DEACONS v. STANLEY WU CHEN KUO

DCCJ1133/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1133 OF 2010

_________________________

BETWEEN

_________________________

_________________________

D E C I S I O N

_________________________

1.  The applicant is the plaintiff in this action. The applicant appealed against the order of Master Pang of 22 June 2010, dismissing the application to effect substituted service of the amended writ of summons on the defendant by email and by inserting a copy of the amended writ of summons into the defendant’s letter box at his residential address.

2.  The plaintiff claimed against the defendant for unpaid charges for professional legal services rendered. The evidence in support of the application was set out in the two affidavits filed on behalf of the plaintiff by Mr Phillipp Hanusch on 24 May 2010 and 1 June 2010. They deposed that the plaintiff was unsuccessful in effecting service in person on the defendant at his residential address as no one answered the intercom or the doorbell. The affidavits further deposed that on enquiries made with the watchman, the server was told the defendant was out of Hong Kong, the watchman confirmed the residential address was indeed the defendant’s residence in Hong Kong.

3.  Upon these unsuccessful attempts made to effect service under Order 10 rule 1 of the Rules of District Court by personal service, the plaintiff deemed that service by insertion of the amended writ into the letterbox of the defendant’s residential address under Order 10 rule 1(b) or rule 1(a) by registered post to be futile as the plaintiff had no knowledge when the defendant would be in Hong Kong.

4.  The last communication, according to the supporting affidavit, between the defendant and the plaintiff’s Mr Shaw, was in the form of an email from the defendant on 9 April 2010 at 1.28 pm on the subject of unpaid invoice. The defendant informed Mr Shaw that he had been on a trip to the USA. This perhaps indicated he was back in Hong Kong at the time of the email, however, since the communication was made through a gmail account, it is unknown where exactly he was at the time, in Hong Kong or overseas.

5.  Based on this email, the plaintiff believed such mode of communication would be most appropriate in bringing the writ to the notice of the defendant. In addition, the plaintiff proposed to insert a sealed copy of the amended writ into the letterbox of the defendant’s residential address in Hong Kong. This application is made under Order 65, rule 4.

6.  I have no doubt when the plaintiff has no knowledge when the defendant would be in Hong Kong, service under Order 10 rule 1 would be impracticable. Hence, the alternative is to effect substituted service. The question is whether service by email can be regarded as an effective means of substitute service.

7.  Mr Shaw argued that there is no provision in the Rules of District Court suggesting email is not an acceptable mode of substitute service, and he believed that this is the means that would reach and bring the writ to the defendant’s notice. He referred to one English and an Australian authority. The first case is the case of Walter Rau Neusser v Cross Pacific Trading Limited [2005] FCA 337 where the Federal Court of Australia ordered sub service on a number of respondents. The application, the notice of motion, supporting affidavit and the orders by fax and email on top of service to various addresses, and these including addresses in New South Wales, Fiji and the Solomon Islands.

8.  In the second case of Novartis Pharmaceuticals v Stop Huntington Animal Cruelty [2009] EWHC 2716, the High Court of Justice in the U.K. ordered substituted service of an injunction order on the three representatives of the defendant who had been imprisoned for an offence in connection with the defendant’s campaign against a corporation involving life science research.

9.  Mr Shaw further relied on Chu J’s decision in the Hong Kong Court of First Instance case of Questnet Limited v Kurt Georg Rocco Rinck [2008] HKEC 1108 where the plaintiff sent the prohibition order and Mareva injunction order by email to the 2nd defendant’s email address. The email address was said to have been used in their previous communications. Chu J in the contempt proceedings against the 2nd defendant for breach of the injunction and prohibition orders held that the orders, though not served in person nor was the defendant in court when they were made or was he notified by telephone or telegram (which are the prerequisites to enforcement under Order 45 rule 5 and Order 45 rule 7 of the Rules of the High Court) held that the 2nd defendant was aware of the injunction order and the penal consequences of the breach of the order. In fact, she had drawn inferences from the fact that an SMS text message and email of the prohibition order had been sent to the 2nd defendant by the plaintiff, and there had been exchanges between the 2nd defendant and the plaintiff at a meeting subsequent to the orders being made, and that the 2nd defendant had been present at a previous court hearing where the possibility of an injunction order was raised.

10.  The Questnet case is an unusual case involving contempt procedure, and the rules under contempt procedure allow the court to make and draw inferences of the communication by email. In fact, Order 45, rule 5 and 7 allow the court to dispense with the service of the order. The inference drawn by the court in that case of the communication by email can hardly be considered as the court’s endorsement of this mode of service, or that this mode or the means of sub service can be used as or regarded as proper means of sub service.

11.  No doubt with the increasing use and reliance on electronic communications these days, it would be pedantic to ignore its applications in the commercial world. However, this means is still not regarded as and considered to be a safe and secure means of communication in the formal and proper sense for obvious reasons.

12.  Based on the aforesaid, I am not satisfied substituted service should be effected by means of sending a sealed copy of the amended writ to the two email addresses on the defendant. I would allow substituted service on condition that the substituted service be effected by placing an advertisement in the South China Morning Post and, in addition, the plaintiff may send a sealed copy of the amended writ to the defendant’s residential address by insertion into his letter box and by sending a copy of the amended writ to the two email addresses.

(Discussion re authorities and costs)

13.  Costs reserved.