Some eight months after the outbreak of the COVID-19 pandemic, the courts officially resumed normal business in mid-September 2020, while social distancing and crowd management measures in court buildings are likely to remain in place for a long time.
At the time of writing, the level of daily reported cases of COVID-19 infections has declined to single figures, most of which are so-called 'imported' cases (ie, residents returning to Hong Kong). The current situation appears to be a continuation of a 'third wave' of infections and other jurisdictions could learn much from how Hong Kong has coped.
In truth, the virus never appears to have left the community. A widespread voluntary testing programme conducted for two weeks in September 2020 screened approximately one-quarter of the city's 7.5 million population and uncovered approximately two cases of infection per 100,000 people tested. At the time of writing, there have been approximately 5,400 reported cases of infection and 107 related deaths. Relatively speaking, Hong Kong has coped well – while many attribute this success to a government which is experienced in dealing with coronavirus epidemics and a dedicated public health service, there is also the general resolve of the local community.
Some of the previously stringent social distancing rules have been relaxed (and are likely to be further relaxed at this rate), although the wearing of facemasks in public is still mandatory; this last factor has probably done more than anything to combat the spread of the virus in Hong Kong, until an effective vaccine is approved and widespread vaccination undertaken.
At the time of writing, the most recent related guidance from the judiciary administration is the 15 September 2020 "Notification for Stakeholders about the General Resumption of Court Business from Mid-September".(1) This notified stakeholders and court users of the full resumption of court business "in an incremental and orderly manner… as far as possible". Normal court registry services resumed from about 28 September 2020, together with the cessation of 'ticketing arrangements', the continuation of enhanced social distancing and the introduction of special queuing arrangements for the registries and accounts offices of the High Court, the District Court, the Family Court and the Lands Tribunal.
The transition to 'normal service' has been incremental. Some first-instance courts sat on alternate days or for half days for a while, in order to allow for deep cleaning of courtrooms. Given that some advocates prefer to speak in court with their facemasks on (when addressing the court or a witness), some courts have exceptionally allowed handheld microphones and enhanced audio facilities (so-called 'karaoke boxes') in courtrooms.
Inside courtrooms, seating capacity for the legal representatives, the press and the public has been reduced by approximately 50%, with alternate seats being left vacant. Sometimes legal representatives also sit in the press galleries. The courts have large plastic screens in front of the judges and in front of the legal representatives and sometimes between the parties' legal representatives themselves. Remote hearings by videoconferencing facilities are still used for some pre-trial hearings (eg, pre-trial reviews).
Other highlights include the following:
- Hong Kong and its top court (the Court of Final Appeal) will get a new chief justice in January 2021, when the present chief justice retires at the age of 65. Under his leadership, the Court of Final Appeal has gone from strength to strength and, despite some rumours to the contrary, it continues to attract overseas judges of the highest calibre. For example, on 5 October 2020 the judiciary welcomed the formal acceptance by the chief executive of the government of the recommendation that the deputy president of the UK Supreme Court (Lord Patrick Hodge) be appointed to the Court of Final Appeal.(2)
- On 16 October 2020 the judiciary announced that the "Opening of the Legal Year 2021" on 11 January 2021 will be scaled down and take place at the Court of Final Appeal building, rather than the normal venue of the City Hall. The ceremony will be broadcast live on the judiciary's website from 4:00pm (www.judiciary.hk).(3)
- 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 a phased implementation of an integrated court case management system and for the electronic filing of court documents. The legislation will take 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.
- It was not all forward momentum for the judiciary administration. The District Court recently announced a guidance note for case settlement conferences in certain civil cases, excluding personal injury claims (for further details please see "Settlement 'solutions' looking for problems?").(4) The guidance note extends a pilot scheme for a form of mandatory negotiation in that court, at the behest of certain judicial officers, and encroaches on the protection given to without prejudice communications. As most lawyers and their clients know, there are certain things they might consider telling a mediator that they would never tell (let alone be expected to tell) any judicial officer purporting to act as some form of intermediary. The guidance note is due to take effect in January 2021 and non-compliance with its 'directions' could attract costs sanctions. Apparently, the local lawyers' union is keeping a watching brief.
Endnotes
(1) See judiciary press release dated 15 September 2020, "Court business to resume normal" and "Notification for Stakeholders about the General Resumption of Court Business from Mid-September".
(2) See judiciary press release dated 5 October 2020, "Appointment of non-permanent judge from another common law jurisdiction of the Court of Final Appeal".
(3) See judiciary press release dated 16 October 2020, "Ceremonial Opening of the Legal Year 2021".
(4) "Guidance Note for Case Settlement Conference in Civil Cases in the District Court", 14 October 2020.
