Imperial Pacific International (Cnmi), Llc v. Chan Chi Hung

HCA 75/2018

[2025] HKCFI 1512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 75 OF 2018

____________

____________

_______________

D E C I S I O N

_______________

INTRODUCTION

1.At the Pre-trial Review (“PTR”) on Friday, 21 March 2025 for this action, of which the trial is scheduled to commence on 16 June 2025 (with 8 days reserved), the plaintiff (“P”) applied for the evidence of its main witness Mr Ji Xiaobo (“Ji”) to be given via video conference facilities (“VCF”) at the trial. P made the application by way of summons issued on 13 March 2025, exactly 8 days before the PTR and returnable at the PTR hearing (without any prior notice to the defendant (“D”) or the Court) (“the VCF Summons”).

2.The first thing I noticed about the VCF Summons is the fact that P has failed to observe the requirements under Practice Direction 5.4 (“PD 5.4”) in that it had only lodged with the Court the hearing bundle at 5:00 pm on Tuesday, 18 March 2025 (“the Hearing Bundle”) and the skeleton argument at 10:10 am on Wednesday, 19 March 2025 (“P’s Submissions”). They were both lodged less than 72 hours required under §11 of PD 5.4. There was no explanation from P at the time when lodging those documents of why they were late.

3.As a result, it caused D not able to lodge his skeleton submission in reply to the grounds relied on by P for the application until 4:50 pm on Thursday, 20 March 2025 (“D’s Reply Submissions”), ie the day before the PTR itself. Having said that, D’s counsel had, in order to comply with the requirements under §12 of PD 5.4, lodged with the Court his skeleton argument and list of authorities on Wednesday, 19 March 2025 at around 10:20 am (“D’s Submissions”), trying his best to anticipate P’s arguments “in the blind” as it were.

4.Due to P’s late lodging of the Hearing Bundle and P’s Submissions, it did not give the Court sufficient time to read the hearing bundle as well as the parties’ submissions in time.

5.At the beginning of the PTR hearing on 21 March 2025, the Court asked for explanations from P as to why (i) the Hearing Bundle and P’s Submissions were not lodged in time in accordance with PD 5.4; and (ii) why the VCF Summons was taken out so late in the proceedings.

6.Despite his best efforts, P’s counsel Mr Ronald Pang was not able to offer any satisfactory explanations to the Court on both matters.

7.In the circumstances, the Court had no alternative but to order a short adjournment in order to allow it to have sufficient time to read all the documents and to digest the respective counsel’s written submissions including the many authorities relied on by them. The VCF Summons was therefore adjourned to 24 March 2025 for substantive argument and the PTR was adjourned to 29 April 2025 as a result.

8.Having heard counsel’s submissions on costs, I ordered all costs thrown away as a result of the adjournment, including the adjournment of the PTR, to be borne by P on an indemnity basis. The costs is summarily assessed at HK$90,000 and to be paid by P forthwith.

BACKGROUND

9.For the background of this case, the parties are referred to §§2-4 of the Reasons for Decision handed down by this Court today in relation to D’s application to file and serve two witness statements and one supplemental list of documents which was heard and decided by the Court on 18 February 2025.

DISCUSSION

10.In support of the VCF Summons, P has filed the following affirmations:-

(a)  The affirmation of Howyo Chi (“Chi”) dated 13 March 2025 which was exhibited under the cover of the affirmation of Yam Chun Fai (“Yam”) filed on 13 March 2025. Chi’s affirmation was subsequently filed in court on 18 March 2025 (“Chi Aff”).

(b)  The 2^nd affirmation of Ji dated 12 March 2025 was initially exhibited under the cover of the affirmation of Yam but a notarized copy was later filed in court on 20 March 2025 (“Ji Aff”).

11.In opposition, D has filed his 9^th affirmation on 17 March 2025 (“D’s Aff”) where D raises the following grounds in opposition:-

(a)  It is Chi who filed an affirmation in support of the VCF Summons and hence not direct;

(b)  Ji’s fear of being investigated by mainland authorities is unfounded;

(c)  There is no reason why the VCF Summons could not have taken out earlier; and

(d)  Ji’s evidence is crucial and therefore should not be allowed to give evidence remotely.

12.As for the reasons for the VCF Summons, Chi tried to explain in his affirmation that, in preparation of the trial (and in particular the PTR hearing scheduled on 21 March 2025), Chi started to contact P’s witnesses to remind them to come to Hong Kong to give evidence. Upon contacting Ji, he was informed by Ji that, while agreeable to give evidence, he refused to come to Hong Kong due to personal circumstances: (see §§7-8 of Chi Aff).

13.There is no dispute that a critical factual dispute of trial will be focused on the practices of the Casino with regards to its provision and lending of credit facilities in the form of Chips and the actual authority that Ji had with the Casino and/or P.

14.P accepts that Ji is a crucial witness in the trial for both P and D’s respective case, considering the personal averment made by D against Ji that he had caused the Chips to be provided for free to D.

15.Chi in his affirmation confirmed that Ji had told him that he had left Hong Kong on or about 23 December 2021 (who now lives in Japan) and had never come back to Hong Kong since then: (see §9(c) of Chi Aff). Ji has however made it clear that he will not come to Hong Kong for his fear of prosecution of alleged criminal activity against him in the Mainland. P therefore took out the VCF Summons for Ji to give evidence remotely.

16.Ji in his affirmation tried very hard to distance himself from P by making the following self-serving assertions:-

(a)  Firstly, he had never held any official position with the Casino, nor with P, but was rather once employed by P’s sister company (振裕兴业有限公司), through the instructions of P’s parent company to work on P’s casino;

(b)  Secondly, he is not a shareholder nor does he own any interest in P by virtue of shares or otherwise. P’s claim is therefore independent from him; and

(c)  Lastly, his only connection with P (as the Casino’s Operation Director (項目總監)) had ceased with P’s parent company has been placed in liquidation since September 2023.

(See Ji Aff at §§2-6)

17.As to the reason why Ji has refused to come to Hong Kong, the same is allegedly a matter of his personal circumstances. He states that fears that he may be prosecuted in the Mainland for alleged serious crimes unrelated to the present proceedings against D: (see Ji Aff §12).

18.Ji also states such fears stemmed from the fact that he has been accused of masterminding a criminal organisation of 15 people involving, inter alia, violence, intimidation, and collection of illegal debts from gambling: (see §§9-11 of Ji Aff).

19.In support of his alleged fears, Ji has exhibited a public announcement from the Intermediate People’s Court in Beijing on 24 November 2023 which contains a serious allegation but a thinly veiled reference to Ji (“the Announcement”):

“2008年至2021年间，为谋取非法利益，纪某某（另案处理）[...] 组织被告人申中连等采取暴力、威胁及其他手段索要因赌博形成的非法债务; […] 上述人员长期纠集在一起，形成了以纪某某为首要分子，被告人崔丽梅等15人位成员的恶势力犯罪集团，在本市及外省市，多次实施了组织、招揽我国公民赴境外赌博、寻衅滋事、非法侵入住宅、催收非法债务等违法犯罪行为。” [SB/6/33-25]

20.The defendant referred to in the Announcement Cui Limei (崔麗梅), who was arrested and sentenced for a term of imprisonment, is allegedly Ji’s aunt: (see §9 of Chi Aff). As a result, Ji states that he left Hong Kong since December 2021 for fear of being criminally investigated/prosecuted by the Mainland authorities. He has no intention of coming back to Hong Kong: (see §11 of Ji Aff).

21.Despite having no obligation to do so, as he alleges that he has no interest in P whether in the form of shareholding or otherwise, Ji has agreed to give evidence for P. However, Ji flatly refuses to come to Hong Kong to give evidence. Ji claims that he has no obligation to attend Court to give evidence for P in these proceedings as he has no connection with P whatsoever. P similarly cannot compel Ji to give evidence for P in person in Hong Kong.

Applicable Legal Principles

P’s submissions on law

22.Mr Pang in P’s Submissions heavily relied on the relatively old case of Sun Legend Investments Ltd v Ho Yuk Wah [2008] 4 HKLRD 239, a decision of Chu J (as the VP then was).

23.In essence, in that case Chu J held that whether granting a VCF application is a balancing exercise by with concepts of fairness and justice at the forefront. The learned Judge at §§2, 3 and 12 in Sun Legend observed that:

“2. The use of the Technology Court and its facilities, including the VCF, is regulated by Practice Direction 29. In particular, para.4 provides that:

‘It is a case management decision within the discretion of the court or tribunal concerned whether any proceedings or parts of any proceedings should be conducted in the Technology Court.’

3. Paragraph 5 of Practice Direction 29 further states that:

‘In making the decision, the court or tribunal shall take into account the views of all the parties, the availability of the Technology Court, the subject matter of the proceedings or the relevant part of the proceedings and all other material circumstances, including in particular, whether the proposed use of the Technology Court is likely:

(a) to promote the fair and efficient disposal of the proceedings;

(b) to save costs; and/or

(c) materially to delay disposal of the proceeding.’

[…]

12. The principles to be distilled from the several authorities discussed above are:

(1) Whether to permit the giving of evidence by means of VCF is a decision within the discretion of the court.

(2) In general, the applicant should provide a valid reason for the use of VCF. The threshold for valid reason is not a high one, however.

(3) The court should have regard to all the circumstances of the case. Relevant factors include the matters set out in para.5 of Practice Direction 29, the reason why the witness is unable or unwilling to attend the trial in person, the importance of the witness to the applicant’s case and any prejudice to the other party.

(4) The witness’ unwillingness to testify in person at the trial because he is a fugitive from justice may, depending on the circumstances of the case, be a good and sufficient reason for making a VCF order.”

(emphasis added)

24.Polanski v Condé Nast Publications Ltd [2005] 1 WLR 637, a House of Lords judgment was considered by the Court in Sun Legend to be a relevant and highly persuasive authority in such applications: (See §11 of Sun Legend), and it was held that VCF evidence must now be considered equally efficient and fair as live evidence in Court:(See §10 of Sun Legend).

25.Mr Pang submits that the factual matrix in Polanski is eerily similar to the present case as the claimant in Polanski had held the same fear as Ji, in that he feared that he would be extradited to the US and incarcerated if he attended trial in the UK. After a lengthy judgment, the House of Lords (by a majority of 3 to 2) acceded to the application and allowed the claimant to give evidence remotely.

26.Mr Pang further submits that this should be distinguished from the other more recent Hong Kong cases considering VCF applications on grounds of illness of a witness, where travelling to Hong Kong falls short of being “life-threatening” (Ang Jimmy Tjun Min v Khoo Chun Kim [2023] HKCFI 3047) or a witness’s refusal to have their business commitments interfered (Re Nobility School Ltd [2020] HKCFI 891 or Mahajan v HCL Technologies (Hong Kong) Ltd [2010] 5 HKLRD 119).

27.Mr Pang finally submits that comments from the House of Lords in Polanski regarding the necessity of granting a VCF order in the context of the fugitive witness are regardless relevant and helpful:

“27. Thirdly, a direction that a fugitive such as Mr Polanski may give his evidence by use of video conferencing is a departure from the normal way a claimant gives evidence in this type of case. But the extent of this departure from the normal should not be exaggerated. It is expressly sanctioned by the Civil Procedure Rules. The power conferred by the rules is intended to be exercised whenever justice so requires. Seeking a VCF order is not seeking an “indulgence”.

28. Fourthly, in the situation under consideration a VCF order will not assist the fugitive’s evasion of justice. Whether a VCF order is made or not, the fugitive will not come to this country. He will not put himself at risk of arrest. In the present case, come what may, Mr Polanski’s long-standing evasion of justice will continue. It will be unaffected by the court’s decision on whether to make or refuse a VCF order. The effect of making a VCF order will be different. […]

33. […] But the general rule should be that in respect of proceedings properly brought in this country, a claimant’s unwillingness to come to this country because he is a fugitive from justice is a valid reason, and can be a sufficient reason, for making a VCF order. […]

34. […] Mr Polanski was convicted of a serious crime. His reluctance to return to this country is grounded in a fear that he may be extradited and receive a custodial sentence in California. That does not take the case out of the general rule. […]” (emphasis added)

D’s submissions on law

28.Mr Valentine Yim, counsel for D, in his submissions has in my view rightly pointed out that P’s counsel has only cited the old cases in its favour without referring to the Court the more recent and relevant authorities on VCF applications. I agree with Mr Yim that P appears to have misunderstood the preponderance of such authorities. In my view, the pendulum has clearly swung and the older cases of Sun Legend and Polanski must be seen in the light of the subsequent and more updated authorities.

29.The starting point to see how the Court would approach VCF applications made for the sake of avoiding criminal investigation is the case of HKCT Trading Ltd v Li Luen Ping [2001] 3 HKLRD 504, where Yeung J (as he then was) made the following observations:-

“8. The discretion of this Court under Order 38 must of course exercise judicially. On the Defendant's own case, there are two significant factors:

(1) He is not a foreign witness but an ordinary resident in Hong Kong;

(2) He had deliberately put himself outside Hong Kong to avoid investigation by a law enforcement agency in connection with suspected criminal acts.

9. I do not agree with Ms June Wee's observation that the issue is simply one of doing justice between the parties to the action. In my view, the case concerns a widen issue of public interest or public policy. The Court should not make any order which would have the effect of encouraging or condoning any attempt to avoid or hinder investigation by a law enforcement agency.” (emphasis added)

30.The subsequent Court of Appeal judgment, Re Chow Kam Fai, ex p Rambas Marketing Co LLC [2004] 2 HKLRD 260 at §§16-20 & §25 per Rogers VP, further upheld the high threshold of departing from the norm that a witness should give viva voce evidence in court, and illustrated that even for a non-Hong Kong citizen (a Macanese in that case), if a person’s reason for not coming to Hong Kong to give evidence arose from a self-inflicted jeopardy, this would put the VCF application in a very dim light:

“16. The next question addressed by the Judge was as to whether the cross-examination could be conducted whilst the respondent was in Macau using VCF. The Judge approached this question on the basis that the giving of evidence by VCF was an exception her than the rule and that it would be a matter of privilege accorded to the respondent and not a matter of right for him to be allowed to do so.

17. In mv view, the Judge was quite correct in this approach. The starting point must be that proceedings are conducted in court. Mr Kat, who appeared on behalf of the respondent, took issue with the approach of the Judge where it was said in para.28 of the judgment that "On the other hand, witnesses are obliged by law, the solemnity of the court atmosphere and the threat of immediate sanction to give evidence on oath or under affirmation and to tell the truth.”

18. Whether or not the threat of immediate sanction is something that weighs heavily on witnesses is, perhaps, a matter of conjecture. Nevertheless, I have no doubt that the atmosphere of a court is highly important as regards the taking of evidence. The solemnity of court proceedings and its atmosphere is something which, I have no doubt, plays an important role in the way justice is administered.

19. There is no doubt that VCF is a highly useful tool. It must be a question of judgment in each case as to whether VCF should be used for the taking of evidence. No doubt, on those occasions when the witness is giving evidence that is technical or purely factual, without important issues as to credibility, a court may be more disposed to allow evidence to be given by the use of VCF. Questions of cost and convenience are no doubt also important considerations that the court will have to weigh in deciding whether to allow evidence to be given using VCF. But first and foremost it seems to me that the Judge was correct in his approach that a party wishing to give evidence using VCF should establish a sound reason why that privilege should be accorded.

20. In this case, the first reason put forward on behalf of the respondent as justifying the use of VCF was that the respondent might be subject to arrest in Hong Kong for failure to observe the earlier order requiring his attendance for examination under O.49B. The Judge below clearly took a very severe view of the respondent's failure to attend in answer to the earlier order and of the respondent's use of the jeopardy into which he had put himself as a reason for the court to exercise its indulgence in permitting him to use VCF and not to come to Hong Kong. Whereas there was a certain amount of repetition in the judgment, that does not detract from the point that it was the respondent who raised his own self-inflicted jeopardy as a reason for not coming to Hong Kong and not the petitioner."

……

25. Whether or not the respondent might have refused to answer questions put to him or have switched the system off is, of course, a matter of conjecture. Nevertheless, as the Judge correctly pointed out, the respondent had demonstrated, very clearly, that he had no wish to be examined under O.49B. Moreover. I agree with the Judge that the solemnity of the court atmosphere may well be very important in this case. I might not use the epithet "fugitive from justice" in respect of the respondent. But clearly his avoidance of his contractual and legal obligations show the defendant in less than a favorable light….” (emphasis added)

31.I agree with Mr Yim that, since the House of Lords decision in Polanski, which was made after the decision in Re Chow Kam Fai, there seemed to be a change of legal landscape for the use of VCF in our Courts.

32.Rogers VP in the above case has firmly steered the line of authorities away from Polanski or Sun Legend and reaffirmed the applicability of Re Chow Kam Fai in his later decision in Mahajan v HCL Technologies (Hong Kong) Ltd where at §9 and §§15 &16 he stated the following:

“9. I regret to note that in the case of Sun Legend Investment Limited v Ho Wah Yuk [2008] 4 HKLRD 239 the learned judge there used words to the effect that my observations in Re Chow Kam Fai, ex p Rambas Marketing Co LLC had been "clearly reversed by the House of Lords". 1 wish to dispel any misconception. First of all, what I said was not a proposition of law, it was a statement as to one of the considerations which a court must have regard to when deciding whether to use VCF technology and, secondly, as far as I am concerned, what I said was not reversed.

….

15. I only wish to make one further observation which has nothing to do with this case but it has something to do with Sun Legend Investments Ltd v Ho Yuk Wah. That is the question as to whether it is right to take into account the question of whether the fact that the proposed witness is a fugitive from justice may be a good and sufficient reason for making a VCF order. The decision appears to have been based on the Polanski v Conde Nast Publications Ltd. That was a case with its own very peculiar facts and, indeed, as recently as August of this year, those facts have emerged far more clearly. It is not necessary for me to go into it but it would appear that it is far from clear that the litigant in that case was indeed a fugitive from justice. He has strong grounds for saying that he was a fugitive from injustice.

16. But one thing is clear: that it is part of the function of this court not only to give judgments but to make sure that they are enforced and, if one has a person who has been in Hong Kong, let alone a professional in Hong Kong, against whom judgments have been given by the Hong Kong courts, it is part of the function of the Hong Kong courts to see that that judgment is observed. It is not part of the function of the Hong Kong courts to allow such a person not to come back to the jurisdiction because he is afraid of what his creditors might do in respect of a judgment which the Hong Kong court has given. As far as I am concerned. in respect of Sun Legend Investments Ltd v Ho Wah Yuk the question of the person concerned being a fugitive from justice would be a factor which would militate against making a VCF order.” (emphasis added)

33.Most significantly, in Re Nobility School Ltd [2020] HKCFI 891 (unrep., 20 May 2020), Anthony Chan J, after referring to the judgments of Sun Legend, Re James Henry Ting [2013] HKCFI 1569, Re Chow Kam Fai, Mahajan and Daimler AG v Leiduck (No2) [2013] 2 HKLRD 822, summarized at §9 the applicable legal principles on VCF applications :

“(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).” (emphasis added)

34.In my view, the above summary by Anthony Chan J in Re Nobility School Ltd must be considered as the most accurate and update summary of the law on the approach of VCF applications by the Courts in Hong Kong. I would respectfully adopt the same approach when deciding the VCF Summons in this case.

35.In relation to the first four points in Re Nobility School Ltd, they are not new as the judge at the first instance in Re Chow Kam Fai [2004] 1 HKLRD 161, DHCJ To had already laid emphasis on them in his judgment:-

“With that, I now turn to my search for the principles governing the exercise of the court's discretion in allowing a witness to give evidence from outside the courtroom via video link. The starting point is the fundamental basis that justice is dispensed by the Court of Justice and as a rule the parties have to come to the court to obtain justice. Secondly, justice is dispensed in open court accessible to the public so that any member of the public can watch the administration of justice in action. Justice has to be openly seen to be done. Within the court building and its precincts, the parties, their witnesses and their legal representatives are protected by law. They are free to prosecute their claim or their defence without fear. On the other hand, witnesses are obliged by law, the solemnity of the court atmosphere and the threat of immediate sanction to give evidence on oath or under affirmation and to tell the truth. They are subject to the sanction of the court if they should refuse to answer questions on oath or disobey an order of the court or otherwise behaves disrespectfully. Likewise, the judge can watch the witnesses giving evidence under the solemnity of the court atmosphere. Without exaggerating the notion of the dignity of the court and its authority, proper administration of justice must be conducted and seen to be conducted by proceedings within the courtroom. Hence, giving evidence outside the courtroom via video link is an exception rather than the rule. It is a privilege and not a right. This is my starting point”. (emphasis added)

36.It is important to note that the first instance judgment in Re Chow Kam Fai was approved by the Court of Appeal in Re Chow Kam Fai, sub nom.

37.As pointed out by Mr Yim, the importance for a witness to be examined under the solemnity of the court has been consistently applied and approved by the Courts in Hong Kong:-

(a)  Mahajan at §7 per Rogers VP ;

(b)  Re Nobility at §9 per Anthony Chan J;

(c)  Esports Business Development Limited v Wong Chun Yee Christopher [2022] HKCFI 2627 (unrep., 23 August 2022) per DHCJ H. Au-Yeung (as he then was) at §23; and

(d)  Standard Chartered Bank (Hong Kong) Limited v Nie Hai Yan Annie (聶海燕) [2021] 1 HKLRD 712, in which Anthony Chan J adopted the principles set out by himself in Re Nobility School Ltd at §7.

38.I cannot agree more with the learned judges in the above cases of the importance for a witness to give live evidence under the solemn atmosphere of a court room.

FINDINGS OF THE COURT

39.First, I reject Mr Pang’s submission (by relying on a passage of Chu J in Sun Legend) that the threshold of a valid use of VCF is not a high one. In my view, the better approach is that adopted by Anthony Chan J in Re Nobility School Ltd at §10 when the learned judge rejected the rigid analysis of the proper threshold to be adopted in considering the application and instead suggested that the exercise should be a holistic one.

40.Thus, in my view, it is for P, who as the applicant seeking its witness to give evidence via VCF, to provide sound reason(s) to justify the departure from the accepted principles that the proceedings should be conducted in the solemnity of the court.

41.In justifying the application of VCF, Mr Pang submits that (i) Ji is a fugitive from justice; (ii) Ji being a fugitive from justice is a good and valid reason for the Court to make a VCF order; (iii) the absence of Ji will undeniably cause disadvantage to P’s case with regards to critical dispute of fact; and (iv) no good reason forwarded by D that they will be prejudiced by the use of VCF by Ji in giving his evidence.

42.I shall deal with each of the above four grounds relied on by P and explain why none of them in my view could justify the departure from the established principles laid down in Re Nobility School Ltd.

(i) & (ii) Whether Ji is a fugitive from justice and whether it is good enough for the Court to make a VCF order

43.In my view, (i) and (ii) above can be looked at together.

44.I do not think the evidence produced by Ji or P is anywhere close to show that (i) he is a fugitive from justice; and (ii) his purported fears of being arrested or prosecuted are justified.

45.First, the Announcement only referred to a “Ji XX” (紀某某). It makes no direct reference to Ji himself. Thus, the claim that he is the subject of a criminal investigation remains an unsubstantiated and self-inflicted claim.

46.Second, even if somehow Ji is able to show that the “Ji XX” (紀某某)　mentioned in the Announcement was referring to him, I do not see how under the principle of “One Country Two Systems” he would be arrested and sent back to the Mainland if he were to come to Hong Kong to give evidence. Similarly, his fear that he would be under political persecution by the Mainland authorities if he ever return to Hong Kong (as deposed to by him in §11 of Ji Aff) is also unfounded. There is simply no cogent and credible evidence to support such wild and uncorroborated claim.

47.Third, even if somehow P is able to show that Ji is a fugitive from justice (which I find he is not), his situation can clearly be distinguished from Polanski in that the applicant in that case was fighting for his own civil right (ie his own reputation in a defamation case). Similarly, in Sun Legend, Daimler and Mallorca, the applicants are also claiming their civil rights in those applications. Ji on the other hand has disavowed to have any interest in the outcome of P’s claim. Thus, in my view, the public interest in protecting “fugitive from justice” as in Polanski does not even arise in this case.

(iii) The disadvantage to P’s case in the absence of Ji in giving evidence

48.While it is an indisputable fact that Ji’s evidence is critical to P’s case, in my judgment, it only has itself to blame for not securing Ji to come to Court to give evidence at the trial.

49.This case was set down for trial over a year ago according to the Order of Master Kot dated 19 March 2024. Ji himself has left Hong Kong since December 2021 and has specifically mentioned that he has no intention to return to Hong Kong. Given the fact that Madam Cui Lijie who had effective control of P[1] is the mother of Ji, I cannot imagine that Ji would not know about the need for him to testify at the trial since the early days of these proceedings. It is therefore simply incredible for Chi of P to say that he had only looked for Ji to ask him to give evidence at the trial recently in view of the imminent PTR and trial dates.

50.Since Ji is a witness called by P to give evidence on its behalf, it is up to it to secure his attendance in Court to give evidence. Any disadvantage is therefore in my view self-induced and would draw no sympathy from the Court.

51.In this respect, I echo with the comments made by Stone J in Asia-Pac Infrastructure Development Ltd v Ing Yim Leung Alexander [2011] 1 HKLRD 587 at §54:

“54. This latter part of the judgment of the Court of Appeal clearly was obiter but, with respect, I entirely agree with the sentiments therein expressed by Rogers VP to the effect that a Hong Kong court should not go out of its way to accommodate parties and/or witnesses who decline to come to the territory in the normal way to give evidence at trial simply because such person is apprehensive about his presence invoking the interest of the forces of law, the escape from which may have provided one of the reasons for that person leaving Hong Kong in the first place.” (emphasis added)

(iv) No prejudice caused to D by the use of VCF by Ji in giving his evidence

52.I do not agree with P’s submission that D will not be prejudiced by the use of VCF by Ji in giving his evidence.

53.The prejudice to D in my view is obvious as has been succinctly put by DHCJ H. Au-Yeung (as he then was) in Esports Business Development Ltd at §§24-26:-

“24. As it has been pointed out in a number of authorities, justice must be seen to be done, and the other side would have a justified sense of grievance if an important witness like Victor Chan would be allowed to give evidence by VCF, thereby having a perceived advantage over Wong.

25. In this regard, I echo Anthony Chan J’s view expressed in Re Nobility School Limited(supra) that “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”. 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.” (emphasis added)

CONCLUSION

54.In the aforestated premises, I would dismiss the VCF Summons and order P to pay the costs of the application with certificate for one counsel, such costs to be taxed if not agreed.

Mr Ronald Pang, instructed by KCL & Partners, for the plaintiff

Mr Valentine Yim and Mr Roger So, instructed by Hau, Lau, Li &Yeung, for the defendant