Reforming the hearsay laws should be a matter of priority
Consultations have been promised each of the last three years but have never happened, and much needed reforms have stalled. It’s time to end the cycle of inaction
Justice delayed is justice denied, it is often said. The same is sometimes true when legal reforms lag. The decision by the Department of Justice to drop its prosecution of former nursing home boss Cheung Kin-wah, who was accused of unlawful sex with a mentally disabled woman, understandably prompted public anger and bemusement. Key to that decision was the inability of the alleged victim to give live evidence in court. That meant the evidence against Cheung was too weak to proceed with a trial.
The outcome might have been different if proposals put forward by the Law Reform Commission in 2009 had been implemented. It called for changes to the hearsay rule which prevents, in most cases, witnesses giving evidence about things they have been told. A liberalisation of this rule was proposed by the Commission, so that hearsay evidence which is necessary and reliable can be used. This might apply, it said, where a person cannot give evidence because of mental disability.
Director of Public Prosecutions Keith Yeung Ka-hung SC stated after the controversy over Cheung’s case that the Department of Justice is preparing a draft bill for reforming the hearsay rule and planning a consultation. This is encouraging. However, the department said exactly the same in 2013, 2014, 2015 and earlier this year. The reality is that, each year, a consultation has been promised but not delivered. The reforms have been allowed to stall. We should not be surprised. Carefully considered Law Reform Commission reports often sit on the shelf gathering dust. If they are implemented, they frequently take many years to become law.
Certainly, the proposals tend to involve complex legal matters which require consultation and law drafting. This takes time. But there is a need for a greater urgency in considering and implementing the commission’s suggestions.
There must be no further delay to the reform of hearsay laws. The long-awaited consultation should take place by the end of this year, with legislative amendments to swiftly follow.