Should the pursuit of effective scrutiny of witnesses override public health considerations and the witness’s right to health?

Recently in Hong Kong, there has been a debate on whether a witness can choose to give evidence via video-conferencing facilities (VCF) during the COVID-19 pandemic. Contrary to the practices of allowing remote testimony in other jurisdictions such as Australia and the UK, a number of Hong Kong judges oppose witnesses giving evidence via VCF. These judges openly voice the concern—based on their practical experience—that the inability to observe and examine witnesses in person reduces courts’ abilities to determine the credibility of witnesses. This concern has been voiced most authoritatively in Standard Chartered Bank (Hong Kong) Limited v. Lau Lai Wendy and Nie Hai Yan Annie, where the Hong Kong Court of Appeal held that there is no absolute freedom for witnesses to choose to give evidence via VCF, and witnesses should therefore not assume that “VCF application would be readily acceded[.]” Whether a witness is allowed to testify via VCF is a matter to be determined by the trial judge on a case-by-case basis.

But while witness credibility determination is an important function of any court, the issue of witness testimony given via VCF during a deadly global pandemic also implicates public health considerations as well as the witness’s right to health. Accordingly, Hong Kong courts should give due consideration to these latter factors.

Where the witness testimony is pivotal, many Hong Kong judges prefer in-person testimony. This includes disputes where the credibility of the witness is “hotly contested” and requires rigorous scrutiny as in Re Nobility School Ltd. That case concerned a typical shareholders’ dispute involving unfair prejudice (i.e., shareholder oppression) and breaches of shareholders’ agreement petitions. This type of dispute is highly dependent on the shareholders’ testimony regarding the affairs of the relatively small company. The Hong Kong Court of First Instance rejected a witness’s request to give her testimony via VCF to avoid the mandatory quarantine that she would have to undergo if she came to Hong Kong to give evidence in person.

According to this court, the underlying justification for rejecting the witness’s VCF request is related to the method and quality of witness assessment. Some judges find it necessary to “observe [witnesses] giving evidence in person under a solemn atmosphere” in the courtroom as a “neutral” venue. Additionally, judges do not want any interruptions—e.g., ones caused by audio quality—which affect the cross-examination. In-person attendance also safeguards against any “prompting of the witnesses[.]”

Understandably, some judges make use of the subtle communicative details of the interaction process between judges, lawyers, and witnesses as a method of witness assessment. Furthermore, the “solemn atmosphere” of the courtroom is clearly not replicable by any remote means. The insistence for in-person assessment of witness is laudable because it shows that the judges will not easily compromise on the quality of justice, even during a pandemic.

The insistence for solemnness can also be observed in other judicial procedures. For example, the Hong Kong Court of First Instance recently required in-person attendance for the new solicitor admission process. (This forms a striking contrast with the practice in the United States, where—at least in the Ninth Circuit—lawyers take oaths via remote means.)

In light of the above considerations, the Standard Chartered judges believed that the public health considerations were not enough on the facts (Hong Kong’s outbreak situation was apparently viewed as less serious than that of Beijing, where the witness resided) to justify video testimony. Similarly, the witness’s belief that “it would be a serious threat to her health if she had to come to give evidence in person” was not adequate. In doing so, the judges refused to follow foreign judicial practices of allowing such video testimony.

Notably, in Australia, Justice Perram of the Federal Court of Australia in Capic v. Ford Motor Company of Australia Limited expressed understanding with the concerns similar to those raised in Hong Kong over the use of VCF. However, the court emphasized that it is crucial to take into account “the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex”, for example, the “perception of the witness’ facial expressions is much greater than it is in Court.”

The judicial acceptance of VCF as an acceptable and promising solution is widespread. In Australian Securities and Investments Commission v. GetSwift Limited, Justice Lee of the Federal Court of Australia commented that “there is no diminution in being able to assess the . . . [witnesses’] hesitations and idiosyncratic reactions when being confronted with questions or documents.” Furthermore, in the Supreme Court of Victoria case of Long Forest Estate Pty Ltd v. Singh, Justice Dixon “did not find assessment of credit more challenging than it would have been if the various witnesses were physically in court and gave evidence from the witness box.” Notably, his Honor thought that “issues of credit ought not, in and of itself, be a basis to conclude that a proceeding must be heard as an in-person trial.”

In Canada, the Ontario Superior Court of Justice in Arconti v. Smithin has similarly addressed the concerns over the reduction of solemnity in virtual witness examination. In concurring with Justice Perram’s observations in the Australian case of Capic, the Ontario Court noted that “much of the hesitancy and concern that led to the conclusions that the process is ‘unsatisfactory’ or raises ‘due process concerns’ stems from our own unfamiliarity with the technology.”

Yet in both Re Nobility School and Standard Chartered, the concern for effective assessment of witnesses was apparently treated as paramount, trumping the competing public health considerations and the witness’ right to health. However, the latter considerations should arguably be given more thought.

Hong Kong courts have no uniform witness attendance policy applicable to all cases, so public health arguments are left to be raised at the discretion of lawyers and decided at the discretion of judges. Leaving the balancing exercise to the discretion of individual judges creates the impression that public health—as “the science and art of preventing disease”—is not taken seriously. Looking at the judgements themselves, public health considerations are mentioned, but the exact extent to which scientific studies have been relied on remains unknown. For example, the Hong Kong Court of First Instance in Standard Chartered (whose conclusion was affirmed by the Court of Appeal) made an unelaborated and unexplained comparison in the outbreak situations between Hong Kong and Beijing where the witness resided. It is possible that this was argued and resolved as a matter of common-sense observation of the ongoing pandemic, rather than scientific assessment.

Notwithstanding the Hong Kong courts’ handwaving, public health studies can be cited to support the giving of evidence via remote means. One study recommends that “[i]n the absence of robust preventive or curative strategies, the implementation of social distancing has been a key component of limiting the spread of [COVID-19].”  This is because “individuals appear capable of transmitting the virus whether they are asymptomatic, presymptomatic.” Furthermore, there is not yet conclusive evidence on the issue of whether even fully vaccinated persons can still spread the virus or get infected. The absence of a foolproof strategy makes it questionable if the courts should so obsessively press for in-person attendance, especially when it is contrary to the witness’ risk preference.

Beyond public health considerations, the individual right to health is enshrined in Art. 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which is binding on Hong Kong pursuant to Art. 39 of the Hong Kong Basic Law. The UN Committee on Economic Social and Cultural Rights interprets this right to include “the right to control one’s health and body”. This interpretation is widely endorsed, most notably by the World Health Organization.

In this regard, the witness’s preference—to give evidence by remote means and to avoid quarantine—should have been given more weight. Choosing whether to attend an in-person proceeding during a deadly global pandemic is an exercise of the right to control one’s health. Most obviously, a witness required to give in-person testimony is required to risk contracting COVID in her travels to Hong Kong as well as during the live testimony. To make matters worse, the witness is faced with only one option: she must be quarantined for two weeks upon arrival in Hong Kong, and then two additional weeks upon her arrival back home. This is no mere inconvenience, as one academic health study found that “[q]uarantine carries some long-term effects on cardiovascular disease, mainly related to unhealthy lifestyle and anxiety” that frequently accompanies it.

True, the pursuit of effective assessment of witnesses is a substantial consideration and the sacred duty of the judiciary. However, in light of the serious and uncertain nature of the pandemic, it is questionable if there is actually any room for balancing at all. In effect, Hong Kong courts are risking public health for the pursuit of effective assessment of witnesses.

The current approach is that the judge will press for in-person assessment, as long as they deem the situation allows. This is an evasive approach and is not sustainable: What if there is a more serious pandemic in the future? Can the judge still use their discretion to avoid remote testimony? The judges ultimately have to face the hard truth that the quality of witness assessment, and hence justice, has to be compromised at times.

Better yet, the way forward is to look for new effective means and to develop new judicial skills, for assessing witnesses remotely. While this is clearly easier said than done—the solemn atmosphere of the courtroom is not entirely replicable—there are many unexplored possibilities with a video testimony, such as utilizing playback for closer review. Protocols can be introduced to replicate solemnness as much as possible, such as imposing dress codes and background requirements.

In sum, it is essential for the courts to master the use of VCF, and at the same time, constantly reflect on the areas for improvement. This is particularly the case because VCF will remain useful even after the current pandemic, whenever in-person attendance of the key witness is not possible. This may happen when, for example, the witness is too ill to attend or is unable to travel.

Martin Kwan is a Research Director of the OBOR Legal Research Centre and an Honorary Fellow of the University of Hong Kong AIIFL.