LAI SHUI YIN v. JIANG GUO YING AND LEE KAI KWAH IN THE CAPACITY OF CO-ADMINISTRATORS OF THE ESTATE OF LEUNG WAI KAY Deceased

HCA 2414/2009

[2022] HKCFI 2643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2414 OF 2009

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DECISION

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1.  This is the plaintiff’s application for leave to allow one of her witnesses at trial, Madam Leung Luen Foon, to give evidence at the upcoming trial scheduled to commence on 19 September 2022 via video conferencing facilities (“VCF”)  from Vancouver, Canada where Madam Leung currently resides with her husband.

2.  The basis for the application is that Madam Leung wishes to stay in Vancouver to take care of her husband whose health has recently deteriorated.  Her husband has symptomatic hypertension and unstable blood pressures requiring regular medical check-up.  There is a risk that he may have a fall due to his low blood pressure.  His medical condition requires close monitor, and Madam Leung has been excused from work so that she can take care of her husband.  He has visited the emergency room twice in the past two months.  In July this year he had a stroke of medium to serious degree for which he had stayed in hospital for about a week.  Currently he has difficulty with speech and movement and is at home receiving physiotherapy. Advanced medical orders for scope of his treatment have been issued, authorizing (if required)  critical care interventions including intubation.

3.  Madam Leung and her husband are both 67 years old.  They were married for 30 years.  Madam Leung has been the primary carer of her husband.  She cannot afford private professional care for her husband.  Their son lives an hour’s drive away and has his own work and life to attend to.  There is no friend or relative close by who can provide close care to her husband.  Arranging social welfare care takes time.

4.  Madam Leung is unvaccinated against Covid-19 and this increases her risk of infection particularly given her age.  Any infection will prolong her separation from her husband.  Other than providing the close monitor and care that her husband requires, Madam Leung also needs to be around him all the time so that any decision and consent to emergency medical treatment on him could be given by Madam Leung without delay.

5.  I am guided by the principles summarized in Tsang Woon Ming v Lai Ka Lim & Ors [2020] HKCFI 891 at [9].  The usual rule is for a witness to give evidence in the solemnity of a Court setting.  That said, this is not an inflexible rule.  The use of VCF is in line with, and is in furtherance of, the Court’s duty to actively manage cases under RHC Order 1A rule 4 and Order 1B rule 1, and is a growing trend in modern Court litigation.  VCF can be especially helpful in testing times such as the present, when the Covid-19 pandemic and the resultant health hazards and travel restrictions discourage or even prevent persons from travelling to Hong Kong.  Ultimately it is for the Court to decide, upon a holistic consideration of all the circumstances, the mode of taking evidence which best achieves a fair result and secures a just resolution of disputes.

6.  On the present facts, I am of the view that leave should be granted for Madam Leung to give evidence at trial via VCF.  The need for Madam Leung to remain with her husband in Vancouver as his primary carer, the health hazard to her if required to travel, and her prolonged separation from her husband if she is infected with Covid-19 whilst in transit or in Hong Kong, are genuine concerns and supported by evidence, and constitute good reasons for leave to be granted.  It is unrealistic for the defendants to contend that well ahead of trial Madam Leung should have made prior arrangements to travel to Hong Kong together with her husband just so that she could give evidence physically at trial.  The suggestion that Madam Leung could keep contact with her husband from Hong Kong and give “accurate” instructions concerning his medical care through video call ignores the natural stress and worries in her mind of not being able to be physically with him if his health condition deteriorates and emergency treatment is required, which in turn naturally affects the quality of her evidence.  That is not to say that a witness should be allowed to freely dictate whatever venue that suits his or her comfort for giving evidence.  However, where circumstances such as the present suggest that the mind of the witness may be affected by a justified concern of being physically separated from a spouse in need of constant care and attention, the Court should accommodate as far as the circumstances may warrant, so as to ensure the quality of the evidence and secure the just resolution of disputes.

7.  Whilst Madam Leung’s factual evidence and credibility will no doubt be subject to challenge by the defendant, the defendants are not suggesting that cross-examination of Madam Leung would not be effective if her evidence is given via VCF.  The defendants contend that Madam Leung’s reaction and expression to questions will be more “transparent” when she is physically in Court.  One cannot overplay the importance of demeanor of witnesses in assessing credibility in modern litigation.  Recent Court experience in conducting remote hearings also to a large degree dispels previous doubts over the quality of evidence given via VCF, in light of modern technological advancements.

8.  For all of the above reasons, it is in the overall justice that I should allow the application.  Parties are to submit an agreed draft Order setting out the precise date, time and mode of taking Madam Leung’s evidence via VCF by 4 pm on 31 August 2022 for the Court’s approval.  All necessary arrangements for testing are to be made with the Court clerk and the Technology Court well before trial commences.  Costs of the application shall be in the cause.