YEUNG WAI TONG v. SRIKORNVIT PRANEE AND OTHERS

HCA 2170/2015

[2018] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2170 OF 2015

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D E C I S I O N

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Introduction

1.  In this case, the plaintiff (“P”), claims a declaration that the 5 defendants’ respective title to 5 pieces of land in the New Territories has extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347 and that the P is the owner in possession.

2.  P obtained leave to serve a concurrent writ on the 4^th defendant, Terry Ting Cheng Yin (應鼎成) (“D4”) out of jurisdiction at Winsor House Apartment 6I, 144-24, 37 Avenue, Flushing, New York 11354, USA or elsewhere in USA.

3.  It is P’s case that service of the writ was duly effected on D4 on 3 December 2016 in that after receiving the concurrent writ, D4 had signed on the Acknowledgment of Service.   

4.  As no defence was filed, on 29 August 2017, P issued a summons under Order 19 rule 7 of the Rules of the High Court, Cap 4A seeking the declarations set out in the writ in default of defence.  

5.  When P’s summons first came before this Court for hearing on 7 November 2017, this Court raised several queries on the service on D4, and gave leave for a supplemental affirmation of service to be filed. At the resumed hearing on 15 December 2017, P’s solicitor Mr Kwong had informed this Court that there was no further evidence on service, apart from what was stated in his Supplemental Skeleton Submissions.

Background 

6.  As seen from the statement of claim, P claims adverse possession of a total of 5 pieces of land all in DD 78, including Lot No 773 (“Lot 773”) in North New Territories.

7.  It was P’s case he had leased some land from one Tsui But Yee (“Tsui”) for rearing liverstock namely chicken and subsequently pigs.  He and his elder brother entered into a tenancy agreement with Tsui for 5 years from 18 March 1985 since when P had started to use the 5 pieces of land (including Lot 773) adjoining the leased lots, without the consent of the registered owners.

8.  It would appear that by a conveyance on sale dated 6 December 1965 of Memorial No N156849 (“06.11.65 Conveyance”), D4 became the registered owner of Lot 773.  Then by a conveyance on sale dated 5 May 1981 of Memorial No N231149 (“05.05.81 Conveyance”) one SIEH NI became the registered owner of Lot 773.

9.  In 1991, D4 had issued a writ against 3 defendants including SIEH NI under HCA No A9061 of 1991 (“1991 Action”), disputing the validity of the 05.05.81 Conveyance and the purported purchase of Lot 773 by SIEH NI. 

10.  SIEH NI was absent at the trial of the 1991 Action on 16 February 1995 before Mr Justice Rogers, and judgment was entered for D4 against SIEH NI.  Mr Justice Rogers delivered a written judgment (“16.02.95 Judgment”). 

11.  It would transpire from the 16.02.95 Judgment that the trial was first fixed before Mr Justice Liu a year earlier on 16 May 1994 during which D4 had given oral evidence and was cross examined.  As observed by Mr Justice Rogers in the 16.02.95 Judgment, it would appear from the transcript of the hearing on 16 May 1974 that the evidence D4 gave at the time was a bit odd in that D4 was even confused about the month of the year in which he was giving the evidence.  D4 had denied that the signatures on the 05.05.81 Conveyance were his.  Mr Justice Rogers was told that D4 was 75 years of age at the time of the hearing before him and the Learned Judge had commented that it was very likely that D4 had reached the stage of life where he could easily become confused.  Anyway, the Learned Judge eventually accepted D4’s evidence and declared that the 05.05.81 Conveyance was not valid and that D4 remained the registered owner of Lot 773.

12.  According to the Land Registry record, and an Agreement for Sale and Purchase Agreement dated 5 May 1995 (“SPA”), the day after the 16.02.95 Judgement, ie on 17 February 1995, D4 entered into a settlement agreement with the 2^nd defendant in the 1991 Action, namely one Lam Yau.  Under the SPA, D4 agreed to sell one half of his interest in various pieces of land in DD 78 including Lot 773 to Lam Yau and one Lam Sui Kau for the consideration of HK$1.

13.  Pursuant to the SPA, D4 would hold with Lam Yau and Lam Sui Kam as tenants in common of Lot 773, as to ½ share by D4, and Lam Yau and Lam Sui Kam each holding ¼ share respectively.

14.  The completion date of the SPA was on or before 12 February 2016.

15.  The SPA was signed by D4’s lawful attorney Ying William Wan.  D4 was described to be of an address at Winsor House (“Winsor House”), Apartment 6I, 144-24, 37 Avenue, Flushing, New York 11354 USA and holder of a USA passport.

16.  I note that, the writ herein was issued prior to the completion date of the SPA.

The purported service on D4

17.  The service on D4 was said to be effected by a Yang Rui Gang (“Yang”) who filed an affirmation as to service dated 25 February 2017 but filed on 14 March 2017 (“Affirmation of Service”). According to the Affirmation of Service, Yang went with his daughter to the address at 144-24, 37 Avenue and arrived there at around 11:30am.  Yang spoke in English through the “doorphone” at the entrance and asked to see Ying Ting Cheng Terry.  According to Yang, he and his daughter were allowed in and they took the lift to the 6^th floor.  When they arrived, a female care attendant opened the door and let them enter.  Later a Chinese woman appeared and spoke to Yang in Putonghua, and admitted that she was Ying Ting Cheng Terry.  She allowed Yang’s daughter to take a photo of her and Yang.  Yang then personally handed the Court documents including the concurrent writ to her, and after receiving the same, at Yang’s request, she signed on the photostat copy of the Acknowledgment of Service of the concurrent writ. 

18.  Yang had produced 6 colour photographs showing the outside appearance of the building and 2 colour photographs of the woman and Yang, and 4 colour photographs showing the original acknowledgment of service of the concurrent writ already signed by the woman, and the signature was purportedly “Terry Ying”.

19.  According to Yang, he asked the woman to state on the acknowledgment of service on the concurrent writ her stance, and she replied that she would authorize her son to handle the case, and that her son has legal representation in Hong Kong.  Yang said he asked her for her son’s telephone number but she refused to provide it.

20.  After the 2^nd hearing on 15 December 2017, a 2^nd affirmation was filed by Yang who claimed he returned to the same building at 144-24, 37 Avenue he went to previously and pressed the door bell and asked to see Madam Ying Ting Cheng and he spoke to a woman through the phone in Putonghua and the woman said she had entrusted the matter to her son to handle.  

Discussion

21.  First of all, I have to say I am not able to make out the signature on the Acknowledgment of Service to be “Terry Ying”.

22.  Secondly, the sign next to the entrance of the building in the photographs produced by Yang in the Affirmation of Service states “The Windsor House” and not “Winsor House”, as stated in the SPA.  In both affirmations of Yang, he had referred to the address being in “Flashing” instead of “Flushing”.  Further, all Yang said was after he and his daughter were allowed in on the first occasion, they took the lift to the 6^th floor and when they arrived, a female care attendant opened the door and let them enter.  It was not clear at all which apartment Yang and his daughter had entered.

23.  According to what Yang said in the Affirmation of Service, “Windsor House” is a care and attention facility.  However, as seen in the photographs at the number 144-24 LD, there is a large blue sign “Medical Office”.  There is no sign indicating any old age home at the site.  There is also no street name in any of the photographs produced by Yang.

24.  Upon my enquiry at the 1^st hearing on 7 November 2017, Mr Kwong informed this Court that the place is a “Medical Centre” and also Yang is not related to D4, but related to P, in that he is a relative of P’s wife.  Mr Kwong also informed this Court that Yang had never met D4 before the purported service.

25.  I informed Mr Kwong at the 1^st hearing that, on preliminary view, I was not satisfied with the service and gave the following reasons:

(i)   Yang is not a professional process server, and he turns out to be related to P’s wife;

(ii)   Yang had never met D4, and the woman who admitted to be “Ying Ting Cheung Terry” was not asked to provide any identification document, such as her passport or a resident’s card, or a registration card at the Medical Office, nor was the woman identified by any staff at the Medical Office or care and attention facility;

(iii)   It is also not clear whether the place was a Medical Centre or home for the aged, or a care and attention facility.

26.  Mr Kwong then indicated that he would advise Yang to go back to the building and tried to approach the registry of the Medical Office and to ask for confirmation of the identity of the woman, such as an identity card or passport.  There was no further information in Yang’s 2^nd affirmation on the identity of the woman.  As stated therein, Yang had attempted to ask the woman for her USA passport number but he was denied entry into the building and was told by the woman that she had left the matter with her son in Hong Kong.

27.  As stated in paragraph 65/2/3 of the Hong Kong Civil Procedure, 2018 Edition:

“To effect personal service, the clerk or other person entrusted with the task should first satisfy himself that he has found the correct person. He should then hand to or leave with the person to be served a copy of the writ”.

28.  Mr Kwong referred this Court to Dynasty Line Limited v Sukamto [2009] 4 HKLRD 454, that a practical approach should be adopted.

29.  Mr Kwong argued that by handing over the court documents to the woman who herself admitted to be D4 and requesting her to sign on the Acknowledgment of Service, service as required by the Order of Master J Wong of 24 May 2016 has been complied with.

30.  However, as seen in the 16.02.95 Judgment, Terry Ying Ting Cheng was 75 in 1995, which would make him 97 in 2017, if he is still living.  More importantly, Mr Justice Rogers had referred to Terry Ying Ting Cheng throughout as “he”, which would mean Terry Ying Ting Cheng was a man and not a woman.  Further, D4 appeared to be already confused in 1994 in that he did not even know the month of the year in which he was giving evidence.  The woman in the photographs produced by Yang or described by Yang does not fit the description of D4 in the 16.02.95 Judgment.

31.  Having considered all the above, I am simply not satisfied that the woman who claimed to be Terry Ying Ting Cheng was indeed D4, without further identification document.

32.  In the present action, what P seeks is a declaratory relief. 

33.  The Court’s power to grant judgment under RHC Order 19 rule 7 is discretionary and not mandatory as seen in paragraph 19/7/13 of the Hong Kong Civil Procedure, 2018 Ed Vol 1.  As seen in the Decision dated 29 April 2014 of Mr Registrar Lung (later affirmed by this Court) in Fung Shek Wa and Chang Lai Yue, [2013] HKEC 716, a case where the plaintiff was seeking possessory title to land in reliance on s 17 of the Limitation Ordinance, Cap 347, the Court can take into account evidence filed by the plaintiff which cast doubts on whether the defendant is abandoning her entitlement to the land.

34.  In the present case, it is not clear as to what happened to the SPA or to Lam Yau and Lam Sui Kau and why they had not been made parties to this action, since at the date of the issue of the writ, they would have interest under the SPA.

Conclusion

35.  Anyway, having regard to the Yang’s affirmations and, as I am not satisfied as to service had been properly effected on D4, I decline to grant P the orders as sought.  P’s summons issued on 29 August 2017 is hereby dismissed with no order as to costs.