The shutting down of many courtrooms and drastic reduction of court services in Hong Kong in February and March 2020 due to the COVID-19 pandemic has led to major concerns about a significant backlog of cases and applications piling up. The public has raised questions relating to why readily available technologies, such as telephone and video conferencing and online filings, are not adopted sufficiently or at all in addressing the backlog. By contrast, other public services have been utilizing these technologies for many years (for example, e-filings at the Companies Registry and the Land Registry).
Making the courts accessible is the key to maintaining the rule of law and access to justice. It is therefore no surprise to see the SCMP article “Coronavirus: Hong Kong courts consider tech options as fifth of caseload affected by health crisis, top judge reveals” (the “SCMP Article“) report that the Judiciary, the Bar Association, the Law Society, and the Legislative Council member for the Legal Functional Constituency aligned on the imperative to implement technology-enabled solutions to keep court services running as best as possible while the COVID-19 situation drags on.
Nonetheless, as outlined further below, there are several practical challenges, which if solved properly could lead to, in paraphrasing the President of the Law Society, Melissa Kaye Pang, a “quantum leap” in court services.
Maintaining the administration of justice requires establishment and clear communication of emergency protocols, continuity practices, and timely updates on disruptions. And, the Hong Kong Judiciary has issued several notifications.
The Honorable Chief Justice of the Court of Final Appeal Geoffrey Ma Tao-li issued an announcement on March 25, which included this statement:
“[We] have nevertheless been urgently exploring further ways to increase court services during this time without compromising the health and safety of court users, our staff and judges. For example, many judges have been proactively managing cases (for example by giving appropriate directions) and making determinations on paper (thus avoiding the need to have parties physically present in court).”
His Lordship continued:
“Further, as far as hearings are concerned, the judiciary is actively considering expanding the scope of hearings (beyond just urgent or essential matters) by hearing submissions by telephone, by video-conferencing or similar means of visual aid and generally making use of technology. The greater use of technology has been urged on the Judiciary and generally I agree with this approach. The only qualifications that I would wish to make here is that the use of such means to facilitate hearings must not only be logistically feasible but also legal in terms of being permitted by applicable court rules and procedures. Additionally, information technology security issues must be addressed.”
Yet, the Judiciary issued notification on February 21 that stated:
“Some other stakeholders have suggested the courts to explore more non-conventional modes for handling court businesses, e.g. hearings by video conferencing. However, the Judiciary is advised that under the existing law, that may not be permissible.”
It was then interesting to see the public excitement surrounding the adoption of a telephone conference to conduct a directions hearing by Justice Coleman of the High Court in February (while the trial was postponed). His Lordship in fact noted that telephone conferences were common in judicial proceedings relating to commercial arbitrations, and that they were aligned with the Civil Justice Reform. The reform came into effect in April 2009, and provides courts with wide procedural management powers in civil cases. It is worth noting that legislative processes may need to be invoked to address criminal cases.
Everyone participating remotely in a video-based hearing should have access to a set of basic equipment, computer screen, webcam, and high-speed Internet connection. Is it reasonable to expect that parties represented and unrepresented could meet this set of requirements today? Unclear … if, say, the yardstick were that we could reasonably expect everyone to have access to a phone to dial into a conference call with a decent connection that could hold up during the entire duration of the proceeding. And, we have not even discussed the ease of use of Skype, Zoom, or other software-based video conference systems for the general public.
As a baseline, participants who would not otherwise have access to the above basic equipment should be so provided in courtrooms and government buildings. In the last five years, many courts and government buildings in Hong Kong have begun providing WIFI access to the public. But civil and criminal courts on the whole do not have many screens and webcams. It should be simple to set up kiosks in courtrooms and government buildings for the purpose of facilitating video-based hearings. However, this might not be practicable in the times of COVID-19 when members of the general public are strongly encouraged to practise social distancing.
By comparison, on March 18, H.M. Courts & Tribunals Service in the U.K. have issued the guidance “HMCTS telephone and video hearings during coronavirus outbreak,” and mentioned that the Justice Video Service and the “BT Meet Me” audio conferencing system were being extended while Skype for Business was activated on all staff and judicial laptops. Interestingly, the Vice President of the Court of Appeal (Criminal Division), Lord Justice Fulford has noted in a separate guidance “[a]dvocates linking remotely need not ‘rise’ when the court assembles etc.”
The public has also questioned about the availability of electronic court filing. The Hong Kong Judiciary is aiming to bring this online later in 2020 after the Court Proceedings (Electronic Technology) Bill was gazetted in December 2019. The Bill deals with the serving, signing, and exchange of court documents among other things. And, beta testing or live trials of the e-filing system has still some way to go.
Will e-filing come online in time or after COVID-19 has subsided? Hong Kong courts saw massive queues of more than 200 people developing when reception of filings resumed during the week of March 9, many were unable to file their court documents until the next day. Even though the staggered resumption of court services were meant to reduce the number of people congregating in court buildings, the opposite effect transpired. Nevertheless, parties in certain cases were allowed to adopt e-mail and fax submissions. The notification on February 21 provides guidance on the acceptable file formats and size.
It will also be relevant to see how litigators manage e-signatures when their transactional lawyer counterparts have long struggled with their clients to manage digital executions on DocuSign and other platforms in respect of corporate deal documentation. Here are some tips from the D.C. Circuit of the U.S. Court of Appeals on managing case management and electronic case file systems.
Information Security and Data Protection
A lot can be said about information security. It should be considered as a core issue, an integral part of the design and architecture of the systems to be implemented. Retaining third party vendors and consultants are today a necessary part of technology adoption to access updated tools, practices, and expertise in a cost-efficient way. Certainly, risk management protocols, service level agreement, and redundancies must be developed appropriately.
Skype and Zoom, for example, are provided by cloud-based services. If courts were to adopt cloud-based tools, how should storage arrangements be settled between the courts and the vendors to ensure security and performance for all relevant stakeholders? Where are the servers physically located? What kinds of encryption and access controls are employed? Are private and hybrid cloud arrangements adopted?
A single secured cloud environment could be set up to support the whole set of tools for audio-visual communication, collaboration, and storage, instead of a patchwork of digital assets scattered across multiple systems. This arrangement could improve security on the whole. It could also produce enormous synergistic value in that e-filing, e-discovery, electronic presentation of evidence (“EPEs”), and e-bundles (or e-trial bundles) could be accessed in a coherent way to support the same e-hearing and the lifecycle of a case. But, measures should be implemented to mitigate concentration risks and flaws arising from integrations with legacy systems etc.
By the way, in alluding to “similar means of visual aid” above, the Chief Justice was likely referring to EPE and e-bundle tools, such as Caselines (which is adopted in the Civil, Crown, Coroners, Family, and Tribunal Courts of the U.K. and is cloud-based).
So, why don’t we seize this opportunity to take a quantum leap?
The challenges in courtroom technology implementation reveal the great challenges of legaltech. There are not only challenges relating to technical performance, cost-efficiency, and information security, but also legal compliance and the public interest.
Overall, it seems that the public can expect greater adoption of telephone and video conferences in Hong Kong, especially in proceedings where the “open trial” principle does not apply. The principle underpins and relates to the constitutional rights to a fair trial and trial by jury (respectively, articles 87 and 86 of the Hong Kong Basic Law). Perhaps, journalists and the general public could be provided dial-in details to trials and other public proceedings in the future. E-filings are coming online this year, and e-mail and fax-based submissions should be growing in any case, as well as EPEs and e-bundles.
2020 may be the year that initiates the “Great Courtroom Technology Upgrade.”
Opinions expressed and any mistakes above are my own and made in my personal individual capacity.
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