Introduction

The outbreak of COVID-19 resulted in the closure of the Judiciary for months on end in view of public health consideration. The result was that many cases were brought to a screeching halt. With the pandemic having no end in sight, in order to ensure that justice is duly administered continuously and effectively without compromising public health and safety, the Judiciary has been considering other alternative modes to conduct the hearings remotely.

The Judiciary has announced that, as Phase 1 starting from 3 April 2020, video-conferencing facilities (“VCF”) would be used for remote hearings for suitable civil cases of the High Court, and, as Phase 2 starting from 15 June 2020, there would be an expanded practice for remote hearings by the use of VCF and telephone in civil cases in civil courts, including the Court of Appeal, the Court of First Instance, the Competition Tribunal, the District Court and the Family Court.

Remote hearings by VCF and telephone

In general, for the time being, the initiative would be led by the Court which would consider which of the cases might be suitable for disposal by a remote hearing using VCF and telephone. For remote hearing by VCF, parties who disagree with the Court’s proposal may make written submissions stating any other proposal they put forward as more appropriate. The Court would also consider applications by the parties for the use of VCF. 

In deciding which hearings would be dealt with remotely, the Court would take into account the views of the parties, the availability of equipment, the subject-matter of the proceedings and whether the proposed use of remote hearing is likely to promote the fair and efficient disposal of proceedings (including through the avoidance or reduction of delay) and/or to save costs. Further factors to be considered include:

1.        the importance and nature of the issue to be determined;

2.        whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the parties;

3.        whether the parties are legally represented;

4.        the ability of the parties to engage with and follow remote proceedings meaningfully;

5.        whether evidence is to be heard (and, if so, the nature of that evidence) or whether the case will proceed on the basis of submissions only;

6.        the proposed length of the remote hearing; and

7.        whether there are other alternatives consistent with public health concerns and the need for safety, such as for some or all of the participants to take part in the court hearing by physical attendance in a courtroom.

According to the latest guidance note, all interlocutory applications, civil appeals, final hearings ordinarily dealt with on written evidence, some trials or parts of trials would be considered for hearing remotely by VCF, and all short directions hearings in the Court of First Instance, the District Court and the Family Court and 3-minute hearings before Masters would be considered for hearing remotely by telephone. It will generally be the responsibility of any person participating in a remote telephone hearing to make all arrangements necessary for or incidental to ensuring the smooth and effective running of the remote hearings.

Legal practitioners and the parties may refer to the Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 2: Expanded Video-Conferencing Facilities and Telephone) issued by the Judiciary for further details of the relevant practice and the technical requirements.

In particular, the parties who are directed to attend a hearing remotely are reminded to:

1.        submit the attendance sheet with correct telephone numbers to the Court before specified time;

2.        confirm the arrangement and telephone numbers with the Court clerk and allow sufficient time for conducting any necessary testing before the remote hearing; and

3.        ensure no disruption from others during the remote hearing.

Legal foundation for remote hearing in civil proceedings

In CSFK v HWH [2020] 3 HKC 64 and Cyberworks Audio Video Technology Ltd (In Compulsory Liquidation) v Mei Ah (HK) Co Ltd & Ors [2020] 2 HKC 133, both the Court of Appeal and the Court of First Instance have discussed and confirmed the legality of conducting hearing by VCF and telephone.

In Cyberworks Audio, the Court of First Instance held that there was no provision in the High Court Ordinance (Cap 4) or the Rules of the High Court (Cap 4A) actually prohibiting attendance by alternative means other than actual physical attendance in the Court. Indeed, conducting hearing by telephone would permit the parties to be heard and promote the fair and efficient disposal of the proceedings.

In CSFK, the Court of Appeal further held that physical presence of the parties in a courtroom for civil business was not indispensable because a VCF hearing would allow parties to address the Court as effectively as an ordinary physical hearing. The hearing by VCF permitting members of the public and the public media to come to Court to observe the proceedings also duly served the requirement of open justice and right to public hearing. An official and accurate record of the hearing and the integrity of the same could still be maintained. The Court of Appeal held that it was permissible and lawful to conduct remote hearings through VCF.

Further, in Tang Qiong v Zhang Tingtnig [2020] HKCFI 1388, the Master held that, despite all witnesses are residents in Fujian, taking evidence by VCF are not uncommon nowadays and would not cause any inconvenience. The Master therefore refused the Defendant’s application to stay the action on the ground of forum non conveniens. It can be foreseen that VCF hearing would be increasingly used in the Court and it would help expedite the case management process.

Limitation: no remote hearings in criminal proceedings

Currently conducting hearings remotely is only applicable in civil cases. Questions have been raised on whether criminal hearings could be also conducted remotely. In HKSAR v Walsh Kent Andrew [2018] 2 HKC 437, the Court has discussed the interesting question of whether physical attendance of the Defendant was required at arraignment. At that time, the Court held that the law had imposed an obligation on the Defendant to be present at his arraignment and trial, unless in exceptional circumstances.

While the Government of Hong Kong stated on 24 June 2020 that using remote means to conduct criminal hearings may not be permissible under existing law, the Judiciary is nonetheless examining whether it is desirable for any parts of criminal proceedings to be conducted by remote hearing in long term, several foreign Courts have allowed some criminal hearings to be held remotely.

For example, the UK Courts have recently allowed parties in criminal hearings, such as hearings for remand, custody time limit and sentencing, to take part remotely by any internet-enabled device with a camera and a microphone to enable the criminal justice system to operate safely and flexibly, though remote hearings cannot be used for jury trials. The US Courts and New Zealand Courts have also expanded the use of audio and video hearings in criminal proceedings and allowing participation of witnesses in criminal trials.

It remains to be seen whether, with the wider acceptance of remote hearings in the Hong Kong Courts, there would be a change in the pre-existing status quo for criminal proceedings and follow the progress already seen adopted in other Common Law jurisdictions.

(This article, written by our Partner Mr Dominic Wai and our Consultant Mr Joshua Chu, was first published on Lexology.)