LI SHIU KWAN v. TANG CHIU WAH AND ANOTHER

HCMP 687/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 687 OF 2011

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J U D G M E N T

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1. On 13 July of this year Master Andy Ho made an order on the 1^st defendant’s application by way of summons in the following terms:

“The Default Judgment of 15 November 2011 and the subsequent writ of Possession of 13 January 2012 be set aside.”

He also gave directions for the further progress of the action in clearest terms though giving, very properly, his initial views on the merits of the defendant’s case.

2. His decision flowed from the plaintiff’s failure to serve the Statement of Claim within the time-scale laid down by Master Levy on 22 June 2011.  The Master ordered that the Statement of Claim be served “within 21 days from the date hereof” [i.e. 21 days from 22 June].  That meant quite simply on or before 13 July 2011, incidentally exactly one year before Master Ho’s decision..  It was not served within that time-scale.  It was sent by prepaid post on 13 July 2011 and therefore the earliest date on which it could have been served was 14 July 2011.  Master Ho found that by reason of the above, service of the Statement of Claim was irregular.

3. Counsel for the plaintiff had sought to rely on section 8 of the Interpretation and General Clauses Ordinance, Cap 1.  The relevant part of that under the heading “Service by Post” says, having defined clearly dispatch by post:

“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.”

That does not aid the plaintiff because even on that provision the earliest date on which service could have been affected was on or shortly after 14 July 2011.

4. More pertinently is the commentary in paragraph 10/1/26 of the “White Book”, on which counsel for the defendant relied:

“1. The date of service of a writ which is served by post … will, unless the contrary is shown, be deemed to be the seventh day after the date on which [it] was sent … in calculating this period … for this purpose … a Sunday or general holiday will be included … but the period will not include the day on which the letter was sent … but will start from the day after such date.

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4. It must be stressed, … as a matter of necessary practical precaution, service … by post should be effected at least seven clear days before the date of its expiry for service, otherwise that service will be deemed to have taken effect after such date and will therefore be invalid, unless the plaintiff can show the contrary, which he will ordinarily be unable to do.”

5. Master Ho had little difficulty in rejecting the plaintiff’s counsel’s argument and I agree with him.  He stated:

“The Statement of Claim must be served and brought to the notice of the first defendant on the 13 July”

To which I would add only the words “at the latest” lest there be any continuing misunderstanding, and there should be none, of Master Levy’s clearest order.

6. Mr C.Y. Li, SC for the plaintiff has tried hard and at some length, and by reference to a number of cases, to argue that the section of the Ordinance and the commentary in the Hong Kong “White Book” means that service is effected on the day on which the documents were posted and that that was what Master Levy in fact provided for in her order.

7. I cannot accept that. First of all the initial provision of section 8 relates to how service is effected, whereas the second relates to when service is, effected.  The wording of Master Levy’s order is unambiguous and precise as I have already indicated.  None of the cases cited by Mr Li comes close to this particular case on the facts; most if not all of them endorse the two stage approach of section 8 of the Ordinance and its English equivalent.

8. Having set aside the judgment obtained in default and the writ of possession, Master Ho went on to deal in practical terms with the consequences of his decision.  Treating the Statement of Claim as having now been served he made orders for the future conduct of the action.  I do not need to deal with any of those matters or indeed with the merits of the Defence.  Nonetheless I share the Master’s views.

9. Mr Li also argued that the plaintiff’s failure, if it be such, was of a mere technical nature and that I should exercise my discretion under Order 2, rule 1.  I do not agree that it would be right to exercise my discretion.  The plaintiff’s solicitors failed to comply with a precise order by the Master and such orders are not lightly to be treated simply because the plaintiff’s solicitors failure was a matter of a few days.  Judgment was wrongly entered on the strength of a Statement of Claim not properly served.  Nonetheless I take the view that Master Ho did have some regard to the realities of the situation when he proceeded to make orders for the advance of the action.  The Defence and Counterclaim have been served.

10. Mr Li also advanced an argument that in view of the absence of merit in the defendant’s case I should allow the appeal and reverse Master Ho’s decision, thus letting the judgment stand.

11. It is clear that the Notice of Appeal does not seek this.  It is equally clear that the Master looked very carefully at the position of the defendant in relation to the Defence put forward.  Although this is a rehearing I am entitled to adopt Master Ho’s approach if I think it to be the correct one.  I consider that he is correct and I so adopt his approach and his comments.  His consequent directions carry with them an encouragement to the plaintiff to get on with the action.  Although he did not specifically say so, and there was no reason why he should have done because it was self-evident, the plaintiff could always take steps to strike out the Defence if it thought that such course would be a sensible one.

12. Accordingly, this appeal is dismissed with costs to the defendant.

13. I take the view that this appeal was a wasteful perhaps tactical exercise.  It may be thought that the plaintiff’s solicitors are seeking some way of eliminating the fact that they had failed to comply with a straightforward Court order or rule.  If that be case, the Court will not allow itself to be misused in this way.  The original hearing occupied half a day of Master Ho’s time.  It has taken about 2 hours today.  This example underlines the need for some sifting process to weed out pointless appeals of this nature.