Giving Evidence via Video Link in a Singapore Lawsuit
If you are a party to a civil case in Singapore, you may need to call a witness to testify in your case. However, you may want the witness to testify via video link if they are overseas and having them travel to Singapore in person to give evidence is not possible.
The courts in Singapore have specific rules on when this is permitted, and under what conditions, and this article will explain what these are. It will cover:
Can a Witness Give Evidence Via Video Link?
The default position in Singapore is that witnesses must give evidence in person. The rationale for this is that it is easier to extract the truth from witnesses under cross-examination in conditions where they are physically present and subject to the imposing environment of the courtroom.
However, technology has progressed, and the world has become increasingly globalised over time. As a result, the Singapore courts seem to have implicitly accepted that the importance of this rationale has decreased somewhat due to the growing need to be able to conduct business internationally with reduced travel. Accordingly, the Singapore courts can and often do give permission for witnesses to give evidence in civil cases via video link.
When Can a Witness Give Evidence Via Video Link in Singapore?
In the following scenarios, parties may apply to the court for permission for a witness to testify via video link:
- Where the witness is under 18 years of age at the time of the application (even if they turn 18 before testifying);
- Where all parties agree;
- Where the witness is out of the country; or
- Where the court thinks it’s in the interests of justice to allow the witness to testify via video link.
Where all the parties to a case agree, a party can even apply to the court for permission for a witness to give evidence by audio link only.
However, you must have good reasons for needing to give evidence remotely. It is generally not enough that it would be more inconvenient for the witness to give evidence in person. In deciding whether to grant an application to give evidence via video link, the court can consider all of the relevant circumstances, including:
- The reasons for the witness being unable to give evidence in Singapore;
- The administrative and technical facilities and arrangements made at the place where the witness is to give his or her evidence; and
- Whether any party to the proceedings would be unfairly prejudiced.
The case of Wang Xiaopu v Koh Mui Lee and others is an example of this analysis being applied to a real-life situation, where the court denied a claimant’s application for an overseas witness evidence via video link. This was because:
- The claimant was technically able to travel to Singapore, only that it would be very inconvenient and expensive to do so because of COVID-19 related travel restrictions.
- The defendants (against whom the claimant would be testifying) would be unfairly prejudiced by being deprived of their opportunity to confront her in person.
- The claimant had not provided evidence of the technical and administrative arrangements that would have needed to have been made to facilitate her giving of evidence via video link.
On the other hand, the court ultimately allowed a different claimant’s application in Anil Singh Gurm v J S Yeh for an overseas witness to give evidence via video link even though the witness was unwilling, and not unable, to travel to Singapore.
In this case, the witness was unwilling to travel to Singapore to testify as he feared he would be arrested in connection with an unrelated but ongoing criminal investigation in Singapore into him. The court allowed the application for him to testify via video link because:
- He was not a party to the lawsuit itself and did not stand to gain anything from it.
- He had relevant material evidence that would not be considered if he was not able to testify via video link.
- Not allowing the witness to testify would prejudice the party calling him (as he would be deprived of the opportunity to call a key witness), but granting the application would not prejudice the other party in the lawsuit.
- The witness had not been charged with or convicted of any offence in Singapore. As a result, he was not attempting to evade justice by testifying via video link, instead of returning to Singapore to “face the music”.
A witness’ mere unwillingness to travel to Singapore, rather than the impossibility of doing so, is therefore only one factor that the court will consider when deciding whether to allow a witness to testify via video link. A lawyer will be able to provide tailored legal advice on the likelihood of a witness being granted such permission in your specific circumstances.
What Should a Witness Keep in Mind When Testifying via Video Link?
There are a number of technical and administrative considerations for giving evidence via video link that a court might want to know about in advance before deciding whether to allow such an arrangement. These may include:
- The video conferencing software to be used.
- The adequacy of the hardware being used.
- The speed and stability of the internet connection to be used.
- Whether a lawyer from the other side will be present in the room with the witness to ensure that the witness is not being coached.
Witnesses who want to give evidence via video link will need to give some thought to these matters and plan all these factors well in advance.
If the court grants the application for a witness to give evidence via video link, it may lay down conditions regarding the following:
- The persons who may be present at the place where the witness is giving evidence;
- That a person be excluded from the place while the witness is giving evidence;
- The persons in the courtroom who must (or must not) be able to be heard, or seen and heard, by the witness and by the persons with the witness;
- The persons in the courtroom who must be able to see and hear the witness and the persons with the witness;
- The stages in the proceedings during which the court’s conditions on giving testimony via video link are to have effect;
- The method of operation of the live video or live television link system, including compliance with such minimum technical standards as may be determined by the Chief Justice; and
- Any other order the court considers necessary in the interests of justice.
Witnesses, and the parties calling them, should take care to ensure that these conditions are met when the witness testifies via video link.
In particular, the witness should arrange to test all the equipment in advance under the same conditions they will be used for during trial.
Separately, the witness should dress appropriately just as if they were physically going to court. They should also ensure they are in the room early, well before they are scheduled to testify.
What Happens If Technical Difficulties Occur While Testifying via Video Link?
If there are technical difficulties with the link or it breaks down at any point while the witness is giving evidence, the court can suspend or revoke its permission for the witness to give evidence by video link.
What Happens If Giving Evidence via Video Link is Not Possible?
If the court ultimately denies an application for a witness to give evidence by video link (whether due to technical difficulties or otherwise), the witness will need to be present in court in person to give their evidence. For witnesses located outside Singapore, the party calling them to testify will need to pay their travel expenses.
It is important to understand that giving evidence by video link is the exception rather than the rule in Singapore and that getting permission to do so requires that certain very specific conditions be met.
The default continues to be that witnesses must be physically present so that the other side has the opportunity to cross-examine them in person.
Although more of these applications have been granted over the last few years, it is clear that the mere existence of a global pandemic alone is not enough to persuade a court that witnesses can all testify remotely via a video link.
If you have a case involving witnesses located overseas who are unlikely to agree to travel to Singapore to testify in your case, consult a lawyer to develop a strategy to secure an order allowing them to testify via video link.
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