Hong Kong Court of Appeal clarifies the proper test for U.S. letters of request

The Hong Kong Court of Appeal has dismissed an appeal from a Court of First Instance (CFI) judgment setting aside an oral examination order granted pursuant to letters of request issued by the United States District Court, Western District of Washington at Seattle (the federal court).

In Re Evidence Ordinance (Cap 8) of the Laws of Hong Kong [2020] HKCA 766, the Court of Appeal found that notwithstanding that the purpose of the examination was to obtain information from a non-party witness by way of post judgment discovery in aid of execution (a procedure that is provided for in the U.S. Federal Rules of Civil Procedure), the court was precluded by section 76(3) of the Evidence Ordinance (Cap. 8) from acceding to the request. The court found that the purpose of the examination was for investigation as opposed to the obtaining of evidence for use in the federal court in the determination of any live issues.

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