Standard Chartered Bank (Hong Kong) Ltd v. Lau Lai Wendy and Another

HCA 1478/2017

[2021] HKCFI 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1478 OF 2017

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BETWEEN

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DECISION

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1.Let me say at the outset that this exceptionally late application for the 2^nd Defendant (“Nie”) to give evidence at the trial via VCF is ill-supported[1].

2.The single ground advanced in support of this application, namely, the health concern due to COVID-19, must be assessed :

(a)     objectively regarding the health risk;

(b)     the subjective fear allegedly held by Nie; and

(c)     the circumstances of this application.

3.As regards (a), whilst Hong Kong is under the cloud of a 4^th wave of infection, the situation is not out of control and its remains one of the safest international cities in the world in terms of the pandemic.

4.In respect of (b), there is nothing to suggest that Nie is more vulnerable to the health risk in question.  Even Beijing, where she resides, is not immune to outbreak of COVID-19.

5.I believe that the circumstances of this application lend much weight to the Plaintiff’s criticism that it is a tactical manoeuvre designed to force the court’s hand due to the risk of adjourning the trial, which is to begin 3 working days away on 11 January 2021, if this application is declined (there is now insufficient time for Nie to meet the quarantine requirement).  I bear in mind in particular that the question of quarantine requirement was raised by the court at the PTR which took place on 7 October 2020.  There was no mention that Nie was adopting a wait and see approach in attending the trial, not even when an embargo was imposed by the court against any further interlocutory application without the leave of the court. 

6.In the premises, I am unable to accept that the health concern is a real deterrence to Nie’s attendance at the trial. 

7.I bear in mind the principles set out in Re Nobility School Ltd [2020] HKCFI 891, §9.  I struggle to find a sound reason to support this application.  Indeed, I agree with the Plaintiff that the ground of delay alone justifies the dismissal of this application: see Ge Yanhong v Wang Chunyang [2020] HKCFI 3166, §§5-11.

8.I have not lost sight of the fact that Nie’s testimony would be of critical importance to the trial.  On the other hand, experience informs that it is unsatisfactory to have the evidence of key witnesses given via video link, for example, it is difficult to ensure that the witness will be looking at the same document on which he is questioned and it is always difficult to control a witness when he is not in court.

9.I agree with the Plaintiff that there cannot be a premium to late application of this type.  It is no less an important part of justice that litigants must abide by the proper rules and procedure prescribed by the court.

10.I should mention that in the case of Re Nobility School Ltd, Mr Ho eventually appeared to give evidence at the trial.  The court was informed that an application was made to the Department of Justice for dispensation of the strict requirement of quarantine to enable him to give evidence.  It is a matter for Nie to explore if she wants to attend the trial. In any case, Nie is the author of her own misfortune if it is now too late for her to attend the trial.

11.For these reasons, this application is dismissed.  I shall hear the parties on costs.

Mr Charles Sussex SC and Mr Tom Ng, instructed by Clifford Chance, for the Plaintiff

Ms Natalie So, instructed by Oldham Li & Nie, for the 2^nd Defendant