Introduction

As the Covid-19 pandemic unfolded, the legal landscape of Malaysia underwent a significant transformation. Courts were no longer confined to the physical realm. They had to extend their operations into the virtual world to continue delivering justice. This unprecedented transition from traditional courtrooms to virtual hearings has, however, not been without difficulty.

In Goldpage Assets Sdn Bhd v Bank Islam Malaysia Berhad & Ors1, an issue was raised as to the parameters in which a virtual hearing may be conducted. In particular, the Court of Appeal deliberated as to whether virtual hearings via videoconferencing must be conducted with the Court's video/camera switched on at all times. The Court answered in the affirmative because the inability to see the Court on video during a virtual proceeding can amount to a breach of natural justice.

Facts

The Appellant in this case, Goldpage Assets, applied for an interim injunction at the High Court to restrain the completion of the auction sale of property convened by Bank Islam. The interim injunction application was fixed to be heard virtually via videoconference on Zoom.

During the hearing, the Court's camera was switched off throughout almost the entirety of the proceedings, until the pronouncement of the decision. As such, parties were deprived of the visual advantage and/or of having sight of the Court/sitting judge during the proceedings.

The High Court dismissed the interim injunction application and Goldpage Assets subsequently appealed against the High Court's order.

Court of Appeal proceedings

During the appeal, Goldpage Assets raised an important novel issue on "whether a virtual hearing conducted via videoconference may be carried out almost entirely, with the Court's video/camera switched off?"

In this regard, Goldpage Assets argued that the statutory framework and guidelines adopted in various Commonwealth jurisdictions, either explicitly or impliedly, require that all participants in a video hearing (being the court and counsel) must have sight of each other at all times during the virtual proceeding. The rationale behind this, is that a core requirement of a virtual hearing is to replicate as closely as possible a physical court hearing.

Goldpage Assets further submitted that, where the Court's video/camera was switched off in a virtual hearing, this could give rise to the impression that the Court may not be properly participating in the hearing and/or fully concentrating on the arguments being raised by the counsel. In such a situation, any decision made by the Court would constitute a breach of natural of justice and be invalid.

The Court of Appeal allowed the appeal and held that the virtual proceeding at the High Court, without the Court's video being turned on, was invalid because the propriety of the proceedings, had been impaired. This in turn resulted in a denial of a fair hearing.

Comments

The Court of Appeal's ruling has set an important precedent: a fair hearing is not just about being heard, it's also about being seen. This decision also highlights the pivotal role of the court in preserving the fairness of proceedings.

As our Malaysian legal system navigates the digital era, the Court's role becomes even more crucial in ensuring proper access to justice and upholding the integrity of proceedings. In this regard, the concept of "being seen" applies not only to individual involved in the legal proceedings, but also to the Court itself. As a result, while technology, such as videoconferencing, may promote access to justice in times of physical restrictions, it is the Court's responsibility to safeguard against any shortcuts that have detrimental effect during the virtual hearings. Only then can it inspire public trust and confidence in the administration of justice.

Footnote

1. Civil Appeal No.: W-02(IM)(NCvC)-63-01/2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.