Technology is increasingly being utilised by courts and other bodies for the purpose of dispute resolution. For example, many courts and other dispute resolution bodies around the world, such as arbitration commissions, are conducting online proceedings. This has become even more relevant during pandemics such as the covid-19 pandemic, where people are unable to attend the proceedings in person (for a discussion about the contractual impact of pandemics on corporate and finance transactions, see China Business Law Journal volume 11, issue 5: Pandemics). In addition, many courts and other bodies are hearing evidence provided by witnesses via electronic means, such as video links (for a discussion about evidence given by expert witnesses, see China Business Law Journal volume 10, issue 4: Expert evidence).
This article considers the rules governing the giving of evidence by video link in civil proceedings. Separate rules and principles are relevant in the case of criminal proceedings, where the courts have to consider a range of special issues including the position of vulnerable witnesses and victims of crime. The article begins by examining the rules in common law jurisdictions. It then considers the rules in mainland China. Finally, it examines the situation where evidence from a foreign jurisdiction is collected in mainland China and considers whether this is possible, and, if so, whether evidence can be taken by video.
Common law jurisdictions
In common law jurisdictions, the rules governing evidence are based on both statute and case law, and courts exercise a high degree of discretion based on their inherent power to manage and control cases and court proceedings. This is reflected in rule 32.1 of the Civil Procedure Rules 1998 (UK):
Power of court to control evidence
(1) The court may control the evidence by giving directions as to –
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination.
The traditional position is that oral evidence must be given in person and in public. This is reflected in rule 32.2 of the UK rules:
Evidence of witnesses – general rule
(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.
(2) This is subject –
(a) to any provision to the contrary contained in these rules or elsewhere; or
(b) to any order of the court.
(3) The court may give directions –
(a) identifying or limiting the issues to which factual evidence may be directed;
(b) identifying the witnesses who may be called or whose evidence may be read; or
(c) limiting the length or format of witness statements
Courts in many jurisdictions are able to hear evidence given by witnesses by video link upon application by a party. This is reflected in rule 32.3 of the UK rules:
Evidence by video link or other means
32.3 The court may allow a witness to give evidence through a video link or by other means.
Similarly, section 47A(1) of the Federal Court of Australia Act 1976 provides that, “the court or a judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means”. Further, section 47B(1) provides that the court or a judge may, for the purposes of any proceeding, direct or allow a person to appear or make a submission “by way of video link, audio link or other appropriate means”.
In Hong Kong, the rules governing video evidence are based primarily on rules formulated in case law.
In all three jurisdictions, there are rules as to when evidence may be given by video. In the UK, for example, a guidance note has been issued in relation to the use of video conferencing (VCF) in civil proceedings. Based in part on the protocol of the Federal Court of Australia, the guidance note provides that:
A judgment must be made in every case in which the use of VCF is being considered, not only as to whether it will achieve an overall cost saving, but as to whether its use is likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognized that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.
The above extract highlights the importance of achieving a balance between convenience and the need for a court to maintain control over the court process.
In Hong Kong, case law has established that courts are prepared to allow video evidence in circumstances where a witness is unable to travel to Hong Kong because of health problems, and where video evidence would be justified on the basis of cost and convenience.
The position in mainland China is similar to the position in the above-mentioned three jurisdictions. Article 73 of the Civil Procedure Law of the People’s Republic of China (CPL) provides as seen in Citation 1.
Article 73 of the CPL provides that evidence may be given by video upon application to the court and sets out the circumstances in which this will be permitted. The circumstances are similar to the factors that are taken into account in jurisdictions such as the UK, Australia and Hong Kong.
Article 73 of the Civil Procedure Law of China
A witness shall testify in court upon notification by a people’s court. In any of the following circumstances, and with the approval of the people’s court, a witness may testify by means such as written testimony, audio-visual transmission technology or audio-visual material:
- [the witness] is unable to appear in court due to health reasons;
- [the witness] is unable to appear in court due to geographical distance or inconvenient transportation;
- [the witness] is unable to appear in court due to force majeure such as natural disasters;
- [the witness] is unable to appear in court due to any other legitimate reasons.
Taking evidence abroad
Many countries have enacted legislation governing the circumstances in which evidence can be taken or collected in their jurisdiction for the purpose of foreign court proceedings.
In mainland China, for example, article 277 of the CPL provides that evidence in relation to foreign court proceedings may only be taken in the PRC on the following basis:
- pursuant to international treaties concluded or acceded to by the PRC; or
- where no treaty relations exist between the PRC and the foreign country in which the proceedings are taking place, through diplomatic channels and on the basis of the principle of reciprocity.
It is not clear how the principle of reciprocity would be applied in respect of the taking of evidence, whether by video link or by other means, through diplomatic channels. In respect of the recognition of foreign judgments by PRC courts under article 282 of the CPL, the principle of reciprocity is considered to be satisfied where the courts in the relevant foreign jurisdiction have previously recognized a judgment issued by a PRC court.
In Australia, for example, there are two cases in which PRC court judgments have been recognized by an Australian court: Liu v Ma & Anor  and Suzhou Haishun Investment Management Co Ltd v Zhao & Ors . These cases indicate that an Australian court (specifically, the Supreme Court of Victoria) has recognized and enforced PRC court judgments. There is as yet no known example of a PRC court recognizing and enforcing an Australian court judgment on the basis of reciprocity. It is possible, however, that the principle of reciprocity would be considered to be satisfied in respect of the taking of evidence as a result of the above precedents concerning the recognition of PRC court judgments by an Australian court.
The question as to whether video evidence can be taken in mainland China for the purpose of foreign court proceedings is also uncertain.
The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (the Hague evidence convention) provides a basis on which evidence may be taken in member countries through the transmission and execution of letters of request, or through diplomatic channels.
Australia, the UK and the People’s Republic of China (which includes the special administrative regions of Hong Kong and Macau) are members of the Hague evidence convention.
The Permanent Bureau of the Hague Conference on Private International Law has published a document concerning the taking of evidence by video link under the Hague evidence convention. The document was prepared for a special commission meeting on the practical operation of the Hague evidence convention in February 2009, and states that it was “designed to prepare and assist these discussions, in particular as regards the legal bases for the taking of evidence by video links under the evidence convention, and possible future work that may be undertaken by the permanent bureau in this field”.
The PRC does not appear to have expressed any position in relation to the taking of evidence by video link under the Hague evidence convention. Some PRC lawyers, however, believe that the taking of evidence by video for the purpose of foreign court proceedings would be consistent with local law and practice in mainland China and, accordingly, a letter of request for evidence to be taken by video is likely to be accepted under the Hague evidence contention, and pursuant to article 277 of the CPL.
A further possible basis for taking evidence in mainland China via video link for the purposes of foreign court proceedings is through diplomatic channels, and on the basis of the principle of reciprocity as provided under article 277 of the CPL.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia