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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.
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  HKCFI 249 at ).
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  HKCFI 891 at :-
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  HKCFI 2627 at -).
Valid grounds allowed by the Hong Kong Courts in favour of evidence by video link
Serious health concerns:-
Financial and job difficulties:-
Failure to obtain visa
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.
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