HKU Law Collaborates with INTERPOL on the Use of Digital Evidence in Prosecutions in Asia (Report and Training)

The Use of Digital Evidence in Prosecutions in Asia

INTERPOL

February 2022
Executive Summary

Digital evidence has become an essential element of criminal investigations and prosecutions for all types of crimes. This research report by The University of Hong Kong, commissioned by the International Criminal Police Organisation, is a study of the laws governing the use of digital evidence in criminal cases in nine beneficiary countries in Asia, namely the People’s Republic of Bangladesh, the Kingdom of Bhutan, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Maldives, Mongolia, the Federal Democratic Republic of Nepal, the Democratic Socialist Republic of Sri Lanka, and the Socialist Republic of Vietnam. The report also studies the existing legal arrangements that enable these countries to request and obtain digital evidence from abroad in cross-border cases.

      All nine countries are members of the Asia/Pacific Group on Money Laundering, five are members of the South Asian Association for Regional Cooperation (SAARC), four are members of The Commonwealth, and three are members of the Association of Southeast Asian Nations (ASEAN). Six of the countries have mixed common law legal systems, while the other three have civil law systems. The evidence laws of four of the mixed common law jurisdictions are based on or influenced by the Indian Evidence Act of 1872.

     This study has found that the laws and practices in all nine countries generally favour the admissibility and use of digital evidence in criminal cases. No instance was found of a court rejecting digital evidence merely on the grounds that the evidence was in a digital form... Click here to download the full summary.  Professor Simon Young led the HKU research team responsible for preparing the research report.  In May 2022, Professor Young and his team helped to organise the training of prosecutors and police across nine Asian countries in INTERPOL's e-Evidence Programme for Prosecution (Module 2: Legal framework on e-Evidence admissbility).

Simon Young on Teaching Evidence Law in Hong Kong after 1997 (new book chapter)

"Teaching Evidence Law in Hong Kong after 1997"
Simon N. M. Young
in Yvonne Daly, Jeremy Gans & PJ Schwikkard (eds), Teaching Evidence Law: Contemporary Trends and Innovations (Routledge, 2021), Chapter 10, pp. 122-132

Introduction: Hong Kong was a British colony for one hundred and fifty-five years before it was returned to China in 1997 under a constitutional arrangement known as "one country, two systems".  A new apex court, the Court of Final Appeal (CFA), was established in Hong Kong after the abolition of appeals to the Privy Council in London.  The previous common law legal system was preserved but not frozen.  The International Covenant on Civil and Political Rights remained implemented, almost verbatim, by local legislation as a matter of constitutional imperative.  The constitutional instrument, known as the Basic Law, guaranteed that courts could continue to "refer to precedents of other common law jurisdictions" (Article 84), judges could "be recruited from other common law jurisdictions" (Article 92), and "judges from other common law jurisdictions" could be invited to sit on the CFA (Article 82).   Indeed, many distinguished senior judges from the United Kingdom (UK), Australia, New Zealand and recently Canada have been appointed non-permanent members of the CFA, sitting in more than 90 per cent of the cases (Young, and Da Roza, 2014, p. 259). Rules for "lawyers from outside Hong Kong to work and practise" in Hong Kong (Article 94( were maintained and extended.  Many prominent English silks have been admitted ad hoc as leading counsel on important cases requiring their expertise. 

    It was to this unique legal environment I migrated from Canada in 2001 to teach Criminal Law and Evidence Law at the University of Hong Kong (HKU).  At first, I co-taught Evidence at the undergraduate level, but in 2010, I became the sole teacher of a course in the two year Juris Doctor (JD) programme, eventually leaving undergraduate teaching.  In teaching these courses, Hong Kong was like a patch of newly fallen snow.  No student textbooks or casebooks on Hong Kong Evidence Law had been published.  My Hong Kong Evidence Casebook, published in 2004, was a first.  Previous teaching materials were based almost entirely on English evidence cases and little attention was paid to the impact of human rights law (even though our Hong Kong Bill of Rights (HKBOR) had already been in force for a decade). Four years after the handover, the CFA had already shown its preparedness to depart from English authorities.

    In 2001, I knew little of Evidence Law teaching other than what I had absorbed from my LLB course at the University of Toronto, which I very much enjoyed.  I knew more about fact-finding, having articled with appellate criminal lawyers at the Ministry of the Attorney General for Ontario, before becoming one after a stint as a trial prosecutor in Hamilton, Ontario.  With this background, my footprint on HKU teaching was sure to reflect the two aspects of comparative law and legal practice.  My knowledge of Hong Kong legal practice grew steadily, from serving as a member of law reform sub-committees on reforming criminal hearsay and the rule against double jeopardy, practicing as a barrister from 2008 and running a continuing legal education programme for Hong Kong prosecutors from 2011 to 2017 (Young 2012 b; Young 2017).  Even in these realms comparative law was critical. 

    In this chapter, I discuss my experience of using comparative law materials and incorporating experiences from legal practice to enrich Evidence Law teaching.  As most people now know, the implementation of "one country, two systems" in Hong Kong has not been without its challenges.  In the conclusion, I reflect upon whether the civil unrest of 2019, sparked by a proposed bill enabling ad hoc extradition of Hong Kong residents to Mainland China and other places, has implications for the teaching of Evidence in Hong Kong...

Kelvin Kwok on the Standard of Proof in Competition Proceedings (LQR)

"The standard of proof in civil competition proceedings"
Kelvin Kwok
Law Quarterly Review
October 2016, Issue 132, pp 541-547

Abstract: Discusses the relevant Hong Kong decisions (of the Court of First Instance recently in Television Broadcasts Ltd v Communications Authority [2016] 2 HKLRD 41; of the Court of Final Appeal in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170) and UK decisions (of the Competition Appeal Tribunal in Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] CAT 1; JJB Sports plc v Office of Fair Trading [2004] CAT 17; of the House of Lords in Re H (Minors) [1996] AC 563; Re D [2008] 1 WLR 1499; Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11) on the issue of the appropriate standard of proof in civil competition law proceedings. Argues that the application of the civil standard of proof on the balance of probabilities in civil competition law proceedings classified as “criminal” for human rights purposes can be supported by two relevant factors: (i) the workability of the standards in light of the technical nature of the evidence involved; and (ii) the severity of the potential penalty.  Click here to download the paper.

The Scope of Legal Advice Privilege in Hong Kong (CLWR)

"The scope of legal advice privilege in Hong Kong"
Hin Ting Liu (LLB student) and Howard Wong
Common Law World Review
March 2016, Vol. 45, No. 1, 68-75

Abstract: This article considers the recent Hong Kong Court of Appeal decision of Citic Pacific Limited v Secretary for Justice and Commissioner of Police, concerning the scope of legal advice privilege. In departing from the UK position, it was held that all documents gathered or brought into existence for the dominant purpose of obtaining legal advice are protected by legal advice privilege. This is to be welcomed for three reasons. Firstly, the dominant purpose test sits in line with the normative rationale of legal advice privilege. Secondly, the UK position is flawed as a matter of authority. Thirdly, although the ‘dominant purpose’ test appears difficult to apply, it is preferable to the competing alternatives of the sole purpose test and the substantial purpose test. In terms of the practical application of the privilege, it is submitted that the Court of Appeal should have set out a list of guidelines to supplement the dominant purpose test.  

HKU Legal Clinic Helps 71-Year-Old Defendant Win His Appeal in Occupy Youth Assault Case (HKEJ)

"HKU Law Lecturer Wins Reversal of Occupy Assault Conviction"
HKEJ
2 March 2016

A 71-year-old man accused of attacking a student activist during the Occupy Movement in 2014, walked free on Tuesday after the High Court overturned his earlier conviction, Apple Daily reports.

     Man Ho-chun received free legal assistance from the Department of Law of the University of Hong Kong, where the pro-democracy protests to which he was opposed ironically started.

     Man had been charged with common assault after he allegedly attacked the 19-year-old student, surnamed Chan, forcibly removing his yellow ribbon – a symbol of the protest movement – and stabbing his neck with his fingers outside the Bank of China Tower in Admiralty on Oct. 13, 2014.

    Last year a magistrates’ court found him guilty and sentenced him to seven days in jail, although he was granted bail.

     Refusing to accept the ruling, Man decided to appeal and asked for help from the HKU Law Department under its free legal advice scheme.

     He was introduced to Eric Cheung Tat-ming, principal lecturer at the department, who promised to assist him in filing an appeal before the High Court free of charge.

     At the hearing, Cheung told Judge Mrs. Justice Judianna Barnes that the lower court failed to take into consideration Man’s testimony as well as the time, place and other facts of the case, Ming Pao Daily reports.

     Cheung noted that the student did not report the case to the police, athough he claimed the injury was serious and troubled him for days.

     He also said the plaintiff used as evidence a picture purportedly showing Man attacking the teenager, but did not present any witness to attest to the photo’s authenticity.

     The judge agreed that the student did not report to the police immediately after the alleged attack and the authenticity of the online photos provided by Chan had never been verified, thus rendering the previous ruling questionable.

     The judge then overturned the earlier decision and said Man could get a refund of the litigation fee. Man thanked Cheung for helping him clear his name.

     Cheung said HKU’s free legal advice scheme is available for all people regardless of their political persuasion or religious belief.  The HKU Clinical Legal Education Progamme was awarded the Faculty Knowledge Exchange Award 2015.

The Big Idea: Evidence (RTHK Radio 3)

The Big Idea: Evidence

RTHK Radio 3

28 February 2015

The final programme in the current series focuses on the concept of "evidence". We persuade people of the rightness of our theories and assertions by logic or by evidence, or a combination of the two.

     Evidence is a key concept in a number of domains, though it means different things to a lawyer, a scientist, or a historian. We love evidence: fictional crime stories nearly always turn on evidential drama, and the classic detective like Sherlock Holmes is expert at making material discoveries – a footprint, a bloodstain, a stolen document – that prove the guilt or innocence of parties suspected – or unsuspected – by the police. These adventures may not, however, correspond very closely to actual police or legal procedure. 

     Evidence can support, test, or falsify a theory: it’s the main business of courtroom testimony, of humanistic research, and of the experimental method of the sciences. It may be direct or circumstantial. But what counts as evidence? Can it conclusively and permanently prove a truth? Both scientists and lawyers have strict rules about what constitutes evidence, how it can be obtained and presented, what makes it admissible or not. Interestingly, the testimony of both scientists and legal witnesses is underwritten by a declaration of honour, and this is one thing that makes the production and disputation of evidence an always fascinating human drama. 

    Douglas Kerr takes evidence about evidence from two eminent legal figures, Simon Young and Marco Wan, both Associate Deans in the Faculty of Law at the University of Hong Kong.  Click here to listen to the programme.