Ad (also known as At) v. Rt

HCMC 1/2022

[2024] HKCFI 2329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 1 OF 2022

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BETWEEN

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DECISION

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THE APPLICATION

1.This is an application made by the petitioner wife (“W”)  for leave to adduce the oral evidence of her witness Mr Sxxxxx Sxxxxx (“Mr S”)  through video-conferencing facilities (“VCF”)  at the trial which shall commence on 9 September 2024.  It is expected that Mr S will give evidence on 12 and 13 September 2024.

GROUNDS OF APPLICATION

2.W’s application is supported by her 18^th Affirmation in which she explained that she contacted Mr S on 13 July 2024 in an attempt to confirm his attendance at the trial.  During the conversation, he expressed his concerns about his safety in Hong Kong.  His wife was also very worried and therefore was against the idea of him physically coming to Hong Kong to give evidence.  The reason was that the respondent husband (“H”)  had brought criminal proceedings against him in Dubai to intimidate him for being W’s witness in these proceedings. 

3.Mr S said that as a result he would have to discuss this matter further with his family, and that he would revert to W.

4.W then tried to reach Mr S again on 2 and 3 August 2024 but in vain.

5.W therefore instructed her solicitors to write to Mr S on 14 August 2024, who then replied by email dated 16 August 2024 (“the Reply Email”):

“[…]

Referring to your letter regarding my attendance at the trial I want to reiterate my concerns about my safety in Hong Kong, particularly due to [H]’s past actions and the potential harassment I could face.

I am eager to participate in the trial; however, as the breadwinner for my family, their concerns for my safety are paramount. In the past, I faced significant issues due to [H]’s false allegations, which left me stranded in Dubai for almost 9 months until the judgment cleared my name. He has openly threatened retribution, knowing I am the key witness.

To ensure my safety while still contributing to the proceedings, I propose attending the trial via video conferencing. This would allow me to participate without revealing my location. My family supports this option and has no objection to me attending remotely.

[…].” 

THE LEGAL PRINCIPLES

6.The applicable legal principles have been summarised by Anthony Chan J in Re Nobility School Limited [2020] HKCFI 891 as follows:

“(1)  The giving of evidence by video conferencing facilities (‘VCF’)  is an exception;

(2)  The starting point is that proceedings are conducted in court. I would add that this is more important when it comes to a trial;

(3)  Sound reason is required to justify a departure from the starting point;

(4)  The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence;

(5)  The court may be more disposed to exercise its discretion to allow evidence by VCF in respect of technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence;

(6)  Where the credibility of the witness is seriously contested, it is important for the witness to be examined under the solemn atmosphere of the court;

(7)  Costs and convenience may be important considerations which the court will have to weigh in the determination of the application;

(8)    Ultimately, it is a matter of 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, any delay to the proceedings and practical considerations like the availability of the facilities (see Practice Direction 29).”

7.Reference may also be made to the Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 3: Wider Video-Conferencing Facilities and Telephone)  issued by the Judiciary on 15 December 2020, in which it was provided, among other things, that:

“18. In making the case management decision as to which hearings will be dealt with remotely, the court will take into account the views of the parties, the availability of VCF equipment, the subject-matter of the proceedings or relevant part of the proceedings and all other material circumstances, including in particular whether the proposed use of VCF is likely to promote the fair and efficient disposal of proceedings (including through the avoidance or reduction of delay)  and/or to save costs.

[…]

20.   In addition to those general matters mentioned above, those factors may include (but are not necessarily limited to): (a)  the importance and nature of the issue to be determined; (b)  whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the parties; (c)  whether the parties are legally represented; (d)  the ability of the parties to engage with and follow remote proceedings meaningfully; (e)  whether evidence is to be heard (and, if so, the nature of that evidence)  or whether the case will proceed on the basis of submissions only; (f)  the proposed length of the remote hearing; and (g)  whether there are other alternatives consistent with public health concerns and the need for safety, such as for some or all of the participants to take part in the court hearing by physical attendance in a court room before the JJO.”

DISCUSSION

Reasons provided by Mr S

8.It is important to note that Mr S (together with his family)  was not worried about giving evidence against H in the present proceedings at all.  Indeed, he stated that he is still eager to contribute to these proceedings by giving oral evidence.  He only wanted to avoid coming to Hong Kong.

9.In that regard, he did not explain why he would be in any form of danger if he were in Hong Kong.  All that he could say was that he has been stranded in Dubai for 9 months because of H’s false allegations of criminal offence made against him.

10.With respect, Mr S’s alleged concern is simply inadequate to establish sound reason for the Court to depart from the starting point that proceedings should be held in the court room.  If H were minded to revenge by reason of Mr S’s giving evidence against him, this could still happen no matter whether Mr S is going to give evidence in the High Court Building of Hong Kong or somewhere outside Hong Kong.  So, what would be the difference if he comes to Hong Kong physically?  It is not alleged that H would, for example, assault him.

11.Mr Marwah further alleged that Mr S “fears harassment by H if he comes to Hong Kong”.  Insofar as it is hinted that H would lodge false complaints to the Hong Kong Police against Mr S, I am afraid that allegation is simply not made out.  It is nothing other than speculation. 

Prejudice to H

12.It was submitted by Mr Marwah for W that any prejudice to H resulting from having to cross-examine Mr S through video link will be limited.  With respect, I do not agree, because it is undeniable that Mr S’s evidence is crucial and will be heavily disputed.  In such circumstances, it is important that he will be cross-examined under the solemn atmosphere of the Court:

(1)  As Anthony Chan J observed in Re Nobility School Limited (supra):

“there will likely be interruptions of the evidence due to, eg, quality of the audio, and such interruptions will normally be to the disadvantage of the cross-examiner”[1].

(2)  Further, as I explained in Esports Business Development Limited v Wong Chun Yee Christopher [2022] HKCFI 2627:

“25. […] Indeed, judging from my own experience, the usage of VCF may be an advantage to the witness, because any problem in the internet connection (which may arise at any time and from time to time)  may interrupt the transmission of the video signal. The screen may be ‘freezed’ during the cross-examination as a result. The questions or answers asked/given may be ‘lost’ in the process. This may deprive the Court and the examiner the chance to observe the immediate reaction of the witness when certain questions are asked. Such sudden loss of signal may also lead to suspension of the Court proceedings, and this in turn may give the witness a longer time to think about his/her answer to the question just asked by the examiner. If the witness alleges that he/she cannot hear a question clearly, it is also very difficult if not impossible to verify whether such an assertion is real, and whether he/she is just buying time to figure out what to say in response to a question.

26.  Furthermore, giving evidence at any place other than the Court room would also tend to reduce the formality of the Court proceedings.  This will create an injustice situation in favour of the witness who gives evidence by VCF.”

13.The above observations are equally applicable in the present case.

14.Of course, it does not mean that the Court should be bound to reject any application of this nature.  After all, it is a balancing exercise.  The disadvantages brought by the witness giving evidence elsewhere should be carefully weighed against other factors such as the reason why such a witness could not come to testify in the court room.  However, in a case such as the present one, in which the witness has simply failed to give any sound reason in support of the application, the applicant (W)  would have an uphill battle to climb.

15.Mr Marwah also submitted that H’s opposition appears to be tactical, because while he is opposing W’s application herein, he maintained a neutral stance in relation to a similar application made by the 1^st Intervener who supports his case.  I do not think this argument assists W, because the question to ask is whether the trial can still be conducted fairly if Mr S is allowed to give evidence by video link, not whether an opposition is tactical or otherwise.

Prejudice to W

16.Mr S has not stated expressly in the Reply Email that he will definitely not come to give evidence in Hong Kong if this application is rejected. 

17.Even if he has said so, this is just one of the factors to be taken into account.  In the circumstances of the present case, I do not think such a factor, even if it exists, would be strong enough to tip the balance in favour of W.  After all, Mr S’s reasons for not coming to Hong Kong are totally unconvincing.  

18.Mr Marwah also submitted that it would be unfair if the 1^st Intervener would be allowed to give evidence by VCF[2] but Mr S would not be allowed to do so.  With respect, in my view “fairness” should not be measured in this way.  The fact that the witness of one side has been allowed to give evidence by VCF does not mean that the witness of the other side should likewise be permitted to do so even though the threshold is not passed in the latter case.  Further, the reason given by the 1^st Intervener for giving evidence via VCF is totally different and therefore the Court is totally justified to exercise its discretion in a different way.

DISPOSITION

19.For reasons of the aforesaid, I dismiss W’s application.

COSTS

20.I make a costs order nisi that W shall bear H’s costs of the application.

21.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper)  within 14 days hereof.

22.Unless any application for variation of the aforesaid costs order nisi is made within time, H shall lodge and serve his statement of costs within 21 days from today.  W shall lodge and serve her statement of objection within 7 days thereafter.  Summary assessment of the costs of the application will be conducted on paper (no matter whether any statement of objection is lodged within time)  thereafter.  The costs assessed shall be payable within 14 days after assessment.

Mr Shaphan Marwah, instructed by Hugill & Ip, for the petitioner

Ms Madeleine Booth, instructed by Haldanes, for the respondent