Hong Kong: Remote Hearings in Hong Kong Courts During COVID-19 and Beyond

In brief

The COVID-19 outbreak has impacted all sectors including the Hong Kong Judiciary, which has implemented a "General Adjournment Period" (GAP) since 29 January 2020. At the time of writing, while the GAP is expected to end on 3 May 2020, measures on social distancing may remain for a longer period and the court's capacity to hear cases may be still be impacted. Accordingly, the Judiciary's recent guidance on the practice for remote hearings by electronic means has been a welcoming initiative.

Our alert discusses the Judiciary's Guidance Note for Remote Hearing for Civil Business in the High Court (Phase 1: Video-Conferencing Facilities) (Guidance Note) and the implications for hearings beyond COVID-19.


Contents

What it means for litigants

The Guidance Note allows interlocutory applications before the Court of First Instance (CFI) and Court of Appeal (CA), as well as final hearings ordinarily dealt with on written evidence in the CFI, to be heard via the court's video-conferencing facilities (VCF). The note also observes that remote hearings using video technology preserve most of the benefits of an oral hearing, allowing parties and their legal representatives and the court to interact with each other on a real-time basis. In general, applications suitable for remote hearing by VCF are those which the court thinks focused oral submissions can be concluded within two hours. At present, trials will not be considered suitable for remote hearings.

This development has allowed the court to hold hearings more flexibly without requiring parties and legal representatives to physically attend in court buildings during the COVID-19 pandemic. Since the release of the Guidance Note, at least two cases have used VCF for conducting hearings - CSFK v HWH [2020] HKCA 207 and Lui Chi Hang Hendrick v Independent Police Complaints Council [2020] HKCFI 614.

The Guidance Note also has case management implications. The court can on its own motion order a remote hearing, and Order 1A rule 4(2)(j) and (k) and Order 1B rule 3 of the Rules of the High Court shall apply. It is a case management decision within the discretion of the Judge concerned as to which hearings, or any part of hearings, should be conducted as remote hearings. Since interlocutory applications and appeals can now be dealt with by VCF, parties intending to take out such applications (especially those before milestone dates) should act as expeditiously as possible as the Court would not be sympathetic to late applications even though time taken for filing evidence may be prolonged by virtue of the GAP.[1]

Remote hearings in other courts and beyond COVID-19

In the first phase, parties can only use VCF already installed in courtrooms as the platform for conducing remote trials. At this stage, VCF is only applicable in the CFI and the CA. It would be useful to extend the remote hearing regime to other courts and tribunals, which also have heavy caseloads. However, one caveat is that parties will be responsible for using equipment that meets the technical requirements required by the Judiciary. We expect that the VCF arrangement will be more suited to parties represented by law firms as they typically have more resources and IT expertise in dealing with technical glitches arising from remote hearings.

The Guidance Note also anticipates that other video and electronic technology may be used in subsequent phases. We note that other jurisdictions such as the UK and Singapore have begun using third-party software for court hearings. It remains to be seen whether the Hong Kong courts would allow methods other than VCF to conduct hearings in the future, subject to security and privacy concerns surrounding the third-party software. Together with the contemplated implementation of an integrated court case management system under the Court Proceedings (Electronic Technology) Bill, we expect that remote hearings and the increased use of technology will become part and parcel of our litigation practice in the long term and beyond COVID-19.

Practical considerations for conducting remote hearings

When taking part in a remote hearing, we recommend that parties pay attention to the following practical points:

  • Location of legal teams: To ensure that a party's legal team operates effectively and efficiently, Counsel and solicitors should attend the remote hearing at the same location so that instructions and discussions can be communicated promptly, clearly and seamlessly.
  • Observance of usual court rules: Parties should treat remote hearings as if they are conducted in real life courtrooms and strictly observe usual court rules and etiquette. In particular, no party should be allowed to make any video or audio recording of the proceedings.
  • Testing of technology: Trial runs should be held with the court prior to the hearing to avoid any technical glitches during the hearing. Cameras should be adjusted to ensure that the face and voice of the speaker is caught clearly.
  • Use of e-bundles: In addition to ensuring that all bundles comply with the relevant practice directions, parties should carefully prepare e-Bundles which are electronically paginated and fully searchable by OCR. Parties should also consider arranging for e-bundles to be hosted on an online platform if appropriate.
  • Background: Inappropriate pictures or objects should be removed from the line of sight of the video camera. A neutral background is preferred to avoid inadvertent display of inappropriate background.
 

[1] 鄧錦祥 v. 鄭鄧錦容 [2020] HKCA 194

 


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