The editorial team had the opportunity to speak to the senior partners of Messrs Harold & Lam Partnership, Mr. Harold Tan and Mr. Lam Wai Loon, on some of their court experiences and thoughts on preparing and conducting online hearings.

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1. Q1:   ‘Hearing’, ‘trial’ and ‘mention’ are some of the terms that we frequently hear or read in relation to court procedures / court proceedings. These are definitely terms that you come across daily as a lawyer. But just for the benefit of people outside the legal profession or perhaps, not familiar with legal matters, could you please briefly explain what are court hearings and trials in general?
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3. HAROLD:   Generally, hearings concern interlocutory applications or appeals before the Judge, registrar or assistant registrar which does not require the attendance and statement by witnesses. Whereas, trials are full proceedings which are conducted with the attendance of witnesses.
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5. LAM:   There are slight differences between the term hearing and trial where lawyers and laymen may sometimes use it interchangeably. Generally, hearings are usually for the purposes for counsel to make a submission on the merits or any issues arising from a particular case or for a particular application. Trials are specifically for evidence taking process where the witness will be present in court to assist the court. Whereas, mention is to facilitate the management of a case in court.
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8. Q2:   So we’re still in the midst of this Covid-19 pandemic, which you would agree, has brought about changes to every aspect of our lives. The world we’re living in is so different now – the ‘new normal’ so to speak. We understand that the court process has also changed significantly. We saw the civil courts embracing virtual hearings and moving away from physical hearings in the court room. Even though our economy has re-opened (to a certain extent) we still see judges preferring virtual hearings. What is your personal take on the introduction of virtual hearings? And is this actually something the Judges are empowered to do?
9. (Answer note: Newly inserted Section 15A of the Courts of Judicature Act (CJA) 1964, states that the court may conduct civil or criminal matters through remote communication technology.)
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11. HAROLD:   I reckon that with the amendments made to the CJA (Court of Judicature Act) there ought to be no dispute whether the courts (and Judges) can conduct civil or criminal matters via remote. I am actually glad that the Court has chosen to conduct these proceedings with remote technology during the pandemic. This pandemic merely expediated the process of including remote technology in Court proceedings.
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13. It was once the practice that all filings be conducted physically, so firms would have “riders” who would collect the documents from the law firm offices, go to Court, collect their numbers and proceed to physically file the cause papers. There is also the receipt of the sealed copies from Court. Those days, some firms would have a PO Box in the Court itself, for the Courts to drop the sealed copies of cause papers to be collected by the “riders.” This was later changed with the advent of technology and the Courts adopting (and amending to include) e-filing systems. Which has definitely made it more efficient. This is natural as there is benefit in efficiency. 
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15.  LAM:   There are no specific rules prohibiting the conduct of a virtual hearing / trial, especially in light of the newly inserted provisions in the Courts of Judicature Act (CJA) 1964. However, if counsel are able to convince the court that the holding of a virtual hearing / trial would prejudice their client, especially in criminal proceedings, then the case would be likely to proceed with physical hearing / trial. It would not be very common for such prejudice to arise in civil proceedings.
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17. There are definitely advantages and disadvantages of the introduction of virtual hearing. In fact, some counsel prefer to conduct the case remotely via virtual hearings / trial due to the convenience of it. After all, it depends on the nature of the case. For example, complex cases which need extensive explanations where multiple documents would need to be referred and compared at the same time (especially in construction matters), it may be more time effective as everything can be done instantaneously. Whereas during virtual hearing, it may take more time to share screen the documents separately.
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20. Q3:   How was it for you then, to conduct trials and hearing virtually? Did you find it difficult at the beginning, or was it a very natural transition for you?
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22. HAROLD:   Lawyers are averse to procedural changes and filing has always been done physically. The initial introduction of conducting these matters virtually was not easy, because of the unknown.
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24. Personally, I, myself was skeptical at first, considering the difficulty at first in setting up the system. However, after conducting hearings and trials virtually, it is a process that would make hearing more efficient. I find it efficient for appeals and hearings to be conducted virtually, but personally, trials I find it better conducted in-person.
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26. LAM:   Initially there are certain challenges conducting hearing or trials virtually among lawyers, due to the unfamiliarity with it. However, as the COVID – 19 situation prolonged, I noticed that all parties, including counsel and judges, are getting more comfortable in conducting hearings and trials virtually.
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29. Q4:   With virtual hearings, there comes a new set of issues such a unstable internet connection, audio and video clarity, and presentation of documents virtually etc. As counsel, how do you prepare in view of these new challenges? Has your preparation process changed since the introduction of virtual hearings and trials?
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31. HAROLD:   Well, we have to learn to share screen effectively in order to present documents during hearings. It is more tedious to set up the documents and prepare the necessary for the hearing. But, your own approach to the hearings does not change. There is efficiency in sharing screen to present documents, but a physical copy is more engaging during cross examinations in trial.
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33. LAM:   There are certain challenges in conducting trial online. particularly relation to examination of witnesses. Counsel sometimes take indication from the body language, demeanor, and reaction from the witness in strategizing their approach in examining the witness. Ultimately for some counsel, it may affect the effectiveness of the evidence taking process online, in comparison to physical hearing.
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35. Regarding the preparation process, I believe that it shouldn’t be much of a difference as counsel or their juniors should generally be familiar with the documents that will be presented to court, regardless of whether the documents were to be presented physically at court, or be presented via share screen.
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38. Q5:   Court hearings are meant to be open to public (in general), and one of the reasons, we understand, is so that justice is not just done but also be seen to be done. In view of the courts’ move towards virtual hearings, do you think that justice can no longer be seen to be done?
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40. HAROLD:   (Contemplation) I don’t think so. To begin with hearings in chambers were never conducted in open court in front of public audience. Personally, I also rarely see non-parties attending or being interested in matters which does not concern them. Perhaps there is a drawback concerning open court petition as members of the public would have been able to attend those hearings. Justice is still done.
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42. LAM:   I do not think that the conduct of hearing or trial virtually would affect the public’s confidence in the judiciary, as apart from high profile cases, it is actually unusual to see the public attend to cases which does not concern them. Ultimately, it would still depend on the decisions and reasonings given by the judge.
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45. Q6:   We have to ask this then: Virtual Hearing vs Physical Hearing. What would you vote?
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47. HAROLD:   In my opinion, physically, definitely for trial. Virtual hearings are efficient for in chambers proceedings and ones which rely only on documentary evidences. I would vote for it.
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49. LAM:   In my opinion, I’d pick physical hearing, especially for complex cases which requires a lot of explanation from counsel with documentary evidence.
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52. Q7:   There may be some junior lawyers or soon-to-be-lawyers reading this. Can you share with us some of your advice/tips for junior lawyers in preparing for virtual hearings?
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54. HAROLD:   Identify the relevant documents which you would be referring to in advance and also prepare in advance. You may also consider preparing the counsel, and witness of the documents which they would be referring to as well. Apart from that, there is not much difference in preparation that a normal process. 
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56. LAM:   There are not much difference in terms of preparation which affects the substance of the matter. Perhaps, it just relates more to the technological preparation to ensure that you are familiar with Zoom (or any other platform used to conduct virtual hearings / trial). This is so that the pace and flow of the submissions / evidence taking process is not affected due to any technical difficulties.

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This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.

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About the Author

Syed Mohamed Ashiq

Associate

Harold & Lam Partnership 

syed@hlplawyers.com

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Lim Ren Wei

Associate

Harold & Lam Partnership 

renwei@hlplawyers.com