WHEN REMOTE HEARING WOULD NOT BE APPROPRIATE
While remote hearings have become increasingly common due to COVID-19, it is not always necessarily appropriate for hearings to be conducted remotely. One such case is Wang Xiaopu v Koh Mui Lee & 2 Ors [2022] SGHC 54 (“WX v KML”), where the General Division of the High Court rejected an application for leave under s 62A of the Evidence Act for a witness to give evidence via video-link.
Brief facts. The plaintiff in WX v KML (a natural person) had previously obtained judgment against one Dr. Goh Seng Heng (“Dr. Goh”). When the judgment debt remained unpaid, the plaintiff commenced the present proceedings against Dr. Goh’s family members (the defendants), alleging that Dr. Goh had transferred and/or acquired assets or properties in their names so as to put them out of reach of Dr. Goh’s creditors. ([2] – [3] WX v KML).
The application in question was an application by the plaintiff for the plaintiff to give evidence by way of video link. We summarise the reasons given by the plaintiff and the defendants below for ease of reference (see [4] – [5], [9] WX v KML):
The Court’s approach. The Court first re-iterated that the general principle is that a witness must be physically present in Court and that s. 62A of the Evidence Act is an exception that allows the court to grant link for evidence to be given via video link ([7] WX v KML).
The Court then held that the plaintiff had satisfied the requirement in s. 62A(1)(c) of the Evidence Act (as the plaintiff was outside Singapore) and turned its attention to s. 62A(2) of the Evidence Act.
Unable to travel to Singapore? The Court was not satisfied that the plaintiff was unable to travel to Singapore. The Court clarified that for a party to be “unable” to travel, it implies a lack of choice: the reason given for not travelling to Singapore therefore must be “related to circumstances outside [the witness’s control].” ([10] WX v KML).
We set out in a table below the Court’s analysis of the reasons given by the plaintiff as well as a summary of our observations:
Party to the suit. It is also relevant to note that the Court distinguished the cases of Anil Singh Gurm v J S Yeh & Co and another [2020] 1 SLR 555 (“Anil Singh”) and Sonica Industries Ltd v Fu Yu Manufacturing Ltd [1999] 3 SLR(R) 119 (“Sonica Industries”).
The Court found that, unlike those decisions, the witness in question is the plaintiff, a party to the suit: hence, the plaintiff would have known about the trial dates and been able to make the proper arrangements, especially when the plaintiff herself is giving evidence in support of her case (see [22] – [25] WX v KML).
Perspective of the litigants. The Court was also careful to emphasize that parties have an important role to play in the proceedings and hence their perception of how the trial unfolds is important ([28] WX v KML).
Thus, while judges can conduct trials remotely, “it is not only important that justice be done, but that the litigants themselves see that justice has indeed been done. Often, the vindication litigants receive may not necessarily come from a favourable outcome, but rather, from having had the opportunity of confronting the opposing party physically in court. In that sense, the perception of litigants as to how the trial is conducted is also a consideration that can, and should, in my view, be taken into account in deciding whether leave should be granted.” ([29] WX v KML).
The result. The Court summarised its reasons at [30] – [31] WX v KML, finding that the plaintiff would not be unfairly prejudiced if required to travel to Singapore to give evidence, as the reasons given by the plaintiff did not relate to the plaintiff’s presentation of her case, but rather the “inconvenience and potential health risk she would face”.
In contrast, the Court found that the defendants would be unfairly prejudiced, as there are matters which the defendants wish to cross-examine the plaintiff on and they “should not be deprived of the opportunity to respond to [the plaintiff’s] case by cross-examining her in person.”
Implications. Remote hearings have become increasingly common due to COVID-19. However, WX v KML is an important reminder that while remote hearings are increasingly common, it may not always be appropriate for hearings to be conducted remotely just because it is technically possible to do so, especially when it comes to court proceedings.
Similarly, it is important to note that it is clear that the courts will scrutinize the reasons given for remote hearing carefully. Applicants seeking to have witness(es) give evidence remotely should not assume that an assertion of “travel difficulties” or “travel restrictions” due to COVID-19 would be sufficient (in and of itself) to warrant the court granting the application sought.
Lastly, it is also important to note that at [33] – [38] WX v KML, the Court emphasized that in certain situations, the party seeking to give evidence remotely should be prepared to give details of what are the administrative and technical arrangements in place for giving evidence remotely. The Court observed that it may not always be enough for the applicant to simply say that the witness “would testify from a venue “equipped with the necessary video conferencing facilities, such as a web-camera, microphone, speakers and a stable internet connection”, [as] given how ubiquitous remote hearings have become, … it would not be unduly burdensome on parties to provide more evidence” ([37] WX v KML).
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