A reminder from the Court of Appeal that giving evidence by VCF is not the norm under Covid-19

In April 2020, we reported on the first cases that were conducted remotely via video conferencing facilities (VCF) during the court closures due to the Covid-19 pandemic. More than a year has passed and, although Covid-19 is still posing challenges, the courts have reopened and continue to embrace technology to facilitate social distancing. Remote hearings by telephone and VCF have taken place at various court levels and have been used for matters ranging from procedural matters to appeal cases and judicial review cases.

While there is no doubt that the pandemic has accelerated the trend for using technology in court, one should bear in mind that it is a case management decision within the discretion of the court as to how and when technology should be used and which hearings or parts of the hearings, should be conducted remotely.

In a recent judgement, Standard Chartered Bank (Hong Kong) Ltd v Nie, the Court of Appeal reviewed the legal principles behind the court’s discretion to allow a witness to give evidence by way of VCF at trial. The Defendant in this case resided in Beijing and was reluctant to travel to Hong Kong to give evidence because of the Covid-19 pandemic. The Defendant’s application to give evidence by way of VCF was rejected by judge at first instance and the Court of Appeal, which emphasised that:

“Notwithstanding the COVID-19 pandemic, as far as the situations in Hong Kong are concerned, the taking of viva voce evidence in person (both in civil and criminal trials) remains the usual norm here.”

In this case, the trial was scheduled to be heard on 11 and 15 January 2021. It was at a time when Hong Kong was experiencing the 4th wave of Covid-19. The pre-trial review was held in October 2020, when the judge, having foreseen the impact of Covid-19, reminded the Defendant’s solicitors that proper arrangements should be made for the Defendant’s attendance at the trial.

Despite the judge’s remarks, the Defendant only applied to the court to give evidence by way of VCF on 29 December 2020, on the basis that he resided in Beijing and was concerned about the Covid-19 pandemic. The application was rejected by the judge on the ground of delay in making the application.

The Defendant, whose testimony would be significant at trial and whose credibility would likely be challenged, did not give evidence at the trial in the end. The Defendant applied to the Court of Appeal for permission to appeal the judge’s decision. In considering whether permission to appeal a judge’s case management decision should be granted, the Court of Appeal had to be satisfied that the judge’s decision was clearly wrong, the threshold for which, is high.

The Court of Appeal refused to grant permission to appeal and made the following remarks:

  1. The Defendant’s application to use VCF was made late, despite the reminder at the pre-trial review about timely arrangements for witnesses to come to Hong Kong, in light of quarantine requirements;

  2. Given that the quarantine requirements in Hong Kong had been in place for a while, the Defendant should have made preparations in that regard well before the end of December 2020, if she had serious intentions (as she claimed) of coming to Hong Kong to give evidence;|

  3. The judge was in the best position to assess if such a course should be adopted in respect of the evidence from this particular witness; and

  4. The prejudice to the Defendant was caused by herself and there was no material difference between her situation and that of a defendant who deliberately chooses not to come to court to give evidence, hoping but failing, to convince the court to receive her evidence by VCF. 

Since the outbreak of Covid-19, there have been travel restrictions and quarantine requirements which may affect witnesses who need to travel to Hong Kong to attend hearings in court. While VCF may be used for witnesses to give evidence if they are unable to travel to Hong Kong for good reasons, it should be born in mind that the use of VCF is a case management decision, requiring the court’s exercise of discretion, that parties should not take for granted. Should there be any concern about a witness’s ability to travel to Hong Kong to attend a court hearing, early arrangements should be made, in particular, for satisfying the quarantine arrangements. If there are good reasons for a witness being unable to travel to Hong Kong and needing to give evidence by way of VCF, parties should draw the court’s attention to this as early as possible.

The court has since the outbreak of COVID-19 issued a number of guidance notes on the arrangements for remote hearings. It is important for parties to keep track of the judiciary’s announcements for the most updated arrangements in place during the pandemic and to make appropriate arrangements in good time.