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Text message evidence in Hong Kong


Jun 18, 2015
In a recent Hong Kong decision, the Court of Final Appeal explained the position on whether smartphone text messages are admissible as evidence in legal proceedings.

In HKSAR v Lau Shing Chung Simon, the Defendant, convicted of common assault, sought to admit as evidence records of “WhatsApp” text messages exchanged between himself and the victim claiming that the victim had consented to the act

A judge at the lower court held that the Defendant could not produce the records of the messages themselves as evidence because they constituted “hearsay evidence” and, as such, they were therefore inadmissible.

Under Hong Kong law, “hearsay evidence” refers to an out-of-court statement introduced as evidence to prove the truth of a matter asserted in court. Subject to certain exceptions, such hearsay evidence is generally inadmissible in legal proceedings.

One exception to this rule can be found under Section 22A of the Evidence Ordinance (“Section 22A”) which states that where a statement contained in a document produced by a computer is tendered as evidence of the truth of facts stated in the document, it is admissible for that purpose provided that certain conditions are met.

The Court of Final Appeal took the view that the judge at the lower court had erred in his interpretation and application of Section 22A in the present case. The appellate Judge explained that given the Defendant was not seeking to rely on the text messages as evidence of the truth of any facts stated in them, rather, he was seeking to rely on the records to show that the statements in them were made as a whole.

Text messages of a person giving evidence in legal proceedings are not necessarily caught by the rule against hearsay evidence and are likely to be admissible as evidence in court. Given the proliferation of text messaging, this is an important case to consider when communicating with others over your smartphone for either commercial or personal reasons.

Publication Date: 18th June 2015
 
 
If you have any questions on the admissibility of text messages as evidence in:-

Civil proceedings - please feel free to contact:-
Chris Lambert | Partner | clambert@robertsonshk.com | +852 2861 8417 (office)
Barry Hoy | Partner | barryhoy@robertsonshk.com | +852 2861 8415 (office)

or

Criminal proceedings – please feel free to contact:-
Kevin Steel | Partner | steel@robertsonshk.com | +852 2861 8419 (office)
or +852 9037 0333 (mobile)
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