The court in Dianoor International Ltd v Aiyer Vembu Subramaniam (HCA 806/2008, unreported, 19 November 2010) set aside the Notice to Act in Person (the “Notice”) filed by the defendant himself on the ground that the address stated therein was not an address within the jurisdiction. The court also ordered the original instructing solicitors to remain as the solicitors for the defendant. Order 67, Rule 4 of the Rules of the High Court does not expressly say that the address for service has to be within this jurisdiction. In actuality, the ground of setting aside the Notice based on the intention of Order 12, Rules 3 and 4, is to ensure that a defendant in person contesting a claim should provide an address within this jurisdiction for service of documents on him.
It is thought a defendant foreigner cannot acknowledge service of the writ himself or act in person without an address in Hong Kong. By no means a logic, a local plaintiff can freely sue a foreigner, who is residing outside Hong Kong and who has no residential address here to enable him to comply with the mentioned rules afore defending, by filing the Acknowledgment of Service or the Notice. The legal spirit that one can defend a suit is overwhelmingly defeated when he fails initially to employ a solicitor to effectively acknowledge service of the writ or to act on his behalf because of financial destitution or other reasons—for only a solicitor may supply in the Acknowledgment of Service his business address instead of the defendant’s residential or local address for the purpose of proceedings. It follows that the defendant foreigner can never act in person by filing the Notice without a local address. What should he do then? What else can a solicitor do if he remains on the court record whilst having no authority to act? I cast doubt on the provisions in the current White Book that the court may set aside the Acknowledgment of Service to enable the plaintiff to enter judgment against the defendant as if in default of his Acknowledgment of Service. Any inability of the defendant to act in person simply for failing to state a local address, I doubt too. Assuredly, we shall be exalted by clarification through future court case of the same kind.
By Tony WH Luk, Solicitors Ko & Chow