Saif Partners Ii L.p. And Another v Joe Zhixiong Zhou

HCMP 208/2020

[2020] HKCFI 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 208 OF 2020

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D E C I S I O N

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1. This is the Plaintiffs’ ex parte application for (a) dispensation of personal service in respect of their contempt proceedings against the Defendant (“Zhou”) by way of an Originating Summons filed on 10 March 2020 (“OS”); and (b) substituted service on Zhou of the relevant papers for the contempt proceedings by way of service on his solicitors (“MinterEllison”). Zhou resides in the US. This application is necessitated by Zhou’s refusal to accept service of the contempt proceedings on his solicitors.

2. The alleged contempt arose from Zhou’s breach of a Disclosure Order granted by Deputy High Court Judge Field in HCCL 16 of 2016.

3. Shortly before the submission of this ex parte application to the court on 8 May 2020, the court was made aware of a Summons dated 7 May 2020 taken out by Zhou, acting via MinterEllison, in HCCL 16 of 2016 to set aside an ex parte Order of DHCJ Field dated 5 February 2020 (“Order”) granting leave to commence these contempt proceedings.

4. On the evidence before the court, there is little room to doubt that Zhou is well aware of the contempt proceedings and is using the rules of the court for game playing so as to frustrate the progress of the same. Back in September 2019, represented by Senior Counsel and MinterEllison, Zhou succeeded in resisting an application by the Plaintiffs for him to serve a further affirmation in proper compliance with the Disclosure Order. That application was dismissed upon the Plaintiffs’ undertaking to make an application for leave to commence contempt proceedings. Hence, the intention of the Plaintiffs to bring contempt proceedings against him must have been known by Zhou then.

5. After issuing the OS[1], the relevant papers were served on MinterEllison by the Plaintiffs with a request of confirmation whether they would accept service on behalf of Zhou. By their response dated 18 March 2020, MinterEllison stated that they did not have instructions to accept service.

6. The fact that Zhou has now sought to challenge the Order further confirms that he is quite aware of these contempt proceedings.

7. By a set of directions in respect of both sets of proceedings (the OS and the setting aside application in HCCL 16 of 2016), the papers for this ex parte application were served on MinterEllison and the Defendant was required by the court to indicate whether he maintains his refusal to accept service of the contempt proceedings on his solicitors. No reply was received by the court from either MinterEllison or the Defendant.

Dispensation of personal service

8. In respect of the dispensation of personal service, O 52, r 3(3) requires that the OS and the supporting documents must be served personally on the Defendant, unless such service is dispensed with by the court (r 3(4)).

9. O 11, r 9(1) provides that O 11, r 1 shall apply to the service out of jurisdiction of an originating summons. However, there is no apparent gateway under O 11, r 1 for the service out of contempt proceedings brought to enforce procedural orders as opposed to judgments[2]. This lacuna had been noted in Hong Kong Civil Procedure 2020, vol 1, [11/1/4F]. According to the Plaintiffs’ submissions (represented by Mr Pao SC, and Mr Tang), there is no case law in Hong Kong discussing the applicable gateway to serve out contempt proceedings.

10. The case of Navig8 Chemical Pools Inc v Inder Sharma, unrep, HCMP 2885/2016, 14 February 2017, was referred to in the above commentary of Hong Kong Civil Procedure. In that case, leave to serve a concurrent originating summons out of jurisdiction was granted by a Master pursuant to O 11, r 1(m).

English authorities

11. On this topic, there are helpful authorities from England, where the procedural regime is different but sufficiently similar to that of Hong Kong.

12. In Marketmaker Technology Ltd & Ors v CMC Group Plc & Ors [2008] EWHC 1556 (QB), the claimants brought an application for injunctive relief against the defendants. As a result of various improprieties on the part of the claimants in pursuing the application, a number of court orders had been made against them (§3). The defendants then sought to commit one of the claimants, who was a PRC resident, for contempt relating to his breach of one such orders. At that point, the PRC claimant’s English solicitors ceased to act. As the PRC claimant did not have an English address, the defendants sought and obtained an order for alternative service and dispensation with personal service (§§16-17, 30). At the hearing of the contempt, the PRC claimant argued that the court lacked jurisdiction, and sought to set aside the order for alternative service on the basis that in so applying no permission was sought for service out of jurisdiction (§24).

13. Teare J dismissed the application to set aside on the following grounds :

“26 … [the PRC claimant] submitted to the jurisdiction of this court the determination of his claim. Having done so, [he] submitted to the incidents of such litigation … Thus, had the defendants wished to bring a counterclaim against [the PRC claimant], they could have done so without the need to obtain permission to serve the counterclaim out of the jurisdiction. The defendants have not brought a...