To litigants involved in disputes concerning cross-border matters between Hong Kong and mainland China, the recent Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong Special Administrative Region should be a welcome development. The arrangement provides a mechanism for seeking judicial assistance for the taking of evidence in civil and commercial proceedings between the people's courts of mainland China and the courts of Hong Kong, and potentially offers a more efficient means of obtaining such evidence.
Through the established framework of the Hague Convention(1) and the use of letters of request, the Hong Kong courts can provide assistance to their counterparts outside Hong Kong and seek assistance from them for the taking of evidence. However, the Hague Convention does not apply to similar requests for assistance as between Hong Kong and mainland China, given that they are one country (albeit with two distinct legal systems).
Prior to the introduction of the arrangement, cross-border requests for evidence were transmitted through various intermediary administrative bodies – including the Hong Kong and Macau Affairs Office of the State Council, the Hong Kong Chief Executive Office and the Supreme People's Court in mainland China – before being issued by the executing authority in the relevant location. This was a time-consuming and somewhat unpredictable process.
In addition to speeding up the process, the arrangement aims to clarify the previous uncertainty relating to the scope of assistance available to litigants and the information which is required in letters of request.
On December 29 2016 the people's courts of mainland China and the secretary for justice of Hong Kong signed the arrangement, which came into effect on March 1 2017.
Any request made under the arrangement should comply with the relevant legal provisions of the jurisdiction in which assistance is sought. In other words, while the Hong Kong court will apply the law and procedure as it applies in Hong Kong when considering an application to issue a letter of request, a mainland court which receives a request for assistance will apply the law and procedure as it applies in mainland China when assessing whether to grant an order to produce evidence in a civil or commercial matter. The same would work in reverse, if a mainland court were to make a request of a Hong Kong court. The requesting party may therefore be required to amend or supplement a request which does not comply with the applicable domestic laws of the receiving court.(2)
Requests must also fall within the defined scope of assistance available to litigants of the two jurisdictions as specified in Article 6 of the arrangement.(3) In order to reflect the difference in applicable domestic laws, assistance which falls within the scope of assistance for mainland Chinese parties does not necessarily apply to a request from a Hong Kong litigant. For instance, a request originating from mainland China made to the Hong Kong court may include medical examination of any person, while a similar request for assistance made in reverse will not fall within the scope of assistance available.
Parties should make requests for the taking of evidence through their respective designated liaison authorities. However, special provision is made for the Supreme People's Court to make a request directly through the designated liaison authority of Hong Kong. Pursuant to Article 2 of the arrangement, the higher people's courts are designated as the liaison authorities of mainland China and the Administration Wing of the Chief Secretary for Administration's Office of the Hong Kong government is designated as the liaison authority of Hong Kong.
It is also worth bearing in mind that any evidence obtained pursuant to such a request may be used only for the purpose of the proceedings in which the letter of request process is adopted.(4)
It is not yet clear how the provisions of the arrangement will be implemented in practice.
Nevertheless, the arrangement should be helpful in speeding up the process for Hong Kong parties seeking evidence in the mainland and providing more certainty in the scope of assistance available to them.
A note of caution applies to Hong Kong litigants seeking to obtain documents from mainland China – they should beware of the relevant laws and regulations surrounding state secrecy and the more limited scope of documentary discovery in mainland China. Given that the mainland courts will apply the applicable laws and procedures as they apply in the mainland when assessing whether to grant an order to produce evidence, they may well adopt a more restrictive approach to the scope of any production order compared with a Hong Kong court.
For further information on this topic please contact Mike Allan or Jessica Wong at Smyth & Co in association with RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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