Despite the Hong Kong government’s painstaking efforts to pioneer a technological transformation of the city’s industries, the pace of digitalisation has been lagging among the city’s judiciary and law firms.  

For example, there have been few takers for an electronic litigation system, which the city’s chief justice intends to extend to all levels of the courts next year. So far, only around 43 out of 900 law firms have reportedly signed up for the system, even as the COVID-19 pandemic discouraged physical interactions.

Law firms have rarely been known for agility. But this apparent disconnect between the judiciary’s aspiration and an industry-wide aversion towards technology adoption could risk throttling the Chinese territory’s aspiration to clinch top-class status of legal services in the region, where rival jurisdictions, including Singapore, have been doubling down on investing in legal technology and encouraging adaptation.

Nick Chan, a partner at Squire Patton Boggs with a deep technological background, says the key lies in incentives, or lack thereof, in the case of Hong Kong.

“The approach adopted by Hong Kong’s judiciary seems to be over-focused on establishing ‘equal treatment,’ whether clerks and law firms take the initiative to embrace e-court filing. For example, the cut-off deadline for submitting documents to the court is the same for in-person or online filing,” says Chan.

The former chair of eBRAM International Online Dispute Resolution Centre notes that many users chose to stay with the e-filing system partly for convenience. In addition, “filing clerks have shared that filing in person may still get the benefit of an immediate reminder from an experienced court staff if there are obvious mistakes, whilst if one files online, there is a risk that the error won’t be identified and rectified before the deadline has passed.”

“Perhaps improvements can be made to enable the system to be AI-empowered to scan the document more intelligently for logical errors, and common/obvious mistakes, including a missing signature or copy/spelling error, and to reduce repetitive form-filling further. If the system is more user-centric with clear time and cost incentives for both law firms and their litigations clerks to embrace the online systems fully, there will be more time and cost efficiency for the judiciary and this will be great for the wider society to reduce delay and cost of justice.,” he adds.

Chan thus advises the judiciary to consider the pull and push forces in technology adoption. “It would help to adopt more design thinking, user-centric approach and advanced lawtech in future system upgrades/enhancements and clear policy support to encourage law firms and staff to fully utilise what this great system has to offer,” says Chan, who also urges for there to be more training and funding support for more lawyers and support staff.

The slacking adaptation of the e-litigation system also came down to the development of the software itself. According to Chan, insufficient consultation and a lack of industry and private sector engagement play a role in the current situation.

For starters, Chan advises against the traditional practice of rewarding the lowest bidding IT firm when outsourcing digital system contracts. Chan believes the conduct naturally begs the question, “is it necessarily the best technology acquired?”

Also, with more dominant IT firms edging their smaller rivals out of the arena, a monopolistic trend has gradually taken hold, which could risk further smothering competition and incubation of ideas.

The inept bidding period was then followed by an insubstantial consultation process, according to Chan. “Consultation with the industry would be more productive and secure more ‘buy-in’ from the profession if consultation and user-requirement surveys are carried out at inception/planning rather than during pilot testing,” recalls Chan.

For instance, when building the system from scratch in the early stages, the government would be better off establishing an advisory board staffed with talents with sufficient knowledge in law as well as technology rather than developing it behind closed doors.

Chan, who spearheaded the development of the online dispute resolution platform and LegalCloud at eBRAM, says policymakers and industry players in Hong Kong should take stock of the digital transformation of mainland China’s judicial system.

With an emphasis on “judicial digitalisation and transparency,” mainland courts have enabled livestreaming of trials and online circulation of judgments partially spurred by the pandemic. The Futian People’s Court in Shenzhen alone has streamlined more than 121,000 trials, with China’s supreme court holding over 7,600 broadcasts, according to the website China Court Trial Online.

But Chan remains optimistic of Hong Kong’s digital potential and is not worried that the underdevelopment of e-litigation system will undercut Hong Kong’s appeal as a regional arbitration hub.

“Hong Kong is building a strong reputation in lawtech, and the judiciary should continue to lead the world in this space as well,” he adds.