11. Can I start a civil action against someone: (a) without a permanent address? (b) ordinarily resides outside Hong Kong? (c) who is missing? (d) whose name is unknown?

11. Can I start a civil action against someone: (a) without a permanent address? (b) ordinarily resides outside Hong Kong? (c) who is missing? (d) whose name is unknown?

(a) Yes.  The court does not require the defendant to have a permanent address before one can commence proceedings against him or her.

There are a number of legally acceptable ways of serving the originating legal process (i.e. Writ of Summons or Originating Summons) on the defendant.  Some common ways are:

1. serving the legal process on him or her personally. 
2. sending the legal process (enclosed in a sealed envelope) by registered post to the defendant at his/her usual or last known address.
3. inserting the legal process through the letter box of the usual or last known address of the defendant.

Therefore, if the plaintiff believes that the defendant will leave Hong Kong soon, it is advisable for him or her to commence proceedings immediately and serve the legal process on him or her as soon as possible in Hong Kong.

(b) Yes.  However, you will need to apply for leave from the Court if you want to serve the legal process out of the jurisdiction of Hong Kong on specified grounds set out in Order 11 of the Rules of the High Court (Cap. 4A) or the Rules of the District Court (Cap. 336H).

(c) Yes.  The court does not prohibit you from commencing a legal proceedings against a defendant even though the defendant is missing. 

However, as the plaintiff, you have the duty to serve the legal process and bring the legal proceedings to the defendant’s attention.  If the defendant is missing and it is impracticable to serve documents on him or her in the manner prescribed by the court rules, you may consider applying to the court for substituted service of the legal process on the defendant (for example, effecting service by advertising the legal proceedings on newspaper).  The plaintiff in such circumstances must satisfy the Court that (1) service on the defendant was attempted but in vain and that the Plaintiff has exhausted all reasonable means to serve on the defendant; and (2) the proposed mode(s) of substituted service can reasonably bring notice of the proceedings to the defendant.

(d) Yes, instituting an action against an unnamed defendant who is identified by description is permissible where the circumstances so warrant.  The crucial point is that the description of the defendant must be sufficiently certain so as to identify those who are included and those who are not.

For example, if the plaintiff’s land is trespassed and unlawfully occupied by some unknown trespasser(s) or occupier(s) and he would like to institute a legal proceedings for recovery of land, one possible description of the defendant in such situation could be “All Occupier(s) the [full address of the land]”.