A A
HCA 1429/2015
[2020] HKCFI 2572
B B
IN THE HIGH COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D
COURT OF FIRST INSTANCE D
ACTION NO 1429 OF 2015
E ______________ E
BETWEEN
F F
WAH LUN INTERNATIONAL Plaintiff
G DEVELOPMENT LIMITED G
H and H
I LAU CHIU SHING Defendant I
J ______________ J
K Before: Hon K Yeung J in Chambers K
Date of Hearing: 28 September 2020
L L
Date of Decision: 28 September 2020
M M
N N
DECISION
O O
P 1. This is the application of the plaintiff (“P”) by summons of P
18 September 2020 for leave to allow P’s witness Mr Jia Bin (“Jia”) to
Q Q
testify by way of video conferencing facilities (“VCF”) at the trial
R scheduled to commence on 27 October 2020 (with 5 days reserved). R
S S
2. The application is supported by Jia’s affirmation of
T 17 September 2020. T
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A A
The claim
B B
3. Sometime in late 2014 or early 2015, the parties entered into
C C
discussion on the purchase by P from D of a majority shareholding in a
D listed company called e-Kong Group Limited. A Due Diligence D
Agreement was later entered into. Pursuant to that agreement, P paid D
E E
earnest money in the sum of RMB 20,000,000 (the “Earnest Money”). P
F avers that issues that subsequently revealed during the due diligence F
exercise had not satisfactorily been resolved, and that the Earnest Money
G G
has as a result become refundable. D’s defence is that the parties had
H entered into a binding sale and purchase agreement (the “S&P Agreement”) H
and that the Earnest Money had become non-refundable and remained as
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forfeitable deposit under the S&P Agreement. D further avers that upon
J P’s repudiatory breach of the S&P Agreement by failing to complete the J
transaction on or before 20 March 2015, the Earnest Money was forfeited.
K K
L 4. The main issue to be resolved during the trial is whether the L
parties have entered into the S&P Agreement.
M M
N
5. For the trial, P is going to call Jia and a Mr Simon Chiu. D is N
going to call himself.
O O
6. According to D’s Re-Amended Defence, the S&P Agreement
P P
was reached orally during a “personal meeting” in mid or late January 2015
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between Jia and D (the “Personal Meeting”). It is common ground that
Mr Simon Chiu was not present during that meeting.
R R
S S
T T
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A A
7. Jia’s evidence will be important in the resolution of that main
B B
issue. His credibility is going to be hotly disputed. Ms Lam, solicitor
C appearing for P, accepts that1. C
D D
The applicable legal principles
E E
8. I have been cited a number of authorities (decided both before
F
and after the COVID-19 pandemic) relating to the principles and F
considerations applicable and relevant to an application of this nature.
G G
I refer in particular to the useful summary of the principles by Anthony
H Chan J at §9 of Re Nobility School Ltd [2020] HKCFI 891 (20 May 2020), H
that:
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“ (1) The giving of evidence by video conferencing facilities
J (“VCF”) is an exception; J
(2) The starting point is that proceedings are conducted in
K court. I would add that this is more important when it K
comes to a trial;
L (3) Sound reason is required to justify a departure from the L
starting point;
M (4) The solemnity of court proceedings and its atmosphere is M
highly important in the taking of evidence;
N (5) The court may be more disposed to exercise its discretion N
to allow evidence by VCF in respect of technical or purely
O factual evidence which involves no serious issue on O
credibility or relatively unimportant evidence;
P (6) Where the credibility of the witness is seriously contested, P
it is important for the witness to be examined under the
solemn atmosphere of the court;
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(7) Costs and convenience may be important considerations
which the court will have to weigh in the determination of
R the application; R
(8) Ultimately, it is a matter of judgment of the court choosing
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the course best calculated to achieve a just result by taking
into account all the material considerations, including
T T
1
§18 of her written submissions.
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A A
whether the witness is capable of attending the
B proceedings, any prejudice to the other party, the B
Underlying Objectives, any delay to the proceedings and
practical considerations like the availability of the
C facilities (see Practice Direction 29).” C
D D
Parties’ stances
E E
9. Jia is a Hong Kong resident. He used to frequent between
F Hong Kong, the Mainland and Singapore for his business. Because of the F
COVID-19 pandemic, he has been living in Singapore, and been avoiding
G G
travel.
H H
10. P’s grounds put forward in support of the application, as
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summarized by Ms Lam, are:
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(a) health risks for Jia to travel between Singapore and Hong
K Kong (and in particular the risks of transmission on the plane); K
L (b) disruption to Jia’s work and family life due to the compulsory L
quarantine arrangement;
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(c) unpredictability of the COVID-19 pandemic; and
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(d) alleged lack of prejudice to D.
O O
11. Mr Jeff Chan appears for P. He objects to the application,
P P
upon the following grounds:
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(a) Jia is a crucial factual witness;
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(b) the grounds put forward by P are neither valid nor conclusive
S
reasons for granting VCF applications; and S
(c) absence of details provided in relation to the proposed VCF
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venue.
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A A
Discussion
B B
12. In the present case, the main issue between the parties is a
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factual one — what were discussed and agreed upon (if any) during the
D Personal Meeting. It is going to be a one-on-one situation — Jia’s D
evidence against that of D’s2.
E E
F
13. Quite apart from the starting position that proceedings should F
be conducted in court, on the facts of this case, it is of particular importance
G G
that Jia be examined under the solemn atmosphere of the court.
H H
14. I further respectfully adopt the observations made by Anthony
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Chan J at §21 of Re Nobility School, that it is an important pillar of our legal
J
system that justice is not only done but seen to be done, and that D would J
have a justified sense of grievance if Jia were to be permitted to give
K K
evidence by VCF, thereby having a perceived advantage over D.
L L
15. Balanced against the above is the health risk that Jia will be
M exposed to in physically attending the trial in Hong Kong and the M
inconvenience associated with the quarantine.
N N
O 16. In so far as the quarantine arrangements are concerned, Jia is O
only relying on the general inconvenience associated with such
P P
arrangements. Jia has not put forward any evidence suggesting that he
Q will be exposed and subject to any specific problems over and on top. Q
Whilst it is relevant, I attach little weight to such general inconvenience.
R R
With the technologies and facilities commonly and readily available,
S S
T T
2
Whilst it appears that there was another person at that meeting, neither party is going to call her.
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quarantine is not to be equated to isolation. Jia can continue to be in
B B
contact with his business associates and family members if he wants to.
C C
17. The health risk which Jia may be exposed to whilst travelling
D D
is a legitimate concern. However, the flight between Hong Kong and
E Singapore is not a long one. Appropriate precaution may also be taken on E
board to minimize the risk.
F F
G 18. As to the unpredictability of the pandemic, the Court can only G
deal with the matter as things are. Prevailing health situation is easing,
H H
and judicial proceedings are resuming normal order.
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19. Given the above, and on balance, I am not persuaded that the
J J
grounds put forward are sufficient to justify leave for Jia to give evidence
K
by VCF. I refuse the application. K
L 20. I order that the costs of the present summons, including this L
hearing, be to D in any event.
M M
N N
(Keith Yeung)
O O
Judge of the Court of First Instance
High Court
P P
Q Ms K P Lam, of Haldanes, for the Plaintiff Q
R
Mr Jeff Chan, instructed by Michael Li & Co, R
for the Defendant
S S
T T
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