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Authored by: Genevieve Lam
Hong Kong has a number of mutual arrangements with Mainland China for judicial assistance for civil and commercial cases. The Mutual Service of Judicial Documents in Civil and Commercial Proceedings between the Mainland and Hong Kong Courts (Arrangement) provides an official channel for Hong Kong to make requests to the Mainland for service of judicial documents in civil and commercial proceedings.
In a recent telephone fraud case, Su Xin & another v Qian Xiaochun  HKDC 1056, the Hong Kong District Court granted the Plaintiffs leave to make substituted service of the Concurrent Amended Writ on the Defendant in the Mainland by way of public announcement.
The Plaintiffs’ claim arose from a telephone fraud scheme, by which the Plaitniffs had been deceived into making two money transfers into the Defendant’s bank account in Hong Kong. Upon investigation by the Hong Kong police, the Defendant was found to be a Mainland Chinese resident with a last known address in the Mainalnd. However, his/her whereabouts were unknown.
This was the Plaintiffs’ appeal against the Master’s decision refusing to grant the Plaintiffs leave to make substituted service of the Concurrent Amended Writ on the Defendant in the Mainland by way of public announcement pursuant to:-
(1) Articles 85 to 92 Civil Procedure Law of the PRC;
(2) the Arrangement; and
(3) Rules of District Court.
When considering the appeal, the Court had the benefit of reading the following documents:-
The Court allowed the appeal, holding that public announcement is a prescribed mode of service in the Mainland and is not excluded by the Arrangement. Therefore, if such service is specified by the High Court of Hong Kong in its request pursuant to the Arrangement, service by public announcement is possible for the Mainland courts to consider acceding to.
An order was made that service of the Plaintiffs’ Amended Writ and all subsequent documents in the action on Defendant be substituted by posting a notice of the proceedings once, with copies of the same documents as a public announcement on the bulletin board of the People’s Court Tianning, Changzhou, Jiangsu in Mainland; such service to be done through proper procedures under the Arrangement.
This judgment usefully confirms that in circumstances where a defendant to proceedings who is resident in Mainland China cannot be located, public announcement is a prescribed mode of service of the writ on the defendant and is not excluded by the Arrangement.
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