Litigation In Mainland China Under New Evidence Rules: Your 50 Questions – Part 3.

Legal News & Analysis - Asia Pacific - China - Dispute Resolution - Regulatory & Compliance

15 May 2020

 

Introduction

 

The Supreme Court of People’s Republic of China (SPC) formally promulgated the amended version of Several Provisions of the SPC on Evidence for Civil Litigation (New Evidence Rules) on 25 December 2019, which came into effect on 1 May 2020.

 

There are many highlights in the New Evidence Rules. To provide readers with some guidance from a practitioner’s perspective, we have prepared 50 questions which are divided into five sections: overall picture, routes for evidence production, witness testimony, judicial expert opinion and electronic evidence and others. Over the course of the next few weeks, we will be publishing a series of blog posts targeting one section at a time. Section one was published on 1 May and can be found here. Section two was published on 8 May and can be found here. This blog post focuses on the third section, i.e., witness testimony.

 

Section 3: Witness Testimony

 

21.  Can I be a witness in my litigation proceeding?

 

22.  What will happen if I or my attorney admit any fact against my interests?

 

23.  If I make inconsistent or false statements, what are legal consequences?

 

24.  How will the court determine the qualification and competence of a witness?

 

25.  Can I apply to court for calling a witness?

 

26.  Must a witness attend the hearing to give oral testimony?

 

27.  Can attorneys cross-examine a witness?

 

28.  What is the process of a witness giving evidence in a hearing?

 

29.  What are the legal consequences if a witness gives false testimony?

 

30.  Are there any protection measures for a witness?

 

21.  Can I be a witness in my litigation proceeding?

 

No. The CPL draws a distinction between “parties’ statement” and “witness testimony” and lists these two as different types of evidence. In this respect, the term “witness” does not include parties in the proceeding. This is in contrast with the position under the laws of England and Wales, where in civil proceedings, any person, including the parties to the proceedings, may give oral evidence on facts under oath if competent.

 

22.  What will happen if I or my attorney admit any fact against my interests?

 

“Admission” in nature is the disposal of a party’s right in litigation. An admission would relieve the opposing party of its burden to prove the same if a party expressly admits to a fact unfavourable to its position. This is also known as “self-admission”.

 

The New Evidence Rules provides further rules on “deemed self-admission” and also “attorney’s admission”. If one party neither admits nor denies unfavourable facts advanced by the other party and further maintains the same attitude when is put on enquiry by the judge in the course of litigation, that party would be deemed as to have admitted to those facts.

 

As for an attorney’s admission, unless the power of attorney expressly excludes the attorney’s power to admit any facts, an attorney’s admission shall be deemed as the party’s self-admission. However, in a scenario where the attorney makes an admission before the party it represents and the party expressly denies that attorney’s admission, the attorney’s admission shall not be deemed as the party’s self-admission. As such, parties may need to consider carefully about the scope of power of attorney when granting such power.

 

23.  If I make inconsistent or false statements, what are legal consequences?

 

The principle of good faith is enshrined as one of key principles in the CPL, which includes the essential requirement of “estoppel”. The New Evidence Rules adds four new articles (Articles 63-66) detailing the operation of the principle of “estoppel”. The parties shall provide full and true statements and if the parties provide inconsistent statements, the court shall urge the parties to provide reasons for the inconsistency. The parties also have the obligation to respond to the court’s enquiry and, prior to such response, shall sign and read out an undertaking of true statement.

 

The court may exercise its power in accordance to the CPL to punish the parties with either a fine or detention should the parties intentionally give false statements to obstruct the hearing of the case. In particular, if the party refuses to comply with these obligations when responding to the court’s enquiry, the court may rule against that party’s interests when ascertaining the fact to be proved and so enquired, if no other evidence may prove that fact.

 

24.  How will the court determine the qualification and competence of a witness?

 

Generally, a person who cannot accurately express his meaning or intention cannot be a competent witness. In practice, unless proven otherwise, a person is deemed as a competent witness.

 

The New Evidence Rules clarifies special conditions on the competence for persons with no or limited civil capacity. Persons with no or limited civil capacity include minors under the age of 18 (excluding those attaining the age of 16 and are capable of self-support by work) and adults with no or limited capacity for civil act. Such persons may state facts which are proportionate to their age, intelligence and mental health. Do note that these special conditions can only be tested after the general test of competency is satisfied.

 

25.  Can I apply to court for calling a witness?

 

A party may apply to call a witness before the expiry of the time limit for evidence production in general.

 

26.  Must a witness attend the hearing to give oral testimony?

 

The witness must attend the hearing upon receiving the court’s summons. If a witness gives an oral statement with the presence of both parties either at the pre-hearing stage or when the court makes enquiry, this will be deemed as the witness’s oral testimony in the hearing.

 

However, there are certain exceptions where a witness may testify in writing, via video link or by an audio-visual recording with justified reasons.

 

27.  Can attorneys cross-examine a witness?

 

Yes, but they should first obtain the court’s permission. After the witness has given his statement, the court may enquire about any factual points if unclear or in doubt. The parties can then cross-examine the witness with the court’s permission. If the court considers it necessary, the court may direct witnesses to cross-examine one another. It is important to note that a witness may not be allowed to give oral testimony and be cross-examined in the presence of another witness. This further requires that a witness may not watch live broadcast of hearing before giving testimony.

 

28.  What is the process of a witness giving evidence in a hearing?

 

The typical process of giving testimony is that the witness first signs and reads out an undertaking for true statement. Note that this is a separate procedural stage conducted before oral testimony is given. This requirement may be waived for witnesses who are persons with no or limited civil capacity. Following the undertaking, the witness will then objectively give a statement of facts of which he has first-hand knowledge. The witness may not use speculative, deductive or commentary wording and may not be allowed to merely read out a prepared written statement.

 

29.  What are the legal consequences if a witness gives false testimony?

 

A witness has the obligation give true statements in the hearing.

If a witness is found to have deliberately given false testimony, the court may penalise such witness depending on the extent of the violation either by fine or detention or both. Do note that perjury is a crime in the courts of China which is punishable by either a fine, a jail term of up to 7 years or both.

 

30.  Are there any protection measures for a witness?

 

The court may impose a fine or detain any attendee in the proceedings or any other person who prevents a witness from giving testimony by violence, threat, bribe or any other method. If such interference is severe, the interfering person may be found to be criminally liable.

 

The New Evidence Rules added a new Article 73 to emphasise that the witness shall give his statement consecutively, and any party, attorney or auditors in the public gallery shall not interrupt the witness. The court shall stop any interruption and may exercise its power to reprimand or order any such person to leave the courtroom or impose a fine or detention on that person. Moreover, at the cross-examination stage, if any enquiry put to the witness is unrelated to facts to be proved or is made in a threatening tone, insult or with improper leading, the court shall stop the cross-examination and may impose penalties corresponding with the specific violation.

 

Stay tuned for next week’s blog post which will focus on the fourth section, judicial expert opinion.

 

herbert smith Freehills

 

For further information, please contact:

 

Helen Tang, Partner, Herbert Smith Freehills

helen.tang@hsf.com