Eugene Kwok of Prince’s Chambers looks at substituted service of Hong Kong process by way of public announcement in mainland China (basically you can’t, at least for the time being)

After Hong Kong’s return to the People’s Republic of China (PRC) in 1997, the Hague Convention* could no longer apply for service of process between Hong Kong and the PRC. To fill the gap, on 14 January 1999, the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings was signed by the PRC and Hong Kong courts. Order 11, rule 5A was added to the Rules of the High Court to implement the Arrangement in Hong Kong. Basically, where a Hong Kong writ is to be served on a person in the PRC, it must be served through the judicial authorities of the PRC.

In Deutsche Bank AG v Zhang Hong Li [2016] 3 HKLRD 303, the Court of Appeal noted (at §66) that Article 92 of the PRC’s Civil Procedure Law allows, where the whereabouts of the person to be served is unknown or service is not possible by other means, for process to be served by public announcement.

Public announcement would appear to be similar to the concept of substituted service by way of advertisement in local newspapers. Substituted service may be ordered if it is impracticable to effect personal service and the proposed method of substituted service is likely to bring notice of the writ to the defendant’s attention. Advertisement would likely be the last resort.

However, in Su Xin v Qian Xiaochun [2022] HKDC 156, the District Court noted (at §5) that the Supreme People’s Court (SPC) had, in May 2014, indicated that as the Arrangement made no express reference to service by “public announcement” and given the special nature of this method of service, the matter should be considered further by the High Court and the SPC through consultation. The District Court therefore set aside an earlier order for substituted service by way of public announcement in the PRC, stating (at §7):

“So, although, in principle, such mode of service is possible, there is no evidence indicating that the technicalities and practicalities have been sorted out, in particular, consultation has taken place between the Hong Kong High Court and the SPC as required.”

Although there does not appear to be any formal announcement of this, plaintiffs attempting to apply for substituted service by way of public announcement in the PRC have apparently been informed by the court registries that such applications are not at present being entertained.

It is not known when consultation between the High Court and SPC will take place.

On a side note, of interest is the recent decision of Yin v Wu [2023] VSCA 130 where the Court of Appeal in Victoria, Australia refused to enforce a PRC judgment against an Australian defendant on the basis that the defendant did not have notice of the PRC proceedings (which were served by way of public announcement in the PRC) and thus those proceedings were contrary to natural justice. The Court of Appeal noted that it was not clear whether the plaintiff had informed the PRC court that there were alternative means of giving notice to the defendant (by Twitter, WhatsApp and Telegram) before seeking service by public announcement (and it would appear that the defendant was not in the PRC at the time of the PRC proceedings and when the public announcement was made in the PRC). There is a great post by David Smallbone (who was counsel for the defendant) here that summarises this case.

* Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters signed at The Hague on 15 November 1965.