In the latter half of 2022, the Judiciary launched a three-month public consultation on the draft Courts (Remote Hearing) Bill (Bill). The consultation document can be found here and the main features of the Bill are set out below. The public consultation ended in September 2022 and the consultation outcome can be expected soon.
Should the Bill be passed, remote hearings will become more prevalent across all levels of courts and tribunals. It will be of increasing importance for legal practitioners to ensure that they are equipped with the knowhow and technological support necessary for the effective conduct of remote hearings.
At Deacons, our litigation and dispute resolution team is experienced and well-equipped to conduct hearings remotely and we stand ready to assist clients in handling court proceedings in accordance with the latest practice and trends.
Commentary on the Bill
The Bill is a welcome change and the increased use of remote hearings forms part of the Judiciary’s ongoing initiatives to make better use of technology in conducting court business. The fast-changing public health situation since 2020 has highlighted that remote hearings are a useful tool for the Judiciary to carry on the administration of justice, with minimal disruption and delay, especially in circumstances where physical hearings are either undesirable or impossible.
At the moment, remote hearings are mostly held on an ad-hoc basis, without the benefit of guidance from any overarching statutory provision or standard directions. The Bill introduces a clear legal basis for the Judiciary to order remote hearings where appropriate and gives court users clear guidance on various practical matters, including swearing of oaths and transmitting and signing of documents remotely.
It is hoped that such initiative to make better use of technology will be further strengthened by other initiatives, such as encouraging litigants to go paperless and allowing the signing and filing of court documents electronically. This will benefit litigants, who may expect greater cost-efficiency in court proceedings.
It is vital for the Hong Kong Judiciary to meet the rising expectations of court users for enhanced convenience and efficiency in court proceedings. In Singapore, litigation has gone largely “paperless”, with the introduction of eLitigation, which is an integrated online platform for filing and service of court documents, electronic access to court documents, scheduling hearing dates and management of case files through email and SMS reminders. There have also been initiatives to hold virtual sessions (including via use of Zoom) since 2020.
Main features of the Bill
- The Bill applies to all levels of courts and tribunals, except hearings before the Juvenile Court and criminal trials.
- The default mode of hearings will still be physical hearings, but the Court may direct remote hearings where it is fair and just to do so, having regard to 16 factors listed in the Bill (e.g. the nature, complexity and urgency of the proceedings, the nature of evidence, the parties’ views and the ability to engage with and follow the proceedings remotely, and a catch all factor of “any other relevant considerations”).
- Sets out details of the scope of a remote hearing order to be made by the Court. See Part 2 of the Bill.
- Deals with the operation of remote hearings, such as consequences of failing to attend a remote hearing, how to administer oaths, transmit and sign documents and present objects remotely. See Part 3 of the Bill.
- Sets out provisions on ensuring public access to the remote hearing. Generally, remote hearings which are open to the public, will be broadcasted at the Judiciary’s premises. See Part 4 of the Bill.
- Sets out the related offences and penalties, such as the offences of recording and publishing hearings. See Part 5 of the Bill.
To accompany the draft Bill, there are also draft Practice Directions and Operational Guidelines, setting out various practical administrative and operational details for conducting remote hearings.
For further information, please contact:
Joseph Kwan, Partner, Deacons