EIICHIRO ODA AND OTHERS v. PO FUNG DEVELOPMENT (HK) LTD

EIICHIRO ODA AND OTHERS v. PO FUNG DEVELOPMENT (HK) LTD

The court exercised its discretion under Order 38 r 2 and relevant principles of the Evidence Ordinance to require that the four foreign affirmations not be admitted unless the deponents were made available for cross-examination by video-link; cross-examination was necessary because the affirmations addressed crucial contested issues (authority of publishers, scope of licences, matters of foreign law) and could not safely stand untested.

Citation
EIICHIRO ODA AND OTHERS v. PO FUNG DEVELOPMENT (HK) LTD
Parties
Plaintiffs: P1 to P9 (Plaintiffs); Defendants: 1st, 2nd and 3rd Defendants
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 October 2004
Case Number
HCA3358/2001
Procedural Posture
Copyright Infringement and Licence Dispute / Interlocutory Application Concerning Admissibility of Foreign Affirmations and Entitlement to Cross Examination (pre Trial Directions)
Outcome
Affirmations not admitted in evidence unless the four deponents are available for cross-examination by video-link; cross-examination ordered; trial judge to rule on admissibility and weight; parties to be heard on directions and costs
Legal Topics
Exclusive Licence, Importation of Infringing Copies, Admissibility of Hearsay/affirmations, Cross Examination by Video Link, Construction of Licence Agreements, Foreign Law
Source Language
EN
Copyright Evidence Civil Procedure Conflict of Laws Exclusive Licence Importation of Infringing Copies Admissibility of Hearsay/affirmations Cross Examination by Video Link +2 more

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Parties

P1 to P9 (Plaintiffs)

Plaintiffs

1st, 2nd and 3rd Defendants

Defendants

Procedural Posture

Copyright Infringement and Licence Dispute / Interlocutory Application Concerning Admissibility of Foreign Affirmations and Entitlement to Cross Examination (pre Trial Directions)

Legal Issues

  1. 1 Whether copies printed in Taiwan are infringing under section 35(2)-(3) of the Copyright Ordinance if hypothetically made in Hong Kong
  2. 2 Whether P9 is the exclusive licensee of P1 to P8 for Hong Kong and whether the licence grants rights to control place of printing
  3. 3 Admissibility of four affirmations by officers of Japanese publishers under Order 38 rule 2 or section 47 Evidence Ordinance

Ratio Decidendi

The court exercised its discretion under Order 38 r 2 and relevant principles of the Evidence Ordinance to require that the four foreign affirmations not be admitted unless the deponents were made available for cross-examination by video-link; cross-examination was necessary because the affirmations addressed crucial contested issues (authority of publishers, scope of licences, matters of foreign law) and could not safely stand untested.

Court Disposition

Affirmations not admitted in evidence unless the four deponents are available for cross-examination by video-link; cross-examination ordered; trial judge to rule on admissibility and weight; parties to be heard on directions and costs

Orders

  • Four affirmations are not admitted unless each deponent is made available for cross-examination via video-link
  • Deponents to be available for cross-examination at trial by video-link