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

HCA 1510/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1510 OF 2004

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BETWEEN

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HCA 954/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 954 OF 2005

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BETWEEN

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D E C I S I O N

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1.  This is an application by the defendants for leave to appeal against my dismissal of their application for the evidence of the 3rd defendant to be taken via video conferencing facilities or video link from India or elsewhere in the world. My dismissal was made on 15 September 2010 and the application for leave to appeal was intimated late yesterday afternoon and formally filed this morning. I grant extension of time for the application to be made.

2.  Section 14AA of the High Court Ordinance, Cap.4, provides that I should not grant leave unless there is a reasonable prospect of success of the appeal or there is some other reason in the interests of justice why the appeal should be heard.  I am satisfied that the second limb is not applicable and my task is to assess whether the appeal has a reasonable prospect of success.

3.  The application by the defendants was based on two grounds, namely the 3rd defendant could not come here to attend the trial because he had to attend several meetings of his various companies during the trial days and the law of India requires his physical presence at those meetings, and secondly, his health is not in a condition which would allow him to come here to give evidence in a court of Hong Kong.

4.  In my decision, I disagreed with the view of the law of India as proffered by a solicitor of the defendants, because the article she referred to and relied on did not have the name of the publication, name of the publisher and the date of publication.  The article itself referred to some liberalising measures proposed by the Indian Government in April 2002. However, the article was silent on what happened to those proposals.  There was no indication whether they had been adopted or rejected or some modified versions were adopted.  This application was dealt with in September 2010 and the article does not therefore appear to be up to date.  I therefore did not rely on it.

5.  There was also the evidence produced by the plaintiff showing that the annual reports of some of the companies run by the 3rd defendant indeed showed that meetings had been conducted when not all directors were physically present and there were some directors including the 3rd defendant taking part in the meetings via video conferencing or teleconferencing facilities.

6.  There was also no evidence showing what effort had been made to avoid the conflict of the days of the meetings with the trial dates when the trial dates were fixed some 9 months ago.

7.  On these three grounds, I was not satisfied that the meetings were a sufficient reason for the 3rd defendant not to come to this court to give evidence but to give evidence via conferencing facilities.  I did say that the defendant should come here to take part in the trial and, if need be, he could attend those meetings via video conferencing facilities.

8.  The other ground relied on by the defendants is that the 3rd defendant's health is not good enough for him to come here.  There are two medical reports, one short and one long, produced in support of that proposition.  One medical condition was a heart problem which the 3rd defendant has had since 1993.  I was not satisfied that that was a problem which would make it problematic for him to travel to this court from India because this was a long-standing problem and he has had it since 1993.  He had been travelling around the world since then to monitor his business empire which has a presence in very many countries, employing tens of thousands of employees of over 70 nationalities.

9.  The next health condition was an operation of angioplasty, which was undertaken in May this year.  But again, that is not something that is problematic enough to afford him the special treatment of giving evidence via video link facilities.

10.  The third reason was that he was discovered to have a new illness of diabetes.  But again, it was an illness at the early stage only, and this is a prevalent illness and people suffering from it are travelling frequently.  I did not suppose it would be a problem for him to come here from Delhi, and I suppose he would be flying by first class if he should take the journey.  So I did not think that his medical condition was a problem of sufficient scale to warrant the privileged treatment of giving evidence via video link.

11.  I have perused the grounds of appeal and I do not think these grounds show that there is a reasonable prospect of success of the appeal. 

12.  There is no particular given on where I have erred in relation to my observation on the article on company law. 

13.  There is also a ground of appeal saying that the question of convenience is an important consideration.  However, I think mere convenience is not sufficient.  The 3rd defendant may feel that it is more convenient for him to stay at home to give evidence with or without any schedule of meetings because flying from India to Hong Kong is indeed a journey which would take 5 ½ hours, and if mere convenience is the guide, perhaps this flight would already make it more convenient for him to give evidence from home by video conferencing facilities.  So I do not think mere convenience would be enough.

14.  On his medical conditions, again, I do not think the grounds of appeal has disclosed any reason to show that the appeal has a reasonable prospect of success.

15.  For these reasons, I dismiss this application with costs, and I order that these costs be summarily assessed on the same occasion as for the costs already ordered in the application itself.  I further certify this matter fit for one counsel.