Siu Pak Ming v. Pong Hei Man and Another

HCA 314/2018

[2018] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 314 OF 2018

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D E C I S I O N

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1.By summons of 6 March 2018 (“the Summons”), the plaintiff applied for a declaration that he has acquired possessory title to the property at Ground Floor, No 7 Wong Chuk Street, Sham Shui Po (“the Property”), by reason of adverse possession, and a declaration that the defendants’ title to the Property has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347. The application was made pursuant to Order 19, rule 7 of the Rules of the High Court.

Applications for default judgment under Order 19, rule 7

2.The principles relating to an application for a declaration by wayof default judgment are set out at note 19/7/20 of Hong Kong Civil Procedure 2018.  It is not the normal practice of the court to make a declaration without a trial.  Where declaratory relief is sought, the court will scrutinise the application for default carefully, and will not hastily grant the relief sought.  The court expects that maximum assistance will be provided, and should not be expected to simply rubber-stamp the uncontested application.

Service of the writ

3.The writ in these proceedings was issued on 5 February 2018.  According to the affirmation of Ng Chun Wing, a legal executive of the plaintiff’s solicitors, it was said to have been served on the defendants as follows:

(1)  by registered post to the Property on 6 February 2018;

(2)  by affixing on a conspicuous part of the Property on 6 February 2018;

(3)  by inserting into the letter box of the Property on 7 February 2018; and

(4)  by handing to “a male staff” at the Property on 9 February 2018.   

4.I am not satisfied that there has been proper service of the writ.

5.Under Order 10, rule 1(1), a writ must be served personally on each defendant.  Order 10, rule 1(2) provides for service by post and insertion through letter box as alternatives to personal service.

6.As regards personal service, in Cheung Ping v Cheung Wai Kit, unreported, DCCJ 3618/2010, 29 June 2012 at [11], Deputy District Judge Wilson Chan (as he then was) observed that in effecting such service, the process server should first satisfy himself that he has found the correct person on whom a copy of the writ is to be served.

7.In the present case, the process server handed certain documents to “a male staff” at the Property.  He was unable to ascertain the identity of the person to whom he was handing the documents.  It seems highly unlikely that the person was either of the defendants. After all, it the plaintiff’s own case that it is the plaintiff, not either of the defendants, who is in exclusive possession of the Property, and who operates a fabric trading business at the location of the Property.  The description of the recipient of the documents as a member of “staff” suggests that it was a person working at the plaintiff’s business who received the documents.  The affirmation of Ng Chun Wing states that it is the plaintiff’s opinion that the documents would have come to the knowledge of the defendants within 7 days after service, but no basis is given for this statement.

8.As to service by post or insertion into letter box, this is to be done at a defendant’s usual or last known address: Order 10, rule 1(2).  No explanation has been given as to why it is said that the Property is the usual or last known address of either of the defendants, or otherwise as to how the usual or last known address of the defendants was ascertained.  In oral submissions, Mr Devin Sio, counsel for the plaintiff, said that he thought that the address for the 2^nd defendant was taken from the 1966 assignment to him, although he acknowledged that he could not be sure if the assignment in fact showed the Property as the 2^nd defendant’s address.  He similarly said that the address for the 1^st defendant was taken from the hand written assignment to the 1^st defendant of 2006, but again he could not be sure that the assignment showed the Property as the 1^st defendant’s address.  He did also say that letters from the Rating and Valuation Department to the 1^st defendant were sent to the Property, but no such letters are in the evidence. 

Timing of application

9.Even if service had been properly effected by post or insertion into letter box, the plaintiff was not entitled to take out the application as at 6 March 2018, the date of the Summons.

10.If service had been properly effected by post or insertion into letter box, service would have been deemed to have been effected on 13 or 14 February 2018, pursuant to Order 10, rule 1(3)(a).  The defendants would then have had 14 days to acknowledge service, pursuant to Order 12, rule 5(a); that is, up to 27 or 28 February 2018.

11.Given the plaintiff’s claim for a declaration, Order 13, rule 6 applies.  This provides that if a defendant fails to give notice of intention todefend, the plaintiff may, after the prescribed time and upon filing an affidavit proving due service of the writ (and upon filing a statement of claim where it is not indorsed on the writ), proceed as if the defendant has given notice of intention to defend.

12.Pursuant to Order 19, rule 7(1), an application for judgment in default of defence may only be made after the expiration of the period fixed by or under the rules of court for the service of the defence.  Order 18, rule 2(1) provides that a defendant who gives notice of intention to defend an action must serve a defence before the expiration of 28 days after the time limited for acknowledging service of the writ or after the statement of claim is served on him, whichever is the later.

13.In the present case, the time allowed for the defendants to file their defence had not expired when the plaintiff applied for judgment, as Mr So accepted at the hearing.  

14.I therefore dismiss the plaintiff’s application and make no order as to the costs of the application.

Mr Sio Chan In Devin, instructed by Wai & Co Solicitors, for the plaintiff

Both the 1^st and 2^nd defendants were not represented and did not appear