Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Ho Wai Tai v Attorney General And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date21 May 1979
Year1979
Judgement NumberHCA174/1978
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA000174/1978 HO WAI TAI v. ATTORNEY GENERAL AND ANOTHER

HCA000174/1978
1978, No. 174

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

BETWEEN
HO WAI TAI
(Administratrix of the Estate of Lee Man Kit deceased)		 Plaintiff

AND
The Attorney General 1st Defendant
CHAN PING CHIU 2nd Defendant

-----------------

Coram: Mr. Registrar 0'Dea in Chambers.

Date of Judgment: 21 May 1979

-----------------

DECISION

-----------------

1. This application takes the form of a counternotice filed on behalf of both defendants against notices lodged by the plaintiff pursuant to Sections 47 and 49 of the Evidence Ordinance, Cap. 8 and Rules 4 and 5 of the Evidence (Hearsay) Rules.

2. The plaintiff claims damages against both defendants as a result of the death of her son who is alleged to have been negligently or intentionally shot with a revolver by the second defendant who was a Detective Constable of the Royal Hong Kong Police Force. The deceased died on 27th June 1975.

3. On various dates between July 1976 and November 1976 the deceased's death was the subject of a Coroner's inquest during which evidence was given by a number of witnesses and it is the record of certain evidence compiled by the Coroner which forms the subject matter of the notices and counternotice.

4. In support of the counternotice opposing the admissibility in evidence at the trial of this action of the depositions of seven witnesses called during the inquest Counsel for the defendant cited a number of early English decisions which disapproved of the practice of introducing into evidence a transcript of the proceedings which had taken place before a Coroner at an inquest. In the House of Lords decision in Calmenson v. Merchants Warehousing Co. Ltd. (1921) W.N. 59 Lord Dunedin made the following observations on the practice:-

"I think it right to state emphatically that I cannot regard this as a practice to be admired. The primary object of an enquiry before a coroner is not to fix responsibility on anyone: the parties to the action at law are not necessarily represented at the inquest, and attention is not directed by examination and cross-examination to many points which may be of importance in the action. The expression of opinion of the coroner's jury, even if it touches the question of responsibility, cannot be made evidence in the action by any admission. Evidence given at an inquest may legitimately be used for the purposes of cross-examination of a witness at the trial; but to do what was done here - to put in the evidence as a whole, and then supplement it by another examination of the same witnesses, is a proceeding which does not make for clearness, and is, in my opinion, highly objectionable."

5. This, then, was the position at common law prior to the enactment in England of the Civil Evidence Act 1968 the principal provisions of which have been incorporated into the Evidence Ordinance in Hong Kong. The result of these statutory enactments is to extend the circumstances in which records or statements can be admissible as evidence in civil proceedings. The relevant provisions of the Evidence Ordinance relied on by the plaintiff are Sections 47(1) and 49(1).

Section 47(1) provides:

"In any civil proceedings a statement made, whether orally or in a document or otherwise, by any person, whether called as a witness in those proceedings or not, shall, subject to this section and to rules, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible."

Section 49(1) provides:

"Without prejudice to Section 50, in any...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT