“Can Law Enforcement Agencies In Hong Kong Insist On A Foreign National To Come To Hong Kong To Testify For The Prosecution?"



To compel an individual to testify for the prosecution in a court in Hong Kong, the local law enforcement agency concerned has to apply to the court for the issue of a Summons to Witness to be served on the particular individual.  If that individual having been served with the Summons concerned fails to attend, the court may issue warrant for arrest of that individual.


While it is undoubtedly true that the power of the local law enforcement agencies and indeed the jurisdiction of the local courts do not extend beyond Hong Kong, there exist bilateral agreements between Hong Kong and some foreign countries on mutual legal assistance in criminal matters.  Such legal assistance is necessary as the local law enforcement agencies simply cannot operate in foreign jurisdiction.


For instance, there exists the Agreement between the Government of Hong Kong and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters providing for, inter alia, mutual assistance in service of documents and transfer of persons to provide assistance.


However, it may be noted that although the said Agreement does provide that the US Government shall use it best efforts to serve any document transmitted to it by the Hong Kong Government for purpose of service, a person who fails to comply with any process so served shall not thereby be liable to any penalty or coercive measure pursuant to the law of Hong Kong.


Likewise, the Agreement also provides that the Hong Kong Government may request the assistance of the US Government in making a person available in Hong Kong for purpose of providing assistance, and upon receipt of such request, the US Government shall invite the person to travel to Hong Kong to provide assistance.  However, if that person does not consent to provide assistance, that person again shall not by reason thereof be liable to any penalty or coercive measure by the courts of Hong Kong.


Similar provisions also exist in the bilateral agreements on mutual legal assistance in criminal matters between Hong Kong and some other foreign countries.




Philip Tang


Hampton, Winter and Glynn

January 2016