24 January, 2020
As part of the Legislative Council’s Information Technology Strategy Plan, The Court Proceedings (Electronic Technology) Bill (Bill), which was gazetted on 27 December 2019 and passed through the First Reading stage on 8 January 2020, takes the Hong Kong courts a step closer to being paperless. The Bill facilitates the filing and sending of court related documents through electronic means (amongst other useful changes) on a voluntary basis. The Bill is part of a bid to increase judiciary efficiency and to reduce paper use. Dates for the Second and Third reading of the Bill are yet to be announced.
Key proposals
The Bill outlines the following key proposals:
- Electronic filing and sending of court documents (including original and certified copy documents) to the court;
- Inter-party documents can be served electronically if both parties agree. Parties should also decide on the most appropriate platform to use for service of and accepting documents;
- Use of electronic signatures for court related documents, applicable to court documents that require signing or certification; and
- Providing legal status for printed court documents. This means when a document is electronically filed with the court, a printout of that document retains its proper legal status.
The new law is likely to be accompanied by detailed subsidiary legislation and practice directions specifying court and operational procedures that will apply to electronic service and related court filing. This will enable the Judiciary to make timely amendments to the procedures and practices to take account of rapid technological developments.
If enacted, the use of electronic filing will be on a voluntary basis to ensure administration of justice is not affected because of the introduction of an additional way of filing.
In addition, the rules and practice directions in relation to electronic filing will set out types of documents which cannot be electronically filed. Further, the court will retain discretion as to which documents are allowed to be filed electronically, in case a particular original document needs to be physically inspected.
Practical information
Parties will have to register with the Judiciary Administration to file documents electronically and the filing will be done through the court’s IT system – an integrated court case management system (iCMS). If the document is an originating document then the court will apply an electronic seal before it is served on the other party.
If the other party has not consented to be served electronically, the electronic court document may be printed and then physically served on the party.
Once enacted, the new law is expected to be implemented in two phases:
- Phase I will be divided into two stages.
- The first stage of implementation will cover the District Court and the Summons Courts of the Magistrates’ Courts (covering mainly proceedings initiated by summons and fixed penalty proceedings – the exact types of cases will be set out in the relevant subsidiary legislation). Development of the iCMS in these courts is at an advanced stage where all activities relating to the building and set-up of IT infrastructure foundation have been completed.
- The second stage of implementation under Phase I will extend iCMS to the Court of Final Appeal, the High Court, the remaining part of the Magistrates’ Courts and the Small Claims Tribunal.
- For all other remaining courts and tribunals, the iCMS will be implemented under Phase II.
Since electronic court document filing is voluntary, it remains to be seen how quickly this will be adopted by law firms and litigants across the board at least during the initial stages. However, the hope is that the new legislation and practice directions will help to bring Hong Kong in line with standards in other common law jurisdictions, encourage parties to eventually go paperless in the long term and ultimately improve access to justice and efficiency of litigation.
For further information, please contact:
Gareth Thomas, Partner, Herbert Smith Freehills
gareth.thomas@hsf.com
