We ain’t building rockets here. But we are building a ship, or sorts, and a leaky ship makes it tough to get your cargo to its destination. To make it in Hong Kong, you also need a highly sophisticated motor scooter, and if the bad guys are coming after you with a helicopter, you want a legendary martial arts film star helping you out (no, I don’t mean Jackie Chan… just keep reading).
Serving process in Hong Kong is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. Critical to note is that Hong Kong is very much a part of the People’s Republic of China, and for two decades has been considered a “Special Administrative Region” of the PRC. For a century before that, it was a British colony, and its legal regime is still very British in nature… common law, solicitors, English-language pleadings & arguments, etc. The PRC’s declarations to the Service Convention for Hong Kong really just continue the British Hague regime, rather than apply the rules for the remainder of mainland China.
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene.
Here’s how service is effected in Hong Kong:
Article 5 Service
- Before you do anything, sift through your pleadings and make sure that you haven’t put Hong Kong on an equal linguistic footing with the PRC. Or even with New Jersey or Switzerland or Pakistan or… you get the picture. Simply tack the letters “S.A.R.” (Special Administrative Region) or “(comma) China” after “Hong Kong,” and you’re solid.* Calling it just Hong Kong, while naming other sovereign states in isolation, will cause headaches for the Hong Kong Central Authority, and they will reject your request as a matter of course. I suspect that Beijing couldn’t care less, but the fellows in HK are a bit skittish about offending the mother ship. You’d be silly to tell them they’re overreacting. [Update, January, 2020: It seems that now even exhibits must conform to the rule. That presents a sticky problem. See here for more.]
- Translate the documents. China’s Hong Kong declaration to Article 5(3) requires that documents be in Chinese or English. So, game over, right? We can pack up and go home? Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense. Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the Central Authority.
- Sit tight. It may take a while—likely three or four months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, depending on where you are, but it’s a bad idea anyway.
- Service via private agent is available to U.S. litigants under Article 10(b), and it costs more, but runs a whole lot more quickly and with significantly less fuss over linguistics.** When I talk about it, I feel like “M” (007’s boss). “Moneypenny, contact our man in Hong Kong.” I like to think I’m more evolved than Bond’s chain of command, though. Our woman in Hong Kong is lot like Wai Lin from Tomorrow Never Dies.
All of China’s declarations and Central Authority information—as well as those of every other country in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly. Now, if Wai Lin served it, don’t argue. Thirteen ways…
* One exception: if Hong Kong is part of the name of a company, don’t sweat it for that instance.
** The “S.A.R.” distinction is still a good idea if you think you’ll have to enforce a judgment abroad.