Reported by Wendy Ho and Divagar

           On the 7th of April 2020, Richard Wee Chambers (“RWC”) hosted an Impact Webinar on the “Impact of Covid 19 on the Litigation Process” via Facebook live. RWC was honoured to have Mr. Kenny Lai and Mr. Desmond Ho, both former Chairpersons of Court Liaison Committee, Bar Council on board the panel of speakers. RWC’s very own managing partner, Mr. Richard Wee was present as moderator.

            It has been ubiquitously known that litigation lawyers litigate matters on behalf of their clients in court. Let us not forget that the filing of documents into court, as well as the affirmation of documents are indeed tools of all litigation lawyers which go hand in hand with the litigation process. In view of the spike of Covid 19 and subsequently the Movement Control Order (“MCO”) announced by the Prime Minister on 16 March 2020, concerns were raised with regards to the litigators’ version of dealing with this global pandemic.

“Since the courts are now closed, am I able to file a suit during the MCO period?”, one may ask. Order 5 Rule 1 of the Rules of Court 2012 (“ROC”) provides that all proceedings shall be commenced either by way of originating summons or by way of writ. In practice, a writ of summons is filed together with a statement of claim and no affidavit is required. On the other hand, an originating summons would have to be filed together with an affidavit sworn before a Commissioner for Oaths (“CFO”). An affidavit is essentially a sworn statement of fact by a deponent, and is used in conjunction with applications. Since the CFO has not been listed as one of the essential services, no CFO is in operation during the MCO and therefore in the event that an originating summons is to be filed into court, it would be filed without the affidavit in support. Nonetheless, litigators are reminded of Order 28 Rule 3C(1) ROC 2012 which provides that the affidavit in support of an originating summons shall be filed and served not later than seven (7) days after service of the originating summons. Caution should be exercised so as to enable the affidavit in support to be sworn in time to append to the originating process.

In view that a suit can be filed during the MCO, concerns were further raised with regards to the service of documents. Order 10 of the ROC 2012 provides for the service of the originating process. Perhaps lawyers can be a tad more creative – by serving the documents themselves, or even get a Grab driver to serve the documents for them. Litigation lawyers should always be mindful of the time period that they have to effect service of documents. By incorporating a little bit of creativity into servicing of documents, lawyers may at the very least inform the court that they have attempted service during the MCO so as to show compliance with the ROC 2012. Following this, no Affidavit of Service will be filed in reference to any form of service attempted during the MCO.

It is believed that the time has come not only for lawyers, but also for the courts to embrace technology. Since hearings can be conducted online in Sabah and Sarawak, the next question would then be, “are the courts in Peninsular Malaysia ready for online hearings?” In ensuring viability of online hearings, there is obviously a need for the courts to be properly equipped with webcams, computers, sufficient hard disk space, band width, audio systems, as well as easy access to documents. It is certainly interesting to note that a construction court has allowed cross examination of a foreign witness via video conferencing. Following this, it is believed that minors that are involved in criminal matters should also be cross-examined through video conferencing – as this preserves the identity as well as the privacy of the minor and his family members. In view of the MCO, criminal trials have been suspended but all criminal matters for remand remain ongoing. Holding an online hearing for the accused who is in prison would possibly save transportation cost. Nonetheless, being a double-edged sword, privacy may be an issue with regards to online hearing when defence lawyers would want to have a private discussion with their clients without having anyone else listening to the conversation.

            Some have suggested for the courts to standardise the mode of conducting online hearings – be it by way of exchange of emails, Skype or even Zoom. With all that has been said about online hearings, it is believed that research should be done and comparison should be made with other jurisdictions which have rules in place governing online hearings. Perhaps we can look towards China and adopt the idea of having an online court to handle all forms of online hearing.

Artificial Intelligence (“AI”) was launched just recently in Sabah and Sarawak for sentencing in drugs and rape related charges. It is believed that AI is a tool to assist judges in arriving at the correct decision – with the aid of AI, judges are able to look into the trend of the sentences passed throughout the years, and this will effectively reduce the disparity between the sentences passed among different judges. On the other hand, AI will assist lawyers in enabling them to ascertain the sentencing trend among judges, which will be useful in preparing for mitigation. AI will also push and help plea bargaining as clients are allowed to make decisions without going for a full trial. Nonetheless, concerns have been raised with regards to AI assisting judges in determining the trend for sentencing. After all, judges, being humans, are given the discretion and that very discretion is exercised alongside compassion, which is deeply embedded in human nature and can never be replaced by computers.

Conclusion

              It is believed that post MCO, the new normal will be online hearings. Amendments to the law must be made so as to allow lawyers to move forward with the technology available to them.

Published on April 18th, 2020

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