David Smyth Warren Ganesh September 13 2022 Update on "overseas" witnesses giving evidence at trial in Hong Kong by video conferencing facilities RPC | Litigation - Hong Kong David Smyth, Warren Ganesh Litigation IntroductionBackgroundDecisionsCommentIntroduction Two recent cases before the Court of First instance of the Hight Court have considered parties' applications for witnesses who are out of the jurisdiction to give evidence at trial using video conferencing facilities (VCF). In one case, the application was successful because the Court considered that it had not been made so late as to cause prejudice to the other party and was supported by good reasons – namely, the witness was the primary carer of her ill spouse in Vancouver where they resided. In the other case, the application was unsuccessful because the Court considered that one of the parties would have an unfair advantage if the witness was allowed to give evidence using VCF and the reasons for wanting to do so were not good reasons – namely, the witness's business commitments in mainland China at the time of the trial and concerns about health risks posed by covid-19. While both cases are best explained on their facts, the two decisions suggest different experiences by the respective tribunals regarding the advantages and disadvantages of evidence being given at trial using VCF.BackgroundAgainst the background of the covid-19 pandemic, which has resurfaced again in Hong Kong, the courts have to date adopted four guidance notes for the use of remote hearings for civil cases. For further details on witnesses overseas giving evidence at trial during covid-19, please see "Witnesses overseas and trials during covid-19 pandemic".In Lai v Administrators of the Estate of Leung,(1) the plaintiff applied for one of her witnesses to give evidence at trial starting on 19 September 2022 using VCF. The witness was 67 years of age and the primary carer of her ill husband at their home in Vancouver. The husband appears to have been dependent on the witness and required full-time care. The witness was not a party to the action and the evidence suggested that if she had to travel to Hong Kong this would cause considerable stress and hardship to both her and her husband.In Wong v Esports Business Development Ltd & Ors,(2) one of the defendants applied to give his evidence at trial starting on 1 December 2022 using VCF. He gave two reasons for doing so – namely, that:travelling to Hong Kong during the covid-19 pandemic posed significant health risks and there was no certainty that he could enter Hong Kong "because of the quota system for inbound passengers from the Mainland";(3)an important business project required him to remain in mainland China in December 2022.In both cases the issue for the Court's determination was whether to exercise its discretion to grant permission for the witness to give evidence at trial using VCF.DecisionsIn Lai v Administrators of the Estate of Leung, the Court allowed the application. The Court was persuaded that the witness's personal circumstances justified her being allowed to give her evidence using VCF. Importantly, based on the evidence, the Court considered that:the witness could not afford private care or make any other satisfactory arrangements for her husband's care – it was also unrealistic to expect her to travel to Hong Kong with her husband; andthere was no suggestion that the witness's cross-examination would not be effective if her evidence was given via VCF.Based on his experience, the judge appears to have formed a positive view of the use of remote hearings and evidence, without seeking to undermine the default position that witnesses at trial should normally be present in court given the importance of live verbal evidence where the demeanour of a witness can be an important factor in assessing credibility. The judge stated: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.(4)In Wong v Esports Business Development Ltd & Ors, the Court dismissed the application. In short, the Court was not persuaded that good reasons had been provided for the witness (a party to the action) to give his evidence using VCF. In particular:based on the evidence, the Court was not persuaded that factors relating to covid-19 were as important as the witness had suggested.(5) The trial dates in December 2022 had been fixed in May 2021 when it appeared that the witness intended to travel to Hong Kong for the trial. With that in mind, the Court stated: "I cannot see any reason why he should be worried at this stage about his exposure to the risks of contracting Covid-19, travel restrictions and the uncertainty of entering into Hong Kong";(6)it appeared to the Court that the main reason for the witness's reluctance to travel to Hong Kong was that he placed more priority on his business commitments than the trial;(7) andthe witness was a party to the action and his evidence was important and would be "hotly disputed".(8) The other party "would have a justified sense of grievance if an important witness would be allowed to give evidence by VCF, thereby having a perceived advantage over [the other party]".(9)Based on his experience, the judge stated: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.(10)CommentThe outcome in both cases is understandable. It will not be lost on readers that the personal circumstances of the two witnesses and their reasons for wishing to give evidence using VCF were very different. Thus far, a witness's reluctance to travel to Hong Kong because of concerns about the prevailing covid-19 pandemic (without an underlying medical condition) has not been seen as a good reason to permit them to give evidence at trial using VCF (for further details, please see "Court reviews witness's reluctance to travel to Hong Kong because of COVID-19").The two decisions were made by different judges and they appear to have had different experiences with the use of VCF for court hearings. As with litigation generally, there is often a premium on knowing who the judge is and their approach to case management and style – although this is not an easy task when (as in both cases) they are sitting as deputy judges and, presumably, for fixed-term appointments. An application for a witness to give evidence at trial using VCF is more likely to succeed where the application is supported by good reasons and is not made late and where the evidence of the witness is neither crucial nor highly contested.Finally, the judiciary administration's consultation on a draft Courts (Remote Hearing) Bill draws to a close on 15 September 2022 (for further details, please see "Snapshot of proposed legislation for conduct of remote hearings"). The proposed legislation seeks (among other things) to codify the practice of using remote hearings for civil proceedings. Once the legislation and supporting practice directions have come into force, the decision of whether to allow a remote hearing (in full or in part) will remain a case management decision for the courts based on criteria set out in the legislation. Where, for example, a witness is a party to the proceedings and their evidence is highly contested, the default position is likely to remain that they should be physically present in court to give evidence at trial.For further information on this topic, please contact David Smyth or Warren Ganesh at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.Endnotes (1)  HKCFI 2643, 26 August 2022.(2)  HKCFI 2627, 23 August 2022.(3) Supra note 2, at paragraph 3(2).(4) Supra note 1, at paragraph 7.(5) Supra note 2, at paragraph 11.(6) Supra note 2, at paragraph 10.(7) Supra note 2, at paragraph 19.(8) Supra note 2, at paragraph 23(9) Supra note 2, at paragraph 24.(10) Supra note 2, at paragraph 25.