Evidence-Taking in Civil and Commercial Cases between Courts of the Mainland and Hong Kong

 2018-05-11  54


Arrangement of the Supreme People's Court for Mutual Entrustment in Evidence-Taking in Civil and Commercial Cases between Courts of the Mainland and Hong Kong Special Administrative Region


· Document Number:Interpretation No. 4 [2017] of the Supreme People's Court

· Area of Law: Civil Litigation Hong Kong & Macao Affairs

· Level of Authority: Judicial Interpretation

· Date issued:02-27-2017

· Effective Date:03-01-2017

· Status: Effective

· Issuing Authority: Supreme People's Court

 

Announcement of the Supreme People's Court
In accordance with the provisions of Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, upon negotiation, the Supreme People's Court and the Hong Kong Special Administrative Region (HKSAR) reach an Arrangement for Mutual Entrustment in Evidence-Taking in Civil and Commercial Cases between Courts of the Mainland and the Hong Kong Special Administrative Region (hereinafter referred to as the “Arrangement”), which was signed on December 29, 2016. This Arrangement, as adopted at the 1,697th Session of the Judicial Committee of the Supreme People's Court on October 31, 2016, is hereby issued. Upon agreement of both parties, this Arrangement shall come into force as of March 1, 2017.
Supreme People's Court
February 27, 2017



Arrangement of the Supreme People's Court for Mutual Entrustment in Evidence-Taking in Civil and Commercial Cases between Courts of the Mainland and Hong Kong Special Administrative Region
(Interpretation No. 4 [2017] of the Supreme People's Court)
In accordance with the provisions of Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, upon negotiation between the Supreme People's Court and the HKSAR, matters concerning mutual entrustment in evidence-taking in civil and commercial cases are hereby arranged as follows:
Article 1 This Arrangement shall apply to mutual entrustment in evidence-taking in civil and commercial cases between courts of the Mainland and the HKSAR.
Article 2 The mutual entrustment in evidence-taking by both parties shall be conducted through liaison offices as separately designated by them. In particular, the higher people's court is designated as the liaison office in the mainland; and the Administrative Department under the Office of the Chief Secretary for Administration of the Government of the HKSAR is designated as the liaison office in the HKSAR.
The Supreme People's Court may directly entrust evidence-taking through the liaison office designated by the HKSAR.
Article 3 Upon receipt of a letter of entrustment from its counterpart, the liaison office of the entrusted party shall, in a timely manner, transfer the letter of entrustment and the relevant materials attached thereto to the relevant court or other organ for handling, or handle them by itself.
If the entrusted party deems that the entrusted materials do not comply with the relevant legal provisions within its jurisdiction and may affect the completion of the entrusted matter, the entrusted party shall, in a timely manner, notify the entrusting party of revising or supplementing such materials. The entrusting party shall amend or supplement such materials according to the requirements of the entrusted party or reissue a letter of entrustment.
If the entrusted party deems that the entrusted matter is not within the scope of entrusted matters as prescribed in this Arrangement, the entrusted party may withdraw the entrusted matter and state reasons.
Article 4 The letter of entrustment and the relevant materials attached thereto shall be in Chinese versions. If the Chinese versions are unavailable, English versions shall be provided.
Article 5 The evidentiary materials obtained by the entrusting party may only be used in the relevant litigations as stated in the letter of entrustment.
Article 6 Where a people's court in the mainland entrusts a court of the HKSAR with taking evidence in accordance with this Arrangement, the scope of requested assistance shall include:
(1) interrogating a witness;
(2) obtaining a document;
(3) inspecting, shooting, preserving, safekeeping, or impounding properties;
(4) making an experiment on the obtained property sample or the property; and
(5) conducting a physical examination.
Where a court of the HKSAR entrusts a people's court in the mainland with taking evidence in accordance with this Arrangement, the scope of requested assistance shall include:
(1) obtaining the statement of a party and the testimony of a witness;
(2) providing documentary evidence, physical evidence, audio-visual materials, and electronic data; and
(3) conducting inspection and identification.
Article 7 The entrusted party shall arrange evidence-taking in accordance with the legal provisions within its jurisdiction.
Where the entrusting party requests evidence-taking by special means, if the entrusted party deems that such evidence-taking does not violate the legal provisions within its jurisdiction, the entrusted party may take evidence by the means as requested by the entrusting party.
If the entrusting party requests that its judicial personnel, the relevant parties, and the agents ad litem (legal representative) be present on the scene when the entrusted party takes evidence, and participate in the procedure for admitting the testimony, the entrusted party may consider granting an approval in accordance with the relevant legal provisions within its jurisdiction. Where the entrusted party grants an approval, it shall notify the liaison office of the entrusting party of the time and place to take evidence.
Article 8 When entrusting a court of the HKSAR with taking evidence, the people's court in the mainland shall provide a letter of entrustment affixed with the seal of the Supreme People's Court or a higher people's court. When entrusting a people's court in the mainland with taking evidence, the court of the HKSAR shall provide a letter of entrustment affixed with the seal of the High Court of the HKSAR.
The letter of entrustment and the relevant materials attached thereto shall state:
(1) the title of the court issuing the letter of entrustment and the title of the court hearing the relevant case;
(2) the name or title of the party related to the entrusted matter or the witness, the address, or all other information conducive to contacting and identifying the party or witness's identity;
(3) details on assistance requiring to be provided, including but not limited to basic case information related to the entrusted matter (including case briefing, nature of litigation involved, and undergoing trial procedure); the specified documents or articles that are necessary to be obtained from the party or the witness as well as the list of matters or problems subject to inquiry (interrogation); reasons for the required entrusted taking of the relevant evidence; when necessary, the importance of the relevant evidence to the litigation and the facts and arguments used for verification;
(4) whether it is necessary to take evidence by special means and the specific requirements;
(5) the contract person and contact information of the entrusting party; and
(6) all other information conducive to the implementation of the entrusted matter.
Article 9 The ordinary expenditures incurred from the implementation of an entrusted matter by the entrusted party shall be borne by the entrusted party.
Such non-ordinary expenditures as translation costs, expert costs, and identification costs incurred from the implementation of an entrusted matter as well as extra charges incurred from evidence taking by special means as required by the entrusting party shall be borne by the entrusting party.
If the entrusted party deems that the implementation of an entrusted matter may incur any non-ordinary expenditure, the entrusted party shall first negotiate with the entrusting party, so as to make a decision on whether to continue the implementation of such entrusted matter.
Article 10 The entrusted party shall complete an entrusted matter within six months from the receipt of a letter of entrustment to the greatest extent. After the entrusted party completes the entrusted matter, it shall, in a timely manner, reply the entrusting party in writing.
If the entrusted party fails to complete the entrusted matter upon request of the entrusting party or it only partly completes the entrusted matter, it shall state reasons to the entrusting party in writing and according to the instructions of the entrusting party, return all or part of materials attached to the letter of entrustment in a timely manner.
When a witness refuses to provide any testimony in accordance with the legal provisions of the entrusted party, the entrusted party shall inform the entrusting party in a written notice and return all materials attached to the letter of entrustment according to the instructions of the entrusting party.
Article 11 Any problem encountered in the implementation of this Arrangement or the necessity to amend this Arrangement shall be solved through negotiation between the Supreme People's Court and the Government of the HKSAR.
Article 12 After a judicial interpretation for this Arrangement is issued by the Supreme People's Court in the mainland and the relevant internal procedures are completed in the HKSAR, both parties shall issue the effective date.
This Arrangement shall apply to the entrusted matters received by the entrusted party after this Arrangement comes into effect, but it does not affect both parties' consideration and implementation of entrusted matters received before this Arrangement comes into effect in accordance with the current law.