Hong Kong Evidence Law
PPC Online Lecture Series: LECTURE THREE
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Similar Fact
Evidence
• The law on Similar Fact Evidence
• Past exam questions
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Developments in the law
RELEVANT CASES:
• Makin v AG of NSW [1894] AC 57
• DPP v Boardman [1975] AC 421
• The modern law: DPP v P [1991] 2 AC 447
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DPP v P [1991] 2 AC 447
• As analyzed by the CFI (Anthony Chan J) in The Securities and Futures Commission v Young Bik Fung
[2016] 1 HKLRD 1249 (para 93 et seq)
• HKSAR v Zabed Ali (2003) 6 HKCFAR 192 (para 23)
Read these cases
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How can similar fact evidence be used?
• In criminal proceedings: by the Prosecution and the Defence
• In civil proceedings: “the principle can, in an appropriate case, assist the court in coming to
a just determination on the factual disputes” (Young Bik Fung (supra) at para 98)
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Specimen Direction 22
• Refers to the key cases: DPP v P (supra) and HKSAR v Zabed Ali (supra)
• Provides directions for 3 so-called ‘classic’ similar fact situations: “general guidance only;
must be carefully adapted to suit the needs of each individual case”
• What if the evidence contains evidence of disposition?
• R v Z [2000] 2 Cr App R 285
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Relevant statutory provisions
• Section 54(1)(f)(i) of the Criminal Procedure Ordinance
• Section 29(3) of the Theft Ordinance
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Similar fact evidence admitted
to prove identity
• Harris v DPP [1952] AC 694
• (2 competing ways under Harris) ANCHOR or SEQUENTIAL method v POOLING or CUMULATIVE method
• #1: Anchor/sequential matter:is for the judge to assess each case of similar effect individually and progressively, to consider whether it was likely that
the accused committed the similar act.
• #2 Pooling or cumulative method: this requires the judge to determine if it was likely that the same person committed the offense and the similar acts
and that some evidence exists to connect the accused to the similar acts.
Once the similar fact evidence is admitted, the jury should be directed on how to use the evidence.
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Specimen Direction 22, refers to the issue of similar fact evidence omitted to prove identity.(problem: no guidance to prove the issue)
• Appropriate jury direction? (Wong Wah Yee v HKSAR (2001) 4 HKCFAR 304)
• An attempt to have the issue heard in the Court of Appeal was rejected by the appeal committee in Wong Wah Yee v HKSAR
• The appeal committee said, “We do not think this is a suitable case to test these points and we express no views there on, although of course
arguments were put forward.”
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Similar fact evidence v corroboration
• R v H [1995] 2 AC 596
• HoL case, “where charges of similar offenses were being tried together. And a challenge had been made to the evidence of one complainant being relied on by the
prosecution, has similar evidence regarding the offense against the other complainant on the ground, that there had been either deliberate collusion or the
unconscious influence of one witness by another.The judge in applying the test as to whether the admission of the similar fact evidence would have probative
value, which outweighed its potentially prejudicial effect. Should make that ruling on the assumption that are similar facts alleged were true, since the credibility
of a witness was a matter for the jury,although the possibility that in an exceptional case, the judge in applying the test might be compelled to hold a vote. It could
not be entirely excluded. So that makes the point that similar fact evidence and cooperation are two separate matters.”
DPPv P was followed by HoL
(R v H) “The function of the trial judge is not to decide as an intellectual process whether the evidence satisfies proscribed conditions, but to strike is a matter of individual
judgment in the light of his experience and common sense, a balance between the property value of a similar fact evidence. And it's potentially damaging effect.”
important consideration in the admission of similar fact evidence is on what is the property value of the similar fact evidence
no indication there that cooperation is to play any part of that inquiry.
• Chan Pui Mun v HKSAR FAMC 45/2008, 26.9.2008 (Bokhary PJ)
# in Hong Kong, the position is no different
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Herman Judge Berkarhi, since retired from the Court of Final Appeal, had this to say. “There is no rule. Nor is there any justification for establishing rule that similar
fact evidence must come from a source other than the victim. No analogy can be drawn between similar fact evidence and cooperation. What source a similar fact
evidence would naturally come from would naturally come from depends on the circumstances.”
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VERY CLEAR in whether similar fact evidence have any place to play in HK? NO!
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Past exam questions
• Essay question OR
• Problem question
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Essay question
Where there is no direct evidence that the defendant committed the offence charged but
there is independent evidence that he committed other ‘similar offences’ then evidence of
‘similar fact’ may be admitted. Discuss.
(June 2010 paper, Q3)
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Feedback (re essay question)
• Examiners’ comments -> complete disaster for students
• Many misunderstood
• Most appear to think it was about character evidence or Section 54, because many did not hear of similar
fact as discrete topic
• Identify the leading cases and the principles laid down by them
• Discuss DPP v P; CFA decision;Babed Ali case
• need to say a little bit about how the law has developed to that, the position that is in now.(Boardman's)
• And then you may want to discuss other key areas which I have covered in this lecture.-> Specimen 22 and
the issues of identification and cooperation to go with more detail.
• Discuss other key areas as covered in this lecture
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Problem question
Alvin, a chemist, has been charged with the murder of his wife Betty. Betty was found dead in her apartment having died
after drinking a cup of tea that was laced with cyanide (a poison). Although the prosecution have no direct evidence that
Alvin administered the cyanide, they want to adduce evidence that five years before Alvin married Betty, his former wife
Cindy also died under similar circumstances after drinking a cup of tea laced with cyanide.
(a)
Generally, evidence of a person’s previous convictions or bad character is inadmissible but there can be
circumstances when the courts will not exclude it. Explain the basis for the restricted admissibility of such evidence in
most instances and also the rationale for the admissibility of evidence of bad character as similar fact evidence(Essay
type q).
(b)
Advise Alvin whether the evidence of Cindy’s death would be admissible as similar fact evidence.(PQ)
(June 2018 paper, Q5)
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Feedback (re problem question)
For (a):
•
•
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How has the law developed?
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Macon-> not admissible
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Audubon, in which it was stated that no matter how many times a person may have committed previous fences, it did not prove that he or she may committed the offense with which she is presently charged.
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Modern law, as stated by DPP v P and the admissibility of the evidence being dependent on property value.
Examiners’ comments
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The more persuasive answers may a clear argument that there could be instances when the evidence was not being used to show a general disposition, but was relevant for another reason and would have sufficient probative value to be
admitted despite the prejudicial effect of omitting the evidence.
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GOOD ANS: stating DPP v P; Make it clear to the examiner that propensity or general disposition is not the ground now or the test for admission of similar fact evidence.
HKSAR v Zabed Ali (supra)
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discuss paragraph 23. Which is on considerations for a court when faced with a question of admitting similar fact evidence.
For (b):
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Noor Mohamed v The King [1949] AC 182
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Examiners’ comments
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NEED to say, “judge has the discretion to exclude otherwise admissible evidence if it's prejudicial effect in the minds of the jury outweighs its probity of value.”
•
restating the law that it needs to be DPP v P
•
Applying the facts to the question: One logical argument that could be raised would be that the evidence of Cindy's death was more likely to be prejudicial than probative and would likely be held inadmissible because it appeared to show
Alvin to be more likely to have committed the offense than was otherwise of no real substance.”
•
•
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In offence, Similar fact evidence for purposes of showing propensity, which is not allowed.
Also the question did not state whether Alvin had been charged or convicted for Cindy's death. It appeared that he had not. However, this by itself would be no bar to the admissibility of similar fact evidence.
Section 54(1)(f)(i) CPO?
• Could refer to just me to the similar fact exception under section 54(1) (f)Criminal Procedure Ordinance, which could apply and assist the prosecution to prove guilt if Alvin chose and did testify.
- The End -
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