundness of mind. Evidence of parties. 14 & 15 Vict.c. 99, s. 2; 16 & 17 Vict.c. 83, s. 1. Evidence of husband and wife. 14 & 15 Vict.c. 99, s. 3; 16 & 17 Vict.c. 83, s. 2. Privilege of husband and wife. 16 & 17 Vict.c. 83, s. 3. No incapacity from crime or interest. 6 & 7 Vict.c. 85, s. 1. Exception as to defendant in criminal proceedings. 14 & 15 Vict.c. 99, s. 3. [cf. No. 14 of 1906.] Evidence of parties and their husbands and wives in proceedings for adultery. 32 & 33 Vict.c. 68, s. 3. Evidence of parties in action for breach of promise. 32 & 33 Vict.c. 68, s. 2. Discreding a witness. 17 & 18 Vict.c. 125, s.22; 28 & 29 Vict.c. 18, s.3. Proof of contradictory statement of adverse witness. 28 & 29 Vict.c. 18, s. 4. Cross-examination as to previous staement in writing. 17 & 18 Vict.c. 125, s. 24; 28 & 29 Vict.c. 18, s. 5. Proof of conviction and previous conviction for indictable offence. 14 & 15 Vict.c. 99, s. 13; 17 & 18 Vict.c. 125, s. 25; 28 & 29 Vict.c. 18, s. 6; 24 & 25 Vict.c. 112, s. 18. Attesting witness need not be called. 17 & 18 Vict.c. 125, s. 26; 28 & 29 Vict.c. 18, s. 7. Comparison of disputed with genuine writing. 17 & 18 Vict.c. 125, s. 27. Copy of document of public nature. 14 & 15 Vict.c. 99, s. 14. Official documents. 8 & 9 Vict.c. 113, s. 1. Admissibility of notarial acts done before British diplomatic and consular officers. 52 Vict.c. 10, s. 6 (1); 54 & 55 Vict.c. 50, s. 2. Copy of entry in banker's book. 42 & 43 Vict.c. 11, ss. 3-6. Court of judge may direct copies of entries in banker's book to be taken. 42 & 43 Vict.c. 11, ss. 7, 8. Certain days not to be counterd. 42 & 43 Vict.c. 11, s. 11. Ordinance No. 5 of 1912. Proof of foreign or colonial act of state, judgment, etc. 14 & 15 Vict.c. 99, s. 7. Proof of statues of British possessions. Cyprus and protectorates. Swearing of answer, etc., in Supreme Court in England, etc. 15 & 16 Vict.c. 86, s. 22. Admissibility of document having seal and signature of British ambassador, etc. 18 & 19 Vict.c. 42, s. 3. Definition of consular officer. 52 Vict.c. 10, s. 6(1); 54 & 55 Vict.c. 50, s. 2. Proof of various matters in civil procedings. Admissibility of document filed in foreign court or consulate. Courts to take judicial notice of signature of judges, etc. 8 & 9 Vict.c. 113, s.2. Admissibility in evidence in criminal proceedings of deposition of person dead, etc. 11 & 12 Vict.c. 42, s. 17. Prima facie proof of examination having been duly taken. Objection that deposition tendered was not signed by magistrate. Power to take deposition of person dangerously ill, and not likely to recover and to make it evidence in certain events. 30 & 31 Vict.c. 35, s. 6. Provision for prisoner being present at taking of statement. 30 & 31 Vict.c. 35, s. 7. Order for examination of witnesses in the Colony in relation to action pending before British Court. 22 Vict.c. 20, s. 1. [cf. No. 3 of 1901, s. 326A.] Order for examination of witnesses in the Colony in relation to proceedings pending in foreign country. 19 & 20 Vict.c. 113, s. 1. [cf. No. 3 of 1901, s. 326A.] Effect of certificate of Ambassador, etc., as evidence in support of application. 19 & 20 Vict.c. 113, s.2. [cf. No. 3 of 1901, s. 326A.] Examination of witness under ss. 38 & 39. 19 & 20 Vict.c. 113, ss. 3, 4, 5; 22 Vict.c. 20, ss. 3, 4. Administration of oath by the court. 14 & 15 Vict.c. 99, s. 16. Normal manner of administration of oaths. 9 Edw. 7, c. 39, ss. 2, 3. Swearing with uplifed hand. 51 & 52 Vict.c. 46, s. 5. Validity of oath not affect by absence of religious belief. 51 & 52 Vict.c. 46, s. 3. Affirmation in lieu of oath. 51 & 52 Vict.c. 46, s. 1. 51 & 52 Vict.c. 46, s. 2. 51 & 52 Vict.c. 46, s. 4. Interpretation of oaths and affirmations. Impounding of forged document admitted in evidence. 8 & 9 Vict.c. 113, s. 4; 14 & 15 Vict.c. 99, s. 17. Admissibility of certain medical notes and reports. Observations and evidence of accused person before magistrate to be taken down and to be admissible at trial on production of the minute of proceedings. Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict.c. 30, s. 9. Saving as to 7 Will. 4 & 1 Vict.c. 26.
Abstract
[Originally No. 2 of 1889. No. 23 of 1915. No. 11 of 1922. No. 20 of 1922. No. 21 of 1922. Law Rev. Ord., 1924.] Short title. Interpretation. 14 & 15 Vict.c. 99, s. 16. Incompetency from immature age or unsoundness of mind. Evidence of parties. 14 & 15 Vict.c. 99, s. 2; 16 & 17 Vict.c. 83, s. 1. Evidence of husband and wife. 14 & 15 Vict.c. 99, s. 3; 16 & 17 Vict.c. 83, s. 2. Privilege of husband and wife. 16 & 17 Vict.c. 83, s. 3. No incapacity from crime or interest. 6 & 7 Vict.c. 85, s. 1. Exception as to defendant in criminal proceedings. 14 & 15 Vict.c. 99, s. 3. [cf. No. 14 of 1906.] Evidence of parties and their husbands and wives in proceedings for adultery. 32 & 33 Vict.c. 68, s. 3. Evidence of parties in action for breach of promise. 32 & 33 Vict.c. 68, s. 2. Discreding a witness. 17 & 18 Vict.c. 125, s.22; 28 & 29 Vict.c. 18, s.3. Proof of contradictory statement of adverse witness. 28 & 29 Vict.c. 18, s. 4. Cross-examination as to previous staement in writing. 17 & 18 Vict.c. 125, s. 24; 28 & 29 Vict.c. 18, s. 5. Proof of conviction and previous conviction for indictable offence. 14 & 15 Vict.c. 99, s. 13; 17 & 18 Vict.c. 125, s. 25; 28 & 29 Vict.c. 18, s. 6; 24 & 25 Vict.c. 112, s. 18. Attesting witness need not be called. 17 & 18 Vict.c. 125, s. 26; 28 & 29 Vict.c. 18, s. 7. Comparison of disputed with genuine writing. 17 & 18 Vict.c. 125, s. 27. Copy of document of public nature. 14 & 15 Vict.c. 99, s. 14. Official documents. 8 & 9 Vict.c. 113, s. 1. Admissibility of notarial acts done before British diplomatic and consular officers. 52 Vict.c. 10, s. 6 (1); 54 & 55 Vict.c. 50, s. 2. Copy of entry in banker's book. 42 & 43 Vict.c. 11, ss. 3-6. Court of judge may direct copies of entries in banker's book to be taken. 42 & 43 Vict.c. 11, ss. 7, 8. Certain days not to be counterd. 42 & 43 Vict.c. 11, s. 11. Ordinance No. 5 of 1912. Proof of foreign or colonial act of state, judgment, etc. 14 & 15 Vict.c. 99, s. 7. Proof of statues of British possessions. Cyprus and protectorates. Swearing of answer, etc., in Supreme Court in England, etc. 15 & 16 Vict.c. 86, s. 22. Admissibility of document having seal and signature of British ambassador, etc. 18 & 19 Vict.c. 42, s. 3. Definition of consular officer. 52 Vict.c. 10, s. 6(1); 54 & 55 Vict.c. 50, s. 2. Proof of various matters in civil procedings. Admissibility of document filed in foreign court or consulate. Courts to take judicial notice of signature of judges, etc. 8 & 9 Vict.c. 113, s.2. Admissibility in evidence in criminal proceedings of deposition of person dead, etc. 11 & 12 Vict.c. 42, s. 17. Prima facie proof of examination having been duly taken. Objection that deposition tendered was not signed by magistrate. Power to take deposition of person dangerously ill, and not likely to recover and to make it evidence in certain events. 30 & 31 Vict.c. 35, s. 6. Provision for prisoner being present at taking of statement. 30 & 31 Vict.c. 35, s. 7. Order for examination of witnesses in the Colony in relation to action pending before British Court. 22 Vict.c. 20, s. 1. [cf. No. 3 of 1901, s. 326A.] Order for examination of witnesses in the Colony in relation to proceedings pending in foreign country. 19 & 20 Vict.c. 113, s. 1. [cf. No. 3 of 1901, s. 326A.] Effect of certificate of Ambassador, etc., as evidence in support of application. 19 & 20 Vict.c. 113, s.2. [cf. No. 3 of 1901, s. 326A.] Examination of witness under ss. 38 & 39. 19 & 20 Vict.c. 113, ss. 3, 4, 5; 22 Vict.c. 20, ss. 3, 4. Administration of oath by the court. 14 & 15 Vict.c. 99, s. 16. Normal manner of administration of oaths. 9 Edw. 7, c. 39, ss. 2, 3. Swearing with uplifed hand. 51 & 52 Vict.c. 46, s. 5. Validity of oath not affect by absence of religious belief. 51 & 52 Vict.c. 46, s. 3. Affirmation in lieu of oath. 51 & 52 Vict.c. 46, s. 1. 51 & 52 Vict.c. 46, s. 2. 51 & 52 Vict.c. 46, s. 4. Interpretation of oaths and affirmations. Impounding of forged document admitted in evidence. 8 & 9 Vict.c. 113, s. 4; 14 & 15 Vict.c. 99, s. 17. Admissibility of certain medical notes and reports. Observations and evidence of accused person before magistrate to be taken down and to be admissible at trial on production of the minute of proceedings. Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict.c. 30, s. 9. Saving as to 7 Will. 4 & 1 Vict.c. 26.
Identifier
https://oelawhk.lib.hku.hk/items/show/1132
Edition
1923
Volume
v1
Subsequent Cap No.
8
Cap / Ordinance No.
No. 2 of 1889
Number of Pages
18
Files
Collection
Historical Laws of Hong Kong Online
Citation
“EVIDENCE ORDINANCE, 1889,” Historical Laws of Hong Kong Online, accessed April 30, 2025, https://oelawhk.lib.hku.hk/items/show/1132.
