We previously wrote about the validity of online hearings during the MCO in our article here.
Given the increasing number of remote hearings being conducted in the recent months, the office of the Chief Justice in the Federal Court of Malaysia issued a circular on 07 January 2021 to set out certain procedures and guidelines regarding conducting civil proceedings through a remote communication technology for the civil courts in Malaysia (“Circular”).
In exercising its discretion under Section 15A of the Courts of Judicature Act 1964 and Section 101B of the Subordinate Courts Act 1984 on whether proceedings should be conducted through a remote communication technology, the Court may consider factors such as the nature of proceedings, complexity of a case, health factors and the capacity of the witnesses for proceedings which require witnesses, whether parties to a proceeding are represented, the availability and quality of technology utilised and the mobility of the parties to attend physically for a proceeding in Court.
After considering the above factors, the Court may direct proceedings to be carried out through either:
- remote communication technology;
- physical means; or
- a hybrid method by incorporating the means of remote communication technology and physical means
The Circular has also set out certain procedures for handling proceedings either through an e-mail platform, video conferencing or the Court’s e-Review system. For example, before a proceeding is being conducted through an e-mail platform or video conferencing, the Court shall send a notice containing the respective date and time of the proceedings and other relevant instructions to both parties at least 1 week before the proceeding date or a shorter period depending on suitability.
The Court may direct proceedings to be carried out through an e-mail platform if the cases are registered in certain Court locations which do not utilise the e-Kehakiman system or where the Court decides that the proceeding is suited to be heard through an e-mail platform (i.e. where a party to a proceeding is not represented by a lawyer or where parties are not equipped if proceedings are to be conducted through e-Review or video conferencing).
Regarding proceedings to be carried out through video conferencing, the Circular has provided detailed instructions and procedures on how the proceedings are to be conducted.
Before the date of the proceeding, the Court shall fix a case management to provide certain directions on:
- document management – directions will be given to parties on how the digital copies of the documents have to be referred to
- information management of the parties to access the digital platform – the Court will obtain information of the parties involved in the proceeding through video conferencing
- time management – the Court will obtain information on the estimated time to be taken for submissions to allow the Registrar to arrange a schedule for several proceedings to be conducted on the same day
- witness management – the Court will obtain information of the witnesses and the interpreter (if any) that are involved in the proceeding
During the Proceeding
When the proceedings are being conducted, parties should ensure that:
- they are in a room or space free from any distraction or noise and ensure that the lighting is bright during the video conferencing;
- the parties’ microphone shall always be muted unless they are submitting, objecting or answering questions from the Panel or Judges to minimise disruptions to the proceedings;
- the counsel for the Appellant/Plaintiff/Applicant shall begin his submissions by introducing himself and also introducing the counsel representing the other party during the video conferencing;
- the decorum and etiquette in Court must be adhered to;
- the Court must be addressed respectfully and parties make no inappropriate and indecent body and hand gestures;
- parties shall be at the video conferencing session and not leave the proceedings before it is completed unless it is with the permission of the Panel or Judge;
- counsels may not share screen any documents not uploaded to the Court’s e-Filing system to prevent the pagination differences which may confuse parties during the proceeding;
- the details of the video conferencing platform are not disclosed to parties not related to the proceedings except with the Court’s permission; and
- parties do not record the proceedings by using any devices.
When the proceeding through video conferencing is completed, all parties shall wait for the Panel or the Judge to log out from the video conferencing platform before the parties do so.
If parties would like a recording of the proceedings, they may apply to the Chairman of the Panel or the Judge before the proceedings begin or apply in writing to the Court when the proceedings are completed.
Besides the procedures as set out above, the Circular also prescribes for procedures in managing witnesses giving evidence through remote communication technology.
Before a witness gives his evidence, the counsels will ensure that the witness can operate the video conferencing platform and that the technology and facilities at the witness’ location can support the conduct of proceedings through video conferencing.
Before the date of the proceeding, the counsels should scan a copy of the witness’ identity card and submit to the Court to verify the witness’ identity and for the witness to take his oath. All documents and witness statements must be filed and submitted and the same copy of the documents must be given to the witness. Parties may not refer or share screen any documents not uploaded to the Court’s e-Filing system.
During the Proceeding
Similar to the usual etiquette in Court, the witness must address the Court and identify himself by stating his name and his identification card number. The witness should also produce his identification card to the Court by placing it in front of the camera and present a scanned copy of his identification card by using the share screen function. For witnesses relying on their witness statements as evidence, they must sign the witness statement after their oaths are taken.
The location or place where the witnesses give evidence shall be at a location or place as determined by the Court or as mutually proposed by parties and agreed by the Court. A representative of the counsel for either party may be assigned as the supervising solicitor and will be at the same place as the witness to observe and supervise the entire process of the witness giving his evidence.
The supervising solicitor shall assist the Court to conduct a desk scan and to ensure that all parties have a 360° view of the room so the position of the witness and its surroundings are free from any prohibited documents, devices or materials.
In giving its evidence, the witness should always keep his camera and microphone on and the witness may not communicate with any other individuals during the process. However, during the examination in chief, cross-examination and re-examination, the witness must look at the counsel conducting the examination.
If there are technical interruptions during the process or if it is found that the witness is attempting to abuse the Court process by making excuses of technical difficulties to enable him more time to answer questions, the Court may exercise its discretion to cancel the session in its entirety.
Online courts and hearings through remote communication technology have long been an integral part of legal systems in other jurisdictions such as Canada, USA, Australia and Singapore.
Although many may be sceptical about remote hearings being conducted in the courts of Malaysia, this latest development in the Malaysian judiciary system should be welcomed positively as this is the only viable option for people to have continuous access to justice amid the pandemic.
The Circular is a clear testimony to the judiciary’s commitment to adopt remote communication technology and to ensure that remote proceedings run smoothly compromising no parties’ rights to a fair trial.
This article was written by Donovan Cheah and Natalie Ng. Donovan is an Advocate and Solicitor of the High Court of Malaya. He is a Fellow at the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and the Asian Institute of Alternative Dispute Resolution. He is also a registered foreign lawyer with the Singapore International Commercial Court.
Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory. Have a question? Please contact us.