THE NATIONAL TRUST LTD v. TAHOE INVESTMENT GROUP CO., LTD AND OTHERS

HCMP 2301/2020

[2021] HKCFI 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2301 OF 2020

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DECISION

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1.  This is the application by the plaintiff (“P”) seeking substituted service on the 1^st defendant (“D1”) of the Concurrent Originating Summons, together with all papers relating to the injunction applications (a) on King & Woods Mallesons (“KWM”) in Hong Kong or alternatively (b) on the 2^nd defendant (“D2”) and/or the 3^rd defendant (“D3”).

2.  D1 is a company incorporated in the Mainland.  On the question of service, Order 11 rule 5A applies.

3.  D2 and D3 are wholly owned subsidiaries of D1.  KWM have been acting for D2 and D3 in these proceedings.

4.  On the evidence before me, I have little doubt that D1 is aware of these proceedings.

5.  However, in order to obtain an order for substituted service under Order 65 rule 4, it remains necessary for P to satisfy this court that “it appears … that it is impracticable for any reason to serve that document in the manner prescribed on that person”.

6.  As revealed by the letter of 19 February 2021 from the Registrar of the High Court to P’s solicitors:

 (a)  The Registrar has taken steps to effect service of the process and the related documents upon D1 via the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts (the “Arrangement”);

 (b)  Upon receipt of the letter of entrustment, the entrusted party shall effect service promptly, and, in any event, not later than two months from the date of the letter of entrustment is received;

 (c)  After effecting the service, the relevant Mainland People’s Court will issue a return form on the service and post it to the High Court;

 (d)  The letter of entrustment and the documents to be served were posted on 18 January 2021;

 (e)  As at 19 February 2021, the return form on the service from the Fujian Higher People’s Court has not been received.

7.  On the evidence, 2 months have not even elapsed after the postage of the letter of entrustment.  There is nothing at this stage which suggests that service pursuant to the Arrangement is impracticable;

8.  P relies on SAIF Partners II LP & Anor v Joe Zhixiong Zhou [2020] HKCFI 987.  That case is factually different.  There, the defendant was in the US.  Anthony Chan J found that there was a strong inference of game playing, if not evasion of service by the defendant.  His Lordship was satisfied on the evidence that it was not practicable to effect the necessary service in the US when D had solicitors in Hong Kong actively pursuing various applications on his behalf.

9.  China Shanshui Cement Group Limited & Ors v Zhang Caikui & Ors (HCA 2880/2015, 17 February 2016) (being one of the Shanshui lines of cases) is the other case which P relies on.  That case is again factually very different in terms of the background facts leading to the application for substituted service, the nature of the process sought to be? served, and the state of legal representation of the defendant.

10.  P might not have been co‑operative on the question of service.  That however is not to be equated with impracticality of service.  This is particularly so given the fact that the letter of entrustment was only posted on 18 January 2021, and service pursuant to the Arrangement appears to be in progress.

11.  I also take into account the following two matters in exercising my discretion against the application:

 (a)  In the present case, P accepts that there is no “absolute urgency in justifying an ex parte interim‑interim injunction against D1”; and

 (b)  P further accepts that KWM are not solicitors on record acting for D1 in any proceedings in Hong Kong.

12.  In the circumstances, I refuse the application.

13.  KWM have been notified of the application.  They do not enter appearance. I make no order as to costs.