MOHAMMAD, AMJAD v. JOHN M PICKAVANT & CO SOLICITORS

DCEC1789/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1789 OF 2006

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D E C I S I O N

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1.  This summons was triggered-off by the letter issued from the Respondent’s solicitor, dated 2 February 2009.  It reads as follows:

“This is to give you notice pursuant to sections 47 and 47A of the Evidence Ordinance and also Order 38 of the District Court Rules that we will rely on all disclosed documents in this case, including Dr Beh’s report as hearsay evidence at the trial.”

2.  The summons was taken out under Order 38, rules 4 and 36 of the Rules of the District Court and inherent jurisdiction of the court.  Rule 4 reads:

“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.”

3.  Rule 36 provides for restrictions on adducing expert evidence.  It reads:

“(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 parties seeking to adduce the evidence...

(a)    … 

(b)   …

(c)    …

4.  Now, it refers to the fact that “expert evidence adduced at the trial or hearing of any cause or matter.”  I inquired with the Applicant’s counsel as to the appropriateness of the taking out of the summons.  He told me that Order 38, rule 21 applies and governs the situation.  Rule 21 reads:

“(1)  Where a party tenders as hearsay evidence a statement made by a person, but does not propose to call the person who made the statement to give evidence, the court may, on application...

    (a) …

    (b) …

(2)    Where the court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be followed.”

5.  The Applicant’s counsel submits that rule 21 not only applies during the progress of the case, namely, the actual trial, but also to the period before that.  I do not agree.  Rule 21 is formulated in the present tense.  It is abundantly clear that it refers to the actual trial.  This is governed by rule 20.  Sub-rule 2 of rule 20 reads:

“This part of the 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.”

6.  This summons application is not a trial or hearing of an issue or question, and is not a reference, inquiry and assessment of damages.  So obviously, rule 21 has no application.  Rule 4 is not directly applicable in this application and neither is rule 36.  Therefore, it is not appropriate for the summons to be taken out at this stage.  There is no legal basis for taking out this application because rule 21 simply has no application here.  Therefore, the proposed order for costs to be given to the applicant is not justified.

7.  I therefore make an order in terms of (1), (3) and (4) of the summons.

8.  Costs of this summons application be costs in the cause, with certificate for counsel.