SETO SHA LI v. LAI JIN TONG AND ANOTHER

HCA 295/2016 & HCA 1442/2016
(Consolidated)

[2021] HKCFI 3561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. 295 & 1442 OF 2016

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(By Counterclaim)

(Consolidated pursuant to the Order of Master R Lai

dated 1^st November 2016)

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R E A S O N S  F O R  D E C I S I O N

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1.  By a summons dated 9 November 2021, Lai Jin Tong, the 1^st Defendant (“D1”) in the original action applies for one of his witnesses, Lai Lap Ming, who is the younger brother of the 1^st Plaintiff and the elder brother of D1 and has since 2015 emigrated to Taiwan, to give evidence via video link.

Applicable Legal Principles

2.  In Sun Legend Investments Ltd v Ho Yuk Wah [2008] 4 HKLRD 239, Chu J (as she then was) at §§2, 3, said:

“2. The use of the Technology Court and its facilities, including the VCF, is regulated by Practice Direction 29. In particular, para.4 provides that:

‘It is a case management decision within the discretion of the court or tribunal concerned whether any proceedings or parts of any proceedings should be conducted in the Technology Court.’

3. Paragraph 5 of Practice Direction 29 further states that:

‘In making the decision, the court or tribunal shall 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:

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

(b) to save costs; and/or

(c) materially to delay disposal of the proceeding.’

12. The principles to be distilled from the several authorities discussed above are:

(1) Whether to permit the giving of evidence by means of VCF is a decision within the discretion of the court.

(2) In general, the applicant should provide a valid reason for the use of VCF. The threshold for valid reason is not a high one, however.

(3) The court should have regard to all the circumstances of the case. Relevant factors include the matters set out in para.5 of Practice Direction 29, the reason why the witness is unable or unwilling to attend the trial in person, the importance of the witness to the applicant’s case and any prejudice to the other party.

(4) The witness’ unwillingness to testify in person at the trial because he is a fugitive from justice may, depending on the circumstances of the case, be a good and sufficient for making a VCF order.”

3.  Mr Wong for the Defendant referred this court to the case of Re Nobility School [2020] HKCFI 891 where Anthony Chan J at §8 set out the following principles:

“(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).”

4.  This court has no doubt about the solemnity of court proceedings and agrees that the Court’s atmosphere is highly important in the taking of evidence (See Wang Rongan v Silver International Investment Limited [2021] HKCFI 3198 at §§9-11 per Ng J). However, the court should, at the same time, not lose sight of the actual situation and the advancement in technologies. Since the outbreak of COVID-19 in the beginning of 2020, courts in this jurisdiction has heard and tried cases through VCF with no compromise to the quality of justice.

5.  At the end of the day, the court will have to make a balance and see how a trial can be most fairly and effectively carried out.

Analysis

6.  In the present case, having considered both parties’ submissions, I am of the view that leave should be granted to one witness, Lai Lap Ming, to give his oral testimony via VCF.

7.  First, Lai Lap Ming has since 2015 emigrated to Taiwan. Because of the severity of COVID-19, he will need to stay in quarantine for 21 days after arriving Hong Kong and then another 14 days upon returning to Taiwan.

8.  He is currently facing both civil and criminal litigation in Taiwan. He acts in person in both proceedings which were commenced in August 2021 and September 2021.

9.  D1 has produced the evidence of a Taiwanese lawyer, Mr Xie Ah Zhe who affirms that it is highly likely that during the 35 days quarantine, the civil claim would be heard on or about 31 January 2022. Needless to say, if he fails to attend the hearing, he may well lose his right to give oral testimony in that civil suit.

10.  It is also highly likely that during the 35 days quarantine, he would be summoned as a witness for the criminal proceedings, failing which he would face penalty or imprisonment.  It is also said that he would not be able to produce any evidence during the investigation stage and be barred from producing any evidence.

11.  I am of the view that the above are good reasons why VCF should be allowed.

12.  Mr Wong for the Plaintiffs in the original action submitted that Lai Lap Ming has done nothing in the Taiwan proceedings to avoid any possible clash. However, it is not clear to this Court as to what Lai Lap Ming could have done. It is also not clear to this Court as to how Lai Lap Ming could give evidence in Hong Kong whilst he would be put under quarantine.

13.  I also note that D1 also relied on the point that Lai Lap Ming is now suffering from stress and adjustment disorder due to the Taiwan proceedings and he worried that the anti-anxiety depressants prescribed by his psychiatrist in Taiwan are not available in Hong Kong or that he could not get them without doctor’s prescriptions during his quarantine. I am not convinced that this is a good reason because he could always obtain the sufficient quantity of the relevant medicine from his Taiwan doctors beforehand so that there are enough for him to consume during his quarantine. Though, I do consider that a 21 days’ quarantine may actually make his stress and adjustment disorder worse.

14.  Further, as this application is made two to three months before the trial, I do not consider that serious prejudice will be caused by allowing Lai Lap Ming to give his oral testimony by way of VCF.

Disposition

15.  For thereasons stated above, I make an order that leave be granted to Lai Lap Ming to give his oral evidence by VCF.