Assurance Statements

In February 2011, Swire Properties Ltd (SPL) engaged third parties : The University of Hong Kong (HKU) and Mayer Brown JSM (JSM), to conduct a legal audit for eProject Management System (ePM) on four system issues :

Intellectual Property Rights
Admissibility of Evidence
Integrity of Electronic Data and Documents
System Security

Each engaged party developed an independent review report and assurance statement. The assurance statements, in particular, cover the Admissibility of Evidence issue which is of users’ most concern.

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The University of Hong Kong (香港大學)

Introduction

I have been engaged by Swire Properties Limited (SPL) to conduct a legal audit of SPL's eProject Management System (ePM) with a view to assessing whether the documents and records kept in ePM are admissible as evidence in the courts of Hong Kong.

My responsibility in this engagement is to form an independent conclusion, based on my understanding of the ePM and the laws of Hong Kong, and to report the conclusion in this statement. I do not assume responsibility towards or accept liability to any other person for the contents of this statement.

Work Performed

Within the scope of my engagement I have performed, among other things, the following work :-

· Understanding and evaluating the design of ePM from its technical documents

· Visiting SPL's premises to inspect the computer hardware, daily operation, backup tapes, activity logs, and other administrative documents of ePM

· Attending a presentation by the relevant staff of SPL involved in the design, implementation, maintenance and use of ePM

· Discussing and making enquiries with the relevant staff of SPL

· Conducting follow-up interviews on telephone with the relevant staff of SPL

Findings

· As part of the records of SPL's business, documents and records contained in ePM are admissible as evidence in civil proceedings

· To adduce such documents or records as evidence in civil proceedings, SPL has to produce a certificate stating that the documents or records form part of the records of SPL's business, and signed by a person occupying a responsible position in relation to the relevant business activities of SPL or in relation to the documents or records

· By virtue of satisfying the three conditions in section 22A(2) of the Evidence Ordinance (Cap 8), documents and records kept in ePM are also admissible as evidence in criminal proceedings

· To prove that the three conditions in section 22A(2) are satisfied, a certificate signed by an appropriate person stating that the three conditions are satisfied should be produced in court in accordance with sections 22A(5) and 22A(6) of the Evidence Ordinance

· To merit the maximum possible weight as evidence in any proceedings, documents and records contained in ePM should, as practical as possible, be created contemporaneously with the occurrence or existence of the matters stated therein and be preserved without alteration of their contents

Conclusion

The documents and records contained in ePM are admissible as evidence in both civil and criminal proceedings. To merit the maximum possible weight conferred by the court, such documents and records should, as practical as possible, be created contemporaneously with the occurrence or existence of the matters stated therein and be preserved without alteration of their contents.

Dated this 30th Day of March 2011.

Kevin K H Pun
Barrister-at-law

Associate Professor of Computer Science & Law

The University of Hong Kong

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Mayer Brown JSM (孖士打律師行)

Introduction

We have been engaged by SPL to comment on whether the documents and materials kept in the ePM are admissible as evidence in the Hong Kong courts.

Scope of Our Work

In order to issue this Assurance Statement, we have carried the following tasks:

· Reviewing certain ePM-related technical documents provided by SPL;

· Attending a presentation at the office of SPL to understand the ePM system design, usage, operation, security, maintenance, backup practice and system documentation; and

· Making enquiries with relevant SPL staff relating to the operation of the ePM.

In order to ensure the ePM will be operated and used in accordance with its objectives, we have also helped in reviewing and revising the terms and conditions of the user agreement relating to the ePM and preparing a set of legal guidelines for hosting information on the ePM for SPL's internal project management staff.

Admissibility in Evidence

Pursuant to section 9 of the Electronic Transactions Ordinance (Cap. 553), an electronic record shall not be denied admissibility in evidence in any legal proceeding on the sole ground that it is an electronic record.

The Evidence Ordinance (Cap. 8) further provides for the admissibility of computer evidence for civil and criminal proceedings.

Civil Proceedings

Pursuant to section 54 of the Evidence Ordinance, a document which is shown to form part of the records of a business may be admissible as evidence in civil proceedings. A document shall be taken to form part of the records of a business if there is produced to the court a certificate of that effect signed by an officer of the business to which the record belongs. For the purpose of this section, "business" includes any activity regularly carried on over a period of time, whether for profit or not.

The documents and materials kept in ePM are related to the design, development and management of the properties development projects managed by SPL. We consider that these documents and materials will form part of SPL's business records and thus admissible in courts if a relevant officer of SPL produces a certificate to the court stating this effect.

Criminal Proceedings

Sections 22, 22A and 22B of the Evidence Ordinance provide for the admissibility of computer documents in criminal proceedings.

A statement contained in a computer document will be admissible as prima facie evidence of any fact stated in such statement to the same extent as direct oral evidence if the following conditions set out in section 22A(2) are satisfied:

(a) that the computer was used to store, process or retrieve information for the purposes of any activities carried on by any body;

(b) that the information contained in the statement reproduces or is derived from information supplied to the computer in the course of those activities; and

(i) appropriate measures were in force for preventing unauthorized interference with the computer; and

(ii) the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.

We consider that the documents and materials kept in ePM will fulfil the conditions prescribed for computer documents under section 22A(2)(a), (b) and (c)(i) on the basis that:-

(a) the ePM system is used to store, process or retrieve information for the purposes of ordinary activities carried on by SPL;

(b) the information contained in the documents reproduces or is derived from information supplied to the ePM system in the course of the said activities; and

(c) the security measures currently undertaken by SPL, as we understand it, meet or exceed the standard practice in the IT industry.

Therefore, assuming that the condition under Section 22A(2)(c)(ii) (regarding prevention of interference and proper operation of the computer system) is satisfied, then documents stored in the ePM will be admissible as evidence in criminal proceedings.

Any party seeking to rely on this computer evidence must provide a certificate that is signed by a responsible person in accordance with section 22A(5) and to serve it on the defendant(s) within the prescribed time period under section 22A(6).

Limitations of Our Work and Liability

· This statement is made solely to SPL. We do not accept or assume responsibility to anyone other than SPL for our work, for this statement, or for the views we have formed.

· Our work has been performed based on our understanding of the ePM as presented to us by SPL.

· This statement is effective as of the date of its issuance. We are not obliged to update this statement for any reason, including, without limitation, upon any amendment of the relevant legislation or any change in the practice as to what would be considered as appropriate measures for preventing unauthorized interference with the computer. SPL is advised to review the security of the ePM and the relevant legislation from time to time.

Conclusion

In the circumstances and based on the information set out above, we are satisfied that the documents and materials kept in ePM are admissible as evidence in Hong Kong civil or criminal courts.

Yours faithfully,

Mayer Brown JSM