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HCMP002550/1996
1996 M.P. No. 2550
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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IN THE MATTER of the Evidence Ordinance (Cap.8)
and
IN THE MATTER of Order 70 of the Rules of the Supreme Court
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IN THE MATTER of civil proceedings now proceeding before the United States District Court, Southern District of New York, as follows:
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LEHMAN BROTHERS COMMERCIAL CORPORATION
LEHMAN BROTHERS SPECIAL
FINANCING INC.
(94 Civ.8304 (JFK)(NRB))
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Plaintiffs |
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AND |
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CHINA INTERNATIONAL UNITED PETROLEUM AND CHEMICALS CO., LTD |
Defendant |
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LEHMAN BROTHERS COMMERCIAL CORPORATION
LEHMAN BROTHERS SPECIAL
FINANCING INC.
(94 Civ.8301 (JFK)(NRB))
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Plaintiffs |
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AND |
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MINMETALS INTERNATIONAL NON-FERROUS METALS TRADING COMPANY
CHINA NATIONAL METALS AND MINERALS IMPORT AND EXPORT CORPORATION
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Defendants |
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Coram: The Hon. Mr. Justice Keith in Chambers
Date of hearing: 7 August 1996
Date of delivery of judgment: 7 August 1996
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J U D G M E N T
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1. This is an application, pursuant to section 76 of the Evidence Ordinance (Cap.8) and Ord. 70 r. 2(1) of the Rules of the Supreme Court, for an order for evidence to be obtained in Hong Kong. Having read the affidavit of Rajat Kumar Jindal filed in support of the application, I make the order sought in the terms of the draft order exhibited to the affidavit. However, I wish to make three comments on the procedure to be adopted for applications of this kind.
2. First, when these proceedings were commenced, the Clerk of Court directed that the application be listed for hearing by me. It is not necessary for applications of this kind to be determined by a Judge of the High Court. Ord. 70 r. 1(2) provides that the power to make orders under section 76 of the Evidence Ordinance may be exercised by the Registrar. Accordingly, unless the parties request otherwise, applications under section 76 of the Evidence Ordinance should be determined by a master.
3. Secondly, I have been informed that when applications of this kind are referred to a master for determination, the practice is for the master to make the order without a hearing if he is satisfied that the order sought should be made. That is an entirely sensible practice. The trouble with it, though, is that there is nothing in the Rules which expressly permits such orders to be made without a hearing. When it is intended to give the Court the power to make orders without a hearing, the Rules normally provide for that expressly: see, for example, Ord. 52 r. 2(4) and Ord. 53 r. 3(3). I suggest that thought be given by those responsible for monitoring the Rules of the Supreme Court to see whether the practice which is currently adopted is consistent with the Rules, and, if not, whether the Rules should be amended to validate the practice if the retention of the practice is thought to be desirable.
4. Thirdly, when the court file was placed before me, the only document in it was Mr. Jindal's affidavit and the exhibits to it. There was no originating process. I have been informed that the filing of an originating summons or motion is not required by the Registry, and that applications of this kind are invariably considered by masters on the basis of an affidavit or affirmation alone. I do not wish to alter an established practice, but I was not convinced when I first read the court file that it was proper to proceed without originating process. When I made known my concern to the Applicants' solicitors, an originating motion was filed. Again, I think that consideration should be given to amending the Rules to make it clear, if the retention of the practice is thought to be desirable, that applications of this kind need not be commenced by originating process.
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(Brian Keith)
Judge of the High Court |
Representation:
Mr. R.A. Matthews, of Messrs. Freshfields, for the Plaintiffs.
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