(Viewpoint) Hong Kong Courts Need Move On From Dino Age

Published in 2021, the ‘Fourteenth National Five-Year Plan’ indicated that Hong Kong was to be developed as ‘Centre of International Legal and Dispute Resolution Service’ in the Asia-Pacific Region.

The Plan not only served its function as to help Hong Kong to better understand its relationship with Mainland by outlining policy benefits, but more importantly, it should be regarded as a mission bestowed upon Hong Kong. In his address at the meeting celebrating the 25th anniversary of Hong Kong's return to the motherland, President Xi stressed that ‘The central government fully supports Hong Kong in its effort to maintain its distinctive status and edges… to maintain the common law’.

In spite of that, even if the HKSAR Government and Department of Justice are to comply with the Plan, with the aim of further developing Hong Kong into a ‘Centre of International Legal and Dispute Resolution Service’, the Judiciary in Hong Kong lacks motivation with low efficiency on development.

Taking the example of digitalisation of Hong Kong Courts. In 2004, the Final Report on Civil Justice Reform suggested in proposal 79 that ‘Steps should be taken to develop the Court’s existing computerised system to enable it to facilitate any reforms by being able to accommodate not merely administrative support, but also to perform case-flow management, resource allocation and management statistic functions’.

It was not until after the outbreak of Covid pandemic in 2020, that the Hong Kong Judiciary made the ‘e-Lodgement Platform’ available, in addition to the one-way ‘no-reply’ email accounts, and permitted temporarily the use of remote hearings. Only a very limited number of cases benefited from the aforementioned adjustments.

Development of e-Services of the Hong Kong Courts have been slow-moving, which led to a near collapse of the Judicial System in Hong Kong during the outbreak of the Covid Pandemic. In 2020, 18% of all court cases were severely delayed and impacted. In the midst of the fifth wave in April 2022, the problem was exacerbated as the Courts went further to announce they would no longer receive physical copy of documents, provided no viable alternatives as to the receiving and delivering of electronic documents, and rejected the use of email correspondences, all of which led to turmoil in the judicial system. During the same period, the use of electronic documents had been adopted by various arbitration organisations in Hong Kong without causing any problems. As commonly known, arbitration is to be kept strictly confidential. We are yet to hear any problems relating to confidentiality arising from the use of electronic documents and systems even in the aftermath of the fifth wave. Is there any legitimate basis as to why the Courts in Hong Kong, which are supposed to act in an open and transparent manner, to find the use of electronic documents problematic?

The neighbouring countries, including Singapore, Dubai and Mainland, have led progressive reforms on the digitalisation of their Court systems, leaving Hong Kong far behind. Singapore pioneered in adopting the electronic filing system as early as 2000s. In Mainland, online remote hearings have long been materialised and widely adopted. They went further as to adopting technology that would help transcribe the court hearing into record reports, these records would then be handed over to both parties of prosecution and defence for confirmation purposes at the end of the same day. The use of such digital devices and technologies in the courts significantly shortened the time needed to process legal documents and correspondences.

Another longstanding problem is lack of judges in Hong Kong. Justice delayed is justice denied - the excessively long waiting time for court hearing to be scheduled after filing a claim, the delay in giving judgement, the low efficiency of prosecution, all exacerbated the problem. According to the Hong Kong Judiciary Annual Reports in the past years, it has indicated that the average waiting time for a civil hearing is over 90 up to 180 days. The average waiting time for a criminal hearing to be scheduled in the High Court is 383 days. Lawyers also pointed out that for some cases, judgements were only handed down one to three years after the hearings were completed.

According to the ‘2020 Benchmark Study on the Earnings of Legal Practitioners in Hong Kong’ , nearly half of barristers and senior counsels were willing to serve in the Judiciary of Hong Kong. Earnings of district judge and magistrate were 7% and 19%, respectively, higher than that of those working as barrister with the equivalent years of practice. Two questions were at stake here: for those barristers wished to have become judges, and judges received comparatively more attractive earnings, why is it the case that the Judiciary suffered from lack of judges for such a long period of time? Should there be investigative research into the matters?

As a practising lawyer for more than thirty years, I find the situation astonishing and concerning - for we pride ourselves over the rule of law in Hong Kong, because we have impartial, just and fair procedures in the Courts. The lack of judges and prosecutors might lead to irreparable damage to rule of law, but these problems are not without solutions.

In December 2022, together with the legal industry, I conducted a questionnaire on ‘Most Concerned Topics Surrounding Development of Legal Industry’, ‘Long Waiting Time for a Court Hearing to be Scheduled’ and ‘Expediting Digitalisation of Courts’, were rated as the most concerned legal topics by 56% and 48% of lawyers respectively.

Do we attribute the problems to the lack of money, or inefficiency of decision makers? I stand firmly in believing the HKSAR Government, with their best endeavours, support fully in upholding rule of law in Hong Kong. I have been reassured by the Financial Secretary, Mr Paul Chan, that the HKSAR Government would always make available funds needed for the Judiciary upon requests. For the Judiciary remains one of the most important branch of the government, financial constraint should, and would be, always out of the equation.

Hong Kong Courts need to move on from Dino Age. We should act promptly, having evaluated the current legal system in Hong Kong, to complete the mission as prescribed in the Fourteenth National Five-Year Plan handed down by the Central Government in a competent manner, and to fully develop Hong Kong as the ‘Centre of International Legal and Dispute Resolution Service’ in the Asia-Pacific Region, and a world renowned legal service centre providing unparalleled and exceptional legal services.

Ambrose Lam San-keung

Legislative Council member from the legal sector

February 6