Hong Kong Courts – Closing the GAP

The general adjourned period (GAP), during which the courts in Hong Kong were closed save for urgent and essential court business, started on 29 January 2020 with the early onset of COVID-19 in Hong Kong.

On 22 April 2020, the judiciary announced that the GAP would cease effective 4 May 2020 and, since then, the civil courts have resumed normal business, subject to certain public health measures remaining in place. The significant backlog of civil cases will, however, take considerable time to clear, not least because the courts’ resources were already stretched before COVID-19. In the meantime, lessons as to the increased use of IT in the courts have, hopefully, been learnt and further developments in this regard can be expected.

Resumption of court proceedings
Details of the general resumption of court proceedings in the High Court were set out in a notice to court users dated 29 April 20201. The main objective was 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 across Hong Kong when entering buildings open to the public.

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 7-day lead in time for hearings of interlocutory matters (not involving oral evidence) and a 14-day lead in time for trials, subject to any direction given to the contrary. A party which is not ready should seek an adjournment by way of application on paper, 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. Meanwhile, the civil courts continue to explore the possibility of using alternative modes of hearing, including disposing of applications on the papers and conducting hearings using video conferencing facilities and (in simpler cases) by telephone conference. 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 is similarly considering the options for hearing appeals other than in-person.

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 queues and waiting times were common.

Comment
Experience shows that directions will likely be 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 should improve matters although, currently, we have yet to see this practice being adopted across the board. It will take considerable time for the impact of the GAP to be fully made up.

As for the greater use of IT in conducting court business, the judiciary has adopted an incremental approach – starting with the use of telephone 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). The judiciary is also considering implementing a Phase 2 for remote hearings – this is likely to cover the High Court and some other civil courts. To date, the feedback with respect to those hearings or appeals that have been disposed of using video conferencing facilities is broadly satisfactory, which will help support their wider implementation.

It is also hoped that the Court Proceedings (Electronic Technology) Bill, introduced to the local legislative council in January 2020, will be passed this year. The Bill, together with its subsidiary legislation, gives legislative backing for the introduction of an integrated court case management system (iCMS) – to be implemented in phases, starting with the District Court and part of the Magistrates’ Courts.

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