Fong Shing Cotton Mill (Hong Kong) Ltd v. Chan Hing and Others

HCMP000566/1976

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO.566 OF 1976

-----------------

-----------------

Coram: Cons, J., in Chambers.

Date of Judgment: 27th October, 1976.

-----------------

JUDGMENT

-----------------

1. This is an originating summons brought under Order 113 of the Rules of the Supreme Court of England. That order provides for swift and simple recovery of possession against trespassers and may also be used where the plaintiff is unable to identify any or every person in occupation, who ought otherwise to be named as defendant, provided he has taken all reasonable steps to do so. The present summons is technically defective and must in any event be dismissed. But I am told that there is some doubt in the profession whether it was correctly available in the first place and that it would be helpful to have some indication from the Court.

2. When the Supreme Court was first established in 1844 it was provided that the practice and proceedings of the Court should be "the practice of the English Courts .......... until otherwise ordered by any rule of the (Supreme Court)": Ordinance 15 of 1844 section 3. Two years and two ordinances later the "practice of the English Courts" was crystalized as at the 5th April 1843, being the date when Hong Kong obtained its own Legislature: Ordinance 2 of 1846 section 3. Thirty years later the Code of Civil Procedure generally replaced the old English practice but saved it together with other legislation "as regards any matters for which no special provision may have been made by" the Code : Ordinance 14 of 1873 section 4. That was the position for just over one hundred years. There were changes in the wording meanwhile but the only change of practical effect was in 1937 when the "old" practice of the English Courts was replaced by their practice "for the time being". We cannot now discover the reason for that change. It may well be that as time passed by it became more and more difficult to discover what the old practice was. This was the reason given for a later change in similar legislation dealing with substantive law: the Application of English Law Ordinance, Cap. 88.

3. The position earlier this year was governed by section 6 of what was then the Supreme Court Ordinance:

The "provisions of this Ordinance" were contained in section 38. This dealt with the making of Rules of Court and added:-

4. Clearly the availability of a summons such as we are now concerned with would have depended upon whether one looked at the "recovery of land from unidentified trespassers" as a case by itself or merely as part and parcel of a larger subject, the "recovery of land generally".

5. The present legislation is not quite the same. The present Ordinance reads:-

6. Section 54 provides for the making of rules of the Court. There is no longer reference to the English practice or any "saving clause". Counsel suggests that despite the variation I should be slow to find that there has been any change in the law; that the general principles of construction are favourable to the preservation of existing law, particularly where the new legislation consists of a consolidating statute: Maxwell on Interpretation of Statutes, 12th Ed., p.116. If that were so he may well have failed in his submission. I would not be easily persuaded that difficulty in discovering the identity of a trespasser places the action against him in a class by itself. But I note that the present Ordinance is expressly said "to amend" as well as "to consolidate" the existing law. The draftsman did not consciously make any radical change in this respect. The explanatory memorandum which accompanied the Bill said that section 17 was one of those "to follow in essence the corresponding provisions of the existing (Ordinance)". But this is not to be taken into account: Danford v. McAnulty⁽¹⁾.

7. I have set out the substantial history of this matter partly out of interest and partly to indicate that perhaps the Legislature did not intend to change what has generally been accepted, that is, to treat the English practice as a reserve to draw upon when our own resources have failed. However the courts cannot go behind the clear words of a statute. And to my mind the words of section 17 are clear. The current English practice is to apply in this Colony subject only to such rules as we may make here. We have in fact made many. We now have a practice as detailed and as comprehensive as the English one itself. However none of the provisions, as far as I am aware, is inconsistent with or prohibitive of what is set out in English Order 113. So long therefore as that order is a matter of practice it must apply here.

8. Where the order deals with identified defendants it clearly is a matter of practice. It does little more than shorten the old procedure. But the nature of that part which deals with unidentified trespassers is not so clear. The plaintiff now has something tangible that he did not have before. The learned editors of the White Book do not see any difficulties. They say:

"This Order does not provide a new remedy but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers. Its machinery is designed to overcome the apparent shortcomings of the present procedural law ......." (113/1-8/1).

However, with every respect to those learned editors it is a new remedy - it cures what was previously a defect. And new remedies create new rights. That has been realized for centuries. The real question is whether that right is substantive or procedural. I think it is procedural. A person entitled to immediate possession has always had the substantive right to eject trespassers. If he were capable he could do so of his own accord. Frequently he preferred to enlist the help of the Court. In that case he had to identify the trespasser sufficiently to the Court so that a summons could be served upon that trespasser and that trespasser thereby given the opportunity to appear and defend. Now that requirement is not necessary. The Court will come to the plaintiff's assistance so long as it is satisfied that reasonable steps have been taken to acquaint the trespasser with the proceedings and give him the opportunity to come to Court if he so wishes. What the Order has done is to widen the path to the Court, not to change the law applied inside. The English Court has adapted its formal process to modern social circum-stances. This must be regarded as a matter of practice.

9. I should perhaps add that although counsel did his utmost to be impartial, my conclusion is based upon argument from one side only.

Representation:

Martin Lee (Deacons) for the plaintiff.

Named defendants absent

(1) 8 A.C. 456.