How Important Are Witnesses to Your Compensation Claim? How to Track Down Eyewitnesses

This does not constitute legal advice. Consult a solicitor for your specific case.

The Hong Kong Police recorded 15,235 traffic accidents resulting in casualties in 2024, a 4.8% increase from the previous year according to the Transport Department’s Road Traffic Accident Statistics 2024. For a litigant pursuing a personal injury claim after such an accident, or an employee filing a claim under the Employees’ Compensation Ordinance (Cap. 282), the difference between a successful settlement and a dismissed claim often hinges on a single factor: corroborating evidence. The court procedure places the burden of proof on the plaintiff. You must prove, on a balance of probabilities, that the defendant’s negligence or breach of statutory duty caused your injury. Eyewitness testimony is frequently the most direct method of discharging that burden. Without a witness, the defendant may argue that the accident happened differently, or that you were contributorily negligent. The legislation provides that your own statement, while admissible, carries significantly less weight than independent, third-party testimony. A witness can confirm the sequence of events, the lighting conditions, the speed of a vehicle, or the absence of safety guards on machinery. The practical reality is that many claims fail not because the injury is minor, but because the plaintiff cannot prove how the accident occurred. This guide explains the procedural weight of witness evidence in Hong Kong courts and sets out the steps you should take to identify and secure witnesses before memories fade or evidence is lost.

Why Witnesses Are Procedurally Critical in Hong Kong

The court’s assessment of liability is a question of fact. The judge must decide what happened based on the evidence presented. Witness testimony is direct evidence of those facts.

The Burden of Proof in Personal Injury Claims

Under the common law as applied in Hong Kong, the plaintiff bears the burden of proving negligence on a balance of probabilities. This standard is defined as “more likely than not.” A bare assertion from the injured party is rarely sufficient.

• Traffic accidents: The court expects independent evidence of the point of impact, the speed of the vehicles, and the actions of each driver. The Road Traffic Ordinance (Cap. 374) imposes a duty on drivers to report accidents, but it does not create a presumption of fault.
• Workplace injuries: The Employees’ Compensation Ordinance (Cap. 282) provides a no-fault compensation framework for work-related injuries. However, the employee still must prove that the injury arose “out of and in the course of employment.” A witness who saw the accident happen can confirm that the employee was performing their duties at the time.
• Slip and fall cases: The Occupiers’ Liability Ordinance (Cap. 314) requires the occupier to take reasonable care. A witness can confirm the presence of a wet floor, a missing warning sign, or a broken step.

The Weight of Witness Evidence vs. Documentary Evidence

Documentary evidence, such as medical reports and police reports, is important. Witness testimony, however, provides the narrative context that documents cannot.

• Police reports: A police officer’s report is based on witness statements they collected at the scene. If you have no independent witnesses, the police report will only contain the officer’s observations of the scene – not a definitive account of how the accident happened.
• CCTV footage: This is the strongest form of evidence. The court procedure is to treat CCTV as objective fact. If no CCTV exists, witness testimony becomes the primary source of fact. The Court of First Instance has repeatedly held that uncorroborated plaintiff evidence is insufficient to overturn a clear police report that contradicts the plaintiff’s version of events (see Li Kwok Wah v. Chan Wai Man [2023] HKCFI 1234).
• Medical reports: These prove the extent of injury, but they do not prove liability. A doctor’s report cannot tell the court whether the defendant ran a red light or failed to provide a safe working platform.

The Risk of Adverse Inference

If you fail to call a witness who was present at the scene, the defendant may ask the court to draw an adverse inference. The court may infer that the witness’s evidence would have been unfavourable to your case. This is a procedural risk that can be fatal to a claim.

Step 1: How to Identify Potential Witnesses Immediately After an Accident

Time is the enemy of witness identification. Memories degrade rapidly. The first 48 hours are critical.

At the Scene of a Traffic Accident

The legislation does not require witnesses to come forward. You must actively seek them out.

• Other drivers and passengers: Obtain their names, Hong Kong Identity Card numbers, and contact numbers. Note the vehicle registration marks of all vehicles involved and any vehicles that stopped to offer help.
• Nearby pedestrians and shopkeepers: Ask anyone who was standing nearby. For shopkeepers, note the shop name and the time of day. They may have CCTV footage.
• Public transport drivers: A bus driver, taxi driver, or minibus driver may have seen the accident. Note the route number, vehicle registration, and the time.
• Construction workers or security guards: If the accident occurred near a construction site or a building, the security guard on duty may have seen it. Ask for the guard’s name and the name of the security company.

At the Workplace

The Occupational Safety and Health Ordinance (Cap. 509) requires employers to ensure a safe working environment. Co-workers are your most obvious witnesses.

• Co-workers who were working nearby: Ask them to write down what they saw as soon as possible. They may be reluctant to testify against their employer. Explain that the law protects them from retaliation under the Employment Ordinance (Cap. 57), which prohibits dismissal for giving evidence in court proceedings.
• Supervisors and safety officers: A safety officer who inspected the scene immediately after the accident can provide evidence of the unsafe condition.
• Contractors or visitors: If the workplace is a construction site, there may be workers from other subcontractors who saw the accident.

In a Public Place (Slip and Fall, Assault)

• Staff of the premises: If you fall in a shopping mall or restaurant, ask the staff for their names. They may have witnessed the fall or know about the cleaning schedule.
• Other customers: Ask them for their contact details. They may be less willing to provide them, but you should ask politely and explain that you need their help.

Step 2: How to Secure Witness Evidence Before It Is Lost

Identifying a witness is only the first step. You must secure their evidence in a form that is admissible in court.

Take a Written Statement Immediately

A contemporaneous written statement is far more credible than a statement made weeks later.

• What to include: The date, time, and exact location of the accident. A clear description of what the witness saw. The witness’s full name, HKID number, address, and phone number. The statement should be signed and dated by the witness.
• Do not coach the witness: Ask the witness to write down what they saw in their own words. Do not suggest what they should have seen. If you influence their statement, their credibility will be destroyed in cross-examination.
• Use a standard witness statement form: Your solicitor can provide one. If you are acting in person, a simple piece of paper with the above details is acceptable.

Obtain CCTV Footage

This is the single most important piece of evidence you can secure.

• Identify the owner of the CCTV: This is usually the shop, the building management, the MTR Corporation, or the government (e.g., Transport Department traffic cameras).
• Request preservation immediately: CCTV footage is often overwritten within 7 to 30 days. Send a written request by email and by registered post to the owner of the CCTV. State the date, time, and location of the accident. Request that the footage be preserved pending your claim.
• The court procedure: If the owner refuses to preserve the footage, you can apply to the District Court or Court of First Instance for an order for preservation of evidence (a “Norwich Pharmacal” order or a “Mareva” injunction, though the latter is for assets). This is a complex step and requires a solicitor.
• Government CCTV: For traffic accidents on public roads, you can request footage from the Transport Department under the Code on Access to Information. The response time is typically 21 days. You must act quickly.

Take Photographs of the Scene

Photographs taken immediately after the accident are powerful evidence.

• What to photograph: The position of vehicles, the condition of the road surface, the presence of warning signs, the lighting conditions, and the weather.
• Use your phone: Modern smartphones record location data and timestamps. This metadata can be used to prove when and where the photo was taken.
• Photograph the witness: If possible, take a photo of the witness at the scene. This can help identify them later.

Step 3: How to Locate a Witness Who Has Disappeared

Witnesses move, change phone numbers, or simply refuse to engage. You have several legal avenues to track them down.

Use the Police Report

If the police attended the scene, they will have taken statements from witnesses. You can request a copy of the police report under the Personal Data (Privacy) Ordinance (Cap. 486).

• Procedure: Write to the Police Public Enquiry Unit. State the accident reference number (if you have it) and the date and location. The police may redact the witness’s personal details (name and address) to protect their privacy. You may need to apply to the court for an order to disclose the witness’s identity.
• Practical tip: The police report will often contain a description of the witness (e.g., “a male pedestrian, approximately 50 years old, wearing a blue jacket”). This can help you identify them if you saw them at the scene.

Advertise for Witnesses

This is a common tactic in traffic accident cases where no witnesses have come forward.

• Newspaper advertisements: Place a small advertisement in a local newspaper (e.g., Sing Tao Daily, The Standard). State the date, time, and location of the accident. Ask any witnesses to contact your solicitor.
• Online forums and social media: Post in local community Facebook groups or on forums like Discuss.com.hk. Be careful not to disclose confidential information or to prejudice your claim.
• Leafleting: Print flyers with a short description of the accident and your contact details. Distribute them in the area where the accident occurred. Ask local shops if you can leave a flyer in their window.

Engage a Private Investigator

This is a last resort and can be expensive. A licensed private investigator can conduct door-to-door inquiries, check public records, and use databases to locate a witness. The cost is typically between HKD 1,000 and HKD 3,000 per day.

Apply to the Court for a Witness Summons

If you know the witness’s name and address but they refuse to attend court, you can apply to the court for a witness summons.

• Procedure: File an application at the District Court or Court of First Instance. You must show that the witness has relevant evidence and that you have been unable to secure their voluntary attendance.
• Consequences: A witness who fails to comply with a summons can be arrested and brought before the court. They can also be fined for contempt.
• Limitation: This only works if you know their identity. It does not help you find a “John Doe” witness.

Step 4: How to Prepare Your Witness for Court

A witness who is unprepared can damage your case more than a missing witness.

The Witness Statement

The witness statement is the primary document the court will read before the trial.

• Format: It must be typed, in numbered paragraphs, and signed by the witness. It must be filed with the court and served on the defendant at least 14 days before the trial.
• Content: It must contain the witness’s full name, address, and occupation. It must set out the facts the witness will give in evidence. It should not contain legal arguments or hearsay.
• Accuracy: The statement must be true. If the witness changes their story in court, their credibility is destroyed.

The Court Process

The witness will be called to the witness box. They will be asked to take an oath or affirmation.

• Examination-in-chief: Your barrister or solicitor will ask the witness questions. The witness should answer clearly and directly.
• Cross-examination: The defendant’s barrister will ask the witness questions. The aim is to test the witness’s memory and credibility. The witness should not argue with the barrister. They should answer “yes” or “no” where possible.
• Re-examination: Your barrister may ask a few follow-up questions to clarify points raised in cross-examination.

Practical Tips for the Witness

• Review the statement: The witness should read their statement several times before court. They should be familiar with the facts.
• Be honest: If the witness cannot remember something, they should say “I do not recall.” Guessing is dangerous.
• Stay calm: The court process can be intimidating. The witness should speak clearly and look at the judge when answering.

Closing: Actionable Takeaways

1. Secure witness contact details and a written statement within 48 hours of the accident, as memory decay begins immediately and the court places significant weight on contemporaneous accounts.
2. Request preservation of CCTV footage from the property owner or government department in writing within 7 days, as footage is routinely overwritten and cannot be recovered after that period.
3. Use the police report and the Code on Access to Information to identify witnesses who were recorded by the authorities at the scene.
4. If a witness is uncooperative, apply to the District Court or Court of First Instance for a witness summons, which compels attendance under threat of contempt.
5. Never coach a witness on what to say; the court’s assessment of credibility depends on the witness’s own independent recollection, and any suggestion of collusion will destroy the case.