WORLDPART INDUSTRIAL LTD v. ALL OCCUPIERS OF LOT NO. 1198 AND THE REMAINING PORTION OF LOT NO. 1220 BOTH IN DEMARCATION DISTRICT NO. 83, FANLING, NEW TERRITORIES, HONG KONG AND ANOTHER

HCMP 50/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 50 OF 2005

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JUDGMENT

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1.  The Summonses before me were taken out on 14 March 2016 by Ho Chi (“the Applicant”), who claims to be an occupier of the Remaining Portion of Lot 1220 in Demarcation District 83 (“the Land”), to set aside the judgment of Deputy High Court Judge Mayo dated 3 November 2014 ordering possession of the said land.

2.  A writ of possession of both Lot No. 1198 and the Remaining Portion of Lot No. 1220 both in Demarcation District No. 83 was issued on 11 December 2015 pursuant to the judgment of Deputy High Court Judge Mayo.  The Applicant obtained an interim stay of execution pending the determination of the summonses, and directions for the hearing of the summonses before me.

3.  The application is supported by the Applicant’s affirmation dated 10 March 2016, wherein the Applicant claimed she had no knowledge of the subject action for recovering possession of the Land until 3 March 2016 when the court bailiff posted up a Notice to Quit at part of the wooden hut on the Land.

4.  The Applicant further relies on an agreement in Chinese between her and Poon Hin, the 2^nd defendant herein, dated 28 May 1993, under which she claimed to have acquired possession of part of the Land for a consideration of $38,000.  The Applicant claims to have been in possession of the part of the Land referred to in the agreement since 28 May 1993 that would entitle her to claim adverse possession if the plaintiff’s proceedings were to be commenced against her now.  At the time of the service of these proceedings on the occupiers of the Land in 2005, the Applicant’s possession of that portion of the land was for a period well under 20 years.

5.  The Applicant relies on irregular service of the Originating Summons and Amended Originating Summons, arguing that personal service of the process ought to have been effected on the Applicant, alternatively service ought to have been effected by the posting of the Amended Originating Summons on the door to the hut occupied by the Applicant.

6.  The Applicant attempts to adduce the 2^nd Affirmation of Ho Chi dated 21 May 2016 in reply to the 1^st Affirmation of Kwong Ting Chung Simon filed on behalf of the plaintiff. The deadline for the Applicant to file reply evidence expired on 25 April 2016 without any reply evidence having been filed by the Applicant.  There was no application for time extension for that purpose.  In so far as there is a suggestion of an application for leave to file the 2^nd Affirmation of Ho Chi in written submission filed by the Applicant’s solicitor, it was not supported by summons nor any evidence to explain why it was late.

7.  The 2^nd Affirmation of Ho Chi is said to be made as an affirmation “supplemental to” her 1^st Affirmation.  A lot of materials contained in the 2^nd Affirmation of Ho Chi plainly could and should have been included in the Applicant’s 1^st Affirmation.  It contains materials that the plaintiff should have been allowed to address in their evidence in answer, such as the evidence on service.  An earlier application to file this supplemental evidence out of time would have enabled the court to determine whether it was proper to allow the Applicant to do so, and to consider giving time for the plaintiff to investigate and answer to the same, and for the Applicant to file reply evidence if she so desires.  In the circumstances, and bearing in mind the history of the proceedings, and the fact that the Applicant is seeking to set aside a judgment obtained after trial over two years ago, I am not prepared to admit this late affirmation as part of the evidence for this hearing.

8.  Solicitor for the Applicant, Mr Jim, accepts that if the point on whether there was proper service of the proceedings on the Applicant as one of the unnamed occupiers was decided against his client, the application would fail.  That is an issue which in my view could well be decided on the basis of the 1^st Affirmation of Ho Chi and the plaintiff’s evidence in answer.

9.  The relevant Order governing service of Originating Summons is Order 113, rule 4, which provides for how “named” occupiers of the land the subject of the originating summons must be served in accordance with paragraph (1), and how “in addition” to named defendants requiring to be served according to paragraph (1), service on the occupiers of the land whether named or otherwise must be effected in accordance with paragraph (2).  Essentially, rule 4(1) requires personal service, service by post or by leaving the process documents at the premises, whereas rule 4(2) does not.

10.  I am satisfied that Ho Chi is not a named occupier of the Land.  The only named occupier on the Amended Originating Summons was the 2^nd defendant Poon Hin.  Ho Chi, as an unnamed occupier, should be served in accordance with Order 113, rule 4(2), in the following manner unless otherwise directed by the court:

“ (a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises ... ”

11.  Evidence of service relied on for the purpose of this application is contained in the 4^th Affirmation of Kwok Yiu Chung and the 1^st Affirmation of Kwong Ting Chung Simon, both filed on behalf of the plaintiff.  Kwok, the process server, deposed to the fact that he did on 24 February 2005 serve the 1^st defendant, being “All Occupiers” of the two lots of land including the Land, with the sealed copies of the Amended Originating Summons “by posting up the sealed copies ... respectively in the conspicuous places at the main entrances to ” the two lots of land the possession of which were claimed by the plaintiff.

12.  Mr Jim argues that in order to do justice, Ho Chi should have been personally served.  This is because pursuant to the application by the 2^nd defendant to join in the proceedings as a named party, the plaintiff ought to have been aware of her identity as an occupier of part of the Land through the affirmations she has made for the 1^st defendant.

13.  I cannot read that requirement into Order 113, rule 4 so as to give the Applicant a status, for the purpose service of process, compatible with that of a named defendant.  Mr Jim admits that his submissions on this point are not supported by any authority.  I decline to accept them.

14.  Mr Jim next submits that on the plaintiff’s evidence, it has failed to effect good service, in that Mr Kwok had merely posted the sealed copies of the summons at “the main entrances” to the Land, rather than on the door of the hut occupied by the Applicant, as he was required to do.  Mr Jim read the rule as requiring the process server to post the document on the door if there were any door of a structure, and it is only if there were no structure that posting on other conspicuous places could be relied on.

15.  I am unable to accept such submissions.  The rule clearly stipulates “the main door or other conspicuous parts of the premises” as the places where the documents are to be posted, and there is no reason for me to doubt that “main entrances” to the Land where Kwok deposed to having posted the documents were not “conspicuous places” as required by rule 1(4).

16.  Further, I do not accept that in order to satisfy the service requirement for the possession of the two lots of land, the process server was required to post the documents on the door of each of the structures erected on the Land.  The “main entrances” to the Land or lots of land must be understood in its context: if there were no fences demarcating the boundaries of the Land, there could not have been any “entrance” through which occupiers gain access to the Land.  On the evidence, I am unable to agree with Mr Jim that posting the document at the “main entrance” to the Land did not satisfy rule 4(1) either because “main entrances” were not “main doors”, or “main door” must mean the main door of the structure or structures erected on the premises.  The “premises” in this case must mean the two lots of land the plaintiff claims possession of.

17.  Further, even if I were to be prepared to admit the 2^nd Affirmation of Ho Chi, I am unable to find any meritorious defence in the case of the Applicant.  The Applicant was well aware of the proceedings back in 2005 and well knew that those proceedings would directly affect her continued possession of the Land. The fact that the 2^nd defendant’s lawyers did not advise her of her rights or explained to her the conceptual differences between licensee and occupier claiming an interest in the Landwould not have prevented her from seeking legal advice on her own position, as she has done upon becoming aware of the Notice to Quit.  Further, she had done nothing to join in the proceedings despite knowing of the passing of Poon Hin two to three years ago.

18.  In the circumstances, I dismiss the Applicant’s summonses, with costs to the plaintiff to be assessed by summary assessment.  I give leave to the plaintiff to file a schedule of costs within 14 days hereof, and for the Applicant to file submissions in answer within 14 days thereafter.  The interim stay of execution is lifted.