Alfonso Siu Yuen v. Tsang Yiu Kai

HCA001708/1967

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1708 OF 1967.

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

Coram: Huggins, J. in chambers.

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

RULING

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

1. This is an application under o.45 r.3 for leave to issue a writ of possession. The Judgment Creditor has filed an affidavit showing that "a true copy of the Notice" of the judgment in the action was posted in a conspicuous place at the main entrance of the premises on 19th February (What happened to the Notice itself is not stated). On 20th February "a true copy of the same Notice" was similarly posted, but it does not appear whether or not this true copy was the same true copy as was posted on 19th February. On 21st February "a true copy of the same Notice" was similarly posted.

2. On this evidence I was asked to make the order prayed for in the summons and I indicated that I would give in writing my reasons for refusing to do so. I have taken this course because of the large number of applications under the rule which have come before me week after week where the evidence has been inadequate.

3. Sub-rule (3) makes it clear that what is required is that I shall be satisfied "that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears ... sufficient to enable him to apply to the court for any relief to which he may be entitled". Short of proving who are such persons and that notice has been served on every such person personally the applicant must adopt some procedure which will satisfy the judge that the occupants may safely be assumed to have received notice. It is on this basis that the practice of posting a notice is usually adopted. What is, however, frequently overlooked is that a notice of this kind can be effective only so long as it remains in a conspicuous place. If a notice is found in situ on three consecutive days it may be presumed that it has been there continuously and that any occupants will have had an opportunity to read it. But in many cases, as in this case the affidavit shows no such thing. It is not clear whether the copy Notice posted on 20th February was the same copy Notice as was posted on 19th February, but it is a possibility if not a probability that it was not. Where, then, was the first copy and how long did it remain on the premises? Was any enquiry made as to what had become of it and what was the result? The affidavit is silent on all these matters and I am quite unable to say that sufficient notice has been given.

4. Further evidence must be adduced and I adjourned the summons for this to be filed.

Leave to publish.

Representation:

Peter Mo & Co. for Plaintiff - ex parte.