CROSS-BORDER EVIDENCE GATHERING
A judicial request under Part VIII of the Evidence Ordinance
When a party to Hong Kong criminal proceedings requires evidence located in another jurisdiction, ordinary Hong Kong subpoenas do not compel a foreign witness or document-holder abroad. Part VIII of the Evidence Ordinance (Cap. 8) instead permits the Court of First Instance to issue a formal letter requesting assistance from a court or tribunal outside Hong Kong.
The process is commonly described as a Letter of Request. It asks the requested judicial authority to obtain evidence for use in Hong Kong; it does not itself exercise compulsory power in the foreign jurisdiction.
UPDATE AND LEGAL CONTEXT
A court-to-court mechanism available to both parties
This route is distinct from a government-to-government request under the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525).
Available to the prosecution and the defence
Section 77E permits an application by the Secretary for Justice or by a person charged with the relevant offence.This provides an accused person with a statutory route to seek material overseas that may support the defence.
Not dependent on a bilateral MLA treaty
The power arises under Cap. 8 and does not require an operative bilateral MLA agreement with the requested place.Execution is nevertheless governed by the law, procedure and willingness to assist of the requested jurisdiction.
STATUTORY PROVISIONS
The application, evidence and fairness requirements
Application for assistance
Under section 77E of the Evidence Ordinance, the Court of First Instance may order a letter of request to be sent to a court or tribunal outside Hong Kong to obtain evidence for criminal proceedings instituted in Hong Kong, or where proceedings are likely to be instituted if the evidence is obtained.
The Secretary for Justice or a person charged with an offence to which the proceedings relate may apply to the Court of First Instance. The application may be made ex parte and must be supported by affidavit.
Scope of evidence obtainable
The letter may request the overseas court or tribunal to take the oral or written evidence of a specified person or obtain the production of a specified document or other article.
It may be used to seek testimony from an overseas witness or specified documents held by a foreign company, financial institution or other person, subject to the requested place's law.
Admissibility and interests of justice
Evidence returned under a letter of request is subject to the conditions in section 77F and the court's power to exclude it where exclusion is necessary in the interests of justice.
Overseas evidence is not automatically determinative merely because it was formally obtained. The trial court retains responsibility for admissibility and fairness.
Weight of overseas evidence
In assessing weight, the court considers the circumstances in which the evidence was obtained, including whether it could be challenged and whether the law of the requested place allowed a party to be legally represented.
The opportunity to test a witness, participate through counsel and expose weaknesses in the evidence may materially affect the weight ultimately given to it.
THE LETTER-OF-REQUEST PROCESS
From identifying the evidence to its use at trial
A carefully framed request should identify the evidence sought, demonstrate its relevance and anticipate the requested jurisdiction's procedure.
Identify the overseas evidence
The applicant should identify the witness, document or article required, its location, its relevance to the issues in the Hong Kong proceedings and why ordinary local process cannot obtain it.
Prepare the court application
The application to the Court of First Instance should define the proposed request precisely and be supported by affidavit evidence addressing the statutory conditions and necessity for overseas assistance.
Issue and transmit the request
If satisfied, the Court orders the issue of the letter and directs how it is to be transmitted. The method of transmission and execution depends on the requested jurisdiction and any applicable procedural arrangements.
Foreign court obtains the evidence
The requested authority applies its own law and procedure when examining a witness or compelling production. A Hong Kong order does not itself operate as a subpoena abroad.
Return and use at trial
When the evidence is returned, the Hong Kong court considers the statutory admissibility conditions, the interests of justice and the appropriate weight to attach to the material.
HOW MCS CAN ASSIST
Obtaining and challenging overseas evidence
MCS can advise whether a letter of request is legal, identify the testimony or documents required and prepare an application to the Court of First Instance. We can coordinate execution with overseas lawyers, protect the client's participation and cross-examination rights, and address the admissibility, reliability and weight of the evidence when it is returned to Hong Kong.