In Lam v. Chui, the Plaintiff secretly recorded the Defendant acknowledging that the Defendant owed a debt to the Plaintiff. The Plaintiff then sought to adduce this evidence at trial, however counsel for the Defendant opposed this, stating that the admissibility of the recording would be too prejudicial. The Court, however, allowed the recording to be admitted as evidence. The Court stated that there was some probative value to admitting the tape recording, and that any prejudicial effect was not sufficiently significant such that the tape recording should be excluded from the trial.
[25] So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.
[28] I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.” There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.
[32] This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.