Reed Smith Client Alerts

The COVID-19 pandemic is often said to have led to a ‘new normal’. Use of video-conferencing facilities (VCF) in substitution for physical meetings has become commonplace. However, when it comes to solemn court proceedings where evidence is customarily given in court, the court may not find it appropriate to allow witnesses (in particular, overseas witnesses) to give evidence remotely by way of VCF and, more often than not, such applications will be strongly opposed by the other party. That said, three recent judgments handed down by the Hong Kong Court of First Instance would appear to suggest that the court may be prepared to allow witnesses to give evidence via VCF without having to go through long-haul flights or mandatory quarantine requirements. In this article, we examine these three recent court judgments in: Tsang Woon Ming v. Lai Ka Lim [2020] HKCFI 891, Taishin International Bank Co Ltd v. QFI Ltd [2020] HKCFI 938 and Au Yeung Pui Chun v. Cheng Wing Sang [2020] HKCFI 1940.

Authors: Lianjun Li Min Li Donald Sham Thomas Leung

Summary of facts

We first introduce below the facts of each case.

Tsang Woon Ming v. Lai Ka Lim [2020] HKCFI 891

This is the first of the three judgments examined in this article, which was handed down by the Hon. Anthony Chan J on 20 May 2020. 

In this case, applications were made for three witnesses, who resided in, respectively, Taiwan, Macau and Shenzhen, to give evidence by way of VCF.

In the case of the first two witnesses, the basis of the application was that their attendance at the trial would require two 14-day periods of quarantine, totalling 28 days. Their applications were refused, as the court found that the real reason for the applications was their unwillingness to allow any interference to their business commitments during the periods of quarantine, which was not a sufficiently good reason.

The third witness, who resided in the Mainland, stated that she was subject to travel restrictions and unable to obtain a visa to come to Hong Kong. Her application was granted, as her inability to come to Hong Kong was a sound reason in support of the application. The court also recognised that it would be feasible for the other party to instruct a Mainland lawyer to observe the remote evidence to be given by the witness.