WONG WAI LAP JACK v. TO KING SAU TSO, TANG SHEUNG, Manager of TO KING SAU TSO AND OTHERS

DCCJ 2450/2018

[2025] HKDC 726

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2450 OF 2018

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REASONS FOR DECISION

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The Application

1.  This is an application for default judgment against the 1^st and 3^rd Defendants by the Plaintiff.

Procedural Background 

2.  On 5 June 2018, the Plaintiff issued the Writ of Summons herein with a Statement of Claim attached thereto. 

3.  He claims for, inter alia, declarations against the 1^st to 4^th Defendants that he has acquired possessory title over four pieces of land, namely, Lots No. 598, No. 599, No. 608 and No. 609 in Demarcation District 90 (200 Muk Wun, North, New Territories) (respectively “Lot 598”, “Lot 599”, “Lot 608”, “Lot 609” and collectively “the Lots”) registered under the names of the 1^st to 4^th Defendants respectively. 

4.  Pursuant to the order of Mr. Registrar Lui dated 30 June 2022, the proceedings against the 4^th Defendant have been discontinued by consent.

Service of the Writ and Statement of Claim on the 1^st and 3^rd Defendants

5.  According to the affirmation of service made by a clerk to the Plaintiff’s solicitors, the Writ and Statement of Claim were purportedly served on the 1^st Defendant on 7 June 2018 by sending the same by registered post with a covering letter addressed to the 1^st Defendant at Lot 598, allegedly being the usual and/or last known address of the 1^st Defendant.

6.  Similarly, the Writ and Statement of Claim were on 7 June 2018 sent to the 3^rd Defendant at Lot 608 by registered post, again allegedly being the usual and/or last known address of the 3^rd Defendant.

7.  In addition to the above, copies of the Writ and Statement of Claim were also posted up at the main entrance to the Lots.

8.  It was stated in the affirmation of service that in the opinion of the Plaintiff, the Writ and Statement of Claim would have come to the Defendants’ knowledge within 7 days after the date of posting.  It is also stated that the Writ and Statement of Claim have not been returned by the Defendants or the occupier(s).

9.  No Notice of Intention to Defend has been given by the 1^st or 3^rd Defendants.  

The Plaintiff’s first application for default judgment

10.  On 31 October 2023, the Plaintiff took out a Summons for application for default judgment against the 1^st to 3^rd Defendants (“the Plaintiff’s First Application”). 

11.  The Plaintiff’s First Application was heard by Deputy District Judge Zabrina Lau on 17 January 2024.  The 2^nd Defendant appeared at the hearing but the 1^st and 3^rd Defendants did not.  After hearing the Plaintiff’s representations, the learned Judge entered Judgment for the Plaintiff against the 2^nd Defendant.  

12.  However, the learned Judge did not accept that due notice had been given to the 1^st and 3^rd Defendants, as the Writ and Statement of Claim were served at the very same Lots under the Plaintiff’s alleged exclusive control and possession.  It was not surprising that the 1^st and 3^rd Defendants had not acknowledged service of the documents and those documents were never returned. 

13.  The learned Judge found that service of the Writ and Statement of Claim on the 1^st and 3^rd Defendants was irregular, and the court has no jurisdiction to grant default judgment against them.  The Plaintiff’s application for default judgment against the 1^st and 3^rd Defendants was therefore dismissed.

The Plaintiff’s application for substituted service

14.  By filing an affirmation made by the Plaintiff’s solicitor, namely Ms Lam Yuen Ying, the Plaintiff on 27 March 2024 made an ex-parte application for leave to serve the Writ of Summons (with Statement of Claim attached) by causing an advertisement of the same by inserting once in Hong Kong Economic Journal.

15.  Requisitions were raised in respect of the Plaintiff’s said application.

16.  The Plaintiff thus on 9 August 2024 filed the second affirmation of his solicitor, namely Ms Lam, in which it was stated that, inter alia, death and probate searches on the 1^st and 3^rd Defendants had been conducted with nil results; the Plaintiff has no information on whether the 1^st and 3^rd Defendants had left the jurisdiction, and Ms Lam verily believed that the 1^st and 3^rd Defendants were local residents and submitted that they were within the jurisdiction of Hong Kong; Ms Lam verily believed that the 1^st and 3^rd Defendants were within the jurisdiction and thereby she was of the view that the Writ would come to the knowledge of the 1^st and 3^rd Defendants if the proposed mode of substituted service, i.e. by inserting an advertisement once in Hong Kong Economic Journal, was adopted.

17.  Based on the aforesaid evidence, substituted service on the 1^st and 3^rd Defendants was ordered by a Master on 18 October 2024 as sought by the Plaintiff.

18.  Pursuant to the Order for substituted service, a notice of these proceedings was advertised in Hong Kong Economic Journal on 22 January 2025.

The Plaintiff’s second application for default judgment

19.  On 17 February 2025, the Plaintiff took out the present Summons pursuant to Order 13, rule 6 of the Rules of the District Court, Cap 336H (“RDC”) and inherent jurisdiction of the court for default judgment against the 1^st and 3^rd Defendants (“the Summons”). The Summons was supported by the Plaintiff’s 2^nd Affirmation with exhibits.

20.  Despite the said finding of the learned Deputy District Judge Zabrina Lau that service of the Writ and Statement of Claim on the 1^st and 3^rd Defendants was irregular, as the same were served at the very same Lots under the Plaintiff’s alleged exclusive control and possession, the Plaintiff’s solicitors still chose to serve the Summons and the supporting affirmation on the 1^st and 3^rd Defendants by sending ordinary post to Lot 598 and Lot 608, allegedly being the respective last known addresses of the 1^st and 3^rd Defendants.

The hearing on 3 April 2025

21.  The application was heard by me on 3 April 2025.  The 1^st and 3^rd Defendants did not appear at the hearing.  I raised my concern in respect of the service of the Summons and supporting affirmation as aforesaid, which in my view is a costs wasting exercise.  I also point out to Ms Lam, solicitor appearing for the Plaintiff, that under Order 65, rule 9 of the RDC, those documents need not be served on the 1^st or 3^rd Defendants in the present situation, although it would be a good practice for a plaintiff to serve the Summons on the defendant(s) in appropriate cases. 

22.  After discussing with Ms Lam at the hearing, I granted leave to the Plaintiff to make certain amendments to his Statement of Claim, as the same in my view contains certain errors, the most obvious one is that it has been pleaded that “Varieties of plants including trees and fruits have been grown by the Plaintiff during the past 50 years”, but in fact the Plaintiff was only 46 years old at the date of the Statement of Claim.   I dispensed with service of the Amended Statement of Claim.  The Plaintiff’s application was adjourned to 15 April 2025.  I made no order as to costs (and no Legal Aid taxation) in respect of the amendments and the hearing on 3 April 2025.  I also invited the Plaintiff to consider pleading the fact as to the date of the 3^rd Defendant becoming the registered owner of Lot 608 in the Amended Statement of Claim, as such facts in respect of the 1^st, 2^nd and 4^th Defendants had been pleaded in the Statement of Claim but not that of the 3^rd Defendant.

The hearing on 15 April 2025  

23.  The Plaintiff had filed the Amended Writ of Summons with Amended Statement of Claim attached thereto in court before the adjourned hearing on 15 April 2025.

24.  As I indicated at the beginning of the hearing to Ms Lam, this court does not have inherent jurisdiction.  Hence, the Plaintiff cannot rely on “inherent jurisdiction of the Court” as stated in the margin notes of the Summons.

25.  Further, the Plaintiff’s reliance on Order 13, rule 6 of the RDC is also misconceived because the court cannot enter default judgment in respect of a claim for declaration under that rule.  As stated in §13/6/1, the Hong Kong Civil Procedure 2025, Vol 1 (“HKCP”):

“The effect of para.(1) is to preclude a plaintiff from entering judgment in default of notice of intention to defend in every case in which the indorsement on the writ contains or includes a claim which is not squarely within rr.1 to 4 of this Order, and to require him to proceed with the action as if that defendant had given notice of intention to defend. If, therefore, there is indorsed on the writ a claim for an account, injunction, specific performance, declaration or rectification or other remedy or relief which falls outside the descriptions specified in rr.1 to 4, the plaintiff cannot enter judgment in default of notice of intention to defend, unless he expressly and finally abandons every such remedy or relief...”

26.  Ms Lam then refer me to Order 19, rule 7 of the RDC and submitted that the Plaintiff is entitled to apply for default judgment as the 1^st and 3^rd Defendants have not filed and served any defence.

27.  As Godfrey, J.A. said in Premier Fashion Wears Ltd & Anor v Chow Cheuk Man & Anor [1994] 1 HKLR 377 at 383, lines 28‑32:

“The true principle is that, in asking for an order from the court, a party is not bound to state under which rule or order he proposes to move. It frequently happens that parties move under a particular rule and then, when they find it is a wrong one, turn to another and an order is made : see In re Baker’s Estate, Hetherington v. Longrigg (1878) 10 Ch D 162, at pp165-166.”

28.  Further, I am of the view that the erroneous reliance on Order 13, rule 6 of the RDC and inherent jurisdiction of the Court in the Plaintiff’s Summons should be treated as an irregularity and shall not nullify the application, which I am entitled to correct under Order 2, rule 1 of the RDC.  In the absence of any prejudice to the 1^st or the 3^rd Defendants, I shall correct the irregularity by treating the Plaintiff’s Summons as an application made under Order 19, rule 7 of the RDC, and the Plaintiff’s application was proceeded on such basis.

29.  As stated in §19/7/11, §19/7/14 and §19/7/20 of HKCP, under Order 19, rule 7:

(1)  The court cannot receive any evidence, but must give judgment according to the pleadings alone.  It is therefore not necessary on the hearing of the summons to prove the case by evidence.  The costs of any affidavits in support of the claim will be disallowed;

(2)  The statement of claim must show a case for the order the applicant seeks to obtain.  The court’s power to grant judgment under O.19, r.7 is discretionary.  The court’s task in exercising its discretion is to see whether the plaintiff appears to be entitled to judgment on the statement of claim; and

(3)  It is not the normal practice of the court to make a declaration without a trial.  However, this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied.

30.  I therefore am of the view that I could not and should not consider the supporting affirmation made by the Plaintiff.  Ms Lam agreed and made no submissions on costs of the supporting affirmation.

31.  In the circumstances, I proceeded to consider whether the Plaintiff is entitled to the relief against the 1^st and 3^rd Defendants, which are declarations, according to the Amended Statement of Claim.

Application for default judgment against the 1st Defendant – Lot 598

32.  It is well established that factual possession and intention to possess are the two requirements for acquiring possessory title by adverse possession.

33.  Having considered the Plaintiff’s Amended Statement of Claim, I am satisfied that the two requirements for adverse possession have been met. According to the Amended Statement of Claim:

(1)  The Plaintiff has been in possession of Lot 598 (and other Lots) for at least 28 years;

(2)  At all material times, he has had exclusive control and possession of the Lot without the consent or permission of the registered owner;

(3)  Fence surrounding the area consisting of, inter alia, Lot 598 was installed to prevent others from entering.;

(4)  Varieties of plants have been grown by the Plaintiff there for at least 28 years; and

(5)  The Plaintiff intended to and did possess the area including Lot 598 to the exclusion of other people, and still intends to use the area for farming, planting and storage of farm tools.

34.  In conclusion, I am satisfied that the Plaintiff has been in adverse possession of Lot 598 for a continuous period of more than 20 years prior to the commencement of these proceedings, and therefore is entitled to a declaration against the 1^st Defendant.

35.  I therefore entered judgment against the 1^st Defendant and made an order in terms of paragraph 1 of the Summons filed on 17 February 2025 as amended as follows, namely a declaration that:

(1)  the Plaintiff has acquired a possessory title to Lot No. 598 in D.D. 90;

(2)  the 1st Defendant’s title over Lot No. 598 in D.D. 90 have been extinguished by virtue of Section 17 of the Limitation Ordinance, Cap 347;

36.  I made no order as to costs of these proceedings against the 1^st Defendant.

Application for default judgment against the 3rd Defendant – Lot 608

37.  In the Amended Statement of Claim, it is pleaded in sub-paragraph 2(c) that “The 3^rd Defendant has been the registered owner of the 608 Land since 1^st July 1898”.

38.  Now is 2025.  The Plaintiff’s aforesaid plea means that the 3^rd Defendant has been the registered owner of Lot 608 since 127 years ago.  I therefore asked Ms Lam if she was sure that the 3^rd Defendant was still alive.  Ms Lam frankly admitted that it was her belief that the 3^rd Defendant was not alive.

39.  If that was the case the action brought by the Plaintiff against the 3^rd Defendant would be treated as having been commenced against his / her estate: see Order 15, rule 6A of the RDC.

40.  However, when the Plaintiff applied for the order for substituted service, Ms Lam in her second affirmation produced, inter alia, the land search record of Lot 608 and affirmed that she verily believed that the 3^rd Defendant was within the jurisdiction of Hong Kong and was of the view that the Writ of Summons would come to the knowledge (of the 3^rd Defendant) if the proposed mode of substituted service, i.e. by inserting an advertisement once in Hong Kong Economic Journal, was adopted.

41.  I asked Ms Lam on what basis she formed such view that the Writ of Summons would come to the 3^rd Defendant’s knowledge when she believed that the 3^rd Defendant was no longer alive.  Ms Lam replied that at the time of the said affirmation she did not have the relevant information, which I believe she was referring to the fact that the 3^rd Defendant had been the registered owner of Lot 608 since 1^st July 1898 as pleaded in the Amended Statement of Claim, and therefore did not realise that the 3^rd Defendant was not alive.

42.  Although Ms Lam repeatedly insisted that she had no intention to mislead the court when she gave the aforesaid view in her 2^nd affirmation, the fact remains that the learned Master upon reading Ms Lam’s 2^nd affirmation and other documents granted the order for substituted service.

43.  Ms Lam agreed that in such circumstances, the application against the 3^rd Defendant should be dismissed.

44.  I therefore dismissed the Plaintiff’s application for default judgment against the 3^rd Defendant in respect of Lot 608 under the Summons with no order as to costs.  I also invite the Plaintiff to consider what appropriate action(s) should be taken under Order 15, rule 6A, rule 7 and/or rule 15 of the RDC.

45.  Since the Plaintiff is legally aided, there should be no justification for the taxpayer to bear the costs of the works done for the amendments to the Statement of Claim and the said supporting affirmation for the present application. 

46.  I thus ordered that the Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations, save and except the costs of and occasioned by the amendments to the Writ of Summons with the Statement of Claim attached thereto and the costs of and occasioned by the drafting, filing and serving of the 2nd Affirmation of Wong Wai Lap Jack.

Postscript

47.  Lastly, I would say that this case has highlighted the importance of identifying and following the correct procedures in application for default judgment.  For such kind of application the defendant would very likely be absent at the hearing.  However, it does not mean that the court would act as a rubber stamp or that the application is simply a formal exercise which can be handled without due care.  Given the nature of such application, which is akin to an ex parte application, it is even more important for the plaintiff’s legal representative to prepare the application carefully and properly, including checking the relevant rules in the RDC and the commentaries in HKCP.  Apparently, failure to comply with the proper procedures would lead to a waste of costs and time, and a waste of the public fund when the plaintiff is legally aided.