Fact
The Plaintiff issued a writ of summons against the Defendant, a PRC resident in China, and obtained leave under O.11 r.1(1) of the Rules of the High Court to serve a concurrent writ out of the jurisdiction on the Defendant at his residential address. The Plaintiff then requested that the writ shall be served through the judicial authorities of China, pursuant to O.11 r.5A. The Plaintiff later made a similar application for service at a commercial address. Both of the attempts failed. The Plaintiff then applied for and the Court ordered substituted service in Hong Kong, but not in China, through delivering by hand the documents marked for the attention of the Defendant care of the Hong Kong office of the solicitors for the Defendant.
The Defendant appealed on the ground that the Court had no jurisdiction to bypass O.11 r.5A by ordering substituted service in Hong Kong; alternatively such an order contravened the Basic Law and was beyond the jurisdiction of the Court.
The Court dismissed the Defendant’s appeal
The Court adopted a purposive approach in interpreting O.11, and ruled that “the objective of substituted service was to bring knowledge of the writ to the defendant by such means that would reach him in all reasonable probability.” Therefore, although not expressly stated, substituted service was applicable to the service of process on a mainland Chinese resident.
The Court then categorised substituted service into two types, namely substituted service to be effected on the Mainland, or in Hong Kong.
As for the former kind, pursuant to O.11 r.5(2), such order or direction of the Court in Hong Kong must not contravene PRC law. If a particular mode of service was preferred by the relevant judicial authorities on the Mainland, the applicant must follow the same in his request with the Registry of the High Court. The applicant has to prove to both the Court in Hong Kong and a Higher People’s court on the Mainland that his proposed service method was appropriate.
The Court then justified the latter kind of substituted service. In reality, in most cross-border disputes, the parties would submit to the jurisdiction of the court or there is a substantial connection between the dispute and Hong Kong. Therefore, allowing substituted service is a pragmatic decision in the interests of efficient litigation. As a safeguard, the Court would also ensure the method of substituted service in Hong Kong would not authorise any conduct contrary to PRC law.
Implication
Apparently, the Court is prepared to take a pragmatic approach as far as service out of the jurisdiction is concerned. Acknowledging there being practical difficulties in serving out of the jurisdiction on a Mainland Chinese resident, the Court may go so far as to allow substituted service in Hong Kong, as opposed to that effected in China, when the Plaintiff can prove that such substituted service could make known to the Defendant the existence of the writ in all reasonable probability.