Revisiting Service of Notice of Appeal in Hong Kong: From FNG v BCJ to RHC Order 65
In their article “Can Notices of Appeal be Served on Solicitors Acting in the Court Below?” published in the August 2021 issue of Hong Kong Lawyer¸ Henry Cheng and Jasper Wong of Denis Chang’s Chambers (“the learned authors”) have helpfully summarized the reasoning and implications of the decision of Court of Appeal in FNG v BCJ [2021] HKCA 160 which seems to have the effect that the solicitors on record for the respondent in the court below are not automatically be regarded as solicitors for the respondent in the appeal and hence an appellant would have to effect service of the Notice of Appeal on a respondent by another means if that respondent withholds instructions to his solicitors in the court below to accept service of the Notice of Appeal on his behalf.
In this article, we try to explore and analyze further whether it is indeed correct to say that service of a Notice of Appeal on the solicitors on record for the respondent in the court below could not be valid and good service.
Effect of RHC Order 65 Rule 5 overlooked?
It appears that from the judgment of FNG v BCJ [2021] HKCA 160 both the parties and the Court of Appeal have focused their consideration and analysis on the interpretation of Rules of the High Court (RHC) Order 67 Rule 1 but no mention was made in respect of RHC Order 65 Rule 5.
As pointed out by the learned authors, the provisions of RHC Order 65 Rule 5 regarding ordinary service applied to service of Notice of Appeal and the Court of Appeal’s decision in FNG v BCJ does not appear to have altered this position.
RHC Order 65 Rule 5(1)(a) stipulates that ordinary service “may be effected by leaving the document at the proper address of the person to be served”. RHC Order 65 Rule 5(2)(a) further states that “… the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which service of the document in question is to be effected.” (emphasis added)
Interpretation of “In Connection with”
It is interesting to note that the wordings of RHC Order 65 Rule 5(2)(a) treats that the business address of a solicitor acting for a party in the proceedings “in connection with” with the documents to be served is valid address for the purpose of ordinary address.
While the rule does not explain the meaning of “in connection with” and there appears to be no local authority expressly ruling on the phrase of this rule, the phrase “in connection with” has been interpreted with a wide meaning in Hong Kong legal practice in a number of cases such as paragraphs 35-36 in Xu Yi Hong (許毅紅) v Chen Ming Han (陳明翰) & Ors [2006] 4 HKC 633 and paragraphs 23-25 in Yingde Gases Investment Ltd (盈德氣體投資有限公司) v Shihlien China Holdings Co Ltd (實聯中國控股有限公司) [2014] HKCU 138.
The above authorities suggest that the phrase “in connection with” is inclusive of all matters that are not entirely unrelated to the underlying transaction or legal proceedings. Hence, the application of this phrase extends to a wide range of scenarios that maintain a factual or legal connection with the main proceedings or the transaction at hand.
Applying the above as well as the natural and ordinary meaning of the words and common sense, a Notice of Appeal is inevitably a document “in connection with” the proceedings of the court below. This is especially true regarding service of the Notice of Appeal when no new case number is yet to be assigned to the Notice of Appeal at the time of its service and the case number of the proceedings below will be the key reference is showing the connection of the matter to be appealed against.
Conclusion
Based on the above logic, it seems at least strongly arguable that Notices of Appeal can therefore be lawfully and effectively served on the solicitors acting for the respondent as long as the solicitors remain on the record for the respondent in the proceedings below.
With respect, the Court of Appeal seemed to understand that the practice of serving Notices of Appeal on the solicitors acting for the other party in the court below as a mere “common practice” but did not further consider whether such practice may actually have legal effect under RHC Order 65 Rule 5. The Court of Appeal also appeared to put much of the focus and emphasis on the fact that the same solicitors firm does not necessarily have instructions to act in the appeal and accept service. However, the absence of a solicitor’s authority to act does not necessarily render any service on the solicitors invalid. A common example is that service on a solicitor who has cease to act for a party remains good service unless and until the solicitors has withdrawn from the record by complying with the requirements under RHC Order 67 Rule 6(1).
In any case, it is clear that more time, costs, delay and uncertainties may incur and arise if Notices of Appeal cannot be conveniently served on the solicitors acting for the respondent in the proceedings. We share the learned authors’ concern that further guidance or clarification (be it by way of case authority, practice direction or guidance note) from the Court will be invaluable and hope that they will be forthcoming.
This article is co-authored by our Partner Sidney Ho and our Trainee Solicitor Viola Lee.
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