Islam Mohammad Rakibul v Nib Point Construction and another

• Jurisdiction: Singapore
• Judge: Chiah Kok Khun
• Judgment Date: 03 August 2022
• Neutral Citation: [2022] SGDC 174
• Court: District Court (Singapore)
• Docket Number: Suit No 2923 of 2020 (Summons No 1416 of 2022)
• Published date: 19 August 2022
• Year: 2022
• Hearing Date: 13 June 2022,19 July 2022
• Plaintiff Counsel: Manickavasagam S/O R M Karuppiah Pillai (Manicka & Co)
• Defendant Counsel: Lee Jia En, Gloria (Civic Legal LLC),Anparasan S/O Kamachi and Vinodhan Gunasekaran (WhiteFern LLC)
• Subject Matter: Evidence,Witnesses,Overseas witness not unable to testify in person,Whether leave to testify via video link should be granted,Section 62A of the Evidence Act 1893
• Citation: [2022] SGDC 174

District Judge Chiah Kok Khun: Introduction

This is an application for leave to give evidence via video link, and is made in the wake of Wang Xiaopu v Koh Mui Lee and others [2022] SGHC 54 (“Wang Xiaopu”), a very recent decision of the High Court dealing with the question of remote hearings. The advent of the Covid-19 pandemic (“pandemic”) has seen the widespread use of the court’s powers to admit remote evidence of witnesses who are overseas, on the basis that they are unable to travel to Singapore. Evidence given remotely via video link has become common place in our courts. In Wang Xiaopu (at [13]), the High Court cautioned against blindly citing the pandemic as a reason as to why a witness is unable to travel to Singapore to give evidence, in applying for leave for evidence to be given remotely. The High Court was of the view that the pandemic situation appeared to have stabilised and mere generalisations about travel disruptions brought on by the pandemic are insufficient to explain why a witness is unable to travel.

The defendants in the present case cited Wang Xiaopu in resisting the application by the plaintiff for leave to give evidence via video link from Bangladesh. On the specific facts of the case before me, I disallowed the plaintiff’s application. Notwithstanding my decision, I am of the view that we should be mindful of any regression from the widespread adoption of remote hearings achieved during the pandemic. There should not be a reversion to the pre-pandemic state of affairs, where remote hearings were allowed only in exceptional circumstances. We need to guard against any degree of abandonment of remote hearings, and losing the many attendant advantages of efficiency, convenience and costs savings. I will return to this later in the judgment.

The underlying suit in which this application is made was commenced by the plaintiff for injuries suffered as a result of an accident whilst working at a building project at the junction of Paya Lebar Road and Sims Avenue (“the worksite”).¹ The plaintiff was a construction worker. It is the plaintiff’s pleaded case that he was assigned to remove a plastic laminate from a glass window panel whilst standing on a ladder at the worksite. When the plaintiff was standing on top of the ladder, the plastic laminate tore away from the window panel which caused the plaintiff to lean backwards. This resulted in the plaintiff losing his balance and falling off the ladder (“the accident”).² The plaintiff asserts that he suffered injuries to his lower back, left thigh and left knee. He claims that the injuries resulted in permanent disabilities, including chronic back pain.³ He contends that he is unable to return to work as a construction worker. The plaintiff claims against the defendants in negligence and breach of statutory duties for the injuries suffered by him as a result of the accident.⁴

The 1st defendant was the employer of the plaintiff and the sponsor of his work permit. It was essentially a supplier of labour. The 1st defendant’s case is that it did not have management, care and control over the worksite and the works carried out therein.⁵ It is therefore not the correct defendant. The 1st defendant also contends that the accident was caused by the plaintiff’s own negligence.⁶ The 2nd defendant was the project manager of the worksite. The thrust of the 2nd defendant’s case is that there were no witnesses to the accident. The 2nd defendant noted that when the plaintiff saw a doctor at Khoo Teck Puat Hospital four days after the accident, the medical examination showed that the plaintiff only suffered from back pain. It was only about a year later, when the plaintiff consulted a private specialist that he was diagnosed with chronic back pain and other injuries, with resulting permanent disabilities.⁷ The 2nd defendant therefore casts doubts on the plaintiff’s claims for injuries suffered. The 2nd defendant further pointed out that whilst the plaintiff filed this suit against the labour supplier (1st defendant) and the project manager of the worksite (2nd defendant), he did not make claims against either the main contractor or the sub-contractor who assigned him the work.⁸ The 2nd defendant accordingly raises the issue of the credibility of the plaintiff in filing his claim.

The matter has been set down for a bifurcated trial on liability. The plaintiff hailed from Bangladesh and had since filing the claim returned home. He does not hold any Singapore work or visit pass. The plaintiff applied for leave to be granted to him to give evidence at the trial by a live video link from Bangladesh, pursuant to s 62A of the Evidence Act 1893 (“EA”).

The 1stdefendant objects to the application on the basis there is no evidence that the plaintiff took steps to enable himself to give evidence in person. He has not shown that he is precluded by the pandemic situation from travelling to Singapore to give evidence at the trial. The 1st defendant points out that the plaintiff has conceded that immigration entry requirements have been relaxed; and the plaintiff has not shown that he had applied for a visa but was unable to obtain one.

The 2nd defendant likewise objects to the application, and contends that the plaintiff is “not unable” to travel to Singapore to testify in person under s 62A of the EA. The 2nd defendant argues that the plaintiff will not be unfairly prejudiced if he is to come to Singapore to testify; whilst the 1st and 2nd defendants will be unfairly prejudiced if the plaintiff does not come to Singapore to give evidence in person. The 2nd defendant also contends that the plaintiff has not shown that there are adequate and sufficient technical arrangements for him to give evidence via video link from Bangladesh.

The law in relation to giving evidence via video link is largely uncontroverted. The general principle is that a witness must physically be in court to testify: Anil Singh Gurm v J S Yeh & Co and another [2020] 1 SLR 555 (“Anil Singh”) at [2]. The court however has powers to allow evidence to be admitted via video link. In particular, s 62A of the EA allows the court to grant leave for evidence to be given via video link in certain situations. In the present case, the plaintiff relies on s 62A in support of his application for leave to give remote evidence.

Section 62A of the EA states as follows:

Evidence through live video or live television links

62A.—(1) Notwithstanding any other provision of this Act, a person may, with leave of the court, give evidence through a live video or live television link in any proceedings, other than proceedings in a criminal matter, if — (a) the witness is below the age of 18 years; (b) it is expressly agreed between the parties to the proceedings that evidence may be so given; (c) the witness is outside Singapore; or (d) the court is satisfied that it is expedient in the interests of justice to do so. (2) In considering whether to grant leave for a witness outside Singapore to give evidence by live video or live television link under this section, the court shall have regard to all the circumstances of the case including the following: (a) the reasons for the witness being unable to give evidence in Singapore; (b) the administrative and technical facilities and arrangements made at the place where the witness is to give his evidence; and (c) whether any party to the proceedings would be unfairly prejudiced. (3) The court may, in granting leave under subsection (1), make an order on all or any of the following matters: (a) the persons who may be present at the place where the witness is giving evidence;

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(h) any other order the court considers necessary in the interests of justice. (4) The court may revoke, suspend or vary an order made under this section if — (a) the live video or live television link system stops working and it would cause unreasonable delay to wait until a working system becomes available; (b) it is necessary for the court to do so to comply with its duty to ensure that the proceedings are conducted fairly to the parties thereto; (c) it is necessary for the court to do so, so that the witness can identify a person or a thing or so that the witness can participate in or view a demonstration or an experiment; (d) it is necessary for the court to do so because part of the proceedings is being heard outside a courtroom; or (e) there has been a material change in the circumstances after the court has made an order. (5) The court shall not make an order under this section, or include a particular provision in such an order, if to do so would be inconsistent with the court’s duty to ensure that the proceedings are conducted fairly to the parties to the proceedings.

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(8) Where a witness gives evidence in accordance with this section, he shall, for the purposes of this Act, be deemed to be giving evidence in the presence of the court.

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Issue

The issue that arises for determination in this case is therefore whether s 62A of the EA permitted the grant of leave to a witness in the position of the plaintiff to give evidence via video link.

Analysis and findings The court’s power to allow evidence to be given via video link

It should be noted at the outset that the court’s power to allow evidence to be given via video link is not newly acquired. The Court of Appeal noted in Anil Singh at [37] that s 62A, which was passed only in 1996, was enacted to clarify and enlarge the court’s powers in relation to evidence given by live video and television links. The court’s powers in relation to giving evidence via video and television links were thus in existence before the enactment of s 62A. Section 62A is therefore not the provision that enables the giving of evidence by live video...