—P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong
COVID-19 has become a pandemic. To contain and delay the spread of this new strain of the coronavirus, personal hygiene (such as regular handwashing with soap and water) and social distancing (such as avoiding gatherings of large groups of people and working from home) have been recommended by public health experts. Governments have tried more aggressive measures, such as closing of borders, quarantine of international passengers, declaration of emergencies, and lockdown of cities, regions and even the whole country. This Post focuses on the experience of the General Adjournment Period (GAP) of the courts of Hong Kong and raises several relevant issues.
Hong Kong, a Special Administrative Region of China, has a common land border with the Mainland of China. It is also an international air transport hub. This interconnectivity of passenger traffic presents a fundamental challenge to any effort to contain the spread of any contagious disease into and from the territory. It was not by coincidence that the Hollywood movie Contagion was set in Hong Kong.
Communal spread of the novel coronavirus in Hong Kong was considered an inevitable likelihood. On 28 January 2020, the Hong Kong Government decided to implement measures not only to reduce the flow of people between the Chinese Mainland and Hong Kong but also to reduce contacts among members of the public within Hong Kong. The Hong Kong Judiciary issued a public announcement on the same day that ‘in view of public health consideration, … all hearings of the courts/tribunals originally scheduled from … January 29 to February 2 are adjourned’ and that the registries and offices of courts and tribunals would also close during the same period, whilst ‘urgent hearings’ would be dealt with in accordance with ‘the established mechanism’ of seeking an audience with a ‘duty judge’.
This period of ‘general adjournment’ of all scheduled cases of the Hong Kong courts and tribunals and closure of the court/tribunal registries and offices was then extended (or, shall we say, ‘widened’) by successive public announcements made on 1 February, 8 February, 13 February, 21 February, 27 February and 6 March, and has now been referred to as the GAP. During the GAP, the Judiciary maintained liaison with ‘stakeholders’ (including the legal profession and the Department of Justice) and made provision, gradually, for the handling of ‘urgent and essential hearings and matters’, including fresh remand cases, the sentencing of remanded persons, bail applications and reviews of remanded persons, applications for search warrants, urgent bankruptcy matters, urgent grants of probate, the filing of originating documents where the relevant limitation period may expire during the GAP. At the time of writing, the Judiciary has embarked on a ‘staggered and progressive’ programme of resumption of hearings and court and registry businesses with the aim of ending the GAP on 22 March 2020, ‘if the prevailing public health situation permits’.
The Hong Kong Judiciary’s institution of the GAP has been a bold move. Hong Kong courts were not closed in 2003 during the SARS outbreak. And in the course of the COVID-19 outbreak, it seems that only the courts of the nearby Special Administrative Region of Macao were closed for about two weeks, resuming business on 17 February 2020. Neither the Mainland Chinese courts nor the Singaporean courts cancelled or adjourned scheduled hearings in the same period. Legal historians may be interested to recall records on whether courts in different jurisdictions were closed during the 1918-19 Spanish flu pandemic.
Questions can be raised on the justification of imposing the GAP, which disrupted the work schedule and cashflow of many legal practitioners both during the period of the GAP and in the not too short period immediately after resumption of hearings and business, as well as the arrangements of litigants (particularly those incarceration pending trial, sentence and appeal) and witnesses. The Judiciary had explained on the justification for imposing the GAP, focusing mainly on the legitimate public health grounds for general adjournment and closure. This translates into the issue of ‘inter pestilentia enim silent leges’, or whether the law shall fall silent in the time of pestilence. While in practice, this has been a matter of extent in Hong Kong, the cautionary note must be sounded: A public emergency of any sort presents the executive authorities with the opportunity to seek and use extraordinary powers, and it is up to the readiness and willingness of other branches of government to hold them to account, and this often means acting while the matter is in motion, rather than after the event.
More fundamentally, the Judiciary should be asked and so far, it has not provided an answer, on the authority or power to cause the general adjournment of scheduled hearings and closure of registries and offices and on the identity of the officer responsible for making the relevant decisions. This is because while there is express statutory authority under the provisions of the Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Chapter 62, Laws of Hong Kong) for adjournment of judicial proceedings during the duration of a gale warning or a rainstorm warning and resumption of judicial proceedings afterwards, and for the Chief Justice of the Hong Kong Court of Final Appeal to order a different way of adjournment and resumption, there is no specific legislative authority providing for and regulating a similar arrangements by reason of the presence in Hong Kong of an infectious disease. Some legislations constituting the courts and tribunals do have general provisions giving the Chief Justice power of direction regarding sittings and distribution of business of the superior courts and the District Court. But others expressly vest the power of adjournment on the magistrate and the tribunal concerned. A decision collectively to adjourn all scheduled hearings of courts and tribunals ‘generally’, albeit by senior member(s) of the Judiciary, must be based on law. Otherwise, the rigour of judicial independence in the individual case may not be seen to have been maintained.
Apart from the fundamental and elementary question of authority discussed above, other lessons to take home from the present Hong Kong experience includes:
(1) Establish electronic filing or an e-registry system if the jurisdiction has not yet done that.
(2) Plan for and implement means of electronic communication with the courts or the assigned judge or judicial officer for the purposes of obtaining directions, filing documents and disposing applications and other matters by reading papers and submissions. After all, judges can work from home. And, indeed, one judge did take the more proactive step of convening a telephone conference with lawyers in an upcoming trial to deal with necessary directions using a speakerphone while he sat in an otherwise empty courtroom.
(3) Plan for and implement means of reprovisioning of timetables for hearings to further the objective of social distancing, which is a matter that only judges and judicial officers can do, since legal practitioners had kept on physically exchanging papers with one another during the GAP pursuant to those timetables notwithstanding that the court registries were closed in the meantime.
(4) Rationalize on the court business that would continue to be transacted during a general period of court closure. An example is whether the court would entertain a lawsuit sought to be filed by passengers stranded in a cruise ship within territorial waters.
(5) Plan for and implement resumption of court hearings and businesses without that becoming a public health risk in itself.
(6) Ensure that the fundamental human rights of litigants to access the courts timely for judicial remedies, particularly those remanded in custody for trial, sentence and appeal, are protected by appropriate action on the part of the courts and magistrates so that a fair balance is achieved between the impact or inroad into the individual defendant’s guaranteed fundamental right and the public or societal interest in the prevention of the spread of infectious diseases and the protection of public health.
Suggested Citation: P.Y. Lo, COVID-19 Pandemic, Social Distancing, and the Courts: Notes from Hong Kong, Int’l J. Const. L. Blog, Mar. 14, 2020, at: http://www.iconnectblog.com/2020/03/covid-19-pandemic,-social-distancing,-and-the-courts:-notes-from-hong-kong