Au Kwok Hung v. Ntk Technologies (HK) Ltd and Another

HCMP 737/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 737 OF 2008

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Before:  Hon Barma J in Chambers (open to public)

Date of Hearing:  20 May 2009

Date of Decision:  20 May 2009

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D E C I S I O N

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1.This is an application by the Applicant in these proceedings for an order giving directions as to the manner in which a previous order of this court made on 2 April 2009, requiring the 1st and 2nd Respondents to these proceedings to provide certain documentation relating to the financial affairs of the company which is the subject matter of these proceedings, which does not appear to have been complied with, or at least not fully complied with as at this point, should be carried into effect.

2.The Applicant is anxious to secure the documentation in question, not least because it is required for the purposes of other proceedings which the Applicant has brought against the Respondents concerning the winding up of the company on the just and equitable ground.

3.The difficulty that the Applicant has encountered is that it is proving difficult for the Applicant to enforce the order that has been made on 2 April 2009, because it is unable to serve a copy of that order with a penal notice endorsed on it on the 2nd Respondent personally.  Of the two Respondents, both of whom are shareholders in the company and directors of the company, the 1st Respondent is itself a limited company, whereas the 2nd Respondent is a natural person.

4.Since obtaining the order of 2 April 2009, the Applicant has sought to serve it personally on the 2nd Respondent.  The steps that the Applicant has taken include seeking to ascertain the residential address of the 2nd Respondent by carrying out a company search in respect of the company, which shows the 2nd Respondent to be a director of the company and states an address which is said, as required by the form, to be a residential address of the 2nd Respondent.  However, when attempts were made to serve the 2nd Respondent with the relevant order at that address, it was discovered that the 2nd Respondent was not present at that address at the time, and moreover, that it was in fact the registered office of the company.  Photographs that were taken at the time appear make it perfectly clear that the address is not a residential address at all, but is in fact office premises, and there would therefore appear to have been a failure to provide a true residential address as required for the purposes of the annual return.

5.On finding that it was not possible to serve the 2nd Respondent at the so-called residential address stated in the annual return of the company, the solicitors for the Applicant wrote to the solicitors acting for both the 1st and 2nd Respondents, requesting that a residential address or an address at which service could be effected on the 2nd Respondent should be provided.  The response that was forthcoming shortly afterwards was that it was intended that an address would be provided as soon as possible.  However, despite the lapse of more than one month, no further communications have been forthcoming which have provided any address at which the 2nd Respondent can be served with the order personally.

6.One other matter that has been stated in the affirmation in support of this application is that the Applicant has made inquiries of the staff of the 1st Respondent and has sought to locate an address for the 2nd Respondent through the telephone directory and directory listings, but has been unsuccessful in obtaining any address at which the 2nd Respondent can be served with the relevant order.

7.Mr Law, who appears for the Applicant today, submits that in these circumstances it is clear that personal service on the 2nd Respondent is impracticable and that the 2nd Respondent should, in the circumstances, be regarded as seeking to evade service of the order upon him.

8.Mr Ho, who appears, as he has done in the past, for both the 1st and 2nd Respondents, has submitted that the court should not infer that there has been any attempt to evade service because what he describes as the usual steps that are taken when seeking to effect personal service have not all been taken by the Applicant.  In particular, Mr Ho relies on the fact that the Applicant has not sought to set up an appointment at which the documents could be served on the 2nd Respondent by leaving a letter proposing such an appointment at the address for the 2nd Respondent that is stated in the annual return of the company.

9.With respect, I do not think that this is invariably a step that has to be taken.  Each case depends on its own facts, and in this case, the position is rather different from the case in which personal service of, for example, a bankruptcy petition is sought to be effected.  In cases such as those, there will often be relatively little contact between the person proposed to be served and the petitioner prior to the attempts to effect service.  In those circumstances, where the petitioner has knowledge of one or more addresses at which it may be possible to serve a petition on a proposed respondent to a bankruptcy petition, it is perfectly reasonable to require the petitioner to make attempts to obtain an appointment for service by leaving letters proposing such an appointment at all addresses which it has available.

10.But that is not the situation here.  Quite apart from the fact that the only address which the petitioner now has, which is said by the 2nd Respondent in the annual return to be his residential address, has proved not to be a residential address at all, and was an address at which the 2nd Respondent was not present and could not be found, the fact is that the 2nd Respondent is in fact represented by solicitors in these proceedings who, in taking instructions for the 1st and 2nd Respondents, must necessarily be taking instructions from the 2nd Respondent as the only natural person who is in a position to give such instructions.  They must therefore be in communication with him, and having received a request for an address for service, it seems to me that that request serves the same function as the letter that might otherwise be written proposing an appointment to be made for the purpose of effecting service which might be necessary in other cases where there is no other means of communication with a respondent.  It is of course reasonable to expect that it would be appropriate for a petitioner or applicant to propose an appointment by leaving a letter to that effect at all known addresses of the respondent, but where the applicant is aware of other means of communication with the respondent, such as through his solicitors, it seems to me that a request of a similar nature such as was made in this case for an address at which personal service could be effected would serve the same purpose and have the same effect.

11.In those circumstances, it does seem to me that the Applicant has taken sufficient steps to attempt personal service on the 2nd Respondent, and on the basis of the material before me, I think that it would be proper to infer that the 2nd Respondent, in presumably choosing to decline to provide an address at which service can be effected, although notwithstanding that he must know through his solicitors that it is desired to effect personal service on him, is sufficient material on which the court can, and I think in this case should, infer that the 2nd Respondent is seeking to evade personal service of the order upon him.

12.In those circumstances, it does seem to me that it would be appropriate to dispense with personal service of the order and to direct instead that service of the order on the 2nd Respondent for the purpose of any attempt to enforce it by way of committal or similar proceedings may be made in some other way.

13.It seems to me in this case that there are two ways in which this could be done.  The first would be to leave a copy at the stated residential address of the 2nd Respondent according to the company’s annual return, and the second is for a copy of the relevant order to be served on the 2nd Respondent by serving a copy upon his solicitors who are on the record for him in these proceedings, and I would propose to direct that both of those means of, in effect, substituted service, be attempted and undertaken before any further proceedings may be taken.

Mr Law Ka-chun, David, of George YC Mok & Co, for the Applicant

Mr Ho Chi-kit, of Katherine YW Or & Co, for the 1st and 2nd Respondents