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Letter of Request available in Hong Kong to recover own documents from China

16/10/25

The Hong Kong top court, the Court of Final Appeal, has ruled that the Letter of Request procedure is available to a party in an audit negligence case where audit papers are located in China and Chinese regulations prevent them from being transferred to Hong Kong. This differs from the usual Letter of Request case, as the party is seeking the order to facilitate access to his own documents.

This issue arises commonly in Hong Kong, where Chinese regulations often prevent documents being taken from China to Hong Kong. It was seen as an issue of sufficient importance that in the present case, the Court of Appeal themselves gave leave to appeal to the Court of Final Appeal.

In Tenwow International Holdings Ltd v PricewaterhouseCoopers [2025] HKCFA 17 the auditors were sued for failing to spot a fraud in Tenwow’s Chinese business. The case is set down for trial in spring 2026 but audit papers were unavailable because of Chinese security arrangements, as they were located in Shanghai. PWC asked the Hong Kong court to issue a Letter of Request to the Shanghai court asking for their assistance in recovering their own documents. Anthony Chan J refused the order as contrary to principle but the Court of Appeal reversed the decision.

There is considerable English authority which is contrary to PWC’s case: in particular the well-known decision of Nicholls VC in Panayiotou v Sony [1994] Ch 142. In Byers v Samba Financial Group [2020] EWHC 853 (Ch) Fancourt J considered the precise point in issue in Tenwow and held that such an order was wrong in principle.

The Court of Final Appeal distinguished the Panayiotou line of cases and Byers and upheld the Letter of Request. Fok PJ said that unlike incoming Letters of Request, which were based on statutory provisions, outgoing Letters of Request were based on the court’s inherent jurisdiction and the court had a wider discretion. Here the documents were needed for a fair trial and there was no reason to refuse an order, which also was held to fall within Article 6 of the Mutual Arrangement between Hong Kong and China.

The judgment is here.

Charles Hollander KC (instructed hy Karas So LLP) acted for Tenwow.

All members of Brick Court Chambers are self employed barristers. Any views expressed are those of the individual barristers and not of Brick Court Chambers as a whole.