This lecture is designed to interest not only lawyers, but also persons from other walks of life (the law’s vitality being highly dependent on “lay” input).

How facts are proved has evolved and is evolving. There was a time when the method of proving that someone was a witch made death the inevitable consequence of an accusation. That method came to be replaced by a lesser absurdity. By how he handled proof under this replacement, Lord Mansfield virtually abolished the “crime”. Surprisingly, a vestige of trial by combaast was judicially recognized as recently as 1818. Unsurprisingly, it was abolished by statute the following year. In 1954, there was a case between two boxers as to which of them was legally the champion. The judge half-jokingly regretted that he could not order trial by combat.

Sometimes finding the facts is a prelude to applying the law to them. At other times, as in The Case of Eight Loves decided in ancient Arabia, finding the facts concludes the case.

Proving facts has been changed by advances in science in regard to, among other things, bloodstains, fingerprints, ballistics and, above all, DNA (subject to any issue as to contamination). Persons acquitted before the advent of DNA evidence have, years later, upon DNA evidence, had their acquittals quashed and been convicted upon retrial. On the other side of the coin, a man convicted of murder was recently freed upon DNA evidence after spending 38 years in prison. There is a claim that DNA found on a shawl of a victim of Jack the Ripper has identified that most notorious of serial killers. If DNA evidence had been available then, the 10 Rillington Place murders might have been laid at the guilty Christie’s door in time to spare the innocent Evans from hanging. Four decades after the A6 murder in 1962, DNA evidence showed that Hanratty was indeed guilty. A famous trial on whether a claimant was the son of a Rajah lasted 608 working days. If DNA evidence had been available then, it might have obviated the need for any trial let alone a long one.

AI, approached with due caution, is useful when researching the law. It can also be resorted to in regard to the facts, for example when taking judicial notice after inquiry or when inserting social facts into Brandeis briefs and their like.

In traditional and modern societies alike, parties tend to adduce evidence more with a view to winning their cases than with establishing truth. That is a reality to be coped with.

Neither in civil nor in criminal cases does the burden of proof shift. Res ipsa loquitur reasoning in civil cases does not create a burden of disproof. Where the presumption of innocence is entrenched, reverse-onus provisions in criminal cases will either be read down to shift only and an evidential (rather than a persuasive) burden or else be struck down.

Crucial issues in civil and criminal cases alike are often resolved by inferential reasoning, the difference being that nothing will be inferred against a person charged with a crime unless it is the only reasonable inference.

Courts consider inherent probabilities and the demeanour of witnesses. It is important to guard against fading memory and growing imagination. Creditably, the taking of statements from Titanic survivors began within hours of the rescue ship the Carpathia tying up at New York.

Circumstantial evidence is unlike a chain as strong only as its weakest link. Like a rope, it has the combined strength of all its strands woven together.

Cross-examination is very important, but is actually more apt to expose falsehood than discover truth.

If the facts are proved up the hilt, “the proviso” can save a result from being vitiated by legal error.

The common law rules of evidence came upon the scene later than one might think. They were conspicuously absent when Sir Walter Raleigh was tried for high treason in the early part of the17th century. These rules are technical, but neither in international nor domestic proceedings should we lose sight of the substantial justice such that such technicalities are meant to safeguard. When these rules are relaxed by statute, care must be taken to maintain such safeguards.

Sherlock Holmes’s reference to “the curious incident of the dog in the night-time” is relevant to legal proceedings. But there is little, if any, room in legal proceedings for applying his dictum that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth.”

The courts are duty-bound to keep up-to-date and just the substantive, procedural and evidential law they develop and apply.

About the Speaker:

Kemal Bokhary, a Permanent Judge of the Hong Kong Court of Final Appeal from 1 July 1997 to 25 October 2012 and a Non-Permanent Judge of that Court since then.

Register here on or before 5 October 2026, 10:00am (HKT). First come first served.