[Update, March, 2023: This issue previously was isolated to Hong Kong alone. Now, Beijing has begin rejecting requests on the same basis. When this post was originally published, I speculated that the PRC wasn’t really hung up on the issue– and for the past six or seven years, that’s been true. Things have now changed.]
A couple of years ago, I posted an admonishment that Service of Process in Hong Kong means Hong Kong, CHINA. That post was a precursor to the nuts & bolts post I put up a few months later on How to Serve Process in Hong Kong. In that post, I stressed the care needed in properly naming the former British colony:
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.
But that only touched on the issue in the earlier post:
Simple practice tip: if your defendant is located in Hong Kong, be sure to refer to the jurisdiction as Hong Kong, China or, alternatively, Hong Kong S.A.R. (shorthand for “Special Administrative Region”). Any request which refers to Hong Kong in isolation, and is submitted to the Hong Kong Central Authority for the Hague Service Convention, will be rejected as a matter of course. Hong Kong government officials are particularly wary of showing any offense to the government in Beijing, and they insist on this nomenclature out of abundance of caution (aside: I truly wonder if Beijing even cares, but it is not for me to judge).
As a result, I always tell my clients that they should either amend their pleadings to accommodate the requirement, or they should select the more costly option of having service effected in Hong Kong by a solicitor. A few months ago, I submitted an Article 5 request for a fellow lawyer (that’s what I do, after all) comfortable in the knowledge that everything was carefully drafted– he was wise enough to tap me on the shoulder before he filed, so I could give him the lowdown on the S.A.R.’s nomenclature, and his filings reflected the proper designation. Everything was Jake.
Today, I get a nice letter from the folks in Hong Kong containing this little tidbit:
With reference to your request for service of judicial documents on the above mentioned party, I regret that we are unable to accede to it because the description “Hong Kong” is listed on an equal basis with other countries in the request form and/or documents to be served (see examples flagged). You may consider amending “Hong Kong” to “Hong Kong SAR, China” before sending the request to us again.
Um… what the huh? As I frantically skimmed the request form and the pleadings, it never even occurred to me that the rules had changed. Nothing in my request form, nothing in my client’s pleadings– nothing– ran afoul of the S.A.R. requirement, so what are they talking about?
Then I saw the Post-It™ Note flags hanging out of the stack of exhibits.
Yeah. The exhibits. You know, those evidentiary offerings attached to a complaint, with the hopeful purpose of demonstrating the strength of a claim. Those evidentiary offerings that, given their nature as evidence of circumstances or prior intent, cannot be amended. Talk about a most ingenious paradox.
The takeaway? Don’t even bother with Article 5 in Hong Kong if the underlying contract or other relevant exhibits don’t likewise conform to the S.A.R. nomenclature. It seems that lots of time and money are going to be wasted.
Occasionally, when I search Wikimedia for pictures to include in my blog posts, I come across a gem. This is one of those times. Searching “post-it note” in Wikimedia Images, this thing popped up. It almost hits the mark, on a similarly touchy issue. I’m guessing the map was printed in the PRC. Oh, it’s also upside down, so that’s fun.