The Courts (Remote Hearing) Bill (the “Bill”) was gazetted on 22 November 2024, following recommendations from the Executive Council. The first reading of the Bill took place on 4 December 2024, and it is currently pending its second reading.
What is the Bill about?
The Bill aims to enhance the use of technology in Court operations, particularly through remote hearings, to improve efficiency and address challenges like pandemics.
The Judiciary is responding to increasing expectations from Court users for technological integration, whether in terms of handling Court business or communications between the Courts and Court users.
Current Application and Use of Remote Hearings
Presently, physical hearings remain the default unless the Court, through its case management powers, decides that it is fair and just to order a remote hearing.
A “remote hearing” refers to proceedings conducted through a remote medium, including live audio-visual links and other designated real time communication facilities.
Different parts of the hearing process can be conducted either remotely or physically.
Since 2020, the Judiciary has issued four guidance notes concerning remote hearings for civil proceedings at different levels of Courts and Tribunals. Since 2020, over 2000 remote hearings have been conducted.
The Bill – Factors for Allowing Remote Hearings
The Bill sets out operative provisions regarding remote hearings, such as the mode of application, factors to consider, exceptions and the related offences.
The Judiciary proposes that with the interests of justice as the general guiding principle, the Court should consider the following factors before approving a remote hearing:
- the views of the parties;
- the ability of the parties to engage with and follow the proceeding (if conducted through a remote medium);
- the ability to maintain the rights of the parties;
- whether privileged communications between the parties and their respective legal representatives may be affected;
- the potential impact of the order on the assessment of the credibility of witnesses and the reliability of the evidence presented;
- whether the right to a fair trial can be effectively maintained; and
- the quality and security of the remote hearing facilities and their availability.
Under the Bill, the making of a remote hearing order is a case management decision of the Court – the Court may make such an order either on its own motion, or on application by the parties to the proceedings. In either circumstances, parties to the proceedings will have the opportunity to make representations.
Exceptions to Remote Hearings under the Bill
The Judiciary is of the view that remote hearings should not apply to certain situations:
- Any national security proceedings, whether civil or criminal.
- Specific criminal trials (only if in the interests of justice to do so) and hearings before the Juvenile Court.
- Vulnerable witnesses under the Criminal Procedure Ordinance.
Open Justice and Safeguards
Most Court hearings are open to the public. In order to safeguard open justice, the Bill includes provisions for public access to remote hearings, such as publicly accessible broadcasts in an open Court room.
The Judiciary notes that hearings might be more susceptible to unauthorized recording or the publication of Court proceedings, especially in an age of advanced digital technology. The Judiciary also hopes to ensure the proper administration of justice and prevent the misuse of recorded or transmitted images.
Therefore, the Judiciary proposes introducing new criminal offences for unauthorised recording, publishing and/or broadcasting of both physical and remote hearings. These proposed offences attract serious consequences (e.g. a level 6 fine and imprisonment of 5 years, for a conviction on indictment) and can be established based on recklessness.
Implementation Plan
The Judiciary will continue adopting remote hearings for civil proceedings where appropriate.
As for criminal proceedings, remote hearings are expected to be implemented about six months post-enactment.
More notably, the Judiciary acknowledges the need to provide more support to litigants in person (“LIPs”) with resources and guidelines for participating remotely. The Judiciary intends to:
- Before ordering a remote hearing, request LIPs to provide information regarding their access to electronic devices, confidence levels on technology, computer literacy, ability to receive, view and print documents, etc.
- After ordering a remote hearing, provide bilingual guidelines and arrange connection tests. If LIPs have difficulties finding a suitable remote location, the Court may direct them to participate from designated rooms equipped with appropriate video conferencing facilities in the Judiciary.
Conclusion
The Judiciary believes that the Bill will improve the efficiency of Court operations and allow the Court to effectively address unforeseen situations when physical hearings are impractical. Additionally, remote hearings will save time and reduce commuting costs for all parties involved.
Our firm serves many international clients based outside of Hong Kong. While a remote hearing is an option in civil proceedings here, most hearings still take place in person. In contrast, remote hearings are common in other common law jurisdictions, such as Singapore and the BVI.
Parties in multijurisdictional litigation frequently remark that Hong Kong’s Court system needs to keep pace with other jurisdictions and with technological advancements. One hopes that the Bill can be passed promptly so that there is a clear and specific mechanism for remote participation. Ideally, the Judiciary will also actively promote the use of remote hearings in the future, making them a standard practice in the future.
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