2. What are the formal requirements for witness statements?

To be validly served and admissible at trial, a written witness statement must strictly satisfy the mandatory statutory criteria set out in Order 38, rule 2A(4) of the Rules of the High Court (Cap. 4A) (“RHC”) or Rules of the District Court (Cap. 336H) (“RDC”), Order 41A of the RHC or RDC, and relevant Practice Directions. Failure to comply renders the statement inadmissible at trial without court leave, and may attract costs sanctions or interlocutory orders striking out improper passages.

Full evidence in the witness’s own words

A witness statement serves as the equivalent of oral examination-in-chief. It must contain the whole of the evidence that the witness would give if examined orally, set out in full detail.

A witness statement should reflect the evidence that the witness would give if he was speaking in the witness box. It should be written in a clear, straightforward narrative style, using the witness’s own words as far as possible. Lawyers should avoid “lawyerese”, artificial legal terminology, or heavily “massaged” wording.

No lengthy commentary, argument, or improper material

A witness statement should not be used as a vehicle for legal submissions, argument, or commentary on documents. It should not contain long quotations from documents, detailed pleading analysis, or lawyer-drafted submissions disguised as evidence.

The statement should be confined to facts within the witness’s own direct personal knowledge, as required by Order 41, rule 5(1) of the RHC or RDC. The court may strike out passages that contain inadmissible or improper material, including:

opinion evidence from a non-expert witness;
facts which have not been pleaded;
“without prejudice” settlement communications;
Hearsay not supported by a proper hearsay notice under the Evidence Ordinance (Cap. 8) and Order 38, Part III of the RHC or RDC; or
irrelevant or argumentative material.

Improper passages may be struck out by a master or the trial judge at the interlocutory stage.

Identifying documents referred to in the statement

If a witness statement refers to documents, those documents must be clearly identified as required by Order 38, rule 2A(4)(b) of the RHC or RDC.

Once a document is referred to in a witness statement, the opposing party is generally entitled to immediate inspection and production of that document under Order 24, rule 10 of the RHC or RDC.

Date and signature of the witness

Every witness statement should be dated and signed personally by the witness who is giving the evidence. The signature should appear on the same page as the end of the statement, rather than on a separate signature sheet. This helps to show that the witness has adopted the whole statement as his evidence.

A witness statement should not be signed in the name of the party’s solicitors, counsel, or law firm. If that happens, it is a procedural irregularity. The court may still allow the witness to give oral evidence-in-chief, but the party in default may be ordered to pay costs for wasting court time.

If the statement is served unsigned

Order 38, rule 2A(4)(a) of the RHC or RDC allows an unsigned witness statement to be served only where there is a good reason. That reason must be clearly stated in a letter served together with the unsigned statement. It is not enough simply to serve an unsigned statement without explanation.

Where a party genuinely cannot obtain a signed witness statement, for example because the witness is an uncooperative third party, the court may give directions under Order 38, rule 2A(5) of the RHC or RDC. The party may be required to disclose the witness’s name and the nature of the evidence which the witness is expected to give.

However, issuing a writ of subpoena does not automatically mean that the party will be allowed to call that witness at trial. The party must still show that proper but unsuccessful attempts were made to obtain a signed witness statement.

Right to give evidence in English or Chinese

Under section 5(3) of the Official Languages Ordinance (Cap. 5), a witness has the right to give evidence in either English or Chinese.

If a witness does not speak or read English but the statement is prepared in English, the solicitor must translate and fully explain the statement to the witness before it is signed. A formal solicitor’s declaration should be endorsed on the face of the document.

In suitable cases, the court may require a parallel Chinese-language witness statement to be signed by the witness. This is particularly important where the witness’s understanding of the English statement may later be questioned.

Statement of Truth

A witness statement must be verified by a Statement of Truth. This is required by Order 38, rule 2A(4)(a) and Order 41A, rule 2(1)(b) of the RHC or RDC. Under Order 41A, rule 7 of the RHC or RDC, a witness statement without a Statement of Truth is inadmissible unless the court gives special leave.

The prescribed wording is:

“I believe that the facts stated in this [name of document] are true.”

For witness statements, the words “and the opinion expressed in it is honestly held” should not be included, because a witness statement should normally contain facts rather than opinions.

A person who makes a false statement without an honest belief in its truth may be liable for contempt of court under Order 41A, rule 9 of the RHC or RDC. In practice, the court may also impose costs sanctions where there has been non-compliance.

Language and translation requirements

Under Practice Direction 19.3, the Statement of Truth should be in the witness’s preferred or native language, whether English or Chinese. If the witness statement or Statement of Truth has been translated, a translator’s certificate should be endorsed on the document.

Parties are also expected to confirm, in the Listing Questionnaire before the Case Management Conference or Pre-Trial Review, that all witness statements have been properly verified.