Hong Kong Regulations

THE RULES OF THE DISTRICT COURT - ORDER 35

PROCEDURE AT TRIAL

(Past version on 01/09/2000).

1. Failure to appear by both parties or
one of them (O. 35, r. 1)

(1) If, when the trial of an action is called on, neither party appears, the
action may be struck out of the list, without prejudice, however, to the
restoration thereof on the direction of a judge.

(2) If, when the trial of an action is called on, one party does not appear,
the judge may proceed with the trial of the action or any counterclaim in the
absence of that party.

2. Judgment, etc., given in absence of party
may be set aside (O. 35, r. 2)

(1) Any judgment or order obtained where one party does not appear at the
trial may be set aside by the Court, on the application of that party, on such
terms as it thinks just.

(2) An application under this rule must be made within 7 days after the trial.

3. Adjournment of trial (O. 35, r. 3)

The judge may, if he thinks it expedient in the interest of justice, adjourn a
trial for such time, and to such place, and upon such terms, if any, as he
thinks fit.

3A. Time, etc. limits at trial
(O. 35, r. 3A)

(1) At any time before or during a trial, the Court may by direction-

   (a)  limit the time to be taken in examining, cross-examining or
        re-examining a witness;

   (b)  limit the number of witnesses (including expert witnesses) that a
        party may call on a particular issue;

   (c)  limit the time to be taken in making any oral submission;

   (d)  limit the time to be taken by a party in presenting its case;

   (e)  limit the time to be taken by the trial; and

   (f)  vary a direction made under this rule.

(2) In deciding whether to make any such direction, the Court shall have
regard to the following matters in addition to any other matters that may be
relevant-

   (a)  the time limited for a trial must be reasonable;

   (b)  any such direction must not detract from the principle that each party
        is entitled to a fair trial;

   (c)  any such direction must not detract from the principle that each party
        must be given a reasonable opportunity to lead evidence and
        cross-examine witnesses;

   (d)  the complexity or simplicity of the case;

   (e)  the number of witnesses to be called by the parties;

   (f)  the volume and character of the evidence to be led;

   (g)  the state of the Court lists;

   (h)  the time expected to be taken for the trial; and

   (i)  the importance of the issues and the case as a whole. (L.N. 153 of
        2008)

7. Order of speeches (O. 35, r. 7)

(1) The judge before whom an action is tried may give directions as to the
party to begin and the order of speeches at the trial, and, subject to any
such directions, the party to begin and the order of speeches shall be that
provided by this rule.

(2) Subject to paragraph (6), the plaintiff shall begin by opening his case.

(3) If the defendant elects not to adduce evidence, then, whether or not the
defendant has in the course of cross-examination of a witness for the
plaintiff or otherwise put in a document, the plaintiff may, after the
evidence on his behalf has been given, make a second speech closing his case
and the defendant shall then state his case.

(4) If the defendant elects to adduce evidence, he may, after any evidence on
behalf of the plaintiff has been given, open his case and, after the evidence
on his behalf has been given, make a second speech closing his case, and at
the close of the defendant's case the plaintiff may make a speech in reply.

(5) Where there are 2 or more defendants who appear separately or are
separately represented, then-

   (a)  if none of them elects to adduce evidence, each of them shall state
        his case in the order in which his name appears on the record;

   (b)  if each of them elects to adduce evidence, each of them may open his
        case and the evidence on behalf of each of them shall be given in the
        order aforesaid and the speech of each of them closing his case shall
        be made in that order after the evidence on behalf of all the
        defendants has been given;

   (c)  if some of them elect to adduce evidence and some do not, those who do
        not shall state their cases in the order aforesaid after the speech of
        the plaintiff in reply to the other defendants.

(6) Where the burden of proof of all the issues in the action lies on the
defendant or, where there are 2 or more defendants and they appear separately
or are separately represented, on one of the defendants, the defendant or that
defendant, as the case may be, shall be entitled to begin, and in that case
paragraphs (2), (3) and (4) shall have effect in relation to, and as between,
him and the plaintiff as if for references to the plaintiff and the defendant
there were substituted references to the defendant and the plaintiff
respectively.

(7) Where, as between the plaintiff and any defendant, the party who would,
but for this paragraph, be entitled to make the final speech raises any fresh
point of law in that speech or cites in that speech any authority not
previously cited, the opposite party may make a further speech in reply, but
only in relation to that point of law or that authority, as the case may be.

8. Inspection by judge (O. 35, r. 8)

The judge by whom any cause or matter is tried may inspect any place or thing
with respect to which any question arises in the cause or matter.

9. Death of party before giving of judgment (O. 35, r. 9)

Where a party to any action dies after the finding of the issues of fact and
before judgment is given, judgment may be given notwithstanding the death, but
the foregoing provision shall not be taken as affecting the power of the judge
to make an order under Order 15, rule 7(2), before giving judgment.

10. Certificate of judicial clerk (O. 35, r. 10)

At the conclusion of the trial of any action, the judicial clerk or other
officer in attendance at the trial shall make a certificate in which he shall
certify-

   (a)  the time actually occupied by the trial;

   (b)  any order made by the judge under Order 38, rule 5 or 6; (L.N. 153 of
        2008)

   (d)  the judgment given by the judge; and

   (e)  any order made by the judge as to costs.

11. List of exhibits (O. 35, r. 11)

(1) The judicial clerk or other officer in attendance at the trial shall take
charge of every document or object put in as an exhibit during the trial of
any action and shall mark or label every exhibit with a letter or letters
indicating the party by whom the exhibit is put in or the witness by whom it
is proved, and with a number, so that all the exhibits put in by a party, or
proved by a witness, are numbered in one consecutive series. In this paragraph
a witness by whom an exhibit is proved includes a witness in the course of
whose evidence the exhibit is put in.

(2) The judicial clerk or other officer in attendance at the trial shall cause
a list to be made of all the exhibits in the action, and any party may, on
payment of the prescribed fee, have an office copy of that list.

(3) The list of exhibits when completed shall form part of the record of the
action.

(4) For the purpose of this rule a bundle of documents may be treated and
counted as one exhibit.

12. Exhibits retained by Registrar pending appeal
(O. 35, r. 12)

(1) Unless the Court otherwise directs, the Registrar shall retain in his
custody all exhibits duly marked and labelled until-

   (a)  the expiration of the time limited by these Rules for appealing to
        the Court of Appeal, or such extended period therefor as may be
        allowed; and thereafter

   (b)  in the event of an appeal to the Court of Appeal, the final disposal
        of such appeal; and thereafter

   (c)  the expiration of the time limited for applying to the Court of Appeal
        for leave to appeal to the Court of Final Appeal, or such extended
        period therefor as may be allowed; and thereafter

   (d)  in the event of the Court of Appeal or the Court of Final Appeal
        giving leave to appeal to the Court of Final Appeal, the
        non-fulfilment of any condition for such leave to appeal or the final
        disposal of such appeal.

(2) Unless the Court otherwise directs, upon the expiration of the time
limited for retention of exhibits fixed under paragraph (1) it shall be the
duty of every party to an action who has put in any exhibits, and where
represented, of his solicitor on the record, to apply to the Registrar for the
return of the exhibits and to collect the same.

13. Impounded documents (O. 35, r. 13)

(1) Documents impounded by order of the Court shall not be delivered out of
the custody of the Court except in compliance with an order made by a judge on
an application made by summons. If the Secretary for Justice makes a written
request in that behalf, documents so impounded shall be delivered into his
custody.

(2) Documents impounded by order of the Court, while in the custody of
the Court, shall not be inspected except by a person authorized to do so by an
order signed by a judge.