Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 38

EVIDENCE

Caution: This is a past version. See the current version here.

Adaptation amendments retroactively made - see 25 of 1998 s. 2 I. GENERAL
RULES

1. General rule: witnesses to be examined orally (O. 38, r. 1)

Subject to the provisions of these rules and of the Evidence Ordinance (
Cap 8) and any other written law relating to evidence, any fact required to be
proved at the trial of any action begun by writ by the evidence of witnesses
shall be proved by the examination of the witnesses orally and in open court.

2. Evidence by affidavit (O. 38, r. 2)

(1) The Court may, at or before the trial of an action begun by writ, order
that the affidavit of any witness may be read at the trial if in the
circumstances of the case it thinks it reasonable so to order.

(2) An order under paragraph (1) may be made on such terms as to the filing
and giving of copies of the affidavits and as to the production of the
deponents for cross-examination as the Court thinks fit but, subject to any
such terms and to any subsequent order of the Court, the deponents shall not
be subject to cross-examination and need not attend the trial for the purpose.

(3) In any cause or matter begun by originating summons, originating motion or
petition, and on any application made by summons or motion, evidence may be
given by affidavit unless in the case of any such cause, matter or application
any provision of these rules otherwise provides or the Court otherwise
directs, but the Court may, on the application of any party, order the
attendance for cross-examination of the person making any such affidavit, and
where, after such an order has been made, the person in question does not
attend, his affidavit shall not be used as evidence without the leave of
the Court.

2A. Exchange of witness statements (O. 38, r. 2A)

(1) The powers of the Court under this rule shall be exercised for the purpose
of disposing fairly and expeditiously of the cause or matter before it, and
saving costs, having regard to all the circumstances of the case, including
(but not limited to)-

   (a)  the extent to which the facts are in dispute or have been admitted;

   (b)  the extent to which the issues of fact are defined by the pleadings;

   (c)  the extent to which information has been or is likely to be provided
        by further and better particulars, answers to interrogatories or
        otherwise.

(2) At the hearing of a summons for directions in an action commenced by writ
the Court shall direct every party to serve on the other parties, within such
period of the hearing as the Court may specify and on such terms as the Court
may specify, written statements of the oral evidence which the party intends
to adduce on any issues of fact to be decided at the trial. The Court may give
a direction to any party under this paragraph at any other stage of such an
action and at any stage of any other cause or matter. Order 3, rule 5(3) shall
not apply to any period specified by the Court under this paragraph.

(3) Directions under paragraph (2) or (17) may make different provision with
regard to different issues of fact or different witnesses.

(4) Statements served under this rule shall-

   (a)  be dated and, except for good reason (which should be specified by
        letter accompanying the statement), be signed by the intended witness
        and shall include a statement by him that the contents are true to the
        best of his knowledge and belief;

   (b)  sufficiently identify any documents referred to therein; and

   (c)  where they are to be served by more than one party, be exchanged
        simultaneously.

(5) Where a party is unable to obtain a written statement from an intended
witness in accordance with paragraph (4)(a), the Court may direct the party
wishing to adduce that witness's evidence to provide the other party with the
name of the witness and (unless the Court otherwise orders) a statement of the
nature of the evidence intended to be adduced.

(6) Subject to paragraph (9), where the party serving a statement under this
rule does not call the witness to whose evidence it relates, no other party
may put the statement in evidence at the trial.

(7) Subject to paragraph (9), where the party serving the statement does call
such a witness at the trial-

   (a)  except where the trial is with a jury, the Court may, on such terms as
        it thinks fit, direct that the statement served, or part of it, shall
        stand as the evidence in chief of the witness or part of such
        evidence;

   (b)  the party may not without the consent of the other parties or the
        leave of the Court adduce evidence from that witness the substance of
        which is not included in the statement served, except-

        (i)    where the Court's directions under paragraph (2) or (17)
               specify that statements should be exchanged in relation to only
               some issues of fact, in relation to any other issues;

        (ii)   in relation to new matters which have arisen since the
               statement was served on the other party;

   (c)  whether or not the statement or any part of it is referred to during
        the evidence in chief of the witness, any party may put the statement
        or any part of it in cross-examination of that witness.

(8) Nothing in this rule shall make admissible evidence which is otherwise
inadmissible.

(9) Where any statement served is one to which the Evidence  Ordinance (
Cap 8) applies, paragraphs (6) and (7) shall take effect subject to the
provisions of that Ordinance and Parts III and IV of this Order. The service
of a witness statement under this rule shall not, unless expressly so stated
by the party serving the same, be treated as a notice under that Ordinance;
and where a statement or any part thereof would be admissible in evidence by
virtue only of that Ordinance, the appropriate notice under Part III or IV of
this Order shall be served with the statement notwithstanding any provision of
those Parts as to the time for serving such a notice. Where such a notice is
served, a counter-notice shall be deemed to have been served under rule 26(1).

(10) Where a party fails to comply with a direction for the exchange of
witness statements he shall not be entitled to adduce evidence to which the
direction related without the leave of the Court.

(11) Where a party serves a witness statement under this rule, no other person
may make use of that statement for any purpose other than the purpose of the
proceedings in which it was served-

   (a)  unless and to the extent that the party serving it gives his consent
        in writing or the Court gives leave; or

   (b)  unless and to the extent that it has been put in evidence

(whether pursuant to a direction under paragraph (7)(a) or otherwise).

(12) Subject to paragraph (13), the judge shall, if any person so requests
during the course of the trial, direct the Clerk of Court to certify as open
to inspection any witness statement which was ordered to stand as evidence in
chief under paragraph (7)(a). A request under this paragraph may be made
orally or in writing.

(13) The judge may refuse to give a direction under paragraph (12) in relation
to a witness statement, or may exclude from such a direction any words or
passages in a statement, if he considers that inspection should not be
available-

   (a)  in the interests of justice or national security;

   (b)  because of the nature of any expert medical evidence in the statement;
        or

   (c)  for any other sufficient reason.

(14) Where the Clerk of Court is directed under paragraph (12) to certify a
witness statement as open to inspection he shall-

   (a)  prepare a certificate which shall be attached to a copy ("the
        certified copy") of that witness statement; and

   (b)  make the certified copy available for inspection.

(15) Subject to any conditions which the Court may by special or general
direction impose, any person may inspect and (subject to payment of the
prescribed fee) take a copy of the certified copy of a witness statement from
the time when the certificate is given until the end of 7 days after the
conclusion of the trial.

(16) In this rule-

   (a)  any reference in paragraphs (12) to (15) to a witness statement shall,
        in relation to a witness statement of which only part has been ordered
        to stand as evidence in chief under paragraph (7)(a), be construed as
        a reference to that part;

   (b)  any reference to inspecting or copying the certified copy of a witness
        statement shall be construed as including a reference to inspecting or
        copying a copy of that certified copy.

(17) The Court shall have power to vary or override any of the provisions of
this rule (except paragraphs (1), (8) and (12) to (16)) and to give such
alternative directions as it thinks fit. (L.N. 223 of 1995)

3. Evidence of particular facts (O. 38, r. 3)

(1) Without prejudice to rule 2, the Court may, at or before the trial of any
action, order that evidence of any particular fact shall be given at the trial
in such manner as may be specified by the order.

(2) The power conferred by paragraph (1) extends in particular to ordering
that evidence of any particular fact may be given at the trial-

   (a)  by statement on oath of information or belief, or

   (b)  by the production of documents or entries in books, or

   (c)  by copies of documents or entries in books, or

   (d)  in the case of a fact which is or was a matter of common knowledge
        either generally or in a particular district, by the production of a
        specified newspaper which contains a statement of that fact.

4. Limitation of expert evidence (O. 38, r. 4)

The Court may, at or before the trial of any action, order that the number of
medical or other expert witnesses who may be called at the trial shall be
limited as specified by the order.

5. Limitation of plans, etc., in evidence (O. 38, r. 5)

Unless, at or before the trial, the Court for special reasons otherwise
orders, no plan, photograph or model shall be receivable in evidence at the
trial of an action unless at least 10 days before the commencement of the
trial the parties, other than the party producing it, have been given an
opportunity to inspect it and to agree to the admission thereof without
further proof.

6. Revocation or variation of orders under rules 2 to 5 (O. 38, r. 6)

Any order under rules 2 to 5 (including an order made on appeal) may, on
sufficient cause being shown, be revoked or varied by a subsequent order of
the Court made at or before the trial.

7. Evidence of finding on foreign law (O. 38, r. 7)

(1) A party to any cause or matter who intends to adduce in evidence a finding
or decision on a question of foreign law by virtue of section 59 of the
Evidence Ordinance ( Cap 8) shall-

   (a)  in the case of an action to which Order 25, rule 1, applies within 14
        days after the pleadings in the action are deemed to be closed, and

   (b)  in the case of any other cause or matter, within 21 days after the
        date on which an appointment for the first hearing of the cause or
        matter is obtained, or in either case, within such other period as
        the Court may specify, serve notice of his intention on
        every other party to the proceedings.

(2) The notice shall specify the question on which the finding or decision was
given or made and specify the document in which it is reported or recorded in
citable form.

(3) In any cause or matter in which evidence may be given by affidavit, an
affidavit specifying the matters contained in paragraph (2) shall constitute
notice under paragraph (1) if served within the period mentioned in that
paragraph.

8. Application to trials of issues, references, etc. (O. 38, r. 8)

The foregoing rules of this Order shall apply to trials of issues or questions
of fact or law, references, inquiries and assessments of damages as they apply
to the trial of actions.

9. Depositions: when receivable in evidence at trial (O. 38, r. 9)

(1) No deposition taken in any cause or matter shall be received in evidence
at the trial of the cause or matter unless-

   (a)  the deposition was taken in pursuance of an order under Order 39, rule
        1, and

   (b)  either the party against whom the evidence is offered consents or it
        is proved to the satisfaction of the Court that the deponent is dead,
        or beyond the jurisdiction of the Court or unable from sickness or
        other infirmity to attend the trial.

(2) A party intending to use any deposition in evidence at the trial of a
cause or matter must, a reasonable time before the trial, give notice of his
intention to do so to the other party.

(3) A deposition purporting to be signed by the person before whom it was
taken shall be receivable in evidence without proof of the signature being the
signature of that person.

10. High Court documents admissible or receivable in evidence (O. 38, r. 10)

(1) Office copies of writs, records, pleadings and documents filed in the High
Court shall be admissible in evidence in any cause or matter and between all
parties to the same extent as the original would be admissible.

(2) Without prejudice to the provisions of any enactment, every document
purporting to be sealed with the seal of any office or department of the High
Court shall be received in evidence without further proof, and any document
purporting to be so sealed and to be a copy of a document filed in, or issued
out of, that office or department shall be deemed to be an office copy of that
document without further proof unless the contrary is shown.

(25 of 1998 s. 2)

11. Evidence of consent of new trustee to act (O. 38, r. 11)

A document purporting to contain the written consent of a person to act as
trustee and to bear his signature verified by some other person shall be
evidence of such consent.

12. Evidence at trial may be used in subsequent proceedings (O. 38, r. 12)

Any evidence taken at the trial of any cause or matter may be used in any
subsequent proceedings in that cause or matter.

13. Order to produce document at proceeding other than trial (O. 38, r. 13)

(1) At any stage in a cause or matter the Court may order any person to attend
any proceeding in the cause or matter and produce any document, to be
specified or described in the order, the production of which appears to
the Court to be necessary for the purpose of that proceeding.

(2) No person shall be compelled by an order under paragraph (1) to produce
any document at a proceeding in a cause or matter which he could not be
compelled to produce at the trial of that cause or matter.

II. WRITS OF SUBPOENA

14. Form and issue of writ of subpoena (O. 38, r. 14)

(1) A writ of subpoena must be in Form No. 28 or 29 in Appendix A, whichever
is appropriate.

(2) Issue of a writ of subpoena takes place upon its being sealed by an
officer of the Court.

(3) Where a writ of subpoena is to be issued in a cause or matter in
the Court, the appropriate office for the issue of the writ is the Registry.
(HK)(5) Before a writ of subpoena is issued a praecipe for the issue of the
writ must be filed in the Registry together with a note from a judge or master
authorizing the issue of such writ and the sum of $500 shall be deposited in
the Registry, in addition to any fee payable in respect of such issue, as a
deposit in respect of the witness' reasonable expenses; and the praecipe must
contain the name and address of the party issuing the writ, if he is acting in
person, or the name or firm and business address of that party's solicitor and
also (if the solicitor is the agent of another) the name or firm and business
address of his principal. (HK)(6) In any proceedings, whether in chambers or
in court, the  Court may order the reimbursement by one or more of the parties
to a witness who has been served with a writ of subpoena in respect of any
expenses reasonably and properly incurred by that witness. (HK)(7) Any
expenses so ordered by the Court to be paid shall be assessed by the Court
making the order or, if no such assessment is made by the Court, shall be
taxed (if not agreed) and paid by the party ordered to make such payment.
(HK)(8) A witness whose expenses have been ordered to be paid may, if the
party ordered to make such payment is the party who made the deposit on issue
of the writ of subpoena, recover such expenses, after assessment, agreement or
taxation, from the said deposit and look to the party liable to make such
payment for the balance, if any. (HK)(9) The deposit (or such part of it as
shall remain after payment to the witness under rule 14(8)) shall be refunded
to the party that paid the deposit if-

   (a)  that party was not ordered to pay the costs of the witness; or

   (b)  that party was ordered to pay the costs of the witness and has
        effected payment of such costs after assessment, agreement or
        taxation.

15. More than one name may be included in one writ of subpoena (O. 38, r. 15)

The names of two or more persons may be included in one writ of subpoena ad
testificandum.

16. Amendment of writ of subpoena (O. 38, r. 16)

Where there is a mistake in any person's name or address in a writ of
subpoena, then, if the writ has not been served, the party by whom the writ
was issued may have the writ re-sealed in correct form by filing a second
praecipe under rule 14(5) endorsed with the words "Amended and re-sealed".

17. Service of writ of subpoena (O. 38, r. 17)

A writ of subpoena must be served personally and, subject to rule 19, the
service shall not be valid unless effected within 12 weeks after the date of
issue of the writ and not less than four days, or such other period as
the Court may fix, before the day on which attendance before the Court is
required.

18. Duration of writ of subpoena (O. 38, r. 18)

Subject to rule 19, a writ of subpoena continues to have effect until the
conclusion of the trial at which the attendance of the witness is required.

19. Writ of subpoena in aid of inferior court or tribunal (O. 38, r. 19)

(1) The office of the Court out of which a writ of subpoena ad testificandum
or a writ of subpoena duces tecum in aid of an inferior court or tribunal may
be issued is the Registry, and no order of the Court for the issue of such a
writ is necessary.

(2) A writ of subpoena in aid of an inferior court or tribunal continues to
have effect until the disposal of the proceedings before that court or
tribunal at which the attendance of the witness is required.

(3) A writ of subpoena issued in aid of an inferior court or tribunal must be
served personally.

(4) Unless a writ of subpoena issued in aid of an inferior court or tribunal
is duly served on the person to whom it is directed not less than 4 days, or
such other period as the Court may fix, before the day on which the attendance
of that person before the court or tribunal is required by the writ, that
person shall not be liable to any penalty or process for failing to obey the
writ.

(5) An application to set aside a writ of subpoena issued in aid of an
inferior court or tribunal may be heard by a master.

III. HEARSAY EVIDENCE

20. Interpretation and application (O. 38, r. 20)

(1) In this Part of this Order "the Ordinance" (條例) means the
Evidence Ordinance ( Cap 8) and any expressions used in this Part and in Parts
IV and V of the Ordinance have the same meanings in this Part as they have in
the said Parts IV and V.

(2) This Part of this Order shall apply in relation to the trial or hearing of
an issue or question arising in a cause or matter, and to a reference, inquiry
and assessment of damages, as it applies in relation to the trial or hearing
of a cause or matter.

21. Notice of intention to give certain statements in evidence (O. 38, r. 21)

(1) Subject to the provisions of this rule, a party to a cause or matter who
desires to give in evidence at the trial or hearing of the cause or matter any
statement which is admissible in evidence by virtue of section 47, 49 or 50 of
the Ordinance must-

   (a)  in the case of a cause or matter which is required to be set down for
        trial or hearing or adjourned into court, not later than 21 days
        before application is made to set down or to adjourn into court, or
        within such other period as the Court may specify; and (L.N. 99 of
        1993)

   (b)  in the case of any other cause or matter, within 21 days after the
        date on which an appointment for the first hearing of the cause or
        matter is obtained, or within such other period as the Court may
        specify, serve on every other party to the cause or matter notice of
        his desire to do so, and the notice must comply with the provisions of
        rule 22, 23 or 24, as the circumstances of the case require.

(2) Paragraph (1) shall not apply in relation to any statement which is
admissible as evidence of any fact stated therein by virtue not only of
section 47, 49 or 50 of the Ordinance but by virtue also of any other
statutory provision within the meaning of section 46 of the Ordinance.

(3) Paragraph (1) shall not apply in relation to any statement which any party
to a probate action desires to give in evidence at the trial of that action
and which is alleged to have been made by the deceased person whose estate is
the subject of the action.

(4) Where by virtue of any provision of these rules or of any order or
direction of the Court the evidence in any proceedings is to be given by
affidavit then, without prejudice to paragraph (2), paragraph (1) shall not
apply in relation to any statement which any party to the proceedings desires
to have included in any affidavit to be used on his behalf in the proceedings,
but nothing in this paragraph shall affect the operation of rule 5 of Order
41, or the powers of the Court under rule 3 of this Order.

(5) Rule 9 of Order 65 shall not apply to a notice under this rule but
the Court may direct that the notice need not be served on any party who at
the time when service is to be effected is in default as to acknowledgment of
service or who has no address for service.

22. Statement admissible by virtue of section 47 of the Ordinance: contents of
notice (O. 38, r. 22)

(1) If the statement is admissible by virtue of section 47 of the Ordinance
and was made otherwise than in a document, the notice must contain particulars
of-

   (a)  the time, place and circumstances at or in which the statement was
        made;

   (b)  the person by whom, and the person to whom, the statement was made;
        and

   (c)  the substance of the statement or, if material, the words used.

(2) If the statement is admissible by virtue of section 47 of the Ordinance
and was made in a document, a copy or transcript of the document, or of the
relevant part thereof, must be annexed to the notice and the notice must
contain such (if any) of the particulars mentioned in paragraph (1)(a) and (b)
as are not apparent on the face of the document or part.

(3) If the party giving the notice alleges that any person, particulars of
whom are contained in the notice, cannot or should not be called as a witness
at the trial or hearing for any of the reasons specified in rule 25, the
notice must contain a statement to that effect specifying the reason relied
on.

23. Statement admissible by virtue of section 49 of the Ordinance: contents of
notice (O. 38, r. 23)

(1) If the statement is admissible by virtue of section 49 of the Ordinance,
the notice must have annexed to it a copy or transcript of the document
containing the statement, or of the relevant part thereof, and must contain-

   (a)  particulars of-

        (i)    the person by whom the record containing the statement was
               compiled;

        (ii)   the person who originally supplied the information from which
               the record was compiled; and

        (iii)  any other person through whom that information was supplied to
               the compiler of that record, and, in the case of any such
               person as is referred to in (i) or (iii) above, a description
               of the duty under which that person was acting when compiling
               that record or supplying information from which that record was
               compiled, as the case may be;

   (b)  if not apparent on the face of the document annexed to the notice, a
        description of the nature of the record which, or part of which,
        contains the statement; and

   (c)  particulars of the time, place and circumstances at or in which that
        record or part was compiled.

(2) If the party giving the notice alleges that any person, particulars of
whom are contained in the notice, cannot or should not be called as a witness
at the trial or hearing for any of the reasons specified in rule 25, the
notice must contain a statement to that effect specifying the reason relied
on.

24. Statement admissible by virtue of section 50 of the Ordinance: contents of
notice (O. 38, r. 24)

(1) If the statement is contained in a document produced by a computer and is
admissible by virtue of section 50 of the Ordinance, the notice must have
annexed to it a copy or transcript of the document containing the statement,
or of the relevant part thereof, and must contain particulars of-

   (a)  a person who occupied a responsible position in relation to the
        management of the relevant activities for the purpose of which the
        computer was used regularly during the material period to store or
        process information;

   (b)  a person who at the material time occupied such a position in relation
        to the supply of information to the computer, being information which
        is reproduced in the statement or information from which the
        information contained in the statement is derived; and

   (c)  a person who occupied such a position in relation to the operation of
        the computer during the material period, and where there are two or
        more persons who fall within sub-paragraph (a),

   (b)  or (c) and some only of those persons are at the date of service of
        the notice capable of being called as witnesses at the trial or
        hearing, the person particulars of whom are to be contained in the
        notice must be such one of those persons as is at that date so
        capable.

(2) The notice must also state whether the computer was operating properly
throughout the material period and, if not, whether any respect in which it
was not operating properly or was out of operation during any part of that
period was such as to affect the production of the document in which the
statement is contained or the accuracy of its contents.

(3) If the party giving the notice alleges that any person, particulars of
whom are contained in the notice, cannot or should not be called as a witness
at the trial or hearing for any of the reasons specified in rule 25, the
notice must contain a statement to that effect specifying the reason relied
on.

25. Reasons for not calling a person as a witness (O. 38, r. 25)

The reasons referred to in rules 22(3), 23(2) and 24(3) are that the person in
question is dead, or beyond the seas or unfit by reason of his bodily or
mental condition to attend as a witness or that despite the exercise of
reasonable diligence it has not been possible to identify or find him or that
he cannot reasonably be expected to have any recollection of matters relevant
to the accuracy or otherwise of the statement to which the notice relates.

26. Counter-notice requiring person to be called as a witness (O. 38, r. 26)

(1) Subject to paragraphs (2) and (3), any party to a cause or matter on whom
a notice under rule 21 is served may, within 21 days after service of the
notice on him, serve on the party who gave the notice a counter-notice
requiring that party to call as a witness at the trial or hearing of the cause
or matter any person (naming him) particulars of whom are contained in the
notice.

(2) Where any notice under rule 21 contains a statement that any person,
particulars of whom are contained in the notice, cannot or should not be
called as a witness for the reason specified therein, a party shall not be
entitled to serve a counter-notice under this rule requiring that person to be
called as a witness at the trial or hearing of the cause or matter unless he
contends that that person can or, as the case may be, should be called, and in
that case he must include in his counter-notice a statement to that effect.

(3) Where a statement to which a notice under rule 21 relates is one to which
rule 28 applies, no party on whom the notice is served shall be entitled to
serve a counter-notice under this rule in relation to that statement, but this
provision is without prejudice to the right of any party to apply to the Court
under rule 28 for directions with respect to the admissibility of that
statement.

(4) If any party to a cause or matter by whom a notice under rule 21 is served
fails to comply with a counter-notice duly served on him under this rule,
then, unless any of the reasons specified in rule 25 applies in relation to
the person named in the counter-notice, and without  prejudice to the powers
of the Court under rule 29, the statement to which the notice under rule 21
relates shall not be admissible at the trial or hearing of the cause or matter
as evidence of any fact stated therein by virtue of section 47, 49 or 50 of
the Ordinance, as the case may be.

27. Determination of question whether person can or should be called as a
witness (O. 38, r. 27)

(1) Where in any cause or matter a question arises whether any of the reasons
specified in rule 25 applies in relation to a person, particulars of whom are
contained in a notice under rule 21, the Court may, on the application of any
party to the cause or matter, determine that question before the trial or
hearing of the cause or matter or give directions for it to be determined
before the trial or hearing and for the manner in which it is to be so
determined.

(2) Unless the Court otherwise directs, the summons by which an application
under paragraph (1) is made must be served by the party making the application
on every other party to the cause or matter.

(3) Where any such question as is referred to in paragraph (1) has been
determined under or by virtue of that paragraph, no application to have it
determined afresh at the trial or hearing of the cause or matter may be made
unless the evidence which it is sought to adduce in support of the application
could not, with reasonable diligence, have been adduced at the hearing which
resulted in the determination.

28. Directions with respect to statement made in previous proceedings (O. 38,
r. 28)

Where a party to a cause or matter has given notice in accordance with rule 21
that he desires to give in evidence at the trial or hearing of the cause or
matter-

   (a)  a statement falling within section 47(1) of the Ordinance which was
        made by a person, whether orally or in a document, in the course of
        giving evidence in some other legal proceedings (whether civil or
        criminal); or

   (b)  a statement falling within section 49(1) of the Ordinance which is
        contained in a record of direct oral evidence given in some other
        legal proceedings (whether civil or criminal), any party to the cause
        or matter may apply to the Court for directions under this rule, and
        the Court hearing such an application may give directions as to
        whether, and if so on what conditions, the party desiring to give the
        statement in evidence will be permitted to do so and (where
        applicable) as to the manner in which that statement and any other
        evidence given in those other proceedings is to be proved.

29. Power of Court to allow statement to be given in evidence (O. 38, r. 29)

(1) Without prejudice to sections 47(2)(a) and 49(2)(a) of the Ordinance and
rule 28, the Court may, if it thinks it just to do so, allow a statement
falling within section 47(1), 49(1) or 50(1) of the Ordinance to be given in
evidence at the trial or hearing of a cause or matter notwithstanding-

   (a)  that the statement is one in relation to which rule 21(1) applies and
        that the party desiring to give the statement in evidence has failed
        to comply with that rule; or

   (b)  that that party has failed to comply with any requirement of a
        counter-notice relating to that statement which was served on him in
        accordance with rule 26.

(2) Without prejudice to the generality of paragraph (1), the Court may
exercise its power under that paragraph to allow a statement to be given in
evidence at the trial or hearing of a cause or matter if a refusal to exercise
that power might oblige the party desiring to give the statement in evidence
to call as a witness at the trial or hearing an opposite party or a person who
is or was at the material time the servant or agent of an opposite party.

30. Restriction on adducing evidence as to credibility of maker, etc. of
certain statements (O. 38, r. 30)

Where-

   (a)  a notice given under rule 21 in a cause or matter relates to a
        statement which is admissible by virtue of section 47 or 49 of the
        Ordinance; and

   (b)  the person who made the statement, or, as the case may be, the person
        who originally supplied the information from which the record
        containing the statement was compiled, is not called as a witness at
        the trial or hearing of the cause or matter; and

   (c)  none of the reasons mentioned in rule 25 applies so as to prevent the
        party who gave the notice from calling that person as a witness, no
        other party to the cause or matter shall be entitled, except with the
        leave of the Court, to adduce in relation to that person any evidence
        which could otherwise be adduced by him by virtue of section 52 of the
        Ordinance unless he gave a counter-notice under rule 26 in respect of
        that person or applied under rule 28 for a direction that that person
        be called as a witness at the trial or hearing of the cause or matter.

31. Notice required of intention to give evidence of certain inconsistent
statements (O. 38, r. 31)

(1) Where in a cause or matter a person, particulars of whom were contained in
a notice given under rule 21, is not to be called as a witness at the trial or
hearing of the cause or matter, any party to the cause or matter who is
entitled and intends to adduce in relation to that person any evidence which
is admissible for the purpose mentioned in section 52(1)(b) of the Ordinance
must, not more than 21 days after service of that notice on him, serve on the
party who gave that notice, notice of his intention to do so.

(2) Rule 22(1) and (2) shall apply to a notice under this rule as if the
notice were a notice under rule 21 and the statement to which the notice
relates were a statement admissible by virtue of section 47 of the Ordinance.

(3) The Court may, if it thinks it just to do so, allow a party to give in
evidence at the trial or hearing of a cause or matter any evidence which is
admissible for the purpose mentioned in section 52(1)(b) of the Ordinance
notwithstanding that that party has failed to comply with the provisions of
paragraph (1).

32. Costs (O. 38, r. 32)

If-

   (a)  a party to a cause or matter serves a counter-notice under rule 26 in
        respect of any person who is called as a witness at the trial of the
        cause or matter in compliance with a requirement of the
        counter-notice; and

   (b)  it appears to the Court that it was unreasonable to require that
        person to be called as a witness, then, without prejudice to Order 62
        and, in particular, to rule 10(1) thereof, the Court may direct that
        any costs to that party in respect of the preparation and service of
        the counter-notice shall not be allowed to him and that any costs
        occasioned by the counter-notice to any other party shall be paid by
        him to that other party.

33. Certain powers exercisable in chambers (O. 38, r. 33)

The jurisdiction of the Court under sections 47(2)(a), 47(3), 49(2)(a) and 51
(1) of the Ordinance may be exercised in chambers.

34. Statements of opinion (O. 38, r. 34)

Where a party to a cause or matter desires to give in evidence by virtue of
Part IV of the Ordinance, as extended by section 56 of the Ordinance, a
statement of opinion other than a statement to which Part IV of this Order
applies, the provisions of rules 20 to 23 inclusive and 25 to 33 inclusive
shall apply with such modifications as the Court may direct or the
circumstances of the case may require.

IV. EXPERT EVIDENCE

35. Interpretation (O. 38, r. 35)

In this Part of this Order a reference to a summons for directions includes a
reference to any summons or application to which, under any of these rules,
Order 25, rules 2 to 7, apply, and expressions used in this Part of this Order
which are used in the Evidence Ordinance ( Cap 8) have the same meanings in
this Part of this Order as in that Ordinance.

36. Restrictions on adducing expert evidence (O. 38, r. 36)

(1) Except with the leave of the Court or where all parties agree, no expert
evidence may be adduced at the trial or hearing of any cause or matter unless
the party seeking to adduce the evidence-

   (a)  has applied to the Court to determine whether a direction should be
        given under rule 37 or 41 (whichever is appropriate) and has complied
        with any direction given on the application, or

   (b)  has complied with automatic directions taking effect under Order 25,
        rule 8(1)(b), or

   (c)  has complied with the automatic directions, or any other directions
        ordered by the master under Order 37, rule 1(1A). (L.N. 363 of 1990)

(2) Nothing in paragraph (1) shall apply to evidence which is permitted to be
given by affidavit or shall affect the enforcement under any other provision
of these rules (except of Order 45, rule 5) of a direction given under this
Part of this Order. (L.N. 363 of 1990)

37. Direction that expert report be disclosed (O. 38, r. 37)

(1) Subject to paragraph (2), where in any cause or matter an application is
made under rule 36(1) in respect of oral expert evidence, then, unless
the Court considers that there are special reasons for not doing so, it shall
direct that the substance of the evidence be disclosed in the form of a
written report or reports to such other parties and within such period as
the Court may specify. (L.N. 404 of 1991)

(2) Nothing in paragraph (1) shall require a party to disclose a further
medical report if he proposes to rely at the trial only on the report provided
pursuant to Order 18, rule 12(1A) or (1B) but, where a party claiming damages
for personal injuries discloses a further report, that report shall be
accompanied by a statement of the special damages  claimed and, in this
paragraph, "a statement of the special damages claimed"
(關於所申索的專項損害賠償的陳述書) has the same meaning as in
Order 18, rule 12(1C). (L.N. 404 of 1991)

38. Meeting of experts (O. 38, r. 38)

In any cause or matter the Court may, if it thinks fit, direct that there be a
meeting "without prejudice" of such experts within such periods before or
after the disclosure of their reports as the Court may specify, for the
purpose of identifying those parts of their evidence which are in issue. Where
such a meeting takes place the experts may prepare a joint statement
indicating those parts of their evidence on which they are, and those on which
they are not, in agreement.

39. Disclosure of part of expert evidence (O. 38, r. 39)

Where the Court considers that any circumstances rendering it undesirable to
give a direction under rule 37 relate to part only of the evidence sought to
be adduced, the Court may, if it thinks fit, direct disclosure of the
remainder.

41. Expert evidence contained in statement (O. 38, r. 41)

Where an application is made under rule 36 in respect of expert evidence
contained in a statement and the applicant alleges that the maker of the
statement cannot or should not be called as a witness, the Court may direct
that the provisions of rules 20 to 23 inclusive and 25 to 33 inclusive shall
apply with such modifications as the Court thinks fit.

42. Putting in evidence expert report disclosed
by another party (O. 38, r. 42)

A party to any cause or matter may put in evidence any expert report disclosed
to him by any other party in accordance with this Part of this Order.

43. Time for putting expert report in evidence (O. 38, r. 43)

Where a party to any cause or matter calls as a witness the maker of a report
which has been disclosed in accordance with a direction given under rule 37,
the report may be put in evidence at the commencement of the examination in
chief of its maker or at such other time as the Court may direct.

44. Revocation and variation of directions (O. 38, r. 44)

Any direction given under this Part of this Order may on sufficient cause
being shown be revoked or varied by a subsequent direction given at or before
the trial of the cause or matter. (Enacted 1988) "the Ordinance" (條例) "a
statement of the special damages claimed"
(關於所申索的專項損害賠償的陳述書)