Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 39

EVIDENCE BY DEPOSITION

1. Power to order depositions to be taken (O. 39, r. 1)

(1) The Court may, in any cause or matter where it appears necessary for the
purposes of justice, make an order (in Form No. 32 in Appendix A) for the
examination on oath of any person at any place in Hong Kong by-

   (a)  a judge;

   (b)  the Registrar; or

   (c)  any other person,

(in this Order both the Registrar and any other person are referred to as
the "examiner"). (See also Appendix A, Form 31)

(2) An order under paragraph (1) may be made on such terms

(including, in particular, terms as to the giving of discovery before the
examination takes place) as the Court thinks fit and may contain an order for
the production of any document which appears to the Court to be necessary for
the purposes of the examination.

4. Enforcing attendance of witness at
examination (O. 39, r. 4)

Where an order has been made under rule 1 for the examination of any person,
the attendance of that person for examination and the production by him of any
document at the examination may be enforced by writ of subpoena in like manner
as the attendance of a witness and the production by a witness of a document
at a trial may be enforced.

5. Refusal of witness to attend, be sworn, etc.
before the examiner (O. 39, r. 5)

(1) If any person, having been duly summoned by writ of subpoena to attend
before the examiner, refuses or fails to attend or refuses to be sworn for the
purpose of the examination or to answer any lawful question or produce any
document therein, a certificate of his refusal or failure, signed by the
examiner, must be filed in the Registry, and upon the filing of the
certificate the party by whom the attendance of that person was required may
apply to the Court for an order requiring that person to attend, or to be
sworn, or to answer any question or produce any document, as the case may be.

(2) An application for an order under this rule may be made ex parte.

(3) If the Court makes an order under this rule it may order the person
against whom the order is made to pay any costs occasioned by his refusal or
failure.

(4) A person who wilfully disobeys any order made against him under paragraph
(1) is guilty of contempt of court.

6. Appointment of time and place for
examination (O. 39, r. 6)

(1) The examiner, or, if the examination has been ordered to take place before
a judge, the Registrar, must give the party on whose application the order for
examination was made a notice appointing the place and time at which, subject
to any application by the parties, the examination shall be taken, and such
time shall, having regard to the convenience of the persons to be examined and
all the circumstances of the case, be as soon as practicable after the making
of the order.

(2) The party to whom a notice under paragraph (1) is given must, on receiving
it, forthwith give notice of the appointment to all the other parties.

7. Duty to supply certain documents (O. 39, r. 7)

The party on whose application the order for examination was made must supply
the judge or the examiner before whom the examination has been ordered to take
place with copies of such of the documents in the cause or matter as are
necessary to inform him of the questions at issue in the cause or matter.

8. Conduct of examination (O. 39, r. 8)

(1) Subject to any directions contained in the order for examination-

   (a)  any person ordered to be examined may be cross-examined and
        re-examined; and

   (b)  the examination, cross-examination and re-examination shall be
        conducted in like manner as at the trial of a cause or matter.

(2) The judge or examiner before whom the examination takes place may put any
question to any person examined before him as to the meaning of any answer
made by that person or as to any matter arising in the course of the
examination.

(3) The examination may, if necessary, be adjourned from time to time.

9. Examination of additional witnesses (O. 39, r. 9)

The judge or examiner before whom the examination takes place may, with the
written consent of all the parties to the cause or matter, take the
examination of any person in addition to those named or provided for in the
order for examination, and must annex such consent to the original deposition
of that person.

10. Objection to questions where examination
is before an examiner (O. 39, r. 10)

(1) If any person being examined before an examiner objects to answer any
question put to him, or if objection is taken to any such question, that
question, the ground for the objection and the answer to any such question to
which objection is taken must be set out in the deposition of that person or
in a statement annexed thereto.

(2) The validity of the ground for objecting to answer any such question or
for objecting to any such question shall be decided by a judge and not by the
examiner, but the examiner must state to the parties his opinion thereon, and
the statement of his opinion must be set out in the deposition or in a
statement annexed thereto.

(3) If the judge decides against the person taking the objection it may order
him to pay the costs occasioned by his objection.

11. Taking of depositions (O. 39, r. 11)

(1) The deposition of any person must be taken down by the judge or the
examiner before whom the examination takes place or a shorthand writer or some
other person in his presence but, subject to paragraph (2) and rule 10(1), the
deposition need not set out every question and answer so long as it contains
as nearly as may be the statement of the person examined.

(2) The judge or the examiner before whom the examination takes place may
direct the exact words of any particular question and the answer thereto to be
set out in the deposition if that question and answer appear to him to have
special importance.

(3) The deposition of any person shall be read to him, and he shall be asked
to sign it, in the presence of such of the parties as may attend, but the
parties may agree in writing to dispense with the foregoing provision. If a
person refuses to sign a deposition when asked under this paragraph to do so,
the judge or the examiner before whom the examination takes place must sign
the deposition.

(4) The original deposition of any person, authenticated by the signature of
the judge or the examiner before whom it was taken, must be sent by the judge
or an examiner not being the Registrar to the Registry and shall be filed
therein.

12. Time taken by examination to be indorsed on
depositions where examination is before
an examiner (O. 39, r. 12)

Before sending any deposition to the Registry under rule 11(4) the examiner
not being the Registrar must indorse on the deposition a statement signed by
him of the time occupied in taking the examination and the fees received in
respect thereof.

13. Special report by examiner (O. 39, r. 13)

The examiner may make a special report to a judge with regard to any
examination taken before him and with regard to the absence or conduct of any
person thereat, and the judge may direct such proceedings to be taken, or make
such order, on the report as he thinks fit.

14. Order for payment of examiner's fees (O. 39, r. 14)

(1) If the fees and expenses due to an examiner not being the Registrar are
not paid he may report that fact to the Court, and the Court may direct the
Law Officer (Civil Law) to apply for an order against the party on whose
application the order for examination was made to pay the examiner the fees
and expenses due to him in respect of the examination.

(2) An order under this rule shall not prejudice any determination on the
taxation of costs or otherwise as to the party by whom the costs of the
examination are ultimately to be borne.