Su Xin and Another v. Qian Xiaochun

DCCJ 5882/2019

[2021] HKDC 1056

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5882 OF 2019

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Before:  Deputy District Judge Tracy Chan in Chambers (Open to Public)

Date of Hearing:  20 August 2021

Date of Decision:  3 September 2021

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DECISION

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Background

1.This is the plaintiff’s appeal against that the decision of Master Leung of the District Court given on 26 April 2021 refusing to grant leave for the plaintiffs to make substituted service of the Concurrent Amended Writ of summons dated 17 December 2019 (“Conqueror Amended Writ) on the defendant in the People’s Republic of China (“PRC”) by way of Public Announcement (公告送達) pursuant to:-

(a)  Articles 85 to 92 Civil Procedure Law of the People’s Republic of China[1];

(b)  Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts (“Arrangement”), see full text of Arrangement in the Annex;

(c)  Rules of District Court

2.This appeal is to be dealt with by way of rehearing.

Relevant Facts leading to the Claim

3.The Plaintiffs’ claim allegedly arose from a telephone fraud scheme by which the Plaintiffs had been deceived to make 2 transfers, each of a sum of US$90,000 into the bank account of the Defendant in Hong Kong.  The Defendant, upon investigation made by the Hong Kong police, was found to be a PRC resident and her/his whereabouts are unknown.  There was however an address of hers made known to 中国江苏常州巿天宁区国泰名筑和平苑2幢901室.

Relevant Provisions and Legal Principles on Service

4.Order 65 r4 of RDC is relevant to begin with.

“4. Substituted service (O. 65, r. 4)

(1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally or in the case of a document to which Order 10, rule 1, applies, it appears to the Court that it is impracticable for any reason to serve that document in the manner prescribed on that person, the Court may make an order for substituted service of that document.

(2) An application for an order for substituted service may be made by an affidavit stating the facts on which the application is founded.

(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.”

5.Mr Ho appearing for the Plaintiffs in this appeal relies also on Meleo Crown Gaming (Macau ) Ltd v Wong Yam Tak [2014]3 HKLRD 267 on the situations in which  substituted service could be invoked :-

“41. The rationale behind this principle arose out of the distinction between ordinary service and substituted service. Substituted service is invoked where service in accordance with the ordinary rules of service is ineffective and impracticable. Usually, this situation is brought about by the defendant providing an incorrect address inadvertently or deliberately with a view to avoid service or is caused by some conduct of the defendant which prevented effective service and for which the defendant is responsible, even if not to blame. Substituted service is to provide a practical solution to such situation to enable the proceedings to progress and to do justice between the parties in circumstances where the ordinary rules of service would prevent justice from being done. A party seeking to serve any process by substituted service has to apply to the court for leave. The court decides its propriety and the adequacy of the mode of service. Leave is only granted if the court is satisfied that it can do no more than its best, within the realm of reasonable practicability, to bring the proceedings to the notice of the defendant by the mode of service prescribed in the order. This special mode of service in compliance with an order of the court, as distinct from ordinary mode of service pursuant to rules of the court, has the sanction of the court and is therefore treated as actual, effective and valid service as a matter of practical reality.”

6.Mr Ho further submits that in case practicable steps taken to effect personal serve on a defendant fail, application could be made to the court for substituted service including service out of the jurisdiction. He emphasizes that Order 11 r 5(2) makes it clear that nothing in rule 5A or any order or direction of the court made by virtue of it shall authorise or require the doing of anything in the country or place in which service is to be effected which is contrary to the law of the country or police.

7.In relation to substituted service to be effected in the Mainland Mr Ho submits that the Arrangement and r 5A apply. She refers to Order 11 r 5A(3)(c) in particular.

“5A. Service of writ in the Mainland or Macao through judicial authorities

(1) Where in accordance with these Rules, a writ is to be served on a person in the Mainland or Macao, the writ must be served through the judicial authorities of the Mainland or Macao, as the case may be.

(2) A person who wishes to serve a writ under paragraph (1) must lodge in the Registry a request for such service, together with 2 copies of the writ and 2 additional copies thereof for the person to be served.

(3) The request lodged under paragraph (2) must contain—

(a) the full name and address of the person to be served;

(b) a description of the nature of proceedings; and

(c) if a particular method of service by the relevant judicial authorities is desired by the person making the request, an indication of that particular method.”

8.As to the particular method proposed by the Plaintiffs herein, Mr Ho relies on an affirmation made by Mr 楊全虎, a PRC lawyer, in which his legal opinion on service is given.

Evidence before the court in support of this Appeal

9.The court has the benefit of reading the following when considering this Appeal.

(a)Letter from the Supreme People’s Court of the People’s Republic of China (SPC) date May 2014

10.In this letter the SPC cited the law in Mainland governing service where the person’s whereabouts are unknown.  It was stated therein that substituted service by advertisement in newspaper was not advisable as it was not consistent with the law in Mainland.  However it went further to say that “although the Arrangement does not specifically provide for public announcement as an accepted mode of service, it is provided in paragraph 6 thereof 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. It is 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, that seems service by public announcement would appear possible for the Mainland courts to consider acceding to[2]. It went on to point out some issues on technicalities and practicalities and said that this could be sorted out by the courts in the two jurisdictions through consultation under Article 10 of the Arrangement.

(b) Letter from DoJ to the Law Society dated 29 May 2014

11.This letter was to answer questions raised by the Law Society about effecting substituted service for Matrimonial Proceedings in the Mainland[3]. The above message from SPC was relayed.

(c) Letter from the Plaintiffs’ then solicitor to Registrar of High Court dated 11 May 2020 requesting for Service of Judicial Documents in Mainland to effect service of the Concurrent Amended Writ and documents to the defendant

12.By this letter the then solicitor of the Plaintiffs requested for Service of the Concurrent Amended Writ out of jurisdiction to the Mainland[4].

(e) Letter from the Registrar of High Court to the Plaintiffs’ then solicitor dated 21 October 2020 enclosing the Return Form [p44]

13.This letter enclosed the Return Form (协助送达文书回覆书) from江苏省高级人民法院with relevant documents returned[5]. In the Return Form it was said that personal service on the defendant in case no DCCJ 5882/2019 had failed with documents returned.[6]

(e) Affirmation of 楊全虎dated 20 January 2021

14.In his affirmation Mr 楊全虎 set out the relevant provisions in the Civil Procedure Law of the People’s Republic of China.  His opinion was that according to Article 92 thereof, Public Announcement is an appropriate method permitted under the law in the present case for the purpose of effecting substituted service on the Defendant[7].

(f) 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”

15.Mr Ho further relies on an article published by SPC as named above. It was stated in the article that:-

“No provisions on disallowing service of proceedings has been stipulated in the Arrangement. The main consideration is that service is merely a matter concerning delivering of the relevant papers from one judicial authority in one jurisdiction to another judicial authority in another jurisdiction, which does not constitute recognition of the legal proceedings and the judgements rendered thereon. Thus, when a request for service has been received, in particular the Court should not refuse such request, unless special circumstances exceeds such as the address to be served is unknown ….

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 the Hong Kong Special Administration Region, service by way of Public Announcement should be made, as a final means to confirm service of proceedings.” (see Annex for text in full)

Decision

16.Having read the above documents and hearing submissions of Mr Ho, the court is satisfied that:-

(a)  Public Announcement is a prescribed mode of service in the Mainland and is not excluded by the Arrangement;

(b)In a letter dated in May 2014, SPC gave its view that on acceptability of service by public announcement and suggested that issues in practicalities, if any, could be resolved by consultation between the courts in the two jurisdictions.

(c)  The Defendant is a PRC resident with a last known address at Room 901, Block 2, Guotai Mingzhu, Heping Yuen, Changzhou, Jiangsu, People’s Republic of China (中国江苏常州巿天宁区国泰名筑和平苑2幢901室).

(d)Pursuant to the Arrangement and the request made by the High Court of Hong Kong, SPC had endeavoured to assist in effecting service on the Defendant at the above address on 27 July 2020 but to no avail as the Defendant no longer resided there and his whereabouts were unknown.

17.For reasons set out in the above, this appeal is allowed.

18.Order:

(1)  Service of the Plaintiffs Amended Writ of Summons dated 17 December 2019 and all subsequent documents of this action on the Defendant be substituted by posting a notice of these proceedings once with copies of the same documents as a Public Announcement on the bulletin board of the People’s Court Tianning, Changzhou, Jiangsu, People’s Republic of China; such service shall be done through proper procedures under the Arrangement;

(2)  Time for service of the Amended Writ of Summons in this action to the defendant be deemed to be 60 days after posting of the said notice at the location provided in paragraph 1 above; and

(3)  There be no order as to costs of this appeal and the application before the master.

Mr Leung Sze Lum, instructed by Au Yeung, Cheng, Ho & Tin, for the 1^st and 2^nd plaintiffs

The defendant acting in person, being absent

Annex