10 March, 2017
On 1 March 2017, the "Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong SAR", signed by the Supreme People's Court of the PRC and the Secretary for Justice in the HKSAR on 29 December 2016, came into effect.
The Arrangement sets out the terms on which authorities on the Mainland and the HKSAR will provide mutual assistance to each other upon request for the taking of evidence. It is meant to provide clarity to authorities on both sides about the types of assistance that are available under each system, and certainty about the time frame, process as well as allocation of expenses when judicial assistance is being sought.
Interestingly, the scope of the assistance is not mirrored; the People's Court of the Mainland can request for (1) the examination of witnesses, (2) the obtaining of documents, (3) the inspection, photographing, preservation, custody or detention of any property; (4) the taking of samples of any property or carrying out of any experiments on any property; and (5) medical examination of any person.
On the other hand, a Court of the HKSAR can request for (1) the obtaining of statements from parties concerned and testimonies from witnesses; (2) the provision of documentary evidence, real evidence, audio-visual information and electronic data; and (3) the conduct of site examination and authentication.
The Arrangement also requires letters of request to be in Chinese, and stipulates in detail the information required to be in a letter of request. The Arrangement anticipates requests to be dealt within six months of receiving a letter of request, and confirms that the taking of evidence should be done in accordance with the laws of the requested party.
This is certainly a welcome development in the light of the increasing number of cross-border disputes that involve witnesses and or assets located in either Mainland China or Hong Kong. Now that the framework for better and quicker co-operation has been established, we hope to see cases progress more efficiently through the Court systems in the Mainland and the HKSAR.
The text of the Arrangement can be accessed here:
http://www.hklawsoc.org.hk/mem/download/attachment.asp?issue=17-146a1.pdf
