Ho Wai Tai v. Attorney General and Another

HCA000174/1978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar 0'Dea in Chambers.

Date of Judgment: 21 May 1979

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DECISION

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1. This application takes the form of a counternotice filed on behalf of both defendants against notices lodged by the plaintiff pursuant to Sections 47 and 49 of the Evidence Ordinance, Cap. 8 and Rules 4 and 5 of the Evidence (Hearsay) Rules.

2. The plaintiff claims damages against both defendants as a result of the death of her son who is alleged to have been negligently or intentionally shot with a revolver by the second defendant who was a Detective Constable of the Royal Hong Kong Police Force. The deceased died on 27th June 1975.

3. On various dates between July 1976 and November 1976 the deceased's death was the subject of a Coroner's inquest during which evidence was given by a number of witnesses and it is the record of certain evidence compiled by the Coroner which forms the subject matter of the notices and counternotice.

4. In support of the counternotice opposing the admissibility in evidence at the trial of this action of the depositions of seven witnesses called during the inquest Counsel for the defendant cited a number of early English decisions which disapproved of the practice of introducing into evidence a transcript of the proceedings which had taken place before a Coroner at an inquest. In the House of Lords decision in Calmenson v. Merchants Warehousing Co. Ltd. (1921) W.N. 59 Lord Dunedin made the following observations on the practice:-

"I think it right to state emphatically that I cannot regard this as a practice to be admired. The primary object of an enquiry before a coroner is not to fix responsibility on anyone: the parties to the action at law are not necessarily represented at the inquest, and attention is not directed by examination and cross-examination to many points which may be of importance in the action. The expression of opinion of the coroner's jury, even if it touches the question of responsibility, cannot be made evidence in the action by any admission. Evidence given at an inquest may legitimately be used for the purposes of cross-examination of a witness at the trial; but to do what was done here - to put in the evidence as a whole, and then supplement it by another examination of the same witnesses, is a proceeding which does not make for clearness, and is, in my opinion, highly objectionable."

5. This, then, was the position at common law prior to the enactment in England of the Civil Evidence Act 1968 the principal provisions of which have been incorporated into the Evidence Ordinance in Hong Kong. The result of these statutory enactments is to extend the circumstances in which records or statements can be admissible as evidence in civil proceedings. The relevant provisions of the Evidence Ordinance relied on by the plaintiff are Sections 47(1) and 49(1).

Section 47(1) provides:

"In any civil proceedings a statement made, whether orally or in a document or otherwise, by any person, whether called as a witness in those proceedings or not, shall, subject to this section and to rules, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible."

Section 49(1) provides:

"Without prejudice to Section 50, in any civil proceedings a statement contained in a document shall, subject to this section and to rules, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if the document is, or forms part of, a record compiled by a person acting under a duty from information which -

6. If the party desiring to give a statement in evidence by virtue of either section intends to call the person who made the statement as a witness the leave of the court is required.

7. It seems clear that the record of evidence compiled by the Coroner would by admissible under both of these sections. Nevertheless Counsel for the defendant has sought to persuade me that I should rule the depositions inadmissible for the reasons given by Lord Dunedin in Calmenson's case which he argues are still valid despite the amendments to the Evidence Ordinance. A point of interest is the fact that subsequent to the enactment of the Civil Evidence Act 1968 the learned authors of the Supreme Court Practice (1979 edition) continue to include in the notes to Order 25 rule 3 the common law view that a Coroner's notes of evidence are inadmissible in evidence in actions under the Fatal Accidents Act 1976 and the Law Reform (Misc. Prov.) Act 1934 citing several early English decisions as authority.

8. No judicial comment has apparently been voiced since 1968 on the affect which the Act of that year would have on the earlier body of decisions concerning the admissibility of the Coroner's record. There have, however, been several cases which have expressly ruled that the transcript of evidence in criminal proceedings is admissible under the recent enactment. See Taylor v. Taylor (1970) 2 A.E.R. 609 and Tremelbye (Selangor) Rubber Co, Ltd. v. Stekel (1971) 1 A.E.R. 940.

9. It is argued on behalf of the defendant that the form and standard of proof applying to criminal proceedings are quite different from those in a Coroner's inquest and this only serves to highlight the basic objections raised by Lord Dunedin and other Judges when commenting on the undesirability of admitting the depositions taken at an inquest into evidence in civil proceedings.

10. On a careful consideration of sections 47(1) and 49(1) I cannot overlook the fact that they would encompass the admissibility of records or statements compiled far more informally than the notes of evidence given on oath and recorded by a judicial officer. The objection as to the standard of proof applying at an inquest would only be relevant if the verdict itself was sought to be put in evidence and this is not the case here. The manner in which the evidence was given and cross-examination carried out does not, in my view, exclude the record from being admissible and although it may influence the weight to be attached to the evidence this latter determination is solely the preserve of the trial judge. I rule, therefore, that consequent upon the introduction into law of sections 47 and 49 of the Evidence Ordinance, Cap. 8 the earlier stand taken by the common law has now been superceded and that generally the record of evidence taken by the Coroner is admissible in civil proceedings brought under the Fatal Accidents Ordinance, Cap. 22 and the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23.

11. Certain objections were raised to the admissibility of the evidence of specific witnesses on various grounds. I do not propose to canvass these, however, as I believe the record of evidence is relevant to the issue in these proceedings and its admissibility will neither prejudice or cause any injustice to the parties involved.

12. I was invited to exercise the power given to me under rule 10 of the Evidence (Hearsay) Rules to impose certain conditions on the manner in which the evidence contained in the transcript will be presented at the trial. The specific direction which was urged upon me was to order that the individuals who gave the evidence recorded in the transcript be made available for cross-examination and if there is cross-examination the right to the plaintiff to re-examine without the restraint of the usual rules which apply to re-examination. While satisfied that I am authorised to make such a direction I would be extremely hesitant to attempt to regulate the course the proceedings will take any further. I am of the view that any conditions or directions to be given consequent upon the admission into evidence of the depositions taken at the Coroner's inquest should be left to the trial judge and accordingly my ruling will be confined to dismissing the defendants' counternotice with costs to the plaintiff in any event. There will be a certificate for Counsel.

13. Dated this 21st of May, 1979.

Representation:

Mr. C.N. Ingham, Crown Counsel for 1st and 2nd defendants.

Mr. B. Downey, instructed by D'Almada Remedios & Co. for the plaintiff.