CARMON REESTRUTURA-ENGENHARIA E SERVIÇOS TÉCNICOS ESPECIAIS (SU) LIMITADA v. CARMON RESTRUTURA LTD AND ANOTHER

HCA 1812/2022

[2026] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1812 OF 2022

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BETWEEN

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D E C I S I O N

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I.  INTRODUCTION

1.  Before me is the 1^st and 2^nd Defendants’ (collectively, the “Defendants”) application by Summons filed on 19 December 2025 for video conferencing facilities (“VCF”) in respect of their expert witness and one of the factual witnesses.

II.  LEGAL PRINCIPLES

2.  The legal principles in relation to a VCF application have been set out by Anthony Chan J (as he then was) in Re Chow Kam Fai [2004] 2 HKLRD 260; Mahajan v HCL Technologies (Hong Kong) Ltd [2010] 5 HKLRD 119 and Daimler AG v Leiduck (No2) [2013] 2 HKLRD 822 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).”

III.  DELIBERATION AND DISPOSITION

3.  The Plaintiff itself obtained a VCR order from me on 16 December 2025 for its expert witness who is resident in Angola. The Defendants’ expert witness is also resident in Angola. Travelling time and costs have been identified as the difficulty for the Defendants’ expert witness to come to Hong Kong. Given that the Plaintiff’s neutral stance and that the Plaintiff’s expert witness would also give evidence via VCR, I am satisfied to, and so I do, grant an order of VCF for the Defendants’ expert witness.

4.  In respect of the VCR application for the factual witness Mr Patrick Kwai On Law (“Patrick Law”), the Plaintiff also takes a neutral stance. He lives in Hong Kong. The reason for the application is that he “would encounter difficulties in giving evidence in person due to his personal obligation to look after his son, particularly as he has to supervise him for his schooling and is unable to acquire a substitute caretaker [during the trial period] from 26 January to 5 February 2026”.

5.  While I agree that his evidence for trial should be brief and he is not the main witness, I am unable to accept the alleged difficulties as a sufficient reason in support of an application of VCF for a witness living in Hong Kong. While I would understand that a parent has onerous and time-consuming duty towards his or her children, at least in the circumstances of the present case, I do not see this as a good reason for VCF because:-

(1)  The trial dates have been fixed a long time ago. There is no evidence as to what arrangement has been attempted for finding a substitute caretaker (e.g. his parents, his parents-in-law, his relatives, his friends).

(2)  There is also no evidence as to why he could not even take a few hours for giving evidence in Court.

(3)  In any event, his child will have to be in school during school time. Given the brevity of his evidence, parties should be able to agree to a time slot specifically for his evidence to be taken during the school time so that the least disturbance would be caused to the witness’ duty to take care of his child.

6.  Although Patrick Law’s evidence is brief and he is not the main witness, however, bearing in mind that “The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence” (see §2(4) above), that he is resident in Hong Kong, and that his alleged difficulty is, as I found, not a good reason for VCF, and in any event, his difficulty could be addressed by assignment of a time slot for him specifically, I refuse the application for VCF for Patrick Law.