Arrangements of the Supreme People's Court for Mutually Commissioned Obtaining of Evidence in Civil and Commercial Cases between the Courts of the Mainland and the Hong Kong Special Administrative Region

Fa Shi [2017] No. 4

February 27, 2017

The Arrangements for Mutually Commissioned Obtaining of Evidence in Civil and Commercial Cases between the Courts of the Mainland and the Hong Kong Special Administrative Region (the "Arrangements") were made by the Supreme People's Court on December 29, 2016 in consultation with the government of Hong Kong Special Administrative Region pursuant to Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. The Arrangements, which were adopted at the 1697th meeting of the Adjudicative Committee of the Supreme People's Court on October 31, 2016, are hereby promulgated for implementation as of March 1, 2017 upon the consensus of the parties.

Arrangements of the Supreme People's Court for Mutually Commissioned Obtaining of Evidence in Civil and Commercial Cases between the Courts of the Mainland and the Hong Kong Special Administrative Region

Pursuant to Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and through consultation between the Supreme People's Court ("SPC") and the Hong Kong Special Administrative Region ("HKSAR"), the arrangements for mutually obtaining evidence in civil and commercial cases are hereby made as follows:

Article 1 These Arrangements shall apply to the mutually commissioned obtaining of evidence in civil and commercial cases between the courts of the Mainland and the courts of the HKSAR.

Article 2 The two parties shall entrust each other with the matters of obtaining evidence through their respective designated liaison authorities. Specifically speaking, the Mainland designates the higher people's courts as liaison authorities; while the HKSAR designates the Administration Wing of the Chief Secretary for Administration's Office of the Government of the HKSAR as the liaison authority.
The SPC may directly entrust the liaison authority designated by the government of the HKSAR with the matters of obtaining evidence.

Article 3 Upon receipt of a letter of entrustment of the other party, the liaison authority of the entrusted party shall promptly transfer the letter of entrustment and the relevant materials attached to the relevant court or other authorities for handling or otherwise handle the matter itself.
It the entrusted party considers that the materials do not comply with the relevant laws and regulations of its jurisdiction and this may affect its execution of the entrusted matter, it shall promptly notify the entrusting party of revising or supplementing the materials, while the entrusting party shall, at the request of the entrusted party, revise or supplement the materials accordingly, or issue a new letter of entrustment.
The entrusted party may return the letter of entrustment and specify justified reasons therefor if it considers that the entrusted matter is beyond the scope of these Arrangements.

Article 4 The letter of entrustment and the attached materials shall be provided in Chinese version. If there is no Chinese version, the translation in Chinese version shall be furnished.

Article 5 The evidential material obtained by the entrusting pasty may be merely used in the relevant proceedings specified in the letter of entrustment.

Article 6 Where the Mainland people's courts entrust the courts of the HKSAR with the obtaining of evidence under these Arrangements, the requests for assistance include:
1. examination of witnesses;
2. obtaining of documents;
3. Inspection, photographing, preservation, custody or detention of any property;
4. obtaining of samples of any property or conducting of a test on the property; and
5. physical examination of any person.
Where the courts of the HKSAR, under these Arrangements, entrust the people's courts of the Mainland with the obtaining of evidence, the requests for assistance involve:
1. obtaining of the statements from the parties concerned and testimonies from witnesses;
2. provision of documentary evidence, physical evidence, audio-visual materials and electronic data; and
3. conduct of site examination and authentication.

Article 7 The entrusted party shall arrange for the obtaining of evidence according to the laws of its jurisdiction.
Where the entrusting party requests that the evidence shall be obtained in a special manner, the entrusted party may accommodate the request provided that it considers that obtaining evidence in such a special way is in compliance with the laws of its jurisdiction.
Where the entrusting party requests its judicial functionaries, the parties concerned and their agent ad litem (legal representative) to be present while the entrusted party is obtaining evidence or participates in recording testimony, the entrusted party may consider granting approval in accordance with the relevant laws of its jurisdiction. Where the approval is granted, the entrusted party shall notify the entrusting party's liaison authority of the time and place for obtaining the evidence.

Article 8 Where the people's courts of the Mainland entrust the courts of the HKSAR with the obtaining of evidence, they shall provide a letter of entrustment affixed with the official seal of the SPC or a higher people's court. Where the courts of the Hong Kong Special Administrative Region entrust the Mainland people's courts with the obtaining of evidence, they shall provide a letter of entrustment affixed with the seal of the High Court of the HKSAR.
The letter of entrustment or the attached material shall explicitly state:
1. the name of the court issuing the letter of entrustment and the name of the court hearing the relevant case;
2. the names, titles or addresses of the parties concerned or the witnesses in connection with the entrusted matter and other information which may facilitate liaison or identifying their identities;
3. the details of the requested assistance, including but not limited to, the basic facts of the case related to the entrusted matter (including case briefing, the nature of the proceedings involved and the proceeding trial procedure, etc.); the list of documents, objects and questioning (examination) matter or questions to be obtained from the parties concerned or the witnesses as required; the reasons for commissioned obtaining of evidence, etc.; if necessary, statements of the importance of the evidence to the litigation and the supporting facts and arguments, etc.;
4. Whether it is required to obtain evidence in a special manner and specific requirements;
5. the contact person of the entrusting party and his contract information; and
6. all other information that may facilitate the execution of the entrusted matter.

Article 9 General expenses incurred by the entrusted party arising from the execution of the entrusted matter shall be borne by the entrusted party.
Non-recurrent expenditure incurred by the entrusted party arising from the execution of entrusted matter such as the translation fees, expert witness and examination and additional costs arising from the obtaining of evidence in a special manner as requested by the entrusting party shall be borne by the entrusting party.
Where the entrusted party considers that the execution of the entrusted matter may incur non-recurrent expenditure, it shall firstly consult with the entrusting party to decide whether or not to proceed with the entrusted matter.

Article 10 The entrusted party shall, endeavor to complete the entrusted matter within six months from the date of receiving the letter of entrustment. Upon completion of the entrusted matter, it shall promptly make a reply in writing to the entrusting party.
Where the entrusted party fails to complete the entrusted matter as requested by the entrusting party, or only completes partially entrusted matter, it shall state in writing reasons to the entrusting party and return the whole or part of the materials attached to the letter of entrustment according to the instruction of the entrusting party.
Where a witnesses declines to give testimony in accordance with the laws of the jurisdiction of the entrusted party, the entrusted party shall notify the entrusting party in writing and return all the materials attached to the letter of entrustment according to the instruction of the entrusting party.

Article 11 The problems arising from the implementation of these Arrangements or any amendment to be made to these Arrangements shall be resolved through the consultation between the SPC and the Government of the HKSAR.

Article 12 The effective date of these Arrangements shall be announced by both parties upon the SPC of the Mainland makes judicial interpretation and the HKSAR government completes the relevant internal procedures.
These Arrangements shall apply to the entrusted matters received by the entrusted party after these Arrangements take effect without affecting the ruling of both parties or the execution of the entrusted matters received prior to these Arrangements taking effect under the existing laws.