Au Yeung Pui Chun v. Cheng Wing Sang

HCA 2434/2015

[2020] HKCFI 2101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2434 OF 2015

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BETWEEN

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D E C I S I O N

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1.I am not going to repeat the background of this matter which is familiar to the parties and also briefly set out in my decision on 29 July 2020 refusing to adjourn the trial.[1] What is now before me is an urgent application by the defendant by summons dated 7 August 2020 for directions to allow his own and his wife’s evidence to be given by way of video-link in the Technology Court. The trial is due to start on 20 August 2020 and the defence evidence is expected to commence on around 26 August, ie Day 4 of the trial. The application is opposed by the plaintiff.

2.The decision is between, on the one hand, requiring the two defence witnesses to board a plane to Hong Kong immediately so as to arrive in time for a period of quarantine before attending the trial, failing which their evidence will not be received, and, on the other hand, receiving their evidence via specified video-conferencing facilities.

3.No one will deny that we are in exceptional times having regard to the Covid-19 pandemic.  Hong Kong’s infection rates were relatively low up to early July but have hovered over 100 for 12 days before lowering to high double-digit figures since 3 August 2020.  Switzerland, where the two witnesses reside, has recently seen daily new infections surpassing the 200 mark after the lockdown was eased, with a total of 35,022 confirmed cases and 1,704 deaths (as at the end of July 2020). Moreover, the situation in both places seems to be fluid and unpredictable, and may change rapidly.

4.In these circumstances, the defendant is concerned about the health risks to himself and his wife who are aged 68 and 56 respectively as well as the risks to their family and other court users if they are to travel to Hong Kong to attend the trial.  In particular, reference has been made to the surge in infection cases in what has been called the “third wave” in Hong Kong which, on the evidence, appears to have caused the defence to be especially hesitant and apprehensive with regard to travelling to Hong Kong.

5.It is not easy to measure and compare the associated health risks between the defence witnesses coming to the court in person and giving evidence remotely, and the court is hardly well equipped to do so.  It does seem to me however that there are grounds for real concern for a person who is being asked to travel a very long distance including taking a flight to attend trial in an unfamiliar place at this time in the midst of the coronavirus outbreak, particularly if that person is in the age bracket of the defence witnesses.  Such considerations were taken into account by the court in Taishin International Bank Co, Ltd v QFI Ltd [2020] HKCFI 938 at §8(2) in granting leave for the trial to be conducted through video facilities.

6.Indeed, the plaintiff says, through her counsel, that given the impact of Covid-19, but for the requirements of interests of justice, she would not be opposing the application.

7.It is submitted on behalf of the plaintiff that she would be deprived of having effective cross-examination of the defence witnesses due to the difficulties imposed by video-link facilities, and that this would be unfair to her as the defence witnesses’ evidence is hotly contested.  I have not lost sight of the fact that generally, the starting point is that evidence is to be given in court, and that the solemnity of court proceedings and the atmosphere of the court are an important context contributing to the administration of justice.  But there is no hard and fast rule that hotly disputed factual evidence can never be taken via video-link, as shown by the Court of Appeal’s decision in Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822.  It is a matter of degree and a matter of case management decision which has to be made taking into account all the circumstances.  As the Court of Appeal said in Daimler at §28, “At the end of the day, the question that must be addressed is: what course is best calculated to achieve a just result — for both parties”.  In the present case, I find that the balance comes down in favour of permitting the defence witnesses to give evidence remotely on the footing that that is a workable mechanism.

8.It has also been submitted on behalf of the plaintiff that it would not be possible for the plaintiff to send an agent to Switzerland to act as an observer as that person would need to go through quarantine as required in Switzerland, and that there would not be sufficient time for the plaintiff to engage lawyers in Switzerland for that purpose.

9.I do have some misgivings in this regard as to the lateness of this application, but I have now been told that one of the Swiss law firms approached by the defendant have confirmed their availability to oversee the giving of evidence by the witnesses.  The plaintiff had not been able to find a Swiss lawyer in the short time available up to now, but I am not persuaded that she would eventually find it impossible to find someone acceptable to be appointed as an observer on her behalf to ensure the propriety of the process. 

10.The court expects the parties’ solicitors to cooperate and work sensibly together with a view to conducting the relevant part of the trial remotely.  I would in particular expect robust testing of all technical arrangements to be conducted as soon as possible so as to ensure the quality and reliability of both video and audio communications.  I shall now hear counsel on the terms of the directions to be given.

Mr K M Chong and Mr Philip S Y Li, instructed by Lau, Chan & Ko, for the Plaintiff

Ms Karen Wong, instructed by Humphrey & Associates, for the Defendant