RAJ KUMAR MAHAJAN v. HCL TECHNOLOGIES (HONG KONG LTD) AND OTHERS

HCMP 1895 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1895 OF 2010

(ON AN INTENDED APPEAL FROM HCA 1510 OF 2004 AND

HCA 954 OF 2005)

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HCA 1510/2004

BETWEEN

HCA 954/2005

BETWEEN

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D E C I S I O N

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Hon Rogers VP:

1.  This is a application for leave to appeal from a decision of Deputy High Court Judge L Chan given on 15 September this year. On that occasion the judge was dealing with two applications relating to a case which is due to be heard on the 18^th of this month.

2.  The first application was for an application by the defendants for security for costs against the plaintiff.  That was refused.  The second application was an application that two witnesses including the third defendant should give evidence by video link.  The judge considered the evidence which had been put before him rightfully and refused that.

3.  The judge is the trial judge.  The dates had been fixed as long ago as January of this year and yet it was not until August this year that any application was made for a hearing of the evidence by video link.  Indeed, as I understand it, that had never been raised before when the matter came before a court on pre-trial reviews and so forth.

4.  The basis upon which the application is made is that the third defendant is a very busy person; he is a very successful business man.  There is no doubt about that.  He has also set up philanthropic trusts.  He says he needs to be in India for a number of reasons.  First, that he has board meetings which he needs to attend.  Secondly, he has meetings of his trust, which he wants to attend, and, thirdly, he says he has a medical condition.  All those matters were considered by the judge.  The judge was not satisfied in respect of any of them and, in my view, he was correct about that.

5.  The judge then referred to a decision of this court which was given by myself, namely Re Chow Kam Fai, David [2004] 2 HKC645 at 652 and he cited paragraphs 16 to 19 thereof and for convenience I shall repeat them.

“The next question addressed by the judge was as to whether the cross-examination could be conducted whilst the respondent was in Macau using VCF. The judge approached this question on the basis that the giving of evidence by VCF was an exception rather than the rule and that it would be a matter of privilege accorded to the respondent and not a matter of right for him to be allowed to do so.”

17:

“In my view the judge was quite correct in this approach. The starting point must be that proceedings are conducted in court. Mr Kat, who appeared on behalf of the respondent, took issue with the approach of the judge where it was said in paragraph 28 of the judgment that: ‘On the other hand, witnesses are obliged by law, the solemnity of the court atmosphere and the threat of immediate sanction to give evidence on oath or under affirmation and to tell the truth.’ ”

18:

“Whether or not the threat of immediate sanction is something that weighs heavily on witnesses is, perhaps, a matter of conjecture. Nevertheless I have no doubt that the atmosphere of a court is highly important as regards the taking of evidence. The solemnity of court proceedings and its atmosphere is something which, I have no doubt, plays an important role in the way justice is administered.”

19:

“There is no doubt that VCF is a highly useful tool. It must be a question of judgment in each case as to whether VCF should be used for the taking of evidence. No doubt on those occasions when the witnesses giving evidence that is technical or purely factual without important issues as to credibility, a court may be more disposed to allow evidence to be given by the use of VCF. Questions of cost and convenience are, no doubt, also important considerations that the court will have to weigh in deciding whether to allow evidence to be given using a VCF. But first and foremost, it seems to me, that the judge was correct in his approach that a party wishing to give evidence using VCF should establish a sound reason why that privilege should be accorded. The judge concluded in paragraph 57 of his judgment, ‘It is thus clear that giving evidence via video link is an exception rather than the rule. It is for the party wishing to use video link to justify why he should be accorded with this exceptional treatment.’ ”

6.  It has been argued in this court that the House of Lords, in the case of Polanski v Conde Nast Publications Limited [2005] 1 WLR 637 has dispelled what I had to say.  Different judges may take different views, but I adhere to every word which I said in my earlier judgment.

7.  As far as I am concerned the solemnity of the court is most important.  In Hong Kong it is important that the members of the court, both the judges and counsel appearing, are properly attired.  It is important that the court proceedings are carried on in court in the way that we do.  It does give a solemnity to the occasion. One only has to observe parties and witnesses coming to court to observe their demeanour.  It does have an impact.  Giving evidence via a television link, in my view, dispels part of that.  The place for a judge to sit, for witnesses to give evidence and for submissions to be made, is in court.

8.  This so-called VCF system, which Hong Kong does have, and, indeed, the Technology Court is frequently used for it, is a very useful tool but, as I said previously, it is a tool which should be used with some care.  If a witness is not giving evidence that is likely to be attacked on the basis of credibility, it may be important.  If, for example, one has technical evidence, perhaps from a well known and busy physician or surgeon in a foreign country, who has many other patients under his care and many other considerations and is giving highly technical evidence, it may well be important and useful to have his evidence by video link because otherwise one may not have it at all.  But these are very different circumstances.

9.  I regret to note that in the case of Sun Legend Investment Limited v Ho Wah Yuk [2008] 4 HKLRD the learned judge there used words to the effect that my observations in the Chow case had been “clearly reversed by the House of Lords”.  I wish to dispel any misconception.  First of all, what I said was not a proposition of law, it was a statement as to one of the considerations which a court must have regard to when deciding whether to use VCF technology and, secondly, as far as I am concerned, what I said was not reversed.

10.  As far as the present case is concerned, Mr Burns SC, who had appeared on behalf of the first to third defendants, has indicated that the judge was wrong because he did not take into account matters of convenience.  In my view the judge very clearly did take into account convenience.

11.  But first and foremost, the decision which the judge gave was a case management decision and it is important to bear in mind that case management decisions, particularly those made when a trial is imminent by a trial judge, should be treated with a great deal of care and respect by the Court of Appeal.

12.  The whole purpose of the civil justice reform was to enable the trials before judges to be put into the hands of judges who were there to control the case.  The decision by the judge as to whether VCF was appropriate in the case, is one which is made with all matters having to be taken into consideration and, in particular, the evidence which is likely to be given and cross-examined.

13.  It is not for this court to tell a judge how to run the case before he hears it, otherwise this court might just as well hear the case itself.  This court must, as far as possible, leave it to the trial judge to run the case as he sees fit.  If he makes a mistake then it will have to be dealt with on appeal after the case has been heard.

14.  For those reasons I do not consider it would be in any way appropriate for this court to give leave to appeal in the present case.

15.  I only wish to make one further observation which has nothing to do with this case but it has something to do with the Sun Legend case.  That is the question as to whether it is right to take into account the question of whether the fact that the proposed witness is a fugitive from justice may be a good and sufficient reason for making a VCF order.  The decision appears to have been based on the Polanski case.  That was a case with its own very peculiar facts and, indeed, as recently as August of this year, those facts have emerged far more clearly.  It is not necessary for me to go into it but it would appear that it is far from clear that the litigant in that case was indeed a fugitive from justice.  He has strong grounds for saying that he was a fugitive from injustice.

16.  But one thing is clear: that it is part of the function of this court not only to give judgments but to make sure that they are enforced and, if one has a person who has been in Hong Kong, let alone a professional in Hong Kong, against whom judgments have been given by the Hong Kong courts, it is part of the function of the Hong Kong courts to see that that judgment is observed.  It is not part of the function of the Hong Kong courts to allow such a person not to come back to the jurisdiction because he is afraid of what his creditors might do in respect of a judgment which the Hong Kong court has given.  As far as I am concerned, in respect of the Sun Legend case the question of the person concerned being a fugitive from justice would be a factor which would militate against making a VCF order.

17.  I would therefore refuse this application for leave to appeal.

Hon Bharwaney J:

18.  I agree with the decision of the Vice-President.