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New Normal in the Substituted Service of Court Documents in Hong Kong
13 April 2021

When proceedings are commenced in Hong Kong, it is a general procedural requirement that the Plaintiff must effect personal service of the originating process, i.e. a writ of summons or an originating summons, on the Defendant. Since the beginning of the COVID-19 pandemic, due to quarantine requirements or other travel or border restrictions, personal service of court documents in Hong Kong has become even more difficult.

Substituted Service where Defendant Cannot be Found

What happens if a Defendant is an individual whose address in Hong Kong is unknown, cannot return to Hong Kong due to travel or border restrictions, has to stay in quarantine, or has absconded after committing the wrongdoing and thereby making personal service impracticable ?

The law recognizes the practical difficulties of service in such situations and allows an alternative way of service by way of substituted service. Order 65 rule 4 of the Rules of the High Court (Cap 4A) provides that the Court may make an order for substituted service where it appears to the Court that for any reason, it is impracticable to serve any document required to be served personally on the Defendant.

To make an application for substituted service, the Plaintiff must satisfy the Court that (1) personal service is impracticable because personal service on the Defendant was attempted but failed and that the Plaintiff has exhausted all reasonable means to personally serve on the Defendant, and (2) the proposed mode(s) of substituted service can reasonably likely bring notice of the proceedings to the Defendant.

Where the Defendant’s address is unknown / cannot be located but there is evidence tending to show that the Defendant may still be within Hong Kong, substituted service by way of publication of the proceedings on newspapers widely circulated in Hong Kong is commonly ordered by the court.

In the case of an individual who has absconded to overseas but is known to the Plaintiff that he has legal representatives in Hong Kong and that the Defendant may be contactable through the legal representatives, service on the legal representatives in Hong Kong may be proposed in the substituted service application, which mode of substituted service has in some previous cases been held by the Court to be valid substituted service.

Novel Modes of Substituted Service by Electronic Means

However, whilst it is observed that Order 65 rule 4 does not expressly prescribe any specific modes of substituted service / prohibit certain modes of substituted service, the Hong Kong Courts tend to prefer traditional modes of substituted service such as by postal mail or advertisement. On the contrary, substituted service through electronic means, such as email, Facebook or WeChat, which are now prevalently in use and in some cases may be the only known contact information of the Defendant, had been rejected by the Court. This may leave little to no viable option for the Plaintiff to serve the proceedings in order to pursue the claim.

However, in the recent High Court case of Zhuhai Gotech Intelligent Technology Co Ltd v Persons Unknown (HCZZ 10/2020), where the Plaintiff was victim of certain Facebook pages operated by unknown persons passing off pirated satellite television subscription services provided by the Plaintiff, the Court has, for the first time, allowed substituted service through the novel mode of sending soft copies of the Court documents to the Defendants via Facebook messaging.

Granting the order of substituted service through Facebook messaging, the Court in the above case recognized, among other things, that (1) Order 65 rule 4 could empower the Court to allow substituted service by electronic means even in the absence of express wording allowing it; (2) the Defendants could otherwise not be served without the Plaintiffs incurring great costs in seeking the identity and contact information of the Defendants; and (3) the previous case of Deacons v Stanley Wu (unrep., DCCJ 1133/2010, 16 July 2010) where the proposed mode of substituted service by email was rejected was decided 10 years ago and should be distinguished from this case because the technology was still at a premature stage at that time.

The Zhuhai Gotech Intelligent case may therefore mark the beginning of a paradigm shift of the Court’s attitude from only allowing traditional modes of substituted service to embracing novel modes of substituted service through electronic means or social media platforms, riding the waves of technology and adapting to changes in society.

In light of the above, where the Plaintiff has made efforts to locate and personally serve the Defendant but in vain, the Plaintiff may now have the additional recourse to search for the Defendant’s social media accounts and apply for substituted service on the Defendant via messaging on such social media platforms.

It is noted however that as this is still an early stage of development in the jurisprudence of such new modes of substituted service, whilst Plaintiffs and claimants may now have the choice to apply for these new modes of substituted service, traditional mode(s) of substituted service are still encouraged to be proposed as alternatives in the substituted service application to increase the likelihood of success.

If you have any questions on the above eNews or require advice on dispute matters, experience lawyers in our Litigation and Dispute Resolution team will be happy to assist you.

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