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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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SECRETARY FOR JUSTICE |
Plaintiff |
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and |
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LEUNG KA SHING |
Defendant |
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Coram: Deputy District Judge R. Cheung in Chambers (open to public)
Date of Hearing: 23rd March 2007
Date of Handing down Decision: 27th March 2007
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DECISION
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1.This is the Defendant's application to set aside the Default Judgment herein entered on 21 August 2006. The application is opposed by the Plaintiff.
2.Before I come to the grounds for the Defendant's application, I should first refer to the decision that I had previously made in these proceedings on 21 December 2006. I had then heard the Defendant's appeal against an Order made by the Master. The Master granted him a 7 days stay of execution on the Writ of Possession & Fieri Facias combined. The Defendant wanted a longer stay. I had ordered the Master's order to be set aside. The basis of my previous decision is that the Statement of Claim herein was defective.
3.Since I made my previous decision, I have had time to further reflect on the matter. I have come to the firm conclusion that my previous decision was incorrect.
4.It would be convenient at this juncture to set out the entire text of my previous decision below. This should serve to explain the background of the Defendant's present application.
"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."
5.My previous decision was premised on the erroneous view that the Plaintiff had failed to plead the termination of the Defendant's licence to occupy the subject premises. That view is erroneous as there is no need to expressly supply that averment in the Statement of Claim by reason of Order 18 Rule 7(4) of the Rules of District Court, which reads: "A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for the case of a party is to be implied in his pleading". For supporting authorities on this point, I would rely on (1) Gates v. W.A. and R.J. Jacobs Limited, (1920) 1 Ch 567 and (2) Treasure Rock Development Limited v. Splendid Duesseldorf Production Limited, HCA 1784/1995, 18 October 1995 .
6.I was not referred to Order 18 Rule 7(4) during the previous hearing of the Appeal. Had I been referred to that, I would have upheld the Master's Order instead of setting it aside. At the hearing of the Defendant's present application to set aside the Default Judgment, I have invited the parties to address me on the significance of Order 18 Rule 7(4). Nothing needs to be said about the submissions that I have heard.
7.I consider the Default Judgment herein to be a regular judgment. The Statement of Claim is not defective for want of material averments.
8.The considerations pertaining to the exercise of my discretion to set aside a regular default judgment have been succinctly set out in Hong Kong Civil Procedure 2007, paras 13/9/12-13/9/14 . I do not propose to repeat the contents here.
9.The grounds advanced by the Defendant for his present application are basically twofold. First, the Defendant says that the Statement of Claim is defective. This I have already dealt with. Second, the Defendant also says that (1) there is an ambiguity as to the date of the termination of his active service; (2) that the Civil Service Regulations CSR 872(1) gives him the right of continued occupation of the subject premises should he be willing to pay the market rent therefor; and (3) the letter from the Department of Justice did not enclose a demand note and did not state how such payment was to be made; and (4) he has a deferred pension of about $1 million held by the Government.
10.None of the above contentions whether considered in isolation or in combination amount to a meritorious defence. The Defendant does not have a real prospect of success.
11.I note that since my previous decision, the Plaintiff has filed affidavit evidence to show that the date of the compulsory retirement of the Defendant and the date of termination of his active service both fell on 27 September 2005. The Defendant has not disputed that although he says that there is an ambiguity. The ambiguity he mentioned appears to stem from what was said in a letter dated 17 October 2005 sent to him by the Commissioner of Police. In effect the letter said that on 29 July 2005, the Defendant was ordered to retire on a compulsory basis. The Defendant appealed against that administrative decision but the decision was upheld on appeal on 22 September 2005. The Defendant then applied to the Commissioner of Police for a remission of the penalty imposed on him. The Commissioner of Police considered his application and maintained the penalty originally imposed.
12.The so called ambiguity does not detract from my view that the Defendant does not have a meritorious defence. In any event, I note that the affidavit evidence before also includes a letter from the Commissioner of Police to the Defendant dated 30 September 2005 in which it was stated that his compulsory retirement took effect from 27 September 2005, which is the date so pleaded in paragraph 5 of the Statement of Claim.
13.On the question of costs, I consider that I should depart from the usual rule that costs should follow the event as it was the previous error on my part that has led to the Defendant's present application.
14.I would make the following orders accordingly:
(1) The Defendant's application by way of the summons filed herein on 10 January 2007 for the setting aside of the Default Judgment herein is dismissed.
(2) There be an Order Nisi that there be no order as to costs for the Defendant's above application. For the avoidance of doubt, this includes the costs of the hearing on 17 January 2007 and the costs of the hearing on 23 March 2007. Unless there is an application to vary this Order Nisi, it shall become absolute in 14 days.
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(R. Cheung)
Deputy District Judge |
Representation:
Miss Simone Leung, Government Counsel of Department of Justice, for the Plaintiff
The Defendant: appearing in person
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