XN000022-1996-03-13 — Page 18

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These two criteria severely restrict the power of the courts in Hong Kong to respond to requests for assistance from other jurisdictions, and cause particular difficulty in relation to civil law jurisdictions. To give an example, in a recent case relating to a request from Italy, the High Court held that it did not have jurisdiction to respond to the request because it was issued by a Magistrate who, under Italian law, was performing the function of a public prosecutor. Therefore, the request was not one made by or on behalf of a court or tribunal. Moreover, the restrictions prevent evidence from being obtained for the purposes of proceedings before an examining magistrate who, under the civil law system, conducts the investigation. In such cases, it cannot be argued that the evidence to be obtained is for the purpose of proceedings which are likely to be instituted.

It is important for Hong Kong to play a full part in the world effort to combat crime. However, it cannot now do this because of the restrictions I have referred to. Our inability to respond satisfactorily to requests for legal assistance could damage Hong Kong's reputation as an important legal, commercial and financial centre. It could also cause problems when Hong Kong seeks to enter into agreements with other jurisdictions in respect of mutual legal assistance.

The Bill proposes to overcome these difficulties by enhancing the powers of the High Court to assist in obtaining evidence for use in other jurisdictions. It does this by allowing a request for assistance from another jurisdiction to be made not only by a court, tribunal or other juridical authority, but also by a prosecuting authority. It also provides that the evidence in question may be obtained for the purposes of a "criminal matter", which is defined to mean a prosecution, an investigation, or an ancillary criminal matter, such as the restraint or confiscation of the proceeds of crime.

The Bill does, however, place restrictions on the power of the courts to obtain evidence. In particular, a person cannot be compelled to give evidence which he could not be compelled to give in Hong Kong on the ground that to do so might tend to incriminate him, or which he could not be compelled to give in the other jurisdiction in the criminal matter for which the evidence is being obtained.

Corroboration rules in respect of sexual offences

I now turn to the proposed abolition of the corroboration rules in respect of sexual offences. Under our law, the general rule is that a court may act on the evidence of a single witness to decide whether or not an accused is guilty. However, in respect of sexual offences, there are special rules of corroboration. The evidence of a witness is corroborated if there is independent testimony implicating the accused. The reason for the corroboration rules in respect of sexual offences is said to be that sexual allegations are easy to make but difficult to refute. The alleged victim's evidence may have been the result of fantasy, spite or remorse.