One Step Closer to a Paperless Court
To implement the Judiciary’s Information Technology Strategy Plan (“ITSP”), the Court Proceedings (Electronic Technology) Bill (“Bill”), which seeks to provide an electronic option for handling Court-related documents, was gazetted on 27 December 2019. The Bill promptly passed the First Reading on 8 January 2020.
This will be a transition for the Court case management system which will bring the Hong Kong Courts one step closer to becoming paperless through the application of information technology. Although there have been ad hoc developments over the past few years, for example e-submissions in addition to paper submissions and a pilot scheme of e-submission, a much more comprehensive transition allowing completely paperless filing, service and generation of court-related documents is now about to be implemented. Below is an overview of the proposed changes.
Objectives of the Bill
The Bill aims to make the necessary legislative amendments to implement the ITSP, which intends to improve the existing IT systems, to support the administration of justice by providing more effective and efficient services, to facilitate active case management, and to respond to Court users’ and community’s expectations. In the long run, the efficiency of litigation in Hong Kong is expected to be improved and much less paper will be used.
Key Features of the Bill
The key features of the Bill include:
e-Courts (Clause 6 of the Bill): The Chief Justice will have the power to make rules to specify the Courts (including the highest Court of Final Appeal) and tribunals in which electronic technology may be used (“e-Courts”).
Documents from and to Court in electronic form (Clause 13 and 14 of the Bill): An e-Court/ a Court user may create, issue or send documents electronically to a Court user/ an e-Court by an e-system, subject to two conditions. First, it must be conducted by means of an e-system in accordance with any applicable e-rules and e-practice directions. The second condition concerns re-usability, where the information in the document should be reasonably expected to be accessible so as to be usable for subsequent reference (the “Re-usability Requirement”).
Electronic inter-party service of documents (Clause 16 of the Bill): Parties may serve documents electronically to each other, again subject to two conditions. It must be served in accordance with any applicable e-rules and e-practice directions (for example mutual consent of both parties), and it must meet the Re-usability Requirement. Parties may also decide on the most appropriate electronic platform to serve the documents.
Electronic authentication of documents (Clause 17-19 of the Bill): For documents required or permitted to be signed, sealed or certified under a written law or Court direction, the Court and Court users can authenticate documents by electronic or digital signatures.
Printed Court documents (printouts) (Clause 22 of the Bill): Printouts produced from an electronic document issued by an e-Court in accordance with any applicable e-rules and e-practice directions will have the same legal effect as the original or a copy of the document.
The possible use of an electronic mode will be voluntary in nature. After the passing of the Bill, Court users in the future may choose either the manual or electronic mode for handling transactions with the Court and other parties.
Exceptions to the Bill
Certain circumstances may demand exceptions to the adoption of the electronic mode. The Judiciary therefore may allow electronic submission or production for only a selective type or number of documents. Examples of potential exceptions to the Bill are that original documents are required for review and verification purpose, or the Court action/application is highly confidential in nature.
Details of the exceptions under the Bill will be specified under e-rules and e-practice directions to be issued by the Chief Justice.
Two Phases Implementation
The ITSP will implement a new IT system known as the integrated Court case management system (“iCMS”) to streamline and standardise electronic Court processes at different levels of Courts and tribunals. Transactions with the Court will be conducted through iCMS, the designated IT system.
It is anticipated that iCMS will roll out in two phases. Phase 1 is composed of two stages. Stage 1 of Phase 1 focuses on IT infrastructure and the development of iCMS for the District Court, and the Summons Courts of the Magistrates’ Court (which mainly handles proceedings initiated by summons and fixed-penalty proceedings). In Stage 2 of Phase 1, the development of iCMS will extend to the High Court and the Court of Final Appeal, the remaining part of the Magistrates’ Court and the Small Claims Tribunal.
During Phase 2, the iCMS will be implemented in the remaining Courts and tribunals.
The legislative timeframe for the Second Reading, committee stage and Third Reading of the Bill has not yet been set. The relevant parties will be eager to witness the actual commencement of the transition to make the legal services in Hong Kong more competitive and efficient.
As of now, Hong Kong still lags behind other competent jurisdictions such as the UK, US and our regional competitor, Singapore, which have already rolled out electronic filing services. The Hong Kong Courts require filing, submission and/or service of documents in paper form through physical delivery. Additional scanned copies may be required by the Courts but they are for reference only and without legal effect.
Additionally, the traditional case management system may not be able to cope with the challenges we face at present. For instance, the recent outbreak of coronavirus “COVID-19” has caused the suspension of Hong Kong Courts services since 29 January 2020, apart from urgent and essential hearings/matters, to minimise physical contact of people. If the iCMS had already been implemented through the Bill, interruption to most of Court services might have been avoided.
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