Heard in Court via Telephone Hearings

The health risks caused by the coronavirus disease (“Covid-19”) have disrupted the way people interact and work, and have pushed many businesses to consider adaptations for business continuity. One of the most patent changes is the use of technology and tools for working remotely from home. Since the end of January 2020 up to now, telephone and video conferencing, and access to company platforms/document management systems offsite has been common place in the commercial world.

However, some types of work have traditionally required physical attendance, such as attendance at Court hearings.

To respond to the public health concerns surrounding Covid-19, the judiciary has implemented a General Adjournment Period (“GAP”) commencing from 29 January 2020, and expected to end on 5 April 2020 (if the health situation permits). During this GAP, the Courts including the Court registries, remain closed, and will not handle cases save for (i) those of an urgent and essential nature and (ii) fresh remand cases and eight-day cases at the Magistrates' Courts under a special arrangement. As a result of this, many cases have ground to a halt, with hearings delayed and filing deadlines postponed, and parties not knowing when and how they will resume once the GAP finally ends.

It is against this background that the consolidated cases of Cyberworks Audio Video Technology Ltd (In Compulsory Liquidation) v Mei Ah (HK) Co Ltd [2020] HKCFI 347 and Cyberworks Audio Video Technology Ltd (In Compulsory Liquidation) v Silver Kent Technology Ltd [2020] HKCFI 347 was heard, and with it, a landmark ruling on whether telephone hearings relating to High Court proceedings are permissible under the Hong Kong legal frame-work.

As oral hearings with parties present are generally not permitted during the GAP, Honourable Justice Russell Colemen hearing the consolidated cases decided on his own motion that telephone directions can and should be held, in order to promote and ensure active case management.

In his Reasons for Ruling handed down on 28 February 2020 (“Ruling”), he set out his examination of the statutory provisions surrounding hearings and appearances and also the underlying objectives of the Civil Justice Reform of 2009.

To consider whether telephone hearings (instead of hearings taking place in Court) was permissible, he studied the relevant provisions of the High Court Ordinance (Cap. 4) (“HCO”) and the Rules of the High Court (Cap. 4A) (“RHC”) in detail. This exercise included looking at definitions of a “hearing”, “appear”, and “a judge … sitting in court” etc. within the HCO and RHC and the Interpretation and General Clauses Ordinance (Cap 1), along with the word “place” and the relevant sections, being s. 32A of the HCO, s. 28 of the HCO and O. 33 of the RHC.

The Court found that there appears to be no mandate requiring physical attendance in these statutory provisions. Furthermore, in the Court’s consideration of the words “attendance” and “appearance” of parties, the Court commented that “attendance” and “appearance” does not necessarily require that the parties to be physically present in Court. In fact, and quite commonly, solicitors or counsel can represent parties (in their stead) to appear before the Court.

The Court concluded study of definitions with a finding that no provision in the HCO or RHC actually prohibits attendance by alternative means to being physically present.

Reference was also made to the Civil Justice Reform of 2009, including the underlying objectives set out in O. 1A and 1B of the RHC. Of those rules, the Court focused on O. 1A rule 4, which imposes a positive duty on the Courts to actively manage cases. The power is wide and can be exercised by various methods including fixing timetables, dealing with the case without the parties needing to attend at Court, making use of technology, and taking any other step to make any order to further those objectives. Using telephone calls as a means to carry out active case management did not fall foul of any of those underlying objectives.

Having considered, inter alia, the above statutory provisions and also discussions which took place prior to the Civil Justice Reform, the Judge directed that the directions hearing for the consolidated cases would be a telephone directions hearing, if the GAP subsisted at the time originally fixed for the hearing. As the Judge pointed out in paragraph 40 of the Ruling: “...the current Covid-19 crisis is actually an opportunity for the Courts and parties to litigation to reassess how cases can best be actively managed in furtherance of the underlying objectives. Whilst this Ruling is born of the current circumstances, and addresses those circumstances, there seems to me to be a strong argument for moving matters in a similar way beyond the end of the crisis.”

The current circumstances have pushed the Courts to reevaluate the potential arrangements that they and the legal profession can make to best manage a case. As can be seen from this Ruling, the Court is willing to creatively consider and implement ways to carry out the underlying objectives of the Civil Justice Reform. Undoubtedly, there will need to be an examination of policy, regulation, and potential procedural guidelines for more advanced forms of technology to be utilised. However, telephone hearings is likely to be a welcome adaptation for efficient and effective case management using the available resources. Perhaps with this Ruling, the interest to consider the application of technology to cost-effectively expedite procedure in proceedings can be reignited for further justice reforms.

Jurisdictions: 

Squire Patton Boggs, Associate

Hin Han Shum has a broad range of advisory and contentious commercial experience. She focuses her practice on telecommunications, and advises on data privacy, cybersecurity, and technology matters. She has served as legal representative in various litigation proceedings and is an accredited general mediator.