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04 August 2020
Since the general adjourned period (GAP) ended on 3 May 2020, when the courts resumed normal business in Hong Kong, reported cases of COVID-19 infection have approximately tripled. At the time of writing, Hong Kong is experiencing a 'third wave' of infections. A partial lockdown in the community is in place and many non-essential workers are working from home. All civil court hearings originally scheduled for 20 and 21 July 2020 were adjourned, while hearings from 22 July 2020 generally proceeded as scheduled with stringent social distancing and crowd measures in place. The next few weeks appear to be crucial in ascertaining whether the rate of infection will ease – failing which court users face the possibility of another GAP, during which the courts could close again save for urgent and essential court business. Given its proximity to mainland China, Hong Kong was one of the first jurisdictions to be affected by the COVID-19 pandemic and its experiences serve as a lesson to other jurisdictions.
The GAP was announced on 28 January 2020 and was in place as from 29 January 2020. By the time the GAP came to an end on 3 May 2020, the rate of reported COVID-19 infections had fallen to zero, with few fatalities. Since then, the courts have remained open for general business, save for a short break on 20 and 21 July 2020. During parts of May 2020, Hong Kong experienced a second wave of infections which appear to have been mainly confined to imported cases (as residents returned to Hong Kong from overseas) and clusters of infections in certain residential and office buildings.
A third wave of infections became apparent by July 2020 and appears to involve (among others) some aircrew and seafarers passing through Hong Kong. There have also been outbreaks of COVID-19 cases in certain retirement homes. Worryingly, the source of infection for many of the local cases has not been traced. Many businesses are in partial lockdown and non-essential government workers have been sent home. Restaurants' dine-in services were temporarily closed last week (beginning on 29 July 2020), having previously been restricted to daytime services and take-out services from 6:00pm to 8:30pm. Stringent social distancing measures are in place and the wearing of face masks in indoor public places, on public transport and outdoors is (for now and the foreseeable short term) compulsory, even when exercising.
It would be fair to state that the COVID-19 pandemic has wreaked havoc on the local economy, which was already in a recession by the final quarter of 2019 before the onset of the pandemic. The COVID-19 pandemic is proving more challenging on all fronts in Hong Kong compared with the SARS outbreak in February and March 2003.
The judiciary has been issuing regular announcements and notifications to court users since 28 January 2020. At the time of writing, the most recent announcements were issued on 21 and 28 July 2020.(1)
The enhanced social distancing measures within the confines of court buildings, in order to reduce crowds and the flow of people, have reduced the volume of business 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), there is bound to be a postponement of some hearings, although the extent of the disruption is not yet known. During the GAP, it is thought that approximately 25% of the courts' annual caseload was affected.
As has previously been reported, the courts are trying to conduct more civil hearings using videoconferencing facilities and to determine certain interlocutory matters based on paper submissions and documentary evidence alone (for further details please see "Further guidance on remote civil hearings"). It is too early to come to any conclusions as to the extent to which these measures will help to alleviate the backlog of cases.
In the meantime, the Court Proceedings (Electronic Technology) Bill received its second and third reading 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 decided by the chief justice and to be notified 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.
In a previous update, it was noted that a first-instance court had held that the GAP did not generally extend the duration of an injunction which was granted on an urgent basis before the GAP commenced and listed for a return date (for continuation or discharge) during the GAP (for further details please see "General adjournment did not extend duration of urgent injunction").
The plaintiff has since appealed that decision. While the Court of Appeal agreed with the lower court's reasoning (namely, that the injunction orders had lapsed immediately after the return date), the plaintiff has successfully appealed the lower court's refusal to regrant the injunction orders as a matter of discretion.(2) It appears that the Court of Appeal considered that the lower court had erred in taking an unduly restrictive approach in ruling that once the injunction orders had lapsed, there was "nothing which [could] be continued"(3) – when, as the Court of Appeal saw things, the plaintiff was not merely seeking to continue the injunction orders but was also, as a matter of substance over form, seeking the grant of new orders which justified a fresh exercise of the lower court's discretion.
For further information on this topic please contact Antony Sassi or David Smyth at RPC by telephone (+852 2216 7000) or email (email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(1) See judiciary announcements and "Notification for Stakeholders about the General Arrangement of Court Business", dated 21 and 28 July 2020. The announcement dated 28 July 2020 refers to reduced court registry operating hours (as from 30 July 2020) and to the possibility of holding morning or afternoon hearings only. Already, some District Court criminal trials are being heard over the course of half days, allowing for the courtrooms to be disinfected in the afternoons.
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