As part of the precautions to combat Covid-19, Hong Kong suspended litigation from 29 January 2020, until 4 May 2020. [Generally Adjourned Period (GAP)]. Essential and urgent matters continued to be dealt with by the duty judge during GAP. 

Hong Kong has a population of seven-and-a-half million. There are more than 20,000 divorces each year. Family proceedings are heard mainly by the 12 Family Court judges. Lists are long, with 50 or more litigants in person each day. Exceptionally a case is transferred to the High Court. 

Businesses have been hard-hit by Covid-19. Maintenance payers have defaulted, leaving the payee no redress. The closure of schools and self-distancing has put pressure on families, many living in flats of 400 sq ft or less. Quarantine has precluded a cross-boundary parent (22,000 such marriages in 2016) from returning to Hong Kong for access. 

It was the perfect storm.

Covid-19 Precautions

The first Covid-19 case here was confirmed on 23 January 2020. To date, there have been 1,055 cases and 4 deaths. 

Early precautions included closing schools and most border crossings. By the end of January, the entire civil service was told to work from home, save for essential functions. Many in the private sector followed suit. 

In mid-March, a surge of returnees resulted in a month-long spike in infections. Further restrictions included banning sports, leisure activities and bars, and placing limitations on restaurants.

Non-Hong Kong residents are prohibited from entering. All persons entering are tested at the airport: positive cases are sent to government-run quarantine; and the rest are obliged to wear a tracking wristband and to self-quarantine. 

Alternatives to court hearings during GAP

Firstly, some matters were dealt with on paper during GAP – directions and consent summonses. Secondly, at least one civil case (not Family) was dealt with by a telephone hearing. 

Delivering Judgment on 28 February in Cyberworks Audio Video Technology Ltd. (In Compulsory Liquidation) v Mei Ah (HK) Co. Ltd, [2020] HKCFI, Mr Justice Russell Coleman observed: "In fact, 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 circumstance, there seems to me to be a strong argument for moving matters in a similar way beyond the end of the crisis."

Thirdly, two or three remote hearings have taken place, but only in the Court of Appeal, the first being on 8 April, more than two months after GAP started. 

Only the existing video conferencing facility (VCF) is permitted, of which there are two in the High Court and a number on trolleys that can be wheeled to other courts. VCF is not an internet platform. It is a system based on the telephone, set up in the 1990s, and intended as a video link for remote witnesses. 

In CSFK v HWH, [2020] HKCA 207, a family appeal, Mr Justice Johnson Lam VP noted that VCF can be linked to the court’s recording system and is secure, observing: "Provided that an official accurate record can be kept for the hearing and integrity of the same being maintained, we cannot see any reason why the concepts of 'hearing or determining' and 'heard and disposed of in court' or 'heard in chambers' in the High Court Ordinance cannot embrace the concept of a VCF hearing. 

"A party or legal representative addressing the Courts through VCF mode will be appearing in and attending a court hearing and subject to all regulations and constraints of a usual court appearance.” 

A member of one of the legal teams in the case observed that although the hearing went smoothly:

• the technology is out-dated in that it is not readily accessible and required special IT personnel to install, configure and remain on-site for technical support;
• is also costly and the costs have to be borne by the litigants;
• additional add-ons and configurations are required for relatively simple tasks eg screen-sharing of file-sharing;
• it does not accommodate more than three participants and therefore a number of persons will have to congregate in the same room e.g. the entire legal team, client and witnesses.

VCF is described by the Bar to be “outmoded and costly to implement widely or efficiently, and a more accessible form of video conferencing solution is necessary or ought to be included under phase II”.

The Bar’s proposals that more modern platforms such as Microsoft Teams be used has been rejected.

On 2 April, the Chief Judge of the High Court handed down Guidance Notes for Remote Hearings.

The guidance recognises that other phases might see the use of technology as 'is permitted by the law as it is' and applicable court rules and procedures and as is 'logistically feasible and appropriately secure'.

However, the guidance observes that Phase I will operate using VCF and that 'at present, trials will not be considered suitable for remote hearings'.

The pronouncement is disappointing, given the success experienced in other common law jurisdictions.

Resumption of Hearings

On 22 April, the judiciary announced that GAP would end on 4 May and proceedings would generally resume 'as safely as circumstances permit'. 

Not all Family Courts have been sitting. 

Another notice announces a 'buffer period' before trials are resumed; that the opening hours of registries has been reduced to half days; and: 'Where appropriate, JJOs will consider disposing the cases on paper as far as possible.  JJOs may also invite parties to explore the use of VCFs or conduct hearings by telephone where appropriate.' 

Given concern about the substantial backlog of family cases, practitioners are looking for options, including:

• more mediations;
• more Private Financial Dispute Resolutions;
• Private Financial Adjudications (PFA).

PFA is a Pilot Scheme set up by a 2015 Practice Direction (PDSL 9), comparable to Family Arbitration but limited to finances. The very first Adjudication took place in May 2020.  

Conclusion

Covid-19 has seriously disrupted the lives and livelihood of families in Hong Kong. The already overworked Family Court has an enormous backlog.  

Coleman J was right: the covid-19 crisis should be an opportunity for the courts and parties to reassess how cases can best be managed. This should result in litigation leaping into the 21st Century. Moreover, such new measures should continue beyond the end of the crisis. 

But if virtual trials and modern platforms are not acceptable, will that leap happen anytime soon?

Corinne Remedios, chairman, Hong Kong Bar Association’s Family Law Committe

This article is part of the Family Law During Lockdown series. Click here for more commentary on how courts around the world are adapting to the impact of the pandemic.