KONG SHU KING (be appointed as next friend for KONG YUK CHUEN pursuant to Order of Master Lai dated 29th January 2021) v. 张伟明, person appointed to represent the estate of CHEUNG SHAU PO, deceased AND OTHERS

DCCJ 2934/2022

[2024] HKDC 534

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2934 OF 2022

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BETWEEN

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DECISION

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1.  This is the PTR for a one-day trial scheduled to take place on 28 May 2024 at 9:30 am. In gist, the plaintiff (“P”) seeks a declaration of possessory title based on an allegation of adverse possession.

2.  This action started in the High Court as HCA 174/2018. It was transferred to the District Court by an order dated 21 June 2022.

3.  Importantly for our present purpose, all of the four defendants (“Ds”) were represented and filed a Defence and Counterclaim, settled by counsel, on 20 October 2021. Ds signed Statements of Truth. For reasons unknown to me, on 12 May 2022, each of Ds filed a notice to act in person, providing the exact same Sheung Shui physical address, and the exact same Shenzhen phone number, for service of documents. From what I have read, that was the last time any of Ds filed documents into either the High Court Registry, or the District Court Registry.

4.  When this matter came before the District Court Registrar on 16 February 2023, Ds were absent, and the Learned Registrar sensibly gave directions to P’s solicitors for the filing of affidavits of service. A similar direction was given on 18 July 2023. Despite this, there is no affidavit of service in the trial bundles, and P’s counsel, in his written submissions, did not address me on the question of service. I had to ask what happened and P, via her legal team, admitted she could have done better.

5.  Practitioners are reminded that the acid test as to what should or should not be in a bundle is “will this document be referred to”. Whilst in the vast majority of cases affidavits of service are unnecessary, in cases where the opposite party has been unresponsive or is expected to be absent, practitioners should always consider preparing proper affidavits of service and inserting them into the relevant bundles to assist the Court.

6.  To put this remark in its proper context, practitioners are also reminded that whereas under Order 32 rule 5, and also Order 35 rule 1(2), of the Rules of the District Court (Cap 336H), the Court may proceed with cases in the absence of a party, the power to do so is merely discretionary, and a Judge may in an appropriate case decline to do so, especially if he or she is not satisfied the absent party had been served with all documents, or was otherwise given adequate notice of the hearing in question. It is part of the professional duties of all legal practitioners to assist judicial officers in making these decisions by placing proper affidavit evidence on the issue of service before them in a helpful manner, and by making submissions on the issue of service based on such proper affidavit evidence.

7.  All things considered, I make the following order: -

(1) The trial shall commence on 28 May 2024 at 9:30 am. as scheduled;

(2) P’s solicitors shall, at or before 4pm on 16 April 2024, file and serve an affidavit of service, proving their good service of court documents, including but not limited to the trial bundles and this Decision, on Ds;

(3) P’s solicitors shall insert a copy of the said affidavit of service, copies of its exhibits (if any), and a copy of this Decision, into the trial bundles;

(4) P’s solicitors shall, at or before 4pm on 30 April 2024, lodge and serve P’s written opening, list of authorities, and copies of authorities, which should also address P’s service of documents on Ds and Order 35 rule 1(2) of the Rules of the District Court (Cap 336H) with cross-references to the affidavit evidence;

(5) Paragraph 2 of the Order of Master Maurice Lam dated 24 November 2023 on the issue of expert evidence shall stand;

(6) The trial should be conducted bilingually, that is to say with submissions being made and received in English, and with live oral evidence being given and received in Cantonese;

(7) Translation of documents be dispensed with;

(8) Costs of this PTR be in the cause; and

(9) There be certificate for counsel for this PTR.

8.  I do thank P’s counsel for his most able assistance.