Hong Kong Regulations

THE RULES OF THE SUPREME COURT - ORDER 70

OBTAINING EVIDENCE FOR FOREIGN COURTS, ETC.

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

1. Interpretation and exercise of jurisdiction (O. 70 r. 1)

(1) In this Order "the Ordinance" (條例) means the Evidence Ordinance (
Cap 8) and expressions used in this Order which are used in the Ordinance
shall have the same meaning as in the Ordinance.

(2) The power of the High Court to make an order under section 76 or
section 76 as extended by section 77B of the Ordinance may be exercised by the
Registrar. (L.N. 403 of 1992)

2. Application for order (O. 70 r. 2)

(1) Subject to rule 3 an application for an order under the Ordinance must be
made ex parte and must be supported by affidavit.

(2) There shall be exhibited to the affidavit the request in pursuance of
which the application is made, and if the request is not in the English
language, a translation thereof in that language.

3. Application by Crown Solicitor in certain cases (O. 70 r. 3)

Where a request-

   (a)  is received by the Chief Secretary and sent by him to the Registrar
        with an intimation that effect should be given to the request without
        requiring an application for that purpose to be made by the agent in
        Hong Kong of any party to the matter pending or contemplated before
        the foreign court or tribunal; or

   (b)  is received by the Registrar in pursuance of a Civil Procedure
        Convention providing for the taking of the evidence of any person in
        Hong Kong for the assistance of a court or tribunal in the foreign
        country, and no person is named in the document as the person who will
        make the necessary application on behalf of such party, the Registrar
        shall send the document to the Crown Solicitor and the Crown Solicitor
        may make an application for an order under the Ordinance, and take
        such other steps as may be necessary, to give effect to the request.

4. Person to take and manner of taking examination (O. 70 r. 4)

(1) Any order made in pursuance of this Order for the examination of a witness
may order the examination to be taken before any fit and proper person
nominated by the person applying for the order or before such other qualified
person as to the Court seems fit.

(2) Subject to rule 6 and to any special directions contained in any order
made in pursuance of this Order for the examination of any witness, the
examination shall be taken in manner provided by Order 39, rules 5 to 10 and
11(1) to (3), and an order may be made under Order 39, rule 14, for payment of
the fees and expenses due to the examiner, and those rules shall apply
accordingly with any necessary modifications.

5. Dealing with deposition (O. 70 r. 5)

Unless any order made in pursuance of this Order for the examination of any
witness otherwise directs, the examiner before whom the examination was taken
must send the deposition of that witness to the Registrar, and the Registrar
shall-

   (a)  give a certificate sealed with the Seal of the Court for use out of
        the jurisdiction identifying the documents annexed thereto, that is to
        say, the request, the order of the Court for examination and the
        deposition taken in pursuance of the order; and

   (b)  send the certificate with the documents annexed thereto to the Chief
        Secretary, or, where the request was sent to the Registrar by some
        other person in accordance with a Civil Procedure Convention, to that
        other person, for transmission to the court or tribunal out of the
        jurisdiction requesting the examination.

6. Claim to privilege (O. 70 r. 6)

(1) The provisions of this rule shall have effect where a claim by a witness
to be exempt from giving any evidence on the ground specified in section
77(1)(b) of the Ordinance is not supported or conceded as mentioned in
subsection (2) of that section.

(2) The examiner may, if he thinks fit, require the witness to give the
evidence to which the claim relates and, if the examiner does not do so,
the Court may do so, on the ex parte application of the person who obtained
the order under section 76.

(3) If such evidence is taken-

   (a)  it must be contained in a document separate from the remainder of the
        deposition of the witness;

   (b)  the examiner shall send to the Registrar with the deposition a
        statement signed by the examiner setting out the claim and the ground
        on which it was made;

   (c)  on receipt of the statement the Registrar shall, notwithstanding
        anything in rule 5, retain the document containing the part of the
        witness's evidence to which the claim relates and shall send the
        statement and a request to determine the claim to the foreign court or
        tribunal with the documents mentioned in rule 5;

   (d)  if the claim is rejected by the foreign court or tribunal, the
        Registrar shall send to that court or tribunal the document containing
        that part of the witness's evidence to which the claim relates, but if
        the claim is upheld he shall send the document to the witness, and
        shall in either case notify the witness and the person who obtained
        the order under section 76 of the court or tribunal's determination.
        (Enacted 1988) "the Ordinance" (條例)