Court Proceedings (Electronic Technology) Ordinance
After more than seven years of discussion, Hong Kong has finally taken steps to allow the digital sending and filing of court documents and will recognise the use of electronic signatures in court-related documents. The Court Proceedings (Electronic Technology) Ordinance (Cap. 638) (“E-Courts Ordinance”) was passed on 17 July 2020 and, although the law is not yet in operation, the move has been welcomed by litigants and lawyers as it should help reduce costs, increase the efficiency of proceedings, as well as saving on storage space.
The Judiciary has been working on an Integrated Court Case Management System (iCMS) to streamline and standardise electronic court processes and the E-Court Ordinance is a part of this plan. The iCMS will be implemented in 2 key phases: first in the District Court and the summons court of the Magistrates’ Courts in stage 1 of phase 1, and then extended to the Court of Final Appeal, High Court, remaining parts of the Magistrates’ Courts, and Small Claims Tribunal in stage 2 of phase 1. Phase 2 will then extend to the remaining courts and tribunals. It is important to note that the system is voluntary and both parties have to agree and would need to be registered with the Judiciary Administration to file through the iCMS.
Further subsidiary regulations and/or practice directions will be formulated in due course to provide operational and practical directions on the relevant systems, technical means and procedures to be adopted. These will include issues such as e-filing and e-service of court documents, e-signatures and electronic authentication of documents, processing electronic copies of original and certified documents, electronic document production and electronic payment of court. There are also likely to be exceptions as to the types of cases and documents that cannot be electronically processed, etc.
The exact timetable for bringing the E-Courts Ordinance into operation and the phased implementation of the iCMS has not been announced. However, the progress of the Judiciary’s IT strategy plan has been rather slow. In a paper on e-court proceedings recently published by the Legislative Council, it was reported that the Judiciary has pushed back the target completion date of its IT strategy plan for the development and implementation of the iCMS, e-services (such as online filing of case initiation documents and payment) and upgrading of the courtrooms’ IT infrastructure to September 2022, from the initial target date of December 2019. Therefore, it is likely to be at least a couple of years before Hong Kong courts can become paperless.
Remote hearings and online data rooms
However, the E-Courts Ordinance has come at a time when technology as an enabler in court proceedings has become particularly topical. The impact of COVID-19 has led to the Judiciary actively exploring new ways to allow access to court services, whilst balancing public health considerations. This includes recent initiatives permitting litigants to conduct certain hearings remotely via telephone and video conference and using online data rooms for e-service of certain court documents, as well as encouraging electronic document production for compliance with disclosure orders in appropriate cases. It seems that these difficult times will help spur the Judiciary on to modernize its court processes.
What does it mean?
For litigants, it will be a voluntary option to go paperless in court proceedings but the other side will need to agree. The traditional paper-based method remains available to ensure that the administration of justice is not affected. The E-Courts Ordinance also does not affect the existing legal position on the admissibility of electronic records in legal proceedings under the Electronic Transactions Ordinance (Cap. 553).
This is a long-awaited move towards Hong Kong catching up with other major jurisdictions in the use of information technology in its courts. Although it will still take some time for the changes to come into effect, the E-Courts Ordinance and the other recent initiatives discussed above mean that there will soon be many additional considerations when devising strategies for the conduct and management of a case. The practical challenges for everyone of adapting to such a change in culture should not be underestimated. It remains to be seen how much cost and time savings can be attained in practice, but we recommend that practitioners and litigants start thinking about the logistics for adoption of electronic court proceedings, and become familiar with the processes and requirements of going paperless.
We will continue to monitor and keep you updated on further developments, so watch this space!