Video testimony and “doctors' notes”

A number of recent court decisions have considered applications for witness testimony to be given by video link ("video") at civil trials. The basis for these applications has been that the witnesses are residing overseas and suffer from a medical condition, such that travelling to Hong Kong would be detrimental to their health.

The applications have met with mixed results. While fact specific, a number of observations can be made.

First, such applications should be made in a timely manner. While a matter for a principled based case management discretion, unexplained lateness in making an application can be fatal (Luan Gang v Simpson Marine Ltd [2013] HKEC 1383; re James Ting [2013] HKEC 1514, applying High Court Practice Direction 5.2, paragraph 34).

Second, a witness's ill-health and old age can be a good reason to permit the use of video to give testimony at trial. However, a court is likely to consider carefully the medical report(s) in support. Incontrovertible evidence that travel would be hazardous or life-threatening to a witness is likely to be decisive. Conversely, rather vague assertions that travel might be prejudicial to a witness's health are unlikely to be persuasive (Daimler AG v Leiduck (No.2) [2013] 2 HKLRD 822; re James Ting).

Third, medical evidence should be in the nature of an expert report. Therefore, medical reports should accord with The Rules of the High Court Order 38, Rules 37A-C (“RHC O.38, rr.37A-C”) and O.41A; namely, contain an expert's declaration and statement of truth (re Luan Gang).

While there has been some judicial comment that cross-examination of a witness by video can flow as naturally as evidence given in a court room, the Hong Kong courts have (to date) been guarded about allowing crucial witness testimony to be given by video at a civil trial.

One might also surmise that the outcome of the House of Lords' judgment in Polanski v Condé Nast Publications Ltd [2005] 1 All ER 945 (a majority decision allowing an alleged fugitive to give evidence by video at the trial of his claim for defamation in a jurisdiction of his own choosing) would be different if decided today or in the local circumstances of Hong Kong (see Chow Kam Fai, ex p Rambas Marketing Co. LLC [2004] 2 HKLRD 260).

For readers wanting more, a good starting point is the headnote to the reported judgment in Daimler AG and the commentary to O.38, r.3 of the "White Book".

- Warren Ganesh, Senior Consultant, Smyth & Co in association with RPC

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