GE YANHONG v. WANG CHUNYANG AND ANOTHER

HCA 839/2016

[2020] HKCFI 3166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 839 OF 2016

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JUDGMENT

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1.  There is before this court the Plaintiff’s summons filed on 21 December 2020 seeking leave to the Plaintiff to give evidence at the trial of this action by way of video conferencing facilities (“VCF”) at a venue in Mainland China. The trial is due to commence on 13 January 2021 ie about 2 weeks from now.

2.  The Defendants strongly oppose the application on a number of grounds.  Suffice it for this court to mention the following:

(1)     There was inordinate delay by the Plaintiff in making the present application.

(2)     The Defendants would be prejudiced if the application is allowed.  This is because (i) the Defendants’ firm would have to arrange one of their solicitors to observe the giving of evidence by the Plaintiff at virtually no notice; (ii) the preparation for trial at this very late stage would be seriously disrupted; (iii) it is highly unsatisfactory to allow the Plaintiff to testify by VCF given that factual evidence and credibility of witnesses would be hotly contested; and (iv) substantial extra costs would have to be incurred since the solicitor sent to the Mainland would have to go through quarantine in both Mainland and in Hong Kong.

3.  The Defendants further submit that the trial date would be derailed anyway because there is not enough time to arrange a lawyer from the Defendants’ solicitors firm to travel to the Mainland, go through the 14-day compulsory quarantine and observe the giving of evidence by the Plaintiff at a yet unknown venue on either the 1st or 2nd day of trial.  In this regard, it is to be noted that in his PTR skeleton submissions, Mr D’Souza submitted to this court that the Plaintiff’s Opening submissions would take only about 1.5 hrs.  Hence, even if Mr Chen gives evidence first, it is likely that the Plaintiff will have to testify towards the end of the 1st day or on the 2nd day of trial - otherwise, the Defendants’ case simply cannot begin and this court will have to sit idle.

4.  The principles pertaining to an application for giving evidence by VCF were recently summarised by A Chan J in Tsang Woon Ming v Lai Ka Lim & Ors [2020] HKCFI 891 at [9] as follows:

“(1)     The giving of evidence by video conferencing facilities (“VCF”) is an exception;

(2)     The starting point is that proceedings are conducted in court. I would add that this is more important when it comes to a trial;

(3)     Sound reason is required to justify a departure from the starting point;

(4)     The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence;

(5)     The Court may be more disposed to exercise its discretion to allow evidence by VCF in respect of technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence;

(6)     Where the credibility of the witness is seriously contested, it is important for the witness to be examined under the solemn atmosphere of the court;

(7)     Costs and convenience may be important considerations which the court will have to weigh in the determination of the application;

(8)     Ultimately, it is a matter of judgment of the court choosing the course best calculated to achieve a just result by taking into account all the material considerations, including whether the witness is capable of attending the proceedings, any prejudice to the other party, the Underling Objectives, any delay to the proceedings and practical considerations like the availability of the facilities (see Practice Direction 29).”

5.  What is important for the present purpose is that, post CJR, a late interlocutory application “may be dismissed on the basis of delay alone”: PD 5.2 at [34].

6.  In Li Xiao Yun v China Gas Holdings Limited unrep CACV 38/2013, 11 March 2013, the Court of Appeal dismissed an appeal against the trial judge’s refusal of a last minute pre-trial application (to add new defendants and amend the pleadings) on the ground of delay and that the trial date would very likely be derailed.  Lam JA (as he then was), giving the reasons of the Court (Lam JA, Bharwaney and McWalters JJ) stated at [18]:

“… Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such applications. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs.” (emphasis added)

7.  In Waddington Limited v Chan Chun Hoo Thomas unrep HCA 3291/2003, 7 May 2013, Lok DHCJ repeated the warning that late applications can be dismissed on the basis of delay alone in accordance with paragraph 34 of PD 5.2, and concluded at [51] and [53]:

“51. … Apart from the prejudice likely to be caused to the parties by such late applications including the possible adjournment of the trial, there is serious disruption to the court diary as the court has to struggle to find some time during the limited time before the trial to hear the applications ...

53. … Unless there are exceptional circumstances and there are good reasons for the delay, one should not expect the courts to grant any late applications taken out shortly before the PTR. …” (emphasis added)

8.  As far as delay is concerned, in the present case, the PTR was heard on 8 October this year.  The issue of the Plaintiff having to resort to VCF in order to testify at trial was not raised at the hearing.  Paragraph 11 of the PTR Order, which was made by consent, provides that all further interlocutory applications should be made within 14 days, thus giving the parties a last chance to put their house in order.  That last chance was not taken up by the Plaintiff.  The present application is not made shortly before PTR; it is made well after PTR and shortly before trial.

9.  The ground of the application was stated in the 1st and 2nd affirmations of Dai Chun Wa. Suffice it to say that the Plaintiff applied on 9 December this year to the Exit-Entry Administration of Guangdong Public Security Department for a longer permit than 7 days based on “other reasons”.  She was given a 14-day permit which is only able to cover the quarantine period imposed by the Hong Kong Government. In these circumstances, there is uncertainty as to whether she can enter Hong Kong at all or whether she will be given an extension of time to stay in Hong Kong once entered. 

10.  It is important to note that there is no explanation in the evidence why the Plaintiff left it so late to make the application to the Guangdong authorities.  It is well known that quarantine measures in Hong Kong have been in place for months.  There is no reason why the Plaintiff could not have anticipated them and made her application to the Guangdong authorities and/or Hong Kong Immigration Department much earlier. And if the Plaintiff had met with no luck with either authorities, she could have made the present application much earlier.

11.  In these circumstances, on the ground of delay alone, this court has no hesitation in dismissing the application.  For completeness, this court agrees with Mr Wong and find the Defendants’ complaint of prejudice is very real and well-founded.  For that reason also, the application should be dismissed.

12.  The next question is what course this court should take which is best calculated to achieve a just result for both parties.

13.  In this regard, this court has enquired of Mr D’Souza whether the Plaintiff would rather proceed with the trial without her testimony if she cannot come to Hong Kong or whether she would rather that the trial be adjourned to a date to be fixed. Mr D’Souza very sensibly confirms that it would be better for the trial to be adjourned, which is what the Defendants themselves propose. 

14.  This court hereby dismisses the Plaintiff’s application and adjourns the trial of the action to a date to be fixed, in consultation with counsel’s diary. This court will hear the parties on costs.