Hong Kong Courts – Further guidance on remote court hearings
A second, more comprehensive guidance note on remote hearings in civil proceedings came into effect on 15 June 2020. The phase 2 guidance note provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first instance courts and the Court of Appeal, and is to be read together with the phase 1 guidance note issued on 2 April 2020.
Phase 1 was an important development in the courts' adoption of increased IT for civil hearings, introduced during the General Adjourned Period (GAP) in response to the COVID-19 public health emergency, during which time the courts were generally closed, save for urgent and essential court business. The GAP came to an end on 3 May 2020.
That said, phase 1 was limited in scope. Even if the courts approved the use of videoconferencing facilities with respect to civil hearings, their use was generally limited to interlocutory applications or appeals in the Court of First Instance and the Court of Appeal. Such remote hearings tended to be limited to those matters that could be disposed of by concise oral submissions.
Further, the technical specifications under phase 1 were limited to hardware videoconferencing facilities that were compatible with the courts' facilities.
Phase 2 provides for remote hearings using expanded videoconferencing facilities and telephone. The intention is to replicate, so far as possible, the environment of a physical court hearing and simultaneously remove the risks that physical hearings pose to public health and safety.
Some of the major initiatives adopted pursuant to phase 2 are as follows.
Expanded court coverage
Phase 2 expands the use of videoconferencing facilities to all of the principal civil courts in Hong Kong. In addition to the High Court (namely, the Court of First Instance and the Court of Appeal), therefore, this will include the Competition Tribunal (presided over by a High Court judge), the District Court and the Family Court. The use of remote hearings is also extended to civil hearings conducted by judicial officers such as masters in the High Court and in the District Court.
Under phase 1, the types of matter considered suitable for disposal using remote hearings were interlocutory matters or a limited range of civil appeals, provided that they could be concluded by oral submissions within two hours.
Under phase 2, the courts will also consider whether some first instance civil trials, or parts of those trials, are suitable for remote hearing. Where the remote hearing involves taking evidence from a witness outside Hong Kong, the party calling that witness is responsible for ensuring that the remote location from which the witness is to give evidence is suitable for a remote hearing.
Interlocutory applications and appeals to the Court of Appeal will now be considered suitable for remote hearings by videoconferencing if the court considers that the oral submissions can be concluded within one day.
Technical specifications for remote hearings and functional requirements
The guidance note for phase 2 gives much more detail on the necessary technical specifications. They identify the type of IT equipment needed to participate in remote hearings, including a videoconferencing unit, laptop computer, display unit, camera, speaker system and microphone. The technical specifications also set out the standard functional requirements for each piece of IT equipment.
As of 15 June 2020, it is possible to connect to the courts' videoconferencing facilities using hardware or software options. For hardware options, court users can continue to connect using suitable videoconferencing equipment. For software options, court users can use computer devices with the appropriate software installed. Participants using software options participate by using a valid meeting ID and passcode.
Phase 2 also gives details of the types of matters that may be suitable for disposal using remote telephone hearings. These include routine directions hearings and matters in the courts' daily "three-minute" list. The guidance note includes standard directions for when a matter is to be conducted by a remote hearing using videoconferencing facilities (Appendix A) or telephone (Appendix B), together with an attendance sheet (Appendix C). The attendance sheet is important because, in addition to the identification and authentication requirements, the courts will want to record who is attending the remote hearing.
The phase 2 guidance note is a welcome development. It represents the most recent initiative in the courts' adoption of IT following the COVID-19 public health crisis. Such initiatives were necessary in any event and now form part of the courts' gradual and incremental approach to the use of IT.
Under the phase 1 guidance note, the decision of whether to dispose of a matter by remote hearing was a matter to be decided by the courts and an exercise of case management discretion. Under phase 2, the parties themselves may apply to have a hearing disposed of using videoconferencing facilities. The initiative for telephone hearings still rests with the courts for now.
Some logistical issues remain a work in progress. The broad presumption is that court hearings in Hong Kong are open to both the public and the media. However, given the public health restrictions that remain in place, there are limitations on space in the courtrooms from which a remote hearing may be conducted. This should not prevent the hearing taking place, but it may restrict the principle of "open court" in some civil hearings. By way of comparison, in certain jurisdictions (such as England and the USA), members of the public can listen to and observe some civil hearings that are "live-streamed" on the internet.
As a matter of court process, there appears to be no restriction on an advocate or legal representative attending a remote hearing while being located outside Hong Kong. This is a topical issue, particularly given lockdown restrictions in those jurisdictions that are worse affected as a result of COVID-19, while jurisdictions such as Hong Kong are considering easing some travel restrictions for its residents.
In the meantime, it is hoped that the Court Proceedings (Electronic Technology) Bill, introduced into the local legislature in January 2020, will have its second and third readings in July 2020 before the legislative recess. The bill provides for an integrated court case management system and electronic filing of court documents with broad legislative support. Indeed, it has assumed higher priority for court users given the GAP and the consequences of another general adjournment in the event of a further spike in local reported COVID-19 cases. However, given the current political climate in Hong Kong, the bill's legislative passage before the summer recess is far from certain. If passed during the current legislative session, it is hoped that the legislation will come into effect in 2021.
Please contact us if you have any queries regarding the issues raised in this article, or if you wish to consider any commercial dispute resolution matters in Hong Kong.
A version of this article was originally published in the Litigation Newsletter of the International Law Office - www.internationallawoffice.com
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.