The Queen v. Cheung Chee-kwong

DCCC000269/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 269 OF 1976

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Coram: Judge Liu. Q. C. in Court.

Date of Judgment: 8th March 1977

Ruling on admissibility of "PP16(1)-(45)"

Microfilm printouts of computer reports and "PP17"

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JUDGMENT

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1. The prosecution seeks to produce principally the microfilm printouts, "PP16(1)-(45)" of which "PP17(1)-(2)" is an extract. At the inception counsel for the Crown relied on no less than 2 sections, Section 22 and Section 40 of the Evidence Ordinance. Suffice it for me to say that in view of the technicality presented by Section 22(1)(b), counsel for the Crown seems to be content at the closing stage to rest exclusively on Section 40.

2. Mr. Lee, counsel for the accused objects to the admissibility a this bundle of documents and outlines his opposition with usual ability and clarity. Mr. Lee mounts a two-pronged attack: Firstly, counsel invokes the usual principle at Common Law that only the best evidence or best available evidence should be admitted, and counsel urges upon the Court that if it should find no favour with that submission he would take his stand on the construction of as well Section 40 as Section 22 which, counsel submits, are tied for that purpose.

3. Relating to this bundle of documents, Mr. Tam (P.W.3) has told the Court that particulars of banking transactions are instantly fed by or through terminals at the branch office to the computer which is for general use of all the Chartered Bank branches, that daily the computer would yield what has been described as a large sheet of computer reports and that because of their size and for space economy, microfilms are taken of such computer reports for a permanent bank record on the following day. Mr. Tam revealed that credit and withdrawal slips are also being kept by the bank for a period up to approximately 10 years. From the totality of his evidence, it would appear that such documents which have been generalized by counsel for convenience as vouchers are temporarily kept in storage and cannot be conveniently resorted to for immediate reference, and that to all intents and purposes, the bank relies on the information contained in the microfilms. It is fairly obvious that the information in the microfilms is difficult to decipher, if not only by reason of their diminutive size, due to the fact that they might well be in the form of negatives. Consequently whenever information is desired or required, microfilm printouts are obtained. There documents, according to Mr. Tam are such microfilm printouts which he has himself certified as "True Copy", the meaning of which was explained by Mr. Tam as being copies or printouts directly from the microfilms. Mr. Tam has further testified that the computer reports would be destroyed after a period of approximately 6 months and that destruction of stale computer reports is regularly staged once at the end of every month. He indicated categorically at one time that the 1969 computer reports are no longer available, and from his evidence the irresistible inference is that computer reports for the provisional exhibit "PP16" have likewise been disposed of and are unavailable for confirmation today. It is clear that apart from the 10 years temporary storage of vouchers, for the itemised entrises in provisional exhibit "PP16", we are left with the microfilms as the bank's permanent record.

4. On the question of construction, Mr. Lee, counsel for the accused, endeavours to attach the same meaning of the word "document" in Section 22 to that in Section 40, and his argument has the advantage of simplicity. Counsel contends that a document under Section 40 must possess all the attributes of a document admissible under Section 22 in order to bring a print made of a microfilm taken from it within the former section. Section 40. Mr. Lee submits that on the evidence of Mr. Tam, the computer reports have not been shown to be documents admissible under Section 22. That none of the provisional exhibit "PP16" is a print of a microfilm of a document admissible under Section 22 is not a fact seriously disputed by the prosecution, but Mr. Astin craves in aid the extensive meaning of "document" in Section 40 as defined in Section 3 of the Interpretation and General Clauses Ordinance Cap. 1. Counsel for the Grown concludes that any document kept by a bank for a permanent record would be a document within the meaning of that word in Section 40 irrespective of what information it contains and regardless of whether the conditions under Section 22 have been fulfilled, which section, Section 22, Mr. Astin submits, bears no relation to and must be considered disjunctively from Section 40.

5. With Mr. Lee's first submission that the Common Law principle of the Best Evidence Rule should not be departed from except for express enactment, I agree, but that, as submitted by Mr. Astin, is the very purpose which Section 40 or for that very matter sections 20 and 22 were intended to serve. The solution is, in my view, to be found solely on the construction of Section 40. If ever Section 40 could be taken to cmbrace this provisional exhibit "PP16", then the entire matter would rest there, Common Law principle or otherwise. The word "document" in Section 40 has certainly the widest possible application as reflected in its definition in the Interpretation and General Clauses Ordinance, but it does not follow that the same word "document" has a less liberal meaning in Section 22, sub-section 4 whereof seems to extend rather than curtail its coverage and provides that "document" includes any device by means of which information is recorded or stored. The dissimilarity between Section 22 and Section 40 does not seem to lie in the definition of "document" but in the different conditions engrafted onto it. Section 22 deals with documents being or forming part of a business record compiled in the course of business from information supplied by persons who have or may reasonably be expected to have personal knowledge thereof provided that the absence of the person who supplied the information can be satisfactorily accounted for or dispensed with. The real contrast seems to be that whilst a statement in a document can be received in evidence under Section 22 only if direct oral evidence of the fact sought to be established by that statement would be admissible. Section 40 admits a print made of a microfilm taken of any document coming into a bank's possession in order to keep a permanent record thereof. Documents in Section 40 are not restricted to those specified in Section 22, and I do not accept that the wide spectrum of Section 40 has in any way been disrupted by the conditions in Section 22. If, indeed, the legislature had intended similar conditions as those in Section 22 for the admission of a print of the microfilm of a document under Section 40, it could have introduced them explicitly.

6. I hold that the evidence of Mr. Tam is sufficient, at this stage, to establish that the computer report or reports were at one time in the possession of the bank from which microfilm or microfilms were taken to enable a permanent record thereof to be kept, that the computer reports have been discarded and are no longer available, that provisional exhibit "PP16" are prints made from microfilm or microfilms of such computer reports, and that generally all the conditions in Section 40 are shown to have been complied with. In fact, the defence has conceded that the computer reports and thus the microfilms form part of a permanent bank reports record. Consequently, I rule that this bundle of documents "PP16 (1)-(45)" are admissible. But the matter does not rest there. The prosectution sought at one time to produce also the extracts provisional exhibit "PP17", which is obviously inadmissible, although it may offer considerable assistance by way of easy reference for these items or entries in the microfilm printouts. Lastly, I need only add that whilst I agree with Mr. Lee that the usual Common Law principle of the Best Evidence Rule should be adhered to execpt for express legislative provisions, I do not agree with counsel that the computer reports are not, in the circumstances of this case, the best available evidence. Obviously, it would depend on what stage such documents came into being and for what purpose they are being introduced; they may be the best evidence for one matter, but on the other hand, they may not be best evidence for others.

Representation:

Ruling on admissibility of "PP16(1)-(45)"

Microfilm printouts of computer reports and "PP17"