Arrangement on mutual taking of evidence between Hong Kong and Mainland

The Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and Hong Kong (Arrangement) recently came into force on 1 March 2017, announced by the Department of Justice.  The Arrangement is introduced to offer greater certainty and enhanced efficiency for obtaining of evidence between the Mainland and the HKSAR for civil and commercial cases.

Background

In the Hong Kong Special Administrative Region (HKSAR), there is a long established statutory framework for the courts to provide assistance to their counterparts outside Hong Kong and to seek assistance from them in taking of evidence through the use of a letter of request (LoR). In civil and commercial matters, sections 74 to 77A in Part VIII of the Evidence Ordinance (Cap. 8) give the Court of First Instance power to make provision for obtaining evidence in response to a LoR issued by a court outside Hong Kong, while the detailed procedural rules for giving effect to such LoRs are set out in Order 70 of the Rules of the High Court (RHC). In corresponding terms, Order 39, rules 1 to 3A of the RHC set out the procedure for the Registrar of the High Court to issue outgoing LoRs to seek assistance from courts outside Hong Kong in obtaining evidence.

International cooperation in taking of evidence for civil proceedings through LoRs has been facilitated by the Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Evidence Convention). Although the Hague Evidence Convention continues to apply to the HKSAR after the resumption of the exercise of sovereignty by China, as an inter-state international convention, it does not apply as between the Mainland and the HKSAR because they are parts of one country.

Absent a protocol to facilitate mutual assistance, LoRs to and from the Mainland have to be transmitted through intermediary bodies, including the Hong Kong and Macao Affairs Office and the Chief Executive’s Office before ultimately being transmitted to the executing authority.

The Arrangement

The Arrangement (English courtesy translation), which came into effect on 1 March 2017, applies to civil and commercial matters between the People's Courts of the Mainland and the Courts of HKSAR, and aims to resolve the issues mentioned above and to facilitate the obtaining of evidence by litigants in the two jurisdictions.

The scope of assistance that may be requested by a court of the HKSAR and by a court in the Mainland is not identical.  According to the Arrangement, the People's Court of the Mainland can request the Courts of the HKSAR to examine witnesses; obtain documents; inspect, photograph, preserve, take into custody or detain property; take samples of property or carry out experiments on property; and carry out medical examination of a person.  In contrast, the Courts of the HKSAR can request the People's Court of the Mainland to obtain statements from parties concerned and testimonies from witnesses; provide documentary evidence, real evidence, audio-visual information and electronic data; and conduct site examination and authentication.

The Arrangement also sets out the following basic logistics:

• requests for the taking of evidence must be made through designated liaison authorities. The Higher People’s Courts and the Administration Wing of the Chief Secretary for Administration’s Office of the HKSAR Government are the designated liaison authorities for Mainland and HKSAR respectively. The Supreme People’s Court of Mainland may request the taking of evidence directly through the designated liaison authority of the HKSAR;
• the language of the LoR and the relevant material attached should be in Chinese. If the document is not in the Chinese language, a Chinese translation of it should be provided;
• evidential material obtained may only be used in the relevant proceedings mentioned in the LoR;
• the LoR and relevant material attached must contain the particulars required under Article 8 of the Arrangement;
• the taking of evidence will be arranged in accordance with the law of the jurisdiction where the evidence taking is to take place; and
• the period for completion of the request is expected to be within six months from the date of receipt of the LoR.

Conclusion

As mentioned above, the Arrangement is introduced to offer greater certainty and enhanced efficiency for obtaining of evidence between the Mainland and the HKSAR for civil and commercial cases.  However, the Arrangement only sets out the administrative principles, and the requested party is to consider the request and the applicability of the Arrangement based on its local law.  It remains to be seen, therefore, how the Arrangement will work out in practice.

If you wish to discuss further, please contact Julian Copeman, Rachel Yu or your usual Herbert Smith Freehills contact.