EVIDENCE ORDINANCE, 1889
Title
EVIDENCE ORDINANCE, 1889
Description
No. 2 of 1889.
To consolidate the Law of Evidence. [18th January, 1880.]
.1. The Evidence Ordinance, 1889.
2. In this Ordinance,-
'The Court ' includes the Chief Justice and any other Judge,
also, every Magistrate, Justice, officer of any Court, commis-
sioner, arbitrator, or otber person having, by law or by con-
sent of parties, authority to 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 :
'Bank ' means any corporation, company, or society establish-
ed 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-Councll published in the Gazette:
Banker's book ' includes any ledger, day book cash book,
account book, or any other book used in the ordinary business of
the bank.
PART 1.
ADMISSIBLE WITNESSES AND EAVIDENCE.
3. The following persons only shall be incompetent to give
evidence in any proceedings :-
(1) children under 7 years of age, unless they appear capable
of receiving just impressioons of the facts respecting which they are
examined and of relating them truy; and
(2) persons of unsound mind, who, at the time,of their exami-
nation, appear incapable of receiving just impressions of the facts
respecting which they are examined or of relating them truly; and
no person who is known to be of unsound mind 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 hereinafter excepted, be com-
petent and compellable to give evidence, either viva voce 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 com-
petent or compellable to give evidence for or against his wife, or
any wife competent or compellable to give evidence for or against
her husband, in any criminal proceedings.
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 in any proceedings shall be
excluded by reason 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 crimin-
ate 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 competent 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 bound 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 promise of
marriage shall recover a verdict unless his or her testimony is cor-
roborated by some other material evidence in support of such pro-
mise.
11. A party producing a witness in any proceedings shall not
be allowed to impeach his credit by general evidence of bad char-
acter, but he may in case the witness, 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 particular occasion, must be
mentioned to the witness, and he must be asked whether or not
he has made such statement.
12. If a witness in any proceedings, on cross-examination as to
a former statement made 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, suffi-
cient to designate the particular occasion, 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 may be cross-examined as
to previous statements 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 attention must, before such con-
tradictory proof can be given, be called to those parts of the writing
which 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 writnig for its inspection, and the Court may
thereupon make such use of it for the purposes of the trial or hear-
ing as it may think fit.
14. A witness in any proceedings may be questioned as to whe-
ther he has been convicted of any felony or misdemeanor, and,
on being so questioned , if he either denies or does not admit the
fact or refuse 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 prove 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 of such clerk or officer, shall, on proof of the identity
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 sub-
mitted to the Court and to the Jury, if any, as evidence of the
genuineness or otherwise of the writing in dispute.
PART II.
ADMISSIBM 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 certified 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 25 cents for every folio
of 90 words.
18. Whenever, by any enactment, any certificate, official or
public document, or proceeding of any corporation 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 res-
pectively be admitted in evidence, provided they respectively
purport to be sealed or impressed with a stamp, or sealed and
signed, or signed alone , as require, 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. All affidavits and notorial acts taken and made under the
Act 6 George IV, chapter 87, or under the Act 18 and 19 Victoria,
chapter 42, shall and may be received, read,and made use of in
and before the Court in or in relation. to any action, cause, matter,
or proceeding in or before the Court in like manner, and shall be
of the same force and effect, as affidavits taken in or before the
Supreme Court or by any person duly commissioned or authorised
by the Court to take such affidavits and shall be filed and dealt with
accordingly.
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 the
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 sworn
as aforesaid, by some person who has examined the copy with
the original entry, that the copy has been examined with the ori-
ginal entry and is correct ; and
(3) provided, further, that a banker or officer of a bank shall
not, in 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 to
prove the matters, transactions, or accounts therein recorded, ex-
cept by order of a Judge made for special cause.
21.-(1) On the application of any party to any proceedings, 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.
(12) An order under this section may be made either with or
without the or any officer party, and sball be
served on the bank 3 clear days before the same is to be obeyed,
unless the Court or Judge otherwise directs.
(3) The costs of any 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 deflault 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 proceedincy
22. General holidays, within the meaning of Ordinance No. 5 of
1912, shall be excluded from. the computation of time under sections
20 and 21.
* As amended by the Final Revision Ordinance 1912.
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 arly 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 deposifed 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 proclaimation treaty or other
act of state, the authenticated copy to be admissible in evidence
must purport to be scaled with the seal of the Foreign State or
British possession 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 possession, or an affidavit,
pleading, or 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 scaled with the scal of snell
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 Judoe shall
attach to his signature a statement in writing on the said copy that
the Court whereof he is a Judge has no seal; but if any 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 original document
could have been received in evidence,, ivithout any proof of the
seal, where a seal is necessary, or of the signature, or of the truth
of the statement attached thereto, where such signature and state-
ment are necessary, or of the judicial character of the person
appearing 'to have made such signature and statement.
23a.-(1) Copies of Acts, ordinances and statutes passed by the
Legislature of any British possession, and of orders, regulations,
and other instruments issued or made 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.
As arnended bY No. 63 of 1911 r111,7 R of 1912.
As airicii(l,t(l by No. 2 of 1908, No. 30 of 1911, ~Xo. 62 of 1911,
No. 63 of 1911 and No. 8 of 1912.
(2) If any person prints any copy or pretended copy of any such
Act, ordinance, statute, order, regulation, or instrument which
falsely purports to have been printed by the Government printer',
or tenders in evidence any soch copy or pretended copy which
falsely purports to liav,- been so printed kriowiii,, that it was no ' t so
printed, lie shall be liable to imprisonment for any term not ex-
ceeding 12 months.
(3) In this section---
' Government printer ' means, as respects any British pos-
session, the printer purporting to be the printer authorised to
print the Acts, ordinances, or statutes of the Legislature of that
possession, or otherwise to be the Government printer of that
possession.
(4) The Govenor-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, examina-
tions, affidavits, and attestations of honour, and all other documents
required to be sworn in causes or matters depending in the Sup-
reme 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 any 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
respectively, 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 sobscribed to any such document as
aforesaid.
25. Any document purporting to have affixed, impressed, or
subscribed thereon or tbereto the seal and signature of any British
ambassador, envoy, minister, charge d'affaires, secretary of
embassy or of legation, or consular officer in testimony of any
As amended by No. 57 of 1911, No. 62 of 1911 and No. 63 of 1911.
As aniended 1~ No. 9 of 1908, No. 622 of 1911 and No. 63 of 191~.
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 in evidence without proof of any such seal and
signature or of the official character of such person.
26. In civil proceedings-
(1) entries in books of account 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 Government
Gazette of any British possession may be proved by the production
thereof;
(3) all proclamations, acts of state, whetber legislative or ex-
ecutive, nominations, appointments, and other official communi-
cations of the Government appearing in any such Gazette may be
proved by its production ;
(4) the Court 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 admis-
sible 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 facic be demmed to be correct, and shall be admitted
in evidence without further proof.
27. All docurnents whatsoever legally filed or re-
corded 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 forelign 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 signature is attached or appended to any
judgment, decree, order, certificate, or other judicial , or official
document.
PART III.
DEPOSITIONS.
29. Whenever it is proved by the oath of any credible witness,
or in any other manner whatsoever it appears, to the satisfaction
of the Supreme Court, that the Attorney General, or other person
conducting a prosecution on behalf of the Crown, is unable to
produce at the trial any person as a witness, in consequence 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 being insame, 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 re-
fuses to quit after application made to him in that behalf; 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 offence
appertained, and that the usual oath, or warning was adminis-
tered, or given 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 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
produced and examined before the said Court in the ordinary
manner, shall be read and received in evidence.
30. The production froni the custody of the proper officer of
the certificate referred to in seetion 29 shall be sufficient proof of
the signature of such or other officer unless
it is proved that such examination was not taken in manner
aforesaid or was not in fact signed by the 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 examination of such person was not signed by the
Magistrate or other officer as aforesaid, if it appears, in manner
aforesaid, that the depositions wherein such examination was in-
cluded were so signed.
.32. Whereas it may happen that a person, so dangerously ill
that he is not likely to recover, and is 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 Perpetuating such testimony and for rendering the same avail-
able in cases of necessity:-
Whenever it is made to appear, to the satisfaction of any
Magistrate or Justice of the Peace, that any person dangerously
ill, and, in the opinion of a medical practitioner, not likely to
recover from such illness, and is unable to travel, is able and
willing to give material information relating to an indictable
offence or to a person accused thereof,it shall be lawful for the
said Magistrate or any Justice of the Peace to take in writing his
statement,Upon oath, and such Magistrate or Justice shall there-
upon subscribe the same, and shall add thereto by way of caption
ai 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 to any indictable offence or to 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 Suprerne 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
offence to which the same may relate, the person who made the
said statement is proved to be dead, or if it is proved that there
is no reasonable probability that such person will ever be able to
travel or to give evidence, it shall be lawful to read such state-
ment in evidence, either for or against the person accused, without
further proof thereof, If the same purports to be signed by the
Magistrate or 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 prosecutor, 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 had, if he
had chosen to be present, full opportunity of cross-examining the
person who made the same.
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 the last section, the Judge or Magistrate by whom
the prisoner was committed, or the Visiting 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 conve 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, 35, rep. No. 8 of 1912, s. 19 ; ss. 36, 37, rep. The
Final Revision Ordinance 1912.]
PART IV.
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 tribunal within the jurisdiction
of the Supreme Court, it shall be lawful for thee 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 purpjose of any person
to be nameed 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 connected
therewith as may appear reasonable and just.
(8) 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 pur-
pose, 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 commercial or criminal proceedings are pend-
ing, is desirous of obtaining the testimony 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 containd 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 connected
therewith as may appear reasonable and just.
(3) Any such order may be enforced in the manner as an order
made by the Court or Judge in any action or other proceeding.
40. A certificate lander the hand of the ambassador,minster 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 any such Foreign Power at
London, received and admitted as such by His Majesty or of the
cosul-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 commercial, 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.
11. When, under any 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 declaration, 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 any action or other pro-
ceeding before the Supreme Court;
(2) that every person examined under any such commission.
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 ordler 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 othor 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. If any person, not being a native of Cbina, who is called as
a witness to give viva race evidence, or is required or desires to
make an affidavit or deposition, in proceedings refuses or
is unwilling from alleged conscientious motives to be sworn, it shall
be lawful for the Court or the person qualified to take affidavits or
depositions, on being satisfied of the sincerity of such objection,
to permit such person instead of being sworn to give evidence or
to make such affidavit or deposition as aforesaid as follows:-
(1) in the case of viva voce evidence he shall make the following
affirmation and declaration:-
'I, A.B., do solemnly, sincerely, and truly affirm and declare
that the taking of an oath is according to my religious belief
unlawful; and I do solemnly, sineerely, and truly affirm and
declare that the evidence which I am about to give shall be
the truth, the whole truth, and nothing but the truth '; and
(2), in the case of an affidavit or deposition or other document
required to be sworn, he shall make and subscribe the following
affirmation and declaration:-
' I, A.B., do solemnly, sincerely, and truly affirm and declare
the taking of an oath is according to my religious belief
that the taking of an oath is according to my religious belief
unlawful; and I do solemnly, sincerelY, and truly affirm and
declare' etc.
44. Every person, not being a Christian or of the Jewish
religion, who is called as a witness to give viva voce evidence, or
is required or.desires to make an affidawit or deposition, in any
proceedings shall in lien of an oath make his declaration, which
shall be duly interpreted to every witness who is ignorant of the
English language, in the manner following:-
(1) in the case of viva voce evidence , he shall make the following
declaration :-
'I, A.B., do solemnly, sincerely and truly deelare that the
evidence which I am about to give shall be, the truth, the whole
truth, and. nothing but the truth';
(2) in the case of an affidavit or deposition or other document
required to be sworn, he shall make and subscribe the following
declaration
'I,A.B,. do solemly and sincerely declare that the contents
of this my affidavit [or information, or deposition, or testifica-
tion, or other document as the case may be] are true.'
45. every affirmation and declaration or declaration alone shall
be of the same force and effect as an oath in the usual form. PART VI.
PERJURY, ETC.
46.Every person making or subscribing any affirmation and
declaration or declaration who wilfully, falsely , and corruptly
affirms , declares , or subscribes any matter or thing which , if the
same had been sworn , would have amounted to wilful and corrupt
perjury shall incur the same penalties as by any law or ordinance
is provided or enacted for the punishment of wilful and corrupt
perjury .
47. where two or more contradictory statements of fact or
alleged fact, material to the issue ro matter in question , have
been wilfully and knowingly made by one and the same witness
in any proceedings before the court, whether at hte same exami-
nation or at two or more examinations , and whether before the
same court or person or before any other court or person , and
whetehr the respective truth or falsehood of the said statements
can be ascertained or not , an indictment may be preferred against
him , charging him with having wilfully and knowingly made the
said contradictory statements, and setting forth the short material
purport or effect thereof resperctively , and , on conviction thereof ,
either in whole or in part, such witness shall be liable to the
penalties of perjury.
48. every person who tenders in evidence in any proceedings
any such affidavit, affirmation , or notarial act within the meaning
of section 19 which is proved to be false , knowing the same to be
false, shall be liable to the penalties of perjury.
49. if any false document within the meaning of section 19 has
been tendered in evidence or the statements mentioned in section
47 or the last of them have or has been so made before the supreme
court or before a magistrate , such court or magistrate may either
direct a prosecution of the same offence for perjury and commit
the offender , unless he gives bail , for trial at the next assize, or
treat the same as contempt of court and forthwith proceed sum-
marily to punish the same either by a fine not exceeding for every
such offence 200 dollars , or by imprisonment for any term not
exceeding 6 months , and such punishment shall be in lien of all
other penalties.
60. It any officer who is authorised or required by this Ordi-
nance to furnish any certified copies or extracts wilfully certifies
any document as being a true copy or extract, knowing that the
same is not a true copy or extract, as the case may be, he shall
be guilty of a misdemeanor, and shall be liable to imprisonment,
without hard labour, for any term not exceeding 18 months.
51.-(1) Every person who-
(a), forges the seal, stamp, or signature of any document mention-
ed or referred to in this Ordinance; or
(b) tenders in evidence any such document with a false or coun-
terfeit seal, stamp, or signature thereto, knowing the same to be
false or counterfeit,
shall be guilty of felony, and shall be liable to imprisonment for
any term not exceeding 7 years.
(2) Whenever any such 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.
PART VII.
MISCELLANEOUS PROVISIONS.
52.-(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 under
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 proceedings depending or to be
inquired of or determined in or before such court, judge,Magis-
trate , or judicature .
(2) such prisoner so 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 corpvs awarded by
the Supreme Court to be brought before the said Court to be
examined as a witness in any cause or matter depending before
the said Court is by law required to be dealt with.
53. Nothing in this Ordinance shall be construed to repeal any
provisions contained in the Wills Act, 1837.
Short title. Interpretation of terms. [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. [ib.s.3; s.2.] Privilege of husband and wife. [ib.s.3.] No incapacity form 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 their husbands and wives in proceedings for adultery. [32 & 33 Vict.c. 68 s.3.] Evidence of parties in action for breach of promise. [ib.s.2.] Discrediting 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 state- ment 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; 34 & 35 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.] Use of affidavit, etc., taken before ambassador, etc. [18 & 19 Vict.c.42 s.2.] Copy of entry in banker's book. [42 & 43 Vict.c.11 ss. 3-6.] Court or 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 counted. [ib.s.11.] Proof of foreign or colonial act of state, judgment, etc. [14 & 15 Vict.c.99, s. 7.] Proof of statutes 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. Proof of various matters in civil proceedings. Admissibility of document filed in foreign Court or consulate. Court 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.] Order for examination of witnesses in the Colony in relation to proceedings pending in foreign country. [19 & 20 Vict.c. 113 s. 1.] Effect of certificate of Ambassador, etc., as evidence in support of application. [19 & 20 Vict.c 113 s.2.] Examination of witness under ss. 38 & 39 [ib. ss. 3,4,5; 22 Vict.c. 20 ss. 6,3.] Administration of oath by the Court. [14 & 15 Vict.c. 99 s. 16.] Affirmation in lieu of oath. [17 & 18 Vict.c. 125 s. 20; 24 & 25 Vict.c. 66 s. 1.] Declaration by non-Christian or non-Jew in lieu of oath. Effect of affirmation, and declaration. Punishment for false affirmation or declaration. [17 & 18 Vict.c. 125 s. 24; 24 & 25 Vict.c. 66 s. 2.] Liability of witness making contradictory statements. Liability for tendering false affidavit, etc. Punishment for tendering in evidence false document or making contradictory statement of fact. [cf. No. 3 of 1873 s. 31.] Punishment of officer certifying false document. [14 & 15 Vict.c. 99 s. 15.] Punishment for forging seal, stamp, or signature of certain documents, etc. [8 & 9 Vict.c. 113 s. 4; 14 & 15 Vict.c. 99 s. 17.] Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict.c. 30 s. 9.] Saving as to Wills Act 1837.
To consolidate the Law of Evidence. [18th January, 1880.]
.1. The Evidence Ordinance, 1889.
2. In this Ordinance,-
'The Court ' includes the Chief Justice and any other Judge,
also, every Magistrate, Justice, officer of any Court, commis-
sioner, arbitrator, or otber person having, by law or by con-
sent of parties, authority to 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 :
'Bank ' means any corporation, company, or society establish-
ed 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-Councll published in the Gazette:
Banker's book ' includes any ledger, day book cash book,
account book, or any other book used in the ordinary business of
the bank.
PART 1.
ADMISSIBLE WITNESSES AND EAVIDENCE.
3. The following persons only shall be incompetent to give
evidence in any proceedings :-
(1) children under 7 years of age, unless they appear capable
of receiving just impressioons of the facts respecting which they are
examined and of relating them truy; and
(2) persons of unsound mind, who, at the time,of their exami-
nation, appear incapable of receiving just impressions of the facts
respecting which they are examined or of relating them truly; and
no person who is known to be of unsound mind 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 hereinafter excepted, be com-
petent and compellable to give evidence, either viva voce 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 com-
petent or compellable to give evidence for or against his wife, or
any wife competent or compellable to give evidence for or against
her husband, in any criminal proceedings.
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 in any proceedings shall be
excluded by reason 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 crimin-
ate 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 competent 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 bound 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 promise of
marriage shall recover a verdict unless his or her testimony is cor-
roborated by some other material evidence in support of such pro-
mise.
11. A party producing a witness in any proceedings shall not
be allowed to impeach his credit by general evidence of bad char-
acter, but he may in case the witness, 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 particular occasion, must be
mentioned to the witness, and he must be asked whether or not
he has made such statement.
12. If a witness in any proceedings, on cross-examination as to
a former statement made 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, suffi-
cient to designate the particular occasion, 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 may be cross-examined as
to previous statements 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 attention must, before such con-
tradictory proof can be given, be called to those parts of the writing
which 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 writnig for its inspection, and the Court may
thereupon make such use of it for the purposes of the trial or hear-
ing as it may think fit.
14. A witness in any proceedings may be questioned as to whe-
ther he has been convicted of any felony or misdemeanor, and,
on being so questioned , if he either denies or does not admit the
fact or refuse 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 prove 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 of such clerk or officer, shall, on proof of the identity
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 sub-
mitted to the Court and to the Jury, if any, as evidence of the
genuineness or otherwise of the writing in dispute.
PART II.
ADMISSIBM 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 certified 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 25 cents for every folio
of 90 words.
18. Whenever, by any enactment, any certificate, official or
public document, or proceeding of any corporation 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 res-
pectively be admitted in evidence, provided they respectively
purport to be sealed or impressed with a stamp, or sealed and
signed, or signed alone , as require, 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. All affidavits and notorial acts taken and made under the
Act 6 George IV, chapter 87, or under the Act 18 and 19 Victoria,
chapter 42, shall and may be received, read,and made use of in
and before the Court in or in relation. to any action, cause, matter,
or proceeding in or before the Court in like manner, and shall be
of the same force and effect, as affidavits taken in or before the
Supreme Court or by any person duly commissioned or authorised
by the Court to take such affidavits and shall be filed and dealt with
accordingly.
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 the
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 sworn
as aforesaid, by some person who has examined the copy with
the original entry, that the copy has been examined with the ori-
ginal entry and is correct ; and
(3) provided, further, that a banker or officer of a bank shall
not, in 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 to
prove the matters, transactions, or accounts therein recorded, ex-
cept by order of a Judge made for special cause.
21.-(1) On the application of any party to any proceedings, 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.
(12) An order under this section may be made either with or
without the or any officer party, and sball be
served on the bank 3 clear days before the same is to be obeyed,
unless the Court or Judge otherwise directs.
(3) The costs of any 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 deflault 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 proceedincy
22. General holidays, within the meaning of Ordinance No. 5 of
1912, shall be excluded from. the computation of time under sections
20 and 21.
* As amended by the Final Revision Ordinance 1912.
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 arly 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 deposifed 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 proclaimation treaty or other
act of state, the authenticated copy to be admissible in evidence
must purport to be scaled with the seal of the Foreign State or
British possession 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 possession, or an affidavit,
pleading, or 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 scaled with the scal of snell
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 Judoe shall
attach to his signature a statement in writing on the said copy that
the Court whereof he is a Judge has no seal; but if any 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 original document
could have been received in evidence,, ivithout any proof of the
seal, where a seal is necessary, or of the signature, or of the truth
of the statement attached thereto, where such signature and state-
ment are necessary, or of the judicial character of the person
appearing 'to have made such signature and statement.
23a.-(1) Copies of Acts, ordinances and statutes passed by the
Legislature of any British possession, and of orders, regulations,
and other instruments issued or made 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.
As arnended bY No. 63 of 1911 r111,7 R of 1912.
As airicii(l,t(l by No. 2 of 1908, No. 30 of 1911, ~Xo. 62 of 1911,
No. 63 of 1911 and No. 8 of 1912.
(2) If any person prints any copy or pretended copy of any such
Act, ordinance, statute, order, regulation, or instrument which
falsely purports to have been printed by the Government printer',
or tenders in evidence any soch copy or pretended copy which
falsely purports to liav,- been so printed kriowiii,, that it was no ' t so
printed, lie shall be liable to imprisonment for any term not ex-
ceeding 12 months.
(3) In this section---
' Government printer ' means, as respects any British pos-
session, the printer purporting to be the printer authorised to
print the Acts, ordinances, or statutes of the Legislature of that
possession, or otherwise to be the Government printer of that
possession.
(4) The Govenor-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, examina-
tions, affidavits, and attestations of honour, and all other documents
required to be sworn in causes or matters depending in the Sup-
reme 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 any 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
respectively, 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 sobscribed to any such document as
aforesaid.
25. Any document purporting to have affixed, impressed, or
subscribed thereon or tbereto the seal and signature of any British
ambassador, envoy, minister, charge d'affaires, secretary of
embassy or of legation, or consular officer in testimony of any
As amended by No. 57 of 1911, No. 62 of 1911 and No. 63 of 1911.
As aniended 1~ No. 9 of 1908, No. 622 of 1911 and No. 63 of 191~.
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 in evidence without proof of any such seal and
signature or of the official character of such person.
26. In civil proceedings-
(1) entries in books of account 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 Government
Gazette of any British possession may be proved by the production
thereof;
(3) all proclamations, acts of state, whetber legislative or ex-
ecutive, nominations, appointments, and other official communi-
cations of the Government appearing in any such Gazette may be
proved by its production ;
(4) the Court 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 admis-
sible 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 facic be demmed to be correct, and shall be admitted
in evidence without further proof.
27. All docurnents whatsoever legally filed or re-
corded 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 forelign 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 signature is attached or appended to any
judgment, decree, order, certificate, or other judicial , or official
document.
PART III.
DEPOSITIONS.
29. Whenever it is proved by the oath of any credible witness,
or in any other manner whatsoever it appears, to the satisfaction
of the Supreme Court, that the Attorney General, or other person
conducting a prosecution on behalf of the Crown, is unable to
produce at the trial any person as a witness, in consequence 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 being insame, 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 re-
fuses to quit after application made to him in that behalf; 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 offence
appertained, and that the usual oath, or warning was adminis-
tered, or given 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 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
produced and examined before the said Court in the ordinary
manner, shall be read and received in evidence.
30. The production froni the custody of the proper officer of
the certificate referred to in seetion 29 shall be sufficient proof of
the signature of such or other officer unless
it is proved that such examination was not taken in manner
aforesaid or was not in fact signed by the 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 examination of such person was not signed by the
Magistrate or other officer as aforesaid, if it appears, in manner
aforesaid, that the depositions wherein such examination was in-
cluded were so signed.
.32. Whereas it may happen that a person, so dangerously ill
that he is not likely to recover, and is 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 Perpetuating such testimony and for rendering the same avail-
able in cases of necessity:-
Whenever it is made to appear, to the satisfaction of any
Magistrate or Justice of the Peace, that any person dangerously
ill, and, in the opinion of a medical practitioner, not likely to
recover from such illness, and is unable to travel, is able and
willing to give material information relating to an indictable
offence or to a person accused thereof,it shall be lawful for the
said Magistrate or any Justice of the Peace to take in writing his
statement,Upon oath, and such Magistrate or Justice shall there-
upon subscribe the same, and shall add thereto by way of caption
ai 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 to any indictable offence or to 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 Suprerne 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
offence to which the same may relate, the person who made the
said statement is proved to be dead, or if it is proved that there
is no reasonable probability that such person will ever be able to
travel or to give evidence, it shall be lawful to read such state-
ment in evidence, either for or against the person accused, without
further proof thereof, If the same purports to be signed by the
Magistrate or 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 prosecutor, 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 had, if he
had chosen to be present, full opportunity of cross-examining the
person who made the same.
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 the last section, the Judge or Magistrate by whom
the prisoner was committed, or the Visiting 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 conve 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, 35, rep. No. 8 of 1912, s. 19 ; ss. 36, 37, rep. The
Final Revision Ordinance 1912.]
PART IV.
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 tribunal within the jurisdiction
of the Supreme Court, it shall be lawful for thee 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 purpjose of any person
to be nameed 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 connected
therewith as may appear reasonable and just.
(8) 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 pur-
pose, 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 commercial or criminal proceedings are pend-
ing, is desirous of obtaining the testimony 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 containd 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 connected
therewith as may appear reasonable and just.
(3) Any such order may be enforced in the manner as an order
made by the Court or Judge in any action or other proceeding.
40. A certificate lander the hand of the ambassador,minster 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 any such Foreign Power at
London, received and admitted as such by His Majesty or of the
cosul-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 commercial, 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.
11. When, under any 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 declaration, 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 any action or other pro-
ceeding before the Supreme Court;
(2) that every person examined under any such commission.
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 ordler 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 othor 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. If any person, not being a native of Cbina, who is called as
a witness to give viva race evidence, or is required or desires to
make an affidavit or deposition, in proceedings refuses or
is unwilling from alleged conscientious motives to be sworn, it shall
be lawful for the Court or the person qualified to take affidavits or
depositions, on being satisfied of the sincerity of such objection,
to permit such person instead of being sworn to give evidence or
to make such affidavit or deposition as aforesaid as follows:-
(1) in the case of viva voce evidence he shall make the following
affirmation and declaration:-
'I, A.B., do solemnly, sincerely, and truly affirm and declare
that the taking of an oath is according to my religious belief
unlawful; and I do solemnly, sineerely, and truly affirm and
declare that the evidence which I am about to give shall be
the truth, the whole truth, and nothing but the truth '; and
(2), in the case of an affidavit or deposition or other document
required to be sworn, he shall make and subscribe the following
affirmation and declaration:-
' I, A.B., do solemnly, sincerely, and truly affirm and declare
the taking of an oath is according to my religious belief
that the taking of an oath is according to my religious belief
unlawful; and I do solemnly, sincerelY, and truly affirm and
declare' etc.
44. Every person, not being a Christian or of the Jewish
religion, who is called as a witness to give viva voce evidence, or
is required or.desires to make an affidawit or deposition, in any
proceedings shall in lien of an oath make his declaration, which
shall be duly interpreted to every witness who is ignorant of the
English language, in the manner following:-
(1) in the case of viva voce evidence , he shall make the following
declaration :-
'I, A.B., do solemnly, sincerely and truly deelare that the
evidence which I am about to give shall be, the truth, the whole
truth, and. nothing but the truth';
(2) in the case of an affidavit or deposition or other document
required to be sworn, he shall make and subscribe the following
declaration
'I,A.B,. do solemly and sincerely declare that the contents
of this my affidavit [or information, or deposition, or testifica-
tion, or other document as the case may be] are true.'
45. every affirmation and declaration or declaration alone shall
be of the same force and effect as an oath in the usual form. PART VI.
PERJURY, ETC.
46.Every person making or subscribing any affirmation and
declaration or declaration who wilfully, falsely , and corruptly
affirms , declares , or subscribes any matter or thing which , if the
same had been sworn , would have amounted to wilful and corrupt
perjury shall incur the same penalties as by any law or ordinance
is provided or enacted for the punishment of wilful and corrupt
perjury .
47. where two or more contradictory statements of fact or
alleged fact, material to the issue ro matter in question , have
been wilfully and knowingly made by one and the same witness
in any proceedings before the court, whether at hte same exami-
nation or at two or more examinations , and whether before the
same court or person or before any other court or person , and
whetehr the respective truth or falsehood of the said statements
can be ascertained or not , an indictment may be preferred against
him , charging him with having wilfully and knowingly made the
said contradictory statements, and setting forth the short material
purport or effect thereof resperctively , and , on conviction thereof ,
either in whole or in part, such witness shall be liable to the
penalties of perjury.
48. every person who tenders in evidence in any proceedings
any such affidavit, affirmation , or notarial act within the meaning
of section 19 which is proved to be false , knowing the same to be
false, shall be liable to the penalties of perjury.
49. if any false document within the meaning of section 19 has
been tendered in evidence or the statements mentioned in section
47 or the last of them have or has been so made before the supreme
court or before a magistrate , such court or magistrate may either
direct a prosecution of the same offence for perjury and commit
the offender , unless he gives bail , for trial at the next assize, or
treat the same as contempt of court and forthwith proceed sum-
marily to punish the same either by a fine not exceeding for every
such offence 200 dollars , or by imprisonment for any term not
exceeding 6 months , and such punishment shall be in lien of all
other penalties.
60. It any officer who is authorised or required by this Ordi-
nance to furnish any certified copies or extracts wilfully certifies
any document as being a true copy or extract, knowing that the
same is not a true copy or extract, as the case may be, he shall
be guilty of a misdemeanor, and shall be liable to imprisonment,
without hard labour, for any term not exceeding 18 months.
51.-(1) Every person who-
(a), forges the seal, stamp, or signature of any document mention-
ed or referred to in this Ordinance; or
(b) tenders in evidence any such document with a false or coun-
terfeit seal, stamp, or signature thereto, knowing the same to be
false or counterfeit,
shall be guilty of felony, and shall be liable to imprisonment for
any term not exceeding 7 years.
(2) Whenever any such 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.
PART VII.
MISCELLANEOUS PROVISIONS.
52.-(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 under
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 proceedings depending or to be
inquired of or determined in or before such court, judge,Magis-
trate , or judicature .
(2) such prisoner so 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 corpvs awarded by
the Supreme Court to be brought before the said Court to be
examined as a witness in any cause or matter depending before
the said Court is by law required to be dealt with.
53. Nothing in this Ordinance shall be construed to repeal any
provisions contained in the Wills Act, 1837.
Short title. Interpretation of terms. [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. [ib.s.3; s.2.] Privilege of husband and wife. [ib.s.3.] No incapacity form 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 their husbands and wives in proceedings for adultery. [32 & 33 Vict.c. 68 s.3.] Evidence of parties in action for breach of promise. [ib.s.2.] Discrediting 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 state- ment 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; 34 & 35 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.] Use of affidavit, etc., taken before ambassador, etc. [18 & 19 Vict.c.42 s.2.] Copy of entry in banker's book. [42 & 43 Vict.c.11 ss. 3-6.] Court or 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 counted. [ib.s.11.] Proof of foreign or colonial act of state, judgment, etc. [14 & 15 Vict.c.99, s. 7.] Proof of statutes 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. Proof of various matters in civil proceedings. Admissibility of document filed in foreign Court or consulate. Court 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.] Order for examination of witnesses in the Colony in relation to proceedings pending in foreign country. [19 & 20 Vict.c. 113 s. 1.] Effect of certificate of Ambassador, etc., as evidence in support of application. [19 & 20 Vict.c 113 s.2.] Examination of witness under ss. 38 & 39 [ib. ss. 3,4,5; 22 Vict.c. 20 ss. 6,3.] Administration of oath by the Court. [14 & 15 Vict.c. 99 s. 16.] Affirmation in lieu of oath. [17 & 18 Vict.c. 125 s. 20; 24 & 25 Vict.c. 66 s. 1.] Declaration by non-Christian or non-Jew in lieu of oath. Effect of affirmation, and declaration. Punishment for false affirmation or declaration. [17 & 18 Vict.c. 125 s. 24; 24 & 25 Vict.c. 66 s. 2.] Liability of witness making contradictory statements. Liability for tendering false affidavit, etc. Punishment for tendering in evidence false document or making contradictory statement of fact. [cf. No. 3 of 1873 s. 31.] Punishment of officer certifying false document. [14 & 15 Vict.c. 99 s. 15.] Punishment for forging seal, stamp, or signature of certain documents, etc. [8 & 9 Vict.c. 113 s. 4; 14 & 15 Vict.c. 99 s. 17.] Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict.c. 30 s. 9.] Saving as to Wills Act 1837.
Abstract
Short title. Interpretation of terms. [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. [ib.s.3; s.2.] Privilege of husband and wife. [ib.s.3.] No incapacity form 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 their husbands and wives in proceedings for adultery. [32 & 33 Vict.c. 68 s.3.] Evidence of parties in action for breach of promise. [ib.s.2.] Discrediting 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 state- ment 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; 34 & 35 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.] Use of affidavit, etc., taken before ambassador, etc. [18 & 19 Vict.c.42 s.2.] Copy of entry in banker's book. [42 & 43 Vict.c.11 ss. 3-6.] Court or 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 counted. [ib.s.11.] Proof of foreign or colonial act of state, judgment, etc. [14 & 15 Vict.c.99, s. 7.] Proof of statutes 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. Proof of various matters in civil proceedings. Admissibility of document filed in foreign Court or consulate. Court 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.] Order for examination of witnesses in the Colony in relation to proceedings pending in foreign country. [19 & 20 Vict.c. 113 s. 1.] Effect of certificate of Ambassador, etc., as evidence in support of application. [19 & 20 Vict.c 113 s.2.] Examination of witness under ss. 38 & 39 [ib. ss. 3,4,5; 22 Vict.c. 20 ss. 6,3.] Administration of oath by the Court. [14 & 15 Vict.c. 99 s. 16.] Affirmation in lieu of oath. [17 & 18 Vict.c. 125 s. 20; 24 & 25 Vict.c. 66 s. 1.] Declaration by non-Christian or non-Jew in lieu of oath. Effect of affirmation, and declaration. Punishment for false affirmation or declaration. [17 & 18 Vict.c. 125 s. 24; 24 & 25 Vict.c. 66 s. 2.] Liability of witness making contradictory statements. Liability for tendering false affidavit, etc. Punishment for tendering in evidence false document or making contradictory statement of fact. [cf. No. 3 of 1873 s. 31.] Punishment of officer certifying false document. [14 & 15 Vict.c. 99 s. 15.] Punishment for forging seal, stamp, or signature of certain documents, etc. [8 & 9 Vict.c. 113 s. 4; 14 & 15 Vict.c. 99 s. 17.] Warrant or order to bring up prisoner to give evidence. 16 & 17 Vict.c. 30 s. 9.] Saving as to Wills Act 1837.
Identifier
https://oelawhk.lib.hku.hk/items/show/842
Edition
1912
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 January 22, 2025, https://oelawhk.lib.hku.hk/items/show/842.
