The Hong Kong High Court (the “Court”) allowed an urgent application by the defendant for him and his wife to give evidence in trial by videoconference (“VCF”) (the “Application”) in the recent case of Au Yeung Pui Chun v Cheng Wing Sang [2020] HKCFI 2101 (handed down on 10 August 2020). The Application was brought as a result of the defendant’s concerns over the risks to his own and his wife’s health, as well as the risks to the health of their family and other court users that might be brought by travelling to Hong Kong amid the COVID-19 pandemic. The Court clarified that giving evidence otherwise than in person and in court is an exception and certainly not the norm. However, the health and safety concerns raised by the defendant tipped the balance in favour of the defendant.

Background

The underlying dispute in these proceedings relates to the ownership of a residential property in Hong Kong. The dispute is between the plaintiff and her son, the defendant. The decision in this case followed an earlier decision in the same proceedings in which the Court refused an application by the defendant to defer trial and vacate the trial dates. In that earlier decision, the defendant argued that he and his wife, who both reside in Switzerland, would not be able to come to Hong Kong to give evidence because of public health concerns and that VCF would not be possible. The Court, in part, refused the application after considering that the option of using VCF had not been properly explored.

This Application was brought amidst what is referred to as the “third wave” of COVID-19 infections in Hong Kong and during a time where, following the easing of lockdown measures, the number of daily infections in Switzerland was also unpredictable. The Application was made due to the defendant’s concerns over the risks to his own and his wife’s health (their age being 68 and 56 respectively), as well as the risks to the health of their family and other court users that might be brought by travelling to Hong Kong amid the COVID-19 pandemic.

The plaintiff argued that effective cross-examination of the defence witnesses would be compromised if it were to take place by VCF, that the plaintiff would not be able to send an observer to Switzerland to oversee the VCF (as sending a person over from Hong Kong would necessitate quarantine measures) and that there was not enough time to engage Swiss lawyers.

Decision

In allowing the application, the Court recognised that “there are grounds for real concern for a person who is being asked to travel a very long distance including taking a flight to attend trial in an unfamiliar place at this time in the midst of the coronavirus outbreak, particularly if that person is in the age bracket of the defence witnesses”. The Court made reference to another recent Hong Kong decision, Taishin International Bank Co, Ltd v QFI Ltd [2020] HKCFI 938, in which the court emphasised health and safety to be a priority and allowed witness evidence by VCF.

The Court also specifically expressed its expectation for the parties to cooperate in ensuring that the parts of the trial to be conducted remotely would be well prepared and tested in order to ensure the smooth running and reliability of the process.

Comment

It is evident from recent case law on this issue that, despite COVID-19, courts are not prepared simply to allow witness evidence by VCF due to inconvenience where, for example, the parties are unwilling to have their business commitments interfered with during the periods of quarantine (Tsang Woon Ming v Lai Ka Lim [2020] HKCFI 891). This is because, generally, the starting point is that evidence is to be given in person in court, and that the solemnity of court proceedings and the atmosphere of the court are an important context contributing to the administration of justice.

The court has, however, shown that it is willing to consider parties’ position where either health and safety is a concern (for example, in this case and in Taishin) or where they are unable to travel as a result of legal restrictions (Tsang Woon Ming). Notably, the court has been unequivocal in its view that the health and safety of its users is paramount.

The Court has been faced with a number of novel challenges in light of the unprecedented COVID-19 pandemic. This case serves as a reminder that the Court is willing to adopt flexible approaches in order to facilitate the effective administration of justice, so long as it would be reasonable and practicable to do so.

Those making applications for conducting parts of trials remotely, however, are reminded that bringing the application in a timely manner is important to avoid criticism from the Court. This has been a point made explicitly by the Court on multiple occasions now and is likely to lead to mounting frustration if it continues to go unheeded.

Gareth Thomas
Gareth Thomas
Partner, Head of Commercial Litigation, Hong Kong
+852 2101 4025
Dominic Geiser
Dominic Geiser
Partner, Hong Kong
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Jojo Fan
Jojo Fan
Partner, Hong Kong
+852 2101 4254
Priya Aswani
Priya Aswani
Professional Support Lawyer
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