史超 v. 均富有限公司 AND ANOTHER

DCCJ 5015/2017

[2023] HKDC 1472

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5015 OF 2017

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REASONS FOR DECISION

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BACKGROUND

1.  This is the plaintiff’s application to give evidence by video conferencing facilities (“VCF”) at the trial which is fixed for 7 days from 25 October 2023 to 2 November 2023 (the “Application”). Summons for this Application was filed on 25 August 2023, 10 days before the Pre-Trial Review which took place before me on 11 September 2023 (“1^st PTR”). The Application is contested by the 2^nd defendant. As I have raised some requisitions which required time for the plaintiff to answer them, hearing of the Application, and the 1^st PTR, were adjourned to 11 October 2023 (“2^nd PTR”), i.e., 14 days before the trial is scheduled to start. Directions were given to the plaintiff and the 2^nd defendant on the filing of affirmations respectively in support and in opposition to the Application, and the lodging of written submissions from their counsel.

2.  At the 1^st and 2^nd PTRs, the plaintiff was represented by counsel Mr Stephen Siu (“Mr Siu”), and the 2^nd defendant was represented by counsel Ms Tania Tse (“Ms Tse”). The 1^st defendant was represented by its director Mr Leung Chi King (“Mr Leung”).

3.  In compliance with the court’s directions, the plaintiff has prepared 2 affirmations in support of the Application; in opposition of the Application, an affirmation was filed by a member of the 2^nd defendant, Mr Chong Siu Chong (“Mr Chong”), on 4 October 2023.

4.  As I have proposed at the 1^st PTR, the Reasons for Decision on this Application would be given in English, despite the 1^st defendant is not legally represented, and in spite of most of the documents in the present action being prepared in Chinese. The reasons for writing this decision in English are: (1) Mr Leung had indicated at the 1^st PTR that the 1^st defendant has no objection to the Application; (2) the authorities cited by the plaintiff’s and 2^nd defendant’s counsel are in English; and (3) the medical report prepared by Dr Constance Ovueni (“Dr Ovueni”) in support of the Application is in English. The parties, including Mr Leung, have no objection to my proposal. If necessary, arrangement could be made for this Reasons for Decision to be interpreted to Mr Leung in Chinese.

5.  At the end of the 2^nd PTR, I have dismissed the Application with written reasons for such decision to be handed down. This I now do.

THE APPLICATION

6.  As aforesaid, the plaintiff seeks to give evidence at trial via VCF. He is now residing in Calgary, Alberta, Canada, and has taken his residence there since May 2022. His emigration was said to be caused by his mental disorder, specifically depression and anxiety disorder, that he was diagnosed with in 2020 when he was living in Hong Kong. Records showed that he had received treatments and medications from South Kwai Chung Jockey Club General Out-patient Clinic (“SKCJCGOC”) for his mental conditions between 21 August 2020 and 25 March 2022.

7.  During his flight to Canada on 29 May 2022, the plaintiff said he had experienced heightened anxiety, and he was able to calm down only with repeated intake of sleeping pills during the journey. He could not seek immediate medical attention for his anxiety problems after he landed in Canada, due to the quarantine requirement imposed by the local authority amid the COVID epidemic. Even after completing the 21-day quarantine period, he was made to wait in line for his first appointment with Dr Ovueni, which took place on 12 September 2022.

8.  At the initial consultation, Dr Ovueni opined that the plaintiff’s condition was serious, hence follow-up sessions were fixed for 30 September 2022 and 20 October 2022. Once Dr Ovueni was satisfied that the plaintiff’s condition had turned stable, follow-up treatments were arranged at the intervals of 2 to 3 months.

9.  However, the plaintiff’s mental condition has deteriorated since May 2023, which warranted increased treatment sessions with Dr Ovueni. The plaintiff was seen by Dr Ovueni on 23 May 2023, 30 May 2023, 12 June 2023, 31 July 2023 and 14 August 2023^[1].

10.  In view of the plaintiff’s anxiety and depressive symptoms not being well controlled, Dr Ovueni had in her report dated 17 August 2023 (“1^st Medical Report”) advised against him traveling to Hong Kong, as it could worsen his symptoms.

11.  At the 1^st PTR, I had raised my concern with Mr Siu as to whether the plaintiff’s mental conditions would render him being unable to give and/or complete his evidence at trial, even via VCF. My concern is founded on the possibility that, given the deterioration of his conditions, he may not be able to cope with the inevitable stress and pressure that come with giving evidence at trial and being cross-examined. If that was the case, the Application, even if granted, would be redundant.

12.  For these reasons, I had requested for a further medical report from Dr Ovueni addressing on the following questions: (1) whether the plaintiff is suitable to give evidence at trial; (2) if the answer to (1) is affirmative, reasons as to why he is suitable to give evidence at trial but not to travel; (3) estimation as to when the plaintiff would be able to travel and/or give evidence at trial; (4) if he was able to give evidence at trial, whether he could do so from 7:30 pm to 2:30 am Calgary time^[2]; and (5) when was it diagnosed that the plaintiff could not travel back to Hong Kong by aeroplane and/or to give evidence at trial.

13.  Dr Ovueni provided another report dated 14 September 2023 (“2^nd Medical Report”). In it, she mentioned about the plaintiff’s previous treatments in Hong Kong, and the medications he had received then and the medications he is currently on. She mentioned about the plaintiff’s significant anxiety symptoms with traveling by air, and remarked that he could testify via VCF. Dr Ovueni concluded with the opinion that since anxiety disorder and depression are chronic conditions and require ongoing management, she is unable to estimate as to when the plaintiff could travel by aeroplane again.

2^ND DEFENDANT’S OPPOSITION

14.  Mr Chong, in his affirmation, challenged the plaintiff’s claim that he was suffering from mental disorder, citing the plaintiff’s narrative on how he had to travel back to Hong Kong from the United States of America (the “U.S.A.”) on or about 20 May 2017 to deal with the alleged situation which gave rise to the claim herein^[3]. In addition, Mr Chong queried whether the plaintiff had sought treatment from Dr Ovueni within a reasonable time after his alleged heightened anxiety disorder during his flight to Calgary.

15.  Further to the above, Mr Chong emphasised on the lack of evidence to show when the plaintiff’s conditions deteriorated to the extent that they would be worsened by traveling.

LEGAL PRINCIPLES

16.  I will first refer to the principles applicable to the Application. These principles have been summarised by Anthony Chan J in the case of Re Nobility School Limited [2020] HKCFI 891 at §9: -

“9. The applicable legal principles were considered by the Court of First Instance in Sun Legend Investments Ltd v Ho Yuk Wah [2007] 4 HKLRD 239, §12 and Re James Henry Ting [2013] HKCFI 1569, §§28-30, and by the Court of Appeal 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 (No 2) [2013] 2 HKLRD 822. The principles may be summarised as follows:

(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).” (emphasis added)

17.  The above summary was adopted by Au-Yeung J in the recent case of Pacific Bulk Supramax Company Limited v Wong Man Kam Patrick & Anor [2023] HKCFI 1973^[4].

18.  In general, an applicant should provide valid reason for the use of VCF, but the threshold for valid reason is not a high one^[5]. Nevertheless, Anthony Chan J at §10 of his ruling in the Re Nobility School Limited said that when the exercise is a holistic one balancing the countervailing interests before the court, it may not be very useful to focus on the threshold for a valid reason for the use of VCF.

19.  Despite the importance for a witness to be examined under the solemn atmosphere of the court, especially in cases where credibility of the witness is seriously contested, and notwithstanding the norm in Hong Kong in the taking of viva voce evidence in person both in civil and criminal trials^[6], recent cases showed that the courts have placed less weight on these factors in light of the availability of VCF^[7]. That being so, Deputy High Court Judge Herbert Au-Yeung had in the case of Esports Business Development Ltd v Wong Chun Yee Christopher [2022] HKCFI 2627 echoed on what Anthony Chan J had said in Re Nobility School Limited on the potential of creating injustice in form of the witness who gives evidence by VCF: -

“25. In this regard, I echo Anthony Chan J’s view expressed in Re Nobility School Limited (supra) that “there will likely be interruptions of the evidence due to, eg, quality of the audio, and such interruptions will normally be to the disadvantage of the cross-examiner”. Indeed, judging from my own experience, the usage of VCF may be an advantage to the witness, because any problem in the internet connection (which may arise at any time and from time to time) may interrupt the transmission of the video signal. The screen may be “freezed” during the cross-examination as a result. The questions or answers asked/given may be “lost” in the process. This may deprive the court and the examiner the chance to observe the immediate reaction of the witness when certain questions are asked. Such sudden loss of signal may also lead to suspension of the court proceedings, and this in turn may give the witness a longer time to think about his/her answer to the question just asked by the examiner. If the witness alleges that he/she cannot hear a question clearly, it is also very difficult if not impossible to verify whether such an assertion is real, and whether he/she is just buying time to figure out what to say in response to a question.

26.  Furthermore, giving evidence at any place other than the court room would also tend to reduce the formality of the court proceedings. This will create an injustice situation in favour of the witness who gives evidence by VCF.”

20.  Apart from the above, when considering an application for the use of VCF, the matters under §5 of Practice Direction 29 have to be considered:

(1)  the views of all the parties;

(2)  the availability of the Technology Court;

(3)  the subject-matter of the proceedings or the relevant part of the proceedings; and

(4)  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 proceedings.

DISCUSSIONS

21.  I will start the discussions with a clarification to the parties that availability of the Technology Court is not a matter of concern in our case, since equipment for the use of VCF is readily available in the District Court.

22.  As to the oppositions from Mr Chong summarised in §14 of this Reasons for Decision, I think they are satisfactorily answered by the plaintiff. His mental disorder started in 2020, thus the fact that he could travel from the U.S.A. to Hong Kong 3 years prior (in 2017) is neither here nor there. I accept the plaintiff’s explanation as to when he started his treatments with Dr Ovueni, and why he did not receive the treatments immediately or shortly after landing in Calgary.

Requisitions not answered

23.  What continues to trouble me is the outstanding answers to the requisitions I had raised at the 1^st PTR, in particular requisitions (2), (4) and (5). As I have explained to Mr Siu at the 1^st and 2^nd PTRs, these requisitions were raised with a bigger picture in mind other than the Application. The mental conditions of the plaintiff, suggested to be serious enough for Dr Ovueni to advice against traveling by aeroplane, may also prevent him from giving and/or completing his evidence at the trial (even via VCF). If so, granting the Application and allowing the use of VCF would be useless; it would neither enable disposal of the proceedings (not to mention that it could not bring about efficient disposal of the same), nor would it achieve the purpose of saving costs (instead, it could bring about unnecessary escalation of costs). And at worst, proceeding with the trial under these circumstances may possibly materially delay disposal of the proceedings. For example, if the plaintiff’s mental conditions caused the trial having to be adjourned part-heard (and possibly for an indefinite period as Dr Ovueni could not in her 2^nd Medical Report provide any estimation as to the time for improvement of the plaintiff’s conditions) in the middle of his evidence, the efforts put in, the time spent, and the costs incurred, by the parties for preparation of the use of VCF, would all be wasted. Moreover, adjourning the trial part-heard in the middle of the plaintiff’s evidence would bring about undesirable results and is most unfavourable and prejudicial to all parties. Obviously, these matters, which Mr Siu has accepted as valid matters of concern, were not considered by the plaintiff and his team of legal representatives before and at the time when the Application was taken out.

24.  Unfortunately, the court’s concerns and the related requisitions were not answered by Dr Ovueni in the 2^nd Medical Report. Mr Siu could not explain why the doctor has failed to do so, although he reported to me that the requisitions were conveyed to her.

25.  I have no confidence in relying solely on the passing remark from Dr Ovueni that the plaintiff could testify via VCF. She had provided no basis on which such opinion is founded on. Nothing is said, for example, that the plaintiff’s conditions would enable him to endure the stress and anxiety of having to give evidence and/or be cross-examined by his opposition. Neither is there any assurance that the plaintiff’s depressive and anxiety symptoms would not be worsened by it, nor is there any explanation as to why his symptoms would only be worsened traveling by aeroplane.

26.  In addition, the 2^nd Medical Report has failed to address on the question as to whether the mental conditions of the plaintiff could allow him to stay up until the wee hours of the morning to give his evidence.

27.  Mr Siu submitted that Dr Ovueni had explained to the plaintiff that his mental conditions originated from his fear to travel by air. I do not accept it. First, this is not stated in the 1^st and 2^nd Medical Reports. Second, if it was true, there is no reason why Dr Ovueni had not expressly stated so in her 2^nd Medical Report, when she was asked and had the opportunity to elaborate on the cause of the plaintiff’s deteriorated mental conditions. Third, from the new evidence produced by the plaintiff, his mental disorder started in 2020, with no indication that the same was caused by him having travelled by air at or about the material time. Fourth, when his mental condition started to deteriorate in May 2023, again, there was nothing to show that he had at or about that time travelled on aeroplane. Conversely, it is the plaintiff’s own assertion that he had not travelled by aeroplane since May 2022.

28.  I shall add that the reasons in the preceding paragraph fortified my concern on the plaintiff’s ability to give evidence at trial (again, even via VCF). His mental disorder is clearly not limited to the alleged fear of traveling by aeroplane. His conditions were already serious before he travelled to Calgary in May 2022, when the treatments and medications he received from SKCJCGOC since August 2020 were seemingly not enough, so that he found it necessary to emigrate to Calgary in May 2022 amid the ongoing litigation, and the world-wide COVID epidemic at that time. And even with such change of living environment, together with the treatments he was receiving from Dr Ovueni, his mental conditions started to deteriorate in May 2023. On this point, nothing is said in the 1^st and 2^nd Medical Reports as to the cause of it. I do not accept the plaintiff’s narrative that Dr Ovueni had told him the deterioration was due to his fear of travelling on aeroplane.

29.  For these reasons, I am not convinced that the plaintiff could attend the proceedings and give his evidence at trial via VCF. I am therefore also not persuaded that granting the use of VCF at trial would promote efficient disposal of the proceedings and/or to save costs. As I have also explained, allowing the plaintiff to give evidence at trial by granting of the Application could possibly bring about undesirable results and to delay disposal of the proceedings.

Valid reason for the Application

30.  Notwithstanding my views above, I have also considered the Application adopting the principles set out in the above. Mr Siu submitted that, the Court be required to proceed on balancing the countervailing interests only if it has accepted that there was a valid reason for the Application. In other words, the Application should be dismissed if the Court found that there is no valid reason for it. Ms Tse has no quarrel with such approach.

31.  I was informed by Mr Siu at the start of the 2^nd PTR that, should the Application be refused^[8], the plaintiff would return to Hong Kong to attend the trial in person. Upon the Court’s inquiry, Mr Siu explained that the plaintiff could try taking shorter transiting flights from Calgary to Hong Kong. And if the plaintiff could not complete the journey due to his mental conditions, he has instructed his lawyers to proceed with the trial without him giving evidence.

32.  These suggestions are most remarkable; they have vanquished the plaintiff’s case on the valid reasons for the Application.

33.  First, the plaintiff’s willingness to try flying back to Hong Kong to attend the trial demonstrated that it is not a case where he could not travel by aeroplane at all. In fact, this magnified a glaring flaw in the plaintiff’s case: Dr Ovueni had never suggested in her 1^st and 2^nd Medical Reports that the plaintiff could not travel by air. She only said that travelling by air could worsen his symptoms. Mr Siu tried to salvage the plaintiff’s case by submitting that Dr Ovueni’s advice was only against long-haul flights; I cannot find this in the 1^st and 2^nd Medical Reports. Nevertheless, should I accept such submissions, they do no good to the plaintiff’s case. He should have long considered and prepared to take shorter transiting flights to Hong Kong, instead of making the Application.

34.  Second, if, by the said suggestions, the plaintiff considered the trial could be carried on without him giving evidence, there is no point at all in taking out this Application. Mr Siu’s repeatedly emphasis on the plaintiff having a valid reason to give evidence via VCF is obliterated, and his submissions that the denial of the Application would be prejudicial to the plaintiff are now rendered pointless.

35.  For these reasons, I find that there is no valid reason for the Application. Adopting Mr Siu’s earlier submissions, the Application should be dismissed.

Late Application

36.  Although I have already formed a view that the Application should be dismissed, the discussions under this head could serve as a reminder to litigants about the necessary preparations, and the time required for them, in this kind of application.

37.  Ms Tse has, in her submissions, complained of the lateness of the Application. Mr Siu retaliated that taking out of the Application at the 1^st PTR was already anticipated in the plaintiff’s Listing Questionnaire^[9] and granted by the Master in his Order Nisi dated 15 December 2022^[10]. Mr Siu conceded that the Application was made out of time, but it was a mere few days after the deadline prescribed by the Master.

38.  I do not entirely agree with Mr Siu. First, the direction of the Master expressly stated that the Application should be taken out not less than 28 days before the 1^st PTR. It says nothing that the Application should be taken out on the 28^th day before the 1^st PTR.

39.  Dr Ovueni, notwithstanding requisition (5), has failed to say in the 2^nd Medical Report as to when she came to the view that the plaintiff ought not travel back to Hong Kong by aeroplane. According to the plaintiff, he was so told in late July 2023^[11]. Assuming that this was the case, no reason is provided as to why the Application could not be taken out in early August 2023, but he had to wait for approximately one month to do so, i.e., on 25 August 2023. In addition, contrary to what Mr Siu said, the Application was not taken out a few days after the deadline. The deadline, i.e., 28 days before the 1^st PTR on 11 September 2023, fell on 14 August 2023. The plaintiff was 11 days late. Again, no explanation is provided for such delay.

40.  Furthermore, I agree with Ms Tse’s submissions that the timing of the Application is prejudicial, since, if the Application was allowed, the 2^nd defendant would only have 14 days before the start of trial to make their arrangements. The 2^nd defendant may not have sufficient time to arrange for their legal and technical personnel to travel to Calgary, so as to assess the conditions and propriety of the plaintiff’s proposed arrangements, including the setting of the venue, the testing of the equipment, the integrity of the trial bundles for the plaintiff to use at trial, and in the case of discovery of any problem, to take instructions, explore alternative arrangements by consent or, in the absence of consent, to apply to the court for further directions. These complaints were considered valid and forceful by Peter Ng J in the case of Wang Rongan v Silver International Investment Limited [2021] HKCFI 3198 at §§3, 4 and 24, in dismissing the VCF application.

41.  Mr Siu tried to distinguish the Wang Rongan case from the present one, in that the witnesses whom intended to give evidence via VCF in that case would be doing so from a commercial unit in Shenzhen. This is unlike the present case, where the plaintiff intended to give his evidence from a lawyer’s office and in the presence of its staff. When I inquired whether Mr Siu was suggesting that a party from the other side need not, or should not be allowed to, undertake the exercises as stated in §40 above, so long as a witness would be giving his evidence via VCF at a law office, he clarified that this was not his stance. As such, I see no reason to entertain such submissions.

42.  Pausing here, I shall add that when the Application came before me at the 1^st PTR, there was no suggestion as to where and how, and other necessary and practical arrangements, for the plaintiff to give his evidence via VCF in Calgary. When I raised these questions with Mr Siu at the hearing, he was apparently in a blank and was unable to give me any answer. These are matters that the plaintiff and his legal team should have already considered, and should form part of their preparation in support of the Application. It was only during the adjournment, and by the plaintiff’s second affirmation dated 19 September 2023, that the court and the 2^nd defendant were informed that the plaintiff could give his evidence at the office of a lawyer in Calgary, and doing so in the company of a lawyer or a clerk of the firm. The failure to have these arrangements in place at the 1^st PTR contributed to the need to have the Application delayed, and have shortened the time for the 2^nd defendant to make their corresponding arrangements as envisaged in §40 above. And to have these corresponding arrangements completed within a span of 14 days from the 2^nd PTR to the first day of trial, would be a mission difficult if not impossible.

43.  In light of the above, I do not see how Mr Siu could argue that the Application was not a late one. I agree with Ms Tse that the timing of the Application, together with the belated necessary arrangements to enable the plaintiff to give testify via VCF from a foreign country, are prejudicial to the 2^nd defendant, so much so that it ought to be dismissed.

CONCLUSION ON THE APPLICATION

44.  For the reasons above, the Application is dismissed. Costs of the Application shall be paid forthwith by the plaintiff to the 2^nd defendant, with certificate for counsel. The 2^nd defendant's costs will be summarily assessed on 25 October 2023, i.e., at the first day of trial.

45.  As agreed, there be no order as to costs of the Application between the plaintiff and the 1^st defendant.

46.  The Application was heard at the 1^st and 2^nd PTRs. Apart from the Application, time was spent on the usual pre-trial review matters, that should not form part of the costs of the Application. To make it easy for the Taxing Master when the time comes for the taxation of the costs of this action, I should herein make clear that for the 1^st PTR, 20 minutes were spent on the Application. And for the 2^nd PTR, 2 hours and 10 minutes were devoted to the Application. Hence, for the balance of the time spent at the 1^st and 2^nd PTRs, they should fall within costs in the cause, and to be taxed accordingly after conclusion of this action.

47.  Lastly, I thank Mr Siu and Ms Tse for their assistance.