LIVE EVIDENCE FROM OUTSIDE HONG KONG
Remote testimony remains subject to judicial permission
Hong Kong courts may permit a witness outside Hong Kong to give evidence in criminal proceedings by live television link. The witness gives evidence in real time and may be examined and cross-examined, but remote testimony remains subject to the court's discretion and the safeguards in the Courts (Remote Hearing) Ordinance (Cap. 654).
This procedure is distinct from a Letter of Request. A live link provides a means for a willing overseas witness to testify remotely; it does not give a Hong Kong court compulsory power over a witness abroad.
THE CURRENT LEGAL FRAMEWORK
Courts (Remote Hearing) Ordinance (Cap. 654)
Cap. 654 came into operation on 28 March 2025. It repealed Part IIIB of the Criminal Procedure Ordinance, including section 79I, and the former Live Television Link (Witnesses outside Hong Kong) Rules in Cap. 221L. Remote participation is now governed by the unified statutory framework in Cap. 654, subject to its transitional provisions for existing proceedings.
Application or the court's own motion
Under section 6, the court may make a remote hearing order on its own motion or on the application of a party. The order may specify the remote medium, hearing arrangements, participating persons, their locations and any necessary conditions.
Overseas participation
Sections 13 and 16 permit a participant to attend from within or outside Hong Kong, unless the law or the court requires otherwise. Hong Kong law concerning evidence, procedure, contempt and perjury applies to an overseas participant attending under the order.
The court retains control
The court must consider the statutory factors in section 9, including the evidence, the parties' views and rights, freedom from coercion, credibility, reliability, effective conduct of the case, facility quality and whether a fair trial can be maintained.
Criminal trials remain excluded, with a witness exception
A criminal trial as a whole ordinarily cannot be conducted remotely because it is an excluded proceeding under Schedule 1 of Cap. 654. However, sections 6(4) and 6(5) allow the court to order that a particular witness, other than a vulnerable witness, give evidence or be examined remotely during the trial. Separate statutory protections continue to govern vulnerable witnesses.
KEY REQUIREMENTS AND FACTORS
The court must be able to receive and test the evidence fairly
Discretion and fairness
Under sections 6 and 9 of the Courts (Remote Hearing) Ordinance (Cap. 654), the court must be satisfied that a remote hearing order is in the interests of justice. The arrangement must preserve the right to a fair trial and allow the evidence to be tested effectively through cross-examination.
Reasons for remote evidence
The application should explain why the witness cannot or should not attend in person. The court may consider the witness's ability and willingness to travel, the cost and burden of attendance, the importance of the evidence and any practical alternative.
Location, technology and safeguards
The witness's overseas location, the proposed facilities, the expected duration and any interpreter must be identified. The link must be available, pre-hearing testing must be completed and reasonable measures must protect the witness from coercion.
Documents and exhibits
The parties should ensure that the remote witness can securely access the documents and exhibits required during examination. The court may give directions governing electronic bundles, document display and transmission. Ordinary questions of authenticity, admissibility and evidential weight remain for the court.
Application timetable
A party may apply for a remote hearing order, and the court may also act on its own motion. The application must follow the applicable practice direction, case-management directions and timetable for the particular court and proceeding. Parties should raise the issue early enough for submissions, technical arrangements and testing.
CAP. 654: THE REPLACEMENT REGIME
The statutory test for remote evidence
The former section 79I refusal grounds have been replaced by an interests-of-justice assessment under sections 6 and 9.
Interests of justice
A remote hearing order may be made only where the court is satisfied, after considering the section 9 factors, that the order is in the interests of justice.
Fair-trial protection
The court considers whether the parties can conduct the case effectively, whether their rights and privileged communications are protected, and whether a fair trial can be maintained.
Evidence and credibility
The nature of the evidence, freedom from coercion or other influence, and any effect on the assessment of credibility and reliability must be considered.
Technology and security
The quality, security and availability of the proposed remote facilities form part of the statutory assessment.
Variation or revocation
The court may vary or revoke a remote hearing order where the statutory conditions are met, including following a material change in circumstances.
THE APPLICATION PROCESS
From identifying the witness to giving live evidence
HOW MCS CAN ASSIST
Preparing and responding to live-link applications
MCS can advise whether overseas evidence by video link is legally available and appropriate, prepare or respond to the application, and present the relevant fairness and interests-of-justice considerations. We can coordinate with the witness, overseas lawyers, interpreters and the Judiciary, arrange the documents required for examination, protect cross-examination rights and address the admissibility, reliability and weight of the evidence.