For Part 1, please visit: http://hk-lawyer.org/content/when-legal-industry-meets-technology
“Technology is best when it brings people together.”
- Matt Mullenweg, Social Media Entrepreneur
“Legal fees tends to drive people apart.”
- Joshua Chu
In our previous online article, we mentioned that Hong Kong still operates under the traditional mode of Court filings and serving physical documents in stark contrast with other jurisdictions that have begun to embrace electronic service and filing. This article focusses on the recent adoption in Hong Kong of practices already in service in England.
Service of Documents
The Court allowed Plaintiffs to serve documents on Defendants by access to data rooms in the June 2020 decision of Hwang Joon Sang and another v. Golden Electronics Inc. and others  HKCFI 1233.11
The case made reference to and applied modified versions of the service procedures adopted in the English case of CMOC Sales & Marketing Ltd v Persons Unknown and 30 others  EWHC ٢٢٣٠ (Comm)٢2 where HHJ Waksman QC (now Waksman J) indicated that he had approved a system of providing access to documents stored in an encrypted online data room; and described this as “an innovative feature” of the litigation.
The CMOC case allowed service by Facebook Messenger and WhatsApp and, as the amount of material expanded, through online data rooms. The Judge said that the court would consider different forms of alternative service.
Part 6 of the English Civil Procedure Rules allow for a document other than the Claim Form to be served by personal service, post, by leaving it at the address indicated by the party, fax or other electronic communication or method authorised by the court (Rules 6.20(d) and (e), CPR). If a document is to be served electronically, the other party must indicate its agreement and any limitations to the agreement in writing (Paras. 4.1 and 4.2, Practice Direction 6A).
Service of process (not originating process) in Hong Kong is governed by Order 65 of the Rules of High Court (Cap. 4A). Unless a document has to be personally served, it can be served by leaving it at the proper address of the person to be served, post, by leaving it at a document exchange, or in such other manner as the court may direct (O. 65, r. 5(1), RHC).
Readers may start to see both the commonality and differences between Hong Kong and English rules and approach:
(a) Both Hong Kong and England preserve traditional methods of service, yet England expressly allows for electronic service; and
(b) Both allow the court to direct other methods of service; and courts in both jurisdictions have permitted service through various methods. In Hong Kong, for example, Mr. Justice Coleman allowed service via various instant messenger services. Now, bulk documents can be serviced through access to secure online data rooms.
While English Civil Procedure Rules have expressly allowed electronic service, Hong Kong Civil Procedure Rules do not provide for such procedural stipulations, specific applications have to be made for permission.
The silver lining is that Hong Kong courts have become more open to ‘modern’ methods of service, which makes sense considering that electronic addresses (e.g. emails) are often more personal and permanent than physical ones.
Filing of Documents
Similarly, when it comes to filing of documents with the court, the English court seems to be more receptive to the use of technology than Hong Kong.
In England, CE File is the filing and case management system used in multiple divisions, courts and offices.
The UK Judiciary website, says:
“Combined, the new electronic case management and filing systems places the Rolls Building in the forefront of modern technology around the world, consistent with the high standard and international reputation of London as a business dispute resolution centre.”
Hong Kong, which also claims to be an international dispute resolution centre, maintains the traditional paper filing system.
Covid-19 has worsened the situation to the point that the Hong Kong Judiciary announced on 28 July 2020 that registries and accounts offices would reduce hours and “…the capacity of the registry and accounts services will be further reduced. Further delays are expected.”
It may be time for Hong Kong to embrace technology.
There were tentative moves in this direction when the courts closed due to the outbreak and, in some cases, allowed parties to communicate with the court and lodge hearing bundles, submissions and authorities through a designated email address. However, hard copies had to be lodged after the court resumed business. First steps, but something to build on.
Hong Kong should rethink its paper-based system and embrace the efficiencies of technology for service and document filing to live up to its reputation as a premier international dispute resolution centre.