ALCOHOL COUNTERMEASURE SYSTEMS (HK) LTD AND ANOTHER v. LI CHI KONG, PETER

HCA 2336/2014 and HCA 193/2016
(Consolidated)

[2022] HKCFI 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS 2336 OF 2014 AND 193 OF 2016

____________________________

BETWEEN

____________________________

(Consolidated pursuant to the Order of Master Ho dated 30 March 2016)

____________________________

RULING

____________________________

1.  This is my decision[1] on the summons of 24 February 2022 (the “Summons”) taken out by the plaintiffs (“P1”, “P2” and collectively “Ps”) for leave to receive the evidence of Mr Bruce Bailey (“Bailey”) and Mr Ong Ching-How (“Ong”) via video conferencing facilities (“VCF”), together with related directions.

2.  For the following reasons, I allow Ps’ application and give the directions in terms of the Summons, except that the direction at §6 shall be modified as underlined:

“Only the following named witnesses shall give evidence by way of VCF testimony and shall do so from the place identified, which shall be a neutral venue in Canada, and in the presence of an independent observer:

(1) [Bailey for Ps] from Canada; and

(2) [Ong for Ps] from Canada.”

3.  I record first of all the following:

(a) The consolidated trial is due to commence on 16 May 2022, with 10 days reserved;

(b) The 1^st Pre-trial Review took place before me on 14 February 2022;

(c) Shortly before the 1^st Pre-trial Review, Mr Li’s Legal Aid Certificate got discharged. Mr Li appeared before me on 14 February 2022 in person. Noting that he might not have been prepared for the hearing, and noting further the disagreement between parties on the choice of language at trial, I fixed a 2^nd Pre-trial Review on 9 March 2022;

(d) During the 1^st Pre-trial Review, Mr Cheng, Counsel for Ps, put this Court and Mr Li on notice that an application for leave to receive the evidence of Bailey and Ong via VCF might be made;

(e) On 24 February 2022, Ps took out the Summons. It was intended that it would be heard during the 2^nd Pre-trial Review;

(f) Because of the pandemic, all hearings of the courts originally scheduled between 7 March and 11 April 2022 have been adjourned;

(g) Despite the adjournment, and given the nature and urgency of the application, Ps sought directions that the Summons be disposed of on the papers;

(h) I have invited submissions from parties. I have considered them. I give reasons for the ruling below.

4.  Mr Li was an employee of P1, and a director of P2. Ps’ case is that Mr Li, during his employment, made fraudulent misrepresentations to Bailey that he had incurred certain expenses. Ps say that as a result of those misrepresentations, they have suffered loss and damage.

5.  Bailey was the Legal Representative of P2.

6.  Ong was the Supply Chain Manager of P1.

7.  Mr Cheng accepts that both Bailey and Ong are key witness for Ps.

8.  Bailey and Ong are stationed in Canada. They are not Hong Kong residents.

9.  At the time when the Summons was filed and initial rounds of submissions lodged, country specific flight ban was imposed by the Hong Kong Government as one of the measures to combat the pandemic. At that stage, the ban had been extended to 20 April 2022. Canada was on the List of Specified Places with Flight Suspension. The result of the aforesaid is that, unless and until the ban is lifted, Bailey and Ong as non-Hong Kong residents would not be able to travel to Hong Kong, whether directly or indirectly, e.g. by first undergoing quarantine at a lower-risk place.

10.  On 21 March 2022, the Chief Executive announced that from 1 April 2022, the flight ban will be lifted.

11.  I noted the change. I invited further submissions from the parties on the effect of the change on Ps’ present application.

12.  As Mr Cheng has pointed out in his further submissions lodged on 23 March 2022, Bailey and Ong, being non-Hong Kong resident, cannot take advantage of the lifting of the ban. As explained in news.gov.hk (with emphasis added.):

“The Chief Executive announced that starting from next month, only Hong Kong residents who are fully vaccinated can board a flight for Hong Kong.”

13.  Hence, despite the change, there is on the evidence before me still no sight of the date when Bailey and Ong can come to Hong Kong to attend the trial.

14.  I have considered all the authorities which Mr Cheng has cited to me, which include Re Nobility School Ltd [2020] HKCFI 891 at §9, Yeung Abraham v Sun King Kai [2021] HKCFI 2224 at §§11-14 and CTRisks Rating Ltd v Chan Pik Kwan [2021] HKCFI 2619 at §4).

15.  I have considered Mr Li’s letters to this Court of 9 and 25 March 2022. He understands the state of the pandemic. He has not expressly raised any specific objection to Ps’ application. He has however raised a number of queries as to the general fairness of receiving evidence via VCF, like how one can know whether Bailey and Ong might be prompted when giving evidence, the possibility of having an observer, whether there would be interpretation, and whether evidence would still be considered.

16.  Given Mr Li’s concern, Mr Cheng has in his reply submissions expressed agreement to Bailey and Ong giving evidence at a neutral venue, in the presence of an independent observer.

17.  The other directions which Ps seek via the Summons are also there to see to the fairness of the procedure. They are, as submitted by Mr Cheng, modelled on the directions provided at Appendix A of the “Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 3: Wider Video-Conferencing Facilities and Telephone)” issued by the Chief Judge of the High Court on 15 December 2020.

18.  I as the trial judge will also ensure fairness of the trial in general and the procedure in specific.

19.  Appropriate interpretation will be arranged and provided. I will deal with that further during the 2^nd Pre-trial Review when I consider the choice of language at trial.

20.  In relation to Mr Li’s query as to whether the court will consider the evidence, or that the case will be purely decided on submissions, it should be noted that the whole purpose of having VCF hearing is so that Bailey’s and Ong’s evidence can be received in a way next best to having a physical hearing. Other witnesses will attend physically. All the evidence will then be considered. The outcome of the trial will not be decided solely on paper and on submissions.

21.  In all the circumstances, given the state of the pandemic, the prospect of Bailey and Ong not being able to physically attend the trial, the highly undesirable alternative of adjourning the trial on an open-ended basis, and the existence of mechanisms to ensure fairness of the procedure, I allow Ps’ application, and make the order as explained in §2 above.

22.  I order that costs of this Summons be in the cause.