The judiciary administration in Hong Kong recently launched a public consultation on a draft Courts (Remote Hearing) Bill. As far as civil proceedings are concerned, the draft bill aims to make express provision for conducting remote hearings using a live audio or audio-visual medium. The consultation exercise ends in September 2022. The proposed legislation should not be controversial as regards civil proceedings and the draft bill is likely to form the basis of legislation that will be put before the Legislative Council and enacted in 2023.
In the past couple of years and especially because of the covid-19 pandemic, the judiciary have had to make more use of information technology (IT) in civil cases – in particular, by conducting court hearings using videoconferencing facilities.
To date, the courts in Hong Kong have adopted an incremental approach to the use of IT and remote hearings.(1) For example, since April 2020, the courts have adopted four guidance notes on the use of remote hearings for civil cases. For more on the background to these guidance notes, please see – "Hong Kong courts begin use of videoconferencing".
The consultation document is titled "Remote Hearing: Draft Courts (Remote Hearing) Bill, Practice Directions and Operational Guidelines". The introduction to the draft bill summarises its objectives and a supporting judiciary press release refers to the major features of the draft bill as follows:
1. Details of the making of a remote hearing order, including safeguards for parties to ensure the fair disposal of remote hearings;
2. Operation and legal effect of remote hearings;
3. Safeguards for open justice in remote hearings; and
4. Proposed new offences for the recording and publishing of remote and physical court hearings, as well as the broadcast of such hearings.(2)
The draft bill should not be controversial for civil proceedings in Hong Kong where there are currently no legal impediments to the use of remote hearings. In this regard, the draft bill (in effect) seeks to codify the existing practice of the past two years regarding the use of remote hearings during the covid-19 pandemic. The practice of conducting remote hearings started in 2020 with cases such as CSFK v HWH(3) and Re Cyberworks Audio Video Technology Ltd.(4) For more on the background to these cases, please see – "Hong Kong Court of Appeal hears appeal using videoconferencing".
The consultation document suggests that, as at April 2022, over 1,000 remote hearings have been conducted and court users' experience has been supportive.(5) Indeed, many parties to civil proceedings would generally like to see more use of remote hearings for straightforward interlocutory (pre-trial) matters and, where appropriate, more determination of routine court applications by means of paper submissions (without oral argument).
The public consultation is likely to attract more scrutiny from defence lawyers in criminal cases to ensure that defendants' rights are not adversely affected where their physical attendance is necessary at different stages such as arraignment and trial.
For further information on this topic, please contact Carmel Green or David Smyth at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
Endnotes
(1) See "Electronic Court Process and Remote Hearings in Hong Kong", Hong Kong Civil Procedure News (HKCPN), June 2022, Issue 2/2022, by Brian Gilchrist and Celine Leung.
(2) Press release, 16 June 2022 – "Public consultation on draft Courts (Remote Hearing) Bill launched".