MIA Defendants and How to Serve Them Court Documents: Substituted Service in Hong Kong

As I have been working on more litigation cases since I qualified, I have come to realise a common theme I see with some defendants in these litigation cases – some tend to disappear from the face of the earth once they anticipate that legal proceedings are being initiated against them.

So, how do we go about serving these “runaway” defendants their documents?

Authors: Kelly Leung, Associate Solicitor | Yanka Wong, co-author and intern

Ordinary service for individual defendants

For context, when court proceedings are commenced in Hong Kong, it is procedurally required for the Plaintiff to serve court documents to the Defendant. Generally, after the issuance of the court notice and the start of legal proceedings against the Defendant, court documents must be served on the Defendant within a specific timeframe. 

As outlined in Order 65 of the Rules of the High Court (Cap. 4A), court documents are usually served via ordinary service, which includes:

1. Personal service, where legal documents are handed to the Defendant directly

2. Inserting in a letterbox, if the proper address for service includes a numbered box

3. Service by post / registered post, sent to the Defendant’s last known address

Sometimes you may encounter defendants that are corporate bodies and companies - they follow a slightly different procedure and may mainly be served through these two alternative ways:

1. Representatives

   Unlike individual defendants who receive court documents directly, body corporates can have authorized representatives take care of legal paperwork. This means you can serve documents to key people like the chairman, president, clerk, secretary, treasurer, or others in similar roles.

2. Service Address

   Instead of using the individual Defendant’s residence or usual address, court documents for corporations are usually served at the registered address of the company.

Substitute service methods are available to serve defendants who cannot be located

The Rules of the High Court (Cap. 4A, Sub.Leg.) allow courts to use alternative ways to serve documents, known as substituted service (or sub-service). This means Plaintiffs can try different methods if the usual ones aren’t working.

If you can show the court that all ordinary ways were attempted reasonably to serve the Defendant with their documents and none were successful, the court might agree to let you use a different approach. Provided your suggested method is likely to get the Defendant informed about the proceedings, you are good to go!

Below are common methods of substituted service:

1. Newspaper Publications

   You can advertise legal proceedings in newspapers. For example, in the case of Chan Yeuk Mui v Ng Shu Chi (1999), the court decided that the Defendant was effectively served by publishing a notice in the Sing Tao Daily, a popular Chinese newspaper.

2. Messaging Apps

   Thanks to technology, you can now use apps like WhatsApp, WeChat, and Facebook for serving documents. In a case we handled, the judgment debtor was dodging service, and all our registered mail came back undelivered. The court ended up allowing us to serve the Defendant via WhatsApp and email since we could prove we had the Defendant’s valid phone number and email address.

3. Email

   You can send legal documents as attachments to an email address linked to the Defendant. In some internet fraud cases we handled, we found that the Defendant’s registered office address was either invalid or did not exist at all. Since the Defendant had been emailing us throughout the case, the court allowed us to serve them via email.

Next steps after Substituted Service if the Defendant Remains Missing

Our job is to ensure that all court documents are delivered to the Defendants' last known or registered address. If they still decide to remain in hiding, it is beyond our control. But if we can prove to the court that we served the papers nevertheless, that they did not bounce back, and that we reasonably believe the Defendant is aware of the papers – then this is often sufficient for the court to grant an order and proceed in the case.

Takeaways and Advice

For those cases where ordinary service methods prove unsuccessful, and substituted service is considered, we note that Hong Kong courts usually prefer traditional methods of substituted service, like newspaper ads or registered mail, over electronic communication. Even though more innovative options are available, the courts have been less receptive to these modern changes, which can limit the Plaintiff's ability to serve documents.

While these decisions are ultimately up to the court’s discretion, we hope they continue to stay open-minded and approve more substituted service methods in the future. Embracing electronic communication tools can help streamline the legal process and improve our chances of reaching those “runaway” defendants, even in tricky situations!

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Disclaimer: Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.

For specific advice about your situation, please contact:

Kelly Leung 

Associate Solicitor

+852 2388 3899

kleung@rs-lawyers.com.hk