In brief
The Hong Kong Judiciary continued to further expand the scope of remote hearings and issued various guidance notes and guidelines to facilitate the operation of remote hearings since its first initiative during the General Adjournment Period (GAP) in 2020.1 In response to the fifth wave of COVID-19 in early 2022, the Judiciary implemented the second GAP on 7 March 2022 and issued its latest guidance note dated 25 March 2022 on hearing outside court rooms2 (“OC Hearings Guidance Note“), which took effect on 28 March 2022. This alert provides an update on the development of remote hearings in Hong Kong.
Key takeaways
- In response to the challenges imposed by the fluctuating public health issues, the Judiciary has made continuous efforts to put forward new measures to maintain the effective administration of justice without compromising the battle against the pandemic.
- Such new measures include the expansion of the use of remote hearings and the updates of the guidelines, directions and requirements.
- In view of the current litigation landscape which continues to evolve due to the pandemic, parties and their legal representatives should be aware of and get well equipped to avoid the trap of becoming saddled with legacy processes, technologies and thinking.
In more detail
The expanded scope of remote hearings
Pursuant to the Phase 1 Guidance Note,3 interlocutory applications, applications for appeal, appeals, as well as final hearings ordinarily dealt with on written evidence in the Court of First Instance and Court of Appeal were considered suitable for remote hearings by video-conferencing facilities (VCF). Trials were then considered unsuitable for remote hearings.
Following the issuance of the guidance notes dated 8 June 20204 (“Phase 2 Guidance Note“) and 15 December 20205 (“Phase 3 Guidance Note“), the scope of remote hearings has been widely expanded to civil proceedings in different levels of courts.
The Judiciary also recognizes the fact that witnesses outside Hong Kong may have difficulties in traveling to and appearing in Hong Kong courts due to various travel restrictions and quarantine requirements. Witnesses outside Hong Kong may now, subject to the court’s directions, give evidence by way of VCF.
The Judiciary has also, for the very first time, mentioned in the Phase 3 Guidance Note that some trials or parts of trials may be considered suitable for remote hearings.
Whilst it has been conventional practice that remote hearings should be initiated by the courts, parties may now take a proactive approach to apply for the same in appropriate circumstances.
On 25 March 2022, the Judiciary further issued the OC Hearings Guidance Note, effective on 28 March 2022. This Guidance Note enables a judge to sit in their residence for the purpose of exercising the civil jurisdiction of the High Court, in case the public health situation impacts the judge’s ability to attend the remote hearing in the court room. The Judiciary emphasized that directions may be given by the courts on short notice to cater to any special or urgent situation. Therefore, parties and their legal representatives should remain alert to this possibility and have contingency plans in place to respond to any urgent directions given by the court within a short span of time.
Electronic bundles and technical specifications for VCF
Parties and their legal representatives should also pay attention to and comply with the General Guidelines for Preparing Electronic Bundles6 issued by the Hong Kong Judiciary in September 2020, which set out the comprehensive requirements for preparing electronic bundles, including the specific requirements on pagination, file names, format, optical character recognition and bookmarks, etc.
The Judiciary also issued the technical specifications for VCF in February 2022. Parties and their legal representatives are required to have facilities compatible with those technical specifications for getting access to VCF for the remote hearings.
Comment
The unsettling public health issues have continued to impose new challenges on parties in a litigation, including the judges. We welcome the invaluable efforts made by the Judiciary in responding to the evolving situation by developing, enhancing and implementing policies and practices in order to meet different needs. Parties and their legal representatives should stretch beyond traditional litigation skills and be aware of and keep up with developments, in terms of knowledge and technologies, under the current litigation landscape.
1 “Hong Kong: Remote Hearings in Hong Kong Courts During COVID-19 and Beyond” dated 24 April 2020 at https://insightplus.bakermckenzie.com/bm/dispute-resolution/hong-kong-remote-hearings-in-hong-kong-courts-during-covid-19-and-beyond.
2 Guidance Note for Remote Hearings for Civil Business in the High Court (Judges sitting outside court rooms) dated 25 March 2022, which took effect on 28 March 2022.
3 Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1: Video-Conferencing Facilities) dated 2 April 2020, which took effect on 3 April 2020.
4 Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 2: Expanded Video-Conferencing Facilities and Telephone) dated 8 June 2020, which took effect on 15 June 2020.
5 Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 3: Wider Video-Conferencing Facilities and Telephone) dated 15 December 2020, which took effect on 2 January 2021.
6 General Guidelines for Preparing Electronic Bundles in Portable Documents Format (EBPDF) in the Judiciary of HKSAR issued in September 2020.
