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The High Court in Admiralty. Photo: Roy Issa

Coronavirus: Hong Kong judge in favour of hearings being conducted via telephone during public health crisis

  • Justice Russell Coleman of High Court on Tuesday conducted hearing via telephonic conferencing as trial was postponed due to coronavirus outbreak
  • He says the use of telephones is an ‘obvious’ solution during the current crisis when physical hearings are not permissible on health grounds
A judge who ordered and presided over Hong Kong’s first telephonic hearing has called for a review of how cases can be managed in times of crisis such as the deadly coronavirus epidemic and beyond.

Mr Justice Russell Coleman of the High Court on Tuesday conducted an unprecedented hearing with parties involved in a civil case via telephonic conferencing, after the trial scheduled on February 18 was postponed because of the viral outbreak.

In a 17-page ruling handed down three days later, the judge reflected on his experience and called the use of telephones an “obvious” solution to “the current unfortunate and frustrating circumstances” when physical hearings were not permissible on health grounds.

Hong Kong courts to resume normal operations earliest on March 23

“No technical difficulties arose,” Coleman said. “Those conducting the hearing [via telephone acted] just as [they] would have if they conducted a physically attended hearing. I sat in my own courtroom, using a speakerphone so that the entire conversation could be recorded. I was able to give various contingent directions.”

The Covid-19 crisis is actually an opportunity for the courts and parties to reassess how cases can best be managed
Justice Russell Coleman, High Court

The Covid-19 outbreak has prompted the judiciary to make an unprecedented decision to adjourn all cases, apart from those involving urgent and essential matters, from January 29 to March 23, the earliest date when courts could resume normal operations “if public health situation permits”.

It has also discouraged or prevented travels to Hong Kong, which prompted lawyers to apply for the use of technology for an overseas expert to testify via videoconferencing.

“The Covid-19 crisis is actually an opportunity for the courts and parties to reassess how cases can best be managed,” Coleman wrote. “Whilst the ruling [to allow the telephonic hearing] 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.”

Direction hearings over telephone are routine in commercial arbitrations, but not used in other proceedings.

The possibility of expanding its use to civil proceedings of the High Court and the District Court was explored during the Civil Justice Reform for improving the effectiveness of the civil justice system in 2009.

Civil servants to return to offices as work from home comes to an end

But it was not recommended due to doubts about how much costs could be saved and whether enough lawyers were interested in using telephones.

Coleman, however, noted there were “clear benefits” to such hearings as they furthered the reform objectives by making use of technology and allowed fair and efficient disposal of proceedings.

He also pointed out that there was no express provision in the High Court Ordinance or the Rules of the High Court requiring court hearings to be held with physical attendance of parties or their representatives, or prohibiting attendance by alternative means.

“It cannot be in the interests of the administration of justice, or the maintenance of the rule of law in Hong Kong, for all work in the civil courts effectively to come to a halt simply because hearings normally require the kind of physical attendance which health considerations point against, where numerous court hearings can effectively, cost-effectively, expeditiously, and fairly be dealt with over the telephone,” he continued. “I have no hesitation in deciding that [telephonic hearings] are permissible.”

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