Cross-Border Evidence Between Hong Kong And Mainland China: The Arrangement And The CFA's Tenwow Decision

In cross-border civil and commercial litigation between Hong Kong and Mainland China, parties often struggle to obtain evidence located in Mainland China.

To address the challenges, the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong Special Administrative Region (the “Arrangement”) provides a formal judicial cooperation framework for addressing the issues. Recent clarification by the CFA has further shaped how this mechanism operates in practice.

The Arrangement Framework

The Arrangement establishes a reciprocal, court-to-court framework of judicial assistance between Hong Kong and Mainland courts for the taking of evidence in civil and commercial matters.

The core procedural tool under the Arrangement is the letter of request. Article 8 sets out the required contents. The requested court then executes the request in accordance with its own procedural laws.

Article 6 defines the types of assistance available. Mainland courts may assist by:

1. obtaining statements from parties concerned and testimonies from witnesses;
2. providing documentary evidence, real evidence, audio-visual materials and electronic data; and
3. conducting site examination and authentication.

The CFA decision in Tenwow 

Case Background

In Tenwow International Holdings Ltd (in liquidation) & Anor v PricewaterhouseCoopers & Anor [2025] HKCFA 17, the liquidators of a Hong Kong company sued auditors for negligence. A Mainland-based accounting firm held key audit working papers. The documents had been listed in discovery. However, PRC law prohibited their transfer to Hong Kong without regulatory approval.

The liquidators applied for a letter of request under the Arrangement to enable lawful production. The issue reached the CFA.

Key Points from the Court of Final Appeal

The CFA unanimously upheld the CA's decision and clarified two important points:

1. The Arrangement Applies where Foreign Law Creates a Legal Barrier:  The Court rejected the contention that letters of request are confined to obtaining evidence from third parties. A party may invoke the Arrangement to produce its own discovery documents where foreign law creates a legal impediment. PRC regulatory restrictions on transferring audit working papers out of Mainland China qualify as such an impediment.
2. Article 6 is Broad and Courts Must Interpret the Arrangement Purposively: The CFA confirmed that Article 6 defines judicial assistance in broad terms. The Court emphasized that the Arrangement aims to promote practical judicial cooperation between Hong Kong and Mainland courts. Courts should therefore avoid narrow or technical interpretations that undermine its purpose.

Practical Implications for Liquidators and Insolvency Practitioners

In insolvency cases, critical records—such as audit files and accounting documents—often sit in Mainland China. Liquidators will often need to determine at an early stage whether key evidence is located in the Mainland China. The location of documents may affect timing, cost, and procedural strategy.

Where PRC law restricts cross-border transfer, a letter of request under the Arrangement may provide a lawful route to production. Following Tenwow, this mechanism is available even where the documents are held by a party to the proceedings.

Need advice on Hong Kong or Mainland insolvency proceedings?

We regularly advise on cross-border insolvency and restructuring matters involving Hong Kong and Mainland China, including evidence-gathering strategies and the use of judicial assistance mechanisms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.