A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong. In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.
The High Court recently approved a novel order providing for service of various court documents on unnamed defendants by allowing the plaintiff to effect service by (among other means) using a quick response code. The proceedings arose out of protests at the airport in 2019 and, given the background to the case and the high-profile nature of the proceedings, the court was satisfied that service of the court documents should reasonably be expected to come to the attention of the defendants.
Given the severity of the 'fourth wave' of COVID-19 which Hong Kong is currently experiencing, it became inevitable that the government would roll out tougher social distancing measures and that the courts would follow suit. On 1 December 2020 the judiciary issued its latest notification for stakeholders about the general arrangement of court and registries business. The courts and their registries very much remain open for business, but they are not dropping their guard.
The High Court recently ordered the continuation of various injunction orders restraining unnamed defendants from engaging in 'doxxing' directed at judges and judicial officers in Hong Kong, together with their spouses and immediate family members. The court's decision follows an increase in such activity in connection with certain verdicts and sentences in cases where persons have been charged with offences arising out of protests or related public order incidents.
Some eight months after the outbreak of the COVID-19 pandemic, the courts officially resumed normal business in mid-September 2020. Normal court registry services resumed from about 28 September 2020, together with the cessation of 'ticketing arrangements', the continuation of enhanced social distancing and the introduction of special queuing arrangements for the registries and accounts offices of the High Court, the District Court, the Family Court and the Lands Tribunal.
The judiciary in Hong Kong recently published a Guidance Note for Case Settlement Conference in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court. While facilitating the settlement of certain civil disputes is a laudable aim and part of the underlying objectives in the court rules, the guidance note appears to raise more questions than it answers.
The High Court recently dismissed a plaintiff company's application to continue an ex parte injunction to restrain the defendant bank from presenting a winding-up petition against the company. The company claimed that it had already secured the bank's debt and that, therefore, the bank could not demonstrate that it was unable to pay its debts for the purposes of Section 178(1)(a) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32).
In a recent case, a High Court judge dismissed the defendants' application that she recuse herself from a substantive hearing in contempt proceedings. The application was based on what the defendants submitted was a reasonable apprehension of bias ('apparent bias') – in particular, they claimed that in an earlier decision involving the same parties, the judge had prejudged a question of fact that was crucial in the contempt proceedings.
In a recent case, the High Court allowed the defendants' applications to dismiss the plaintiff's two actions on the ground of abuse of process – in particular, given that no procedural step had been taken by the parties since 1 April 2009, just before the civil procedure reforms came into effect in Hong Kong. Although each application for dismissal based on abuse of process turns on its facts, this case demonstrates that egregious delay and inaction can prove fatal.
The Court of Appeal recently considered the general principles for granting summary judgment (judgment without trial) in the context of cases involving 'water leakage' between apartments above and below one another. Summary judgment is difficult to obtain in Hong Kong, save for simple debt-type actions. However, there tend to be few winners in neighbour disputes involving water leakage which are ripe for alternative dispute resolution, provided there is goodwill on both sides.
The High Court recently allowed a defendant to rely on an expert's reports at trial, even though the expert witness had failed to verify his reports with a statement of truth or include a declaration that he agreed to be bound by the Code of Conduct for Expert Witnesses. In the normal course of events, an expert report that lacks a statement of truth or a declaration will be inadmissible.
Since the general adjourned period (GAP) ended on 3 May 2020, when the courts resumed normal business in Hong Kong, reported cases of COVID-19 infection have approximately tripled. At the time of writing, Hong Kong is experiencing a 'third wave' of infections. The next few weeks appear to be crucial in ascertaining whether the rate of infection will ease – failing which court users face the possibility of another GAP, during which the courts could close again save for urgent and essential court business.
In Hwang v Golden Electronics Inc, the Court of First Instance of the High Court has approved a novel order allowing the plaintiffs to serve certain court documents on several of the defendants using a data room. The order provides that the plaintiffs shall send a court-approved letter by post or email to the defendants providing a link to the data room and, by separate post or email, an access code with instructions to access the data room.
A second guidance note on the use of remote hearings in civil proceedings took effect on 15 June 2020. The guidance note (representing Phase 2) provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first-instance courts and the Court of Appeal. Phase 2 is to be read together with the Phase 1 guidance note issued on 2 April 2020. Phase 2 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.
As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. To date, under the Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) – which came into effect during the general adjourned period – remote hearings using videoconferencing facilities have focused on civil hearings in the High Court involving interlocutory applications or appeals that can be decided on documents and legal submissions.
The general adjourned period, during which the courts in Hong Kong were closed save for urgent and essential court business, ended on 4 May 2020. From that date, 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.
In Hong Kong, the courts have generally been closed, save for urgent and essential court business, as a result of COVID-19. Details have been set out in various public notifications issued from time to time by the judiciary administration. However, a court has held that the general adjourned period (GAP) does not generally extend the duration of an injunction granted on an urgent basis before the GAP commenced and listed for a return date (for continuation or discharge) that falls during the GAP.
Given the extended general adjourned period, during which the courts in Hong Kong have been closed except for urgent and essential court business, the judiciary has adopted an incremental approach to the use of technology for remote hearings. Set against the background of the COVID-19 public health emergency, the new Guidance Note for Remote Hearings for Civil Business in the High Court represents Phase 1 of the courts' adoption of IT initiatives for civil proceedings in Hong Kong.
The 'general adjourned period' (GAP) during which the courts in Hong Kong have been closed, save for urgent and essential court business, has been extended to 13 April 2020. The GAP is a consequence of the extraordinary measures adopted in Hong Kong to combat the coronavirus public health emergency.