“The Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong SAR” (Arrangement), signed by the Executive Vice President of the Supreme People’s Court of the Mainland and the Secretary for Justice of the HKSAR in late December 2016, came into effect on 1 March 2017.
In Hong Kong, there is a statutory framework for the courts to provide assistance to courts outside Hong Kong and to seek assistance from them in the taking of evidence through the use of letters of request (LoRs) in civil and commercial matters. Sections 74 to 77A in Part VIII of the Evidence Ordinance (Cap. 8) empower the Court of First Instance to make provision for obtaining evidence in response to a LoR issued by a court outside Hong Kong. The detailed procedural rules on how to give effect to such LoRs are set out in Order 70 of the Rules of the High Court (RHC). Order 39, rules 1 to 3A of the RHC set out the procedure for the High Court to issue LoRs to seek assistance in obtaining evidence from courts outside Hong Kong.
The Convention on the Taking of Evidence Abroad in Civil and Commercial Matters signed in 1970 (Convention) facilitates international cooperation in taking of evidence for civil and commercial matters. Although the Convention continued to apply to Hong Kong after the handover in 1997, it does not apply between the Mainland and Hong Kong, as they are part of one country. As such, without an arrangement to facilitate mutual assistance, it was uncertain and inefficient for litigants to obtain evidence between the Mainland and Hong Kong in civil and commercial matters.
With the implementation of the Arrangement, the parties may make the requests through the respective designated liaison authorities. For the Mainland, the designated liaison authorities are the Higher People’s Courts. For Hong Kong, the designated liaison authority is the Administration Wing of the Chief Secretary for Administration’s Office.
It is also noteworthy that the scope of assistance that may be requested by the Mainland courts and Hong Kong courts is different. Whilst the Mainland courts can request (1) examination of witnesses; (2) obtaining of documents; (3) inspection, photographing, preservation, custody or detention of any property; (4) taking of samples of any property or carrying out of any experiments on any property; and (5) medical examination of any person, Hong Kong courts can only request (1) obtaining of statements from parties concerned and testimonies from witnesses; (2) provision of documentary evidence, real evidence, audio-visual information and electronic data; and (3) conduct of site examination and authentication.
The LoRs required under the Arrangement shall be in Chinese. The evidence obtained under the requests may only be used in the relevant legal proceedings mentioned in the LoRs.
Further, the requested party shall arrange the taking of evidence in accordance with the law of its jurisdiction. The requested party may carry out the taking of evidence in a special manner as requested by the requesting party, provided that the requested party considers it is not in breach of the law of its jurisdiction. If the requesting party requests that their judicial officers, the party concerned and their agent ad litem (legal representative) be present during the taking of evidence by the requested party and be involved in taking testimony, the requested party may consider granting approval in accordance with the law of its jurisdiction.
The requested party should complete the request for taking of evidence within six months from the date of receipt of the LoR. Upon completion of the request or if the request cannot be completed, the requested party should give a written reply to the requesting party.
Since the Arrangement seeks to set out matters primarily of an administrative nature, there is no change to the existing law on the judicial assistance in taking of evidence in civil and commercial matters.