In 2020, the Hong Kong Judiciary took much awaited steps to harness modern technology into the resolution of cases it hears.
Passing of Court Proceedings (Electronic Technology) Bill
On 17 July 2020, the Court Proceedings (Electronic Technology) Bill (“Bill”) passed its second and third reading before the LegCo.
The main purpose of the Bill is to incorporate the Information Technology Strategy Plan (ITSP) into Hong Kong Courts system, which amongst other reforms, seeks to introduce an e-system to be used by Courts to support:
- Electronic filing, service and storage of court documents as an alternative to conventional paper-based methods;
- Electronic payment of fees for court-related matters; and
- Electronic authentication of court documents that required to be signed, sealed or certified.
It is proposed under the Bill for ITSP to be implemented by the Hong Kong courts in phases:[1]
| Stage 1 of Phase I: | Implemented by District Court and Summons Courts of Magistrates’ Courts |
| Stage 2 of Phase I: | Extended to be implemented by Court of Final Appeal, the High Court, the Small Claims Tribunal and non-summons Courts of Magistrates’ Courts |
| Phase II: | Implemented by the remaining courts and tribunals (incl. the Family Court, Labour Tribunal, Lands Tribunal, Obscene Article Tribunal and the Coroner’s Court |
If enacted, parties can choose to e-file on a voluntary basis.
At the time of writing this article, the Bill is yet to be enacted. The Court Proceedings (Electronic Technology) Ordinance (Cap. 368) is yet to come into operation.
Service of documents through data room – the Hwang Joon Sang case
On 15 June 2020, the Court of First Instance made a novel decision in Hwang Joon Sang and another v Golden Electronics Inc. and Ors (“Hwang Joon Sang”)[2] to allow service of court documents by access to an electronic data room.
While Hwang Joon Sang is a breakthrough showing Hong Kong Courts are more open to the use of modern technology, the Court has stressed that there is no “one size fits all” approach. In deciding an application for e-service of documents, the Court must proactively consider (i) the needs of the parties; and (ii) appropriate mode of service relevant to the facts and circumstances of the particular case.[3] The current position remains that electronic filing is not automatically granted and is only allowed under exceptional circumstances.
Telephone directions hearing – the Cyberworks Audio Video Technology case
On 28 February 2020, Coleman J in the Court of First Instance also made an unprecedented decision to conduct a directions hearing via telephone conference in the case of Cyberworks Audio Video Technology Limited v Mei Ah (HK) Company Limited & Ors.[4] This decision was made during the General Adjournment Period (“GAP”) when there were disruptions to court services due to the COVID-19 outbreak. In support of its decision, the Court drew references to the frequent use of telephone directions hearings in commercial arbitrations and pointed out that such arrangement would uphold the underlying objectives of the Rules of High Court (Cap.4)[5] in ensuring active and cost-effective case management whilst maintaining fairness between the parties.
Benefits of Hong Kong Courts Moving Online
Paperless justice is not just some “green fad”, nor is it about making travel to court a bit less of a logistical feat by eliminating the suitcases overflowing with lever arch files.
As pointed out in the ITSP, an electronic option for court procedures and documents is required for better administration of justice, balanced against the convenience brought to the judicial process.[6]
Under the ITSP, an integrated case management system (“iCMS”) is required to enhance judicial accessibility, efficiency and transparency – so that courts could keep the wheels of justice moving even during the extraordinary times of a global pandemic/lockdown, without compromising the speed and quality of its services.
It is anticipated that once the Bill is implemented, Hong Kong court users/litigators will be provided with a choice to file, seal and serve Court documents within seconds of uploading onto the e-system. This not only creates almost-immediate access to legal documents anytime anywhere for court users; but also offers great time and cost benefits to legal practitioners by reducing the number of hours spent by law firms in printing, bundling and photocopying court documents. Having a secure online case management system also enhances case management efficiency by reducing the amount of physical storage space required by courts and law firms to store court files.
Be Aware of the Pitfalls of Moving Online
Be it on the track or in the pool, no one could guarantee that coming off the block last would be a road map to finishing first. After all, this is not a linear race. As with all advancements, it is not the merit of the advancement that determines success, but the amount of success users can derive from it.
When it comes to embracing paperless justice, Hong Kong, as a “late bloomer”, is uniquely placed to benefit from the experiences of others and learn from their mistakes.
Lawyers from all over the globe have made mistakes with e-filing such as clicking the wrong Dropbox; choosing the wrong option of “New Case” when “Existing Case” should be chosen[7]; miscalculating the electronic filing deadline;[8] underestimating the time required to upload a court document, hence missing a filing deadline – all of which could be user error but also problems due to the ambiguity of the rules in relation to electronic filing, system user interface issues and malfunction of support systems.
To avoid the pitfalls of e-filing, the ITSP has proposed that court procedural rules (“e-Rules”) and practice directions (“e-Practice Direction”) be prepared prior to the Bill enactment.[9] In particular, there should be detailed legislation which specifies: (i) the court rules and operational procedures applied to e-filing; (ii) the type of court which accepts e-filing; (iii) the court documents allowed for e-filing; and (iv) the cut off time and filing requirements for electronic filing; (iv) types of documents which the court would retain rights to conduct physical inspection. The e-Court system applied should also be user-friendly and consistent across the courts, with adequate online interactive features to answer to any online queries from court users/litigants. Taking reference from the Cyberworks Audio Video Technology case (above), the e-Rules and e-Practice Direction should uphold the underlying objectives of the Rules of High Court so that technology could be utilized for quicker and more efficient case management without compromising fairness between the parties.
Conclusion
The above case and Bill indicate that the Hong Kong Judiciary is making strides towards having technology as an integral part of its operations.
Once the Bill is implemented, court users/litigants are free to choose electronic filing of court documents over tradition paper-based methods, the response of which may later form the basis for the Hong Kong judiciary to push for mandatory e-filing in the future.
It still remains for the judiciary to deliver both a reliable and user-friendly interface for a Court e-system, but it has the benefit of a global treasure trove from which to cherry pick the best attributes.
[1] https://www.info.gov.hk/gia/general/201912/27/P2019122400480p.htm
[2] [2020] HKCFI 1084.
[3] Ibid, at [38].
[4] [2020] HKCFI 347.
[5] See Order 1A, Rules of High Court (Cap. 4)
[6] Para. 10 of Legislative Proposals for the Implementation of the Information Technology Strategy Plan (ITSP) of the Judiciary.
[7] Re Carter Moore Solicitors Ltd [2020] EWHC 186 (Ch).
[8] Eason and another v Skeggs Beef Ltd [2019] EWHC 2607 (Ch).
