LICKSUN COMPANY LTD v. OCCUPIERS OF THE LAND MARKED "A", "B", "C" AND "D" AND OF THE LAND MARKED "E", "F", "G", "H", "I" AND "J" AT SECTION C OF LOT NO. 1128 IN D.D. 7, LAM TSUEN, TAI PO, N.T., HONG KONG SUBJECT TO LAND SURVEY MORE PARTICULARLY IDENTIFIED IN THE PLAN ATTACHED HERETO

DCCJ 749/2022

[2023] HKDC 1804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 749 OF 2022

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DECISION

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A.  Introduction

1.  This is an unusual, and perhaps jurisprudentially curious, application.

2.  By Summons dated 31 August 2022 (“Summons”), the Plaintiff asks this Court to set aside the (sealed) Order of Deputy District Judge Vincent Lung dated 26 August 2022 (“Order”) dismissing his previous Summons, materially in identical terms to the present Summons, for default judgment under Order 19, rule 7 of the Rules of the District Court (Cap 336H) (“RDC”):

“(1) A declaration that the Plaintiff is entitled to enjoy the easement or right of way over the Blocked Land without obstructions so that the Plaintiff can gain access as pedestrian through the Blocked Land to the Land and Building as described in the Statement of Claim;

(2) A declaration that the Plaintiff is entitled to pass and repass freely as pedestrian through the Blocked Land to the Land and Building without obstructions as described in the Statement of Claim;

(3) An injunction to restrain the Defendant and/or any persons acting on Defendant’s behalf from preventing the Plaintiff from clearing and removing the obstructions, obstacles, Rubbish and the 2^nd Rubbish presently placed thereat in the Blocked Land and the 2^nd Blocked Land as described in the Statement of Claim;

(4) An injunction to restrain the Defendant, whether by himself, servants, or agents or any persons acting on his behalf or on his instructions or with his encouragement from howsoever and whensoever erecting obstructions and placing Rubbish and the 2^nd Rubbish, etc. in the Blocked Land and the 2^nd Blocked Land as described in the Statement of Claim;

(5) An Order for the enforcement that:-

(a) The bailiff be at liberty to enter the Blocked Land and the 2^nd Blocked Land through footpaths as shown in the Plan attached in the Statement of Claim where necessary;

(b) The Plaintiff and his agents may, and the bailiff do take all reasonable and necessary steps to assist the Plaintiff and his agents to, remove any and all barriers, obstructions, obstacles or objects obstructing or preventing the bailiff from entering the Blocked Land and the 2^nd Blocked Land as described in the Statement of Claim;

(c) The bailiff be authorized and directed to request the assistance of the police where necessary;

(d) Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in the execution of the Order of this Court, provided that the person to be arrested has been informed of the gist of the Order of this Court, and that his action is likely to constitute a breach of the Order of this Court and obstruction of the administration of justice, and that he may be arrested if he does not desist;

(e) Any person so arrested by the police shall be brought before the court as soon as practicable for further direction;

(6) Loss of rent HK$6,000 per month;

(7) Damages to be assessed;

(8) Cost of this application and costs of this action be to the Plaintiff.”

3.  An immediate, and fundamental, legal issue therefore arises: does this Court have jurisdiction to set aside the sealed Order?

B.  Preliminary Issue on Jurisdiction

4.  At the hearing on 5 December 2023, I put this issue to Mr Yeung Hon Keung Larry, who appeared for the Plaintiff as its director. I must commend him in that, even though he was not legally trained, he was able to provide a sensible (even if ultimately legally incorrect, in my view) answer to assist me, for which I am grateful.

5.  Mr Yeung submitted that by virtue of the doctrine of stare decisis, this Court is not bound by its own previous decisions. In his submission, since DDJ Vincent Lung’s Order was a previous decision of this Court, it was not binding on me.

6.  With respect to Mr Yeung, I cannot accept this argument. As Fung J very recently reaffirmed in Wesoft Nationmark Ltd v Nationmark (H.K.) Ltd [2023] HKCFI 3322 (at §23), the general rule is that “except by way of appeal, no court, judge or master has power to rehear, review, alter any judgment or order (see Sanyo Electric Trading Co Ltd v Leung Kwok Hing [1993] 1 HKLR 253 per Keith J at 256-257; Ridge Ltd v Golden Castle Ltd (HCA 122/2005, 27 July 2005 per Sakhrani J at [3]–[7]).”

7.  Specifically, in Andayani v Chan Oi Ling [2000] 4 HKC 233 (CA), a leading Court of Appeal authority in this area, which is binding on me, Keith JA (with whom Rogers V‑P agreed) held (at 237D):

“There must, of course, come a time in any proceedings when the court must be regarded as having completed its task. When that time is reached, the court is said to be functus officio. Once that stage has arrived, the court has no further jurisdiction over the case. But when does that stage arrive? The answer given by the common law is when the judge’s order has been drawn up, entered or otherwise perfected.”

8.  In Poon Ching Man v Lam Hoi Pun [2015] 3 HKLRD 57 (DC) (upheld on appeal [2016] 3 HKLRD 815 (CA)), DDJ Winnie Tsui (as she then was) added (at §§13 and 21) that “it is, however, sufficiently clear from the authorities that there are indeed discrete categories of situations in which the court has the power to revisit its previous order which has been sealed”, namely:

“(a) where the court amends a previous order so as to reflect its original intention which is manifest as appearing from the body of the order or judgment – the ‘manifest intention’ cases;

(b) where the court amends a previous order in order to correct a clerical error or accidental slip – the ‘slip rule’ cases;

(c) where the court clarifies, amends or supplements a previous order under the ‘liberty to apply’ provisions – the ‘liberty to apply’ cases; and

(d) where the court, pursuant to applicable rules of court, amends a previous order, including but not limited to enlarging time specified in it – the ‘statutory rules’ cases.”

9.  Here:

(a)  Clearly, the Order has been sealed and perfected. The basic rule recounted in Wesoft and Andayani applies so that this Court must be regarded as having completed its task, or, in other words, being functus officio, and has no power to rehear, review or alter the Order.

(b)  The present case also plainly does not fall within any of the four categories identified in Poon Ching Man: the Summons seeks to set aside the Order rather than: (i) reflecting the Order’s original, manifest intention; (ii) correcting a clerical error or accidental slip in the Order; (iii) clarifying, amending or supplementing the Order; or (iv) amending the Order pursuant to any statutory rule (and, in any event, none is identified by the Plaintiff – cf. the opposite situation where default judgment had been granted and a defendant entered appearance and sought to set it aside: RDC Order 19, rule 9).

C.  Conclusion

10.  For these reasons, the Summons must be dismissed. This Court is functus officio and cannot set aside the Order. I make no order as to costs, given the ex parte nature of the Summons. My Order herein should be drawn up by the relevant Court staff.