Chau Pui Ngai v. Chau Yau Zing and Another

HCA 298/2017

[2018] HKCFI 2368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 298 OF 2017

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Before:  Deputy High Court Judge Lee in Chambers

Date of Hearing:  18 October 2018

Date of Judgment:  18 October 2018

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J U D G M E N T

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1.This is the Plaintiff’s application for an order that:

(1) the Order and the Judgment of this court made on 26 September 2017 against D2 be served on D2 by substituted service by way of:

(a) publication of an advertisement of the Order and the Judgment in two newspapers in Hong Kong, namely (i) the Oriental Daily News; and (ii) Ming Pao Daily News; and

(b) insertion of the Order and the Judgment against D2 through the letter box of D2’s last known address; and

(2) specifying that the Order and Judgment against D2 shall be complied with within 28 days from the date the plaintiff effected the substituted service.

2.The Order and the Judgment referred to in the above require D2 to, among other things, deliver up all title deeds and documents relating to a flat in Charming Garden which is registered in the plaintiff’s name.  The history and facts of this case are as stated in the Judgment and I am not going to repeat them here.

3.Based on the affirmation evidence before me, after the granting of the Judgment against D2, the plaintiff was able to obtain the address of D2 at a premises on Ka Lok Street (“the last known address”) through a private investigator.  However, attempts to locate D2 at the last known address with a view to effect personal service of the Judgment and the Sealed Order on him have been unsuccessful.  The plaintiff’s lawyers had made enquiry with the watchman of the building where D2’s last known address is situated.  The watchman confirmed that D2 was living at that address but was unable to inform when D2 would be returning there.  The plaintiff had also tried to contact D2 and D2’s wife through WhatsApp but he received no reply from either of them.  Up to this moment, D2 has not delivered up the title deeds of the subject premises to the plaintiff or his lawyers.

4.In the circumstances, having regard to Order 65 r 4, the Rules of the High Court (“RHC”), the legal principles and practice stated in Hong Kong Civil Procedure 2019, at para 65/4/1-7 and in particular the judgement of the Court of Appeal in Chan Yeuk Mui v Ng Shu Ci [1999] 2 HKLRD 376, I am satisfied that this is a suitable case to order substituted service and that the forms of service proposed by the plaintiff would be effective in bringing the Order and the Judgment to the notice of D2. 

5.As regards the fixing of time for compliance with the Order, in view of the fact that the Order has been made for over a year and that D2 has so far shown no signs of compliance, I agree that a time-limit should now be imposed pursuant to Order 45 Rule 6, RHC.  In my assessment, a 28-day time limit commencing from the date that the substituted service is effected would be a reasonable period for D2 to comply with the Order. 

Order

6.In the circumstances, I grant an order for substituted service in terms of the summons and that the personal service of the Order and the Judgment dated 26 September 2017 be dispensed with.  I also impose a 28-day time period for D2 to comply with the Order as aforesaid.

Costs

7.I also order that the plaintiff shall have the costs of this summons and this application.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid’s regulations.

Mr Lincoln Cheung, instructed by Hon & Co, assigned by Director of Legal Aid, for the plaintiff

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