(A) Introduction
Tenwow International Holdings Limited (in liquidation) and another v. 普华永道中天会计师事务所(特殊普通合伙) Pricewaterhousecoopers Zhong Tian LLP, FACV 2/2025, [1] date of judgment: 16 October 2025, addressed questions regarding cross-border litigation and judicial assistance between Hong Kong and Mainland China. In particular, it examined the Hong Kong court’s jurisdiction to issue a letter of request (the “LOR”) to the Shanghai High People’s Court and whether the assistance sought fell within 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 (the “Mutual Arrangement”). [2]
The Court of Final Appeal (the “CFA”) unanimously dismissed the Appellants’ appeal and held that:
(1) the Hong Kong court has the jurisdiction to issue the LOR; and
(2) the requested assistance falls within the scope of Article 6 of the Mutual Arrangement [3].
(B) Facts
The Appellants were the liquidators (the “Liquidators”) of Tenwow International Holdings Limited (“Tenwow”) and its Hong Kong subsidiary. [4] They brought a professional negligence claim against two entities: (1) PricewaterhouseCoopers (“PwC HK”), the Hong Kong auditor of Tenwow from 2013 to 2017, and (2) the Respondent, PricewaterhouseCoopers Zhong Tian LLP (“PwC ZT”), the Mainland firm that performed the audit work on the Tenwow Group's operations in the Mainland China. [5]
The audit working papers held by PwC ZT (the “D2 Documents”) were central to the case, as they were highly relevant to determine what audit work had been performed and how it was performed. [6] Before commencing proceedings, the Liquidators requested the D2 Documents from PwC HK. [7] PwC HK replied that the D2 Documents were held by PwC ZT in Shanghai and were “subject to China legal impediments which prevent [it] from disclosing them unless with permission from the Mainland China regulators or through the regulator-to-regulator mechanism”. [8]
After proceedings had been commenced, PwC HK and PwC ZT argued that PRC laws prohibited PwC ZT from transferring the D2 Documents out of Mainland China without approval from relevant authorities in the PRC. [9] To clarify this position, PwC ZT consulted with the Ministry of Finance of the PRC (the “MOF”). [10] The MOF confirmed that it could not provide administrative approval and stated that the proper channel was for the Hong Kong court to request assistance from the Mainland courts under the Mutual Arrangement. [11]
Subsequently, PwC ZT applied to the Court of First Instance (the “CFI”) for a LOR to be issued to the Shanghai High People’s Court to facilitate this approval. [12] The CFI dismissed the application on the following grounds: [13]
(1) LORs are usually issued to obtain evidence from overseas non-parties.
(2) The assistance sought fell outside the scope of the Mutual Arrangement, in particular Article 6.
(3) The Judge was not satisfied that there is a blanket restriction under PRC law on the transfer of all of the D2 Documents under Article 9 of Regulation 44, [14] only a prohibition on the transfer of documents containing confidential or sensitive information, including State secrets, or other specifically proscribed information.
(4) The Judge found that the unexplained and lengthy delay in seeking the LOR would adversely impact trial preparations for the 30-day hearing scheduled for March 2026.
On appeal, the Court of Appeal (the “CA”) reversed the CFI’s decision, holding that: [15]
(1) Using a LOR to aid a litigant in overcoming a foreign legal impediment to discovery is not inappropriate in principle.
(2) There is in Mainland law a blanket prohibition against the transfer of audit working papers out of the Mainland without approval of the relevant authorities.
(3) A request for assistance from the Shanghai court was the only appropriate way to obtain approval for the transfer of the D2 Documents for production in Hong Kong.
(4) The assistance sought fell within the scope of the Mutual Arrangement, in particular Article 6 thereof.
(5) The court should in its discretion issue the LOR applied for.
After that, the Liquidators appealed to the CFA on the following questions of law: [16]
Question 1
“Does the Hong Kong Court’s jurisdiction to issue a letter of request extend to securing the production by a party to litigation in Hong Kong of documents which (a) are in the possession of that party, (b) have been enumerated in that party’s list of documents, (c) that party is under an existing obligation to produce as part of general discovery, but (d) are prohibited from such production without the requisite approval under the law of the place where the documents are located, regardless of whether or not such documents are material to an issue at trial and admissible in evidence at trial?”
Question 2
“Does a request for a Mainland Court to facilitate regulatory approval for production of documents in Hong Kong proceedings as part of general discovery fall within the scope of Article 6 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?”
(C) Decision
The CFA unanimously dismissed the appeal, upholding the CA's decision to issue the LOR.
Question 1 (Jurisdiction of a Hong Kong court to issue a LOR)
The Court held that the Hong Kong court has jurisdiction to issue a LOR on the following grounds:
(1) The power of a Hong Kong court to issue a LOR to the judicial authorities of another jurisdiction stems from its inherent jurisdiction to do what is necessary to “maintain its character as a court of justice” and is not derived from statute or the Rules of the High Court (“RHC”). [17]
(2) The inherent jurisdiction for outgoing LOR is distinct from the jurisdiction under which a Hong Kong court may make an order consequent upon its receipt of a LOR from a foreign court requesting assistance in the obtaining of evidence for proceedings before the foreign court. The latter is statutory power under Part VIII of the Evidence Ordinance (Cap. 8) and may result in a coercive order by the Hong Kong court for the obtaining of evidence. In contrast, an outgoing LOR is a non-coercive request to a foreign court for assistance. [18]
(3) The Court highlighted that the context was crucial. The factual context included the existence of a blanket prohibition against the transfer of those documents out of the Mainland without approval of the relevant authorities, the letter from the MOF confirming that it was appropriate for the Hong Kong court to seek assistance from the Mainland court pursuant to the Mutual Arrangement and the underlying objectives of the RHC to secure the just resolution of disputes in accordance with the substantive rights of the parties. The D2 Documents were necessary to the court’s determination of the issues in the action and both parties sought their production. [19]
(4) The Court rejected the Appellants' argument for a “equivalence principle”, which argued that outgoing LORs should be limited to what the court would grant for an incoming one. It affirmed that the inherent jurisdiction is broad and flexible. Using it to overcome a genuine foreign legal impediment in the interests of a fair trial was a proper exercise of this power. [20]
(5) Subject to the scope of the Mutual Arrangement, the Court found that there was no good reason to limit the inherent jurisdiction of the Hong Kong court to preclude the issue of a LOR in this case. [21]
Question 2 (Scope of the Mutual Arrangement)
The Court held that the requested assistance does fall within the scope of Article 6 of the Mutual Arrangement on the following grounds:
(1) The Court acknowledged that while a Hong Kong court could theoretically issue a LOR to a Mainland court even in the absence of the Mutual Arrangement, it would normally only do so if the LOR fell within its scope, as this provides a reasonable basis to believe that the Mainland court would be receptive to the request. [22]
(2) The Court rejected the Appellants’ argument for a restrictive interpretation of Article 6, which sought to distinguish between the “provision of documentary evidence” available to Hong Kong courts and the broader “obtaining of documents” available to Mainland courts. [23] The Court emphasized that the Mutual Arrangement is an administrative scheme without the force of law, designed to promote judicial cooperation, and therefore it should not be construed formalistically. [24]
(3) The Court explained that the specific matters listed in Article 6 are non-exhaustive, as indicated by the word “includes”. The differences in wording between the two parts of Article 6 reflect the different legal systems and evidence-gathering procedures of the two jurisdictions, and do not justify a narrow construction. As such, the Court found no compelling reason to limit “provision of documentary evidence” to the obtaining of material and admissible evidence only. [25]
(4) This interpretation was reinforced by the factual context. The CA's findings that the Respondent faced a real risk of penalty in the Mainland for transferring the documents without approval and the MOF’s letter stating that the matter fell “under the judicial scope” and that the Mutual Arrangement was the correct channel, which provided a sufficient basis to suppose the Mainland court would be receptive to the request. [26]
Matters arising after the hearing of the Appeal
After the hearing, the Shanghai High People's Court returned the LOR, stating that it could not assist because the necessary regulatory approval for the export of the D2 Documents had not been obtained. [27]
The CFA held that this did not affect its legal conclusions. It interpreted the Shanghai court's response not as a refusal based on jurisdiction, but as an indication that obtaining regulatory approval was a necessary precondition to the execution of judicial assistance. [28]
(D) Key Takeaways
This landmark case provides valuable guidance for cross-border discovery involving restricted documents held in another jurisdiction (whether foreign or Mainland):
(1) Clarification of jurisdiction for LOR: The CFA affirmed a distinction between incoming and outgoing LOR:
(a) Incoming LORs: The jurisdiction to make a coercive order in response to a request from a foreign court is statutory, governed by Part VIII of the Evidence Ordinance (Cap. 8).
(b) Outgoing LORs: The power to issue a request for assistance to a foreign or Mainland court stems from the Hong Kong court's inherent jurisdiction, which is broad and flexible power to act as necessary to maintain its character as a court of justice.
(2) Expanded Use of Outgoing LOR: Hong Kong courts may issue an LOR to assist a litigant in complying with its own discovery obligations where a genuine foreign legal impediment exists.
(3) Broad Interpretation of the Mutual Arrangement: The Mutual Arrangement is a flexible framework. The phrase “provision of documentary evidence” in Article 6 is not limited to material and admissible evidence, but can include a request for judicial assistance to overcome a regulatory barrier to discovery.
(4) Practical Roadmap for Overcoming Legal Impediments: Where a foreign legal restriction blocks document production, parties should demonstrate that the foreign court is the only appropriate channel for obtaining the necessary regulatory approval for production of documents and the foreign court would be receptive to such a request.
[1] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=173457
[2] Tenwow International Holdings Limited (in liquidation) and another v. 普华永道中天会计师事务所(特殊普通合伙) Pricewaterhousecoopers Zhong Tian LLP, FACV 2/2025, date of judgment: 16 October 2025, §3
[3] Article 6 of the Mutual Arrangement:
The scope of assistance that may be requested by a court of the HKSAR in seeking the taking of evidence by the People’s Courts of the Mainland under the Arrangement includes:
(1) obtaining of statements from parties concerned and testimonies from witnesses;
(2) provision of documentary evidence, real evidence, audio-visual information and electronic data;
(3) conduct of site examination and authentication.
[4] Tenwow International Holdings Limited (in liquidation) and another v. 普华永道中天会计师事务所(特殊普通合伙) Pricewaterhousecoopers Zhong Tian LLP, FACV 2/2025, date of judgment: 16 October 2025, §5
[5] Ibid, §7
[6] Ibid, §9
[7] Ibid
[8] Ibid
[9] Ibid, §10
[10] Ibid, §13
[11] Ibid, §14
[12] Ibid, §15
[13] Ibid, §18
[14] “The Provisions on Strengthening Confidentiality and Archives Administration of Overseas Securities Offering and Listing by Domestic Companies” dated 24 February 2023 (Announcement [2023] No. 44).
[15] Ibid, §19
[16] Ibid, §22
[17] Ibid, §26
[18] Ibid, §27
[19] Ibid, §41-45
[20] Ibid, §51
[21] Ibid, §57
[22] Ibid, §70
[23] Ibid, §67
[24] Ibid, §75
[25] Ibid
[26] Ibid, §80
[27] Ibid, §96-99
[28] Ibid, §100, §103
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