ASIA PAC INFRASTRUCTURE DEVELOPMENT LTD v. ING YIM LEUNG, ALEXANDER AND OTHERS

HCA 16778/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16778 OF 1999

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BETWEEN

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REASONS FOR DECISION

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This case

1.  It is somewhat unusual for a Decision made at a Case Management hearing to be the subject of detailed written Reasons handed down thereafter.

2.  However, the Decision in question has as its focus two significant and not unimportant issues in terms of civil procedure:

first, whether a first instance judge has jurisdiction to set aside an earlier case management Order made by a judge of co-ordinate jurisdiction; and

second, the circumstances in which it is appropriate to permit the use at trial of video-conferencing facilities (hereafter ‘VCF’), thereby enabling a viva voce witness – who for reasons entirely personal to himself refuses or is disinclined to come to Hong Kong to attend trial - to give his evidence via the electronic/digital medium as opposed to sitting in the witness box in court.

The factual background

3.  HCA 16778 of 1999 is a case of some history (and obvious antiquity).

4.  For present purposes there is no necessity to delve into the background in detail; suffice it to say that it involves a claim, issued in the General High Court List well over a decade ago, wherein the plaintiff company makes claims against the individual defendants for breach of various duties said to be owed by the defendants qua employees in that these defendants are said to have stolen or converted for their own benefit emerging business opportunities which had been created/developed by the plaintiff. The value of the claim itself is put at approximately HK$30 million.

5.  For their part the defendants say – and once again I purport to do no more generalize – that these emergent business opportunities were in fact their creation/idea, and thus that the plaintiff’s present claim is wholly unfounded.

6.  In reality, the broad ‘shape’ of this case represents a fight between the plaintiff company, at the material time beneficially owned by one Mr David Ho, and the 1^st and 2^nd defendants, Mr Ing Yim Leung and Mr Lee Kok Lam respectively, the corporate defendants (or, at the least, those that currently remain in existence) being alleged to have been the corporate vehicles used by the 1^st and 2^nd defendants, qua shareholders, directors and senior management of the plaintiff, to facilitate their alleged breaches of contractual/fiduciary duty.

7.  In short, this case is of a type which often comes before these courts; obviously this particular matter is considerably more factually complex, but for current purposes the foregoing ‘thumbnail’ sketch will suffice to place in context the arguments advanced regarding the intended utilization by Mr Ho of VCF.

8.  Because it transpires that Mr David Ho – who is to be the sole viva voce witness for the plaintiff in its pursuit of this claim – was and apparently remains unwilling to come to Hong Kong to give evidence, and wishes to give evidence by VCF link from Beijing, which is where, I am given to understand, he now lives and works.

9.  There is no secret about Mr Ho’s reluctance to get on a plane and make the short journey to Hong Kong: fundamentally this is because he had made it clear to the corporate plaintiff – in which it is said that he no longer has any beneficial interest, nor is he an employee or director thereof, having sold the company – that owing to an unsatisfied judgment debt in Hong Kong which stands against him in relation to litigation unrelated to the plaintiff’s claims in this action, he was unwilling to set foot in the territory in order to attend at the trial and to give oral evidence.

10.  Accordingly, as the accumulated case papers reveal, in due course an application was made by the plaintiff for Mr Ho to be permitted to do exactly that: he would give his evidence in a location in Beijing, which would be beamed to Hong Kong, and the facilities of the new Technology Court could be utilized to facilitate this process; in fact it was, I think, suggested that so good is modern technology, and so good would be the ‘feed’, that in practical terms there would be little if any difference between Mr Ho appearing on a big screen as against physically being present in court.

11.  After hearing this application on behalf of the plaintiff to permit Mr Ho to give evidence by VCF link, after considering all the evidence placed before him Mr Justice To, the judge then seized with the application, acceded to the argument, and made an Order dated 4 November 2009, the relevant part of which records (at paragraph 1) that:

“the video conferencing system in the Technology Court be used at the trial of this action in conjunction with services provided by a commercial service provider, permitting oral evidence to be taken from Mr Ho Yuk Wah, David, the Plaintiff’s witness, in Beijing, the People’s Republic of China;”

12.  It is unclear why as a matter of listing that this case did not remain with Mr Justice To, who it seems had been case managing this litigation for a period at least, albeit, since this cause had been set down in the General List, I suspect that various Masters also have had input at different stages, and that unlike the situation in the specialized Lists, such as the Commercial List, no ‘docket system’ existed, so that there was not one judicial mind at work in determining how this case was to be managed and to get to trial, and indeed the manner in which the trial ultimately was to be conducted.

13.  I pause to observe that in my view the sooner a ‘docket system’ formally is instituted in the General List in instances of lengthy and complex cases the better for the administration of justice – but that, no doubt, is to exceed my present remit and is a matter for others to decide.

14.  In any event, this litigation – the trial of which now is set down for 15 days commencing on 4 January 2011 – did not stay with Mr Justice To.

15.  I have no idea why this was the situation, and most certainly this can be no adverse reflection upon the learned judge – but for reasons unknown to me this General List case thereafter was set down to be heard in the Commercial Court, albeit this court had had no contact whatever with this litigation until the designated 15 days suddenly materialised in this court’s diary, the hearing being set to commence on 4 January 2011.

16.  Accordingly, at this stage having had no sight of the papers, and knowing nothing whatever about the case, this court called for a Case Management Conference initially held on 18 October 2010, at which it was anticipated that the court would be brought up to speed with the subject‑matter and the progress/management of the case to-date.

17.  I make no complaint about the assistance the court received at that first case management hearing on 18 October, which was attended by the then solicitors for the parties, Mr Darton for the plaintiff and Mr Law for the defendants, save for the 2^nd defendant, who then, as now, was represented by by junior counsel Mr Jason Wong, since it appears at least a possibility that a conflict of interest may exist between the 1^st and 2^nd defendants.

18.  In the course of that initial case management hearing before this court on 18 October 2010 specific reference was made to Mr Justice To’s earlier Order permitting use of the Technology Court to facilitate the giving of Mr David Ho’s evidence; having seen the issues on the pleadings, which inevitably involved fundamental credibility matters, I confess that this court was uncomfortable about the existence of this earlier Order, and indeed Mr Vincent Law of Mayer Brown JSM (whose firm no longer is on record for the defendants he then represented) raised this particular issue, firmly asserting that it was open to this court to revisit and to change that Order if it was so minded.

19.  This matter thus was left on the basis that if the parties wished to make further submissions on this issue, and in particular as to the jurisdiction of this court to reconsider the point, they could make appropriate application.

20.  However, after completing this first case management hearing this court further reflected on the matter, and by letter dated 26 October 2010 wrote to the parties requesting that they attend and re‑argue the issue, this letter indicating (at para 4 thereof) that the court had come to the view that jurisdiction did exist to vary a prior case‑management decisions notwithstanding that such prior decision had been made by a court of co-ordinate jurisdiction by the judge then seized of the matter.

21.  This therefore is the sequence of events which led to the subsequent hearing on 8 November 2010, at which the entire question of evidence given by VCF by Mr Ho was revisited; at this hearing the plaintiff (which wished to maintain Mr Justice To’s earlier Order) was represented by Mr Manzoni, whilst the 1^st, 4^th- 6^th , and 9^th -10^th defendants (who wished it to be varied to require Mr Ho to attend to give evidence) were represented by Mr Jason Pow SC, and the 2^nd defendant, as before, by Mr Jason Wong.

22.  At the conclusion of the argument this court made the following Order:

The Order of Mr Justice To dated 4 September 2009 be varied by Stone J (as the judge having responsibility for the trial of this action) and be set aside with immediate effect, with costs to be reserved to the Reasons for Judgment to be handed down.

23.  I now formally give the Reasons for the decision as thus made, together with making an order nisi as to costs of this hearing.

(a)  Jurisdiction

24.  The question of the jurisdiction of this court to revisit an earlier Order as made by a court of co-ordinate jurisdiction was ventilated.

25.  For the plaintiff, Mr Manzoni observed that Mr Ho had taken a similar stance in other Hong Kong litigation to which he is a party, and that not only had To J allowed him to give evidence by VCF in the present case, but Madam Justice Chu had ordered likewise regarding the very same Mr Ho in another case, Sun Legend Investments Ltd v Ho Yuk Wah David & ors [2008] 4 HKC 98.

26.  Mr Manzoni submitted that the correct approach for the court to take is that the court does have jurisdiction to reconsider case management decisions, in the sense that there is no issue estoppel or res judicata principle attached to such decisions so as to preclude such consideration but – and submitted Mr Manzoni this was a big ‘but’ ‑ that such jurisdiction should be exercised only upon what now have become well-established and accepted principles, citing in this context Roult v North West Strategic Health Authority [2009] EWCA Civ 444, which held that the jurisdiction so to revisit was based upon erroneous information (accidentally or deliberately given) or where subsequent events, unforeseen at the time the original order was made, had destroyed the basis on which that order was made.

27.  Hence, said Mr Manzoni, if all that was sought was a reconsideration of the order in question on the basis of the same material before the original judge, then such reconsideration only could be done within the context of an appeal.

28.  Similarly, he submitted, it was not open to a party to the earlier application in effect to seek to reargue that application by relying on submissions and evidence available to him at the time of the earlier hearing but which, for whatever reason, he or his legal representative had chosen not to employ: per Patten J in Lloyds Investments (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch.), approved in Collier v Williams [2006] EWCA Civ. 20.

29.  Mr Manzoni insisted that despite the protestation of the 2^nd defendant, the original decision of To J was not based on erroneous information, and that there had been no change of circumstance so as to destroy the basis upon which it was made. Mr Justice To had exercised his discretion, and now there was nothing before this court which justified arbitrary departure therefrom.

30.  Moreover, in circumstances in which the decision in question had provided the basis on which all preparation for trial had been made, it simply was not appropriate for this court now to alter the basis upon which the parties have approached the trial, and to seek to prevent Mr Ho from doing that which earlier expressly he had been permitted to do, in this context citing the observations of Tang VP in Lu Guo Xiang v Hong Kong Ming Wah Shipping Co Ltd., unrep., HCMP No’s 52 and 53 of 2010, at paras 23-26, wherein the learned judge had commented that “But just as litigants are expected to obey the orders of the Court, I believe it is important for the court not to take litigants by surprise. Certainty and predictability are important for fair administration of justice…”

31.  Notwithstanding the considerable skill with which Mr Manzoni invested his argument, I had and have no doubt but that this court indeed does have primary jurisdiction to revisit – and if thought appropriate – to vary the order of To J, notwithstanding that this was a procedural order of a court of co-ordinate jurisdiction, although having said this I also accept that if and in so far as such reconsideration had taken place much closer to the trial hearing dates – and not, as here, some eleven weeks in advance of the trial – then notwithstanding the views of this court as to the advisability of the VCF order as earlier made, it may have been that the foregoing observations of Tang VP as to not taking litigants by surprise would have been of greater relevance than was the case in the present situation, wherein clearly there existed ample scope for Mr Ho to make different arrangements should such be required.

32.  Effectively, therefore, Mr Manzoni conceded the fundamental jurisdiction issue, and contented himself with strongly arguing that no factual matrix existed which ought to persuade this court in the existing circumstances to exercise its discretion and now to interfere.

33.  In any event, I agree with the submission of Mr Pow SC, appearing for the remaining defendants in this case save for the 2^nd defendant, who is represented by Mr Jason Wong (Mr Pao in his address adopting Mr Wong’s meticulous and most helpful written submissions) that not only does Practice Direction 5.2 on Case Management (at paragraph 39) reflect the power of the court to set aside or vary a prior direction, either on application or on its own initiative, where there has been a change of circumstances, but alternatively this court may choose to exercise its powers under Order 1B, rule 1(2), RHC, which provides:

“Except where these rules provide otherwise, the Court may by order –

(l)  take any other step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A” .

34.  Counsel noted that this is essentially the like provision as appears in Rule 3.1(2)(m) of the English rules, and that the English Court of Appeal in Forcelux Ltd v Binnie [2009] EWCA Civ.854, decision dated 21 October 2009, has held (at paragraphs 51 and 52) that this rule is a “sweeping up provision” and is “amply wide enough to give the court power to set aside…if it considers that the interests of justice demand it”.

35.  For my part I confess that, as a judge newly-assigned to hear a lengthy and factually/legally complex case, as a matter of principle I should not be content to be confined to or fettered by that which I would call for convenience the “erroneous information” or “change of circumstances” rubric, and in my view it should in principle always be open in appropriate circumstances to the trial-designated judge to consider afresh signally important matters such as permitting evidence to be given by VCF “if the interests of justice demand it”.

36.  I apprehend that this is what Hughes J had in mind in Roult v North West Strategic Health Authority, op cit., when he observed (at paragraph 15):

“It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or the other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made.  The exigencies of case management may well call for a variation in planning from time to time in the light of developments.  There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue…”  [emphasis added]

37.  In my view a direction for a witness to give evidence by VCF cannot be regarded as a ‘final order’, nor does it concern that which I understand nowadays under the new procedural regime is termed ‘a milestone date’, although it must be said that this latter concept is not something that has impinged on the consciousness of the Commercial Court, which has been used to ‘hands on’ case management leading to the final listing of cases for well over the past decade; to the contrary, a “variation” essentially is a matter of how the proceedings are to be controlled by the court empowered/entrusted with controlling them, which in this instance, for better or worse, now is this court.

38.  However, if I be wrong in taking the view that the ultimate trial court has an unfettered discretion to vary a prior order as to VCF if and in so far as “the interests of justice demand it” – which I have made clear represents this court’s primary position – and if such discretion only exists when there has been erroneous information or a change of circumstances, it seems to me that the latter ‘change of circumstances’ benchmark in the event may be satisfied not only by reason of a change of trial judge, but in particular by reason of (1) a recent change in the plaintiff’s pleaded case to allege (for the first time) conspiracy – although at the time of making the decision to vary To J’s original order this court had had but an indication of a forthcoming amendment, and not yet had had sight of the re-amendment itself (which in the event subsequently was put in by consent); and (2) a change in the law in Hong Kong and in the approach to be adopted towards permitting VCF evidence to be given by a witness with a personal reason for declining to come to Hong Kong to attend trial.

39.  Which conveniently brings me to the most recent judicial pronouncements on the subject.

(b)  VCF evidence: the current legal position in Hong Kong

40.  For present purposes the relevant starting point perhaps is the case of Re Chow Kam Fai, David [2004] 2 HKC 645, in which Deputy High Court Judge To (as he then was) had refused the application of the appellant debtor, Mr David Chow, to give evidence via VCF from Macau in bankruptcy proceedings, as there was an outstanding warrant for his arrest in Hong Kong.

41.  This decision was appealed to the Court of Appeal in Civil Appeal No 295 of 2003, judgment dated 24 March 2004 (Rogers VP and Le Pichon JA), wherein the decision of the first instance judge was upheld.

42.  In delivering his judgment, in a section entitled “Whether the respondent should be permitted to use VCF?” (at paragraphs 16-22) Rogers VP took the view that “the starting point must be that the proceedings are to be conducted in court” and thereafter continued (at paras18-19):

“…I have no doubt that the atmosphere of a court is highly important as regards the taking of evidence.  The solemnity of court proceedings and its atmosphere is something which…plays an important role in the way justice is administered.

There is no doubt that VCF is a highly useful tool.  It must be a question of judgment in each case as to whether VCF should be used for the taking of evidence.  No doubt, on those occasions when the witness is giving evidence that is technical or purely factual, without important issues as to credibility, a court may be more disposed to allow evidence to be given by the use of VCF.  Questions of cost and convenience are no doubt also important considerations that the court will have to weigh in deciding whether to allow evidence to be given using VCF.  But, first and foremost, it seems to me that the judge was correct in his approach that a party wishing to give evidence using VCF should establish a sound reason why that privilege should be accorded…”

43.  In that case Rogers VP concluded that the appellant debtor’s desire to remain beyond the reach of an arrest warrant issued against him to enforce a prior order for examination under Order 49B rule 1 was not such a “sound reason”, and in the course of so deciding Rogers VP applied the then recent English Court of Appeal decision in Polanski v Conde Nast Publications Ltd [2004] 1 WLR 387, wherein the Court of Appeal had reversed the order at first instance of Eady J (who had permitted the proposed use of VCF for Mr Polanski), holding that the court should have regard to all the circumstances in deciding whether it was appropriate to make a VCF order specifically to enable a witness to evade the ordinary processes of English criminal and extradition law under which he might lose his liberty ‑ Mr Polanski apparently being wanted in the USA under a charge of statutory rape ‑ and that there was no rule that a VCF order should only be refused in exceptional circumstances; and further, that the court’s general policy should be to discourage litigants from escaping the normal processes of the law rather than to facilitate it.

44.  That which thereafter followed in the development of English jurisprudence in this area is that the House of Lords overruled Polanski in the Court of Appeal by a 3/2 majority (Lord Nicholls, Lord Hope and Baroness Hale in favour of reversal, Lord Slynn and Lord Carswell dissenting), which thus produced the finding that in English law that the claimant in this defamation action, Mr Polanski, indeed was entitled to bring proceedings in England to protect his civil rights notwithstanding that he was a fugitive from justice, that although there was a public interest in not assisting a fugitive from justice to escape his just desserts that this would occur whether or not a video link order was made, and that there was a strong public interest in allowing a claim properly brought in England to be properly and fairly litigated.

45.  The existence of the Polanski decision in the House of Lords clearly was uppermost in the mind of Madam Justice Chu when she decided the next Hong Kong case in the relevant historical sequence, Sun Legend Investments Ltd v Ho Yuk Wah [2008] 4 HKLRD 239, judgment dated 15 April 2008, wherein her Ladyship carefully reviewed the authorities, and concluded that the application in that case (by one and the same Mr David Ho in whose favour the VCF order of To J was made in this case) should be granted permitting Mr Ho to give evidence by means of VCF and “to observe and participate in the entire trial by means of VCF”.

46.  Whilst Madam Justice Chu accepted that Mr Ho’s reasons for not returning to Hong Kong were “vague and unsatisfactory”, nevertheless she observed they were not to be disregarded “as completely unreasonable or unacceptable”. In so deciding her Ladyship applied what then was the emergent principle in the House of Lords in Polanski, noting that where a witness was unwilling to testify in person because he was a fugitive from justice that, depending on the circumstances, this might be a sufficient reason to grant him permission to use VCF. In passing, it is worth noting that the learned judge also referred to Mr Ho’s alleged medical reasons for not being able to attend the trial in Hong Kong, but a fair reading of her judgment indicates that she had real reservations as to this proffered excuse for Mr Ho’s non-attendance at court.

47.  It is also clear from her meticulous and careful judgment that her Ladyship took the view that the House of Lords in Polanski ran contrary to the decision and reasoning of the Hong Kong Court of Appeal in Re Chow Kam Fai, op cit., and held (at paragraph 11) that the effect of that English decision by that country’s highest court had “clearly reversed” the conclusion of Rogers VP in Re Chow Kam Fai.

48.  For my part I respectfully differ from this view: the Hong Kong courts are not bound by the House of Lords, however authoritative and persuasive such decisions frequently are, and from a purely stare decisis viewpoint the appellate decision by the Hong Kong Court of Appeal in Chow Kam Fai clearly held sway; nevertheless in her judgment Her Ladyship then went on helpfully (at paragraph 12 et seq) to distil the principles as to the use of VCF from the authorities then before her.

49.  In due course Sun Legend, op cit., went to appeal in CACV No 242 of 2009, unreported, Judgment dated 27 July 2010 (Rogers VP, Le Pichon JA and Kwan JA), although the subject of this particular appeal was not the interlocutory VCF order made by Chu J at first instance, but the judgment of Saunders J dated 18 September 2009 as made at the substantive trial; the actual decision is not relevant to the present discussion, save to note that in the course of his judgment (with which Le Pichon and Kwan JJA agreed) Rogers VP (in particular at paragraphs 46 and 47) had made a number of scathing comments as to the perceived credibility and character of Mr David Ho, who pursuant to the Order of Chu J by then had given evidence by VCF; in this appeal the Court of Appeal went so far as to overturn findings of fact of the trial judge in what was a dispute regarding payment of solicitors’ fees for projects in China at a time when Mr Ho was in practice in Hong Kong as a solicitor with Messrs Baker & McKenzie.

50.  Be that as it may. The next case (and most recent) in the sequence of Hong Kong cases regarding the use of VCF is that of Raj Kumar Mahajan v HCL Technologies (Hong Kong) Ltd, HCA 1510 of 2004 and HCA 954 of 2005 (consolidated), a decision of 15 September 2010 in which Deputy High Court Judge L Chan (as he then was) declined to permit the 3^rd defendant in that case to take part in the forthcoming trial by use of VCF, the learned Deputy Judge expressing himself dissatisfied with the contention that there were no other appropriate dates for meetings to which the witness was committed which were not in conflict with the designated trial dates, nor that the medical evidence put before him sufficed to justify the witness in question staying at home and giving evidence via VCF rather than by coming to court to give evidence.

51.  For present purposes the actual details of the case do not greatly matter, save that this decision as to the use of VCF went to the Court of Appeal (Rogers VP and Bharwaney J) in HCMP 1895 of 2010, currently unreported, Decision dated 7 October 2010.

52.  In refusing leave to appeal, Rogers VP attacked the notion (at paras 6 and 9) that Polanski in the House of Lords effectively had “dispelled” or “reversed” his views as earlier expressed in Re Chow Kam Fai, op cit., noting that “different judges may take different views, but I adhere to every word I said in my earlier judgment”. He then continued (at paras 7-9):

“As far as I am concerned the solemnity of the court is most important.  In Hong Kong it is important that members of the court, both the judges and counsel, are properly attired.  It is important that the court proceedings are carried on in court in the way that we do.  It does give solemnity to the occasion.  One only has to observe the parties and their witnesses coming to court to observe their demeanour.  It does have an impact.  Giving evidence via television link, in my view, dispels part of that.  The place for a judge to sit, for witnesses to give evidence and for submissions to be made, is in court.

This so-called VCF system, which Hong Kong does have, and, indeed, the Technology Court is frequently used for it is a very useful tool…is a tool which should be used with some care.  If a witness is not giving evidence that is likely to be attacked on the basis of credibility, it may be important.  If, for example, one has technical evidence, perhaps from a well-known and busy physician or surgeon in a foreign country, who has many other patients under his care and many other considerations and is giving highly technical evidence, it may well be important and useful to have his evidence by video link because otherwise one may not have it at all.  But these are very different circumstances…

and further (at paras 11-13):

“…first and foremost, the decision the judge gave was a case management decision and it is important to bear in mind that case management decisions, particularly those made when a trial is imminent by a trial judge, should be treated with a great deal of care and respect by the Court of Appeal.

The whole purpose of the civil justice reform was to enable trials before judges to be put in the hands of judges who were there to control the case.  The decision made by the judge as to whether VCF was appropriate in the case, is one which is made with all matters having to be taken into consideration and, in particular, the evidence which is likely to be given and cross-examined.

It is not for this court to tell a judge how to run the case before he hears it, otherwise this court might just as well hear the case itself.  This court must, as far as possible, leave it to the trial judge to run the case as he sees fit…”

53.  Thus far, if I may respectfully say so, this is no more than the clear recognition of the importance of allowing the trial judge to make relevant procedural decisions as to the conduct of the trial to take place before him absent interference from the appellate court. However, the Vice President then proceeded expressly to refer to the Sun Legend case in the terms following (at paragraphs 15-16):

“I only wish to make one further observation which has nothing to do with this case but it has something to do with the Sun Legend case.  That is the question as to whether it is right to take into account the question of whether the fact that the proposed witness is a fugitive from justice may be a good or sufficient reason for making a VCF order.  The decision [in Sun Legend] appears to have been based on the Polanski case.  That was a case with its own very peculiar facts and, indeed, as recently as August of this year, those facts have emerged far more clearly.  It is not necessary for me to go into it but it would appear that it is far from clear that the litigant in that case was indeed a fugitive from justice.  He has strong grounds for saying that he was a fugitive from injustice.

But one thing is clear: that it is part of the function of this court not only to give judgments but to make sure that they are enforced and, if one has a person who has been in Hong Kong, let alone a professional in Hong Kong, against whom judgments have been given by the Hong Kong courts, it is part of the function of the Hong Kong courts to see that that judgment is observed.  It is not part of the function of the Hong Kong courts to allow such a person not to come back to the jurisdiction because he is afraid of what his creditors might do in respect of a judgment which the Hong Kong court has given.  As far as I am concerned, in respect of the Sun Legend case the question of the person concerned being a fugitive from justice would be a factor which would militate against making a VCF order.” [emphasis added]

54.  This latter part of the judgment of the Court of Appeal clearly was obiter but, with respect, I entirely agree with the sentiments therein expressed by Rogers VP to the effect that a Hong Kong court should not go out of its way to accommodate parties and/or witnesses who decline to come to the territory in the normal way to give evidence at trial simply because such person is apprehensive about his presence invoking the interest of the forces of law, the escape from which may have provided one of the reasons for that person leaving Hong Kong in the first place.

55.  I would go further. With the greatest of respect to the majority in the House of Lords in Polanski (and even on the assumption that Mr Polanski indeed was a fugitive from the United States, with which of course Britain has extradition arrangements), speaking purely for myself I should have declined to follow that decision, which does not bind our courts; to the contrary, if I may be permitted to say so, in my judgment the analysis of English Court of Appeal in that case, whose contrary decision was unanimous, is the much to be preferred.

56.  It also follows from the foregoing that, with respect, I am in complete agreement the views about the use of VCF expressed in the Hong Kong Court of Appeal, particularly in the judgments of Rogers VP in Re Chow Kam Fai, op cit., and in Raj Kumar Mahajan, op cit.

57.  It seems to me that there is a very considerable difference in principle between permitting the use of VCF in instances, say, of expert witnesses – the Commercial Court, for example, can recall hearing expert evidence in pre-Technology Court days at the Wanchai premises of Cable & Wireless from an engineer in Falkland Islands – or in terms of taking evidence from peripheral witnesses of fact, when contrasted with permitting a party or a crucial witness who wishes positively to avoid coming to Hong Kong for reasons peculiar to himself simply to be granted permission to proffer his evidence to the trial court, and thus to the judge of primary fact, by means of VCF.

(c)  Re-exercise of judicial discretion in the instant case

58.  I wish to make it clear that I meant no disrespect whatever to the learned judge who made the original order in November 2009 permitting Mr Ho to give evidence from Beijing by VCF when this court decided, at the conclusion of the hearing on 8 November, to set aside that Order with immediate effect.

59.  In my judgment in a case of this nature, wherein each side accuses the other of lying as to the provenance of the emerging business opportunities in issue, credibility is uppermost – which obviously was the case on the pleadings as they then stood before those acting for the plaintiff made the application (which went through unopposed at a subsequent hearing on 18 November) for leave to re-amend at this remarkably late stage in context of a 1999 action to add an additional cause of action in conspiracy.

60.  It seems to me not greatly to matter whether Mr David Ho gives evidence qua party or witness; he says through his affidavit evidence that whilst he was the beneficial owner of the plaintiff at the material time of the claims herein, he now has divested himself of all interest in the plaintiff, albeit the defendants express doubt as to the veracity of this statement because on a company search in Hong Kong it transpires that one of the shareholders in the plaintiff company, Gladius Ltd, formally was known as “D Ho Nominees Ltd”.

61.  I am, however, not currently in a position to decide this point, if indeed it is relevant at all; on any basis Mr Ho evidently is a crucial witness of fact for the plaintiff – indeed I am informed that he is the only witness to be called by the plaintiff, albeit as the original order of To J stood, Mr Ho would have been in the position of giving evidence by VCF from Beijing.

62.  Now of course that earlier Order relating to VCF evidence has been set aside, and if and in so far as the plaintiff wishes to use Mr Ho’s evidence, Mr Ho will have to come to court to give it: bluntly put, this court wishes to hear his testimony ‘live’, and be in a position to see/scrutinise the witness some ten feet away in the witness box, and not allow him to be ‘shielded’ through the medium of a plasma screen.

63.  An additional reason advanced on behalf of the defendants ‑ and one with which I have some sympathy – is that in this case apparently there are a huge number of documents; in fact, I am told that pursuant to an earlier Anton Piller order in this case, 120 box files are said to have been recovered from the defendants, and at the CMC of 18 October 2010, this court was told by the plaintiff’s solicitor that there will be at least some 50 box files of documents – in fact, Mr Ho’s latest witness statement alone incorporates 4 box files – and that in the circumstances such a documentary load makes it inappropriate for a principal witness to give evidence from abroad, since any delay/confusion as to the document being referred to during evidence is more easily dealt with in the courtroom itself than in remote terms in Beijing. I agree.

64.  Nor in the hearing before this court as to whether the existing VCF order should be varied did Mr Ho continue to place reliance upon the health problems (said to derive from a traffic accident in Beijing in September 2007) which apparently were prayed in aid in the earlier VCF applications made on his behalf, and thus he did not invoke any question of residual disability as a cause of being unable to travel and to make the entirely routine air journey from Beijing to Hong Kong.

65.  It is for the foregoing reasons that this court concluded that to permit the existing order for evidence to be given via VCF should not be allowed to stand, and accordingly should be set aside.

66.  In short, if ever the circumstances of a case demanded the presence of the sole witness for the plaintiff it is this case, and in this regard I respectfully agree with the view of Rogers VP in Re Chow Kam Fai, op cit., (at paragraph 57) that “it is… clear that giving evidence via video link is an exception rather than the rule. It is for the party wishing to use video link to justify why he should be accorded this exceptional treatment.”

Costs

67.  In all the circumstances – wherein the revisiting of the Order of To J was made at the instigation of this court, so that it cannot fairly be characterized as a particular party’s application – it seems to me that this hearing, whilst adversarially (and vigorously) argued, should be treated as a directions hearing, which normally attracts a costs’ order of ‘costs in the cause’. Accordingly, I make an order nisi that the costs of and occasioned by this additional hearing on 8 November 2010 are to be costs in the cause, such costs to be taxed if not agreed. Absent application so to vary, this order nisi will become absolute within 14 days of the date hereof.

Postscript

68.  This court was informed at the subsequent ‘re-amendment’ hearing on 18 November 2010 (wherein also a further application by the plaintiff for specific discovery was dismissed) that it is envisaged by those acting for the plaintiff that Mr Ho now will be coming to Hong Kong to give evidence at this 15 day trial, which is set down to commence on 4 January 2011.