In this the fourth Blog in our series of interviews with lawyers from across the world we hear from Dorothy Siron, Partner in Hong Kong firm Zhong Lun about how the courts in her jurisdiction have been dealing with the challenges presented by COVID-19.
Many of the challenges that Dorothy outlines are similar to the other jurisdictions, including Scotland. However, there are still valuable lessons to be learned, particularly as Hong Kong experienced a second wave of the outbreak after the courts reopened and the UK Prime Minister has warned businesses to prepare for a "second wave" in the UK.
We are grateful to Dorothy for taking the time to answer our questions.
What are the impacts of COVID-19 on the courts in Hong Kong? What has been done to deal with the challenges?
Due to COVID-19, there have been serious public health concerns if court proceedings in Hong Kong were to operate in court rooms physically. As such, save for essential and urgent business, the Chief Justice of Hong Kong, by announcements issued on various dates, directed that, in general, all proceedings be adjourned, and court registries and offices remain closed, from 29 January 2020 to 3 May 2020 (i.e. the General Adjourned Period, the “GAP”). Examples of essential and urgent matters include:
- for criminal business, bail-related and sentencing hearings; and
- for civil business, filing of originating document where the limitation period for a cause of action may expire during the GAP, lodging of request for service of documents outside Hong Kong, and summons relating to injunctions returnable before a Judge on Fridays.
Details on the list of urgent and essential hearings and matters are available at https://www.judiciary.hk/en/court_services_facilities/gap_urgent_hearing.html.
However, just after several weeks of reopening and resumption of court services after 3 May 2020, another wave of COVID-19 outbreak occurred in or about mid-July 2020, rendering it crucial that we revisit the guidelines on remote hearings for civil cases which had been issued by the Hong Kong Judiciary in April and June 2020 to counteract how COVID-19 impacted the Hong Kong courts.Please note that there is no similar guideline for criminal cases at present.
In two phases, the Guidelines gradually implemented the use of alternative means, including, paper disposals and remote hearings in the form of telephone or video conference, in all civil businesses across court levels. This is aimed at ensuring the due and effective administration of justice despite such disturbing public health situations. For copies of the Guidelines, details and updates on the use of virtual court rooms in Hong Kong, please visit https://www.judiciary.hk/en/court_services_facilities/gap_remote_hearing.html.
What is your experience of virtual court rooms in your jurisdiction since the outbreak of COVID-19?
There have not been sufficient cases heard via remote hearings since the outbreak of COVID-19 to collect any data but the use of Virtual Courtrooms was not very popular to begin with and once COVID-19 came about, it was too late to implement all that was necessary to make it of general use and application. Historically it was only ruled in a Hong Kong Court of Appeal case as late as in April 2020 that it is permissible and lawful under the established rules on civil proceedings to conduct hearings remotely through video-conferencing facilities. The Court of Appeal went on to stress that remote hearings must be fair and open but confirmed that there was no specific provision restricting the mode of receiving submissions and evidence of the parties.
Despite the Hong Kong Judiciary’s clear recognition of virtual court rooms, our experience tells us that some people may find the use of remote hearings more than challenging. The lack of technical equipment, compatibility with the Court’s required equipment and the deeply ingrained preference for face-to-face advocacy are some of the main reasons.
On the technical aspect, the Guidelines currently require parties in remote hearings to use equipment which is compatible with those deployed by the court and which meets the operational requirements of court hearings. Nevertheless, the Guidelines only provide a restrictive list of technical specifications. As such, remote hearings are only accessible to parties who are fully equipped based on such aforesaid technical specifications.
On the other hand, face-to-face advocacy is essential to an adversarial system of litigation. In Hong Kong, we do not have the system of written depositions, so much would depend on viva voce evidence at the trial in front of the Judge. In order the be able to replace the tradition and custom of cross-examination in Court, one would have to have a prior way for advocates to be able to apply their developed skills to elicit the evidence. With remote hearings, such skills may not be utilized as effectively as if they were used in person.
Do you think this is going to result in a permanent change for the way your court system works in the future?
Yes, it is inevitable that these changes will impact upon the way we conduct our hearings for good. Albeit there may be a continued preference for litigation to be conducted in physical court rooms in the short run, however we can expect that the Judiciary will work towards making virtual courtrooms more popular and accessible and law firms will invest in equipment and IT to make that happen.
In the meantime, we feel that the use of virtual court rooms will gradually be expanded to enhance flexibility of litigation, for example, in the event where an overseas witness encounters difficulty to appear before the Hong Kong courts. Accordingly, there is an increasing trend that remote hearings will be accepted in Hong Kong as long as the principles of fairness and openness are complied with.
Do you have any top tips for our solicitors or solicitor advocates appearing in a virtual court?
In order to ensure that advocacy can professionally be delivered, we would remind advocates that:
- rules of etiquette must continue to apply and not to render the hearing too casual;
- to speak slowly to avoid delays and glitches;
- say their name each time before they speak to ensure that everybody will be able to identify who is speaking and for any transcriber or short-hand writer;
- to attend the scheduled pre-hearing tests to enable themselves to become familiar with how the hearings will proceed and to test the equipment, as the cost of having to reschedule could be avoided. In HK, any party seeking a late adjournment may be saddled with the costs of the adjournment; and
- to arrive at the remote site earlier to ensure that the equipment is properly connected to those deployed by the court. Therefore, in case of emergency, alternative arrangements can swiftly be made before the start of the scheduled hearing.