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12 January 2021
A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong (including the Competition, Labour and Small Claims Tribunals). In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities – for example, in addition to the use of the courts' hardware or software videoconferencing options (under Phases 1 and 2), Phase 3 provides for a lower cost 'browser-based' videoconferencing option.
Phase 1 was an important development in the courts' adoption of more IT for civil business and took effect on 3 April 2020, during the general adjourned period as a result of the COVID-19 public health emergency, when the courts were generally closed save for urgent and essential court business. The general adjourned period came to an end on 3 May 2020. Phase 1 was limited in scope. It generally restricted the use of videoconferencing facilities for civil hearings to interlocutory applications or certain appeals in the Court of First Instance and the Court of Appeal. Such hearings tended to be limited to those matters that could be disposed of by oral submissions within approximately two hours.
Under Phase 1, the technical specifications 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 provided for remote hearings using expanded videoconferencing and telephone facilities and took effect on 15 June 2020. For example, under Phase 2 (in addition to Phase 1 videoconferencing facilities), where suitable, the courts could determine some first-instance civil trials, or parts of those trials, using videoconferencing facilities and interlocutory applications and appeals to the Court of Appeal (where the oral submissions could be concluded within one day).
Phase 2 extended the courts' use of videoconferencing facilities to all of the principal civil courts in Hong Kong. Therefore, in addition to the Court of First Instance (judges and masters) and the Court of Appeal, the use of remote hearings was extended to the Competition Tribunal (presided over by a High Court judge), the District Court (judges and masters) and the Family Court.
The guidance note for Phase 2 also gave more detail on the necessary technical specifications. These identified 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 set out the standard functional requirements for each piece of IT equipment.
As from 15 June 2020 (under Phase 2), it became possible to connect to the courts' videoconferencing facilities using hardware or software options (for further details please see "Further guidance on remote hearings").
Phase 2 also gave details of the type of matters that may be suitable for disposal using remote telephone hearings.
Phase 3 represents the most recent stage in the courts' promotion of remote hearings for suitable civil proceedings.(1)
From 2 January 2021, under Phase 3, some of the more important developments are as follows:
Permission will unlikely be granted unless the advocate can show exceptional events beyond his or her control which cause real practical difficulties for attending the hearing in Hong Kong, or for being physically in Hong Kong at the time of the hearing.(6)
The Phase 3 guidance note is a significant development. Consistent with Phases 1 and 2, the guidance note makes it clear that the courts' approach to the adoption of IT to promote the use of remote hearings is incremental. The judiciary administration is to be given credit for trying to adapt to the prevailing public health situation (which like many places has taken a turn for the worse, as Hong Kong experiences a 'fourth wave' of reported COVID-19 infections).
The guidance note also states that "[i]n any event, improvements in technology will permit greater use of videoconferencing facilities irrespective of the public health situation".(7)
It is to be hoped that this proves to be true and this sentiment will generally be welcomed by different stakeholders, including litigants in person (to whom specific reference is made in the guidance note).(8)
The guidance note also stresses the need for flexibility – for example, the type of civil court business that is suitable to be dealt with by remote hearings might change and the courts will assess whether a case is suitable on its own merits. It remains the position that in the first instance, it is the courts that decide whether to use a remote hearing, although the parties may apply.
Given lockdown and quarantine restrictions in some jurisdictions and on entering Hong Kong (from most jurisdictions), it is hoped that the courts will allow meritorious applications by advocates seeking to attend a remote hearing taking place in Hong Kong while they are physically based in another jurisdiction.
Given the public health situation, 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 courtrooms from which remote hearings 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 (usually in Hong Kong).
For now, in Hong Kong, judges physically sit in court for remote hearings. This contrasts with some courts in other jurisdictions (eg, the UK Supreme Court) where judges are able to sit from home, so that each judge has their own camera and microphone. Where two or more judges preside over a remote hearing (eg, for an application for leave to appeal or a civil appeal), using a single camera can lead to practical difficulties for other participants (eg, the advocates) – for example, sometimes there are difficulties seeing the judges or hearing the questions being asked (compared with a physical hearing).
Many parties and their legal representatives are still getting to grips with the different preparations required for remote hearings and the different dynamics before and during remote hearings. In particular, the interaction between the tribunal and advocate is often not as instantaneous and clear as during a physical hearing and this can cause confusion. As noted, this can be exacerbated when the hearing is before more than one judicial officer, especially when there is a single camera in use at the court in question.
While the use of IT can result in cost savings, in more complex cases that are, for example, document heavy, the preparation time is such that the litigation costs can still be considerable. The costs of a remote hearing and related services (eg, real-time reporting and transcription) form part of the costs of the proceedings and are determined by the courts, applying their discretion based on general principles regarding orders for costs.
For further information on this topic please contact Rebecca Wong, Jonathan Crompton or David Smyth at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(2) Technical Specifications of the Judiciary's Video Conferencing Facilities for Remote Hearings for Civil Business (para 2, Judiciary Administration, December 2020).
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