Serving Writs In Mainland China By Public Announcement.

3 December 2021
 

Authored by: Genevieve Lam
 

Hong Kong has a number of mutual arrangements with Mainland China for judicial assistance for civil and commercial cases. The Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts (Arrangement) provides an official channel for Hong Kong to make requests to the Mainland for service of judicial documents in civil and commercial proceedings.
 

In a recent telephone fraud case, Su Xin & another v Qian Xiaochun [2021] HKDC 1056, the Hong Kong District Court granted the Plaintiffs leave to make substituted service of the Concurrent Amended Writ on the Defendant in the Mainland by way of public announcement.
 

The Plaintiffs’ claim arose from a telephone fraud scheme, by which the Plaitniffs had been deceived into making two money transfers into the Defendant’s bank account in Hong Kong. Upon investigation by the Hong Kong police, the Defendant was found to be a Mainland Chinese resident with a last known address in the Mainalnd. However, his/her whereabouts were unknown. 
 

This was the Plaintiffs’ appeal against the Master’s decision refusing to grant the Plaintiffs leave to make substituted service of the Concurrent Amended Writ on the Defendant in the Mainland by way of public announcement pursuant to:-
 

(1)        Articles 85 to 92 Civil Procedure Law of the PRC;

(2)        the Arrangement; and

(3)        Rules of District Court.
 

When considering the appeal, the Court had the benefit of reading the following documents:-
 

1. Letter from the Supreme People’s Court of the PRC (SPC) dated May 2014 in which the SPC cited Mainland law governing service, where the person’s whereabouts are unknown, and stating that service of legal documents under business jurisdiction could be served in accordance with the law of the country of the one to be served and it was clear that under the Civil Procedure Law of the PRC, public announcement is a prescribed mode of effecting service. Therefore, if such service is specified by the High Court of Hong Kong in its requests pursuant to the Arrangement, service by public announcement would appear possible for the Mainland courts to consider acceding to; 

2. Letter from DoJ to the Law Society dated 29 May 2014: to answer questions raised by the Law Society about effecting substituted service for Matrimonial Proceedings in the Mainland.

3. Letter from Plaintiffs’ then solicitor to Registrar of High Court requesting Service of Judicial Documents in Mainland to effect service of the Concurrent Amended Writ and documents to Defendant;

4. Letter from the Registrar of High Court to Plaintiffs’ then solicitors dated 21 October 2020 enclosing the Return Form which said that personal service on the Defendant had failed, with documents returned;

5. Affirmation setting out the relevant provisions in PRC Civil Procedure and stating public announcements to be an appropriate permitted method in this case for the purpose of effecting substituted service on the Defendant; and

6. Interpretation and application of the “Arrangement of the Supreme People’s Court on Mutual Entrustment in Service of Judicial Documents in Civil and commercial Matters between the Courts of the Mainland and the Hong Kong Special Administrative Region”: An article published by the SPC stating that in practice, if service cannot be effected through the Arrangement or by other means in order to protect the rights of the party situated in Hong Kong, service by way of public announcement should be made, as a final means to confirm service of proceeding.
    

The Court allowed the appeal, holding that public announcement is a prescribed mode of service in the Mainland and is not excluded by the Arrangement. Therefore, if such service is specified by the High Court of Hong Kong in its request pursuant to the Arrangement, service by public announcement is possible for the Mainland courts to consider acceding to. 
 

An order was made that service of the Plaintiffs’ Amended Writ and all subsequent documents in the action on Defendant be substituted by posting a notice of the proceedings once, with copies of the same documents as a public announcement on the bulletin board of the People’s Court Tianning, Changzhou, Jiangsu in Mainland; such service to be done through proper procedures under the Arrangement.
 

Comments
 

This judgment usefully confirms that in circumstances where a defendant to proceedings who is resident in Mainland China cannot be located, public announcement is a prescribed mode of service of the writ on the defendant and is not excluded by the Arrangement.