The Court of Final Appeal affirming admissibility of digital photos

The Court of Final Appeal recently heard a case concerning digital evidence of WhatsApp messages in HKSAR v Milne John [2022] HKCFA 22. In discussing the nature of “hearsay evidence”, their Lordships cited HKSAR v Fung Hoi-yeung [2022] 3 HKLRD 833, which concerned digital photos with approval.

Milne John is an unusual international drug trafficking case. The trial judge rules that the photos of WhatsApp messages contained in the defendant’s iPhone were inadmissible and granted a permanent stay of proceeding, terminating the case. The prosecution appealed against the decision to do so.

In allowing the appeal, the CFA clarified when would digital evidence, such as messages and photographs, be admissible when the person generating such content is not in court.

The CFA agreed with the Court of Appeal that photographs are admissible when it was being used to challenge a witness, and thus not for “hearsay purpose”. It is worth noting that the Court of Appeal in Fung Hoi-yeung raised a query about whether photographs are “real evidence” under the common law, and are thus not hearsay evidence. However, the CFA did not address this point. While this remained uncertain in Hong Kong, in practice this would not likely matter.

As observed by the CFA, the use of digital evidence is more prominent than ever. Our law would inevitably evolve with the development of technology and with it new challenges.