Lexis Insights

Legal News, Views, and Insights from LexisNexis Hong Kong

20 May 2020 | by LexisNexis Hong Kong

Introduction

In the event of the outbreak of the novel coronavirus, people may feel discouraged or prevented, from travelling to Hong Kong. The presence of Covid – 19 not only affects tourism and businesses but also potential witnesses who ordinarily reside overseas and are required to give evidence by being physically present in Hong Kong. In light of the current situation, either people  prefer not to travel, or they are restricted from travelling.

In Cyberworks Audio Video Technology Limited v Mei Ah (HK) Company Limited & Ors, Coleman J of the High Court permitted the use of telephone hearings in the context of the current General Adjournment Period (“GAP”) arising from the outbreak.

Facts

With regards to the Covid – 19 outbreak, which led to the disruptions of being physically present in court hearings, the plaintiff sought and applied to adduce the evidence of one of its witnesses by video-conferencing. The application was supported by Consent Order and Affidavit seeking directions for the use of the facilities in the Technology Court, explaining the witness’s travel restrictions to Hong Kong and the defendant’s consent to the witness evidence being given by video-link.

Judgment

The court cited various legislations and practical examples to support its decision of using telephone hearings. In particular, the court referred to Order 1A, Rule 4, of the Rules of High Court in determining its duties to manage such cases. Coleman J preferred the use of ready-access telephone conference facilities for hearing as they seemed to be more widely enjoyed by legal professionals in Hong Kong rather than video-conferencing resources. Further, this is also a regular use for hearings in commercial arbitrations.

However, the court acknowledged that there are concerns in which telephone hearings might offend against the general principle for the open and public administration of justice. Despite this, the court held that the principle provides exceptional circumstances where it may sit in private for the benefit of public safety. In doing so, putting measures into place such as avoiding physical attendance of court hearings is necessary. So, the use of telephone hearings is the key and the only practical way in administration of justice during this crisis.

As a result, Coleman J proceeded in action with the use of telephone hearings. He sat in his courtroom, used a speakerphone, and recorded the whole conversation on the DARTS system without any technical difficulties. The public might later have access to the hearings when they see fit. This approach was also considered in a unanimous decision back in Chow Shun Yung v Wei Pih Stella (2003).

Practical tips

Based on this latest ruling, the current coronavirus situation has created an opportunity for the legal field to reconsider adopting a greater use of technology in court hearings and communications between the parties. In the future, this could promote a more efficient and a cost-effective measure for handling such cases in difficult times.

The Lexis Insights articles are provided for reference purposes only and are not intended, nor should they be used, as a substitute for professional advice or judgment or to provide legal advice with respect to specific circumstances. If you require any legal advice or other expert assistance, please consult a competent professional adviser.

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