In Bold Shine Investment Ltd v Tsui,(1) the Court of First Instance of the High Court dismissed the plaintiff's application for a letter of request to be issued to a court in mainland China so that their witness (who was detained there) could give evidence at trial in Hong Kong. In deciding whether to issue such a letter, the Hong Kong courts must have regard to the mutual arrangement for taking evidence in civil proceedings between the courts of both jurisdictions. While a letter of request issued by the Hong Kong courts to the mainland courts, pursuant to the arrangement, cannot provide for a witness's cross-examination, whether such request can provide for a witness to give evidence in chief is a matter for the Hong Kong courts when interpreting the mutual arrangement. The Court dismissed the application because the witness had already provided a witness statement (which was admissible as hearsay at trial) and, in the circumstances, the Court did not consider that it or the parties would be in a more advantageous position to assess the witness's evidence if it was given in chief at trial.


For the background to the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong Special Administrative Region (the mutual arrangement), please see "Letter of request to mainland judicial authority did not extend to cross-examination of witness".

In Bold Shine, the plaintiff applied for a letter of request to be issued by the Hong Kong court to the proper judicial authority of the People's Republic of China, so that their director (the witness) could give evidence on the plaintiff's behalf at trial. The witness was incarcerated in mainland China.

Two issues arose for the Court's consideration, albeit the second issue was more contentious. The two issues were as follows:

  • whether (pursuant to the mutual arrangement) the Hong Kong courts could request that the witness be examined and cross-examined; and
  • in the event that cross-examination was not possible, whether the witness should be examined in chief only (on behalf of the plaintiff).


In a fully reasoned decision, the Court dismissed the plaintiff's application.

Did the mutual arrangement allow for cross-examination?
The Court noted that the issue of whether cross-examination of a witness in mainland China is within the scope of the mutual arrangement had been decided in another case in the High Court of Hong Kong.(2) While that case had been decided by a first-instance court of equal seniority (and not the Court of Appeal), the Court considered that the same legal reasoning applied. Where a letter of request relating to witness evidence is made by a Hong Kong court, pursuant to article 6 of the mutual arrangement, the scope of the request does not extend to cross-examination of a witness – there was no such restriction where the requesting party is a mainland court.

The Court interpreted article 6 of the mutual arrangement applying familiar common law principles and, in the process, explained the issue.(3) The Court stated:

The issue here is not whether cross-examination is generally available in the case of domestic litigation in the Mainland Chinese Courts, but whether there is a basis for thinking that the People's Court would be receptive to a request for cross-examination from the Hong Kong SAR Court.(4)

The Court found against the plaintiff on the first issue because it did not consider that there was sufficient reason to conclude that the people's court of the mainland would be receptive to a request for cross-examination in the context of a letter of request pursuant to the mutual arrangement.

Should a letter of request be issued so that the witness could be examined in chief only?
The Court considered this issue was a matter for a Hong Kong court to decide in the exercise of its discretion. The inability to cross-examine (as properly understood) was a factor against making a letter of request.(5) However, assuming that the mainland court acceded to the letter of request, the Court considered that the primary question it should ask was whether the court processes available in the mainland were such that they would facilitate a fair trial in Hong Kong or be necessary for the purposes of justice.(6)

In declining to issue a letter of request, with respect to the second issue, the Court noted that:

  • while the witness's evidence would be important to the plaintiff's claim, the fact was he was incarcerated in mainland China;
  • the witness had already given a witness statement and it could be given appropriate evidential weight at trial in Hong Kong;
  • for civil trials in Hong Kong, substantial examination in chief of a party's witness is not common; and
  • it had not been demonstrated that examination in chief (assuming this was possible given the witness's predicament), without cross-examination as properly understood, would be necessary for the purposes of justice.

The Court concluded:

In the present circumstances, I am unable to see how the parties and indeed the Court would be in a more advantageous position to assess [the witness's] evidence (if it is to be given in chief) as opposed to considering his statement as a hearsay statement on the basis that he was unable rather than unwilling to make himself available for cross-examination.(7)


Bold Shine applies existing case law and, moreover, helps to clarify some common law principles at play when considering the Hong Kong courts' approach to article 6 of the mutual arrangement.

While the outcome in the case may seem (on its face) a tad harsh on the plaintiff, it does reflect common sense. Given that cross-examination, as properly understood in a common law jurisdiction, is not formally available in a civil jurisdiction such as mainland China, giving evidence in chief only may have been of limited evidential value to the Court – especially where a witness had already provided a statement that was admissible as hearsay at trial in Hong Kong.(8) Indeed, in the context of a letter of request by a Hong Kong court to a mainland court, article 6 of the mutual arrangement makes no reference to a witness's evidence in chief or cross-examination because, strictly speaking, these are primarily common law concepts – it does refer to "obtaining of statements from parties concerned and testimonies from witnesses".(9)

Although not expressly part of the Court's decision, the issue of delay may have also been a factor given that the proceedings had been commenced more than 10 years previously and the letter of request process would have taken some time had the Court granted the plaintiff's application. The reality is that a witness in a similar predicament to the plaintiff's witness is unlikely to be available to give testimony and the best that may be hoped for is a written witness statement supported by submissions as to its evidential value at trial in Hong Kong. In this context, the decision in Bold Shine is unsurprising and pragmatic.

For further information on this topic, please contact Antony Sassi, Flora Leung or David Smyth at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at


(1) [2022] HKCFI 1957, 5 July 2022.

(2) Huang v Zheng [2021] HKCFI 3362, 9 November 2021.

(3) Supra note 1, at para 25. Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142.

(4) Supra note 1, at para 26.

(5) Supra note 1, at paras 31 and 32.

(6) Supra note 1, at paras 34 and 35. Delco Participation BV v HWH Holdings Ltd [2021] HKCFI 249.

(7) Supra note 1, at para 42.

(8) Evidence Ordinance (Cap 8), Part IV ("Hearsay Evidence in Civil Proceedings"), sections 47-49.

(9) Mutual Arrangement, article 6 ("Scope of assistance that may be requested by a court of the Hong Kong SAR"), sub-para (1).