張侃 v. 尚品滙(香港)國際貿易有限公司
Read the full judgment text of DCCJ 4405/2019 on BabelCite. This District Court judgment was delivered on 4 July 2022.
1. By Summons filed on 13 June 2022, the plaintiff applies for leave to give his evidence (him being the only witness) via video conference facilities (“VCF”). The ground and the only ground in support of the application is that the plaintiff, now in the PRC, has not been able to obtain the visa for travelling to Hong Kong.
Cited by 2 cases · Cites 4 cases
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DCCJ 4405/2019 [2022] HKDC 669 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4405 OF 2019 BETWEEN
-------------------------------- Before: Deputy District Judge Gary C C Lam in Chambers Date of Hearing: 4 July 2022 Date of Decision: 4 July 2022 ------------------- DECISION ------------------- INTRODUCTION 1.By Summons filed on 13 June 2022, the plaintiff applies for leave to give his evidence (him being the only witness) via video conference facilities (“VCF”). The ground and the only ground in support of the application is that the plaintiff, now in the PRC, has not been able to obtain the visa for travelling to Hong Kong. LEGAL PRINCIPLES 2.The legal principles governing a VCF application are summarized in Re Nobility School Ltd [2020] HKCFI 891 at §9. The burden lies upon the applicant to satisfy the Court that leave should be granted. “Ultimately, it is a matter of the judgment of the court choosing the course best calculated to achieve a just result by taking into account all the material considerations, including whether the witness is capable of attending the proceedings, any prejudice to the other party, the underlying objectives under Order 1A rule 1, any delay to the proceedings and practical considerations like the availability of the facilities.” Further, a late application may be dismissed on the ground of delay alone: see Li Xiao Yun v China Gas Holdings Ltd, CACV 38/2013, unrep, 11 March 2013 at §18; Re Nobility, supra, at §7. CREDIBILITY OF THE PLAINTIFF 3.The issues for the trial, which will commence soon on 19 July 2022, are, broadly:-
4.To resolve the second and third issues, the circumstances where the plaintiff came to know the Third Party and how they came to the alleged loan agreement would be relevant, and indeed, the plaintiff’s witness statement touches these matters. Thus, it is important that the credibility of the plaintiff should be properly tested in cross-examination. In this regard, I am surprised by the plaintiff’s argument that the credibility of the plaintiff is unlikely to be subject to challenge. INABILITY TO COME TO HONG KONG 5.There is no dispute that the published, official policy is that a PRC resident may apply for visa to come to Hong Kong for litigation purpose, and the visa would be valid for 3 months. What is in dispute is that the plaintiff alleges, via his solicitor’s affirmation made in Hong Kong, that the relevant authority in effect did not grant visa, while the defendant’s stance is that nothing shows that the relevant authority has adopted such a policy. 6.The way in which the plaintiff’s evidence comes to support the present application is not satisfactory. 7.First, the plaintiff himself did not sign any statement. The evidence in support is the plaintiff’s solicitor’s 2nd and 3rd affidavits (the “2nd affidavit” and the “3rd affidavit” respectively). To the 3rd affidavit is exhibited a PRC lawyer’s letter dated 30 June 2022, which I shall mention in more detail below. 8.Second, in paragraph 4 of the 2nd affidavit, it is deposed that:-
9.However, the basis of the allegation that “there was an indefinite suspension of such renewal caused by the recent outbreak of Covid-19 in Mainland China” and that this was unofficial though this was the local authority’s stance is not stated. I do not accord much weight to such allegation. 10.Third, inconsistent with the indefinite suspension of such renewal was the website of Shenzhen Municipal Public Security Bureau (exhibited as “2CAY-1” to the 2nd affidavit) which allowed online booking of appointment for visa for Hong Kong, although in the same website, a “friendly reminder” was posted that people are discouraged from unnecessary travelling. It seems that the defendant’s PRC lawyers are right in saying, in their Explanatory Note exhibited as “RMS-3” to the defendant’s affirmation in opposition that the suspension is related only to self-help application for visa, but not to an over-the-counter application on appointment booked online in advance. 11.Fourth, in fact, on 9 June 2022, the plaintiff booked via WeChat an appointment to apply for the visa, but according to him, the relevant government authority has not replied to him with any confirmation of the appointment. In support, the plaintiff’s solicitors exhibited a few screenshots to show that he tried to book an appointment via WeChat. However, the screenshot did not show the date of the booked appointment and the plaintiff (and his solicitors) did not say what the date was. Nor did the plaintiff say what follow-up steps he took, for example, called the relevant authority to check. In particular, I note that there is no dispute that there is an enquiry number 0755-12367 but there is no evidence that the plaintiff has ever tried to call this number to check the progress of his application. 12.Further, the plaintiff’s counsel suggests that the plaintiff’s PRC lawyer’s letter of 30 June 2022 confirms that there has indeed been no reply. The plaintiff’s PRC lawyer’s letter did assert that the plaintiff had not received any reply as at 30 June 2022. However, the basis for this assertion is not identified, if any. I have no idea whether the basis is that the plaintiff’s PRC lawyer did check the plaintiff’s mobile phone for reply messages but found none, or whether it was simply what the plaintiff told him, or whether the plaintiff’s PRC lawyer checked with the relevant authority via the enquiry number. I would not give much weight to such a mere assertion. 13.As such, I would not take the non-reply as a refusal of the plaintiff’s visa application by the relevant authority. 14.Fifth, the plaintiff alleges that he made two more online bookings on 17 and 29 June 2022. The screenshots exhibited to the plaintiff’s solicitor’s 3rd affidavits as evidence of making such online bookings are undated. The plaintiff’s solicitor only says that he has been informed by the plaintiff that the online applications were indeed made on these two dates. The screenshots purportedly taken on 17 June 2022 do not show the date of the booked appointment while the screenshots purportedly taken on 29 June 2022 show that the date of the booked appointment to be 5 July 2022. 15.However, in the plaintiff’s PRC lawyer’s letter dated 30 June 2022 exhibited to the 3rd affidavit, the PRC lawyer said that the date of the appointment booked on 17 June 2022 was 5 July 2022. One would have thought that if the first appointment for a certain date failed, the applicant may try another date, rather than trying the same date again. There is no explanation proffered as to why both the dates of the appointments booked on 17 June and 29 June 2022 were 5 July 2022, if the plaintiff would be diligent enough to secure a visa. 16.Sixth, the plaintiff’s PRC lawyer’s letter dated 30 June 2022 asserted that the non-response to the plaintiff’s appointment booking was because it is a matter of policy, which the plaintiff cannot change. Here, I note the following:-
17.Therefore, even on the Plaintiff’s own evidence as analysed above, I cannot accept a PRC lawyer’s mere assertion, without any basis, that the published, official policy has been changed or is actually not implemented as it is stated. 18.What is more is that before today’s hearing, the Defendant produced an affirmation deposing that it had instructed a PRC lawyer to try to make an online booking and it shows that he managed to secure the online appointment booking. I do not accept the Plaintiff’s submissions that the exhibited screenshots to the affirmation did not show the correlation between the redacted name of the applicant for the online booking and the redacted name shown in the other screenshot. The affirmation clearly deposes that the exhibited screenshots are screenshots of the same online booking. 19.With such evidence as canvassed above, I can be satisfied at the very most that the plaintiff did make a few online bookings without any reply of confirmations. But the plaintiff has not made any follow-up like making a call at 0755-12367, and has not explained why he has not done so. In the circumstances, I cannot take such non-reply as refusal of the plaintiff’s applications for bookings in the light that (1) there is the published, official policy allowing visa application on the ground of litigation; and (2) the plaintiff has not been diligent enough, if at all, in getting a reply at all, and instead he simply chose to repeat what had already appeared to him to be a failure. 20.As such, I am not satisfied with the evidence before me that the plaintiff is not capable of physically coming to Hong Kong. It is just that he has not been diligent enough in ensuring that his application for visa to come to Hong Kong would get through. DELAY 21.I would also add that delay is another factor I should consider. 22.There is an unexplained delay in the present application. 23.The plaintiff’s PRC lawyer’s letter explains that the visa, if granted, would be valid for 3 months, and thus, for travelling to Hong Kong, the application for visa should be made 3 months in advance. In other words, the application should have been made in April or at latest in May 2022. One would have thought that it should have been made before the PTR on 20 May 2022, so that the Court would be informed promptly as to how to proceed with the trial, or at least secure an earlier hearing date to deal with a VCF application. 24.However, only after the PTR, on 26 May 2022 did the plaintiff apply to renew his Exit-Entry Permit, and only on 9 June 2022 did the plaintiff make the first attempt to secure an online booking for applying for the visa. As a result, the present summons was only filed on 13 June 2022, and the returnable date is today, just 2 weeks before the commencement of the trial. 25.Never has there been any explanation why the plaintiff did not apply to the relevant authorities earlier, say, in April or in May 2022, as one would have thought. 26.I shared Anthony Chan J’s sentiment expressed in §7 of Re Nobility, supra, that the Court is now like being held in ransom in such a late application. I also shared Peter Ng J’s sentiment in Wang Rongan v Silver International Investment Ltd [2021] HKCFI 3198 at §26 that despite being held in ransom, the Court should still have regard to the defendant’s right to a fair trial. CONCLUSION 27.In the circumstances, on the plaintiff’s failure to satisfy me that the he is unable to come to Hong Kong, coupled with the unexplained delay, I dismiss the plaintiff’s application.
Mr Keith Tam, instructed by Yuen & Partners, for the plaintiff Mr Benjamin Chain, instructed by Pansy Leung Tang & Chua, for the defendant | |||||||||||||||||||
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