Hong Kong Civil Litigation: How to challenge the authenticity of documentary evidence?
As a lawyer who has been engaged in Hong Kong civil litigation and Mainland-Hong Kong cross-border civil litigation for a long period of time, it is common for one party to challenge the authenticity of documents produced by the other party in civil litigation proceedings. In civil proceedings in the Mainland, generally during the cross-examination session, the party adducing evidence is required to provide the original evidence, and the other party may not recognize the authenticity of the evidence and may apply to the court for the appointment of an identification agency to make an identification of the authenticity of the document in order to resolve the dispute. How is the authenticity of the other party’s evidence challenged in civil proceedings in Hong Kong?
Procedure for challenging the authenticity of evidence: giving notice of non-admission of authenticity of evidence under High Court Rule O.27 r.4
At common law, civil proceedings are governed by a discovery system whereby each party to the litigation, within a specified time after the conclusion of the parties’ pleadings (or, if the pleadings refer to specific evidence, the other party may request the discovery of that evidence on receipt of the pleadings), shall provide the other party with a list of all evidence relevant to the case which is under the control of, or in the possession of, that party. Upon receipt of such list of evidence, the other party may request the party who issued the list of evidence to inspect such evidence (original or photocopy, depending on whether the original or photocopy is in the possession of the party who issued the list of evidence) for a specified period of time, and may request a copy of it.
Under rule O.27 r.4 of the High Court rules, a party who receives a list of evidence must, howsoever he wishes to challenge the authenticity of that evidence, within 21 days of viewing that evidence or, if he chooses not to view the evidence, before the expiry of the time within which he can view it, give the party who issued the list of evidence a written notice stating that he does not recognize the evidence (or a particular item of) evidence as authentic, thereby The party required to rely on that evidence at the hearing will have the burden of proof attached to prove its truth.
If the party receiving the list of evidence does not give a written notice denying the authenticity of the evidence within the time specified above, he is deemed to admit the authenticity of the other party’s evidence (in the case of an original, he is deemed to admit the authenticity of the original; in the case of a photocopy, he is deemed to admit that the photocopy is a true copy of the original).
Procedure for challenging the authenticity of evidence: denial of the authenticity of particular evidence of the other party is expressly stated in the pleadings
Another way to challenge the authenticity of the other party’s evidence is to expressly deny the authenticity of specific evidence in one’s own pleadings, such as a defense or reply. But this situation only applies to some cases, that is, the other party in the pleadings listed in the specific evidence, so that the party receiving the pleadings can be in their own response to the pleadings to make the denial. But the evidence is not necessarily set out in the pleading, and if it is not set out in the pleading, the other party cannot, of course, deny its authenticity in his reply to the pleading in this way.
Moreover, according to rule O.27 r.4 of the Rules of the High Court, if the truth of particular evidence referred to in the pleadings of the opposite party is denied in the pleadings, the word denial (deny) must be used. The use of not admitted (不承认) will not achieve the purpose of challenging the authenticity of evidence under O.27 r.4 (see the Hu Lan v David Golden decision confirming this).
Evidence does not have to be in original
In Hong Kong civil proceedings, there is no rule requiring a party to produce original evidence in order to rely on it. Photocopies may also be admissible in evidence, and their authenticity (if challenged by the other party) may be proved in accordance with the usual methods of proof (e.g. by means of witness statements, consistency of corroborating evidence, etc.).
The common practice in civil litigation in the Mainland that original evidence must be provided to adduce evidence seems to confuse the two issues of admissibility (i.e., eligibility to be used as evidence) and the probative value of evidence. In terms of the admissibility of evidence, any evidence, as long as the facts to be proved with a connection (relevant), has the qualification as evidence, unless excluded by the application of other rules of evidence. There is no evidence of the original copy of the evidence, as long as the facts to be proved with a connection (relevant), of course, should have the admissibility of evidence (admissibility), the court should not refuse to admit the evidence simply because the original can not be provided.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)