2. What are the alternatives if a witness cannot attend court in person to give evidence at a trial?

While the general rule in Hong Kong is that facts at trial must be proved by the oral examination of witnesses in open court, there are several alternative methods available when a witness cannot attend in person. These methods are governed by the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”) and the Evidence Ordinance (Cap. 8) to ensure that the interests of justice are served even when physical attendance is impossible.

1. Evidence by affidavit

Under Order 38, rule 2 of the RHC or RDC, the court has the discretion to order that an affidavit be read at trial as evidence.

This is not a right. The court must think it reasonable to make such an order. It is most commonly used where the witness is abroad or the evidence is uncontested.

Affidavits are standard in proceedings commenced by originating summons, petitions, or motions. However, in writ actions, they are generally unsuitable if the evidence is strongly contested and the witness’s credibility depends on the court’s observation of his demeanour.

The court may impose terms, such as requiring the deponent to be available for cross-examination, though it can also order that he needs not attend for this purpose. If an order for attendance is made and the deponent fails to appear, the affidavit cannot be used as evidence without the court’s leave.

Affidavits used at trial must generally be confined to facts within the personal knowledge of the deponent, unless the court directs otherwise.

2. Hearsay evidence

If a witness cannot attend, his witness statement can be adduced as hearsay evidence subject to the court’s discretion to admit it.

A party intending to adduce hearsay must give notice of that fact and, upon request, provide particulars to enable the other side to deal with it.

The opposing party may object to the hearsay evidence being admitted and apply under Order 38, rule 21 of the RHC or RDC for leave to call and cross-examine the maker of the hearsay statement.

The court has discretion to admit hearsay evidence. However, the court cannot exclude evidence solely because it is hearsay unless the opposing party objects and the court is satisfied that exclusion is not prejudicial to the interests of justice.

In a non-jury trial, the court determines whether to exclude hearsay evidence at the conclusion of the proceedings. In a jury trial, the issue is determined at the beginning of the proceedings, in the absence of the jury.

While admissible, the court will evaluate the weight of such evidence using guidelines in section 49 of the Evidence Ordinance, considering factors such as whether it was reasonable and practicable to produce the maker as a witness.

3. Evidence by deposition

Depositions involve taking a witness’s evidence before trial so it can be preserved and used later. This is governed by Order 39 and Order 38, rule 9 of the RHC or RDC.

Utilizing depositions requires two steps: (1) obtaining an order under Order 39 rule 1 to take the deposition before an examiner, and (2) obtaining leave under Order 38, rule 9 to receive it at trial.

Taking the deposition

The party must issue a summons (Form 31) supported by an affidavit/affirmation setting out the circumstances in full detail. The court may order a deposition if it is “necessary for the purposes of justice”. Common grounds include the witness being dangerously ill, of advanced age, pregnant, or intending to leave the jurisdiction before trial.

Evidence is taken on oath before a judge, an officer, or a court examiner. The examination, cross-examination, and re-examination are conducted in the same manner as at trial.

If the witness is outside the jurisdiction, the court may issue a Letter of Request (or letter rogatory) to the judicial authorities of the foreign country to take the evidence. This is often utilised in countries that are parties to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

Receiving the deposition at trial

For the deposition to be used at trial, the party must prove the witness is dead, beyond the jurisdiction, or unable to attend due to sickness.

The party must give reasonable notice to the other side of his intention to use the deposition.

4. Video link

The use of technology to receive evidence is increasingly common and is governed by the Courts (Remote Hearing) Ordinance (Cap. 654), Order 38, rule 3 and Practice Direction 29.

The giving of evidence via video link is considered an exception to the general rule of physical attendance. The applicant must demonstrate “good reason” for the exception.

The interests of justice, including the just and efficient disposal of proceedings, are the overriding considerations.

In deciding whether to allow video link evidence, the court considers:

The reason the witness cannot attend (e.g. medical reasons or travel restrictions);
The importance of the witness to the case;
Whether the physical presence of the witness is necessary for the court to assess credibility; and
Potential prejudice to the other party.

The court is generally more willing to allow video link evidence for technical, formal, or peripheral witnesses. It is less likely to do so for crucial witnesses, especially where the assessment of demeanour and credibility is central to the case.

The court sometimes allows a witness to provide an affidavit/affirmation on the condition that he makes himself available for cross-examination via video link.

The direction permitting a party or witness to give evidence by video link is usually made by the court at the determination of a case management summons.