HONG KONG SAR, CHINA Law and Practice Contributed by: Gordon Chan
assumptions relied upon, the reasoning process, any limitations, and be verified by a statement of truth. Role During Proceedings Expert reports are exchanged well before trial. The court may order experts to meet and prepare a joint statement that identifies areas of agreement and disa - greement. Unless otherwise ordered, experts give oral evidence under oath and face cross-examination. In appropriate cases the court may also appoint its own independent expert. Failure to comply with directions can lead to exclusion of expert evidence. 2.9 Burden of Proof in Product Liability Cases Product liability cases follow the civil burden and standard of proof. The plaintiff carries the primary responsibility for proving their claim. This applies to civil actions based on negligence or breach of con - tract. The plaintiff must prove all the elements for each cause of action. For tort, the plaintiff must demonstrate that the defendant owed them a duty of care, that the defend - ant breached that duty by, for example, producing a defective product, and that the breach caused loss or injury. For breach of contract, the plaintiff must prove the existence of a contract with the defendant, and the breach of express or implied terms of the contract. The standard of proof is the balance of probabilities. This means the plaintiff must show it is more likely than not that the defendant’s actions or the product defect led to the loss or injury. Courts do not require proof beyond reasonable doubt, which is the higher standard used in criminal cases. Proving these elements can be challenging, especially with complex technical products where design, manu - facturing and testing may be involved. In an action in tort, the doctrine of res ipsa loquitur may help. Where an accident would not normally happen with - out negligence, the court may infer fault and expect the defendant to provide an explanation. However, it is only a rule of evidence. The burden remains on the plaintiff to establish the core facts of the case.
However, if the defendant raises defences such as contributory negligence, they bear the burden of prov - ing negligence on the part of the plaintiff. 2.10 Courts in Which Product Liability Claims Are Brought Civil claims in Hong Kong are brought in three levels of court. The small claims tribunal, the district court, or the court of first instance of the High Court. The main difference in jurisdiction is the amount being claimed. However, there are other considerations such as com - plexity, costs, and legal representation. The Small Claims Tribunal The small claims tribunal has a maximum jurisdiction for monetary claims of HKD75,000. Proceedings here are informal and quick, with no lawyers allowed to rep - resent the parties. Cases are presided over by a single professional adjudicator without a jury. This makes it accessible for individuals with smaller product-related losses, such as minor injuries or damaged goods. Par - ties are also encouraged to mediate and reach settle - ments through the Integrated Mediation Office (West Kowloon). The District Court Cases involving more than HKD75,000 but not exceeding HKD3 million are generally heard in the district court. It is a formal court with strict adherence to procedural and evidential rules. Legal representa - tions are allowed. Cases are heard by a single profes - sional judge without a jury. Given the upper limit of jurisdiction, the bulk of civil cases are heard at this level of court. The High Court Higher-value claims above HKD3 million, or those involving complex legal issues, serious personal inju - ries, or multiple parties, go to the court of first instance of the High Court. This court has unlimited jurisdic - tion and deals with more significant product liability matters, such as major manufacturing defects affect - ing many users. Cases are typically heard by a single professional judge without a jury. However, jury trials remain available in limited cases of defamation. The legal costs scale at the High Court is substantially higher than at the district courts.
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