Hong Kong Courts – COVID-19 Update
The general adjourned period (GAP), during which the courts were closed save for urgent and essential business, ended on 3 May 2020, enabling the courts to resume normal business in Hong Kong. Since then, the number of reported cases of COVID-19 in Hong Kong has approximately tripled following a third wave of infections.
All civil court hearings scheduled to take place on 20 and 21 July 2020 (save for urgent matters) were adjourned, while hearings from 22 July 2020 generally proceeded as scheduled with enhanced, more stringent social distancing measures in place which the judiciary deems sufficient to enable the courts to carry on business safely, at least for now. For now, the courts remain open although the next few weeks will be crucial in determining whether the partial lockdown measures recently implemented have been effective in curbing the spread of the virus, subject to which court users face the possibility of another GAP.
General Adjourned Period
The GAP ran from 29 January 2020 to 3 May 2020, although for a brief spell in March some court registries re-opened on the back of an initial decline in reported infections, before Hong Kong experienced a second wave of imported infections as residents returned to Hong Kong from overseas. By the time the GAP came to an end, the rate of reported COVID-19 infections in Hong Kong had fallen to zero, with few fatalities, such that the judiciary deemed it safe to re-open the courts for general business.
By July 2020, it was clear that Hong Kong was dealing with a third, more aggressive wave of infections, seemingly attributable to certain categories of persons (including aircrew and seafarers) having been granted exemption from quarantine upon arrival in Hong Kong. The virus has since escalated in such a manner that the health authorities are now unable to trace the source(s) of many reported infections. The territory is now in partial lockdown and employers have been urged to allow staff to work from home as far as possible. Stringent social distancing measures are in place and the wearing of face masks in all indoor and outdoor public spaces has become compulsory.
After a short adjournment of civil cases for two days, the judiciary announced on 21 July 2020 that court hearings and registry business would generally resume on 22 July, subject to enhanced social distancing measures being implemented within the court buildings, intended to reduce crowd gathering and the flow of people in court premises1. A further announcement made on 28 July 2020 confirmed further adjustments, including reduced capacity limits and admission controls in various parts of the court premises, and reduced capacity seating in the public gallery of courtrooms and reduced operating hours of court registries and accounts offices2.
Inevitably, these changes have significantly reduced the volume of business being handled by court and tribunal registries and account offices. While parties have been informed that they should proceed on the basis that court hearings will proceed as scheduled (unless directed otherwise by the court), some hearings will inevitably be postponed. However, the extent of the disruption is not yet known.
It is notable that the judiciary has (thus far) declined to reinstate the GAP, notwithstanding that the GAP was previously imposed on the back of far less significant changes in rates of infection than Hong Kong is currently experiencing. This decision seemingly recognises that the COVID-19 pandemic could last for a prolonged period and the general closure of court business, itself an essential public service, during this time is not sustainable. The judiciary therefore need to find ways for the court to operate alongside the pandemic; it does not have the luxury of waiting for the virus to subside.
The courts are still catching up on the significant backlog of cases caused by the GAP, during which time it is thought that approximately 25% of the courts' annual caseload was believed to be affected. A further adjournment would only exacerbate the situation.
As has previously been reported, the courts are increasingly conducting civil hearings using videoconferencing facilities and, where possible, determining interlocutory matters based on paper submissions and documentary evidence alone3. It is too early to formulate any conclusions as to the extent to which these measures will help alleviate the backlog of cases but it is a move in the right direction.
In the meantime, the Court Proceedings (Electronic Technology) Bill received its second and third readings in the legislature, between 15 and 17 July 2020, and the Ordinance was gazetted on 24 July 2020. The legislation provides for (among other things) a phased implementation of an integrated court case management system and for the electronic filing of court documents. The legislation takes effect on a date to be announced in the government gazette. The operative date is unlikely to be for at least 12 months, allowing for subsidiary court rules to be prepared and for various "pilot runs" to be undertaken.
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This article is intended to give general information only. It is not a complete statement of the law. It is not intended to be relied upon or to be a substitute for legal advice in relation to particular circumstances.