IP MAN SHAN, HENRY v. CHING HING CONSTRUCTION CO. LTD.

IP MAN SHAN, HENRY v. CHING HING CONSTRUCTION CO. LTD.

The application to admit the statutory declaration was refused because the applicant failed to prove the witness was unfit to attend within the meaning of O.38 r.25 (the judge interpreted 'unfit to attend as a witness' to include attending elsewhere by video‑link), and, having failed that threshold, the court would not exercise its wide residual discretion under r.29 because admission would cause significant prejudice by depriving opposing parties of the opportunity to cross‑examine.

Citation
IP MAN SHAN, HENRY v. CHING HING CONSTRUCTION CO. LTD.
Parties
Plaintiff (hca 3675/1985): IP MAN SHAN, HENRY; Defendant (hca 3675/1985); Plaintiff by Counterclaim (hca 3675/1985); 1st Defendant (hca 11768/1995): CHING HING CONSTRUCTION COMPANY LIMITED; 2nd Defendant by Counterclaim (hca 3675/1985); Plaintiff (hca 11768/1995): IP TIN CHEE, ARNOLD; Executrix/3rd Defendant by Counterclaim (hca 3675/1985); 2nd Defendant (hca 11768/1995): YIP MAN HOI MARION; Executrix/3rd Defendant by Counterclaim (hca 3675/1985); 2nd Defendant (hca 11768/1995): IP MAN SUM ROSEANNA; Executrix/3rd Defendant by Counterclaim (hca 3675/1985); 2nd Defendant (hca 11768/1995): IP MAN HING HENRIETTA; Personal Representatives of 1st Defendant by Counterclaim (hca 3675/1985): The Personal Representatives of 1st Defendant IP MAN SHAN, HENRY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 October 2002
Case Number
HCA3675/1985
Procedural Posture
Civil Litigation Hearsay Application Within Trial / Trial — Ruling on Admissibility of Statutory Declaration/hearsay Evidence (hearing 23 October 2002)
Outcome
Application to admit the statutory declaration of Madam Koo as hearsay evidence refused
Legal Topics
Hearsay, Statutory Declaration, Fitness to Attend as Witness, Video‑link Evidence, Residual Discretion to Admit Hearsay
Source Language
EN
Evidence Civil Procedure Hearsay Statutory Declaration Fitness to Attend as Witness Video‑link Evidence Residual Discretion to Admit Hearsay

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Parties

IP MAN SHAN, HENRY

Plaintiff (hca 3675/1985)

CHING HING CONSTRUCTION COMPANY LIMITED

Defendant (hca 3675/1985); Plaintiff by Counterclaim (hca 3675/1985); 1st Defendant (hca 11768/1995)

IP TIN CHEE, ARNOLD

2nd Defendant by Counterclaim (hca 3675/1985); Plaintiff (hca 11768/1995)

YIP MAN HOI MARION

Executrix/3rd Defendant by Counterclaim (hca 3675/1985); 2nd Defendant (hca 11768/1995)

IP MAN SUM ROSEANNA

Executrix/3rd Defendant by Counterclaim (hca 3675/1985); 2nd Defendant (hca 11768/1995)

IP MAN HING HENRIETTA

Executrix/3rd Defendant by Counterclaim (hca 3675/1985); 2nd Defendant (hca 11768/1995)

The Personal Representatives of 1st Defendant IP MAN SHAN, HENRY

Personal Representatives of 1st Defendant by Counterclaim (hca 3675/1985)

Procedural Posture

Civil Litigation Hearsay Application Within Trial / Trial — Ruling on Admissibility of Statutory Declaration/hearsay Evidence (hearing 23 October 2002)

Legal Issues

  1. 1 Whether a statutory declaration from Madam Koo is admissible as hearsay evidence under the old Evidence Ordinance and Order 38 rr.21–29
  2. 2 Whether Madam Koo is "unfit to attend as a witness" under O.38 r.25 thereby justifying admission of hearsay
  3. 3 Whether the court should exercise its residual discretion under r.29 to admit the hearsay statement despite lack of unfitness

Ratio Decidendi

The application to admit the statutory declaration was refused because the applicant failed to prove the witness was unfit to attend within the meaning of O.38 r.25 (the judge interpreted 'unfit to attend as a witness' to include attending elsewhere by video‑link), and, having failed that threshold, the court would not exercise its wide residual discretion under r.29 because admission would cause significant prejudice by depriving opposing parties of the opportunity to cross‑examine.

Court Disposition

Application to admit the statutory declaration of Madam Koo as hearsay evidence refused

Orders

  • The statutory declaration of Madam Koo is not admitted into evidence; hearsay application dismissed