CMS Expert Guide to Digital Litigation in Hong Kong

The civil justice system in Hong Kong has progressively adopted digital systems and technology.  The judiciary is actively promoting digitalisation which is being implemented in phases at varying levels of the court.  In this regard, the landscape is rapidly developing into an online environment with the goal of increasing access to justice and reducing costs of litigation.

At present, electronic filing (in selected level of court and for selected matters) and the Technology Court are the main digital or technical measures available.

Pursuant to the Court Proceedings (Electronic Technology) Ordinance (Cap. 638) (“CPETO”), litigants can use electronic technology in relation to proceedings in Courts and other Court-related purposes, including to:

• send and/or accept delivery of documents to and/or from the Court and/or another party to the proceedings;
• issue proceedings out of the Court;
• search and inspect documents filed with the Court; and
• effect payment to the Court.

The above will be processed through a web-based e-system known as the integrated Court Case Management System (iCMS) implemented by the Judiciary.  In essence, electronic filing of documents will have the same effect as if it were filed physically.  As CPETO came into effect towards the end of 2021, physical filing is still common in Hong Kong but the use of the electronic filing system is progressively increasing.

Meanwhile, the Judiciary has also introduced the Technology Court to enhance the efficiency and effectiveness of court support services.  The Technology Court is equipped with various facilities including video conferring for witnesses to give evidence remotely and multimedia facilities to enable the presentation of evidence in different forms.  Furthermore, closed circuit television is also available for the purpose of examination of vulnerable witnesses.  The use of technology and related facilities is becoming increasingly common.

Recently, in light of the pandemic, remote hearings have been actively adopted in lieu of physical hearings.  Furthermore, some judges have allowed for service of documents to parties by granting access to a data room having regard to the volume and complexity of the matter which justified the method of service.  A key consideration was that this method of service was quick, efficient and cost-effective for the parties.

The use of these instruments is optional for the parties and their legal representative.  However, we note that the use of technology is becoming increasingly prevalent.  In our experience, parties have been directed by the Court to provide electronic bundles and submissions in lieu of physical documents.

With regard to the use of the Technology Court, a formal application must be made before the level of Court where the case is heard or tried.  The Court will consider various factors including whether such use is likely to promote the fair and efficient disposal of the proceedings, save costs and/or delay disposal of the proceedings.

No.  However, active steps are being taken by the Judiciary to digitalise the litigation process and systems available.

As mentioned in Question 2 above, electronic filing for court-related purposes is governed by CPETO.  Prior to its enactment, there was a publication consultation and various readings at the Legislative Council.

Currently, the Courts (Remote Hearing) Bill (the “Bill”) has been proposed and is planned to be introduced to the Legislative Council by the fourth quarter of 2023. The Bill aims to provide a comprehensive legal framework for Judges and judicial officers to order remote hearings at various levels of Courts and Tribunals where appropriate, and enhance the efficiency of court operations and provide a more convenient and efficient means of communication between the courts and court users with the use of technology.  Under the proposed Bill, the use of remote hearing will extend to criminal proceedings as well.

At present, there are debates as to the scope of hearings that can be conducted remotely, whether the confidentiality in the communication between parties and their representative can be preserved, and whether open justice can be safeguarded if pre-registration is required for public to attend the hearing through the audio-visual link.

As mentioned in Question 5 above, the proposed legislation under the Bill can foster digitialisation in litigation. Under the proposed legislation, the use of remote hearing will extend to criminal proceedings as well.

Currently, the use of AI in litigation is limited and there are no specific rules that apply.  However, we anticipate that this may change in the future as the applications of AI increase.

To participate in remote hearings for civil proceedings, parties must be equipped with a video conferencing unit (“VC Unit”).  There are three options for the VC Unit, namely hardware option, software option and browser-based option.  For both hardware and software options, parties will need to ensure that their VC units support direct end-to-end encryption with the Judiciary’s video-conferencing facilities and of particular encryption strength and protocol.  To allow courts users to use common web browsers and normal computer devices to participate in remote hearings, the browser-based option has been introduced, in which end-to-end encryption is implemented and controlled at the video-conferencing server system of the Judiciary.  Participant(s) will be informed of a unique meeting login ID and passcode for identity authentication to avoid any unwanted access.

Representative proceedings are generally not very common in Hong Kong but the emergence of digital tools may make such claims more viable.

The Judiciary operates a free online Legal Reference System which enables the public to conduct searches for case judgments, reasons for verdicts, reasons for sentences, and press/case summaries on notable judgments.

Some law firms have started using chatbots to guide potential clients to the relevant practice group or practitioner, and some organizations have also been discussing the potential use of chatbots to address and filter enquiries from the public.

¹ e.g. videoconferencing, e-filing of claims/documents, digital platforms, document automation, knowledge management, data analytics, use of artificial intelligence (AI) or use of virtual reality (VR) or augmented reality (AR).