Hong Kong and Macao bridge legal gap

With business ties between Hong Kong and Macao now on an even firmer footing, a recent agreement to simplify the service of legal documents between the two jurisdictions is welcome news, write Boase Cohen & Collins Associate Wendy Kwan and Paralegal Joyce Leung.

Hong Kong, 6 October, 2020: Hong Kong’s traditionally close business and trade links with Macao have been further strengthened by the opening of the Hong Kong-Zhuhai-Macao Bridge two years ago. The 42km highway, the longest bridge-and-tunnel sea crossing in the world, has transformed the old four-hour road journey from Hong Kong to Macao into one of just 20 minutes.

The two cities are also key components in China’s ambitious plans for the so-called Greater Bay Area, combining with Shenzhen, Guangzhou and other large population centres in southern China to form a high-tech megalopolis and global innovation hub to drive economic development. HSBC Holdings Plc has estimated the region, with a combined population of more than 67 million, will eventually eclipse Japan as the world’s fourth-largest exporter.

Such developments are naturally leading to a significant increase in cross-border legal work between Hong Kong and Macao. Therefore, it is worth noting that after a hiatus of 23 years, a formal mechanism for the service of judicial documents in civil and commercial cases between Hong Kong and Macao is back in place. It is a welcome move as parties in both jurisdictions previously had to rely on private channels – usually, engaging lawyers – for the service of documents, an unsatisfactory situation that was potentially subject to legal challenges.

The service of judicial documents between Hong Kong and the rest of China, including Macao, took place under Hague Convention rules prior to the 1997 Handover. This was partially replaced by a formal arrangement between Hong Kong and Mainland courts in 1999 but this did not include Macao, which returned to Chinese rule later that year.

This has finally been remedied by the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Cases between the Hong Kong Special Administrative Region and the Macao Special Administrative Region (“the Arrangement”) which came into force on 1 August 2020.

The Arrangement covers civil and commercial cases, including claims under the jurisdiction of the Labour Tribunal with respect to Hong Kong and civil labour cases in Macao. Judicial documents in Hong Kong which may be served in Macao include duplicate copies of originating process and notices of appeal, summonses, pleadings, affidavits, judgments, decisions, rulings, notices, court orders, certificates of service and various others.

Requests to use the service are made through the High Court in Hong Kong and Macao’s Court of Final Appeal. The requesting party must produce a sealed letter of request in Chinese – the official language common to both jurisdictions – and any attached judicial documents which are not in Chinese must be accompanied by a Chinese translation.

The Arrangement also requires that the court of the requested party shall try to complete the requests for service within two months and issue certificate of service indicating whether the judicial documents have been served on the relevant parties.

Bilateral trade in goods between Hong Kong and Macao amounted to HK$62 billion in 2019, while trade in services between the two economies was more than HK$15 billion in 2018. Macao was also the 15th major source of inward direct investment into Hong Kong, with a stock of HK$40 billion, and the 11th major destination of outward direct investment from Hong Kong, with a stock of HK$81 billion, at the end of 2018. These robust figures follow the signing in October 2017 of the Closer Economic Partnership Arrangement (CEPA) between the Hong Kong and Macao governments, which was designed to enhance economic co-operation and foster closer working relationships.

Given that the already strong business ties between Hong Kong and Macao are being enhanced by implementation of the CEPA, increased use of the Hong Kong-Zhuhai-Macao Bridge and integration into the vast Greater Bay Area economic development project, cross-border legal work between Hong Kong and Macao is on the increase. Requests for the service of judicial documents can be expected to increase as a result.

In summary, the new legal arrangement for the service of judicial documents will be welcomed in legal circles as it provides lawyers with greater certainty and avoids the risk of legal challenge.

Cross-border legal work between Hong Kong and Macao is becoming more common.