4 May, 2016
It is commonplace today for one of the parties in Hong Kong court proceedings to be from the Mainland, be it an individual ordinarily resident in the Mainland or a company incorporated and with its only place of business in the Mainland. In these cases, the conduct of civil litigation is vastly different because documents generated in the Hong Kong litigation still need to be served on the Mainland party. This article is a brief guide to the law and practice in this area.
Service of originating process and subsequent legal documents in Mainland China
It is a fundamental principle of the law that any person, against whom proceedings have been issued, must be given due and fair notice of those proceedings so as to enable them to answer and defend such, if they so wish. Generally, personal service is required for all originating process, unless other modes of service are allowed by the law. As for most other documents, such as pleadings and interlocutory applications, ordinary service will suffice.
For service in Mainland China, the general rule is that service of originating process out of the jurisdiction may only be effected with the Court’s leave. In order to obtain leave to serve the originating process out of the jurisdiction, the
Plaintiff must establish the following three matters:-
That he has a good arguable case that his claim falls within one of the heads listed in the relevant rules. The Plaintiff must choose which head(s) of claim he is going to rely on.
- That his evidence discloses a serious issue to be tried; and
- Even if the first two requirements are satisfied, that the case is a proper one for the exercise of the court’s discretion to grant leave. In determining this issue, the Court will apply the doctrine of forum non conveniens (i.e. will determine which court is best suited to resolve the dispute in question).
Serving through Mainland Judicial Authority
In 1999, pursuant to Article 95 of the Basic Law after consultation between the Mainland’s Supreme People’s Court and the High Court of Hong Kong, an arrangement for mutual service of judicial documents in civil and commercial proceedings between the Mainland and Hong Kong Courts was agreed (the “Arrangement”). This has been incorporated in the local legislation which can be found in Order 11 Rule 5A of the Rules of High Court.
To effect service of judicial documents in Mainland China, the Plaintiff must lodge in the Registry (1) a request for service; (2) 2 copies of the judicial document required to be served and two additional copies for each Defendant; and (3) a Chinese translation of the document unless it is already in Chinese. The Registrar will send the documents to the appropriate judicial authority in Mainland China, which arranges for service. After service, an official certificate of service is sent to the Plaintiff. The time that this process takes varies and it is not uncommon for it to take a few months to effect service.
It should be noted that legal documents must be served on the Mainland parties using the Arrangement. Other means such as employing an agent or PRC lawyer to serve legal documents will not be accepted unless leave for substituted service is granted by the Hong Kong Courts. In fact, some may argue that doing so may be considered as purporting to administer Hong Kong law in the Mainland and is disrespectful to PRC Courts.
Application for substituted service
Where it is impracticable for any reason to serve the writ or other originating process in the manner prescribed by the relevant court rules, the Court may make an order for substituted service of that document – i.e. service in some other manner as the court may direct to bring the document to the attention of the Defendant. This means that a Plaintiff may obtain an order for substituted service where personal service or the alternative forms of service permitted by the relevant court rules are impracticable, for example, where the Defendant cannot be located. This applies not only to originating process but also all documents that are required by the court rules to be served personally.
In Porter v Freudenberg, Kreglinger v S Samuel and Rosenfeld, Re Merten’s Patents [1915] 1 KB 857, it was held that the Court must be satisfied of two matters: (1) that there exists a practical impossibility of actual service; and (2) that the method of substituted service proposed by the Plaintiff is one which will in all probability, if not certainty, be effective to bring the writ to the knowledge of the Defendant. In Chan Yeuk Mui v Ng Shu Chi [1999] 2 HKLRD 376, the Court held that there is no requirement that the writ be actually brought to the Defendant’s notice.
If the matter concerns great urgency, the Court may still be willing to grant substituted service even though the applicant did not attempt to serve the court document on the Defendant before taking out the application for substituted service.
The Court may direct that substituted service take place by a number of methods. Examples include (1) by post addressed to the Defendant at a specified address; and (2) by service on some person with whom the Defendant has been or is likely to be in communication (for example, solicitors who have been acting for the Defendant in other court cases).
In practice
In our experience, serving documents on a party in Mainland China is a time consuming process. There is no guarantee that the legal documents have reached the Mainland party or that the Mainland party will turn up to the Hong Kong proceedings. If the Mainland party has retained Hong Kong solicitors, one could ask them whether they have authority to accept service. The answer, however, is usually “no”. In such cases, one will have to apply for service out of jurisdiction as mentioned above. If service through the Mainland judicial authority fails or there is urgency, then substituted service will have to be applied.
For further information, please contact:
Andrew Law, Deacons
