Post-COVID-19 implications for foreign witnesses giving evidence outside Hong Kong

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Authored by: Cathy Wu

The COVID-19 pandemic had caused a surge of cases in the last two years where the Hong Kong Courts had been more prepared to give foreign witnesses the option of giving evidence outside of Hong Kong and to order remote hearings, as opposed to requiring personal attendance of witnesses to give evidence in Court. With the lifting of the Government restrictions on COVID-19, including the quarantine requirements, the Courts have now been less willing to accept COVID-19 as a reason for witnesses to avoid attending in person to give evidence. This article explains the Hong Kong Court’s general stance on this issue and explores the options still available to foreign witnesses to give evidence outside of Hong Kong post COVID-19.

General Rule

The starting point taken by the Hong Kong Courts remains that witnesses should attend in person to give their evidence in Court. The underlying reason for this is that the Court sees the solemnity of Court proceedings and the atmosphere of the Court as important in contributing to the administration of justice. It is a matter of degree and a case management decision, which has to be made taking into account all the circumstances (Delco Participation BV v HWH Holdings Ltd [2021] HKCFI 249 at [7]).

Exceptions to the General Rule – factors considered by the Court

Order 38 rule 3(1) of the Rules of the High Court (Cap. 4A) (RHC) provides that the Court may, at or before the trial of any action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order. The more common method by which witnesses are allowed by the Court to give evidence outside Hong Kong is by giving it via video link.

A balancing test is to be applied to ensure that a just result is achieved for both parties. This test is conveniently summarised by the Court in Tsang Woon Ming v Lai Ka Lim [2020] HKCFI 891 at [9]:-

With the lifting of the Government restrictions on COVID-19, the Court has attached less weight on COVID-19 grounds such as quarantine requirements and entry restrictions when reviewing these applications (Esports Business Development Limited v Wong Chun Yee Christopher [2022] HKCFI 2627 at [7]-[11]).

Valid grounds allowed by the Hong Kong Courts in favour of evidence by video link

Serious health concerns:-

• In Daimler AG v Leiduck (No 2) [2013] 5 HKC 170, the Court of Appeal allowed the 1^st Defendant to give evidence by video-link in trial because medical evidence clearly and unequivocally stated that it would be hazardous to the 1^st Defendant’s life and health to have to undertake his journey to Hong Kong.

• In Lai Shui Yin v Administrators of the Estate of Leung Wai Kay [2022] HKCFI 2643, the witness’s need to take care of her husband as his primary carer and the  health hazards of her travelling to Hong Kong were held to be valid reasons in favour of the witness giving evidence by video-link.

Financial and job difficulties:-

• In Javier Jenevieve Asuncion v Gu Huai Yu & Anor [2022] HKDC 1162, the Court granted leave for the evidence of three witnesses to be given by video-link after considering their personal, financial and job situations including factors such as (a) they did not have personal savings; (b) the possibility of them losing their job due to absence from work if they were to attend Hong Kong to give evidence and (c)  although the applicant was legally aided, the costs of the three witnesses travelling to Hong Kong to give evidence would not be covered by Legal Aid.

Failure to obtain visa

• In Tsang Woon Ming v Lai Ka Lim [2020] HKCFI 891, leave was granted to a witness residing in the Mainland to give evidence by video-link on the grounds that (a) she was subject to travel restrictions as a Mainland resident and (b) she was unable to obtain a visa to come to Hong Kong and was ineligible to apply for the special visa allowing her to come to Hong Kong.

Technical evidence

• In Raj Kumar Mahajan v HCL Technologies (Hong Kong Limited) & Anor [2010] HKCU 2187 (unrep, 7 October 2010), the Court of Appeal mentioned in passing that it may be important and useful for a well-known and busy physician or surgeon in a foreign country to give his highly technical evidence by video-link because otherwise one will not have it at all.

Conclusion

Despite the incremental use of the Technology Court in Hong Kong, the norm and starting point remains that witnesses should attend in person in Hong Kong to give their evidence in Court. 

Health concerns arising from COVID-19 are now generally not acceptable to the Court, given the lift of the Government restrictions in relation to COVID-19.

Applicants applying to the Court for leave to give evidence by video link should be prepared to accept that unless there are special circumstances such as those mentioned above, the Court is unlikely to grant such an application because the Court sees the solemnity of Court proceedings and the atmosphere of the Court as important in contributing to the administration of justice.