26 May 2021
According to the submissions published by the Law Society of Hong Kong, the Judiciary Administration published a legislative proposal to enable remote hearing on February 2021 (the “Consultation Paper”).
Remote hearing, where necessary and appropriate, is already permitted under the current judicial system in all levels of civil courts and is provided for in the Judiciary’s Guidance Notes.
The Consultation Paper puts forward a range of issues to be considered. One notable issue is the issue of “Open Justice”. The requirement of open justice entails the need to make available the means by which the public may gain access to such proceedings conducted by way of remote hearing.
Under the current system, the public have to attend a specific venue e.g. a courtroom to view a hearing. It is proposed that a remote hearing should also be broadcast in Judiciary premises such as open court rooms.
The Consultation Paper acknowledges that while remote hearing by technological means for civil matters is welcomed and to be encouraged, it is equally important that administration of justice would not be disturbed by improper access or illegal recording of the proceedings. It remains to be seen how the Judiciary Administration will propose to implement safeguards (including appropriate penalties for unauthorized transmission of remote hearing) for remote hearings, especially in exceptional circumstances such as where the general public may be excluded from the court buildings.
From the submissions of the Hong Kong Law Society, it can be seen that there are considerably more objections towards remote hearings for criminal hearings in the legal community and that it should only be allowed in very exceptional circumstances. The objections stem mostly from concerns over a defendant’s fundamental right to be tried in person in an open court, the right to confront witnesses, and the ability to communicate privately and effectively with his or her legal representatives, all of such would potentially affect the defendant’s ability to fully participate in his or her criminal proceedings.
The current proposal for codifying the current position and Guidance Notes in a legislative bill is certainly welcome and represents a positive move for advancing Court technology.
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Charing Yu, Hauzen LLP
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