WAH LUN INTERNATIONAL DEVELOPMENT LTD v. LAU CHIU SHING

HCA 1429/2015

[2020] HKCFI 2572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1429 OF 2015

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DECISION

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1.  This is the application of the plaintiff (“P”) by summons of 18 September 2020 for leave to allow P’s witness Mr Jia Bin (“Jia”) to testify by way of video conferencing facilities (“VCF”) at the trial scheduled to commence on 27 October 2020 (with 5 days reserved).

2.  The application is supported by Jia’s affirmation of 17 September 2020. 

The claim

3.  Sometime in late 2014 or early 2015, the parties entered into discussion on the purchase by P from D of a majority shareholding in a listed company called e‑Kong Group Limited.  A Due Diligence Agreement was later entered into.  Pursuant to that agreement, P paid D earnest money in the sum of RMB 20,000,000 (the “Earnest Money”).  P avers that issues that subsequently revealed during the due diligence exercise had not satisfactorily been resolved, and that the Earnest Money has as a result become refundable. D’s defence is that the parties had entered into a binding sale and purchase agreement (the “S&P Agreement”) and that the Earnest Money had become non‑refundable and remained as forfeitable deposit under the S&P Agreement.  D further avers that upon P’s repudiatory breach of the S&P Agreement by failing to complete the transaction on or before 20 March 2015, the Earnest Money was forfeited.

4.  The main issue to be resolved during the trial is whether the parties have entered into the S&P Agreement.

5.  For the trial, P is going to call Jia and a Mr Simon Chiu.  D is going to call himself.

6.  According to D’s Re‑Amended Defence, the S&P Agreement was reached orally during a “personal meeting” in mid or late January 2015 between Jia and D (the “Personal Meeting”).  It is common ground that Mr Simon Chiu was not present during that meeting.

7.  Jia’s evidence will be important in the resolution of that main issue.  His credibility is going to be hotly disputed. Ms Lam, solicitor appearing for P, accepts that[1]. 

The applicable legal principles

8.  I have been cited a number of authorities (decided both before and after the COVID‑19 pandemic) relating to the principles and considerations applicable and relevant to an application of this nature.  I refer in particular to the useful summary of the principles by Anthony Chan J at §9 of Re Nobility School Ltd [2020] HKCFI 891 (20 May 2020), that:

“(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).”

Parties’ stances

9.  Jia is a Hong Kong resident.  He used to frequent between Hong Kong, the Mainland and Singapore for his business. Because of the COVID‑19 pandemic, he has been living in Singapore, and been avoiding travel.

10.  P’s grounds put forward in support of the application, as summarized by Ms Lam, are:

(a)  health risks for Jia to travel between Singapore and Hong Kong (and in particular the risks of transmission on the plane);

(b)  disruption to Jia’s work and family life due to the compulsory quarantine arrangement;

(c)  unpredictability of the COVID‑19 pandemic; and

(d)  alleged lack of prejudice to D.

11.  Mr Jeff Chan appears for P.  He objects to the application, upon the following grounds:

(a)  Jia is a crucial factual witness;

(b)  the grounds put forward by P are neither valid nor conclusive reasons for granting VCF applications; and

(c)  absence of details provided in relation to the proposed VCF venue.

Discussion

12.  In the present case, the main issue between the parties is a factual one — what were discussed and agreed upon (if any) during the Personal Meeting.  It is going to be a one‑on‑one situation — Jia’s evidence against that of D’s[2].

13.  Quite apart from the starting position that proceedings should be conducted in court, on the facts of this case, it is of particular importance that Jia be examined under the solemn atmosphere of the court.

14.  I further respectfully adopt the observations made by Anthony Chan J at §21 of Re Nobility School, that it is an important pillar of our legal system that justice is not only done but seen to be done, and that D would have a justified sense of grievance if Jia were to be permitted to give evidence by VCF, thereby having a perceived advantage over D.

15.  Balanced against the above is the health risk that Jia will be exposed to in physically attending the trial in Hong Kong and the inconvenience associated with the quarantine.

16.  In so far as the quarantine arrangements are concerned, Jia is only relying on the general inconvenience associated with such arrangements.  Jia has not put forward any evidence suggesting that he will be exposed and subject to any specific problems over and on top.  Whilst it is relevant, I attach little weight to such general inconvenience.  With the technologies and facilities commonly and readily available, quarantine is not to be equated to isolation.  Jia can continue to be in contact with his business associates and family members if he wants to. 

17.  The health risk which Jia may be exposed to whilst travelling is a legitimate concern.  However, the flight between Hong Kong and Singapore is not a long one.  Appropriate precaution may also be taken on board to minimize the risk.

18.  As to the unpredictability of the pandemic, the Court can only deal with the matter as things are.  Prevailing health situation is easing, and judicial proceedings are resuming normal order.

19.  Given the above, and on balance, I am not persuaded that the grounds put forward are sufficient to justify leave for Jia to give evidence by VCF.  I refuse the application.

20.  I order that the costs of the present summons, including this hearing, be to D in any event.