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30 June 2020
A second guidance note on the use of remote hearings in civil proceedings took effect on 15 June 2020. The guidance note (representing Phase 2) provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first-instance courts and the Court of Appeal. Phase 2 is to be read together with the Phase 1 guidance note issued on 2 April 2020. Phase 2 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
Phase 1 was an important development in the courts' adoption of more IT for civil business and occurred during the General Adjourned Period (GAP), as a result of the COVID-19 public health emergency, when 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 in the Court of Appeal. Such remote hearings tended to be limited to those matters that could be disposed of by oral submissions.
Further, the technical specifications under Phase 1 were limited to hardware videoconferencing facilities that were compatible with the courts' facilities (for further details please see "Hong Kong courts begin use of videoconferencing").
Phase 2 provides for remote hearings using expanded videoconferencing facilities and telephones.(1) The priority is to replicate in so far as possible the environment of a physical court hearing, while ensuring that court business is conducted in such a way as not to compromise public health and safety.
Some of the major initiatives adopted pursuant to Phase 2 are as follows.
Expanded court coverage
Phase 2 expands the courts' use of videoconferencing facilities to all of the principal civil courts in Hong Kong. Therefore, in addition to the High Court (namely, the Court of First Instance and the Court of Appeal), the use of remote hearings is extended to the Competition Tribunal (presided over by a High Court judge), the District Court and the Family Court. Pursuant to Phase 2, the use of remote hearings is also extended to civil hearings conducted by judicial officers such as masters in the High Court and 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 hearings. 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. These 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.
From 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 to the courts' videoconferencing facilities using suitable videoconferencing equipment. For software options, court users can use computer devices with the appropriate software installed. Participants using software options participate using a valid meeting ID and passcode.(2)
Phase 2 also gives details of the types of matter that may be suitable for disposal using remote telephone hearings. These include routine directions hearings and matters in the courts' daily 'three-minute' list. As with the Phase 1 guidance note (with respect to videoconferencing), Phase 2 includes standard directions for when the court orders that a matter be disposed of by way of a telephone hearing (Appendix B), together with an attendance sheet (Appendix C).
The Phase 2 guidance note is a welcome development. It represents the most recent initiative in the courts' adoption of IT as a result of 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 initiative for using a remote hearing came from the courts, with the decision of whether to dispose of a matter without a physical court hearing being an exercise of case management discretion. Under Phase 2, the parties themselves may apply to have a hearing disposed of using videoconferencing facilities, although 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 the public and the media can attend. However, given the public health restrictions that remain in place, there are limitations on space and seating in a courtroom from which the remote hearing will be conducted, although these should not normally prevent a hearing taking place. The parties and their legal representatives will attend the hearing at the appropriate remote locations. By way of comparison, in some jurisdictions, members of the public can listen to and observe court 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 (one of the first to be affected) consider easing some travel restrictions for their 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 and has broad legislative support. However, in the current circumstances of 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. The bill has assumed a higher priority for all court users given the GAP and the serious consequences of another general adjournment in the event of a spike in local reported COVID-19 cases.
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.
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