How Court Proceedings Have Been Conducted Remotely Within MCO Restriction?

We have represented numerous client in Court Proceedings:

The solution to the problem

To cope with the current COVID-19 pandemic crisis (as with any other country), the Malaysian courts have geared and moved towards modern technology. As noted by the court1, the need for counsel, litigants and witnesses to physically travel to the court for the hearing of their matters, in times such as this, is getting lesser by the day- hearings and meetings can now be done and are, by reason of the COVID-19 pandemic, encouraged to be done electronically via a variety of internet platforms such as Zoom or Skype, Google Duo, Google Hangouts, MS Teams, Adobe Connect, etc.

The applicability of this practice extends to cross-country disputes as well. With the aid of video conferencing and given the restrictions in air travel caused by the COVID-19 pandemic, people can, for example, have a court sitting in the British Virgin Islands (‘BVI’) conducting a trial with participation by counsel from the United Kingdom, solicitors from Singapore and Hong Kong and witnesses from Hong Kong, Australia and Malaysia all from the comfort of their respective offices or homes without having to fly out.

So what has happened so far in the Malaysian scene?

  1. The first virtual hearing with the parties being not physically present in court was conducted by the Court of Appeal via tele-conferencing on 23 April 20202 and live-streamed to the public with the three learned judges comprising the panel of the Court of Appeal hearing the matter seated separately in each of their chambers/homes and the learned counsel for the parties seated in their own respective office/home.
  2. The first virtual hearing for a criminal case was heard online on 2 March 2021. Convicted and sentenced to jail for 12 years since 2018 for his role in a gang robbery involving a 58-year-old victim at a house in Bandar Puchong Jaya, the accused in the particular case took part in the proceedings via Zoom from the Kajang Prison with several prison officers guarding him while the trial was ongoing.

What are the efforts made to ensure that the court proceedings can run smoothly with minimal glitches?

The Malaysian Bar has set up a guide (titled “Remote Hearing Protocol”) to aid the legal fraternity in navigating the miry clay. Some of the considerations (in order to minimize issues one could potentially face while being involved in the proceedings) are:

  1. Are all the parties involved  sufficiently equipped with broadband connectivity and do all the parties have the basic and necessary electronics or devices such as a microphone, camera and earphones in order to conduct a remote hearing efficiently?
  2. Where the proceedings involve witnesses, can the witnesses give evidence independently from a location accompanied by an independent supervising officer, who is directed at all times by the court, to minimise the risk of witness tampering?
  3. Is there a separate communication platform for the lawyers of both parties to discuss matters internally between themselves/ between both parties during the hearing?
  4. Are the bundle of documents tagged/ prepared properly? Unless each party prints their own physical copy of the bundle of documents for reference purposes, navigating it during a virtual hearing will be tough if it is not tagged/ prepped properly.
  5. Have leave of court been obtained before recording the virtual court proceedings?
  6. Similar to the conduct and decorum one would observe in a physical courtroom, ensure that everyone maintains the same practices in a virtual hearing.

We have represented numerous client in Court Proceedings:

1. Liziz Plantation v Liew Ah Yong [2021] 10 MLJ 360.


Other related articles:

  1. What Are The Contractual Risks That Are Common During The COVID-19 Crisis?
  2. What Happens To A Contract During COVID-19 Period If It Is Silent Or Does Not Have Any ‘Force Majeure’ Clause?