Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 35

PROCEDURE AT TRIAL

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 1. Failure to
appear by both parties or one of them (O. 35, r. 1)

(1) If, when the trial of an action is called on, neither party appears,
the action may be struck out of the list, without prejudice, however, to the
restoration thereof, on the direction of a judge.

(2) If, when the trial of an action is called on, one party does not appear,
the judge may proceed with the trial of the action or any counterclaim in the
absence of that party.

2. Judgment, etc., given in absence of party may be set aside (O. 35, r. 2)

(1) Any judgment, order or verdict obtained where one party does not appear at
the trial may be set aside by the Court, on the application of that party, on
such terms as it thinks just.

(2) An application under this rule must be made within 7 days after the trial.

3. Adjournment of trial (O. 35, r. 3)

The judge may, if he thinks it expedient in the interest of justice, adjourn a
trial for such time, and to such place, and upon such terms, if any, as he
thinks fit.

7. Order of speeches (O. 35, r. 7)

(1) The judge before whom an action is tried (whether with or without a jury)
may give directions as to the party to begin and the order of speeches at the
trial, and, subject to any such directions, the party to begin and the order
of speeches shall be that provided by this rule.

(2) Subject to paragraph (6), the plaintiff shall begin by opening his case.

(3) If the defendant elects not to adduce evidence, then, whether or not the
defendant has in the course of cross-examination of a witness for the
plaintiff or otherwise put in a document, the plaintiff may, after the
evidence on his behalf has been given, make a second speech closing his case
and the defendant shall then state his case.

(4) If the defendant elects to adduce evidence, he may, after any evidence on
behalf of the plaintiff has been given, open his case and, after the evidence
on his behalf has been given, make a second speech closing his case, and at
the close of the defendant's case the plaintiff may make a speech in reply.

(5) Where there are 2 or more defendants who appear separately or are
separately represented, then-

   (a)  if none of them elects to adduce evidence, each of them shall state
        his case in the order in which his name appears on the record;

   (b)  if each of them elects to adduce evidence, each of them may open his
        case and the evidence on behalf of each of them shall be given in the
        order aforesaid and the speech of each of them closing his case shall
        be made in that order after the evidence on behalf of all the
        defendants has been given;

   (c)  if some of them elect to adduce evidence and some do not, those who do
        not shall state their cases in the order aforesaid after the speech of
        the plaintiff in reply to the other defendants.

(6) Where the burden of proof of all the issues in the action lies on the
defendant or, where there are two or more defendants and they appear
separately or are separately represented, on one of the defendants, the
defendant or that defendant, as the case may be, shall be entitled to begin,
and in that case paragraphs (2), (3) and (4) shall have effect in relation to,
and as between, him and the plaintiff as if for references to the plaintiff
and the defendant there were substituted references to the defendant and the
plaintiff respectively.

(7) Where, as between the plaintiff and any defendant, the party who would,
but for this paragraph, be entitled to make the final speech raises any fresh
point of law in that speech or cites in that speech any authority not
previously cited, the opposite party may make a further speech in reply, but
only in relation to that point of law or that authority, as the case may be.

8. Inspection by judge or jury (O. 35, r. 8)

(1) The judge by whom any cause or matter is tried may inspect any place or
thing with respect to which any question arises in the cause or matter.

(2) Where a cause or matter is tried with a jury and the judge inspects any
place or thing under paragraph (1), he may authorize the jury to inspect it
also.

9. Death of party before giving of judgment (O. 35, r. 9)

Where a party to any action dies after the verdict or finding of the issues of
fact and before judgment is given, judgment may be given notwithstanding the
death, but the foregoing provision shall not be taken as affecting the power
of the judge to make an order under Order 15, rule 7(2), before giving
judgment.

10. Certificate of judicial clerk (O. 35, r. 10)

At the conclusion of the trial of any action, the judicial clerk or other
officer in attendance at the trial shall make a certificate in which he shall
certify-

   (a)  the time actually occupied by the trial,

   (b)  any order made by the judge under Order 38, rule 5 or 6,

   (c)  every finding of fact by the jury, where the trial was with a jury,

   (d)  the judgment given by the judge, and

   (e)  any order made by the judge as to costs.

11. List of exhibits (O. 35, r. 11)

(1) The judicial clerk or other officer in attendance at the trial shall take
charge of every document or object put in as an exhibit during the trial of
any action and shall mark or label every exhibit with a letter or letters
indicating the party by whom the exhibit is put in or the witness by whom it
is proved, and with a number, so that all the exhibits put in by a party, or
proved by a witness, are numbered in one consecutive series. In this paragraph
a witness by whom an exhibit is proved includes a witness in the course of
whose evidence the exhibit is put in.

(2) The judicial clerk or other officer in attendance at the trial shall cause
a list to be made of all the exhibits in the action, and any party may, on
payment of the prescribed fee, have an office copy of that list.

(3) The list of exhibits when completed shall form part of the record of
the action. (L.N. 103 of 1994)

(4) For the purpose of this rule a bundle of documents may be treated and
counted as one exhibit.

12. Exhibits retained by Registrar pending appeal (O. 35, r. 12)

(HK)(1) Unless the Court otherwise directs, the Registrar shall retain in his
custody all exhibits duly marked and labelled until-

   (a)  the expiration of the time limited by these rules for appealing to
        the Court of Appeal, or such extended period therefor as may be
        allowed; and thereafter

   (b)  in the event of an appeal to the Court of Appeal, the final disposal
        of such appeal; and thereafter

   (c)  the expiration of the time limited by Order in Council for applying to
        the Court of Appeal for leave to appeal to the Court of Final Appeal,
        or such extended period therefor as may be allowed; and thereafter

   (d)  in the event of the Court of Appeal or the Court of Final Appeal
        giving leave to appeal to the Court of Final Appeal, the
        non-fulfilment of any condition for such leave to appeal or the final
        disposal of such appeal.

(2) Unless the Court otherwise directs, upon the expiration of the time
limited for retention of exhibits fixed under paragraph (1) it shall be the
duty of every party to an action who has put in any exhibits, and where
represented, of his solicitor on the record, to apply to the Registrar for the
return of the exhibits and to collect the same.

(25 of 1998 s. 2)

13. Impounded documents (O. 35, r. 13)

(1) Documents impounded by order of the Court shall not be delivered out of
the custody of the Court except in compliance with an order made by a judge on
an application made by motion: Provided that where the Secretary for Justice
makes a written request in that behalf, documents so impounded shall be
delivered into his custody. (L.N. 362 of 1997)

(2) Documents impounded by order of the Court, while in the custody of
the Court, shall not be inspected except by a person authorized to do so by an
order signed by a judge. (Enacted 1988)