Hoa Shun Hau Tong v. 何耀光

DCCJ 2466/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2466 OF 2014

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DECISION

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1.By a summons dated 30 July 2015, which was amended on 28 August 2015, the defendant filed an application to, inter alia, set aside the default judgment (“the Summons”) entered on 21 October 2014 (“the Judgment”) pursuant to O 13, r 9 RDC.

2.The issues in dispute are:-

(a) Whether the Judgment is a regular Judgment;

(b) If the Judgment is a regular Judgment, whether it should be set aside.

3.The crux to issue A is whether there was a letter box in the defendant’s address in question.

4.O 10, r 1(2)(b) RDC provides that:-

“a writ for service on a defendant …… be served if there is a letter box for that address, by inserting through the letter box a copy of the writ ……”

5.Mr Chan Chun Pong, clerk to the plaintiff’s solicitors, affirmed that on 28 July 2014 that he served the defendant by inserting the writ into the letter box at Lot no 2065 in Demarcation District No 3 Tung Chung, New Territories (“the Address”).

6.The defendant affirmed on 3 August 2015 that there was no letter box at the address.

7.Mr Ho Kam Tai, one of the managers of the plaintiff, affirmed that the Address was unused before the tenancy and the defendant was allowed a rent free period of 6 months to remove the plants and vegetation on the lot before the commencement of the tenancy.

8.The defendant deposed that he was responsible for improving the land to render it fit for the operation of the business for car repairs.  He paved the land, put in place containers which served as the office, arranged for the installation of water and electricity infrastructures. But there was no letter box.  He maintained a PO Box at Tung Chung Post Office for the operation of his business.  He produced the confirmation of application for electricity supply dated 1 June 2010 and the electricity bill dated 22 July 2010 both addressed to him at the PO Box 278, Tung Chung Post Office as evidence.  

9.The plaintiff filed the affirmation of Ho Kam Tai, one of the managers of the plaintiff, dated 22 August 2015 and the affirmation of Siu Ho Yeung, a clerk of the plaintiff’s solicitors, dated 23 September 2015 in reply.  Both affirmations did not reply to the defendant’s allegation that there was no letter box at the address.  When asked by the court why Mr Chan Chun Pong, the person who served the writ, did not reply to such allegation, Mr Chu, counsel for the plaintiff, failed to give an answer.

10.Siu Ho Yeung only deposed that after service of the writ, he was told by the defendant that the defendant had received the writ.  But such evidence does not exonerate the plaintiff’s obligation to properly serve the writ, unless the defendant files the acknowledge of service. 

11.Mr Chu submitted that a slit or aperture in the external door of the Address would be sufficient.  But there is no evidence of the existence of such slit.  Paragraph 10/1/13 of the Hong Kong Civil Procedure 2016 provides that “the expression ‘through’ the letter box probably excludes the insertion of a sealed envelope under the door or through an open door or window or its delivery to a caretaker or other person at the premises in question, eg by delivery to the wife of the defendant who has opened the door to the process server.”

12.On the above basis, there is no need to deal with issue B.  On the evidence before me, I am satisfied that there was no letter box at the Address to effect service of the writ and the judgment is irregular.

13.Counsel made different submissions as to the applicable principles for setting aside default judgment.  I accept defendant’s counsel Mr Li’s submissions, which is irregular judgment should be set aside but the court has a residual discretion to impose conditions upon setting aside the judgment.

14.As the case may proceed to trial.  The merits of the case depend very much on the creditability of the witnesses.  I shall refrain from commenting on the merits of the case.  Suffice to say that I find no reasons to impose conditions.

15.In conclusion, I set aside the default judgment dated 21 October 2014 and grant leave to the defendant to file and serve the defence within 21 days from the date hereof.  The plaintiff should bear his own costs of signing the irregular judgment and further pay the defendant’s costs of the summons, including the reserved costs, with certificate for counsel, to be taxed if not agreed.  

16.I thank counsel for their assistance.

Mr George Chu, instructed by Leung Kin & Co, for the plaintiff

Mr Jeffrey Li, instructed by Christine M Koo & Ip, for the defendant