Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 39

EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2 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 before a judge, an officer or examiner of the Court or
some other person, at any place, of any person. (See also App. 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.

2. Where person to be examined is out of the jurisdiction (O. 39, r. 2)

(1) Where the person in relation to whom an order under rule 1 is required is
out of the jurisdiction, an application may be made-

   (a)  for an order (in Form No. 34 in Appendix A) under that rule for the
        issue of a letter of request to the judicial authorities of the
        country in which that person is to take, or cause to be taken, the
        evidence of that person, or (See also App. A, Form 33)

   (b)  if the government of that country allows a person in that country to
        be examined before a person appointed by the Court, for an order (in
        Form No. 37 in Appendix A) under that rule appointing a special
        examiner to take the evidence of that person in that country. (See
        also App. A, Form 36)

(2) An application may be made for the appointment as special examiner of a
British consul in the country in which the evidence is to be taken or his
deputy-

   (a)  if there subsists with respect to that country a Civil Procedure
        Convention providing for the taking of the evidence of any person in
        that country for the assistance of proceedings in the Court, or

   (b)  with the consent of the Chief Secretary for Administration. (L.N. 362
        of 1997)

3. Order for issue of letter of request (O. 39, r. 3)

(1) Where an order is made under rule 1 for the issue of a letter of request
to the judicial authorities of a country to take, or cause to be taken, the
evidence of any person in that country the following provisions of this rule
shall apply.

(2) The party obtaining the order must prepare the letter of request and lodge
it in the Registry, and the letter must be in Form No. 35 in Appendix A, with
such variations as the order may require.

(3) If the evidence of the person to be examined is to be obtained by means of
written questions, there must be lodged with the letter of request a copy of
the interrogatories and cross-interrogatories to be put to him on examination.

(4) Each document lodged under paragraph (2) or (3) must be accompanied by a
translation of the document in the official language of the country in which
the examination is to be taken or, if there is more than one official language
of that country, in any one of those languages which is appropriate to the
place in that country where the examination is to be taken unless-

   (a)  the Registrar has given a general direction in relation to that
        country that no translation need be provided, or

   (b)  the official language or one of the official languages of that country
        is English.

(5) Every translation lodged under paragraph (4) must be certified by the
person making it to be a correct translation; and the certificate must contain
a statement of that person's full name, of his address and of his
qualifications for making the translation.

(6) The party obtaining the order must, when he lodges in the Registry the
documents mentioned in paragraphs (2) to (5), also file in that office an
undertaking signed by him or his solicitor to be responsible personally for
all expenses incurred by the Chief Secretary for Administration in respect of
the letter of request and, on receiving due notification of the amount of
those expenses, to pay that amount to the Treasury and to produce a receipt
for the payment to the Registrar. (L.N. 362 of 1997)

3A. Examination otherwise than on oath (O. 39, r. 3A)

Notwithstanding the provisions of rule 1, where the person to be examined is
out of the jurisdiction that person may be examined on oath or affirmation or
otherwise in accordance with the procedure of the country in which the
examination is to take place.

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

Where an order has been made under rule 1-

   (a)  for the examination of any person before an officer of the  Court or
        some other person (in this rule and rules 5 to 14 referred to as

"the examiner"), or

   (b)  for the cross-examination before the examiner of any person who has
        made an affidavit which is to be used in any cause or matter, the
        attendance of that person before the examiner 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. (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 must give the party on whose application the order for
examination was made by 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. Examiner to have certain documents (O. 39, r. 7)

The party on whose application the order for examination before the  examiner
was made must furnish the examiner with copies of such of the documents in the
cause or matter as are necessary to inform the examiner 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 before the examiner may be
        cross-examined and re-examined, and

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

(2) The examiner 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 examiner may, if necessary, adjourn the examination from time to time.

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

The examiner 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 (O. 39, r. 10)

(1) If any person being examined before the 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 the  Court 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 Court 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 examined before the examiner must be taken
down by the examiner or a shorthand writer or some other person in the
presence of the examiner 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 examiner 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 examiner must sign the deposition.

(4) The original deposition of any person, authenticated by the signature of
the examiner before them it was taken, must be sent by the  examiner to the
Registry and shall be filed therein.

12. Time taken by examination to be indorsed on depositions (O. 39, r. 12)

Before sending any deposition to the Registry under rule 11(4) the  examiner
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 the Court with regard to any
examination taken before him and with regard to the absence or conduct of any
person thereat, and the Court may direct such proceedings to be taken, or make
such order, on the report as it thinks fit.

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

(1) If the fees and expenses due to an examiner 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. (L.N. 362 of 1997)

(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.

15. Perpetuation of testimony (O. 39, r. 15)

(1) Witnesses shall not be examined to perpetuate testimony unless an action
has been begun for the purpose.

(2) Any person who would under the circumstances alleged by him to exist
become entitled, upon the happening of any future event, to any honour, title,
dignity or office, or to any estate or interest in any real or personal
property, the right or claim to which cannot be brought to trial by him before
the happening of such event, may begin an action to perpetuate any testimony
which may be material for establishing such right or claim.

(3) No action to perpetuate the testimony of witnesses shall be set down for
trial. (Enacted 1988)