Delivery of justice in the time of Covid-19

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Hin Han Shum
Squire Patton Boggs, Hong Kong
hinhans@gmail.com

The effects of Covid-19 can be seen far and wide.  It has caused some businesses to come to a standstill. For many of those that can continue to operate, their methods of operation have changed drastically.

The legal profession is not spared these effects. Many law firms made way for systems to facilitate remote working and video conferencing. For those who do not have those facilities ready to use, or where their practice is document-heavy, alternative coping mechanisms have been enforced, such as having flexible working hours, or providing employees with healthcare supplies. However, some types of legal work cannot so easily change their form. One such example is attendance at court in Hong Kong.

Up until recently in Hong Kong, court attendance required the physical presence of the parties and/or their lawyers. Only in certain limited circumstances could the physical attendance of a party be excused (for example, where a party in a Norwich Pharmacal Order has a neutral stance or where a vulnerable witness uses a video-link to give testimony). In the interests of preventing transmission of Covid-19 to large groups, the courts were generally closed from 29 January 2020 to 4 May 2020 (General Adjournment Period or GAP).[1]To facilitate justice being delivered, the Judiciary provided for exceptions, so that hearings of an urgent and essential nature or certain cases pertaining to criminal matters could be heard during the GAP.

Unfortunately, such exceptional cases form only a small part of the daily bulk of the cases scheduled for hearing.  With the backlog of hearings that were rapidly building up due to the GAP, the courts had to find alternative ways to keep the justice system up and running.

The Hong Kong decision of Cyberworks Audio Video Technology Ltd (In Compulsory Liquidation) v Mei Ah (HK) Co Ltd [2020] HKCFI 347 and Cyberworks Audio Video Technology Ltd (In Compulsory Liquidation) v Silver Kent Technology Ltd [2020] HKCFI 347, with rulings delivered on 21 February 2020, resulted in an unprecedented confirmation of the legality of telephone hearings.

In addition to the courts providing direction as to conducting court hearings remotely, on 2 April 2020the Hong Kong Judiciary also published the ‘Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1: Video-Conferencing Facilities)’. The note confirms the Court’s determination to develop alternative ways to continue court proceedings by using technology. The guidelines apply on a ‘technology-neutral basis’, whereby various types of equipment may be used to facilitate and conduct such remote hearings. It is also indicated that there would be phases of implementation. The first phase allowed for remote hearings using the courts’ existing video conferencing facilities (VCF) in civil cases in the Court of Appeal and the Court of First Instance of the High Court, but the judge presiding over the case would be able to decide whether to allow for the hearing to be conducted remotely. [2]  

On 8 June 2020, the Judiciary issued the ‘Guidance Note for Remote Hearings for Civil Business in the Civil Courts (Phase 2: Expanded Video-Conferencing Facilities and Telephone)’. In this new guidance note, to be read together with the guidance note issued on 2 April 2020, the Court highlighted that notwithstanding the end of the GAP, ‘it remains of paramount importance that justice is duly administered continuously and effectively without compromising public health and safety.’ In particular, the court reconfirmed what was decided in Cyberworks, in that courts may conduct more hearings by telephone. The guidelines also considered the situation where remote hearings can be conducted openly, allowing the public and the media to attend physically. Such a decision would be made, having regard to exceptional circumstances such as the threats to public health caused by the current pandemic.[3]It is likely further guidelines will be issued in this respect.

Despite the terrible effects of Covid-19, some opportunities and positive changes have arisen, which may outlast the negative effects. To many, especially clients who may be overseas or lawyers who have to spend much time travelling to court, the opportunity to use remote hearings will help lower costs, which in turn helps make justice more affordable and accessible. Lawyers who save travel time can also use that time to serve more people and enable greater access to justice.  These opportunities will be some of the unexpected, but welcome, effects of the Covid-19 pandemic.

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