The courts have for a long time been presented with difficulties if an overseas witness is able and willing to give evidence but is either unable or unwilling to travel to Hong Kong to give that evidence. While mutual legal assistance arrangements exist with many overseas jurisdictions, the process can often cause delays, interruptions and greater expense for all parties, as existing arrangements require parties to attend with their legal teams overseas.
Practice Direction 9.9
With effect from 1 February 2016, Practice Direction 9.9 allows for parties in all criminal cases to make an application for a person to give evidence to the court from a place outside Hong Kong by way of a live television link. An application can be made by giving notice to the Court Registrar or Clerk (and the other party), usually within 42 days from a pivotal point in the pre-trial phase of the case. The application must be served on the Court and the other party, identifying the name of the witness, the country and location where the witness will give that evidence, the grounds for asking for live TV link, and the Court where the witness will proffer the evidence. If approved, arrangements will then be made through the Judiciary. The TV link can be, although does not have to be, made in the Technology Court. However, parties must specify what facilities and equipment will be required and for how long. The parties are also required to conduct pre-hearing tests to ensure that the connections are smooth. They must also make all necessary preparations for the attendance of the overseas witness (and interpreter if required) and ensure the witness has any documents or exhibits required during the course of the examination by live TV link.
This will be a useful remedy for parties in criminal proceedings to obtain overseas evidence. However, it will be necessary to consider the inability or unwillingness of the witness to travel, the relative cost, the significance of the proposed evidence, and alternative ways of having evidence admitted. There does not appear to be any restriction on the type of facility that can be used to host the video link overseas, save that it is subject to the leave of the court. For some witnesses (particularly expert witnesses) their presence at Court may be tactically more beneficial, for example by enabling conferences to take place.
The new Practice Direction should be read in conjunction with s. 79I of the Criminal Procedure Ordinance (Cap.221), which provides that a Court will not grant permission for evidence to be given by live TV link if the person concerned is in Hong Kong; the evidence can more conveniently be given in Hong Kong; live television link is not available and cannot reasonably be made available; measures to ensure that the person will give evidence without coercion cannot reasonably be taken; or it is not in the interests of justice to do so. Section 79I also does not allow for a Defendant in criminal proceedings to give evidence by live TV link from overseas.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: http://www.hk-lawyer.org/content/practice-direction-99-allow-live-television-link-evidence-criminal-proceedings