Obtaining Evidence For Foreign Civil Proceedings

I.           Introduction

1. The Hong Kong Courts do have jurisdiction to order the taking of evidence in Hong Kong for use in foreign proceedings.  
   
   

2. The jurisdiction is purely statutory and based upon :-

   1.  Part VIII (Sections 74 – 77D) of the Evidence Ordinance (Cap.8); and

   2. Order 70 of the Rules of the High Court.
      
      

3. Part VIII of the Evidence Ordinance is substantive in nature.  It sets out the     circumstances under which the application can be made.
   
   

4. Order 70 of the RHC is procedural in nature.  It sets out the procedures and the manner of the application. 
   
   

5. The jurisdiction of the Hong Kong Courts to order the taking of evidence in Hong Kong for use in foreign proceedings is not affected by the 1997 handover. 
   
   

6. If the parties consent and the witnesses are willing to give evidence voluntarily, the examination may however be completed and the depositions returned to the foreign court without the involvement of the Hong Kong Courts.  No application to the Hong Kong Courts will be required in such case. 

II.        Forum 

As provided by Section 75 of the Evidence Ordinance, the jurisdiction is exercised by the Court of First Instance. 

III.     How to invoke the jurisdiction? 

1. The first step is to apply and obtain in the home Court or tribunal a letter of request requesting the assistance of the Hong Kong Courts to take evidence here in Hong Kong for the proceedings (s.75(a)). 
   
   

2. The definition of a letter of request includes any commission, order or other process issued by or on behalf of the requesting court (s.74).  In some jurisdictions, the letter of request is called letters rogatory. 
   
   

3. The applicant may then apply to the Court of First Instance for an order for evidence to be obtained in Hong Kong (s.75). 
   
   

4. However, the foreign proceedings must either have been instituted before the requesting court or whose institution before that court is contemplated (s.75(b)). 
   
   

5. Notwithstanding the above, the Hong Kong Court of Appeal in Camaro Trading Co. Ltd. v. Nissei Sangyo America Ltd. [1994] 3 HKC 94 (a landmark case on this point handled by this firm) upheld an order giving effect to a letter of request which requested evidence for use in a “refund suit” in the United States which has not yet been commenced and would (on the facts of that case) only be commenced if the Inland Revenue Service of the United States took steps to make a claim against the applicant. 
   
   

6. Foreign civil proceedings have a wide and general meaning covering all kinds of suits, petitions, summonses, applications for orders and so forth.  Evidence is often obtained in Hong Kong, for instance, in aid of foreign examination proceedings filed by liquidators. 

IV.      How to make the application in the Court of First Instance? 

1. The application is made to the Registrar of the Court of First Instance (O.70, r.1(2)). 
   
   

2. The application is made ex-parte and must be supported by affidavit (O.70, r.2(1)).  In practice, it is made by ex-parte originating summons. 
   
   

3. There shall be exhibited to the affidavit the request in pursuance of which the application is made, and if the request is not in the English language, an English translation thereof (O.70, r.2(2)). 
   
    

V.         Powers of the Hong Kong Court 

The Hong Kong Court has the power to make order (s.76(2)) :-

1. for the examination of witnesses by any means, including by way of a live television link;
   
   
2. for the production of documents;　
   
   
3. for the inspection, photographing, preservation, custody or detention of any property;　
   
   
4. for the taking of samples of any property and the carrying out of any experiments on or with any property;　
   
   
5. for the medical examination of any person.　

VI.      Limits laid down in the case Re Q Ltd.; In Re a Letter of Request [1997] 4 HKC 439 

1. The documents ordered to be produced to assist a foreign court must be particular documents, though a compendious description was allowed in so far as the documents were particularized.
    
   

2. The particular documents must be directly material to prove issues raised bona fide and with adequate particularization.  They must be in existence and were or were likely to be in the possession, custody or power of the person ordered to produce them, as opposed to conjectural documents. 
   
   

3. No general documents could be ordered pursuant to a letter of request and a fishing exercise was not allowed. 
   
   

4. Unless a case of bad faith was made out, the court should not refuse to give effect to a letter of request on the ground that the documents ordered to be produced could be used by the party seeking the documents in proceedings other than those in respect of which the request was issued. 
   
   

5. Confidentiality between a bank and its customer was a matter to be considered in a balancing exercise.  Where the evidence was material, the public interest to assist the foreign court would properly outweigh the duty of confidence.  On the other hand, if the information is not shown to be material to the proof of any issue in the foreign proceedings, ordering the disclosure of information would be an unjustified breach of confidence which the court should not require. 
   
   

6. Unless a case of bad faith was made out, the court should give effect to a letter of request as far as possible and may severely reduce the documents to be produced in order to save the letter of request, though the court could not substitute a different category of documents from that requested or re-draft the request in different terms. 
   

VII.   Grounds of Objection 

1. There are 3 grounds of objection. 
   
   

2. A person shall not be compelled to give any evidence :-

1.  which he could not be compelled to give in civil proceedings in Hong Kong (s.77(1)(a));
   
   

2. which he could not be compelled to give in civil proceedings in the country or territory in which the requesting court exercises jurisdiction (but this claim must be either supported by a statement contained in the request or conceded by the applicant for the order.  Where such a claim is not so supported or conceded the witness may still be required to give the evidence to which the claim relates but that evidence will not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim) (s.77(1)(b) & (2)); or
   
   

3.  if his doing so would be prejudicial to the security of Hong Kong; and a certificate signed by or on behalf of the Chief Secretary to the effect that it would be prejudicial for that person to do so shall be conclusive evidence of that fact (s.77(3)). 
   

3.          Reference to giving evidence here includes reference to answering any question and to producing any document (s.77(4)). 

VIII.        Persons to take and manner of taking examination 

1.          The examination may be ordered to be taken before any fit and proper person nominated by the applicant or before such other qualified person as to the court seems fit (O.70, r.4 (1)).  In practice, an applicant often nominates a counsel to be an examiner. 

2.          In the affidavit, the applicant would normally name and nominate an examiner of his own choice to be appointed.  Alternatively, he may ask for an examiner of the court to be appointed.  If the examiner is named, the affidavit should state that he is, in the deponent’s opinion, a fit and proper person.  A consular officer of the foreign country may be the examiner. 

3.          At the examination, the witness is questioned by the applicant’s solicitor or counsel, not the examiner.  If the other party to the proceedings attends or is represented, he or his representative may cross-examine, followed by re-examination in the like manner as at trial (O.70, r.4 (2) and O.39, r.8). 

4.          The examiner acts like a judge who sits and hears and records the deposition of the witness. 

5.          Sometimes, a shorthand writer is employed to assist the examiner.  An interpreter may also be employed if necessary. 

6.          A subpoena may be issued to compel attendance before the examiner (s.77A). 

IX.      Transmission of Depositions 

1.          When the examination is concluded the deposition is signed by the witness and then sent by the examiner to the Registrar for certification (O.70, r.5). 

2.          The Registrar provides his certification by giving a certificate sealed with the seal of the Court for use out of jurisdiction identifying the documents annexed thereto, i.e. the request, the order of the Court for examination and the deposition taken in pursuance of the order (O.70, r.5(a)). 

3.          Thereafter, the Registrar will transmit the depositions, his certificate and the documents annexed thereto through diplomatic consular channels e.g. the consul or other official of the foreign government in Hong Kong, to the foreign court or tribunal (O.70, r.5(b)). 

X.         The use of modern means of communication in obtaining evidence

1. The Technology Court which is located in Court No.7 on the 5^th Floor of the High Court Building presently offer the following facilities: -

1. A video conferencing system permitting evidence to be taken from witnesses by live television link.
   
   

2. Facilities for multi-media presentation, enabling evidence to be presented in audio, video, graphics, text, film and computer animation form.
   
   

3. Installed wiring and connections ready for instantaneous court reporting and transcription services to be provided by commercial service providers. 

 

2. Depending on the level of demand for use of the Technology Court and subject always to cases being conducted in the court system having priority, consideration may also be given to use of the Technology Court for the purposes of foreign proceedings and arbitrations upon application made to the Chief Judge of the High Court.  In practice, the Technology Court is often fully booked but there are quite a number of private service providers providing facilities to enable evidence to be taken by live television link.
   
    

XI.      Norwich Pharmacal relief in aid of foreign proceedings

On a slightly different note, in a recent decision in Manufacturer’s Life Insurance Co. of Canada v. Harvest Hero International Ltd. and Others CACV 631/2001, the Court of Appeal upheld an appeal and held that the Hong Kong Courts do have jurisdiction to grant Norwich Pharmacal relief in aid of foreign or potential foreign proceedings.

The judge below’s rejection of the court’s common law jurisdiction to grant Norwich Pharmacal relief was partly based on his conclusion that the only jurisdiction to order discovery in aid of foreign proceedings is statutory, namely, Part VIII of the Evidence Ordinance, Cap.8 and RHC Ord.70 which together form a comprehensive self-contained code.  But the effect of Cap.8 and RHC Ord.70 is the regulation of the obtaining of evidence within the jurisdiction for use in foreign proceedings.  In that sense, the jurisdiction is exclusively statutory.  But nothing in Cap.8 or RHC Ord.70 impinged on the court’s power to grant Norwich Pharmacal relief, e.g. discovery order, order compelling disclosure of information etc..  A Norwich Pharmacal application is directed at information as distinct from evidence.  The jurisdiction to grant Norwich Pharmacal relief is therefore an entirely different jurisdiction, separate and distinct from the statutory regime which governs the obtaining of evidence in Hong Kong for use abroad.

First published on 1 February 2001; last updated on 29 July 2005

The above legal information is provided for general reference only. Advice of qualified Hong Kong lawyers should be sought in respect of any particular circumstances arising under the Ordinances referred to in this update.