Ctrisks Rating Ltd v. Chan Pik Kwan

HCA 1413/2015

[2021] HKCFI 2619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1413 OF 2015

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HCA 3108/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3108 OF 2016

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(Heard Together)

Before:  Hon Anthony Chan J in Chambers

Date of Hearing: 2 September 2021

Date of Decision: 2 September 2021

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DECISION

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1.By these actions the Plaintiff claims against its former senior officers for breach of contractual and fiduciary duties and breach of confidence in relation to (a) alleged misappropriation of rating methodologies developed by the Plaintiff and (b) undertaking outside work without the Plaintiff’s knowledge and consent.

2.In this application, the Plaintiff seeks leave for 2 (out of 3) of its witnesses (“Witnesses”) to give evidence at the forthcoming trial (commencing on 13 September 2021) from Singapore by way of VCF.

3.The reason for the application is that due to the changing COVID-19 preventative measures put in place by the Hong Kong Government, the Witnesses are unable to attend the trial in Hong Kong despite their best endeavours.

4.It has been demonstrated by the evidence of the Plaintiff that these are key witnesses for its case, and their plan to attend the trial had been undermined by the recent heightened restrictions imposed for people coming to Hong Kong who had been to the UK.

5.There is no dispute to the Plaintiff’s evidence, which has been helpfully summarised in the skeleton submissions of Ms Szeto, who appears with Mr Leung for the Plaintiff, as follows :

(1)  On 26 and 30 June 2021, the Witnesses went on a business trip to the UK, intending to return to Hong Kong on 22 July 2021.

(2)  On 28 June 2021, the HK Government designated the UK as a Group A1 (extremely high-risk) specified place, such that travellers from the UK were effectively banned from boarding flights to Hong Kong and had to take a detour to a lower-risk place for 21 days before returning to Hong Kong.

(3)  The Witnesses therefore travelled from London to Zurich on 30 July 2021, with the intention of staying in Zurich for 21 days and returning to Hong Kong on 21 August 2021.

(4)  On 16 August 2021, the HK Government re-designated Switzerland as a Group A (high-risk) specified place.  On 20 August 2021, the Government further announced that persons arriving from Group A specified places must hold “recognised vaccination records”[1] before they are allowed to board flights for Hong Kong.

(5)  The Witnesses were fully vaccinated in Singapore, but their vaccination records do not constitute “recognised vaccination records”.  Thus, they were not qualified to board their scheduled flight from Zurich to Hong Kong on 21 August 2021.  They flew to Singapore on the same day, with the intention of staying in Singapore for 21 days and returning to Hong Kong thereafter.

(6)  The earliest date on which the Witnesses can return to Hong Kong would be 12 September 2021, upon which they would be subject to mandatory quarantine at a Designated Quarantine Hotel for 14 days up to 26 September 2021.

6.I accept the Plaintiff’s position that it would not be practical for the Witnesses to give evidence via VCF in their quarantine rooms, eg, an observer will have to be present.  In any case, there is no advantage over having such evidence given in Singapore via the same medium. 

7.It is quite plain that a refusal of this application may well force the Plaintiff to apply to have the trial adjourned, which is highly undesirable for obvious reasons. 

8.The Defendants do not object to this application whilst protesting that the prospects of adjourning the trial leave them with little choice.  However, Mr Leung, who appears for the Defendants, has criticised the Witnesses for getting into a predicament which was self-induced and a result of mis-judgment.  In the circumstances of this case, these are harsh criticisms made with a fair amount of hindsight.  In reality, difficult as it may be, overseas travelling may not be avoided in order to meet one’s business obligations.

9.I bear in mind that satisfactory arrangement has been proposed by the Plaintiff to have the evidence of the Witnesses taken at a neutral venue in Singapore under the observation of an independent Singaporean lawyer.  The Defendants can instruct their own observer to the proceedings if they see fit.  There remains time for the arrangement to be fine-tuned.

10.I bear in mind also the principles set out in Re Nobility School Ltd [2020] HKCFI 891, §9.

11.In these circumstances, I believe that it is a proper exercise of this court’s case management power to accede to the application, and I do so.

12.The Summons for the application contains generous costs provisions.  In short, the Plaintiff is prepared to bear all the costs of this application as well as the costs of taking the evidence via VCF. I fail to see a proper justification for the Defendants’ application to have such costs awarded on indemnity basis.  I make an order in terms of the Summons, save and except para 4 thereof.

Ms Kay Seto and Mr Kaiser Leung, instructed by Hom & Associates, for the Plaintiff in HCA 1413/2015 and Plaintiff in HCA 3108/2016

Mr Leung Kam Fai of Patrick Wong & Co., for the Defendant in HCA 1413/2015 and Defendants in HCA 3108/2016