KAN SUI YAU AND OTHERS v. WONG TIN LUNG AND OTHERS

HCA 1975/2019

[2022] HKCFI 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1975 OF 2019

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J U D G M E N T

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I.  INTRODUCTION

1.  These proceedings concern whether the Plaintiffs’ (“Ps”), and the public more generally, are entitled to a right of way over the Way (defined below).

2.  I have two summonses before me:-

(1)  One is for Ps’ application for default judgment against the 1^st and 3^rd Defendants (“D1” and “D3”)  dated 16 October 2020 (“Default Judgment Summons”);

(2)  The other is for Ps’ application for summary judgment against D1 and D3 dated 8 February 2022.

3.  Ps now only pursue the Default Judgment Summons, and so I will only address that summons.

4.  In the Default Judgment Summons, Ps seek declarations that Ps, those they represent, and the public are entitled to rights of way over the Way (defined below). They also seek an injunction to protect those rights.

II.  Ps’ CASE

5.  Ps’ case as stated on their Re-Amended Statement of Claim (“RASOC”)  is as follows.

The parties

6.  On who Ps are:-

(1)  The 1^st to 3^rd Plaintiffs (“P1-P3”)  are registered owners of land in Ha Che Village, Pat Heung, New Territories (“Village”);

(2)  The 4^th Plaintiff (“P4”)  is the Resident Representative of the Village, elected under the Rural Representative Election Ordinance (Cap. 576)  (“RREO”). He sues on behalf of himself and all of the Village’s residents;

(3)  The 5^th Plaintiff (“P5”)  is the Indigenous Inhabitant Representative of the Village, elected under the RREO. He sues on behalf of himself and all of the Village’s indigenous inhabitants.

7.  As for the Defendants (“Ds”):-

(1)  D1 is the registered owner of Lot 713 in DD111 (“Lot 713”). Lot 713 was conveyed to D1 in April 2019 for HK$500,000;

(2)  D1 let Lot 713 to the 2^nd Defendant (“D2”). In other words, D2 is D1’s tenant; and

(3)  D3 are persons who participated in entering, remaining, and/or blocking the Way, and interfered with Ps’ use of the Way (explained below).

The Road, and the Way

8.  In around 1969, the villagers of the Village built a road (“Road”), using the villagers’ own donations. The Road runs across inter alia almost the entirety of Lot 713. I will refer to the part of Lot 713 the Road runs across as the “Way”.

9.  The villagers maintained the Way up till the 1980s. In the early 1980s, the Hong Kong government (“Government”)  erected lamp posts along the Way. The Government has since been maintaining the lamp posts, as well as the Way.  In particular, the Government did maintenance work on the Way in or around 1995, and again in March 2012.

10.  The villagers built the Way so that pedestrians and vehicles could pass on it. The Village’s landowners and residents (“Villagers”), as well as the public, have indeed so used the Way since it was built. The use has been as of right, without interruption, and without permission from D1’s predecessors for more than 40 years. In particular, the Villagers have used the Way to access Fan Kam Road, the highway nearest to the Village.

11.  On 10 September 2019, by D1, D2, and/or D3’s arrangement, this use of the Way came to an end.

12.  Among other things, one or more of the Ds arranged for the following between 10 September 2019 and 22 November 2019:-

(1)  That the Way be blocked by vehicles and chains, and a metal barrier bar. At one point, an attempt was made to erect a barrier gate to control vehicles entering or leaving the Village;

(2)  That persons be installed along the Way to demand payment from drivers trying to enter the Village; and

(3)  That notices be posted around the Way, stating the Way is “private land” and that people have to pay to use the Way.

III.  THE DEFAULT JUDGMENT SUMMONS

13.  Ps commenced these proceedings on 28 October 2019.

14.  On 16 October 2020, Ps issued the Default Judgment Summons against all Ds. Subsequently Ps withdrew the application against D2.

15.  On 17 March 2021, Madam Recorder Winnie Tam, S.C. heard inter alia the Default Judgment Summons. Her Ladyship ordered that the Default Judgment Summons be adjourned sine die, with liberty to restore.

16.  To date, neither D1 nor D3 has filed a Notice of Intention to Defend, let alone a Defence. However, D2 has filed a Defence.

17.  Ps now seek the following relief against D1 and D3 in the Default Judgment Summons:-

(1)  A declaration that Ps are entitled to a right of way over the Way under the doctrine of lost modern grant;

(2)  A declaration that there is a public right of way over the Way, on grounds that the Way has been dedicated for use as a public road; and

(3)  An injunction prohibiting D3 from interfering with Ps’ use of the Way.

Whether the summons can be dealt with under O. 19 r. 7 RHC

18.  The Default Judgment Summons is taken out under O. 13 r. 6 Rules of the High Court(Cap. 4A)  (“RHC”). Ps themselves accept that they should not have relied on O. 13 r. 6 RHC, because the court cannot give default judgment for a claim for declarations or injunctions under that rule: Hong Kong Civil Procedure 2022 at §13/6/1. Yet, since D1 and D3 have not filed Defences, Ps could have relied on O. 19 r. 7 RHC.

19.  As such, the first preliminary issue I must address is whether I can treat the Default Judgment Summons as having been made under O. 19 r. 7 RHC.

20.  There is precedent on whether I can. In Biostime International Investment Ltd v France Heson Paper (Hong Kong)  Co Ltd[2015] 2 HKLRD 658, the plaintiff brought proceedings against the defendant, seeking declarations and injunctions. The defendant did not file any acknowledgement of service or defence, and the plaintiff sought default judgment under O. 13 r. 6 RHC.

21.  Given the remedies sought, DHCJ Lam S.C. concluded that he could not enter default judgment under O. 13 r. 6 RHC. Nonetheless, the learned deputy judge found it appropriate to give default judgment under O. 19 r. 7 RHC for four reasons:-

(1)  The defendant did not file any defence, and so the plaintiff was entitled to apply for judgment under O. 19 r. 7 RHC;

(2)  In asking the court for an order, a party is not bound to state under which rule or order he proposes to move. It frequently happens that parties move under one rule, realise it is wrong, turn to another, and an order is made under that other rule;

(3)  In any event, the plaintiff’s erroneous reliance on O. 13 r. 6 RHC is an irregularity curable under O. 2 r. 1 RHC; and

(4)  Treating the summons as having been made under O. 19 r. 7 RHC would not create any conceivable prejudice to the defendant: §6.

22.  In my judgment, those considerations also apply here. I will thus treat the Default Judgment Summons as having been made under O. 19 r. 7 RHC.

Severability

23.  The next issue I must address is whether Ps can apply for default judgment against D1 and D3, but not D2.

24.  O. 19 r. 7(2)  RHC addresses the procedure a plaintiff should follow when his claim is against more than one defendant, and not all defendants have defaulted in filing a defence.

25.  That rule states:-

(1)  if the plaintiff’s claim against the defaulting defendant is severable from his claim against other defendants, he can apply for default judgment against the defaulting defendant under O. 19 r. 7(1)  RHC, and separately proceed with the action against the non-defaulting defendants: O. 19 r. 7(2)(a)  RHC;

(2)  Otherwise, the plaintiff can set down the action for judgment against the defaulting defendants at the time the action is set down for trial or judgment against the non-defaulting defendants: O. 19 r. 7(2)(b)  RHC.

26.  As such, Ps can apply for default judgment against D1 and D3 (but not D2)  now if their claims against D1 and D3 are severable from those against D2. Otherwise, Ps can only set down the action for judgment against D1 and D3 at the time the action is set down for trial or judgment against D2, so that the actions be heard at the same time.

27.  In my judgment, Ps’ claims are not so severable.

28.  As mentioned earlier, D2 has filed a Defence. In its Defence, D2 inter alia denies that Ps acquired a right of way over the Way under the doctrine of lost modern grant. D2 also denies that D1 dedicated the Way to the public.  D2 also takes issue as to the P2-P5’s locus to sue.

29.  I cannot give Ps judgment against D1 and D3 without rejecting D2’s case, as whether D1 and D3 have a defence would at least partly depend on whether D2’s case (or any material part of it)  is accepted. Put another way, it would possibly be contradictory if the Court is to give judgment against D1 and D3, and then accept D2’s defence.  Such contradictory or inconsistent judgment would be highly undesirable.  As such, I believe that Ps’ claims against D1 and D3 are not severable from those against D2.

Conclusion and disposition

30.  Accordingly, Ps cannot apply for default judgment against D1 and D3 now. They can only set down the action for judgment against D1 and D3 at the time the action is set down for trial or judgment against D2, and have the two actions heard together. 

31.  I should say that when I say “set down for trial or judgment”, I should not be taken to have held that the claim against D2 must go to trial.  It may be that Ps’ claim against D2 is susceptible to summary determination, in which case summary judgment against D2 can be sought.  In that case, it may be that it is appropriate for an application for default judgment against D1 and D3 to be sought at the same time as the hearing of the application for summary judgment against D2.

32.  I have emphasised the use of the word “may” in the foregoing paragraph because I have received no argument as to whether such a course is appropriate. 

33.  For the reasons I have endeavoured to state above, I would dismiss the Default Judgment Summons.  Given that it appears that no one apart from Ps has expended any costs, in the circumstances I believe the suitable costs order is no order as to costs.  I so order.

34.  In the circumstances I do not think it is appropriate for me to go into the substantive merits of Ps’ claims.

35.  If the course mooted in paragraph 31 above is pursued, it may be said that an application for default judgment against D1 and D3 is barred by res judicata or abuse of process because I have dismissed the present Default Judgment Summons.  Again it would be inappropriate for me to indicate a final view on such an argument (given that it is not debated before me), but I would venture to think that such an argument would be of little merit given that the circumstances prevailing in such a scenario would be materially different from those before me, as it would be possible, if appropriate, to give summary judgment against D2 on the same occasion, and then there would be no concern arising from “severing” the determinations of the claims against D1 and D3 on the one hand, and D2 on the other.