Arrangement for mutual service of judicial documents in civil and commercial cases between Hong Kong and Macao came into force on 1 August 2020

By virtue of the Rules of the High Court (Amendment) Rules 2020 and Rules of the District Court (Amendment) Rules 2020, the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Cases between the Hong Kong Special Administrative Region and the Macao Special Administrative Region (Arrangement) came into force on 1 August 2020. Under the Arrangement the Hong Kong and Macao courts may entrust each other with the service of judicial documents.

Service of judicial documents in Macao prior to 1 August 2020

Prior to 1 August 2020, there were no official channels for making requests for service of judicial documents by the HKSAR to Macao and litigants had to arrange service of such through private channels, for example, by engaging lawyers in Macao to serve them.

This situation was not satisfactory, as such private channels could be subject to legal challenge before the court. It was therefore desirable to provide for certainty by way of amendments to the Rules of High Court and Rules of District Court to enable litigants to use an official means to effect service.

The Arrangement

The Arrangement largely follows the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts signed by the Supreme People’s Court and the High Court of Hong Kong in January 1999.

The Arrangement contains the following key provisions:-

• It applies to civil and commercial cases, including civil labour cases with respect to Macao and claims under the jurisdiction of the Labour Tribunal with respect to Hong Kong.
• Requests for service of judicial documents are to be made through the Court of Final Appeal of Macao (Macao Tribunal de Ultima Instancia) and Hong Kong’s High Court (Court of First Instance);
• With respect to Macao, judicial documents include (but are not limited to) duplicate copies of originating process, answer, counterclaim, notice of motion of appeal, statement, defence, declaration of objections, statement of objections, application, withdrawal of action, admission of claim, settlement, inventory of property, list of property division, proposal for settlement, creditor agreement, summons, notice, judge’s instructions, court order, court’s leave, judgment, ruling of full bench, certificate of service, as well as other judicial documents and their attachments;
• With respect to Hong Kong, judicial documents include duplicate copies of originating process, notice of appeal, summons, pleading, affidavit, judgment, decision, ruling, notice, court order, certificate of service, as well as other judicial documents and their attachments;
• When requesting service of judicial documents, the requesting party has to produce a sealed letter of request in Chinese, setting out the title of the requesting party, name and address of person to be served and nature of the case together with any particular method of service required and setting out the judicial documents attached to it, which must also be in Chinese or accompanied by a Chinese translation.
• The requested party carries out service in accordance with the laws of its jurisdiction;
• The court of the requested party must endeavour to complete service within 2 months of receipt of the request.
•  After service, the court of the requested party must issue a sealed certificate of service;
• If service cannot be effected, the requested party must state the reasons for non-service on the certificate of service, or where acceptance of service is refused, the reasons and date of refusal.
• The requested party shall have no legal responsibility for the contents of and any consequences arising from the judicial documents requested to be served

With the close involvement of Hong Kong companies in construction projects in Macao, be it as a contractor or supplier, the Arrangement will provide an alternative means of service of Hong Kong court documents in Macao.  The advantage of the Arrangement is that it can avoid legal challenges on service of court documents via private channels.  The disadvantage is that it could take up to 2 months to serve the court documents.  From our experience in disputes in foreign projects, parties have sometimes used both the official and private channels to effect service of court documents.