HUNG LAI WAN v. NGO SAM

HCA 3189/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO HCA 3189 OF 2016

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D E C I S I O N

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1.  This is the plaintiff’s application for default judgment.

2.  In this action, the plaintiff claims for a declaration that she has acquired possessory title over a property situated at Flat J, 7^th Floor, State Theatre Building, Nos 277‑291 King’s Road, Nos 4, 4A‑D, 6, 6A‑D Java Road, Nos 2‑16 Tin Chong Street, North Point (“the Property”)

3.  The Writ of Summons of this action, endorsed with a full Statement of Claim, was issued on 6 December 2016.

4.  The plaintiff’s case, as pleaded in the Statement of Claim, is that the defendant, who is the registered owner of the Property, entered into an oral tenancy agreement with the plaintiff’s mother back in about 1965.  In about 1975, the defendant ceased collecting rent from the plaintiff’s mother.  Since then, the plaintiff and her mother (who passed away in 1980) continued to reside at the Property without paying any rent.  At all material times, the plaintiff has controlled the means of access to the Property and has dealt with the Property as if she were the lawful owner thereof.  For over 12 years since 1980, the plaintiff has been in exclusive possession of the Property adverse to the defendant.

5.  The plaintiff’s address as shown in the Writ is the address of the Property.

6.  Curiously, despite her allegations in the Statement of Claim, the defendant’s address given in the Writ is also the address of the Property.

7.  According to the affirmation of service made by a clerk to the plaintiff’s solicitors, the Writ (together with the Statement of Claim indorsed to it) were purportedly served on the defendant by inserting the same through the letter box of the Property.  Without stating his source of information, the clerk claimed in the said affirmation of service that the address at the Property is the usual or last known address of the defendant.  He further stated that “in the opinion of the plaintiff the copy of the said Writ of Summons so inserted in the letter box for the address of the said defendant will have come to the knowledge of the defendant within 7 days after the said date of insertion”.

8.  I was completely baffled by the bold assertions contained in the said affirmation of service.

9.  According to the Statement of Claim verified by the plaintiff, the plaintiff has been in exclusive possession of the Property adverse to the defendant since around 1980.  While this may be the defendant’s address last known to the plaintiff, I cannot see the basis of the plaintiff claiming this to be the usual address of the defendant.  More importantly, I cannot see the basis of the plaintiff forming the opinion that the Writ served at the Property would come to the knowledge of the defendant within 7 days. How could the Writ, which was served at an address under the exclusive possession and control of the plaintiff, come to the defendant’s knowledge?

10.  At the hearing, I asked Ms Wong, who appeared for the plaintiff, to explain to the court the grounds upon which the said opinion was held. Regrettably, Ms Wong was not able to give any satisfactory explanation.  She effectively accepted that the service of the Writ at the Property would not be able to bring this action to the knowledge of the defendant.

11.  In Law Kwok Hung v Tse Ping Man [1999] 4 HKC 397, Yuen J (as she then was) held (at 404D‑E) that:‑

(a) Order 10, rule 1(3)(b)(i) of the Rules of the High Court requires that the affidavit of service of a writ by post or by insertion through letter box must state, inter alia, that the writ in the plaintiff’s opinion would come to the defendant’s knowledge within 7 days.

(b) To prevent any abuse, that opinion held by the plaintiff must be a reasonably held one.

(c) The court can determine whether the plaintiff did or did not have any reasonable grounds to hold the opinion asserted in the affidavit of service.  If there were no reasonable grounds, then the service would have been irregular for non‑compliance with the rules.

12.  The ruling of Yuen J in Law Kwok Hung was subsequently followed by DHCJ Lam (as he then was) in Phillip Securities (HK) Ltd v Lam Chi Bin Stanley [2002] 1 HKC 432 (at §9) and by DHCJ Kent Yee in Cheng Yip Chi v Kan Ming Construction Investments Ltd & Anor (HCA 3291/2000, 3 January 2017)(at §§30‑31).  In short, the law is that service at a knowingly unreachable address is not valid service under the rules.

13.  In my judgment, there were no reasonable grounds for the opinion asserted in the affirmation of service filed on behalf of the plaintiff that the writ served by insertion through the letter box of the Property would come to the defendant’s knowledge.

14.  I find that the service of the Writ on the defendant is irregular.  Accordingly, this court has no jurisdiction to grant default judgment under Order 13, rule 6 and Order 19, rule 7 of the Rules of the High Court, and the plaintiff’s application for default judgment must be dismissed, with no order as to costs.