RE CHOW KAM FAI DAVID

HCB 1364/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS

NO. 1364 OF 2003

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D E C I S I O N

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Introduction

1. This is the petitioning creditor's application for an order under Order 38 rule 3(2) of the Rules of the High Court requiring the Debtor to attend court for cross-examination. The Petitioner is the judgment creditor, having obtained a summary judgment in the sum of US$4,768,000 with costs and interest against the Debtor on 9 July 2001. The judgment debt remains unsatisfied. Upon the Debtor's failure to comply with an order requiring him to attend court for cross-examination by the Petitioner, a warrant for his arrest was issued by the Registrar of High Court on 31 October 2001. However, the warrant could not be executed. On 16 January 2003, the Petitioner petitioned for the Debtor's bankruptcy. The Debtor opposes the petition on the grounds that he is not domiciled in Hong Kong and has not within three years preceding the presentation of the petition ordinarily resided at or carried on business within Hong Kong. After having exchanged affidavits, the Petitioner issued a notice requiring the Debtor to be cross-examined on his affidavits pursuant to Order 38 rule 2(3) of the Rules of the High Court. The Debtor offered to make himself available for cross-examination via the video link facilities of the Technology Court. The offer was declined by the Petitioner.

2. The issues raised by this application are:

(1)	Whether the court has power to order the Debtor to attend court for cross-examination under Order 38 rule 2;
(2)	If yes, whether the court should order the Debtor to attend court for cross-examination;
(3)	If yes, whether the court should accede to the Debtor's application for cross-examination via video link; and
(4)	If no, whether the court should exclude the Debtor's affidavits at the hearing of the petition if the Debtor fails to attend.

3. Mr Kat, counsel for the Debtor, also raised a procedural point argument that this application is premature. It would be convenient to deal with that submission first.

Whether the application is premature

4. Mr Kat referred to Re Glory Garment Factory [1985] 1 HKC 154. In that case, the petitioning creditor filed a common affidavit of verification which recorded the act of bankruptcy relied upon in the petition. The appellant, a partner of the respondent company, also filed an affidavit which was read by the judge whose view that an act of bankruptcy had been committed by the respondent was reinforced by the affidavit, and the judge issued a receiving order. On appeal, Barker JA held:

"The burden of proving an act of bankruptcy lies on the petitioner, and, as appears from the reasons given heretofore, in our opinion, at the end of the petitioner's case this burden was not discharged. In these circumstances, at that stage the judge should have dismissed the petition. It is not permissible to rely on any evidence adduced, unnecessarily, thereafter, to establish a non-existent case."

5. Mr Kat's submission is as follows. The burden is on the Petitioner to establish the jurisdictional facts by calling evidence and the Debtor has no obligation to supplement the deficiency of the Petitioner's case by giving evidence. If the Court is not then satisfied with the Petitioner's evidence, the Debtor need not call any evidence. It is only when the Court is satisfied that it has jurisdiction that the Debtor has to decide which evidence he wishes to call, including whether or not to read an affidavit. Mr Kat submitted that until that election is made and the affidavit read there is nothing upon which the Petitioner's application to debar reliance may bite.

6. With respect, I disagree. There is nothing in Order 38 rule 2(3) which prescribes or even suggests that the application for cross-examination may only be made after a party has elected to give evidence by affidavit and has that affidavit read out in court. In fact, as a matter of common sense, it is desirable and expedient that such application should be made well before the substantive hearing so as to save time and costs. The party tendering the affidavit should be alerted of the application well in advance to avoid surprises and unnecessary adjournment in case the deponent will not be available at the hearing. Whether an order for cross-examination is made before the hearing of the petition or not, a debtor retains all the options he has at the substantive hearing. If the order has not been made, he may ask the court to dismiss the petition if the Petitioner's evidence is insufficient to discharge the burden of proof. He may even remind the judge to ignore his affidavit at that stage of the proceedings. If an order for cross-examination has been made before the hearing, he can seek advice as to the course he shall take at the substantive hearing. He may decide to attend, have his affidavit read out and be cross-examined. He will know that if he does not attend the hearing or if he attends but refuses to be cross-examined, his affidavit shall not be used as evidence. He will know he runs the risk that in the absence of evidence in opposition the court may find it easier to be satisfied that the petitioner has discharged the burden of proof. In addition, he may apply for leave of the court for his affidavit to be used. There will be no danger of his affidavit being used to supplement the deficiency of the petitioner's case as in Re Glory Garment Factory. In my view, the application may be made any time before the hearing. Indeed, I would be surprised if the law were otherwise.

7. The above scenario presupposes the situation where the Petitioner bears the burden of proof. If, as I shall show, upon an assertion by the Debtor of an adoption of a domicile of choice, the Debtor bears the burden of proof, Mr Kat's procedural point argument started on the wrong premises and is unmeritorious as it becomes the Debtor's duty to adduce evidence to establish his allegation of a change of domicile. It never was the Debtor's wish that the court should not look at his affidavits. On the contrary, it is the Petitioner who is seeking to exclude that affidavit evidence unless the Debtor attends for cross-examination.

Jurisdiction under Order 38 rule 2

8. Mr Kat did not dispute that the Court has jurisdiction under the Bankruptcy Ordinance to order the attendance of a debtor for cross-examination, but disagreed that it derives its jurisdiction from Order 38 rule 2. That line of argument is to lay the foundation for his argument in relation to the fourth issue.

9. Mr Kat submitted that the Bankruptcy Court operates under a separate statutory framework. It derives its jurisdiction from section 4 of the Bankruptcy Ordinance and until one or more of the conditions in section 4(1) are satisfied, the court has no jurisdiction. He referred to the special procedures provided by Part II of the Bankruptcy Ordinance and the Bankruptcy Rules such as the special rules as to service, as to evidence which may be admitted in proof of debt and as to various special procedural time limits. He submitted that the principal reasons for the special code are firstly that the Bankruptcy Court has a further-reaching jurisdiction than that under the standard territorial jurisdiction of the Court and secondly that the powers and procedures of the Bankruptcy Court include extraordinary control over the person and property of the debtor, including peremptory and summary contempt powers. He referred in particular to sections 100(5) and 118 of the Bankruptcy Ordinance in support of his argument.

10. Section 100(5) provides:

"Subject to general rules, the court may in any matter take the whole or any part of the evidence viva voce or by interrogatories or upon affidavit or, out of Hong Kong, by commission."

Mr Kat submitted that the section is broad, inclusive and permissive and permits the bankruptcy court to receive evidence in any one of the three ways, including by affidavit and out of Hong Kong. He also argued that section 118 contemplates that evidence in bankruptcy court shall be given by affidavit. He referred to section 9(1) and rule 55 that every creditor's petition shall be verified by affidavit and submitted that as the procedure begins with evidence by affidavit it naturally would continue that way. He submitted that none of these provisions gives the bankruptcy court power to exclude the affidavit evidence if the debtor fails to attend court for cross-examination. He referred to Buckley J's dicta in In Re a Debtor (No. 2263 of 1976) [1978] 1 WLR 1572 as an authority in support of his proposition that the Rules of the High Court do not apply to bankruptcy proceedings.

11. While I agree that for good reason and expedience, our bankruptcy proceedings operate under a different framework from ordinary proceedings in the High Court, what Buckley J said in In Re a Debtor must be viewed in the light of the bankruptcy provisions applicable in the United Kingdom. Rule 390 of the English Bankruptcy Rules 1952 specifically excludes the English Rules of Supreme Court from bankruptcy proceedings. On the contrary, under the Hong Kong regime, the Rules of the High Court are preserved in so far as they are applicable and not inconsistent with the provisions of the Bankruptcy Ordinance. The distinction between the two regimes becomes immediately apparent upon a comparison of the two provisions. The English Bankruptcy Rule 390 provides:

"Save as provided by these rules, the Rules of the Supreme Court shall not apply to any proceedings in bankruptcy." (My emphasis)

Section 99(1) of the Bankruptcy Ordinance provides:

"The rules and practice of the High Court for the time being for regulating the ordinary civil procedure of the court shall, so far as the same may be applicable and not inconsistent with the provisions of this Ordinance, be applied to bankruptcy proceedings, and every order of the court made in connexion with bankruptcy proceedings may be enforced in the same way as a judgment of the court made in respect of any other civil proceedings may be enforced." (My emphasis)

Thus the basis of Buckley J's dictum is the mandatory exclusion under Rule 390. In contrast with the English provision, under the local regime, the Rules of the High Court shall be applied to bankruptcy proceedings subject to certain requirements. Thus, in Hong Kong, whether Order 38 rule 2 is applicable is dependent on whether the rule may be applicable and whether it is not inconsistent with the other provisions of the Bankruptcy Ordinance.

12. Sections 118 and 100(5) permit the use of affidavit in bankruptcy proceedings. Order 38 rule 2 is applicable to evidence by affidavits. Rule 2(3) gives the court power to order the attendance of the deponent for cross-examination and exclusion of his affidavit if the deponent fails to attend for cross-examination. There are no similar provisions under the Bankruptcy Ordinance or the Bankruptcy Rules excluding or otherwise providing the circumstances when such power may be exercised by the bankruptcy court. In the circumstances, Order 38 rule 2 is clearly not inconsistent with the Bankruptcy Ordinance or the Bankruptcy Rules. Hence, in my view Order 38 rule 2(3) is applicable to these proceedings.

Whether to order the Debtor to attend court for cross-examination

13. Order 38 rule 2(3) gives this court unfettered discretion, upon the application of a party, to order the deponent of an affidavit to attend court for cross-examination: see Wendy Wenta Seng Yuen v. Philip Pak-yiu Yuen [1984] HKLR 431 (CA). An applicant is not entitled to cross-examine a deponent on his affidavit as of right. He has to establish that in all the circumstances of the case it is necessary for the disposal of the issue in dispute and in the interests of justice that a deponent's evidence by affidavit should be tested by cross-examination. Where the evidence would result in a final order, as opposed to an interlocutory order, the interests of justice dictate that the deponent should be cross-examined if his evidence by affidavit is for good reasons not acceptable to the other side. Likewise where the evidence relates to the subjective intention or the motives of the deponent, the interests of justice would require such affidavit evidence to be tested by cross-examination.

14. With the above principles in mind, I now turn to examine the circumstances of this case, in particular the jurisdictional basis of the petition and the burden of proof. The Debtor's ground of opposition to the petition is that this court has no jurisdiction over his person. The jurisdiction of this court in bankruptcy proceedings is derived from section 4 of the Bankruptcy Ordinance, which provides:

" (1) A bankruptcy petition shall not be presented to the court under section 3(1)(a) or (b) unless the debtor -

(a)	is domiciled in Hong Kong;
(b)	is personally present in Hong Kong on the day on which the petition is presented; or
(c)	at any time in the period of 3 years ending with that day -
	(i)	has been ordinarily resident, or has had a place of residence, in Hong Kong; or
	(ii)	has carried on business in Hong Kong.

(2) The reference in subsection (1)(c) to a debtor carrying on business includes -

(a)	the carrying on of business by a firm or partnership of which the debtor is a member; and
(b)	the carrying on of business by an agent or manager for the debtor or for such a firm or partnership."

The Petitioner relies on section 4(1)(a), 4(1)(c)(i) and 4(1)(c)(ii). The Petitioner does not have to establish the court's jurisdiction on all of these grounds. It is sufficient if the Petitioner succeeds in establishing the court's jurisdiction under any of the above subsections. For the purpose of this application, it is not necessary for me to find whether any of the conditions under section 4 are satisfied. My inquiry is whether it is necessary and in the interests of justice for the Debtor to attend court for cross-examination for the disposal of the jurisdictional issue at the hearing of the petition.

15. As always, a petitioner bears the burden of proving jurisdiction. For jurisdiction based on section 4(1)(a), the Petitioner has the burden of proving that the Debtor's domicile is Hong Kong. It is not in dispute that the Debtor's domicile of origin is Hong Kong, but the Debtor claims that he has acquired a domicile of choice in Macau. Hence, the Petitioner has the benefit of the Debtor's undisputed domicile of origin as a convenient starting point in establishing the court's jurisdiction. Once a petitioner has proved the debtor's domicile of origin, it is then for the debtor to establish that he has abandoned his domicile of origin and acquired a domicile of choice elsewhere. The burden of proof rests on the person who asserts a change of domicile, i.e. the Debtor in the present application. There are ample authorities in support of the above proposition. In Winans v. Attorney-General [1904] AC 287, the Lord Chancellor held at 288:

"Now the law is plain, that where a domicile of origin is proved it lies upon the person who asserts a change of domicile to establish it ..."

At 290, Lord Macnaghten said:

"The onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon those who assert that the domicile of origin has been lost."

And he continued at 292:

"Has it been proved 'with perfect clearness and satisfaction to yourselves' that Mr Winans had at the time of his death formed a 'fixed and settled purpose' - 'a determination' - 'a final and deliberate intention' - to abandon his American domicile and settle in England?"

Thus the burden of proof is on the Debtor to establish that he has abandoned his domicile of origin and adopted a domicile of choice outside Hong Kong.

16. As to the standard of proof, there are conflicting views. It was suggested in Irwin v. Irwin [2001] 1 FLR 178 at 185 that change of domicile of origin must be proved beyond reasonable doubt. For my part, I think that standard is reserved for criminal proceedings while the standard to be adopted in bankruptcy proceedings is the civil standard, i.e. "proof on a balance of probabilities". Proof on a balance of probabilities in civil proceedings has become a rule cast in stone under our law. If a petitioner is required to prove the debtor's domicile of origin on a balance of probabilities, it is illogical that the debtor has to rebut that evidence by the criminal standard of proof beyond reasonable doubt. To impose on a debtor the burden of proving acquisition of a domicile of choice beyond reasonable doubt not only offends the well established standard of proof in civil proceedings, but is also repugnant to the equally well established rule that a defendant in criminal proceedings is only required to rebut a presumption against him by proof on balance of probabilities.

17. Of course, change of domicile is a very serious matter involving far-reaching consequences. It is not to be lightly inferred from casual language or even from long period of residence. In the words of Lord Macnaghten, it has to be proved with perfect clearness and satisfaction of a fixed and settled purpose, a determination, a final and deliberate intention to change. It requires very strong and cogent evidence to tilt the balance in favour of domicile of origin. The evidence has to be such cogent, convincing or compelling evidence as is commensurate with the proof of the debtor's deliberate intention to settle permanently in his domicile of choice and his final determination to abandon his domicile of origin for good.

18. The Debtor admitted in his affidavit that he was born in Hong Kong in 1950 and lived in Hong Kong until 1971 when he emigrated to the United States to work. He said in 1981 he re-emigrated to Macau and lived there permanently with his wife and children. He obtained permanent residence in Macau and a Macanese Residence Card on 19 January 1991. He obtained a Portuguese passport on 21 November 1996 and gave up his Hong Kong British Dependent Territories Citizen Passport ("BDTC Passport") in 1997. The Debtor relied on his long period of residence, his business, his reputation in the gaming and leisure industry, his appointment to the Regiao Administrativa Especial de Macau (the Legislative Assembly) in Macau and his appointment as the Official Macau Honorary Consul to the Republic of Cape Verde as evidence of his change of domicile. In addition, he has held a Macanese Resident's Card for more than ten years and a Macau SAR passport. These are evidence which tend to support a change of domicile.

19. On the other hand, the Debtor is still holding a Portuguese Passport, a Portuguese Diplomatic Passport/Special Portuguese Passport and a Hong Kong Identity Card. He maintains business interest in Hong Kong. He makes substantial charity donations to Hong Kong. These are evidence which indicate that he has not made a final deliberate election or determination to adopt Macau as his permanent domicile and to abandon Hong Kong as his domicile. In 1995, when the judgment debt which formed the subject matter of this petition was incurred, he uttered a Hong Kong Identity Card and his BDTC Passport in order to obtain the credit. Thus even after 14 years of residence in Macau where he claimed to have settled permanently but just 7 years ago, he was still saying to the world that he is a Hong Kong resident and used a BDTC Passport which was consistent with his intention to maintain and not to abandon his domicile of origin. It was not until the institution of these proceedings that the Debtor asserted that Macau was his domicile of choice. Such assertion must be viewed some suspect. These circumstances raise questions which cry out for an answer by the Debtor.

20. The issue which the bankruptcy court is asked to determine is one which involves a determination of the subjective intention of the Debtor, a function which the court has difficulties to discharge on the basis of affidavit evidence alone without the benefit of seeing the evidence tested by cross-examination. The Debtor's declaration of intention, the fact of long period of residence, his participation in politics outside his domicile of origin and possession of passports or permanent residence card of another jurisdiction per se are not conclusive, though these may be the most important indicia from which the court may draw inferences as to the Debtor's intention. But such declarations or residence etc should not be viewed in isolation. The whole story of what happened during the whole of the debtor's life, including what he said and did after as well as before the time when he alleged that he has acquired a domicile of choice must be considered. Very much against him are the objective circumstances I referred to above which call for an answer. Particularly for cases of this nature which turn on the court's finding of the deponent's subjective intention at the relevant time, the court cannot make a finding of fact on the basis of affidavit evidence which are in dispute. As the Debtor bears the burden of proving that he has abandoned his domicile of origin and acquired a domicile of choice, it is incumbent on him to adduce cogent and convincing evidence to discharge that burden of proof. He has filed affidavit evidence to that effect. But the Petitioner is not bound to accept as true what is deposed to by the Debtor in his affidavit. The Petitioner is entitled to test the affidavit evidence and to investigate the whole history of what happened during the whole of his life which allegedly has resulted in the change of his domicile by requiring the Debtor to attend court for cross-examination. To hold otherwise would lead to the illogical conclusion that the evidence of a deponent is conclusive on matters of the deponent's subjective intention. As the evidence will result in a final order as opposed to an interlocutory order, I find there is a need for the Debtor to attend court for cross-examination so that the veracity of his affidavit evidence could be tested. This is sufficient to dispose of this issue. However, I shall briefly cover the other two grounds relied upon by the Petitioner.

21. The Petitioner also relies on the fact that during the period of three years prior to the institution of the petition, i.e. 16 January 2003, the Debtor has had a place of residence in Hong Kong or has carried on business in Hong Kong. There is incontrovertible evidence that prior to 1995, when the Debtor applied for his BDTC Passport, he gave an address in Wing Lung Road as his residential address. It is not in dispute that when he obtained the credit in 1995, which formed the subject matter of this petition, he again gave that address as his business address. In November 2000 and April 2002 respectively, the Wing Lung Road address was reported as his residential address in documents filed with the Companies Registry for his two companies in which he is a shareholder, namely, Firstgrade Industries Ltd ("Firstgrade") and Amigo Travel (HK) Ltd ("Amigo"). Prima facie, the condition under section 4(1)(c)(i) is satisfied.

22. In his affidavit, the Debtor alleged that he did not reside at the Wing Lung Road address as he had sold the property to his mother in March 1990. The Immigration Department travel records shows that during the three year period the Debtor had visited Hong Kong on thirty-seven occasions staying overnight on twelve of those occasions. He said that the company documents in respect of Firstgrade were prepared by his sister, while those in respect of Amigo were prepared by Wu Dit Keung, the manager and operating director of Amigo. These documents were not signed by the Debtor. He suggested that the Wing Lung Road address was merely a correspondence address, used for convenience and produced affidavits from his sister and Wu Dit Keung to that effect. The Petitioner disputes what is said in those affidavits. The issue here is not whether the Debtor resided in Hong Kong during the relevant three year period but whether he had a place of residence in Hong Kong at the time. The expressions "had a place of residence" and "has been ordinarily resident" are two separate jurisdictional qualifications, and in some cases one may well exist without the other. A place of residence is a place where one can live and have resort to as and when he wishes. It needs not be a place where he resides regularly or with any degree of permanency or frequency or for any duration. The deciding factors are the Debtor's intention and his power to have resort to that address. For similar reasons, it is appropriate that the Debtor should be cross-examined on his subjective intention.

23. The Petitioner also relies on section 4(1)(c)(ii) in that the Debtor has during the same period of three years been carrying on business in Hong Kong through his companies, Firstgrade and Amigo, in which he is a shareholder and also through his activities in the Legend Club. As regards Amigo, the Debtor owns 85% of its shares. In his affidavit, the Debtor said that Amigo was a small travel company run by his friend and his shares were non-voting and non-dividend earning. Quite who received the dividend and why there was such a peculiar arrangement were not explained. It is legitimate for the Petitioner to require the Debtor to be cross-examined before accepting that evidence. As for the Legend Club, it is a company incorporated in Macau in which the Debtor is a shareholder, director and chief executive officer.

24. Mr Kat submitted that the Petitioner's contention is misconceived both in law and in fact. He referred to In re Brauch (A Debtor) [1978] 1 Ch 316 at 330 where Golf LJ held that it is insufficient to show that the debtor had been running a company's business, even if he was the sole beneficial shareholder and in complete control of the company. It must be shown that there is a business being carried on by the debtor personally and that business must be his own and not that of a company in which he is interested. In the circumstances, the Petitioner's claim of jurisdiction based on the Debtor's involvement in Firstgrade, Amigo and Legend Club cannot be sustained as a matter of law. However, that is of no consolation to the Debtor as it has been shown that there is a necessity for him to be cross-examined on the other two grounds.

25. It would have been Mr Kat's strongest argument that by attending court for cross-examination, the Debtor would avail himself to be served a second petition thereby perfecting the petition by his presence in Hong Kong, which gives this court jurisdiction under section 4(1)(b). However, Mr Chan SC has pulled the carpet from under Mr Kat's feet by his solicitors' undertaking not to serve a second petition on the Debtor. On this issue, I find that the Debtor should be ordered to attend court for cross-examination.

Whether cross-examination via video link

26. In the event that an order for cross-examination is made, the Debtor requests that the cross-examination be conducted via video link facilities of the Technology Court in the High Court and offered to pay the costs. This request involves a consideration of the principles to be applied in exercising the discretion as to whether to allow a witness to give evidence from outside the courtroom; video link or teleconference being the technology to achieve that purpose. Mr Kat referred to a number of local decisions in which video link evidence are treated as viva voce evidence for the purposes of section 100(5). But those decisions do not decide on the principles as to how the discretion is to be exercised. Mr Kat also referred to Rowland and another v. Bock and another [2002] 4 All ER 370. In that case, a Swedish claimant brought proceedings in England against the defendant. The claimant was subject to a request for his extradition to the United States and he risked arrest upon warrant if he entered the United Kingdom to give evidence in relation to his claim. He therefore sought the court's permission under CPR 32.3 to give his evidence at trial through video link. One of the reasons which the court held for allowing the claimant's application is that access to the court for justice in a civil matter should not be at a price of the litigant losing his liberty and facing criminal proceedings. That is a decision based on the English CPR which provides a comprehensive set of rules and principles applicable to the use of video link evidence. The CPR is not applicable to Hong Kong and there are no equivalent rules in our statute books. As such, that decision is not a useful precedent, though it provides some useful guidance.

27. Apart from Practice Direction 29 which makes provisions concerning the use of the Technology Court, I am not aware of any other directions or statutory provisions concerning the use of video link evidence. I think this Practice Direction prescribes the procedures for the use of the Technology Court inside the High Court Building, which is equipped with many technologically advanced features, including video link capability. I do not think it prescribes the principle as to when video link may, as a general rule, be used so as to enable part of the proceedings to be conducted from outside the courtroom. However, Practice Direction 29.5 does provide some hints as to the kind of consideration a judge should take into consideration when permitting the use of the Technology Court, which are also relevant in considering whether to permit the use of video link evidence. These considerations are the fair and efficient disposal of the proceedings, the saving of costs and reducing delay.

28. With that, I now turn to my search for the principles governing the exercise of the court's discretion in allowing a witness to give evidence from outside the courtroom via video link. The starting point is the fundamental basis that justice is dispensed by the Court of Justice and as a rule the parties have to come to the court to obtain justice. Secondly, justice is dispensed in open court accessible to the public so that any member of the public can watch the administration of justice in action. Justice has to be openly seen to be done. Within the court building and its precincts, the parties, their witnesses and their legal representatives are protected by law. They are free to prosecute their claim or their defence without fear. On the other hand, witnesses are obliged by law, the solemnity of the court atmosphere and the threat of immediate sanction to give evidence on oath or under affirmation and to tell the truth. They are subject to the sanction of the court if they should refuse to answer questions on oath or disobey an order of the court or otherwise behaves disrespectfully. Likewise, the judge can watch the witnesses giving evidence under the solemnity of the court atmosphere. Without exaggerating the notion of the dignity of the court and its authority, proper administration of justice must be conducted and seen to be conducted by proceedings within the courtroom. Hence, giving evidence outside the courtroom via video link is an exception rather than the rule. It is a privilege and not a right. This is my starting point.

29. Advances in information technology have made it possible for the proceedings to be conducted simultaneously in various locations within a court building, such as an open courtroom and a close-circuit television room for taking evidence from a tender or vulnerable witness, or simultaneously conducted in a courtroom and an outside location. Still, the use of such technology to enable a witness to give his evidence or a party to conduct his part of the proceedings outside the court is not a right. It is not a privilege which can be exercised as of right for those who can afford it, such that one can enjoy the luxury and comfort of undergoing part of the court proceedings, in this case of being cross-examined, in his own home or office and in the absence of the solemnity of the court atmosphere under which a witness feels more obliged to tell the truth in the witness box. To hold otherwise would open the door of our Technology Court to abuse and put the judicial system to disrepute and our solemn administration of justice will be degradated into a televised show. It could not be right, if for no good reason, tycoons, politicians, celebrities and senior government officials are allowed to give their evidence in the luxury of their own office. It would even be a ridiculous scenario to imagine a judge sitting in court with counsel and the public watching while the litigants give evidence in the comfort of their own home for no other reason but that they do not wish to come to court, after all the Technology Court is not unaffordable. Technology should serve the ends of justice and not that justice should yield to technology to accommodate the wishes of the parties. In my view, there must be a good reason to justify any departure from the general rule that the proper administration of justice must be conducted and seen to be conducted by proceedings within the court. The use of video link technology to enable a witness to give evidence from outside the court is an exception which has to be justified by the party seeking to use that facility.

30. What constitutes a justification or good reason depends on the circumstances of the case. It is difficult if not impossible to define the circumstances when a party may be permitted to give evidence via video link. The overall consideration must be the interests of justice and the just and efficient disposal of the proceedings. The single and most important consideration is whether a party would be denied access to the court if video link evidence is excluded. The cause of the denial may be relevant, for example, whether it is due to physical impossibility, disability, infirmity or other causes, such as risk of arrest and criminal prosecution as in Rowland and another v. Bock and another or risk of revenge or risk of violence, etc. Secondly, the court may consider whether the party seeking the use of video link and the party opposing the application is seeking a collateral advantage against the other or is doing so for some other ulterior motives. The discretion is likely to be exercised against the party seeking a collateral advantage. Thirdly, another consideration, for example, is whether the credibility of the witness is crucial and whether his physical attendance in court would assist the court in assessing his credibility. The list of consideration is not closed. The court has to balance all considerations against the costs and expenses to the party and the inconvenience to the witness in bringing the witness to Hong Kong for the proceedings. For example, in the case of an expert, whose expertise or expert opinion rather than his credibility is in issue, the court would be more inclined to bend in favour of costs and convenience. Similarly, if a witness is suffering from infirmity or disability and living overseas, the court would also be inclined to spare him the difficulties and discomforts of having to come to court, especially if it involves a long flight. The question has to be approached with the good sense of the judge.

31. On the other hand, giving evidence outside the courtroom is an exception rather than the rule. If a witness has a history of disobeying the orders of the court, it is a good reason for refusing his application for the privilege. If he is not within the immediate reach of the court when there is no threat of immediate sanction, there can be no assurance that he would not disobey by refusing to answer the questions put to him.

32. Thus, I may summarise these principles as follows. Proper administration of justice must be conducted and seen to be conducted by proceedings within the courtroom. Giving evidence from outside the courtroom is a privilege and an exception to the general rule. The burden is on the party seeking the privilege to show good reasons for the departure from the general rule. What constitutes good reasons depends on the circumstances of the case. The overall consideration must be the interests of justice and the just and efficient disposal of the proceedings. Among these consideration, the most important consideration is whether a party would be denied access to court if video link evidence is excluded. The discretion may not be exercised in favour of a witness who has a history of disobeying the orders of the court. With these principles in mind, I now turn to consider the merits of the Debtor's application.

33. The only reason offered by the Debtor as to why video link should be used is that he does not wish to attend court to be arrested for examination under Order 49. It is a virtual certainty and not just a risk that he would be arrested for examination. The questions are whether the risk of arrest would deny the Debtor access to the bankruptcy court for the purpose of contesting the petition, whether he is seeking a collateral advantage by not attending court for cross-examination, whether the Petitioner is seeking a collateral advantage by objecting to the application so as to compel his attendance in court for some ulterior purpose and whether in all the circumstances, it is in the interests of justice and just and efficient disposal of the proceedings that I should grant his application to attend cross-examination via video link. These questions cannot be answered without going further back into the background of this case.

34. The Debtor has incurred a debt in Nevada. He has unsuccessfully challenged this court as the forum conveniens before Mr Recorder Ma SC (as he then was) in April 2001. Judgment was then entered against him on 9 July 2001 and against which he never appealed. He did not pay the judgment debt and refused to attend court for examination under Order 49B pursuant to the order dated 8 August 2001. A warrant for his arrest was issued on 31 October 2001. In July 2002, his solicitors informed the Petitioner's solicitors that the Debtor would prefer to await the outcome of his appeal against Mr Recorder Ma's (as he then was) decision on forum conveniens before submitting to the jurisdiction for purposes of the examination order. Despite his application for leave to appeal was dismissed by the Court of Final Appeal on 30 September 2002, he showed no intention to comply with the examination order. On 7 March 2003, his solicitors wrote to the Petitioner's solicitors confirming that they "will not be making arrangements for him to appear in Court." The Debtor's intention not to pay the judgment debt and to evade the process of enforcement is amply clear.

35. There is a public interest that every judgment debtor, if he has the means to, should pay his judgment debt, a liability which is beyond dispute as having become a final judgment of the court. If he does not pay he may be subject to examination as to his assets, liability, income and expenditure, etc. This is to enable the judgment to be satisfied so far as possible. There is also a public interest that every order of the court should be obeyed. If a judgment debtor has been ordered by the court to attend for examination, it shall be his duty to attend. If he does not attend, the law will compel his attendance with a warrant for his arrest. The effect of the Warrant of Arrest is by no means draconian. He will be released after the examination. He will be released on bail in the meantime if he would put up with the bail money or adequate security and there is no suggestion that the amount is anything beyond his means. The bail money is to secure his attendance for examination. It will be returned to him at the conclusion of the examination and will not as a rule be applied to satisfy his judgment debt. The Warrant of Arrest is not as if it were a warrant committing him to a term of imprisonment or an indictment which starts criminal proceedings against him which may result in a term of imprisonment. It only ensures that he will perform an obligation which he has been owing to the court for the past two years. He will walk away like a free man if he will put up with the bail money or security or if he will attend the examination under Order 49B and answer the questions asked of him honestly as the court expects of any witness taking the oath or affirmation in its witness box to tell the truth, nothing more and nothing less.

36. In requesting for cross-examination via video link, the Debtor is in effect saying, "I am not going to pay the judgment debt entered by the court. I am not going to obey an order of the court ordering me to be examined under Order 49A. I am not coming to court to be cross-examined on my affidavit because I do not wish to expose myself to the risk of being arrested for the purpose of being examined under Order 49A. I am not going to obey any order of the court, but I am asking the court to protect me from the consequence of disobeying its order."

37. In effect he is seeking a collateral advantage. He is asking the court to protect him from the consequence of disobeying the court's order and to assist him in his continuing breach of the order. He is asking the court to assist him to defeat the interests of justice and to defeat the public interest that every judgment debtor should pay his judgment debt and every order of the court shall be obeyed. On the other hand, the Petitioner is not seeking any collateral advantage in resisting the Debtor's application to use video link by forcing the Debtor to attend for examination under Order 49B. It was the Debtor's refusal to comply with the examination order which frustrated the Petitioner's efforts in enforcing the judgment which made it necessary for the Petitioner to institute bankruptcy proceedings in order to invoke the more extensive jurisdiction of this court over the Debtor's person and his assets.

38. Not only has this fugitive of the law kept the Petitioner out of its money, he has also deliberately refused to obey an examination order of the court and put justice into contempt. Refusal of his application to give evidence via video link will not result in his evidence from being excluded, as there is nothing to prevent him from coming to court to be cross-examined. There is nothing to suggest the Debtor is suffering from disability, infirmity or ill-health. Macau is less than an hour by hydrofoil or 15 minutes by helicopter, which is not anything beyond his means. The Warrant of Arrest does not prevent his access to the court because it does not impose on him a very onerous or impossible burden. He is only asked to attend court and to tell the truth as the court expects of any of its witnesses. Telling the truth could not be an onerous burden unless it was his intention to keep the truth away from the court. If anything is preventing his access to the bankruptcy court, it is his wilful intention to evade his obligation owed to the court or to tell the truth.

39. His credibility and his subjective intention are central to the cross-examination. He had a history of wilful disobedience to the court's order. For two years, he has wilfully refused to be examined. If he is to give evidence via video link beyond the reach of the court, without the threat of immediate sanction and the solemnity of the court atmosphere, he may refuse to answer questions if the questions put to him are not to his liking. He may even switch the system off and put an end to the cross-examination at his will as he would be the master of his own studio.

40. All considerations are against the Debtor. The court is not inaccessible to him because of physical impossibility. He is not being denied access to court if video link evidence is excluded. It is his conscious choice not to attend in order to avoid his obligation which he has been owing to the court for the last two years. By deciding not to attend court for cross-examination and seeking to have his affidavit admitted in evidence, he is seeking a double collateral advantage in that he will not have to expose himself to the acid test of cross-examination and save himself from being arrested for examination under Order 49B. It is not the duty of this court to help a debtor to defeat the public interests that a judgment debtor should pay his debt and that every order of the court shall be obeyed. Nor shall the court exercise its discretion in such a way as to protect him from the consequence of his deliberate breach of an order of the court. In the circumstances, the Debtor has utterly failed to show that it is in the interests of justice or for the fair and efficient disposal of the proceedings that he should be allowed to attend court for cross-examination via video link. Accordingly, his application to give evidence via video link must be refused.

Whether to exclude the affidavit for non-attendance

41. Mr Kat submitted that in the event I refuse his application for cross-examination via video link, I should not exclude the Debtor's affidavit evidence. Order 38 rule 2(3) provides:

"In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court." (my emphasis)

42. My reading of Order 38 rule 2(3) is that once the order for cross-examination is made, the exclusion of the deponent's affidavit follows as a matter of course upon his default of attendance, and not that the court has to make a further order to that effect. If the exclusion does not follow as of course, the order for cross-examination is nugatory as being an empty order without the threat of any sanction. The Debtor has for two years shown a wanton disregard to an examination order under Order 49B. For this reason, I think my order for cross-examination should be fortified with an order for exclusion of his affidavit in default of his attendance. Thus, if I am wrong in my interpretation of the rule, I am prepared, for avoidance of doubt, to clarify my order for cross-examination with the further order that if the Debtor does not attend, his affidavit shall not be used as evidence without the leave of the Court.

Conclusion

43. For the above reasons, I grant the Petitioner's application with costs. I make an order that the Debtor shall attend this court for cross-examination on his affidavit, and if he does not attend, his affidavit shall not be used as evidence without the leave of the Court. His application to give evidence via video link is refused.