XCHRX MUTUAL LUCK INVESTMENT LTD. v. CHIU YIM MAN AND OTHERS

1998 HCMP No. 6047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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Introduction

1. On 11th November 1998, the Plaintiff issued an originating summons under Ord. 113. It related to certain land in Yuen Long. The summons was heard by the master on 11th January 1999. She dismissed the summons with costs. The Plaintiff now appeals. It contends that the master should either have made an order for possession or given directions for the future hearing of the summons.

The parties' respective cases

2. The Plaintiff's case is that its predecessors-in-title had let different parts of the land to various tenants. Those tenants had let the land to various sub-tenants. The Defendants are those sub-tenants and other persons who occupy the land with the permission of the sub-tenants. However, the tenancies were determined by notices to quit which expired at the end of 1989, and the termination of the tenancies meant that the sub-tenancies came to an end as well. For that reason, the Defendants are said to be persons to whom Ord. 113 applies, namely persons who remain in occupation of the land without the licence or consent of the Plaintiff or its predecessors-in-title. It is true that Ord. 113 does not apply to "tenants holding over after the termination of the tenancy", but those words were held in Moore Properties (I1ford) Ltd. v McKeon [1976] 1 WLR 1278 to refer only to persons who can establish that they held over under tenancies binding upon the person claiming possession. The Plaintiff's case, I assume, is that the Defendants cannot establish that.

3. Many of the Defendants are unrepresented. I do not know for certain what the case of the unrepresented Defendants is, but the case of some of the Defendants who are represented is that the tenancies of the tenants who granted the sub-tenancies to them were never validly terminated. That is because the notices to quit were not effective. The reason, so it is said, why they were not effective is because the tenants had already died intestate, and the notices to quit were not served on the Official Administrator in whom the tenants' estates had vested. As for the Defendants who deny that they were sub-tenants of the tenants who died, their case, I presume, is that they had been in adverse possession of the land for a sufficient period to give them rights of occupation on the land.

The dismissal of the summons

4. In Greater London Council v. Jenkins [1975] 1 WLR 155, Lord Diplock said at p. 157 that "the court has [no] discretion to prevent the use of [the Ord. 113] procedure where [the] circumstances are such as [to] bring them within its terms." The Plaintiff's claim undoubtedly comes within the terms of the Ord. 113 procedure, even if the use of the procedure is inappropriate for one reason or another. It would not, therefore, have been appropriate for the master to dismiss the summons simply because she thought that the issues between the parties were inappropriate for determination in a summary procedure. What she should have done in those circumstances would have been to order, pursuant to Ord. 28 r. 8(1), that the proceedings continue as if the cause had been begun by writ, and to give directions for the filing and service of pleadings.

5. As it is, it is not suggested that the Defendants' case is so clear on the facts and the law that the Defendants must be regarded as being in lawful occupation of the land. It is therefore not appropriate for the summons to be dismissed for that reason. Equally, I am far from being persuaded that the Plaintiff's case is so clear on the facts and the law that the Defendants must be regarded as being in wrongful occupation of the land. It is therefore not appropriate for an order for possession to be made against them. That is hardly surprising. As was said in Kung Wong Sau Hin v. Sze To Chun Keung (HCMP 1614/90), the Ord. 113 procedure will not

"usually be an appropriate vehicle for the recovery of land which has been occupied by many families for very many years. Such cases will invariably raise issues of both fact and law which cannot properly be investigated without proper pleadings and following a trial at which the rules of evidence are adhered to."

6. A possible danger of the summons being dismissed is that the dismissal of the summons may be regarded as having decided the underlying issues between the parties in favour of the Defendants. Mr. Benjamin Chain for those Defendants who are represented made it clear to the master that he would never be asserting that, but that concession did not bind the other Defendants. Having said that, I think that the danger of the court in any fresh proceedings concluding that the underlying issues have already been decided is very remote, but it would at least have been a factor which I might have taken into account in considering

(a) whether the master's decision should stand, leaving it to the Plaintiff to commence fresh proceedings, or

(b) whether the appeal should be allowed, and the proceedings be ordered to continue as if begun by writ,

had I concluded that the inappropriateness of summary adjudication could be a ground for dismissing the summons.

Conclusion

7. For these reasons, this appeal must be allowed, the order of the master must be set aside, and I order that the proceedings continue as if the cause had been begun by writ. I propose to give the directions for the filing and service of pleadings and for discovery and inspection of documents as are proposed by the Plaintiff's solicitors in their letter of 8th April 1999 to the solicitors representing some of the Defendants, save that the Defendants must have 28 days to file and serve their Defence.

The Plaintiff's evidence

8. There is one final matter I should mention. As I have said, I do not think that it was open to the master to dismiss the summons on the ground that the Ord. 113 procedure was inappropriate. However, there was another basis on which it might have been permissible for her to dismiss the summons. The only evidence which had been filed on behalf of the Plaintiff by the date of the hearing before the master was inadmissible. That is because it consisted simply of an affirmation made by the Plaintiff's solicitor. That evidence was hearsay. Unlike its English equivalent, Ord. 113 r. 3 does not permit the supporting affidavit or affirmation in applications under Ord. 113 to contain hearsay evidence. Nor can hearsay evidence be justified under Ord. 41 r. 5(2): proceedings for a summary order for possession under Ord. 113 are not interlocutory proceedings. It could therefore be said to have been open to the master to dismiss the summons, because there was no admissible evidence before her of the facts which the Plaintiff had to prove. That course is not open to me today because the Plaintiff has now endeavoured to remedy the problem by seeking to file admissible evidence of the facts which it seeks to prove, but it has not been necessary for me to decide whether to give the Plaintiff leave to rely on that evidence for the purpose of this appeal.

9. This, then, is a convenient time to remind solicitors of some pertinent remarks by a former Registrar of the High Court, Mr. Julian Betts. In an article published in 1987, he wrote:

"In Hong Kong we require the parties themselves to swear or affirm to matters of fact unless there is some very good reason such as absence from Hong Kong. The idea behind this is ... very simple. Both plaintiffs and defendants have been known, more often than ought to be the case to put forward stories that are eventually shown to be demonstrably false. When they swear or affirm to those stories they can and will be prosecuted for perjury. Where such stories are put forward through a solicitor or clerk who swears that he is 'informed or verily believes' the same, the client escapes the sanction of the criminal law and the solicitor acquires (with the court) the reputation of being a fool or a villain or both": Law Lectures for Practitioners 1987, pp. 234-235.

These remarks were made in the context of a discussion about affidavits used in applications for summary judgment under Ord. 14, but they obviously have a wider application. I trust that solicitors will bear these observations in mind in the future.