Ng Chun Sang also known as Ng Chun Sung and Another v. Persons in Occupation of Lot No. 544 and The Remaining Portion of Lot No. 539 Both in Demarcation District No. 77 and Another

DCCJ 3463/2018

[2021] HKDC 1274

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3463 OF 2018

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Before:  His Honour Judge Kent Yee (Paper Disposal)

Dates of Written Submissions: 3 and 27 May and 8 July 2021 (the 1^st and 2^nd Plaintiffs)

10 May and 17 June 2021 (the 2^nd Defendant)

Date of Decision:  11 October 2021

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D E C I S I O N

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1.This court handed down a decision dated 21 April 2021(“the Decision”) whereby the 2^nd defendant’s application to set aside the order made on 5 August 2020 by this court in respect of the plaintiffs’ summary judgment application and striking out application (collectively “the plaintiffs’ Applications”) and her application for a stay of execution were granted with costs against the plaintiffs. This court allowed the plaintiffs’ Applications in a decision handed down on 5 August 2020 (“the Previous Decision”).

2.Arising from the Decision, the plaintiffs have made two applications. First, by summons dated 22 April 2021 (“the Variation Summons”), the plaintiffs apply for a variation of the costs order nisi to one of no order as to costs.

3.Second, by summons dated 30 April 2021 (“the Leave Summons”), the plaintiffs apply for leave to appeal against the Decision.

4.By the 2 orders respectively dated 30 April 2021 and 5 May 2021, this court directed that the Variation Summons and the Leave Summons should be disposed of on paper. The parties have filed their written submissions for this purpose. In this decision, I shall adopt the abbreviations used in the Decision.

5.I shall first deal with the Leave Summons.

The Leave Summons

6.The statutory requirements in section 63A(2) of the District Court Ordinance, Cap.336 and the general principles relating thereto are trite and well-known. I do not think it is necessary to set them out here.

7.The principal reason why I allowed the applications of the 2^nd defendant is that this court came to the conclusion that the plaintiffs’ service of the relevant documents including the summons for their summary judgment application, the summons for their striking out application and the supporting affirmations of the plaintiffs’ Applications (“the Documents”) on the 2^nd defendant was bad and the summary judgment, therefore, must be set aside as an irregular judgment: see §33 of the Decision.

8.The major debate in this application is, thus, about service. Before I turn to the 3 grounds advanced by Mr So, for the plaintiffs, by way of background, I should refer to these matters stated in the Previous Decision.

9.This action concerns 2 pieces of land in the New Territories known as Lot No.544, Demarcation District No. 77 and the remaining portion of Lot No.539, Demarcation District No. 77 (“the Lands”). The plaintiffs allege that the defendants have wrongfully occupied the Lands.

10.This court was aware that HH Judge Liu had previously refused the application of the plaintiffs for an interlocutory injunction against the defendants by his order dated 27 November 2018. With a view to opposing the application, the 2^nd defendant, then legally represented, filed affidavit evidence exhibiting documentary evidence to substantiate her adverse possession claim in respect of a part of Lot No.544, Demarcation District 77 (“the Part”).  The learned judge could not be satisfied that the plaintiffs could show that there was a good possibility that they would not obtain judgment after trial.

11.Despite this favourable conclusion, the 2^nd defendant apparently changed her position and took no step to oppose the plaintiffs’ Applications. She filed no evidence whatsoever to discharge the onus to show a reasonable defence and triable issues. On this basis, I concluded that the plaintiffs were entitled to summary judgment. I further acceded to their application to strike out the Defence and Counterclaim.

12.Mr So, for the plaintiffs, advances the following 3 broad grounds of appeal. The first ground is that I erred in law in finding that the service was irregular. Pursuant to O.65 r.5(2)(b), Rules of the District Court (“the RDC”), service of summonses and affirmations is by way of ordinary service to the usual and last known address of the 2^nd defendant. Since the 2^nd defendant has never withdrawn the Wrong Address, ordinary post to the Wrong Address must be good service. The Wrong Address was given by the 2^nd defendant in her Notice to Act in Person (“the Notice”) as explained in §14 of the Decision.

13.The second ground is that I failed and/or neglected to give effect to O.65 r.5(2), O.65 r.9 of the RDC and section 8 of the Interpretation and General Clauses Ordinance, Cap.1 when there was no proper address for service.

14.The third ground is that even if service was bad and the summary judgment has to be set aside, this court must proceed to decide the plaintiffs’ Applications on an inter partes basis.

15.I shall deal with each of the 3 grounds in turn.

First ground

16.Mr So highlights certain parts of the Decision where I made the findings of the 2^nd defendant’s non-receipt of the Documents and her lack of actual notice and knowledge of the hearing of the plaintiffs’ Applications. He then submits that I applied the wrong test. He points out that ordinary service, as opposed to personal service, does not require actual notice or knowledge of the documents served.

17.I do not think I have applied the wrong test. I did not expect personal service though the plaintiffs made such an attempt albeit at a wrong address. My focus was clearly on the effectiveness of service carried out by the process server of the plaintiffs and the 2^nd defendant’s lack of actual notice or knowledge of the Documents is merely the result of bad service concluded by me.

18.In the Decision, I explained that I had studied the service affirmations of Lau Nga Ting. In her 4^th Affirmation, she gave an account of how the Documents were served on the 2^nd defendant thrice. First, on 5 June 2020, there was purportedly a personal service at Lot No.544 which turned out to be Lot No.545 according to the evidence of Ms Lai not contradicted by contrary evidence. Then, despite the purported personal service, on 9 June 2020, the plaintiffs mailed the Documents by ordinary post twice; one addressed to the Lands and the other one addressed to the Wrong Address. The process server clarified in her 6^th Affirmation that the latter was returned by the post office marked “Incomplete address/No such address” (“the Returned Mail”).

19.In §§30 to 32 of the Decision, I have stated my reasons for my conclusion that none of such service was good. I have explained why the Wrong Address could not be a proper address for service. 

20.On the first ground, Mr So’s focus is on the service by the use of the Wrong Address. He first refers this court to Morigood Development Ltd v Sunny Trading Co (A firm) [1999] 2 HKC 710 where Keith J (as he then was), dealing with a similar situation, held that, though the defendant had no notice of the O.14 hearing, service was good so long as it was effected at the address which had never been withdrawn by the defendant.

21.Mr So submits that the Wrong Address had not been withdrawn when the Documents were mailed to the Wrong Address. It must follow that the service was good on this authority.

22.The facts of Morigood have to be examined closely. In that case, the defendant rented a shop from the plaintiff. The defendant gave the plaintiff the shop address as its address for service. It was not disputed that the defendant had already moved out of the shop when the notice of the hearing was mailed to the defendant at the shop address.

23.The judge held that the fault for what occurred lied primarily with the defendant for her failure to provide a new address. It is noteworthy that the judge also found that the plaintiff or its solicitors were not entirely blameless. He observed that the plaintiff’s solicitors, having been informed of the defendant’s departure from the shop address, should have contacted the defendant at another address disclosed by the Director of Legal Aid prior to the hearing. The judge, nevertheless, held that the service was good and concluded that the judgment was regular.

24.It is noteworthy that in Morigood, the judge noted that letter had not been returned to the plaintiff’s solicitors as not having been sent to the defendant: §6. In my view, this distinguishes the present case from that case. In the present case, the mail posted to the Wrong Address was indeed returned to the plaintiffs’ solicitors with a note saying that the Wrong Address did not exist. I cannot accept that, in these circumstances, the Wrong Address could still be regarded as proper address just because the 2^nd defendant had not withdrawn it.

25.Next, Mr So relies on the obiter dictum of Master Maurice Lam in Venetian Macau Limited v Lai Choi Fat [2020] HKDC 430. There, the defendant gave an inaccurate address for service in the Acknowledgement of Service. “C25” was misstated to be “Unit 25”. The defendant claimed that he did not receive the O.14 summons and so he failed to attend the substantive hearing. As a result, summary judgment was entered against him in his absence.

26.In his application to set aside the judgment, the defendant did not challenge the regularity of the judgment. The learned master opined that the defendant was right and expressly accepted the proposition that the judgment was regular so long as the address provided by the defendant had never been withdrawn. He further referred to a few decisions of the Court of Appeal by way of a footnote[1] and said that the consequence occasioned by the ineffectiveness of such incorrect address would fall on the shoulder of the litigant who failed to give the correct address.

27.The learned master probably took on board what Lam VP said in Hasmi Rizwan Imran [2018] HKCA 439 at §§14-15, which was also cited with approval by Kwan VP in Re Zaheer [2020] HKCA 880. There, the applicant sought to explain his failure to make his application for leave to apply for judicial review with the statutory time limit. He explained that he had moved and changed his address without telling the Torture Claims Appeal Board (“the Board”). He did not know that the Board would send its decision to him by post. Therefore, the applicant missed the deadline for making his application for leave for judicial review.

28.The Vice President approved the rejection of the applicant’s explanation by the deputy judge and said this,

“It is to the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The same applies to the address given by an applicant to the Board… As far as the Board was concerned, that address was the applicant’s designated means of contact. The consequence of any delay occasioned by the ineffectiveness of such an (incorrect) address would fall on the shoulder of the litigant.”

29.I should add that in Re Zaheer, the decision of the Board was indeed returned by post for incomplete address.

30.It should be noted that the Court of Appeal in all those non-refoulement protection cases dealt with the dispatch of the decisions of the court and the Board and were not really concerned about service of documents among litigants under the RDC or the Rules of the High Court. Whilst I too agree that if a litigant gives an incorrect address, he should normally bear the consequences, I do not think that the Court of Appeal in those cases has laid down an inflexible rule that in general civil litigation, service must be deemed good if it is effected at the address given by a litigant though it is patent that the documents served could never reach the litigant.

31.In the Decision, I have explained why the Wrong Address was obviously unreliable. Whilst I accept that one may provide any addresses other than the property in question as an address for service, the note of the Returned Mail plainly shows that the Wrong Address was not in existence and could not be relied on.

32.It should also be noted that the 2^nd defendant stated her address in Fanling in her affirmation filed in opposition to the interlocutory injunction application (“the Fanling Address”). Further, in the Notice, the telephone number of the 2^nd defendant was printed right below the Wrong Address. The plaintiffs could have contacted the 2^nd defendant after receipt of the Returned Mail. The plaintiffs did not allege any difficulties in doing so.   

33.The plaintiffs did not do so probably perhaps due to the fact that they had effected personal service and sent the Documents to the Lands by ordinary post already.

34.I have explained in the Decision why these two attempts could not constitute good service. I would make it clear that the Lands could not be a proper address when the 2^nd defendant merely occupies a part of one of the two lots included in the Lands.

35.In conclusion, I am not satisfied that the service of the Documents was good in the circumstances. I see no merit in the first ground.

Second ground

36.Next, Mr So argues that pursuant to O.65 r.9 of the RDC, since the 2^nd Defendant has no address for service, the Documents need not be served on her. In other words, no service is required at all.

37.As pointed out by Mr Lam, for the 2^nd defendant, this is a new argument not raised before.  The short answer is that the 2^nd defendant does have an address known to the plaintiffs. It is the Fanling Address. O.65 r.9 has no application.

38.This ground is also unmeritorious.

Third ground

39.Lastly, Mr So submits that even if I set aside the Summary Judgment, I should, nevertheless, consider the plaintiffs’ Applications. He refers to the transcript of the call-over hearing of the 2^nd defendant’s applications showing Mr Lam’s confirmation that the 2^nd defendant would not file further evidence to support her plea of adverse possession.

40.I fail to see any merit in this submission. It is settled that irregular judgment is liable to be set aside ex debito justitiae. The hearing was clearly for the purpose of the 2^nd defendant’s summonses only and in light of my conclusion on service, I refused to consider the merit of the defence. 

41.To sum up, none of the 3 grounds put forth is able to convince me that the intended appeal of the plaintiffs has a reasonable prospect of success. Nor did Mr So advance any other reasons in the interests of justice why this matter should be considered by the Court of Appeal. I refuse to grant leave and the Leave Summons must be dismissed.

The Variation Summons 

42.I do not understand why this application has to be made separately.

43.Mr So highlights the fact the Wrong Address was given by the 2^nd defendant resulting in the bad service subsequently found by this court. He submits that had an accurate address been given in the Notice, the Documents would have been served properly. He urges this court to take this into account on the costs issue.

44.I am unable to accept this submission. The Returned Mail should have alerted the plaintiffs to the need to make further effort to effect good service. In any event, the supporting evidence of the 2^nd defendant should have convinced the plaintiffs that the summary judgment should be set aside too.

45.I am of the view that the general principle of costs following the event should be applied here. There is no valid reason why the costs order nisi should be varied. I, therefore, dismiss the Variation Summons.

Conclusion and costs

46.For the reasons given above, I find no substance in the plaintiffs’ intended appeal. I dismiss both the Leave Summons and the Variation Summons accordingly.

47.I further order that the 2^nd defendant’s costs of and occasioned by the 2 Summonses be borne by the plaintiffs, to be taxed if not agreed, with certificate for counsel.

Mr Simon So instructed by Chan & Associates, for the 1^st and 2^nd plaintiffs

Mr Solomon Lam instructed by KCL & Partners, for the 2^nd defendant