YEUNG FU LIN AND ANOTHER v. WONG KAM HUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 7 October 1992. Mr Cheng Cheung Wang sustained fatal injuries when, it is alleged, some scaffolding collapsed on which he was working. On 5 October 1995. the plaintiffs issued the writ of summons. Nothing was done about serving the writ at this stage. It had a life of 12 months so its validity would expire on 4 October 1996. In these circumstances, it is strange that the plaintiffs' solicitors chose to attempt to serve the writ on the first defendant by sending it to him by registered post on the very last day of its life. As one might have expected, it was not served on that day. In fact, he did not receive it until 7 October 1996.

2. The first defendant says that, on or about 15 October 1996, his brother sought advice from his solicitors. His brother told him that the solicitors said that he had grounds to set aside the service because it had been served more than 12 months after it was issued.

3. The first defendant's solicitor says that she conferred with the first defendant on 4 November 1996. She was told that the writ had been received on or about 7 October 1996. Nevertheless, the solicitor says, on 31 December 1996, she wrote to the post office to verify the exact date of service. Why she did this is not explained. She already knew the approximate date of service. On this basis, she knew she was well within time to acknowledge service and made an application to set aside the service. It is also not explained why she wrote to the post office after the first defendant made the application to set aside.

4. She did not hear from the post office until 15 January 1996 - meaning, I assume, 15 January 1997. The post office confirmed that the writ had been delivered on 7 October 1996. I do not understand the relevance of this evidence about writing to the post office. It seems to have nothing to do with anything pertinent to this application.

5. The solicitor says that because the first defendant was not sure of the date on which he received the writ, she adopted the rule in Order 10. Rule (3)(a). which says that "the date of service shall, unless the contrary is shown, be deemed to be the seventh day ... after the date on which the copy was sent. ..". On this basis, she says, the due date for filing the defence was 7 November 1996.

6. On 6 November 1996. the first defendant issued a summons under Order 12. Rule 8 seeking an order that the service of the writ be set aside.

7. This summons came before Registrar Betts who refused the application. It is accepted that there was no application, written or oral, before Registrar Betts under Order 3. Rule 5 which says that the court "may, on such terms as it thinks just, by order extend or abridge the period within which a person is required ... by these rules ... to do any act in any proceedings.". The rule goes on to say that the court may extend the period "although the application for extension is not made until after the expiration of that period.".

8. The first defendant now appeals against that decision.

9. On 12 April 1997, the first defendant issued a summons under Order 3, Rule 5 in which he sought an order that the "time limit for the first defendant's application to set aside the service of the writ of summons issued on 5 October 1996 be abridged.". These are my italics. Mr Pow says that the summons should have sought an extension, not an abridgement.

10. Under Order 12, Rule 8, a defendant who wishes to dispute the jurisdiction of the court on the ground, amongst other things, of the validity of the writ, "shall, within the time limited for service of the defence, apply to the court..." It is accepted by Mr Pow that the first defendant's application under this rule was several days late.

11. It is also accepted by Mr Pow that, in order to achieve an exercise of the court's discretion to condone the late filing of the application to set aside, the first defendant must give an explanation for his tardiness. The only explanation I have before me is one that seeks to explain why the first defendant's solicitors made the application to set aside on 6 November 1996 rather than 3 November 1996. But the first defendant and the first defendant's solicitors knew in the middle of October 1996 that the writ had been served out of time. There is no explanation at all that seeks to justify why this simple application was left to the last minute: the last minute even on the first defendant's solicitors imperfect understanding of the position. The first defendant's solicitor's evidence about the uncertainty in her mind about the date of service is not an acceptable explanation; that attitude of mind should have dictated that the application should be made immediately, not left in abeyance until, on any understanding of the situation, the time had nearly expired.

12. This absence of an explanation, acceptable or otherwise, gives me no basis on which I should exercise my discretion in favour of the first defendant. It appears that the plaintiffs were late in serving the writ. The first defendant was late in taking the point. I cannot see that the aim of doing overall justice to the case requires that I should condone the first defendant's tardiness.

13. In the result, the first defendant's appeal is dismissed, with costs.