The Court of First Instance has held that there was no jurisdiction to give effect to a letter of request issued by an Administrative Law Judge on behalf of the US Federal Board of Reserve: AB v X & Ors [2022] HKCFI 132.

The letter sought an order for examination of witnesses X, Y and Z in Hong Kong in aid of administrative enforcement proceedings brought by the Board against AB in Washington DC. The Board sought a “civil monetary penalty” of US$1M and a ban on AB participating in the affairs of any banking institution.

The court held with the benefit of expert evidence that neither the judge on behalf of the Board nor the Board itself was a “court or tribunal” under US law, as required by section 75(a) of the Evidence Ordinance [51], [71]. Further, the Board sat in its own cause. It was “both the decision-maker and a party” to the US proceedings, and thus lacked sufficient judicial qualities to constitute a “court or tribunal” under Hong Kong law. It followed that there was no jurisdiction to grant an examination order in aid of the letter [84]-[86].

Consideration was also given to arguments that the US proceedings were not “civil proceedings” as the statue requires, and that the ex parte examination order stood to be set aside for material non-disclosure.

The federal system of administrative proceedings in the US commonly operates by way of an administrative law judge whose ‘recommended’ decisions are subject to directions otherwise by the enforcement body bringing the action, as here, contrary to the nemo judex in causa sua rule. This would appear to be one of the first decisions in Hong Kong or indeed the Commonwealth on the question of whether such a two-tier body can amount to a “court or tribunal” (or “judicial authority” per the Convention) for letter of request purposes.

Prince’s Chambers’ Josh Baker, instructed by Norton Rose Fulbright and with Tim Parker appeared for the witness identified as X.