YEUNG, ABRAHAM v. SUN KING KAI

HCA 413/2015

[2021] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 413 OF 2015

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REASONS FOR DECISION

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1.  This case will come on trial on 27 September 2021 before this court, which is estimated to last for 10 days. The defendant (by original action) and the plaintiff (by counterclaim) (“Sun”) applied for leave to give oral evidence during the trial remotely from New York, USA, via video-conferencing facilities (“VCF”) of the Technology Court. The plaintiff (by original action) and defendant (by counterclaim) (“Yeung”) opposed the application. At the end of the hearing, I allowed the application. As indicated at the end of the hearing, I now give my reasons in writing.

2.  This is a case of adverse possession of properties, namely two adjacent flats in Kowloon.  The properties were registered in the name of Kong Tuen (or Duen) Yee (“Kong”), otherwise known as 梅婍, a well-known actress in Hong Kong who passed away in 1966.  Sun is the executrix of Kong’s will.

3.  Yeung claims for declaration of possessory title allegedly acquired through adverse possession over the properties.  Sun denies the claim, and counter-claims for declaration that the properties are held by Sun on charitable trust for the advancement of Christianity, and any person within the class of beneficiaries under the trust or otherwise is granted the licence or permission to enter upon or to use the properties, and that no one shall do or attempt to do or take part or aid or abet in doing anything that may or may threaten to deny the trust or frustrate or obstruct the purpose of the trust.  She claims for possession of the properties,damages for trespass and injunctions.  Because of the alleged charity element, the Secretary for Justice was joined as a party.

4.  The present application is necessitated substantially by the current COVID-19 pandemic, which needs no introduction. Relevantly, variants of the virus were recently confirmed spreading in parts of USA, which adds to the impact on international travel restriction and quarantine policy.  Sun is ordinarily resident in New York.  She is 88 years old.  The concern about her fitness or, even if she is not strictly unfit to do so, the desirability of requiring Sun to travel long haul from New York to Hong Kong to attend the trial should not really be surprising.

5.  Mr Cheung appearing for Sun accepted that it would be for her to show good grounds for her application: see Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822 (CA)at §11.

6.  Where only witnesses giving evidence remotely via VCF is involved, Practice Direction (PD) 29 on the use of the Technology Court applies.  The PD provides (at §5) that in making its decision, the court will take into account the views of all the parties, the availability of the Technology Court, the subject-matter of the proceedings or the relevant part of the proceedings and all other material circumstances, including in particular, whether the proposed use of the Technology Court is likely:-

(1)  to promote the fair and efficient disposal of the proceedings;

(2)  to save costs; and/or

(3)  to materially delay the disposal of the proceedings.

7.  Each case, and what course to take, is considered in the light of its own circumstances: see Daimler AG at §§18; 28.  The court is entitled to consider a broad range of factors, and there is no defined limit or set of circumstances for consideration of the exercise of the discretion to permit live evidence via VCF: see Skyrun Light Industry (Hong Kong) Company Ltd v Swift Resources Limited & Others HCA 1278/2014 (19 June 2017) at §§62-64.  Examples include where there are grounds for real concern for a person who is being asked to travel a very long distance including taking a flight to attend trial at this time in the midst of the COVID-19 pandemic, particularly if that person is of advanced age: see Au Yeung Pui Chun v Cheng Wing Sang [2020] HKCFI 2101 at §5.  Not unrelated, there may be valid concern about the physical condition of the witness having to take the risk of air travel in these circumstances: see Taishin International Bank Co Ltd v QFI Ltd [2020] HKCFI 938at §8.

8.  In the circumstances of this case, the present application should be granted.

9.  First, Sun’s readiness to testify should not be doubted.  Mention was made on her behalf in respect of the concern about being able to board a plane for Hong Kong because of the restrictions on entry imposed by the Hong Kong government, which requires requisite proof as a Hong Kong resident.  However, it was made clear during the hearing that this was not intended to be a major prohibiting factor.

10.  Second, and even assuming that the first concern mentioned above is put aside, the concern about the risk that the health of Sun at her age would have to be exposed to, as a result of having to undertake the long haul from New York to Hong Kong, plus the following mandatory quarantine upon arrival should be obvious.  In this respect, there is medical evidence in respect of her other existing physical weaknesses or problems.

11.  Third, the reference by Yeung to prejudice in the form of inherent unfairness of the mode of allowing witness to give evidence via VCF is contradicted by the very fact that this mode of taking oral evidence at trial has been put in place well before the pandemic precisely to ensure fair and effective disposal of legal proceedings without delay.  The pandemic, and the times when the court had to close at one stage, has actually caused the Judiciary to expand in phases the utilisation of VCF for more extensive remote hearings with the same goal of avoiding delay in legal proceedings.  Directions could be given, as this court indeed gave at the end of hearing, to ensure the integrity of the proceedings involving oral evidence being given from a remote location.

12.  Fourth, Yeung’s reference to the prejudice in the form of his inability to handle the VCF technology is unfounded.  He will be physically present in court throughout the trial, and will not be required to handle technology.  It will be the responsibility of the representatives of Sun to ensure the technological arrangement is properly made and tested before the trial in accordance with the technical specifications of the Judiciary and directions of the court.

13.  Fifth, Yeung criticised the delay on the part of Sun in making this application.  The fact was that Sun, through her solicitors, has put the court on prior notice of such intended application, which, for case management consideration, managed to be confirmed to be fixed before this court as the trial judge only afterwards.  Logistically, by the time of the present hearing, solicitors for Sun have, pursuant to PD 29, been in liaison with the court, and have ascertained the availability of the Technology Court for the needed period of the trial.

14.  Last, Sun is a party and more importantly core witness of her case.  Denying her the opportunity to give evidence because of the situation discussed above will result in irreparable injustice.  Adjourning the trial because of the situation to a later and currently unknown date, notwithstanding the availability of the remote hearing technology, will be against the underlying objectives of fair and costs-effective administration of justice, particularly when the physical condition of Sun may only be expected to decline as time goes by.  This outweighs any perceived disadvantage to Yeung as a result of allowing his opponent to give real time evidence, albeit other than physically in front of him inside the courtroom.

15.  All the circumstances considered, I allowed the application and gave directions for the oral evidence of Sun to be given remotely from New York via VCF during the trial.  I also gave the incidental case management directions.

16.  I ordered the costs of the application to be in the cause, which neither side objected to.

[The hearing was conducted in punti, except that the order was given in English with the assistance of the court interpreter. If requested, interpreter’s assistance will be provided to Yeung when these written reasons are handed down.]