SMART-TRANS LOGISTICS LTD v. ALIEU TUNKARA CORPORATION AND GENERAL SUPPLIES LTD

DCCJ 3920/2019

[2023] HKDC 265

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3920 OF 2019

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BETWEEN

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REASONS FOR DECISION

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THE APPLICATION

1.  This is the written decision of the Defendant’s ex-parte application for leave to allow its only witness, Mr Alieu Tunkara (“Tunkara”), to testify at trial via video-conferencing facilities (“VCF”). Such application was first mentioned briefly in the last paragraph of the Defendant’s Pre-trial Review Submissions lodged two days before the hearing. The matter was adjourned for further consideration upon filing of proper affirmation in support by the Defendant and the lodgement of written submissions in reply by the Plaintiff.

2.  Tunkara is currently residing in Istanbul, Turkey, receiving treatment for his health condition. In short, this application is based on medical ground and the details are set out in the affirmation of the solicitor acting for Defendant (Affirmation of Chaudhry Muhammad Kamran) enclosed with a true copy of a medical report in Turkish language dated 2 February 2023 from Private Medicana Kadikoy Hospital with a certified English translation marked as “CMK-3”. The gist of the medical report is as follows:

(a) The diagnosis of Tunkara:

(i) chronic bronchitis basic mucopurulent; and

(ii) chronic viral hepatitis B delta without agent;

(b) Follow-ups at the hospital once every 6 months for control from 1 February 2023 to 1 February 2024; &

(c) Travelling is restricted during the treatment period.

3.  Further information not found in the said medical report but stated in paragraphs 12 & 13 of the affirmation is summarised as follows:

(a) Tunkara is required to go to the hospital every week or every 2 weeks to receive treatment and to monitor his current health condition.

(b) When deemed necessary by the doctors, he must stay at the hospital for further observation.

(c) Given his health condition, the doctors advise that he should not travel.

(d) He travelled to Hong Kong in May 2022 to seek second opinion from Dr Lai Chi Wai, Alex.

(e) In recent months his health condition has deteriorated, and was advised against and restricted from travelling.

LEGAL PRINCIPLES

4.  The applicable legal principles have been summarised by Anthony Chan J in Re Nobility School Limited [2020] HKCFI 891 (unreported, 20 May 2020) 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 Underlying Objectives, any delay to the proceedings and practical considerations like the availability of the facilities (see Practice Direction 29).”

DISCUSSION

5.  First of all, the medical report does not mention any medical treatment or prescription given, nor any intended operation to be performed. The purpose of requiring Tunkara to return to the hospital once every 6 months is merely “for control”. It is doubtful whether Tunkara is on medication at the moment. The report seems to suggest that the diagnosed diseases suffered by Tunkara are not serious which requires no medication but medical check-ups at 6-month intervals.

6.  Secondly, the so-called “travel restriction” is by no means a legal restriction but rather a medical advice. Besides, the medical report seems to suggest that such medical advice against travelling only applies “during the treatment period.” As Tunkara has attended the subject hospital recently, the next “treatment period” should be 6 months later, ie sometime in August 2023. The trial of this action is scheduled for 29-31 March 2023 which would not affect Tunkara’s next medical appointment.

7.  Thirdly, it is alleged in the supporting affirmation that Tunkara is required to go to the hospital more frequently, every week or every 2 weeks to receive treatment and to monitor his current health condition. However, such allegation is not only lacking in the medical report but also unsupported by any objective evidence. Worse still, such bare assertion is blatantly contradictory to follow-ups at 6-month intervals as stated in the medical report. Therefore, I find such proliferated medical appointments unbelievable.

8.  Further, the alleged deteriorated health condition in recent months and the reiteration of medical advice against travelling due to the deteriorated health condition are also not found in the medical report and not supported by any objective evidence. If such assertions are true, it is reasonable to expect to see such contents being recorded in the report and a stronger medical advice against travelling should be given. However, that is not the case as it now stands. Thus, I do not find such allegation credible.

9.  According to Re Nobility School Limited, “the starting point is that proceedings are conducted in court” and “this is more important when it comes to a trial”. As Tunkara is the sole witness of the Defendant, it is anticipated that the credibility of his evidence will be seriously contested. Therefore, “it is important for the witness to be examined under the solemn atmosphere of the court”. In view of the above, I am not satisfied that the Defendant has provided sound reason to justify a departure from the starting point as per the aforesaid authority.

DISPOSITION

10.  Having considered all the above matters, the Defendant’s application is dismissed with costs to the Plaintiff in any event to be taxed if not agreed with certificate for counsel.