HILDER CO. LTD. v. OCCUPIER(S) OF PREMISES

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOS.3115, 3116 AND
3118 OF 2001

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HCMP3115/2001

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(HEARD TOGETHER)

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REASONS FOR JUDGMENT

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Introduction

1. These proceedings concern three pieces of land, namely, Lot Nos.176, 177 and 194A in Demarcation District No.95, Kwu Tung, New Territories ("the Lots"). The plaintiff became their registered owner in August 1992. By originating summonses issued on 5 June 2001, the plaintiff claimed for vacant possession of the Lots under Order 113, Rules of the High Court. Default judgments were subsequently obtained on 13 July 2001.

2. By summonses dated 22 October 2001, Mr Tang Yuen Keung ("Mr Tang") applied to join as a defendant in all these proceedings and to set aside the default judgments. At the hearing before me, I granted leave to the applicant to join as a defendant; to amend the summonses by setting out the ground of irregularity he sought to rely on in setting aside the default judgements and to file the 4th affirmation of Mr Tang and an affirmation of Mr Tang's father, Mr Tang Chee. After hearing counsel, I dismissed the setting aside application with costs. These are my reasons.

Regular judgment

3. Mr Tang first contended that the default judgments were irregular because the originating summonses and the notice of hearing were not duly served and/or removed by the process server after they were posted up.

4. The Lots are open areas. According to the evidence filed by the plaintiff in this regard, efforts had been made by the surveyor engaged by the plaintiff to identify the exact location of the Lots before service. The surveyor accompanied the process server to the Lots so that the documents would be served at the right addresses. The server left and affixed the documents at different conspicuous places in the Lots. Photographs were then taken.

5. In his 1st affirmation filed on 22 October 2001, Mr Tang alleged that he was not aware of the present proceedings until 18 October 2001 when he noticed a notice to the occupier on the Lots. He was a defendant in other actions commenced by the plaintiff for vacant possession of other lots in vicinity. Nearly everyday, he stayed or walked by the Lots and at all material times, he had paid particular attention to see if there is any letter, notice, writ or court documents by which the plaintiff claimed possession of the Lots there but he did not see any. It would appear that Mr Tang was then suggesting that either the documents were not served at the Lots at all or they were wrongly served at some other lots. In his 2nd affirmation filed on 6 November 2001, Mr Tang put forward a third scenario, which seemed to suggest that he accepted that the documents had in fact been posted at the Lots. He alleged that recently he had been informed by a Mr Wong Shun, a resident of Lot No.180 in the same District that the latter had on several occasions discovered a male aged about 30 placing documents in the Lots and some other lots nearby and taking photos thereof and immediately thereafter removing the documents. On one occasion, Mr Wong saw that the document bore the name of the plaintiff's solicitors. Mr Wong then phoned the plaintiff's solicitors but no information was given to him. These allegations were strongly denied by the plaintiff.

6. I have no difficulty in accepting the plaintiff's evidence on the efforts made to identify the exact location of the Lots, the surveyor accompanying the process server to effect service and the fixing of the documents at the Lots and the taking of the photographs. The only question is whether the documents were then removed. Mr Li, counsel for the plaintiff, submitted that Mr Tang's evidence in his 2nd affirmation relating to what Mr Wong had seen and done is hearsay and is therefore inadmissible in these Order 113 proceedings : see Mutual Luck Investment Ltd v. Chiu Yam Man & others [1999] 3 HKC 999, per Keith J (as he then was) at pp.403I-404G. Mr Yip, counsel for the applicant, did not seriously dispute this proposition. He tried to overcome this difficulty by submitting that the evidence should be considered in the circumstances. With respect, I disagree. That part of Mr Tang's evidence is clearly hearsay and cannot be relied on for the purpose of proving that the documents had been removed. Stripped of that, the defendant's assertion is unsubstantiated. Even if I were wrong on the admissibility point, I would give no weight to the allegation. First, the allegation is indeed a serious one. I see no reason why the plaintiff's solicitors and the surveyor would take such a course. Secondly, I note that it was not raised by Mr Tang in his 1st affirmation although, if it were true, it must have been apparent to him by then. For in a letter of the same date of his affirmation, that is, 22 October 2001, a complaint had already been made by his solicitors that he had been informed by someone (who refused to identify himself) that documents were removed from the Lot No.177. This letter was not even exhibited in his affirmation. It was revealed by the plaintiff. Mr Tang has not explained why he did not make this point in his 1st affirmation. Lastly, Mr Tang has not advanced any explanation, and I see none, why Mr Wong, who had no part in this matter but showed enough interest to telephone the plaintiff's solicitors after allegedly seeing what had happened, did not make an affirmation in his own name on what he saw and did.

7. Mr Yip further contended that if the court documents had been duly served, there was no reason why the defendant would choose not to appear because when earlier he appeared in other related actions commenced by the plaintiff, the matters were ordered to continue as if begun by writ. Mr Li submitted that the defendant might choose to take part in these proceedings only after an order of possession had been made against him in relation to two other lots in the same District on 18 September 2001 so as to perpetuate his illegitimate claims on the lots in the District. I do not wish to speculate why Mr Tang chose not to appear. For present purpose, I think it is sufficient to say that I reject his evidence that the court documents had not been duly served.

8. For the above reasons, I hold that the court documents had been duly served and the default judgments were regular.

No merits shown

9. In order to successfully set aside the default judgments, Mr Tang must show that he had a defence with a real prospect of success. He claimed to have been in adverse possession of the Lots since January 2001. In his 1st affirmation, he said at that time, he was residing nearby and discovered that the Lots were unoccupied, deserted and vacant. He therefore entered into possession and began to cultivate there. In about 1986, he turned part of the Lots into open storage areas. In his 4th affirmation, he went on to say that the Lots had been cultivated by his father, Mr Tang Chee and/or some closed relatives of his father even before 1980. In about late 1980, the relatives moved to Kowloon and deserted the Lots. He therefore took up possession in the beginning of 1981. This is corroborated by his father's affirmation. His father even said that he had been cultivated the land since 1956. In or about 1980, his health deteriorated. He therefore asked Mr Tang to cultivate the Lots.

10. The plaintiff did not know when and how the occupiers of the Lots allegedly came into possession. However, the burden rests squarely on Mr Tang to show that he has a defence of adverse possession with a real prospect of success. According to his 1st affirmation, in January 1981 he discovered the Lots were unoccupied, deserted and vacant. But according to the undisputed aerial photographs taken in November 1980, the Lots did not appear to be vacant. Further, Mr Tang's allegations are vague, lacking in particulars and unsubstantiated by any independent evidence. He tried to supply further particulars by his 4th affirmation and his father's affirmation. But those particulars were inconsistent with the case initially put forward. He now said the Lots had been cultivated since 1956 by his father and closed relatives. He was asked to take up possession in early 1981 when his father could not cultivate the land any more because of poor health. It is no longer a case of discovering the Lots being left vacant, unoccupied and deserted. Mr Tang had not explained why the matters contained in his latest affirmation and his father's affirmation were not advanced in the first place and why there was such an inconsistency.

11. Given the poor quality in his evidence, I was not persuaded that Mr Tang had a defence with a real prospect of success. I therefore dismissed the applications to set aside with costs.