郭莉 v. 林 and Another

HCA 1049/2022

[2026] HKCFI 5381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1049 OF 2022

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BETWEEN

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DECISION

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THE APPLICATION

1.By summons filed on 11 September 2026 (“the Summons”), the defendant applied for leave to give evidence through video-conferencing facilities (“VCF”) at the trial in this action, which has been ordered to be tried together with another action HCMP 176/2026 (“the HCMP Action”) on 29 September 2026.

2.While the Summons bears the heading of both this action and the HCMP Action, it was only filed in this action but not in the HCMP Action. Practitioners are reminded that actions which are not consolidated but only ordered to be heard together remain separate actions. In other words, the Summons should have been filed in both actions.

GROUNDS OF APPLICATION

3.The Summons was supported by the 4^th Affirmation of Chan Hoi Wuen Katherine (solicitor acting for the defendant) to which a draft 6^th Affirmation of the defendant had been exhibited. As the said 6^th Affirmation is not long, I set out the relevant content thereof in full below:

“5. On 25 July 2026, I fainted at my residence while I was in Tokyo, Japan. I was thereafter taken to hospital by ambulance for medical attention. The hospital receipt that shows I was admitted to the emergency unit is shown on […]

6. In fact, I began experiencing health issues as early as 2025. I suffered recurrent dizziness, occasional loss of balance, and frequent episodes of nausea, which prompted me to consult doctors in an effort to identify the underlying cause. As I had not previously fainted, the incident was sudden and unexpected. Since then, I have been deeply concerned about my health condition.

7. Since March 2025, I have been consulting doctors and undergoing various medical examinations. These have included, among others, full-body MRI scans conducted on 19 March 2025 and 21 January 2026. The appointment letters for the MRI scans (together with English translations) are shown to me at […]

8. However, the doctors have not yet provided a diagnosis and continue to arrange further examinations in order to identify the underlying cause. Following the incident, I have received medical treatment and/or assessment and have been advised to undergo additional follow-up medical checks. My current condition remains under medical review. I was advised by my doctor to undergo a CT scan of my chest and lungs on 28 September 2026 […], the day before the scheduled hearing. I also have an MRI scan appointment on 22 January 2027 […] I respectfully draw this to the Court’s attention because my health condition remains very weak and unstable, and is subject to ongoing medical review and further investigations.

9. In light of the above, I am concerned that attending the trial in person would be physically difficult and may pose an unnecessary risk to my health.

10. I am, however, eager and able to give evidence by VCF and to comply with any directions given by the Court in that regard.

11. In order to minimise any possible prejudice to the Plaintiff, I am willing to give evidence by VCF at the office of a law firm in Tokyo to be appointed by the Plaintiff, or at such other neutral venue as the Court may direct, with appropriate supervision arrangements in place.

12. I am willing to comply with to comply with any directions the Court may consider appropriate in relation to the giving of evidence by VCF, including directions concerning the venue, supervision, documents, communications with others during my evidence, and the use of electronic devices.”

THE LEGAL PRINCIPLES

4.The applicable legal principles have been summarised by Anthony Chan J (as he then was) in Re Nobility School Limited [2020] HKCFI 891 at [9] 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).”

5.Since Re Nobility School Limited, the Courts (Remote Hearing) Ordinance (Cap. 654, Laws of Hong Kong) (“the Ordinance”) has come into effect.

6.Section 6(6) of the Ordinance stipulates that a remote hearing order may only be made if the court, after considering the factors under section 9, is satisfied that, in the circumstances of the case, it is in the interests of justice to make the order.

7.Section 9 of the Ordinance provides that:

“In deciding whether to make, affirm, vary or revoke a remote hearing order for a proceeding under section 6, 7 or 8, the court must consider the following factors (if applicable) –

(a) the nature, complexity and urgency of the proceeding;

(b) the nature of the evidence intended to be adduced;

(c) the views of the parties;

(d) the ability of the parties to engage with and follow the proceeding (if conducted through a remote medium);

(e) the personal or special circumstances of the parties, including any physical, visual or auditory impairment, cognitive difference and mental or psychological health issue;

(f) the maintenance of the rights of the parties;

(g) whether the parties are legally represented;

(h) whether the privileged communication between the parties and their respective legal representatives may be affected;

(i) whether the parties and the parties’ legal representatives can conduct their case effectively;

(j) the measures to be taken to ensure that evidence is given freely without coercion or other influence;

(k) the potential impact of the order on the assessment of the credibility of witnesses and the reliability of the evidence presented;

(l) whether the use of the remote medium is likely to promote fair and efficient disposal of the proceeding;

(m) whether the right to a fair trial can be effectively maintained;

(n) the quality and security of the remote hearing facilities and their availability to the parties;

(o) whether there is any public order, security, public health or emergency concern that makes it undesirable or impracticable for the parties to attend the proceeding in person;

(p) any other relevant considerations.”

8.In Anglo Chinese Corporate Finance, Limited v Daniel Kan Pui Kei & Others [2026] HKCFI 3708, Cheng J took the view at [8] that the provisions of the Ordinance do not contradict any of the principles set out in Re Nobility School Limited. With respect, I agree. At the end of the day, the issue is whether it is in the interests of justice that a remote hearing order should be made. This is of course a fact-sensitive question which has to be considered on a case-by-case basis.

DISCUSSION

9.Having considered the supporting affirmation, I hold the view that the defendant has failed to satisfy this Court that this is an appropriate case in which he should be allowed to give evidence by way of VCF, for the following reasons.

10.First, while the defendant relied on his medical condition as a supporting ground, it is noteworthy that there is no medical evidence to the effect that he is unfit to travel by air.

11.Second, while the defendant asserts that he is “concerned that attending the trial in person would be physically difficult and may pose an unnecessary risk to [his] health”, there is no objective evidence which shows that he is immobile. Neither is there medical evidence which supports his worry that coming to Hong Kong would pose risk to his health.

12.Third, as far as the CT scan of his chest and lungs is concerned, there is no evidence as to when the scheduled date of 28 September 2026 (the day before the trial) was fixed. If it was fixed after the medical incident on 25 July 2026, then he owes this Court an explanation as to why he would fix the date of 28 September 2026 when he must have known by then[1] that the trial has been scheduled to be held on the following day. In any event, there is no evidence that he would encounter any difficulty in rescheduling the CT scan to another date which is relatively close to the original scheduled date. In this regard, it should be borne in mind that the trial has only been fixed for 1 day, and therefore he does not need to stay in Hong Kong for long.

13.Fourth, the relatively weak ground should of course be balanced against the desirability of having a witness giving live evidence in the solemn setting of a court room. It has been pointed out by different Judges that the assessment of the veracity and reliability of a witness is better done without the potential disruptions caused by internet connection. In the present case, this factor is important because the evidence of the defendant would be seriously contested. While he has proposed that his evidence be given at the office of a law firm in Tokyo to be appointed by the plaintiff with appropriate supervision arrangements in place, in my view, that cannot completely solve the problems.

14.Fifth, the defendant submitted that many of the factors listed under section 9 of the Ordinance are satisfied. With respect, I do not think it is necessary to go through the factors one by one as such. This is because, as accepted by the defendant’s counsel, we should not adopt a “scoreboard” approach. in the present case, as aforesaid, since the credibility of the defendant is of utmost importance, the facilitation of a fair assessment of his credibility is of course one of the most weighty factors which the Court should take into account.

CONCLUSION

15.For the aforesaid reasons, I am of the view that the Court should not accede to the defendant’s application.

16.The Summons is therefore dismissed.

COSTS

17.Costs should follow the event. The plaintiff’s costs of the Summons is summarily assessed at $28,720, and shall be paid by the defendant by 2 October 2026.

18.For the avoidance of doubt, I make no order as to the costs of the intervener.

Ms Ingrid Yip, instructed by Wellington Legal LLP, for the plaintiff

Mr Edward K H Ng, instructed by Katherine Chan Law Office, for the defendant

Attendance of the intervener was excused