Read the full judgment text of CACV 277/2015 on BabelCite. This Court of Appeal judgment was delivered on 19 May 2016 before Hon Lam VP and Kwan JA.
Civil procedure – service of writ out of jurisdiction – substituted service – defendant residing in the Mainland of China – whether Order 11 rule 5A is the exclusive and mandatory provision governing service on Mainland residents – whether Order 65 rule 4 (substituted service) applies to defendants residing in the Mainland – whether substituted service to be effected in Hong Kong on a Mainland resident is within the jurisdiction of the Hong Kong court – whether such order interferes with the sovereignty of the Mainland contrary to the Basic Law and the 'one country, two systems' principle – whether the judge erred in exercising discretion under Order 2 rule 1 to cure any irregularity in the 2nd Order – former employee of plaintiff bank alleged to have breached employment contract, fiduciary duties, and to have conspired to injure the plaintiff by unlawful means – plaintiff obtained leave to issue a concurrent writ for service in the Mainland under Order 11 rule 1(1)(d), (f) and (p) – attempted service under Order 11 rule 5A through judicial authorities of the Mainland at the defendant's residential and business addresses in Beijing failed as nobody answered the door and telephone calls went unanswered – plaintiff obtained order for substituted service by post, email and delivery to defendant's former solicitors, Reed Smith Richards Butler (RB), in Hong Kong – defendant changed solicitors and sought to set aside service and discharge the orders below – whether Article 277 of the Mainland Civil Procedure Law is engaged by service in Hong Kong – the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts – held, Order 11 rule 5A is not exhaustive and there is no conflict with rule 5(1) which expressly applies Order 65 rule 4 to service of a writ notwithstanding that it is served out of the jurisdiction – held, service on RB in Hong Kong was effected in Hong Kong and not in the Mainland, so the Arrangement, Order 11 rule 5A and Article 277 of the Mainland CPL were not engaged – held, the traditional characterisation of service abroad as an assertion of sovereignty and an interference with the sovereignty of a foreign state is no longer a realistic view following Abela v Baadarini, and ordering substituted service in Hong Kong on a Mainland resident does not contravene the Basic Law – held, the judge was entitled to exercise her discretion under Order 2 rule 1 to treat the non-compliance of rules as an irregularity where two of three methods of substituted service might not comply with Order 11 rule 5(2) – held, the proceedings had clearly and manifestly been brought to the attention of the defendant who filed an acknowledgment of service, never sought to set it aside, and engaged solicitors and counsel to contest the proceedings without asserting any prejudice – appeal dismissed with costs on an order nisi basis.
Legal issues: Whether Order 11 rule 5A is mandatory and exhaustive, precluding substituted service on Mainland residents · Whether the method of substituted service on RB's office in Hong Kong contravened the law of the Mainland and Order 11 rule 5(2) · Whether ordering substituted service in Hong Kong on a Mainland resident interferes with Mainland sovereignty contrary to the Basic Law · Whether the judge erred in exercising discretion under Order 2 rule 1 to cure any irregularity in the 2nd Order
Outcome: Appeal dismissed. The Court of Appeal upheld the order of Mimmie Chan J that the substituted service of the concurrent writ on the defendant care of Reed Smith Richards Butler in Hong Kong stands as good and effective service on the defendant.
Cites 4 cases