1969-HKRS30-16-29_Part07 — Page 19

Counter-nolice

requiring

person to be

called as a witness.

D. 38, 1. 36.

Determination of question

bether person can or should be called as

a witness. O. 38, 1, 17.

6

8. (1) Subject to paragraphs (2) and (3), any party to a cause or matter on whom a notice under rule 3 is served may-

(a) in the Supreme Court, within twenty-one days after

service of the notice on him; or

(b) in the District Court, within seven days after service of

the notice on him.

serve on the party who gave the notice a counter-notice requiring that party to call as a witness at the trial or hearing of the cause or matter any person (naming him) particulars of whom are con- tained in the notice.

(2) Where any notice under rule 3 contains a statement that any person particulars of whom are contained in the notice cannot or should not be called as a witness for the reason specified therein, a party shall not be entitled to serve a counter-notice under this rule requiring that person to be called as a witness at the trial or hearing of the cause or matter waless he contends that that person can or, as the case may be, should be called, and in that case he shall include in his counter-notice a statement to that effect.

(3) Where a statement to which a notice under rule 3 relates is one to which rule 10 applies, no party on whom the notice is served shall be entitled to serve a counter-notice under this rule in relation to that statement, but the foregoing provision is without prejudice to the right of any part to apply to the court under rule 10 for directions with respect to the admissibility of that statement,

(4) If any party to a cause or matter by whom a notice under rule 3 is served fails to comply with a counter-notice duly served on him under this rule, then, unless any of the reasons specified in rule 7 applies in relation to the person named in the counter- notice, and without prejudice to the powers of the court under rule 11, the statement to which the notice under rule 3 relates shall not be admissible at the trial or hearing of the cause or malter as evidence of any fact stated therein by virtue of section 38B. 38D or 38E of the Ordinance, as the case may be.

9. (1) Where in any cause or matter & question arises whether any of the reasons specified in rule 7 applies in relation to a person particulars of whom are contained in a notice under rule 3, the court may, on the application of any party to the cause or matter, determine that question before the trial or hearing of the cause or matter or give directions for it to be determined before the trial or hearing and for the manner in which it is to be so determined.

(2) Unless the court otherwise directs, the summons by which an application under paragraph (1) is made shall be served by the party making the application on every other party to the cause or matter.

(3) Where any such question as is referred to in paragraph (1) has been determined under or by virtue of that paragraph, no application to have it determined afresh at the trial or hearing of the cause or matter may be made unless the evidence which it is sought to adduce in support of the application could not with reasonable diligence have been adduced at the hearing which resulted in the determination,

10. Where a party to a cause or matter has given notice in accordance with rule 3 that he desires to give in evidence at the trial or bearing of the cause or matter-

(a) a statement falling within subsection (1) of section 38B of the Ordinance which was made by a person, whether orally or in a document, in the course of giving evidence in some other legal proceedings (whether civil or crim- inal): or

(b) a statement falling within subsection (1) of section 38D of the Ordinance which is contained in a record of direct oral evidence given in some other legal proceedings (whether civil or criminal),

any party to the cause or matter may apply to the court for direc- tions under this rule, and the court bearing such an application may give directions as to whether, and if so on what conditions. the party desiring to give the statement in evidence will be permitted to do so and (where applicable) as to the manner in which that statement and any other evidence given in those other proceedings is to be proved.

11. (1) Without prejudice to paragraph (a) of subsection (2) of section 38B and paragraph (a) of subsection (2) of section 38D of the Ordinance and rule 10. the count may, if it thinks it just to do so, allow a statement falling within subsection (1) of section J&B, subsection (1) of section 38D or subsection (1) of section 38E of the Ordinance to be given in evidence at the trial or hearing of a cause or matter notwithstanding--

(a) that the statement is one in relation to which paragraph (1) of rule 3 applies and that the party desiring to give the statement in evidence has failed to comply with that rule: or

Directions with respect to statement made in previous proceedings.

O, JB, r. 18,

Power of

court to allow sinterment Lo be given in evidence.

C. 38. r. 29.