Chan Man Hing v. Dong Wai Ba Fong Logistics Company Ltd

DCEC 363/2018

[2018] HKDC 1144

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 363 OF 2018

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DECISION

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1.On 23 April 2018, the intervener, as the insurer of the above-named respondent, took out an inter partes summons (“the summons”) for leave to join in these proceedings as the 2^nd respondent and filed an affidavit in support of the summons (“the affidavit”).

2.On 25 June 2018, the intervener made an ex-parte application (“the ex parte application”) for an order for substituted service of the summons and the affidavit (collectively “the documents”) on the respondent.  Subsequently, the intervener has modified its application and the order for substituted service now being sought is that service of the documents be effected by the following manners:-

(1)   inserting a sealed envelope which contains the sealed copy of the order for substituted service, a true copy of the summons and a true copy of the affidavit into the letter-box of the respondent’s registered office at Room 2, 25/F, Times Tower (“the building”), 928 Cheung Sha Wan Road, Kowloon, Hong Kong (“the registered office”); and

(2)   advertising a Chinese notice of the order for substituted service, the summons and the affidavit in one issue of the Hong Kong Economic Journal, a Chinese newspaper published and circulating in Hong Kong.

3.Having read the affidavit evidence and the written submissions provided by the intervener in support of the ex parte application, I directed that there should be a hearing before me, so that I could have further assistance from the intervener’s solicitors on this matter.

The intervener’s view

4.The respondent is a company limited incorporated in Hong Kong.  The intervener’s solicitors have tried to serve the documents on the sole director of the respondent but in vain.  The intervener’s solicitors have also tried to serve the documents on the respondent by the following ways:-

(1)   by post to the registered office, but the mail was returned to the intervener’s solicitors by reason of “moved, redirection service not arranged by addressee”;

(2)   by personal delivery to the registered office on 2 May 2018, but no one answered the door;

(3)   by inserting the documents inside the letter box of the registered office located at the ground floor of the building on 2 May 2018, and the documents have never been returned to the intervener’s solicitors.

5.The intervener’s solicitors have adduced evidence showing that the process server had tried to insert the documents into the registered office through a gap at the door of the registered office, but was unable to find a gap which was wide enough.

6.The intervener’s solicitors are of the view that the order for substituted service sought is necessary in these circumstances.

My view

7.Companies Ordinance (“CO”), s 827 provides:-

“A document may be served on a company by leaving it at, or sending it by post to, the company’s registered office.”

8.It is settled law that service on a company incorporated in Hong Kong at its registered office is good service, even if the party effecting service has actual knowledge that the company has moved out from that office at the time of service.  See Ho Kwok Wah v Group Jewellery Arts Ltd [2000] 3 HKC 595; AVC Property Development Company Limited v Joyful Grace Trading Limited and another (CACV 208/2016, 16 June 2017); Celerity Special Situations Fund I, LP v China Linkage International Limited [2018] HKCFI 259.

9.In my view, by the operation of CO s 827, the intervener’s solicitors have already served the documents on the respondent by sending the documents by post to the registered office.  In the light of the authorities mentioned above, the subsequent return of the mail is neither here nor there.

10.I am also of the view that by virtue of CO s 827, the intervener’s solicitors have also served the documents on the respondent by inserting the same into the letter box of the registered office on 2 May 2018.  I appreciate that the letter box is not inside the registered office or at the door of the registered office, but is at the ground floor of the building.  However, there cannot be any doubt that the letter box is the place for collecting all documents delivered to the registered office. I am of the view that inserting documents into the letter box is equivalent to leaving documents at the registered office.

11.Accordingly, the intervener in fact has no need to seek an order for substituted service under the Rules of the District Court, Order 65 rule 4.

12.If I am wrong in the analysis above and the intervener cannot derive any assistance from CO s 827, I would still regard the service of the documents on the respondent by inserting the same into the letter box of the registered office on 2 May 2018 as good and sufficient service.  Those documents have never been returned to the intervener’s solicitors.  In these circumstances, there is no reason to say that the documents have not reached the respondent.  Insofar as may be necessary, I would exercise the discretion under Order 65 rule 5(1)(d) and allow service of the documents by inserting the same into the letter box of the registered office.  In any event, an order for substituted service under Order 65 rule 4 would not be necessary.

13.Out of abundant caution and for the purpose of facilitating these proceedings, I would make an order under Order 65 rule 5(1)(d) and give retrospective leave to the intervener to serve the documents on the respondent by inserting the same into the letter box of the registered office on 2 May 2018, and the documents are deemed to be duly served on the respondent on that date.

Disposition

14.I make the order set out in paragraph 13 above.  Costs of the ex parte application be reserved.

15.I thank the intervener’s solicitors for the assistance rendered to this court.

Ms Vienne Cheung, of Deacons, for the intervener