PAK LO MAI MARY v. ANHAI CLAN ASSOCIATION LTD

Property law - whether service of Form CR101 deemed to be effected where registered letter undelivered by Post Office and later unclaimed by addressee from nearby Post Office - three of the four statutory service alternatives may conclusively establish service but service by post only raises a rebuttable presumption - burden on addressee to prove she did not receive the notification to attend at nearby post office to claim undelivered letter - unusual facts including ambiguously addressed letter and two similar marked letter boxes for different flats each including elements of the envelope address - Held:

IN THE LANDS TRIBUNAL OF HONG KONG

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JUDGMENT

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1. In this application for a new tenancy, brought pursuant to Section 117 (1) of the Landlord and Tenant (Consolidation) Ordinance Cap,7 ("the Ordinance") a preliminary dispute arose whether the Respondent had terminated the current tenancy, by duly serving a Form CR101 on the Applicant. The application for a new tenancy was made on 30th October 1996 when the Applicant also filed an interlocutory application to determine service and a related issue.

2. After an earlier hearing, it was agreed that oral evidence on the interlocutory issues, should be adduced. The substantive application for a the new tenancy was then set down for hearing on 5th March 1997, with the question of service, to be first determined as a preliminary issue. The contractual tenancy had been granted for a duration of 2 years from 1st July 1994 at a rent of $8,500 per month. The tenancy was statutorily continued until it was purportedly terminated by a Form CR101 dated 1st April 1996, expressed to terminate the tenancy on 31st October 1996. The new tenancy application was therefore filed one day earlier on 30th October 1996.

3. The precise postal address of the suit premises became an important factor on the issue of service. The Schedule to the tenancy agreement does not purport to specify the postal address of the suit premises but provides their legal description which is as follows:

          "ALL THAT PORTION of BLOCK E on the SEVENTEENTH FLOOR (which said portion is more particularly shown on the Plan annexed hereto and thereon coloured Pink and marked "E1" of the building known as THAI KONG BUILDING Nos.480-482 Hennessy Road Hong Kong erected on ALL THAT piece or parcel of ground registered in the Land Office as Inland Lot No.3582."

The Form CR101 was addressed by the Respondent's solicitors to the Applicant at Portion E1, Flat E, 17th Floor. The letter boxes on the Ground Floor of the Thai Kong Building, included two which were marked "17FL. E" and "17FL. E1" respectively.

4. Section 119Y of the Ordinance provides for four alternative methods of service of a Form CR101 or other documents. These methods are by personal service; by post; by leaving the notice with an adult occupier of the premises; and by affixing a copy to a prominent part of the premises. Where service is attempted to be effected by post, Section 8 of the Interpretation and General Clauses Ordinance, Cap 1, provides that "unless the contrary is proved, such service or notice shall be deemed to have been effected at the time at which the document or notice would be delivered in the ordinary course of post."

5. The proof of the statutory elements under three of those four alternatives, may conclusively establish that the tenant has been served. The remaining alternative of service by post, only raises a rebut table presumption, that service was effected in the ordinary course of post. Although all four alternatives are, as a matter of law, equally valid methods of service, the Tribunal has previously remarked upon the dangers of resorting to service of a Form CR101 by post. The inherent risks of service by post are increased by the fact that a Form CR101 must also be served within strict statutory time limits. While there is a limited power of enlargement, there is no power of abridgement. Landlord's who fail to effect timely service usually require abridgment, not enlargement.

6. The Respondent elected to effect service only by means of registered post. I find that the registered letter containing the Form CR101 - a copy of which was produced as Exhibit R1 - was posted by the Respondent's solicitors to the Applicant on 1st April 1996 but later returned to them by the Post Office as unclaimed. I confirm that the relevant part of the addressed envelope included the words "Portion E1, Flat E, 17th Floor." Different elements of that address each corresponded with the descriptions on the separate letter boxes for the two adjoining 17th Floor premises, only distinguished from each other by their respective markings of "E" and "E1".

7. At this stage I will assume without deciding, that the address was sufficently similar to the Applicant's postal address, to give rise to the presumption under Section 8. On this basis, the burden passed to the Applicant to satisfy the Tribunal, on the balance of probabilities, that she did not receive the registered letter, in the ordinary course of post. The last day for effecting service was 30th April 1996. So this was a case, unlike too many others, where the Post Office was given a reasonable period in which to attempt to deliver the letter. The Applicant denied she received that letter or any related notification from the Post Office.

8. The Respondent accepted that the letter had not been delivered by the Post Office. However, it asserted that the Applicant after receiving notification from the Post Office that a registered letter was awaiting her collection at the Causeway Bay Post Office, failed to attend at the Post Office to collect that particular letter. Counsel for the Respondent submitted that where the addressee of an undelivered registered letter, receives notification that it is available for collection, service is deemed to have been effected, if she fails within a reasonable time, to attend for collection at the named Post Office.

9. The disputed issue is therefore factually narrowed to whether the Applicant received notification that a registered letter was available for collection at a named Post Office. If that issue is determined in the affirmative, the consequential legal issue will arise whether the Applicant was obliged to participate in a statutory postal service process, initiated by the Respondent, to the extent of having to leave the suit premises and travel to the Post Office to collect the registered letter.

10. The Applicant in giving evidence, confirmed the contents of her three affirmations filed herein. She identified her letter box as "17FL E1" and stated she checked it on a daily basis and had never received the registered letter or any notification that a registered letter was available for collection at a Post Office. The photographs and the plan she produced, which was the same plan also produced as Exhibit R2, showed that another letter box, also including appropriate Chinese characters, was marked "17FL E."

11. The Applicant stated that mail was usually addressed to her at Block E1 or Flat E1. Samples of letters similarly addressed as "Portion E, Flat E1, 17th Floor" and "Flat E1, 17th Floor" were produced as Exhibits A7 and A8. The Applicant pointed out that the Respondents solicitors, Messrs Clayton Wong, in other correspondence had never used the "Flat E" reference, included by them for the first time in the address of the undelivered Form CR101 registered letter. The Applicant produced as Exhibits A1 and A2, another registered and also an unregistered letter from Mesrs. Clayton Wong & Co., both of which were addressed to her at "Block E1, 17th floor."

12. The Applicant stated that the neighbouring Flat E, 17th Floor, was vacant during April 1996, when the Post Office unsuccessfully attempted to deliver the Form CR101 registered letter. The Applicant also produced copies of two letters delivered by the Post Office earlier this year to her 17FL E1 letter box but addressed to "St. Jomary Tutorial Centre, Room 2E 17/F." The Applicant stated that the only person, other than herself, who had a key to her letter box was her brother. On questioning, he told her, that he had never seen or collected from the letter box, any notification that a registered letter was held at a Post Office for collection.

13. The Respondent first called its Secretary, Mr. Tseng Hua Tung, to give evidence and he confirmed the contents of his affirmation dated 3rd December 1996 and filed herein. He had affirmed that the Form CR101 was sent by the Respondent's solicitors to the Applicant by registered post on 1st April 1996. He affirmed that the letter was returned undelivered to the solicitors during May 1996 and agreed that the Respondent never thereafter reminded the Applicant of the existence of the Form CR101. Mr. Tseng went on to observe, correctly so far as the law is concerned, that they were under no obligation to do so and further commented that any such failure was irrelevant.

14. The Respondent also called Mr. Chak Chi-kwong, a Postman, currently employed at the Post Office Wanchai Delivery Office. Mr. Chak stated that during 1996 he was responsible for the delivery of letters to the Thai Kong Building and on occasion was assisted by a junior colleague. He stated that each month he would have delivered thousands of letters to addresses in that Building. When shown the undelivered Form CR101 letter, he understandably did not recollect unsuccessfully attempting to deliver that particular letter.

15. However, the Tribunal had the benefit of very clear evidence of his general delivery practice, which he was confident would also have been followed by his colleague. In the case of registered letters, he would make one or two attempts to hand the letter personally to the addressee and obtain a written receipt. If unsuccessful he would leave a notification card in the letter box of the addressee, requesting that person to call at the Post Office named in the notice, to collect the letter.

16. On being shown the returned Form CR101 letter, he was sure he or his colleague, would for that letter, have followed the same procedure. He pointed out that the Post Office records showed the first attempts to deliver the letter were made on 3rd April 1996, which was close to the Easter holidays. The Tribunal takes judicial notice that the Easter holiday period was from 5th to 8th April 1996. However, the intervention of the Easter holidays would not, in this case, have been fatal to the Respondent because the last day for effecting service was not until 30th April 1996.

17. Mr. Chak stated that where the particulars of an address were unclear, he would put the letter into the letter box which appeared more closely to resemble the envelope address. In those cases his practice was to put a pencil line through the address or endorse it with a query. This evidence corresponded with what appeared to have occurred in the case of the two Room 2E, 17/F letters - Exhibits A6 and A7. Under that practice, he agreed, there were three possible consequences. If it was the correct letter box, the letter would be accepted. If not, any occupant, would usually return the letter to the postman. However, if the premises were vacant, he conceded that the letter or notice, would probably remain in the letter box uncollected.

18. Mr. Chak was able to give more specific evidence relating to the letter boxes on the 17th Floor of the Thai Kong Building. He recalled that some months ago, he attempted to deliver registered letters to Flat E, 17th Floor but he obtained no response. On that occasion he did not follow his normal practice of leaving a notice in the letter box of Flat E requesting the addressee to call and collect the letter at a Post Office. He explained that the letters were too large to be left in the letter box. The Tribunal observes that if they were sufficently small, he would still not on his earlier evidence, have delivered the letter but would only have left the customary notice in the letter box.

19. On this occasion, Mr. Chak instead took the commendable initiative of enquiring of the caretaker and discovered that Flat E was vacant. This resulted in the undelivered letters being returned. In the case of the Form CR101 letter, Mr. Chak, in evidence-in-chief and under cross-examination, stated he would have delivered it to Letter Box E1 and not to Letter Box E. He explained that he would have followed this course, because the "Portion E1" particulars, preceded the reference to "Flat E, 17th floor." This was clearly a very crucial matter and to avoid any ambiguity or misunderstanding of his evidence, the Tribunal itself then put similar questions to Mr. Chak, who confirmed his prior evidence.

20. The relevant evidence for the Applicant was that neither she nor her brother, had received any request or notification to attend at the Post Office to collect an undelivered registered letter. The evidence of her brother's statement was hearsay but I reminded myself, that under Section 10(6) of the Lands Tribunal Ordinance Cap.17, it was admissible and it was open to the Tribunal to attach such weight to it as may be appropriate in the circumstances. Although Mr. Chak had no recollection of the attempts to deliver the Form CR101 letter, his evidence as to his usual practice, was given clearly and confidently.

21. Mr. Chak remained perhaps excessively emphatic, that he and his colleague would have delivered a letter addressed in terms of the Form CR101 envelope, to Letter Box E1 and not to Letter Box E. Where the Tribunal is satisfied that a letter has been posted, it naturally considers with care and even suspicion, a denial by the addressee of its subsequent receipt. The burden on the addressee, to rebut the statutory presumption, is not to be lightly discharged. In the present case there was no positive evidence that the Applicant had attempted to avoid or evade service.

22. After listening to and evaluating the evidence of the Applicant and Mr. Chak, I find that they were basically honest witnesses. The next matter to consider is their reliability. The Applicant's evidence, from her own personal recollection was positive, consistent and credible. The disadvantage of Mr. Chak having to give his evidence based on usual practice was, to some extent, mitigated by his emphatic explanation that having now viewed the Form CR101 envelope, he would have delivered it into Letter Box E1.

23. If the evidence on this major contradiction had typically been more limited, it may be that the Applicant would have failed to tilt the balance in her favour. In assessing her credibility, against the background of the whole of the evidence, I also give weight to several unusual factors. These include the fact that for the 17th Floor, there were separate letter boxes for Flat E and Flat E1. The Respondent's solicitors, compared to their other correspondence, uniquely added to the address of this important letter, the words "Flat E." When the Post Office attempted to deliver this letter Flat E was vacant. Any notification left in its letter box would probably have remained uncollected.

24. I accept that some elements of the evidence, support the conflicting allegations of each party. After reviewing the whole of the evidence, it strongly reinforces my favourable view of the Applicant's credibility and honesty. This leads me to accept as true her evidence of her brother's statement. I also have no reason to disbelieve the contents of his statement. I am equally satisfied that her testimony is reliable. I have found that Mr. Chak was basically an honest witness. However, I now find that he erred, if honestly, in his recollection that he or his colleague, would have delivered the Form CR101 letter to Letter Box E1. To the extent that the evidence of the Applicant and Mr. Chak conflicts, I prefer her evidence. On the probabilities the notice may have been left in Letter Box "E" but I am satisfied it was not left in Letter Box "E1."

25. On these findings, I held that the Applicant had established that the notification to call at the Causeway Bay Post Office, had not been delivered to her letter box. In view of this holding it is unnecessary to go on to consider, where such a notification is served, the precise time when service of the Form CR101 is deemed to occur. It is also unnecessary to consider, where an election is made to effect service by post, whether this imposes a duty on an addressee, positively to participate in the service process, by having to attend and collect the undelivered letter at the named Post Office.

26. The Tribunal's conclusion also makes it unnecessary to consider the alternative order sought by the Applicant, to enlarge time for service of a Form CR102. The application for a new tenancy was made before the date of termination specified in the Form CR101. It would not therefore have been adversely affected by the Court of Appeal's judgments in Sin Hua Trust Savings & Commercial Bank Ltd v. Ng Yee May [1983-85] CPR.263 and Ram Isardas Mahtani v. Wong Kwok Tai [1989] 2 HKLR 296, [1989-91] CPR 234.

27. More recently the Court of Appeal has upheld the Tribunal's long practice of enlarging time for service of pre-application statutory forms such as Form CR102 - Law Chee Sing v. Lau Kwong Kun [1992-93] CPR 169. However, it still remains judicially undetermined, whether that power can be exercised to enlarge the time to serve a Form CR102, beyond the date of termination, specified in a Form CR101. The Tribunal having held that Form CR101 was never served, these subsequent matters are rendered irrelevant. In the result the Tribunal appreciates, that these proceedings may have raised more questions, than answers. However, it expressly refrains from making any further comments, on these now irrelevant issues.

28. The Tribunal finally turns to costs. The usual costs discretion, is considerably fettered in this application, by the restrictive provisions of Section 119R of the Ordinance. It is clearly inappropriate to make any order as to costs, because I am satisfied that on the complicated issues involved in these proceedings, neither party has conducted their case in a frivolous or vexatious manner.

29. For these reasons at the end of the hearing, I made the following orders:

Dated this 14th day of March 1997.