EGNER DAVID PARKS AND OTHERS v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

HCA 244/2014
HCA 245/2014
HCA 246/2014
HCA 247/2014
(Consolidated)

[2023] HKCFI 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 244 OF 2014 (Transferred from LBTC 20 OF 2014)

ACTION NO. 245 OF 2014 (Transferred from LBTC 22 OF 2014)

ACTION NO. 246 OF 2014 (Transferred from LBTC 23 OF 2014)

ACTION NO. 247 OF 2014 (Transferred from LBTC 21 OF 2014)

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BETWEEN

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(Consolidated pursuant to Master Levy's Order dated 10th March 2014)

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D E C I S I O N

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1.  The Plaintiffs apply for the 4th Plaintiff and for another witness Murray Gardner (“Mr Gardner”) to give evidence by video conferencing facilities (“VCF”).

2.  The Defendants oppose the application on the grounds that it is extremely late, and lacks merit.

The background

3.  The Plaintiffs’ action has been set down for a 19-day trial, due to commence on 7th February 2023, less than three weeks away.

4.  The trial dates were fixed in August 2020, around two and a half years ago.

5.  At the PTR in November 2022, a reference was made to the possibility that an application for the taking of evidence by VCF might be made. No application was in fact made until 3rd January 2023.

6.  The Plaintiffs’ reason for seeking leave for the 4th Plaintiff to give evidence by VCF is that he does not meet the Covid-19 vaccination requirements imposed on non-Hong Kong residents for entry into Hong Kong (either being fully vaccinated or certified as unfit for vaccination).

7.  The Plaintiffs’ reason for seeking leave for Mr Gardner to give evidence by VCF is that he and his wife operate a small family business in Utah, USA, specialising in real estate, construction and interior design, which requires his physical presence.

The relevant principles

8.  The relevant principles were summarised by Anthony Chan J in Re Nobility School [2020] HKCFI 891 at [9].

“(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).”

9.  In Standard Chartered Bank (Hong Kong) Ltd v Nie Hai Yan Annie [2021] 2 HKLRD 425 at [22], Lam VP reiterated that notwithstanding the COVID-19 pandemic, the taking of viva voce evidence in person in both civil and criminal trials remained the norm in Hong Kong.

The 4th Plaintiff

10.  It is not disputed that the current vaccination requirements for entry to Hong Kong have been in place since May 2022 (and constituted a relaxation of the then prevailing requirements). It appears that the 4th Plaintiff has had sufficient opportunity of meeting the requirements (either to be vaccinated or to satisfy the criteria for exemption from vaccination) but chosen not to do so. It is of course a matter for the 4th Plaintiff to decide whether he should wish to do so. However, choosing not to do so does not amount to a sound reason for departure from the starting point that witnesses’ evidence should be given in court.

11.  It is said that the 4th Plaintiff should not be forced to comply with the vaccine requirement if he wishes to have his day in court. It could equally be said that the 4th Plaintiff’s stance is one of both having his cake and eating it: he wishes to have his day in court but he seeks to be exempted from the basic requirement of being present in court to do so. It is not the case that the 4th Plaintiff is unable to comply with the requirement for entry to Hong Kong, but rather that he has, for reasons which have not been explained and which therefore cannot be taken into consideration on this application, apparently chosen not to do so.

12.  I further note that the 4th Plaintiff is a party to the proceedings and the Defendants challenge his credibility. The 4th Plaintiff is not merely a minor witness or one who is giving uncontroversial evidence. It is desirable that such witnesses should give their evidence in person in the formal and solemn setting of the court, rather than via VCF. It is said that a large portion of the 4th Plaintiff’s evidence is borne out by documents disclosed by the Defendants. However, it remains the case that his evidence as to the history of the parties’ dealings is challenged by the Defendants. Ms Theresa Chow, counsel for the Defendants, submits that at least the factual matrix which goes to the proper construction of the 4th Plaintiff’s contract will be contested at trial. The factual assertions which he has advanced in relation to the Defendants’ counterclaim are also said to be unsupported by documentary evidence and are contested by the Defendants.

Mr Gardner

13.  It is said that it will be “difficult” for Mr Gardner to travel to Hong Kong as he and his wife operate a small family business and he adopts a “very hands-on approach” in operating his business. It is said that he will be required to be present and supervise, on a daily business, one of the construction projects in which he will be involved, which will be in the demolition phase during the period of the trial. It is further said that he will be engaged in the listings of the sale of two properties during the period of the trial, and that he alone, as the only licensed realtor in the family business, is allowed to show the properties to clients.

14.  I agree with the Defendants’ submissions that the fact that a witness has chosen to prioritise his business commitments or personal convenience over his attendance at trial is not a good reason to depart from the starting point that witnesses’ evidence should be given in court: cf. Re Nobility School at [15]; Wang Rongan v Silver International Investment Ltd and others [2021] HKCFI 3198 at [19].

15.  The Plaintiffs have estimated that the total time required for Mr Gardner and the 4th Plaintiff’s evidence would be four days, including some buffer time. The trial dates have been known for a long time. No explanation has been given as to why it has not been possible to plan ahead so that Mr Gardner cannot even take a few days to travel to Hong Kong and give evidence in court.

16.  Again, I note that Mr Gardner, whilst not a party to the proceedings, cannot be said to be a minor witness or one who is giving uncontroversial evidence. The Defendants say that his evidence regarding the historical developments leading to the terms in the relevant employment contract and the alleged breaches is controversial and will be challenged.

Delay

17.  The Defendants submit, rightly in my view, that no good explanation has been given for the delay in making the application. On the issue of delay, no explanation was offered at all in the Affidavit of Lai Jing Xun filed on 3rd January 2023. In the 2nd Affidavit of Lai Jing Xun filed on 5th January 2023, filed in support of an application to also have the 1st Plaintiff give evidence by VCF (which application has since fallen away), it was said that:

17.1 “significant time was taken to coordinate all instructions for each witness in different jurisdictions … including locating suitable venues and independent observers in different countries”; and

17.2 instructions from the 4th Plaintiff and Mr Gardner were confirmed in December 2022.

18.  Given that the trial dates were fixed in August 2020, and that there is no suggestion that the 4th Plaintiff’s and Mr Gardner’s situations have not been known to the Plaintiffs for many months now, the vague explanation that it took time to coordinate instructions, and locate venues and observers, is inadequate. It is not at all clear from the explanation that the Plaintiffs could not have made the application earlier.

19.  It is by now well-established that a late interlocutory application may be dismissed on the grounds of delay alone. A party cannot simply brush aside the prejudice caused by a late application by the payment of costs. Such prejudice, whether in the form of disruption to other parties’ preparation (eg. Hong Kong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Investment Ltd, unreported, HCA 1576/2011, 25th February 2014), disruption to the court’s preparation (eg. Li Xiao Yun v China Gas Holdings Ltd, unreported, CACV 38/2013, 11th March 2013), an adjournment or a dilemma for a party as to whether to seek an adjournment (eg. Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp, unreported, HCAL 12/2009, 21st September 2009) or otherwise, may not be fully compensable simply by payment of costs.

20.  At the same time, however, and as the aforesaid authorities show, the issue of delay should not be considered in a vacuum, without a consideration of whether prejudice is caused by the late application. After all, the primary aim of case management is to secure the just resolution of disputes in accordance with the substantive rights of the parties. I note that in the present case, it is not being said that the delay would disrupt the Defendants’ trial preparation. Ms Chow submits that it has been prejudicial to the Defendants to have to deal with the application at the eleventh hour and without the benefit of having a longer hearing to deal with it. I agree. However, on the whole, I do not consider that the element of delay in itself is necessarily fatal to the Plaintiffs’ application.

Conclusion

21.  I therefore dismiss the Plaintiffs’ summons of 3rd January 2023.

22.  I will now hear the parties as to costs.