“Arrangement on Mutual Entrustment for Service of Investigation and Collection of Evidence in Civil and Commercial Cases between the Courts of the Mainland and the Hong Kong Special Administrative Region” (“Arrangement”) has come into force on March 1, 2017

The commercial cooperation between mainland China and Hong Kong becomes more frequently, and more and more disputes arise. In addition, many foreign companies tend to choose the courts in Hong Kong as the competent court, while dealing with the mainland companies. So the lawsuits’ problems involve mainland and Hong Kong is a matter of great concern. Previously, for the civil and commercial cases, there is no rules on cross-border collection of evidence, which have brought a lot of problems.

To solve these problems, the “Arrangement” has been signed. The main content includes:

1. Evidence shall be collected via the respective designated liaison authorities

For mainland, such authorities are the Supreme People’s Court and local High People’s courts. For Hong Kong, such authority is the administration wing of the chief secretary for administration’s office of the HKSAR Government.

2. Language

The letter of request and the relevant materials shall be in Chinese, or a Chinese translation.

3. The scope of assistance

(1) the courts in mainland could request the courts in HK to collecting evidence, such as examining witnesses; obtaining documents; inspecting, photographing, conducting preservation, custody or detention any property; taking samples of any property or carrying out any experiments on any property; medical examination of any person.

(2) the courts in Hong Kong could request the courts in mainland to collecting evidence, such as obtaining of statements from parties concerned and testimonies from witness; obtaining documentary evidence, real evidence, audio-visual information and electronic data; conducting site examination and authentication.

It shall be noted that the scopes are not the same. A very important item is that the courts in mainland could request the courts in Hong Kong to conduct preservation, custody or detention any property.

4. The methods on collecting evidence

The requested party shall arrange the collection of evidence in accordance with the provisions of the law of its jurisdiction. If the requesting party requests any special methods; or requests its judicial officers, the parties concerned and their agent ad litem (legal representative) be present during the collection of evidence, and be involved in the proceedings for taking testimony, the requested party could carry out such requests provided that the requested party considers it is not in breach of the provisions of the law of its jurisdiction.

5. The due time

The requested party shall as far as practicable complete the requested matter within 6 months from the date of receipt of the letter of request.