By Alex Liu and John Zhou
Hong Kong, 28 October 2025: In a landmark judgment, the Court of Final Appeal has provided clarity over the cross-border transfer of working papers for litigation, specifically the jurisdiction of a Hong Kong court to issue a letter of request (“LOR”) to an overseas court to obtain documents to be used in evidence.
The CFA held that the jurisdiction of a Hong Kong court to issue a LOR to an overseas court – whether foreign or Mainland – derives from its inherent power to do such acts as are necessary to maintain its character as a court of justice.
The ruling also examined the scope of 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 (“Mutual Arrangement”). The judges concluded that the Mutual Arrangement is an administrative scheme – rather than one with force of law – and is not to be construed restrictively.
Background
The CFA judgment concerned Tenwow International Holdings Limited & Anor v PricewaterhouseCoopers Zhong Tian LLP [2025] HKCFA 17. The liquidators of Tenwow and its wholly-owned subsidiary, Nan Pu International Ltd (collectively, “Appellants”), brought an action for negligence against PricewaterhouseCoopers (as 1st Defendant), and PricewaterhouseCoopers Zhong Tian LLP (“Respondent”) in respect of the audits of the Appellants for the financial years 2013 to 2017.
The Respondent wished to access the working papers for the audits, which were held in its Shanghai office (“the D2 Documents”). The parties disagreed about whether, based on Mainland laws, the Respondent was able to transfer the D2 Documents to Hong Kong without approval from the Mainland authorities. The Respondent sought guidance from the Ministry of Finance, which issued a letter stating the D2 Documents should be obtained through legal procedures in accordance with the Mutual Arrangement.
However, the Court of First Instance declined to issue the LOR on grounds including: (i) LORs were normally issued to obtain evidence rather than documents in a party’s own possession; and (ii) seeking help from another court to enable production was not within the scope of the Mutual Arrangement. The Court of Appeal reversed that decision and issued the LOR. The Appellants took their case to the CFA.
CFA decision
The judges distinguished between an incoming LOR, upon which a Hong Kong court might make a coercive order, and an outgoing LOR, by which a Hong Kong court requests assistance from a court in another jurisdiction, whether foreign or Mainland. They further distinguished between the jurisdiction to issue an order in response to an incoming LOR, which is governed by statute, and that to issue an outgoing LOR, which derives from the court’s power to act in a way that maintains its character as a court of justice.
The CFA held that context was crucial in considering whether Hong Kong had jurisdiction in the present case to issue the LOR. In this matter, the factual context included the existence of a blanket prohibition against the transfer of documents out of the Mainland without approval of the relevant authorities and the letter from the Ministry of Finance confirming the Hong Kong court should seek assistance from the Mainland under the Mutual Arrangement.
The CFA rejected the Appellants’ arguments which sought to limit the scope of the power to issue an outgoing LOR to situations in which a Hong Kong court would make an order on an incoming LOR. While there were limits on the issue of a LOR, the present case did not exceed those limits.
The CFA judgment notes that subsequent to the hearing of the appeal, the Shanghai High People’s Court (“SHPC”) returned the LOR indicating that it could not assist in the absence of the completion of relevant approval formalities. However, it further stated that the audit working papers could be obtained through judicial assistance in that event.
Regarding the Mutual Arrangement, the CFA declared its text to be broad and permissive, with the aim of promoting judicial cooperation between Hong Kong and the Mainland. Further, there was sufficient reason to suppose the Mainland court would be receptive to the request for assistance in this case. Thus, the LOR was plainly within the scope of the Mutual Arrangement.
Mainland position
It remains to be seen whether the SHPC provides all the documents requested under the LOR pursuant to the Mutual Arrangement. Under China’s judicial assistance treaties with foreign states, the Central People’s Government retains discretion to refuse assistance where a request may prejudice China’s sovereignty, security, public order, fundamental interests, or basic legal principles.
The Mutual Arrangement, however, contains no such reservation. It has been argued that this difference reflects the unique relationship between the Mainland and Hong Kong under “one country, two systems”, suggesting that judicial cooperation in civil matters should be closer and more convenient.
Conclusion
While the CFA judgment is specific to the Tenwow case and the parties’ discovery obligations, it does provide welcome guidance for future disputes involving cross-border transfer of evidence and production of documents.
If the SHPC ultimately provides all the auditing documents requested by Hong Kong, this would mark a significant development. Foreign litigants may view Hong Kong as an increasingly attractive forum for actions involving Mainland parties, given its potential to grant access to documents in the Mainland that remain unobtainable in either foreign courts (as explained above) or Mainland proceedings (where document production mechanisms are largely absent).
Alex Liu is Managing Partner of BC&C. His key areas of practice include commercial and corporate litigation, investigations by governmental bodies such as the SFC, ICAC and Commercial Crime Bureau, insolvency and debt restructuring, intellectual property and employment matters. He can be contacted at alex@boasecohencollins.com.
A Consultant for BC&C, John Zhou is admitted to practice law in Hong Kong, the Mainland and the New York State. He has dedicated his career to cross-border dispute resolution and has vast experience in complex commercial arbitration, litigation and compliance matters. He can be contacted at john@boasecohencollins.com.
