Daimler Ag (Formerly Mercedes-benz Aq) v. Leiduck, Herbert Heinz Horst and Another

HCA 4089/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4089 OF 1994

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D E C I S I O N

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1.This is an application for leave to appeal against my order given on 30 November with reasons given on 6 December refusing the defendants’ application for the 1st defendant to give evidence at the trial from Germany via video link.

2.This application is made under section 14AA(1) and (4) of the High Court Ordinance, Cap 4 and O 59 r 2B of the Rules of the High Court.  Section 14AA(4) provides:

“(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b)  There is some other reason in the interests of justice why the appeal should be heard.”

I understand that the application is brought under (a).

3.It has been explained in the case of SMSE v KL [2009] 4 HKLRD 125 at para 17 per Li Pichon, JA that “reasonable” means more than fanciful but without having to be probable.

4.I disagreed in my decision as a matter of fact that the 1st defendant would be unable to travel to Hong Kong on medical ground or that it would be life-threatening for him to do so.  On that finding, he should come to Hong Kong to give evidence before this court.

5.In this application for video link, the diagnosis is a matter for the doctors particularly when undisputed by the other side.  The opinions of the doctors are however for the court’s consideration and not binding on the court.  In this case, the court just did not accept the doctors’ opinions as applicable to first class air-travel or travel by medical escort.  The doctors’ opinions on the stress and risk of air-travel from Germany to Hong Kong is too general and not formed as a result of thorough consideration of what stress or risk that different types of air-travel may entail.  The court has summarised the matters in paras 14 and 28-32 of the decision as the reasons for not accepting the very general opinions of the doctors.

6.Furthermore, this is not a case of a fugitive who cannot enter the court’s jurisdiction for fear of the adverse consequence to his liberty that may follow his entry.

7.Since the court takes the view that the 1st defendant can come here and enjoy full access to the court and the system of justice, all arguments built upon respect for human rights are irrelevant.

8.Counsel for the defendants submitted that it was wrong for me to have compared the stress of cross-examination with the stress of air-travel.  Counsel said that the stress of cross-examination is different and irrelevant and the application for video link was made on to avoid extra life-threatening risk.  But this argument overlooks the basis of the defendants’ medical opinions.  Dr Langmack clearly said that the 1st defendant should not undertake air-travel because of the physical and mental stress associated therewith.  Hence, stress is relevant.

9.Efficiency and effectiveness of video link for giving evidence is of course not to be doubted, however, giving evidence in court before a judge is still the norm and is particularly important for the judge to assess the quality of the evidence where credibility is hotly disputed.

10.I think my refusal of the leave for the 1st defendant to give evidence by video link was made on the simple basis that I disagreed that the 1st defendant could not fly from Germany to Hong Kong in a luxurious form of air-travel to give evidence in this court at the trial.  I therefore exercised my discretion against the application in discharge of my case management duties. 

11.I do not think the defendants have a reasonable chance of success on the proposed appeal.  I therefore dismiss the appeal for leave with costs against them. 

Ms Sara Tong, instructed by Baker & McKenzie, for the plaintiff

Mr Clark Wang, instructed by Robertsons, for the 1st and 2nd defendants