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19 May 2020
The general adjourned period (GAP), during which the courts in Hong Kong were closed save for urgent and essential court business, ended on 4 May 2020. The GAP started on 29 January 2020 with the early onset of COVID-19 in Hong Kong. The local courts were some of the first to announce that they would be closed for general business. The judiciary formally announced the end to the GAP on 22 April 2020. Since then, reported cases of infection in Hong Kong have (to date) been minimal – which is a testament to the experience and fortitude of both the community and the health services in dealing with public health emergencies. From 4 May 2020, the civil courts generally resumed normal business, although certain public health measures remain in place and it will take some time before the backlog of civil cases is cleared, particularly as the courts' resources were already stretched before COVID-19. Going forward, lessons as to the use of more IT in the courts have, hopefully, been learned and further developments in this regard are to be expected.
Details of the general resumption of court proceedings in the High Court were set out in a notice to court users dated 29 April 2020.(1) The main objective was generally to resume all court proceedings as safely as the circumstances permitted. This has involved adopting measures such as social distancing within the precinct of the courts, avoiding crowding in courtrooms and registries and ensuring that every visitor entering a court building has their temperature taken and is wearing a surgical face mask. Such measures have become routine in Hong Kong when entering buildings open to the public.
For the Court of Appeal, cases listed in May 2020 are due to proceed as normal unless a court direction to the contrary is given. The Court of Appeal will continue to explore the possibility of using paper disposals for appeals in civil matters and hearings using videoconferencing facilities.
For civil hearings listed in the Court of First Instance to 15 May 2020 and in the District Court to 22 May 2020, parties have generally been given a seven-day lead-in time for hearings of interlocutory matters (not involving oral evidence) and a 14-day lead-in time for trials. These lead-in times are subject to any direction to the contrary that is given by a presiding judge. A party that is not ready should seek an adjournment by an application on the papers while giving reasons. Judges can continue to give directions for lodging legal submissions using one-way 'no-reply' email accounts with the judiciary administration and, in certain cases, via the court e-lodgement platform.
Assuming that the courts can address the court backlog, civil hearings (including trials) listed from 18 May 2020 (in the High Court) and from 25 May 2020 (in the District Court) are due to proceed as scheduled, unless directed otherwise.
The civil courts continue to explore the possibility of using alternative modes of hearing, in light of public health considerations and where appropriate. These options include more disposal of applications on the papers, hearings using videoconferencing facilities and (in simpler cases) by phone conference.
Jury trials in criminal cases are not expected to resume until well into June 2020.
The different court and tribunal registries began to open at different stages, and in a staggered manner, as from 6 May 2020, with the main High Court and District Court registries resuming normal business as from 8 May 2020. The opening of the registries was not without its difficulties and in the first few days long waiting times and queues were common.
Experience to date shows that directions have been given for some interlocutory hearings in civil matters to be resolved on the papers even though hearing dates in, for example, June 2020 had been fixed long before the commencement of the GAP. This is symptomatic of the general backlog of cases, irrespective of the impact of the GAP. An increase in matters being disposed of on the papers is likely to provide some improvement but there is insufficient evidence of this practice being adopted across the board. It will take a considerable period for the impact of the GAP to be fully made up.
As for the greater use of IT in order to conduct some civil court business, the judiciary has adopted an incremental approach – starting with the use of phone conference hearings for simple directions hearings and the adoption of a Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1).(2) The judiciary is also considering implementing a Phase 2 for remote hearings – this is likely to cover the District Court. To date, the feedback with respect to those appeals or hearings that have been disposed of using videoconferencing facilities appears to have been satisfactory.
For simple interlocutory civil matters, greater use is expected to be made of phone conference hearings.
It is also hoped that the Court Proceedings (Electronic Technology) Bill, introduced into the local legislative council in January 2020, will be passed in 2020. The bill, together with its subsidiary legislation, gives legislative backing for the introduction of an integrated court case management system – to be implemented in phases, starting with the District Court and magistrates' courts.
For further information on this topic please contact Antony Sassi or David Smyth at RPC by telephone (+852 2216 7000) or email (email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(2) For further details please see "Hong Kong courts begin use of videoconferencing".
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