Xie v Law & Ors(1) is the latest reported decision of the High Court dealing with the circumstances in which a party may be released from the implied undertaking not to use documents obtained on discovery for a collateral purpose. The Court's decision arose out of a case stated to involve a "sophisticated fraudulent scheme" allegedly perpetrated against the plaintiff by a number of the defendants.(2) The Court allowed the plaintiff's application for permission to use certain statements (sworn by the first defendant in relation to his assets) for the purpose of assisting with ancillary proceedings and facilitating other investigations (whether civil or criminal). The decision and the outcome in the case represent a complete victory for the plaintiff, with the Court suggesting that matters be referred to the Department of Justice for criminal investigation.(3)


For the general principles that underpin the implied undertaking, please see "Court reviews implied undertaking not to use documents for collateral purpose".

In Xie v Law & Ors, the plaintiff sought the trial judge's permission to disclose and/or make use of the following documents for the purpose of ancillary court proceedings and to facilitate other investigations (whether criminal or civil):

  • transcripts of the audio recording of the evidence given by the plaintiff and the first defendant during the trial (the transcripts); and
  • several sworn statements (and exhibits) relating to disclosure of assets (affirmations) filed by the first defendant, pursuant to injunction orders granted by the Court during the proceedings.

The following issues required the Court's determination.

  • Were the transcripts subject to the implied undertaking?
  • Were the affirmations subject to the implied undertaking?
  • In the event that the implied undertaking applied, should the plaintiff be released from such undertaking?

The Court's decision usefully summarises the relevant legal principles.

Legal principles
Whether a party should be released from the implied undertaking involved a balancing exercise, which the Court summarised as follows:

It is a balancing exercise whether what is sought to be achieved by relaxing the implied undertaking is more important for the administration of justice generally, such as in discouraging and punishing false evidence, than in maintaining confidentiality so as not to operate as a disincentive to full and frank discovery.(4)

The implied undertaking ceased to apply after a disclosed document had been read out or referred to in open court, unless the Court directed otherwise for special reasons.(5)


The Court allowed the plaintiff's application.

The Court held that the transcripts were a record of what had been said by the two principal witnesses in open court and, as such, they were not subject to the implied undertaking – albeit it appeared that the plaintiff had included the transcripts in his application out of an abundance of caution. The Court also considered that in light of the "egregious fraud" that had been perpetrated on the plaintiff, there were (in any event) "compelling justifications" for the plaintiff's intended use of the transcripts to assist the ongoing investigations of the police.(6)

The Court noted that the affirmations had been disclosed by the first defendant "under compulsion" and, therefore, they were covered by the implied undertaking on the part of the plaintiff not to use them for a collateral purpose without the prior permission of the Court.(7)

The Court held that there were good reasons to allow the plaintiff to use the affirmations (and exhibits) for the purpose of the ancillary proceedings and to facilitate further investigations.

First, the affirmations related to disclosure of the first defendant's assets and, therefore, were relevant to enforcement and the first defendant's solvency in the ancillary proceedings.

Second, as regards the further investigations, the Court stated (with some impact):

Second, insofar as other investigations (whether criminal or otherwise) are concerned, it is well accepted that where, as here, the court is satisfied that there had been illegal or unlawful conduct, the public interest in the investigation or prosecution of serious fraud generally 'takes precedence over the general concern of courts to control the collateral use of compulsorily disclosed documents'.(8)


The Court's decision is a very useful reminder that although the implied undertaking is often referred to in the context of discovery of documents between parties, in practice it has a wider application. The implied undertaking applies generally to any documents that are obtained under compulsion as part of court proceedings in Hong Kong (whether the process be discovery, disclosure or other means of production) and are not (among other things) referred to in open court.

There is also the point that while release from (or modification of) the implied undertaking is often described as the exception, requiring (for example) "special circumstances" and "cogent and persuasive reasons",(9) there is sometimes an element of judicial "reverse engineering" that goes on – in Xie v Law & Ors, the conduct of some of the defendants appears to have invited judicial scrutiny and disapproval.

For further information on this topic, please contact Jacky Darsono, Jennifer Leung or Antony Sassi 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 1909, 2 June 2022.

(2) [2022] HKCFI 1591, 30 May 2022. A trial lasting approximately four days and, apparently, estimated (at one point) to last 15 days by (among others) several of the 20 defendants, only one of whom appeared at trial.

(3) Supra note 2, at para 223 of the main judgment. Also note:

  • the reliefs granted by the Court at para 216 ("Reliefs"), including pursuant to section 25A of the High Court Ordinance ("Execution of instruments by order of Court of First Instance"), and some good lawyering (para 216(6) – "In default of assignments of the Tin Shui Wai Properties and Tin Shui Wai Mortgages as aforesaid, a partner of the solicitors for the plaintiff may be named and empowered to execute the necessary documents for the assignments."); and
  • the orders for indemnity costs against the defendants (paras 220 and 221).

(4) Supra note 1, at para 6.

(5) Supra note 1, at para 7.

(6) Supra note 2, at para 223 and supra note 1 at para 9.

(7) Supra note 1, para 11.

(8) Supra note 1, at para 14 and applying Re NDT (BVI) Trading Ltd (No 2) [2009] 5 HKLRD 615.

(9) Hong Kong Civil Procedure ("White Book") 2022, Rules of the High Court, Order 24, rule 14A (Commentary – "Uncertainty as to use of material obtained on discovery").