Airport Authority v. Persons Unlawfully and Wilfully Obstructing or Interfering With the Proper Use of the Hong Kong International Airport

HCA 1471/2019

[2020] HKCFI 2743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1471 OF 2019

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D E C I S I O N

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A. Introduction

1.By Notice of Appeal dated 28 August 2020, the plaintiff appeals from the Order of Master Kot dated 31 July 2020 (“Kot Order”) relating to the substituted service of Court documents.

2.I have previously directed that the Appeal be dealt with by way of paper disposal.  Solicitors for the plaintiff have filed written submissions dated 15 October 2020, together with a list of authorities, accompanied by an Appeal Bundle.  The original application for substituted service, and this Appeal, are made ex parte. Therefore, I accept that the Notice of Appeal itself need not served.  Its import is in any event fully apparent from this Decision.

3.The Appeal arises against the following background.  The plaintiff is the operator of the Hong Kong International Airport (“Airport”).  On 13 August 2019, the plaintiff was granted an ex parte interim injunction against the defendants, concerning the obstruction and interference caused by the protests at the Airport in August 2019.  Under that order, substituted service was to be effected by the plaintiff by placing copies of the order and the writ (1) posted securely at conspicuous places in the Airport, (2) published on the Airport’s website www.hongkongairport.com, and (3) published in one English and one Chinese newspaper in Hong Kong for three consecutive days.

4.On 23 August 2019, the ex parte interim injunction order was varied and continued.  Under that continuation order, an order for substituted service was granted on the same basis, albeit that the newspaper publication was for only one day (“Previous Method”).

5.As well as the steps taken for service of the various documents, the proceedings received considerable publicity in various media.  However, no person has come forward to file any acknowledgement of service, and there are therefore no addresses at which service on any defendant could be affected.

6.The Kot Order was made on the plaintiff’s application for leave to serve the Statement of Claim and any subsequent documents in the action (“Documents”) by way of substituted service.  That application was supported by the affirmation of Kim Barton (“Barton Affirmation”) and a letter from the plaintiff both dated 9 July 2020.

7.The plaintiff’s application and the Barton Affirmation proposed substituted service (“Proposed Method of Service”) by (1) posting a copy of the Documents on the Airport’s website, (2) fixing a copy the Documents securely at conspicuous places at entrances to and within the landside areas of the Airport Terminal 1 building, and (3) exhibiting securely in conspicuous places in the Airport a notice containing a QR code which would link to the Documents posted on the plaintiff’s website.

8.The substituted service directed under the Kot Order differs from the Proposed Method of Service in particular by requiring (1) the Statement of Claim (17 pages) and the Kot Order (2 pages) to be advertised in one English newspaper and one Chinese newspaper for one day, and (2) the Statement of Claim and the Kot Order to be posted in full across the Airport island.

9.The Appeal is against those parts of the Kot Order.  The basis of the Appeal is that the cost of publishing the Documents (including the Statement of Claim and the Kot Order itself) in newspapers, and the time and effort to paste up the Documents in full across the Airport island, are disproportionate when compared to effectiveness, and when the Proposed Method of Service would be no less effective.

B.      The Kot Order

10.When making the Kot Order, the Master differentiated between service of the Statement of Claim and subsequent documents.  As a result, the Kot Order provides for differing methods of substituted service relating to the Statement of Claim on the one hand, and to any subsequent documents on the other.

11.The Master’s comments included that the Statement of Claim is an important document that informs the defendants of the details of the plaintiff’s claim.  That is obviously correct.  The Master went on to state that, even though there was extensive media coverage of the injunction application and that there is prevalent internet access in Hong Kong, service of the Statement of Claim “should be in a way sufficient to bring to the attention of those targeted as Defendants and publication on the newspaper should be a means that is more likely to reach the public as a whole even for 1 day”.  The Master commented that that consideration outweighed the costs and efforts to be involved.

12.As to the subsequent documents that require service, the Master commented that a different consideration is justified, and the means of substituted service proposed by the plaintiff “should be sufficient”.

C.      Applicable Law

13.RHC Order 65 rule 5(1)(d) provides that service of any document not required to be served personally or by one of the modes prescribed in Order 10 rule 1 may be affected by such other manner as the Court may direct.

14.The principal aim of effecting substituted service is for the chosen method of substituted service to be likely to bring the relevant court documents to the notice of the persons made subject to the jurisdiction of the Court.  As I held in Secretary for Justice v Persons Unlawfully and Wilfully Conducting Etc [2019] 5 HKLRD 465, where an application is brought against unnamed defendants in the manner described, it is important that the persons who are said to be made subject to the Court’s jurisdiction and to the order could reasonably be expected to learn of the proceedings.

15.Of course, a common means of effecting substituted service is by way of advertisement placed in newspapers.  However, in a number of recent cases involving unnamed defendants identified by description, including my decision cited above, the Court has been satisfied that service of documents need not be by way of advertisement in newspapers, but could be by way of posting the documents at conspicuous places on the subject premises (where relevant) and on websites.

16.Further, effecting service through the use of modern technology may also be accepted by the Court, in an appropriate case, as giving effect to the underlying objectives to be found in Order 1A rule 1(a) and (c), as well as the mandate for the Court actively to manage cases.  Under Order 1A rule 4(2)(k), active case management includes making use of technology.

17.In Hwang Joon Sang v Golden Electronics Inc [2020] 5 HKC 72, I granted an order permitting ordinary service of documents by access to a data room, effected by sending the relevant party to be served a link and access code to the data room.  I held (at §§30-32) that the underlying objectives included (1) increasing the cost-effectiveness of procedures to be followed in relation to civil proceedings, (2) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, and (3) to ensure fairness between the parties.  I also pointed out that by Order 1A rule 2, the Court is mandated to give effect to the underlying objectives of the rules when it exercises any of its powers, or when it interprets any of the rules.  Further, under Order 1B rule 1(1), the Court may by order take any step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A.  That power is in addition to any powers given to the Court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

18.It seems to me that, in an appropriate case, the use of a QR code on publicly available or posted documents, linking the user of the QR code to the court documents on a website, is something which the Court can consider and encourage as an effective and proportionate way of achieving the aim of likely bringing the documents to the attention of those to whom attention is to be drawn.  It will, of course, be necessary to ensure the sufficiently prominent display of a QR code with clear instructions for its use to access the relevant documents.  This method may seem particularly suited to cases where there are large numbers of defendants or potential defendants, or where there is a significant volume of documentary material to be served.

19.Nevertheless, I also held (at §37) that it remains important and necessary to ensure that the proposed method of service on each occasion is or remains authorised by the Court, and that any first occasion of service on any defendant (or third-party) should be effected by another Court approved method, before an alternative is mooted.

D.      This Case

20.The Barton Affirmation identifies that the cost of advertising the writ and ex parte interim injunction order in newspapers for three consecutive days was over HK$2.2 million, and the cost of advertising the continuation order in newspapers for one day was over $430,000.  Therefore, the plaintiff has incurred more than $2.6 million so far to advertise the writ and the orders made by the court in these proceedings.

21.The Barton Affirmation also identifies that the previous service effected by posting the writ and previous orders at conspicuous locations (102 of them) on the Airport island required a team of 16 people working more than 12 hours each day for 4 days to complete.  This was, of course, in circumstances where most of the activities that were disruptive to the Airport’s operations occurred at entrances to and within the landside areas of the Airport’s Terminal 1 building (rather than throughout the area of the Airport island).

22.It can also be noted that these proceedings, and the two occasions of execution of the interim injunction order, have been widely reported in the media, and have attracted significant public attention.

23.Looking forward, the plaintiff’s solicitors submit that the Master’s suggestion that publishing the Statement of Claim and the Kot Order “should” reach a wider audience if published in newspapers is likely misplaced, and in any event without evidential basis.  One of the distinguishing features of the recent social unrest is the prominent use of social media and other modern modes of communication, and the demonstrated technological knowledge and awareness of persons involved.  The plaintiff’s solicitors submit that it can reasonably be expected that the posting of the Documents on the plaintiff’s website and the other methods of proposed substituted service would be sufficient to bring the Documents to the attention of the defendants or would-be defendants.  Indeed, it is a fact that increasing numbers of the Hong Kong population gain their news and other information using modern forms of social media and online communication and publications, rather than traditional newspapers.

24.On that basis, it is submitted, publishing in newspapers is both duplicative and unnecessary.  The same can be said of posting the full Statement of Claim and the Kot Order at conspicuous places all across the Airport island.

25.I agree.  Any incremental benefit in effecting service by newspaper publication and physically across the entire Airport island seems to me to be wholly disproportionate to the substantial time, labour, and cost (not to mention the environmental costs) which that would entail.

26.I note that the plaintiff proposes that the Documents will be posted in full at the entrances to and within the landside areas of the Airport’s Terminal 1 building (where most of the disruptive activities previously occurred).  In addition, the Proposed Method of Service includes notices – as opposed to the full documents – to be posted at other conspicuous locations at the Airport.  Those notices will inform the public of these proceedings, and the injunction orders and consequences of breach.  Those notices will also prominently display a QR code with instructions to access the full Documents on the plaintiff’s website, where the Documents will be readily available in full in any event.

27.The use of the QR code is appropriate and proportionate.  It is a sensible use of readily available technology.  Scanning a QR code is usually performed in three simple steps, comprising (1) turning on the camera of a smart phone, (2) aiming the camera lens at the QR code, and (3) clicking the link that pops up on the smart phone screen.  No separate app is required.  The mockup of the notice exhibited to the Barton Affirmation seems to me to have clear instructions on how to access the Documents using this method.  Once access to the Documents has been obtained in this way, they can be read at the reader’s own convenience, at an appropriate location of his or her choice.  There is no need, for example, to return to the same physical location to continue reading or to re-read.  The use of a QR code is also economical, thus satisfying the underlying objectives of promoting economy and proportionality of costs.

28.I have considered whether a different approach needs to be taken as regards the Statement of Claim.  In my view, it does not. The nature of the plaintiff’s claim is evident from the writ.  The widespread substituted service and publication, and media re-publication, of the writ identifying the claim in these proceedings has not led to any defendant acknowledging service and expressing any desire to participate in the proceedings.  Once it is accepted (as I accept, and as it was also accepted by the Master) that the Proposed Method of Service is sufficient to bring the other Documents to the attention of defendants and would-be defendants, I see no rational basis for requiring a different approach to service of the Statement of Claim.

29.Though I think the Previous Method was entirely apt for effecting service of the writ, the ex parte interim injunction order and the continuation order, I also think that the Proposed Method of Service is now entirely apt and sufficient for service of the Statement of Claim and other Documents.

E.      Result

30.In the circumstances, I allow the appeal and I make the following order:

(1)     The plaintiff to have leave to serve this Order, the Statement of Claim, and all subsequent documents that require service in this action, by way of substituted service by:

(a)     posting a copy of the document or documents on the website www.hongkongairport.com;

(b)     fixing a copy of the document or documents securely at conspicuous places at entrances to and within the landside areas of the Hong Kong International Airport’s Terminal 1 building; and

(c)     exhibiting securely at conspicuous places in the Hong Kong International Airport a notice containing a QR code which would link to the document or documents posted on the plaintiff’s website www.hongkongairport.com.

(2)     Service in the manner provided for in paragraph 1 above shall be deemed to be good and sufficient service on the defendants.

31.I also make an order that service of the Notice of Appeal be dispensed with.

32.As to the costs of this Appeal, and the application before the Master, I first note that the Kot Order makes no provision for costs.  The plaintiff’s solicitors seek an order that the costs of and incidental to the appeal be in the cause, which is the relief also sought in the Notice of Appeal.  However, in the particular circumstances of these proceedings, I am not sure I see any point in making the costs of this application and the Appeal costs in the cause.  Therefore, in the exercise of my discretion on costs, I make no order as to the costs of this Appeal and the application before the Master.

Hogan Lovells, solicitors for the plaintiff