Hong Kong Court of Appeal's Strict Stance on New Evidence

The Hong Kong Court of Appeal has the power to accept new evidence on factual questions during appeals.  To adduce new evidence, a party must satisfy the three-limbed test set out in Ladd v Marshall [1954] 1 WLR 14891, namely, that the new evidence (i) could not have been obtained at the hearing below with reasonable diligence, (ii) would significantly influence the case outcome if believed, and (iii) must be apparently credible, though not necessarily incontrovertible.

The recent case of Re China Properties Group Limited [2025] HKCA 302 highlights the stringency of the Ladd v Marshall test. 

Discussion

China Properties Group Limited (the "Company") appealed a winding-up order made against it, seeking to adduce new evidence, including an announcement by the petitioner's parent company indicating that the petition debt had been assigned to a third party.  The Company based its appeal solely on this announcement, arguing that the petitioner lacked standing to present the winding up petition.

The Court of Appeal dismissed the Company's application on the basis that it failed to satisfy the first and second limbs of the Ladd v Marshall test.  The evidence regarding the assignment could have been obtained with reasonable diligence before the winding up order.  Additionally, the petitioner had evidence that the Company had in fact agreed to withdraw its complaint about the assignment and the petitioner's standing in previous proceedings.  The Court therefore did not accept that the new evidence would have significantly influenced the case outcome.

In particular, the Court of Appeal commented as follows:

"…in recent years there is an increasing number of cases where the parties seek leave to adduce new evidence for the appeal. This is an unacceptable trend because it generates satellite litigations which cause delays and affect the resources of the Court and the other party. An appeal from a first instance decision in Hong Kong is not in the nature of a ‘second trial’ where fresh evidence may be adduced… Admission of new evidence for the appeal is the exception rather than the rule and is only allowed if stringent conditions are fulfilled as all relevant evidence should be properly adduced at the first instance proceedings… The Court of Appeal takes a strict approach on attempts to introduce new evidence and will impose sanctions by way of punitive costs order against unmeritorious applications."

The Court of Appeal ordered the Company to pay the petitioner costs on an "indemnity basis" which is higher than standard costs as all costs incurred will be allowed on taxation, unless deemed unreasonable.

Comments

Parties to litigation should remember that the appeal is not a second chance at presenting fresh evidence, but rather an opportunity to review the decision made at the first instance based on evidence that was originally presented.  A complete discovery of all relevant documents should be made in the first instance proceedings, and any unmeritorious attempt at introducing new evidence at the appeals stage will be met with unfavourable cost consequences.