1969-HKRS29-8-36_Part01 — Page 48

Admis aibility of

evidcnice as

10

38G. (1) Subject to rules, where in any civil proceedings a statement made by a person who is

Lo credibility not called as a witness in those proceedings is given

in evidence by virtue of section 38B-

of maker,

etc. of

statement

admitted

under Section 38B or 38D.

1968, c. 64, #. 2.

Rules,

1968, p. 64, «, K.

(2) any evidence which, if that person had been so called, would be admissible for the pur- pose of destroying or supporting his credi- bility as a witness shall be admissible for that purpose in those proceedings; and (6) evidence tending to prove that, whether before or after he made that statement, that person made (whether orally or in a docu- ment or otherwise) another statement incon- sistent therewith shall be admissible for the purpose of showing that that person has contradicted himself:

Provided that nothing in this subsection shall cnable evidzace to be given of any matter of which, if the person in question bad been called as a witness and had denied that multer in cross-examination, evidence could not have been adduced by the cross- cxamining party.

(2) Subsection (1) shall apply in relation to a statement given in evidence by virtue of section 38D as it applies in relation to a statement given in evi- dence by virtue of section 38B, except that references to the person who made the statement and to his making the statement shall be construed respectively as references to the person who originally supplied the information from which the record containing the statement was compiled and to his supplying that information.

(3) Subsection (1) of section 38C shall apply to any statement proved by virtue of paragraph (b) of subsection (I) of this section as it applies to a pre- vious inconsistent or contradictory statement made by a person called as a witness which is proved as mentioned in paragraph (2) of subsection (1) of sec- tion 38C.

38H. (1) Provision shall be made by rules as to the procedure which, subject to any exceptions provided for in the rules, shall be followed and the other conditions which, subject as aforesaid, shall be fulfilled before a statement may be given in evidence

11

in civil proceedings by virtue of section 38B, 38D or 38E.

(2) Rules made in pursuance of subsection (1) shall in particular, subject to such exceptions (if any) as may be provided for in the rules-

(a) require a party to any civil proceedings who desires to give in evidence any such statement as is mentioned in that subsection to give to every other party to the proceed- ings such notice of his desire to do so and such particulars of or relating to the state- ment as may be specified in the rules, in- cluding particulars of such one or more of the persons connected with the making or recording of the statement or, in the case of a statement falling within subsection (1) of section 38E, such one or more of the persons concerned as mentioned in para- graph (c) of subsection (3) of section® 38F as the rules may in any case require; and (b) enable any party who receives such notice by counter-notice to require any person of whom particulars were given with the notice to be called as a witness in the proceedings unless that person is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identi- fied or found, or cannot reasonably be ex- pected (having regard to the time which has clapsed since he was connected or concerned as aforesaid and to all the circumstances) to have any recollection of matters relevant to the accuracy or otherwise of the statement. (3) Rules made in pursuance of subsection (D)— (2) may confer on the court in any civil pro- ceedings a discretion to allow a statement falling within subsection (1) of section 38B, subsection (1) of section 38D or subsection (1) of section 38E to be given in evidence notwithstanding that any requirement of the rules affecting the admissibility of that state- ment has not been complied with, but ex- cept in pursuance of paragraph (b) shall not confer on the court a discretion to exclude