27 January 2021

When cross examination gets too tough


Samantha Gershon
Partner | Hong Kong

Phase 3 of the Hong Kong Judiciary’s Guidance Note for Remote Hearings in the Civil Courts came into effect on 2 January 2021. This has been much needed as it brings our video conferencing and telepresence solutions into the 21st century. If the prevailing public health situation prohibits courts from opening and only allows urgent and essential court hearings and business, or when there is a situation where counsel or a party is unable to attend in person due to Covid-19 travel restrictions, there are now other ways in which hearings and trials may be conducted.

In a novel application made to the family court earlier this month, a request was made to the Court that the husband, who was acting in person, should be unable to examine the wife directly. Instead, it was suggested by the wife that the husband should write down the questions he wished to ask and that the judge asked them instead. There were good reasons for this, as these were extraordinary proceedings that had been before the court for many years. There was a non-molestation order in place to protect the wife and children and the husband had been in prison for 28 days for breaching the non-molestation order.

An application of this kind had not been applied for or granted in Hong Kong before. There have been a number of English cases examining this issue. Judges in England & Wales have tried a variety of techniques to manage these types of cases, for example where the judges themselves will relay questions to the vulnerable witness on behalf of the litigant in person. The judiciary raised concerns that employing such practices may lead to questions about their impartiality. This led to the judges calling for clearer guidance on appropriate case management practices in these cases whilst retaining their ability to exercise judicial discretion. In other words, one size does not fit all!

In the case before the Hong Kong family court, the judge, knowing the case well, was able to consider the best way to allow the husband to put his case forward fully, properly and fairly whilst protecting the wife as much as possible. Although there was a non-molestation order in place, this was not a case of extreme physical violence. The judge accepted that the wife was scared of the husband and that this would increase her anxiety. The husband was not in Hong Kong but was attending the trial via video conference facilities (“VCF”). Due to Covid-19, the wife was already wearing a mask on the stand which would protect some of her facial expressions. The judge did consider allowing the wife to turn her back to the husband on the large screen in court but practically that would not work due to the recording system in the courtroom. The recording system was already struggling with everyone wearing masks and speaking through the Perspex. The judge said that she would intervene if she felt that the line of questioning by either side was inappropriate. She said she had no doubt that the wife’s team of lawyers would do so as well. The Judge also said that cross examination, if done properly, is a dynamic art. It is not limited to a list of questions. She, therefore, denied the wife’s application and allowed the cross examination.

So what happened during the husband’s cross examination? When the going “got tough” during the cross examination against him – he disconnected the VCF connection with the Court!

Samantha Gershon Partner | Hong Kong

Category: Article