Wah Lun International Development Ltd v. Lau Chiu Shing
Read the full judgment text of HCA 1429/2015 on BabelCite. This High Court CFI judgment was delivered on 28 September 2020.
1. This is the application of the plaintiff (“ P ”) by summons of 18 September 2020 for leave to allow P’s witness Mr Jia Bin (“ Jia ”) to testify by way of video conferencing facilities (“ VCF ”) at the trial scheduled to commence on 27 October 2020 (with 5 days reserved).
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HCA 1429/2015 [2020] HKCFI 2572 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1429 OF 2015 ______________
______________ Before: Hon K Yeung J in Chambers Date of Hearing: 28 September 2020 Date of Decision: 28 September 2020 ____________________ DECISION ____________________ 1.This is the application of the plaintiff (“P”) by summons of 18 September 2020 for leave to allow P’s witness Mr Jia Bin (“Jia”) to testify by way of video conferencing facilities (“VCF”) at the trial scheduled to commence on 27 October 2020 (with 5 days reserved). 2.The application is supported by Jia’s affirmation of 17 September 2020. The claim 3.Sometime in late 2014 or early 2015, the parties entered into discussion on the purchase by P from D of a majority shareholding in a listed company called e‑Kong Group Limited. A Due Diligence Agreement was later entered into. Pursuant to that agreement, P paid D earnest money in the sum of RMB 20,000,000 (the “Earnest Money”). P avers that issues that subsequently revealed during the due diligence exercise had not satisfactorily been resolved, and that the Earnest Money has as a result become refundable. D’s defence is that the parties had entered into a binding sale and purchase agreement (the “S&P Agreement”) and that the Earnest Money had become non‑refundable and remained as forfeitable deposit under the S&P Agreement. D further avers that upon P’s repudiatory breach of the S&P Agreement by failing to complete the transaction on or before 20 March 2015, the Earnest Money was forfeited. 4.The main issue to be resolved during the trial is whether the parties have entered into the S&P Agreement. 5.For the trial, P is going to call Jia and a Mr Simon Chiu. D is going to call himself. 6.According to D’s Re‑Amended Defence, the S&P Agreement was reached orally during a “personal meeting” in mid or late January 2015 between Jia and D (the “Personal Meeting”). It is common ground that Mr Simon Chiu was not present during that meeting. 7.Jia’s evidence will be important in the resolution of that main issue. His credibility is going to be hotly disputed. Ms Lam, solicitor appearing for P, accepts that[1]. The applicable legal principles 8.I have been cited a number of authorities (decided both before and after the COVID‑19 pandemic) relating to the principles and considerations applicable and relevant to an application of this nature. I refer in particular to the useful summary of the principles by Anthony Chan J at §9 of Re Nobility School Ltd [2020] HKCFI 891 (20 May 2020), that:
Parties’ stances 9.Jia is a Hong Kong resident. He used to frequent between Hong Kong, the Mainland and Singapore for his business. Because of the COVID‑19 pandemic, he has been living in Singapore, and been avoiding travel. 10.P’s grounds put forward in support of the application, as summarized by Ms Lam, are:
11.Mr Jeff Chan appears for P. He objects to the application, upon the following grounds:
Discussion 12.In the present case, the main issue between the parties is a factual one — what were discussed and agreed upon (if any) during the Personal Meeting. It is going to be a one‑on‑one situation — Jia’s evidence against that of D’s[2]. 13.Quite apart from the starting position that proceedings should be conducted in court, on the facts of this case, it is of particular importance that Jia be examined under the solemn atmosphere of the court. 14.I further respectfully adopt the observations made by Anthony Chan J at §21 of Re Nobility School, that it is an important pillar of our legal system that justice is not only done but seen to be done, and that D would have a justified sense of grievance if Jia were to be permitted to give evidence by VCF, thereby having a perceived advantage over D. 15.Balanced against the above is the health risk that Jia will be exposed to in physically attending the trial in Hong Kong and the inconvenience associated with the quarantine. 16.In so far as the quarantine arrangements are concerned, Jia is only relying on the general inconvenience associated with such arrangements. Jia has not put forward any evidence suggesting that he will be exposed and subject to any specific problems over and on top. Whilst it is relevant, I attach little weight to such general inconvenience. With the technologies and facilities commonly and readily available, quarantine is not to be equated to isolation. Jia can continue to be in contact with his business associates and family members if he wants to. 17.The health risk which Jia may be exposed to whilst travelling is a legitimate concern. However, the flight between Hong Kong and Singapore is not a long one. Appropriate precaution may also be taken on board to minimize the risk. 18.As to the unpredictability of the pandemic, the Court can only deal with the matter as things are. Prevailing health situation is easing, and judicial proceedings are resuming normal order. 19.Given the above, and on balance, I am not persuaded that the grounds put forward are sufficient to justify leave for Jia to give evidence by VCF. I refuse the application. 20.I order that the costs of the present summons, including this hearing, be to D in any event.
Ms K P Lam, of Haldanes, for the Plaintiff Mr Jeff Chan, instructed by Michael Li & Co, for the Defendant | ||||||||||||||||||
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