The Hong Kong High Court (the “Court”) dismissed an application by the Plaintiff for its main witness (the “Witness”), a Hong Kong businessman living in Singapore, to give evidence in trial by videoconference (“VCF”) (the “Application”) in the recent case of Wah Lun International Development Ltd v Lau Chiu Shing [2020] HKCFI 2572.

 Background

The underlying dispute in these proceedings relates to the purchase of a majority shareholding in a listed company. The plaintiff sought a refund of “earnest money” from the defendant, while the defendant argued that the “earnest money” had become forfeitable deposit after the parties entered into a binding sale and purchase agreement (the “S&P Agreement“). The issue of whether the S&P Agreement was indeed reached orally during a “personal meeting” in 2015 between the Witness and the defendant was critical to the defence.

The Witness has been living in Singapore and avoiding travel due to the COVID-19 pandemic. The Application was made as the Witness was concerned about his health and the disruption that would likely be brought to his work and family life due to the compulsory quarantine arrangements should he have to travel to Hong Kong to give live evidence. The plaintiff further argued that the unpredictability of the COVID‑19 pandemic and the alleged lack of prejudice to the defendant supported the Application.

The defendant objected to the Application for the following reasons: (i) the Witness was a crucial factual witness; (ii) the plaintiff’s grounds were neither valid nor conclusive reasons for granting a VCF application; and (iii) the absence of details provided in relation to the proposed VCF venue.

Decision

In refusing to allow the witness to testify by VCF, the Court referred to another recent Hong Kong decision, Tsang Woon Ming v Lai Ka Lim [2020] HKCFI 891, and held that the defendant would have a justified sense of grievance if the Witness, as a particularly important witness, were to be permitted to give evidence by VCF. The Court also held that the Witness was only relying on ‘general inconvenience’ regarding quarantine arrangements and did not put forward any specific problems affecting him. Regarding the health risk, the Court held that though this was a legitimate concern, the flight between Hong Kong and Singapore was not a long one and appropriate precautions may be taken on board to minimise risk. Interestingly, the judge also held, in relation to the unpredictability of the pandemic, that the prevailing health situation is easing and judicial proceedings are resuming normal order.

Comments

While it is encouraging to see the courts in Hong Kong consider the use of VCF for witness testimony, it is ultimately a matter of case management and will be considered on the specific facts of each case. In light of Tsang Woon Ming v Lai Ka Lim [2020] HKCFI 891 and Au Yeung Pui Chun v Cheng Wing Sang [2020] HKCFI 2101, in which the court allowed the defendant and his wife, both Swiss residents, to testify by VCF (see our previous blog post), the location, age and specific health issues of the witnesses seem to be important factors for the determination of VCF applications in the context of COVID-19. The anticipated launch of the travel bubble arrangement between Hong Kong and Singapore in November 2020 may well make some of these Hong Kong-Singapore related VCF applications irrelevant soon.

 

Gareth Thomas

Gareth Thomas
Partner, Head of Commercial Litigation, Hong Kong
+852 2101 4025

Dominic Geiser

Dominic Geiser
Partner, Hong Kong
+852 2101 4629

Jojo Fan

Jojo Fan
Partner, Hong Kong
+852 2101 4254

Priya Aswani

Priya Aswani
Professional Support Lawyer
+65 6868 8077


Disclaimer

Herbert Smith Freehills LLP is licensed to operate as a foreign law practice in Singapore. Where advice on Singapore law is required, we will refer the matter to and work with licensed Singapore law practices where necessary.