Hong Kong: Litigation: Service Of Process On The Elusive Foreign Defendant

Last Updated: 5 March 2007


The recent Hong Kong High Court case of Victor Chandler (International) Ltd v Zhou Chu Jian He (2006), involves Victor Chandler (the Plaintiff) a well known bookmaker registered in Gibraltar and Zhou (the Defendant) a wealthy Peruvian businessman. The Plaintiff’s business is accepting bets on line from its worldwide clients and the Defendant was born in Mainland China and ordinarily resides in Beijing. He had a home as well as substantial business interests and real property in Hong Kong. The Defendant opened an account with the Plaintiff for the purposes of betting on overseas soccer matches. He bet and lost what for most people a fortune. In purported settlement of his debt, the Defendant presented the Plaintiff with three cheques drawn on a Hong Kong bank account, which were later dishonoured.

The Plaintiff sued on the dishonoured cheques. The writ was served on the Defendant by inserting it in the letterbox of the Hong Kong address the Defendant provided to the Company Registry. He owned the property in Kowloon where he was served. The Defendant was not in Hong Kong at the time of service. The Plaintiff obtained judgment in default of appearance. The Defendant then made an application to set aside the default judgment and returned to Hong Kong to sign his affirmation in support of his set aside application. The court set aside the default judgment unconditionally on the ground that the judgment was irregularly obtained. The Plaintiff did not appeal from that order setting aside the default judgment.

Following the order to set aside, the Defendant served a notice of the intention to defend and then make an application under Order 12 rule 8 of the Rules of High Court for a declaration that the original writ had not been duly served on him, and hence, the court had no jurisdiction over him. Failing this part of his application, the Defendant applied to permanently stay the action on the basis that Hong Kong is forum non convenience for the trial.

The Plaintiff argued that the set aside order had the effect of submitting the Defendant to the court’s jurisdiction.

Submission to Jurisdiction

The court discussed the following 2 principles before ruling that the Defendant has not by conduct submitted himself to the court’s jurisdiction :-

  1. The policy underlying Order 12 rule 7 and rule 8 of the Rules of the High Court was that a defendant should not be taken as having submitted to the jurisdiction of the court by reason only of the fact that he had appeared in the proceedings. A defendant’s filing of a notice of intention to defend should be viewed as entirely neutral. The court’s directions to file pleadings in the set aside order are not invited by the Defendant. It was up to the Defendant to react to the directions as they saw fit. The Defendant’s choice not to file pleadings was actually further indicative of the Defendant’s challenge to the jurisdiction.
  2. The Defendant’s very act of contending the merits of the case in his application to set aside the default judgment was not a submission to the court’s jurisdiction either. It was merely made in response to the Plaintiff’s affirmations that there was no defence to the present action. It was reasonable for the Defendant to demonstrate that bona fide defences would be available.

Was the Defendant Duly Served?

The Court then went on to consider whether the writ was duly served on the Defendant. Order 10 rule 1(2)(b) indicated that the defendant must be physically within the jurisdiction if he was to be validly served. As the Defendant has raised sufficient evidence to prove that he was not in Hong Kong when the writ was served, he was not duly served with the writ and was not therefore subject to the court’s jurisdiction. As a result, the court granted the declaration sought by the Defendant that the Defendant is not subject to the court’s jurisdiction because the writ was not duly served on him.

The consequence of the declaration is that the Plaintiff will have to start service of the writ again. Since the Defendant is resident at Beijing, the Plaintiff may well have to apply for leave to serve the writ out of the jurisdiction.

What Happen if the Court’s Jurisdiction is Not Disputed?

If the Defendant is subject to the court’s jurisdiction, the court went further to rule obiter that the Plaintiff should be entitled to have the matter resolved in the courts of Hong Kong because the nature of the action was based on the cheques drawn on a Hong Kong bank account and dishonoured in Hong Kong. The Defendant had failed to demonstrate it correct to deprive the Plaintiff of the right to sue in the courts of Hong Kong.


The case demonstrates the difficulties that may occur when contracting with a foreign person and when legal action is taken against him/it in Hong Kong. The case should be of persuasive authority in all common law jurisdictions. It is therefore important to consider when dealing in all cross border transactions to include a local process server agent clause and a submission to jurisdiction clause in contracts involving foreign persons.

Our Services

If you wish to know more about the judgment or have any query regarding how to commence or contest legal proceedings in Hong Kong, experienced lawyers in our Litigation and Dispute Resolution Department will be happy to assist you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions