Court of Final Appeal Decision

WhatsApp, Hearsay and Ghosts

The Court of Final Appeal handed down a judgment on 9 February 2015 in relation to the admissibility of “WhatsApp” messages in the case of HKSAR v Lau Shing Chung Simon (FACC 6/2014).

The Appellant had been convicted after trial of Common Assault against a Ms Yau. His defence was that he honestly believed Ms Yau consented to his use of force as he was seeking to rid her of a ghost at the time. In support of this defence, the Appellant’s Counsel sought to admit as evidence records of “WhatsApp” messages exchanged between himself and Ms Yau prior to the alleged offence which showed Ms Yau had referred to a spirit that possessed her and showed further that the Defendant could use reasonable force on her when she appeared possessed. A defence witness also testified that the Appellant had consulted him as to whether an exorcism ritual could assist Ms Yau.

At trial, the Magistrate refused to admit the “WhatsApp” messages to prove whether Ms Yau actually consented to the Appellant’s use of force as they were not produced in conformity with section 22A of Evidence Ordinance which applies generally to documents produced by computers. The Magistrate also refused to place any weight on the testimony of the defence witness.

In allowing the appeal, the CFA held that the Magistrate ought to have admitted the “WhatsApp” messages as the Appellant was seeking to rely on them to show that, whether or not she actually consented, the“WhatsApp” messages caused him to believe that she consented to limited force when she acted as if possessed. Therefore the common law rule against hearsay and the need to comply with section 22A of Evidence Ordinance did not arise. The CFA emphasised that there has been an occasional misapprehension as to the ambit of the rule against hearsay testimony which is to always forbids evidence of what somebody has declared, orally or in writing, out of court. As long as its contents are not relied on to prove a fact asserted, it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.

The CFA also held that the Magistrate erred in rejecting the testimony of the defence witness which provided a historical setting to the events and greater credibility to the Appellant’s defence.

Please see HERE for the full judgment

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