EPD2 The Use of Electronic Technology in Magistrates' Courts

E-PRACTICE DIRECTION 2

THE USE OF ELECTRONIC TECHNOLOGY

IN MAGISTRATES’ COURTS

Introduction

1.  This e-practice direction is issued to regulate or prescribe the detailed practice and procedure to be followed in the use of electronic technology for the Magistrates’ Courts under the Court Proceedings (Electronic Technology) Ordinance (Cap. 638).

2.  This e-practice direction deals with the following topics:

(a)  scope of application;

(b)  making a complaint or laying an information;

(c)  sending a document by a registered user to the Court;

(d)  issuing a document by the Court to a registered user;

(e)  sending a document by the Court to a registered user;

(f)  sending a document by a party to another party; and

(g) miscellaneous matters.

3.  In this e-practice direction,

“Court” means the Magistrates’ Court, a magistrate or a court office;

“document” includes any attachment that forms part of or accompanies that document;

“electronic form” means in the form of an electronic record;

“electronic record” means a record that (a) is generated in a digital form by an information system; (b) can be transmitted - (i) within an information system; or (ii) from one information system to another and (c) can be stored in an information system or other medium;

“e-system” means the information system designated under section 7 of the Ordinance and is accessible at  https://www.judwebportal. judiciary.hk[1];

“litigant” includes a party and his or her legal representative;

“magistrate” has the same meaning as given by section 2 of the Magistrates Ordinance;

“Magistrates’ Court” includes a juvenile court within the meaning of section 3A of the Juvenile Offenders Ordinance (Cap. 226);

“Ordinance” means the Court Proceedings (Electronic Technology) Ordinance (Cap. 638);

“Organization User account holder”in relation to a registered user, means an individual who may send a document to the court by means of an e-system using the same account as the registered user under any administrative instructions issued under section 33 of the Ordinance;

“Party” includes an intended or interested party to a set of proceedings or an application; 

“Registered user” means a person who is registered as a user of an e-system under any administrative instructions issued under section 33 of the Ordinance;

“Rules” means the Court Proceedings (Electronic Technology) (Magistrates’ Court) Rules (Cap. 638B);

A.   Scope of application

4. This e-practice direction applies to a proceeding in the Court—

(a)  specified in paragraph 5;

(b)  in relation to a contravention the proceedings in respect of which, or an offence the prosecution of which, is or is to be initiated by —

(i) the Secretary for Justice; or

(ii) a complainant or informant who is acting or deemed to be acting on behalf of the Secretary for Justice or is authorized by an Ordinance (other than the Magistrates Ordinance (Cap. 227)) to initiate the prosecution; and

(c)  for which the use of electronic technology has been implemented under a notice published under section 32(1) of the Ordinance[2].

5.  The proceeding referred to in paragraph 4 is a proceeding—

 

(a)  in relation to which a notice of prosecution is or is to be filed under section 7D(1) of the Magistrates Ordinance;

(b)  in relation to which a summons is or is to be issued under section 8(1) of the Magistrates Ordinance;

(c)  in relation to which a notice to appear is or is to be served under section 8A(1) of the Magistrates Ordinance;

(d)  in relation to which a penalty notice is issued under an Ordinance specified in Schedule 1 of the Rules.

6.  For the avoidance of doubt, the Rules and this e-practice direction also apply to retrials of summons cases in the Magistrates’ Court ordered by a higher court.

7.  Unless otherwise ordered by the Court, this e-practice direction ceases to apply when the Court makes an order that the proceeding be heard, or otherwise dealt with, together with any other proceeding to which this e-practice direction does not apply.

B.   Making a complaint or laying an information

8.  The prosecution may make a complaint or lay an information pursuant to section 8(1) of the Magistrates Ordinance in electronic form using the e-system.

9.  Where a document is to be attached to the complaint or information, the prosecution can send such document in either electronic form or hard copies.

10.  The Court may issue a summons in electronic form and an electronic copy will be sent to the prosecution via the e-system.

11.  For the purpose of service of summons issued by the Court, the Court may send to the prosecution or its agent a copy of the summons and the prosecution or its agent may print and serve that summons in accordance with the following specifications:

(a)  the paper used for the copy should be of durable quality in A4 size with weight of 80 grams per square meter and ivory colour;

(b)  the layout of the printed copy must be the same as the electronic document; and

(c)  the whole document must either be printed on one side or on both sides.

12.  A printed copy of the summons shall have the same legal effect as the original summons issued by the Court.

C.   Sending Documents to the Court

13.  Sections 12, 14 and 18 of the Ordinance as well as rules 5 to 7 of the Rules are the relevant provisions.  Litigants must also ensure that electronic documents do satisfy the technical requirements as set out in the administrative instructions issued by the Judiciary Administrator.

14.  Parties may have to resort to the conventional mode of filing the paper version of a document where electronic submission is impractical e.g. it involves real objects or documents which are too large or for any reason cannot be converted into an electronic record, etc. 

C1.  Documents which can be sent in electronic form

15.  The prosecution may send to the Court the following documents in electronic form:

(i)  documents required to be sent or produced to the Court in the conventional mode in relation to an application to the Court for an order to be made in the absence of the defendant for recovery of fixed penalty for cases specified in Annex A;

(ii)  notice of prosecution issued pursuant to section 7D of the Magistrates Ordinance;

(iii)  notice to appear issued pursuant to section 8A of the Magistrates Ordinance;

(iv)  documents sought to be attached to summonses issued by a magistrate pursuant to section 8 of the Magistrates Ordinance;

(v)  notification on the seizure of commodity and/or equipment under section 86A(1) of the Public Health and Municipal Services Ordinance (Cap. 132) (also known as Form FEHE 73);

(vi)  documents required to be sent in the conventional mode in support of an application for distress warrant pursuant to section 23 of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237), section 21 of the Housing (Traffic Contraventions) (Fixed Penalty) Bylaw (Cap. 283C) or section 25 of the Motor Idling Vehicle (Fixed Penalty) Ordinance (Cap. 611);

(vii)  any other notices[3] or documents which the prosecution would otherwise be required or permitted (expressly or by implication) to send to the Court in the conventional mode under a provision of written law.

16.  The defence may send to the Court the following documents in electronic form:

(i)  letter to plead guilty pursuant to section 18E or 19A of the Magistrates Ordinance;

(ii)  grounds of objection to admissibility of confession/evidence;

(iii)  Notice of Appeal; and

(iv)  any other notices or documents which the defence would otherwise be required or permitted (expressly or by implication) to send to the Court in the conventional mode under a provision of written law.

17.  Any party to a criminal case may send to the Court in electronic form any documents which that party, as a matter of practice or as directed by the Court, may do so in the conventional mode including:

(i)  correspondence;

(ii)  information regarding a request for witness summons;

(iii)  application for a body order;

(iv)  pre-trial review questionnaire;

(v)  brief facts;

(vi)  written opening;

(vii)  witness and exhibit lists;

(viii)  written submissions and authorities annexed thereto;

(ix)  application for arrangement of interpreter;

(x)  application for two or more summonses to be heard together or be consolidated;

(xi)  application for disposal of exhibits;

(xii)  application for review and related documents;

(xiii)  standard undertaking for release of audio recordings of court proceedings;

(xiv)  undertaking for payment of fees for production of transcripts; and

(xv)  any other documents prepared for the purpose of or to facilitate the hearing of the trial, sentencing[4] and confiscation proceedings. 

18.  Subject to the direction of the Court, government departments or other institutions or persons from whom the Court has sought pre-sentence reports or other documents may submit their reports or documents to the Court in electronic form.

19.  Where a document is sent to the Court in electronic form, the sender:

(a)  shall not also send a hard copy unless otherwise directed by the Court or required by any written law or practice direction;

(b)  shall file with the Court the original document if the Court so directs;

(c)  shall make the original document available for inspection by the Court and/or the other parties to the case or proceedings if and when the Court so directs; and

(d)  in case a fee is payable in order for a document to be filed with the Court, shall pay the same before the document can be regarded as successfully sent to the Court via the e-system.

C2.  Special treatment of affidavit etc.

20.  Affidavits or other documents on oath filed in support of an application must, apart from satisfying the technical requirements, also meet the conditions under rule 24 of the Rules before they can be sent to the Court by electronic means via the e-system.  Failure to comply with the rule, for example, failing to append a signature in manuscript to the affidavit, or where the scanned copy does not include a clear and legible copy of the signature in manuscript (e.g. the signature of the deponent, attesting officer or interpreter, if any) may lead to rejection of the same.

C3.  Re-transmission

21.  If a document is rejected for submission for whatever reason, the sender may have to take appropriate remedial steps including re-transmitting the document to the Court via the e-system.  Should the document be accepted for submission in a subsequent transaction, the system confirmation will only link with the submission time of the subsequent transaction but not the first failed transaction.

C4.  Unsuccessful submission because of system problem of the e-system

22.  If a litigant attempts to submit a document to the Court using the e-system within a permitted period but is unable to do so because of a system problem with the e-system, the sender may consider taking out an application to seek relief from the Court.

23.  In such a case, any application for extension of time should be supported by relevant evidence such as a letter stating the date and time of the unsuccessful submission with the number of failed attempts, the error message shown on the screen (if any) or even a capture of the screen, etc.

24.  It remains the responsibility of the sender to ensure that his or her submission of documents by electronic mode is received by the Court within any applicable time limit, taking into account the possibility of technical failure, and/or pre-announced maintenance of electronic communication systems and information systems and that the e-system may be busy at certain time of a day.  Registered users should avoid last minute submissions and may resort to conventional means of sending documents to the Court if necessary. 

C5.  Others

25.  Even if system confirmation has been given, a document may still be rejected by the Court if it is subsequently found that the document fails to comply with any applicable rules and/or practice direction.

26.  For the avoidance of doubt, the e-system may not be used to serve any document on the Court/a judge or judicial officer as a party or interested party of a proceeding.

D.   Issuing a document out of the Court to a registered user

27.  Issuing a document by the Court in electronic form to a registered user is governed by section 13 of the Ordinance.

28.  For the purpose of section 13 of the Ordinance, the following documents are covered: warrants (including distress warrants, arrest warrants and committal warrants), witness summonses, body orders, certificates of sentence, certificates of conviction, sentencing orders, cases stated by a magistrate, statements of findings (which may include reasons for sentence), demand notes and notices[5] and any other documents which the Court may make with or without a hearing.

29.  In case of an application for a document to be issued by the Court in electronic form, a draft of document or information may first of all be sent to the Court in electronic form via the e-system.

30.  The format and/or layout as specified by the administrative document issued by the Judiciary Administrator should be followed.

31.  Upon successful transmission of a document, the sender will receive an acknowledgment and be notified of the submission time.  It will then take some time for the Court to process and issue the document in question. For documents which require further manual processing and/or involve seeking of orders from the Court, they will then be handled like those submissions made in the manual mode.  The time to be taken depends on the nature of the document to be issued.

32.  As for time-critical documents, the Registry would process them in a way that is similar to the practice under the manual mode.  As such, under normal circumstances and provided that the documents submitted are checked to be in order, the Registry will aim at issuing the notice which serves to confirm the issuance of the document and returning the related documents (e.g. documents sealed by the Court electronically) on the same working day.  If the submitted documents are not in order, the Registry will also normally aim at informing the sender on the same working day accordingly. 

33.  Upon issuance of the document, it will be electronically sealed by the Court and fixed with a hearing date as the case may be.  The same will then be sent to the submitting party via the e-system.

E.   Sending a document by the Court to a registered user

34.  Sending a document by the Court to a registered user by electronic means via the e-system is governed by sections 12(1) and 13 of the Ordinance.

35.  After the Court has sent a document via the e-system, the notification message and document will be sent to the receiving party’s e-system message box.  For receiving parties who have chosen to receive additional email notifications for messages sent to the e-system message box, they will be separately informed of the same via their email addresses provided to the Judiciary.

36.  It remains the responsibility of registered users and Organization User account holders to check the e-system for documents or messages sent from the Court on a regular basis.

37.  For documents in electronic form which cannot be practically sent by the Court to users through the e-system due to reasons such as large file sizes, these documents may be passed to the registered user by way of mobile storage devices.

E1.  Printouts of documents issued out of the Court or sent by the Court to a party

38.  Section 22 of the Ordinance governs the use of printouts of documents sent or issued in electronic form by the Court.

39.  For the purpose of section 22(2) of the Ordinance, the printout must meet the following requirements:

(a)  if the document bears the seal of the Court, the seal must be printed in red;

(b)  the paper used for the printouts/copies should be of durable quality in A4 size, unless the nature of the document renders it impracticable;

(c)  the layout and colours of the printed copy must be the same as the electronic document; and

(d)  for consistency and apart from the back sheet, the whole document must either be printed on one side or on both sides.

F.    Sending a document by a party to another party

40.  It is governed by section 16 of the Ordinance and rules 9 to 17 of the Rules.

41.  It is not necessary for a party to be a registered user before he or she can send or give consent to receive documents in electronic form.

F1.  Giving of Consent

42.  Written consent to accept service of documents by electronic means and the designation of the information system for receiving documents can be given by any means, for example by:

(a)  completing and serving the Notice of Acceptance of Electronic Service at Annex B of this e-practice direction; or

(b)  publishing a general consent on the receiving party’s webpage.

43.  No conditions should be attached to the consent to accept service of documents by electronic means.

44.  For the purpose of rule 13(1)(b) of the Rules, the designated information system must not be the e-system because it does not support inter-partes service.

45.  There is no need to file the notice of consent.

46.  The consent takes effect at the time when the notice is given and if the notice is given by post, it takes effect on the day of posting.

47.  Consent remains valid and effective until it is withdrawn.

F2.  Withdrawal of Consent

48.  A party may withdraw his or her consent at any time in writing by filing and serving a Notice of Withdrawal of Consent at Annex C of this e-practice direction.

49.  The withdrawal takes effect when the withdrawal notice is served or deemed to have been served on the party who has previously received the consent.

F3.  Change of designated information system

50.  A party may change the designated information system for receiving documents by electronic means at any time by filing and serving the Notice of Change of Designated Information System at Annex D of this e-practice direction.

51.  The change takes effect when the Notice of Change of Designated Information System is served or deemed to have been served on the party who has previously received the consent.

G.   Miscellaneous

G1.  Electronic case file of proceedings

52.  For those proceedings which are commenced after the Ordinance came into force, all documents submitted to the Court by electronic means via the e-system will be kept under the electronic case file of the proceedings.

53.  For the purpose of record keeping and inspection, most documents which are submitted to the Court in the conventional mode will be converted as soon as practicable after they are submitted and kept under the electronic case file.  However, the records of some documents will be kept in the conventional mode if the documents are too large, or for any operational reasons not considered appropriate to be converted into an electronic record.

54.  For documents which are converted into an electronic mode, the filing party is encouraged to thereafter check if the conversion has been done properly and inform the Court at once if it is not.

G2.  Requirement to retain originals

55.  If the following documents are sent to the Court by electronic means and they are authenticated pursuant to rule 21 of the Rules–

(a)  an affidavit; or

(b)  any other document made on oath and filed in support of an application e.g. witness summons,

the filing party may wish to retain the original paper document until the final disposal of the proceeding for which the document was sent[6].  This is because the authenticity of the document may be challenged or need to be verified during the course of the court proceeding.  The filing party is at his or her own risk if the original paper document is not so retained and it is needed during the court proceeding.

G3.  Electronic seal of the Court

56.  The seal of the Court will be applied to the documents by electronic means (“e-seal”) by:

(a)   applying a digital signature on the document electronically; and

(b)   inputting a facsimile of the seal duly approved by the Court on the document electronically.

57.  The e-seal may differ in appearance to the seal used on paper.

G4.  Provision of address

58.  Whenever an address is required, a physical or postal address should be provided.  The mere provision of an email address is not sufficient.

H.   Commencement date

59.  This Practice Direction shall come into effect on 30 December 2022.

Dated this 8th day of December 2022.

Annex A

Annex B

Annex C

Annex D