EPD1 The Use of Electronic Technology in Civil Proceedings of the District Court

E-PRACTICE DIRECTION 1

THE USE OF ELECTRONIC TECHNOLOGY IN CIVIL PROCEEDINGS OF THE DISTRICT COURT

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 under the Court Proceedings (Electronic Technology) Ordinance (Cap. 638).

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

(a)  scope of application;

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

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

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

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

(f)  miscellaneous matters.

3.  In this e-practice direction:

“Court” means the District Court;

“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;

“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; 

“RDC”means the Rules of the District Court (Cap. 336H); 

“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) (District Court Civil Proceedings) Rules (Cap. 638C).

A.   Scope of application

4.  This e-practice direction applies to proceedings to which the RDC, the Employees’ Compensation (Rules of Court) Rules (Cap. 282B) or the District Court Equal Opportunities Rules (Cap. 336G) apply and for which the use of electronic technology has been implemented under a notice published under section 32(1) of the Ordinance[2].

5.  Unless otherwise ordered by the Court, this e-practice direction ceases to apply when the Court makes an order under Order 4, rule 9(1) of the RDC for the proceedings to be consolidated or tried at the same time etc. with another set of proceedings to which this e-practice direction does not apply.

6. For the avoidance of doubt, this e-practice direction does not apply to family or matrimonial proceedings.

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

7.  Sections 12, 14 and 18 of the Ordinance as well as rules 8 to 9, 12 to 13, 29 to 30 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.  

B1.   Exception to submission of documents by electronic means via the e-system

8.  As a general rule, all documents may be sent to the Court by electronic means via the e-system except the following.

9.  The following documents related to suitors’ funds should not be submitted to the Court in electronic mode as e-payment is not allowed for the associated submission process:

(a)  Form 23 – Notice of Sanctioned Payment under Order 22 of the RDC

(b)  Form 25A – Notice of Payment Into Court under Order or Certificate under Order 22 of the RDC

(c)  Form 93 – Notice of Sanctioned Payment re Costs under Order 62A of the RDC

10.  A document that is required to be produced to the Court as a paper document may not be sent to the Court by electronic means unless the document is a document specified in the Schedule to the Rules or with the Court's permission.

11.  Litigants may have to resort to 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.

B2.   Special treatment of originals and certified documents

12.  Generally speaking, if any provision of written law or a direction of the Court requires or permits an original or a certified copy of a document be sent to the Court, the original or certified document has to be sent to the Court in conventional mode.

13.  The only exceptions are those mentioned in rule 12(5) of the Rules, namely,

(a)  a resolution referred to in Order 5A, rule 2(2)(c)(i) or (ii) of the RDC;

(b)  an agreement referred to in Order 42, rule 6(2)(a) of the RDC;

(c)  any other document that falls within a type or description of documents specified in this e-practice direction.

14.  In such cases, an electronic copy may be sent in place of the original or certified copy which is in paper form.

B3.   Special treatment of affidavit etc.

15.  Affidavit (except an affidavit proving due service of a document), statutory declaration, deposition under Order 39 of the RDC and notarial instrument within the meaning of section 35A(2) of the Evidence Ordinance (Cap. 8) must, apart from satisfying the technical requirements, also meet the conditions under rule 32 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 the 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 and the interpreter, if any), may lead to rejection of the same.

B4.   Re-transmission

16.  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.

B5.   Unsuccessful submission because of system problem of the e-system

17.  If a litigant attempts to submit a document to the Court via 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 under Order 3, rule 5 of the RDC.

18.  In such a case, any application for extension of time should be supported by an affidavit stating all material facts relevant to the application such as 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, the order which sets the relevant permitted period and the document involved etc.

19.  It remains the responsibility of the sender to ensure that his or her submission by electronic means 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 the fact that the e-system may be busy at a 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. 

B6.   Others

20.  Where litigants have successfully sent a document to the Court via the e-system, they must not send a hard copy of such document to the Court unless otherwise directed by the Court or required by law or practice direction.

21.  If a fee is payable in order for a document to be filed with the Court, litigants must pay for the same before the document can be regarded as successfully submitted to the Court via the e-system.

22.  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.

23.  A document may be rejected for submission via the e-system if it appears that its submission is subject to a restricted application order and/or restricted proceedings order within the meaning of Practice Direction 11.3.  In such a case, the sender should submit the document by conventional mode together with the necessary information to verify the identity of the sender.

24.  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.

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

25.  Issuing a document out of the Court by electronic means is governed by section 13 of the Ordinance and rules 10 and 11 of the Rules.

26.  For the purpose of Rule 10(1)(a) of the Rules, the following documents are covered: Writ of Summons except concurrent writ (Order 6 of the RDC), Originating Summons (Order 7 of the RDC), Originating Motion (Order 8 of the RDC), counterclaim (Order 15, rule 3(2) of the RDC), Third Party notice (Order 16, rule 1(2) and (3) of the RDC), interlocutory summons (Order 32, rule 2 of the RDC), the presentation of a Petition (Order 9, rule 3 of the RDC), an application for compensation under the Employees’ Compensation Ordinance (Cap. 282) and a claim under the relevant ordinance as defined in the District Court Equal Opportunities Rules, etc. 

27.  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 manual mode. The time to be taken depends on the nature of the document to be issued.

28.  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. 

29.  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.

C1.   Issuing concurrent originating process for service out of jurisdiction

30.  For issuing concurrent originating process for service out of jurisdiction, litigants are reminded that if leave for service out of the jurisdiction is required, it must first of all be obtained under Order 11 of the RDC.

31.  Much time may have to be spent in processing the application.  The issuing date will be the date on which the concurrent writ of summons is issued but not the date on which the application is submitted.

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

32.  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.

33.  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.

34.  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.

35.  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.

D1.    Printouts of documents issued out of the Court or sent by the Court to a Party

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

37.  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.

E.   Sending a document by a party to another party

38.  It is governed by section 16 of the Ordinance and rules 15 to 25 of the Rules. 

39.  For the purpose of section 16 of the Ordinance, the serving party may not send a document to the receiving party by electronic means if the receiving party is not within the jurisdiction within the meaning of Order 11 of the RDC unless –

(a)  the receiving party is represented by a firm of solicitors in Hong Kong whereby service of documents will be effected on the solicitors; or

(b)  service of the document by electronic mode is in compliance with the requirement of Order 11.

40.  It is not necessary for a party to be a registered user or an Organization User account holder before he or she can send or give consent to receive documents by electronic means.

E1.   Giving of Consent

41.  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 A of this e-practice direction; or

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

42.  No condition should be attached to the consent to accept service of documents by electronic means.

43.  For the purpose of rule 19(1)(b) of the Rules, the designated information system must not be the e-system because it does not support inter-partes service.

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

45.  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.

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

E2.   Withdrawal of Consent

47.  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 B of this e-practice direction.

48.  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.

E3.   Change of Designated Information System

49.  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 C of this e-practice direction. 

50.  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.

F.   Miscellaneous

F1.   Electronic case file of proceedings

51.  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.

52.  For the purpose of record keeping and inspection, most documents which are submitted to the Court in 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 conventional mode if the documents are too large, or for any operational reasons not considered appropriate to be converted into an electronic record.

53.  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.

F2.   Requirement to retain originals

54.  If the following documents are sent to the Court by electronic means and they are authenticated pursuant to rule 29 of the Rules –

(a)  affidavit (except affidavit of service);

(b)  statutory declaration;

(c)  deposition under Order 39 of the RDC; and

(d)  notarial instrument within the meaning of section 35A(2) of the Evidence Ordinance (Cap. 8),

litigants may wish to retain the original paper document until the final disposal of the proceedings for which the document was sent[3]. This is because the authenticity of the document may be challenged or need to be verified during the course of the court proceedings.  Litigants are at their own risk if they lose the original paper document and it is needed during the court proceedings.

F3.   Electronic seal of the Court

55.  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.

56.  The e-seal may differ in appearance from the seal used on paper.

F4.   Ex-parte applications

57.  For ex-parte applications sent to the Court by electronic means, the Court will notify the applicant of the outcome of the application electronically.  Parties who have made an ex-parte application should check their message box under the e-system for messages concerning their application. 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.

F5.   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.

G.   Commencement date

59.  This Practice Direction shall come into effect on 6 May 2022.

Dated this 6th day of April 2022.

Annex A

Annex B

Annex C