Ng Sew Hoi and Another v. Chong Yin Sing and Another

HCA 15070/1998

[2022] HKCFI 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 15070 OF 1998

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BETWEEN

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Before: Hon K Yeung J in Chambers (Paper Disposal)

Dates of Written Submissions by the 2^nd Plaintiff: 13 November, 1 December 2021 and 2 March 2022

Dates of Written Submissions by the 1^st Defendant: 11 November 2021 and 5 January 2022

Dates of Written Submissions by the 2^nd Defendant: 12 November 2021 and 9 January 2022

Date of Ruling: 31 March 2022

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R U L I N G

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1.For the background of the matters leading to this Ruling, I refer to the two Decisions of Deputy Judge MK Liu of 8 March 2021[1] (the “March Decision”) and 24 June 2021[2] (the “June Decision”).

2.I summarise the core background facts as follows:

(a) This action concerns a property known as Flat 5 on the 8^th Floor of Block G, Luk Yeung Sun Chuen, Nos. 22-66 Wai Tsuen Road, Tsuen Wan, NT, Hong Kong (“the Property”);

(b) The original plaintiffs in this action were Chong Chween Hin (“Chong”) and Ng Sew Hoi (“P1”). Ernest Chong Kian (“P2”) is their son. Chong and P1 were the registered owners of the Property. In 2002, they assigned the Property to P2. After the death of Chong, and with leave, P2 became the 2^nd plaintiff in substitution of Chong;

(c) Ps’ case is that the 1^st defendant (“D1”) and his family have been in wrongful occupation of the Property. D1’s case is that he is the sole beneficial owner of the Property, and is entitled to occupy the same. Alternatively, he relies on the doctrine of adverse possession. On those bases, he has raised a counterclaim against Ps;

(d) On 13 June 2018, upon D1’s application, Master Hui ordered P1 to give security for costs, in the absence of which P1’s claim against D1 be dismissed, and her reply and defence to D1’s counterclaim be struck out (the “Security Order”);

(e) P1 failed to comply with the Security Order;

(f) On 25 July 2018, P1 and P2 failed to attend the Case Management Conference. Pursuant to Order 25 Rule 1(C), Registrar Lung ordered that the plaintiffs’ claim be provisionally struck out (the “Provisional Struck Out Order”);

(g) There has not been any application from either of the Ps to have their claim restored;

(h) P1 subsequently in November 2020 sought to appeal against the Security Order out of time;

(i) For reasons set out in the March Decision, Deputy Judge Liu refused P1 leave to appeal out of time, and also dismissed P1’s appeal. He further directed that if P2 was to act in person in these proceedings, he should file and serve a Notice to Act in Person with a Hong Kong address stated therein (“the Required NAP”) as soon as practicable;

(j) P2 has not filed the Required NAP. Nor has any solicitor been retained to act for him;

(k) On 26 April 2021, the learned Deputy Judge made an order that unless P2 do file and serve a notice to act by the solicitors retained by him and acting for him in these proceedings, or the Required NAP within 28 days, his claim in these proceedings be struck out with costs without a further order (“the Unless Order”). The learned Deputy Judge further directed that there be a hearing for directions on the further conduct of the case on 24 June 2021;

(l) P2 subsequently wrote to the learned Deputy Judge and requested that he be allowed to give his Singapore address in the notice to act in person to be filed by him;

(m) On 30 April 2021, the learned Deputy Judge directed that the Unless Order be stayed, and P2 should attend the hearing for directions on 24 June 2021;

(n) P2 subsequently on 19 May 2021 put in a Notice to Act in Person, but with a Singapore address;

(o) On 30 May 2021, P2 wrote in and sought an adjournment of the direction hearing due to take place on 24 June 2021 by reason of the COVID-19 pandemic;

(p) For reasons set out in the June Decision, the learned Deputy Judge refused P2’s application for adjournment. However, in the interest of fairness, the learned Deputy Judge gave parties an opportunity to argue the issue as to whether P2 may file and serve a notice to act in person with a foreign address. For that purpose, a 2-hour hearing was directed to take place, which was subsequently set down to be heard on 22 November 2021;

(q) On 18 August 2021, P2 wrote in and sought an adjournment of the 22 November 2021 hearing by reason of the pandemic;

(r) On 31 August 2021, I gave direction that the hearing should stand, but that it be disposed of on the papers; and

(s) Between 11 November and 1 December 2021, parties lodged their first round of written submissions.

3.The main issue now before this Court is whether P2 may file and serve a notice to act in person with a foreign address.

4.According to the records kept in the court file, P2 was between 18 December 2014 and 22 March 2018 granted Legal Aid. On 22 March 2018, his Legal Aid Certificate was discharged.

5.Order 64 rules 1 and 4 stipulate that:

“1. Notice of change of solicitor (O. 67, r. 1)

(1) A party to any cause or matter who sues or defends by a solicitor may change his solicitor without an order for that purpose but, unless and until notice of the change is filed and copies of the notice are lodged and served in accordance with this rule, the former solicitor shall, subject to rules 5 and 6, be considered the solicitor of the party until the final conclusion of the cause or matter, whether in the Court of First Instance or the Court of Appeal.

(2) Notice of a change of solicitor must be filed, and a copy thereof lodged in the Registry.

(3) The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to acknowledgment of service) and on the former solicitor a copy of the notice indorsed with a memorandum stating that the notice has been duly filed in the Registry.

(4) The party giving the notice may perform the duties prescribed by this rule in person or by his new solicitor.

4. Notice of intention to act in person (O. 67, r. 4)

Where a party, after having sued or defended by a solicitor, intends and is entitled to act in person, the change may be made without an order for that purpose and rule 1 shall, with the necessary modifications, apply in relation to a notice of intention to act in person as it applies in relation to a notice of change of solicitor except that the notice of intention to act in person must contain an address for service of the party giving it.”

6.According to the Hong Kong Civil Procedure 2022, Volume 1 §67/4/1:

“The address to be given by the person intending to act in person must be within the jurisdiction; although O.67, r.4 does not explicitly state so, it appears to be [the] case given the interrelationship with this rule and the provisions in O.12, rr.3 and 4: Dianoor International Ltd v. Aiyer Vembu Subramaniam (HCA 806/2008 DHCJ L. Chan, November 19, 2010). See further Questnet Ltd v. Kurt George Rocco Rink (HCA 1475/2006, Chu J., June 15, 2007) and The Owners and/or Demise Charterers of the Ship or Vessel ‘MCC Jakarta’ v. The Owners and/or Demise Charterers of the Ship or Vessel ‘Xin Nan Tai 77’ (HCAJ 48/2011, 30 November 2017, [2017] HKEC 2604).”

7.In that above-cited paragraph, AXA China Region Insurance Company Limited v Leong Fong Cheng, CACV 113/2016 (unrep., 28 October 2016) is not cited. Nor has Mr Chong, counsel for D1, dealt with it in his submissions.

8.In AXA, one of the issues which the Court of Appeal considered related to the operation of Order 6 Rule 5(1)(b). That Rule stipulates that:

“(1) Before a writ is issued it must be indorsed—

…

(b) where the plaintiff sues in person, with the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent.”

9.AXA concerned an appellant who had relocated to and resided in Thailand. She acted in person. She had no local address for service. In her Notice of Appeal, she failed to give an address within the jurisdiction at or to which documents for her may be delivered or sent. She failed as a result to comply with Order 6 Rule 5(1)(b)[3]. Lam VP, applying the modern pragmatic approach to service of process, made a general order for substituted service by sending documents to a local fax number provided by the appellant, deemed that as good service, and waived the non-compliance.

10.As explained in Hong Kong Civil Procedure 2022, Volume 1 §6/5/5:

“… it is possible for the Court to waive the non-compliance of O.6 r.5(1)(b) where the Court considers an order for substituted service more appropriate (AXA China Region Insurance Co Ltd v Leong Fong Cheng [2016] 6 HKC 220, [29]). The Court in AXA China Region Insurance Co Ltd v Leong Fong Cheng [2016] 6 HKC 220 based its decision on the fact that the rationale of O.6 r.5(1)(b) was to ensure that the Court can effectively and efficiently exercise its jurisdiction (at [17]), that documents can be communicated to the party to be served (at [21]); and that the ordered mode of substituted service was not illegal in the country of service (at [25]). It should be noted that the Court in AXA China Region Insurance Co Ltd v Leong Fong Cheng [2016] 6 HKC 220, [40] emphasised that the waiver of O.6 r.5(1)(b) is fact-sensitive and it may not be appropriate in every case for the Court to make an order for substituted service.”

11.AXA is clearly relevant to the issue which this Court is considering. I therefore directed parties to make submissions on it. On 5 January 2022, Mr Chong filed his further submissions. After some delay and extension, P2 lodged his on 2 March 2022.

12.In his further submissions, Mr Chong fairly accepts that if this Court thinks fit to accept P2’s reasons for not complying with Order 67 Rule 4, D1 is prepared (1) to accept that the same principle as explained in AXA is equally applicable to the present case, and (2) to agree with P2 that the mode of substituted service shall be by way of facsimile transmission or email. Mr Chong also helpfully informs this Court that to his knowledge, (1) Singapore is not a country subscribing to the Hague Convention on Service Abroad 1965, (2) there is no bilateral arrangement or agreement between Hong Kong and Singapore on service of judicial documents in civil cases, and (3) substituted service of foreign judicial documents by way of facsimile transmission or email is not illegal in Singapore.

13.In his reply, P2 also urges this Court to adopt the same approach as the Court of Appeal adopted in AXA.

14.D2’s submissions have added nothing to the issue, as he simply says that he wishes early resolution of the case, and respects whatever decision this Court is to make.

15.In the present case, P1 has dropped out of picture. There has been no application by P2 to restore after the Provisional Struck Out Order. What remains is D1’s Counterclaim. It is accepted that P2 is ordinarily resident in Singapore. His Legal Aid Certificate has been discharged. He chooses to act in person. That is his right. He says he has no address in Hong Kong for service. There is no reason suggesting otherwise. He has lodged a notice to act in person. He has given his Singaporean address therein. He has on a number of occasion provided an email address to Court (i.e. “sew...com”[4], the “Email Address”). Communication with P2 via that email address has been successful. In all the circumstances, I am not prepared to strictly enforce the Rules and demand P2 to provide a Hong Kong Address. To do so would be forcing him to engage a solicitor when he intends to act in person, or to provide a Hong Kong service address which he does not have. Striking out his Defence to D1’s Counterclaim upon his failure so to do would debar P2 from defending D1’s Counterclaim, and would in my view be unduly harsh. On the facts of this case, I am therefore prepared to waive the non-compliance. I note that all the initiating processes have been served. In the future, one is concerned with service of documents for the further conduct of the case. In the circumstances I am prepared to make a general order for substituted service of such further documents as necessary upon the Email Address, and deem the service good service. I will not order P2’s Rely and Defence to D1’s Counterclaim to be struck out. The Unless Order is a case management order. It has been stayed. I exercise my case management power and direct that it be discharged.

16.In relation to the general order of substituted service I have ordered, I further note Mr Chong’s submission, with reference to §29 of AXA, that the Court can properly give effect to a mode of service agreed upon by the parties. This is in effect what this Court is seeking to achieve, upon my view that the non-compliance may be excused.

17.For the further conduct of the matter, Mr Chong seeks, in the event of this Court refusing to strike out P2’s Reply and Defence to D1’s Counterclaim, which this Court has now refused to do, direction of the Court directing P2, D1 and D2 to attend a court hearing before the Listing Master. The purpose of that hearing is for D1 to apply for leave to set D1’s Counterclaim down for trial, so that if the Listing Master is satisfied that the parties are ready for trial, such leave may be so granted.

18.As Deputy Judge Liu has observed, this case was commenced in 1998, and it is most unfortunate there has not been a final conclusion up till now.

19.I direct that D1 should within 28 days upon the completion of the current General Adjournment of Proceedings (which is currently set to end on 11 April) take out an application before this Court for leave to set down D1’s Counterclaim for trial. Given the prevailing state of the pandemic, but given at the same time the Government’s ongoing endeavours to modify measures to fight the same, I give D1 liberty, depending on the state of the measures at the time when the application is taken out, to seek directions for the application to be conducted on the papers. In any event, as and when this Court receives the application, this Court will actively exercise its case management powers to decide whether the hearing should be by way of a physical hearing, by paper disposal, or otherwise.

20.I have considered the various complaints P2 has made in his submissions of 1 December 2021, and the directions which he says as a result become necessary. They include query as to where D2’s counterclaim is (when there has been none), complaint that there was “commingling” of D2’s counterclaim in Mr Chong’s written submissions, demand for D2 to file his submissions, complaint about the state of D1’s pleadings after leave by Deputy Judge Liu for D1’s Counterclaim against P1 be withdrawn, request for leave to use his address in Singapore, and for leave to appeal against various orders. They variably lack legal basis, are misconceived, no longer necessary, or are not properly made and are seriously out of time. I refuse to make any of them.

21.I therefore make the directions as stated above.

22.I have considered the nature of and history leading to this Ruling. I order that the costs be in the cause, and that D1’s costs be taxed in accordance with the Legal Aid Regulations.

Written Submissions by the 2^nd Plaintiff

Written Submissions by Mr Mattew CS Chong, instructed by Charles Chan & Co, assigned by Director of Legal Aid, for the 1^st Defendant

Written Submissions by the 2^nd Defendant