Hong Kong, SAR
In civil proceedings in Hong Kong, a party generally has a duty to disclose to the other party all documents relevant to the case that are within their custody, power or control, even if some of the documents are not favourable to their case. The disclosure process is usually undertaken after the pleadings have been filed as this is the time at which the points of dispute between the parties have crystallized. However, the court may also order disclosure prior to the commencement of proceedings where an applicant is able to satisfy the court that they need to obtain such disclosure in order to determine whether or not a cause of action exists against a potential defendant. Evidence is generally not obtained ex parte, but is obtained through discovery where parties may exchange and inspect the documents included in the list of documents. The primary test for evidence to be admissible in court is the test of relevance (ie evidence on any issue in the case or which directly/indirectly enables the party receiving discovery to advance their case or damage the case of their adversary will generally be admissible).
Each party to a civil action must disclose the relevant documents it possesses in the form of a list, known as the list of documents. Except for documents that are privileged, all other documents must be provided to the other party on request or made available for the other party’s inspection. A party may refuse to disclose privileged documents to the other party. If there is a dispute as to whether a document is privileged, the court will make a final decision.
Prior to the commencement of proceedings, parties may make an application for pre-action discovery against prospective parties. However, pre-action discovery is limited to documents which are directly relevant (ie likely to be relied on in evidence by any parties or will support or adversely affect any party’s case in the intended proceedings) and an order will only be made if the court considers it to be necessary for fair disposal of the cause or for saving costs.
There is a continuing obligation to give discovery after the commencement of proceedings and additional documents may be disclosed in a supplemental list of documents.