1. What are the usual modes of giving evidence?

1. What are the usual modes of giving evidence? 

The usual mode of giving evidence depends on the type of proceedings and the stage of the case. 

Trial of an action begun by writ 

As a general rule, where an action is begun by writ, facts that have to be proved by witness evidence at trial are proved by witnesses giving evidence orally in open court. This is the usual position under Order 38, rule 1 of the Rules of the High Court (Cap. 4A) (“RHC”) or the Rules of the District Court (Cap. 336H) (“RDC”). 

Use of witness statements before trial 

However, the court usually requires the parties to exchange written witness statements before the trial. Under Order 38, rule 2A(7)(a) of the RHC or RDC, where the witness is called at trial, the court may direct that the witness statement (or part of it) stand as the witness's evidence-in-chief. In the absence of such a direction, evidence-in-chief must be elicited orally. 

Where an order is made under Order 38, rule 2A(7)(a), the witness is called to the witness box, confirms or adopts the statement on oath, and is then made available for oral cross-examination by opposing counsel and re-examination. 

Proceedings begun otherwise than by writ 

If the proceedings are begun by originating summons, originating motion or petition, the usual mode of giving evidence is different. In such cases, evidence is usually given in writing by affidavit/affirmation under Order 38, rule 2(3) of the RHC or RDC. 

The same is generally true for interlocutory applications, such as applications for an injunction or for summary judgment. At this stage, the court usually deals with evidence on paper rather than by hearing oral testimony from witnesses. 

When oral evidence may still be required 

Even where evidence is given by affidavit/affirmation, the person who made the affidavit/affirmation does not automatically attend court to give oral evidence. However, a party may apply for an order requiring that person to attend court for cross-examination under Order 38, rule 2(3). If the court grants the order, the deponent must attend for questioning on the contents of the affidavit/affirmation. If an order for attendance is made and the deponent fails to attend, the affidavit/affirmation shall not be used as evidence without the leave of the court.