Cheng Kwok Sing v. Tam Ping

HCA 190/2023

[2023] HKCFI 2355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 190 OF 2023

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BETWEEN

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DECISION

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1.The defendant is the plaintiff’s ex-husband. They were divorced in the Mainland in 2004. Prior to divorce, they resided at a property at North Point as their matrimonial home in Hong Kong (the “Property”). The Property has been registered in their joint name. It remains so despite the divorce. This is P’s application for default judgment for a declaration that the Property was held by D on constructive trust for P’s sole benefit.

2.During the hearing, I invited Mr Sham to assist this Court on the question of service, in the light of the following:

(a)  For service, the plaintiff relies on O.10 r.1(2)(b).  According to the 2 affirmations of service of the servicer Tse Mun Kan Candy, both the Writ and the Amended Writ were served upon D by inserting the same through the letter box of the Property.  She also states her belief that the documents would have come to D’s attention within 7 days of the purported service;

(b)  The server has not however given any particulars as to why she is able to form that belief;

(c)  Such particulars are important in the present case.  In §10 of the Amended Statement of Claim, the plaintiff pleads that “After divorce, the Defendant spent most of his time living in mainland China but the Defendant still uses the Property as his correspondence address in Hong Kong”;

(d)  O.10 r.1(2)(b)  applies only to service “on a defendant within the jurisdiction …”

(e)  There is no evidence that the defendant was at the material time in Hong Kong;

(f)  Nor is there any evidence that the defendant has acquired any knowledge of the process as a result of the purported service;

(g)  As explained in Hong Kong Civil Procedure 2023 §10/1/13:

“Just as with O.10 r.1(2)(a), the party served must be within the jurisdiction at the time of insertion of the writ through the letter box … Again the writ must be brought to the attention of the defendant. Thus, where a defendant was not living at the address where it was inserted into a letterbox at that address, it was not brought to the defendant’s notice and the service was irregular …”

3.In the end, Mr Sham sought an adjournment to deal with the above. 

4.I there adjourned the Summons, to a date to be fixed, with no order as to costs.  If the plaintiff subsequently intends to withdraw the Summons, the plaintiff may write to this court for leave.

Mr Richard Sham, instructed by Hau, Lau, Li & Yeung, for the plaintiff

The defendant was not represented and did not appear