Secretary for Justice v. Leung Ka Shing

DCCJ 3092/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3092 OF 2006

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BETWEEN

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Coram:  Deputy District Judge R. Cheung in Chambers (open to public)

Date of Hearing:  19^th December 2006

Date of Handing down Reasons for Decision: 21^st December 2006

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DECISION

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1.The Defendant appealed against an Order of the Master made on 13 December 2006, under Order 58 of the Rules of District Court ("RDC"). By the Master's Order, a stay of execution of 7 days was granted on the Writ of Possession and Fieri Facias combined issued herein on 16 November 2006. The Plaintiff asked this Court to uphold the Order of the Master.

2.The Defendant was unrepresented and his homemade summons was served on the Plaintiff on 18 December 2006, less than two clear days before today's hearing. The Plaintiff has no objection to the abridgement of time. I ordered that the time be abridged under Order 58 Rule 1(3) RDC and heard the appeal accordingly.

3.No affidavit was filed. I just heard what the parties told me from the bar table.

4.The thrust of the Plaintiff's case in bringing this claim is that the Defendant is a former Sergeant of the Police Force and was allowed to occupy the subject premises through departmental quarters allocation. The Defendant has since lost that right from 31 October 2005 but he has wrongfully continued in occupation the subject premises as a trespasser. Hence, the Plaintiff claims for possession and payment.

5.The Writ with Statement of Claim endorsed was filed on 23 June 2006.

6.On 6 July 2006, the Defendant filed his Acknowledgment of Service and indicated that he did not intend to defend. He has thus "failed to give notice of intention to defend" under Order 13 RDC.

7.On 21 August 2006, Final & Interlocutory Judgment was entered against the Defendant pursuant to Order 13 Rule 5, RDC. The Final Judgment is for the Defendant to deliver up vacant possession of the subject premises and make payment, the Interlocutory Judgment is for mesne profits to be assessed.

8.On 18 September 2006, the Defendant filed a summons for a stay. The summons was heard on 20 September 2006 wherein the Master granted a stay of 14 days for the Defendant to deliver up vacant possession.

9.On 16 November 2006, the Writ of Possession with Fieri Facias combined was issued.

10.On 12 December 2006, the Defendant again filed a summons for a stay. The summons was heard on 13 December 2006 wherein the Master granted a further stay of 7 days. The present appeal relates to this Order only.

11.Today, the Defendant raised matters which are of no or hardly any relevance to the exercise of my discretion.

12.The Defendant submitted that it was unfair for the Commissioner of Police to compulsorily retire him. He gave an account of the events. I take the view that the decision for his compulsory retirement is an administrative decision not open to my scrutiny. The Defendant's remedy is to seek a judicial review. Indeed he has. His application was first refused by the Court of First Instance and then by the Court of Appeal.

13.The Defendant submitted that he would appeal to the Court of Final Appeal. He also submitted that there are pending "applications" to the Chief Executive and the Legislative Counsel.

14.I am not persuaded by what the Defendant said that I should disturb the Master's decision. I would have applied DBS Bank (Hong Kong) Limited & Others v. Ngai Yim Shing & Others, HCA 897/2000, 29 November 2004 to uphold the Master's decision but for one matter which I would now turn to.

15.The one matter which caused me some concern is the state of the Plaintiff's pleadings.

16.The Statement of Claim contains the following averment:-

"4  (c) an officer who is ………compulsorily retired in accordance with the Police (Discipline) Regulations, is required to vacate his quarters on one month's notice or on termination of active service (excluding any period of terminal leave due), whichever is the later" (emphasis my own).

17.The Statement of Claim contains averments to the effect that the Defendant was compulsorily retired from the Police Force on 27 September 2005 and that by letters dated 30 September 2005 and 25 October 2005, demands were made to the Defendant requiring him to vacate the subject premises before 31 October 2005.

18.Was the termination of the Defendant's licence properly pleaded? There is no averment as to when the notice dated 30 September 2005 was served on the Defendant. There is no averment that the date of compulsory retirement is the same as the date of termination of active service. If the two dates can be different, then the pleading is bad for the want of an averment that the licence was terminated before 31 October 2005. If the Defendant's licence has not been lawfully terminated, he is not a trespasser and the Plaintiff would not be entitled to possession.

19.The pleadings must supply a cause of action and "The words 'cause of action' comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court ……… The phrase comprises every fact which is material to be proved to enable the plaintiff to succeed ……… The words have been defined as meaning 'simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person ………" Hong Kong Civil Procedure 2006, para 15/1/2 refers.

20.A Plaintiff is not entitled to obtain a default judgment unless sufficient particulars are pleaded: "The indorsement of the writ or the statement of claim must set out particulars of the grounds upon which possession of the land is claimed, otherwise judgment in default of notice of intention to defend or of defence will not be allowed to be entered ………" Hong Kong Civil Procedure 2006, para 13/4/1 refers.

21.I have invited the parties to make submissions on the above situation. Government Counsel said she was not in a position to confirm if in fact the date of compulsory retirement and the date of termination of active service are necessarily the same. The Defendant said that he would apply under Order 13 Rule 9 RDC to have the default judgment set aside.

22.To allow time for the Defendant to proceed with the application to set aside, I have ordered that there be a stay of execution for the next 14 days. During the hearing, I might have expressed in a tentative manner that the stay should relate to the Writ of Possession only. The Order to properly reflect my intention should be that the stay is in respect of the Writ of Possession & Fieri Facias combined. I would so order accordingly.

23.I would emphasize that this further stay is granted solely on the above ground and not on any other ground. In particular, I do not consider that the Defendant should be given further indulgence by the Court.

24.I would order that there be no Order as to the costs of this application and of today's hearing.

25.The Master's Order made on 13 December 2006 is thus set aside.

Representation:

Miss Simone Leung, Government Counsel of Department of Justice, for the Plaintiff

The Defendant: appearing in person