Deacons in the first Court of First Instance hearing via video link in the midst of court closure due to COVID-19 pandemic

Due to the outbreak of COVID-19, the Judiciary has adjourned court proceedings and closed court offices and registries since 29 January 2020 (the General Adjourned Period (GAP)). Only certain very urgent or essential hearings/matters are being dealt with by the courts during the GAP. It has just been announced that the GAP will continue until 3 May 2020 and could possibly be further extended.

The GAP is unprecedented. It has caused the adjournment of most cases that were scheduled to be heard in this 3 month period. Also, new actions cannot be filed except in urgent cases or where the limitation period or unless order will expire during the GAP.

The Judiciary has been exploring ways to increase the level of court services, whilst balancing public health considerations.  Our firm’s experience is that we were able to deal with certain interlocutory applications or applications for directions by way of paper submissions. We also had a case where a physical hearing was made possible through directions given by the court to address public health concerns. There was also a recent case where a directions hearing relating to a trial was conducted by telephone. The Judiciary has been actively considering alternative ways of conducting hearings by making use of technology. This week, for the first time, two cases were conducted remotely through video link. One was an appeal case in the Court of Appeal on 6 April 2020. Deacons was involved in the other one, on 7 April 2020, before the Court of First Instance. 

There were differences in the arrangements made for these two cases. In the hearing before the Court of Appeal, members of the public were allowed to enter into the court room presided over by the judges and they had to keep a distance from each other in the public seating area. According to press reports, there were about 30 people in the court room. The parties’ legal representatives connected remotely via video conference. Our case was a judicial review application of considerable public interest and it was anticipated that there would be more people from the press and the public attending the hearing.  Accordingly, instead of allowing the public to enter the court room, the large waiting area immediately outside the court was set up to allow the public to be there to watch the live broadcast of the hearing.

The half day hearing went smoothly and all participants were able to hear each other clearly. Physical bundles were used and the hearing proceeded as effectively as a hearing in person. The court staff were very helpful and responsive in setting up the video link to the Technology Court where the hearing took place. We had two trial runs to test the systems, one the week before the hearing and the other on the morning of the hearing. In both cases, we experienced no technical issues and were able to fine tune the sound and picture quality. We were able to use our own system to connect to the court. Parties had to fill in forms beforehand to confirm a few technical issues and our experience was that the video link was easy to set up. We also set up our conference room like a court room, with two rows for counsel and solicitors and a few seats at the back for client, all keeping a reasonable distance from each other. The other side had no problem renting video conferencing facilities and the connection was of good quality.

There are a few things we would like to share, which should be of interest:

  • Before the hearing, we were able to contact the clerk to the Judge and were given a dedicated one-way, no-reply email account for the parties to submit documents or make applications for directions.
  • The Judge made a number of directions for the hearing, including the use of physical bundles and restricting the time for the parties’ submissions, to ensure that the case could be heard within the time allotted.
  • Although the parties were in our own offices, the rooms that we set up for the remote hearing were considered an extension of the court room and the same rules applied to them, such as no recordings being allowed. The Judge also directed that counsel should be robed as in any open hearing, to address any concerns about the Code of Conduct of the Bar as to whether counsel should only be robed during court hearings.
  • Everyone wore masks throughout the hearing and there were no significant issues with sound quality, even with counsel speaking through masks.
  • Counsel were allowed to remain seated when making their submissions. The Judge also excused the parties from standing and bowing when he entered the court room.
  • To avoid echos or noise from parties getting their bundles and flipping through papers, those who were not making submissions had to mute their microphones.
  • We believe that electronic bundles can be used or if parties have to refer to the same document or drawings, this can be done through the use of electronic bundles or visualiser provided by the Court (which can project an image on the computer screen).
  • Currently, applications suitable for remote hearing via VCF are those in which the court thinks that focused oral submissions can be concluded within 2 hours. Whilst it takes a lot of manpower to set up and monitor the system in court, as it is quite easy to connect with very few problems, we believe that remote hearings are suitable for longer hearings. 
  • Currently, remote hearings are not available for trials with witnesses giving evidence. We understand that there are some concerns by practitioners that the trial judge might not be able to see the reaction of the witnesses clearly on video, especially if there is some time lag. There should also be safeguards put in place to ensure that the witnesses are not interfered with or given any unfair assistance when they are in the witness box. However, we think that any technical issues can be overcome and it will not take long for judges and practitioners to get used to this new way of taking evidence from witnesses. We think that the use of e-bundles shared on a screen is a more efficient and effective way to refer witnesses to specific documents, rather than relying on witnesses to find documents from the numerous bundles before them. 

The Judiciary has issued a Guidance Note for remote hearings using VCF and also “Technical Specifications”.

COVID-19 has posed serious challenges to everyone, but this could be an opportunity for us to transition into a new way of conducting business, including a new way for courts and tribunals to provide their services and conduct hearings. After the pandemic has come to an end, it is inevitable that people will rely more heavily on the use of technology in conducting their businesses. We are grateful for the various new arrangements offered by the court during the GAP, some of which have been things that the legal industry has hoped to see. As it turns out, these arrangements have been implemented with little issues, although we appreciate that a lot of time and effort has been spent to make them possible.

Deacons is the oldest and one of the largest law firms in Hong Kong and we are here to assist our clients to deal with issues arising from this unprecedented time. If there is any matter that clients would like to discuss, they should please contact us.