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09 April 2019
A recent decision of the High Court confirms that the normal practice for trial of proceedings commenced by writ is for a witness statement to stand as the witness's evidence-in-chief without them having to give such evidence verbally prior to cross-examination. Further, where a person gives a witness statement but is unable to attend the trial, the weight to be attached to that statement (if any) is a matter for the trial judge.(1) In an adversarial trial process, both matters are underpinned (in large measure) by the importance attached to cross-examination of another party's witnesses. In this case, the defendants' application for the plaintiff to give his evidence-in-chief verbally was rejected because the defendants were adequately protected by their right to cross-examine the plaintiff at trial. The defendants' application to rely on the statement of a witness who had died was also rejected because of the prejudicial effect on the plaintiff in not being able to cross-examine that witness.
The main proceedings concerned the plaintiff's claim to adverse possession over certain plots of land so as to defeat the defendants' title.(2) The main issue in dispute was whether the plaintiff had exercised a sufficient degree of exclusive possession and control over the land in dispute. The plaintiff was his own lead witness and claimed that he or his family had occupied the land for some 20 years or more.
The defendants do not appear to have had any witnesses who could testify to the relevant events in question. They did have a statement in the form of a declaration made by a witness in April 2014 (some two months before the proceedings commenced) that appeared to cast doubt on the plaintiff's claim to adverse possession. That witness had since died.
The defendants applied to the court for directions that:
Given the passage of time and the state of the parties' evidence, the defendants' applications were arguably not surprising. In particular, the defendants appeared to want to maximise their opportunity to undermine the credibility of the plaintiff's evidence.
The court dismissed both applications.
Application for plaintiff to give evidence-in-chief viva voce
The court accepted that the credibility of the plaintiff's evidence was important, but considered that it was not the overriding concern on the facts. Much of the plaintiff's witness statement referred to documentary evidence and photographs – the court considered that it would have been a waste of time for the plaintiff to have to go through this material in the witness box as part of his case. The plaintiff's witness statement did not have to be taken at face value at trial and the court considered that the defendants were adequately protected by their right to cross-examine the plaintiff.
Application to adduce declaration of deceased witness
The court noted that the deceased witness's declaration was in the nature of a witness statement and appeared to refer to relevant matters in support of the defendants' claim to title. There was also a good reason for not having been able to call the maker of the statement – namely, he had passed away.
However, the court accepted that the normal rule was that a party whose witness did not attend trial (in order to make themselves available for cross-examination) did not necessarily get to rely on the witness statement. The court still had a discretion as to whether to allow that party to rely on the statement, but such discretion had to be exercised according to the rules of evidence – in particular, Section 49 of the Evidence Ordinance (Cap 8, "Considerations relevant to weighing of hearsay evidence"). While hearsay evidence is prima facie admissible at civil trials, the weight to be attached to it is a matter for the court. The code for exchange of witness statements in the civil procedure rules did not get around the rules of evidence.(3)
Weighing up the balance of considerations in Section 49 of the ordinance, the court noted that, while there had been a good reason for not calling the maker of the statement, the probative value of the statement did not outweigh the prejudicial effect on the plaintiff in being unable to cross-examine the maker.(4) Therefore, the defendants' application was dismissed.
While the outcome in the case is fact specific and has limited precedent value, it is important as it illustrates the conventional thinking among first-instance judges in Hong Kong when considering directions for evidence-in-chief and whether to grant permission to adduce evidence of a statement in the absence of the maker.
Fundamental to the court's reasoning is the importance attached to one party being able to cross-examine another party's witnesses. This goes to the heart of the traditional adversarial nature of a trial process in Hong Kong where facts are in dispute.
The court's refusal to allow the defendants to lead with evidence of a statement made by a deceased witness was not surprising given the importance attached to the plaintiff's ability to test that evidence on cross-examination – particularly, in a case of adverse possession.
The convention (in non-jury civil trials) that a witness statement stands as that person's evidence-in-chief is quite flexible in practice. For example, within reason, witnesses are regularly permitted to amplify their evidence-in-chief and the degree to which they do so depends on (among other things) the nature of the case and the witness, the skill of the trial advocate and the style of the trial judge.
There are legal practitioners who remember what it was like to take a witness through their evidence-in-chief and some consider that this was as much an art form (if not more so) than cross-examination. However, the standard direction in modern day litigation involving witnesses in Hong Kong is for a witness statement to stand as a witness's evidence-in-chief at trial.
For further information on this topic please contact David Smyth or Warren Ganesh at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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