Technology in the Courtroom: a Smart Justice System

In this third instalment of our series on technology and the law, we will explore the influence and potential of Information Technology (IT) in courtrooms as well as the challenges it faces in being implemented in Hong Kong courts.

It goes without saying that the Coronavirus pandemic has had a profound impact on all industries around the world, and the legal sector is no different. Lockdowns and temporary closure of key facilities, including Courts and registries, have disrupted all aspects of day-to-day activities. In 2020, Hong Kong courts were closed from 29 January to 22 March, known as the General Adjourned Period (GAP), bringing a halt to court hearings and paperwork resulting in a backlog of cases and delays in hearings due to the pandemic. These measures to stop the spread of the virus also highlighted the city’s lack of progress in implementing technology for the court system. 

Other jurisdictions such as Singapore, the US, and Australia have integrated solutions such as e-filing, virtual hearings and online dispute resolution into their court systems, and have done so well ahead of the pandemic starting last year. So, when the pandemic struck, they were able to rely on these systems to continue operations relatively smoothly. In contrast, Hong Kong has been discussing and debating the implementation of technology solutions in the courtrooms but has made very little progress. Hearings continue to be conducted in person, as they have for over one hundred years, requiring the physical presence of different parties, witnesses, and paper submissions (or occasionally, a CD-ROM or USB drive) for any case-related information. Sadly, this lack of progress is at odds with the Government’s stated and ambitious aim of becoming “a leading digital city in the region” .

It was not until the pandemic was well and true underway in April, 2020, that the Courts were quickly forced to switch to conduct remoting hearings using technological solutions such as teleconferencing and video-conferencing for civil cases. 

Technology in the courtroom

In the past few years, rapid developments in IT have disrupted the legal landscape, impacts of which can are also being seen more commonly in courtrooms. Globally, the digitisation of court processes was motivated by the benefits of exploiting technology to achieve higher efficiency and flexibility in litigation workflows, for instance, reducing the time taken in information processing, reduce paper handling, and to enhance accessibility to justice for the wider public. Electronic Filing (e-filing), Virtual Hearings and Online Dispute Resolution (ODR) are amongst the more prominent IT developments that have been embraced by several courts worldwide. 

In Singapore, the judiciary started to adopt technology into its processes from the late 1990s and early 2000s . During that period, it introduced an e-filing system that permitted the preparation and submission of documents electronically, thus transforming the process of civil litigation by not just reducing time and effort (compared to physical filing) but also introducing some automation to reduce the likelihood of errors. Similarly, the UK has had an e-filing system in the Chancery Division since 2014, which requires documents concerning the case to be submitted through on an online portal, in order to improve the efficiency and management of case-related files.  

Virtual hearings are also becoming more common in the UK. In 2018, the UK Ministry of Justice set aside £1 billions for a modernisation programme aimed at facilitating remote hearings for cases related to tax-disputes, civil and criminal law . In the same year UK piloted out its first virtual court case allowing the concerned party to use a laptop camera to present in front of the judge and lawyers who were in Belfast. 

In contrast in Hong Kong, the Court Proceedings (Electronic Technology) Bill which will allow the use of technology for courtroom proceedings and specified tribunals as well as for court related services such as filing, was only passed in July 2020.

Why did it take so long?

Much of the delay and reluctance appears to be a lack of confidence by key decision-makers about the need for the widespread implementation of technology in courts. In 2004, Chief Justice’s Working Party advised that “in a geographically small jurisdiction” such as Hong Kong, the use of tele- and/or video-conferencing facilities would be of little benefit to save costs . This somewhat ignores the fact that Hong Kong is aiming to be an international dispute resolution centre in the Asia Pacific Region – so the market is not just those already physically in the city. Furthermore, as the pandemic has shown distance is not the only thing that needs to be overcome. 

As Sebastian Ko, a LegalTech Lawyer and APAC Managing Director of FiscalNote, observed: “if we don’t try, we don’t go anywhere”. Technology is likely to be a vital part of our future and without experimentation and exploration, the room to mitigate those risks remains unmapped. 

The lack of digitisation in the courtroom is further exacerbated by negative connotations within sections of the legal sector of what this “technology” brings with it, given that the profession is understandably risk adverse by nature. Legal affairs are matters requiring high confidentiality and privacy. Indeed, there are known downsides to technology. While not unique to technology, risks such as data security, data privacy, cybersecurity and technical failures are magnified in this context. Therefore, while promising increased and quick access to information, legal practitioners are still wary of how the implementation of technology in courts may come with greater risks in compromising sensitive client data/information. 

In order to meet these challenges, Sebastian Ko stated that innovation on the process side i.e., applicable policies, rules and guidance governing the types and uses of technology in the courtroom, should be introduced alongside with technological innovation and regularly explained, reviewed and updated. In other words, this means acceptance of technology in the legal community does require us to acknowledge and address these concerns as part of a process of exploring, educating, and encouraging the use of digital solutions in courtrooms. But this process should not be a reason to avoid adopting the technology in the first place. 

Conclusion

While there is no doubt that the pandemic has pushed the Hong Kong Government and the courts to reconsider their stance towards the implementation of technology in court processes, it remains to be seen whether it results in an acceleration in the adoption of technological solutions or is simply a short-lived side-effect of the current situation. We hope it is the former, and not the latter. But six months after passing the Bill, it is still not in operation.

Authors

Davyd Wong is the General Counsel at Star Anise. He is also the Co-founder of the Hong Kong Centre for Pro Bono Service Ltd, is a current member of the Law Society of Hong Kong’s Pro Bono Committee, and a director of the Hong Kong Association of Corporate Counsel.

Amrit Kaur is the Research and Administrative Intern at Star Anise.

The authors are grateful to Sebastian Ko (Lawyer and LegalTech Specialist) who shared their time and perspectives on this topic. Any views expressed in this article are, however, personal to those of the authors as is responsibility for any errors or omissions.

Footnotes (for further reading)

[1] Hammond, G. and Ruehl, M. (2020). Why Hong Kong is failing to produce more tech start-ups. [Online]. Available from: Why Hong Kong is failing to produce more tech start-ups | Financial Times (ft.com).

[2] Judiciary, HK. (2020). Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1: Video-Conferencing Facilities. [Online]. Available from: Hong Kong Judiciary - Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1: Video-Conferencing Facilities)

[3] NRF. (2020). COVID-19 and the global approach to further court proceedings, hearings. [Online]. Available from: COVID-19 and the global approach to further court proceedings, hearings | Hong Kong SAR | Global law firm | Norton Rose Fulbright

[4] NRF. (2017). Online Dispute Resolution and electronic hearings. [Online]. Available from: Online Dispute Resolution and electronic hearings | Hong Kong SAR | Global law firm | Norton Rose Fulbright

[5] LawTech.Asia. (2018). Legal Technology in Singapore. [Online]. Available from: Legal Technology in Singapore - LawTech.Asia

[6]Judiciary. (No Date). E-Filing. [Online]. Available from: E Filing | Courts and Tribunals Judiciary

[7] Bowcott, O. (2018). First virtual court case held using claimant’s laptop camera. [Online]. Available from: First virtual court case held using claimant's laptop camera | Law | The Guardian

[8] Legco. (2020). Court Proceedings (Electronic Technology) Ordinance No. 20.

[9] Legco. (No Date). Civil Justice Reform – Final Report Chief Justice’s Working Party on Civil Justice Reform.