NG KAM CHUN, STEPHEN v. CHAN WAI HING, JANET AND OTHERS

1992 No. A3036

H E A D N O T E

A witness statement ordered to be served under Ord. 38 r.2A(2) of the Rules of the Supreme Court -

(a) should contain the whole of the witness' evidence in the detail in which the witness would have given it if his evidence had been elicited by oral questions at the trial, and

(b) should not contain any evidence which is obviously inadmissible.

1992 No. A3036

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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[After stating his findings of fact, and holding that the Plaintiff's claim against the Defendants failed, Keith J. said :]

2. This was a case in which the master at the Summons for Directions had ordered the exchange of witness statements under Ord. 38 r. 2A(2) of the Rules of the Supreme Court. At the beginning of the trial and with the consent of the parties, I ordered the statements to stand as the witnesses' evidence-in-chief. However, I also gave leave to the parties to lead such evidence as they wished from the witnesses to supplement the contents of their statements.

3. When Mr. Ng came to give evidence, he was asked so many supplementary questions that he continued to give his oral evidence-in-chief for over 3 hours. That was because his witness statement had only set out the bare bones of his evidence. It had been drafted in such a way that it needed to be fleshed out considerably. I mention that because I am afraid that I have not yet tried a case in Hong Kong in which it has not been necessary to flesh out the witness statement by supplementary oral evidence given over a number of hours. The time has now arrived when it is necessary for someone to spell out to those who are responsible for drafting witness statements that they must get their act together. The witness statement should contain the whole of the witness' evidence in the detail in which the witness would have given it if his evidence had been elicited by oral questions at the trial. Anything less than that prevents the statements from serving the purposes which they are intended to achieve - saving time, eliminating any element of surprise in the witnesses' evidence, enabling the parties to know the full strength of the case they have to meet, and enabling counsel to prepare a crisp and effective cross-examination. I give notice to the profession that, unless there is a good explanation for a witness statement not properly covering the areas on which supplementary questions are sought to be asked, I shall be unlikely to give leave, pursuant to Ord. 38 r. 2A(5)(a), for evidence to be led from that witness on those topics.

4. There was another problem with Mr. Ng's witness statement. It contained a considerable amount of obviously inadmissible hearsay evidence. If there is a genuine doubt as to whether evidence is admissible, it is, I think, proper for the evidence to be included in the statement. The court can then rule on its admissibility at the appropriate stage in the trial knowing what the evidence is. However, evidence which is obviously inadmissible should never be included. I suspect that the reason for its inclusion in this case was because the person who drafted it did not understand the true status of the statement. The statement was actually described at one point as an affirmation. Since affirmations are usually made at the interlocutory stage at which hearsay evidence is rendered admissible by Ord. 41 r. 5(1), I fear that the person responsible for drafting it temporarily forgot what he or she was doing.