One of the valuable lessons that we learned from the COVID-19 pandemic is the pressing need to find a viable alternative to face-to-face physical meetings and court hearings. We should prepare for unforeseeable disruptions in the future. In accordance with Section 584 of the Companies Ordinance, most local companies used audio-visual technology to hold their meetings during the pandemic. Virtual classrooms were also popular in the city. Not to be outdone, local courts swiftly embraced remote hearings as a way of ensuring the wheels of justice continued to turn during the worst times of the pandemic-induced social isolation.
During the pandemic, court hearings were adjourned and the delivery of justice delayed in the city. In response to unprecedented challenges, the Hong Kong Judiciary permitted the use of video conferencing in civil hearings in the early months of the pandemic in 2020. Four guidance notes have been issued since April 2020. Aiming to establish a clear legal framework for local judges and judicial officers to regulate remote hearings in line with the dual requirements of open justice and fair hearings, the Hong Kong Special Administrative Region government gazetted the Courts (Remote Hearing) Bill last year and the first reading took place in early December 2024.
Having studied the experiences of other common law jurisdictions, our think tank is of the view that the Bill is basically sound and a good step toward greater flexibility and efficiency in court proceedings. We think first and foremost about the resources and costs that can be saved by remote court hearings. Obviously, time is an important resource that can be saved, as evidenced by a study conducted by Jenia Turner (Jenia I. Turner, “Remote Criminal Justice”, in 53 Texas Technology Law Review, 2021). Remote hearings should also be applauded for their accommodative arrangements for vulnerable and overseas witnesses. For example, a fragile overseas witness in a criminal trial will benefit enormously from a remote hearing. The Judiciary considers that the new Bill should provide a legal framework for overseas witnesses to give evidence from outside Hong Kong. It shows without the slightest room for doubt that draftsmen have struck a right balance between efficiency and open justice.
Following two rounds of consultations, key stakeholders, including the Hong Kong Bar Association, the Law Society of Hong Kong and law enforcement agencies, have expressed their support for the legislation. In contrast to Singapore, Hong Kong is lagging behind in digitalizing its court rooms. Although we need to catch up, we should be cautious and avoid adopting controversial ideas of extending the remote hearing order (Order) to cover jury trials (Huo Jingnan, To Try or Not To Try — Remotely. As Jury Trials Move Online, Courts See Pros and Cons). These radical proposals should be viewed with a trace of skepticism.
The major provisions of the Bill are: (a) the details of making an Order, including the factors to be considered by the court; (b) the operation of remote hearings, including the powers of judges and judicial officers, attendance of participants, as well as transmission of documents, presentation of objects and signing of documents electronically; (c) the scope and exceptions to the use of remote hearings; (d) the safeguards for open justice in remote hearings; and (e) the proposed new offences to criminalize unauthorized recording, publishing and broadcasting of court proceedings conducted through both physical and remote hearings.
The Bill defines the scope and exceptions to the use of remote hearings, explicitly excluding proceedings related to criminal trials and national security cases. In some criminal cases and specific stages of criminal proceedings, physical presence of the defendant in court is of actual significance and remote hearings will only be ordered in exceptional circumstances as directed by the court. For instance, the use of remote hearings is generally inappropriate for a defendant’s first appearance before a magistrate. The magistrate should have the opportunity to see the defendant physically in court, particularly when there are complaints over improper treatment by law enforcement agencies during their remand, and when hearing for the first time any bail application of the defendant.
To ensure that the interests of justice are not defeated by the physical absence of the defendant, the Judiciary proposes that while remote hearings may be adopted, a defendant should be physically present in court at the time of his or her plea, verdict and sentence unless the judges direct otherwise. Criminal trials and hearings before a juvenile court are also barred from being conducted remotely.
Concerning national security cases, the government had earlier advised against remote hearings because of the national security risks arising from harassment of witnesses giving evidence outside Hong Kong (James Lee, Hong Kong National Security Cases and Criminal Trials Excluded from Remote Hearings, Hong Kong Free Press, Nov 25, 2024). What is also hard to ignore is the risk that counsel may find it difficult to confront witnesses effectively in a remote hearing.
Since the lack of a physical setting may render remote hearings more susceptible to unauthorized recording and publishing, the Bill introduces new offenses to criminalize unauthorized recording, publishing and broadcasting of court proceedings, whether physical or remote. In determining the level of penalty, the mischief which the proposed new offenses are intended to address entails more severe consequences than that of existing offenses. The reason is that unauthorized recording and publishing may disrupt or interrupt court proceedings. The prohibited acts may also cause serious security concerns or psychological unease among witnesses, thereby leading to fears for their personal safety.
The Judiciary deserves great credit for implementing remote hearings by phases in civil proceedings. The implementation has been successful. A similar approach will be adopted for criminal proceedings so as to allow time for stakeholders to gradually adjust and adapt to the mode of remote hearings. In addition to the incremental approach, the Judiciary should review the implementation on a regular basis so as to ensure the efficiency brought by remote hearings does not undermine the quality of justice they provide.
Albert Yip Hing-fai is the principal solicitor of H. F. Yip & Co and director of national security education at the Chinese Dream Think Tank.
Kacee Ting Wong is a barrister, part-time researcher at Shenzhen University Hong Kong and Macao Basic Law Research Center and chairman of the Chinese Dream Think Tank.
The views do not necessarily reflect those of China Daily.
