18 November 2021
In a recent judgment (Huang Yu Hui v Zheng Shizhi [2021] HKCFI 3362), the Hong Kong Court of First Instance (CFI) refused the defendant’s application to issue a letter of request to the judicial authority of mainland China for the examination of the defendant in a mainland prison. The CFI held that, examination is outside the scope of the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between Courts of Mainland China and the Hong Kong Special Administrative Region (Arrangement).
The Arrangement, which came into force on 1 March 2017, aims at assisting litigants of mainland China and Hong Kong to obtain evidence in civil and commercial matters with enhanced efficiency and greater certainty. Issuance of letters of request in civil and commercial matters between mainland China and Hong Kong is governed by the Arrangement.
Background
The plaintiff (Plaintiff) and the defendant (Defendant) entered into an agreement (Agreement) dated 29 January 2015 for the sale and purchase a property. The Defendant claimed that he signed the Agreement in mainland China under duress and so the Agreement was void. The case has been set down for trial on 2-4 November 2022. However, the Defendant has been detained in mainland China since 1 December 2016, and is serving life imprisonment. Although he lodged an appeal in December 2019, it has not yet been heard.
The Defendant took out a summons for the issue of a letter of request to the judicial authority of mainland China for his examination in the mainland prison.
The Plaintiff opposed the Defendant’s summons on two broad grounds:
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that the Defendant had failed to show the legal basis for courts of mainland China to take evidence from a prisoner; and
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that examination falls outside the scope of the Arrangement.
Decision
Pursuant to Order 39, rule 1 of the Rules of the High Court, the CFI has jurisdiction to order the issuance of a letter of request, and will exercise its discretion to do so if satisfied that the recipient authority has an obligation or established practice of executing letters of request (see Kwan Chui Kwok Ying v Tao Wai Chun CACV 194/2002, 13 December 2002, §22).
The CFI held that cross-examination of the Defendant was essential in the interests of justice on the grounds that his evidence was crucial to establish that he was under duress, and that he was the only witness but he could not come to Hong Kong for trial. The CFI also held that despite the delay in applying for a letter of request, the Defendant had been bona fide and the Plaintiff was not prejudiced in any way, given that there was still almost a year to go before trial.
Further, after hearing expert evidence, the CFI concluded that:
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it is permissible to take evidence from a prisoner in mainland China for the purpose of a civil action in Hong Kong in which he is the defendant;
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the process of taking evidence may be conducted by video conferencing, and the prisoner will not be allowed to leave the prison;
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it is permissible for a Hong Kong judge, the parties’ lawyers and the Plaintiff to attend the venue of the video conferencing, but they are unlikely to be allowed to enter the prison;
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it is permissible for each party to attend by a representative at the court/conference venue;
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the Defendant did not need to show the availability of video link facilities in his own prison, as this would be a logistical issue for the mainland Chinese courts to decide, which are at liberty to return the request under Article 3 of the Arrangement.
Despite the above, the CFI held that cross-examination of a witness in the mainland Chinese courts is outside the scope of the Arrangement.
Article 6 makes a distinction between who the requesting party is. A Hong Kong court can only request a statement to be obtained, whereas a mainland Chinese court can request examination. The CFI compared the Arrangement with the parallel arrangement governing mainland China and Macao, under which the power to examine or cross-examine a witness in mainland China exists (see particularly Articles 18 and 20). As a result, the CFI held that Article 6 of the Arrangement provides only for a unilateral way of taking evidence and not an interactive process when a Hong Kong court is the requesting party.
In addition to Article 6, the Defendant’s expert sought to rely on Article 7 of the Arrangement and argued that, even if Article 6 does not allow Hong Kong courts to request assistance from the mainland Chinese courts for cross-examination, the mainland Chinese courts can nonetheless arrange for cross-examination pursuant to Article 7, because doing so is not in breach of Chinese law. The CFI rejected this argument, holding that the scope of assistance under the Arrangement is governed by Article 6 only, and that Article 7 only governs the manner of giving assistance. If a request does not fall within the scope of Article 6, there is no way that the procedural provision of Article 7 can come into play and expand the scope of assistance.
For the above reasons, the CFI dismissed the Defendant’s summons and refused to order a letter of request.
Comments
This CFI decision provides a clear and helpful interpretation of the scope of the Arrangement. Applicants for letters of request subject to the Arrangement are reminded that Hong Kong courts cannot order a letter of request for the mainland Chinese courts to assist in cross-examining witnesses in mainland China in civil and commercial matters.
The CFI also made a practice note that, in an application for a letter of request, a draft setting out the full terms, including the mode of taking evidence and the attending parties, is always helpful and should be lodged with the written submission of the applicant. If the request is made to the mainland Chinese courts, the draft should be in Chinese.
For further information, please contact:
Jojo Fan, Partner, Herbert Smith Freehills
jojo.fan@hsf.com
