HONG KONG WASTE ASSOCIATION LTD v. LIU CHIN HSIANG AND ANOTHER

DCCJ 4291 /2021

[2022] HKDC 698

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4291 OF 2021

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REASONS FOR DECISION

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THE APPLICATION

1.  This is the adjourned hearing of the plaintiff’s summons for default judgment against the 2^nd defendant, being persons whose names are unknown to the plaintiff, but who are identified by the description “persons occupying all those pieces of ground situate at Area 106, Tseung Kwan O, Sai Kung, New Territories, Hong Kong comprising a total area of 6,770 square metres or thereabouts without license”. I shall refer to the piece of ground identified above as the “Site A”, which has been identified in the Annex to the Statement of Claim dated 8 September 2021.

2.  At the hearing originally fixed on 24 January 2022, the 1^st defendant appeared in person whilst no person claiming to be the 2^nd defendant was present. Deputy District Judge Lawrence Ng gave judgment for the plaintiff against the 1^st defendant by consent. He also adjourned the application for default judgment against the 2^nd defendant sine die with liberty to restore, whilst at the same time he gave an order for substituted service of the writ on the 2^nd defendant by affixing it at a conspicuous place at Site A. That was duly done on 3 March 2022 by the plaintiff. No acknowledgement of service nor defence has been filed by any person claiming to be the 2^nd defendant. The plaintiff therefore sought to restore the application based on Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court, Cap 336H.

3.  At the adjourned hearing on 7 July 2022, after considering the submissions of the plaintiff, I granted default judgment for the plaintiff against the 2^nd defendant. I now provide my reasons.

THE PLAINTIFF’S PLEADED CASE

4.  In gist, it is the plaintiff’s pleaded case by its Statement of Claim dated 8 September 2021 that:-

(1)  Since or about October 2009, a Short Term Tenancy No SX3835 (“the Principal Agreement”) was granted by the Lands Department to Hong Kong Waste Disposal Industry Association (“HKWDIA”), the unincorporated predecessor of the plaintiff, to occupy an area comprising approximately 10,190 square metres in Area 106 identified above (“Area 106”).

(2)  Upon the request of the Lands Department, the plaintiff was incorporated on 20 November 2012 as a company limited by guarantee with a view to replacing HKWDIA as a contracting party to, and in continuing, the Principal Agreement. The Principal Agreement was novated and continued on that basis.

(3)  Pursuant to the Principal Agreement, the area under lease was to be used as a fee-paying public carpark for the parking of licensed refuse collection vehicles and such other ancillary purposes as may be approved in writing by the District Lands Officer.

(4)  The Lands Department and the plaintiff subsequently negotiated and entered into a Supplementary Agreement dated 31 March 2017 which was supplementary to the Principal Agreement, to return part of the original leased area, and to take up a nearby area comprising a total area of approximately 3,940 square metres.

(5)  Further negotiations were made between the plaintiff and the Lands Department, resulting in the grant of an extension area comprising an area of about 2,830 square metres. The total area leased by the plaintiff was then increased to approximately 6,770 square metres, namely, Site A.

(6)  The defendants had occupied part of Site A near the main entrance without the licence or consent of the plaintiff some time since 19 December 2020, thereby obstructing the area and preventing the plaintiff from using and managing it. Despite repeated warnings, the defendants have failed to cease possession of the said area in Site A.

(7)  Not only did the defendants wrongfully occupy part of Site A, they had also conducted, and were still conducting activities unauthorized under the Principal Agreement and the Supplemental Agreement, in that (i) they have been erecting temporary container structures at Site A without the consent of the plaintiff, (ii) they hooked a chain with lock to fence off part of Site A that prevented the plaintiff from operating part of Site A as a fee-paying carpark, and (iii) they have stored, supplied or permitted the sale or supply of “marked diesel oil” at Site A in contravention of the Dutiable Commodities Ordinance, Cap.109. Such activities may lead to the termination of the Principal Agreement and Supplementary Agreement, and recovery of possession of Site A by the Lands Department.

5.  On the basis of its pleaded case, the plaintiff sought, inter alia, (i) a declarative that the defendants are not entitled to enter or use Site A without licence or consent of the plaintiff, (ii) an order for re-possession of the relevant area within Site A, and (iii) injunctive relief ordering the defendants to remove, modify, relocate or demolish the structures erected at Site A, and restraining them from remaining on or continuing to be in occupation of Site A.

THE APPLICABLE PRINCIPLES

Naming of the 2^nd defendant

6.  The 2^nd defendant are the people whose names are unknown to the plaintiff who fall within the description mentioned above. Mr Leung, who appears for the plaintiff, submitted that a defendant can be named by reference to his conduct so long as the conduct is sufficiently clear to identify those who were to be included. He referred to the case of Billion Star Development Ltd v Wong Tak Chuen and Ord [2012] 2 HKLRD 85 where Au J (as he then was) said the following at paragraph 52:-

“52. The English Court has recently reviewed and considered these authorities in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd[1]. In that case, the claimant was the publisher of the well-known series of children’s books “Harry Potter”. Several copies of an unpublished book in that series were removed from the claimant without authority and were offered for sale by an unidentified person or persons. The claimant obtained an interlocutory injunction against, amongst others, “the person or persons” who had made those offers to prevent them from disclosing any part of the book. In seeking to continue the injunction, the Court had to deal with the question as to whether it was permissible to join a party by description rather than by name and whether it was permissible to grant an injunction against such a person. After reviewing these authorities at paras. 5-14, Sir Andrew Morritt V-C answered these questions in the affirmative and granted the application. He explained the reasons at paras.15-21 which, for the present purposes, can be summarised as follows:

(1) After the introduction of CPR in England, and in particular by reference to the overriding objectives incorporated therein, and the fact that the relevant rule required a defendant “should” be named instead of must be, it would not be incompatible to construe r. 3.10 (which confers on the court a general power of dispensation where there has been a procedural error and provides that such error does not invalidate any step taken in the proceedings) with a conclusion that the joinder of a defendant by description rather than by name alone is impermissible. This is so as the overriding objective and the obligations cast on the court are inconsistent with undue reliance on form over substance.

(2) As such, provided the description used is sufficiently certain to identify those who are included and those who are not, the principles explained under Golden Eagle Liberia Ltd v International Organisation of Master, International Longshoremen’s Association[2] and Tony Claim Pty Ltd v Splain[3] would be equally applicable, and it does not matter whether the description may apply to no one or to more than one person.

53. In my view, the above reasoning of Sir Andrew Morritt V-C is equally applicable in Hong Kong under our present rules…”

7.  Mr Leung also referred to Times Square Ltd v Lee Kwun Kit t/a JL Music, HCA 2244 of 2018, 19 March 2020, DHCJ William Wong SC; [2020] HKCFI 438 where the court granted a permanent injunction against a defendant named by description.

8.  I would apply the same principles. In my view, the description of the 2^nd defendant as the persons occupying Site A without licence is sufficiently clear to include the persons to be made defendants to these proceedings.

Principles governing the granting of default judgment

9.  In an application for default judgment, generally the court would not receive or consider evidence in support of the plaintiff’s claim, and the court is not required to consider any evidence going to the merits. See: Leung Pak Ki v The Estate of Pang Kau, HCA 624 of 2009, 1 March 2016, DHCJ Paul Lam SC; Hong Kong Civil Procedure 2022, Vol 1, para 19/7/11. In China Construction Realty Ltd v Sina Business Services Proprietary Ltd & Others, HCA 1294 of 2005, 24 March 2006, Mr Recorder E Chan SC said the following at para.6:

“The Court’s power to grant judgment under Order 19 rule 7 is discretionary. It is plain from the wordings of Order 19 rule 1 that the Court’s task is to see whether the Plaintiff appears to be entitled to judgment on his statement of claim. Hence the main task of the Court is to examine the statement of claim to see if it appears that the Plaintiff is entitled to judgment. Of course it is necessarily the case that the averments in the statement of claim have not been traversed by the defendant because there is no defence filed. In approaching such application it is not necessary that the Court should be satisfied by evidence adduced by the Plaintiff to prove his case.”

10.  The effect of the failure by a defendant to file a Notice of Intention to Defend is that the pleadings are deemed to be admitted by the defendant, and the basis upon which a default judgment can be obtained in circumstances where no defence is filed is that of an implied admission of the statement of claim (see Wu Ka v Wu Kuo Cheng [2003] HKLRD 658 at 660J-661A; Hong Kong Civil Procedure 2022, Vol 1, para 13/0/10).

11.  The purpose of the requirement to make an application is to enable the court to consider and tailor the precise relief so that it is appropriate to the cause of action asserted, or allow the court to scrutinize the pleaded claim especially in some circumstances calling for more than a purely administrative response (see: Football Dataco Ltd v Smoot Enterprises Ltd [2011] 1 WLR 1978 per Briggs J at para.19).

12.  However, it is not the normal practice of the court to make a declaration without a trial, based upon unproved allegations. The court should be slow to make declarations as facts without proof, but this is only a rule of practice which should not be followed when the plaintiff had a genuine need for declaratory relief, and that justice would not be done if such relief was denied (see: Leung Pak Ki v The Estate of Pang Kau (above) at para 6, and Tsui Ming Sin v Tsui Chi Ping and another, HCA 2550 of 2014, 2 February 2016, DHCJ Kenneth Kwok SC at paras 13-15).

THE PLAINTIFF’S ENTITLEMENT TO JUDGMENT

13.  Based on the Statement of Claim, I am satisfied that the plaintiff’s case has been made out. The pleadings clearly set out the occupation by the defendants of Site A without the consent or licence of the plaintiff, and the carrying out of unauthorised activities which might lead to the termination of the Principal Agreement and Supplementary Agreement by the Lands Department.

14.  The plaintiff has also complied with the order for substituted service of the writ made on 24 January 2022, and no acknowledgement of service or defence has been filed by any person claiming to be the 2^nd defendant.

15.  In the circumstances, I am prepared to grant default judgment for the plaintiff against the 2^nd defendant.

16.  One of the orders sought by the plaintiff was a declaration that the persons identified as the 2^nd defendant are not entitled to enter or use Site A without licence or consent of the plaintiff. However, borrowing the same reasoning of the learned Deputy High Court Judge in Times Square Ltd[4], given the effectiveness of the permanent injunctions I was minded to give, it was not necessary to grant the declaratory relief sought. Mr Leung for the plaintiff seems to have no qualms with that in any event.

17.  I therefore granted default judgment in favour of the plaintiff for injunctive relief that (i) the 2^nd defendant do deliver possession of the area in Site A wrongfully occupied by them, (ii) that the 2^nd defendant shall at their own costs and expenses remove, modify, relocate or demolish the temporary container structures erected at Site A, and (iii) that the 2^nd defendant be restrained from remaining on or continuing in occupation of Site A, whether by themselves or by their servants, agents, tenants or through other occupiers.

18.  I also made a costs order that the costs of this action between the plaintiff and the 2^nd defendant be paid by the 2^nd defendant to the plaintiff, to be taxed if not agreed.

19.  Lastly, I would thank Mr Leung for the helpful assistance he has rendered to the court.