The world’s a global village, and Hong Kong is no exception to the trend of increasing mobility of people. Will this pose problems for plaintiffs who wish to sue a defendant who spends much time abroad? Will service of a writ commencing an action be valid if the defendant is not in Hong Kong? This article examines landmark and recent case law to find out.

The Basics

By Order 10 rule 1 of the Rules of the High Court, as alternatives to serving a writ personally on a defendant, a writ may be served by registered post or by insertion through a letter box to an address which the plaintiff knows to either be the last known address, or the usual one, of the defendant. These alternative methods may only be used, however, when the defendant is within the jurisdiction. The date on which the court will deem that the writ has been served on the defendant (the deemed date of service) will, according to O 10 r 1(3)(a), be seven days after the date the writ was sent or inserted through the letter box, unless there is evidence to the contrary.

Within the Jurisdiction

Since a writ commences an action against a defendant, time starts ticking after a writ is validly served and unless the defendant indicates his wish to contest the proceedings, the plaintiff may enter default judgment against the defendant after he fails to acknowledge service within 14 days after service of a writ (O 13). The Court may however set aside the default judgments, ruling that they are of no effect because of procedural irregularities – that is, that certain legal requirements as a matter of procedure were not followed to the hilt. For plaintiffs to ensure that their default judgment is regular and will not be set aside by the court, ensuring the defendant is validly served becomes crucial – especially when the defendant is constantly out of Hong Kong. Two issues arise: (1) is the defendant “within the jurisdiction” a necessary element of alternative modes of service, and (2) is there evidence to the contrary that will dissuade the court from holding that the deemed date of service should be seven days after the writ was sent or inserted through a letter box, and hence hold that service has been invalid?

A writ out of sight is a writ out of mind?

Presence and knowledge

In Barclays Bank of Swaziland Ltd. v Hahn [1989] 1 WLR 506, the Plaintiff served a writ through insertion through the letterbox of the Defendant’s address in England. The Defendant got back to England from abroad on that very day. Upon being picked up at Heathrow airport, he was being informed by his caretaker that there was a letter addressed to him. He told his wife to return to the address where she looked at the unopened letter and then both the defendant and his wife went directly to a hotel where they stayed the night and subsequently flew out of England the next day.

The issue at the House of Lords was whether service was validly effected and when. Ruling that service had been effected on the very day that the writ was served, the House of Lords held that the two requirements for valid service were firstly, that the Defendant was within the jurisdiction at the time the writ was served, and secondly that he had actual knowledge of the writ. Since the Defendant arrived in England on that very day, he was within jurisdiction when the writ was served for the purposes of Order 10. Given the Defendant’s evasive behaviour, the Court held the Defendant must have known of the contents of the letter despite not having opened it, and as for being within the jurisdiction, this was not to be construed narrowly to mean at the exact hour that the writ was being served. His actual knowledge of the writ on the very day it was served was evidence to the contrary which displaced the assumption that the deemed date of service should be 7 days after the writ was inserted into the letterbox. The date of service would therefore be the date the writ appeared in the Defendant’s letterbox.

Finding out too late

What happens when a Defendant discovers the writ after the deemed date of service, or worse, after default judgment has been entered?

Post deemed date of service

In Deng Minghui [2007] 1 HKLRD 905, the Plaintiff served the writ by inserting it into the Defendant’s letterbox at her last known address. The Defendant had by then been living in the United States for a year, and only became aware of the writ a month after the insertion, whereupon the Defendant’s solicitors wrote to the Plaintiff’s solicitors stating the former had been residing in the United States for a year, and that leave was required from the Court to serve proceedings on the Defendant abroad. Service was therefore invalid. Notwithstanding this, the Plaintiff applied for and obtained default judgment a month later. The Defendant contested the judgment and the Court held that the judgment was irregular because service was invalid. Although the Defendant knew of the proceedings a month after the writ was served, this did not detract from the Order 10 requirement that the Defendant was to be within Hong Kong when the writ was served. The Court further held that the judgment was irregular due to material non-disclosure as the Plaintiff’s solicitors had filed an affirmation in support of their application for default judgment without mentioning the letter from the Defendant’s solicitors.

Post default judgment

In Chu Kam Lun v Yap Lisa Susanto unreported, CACV 86/1999, a writ was placed into the Defendant’s letterbox when the Defendant was in Indonesia. There being no notice of intention to defend received from the Defendant, the Plaintiff obtained judgment in default. The Defendant finally knew of the writ and the judgment after it was obtained, when she was still in Indonesia. Service was held to be invalid as the Defendant had not known of the writ when it was served, much less when default judgment was entered against her.

Don’t put all your eggs in one basket

Generally, the Courts are reluctant to uphold a default judgment when it is shown that the Defendant was not within the jurisdiction when the writ was served. If the Defendant is a person who spends substantial time outside Hong Kong, Plaintiffs should consider the alternative modes like service out of jurisdiction (Order 11), or substituted service on sources close to the Defendant, for example the Defendant’s solicitors.