The Courts in Hong Kong have not opened since Chinese New Year due to the novel coronavirus (COVID-19) outbreak. We are now into the sixth week and they will not be resuming "business as usual" for another two weeks. And even this is dependent on Judiciary being satisfied that it is safe to do so.
Due to the closure, a backlog of court hearings and paperwork have been generated. The Judiciary announced last week that it would be adopting a "progressive and staggered approach to pave the way for the orderly resumption of proceedings and re-opening of court registries/offices for all levels of courts/tribunals in March, if the prevailing public health situation permits". Only urgent and essential court hearings and business were and are to be continued. Consideration has been given to the fact that the longer the Courts are closed, the more matters may become urgent and essential, causing the list of urgent and essential court hearings and business to swell.
There has been no mention so far of how the backlog of court paperwork will be tackled.
I would like to offer a suggestion. Those of a certain vintage will remember the 1980s television show, The A-Team, and for those younger, the 2010 movie based on the series. I, though, know a different A-Team. – the "arrears" team or "blitz" team, as it was known, that was tasked in 1987 to clear up the backlog of court work that had amassed in the county courts in London. The A-Team was made up of 10 court clerks from different county courts in London and I was one of them. We were tasked over a six month period to "blitz" the arrears, moving from court to court every few weeks. We purposely sat together away from the court registry public offices so that we would be undisturbed by lawyers and the general public. We would tackle piles of court orders to be drawn up, warrants to be issued and requisitions to be sent out on the varied matters handled by the county court. Perhaps the Courts in Hong Kong need a scaled down version of the A-team to handle the backlog of work?
The Judiciary has set up dedicated e-mail addresses for judges and we have just begun to receive notices from the judges’ clerks inviting us to respond to court matters via e-mail. It is refreshing that Hong Kong is doing this, but a shame that it needed an emergency situation such as COVID-19 to finally compel the court to start modernising itself.
Other jurisdictions have been swifter to move into the 21st Century although modernisation has still taken its time. It is hard to believe that women were only allowed to wear trousers in the courts in England and Wales from 1995. Before then, if a female wearing trousers spoke in court, a judge would say "I can't hear you". That being said, even in the 1990s, High Court Masters would discuss paper applications with solicitors over the phone and faxes from the court were the norm.
Other jurisdictions have been using video conferencing and telepresence solutions in their court systems for years. The English High Court has just extended its pilot scheme for video hearings to ensure the technology is working properly before it is formally introduced. Technology provides time-saving and cost-effective alternatives to travel and in-person interactions between all parties involved in legal proceedings. In Hong Kong, the courts are only just moving towards electronic filing and sending of court documents after years of consultations. It is yet to happen in the Family Court but should do so in the near future.
Singapore, meanwhile, has had paperless courts since 2000. Many law firms are also moving towards paperless or "less" paper offices. The importance of this has been shown to be crucial over recent weeks when many have been working from home and relying on e-filing systems. If all court bundles were also electronically filed, it would be so much easier to work remotely. This would also help the judges who have had to work from home, not to mention the saving of trees, of space and the time of the court clerk, who often has to rush to court with only a few precious minutes to spare hoping to get to court before the registry closes.
It is pleasing to know that in a judgment given only last week in the Hong Kong High Court, Justice Coleman said that during this difficult period, case management was an ongoing process and that it was sensible at least to canvas the possibility of giving directions on alternate contingent basis, to provide for potentially different scenarios which might arise. When considering those scenarios, he had no hesitation in deciding that telephone hearings are permissible.
For Hong Kong, this is a giant leap towards the 21st Century. It shows what can be done and that technology as "basic" as the telephone can easily be used within the Court system.
At last, a step in the right direction.