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: Tsang Woon Ming v. Lai Ka Lim  HKCFI 891, Taishin International Bank Co Ltd v. QFI Ltd  HKCFI 938 and Au Yeung Pui Chun v. Cheng Wing Sang  HKCFI 1940. We set out below several key takeaways from the decisions:
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, the long distance of travel required and the ‘third wave’ of infection happening in Hong Kong.
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. 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.
– Lianjun Li
– Min Li
– Donald Sham
– Thomas Leung
ReedSmith Richards Butler