JAVIER JENEVIEVE ASUNCION for herself and on behalf of the members of the family of LORAIN ESCORIAL ASUNCION (the Deceased) v. GU HUAI YU AND ANOTHER

DCEC 1745/2019

[2022] HKDC 1162

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1745 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR DECISION

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1.  This employees’ compensation claim involves a fatal incident.

2.  The deceased employee was a Philippines national born on 4 June 1989 (“the Deceased”). At the material time she was employed in Hong Kong by the 1^st respondent as a domestic helper. On 24 July 2017, she was found deceased having fallen from a multi-storey residential building in Shenzhen in PRC. She was then 28 years old.

3.  The 2^nd respondent is the insurer. It denies liability on the ground, among others, that the alleged accident occurred outside the territorial coverage of the insurance. The proceedings herein as against the 2^nd respondent has been stayed until further order.

4.  The Pre-trial Review is fixed to be heard on 31 January 2023, while the trial is fixed to be heard before this court commencing on 28 March 2023 with 3 more days reserved.

5.  Before me was the applicant’s summons issued on 15 September 2022 applying for leave for the evidence of all the 3 witnesses of the applicant to be given by way of video-link. The summons was opposed by the 1^st respondent who filed his affirmation in opposition on 11 October 2022. Parties have filed their written submissions and the application was heard substantively.

6.  At the conclusion of the hearing, I granted the leave with the costs of the application be in the cause except that the costs of the contested hearing be to the applicant to be summarily assessed. I also gave a number of directions, among others and in gist, that the applicant would ready all the arrangements and would have conducted a test of the video-link prior to PTR, that a video clip of each of the facilities to be used by the 3 witnesses are to be provided before the PTR so as to ensure that the facilities would provide an appropriate atmosphere of solemnity, and that at trial when taking the evidence by video-link the 1^st respondent would be at liberty within reasonable bounds to ask the witnesses to move the camera around to show the surroundings to check if there are other persons or undesirable matters present which may affect the fairness of the process.

7.  I said written reasons would be provided. This I now do.

8.  The parties are agreed that the relevant principles and approach are those succinctly summarized in Re Nobility School [2020] HKCFI 891. Essentially, the court need to be satisfied that there is a sound reason to depart from the norm that trials should be conducted under the solemnity in court and that the evidence should be taken live; having been so satisfied, the court is then to weight up the relative advantages and disadvantages to the parties if such evidence is taken, or not taken, by video-link. Ultimately, it is a case management decision to be decided by addressing the question : “what course is best calculated to achieve a just result – for both parties” (Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822, per Barma JA at §28).

9.  In a nutshell, the main issues at trial on liability would be (a) whether the incident occurred in the course of employment, and (b) whether it was an accident in that whether the Deceased committed suicide or fell down accidentally. The thrust of the applicant‘s case is that the Deceased has told the applicant’s 3 witnesses that she was occasionally taken by her employer to work in the PRC, and that the Deceased was not disposed to committing suicide; while the 1^st respondent’s case is that the Deceased occasionally went to PRC as “the travel companion” of his family, and specifically on the occasion in issue, it was the Deceased who had asked to be taken to PRC to be such a “travel companion”.

10.  The 1^st respondent will be the only witness for his case. The applicant has 3 witnesses. All of them have filed their witness statements. The applicant’s 3 witnesses, and the gist of their evidence as gauged from their witness statements, are:-

(a) The applicant herself (“Jenevieve”), who is the older sister of the Deceased and is now 34 years old. She will give evidence on the Deceased’s personal background, employment history, matters about the Deceased’s mental health and about the conversations she had with the Deceased, particularly one they had on 23 April 2017 and two occasions of messaging on 12 and 19 July 2017.

(b) Susan Dichosa Escorial (“Susan”), who is the aunt of the Deceased and is now 53 years old. She was the one who communicated with the Deceased the most. In her witness statement, she spoke about the Deceased’s employment history and personality. In §§4 to 22 of her witness statement, she spoke about many occasions of messaging between her and the Deceased from March 2017 up to 22 July 2017. She has produced 27 pages of screen captures of messages exchanged between them from mid October 2016 to 18 July 2017.

(c) Justina Yap Escorial (“Justina”), also an aunt of the Deceased and is now 39 years old. She was in Hong Kong at the material time and in §§7 to 10 of her witness statement, she spoke about meetings she had with the Deceased in April, May and June of 2017 and particularly the one they had on 22 July 2017, which was the day before the Deceased went to Shenzhen and 2 days prior to the discovery of her death.

11.  As they are the only witnesses for the applicant’s case, the fact that their evidence is essential for the applicant’s case is more than obvious. Their credibility and reliability as witnesses are important, if not pivotal. As the 1^st respondent said and I have no doubt, their evidence and their credibility and reliability as witnesses will be hotly contested at trial.

12.  In the applicant’s affidavit in support (“the Affidavit”), the reasons and circumstances as to why their evidence need to be taken via video-link are set out. They are, in gist:-

(a) Jenevieve is now living in Philippines. She is a full-time mother taking care of her 3 children. Her husband is a farmer earning about 30,000 Philippine Pesos a month (equivalent to around HK$4,300). They do not have personal savings and their income is used up for family upkeep. The cheapest round-trip ticket to and from Hong Kong would cost around HK$1,700. The cheapest hotel for the expected quarantine of 3 days and then accommodation of 4 days during trial would cost about HK$4,000. Including food, transportation and other sundries expenses, the whole trip would cost her family about HK$8,000. She does not have the financial means to afford it.

(b) Susan has been living in Canada since September 2018. She now lives in Alberta working as a live-in caregiver providing full-time day-to-day care to a physically incapacitated person. She cannot travel to Hong Kong to attend trial because (a) it would be most difficult to find replacement to take care of the incapacitated person during the 9 days of travel, as also involved is the trust and comfortability that has been developed between her and the person requiring such care (b) she therefore might lose the job, and (c) she only earns CAD $2,150 a month and the trip would cost about HK$15,800 (air-ticket HK$9,500 at least, hotel HK$4,500, food and transportation HK$1,800), which she has no savings for and she cannot afford.

(c) Justina is now also living in Alberta Canada with 2 children aged 13 and 15 who are attending school. She had been out of employment for a while and is now working as a meat-packer earning CAD$16.60 per hour with monthly income of around CAD$2,822 a month. Again, the absence from work during the trip might very well cost her the job and she cannot afford the costs, which would be similar in amount to that of Susan’s.

13.  It is undisputed that, though the applicant is legally aided, the costs of the 3 witnesses travelling to Hong Kong to give evidence would not be covered by Legal Aid.

14.  The 1^st respondent said that since the filing of the Affidavit, the inbound quarantine arrangements have been relaxed in that those inbound can now attend court during the 3-day quarantine period (with negative Rapid Antigen Test result each day), which would therefore shorten the length of stay required for the 3 witnesses. Be that as it may, such might reduce the total expenses by the costs of accommodation for 2 to 3 nights. However, the overall duration of the trip for the 3 witnesses, particularly for Susan and Justina, it seems to me, would not be much reduced from the witnesses’ estimates as they all budgeted their flight costs based on inexpensive indirect flights which have long layover periods and which usually depart and arrive at inconvenient hours. Thus, I do not think such recent relaxation has alleviated the 3 witnesses’ difficulties to any sufficiently significant degree.

15.  While it may be true as Ms Chan, counsel for the 1^st respondent, pointed out that in the nature of things the 1^st respondent was not in a position to proffer evidence to challenge the alleged personal financial and job situations of the 3 witnesses, that by itself is not a sufficient reason not to accept what was said in the Affidavit. I consider the costs estimated by the 3 witnesses are very modest (if not under-estimates) and without any exaggerations. Their personal circumstances deposed to in the Affidavit are detail. Moreover, from what they say in their witness statements it seems to me that they enjoyed a close relationship with the Deceased, such that I am inclined to accept what is said in the Affidavit that the 3 witnesses all wish very much to attend trial to seek justice and remedy for the death of the Deceased. Considering the matters above said, I accept the financial and personal situations of the 3 witnesses as sworn to in the Affidavit, and I therefore accept that their lack of financial means and their personal circumstances made it quite impossible, or would create such hardship to make it most difficult for them, to travel to Hong Kong to attend trial.

16.  Thus, refusing leave would essentially stifle the applicant’s claim.

17.  I also consider that there is some validity to the applicant’s point that there is a not negligible risk that the trial may be disrupted if at the time there were any adverse change in the inbound policy or quarantine requirements due to an upturn of the pandemic, or if one or more of the 3 witnesses unfortunately contracted COVID-19 around the time. This being a fatal case and the death had occurred more than 5 years ago, it is clearly very undesirable that there should be any further delay.

18.  Ms Chan has stressed to me that the 1^st respondent will suffer a disadvantage in cross-examining the 3 witnesses if their evidence is taken by video-link, in that the court would be deprived of the opportunity to observe them giving evidence under a solemn atmosphere, and that there might be a loss of spontaneity due to the quality of the link and interruptions due to technical problems. Those may be true to a limited extent. However, the court by now has had many opportunities of receiving evidence and observing witnesses by video-link and has become experienced and apt in assessing witnesses thereby. Moreover, with the screen captures of the large numbers of messages having been produced as above-mentioned, the determination of the issues in dispute could be assisted also by documentary evidence and not solely by the oral evidence, as the 1^st respondent said.

19.  Furthermore, appropriate directions can be given and measures put in place to minimize, if not to take away altogether, the above disadvantages.

20.  In the round, I am of the clear view that the course best calculated to achieve a just result for both parties is granting the leave sought.

21.  For these reasons, I thus granted the leave and made the said directions.

22.  At the hearing, the 1^st respondent asked the costs of the hearing be made in the cause as well. I do not think it appropriate because, in my view, having considered the contents of the Affidavit, the 1^st respondent should not have contested. I therefore made the costs of the hearing to follow the event.

23.  I thank Ms Chan and Ms Tsao for their assistance.