{"id":7958,"date":"2020-11-02T12:29:26","date_gmt":"2020-11-02T04:29:26","guid":{"rendered":"http:\/\/alexchanglaw.com\/?p=7958"},"modified":"2020-12-18T11:17:08","modified_gmt":"2020-12-18T03:17:08","slug":"online-hearings-court-new-era-covid-19-pandemic-anni-ng","status":"publish","type":"post","link":"https:\/\/alexchanglaw.com\/index.php\/online-hearings-court-new-era-covid-19-pandemic-anni-ng\/","title":{"rendered":"Online Hearings in Court – A New Era in the Covid 19 Pandemic"},"content":{"rendered":"\n

Courts of Judicature (Amendment) Act 2020, Subordinate Courts (Amendment) Act 2020 And Subordinate Courts Rules (Amendment) Act 2020<\/p>\n\n\n\n

The long awaited amendments to the Court\nof Judicature Act 1964 (CJA 1964)<\/em><\/strong>, Subordinate Courts Act 1948 (SCA 1948)<\/em><\/strong>\nand Subordinate\nCourts Rules Act 1955 (SCRA 1955)<\/em><\/strong> have finally been gazetted. They are Act\nA1621 \u2013 Courts of Judicature (Amendment) Act 2020<\/em><\/strong>, Act A1622 \u2013 Subordinate Courts\n(Amendment) Act 2020<\/em><\/strong> and Act A1623 \u2013 Subordinate Courts Rules\n(Amendment) Act 2020<\/em><\/strong>.<\/p>\n\n\n\n

The\nAmendments<\/strong><\/p>\n\n\n\n

The amendments focus mainly on the online court proceedings. This brings the Malaysian Judiciary to a new era as we are nowhere near the end of the Covid-19 pandemic. The pandemic shows no signs of being eradicated soon and Malaysia as of late has been continuously recording new surges in the number of Covid cases, the conditional movement control order (CMCO) has already been re-implemented in certain parts of Malaysia, eg: Selangor, Kuala Lumpur and Putrajaya, thus forcing the Malaysian Courts to close their doors during this period. <\/p>\n\n\n\n

Online\nhearings<\/strong><\/p>\n\n\n\n

In ensuring continued access to the justice system in Malaysia, the Judiciary has started implementing remote communication technology in court proceedings. Our Court of Appeal conducted its first ever online hearing on April 23, 2020 which is also made available to the public.  <\/p>\n\n\n\n

Online hearings, also known as remote hearings, as the name suggests, is conducted remotely instead of the traditional courtroom proceedings. It can be conducted via live streaming\/ meeting softwares, eg: Zoom. The courtroom etiquettes and practices remain practically the same for online hearing, except that the counsel now can sit down while submitting during the hearing.<\/p>\n\n\n\n

Remote\nCommunication Technology<\/strong><\/p>\n\n\n\n

Remote communication technology, newly\nintroduced by the amendments, was defined under section 3 of the CJA 1964<\/em><\/strong>,\nsection\n2 of the SCA 1948 and SCRA 1955<\/em><\/strong> as, \u201ca live video link, a live\ntelevision link or any other electronic means of communication.\u201d.  <\/p>\n\n\n\n

Proceedings\nvia Remote Communication Technology<\/strong><\/p>\n\n\n\n

Courts are generally known to be open and public, to adapt to the new challenges brought by the pandemic, Courts may now conduct proceedings through remote communication technology under section 15A of the CJA 1964<\/em><\/strong> and section 101B of the SCA 1948<\/em><\/strong>. It is also provided that court proceedings carried out by this mean shall be deemed to be conducted within the local jurisdiction of the Court. <\/p>\n\n\n\n

The provision for Rules of Court for\nregulation and prescribing the procedures and the practice to be followed in the\nHigh Court, the Court of Appeal and the Federal Court is amended to provide\nspecifically for the hearing of any matter or proceeding through a remote\ncommunication technology. This amendment is done through the insertion of paragraph\n(aa)<\/em><\/strong> under section 16 of the CJA 1964<\/em><\/strong> and section 4 of the SCRA 1955<\/em><\/strong>.<\/p>\n\n\n\n

Substitution\nof Rules Committee membership<\/strong><\/p>\n\n\n\n

The Rules Committee membership of the\nSenior Judge of the Sessions Court of Kuala Lumpur is now substituted by the\nChief Registrar of the Federal Court under paragraph (f)<\/em><\/strong> of section\n17(2) of the CJA 1964<\/em><\/strong> and section 3(2) of the SCRA 1955<\/em><\/strong>.\n <\/p>\n\n\n\n

Practice\nDirections by Chief Justice<\/strong><\/p>\n\n\n\n

The power of the Chief Justice is widened\nunder the new amendments of insertion of section 17B of the CJA 1964<\/em><\/strong> and section\n107A of the SCA 1948<\/em><\/strong>. After consulting the President of the Court of\nAppeal or the Chief Judge, the Chief Justice may issue practice directions when\nnecessary to carry into the effect of the new amendments. <\/p>\n\n\n\n

Oral\nExamination via Remote Communication Technology on Appeal<\/strong><\/p>\n\n\n\n

On hearing of Appeals, while traditionally\nthe Court of Appeal has full discretionary power to receive further evidence by\noral examination in court, this can now be done through a remote communication\ntechnology under section 69 of the CJA 1964<\/em><\/strong>. <\/p>\n\n\n\n

In short, Malaysia Judiciary is moving a step forward by introducing the remote communication technology in light of the Covid-19 pandemic, to ensure that there is always access to justice in Malaysia. <\/p>\n\n\n\n

Act A1621 \u2013 Courts of Judicature (Amendment) Act 2020 <\/strong>
http:\/\/www.federalgazette.agc.gov.my\/outputaktap\/20201022_A1621_BI_Act%20A1621.pdf<\/a><\/p>\n\n\n\n

Act A1622 \u2013 Subordinate Courts (Amendment) Act 2020 <\/strong>
http:\/\/www.federalgazette.agc.gov.my\/outputaktap\/20201022_A1622_BI_Act%20A1622.pdf<\/a><\/p>\n\n\n\n

Act A1623 \u2013 Subordinate Courts Rules (Amendment) Act 2020 <\/strong>
http:\/\/www.federalgazette.agc.gov.my\/outputaktap\/20201022_A1623_BI_Act%20A1623.pdf<\/a><\/p>\n\n\n\n

Rules of Court 2012 and Remote Hearing<\/strong><\/p>\n\n\n\n

The Rules of Court 2012 has been amended in December 2020, <\/p>\n\n\n\n

The Rules of Court 2012 has been amended in December 2020, please click here for more details<\/a>.<\/p>\n\n\n\n

\nPower to Amend  <\/strong><\/p>\n\n\n\n

\nPursuant to the \nearlier mentioned amendments to the Principal Acts, the Rules Committee \nand the Subordinate Courts Rules Committee has recently, in December \n2020 published their amendments to\n the Rules of Court 2012 (ROC 2012)<\/strong>, which is the\nRules of Court (Amendment) 2020<\/em><\/strong>.  <\/p>\n\n\n\n

\nThe amendments were made in exercising the power conferred upon them under\nsection 17 of the<\/em><\/strong> CJA 1964<\/em><\/strong> and section 4 of the SCRA 1955<\/em><\/strong>\n together with the consent of the Chief Judge of the High Court in \nMalaya and the Chief Judge of the High Court in Sabah and Sarawak.\n  <\/p>\n\n\n\n

\nAmendments to Principal Acts Reflected in Rules  <\/strong><\/p>\n\n\n\n

\nThese amendments in the\nROC 2012<\/em><\/strong> is the reflection of the amendments in the \nPrincipal Acts, to facilitate the online hearings in the new era of the \nCovid-19 pandemic.\n  <\/p>\n\n\n\n

\nThe definition of \nremote communication technology was inserted under Order 1 rule 4, after\n the definition of \u201csign\u201d, which expressly stated that it bears the same\n meaning assigned to it under\n the Principal Acts.  <\/p>\n\n\n\n

\nService of Originating Process  <\/strong><\/p>\n\n\n\n

\nThe service has \nbeen widened to allow the writ now, to not only be served either by hand\n or by prepaid A.R. registered post addressed to the Defendant\u2019s last \nknown address, but also to be sent\n \u201cby means of electronic communication in accordance with any practice direction issued for that purpose<\/em>\u201d\n[Order 10 rule 1(1) of ROC 2012]<\/em><\/strong>. In other words, service through either of these three methods would suffice.  <\/p>\n\n\n\n

\nNew Order 33A  <\/strong><\/p>\n\n\n\n

\nThis new Order 33A\n covers on the proceedings through remote communication technology. The \nCourt or Registrar is conferred upon the power under\nO. 33A r. 2<\/em><\/strong>, to direct any cause or matter under ROC 2012<\/em><\/strong>\n to be heard or any proceeding to be conducted remotely, either upon its\n own motion or by application of any party to a proceeding.  <\/p>\n\n\n\n

\nO. 33A r. 3<\/em><\/strong>  <\/p>\n\n\n\n

\nAny person, \nwitness or prison as witness or party to any proceedings may now attend \nthe court and\/ or give evidence in those proceedings by means of remote \ncommunication technology. In cases\n of a person attending, a witness giving evidence and a prisoner as a \nwitness or a party, attending or giving evidence, the Court or Registrar\n shall be satisfied that sufficient administrative and technical \nfacilities and arrangements are made. Also, the appearance\n or evidence given remotely are taken to be appearance and evidence \ngiven in person and form part of the record of the proceedings.  <\/p>\n\n\n\n

\nO.33A r.4\n  <\/em><\/strong><\/p>\n\n\n\n

\nThe Court or Registrar is also conferred with power to revoke, suspend or vary its earlier direction made under\nrule 2<\/em><\/strong>, if either of the following circumstances provided under \nrule 4<\/em><\/strong> applies. For example, where remote communication \ntechnology stops working and the proceedings would be unreasonable \ndelayed to wait until a working system becomes available.  <\/p>\n\n\n\n

\nO.33A r.5  <\/em><\/strong><\/p>\n\n\n\n

\nIn ensuring open \njustice to remain available while the Court is working towards a shift \nto the remote hearings, the Court or Registrar may direct the \nproceedings to be broadcasted so as to make\n it available to the open public. The proceedings may also be recorded \nfor the Court or Registrar to keep an audio-visual record of the \nproceedings.  <\/p>\n\n\n\n

\nPre-trial Case Management  <\/strong><\/p>\n\n\n\n

\nMediation in \nsecuring the just, expeditious and economical disposal of the \nproceedings, has been stressed its importance as can be seen in the \ninsertion of\nparagraphs (1A) and (1B)<\/em><\/strong> under O.34 r.2<\/em><\/strong>, as compared to its previous provision under paragraph 2 subparagraph (a).\n  <\/p>\n\n\n\n

\nParagraph (1A)\n<\/em><\/strong>provides\n that a High Court finds that an issue arising between the parties can \nbe resolved by way of mediation, he may so refer the parties.\nParagraph (1B)<\/em><\/strong>, on the other hand, is clear as it reads, \u201cAll running down cases shall be subject to mediation<\/em>\u201d.  <\/p>\n\n\n\n

\nTo secure just, expeditious and economical disposal of the proceedings also,\nO.34 r.5<\/em><\/strong> now provides that a pre-trial case management \u201cmay be adjourned not more than three times, unless the circumstances otherwise require<\/em>\u201d, rather than the previous \u201cmay be adjourned from time to time\u2026as may be appropriate<\/em>\u201d.\n  <\/p>\n\n\n\n

\nAdjournment of trial\n  <\/strong><\/p>\n\n\n\n

\nFor the same reason in\nO.34 r.5<\/em><\/strong>, a Judge may now adjourn a trial not more than three times, unless the circumstances otherwise require as provided under\nO. 35 r. 3<\/em><\/strong>.  <\/p>\n\n\n\n

\nJudgment and Orders  <\/strong><\/p>\n\n\n\n

\nThe amendments made under\nOrder 42 of ROC 2012 <\/em><\/strong>is to reflect the fact that proceedings now may be held through remote communication technology. The rules under\nrule 1 and rule 1A<\/em><\/strong>, shall apply to every judgment or order pronounced or delivered in the remote hearings. Under\nrule 5<\/em><\/strong>, it provides that the facts that the judgment or order pronounced or delivered in the remote hearings\nshall be reflected in the judgment or order.  <\/p>\n\n\n\n

\nOrdinary service  <\/strong><\/p>\n\n\n\n

\nIn addition to those manners provided for under\nO.62 r.6(1)<\/em><\/strong> for the service of documents which are not required to be effected through personal service,\nsubparagraph (cc)<\/em><\/strong> was inserted under subparagraph (c), which provides for service by means of electronic communication.  <\/p>\n\n\n\n

\nService of documents using electronic filing service  <\/strong><\/p>\n\n\n\n

\nThis provision is \nnewly introduced in the Rules, to enhance the service of court documents\n in light of the current pandemic, under\nO.63A r.17<\/em><\/strong>. Under rule 17 paragraph 1<\/em><\/strong>, a \nparty may effect the service to the other party who is a registered user\n or is represented by a solicitor who is also a registered user by the \nelectronic filing service, if the documents are\n not required to be served by personal service.  <\/p>\n\n\n\n

\nA party may still \neffect the service through electronic filing system though the service \nrequired is that of personal service, provided that the other party to \nbe served has consented to it.  <\/p>\n\n\n\n

\nThe service is \ndeemed effected on the date and at the time that the first part of the \nelectronic transmission is received in the Court\u2019s computer system (rule 17 paragraph 3<\/em><\/strong>).\n A record of the service is issued by the Court\u2019s computer system or the\n service bureau as evidence of the service, the person serving the \ndocument may provide this record to the person being served the document\n (rule 17 paragraph 4<\/em><\/strong>). The proof\n of service may be filed through the electronic filing service (rule 17 paragraph 5<\/em><\/strong>). \n  <\/p>\n\n\n\n

\nPractice directions by Chief Judge  <\/strong><\/p>\n\n\n\n

\nThe power of the Chief Judge to issue practice direction is now more clearly defined under\nO.92 r.3B<\/em><\/strong> that, if the \u201cChief Judge is of the opinion \nthat the circumstances warrant that it is necessary in the interest of \nthe dispensation of justice, public safety, public security, public \nhealth or propriety or for other sufficient reason\n to do so<\/em>\u201d. This amendment ensures that the Chief Judge is better \nallocate with power to issue practice direction to adapt to change in \ncircumstances, when needed.  <\/p>\n\n\n\n

\n[*I believe that there is typographical error under the amendment to r.3B, the sentence \u201cThe Chief Justice after consulting the Chief Judge<\/strong> may issue such practice directions\u201d\n should be read as \u201cthe Chief Judge after consulting the Chief Justice<\/strong> may issue such practice direction\u201d, and that \u201cif the\nChief Justice<\/strong> is of the opinion\u201d should be read as \u201cif the Chief Judge<\/strong> is of the opinion\u201d]  <\/em><\/p>\n\n\n\n

\nAll in all, the\nRules of Court (Amendment) 2020 <\/em><\/strong>focuses mainly on the \nintroduction of the remote communication technology into the Rules. The \namendments in the Rules reflect the amendments in the Principal Acts, \nbut the Rules lay down more precisely on how the\n practice would go. These amendments are definitely a welcome move.  <\/p>\n\n\n\n

<\/p>\n\n\n\n

\"\"
Anni Ng<\/figcaption><\/figure>\n","protected":false},"excerpt":{"rendered":"

Courts of Judicature (Amendment) Act 2020, Subordinate Courts (Amendment) Act 2020 And Subordinate Courts Rules (Amendment) Act 2020 The long awaited amendments to the Court of Judicature Act 1964 (CJA 1964), Subordinate Courts Act 1948 (SCA 1948) and Subordinate Courts Rules Act 1955 (SCRA 1955) have finally been gazetted. They are Act A1621 \u2013 Courts […]<\/p>\n","protected":false},"author":1805,"featured_media":7983,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[28,67,69],"tags":[87,84,106],"_links":{"self":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/7958"}],"collection":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/users\/1805"}],"replies":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/comments?post=7958"}],"version-history":[{"count":14,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/7958\/revisions"}],"predecessor-version":[{"id":8069,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/7958\/revisions\/8069"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media\/7983"}],"wp:attachment":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media?parent=7958"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/categories?post=7958"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/tags?post=7958"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}