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.
Taishin International Bank Co Ltd v. QFI Ltd [2020] HKCFI 938
This second judgment was given shortly after the first judgment, on 25 May 2020, by Deputy High Court Judge MK Liu. The application was made in respect of a witness residing in Shanghai.
Likewise, the court found that the inconvenience which the witness would have to face in coming to Hong Kong to give evidence, i.e., undergoing quarantine for 28 days, was not a sufficient factor justifying the use of VCF. However, the court allowed the application, noting that health should be the paramount concern of everyone and that the court had to, insofar as practicable, make arrangements to ensure the safety of everyone participating in the trial. The court was also satisfied that it would not be difficult for the other party to instruct a Mainland lawyer to observe the giving of evidence via VCF. The court also gave permission for the witness of the opposing party to give evidence via VCF if he so wished.
Au Yeung Pui Chun v. Cheng Wing Sang [2020] HKCFI 1940
The last of the three judgments was very recently issued by the Hon. Godfrey Lam J, on 10 August 2020, i.e., amidst the ‘third wave’ of infections in Hong Kong. The application was made by the defendant to allow him and his wife to give evidence via VCF.
The two witnesses in this case resided in Switzerland, which was noted by the court to have had a total of 35,022 confirmed COVID-19 cases and 1,704 deaths (as at the end of July 2020). The two witnesses were aged 68 and 56, respectively and had expressed concern about the health risks to themselves as well as the risks to their family and other court users if they were to travel to Hong Kong to attend the trial.
In allowing the application, the court echoed the decision in Taishin International Bank Co Ltd in recognising that there were grounds for real concern for a person who was being asked to travel a very long distance, including taking a flight, to attend trial in an unfamiliar place in the midst of a coronavirus outbreak, particularly if that person was in the age bracket of the two witnesses concerned.
Key takeaways
We set out below several key takeaways from the above three judgments.
VCF remains an exception: It was noted by the court that giving evidence through VCF remains an exception to the general rule that evidence should be given in the solemn setting of the court. The use of VCF will only be permitted if the court considers it to be fair to both parties after taking into account all material considerations. The burden is on the applicant to demonstrate that VCF is required.
Health concerns may amount to sufficient grounds for VCF depending on the specific circumstances of the case: Certain health-related factors have been identified in the above judgments as justifying the use of VCF. As stated in Taishin International Bank Co Ltd, the safety of everyone participating in the trial is of paramount concern to the court. Transmission risk in air travel is a legitimate reason for using VCF. The situation of the pandemic in Hong Kong, the place of residence of the witness, the vulnerability of the witness to the disease and the duration of travel will also be taken into account. In Au Yeung Pui Chun, the two witnesses residing in Switzerland were allowed to give evidence through VCF given their age, their health concerns and the long distance of travel required.
Inconvenience is not a valid ground for VCF: In contrast, the mere inconvenience that may be suffered by an overseas witness in having to undergo compulsory quarantine upon entering Hong Kong or returning back to their place of residence will unlikely be regarded by the court as a sufficient factor justifying VCF. As the court in Tsang Woon Ming held: “Putting their business interest first is not a good or sound reason for this application.”
Neutral venue should be used and attended by an observer of the other party: The court would likely only allow VCF to be used if the witness is able to give evidence in a neutral venue which is attended by an observer from the other party. This is to ensure that there will be no foul play through marked trial bundles and prompting of the witness. A neutral venue is a place that is not connected to the witness, the party calling that witness or that party’s solicitors. The observer will usually be a local lawyer instructed by the other party.
Delay may lead to an application being rejected: In all of the above three cases, the court was critical of the lateness in submitting the applications, especially given that the trial date had been set down a long time ago. While the court may not necessarily refuse the application solely on the ground that it would cause delay, the lack of time for the parties to agree on a neutral venue for giving evidence remotely and for the other party to arrange an observer are factors which could lead to the court’s refusal of the application.
Conclusion
Given the health concerns and travel restrictions arising from the COVID-19 pandemic, it is envisaged that a growing number of applications for permission for overseas witnesses to give evidence at trial through VCF will be made. Not only must applications be supported by valid grounds as opposed to mere inconvenience, but they should also be made as early as possible to avoid any delay which may lead to their refusal.
Client Alert 2020-495
