YIP LAI FONG v. HONGKONG YIKA TECHNOLOGY LTD

DCMP 817/2021

[2021] HKDC 758

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 817 OF 2021

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REASONS FOR DECISION

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1.  This was the second of two fraud cases I heard on the same day, in both of which the same firm of solicitors represented the plaintiff.  The plaintiff commenced these proceedings by issuing the Originating Summons herein on 23 February 2021 to recover some of the money defrauded which was currently sitting in the defendant’s bank account frozen by the Hong Kong Police.

2.  The hearing was the first hearing of this Originating Summons.  The defendant was absent.  The defendant has not filed its Acknowledgment of Service within time, or at all. I was satisfied that the Originating Summons herein, the Notice of Appointment to Hear Originating Summons dated 19 March 2021 (“P’s Notice”), and the plaintiff’s written submissions were duly served to the defendant.

3.  Under Order 32 rule 5, which by virtue of Order 28 rule 1 of the Rules of the District Court, applies to Originating Summons, the court may proceed in the absence of a party if it thinks it expedient so to do, having been satisfied that the Originating Summons and the notice of the time appointed for the hearing was duly served on the absent party.

4.  But for the following matter, I would have been prepared, and indeed think it expedient, to proceed in the defendant’s absence.

5.  The relevant part of Order 28 rule 3 provides:-

“Notice of hearing (O 28, r 3)

(1) Not less than 14 days before the day fixed under rule 2 for the attendance of the parties before the Court for the hearing of an originating summons which is in Form No. 8 in Appendix A, the party on whose application the day was fixed must serve a copy of the notice fixing it on every other party.

(2) …

(3) Where notice in Form No. 12 in Appendix A is served in accordance with paragraph (1), such notice shall specify what orders or directions the party serving the notice intends to seek at the hearing, and any party served with such notice who wishes to seek different orders or directions must, not less than 7 days before the hearing, serve on every other party a notice specifying the other orders and directions he intends to seek.

(4) If the hearing of an originating summons which is in Form No. 8 or 10 in Appendix A is adjourned and any party to the proceedings desires to apply at the resumed hearing for any order or direction not previously asked for, he must, not less than 7 days before the resumed hearing of the summons, serve on every other party a notice specifying those orders and directions.

(5) …” (my emphasis)

6.  Therefore, Order 28 rule 3(3), which is applicable to the present case, requires mandatorily that the Notice of Appointment to Hear Originating Summons must specify what orders or directions the party serving the Notice intends to obtain at the upcoming hearing, so that the opposite party or parties would be duly informed in advance.  Correspondingly, the party who is served with the Notice who wishes to seek different orders or directions must, not less than 7 days before the hearing, serve on every other party a notice specifying the orders and directions he intends to seek at the upcoming hearing, so that the other party or parties would equally be duly informed in advance.

7.  This is required as the Originating Summons procedure is a relatively flexible one, and depending on the nature of the claim and circumstances, different orders or directions might be thought fit to be sought at a particular stage of the proceedings. Hence, it is only fair and proper that the other party or parties in the proceedings would be given adequate advanced notice before the hearing of what the specific orders or directions to be sought are.

8.  However, the current Form No 12 in Appendix A, expressly referred to in Order 28 rule 3, does not conform to the said requirement as it only states that:-

“If you fail to attend, such order will be made as the Court may think just and expedient.”

9.  §28/3/2 Hong Kong Civil Procedure 2021 has already sounded out a note of caution to practitioners :-

“Form of notice - Practitioners should note that the current Form No. 12 in Appendix A does not conform with the requirements set out in O.28 r.3(3); nor does it state that if any party served with such notice wishes to seek different orders or directions at the hearing, he must serve on every other party a notice specifying those orders or directions within the stated time limit in O.28 r.3(3).”

10.  The plaintiff in the present case has not heeded that caution, and P’s Notice was in Form 12 and has not specified the orders to be sought at this hearing.

11.  As such was a mandatory requirement, I reluctantly adjourned this hearing to a date to be fixed for the plaintiff to issue and serve a Notice of Appointment to Hear Originating Summons in compliance with Order 28 rule 3(3).

12.  I said I would reduce into writing my reason for so doing, which I now do.

13.  This Court hopes that by this written reason for decision, the attention of practitioners at the District Court level may be brought to this matter.