Remote Witness Testimony – Not to be taken for granted: the Hong Kong Courts’ approach

Nov 2020

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While COVID-19 has necessitated physical meetings being conducted virtually, the Hong Kong Courts has remained conservative in allowing witnesses to give evidence via video-conferencing (VC).

The following case comparison shows that Courts will accept health concerns and transmission risks associated with air travel as reasons to justify remote witness testimony. Other distinguishing factors include whether the witness could obtain a travel visa to come to Hong Kong during COVID-19 and the age of witness(es).

Tsang Woon Ming Case[1] (Date of decision: 20 May 2020)

Three applications were made for overseas witnesses – residing in Taiwan, Macau and Shenzhen respectively – to testify via VC at trial.

The basis for the first 2 applications was that under the current quarantine requirements, 2 periods of quarantine time would be required for each witness to attend the trial in person. The witnesses were required to quarantine for 14 days upon arrival to Hong Kong, and another 14 days upon return to their place of residence (Taiwan/Macau).

Hon. Anthony Chan J of the CFI rejected these 2 applications and found that: [2]

  • The real reason for these 2 applications was the witnesses’ unwillingness to have their business commitments interfered during periods of quarantine.
  • The 2 witnesses’ companies are the subject matter of the underlying dispute in the Court proceedings. The witnesses are therefore “highly relevant to the central issues of (Court) actions and essential for the fair disposal of the Actions”.
  • Due to the nature of the dispute, the credibility of these 2 witnesses should be scrutinised in the solemn atmosphere of the Court.
  • The witnesses should have managed their affairs to ensure that they are available for trial.
  • The witnesses had sufficient time to come to Hong Kong to give evidence.

However, the CFI permitted the 3rd witness (who was a Mainland resident) to testify remotely from Shenzhen. The CFI was satisfied that she would not be able to travel to Hong Kong from Mainland due to the inability to obtain a visa during COVID-19 restrictions.

Taishin International Bank Case [3]  (Date of decision: 25 May 2020)

An application was made for a witness (residing in Shanghai) to give testimony via VC.

Deputy High Court Judge MK Liu of the CFI rejected general travel/quarantine inconveniences as reasons to justify attending trial remotely.

However, the CFI granted permission on the following basis:[4]

  • Transmission risk in air travel is a legitimate concern of a reasonable person.
  • Health is a paramount concern for everyone. In so far practice, the Court should make arrangements to ensure the safety of everyone participating in trial.

The CFI also considered the following before granting leave to the application:

  • Health risk for the witness to travel between Hong Kong and Shanghai when both places continue to report new COVID cases.
  • Protocols to ensure fairness of the conduct of proceedings, such as: (i) having a neutral place for the witness to testify remotely; and (ii) having an observer at that place to ensure that there is no interference/ improper communication between the witness and his/her lawyers whilst he or she is testifying.

Au Yeung Pui Chun Case[5]  (Date of decision: 10 August 2020)

Hon. Godfrey Lam in the CFI applied the Taishin case and permitted the 2 witnesses (aged 68 and 56 respectively) residing in Switzerland to testify remotely via VC.

In considering the COVID-19 infection rate in Hong Kong and Switzerland as being unpredictable and rapidly changing, the Court found that:[6]

  • Health concerns of the witnesses and transmission risks associated with air travel are valid reasons to justify giving evidence remotely.
  • In travelling to Hong Kong during the COVID-19 outbreak, the witnesses would pose health risks not only to themselves, but also to their family and other court users during testimony.
  • There are grounds for real concern in a person being asked to travel a long distance including taking a flight to attend trial in an unfamiliar place during COVID-19 outbreak, particularly given the age bracket of the witnesses.

Comment

Parties should not assume that leave will be granted for witness(es) to testify remotely just because the witness is overseas during the pandemic. The parties must provide reasons to justify such application.

Matters to be considered by the Court in deciding whether remote witness testimony is allowed include: :[7]

  • The need for solemnity of court proceedings and its atmosphere being paramount in the taking of evidence. Accordingly, the starting point remains that proceedings should be conducted in Court – more so important when the relevant hearing is a trial.
  • The Court may permit witnesses to testify via VC only under exceptional circumstances. This is to ensure fairness and equal treatment in the conduct of the proceedings.
  • General travel and quarantine inconveniences, or unwillingness to quarantine are not sufficient grounds to justify deviation from the starting point.
  • The Court must also take into account all material factors on a case by case basis, such as (i) whether the witness is a key witness to the proceedings; (ii) the nature of dispute and whether the witness’ credibility will be seriously contested; (iii) any health concerns raised; (iv) age of the witnesses; (v) timing of application being submitted; (vi) whether there are sufficient measures in place to ensure a fairness of the proceedings; (vii) the risk posed by travel to Hong Kong; and (viii) the local and originating location’s infection situation.

 

[1]  Tsang Woon Ming v Lai Ka Lim and Others [2020] HKCFI 891

[2]  Tsang Woon Ming v Lai Ka Lim and Others [2020] HKCFI 891 at [13] – [17]

[3]  Taishin International Bank Co. Ltd v QFI Ltd [2020] HKCFI 938

[4]  Taishin International Bank Co. Ltd v QFI Ltd [2020] HKCFI 938 at [7] – [11]

[5]  Au Yeung Pui Chun v Cheng Wing Sang [2020] HKCFI 2101

[6]  Au Yeung Pui Chun v Cheng Wing Sang [2020] HKCFI 2101 at [5] to [7]

[7]  Tsang Woon Ming v Lai Ka Lim and Others [2020] HKCFI 891 at [9]

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