HUANG YU HUI v. ZHENG SHIZHI

HCA 646/2015

[2021] HKCFI 3362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 646 OF 2015

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BETWEEN

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(By Original Action)

AND BETWEEN

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(By Counterclaim)

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D E C I S I O N

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A. Introduction

1.  The Plaintiff is the purchaser and the Defendant is the vendor of the subject property under a sale and purchase agreement dated 29 January 2015 (“SPA”). The Plaintiff seeks specific performance of the SPA, alternatively for return of the deposit and damages to be assessed.

2.  The Defendant claims that the SPA was signed by him in Mainland China under duress, of which the Plaintiff had knowledge. The SPA was thus void. The deposit was passed on by his purported solicitors to the 2^nd Defendant by counterclaim without the Defendant’s consent. The Defendant has never received the deposit.

3.  The case has been set down for trial on 2-4 November 2022, with a pre-trial review on 8 June 2022.

4.  The Defendant has been detained in Mainland China since 1 December 2016. Following conviction for fraud on 21 November 2019 by the Mainland Chinese Court, he is now serving life imprisonment in Jinjiang City (晉江). He lodged an appeal in December 2019, which has not yet been heard till this hearing, allegedly due to Covid-19.

5.  There are 2 applications before the Court:

(1) The Defendant’s summons for the issue of a letter of request (“LR”) to the judicial authority of Mainland China for the examination of the Defendant in the Mainland prison and that this action be stayed until the return of the LR or examination. The Defendant has prepared a draft LR.

(2) The Plaintiff’s summons filed on 23 August 2021 for filing a further expert report in opposition.

6.  Eventually, the Plaintiff’s summons was not pursued. I therefore dismiss it with costs to the Defendant.

7.  The Plaintiff opposes the Defendant’s summons on 2 broad grounds:

(1) That the Defendant has failed to show that there is provision for the PRC Courts to take evidence from a prisoner in Mainland China.

(2) That the LR would not be executed by the PRC courts as examination of the Defendant falls outside the scope of Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between Courts of Mainland China and the Hong Kong Special Administrative Region (“the Arrangement”).

8.  With leave of the Court, the parties have adduced expert evidence to answer 5 questions:

(1) Whether it is permissible to take evidence from a prisoner serving imprisonment in Mainland China for the purpose of a civil action in Hong Kong in which he is the defendant?

(2) For the purpose of taking evidence, whether it is permissible to conduct cross-examination of the Defendant under Article 6 and Article 7 of the Arrangement apart from taking a statement from him?

(3) Whether it is permissible to allow the following persons to attend the hearing for the purpose of taking evidence in the Mainland Chinese Court?

• a Hong Kong judge

• the parties’ lawyers

• the plaintiff

(4) Whether it is permissible for the process of taking of evidence to be conducted by video conferencing?

(5) If the answer to Q4 is yes. whether it is permissible for each party to attend by a representative at the court/conference venue?

B. Legal principles

9.  The starting point is that a witness should attend in person to give evidence. The onus lies on the applicant to demonstrate that the witness cannot reasonably be expected to come to Hong Kong.

10.  Under Order 39, rule 1, Rules of the High Court, the Court has jurisdiction to order the issuance of an LR. The Court will exercise its discretion to do so if the recipient authority has an obligation or established practice of executing LRs: Kwan Chui Kwok Ying v Tao Wai Chun, CACV 194/2002, 13 December 2002, §22, Woo JA (as he then was).

11.  In deciding whether to order the issuance of an LR, the Court takes into account 5 factors:

(1) Whether the evidence to be obtained is necessary and in the interest of justice;

(2) Whether the witness cannot reasonably be expected to come to Hong Kong;

(3) Whether reasonable attempts have been made to obtain evidence in other ways;

(4) Whether the evidence is such that a full-fledged cross-examination is appropriate; and

(5) Whether the application is made bona fide and with such promptness as not to cause unreasonable delay.

See Tang Yi v Edmond De Rothschild Asset Management Hong Kong Ltd [2018] HKCFI 1050, L Chan J; Delco Participation BV v HWH Holdings Ltd [2021] HKCFI 249, at §22, Coleman J.

12.  “Necessary for the purposes of justice” in the first factor means the interests of all the parties to the litigation and not just the applicant: Delco Participation, at §§23 & 25-26.

13.  The Court also has to be reasonably satisfied that the proposed exercise to be conducted in the foreign court would not be an exercise in futility: Delco Participation, at §58.

14.  As between Mainland China and Hong Kong, issuance of an LR is governed by the Arrangement which came into force on 1 March 2017. The following articles are relevant:

“Article 6

The scope of assistance that may be requested by a People’s Court of the Mainland in requesting the taking of evidence by the Courts of the HKSAR under the Arrangement includes:

(1) examination of witnesses;

(2) obtaining of documents;

(3) inspection, photographing, preservation, custody or detention of any property;

(4) taking of samples of any property or carrying out of any experiments on any property;

(5) medical examination of any person.

The scope of assistance that may be requested by a court of the HKSAR in seeking the taking of evidence by the People’s Courts of the Mainland under the Arrangement includes:

(1) obtaining of statements from parties concerned and testimonies from witnesses;

(2) provision of documentary evidence, real evidence, audio-visual information and electronic data;

(3) conduct of site examination and authentication.

Article 7

The requested party shall arrange the taking of evidence in accordance with the provisions of the law of its jurisdiction.

The requested party may carry out the taking of evidence in a special manner as requested by the requesting party, provided that the requested party considers it is not in breach of the provisions of the law of its jurisdiction.

If the requesting party requests that their judicial officers, the party concerned and their agent ad litem (legal representative) be present during the taking of evidence by the requested party and be involved in the proceedings for taking testimony, the requested party may consider granting approval in accordance with the relevant provisions of the law of its jurisdiction.

Upon approval, the requested party shall inform the requesting party’s liaison authority of the time and place for the taking of evidence.”

C. Necessity of the Defendant’s evidence

15.  The Defendant has only himself as a witness but cannot come to Hong Kong for trial. His evidence is crucial as the burden is on him to establish that he was under duress when he signed the SPA. His case is hotly contested by the Plaintiff. Full-fledged cross-examination of him is thus essential in the interests of justice.

D. Delay

16.  The Defendant has been detained since 1 December 2016. He was not convicted until 21 November 2019. He immediately lodged an appeal 12 days later on 2 December 2019. Application for hearing of the appeal was lodged in August 2020 but the appeal has not yet been heard due to the pandemic. On 14 February 2020, prior to the case management conference for this case, the Defendant has informed the Plaintiff about his conviction and his intention to apply for issuance of an LR.

17.  Since 22 April 2020, the Defendant’s Mainland Chinese lawyer has been in contact with the Hong Kong lawyers on the possibility of using video conferences for the purpose of taking evidence. In August, the PRC lawyers attempted to contact the Defendant but in vain. On 6 December 2020, the Mainland Chinese lawyer said that he would ask the detention centre where the Defendant was detained about video conferencing but no news has been received from the PRC lawyer since then.

18.  The Defendant’s efforts were bona fide. Although he should have applied to Court earlier for the issuance of an LR, I shall not hold the delay against him because there is still a year to go before trial. There ought to be sufficient time to arrange for the taking of evidence in the Mainland China, if this Court were to order the issuance of an LR. The Plaintiff does not allege that any delay has prejudiced him.

E. Issue 1: Whether there is provision for the Mainland Chinese courts to take evidence from a prisoner in Mainland China

19.  The experts are generally in common in their answers to questions 1, 3, 4 and 5:

(i) Re question 1: It is permissible to take evidence from a prisoner in Mainland China for the purpose of a civil action in Hong Kong in which he is the defendant: §10 of the Plaintiff’s expert report (A/201); and §1 of the Defendant’s expert report (A/217).

(ii) Re questions 3, 4 & 5: The process of taking of evidence may be conducted by video conferencing. For this purpose, it is permissible for the Hong Kong judge, the parties’ lawyers and the plaintiff to attend the venue of the video conferencing:

(a) Defendant’s expert report: “鋻於內地監獄內大多設有視頻會議系統，如硬件條件允許且經過受委托內地法院與被告人所在監獄溝通後，可以通過錄像(視頻)會議形式，向被告人提起詢問，獲得被告人的陳述，具備現實操作的可能性。但是，受委托方的內地法院需是作為取証或者盤問等審判活動的主持方，在受委托的中國大陸法院的主持下，委托方的香港法院，包括香港法官及香港律師，可以向被告人在內地法院的許可內向被告方進行詢問、盤問等審判活動 ……” (A/219)

(b) P’s expert report, §§16 & 17: “如被告人專家認為由內地法院運用在線錄像(視頻)系統提取証據可行，則我同意這一觀點” (A/205); “由於相關人員可不進入監獄，內地法院有可能根據《內港取証規定》第七條第三款允許與訟雙方各派一名代表出席法院/錄像會議處所”. (A/205)

20.  The experts are also in common that for the purpose of giving/obtaining evidence, (i) the Defendant will not be allowed, even temporarily, to leave the prison and (ii) the Hong Kong judge, parties’ lawyers and the Plaintiff will unlikely be allowed to enter the prison:

(i) Plaintiff’s expert report, §14 (A/204); and

(ii) Defendant’s expert report, §5 (A/219).

21.  Therefore, the process of obtaining evidence from the Defendant will likely be conducted by way of video conference.

22.  Mr Shum, counsel for the Plaintiff, submits that even if the LR will be executed, there is no evidence as to the availability of video conferencing facilities in the prison in which the Defendant is remanded.

23.  The evidence already shows the availability of video link facilities. I do not think it is necessary for the Defendant to go so far as to establish its availability in a particular prison. After all, if the Mainland Chinese courts cannot execute the LR due to this logistics issue, it is at liberty to return the request under Article 3 of the Arrangement.

F. Issue 2: Whether cross-examination of a witness in the Mainland Chinese courts is within the scope of the Arrangement

24.  The experts take different views as to whether it is permissible to conduct cross-examination of the Defendant under Articles 6 and 7 of the Arrangement beyond taking a statement from him (ie question 2).

25.  Under Article 6 of the Arrangement, a distinction has to be made between who the requesting party is. If the requesting party is Hong Kong, only a statement can be taken from a witness; cross-examination is not provided for. If the requesting party is Mainland China, cross-examination is allowed. The difference in terminology, ie examination (訊問) and obtaining (“取得”) speaks for itself.

26.  This interpretation of Article 6 is made even more apparent when compared to the parallel arrangement governing Mainland China and Macao, ie《關於内地與澳門特別行政區法院就民商事案件相互委托送達司法文書和調取證據的安排》(“Mainland-Macau Arrangement”), the amended version of which took effect on 1 March 2020.

(1) Article 18: “代為調取證據的範圍包括：代為詢問當事人、證人和鑑定人，代為進行鑑定和司法勘驗，調取其他與訴訟有關的證據”. (emphasis added)

(2) Article 20: “受委托方法院在執行委托取證據時，根據委托方法院的請求，可以允許委托方法院派司法人員出席。必要時，經受委托方允許，委托方法院的司法人員可以向證人、鑑定人等發問”. (emphasis added)

(3) Article 22: “受委托方法院可以根據委托方法院的請求，並經證人、鑑定人同意，協助安排其轄區的證人、鑑定人到對方轄區出庭作證。……本條規定的出庭作證人員，在澳門特別行政區還包括當事人”.

(4) Article 23 : “受委托方法院可以根據委托方法院的請求，並經證人、鑑定人同意，協助安排其轄區的證人、鑑定人通過視頻、音頻作證”.

27.  The power to examine or cross-examine a witness in Mainland China exists under the Mainland-Macao Arrangement but not the Arrangement. According to the Defendant’s expert evidence, which I accept, Article 6 of the Arrangement provides for a unilateral way of taking evidence (“取得當事人的陳述及證人證言”) and not an interactive process (“互動的、動態的盤問/訊問程序”).

28.  The Defendant has already prepared witness statements before he was jailed. What he applies for now is cross-examination, which does not fall within the scope of Article 6.

29.  The Defendant’s expert, however, contends otherwise:

30.  Firstly, he asserts that Article 6 of the Arrangement does not refer to “examination of witnesses” in the scope of assistance from the Mainland Chinese courts because of the different terminology used under Mainland law and Hong Kong law. He says that “statements from parties concerned” （當事人陳述）and “testimonies from witnesses” （證人證言）are one of 8 types of evidence under PRC law (A/217-8).

31.  Without disrespect, the Arrangement is one negotiated between Mainland China and Hong Kong. The terminology in the Arrangement indicates that the draftsmen did not intend to introduce, wholesale, all types of evidence under Mainland law where Hong Kong is the requesting party.

32.  Secondly, the Defendant’s expert says that the although there are no specific provisions for cross-examination under Mainland Chinese Court law, cross-examination could be achieved through a “confrontation” process (質證) under Mainland Chinese law. Under the confrontation process, the parties and their legal representatives can ask questions of a witness before evidence becomes admissible. The Defendant’s expert also cited the PRC Evidence Code (證據規定) which provides that the parties and their legal representatives can ask questions of witnesses upon approval of the Mainland Chinese courts and this is not disputed by the Plaintiff’s expert:

“雖然中國大陸法律沒有關於盤問的具體規定，但是……在審判人員許可的情況下，當事人及其訴訟代理人是可以詢問證人的。

中國大陸法律中沒有關於盤問的具體規定，根據《民事訴訟法》和相關司法解釋法官當事人雙方及其律師可以對證人進行詢問，但是當事人雙方及其律師的詢問要在獲得法官的許可下，但是中國大陸法律沒有關於順序、回合、問題範圍等的詳細規定。

所以，雖然中國大陸法律中沒有盤問的具體規定，但是在質証過程中訴訟雙方是可以對証人做出詢問並且達成和香港普通法規定的盤問相同的效果的。”（A/218）

33.  With respect, the Defendant’s expert himself made a distinction between cross-examination in general and examination in the confrontation process. It is plain that the confrontation process is for the limited purpose of establishing admissibility of evidence, whereas cross-examination under Hong Kong law is for much wider purposes of attacking credibility, establishing the truth of one’s case and destroying the truth of the opponent’s case.

34.  Thirdly, the Defendant’s expert refers to the case of HKSAR v Hui Yat Sing (A/218-9) wherein the assistance of the Mainland Chinese courts was sought to cross-examine a witness. However, that was a criminal case not governed by the Arrangement. This has been confirmed by the opinion of the Plaintiff’s expert.

35.  Fourthly, the Defendant’s expert suggests that even if the present request does not fall within the scope of assistance of Article 6, the Mainland Chinese courts may still, pursuant to Article 7, arrange for cross-examination, as this is not in breach of PRC law.

36.  Mr Lai, counsel for the Defendant, submits that even if there is material difference between the confrontation process and cross-examination under Hong Kong law, it would not prevent the Court from issuing an LR. He relies on Delco Participation, §58, for the proposition that the important point is for there to be a fair and proper opportunity for the Plaintiff to cross-examine the Defendant:

“Nor does it seem to me necessarily fatal to the application that there may be difference between the cross-examination which might be conducted in a Hong Kong court and the cross-examination which might be conducted in the Dutch court. What seems to me to be important is that Fang/HWH and CT/CTHK would have a fair and proper opportunity to cross-examine SVO on those issues in the Hong Kong actions on which they wish to cross-examine.”

37.  With respect, that is putting the cart before the horse. Article 6 governs the scope of assistance. Article 7 governs the manner of giving assistance. If Article 6 is not invoked, the procedural provision of Article 7 simply does not come into play. Article 7 cannot be invoked to expand the scope of assistance.

G. Conclusion

38.  For the reasons given in Section F, the present request does not fall within the scope of Article 6. There is no reason to believe that the LR, even if issued, would likely be executed. Accordingly, the summons should be dismissed.

H. Costs

39.  Each party should bear the other party’s costs of its own summons.

40.  The Plaintiff’s costs statement is a 13-page document which sets out the dates of all communication and time spent as if it were a taxation bill. This is wholly unnecessary and simply a waste of costs and the court’s time. Costs for preparation of such a costs-statement should, save for good cause shown, not be recoverable from the client. Costs of the 2^nd expert opinion are also not recoverable since the Plaintiff’s summons has been dismissed.

41.  Setting off the costs on each summons, I make a global order that the Defendant is to pay costs of $450,000 to the Plaintiff.

42.  I make an order nisi in terms of paragraphs 39 and 41 above.

I. A note on practice

43.  For an application of a similar kind, it is always helpful to prepare a draft LR to be lodged with the written submission of the applicant. The draft should set out all the terms of request, including the mode of taking evidence (such as by video link, if permissible), and whether a Hong Kong trial judge, parties and legal representatives are to attend. If the request is made to the Mainland courts, the draft LR should be drafted in Chinese.

44.  I thank counsel for their assistance.