LAI TSO PUI AND ANOTHER v. THE OCCUPANTS AND ANOTHER

bjbj HCMP 410/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 410 OF 2012 _________________________ IN THE MATTER OF All those pieces or parcels of land now known and registered in the Land Registry as Lot No 385 in DD 11, Tai Po, New Territories, Hong Kong and the Property erected thereof (61A Fung Yuen, Tai Po, New Territories, Hong Kong) (the Land ) and IN THE MATTER OF Order 113 Rule 1 of the Rules of the High Court, Cap 4 _________________________ BETWEEN LAI TSO PUI 1st Plaintiff LAI KAM SAU 2nd Plaintiff THE OCCUPANTS Defendant _________________________ Before : Master Levy in Chambers Dates of Hearing : 5 March 2013 and 26 June 2013 Date of Judgment : 5 July 2013 _______________ J U D G M E N T _______________ A. Introduction The plaintiffs are the registered owners of Lot No 385 in DD 11, Tai Po, New Territories ( the Land Lot ) on which a house described as 61A ( House 61A ) Fung Yuen, Tai Po, New Territories, Hong Kong was erected (the Subject Land Lot together with House 61A are referred to as the Land ). The plaintiffs commenced this proceeding to recover possession of the Land under Order 113 r 1, Rules of the High Court ( ) against some unknown occupants. On 16 April 2012, I granted the usual order of possession in the absence of any opposition from or appearance of any person to contest the application after being satisfied that the originating summons had been properly served on the unknown occupants in accordance with Order 113 r 4. On 16 August 2012, when faced with a Notice to Quit , Chow Heung Sang ( Chow ) issued the summons (through his solicitors) to apply, among others, to be added as the defendant in the proceedings, and set aside the order of possession. By an order of a master, Chow was joined as the 2nd defendant. I am now only concerned with his application in the same summons to set aside the order of possession under Order 113 r 8. The grounds Chow relied on are the usual grounds of irregularity of service and having a meritorious defence on the basis of Chow's asserted claim of adverse possession. B. IS service IRREGULAR? B.1 Evidence When the plaintiffs made the application for possession, they filed an affirmation of a process server to prove service. According to the process server, the service of the requisite documents on the unknown persons was effected by 3 modes: (1) By leaving at House 61A. (2) By insertion through the letter- box at House 61A. (3) By affixing to a conspicuous part at the main entrance of the premises of the Land. In contending against the regularity of service, Chow alleged that the structure or the house on the Land Lot was not 61A as plaintiffs had identified, but 61B, Fung Yuen Tsuen, Tai Po ( House 61B ) in which he had allegedly been occupying for the past 35 years. According to him, he only learnt of the present proceedings on 6 June 2012 when he saw a copy of Notice to Occupier to Quit outside the door of House 61B. He further said that upon subsequently finding out from his solicitors that the possession order is concerned with a house on the Land Lot described as House 61A, he was puzzled because he had never heard of or seen any house having been so identified on the Land Lot. He insisted that House 61B was the only house on the Land Lot. Further, there is also no letter- box at his house, let alone a letter-box bearing a description of . It is therefore suggested that the service by insertion through the letter- box of House 61A is highly doubtful. So far as the other alleged modes of service are concerned, Chow further deposed that he had never seen any documents being left outside House 61B at the Land Lot or any affixing of documents to any part of the Land. For the purpose of receiving mails, Chow stated that there was a letter- box bearing No 61B attaching to a board erected in a more accessible spot at a place near the Rural Hall of the village. Thus, Chow has been using the address of 61B Fung Yuen Tsuen Tai Po NT as his postal address since about 2003. Faced with Chow s allegation of bad service, the process server filed a further affirmation stating that he had indeed served the documents of the proceedings by insertion through the letter- box of House 61A, although the letter- box was not at the house itself but was attached to a board erected for letter- boxes of the properties of residents living in the village of Fung Yuen Tsuen. A copy of the photograph showing the letter- box numbered "61A" was exhibited. While the photo shows that there are a number of boxes attached to a board, it is not clear how far the letter- box is from the Land or House 61A. As for the affixing of the documents, the process server deposed that the documents were affixed at the fence beyond the main entrance of the Land Lot. As for the service by leaving, it was deposed that the documents were left on the ground inside the main entrance of the Land Lot. Two photos were exhibited showing the vicinity of the Land Lot and House 61A. B.2 The contentions Mr Yau, counsel for Chow, raises a number of contentions. First, he contends that the evidence concerning the modes of service as deposed by the process server is doubtful in particular in respect of the alleged service by insertion through the letter- box when the evidence clearly establishes that there was indeed no letter- box located at the house (be it described as House 61A or 61B) on the Land Lot. He submitted that Order 113 r 4(2) (b) requires the letter-box through which the originating summons is inserted to be at the premises . Since the letter-box through which the documents of the proceedings were inserted is confirmed to be not at the premises, this provision is not satisfied, and the service invalid. Further, Chow s postal address is also not 61A, Mr Yau therefore contends that the service on 61A could not have been valid. Secondly, there is a lack of details showing how the process server affixed the documents at the conspicuous part at the main entrance of the Land as required by sub-r 4(2) (a). Finally, the solicitor for Chow also filed an affirmation deposing to a site visit that he conducted. In it, the solicitor stated that he found in the village a house bearing the description in the same village but outside the Land Lot. This, Yau contends, casts a serious doubt on the credibility of the evidence of service. B.3 Discussion The granting of the possession order was based on the plaintiffs 'assertion that the Land had been unlawfully occupied by unidentified occupiers. Thus service of the proceeding is governed by Order 113 r 4(2), which stipulates that service of the documents of the proceedings is to be effected by: (a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises, and (b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers". Thus, for unknown occupiers, the provision mandates service by affixing, and if practicable, by insertion through the letter- box. Since service by affixing is a mandatory requirement, I would discuss this mode of service first. B.3a Service by affixing The process server in his first affirmation only deposed to the affixing of the documents upon a conspicuous part at the main entrance of the premises known as (the address of the Land Lot) and the Property erected therefore (House 61A) . No photos of the affixing of the documents have been produced. By his further affirmation, the process server gave more elaboration by producing photos showing the Land Lot and the structure on the Land Lot, which was described as House 61A. The photos show that the Land Lot was fenced off by a mesh wire, within which was sort of house- like structure. The process server further deposed that he affixed the documents at the fence beyond the main entrance. The evidence regarding how the documents were allegedly affixed is not very precise. However, with the benefit of the photos showing the Land, I find it sufficiently clear that the documents were affixed to the entrance gate of the Land Lot. Despite the initial imprecise evidence regarding the service by affixing, I am satisfied by the supplemental evidence that the documents were served by affixing to the entrance gate of the Land Lot. The entrance gate, as shown from the photos, is unquestionably a conspicuous part of the Land. In the circumstances, I find that the service is in compliance with the requirement of sub-r 4(2) (a), and regular. B.3b Service by insertion through the letter-box On the evidence, it is not in dispute that there was indeed no letter- box at House 61A (or at the structure) of the Land Lot, but the letter-box of 61A through which insertion was made was in fact located at a place outside the Land Lot. Thus, Mr Yau argued that it could not have been regular as it failed to satisfy the requirement of sub-r 4(2) (b), requiring the insertion through the letter-box at the premises. In order to properly understand this requirement of sub-r 4(2)(b), I think it would be helpful to also consider a similar provision in Order 10 r 1 that also permits service of a writ to a defendant by insertion through the letter- box if there is one. Significantly, there is no requirement in Order 10 r 1 that the letter- box has to be at the premises. The difference in these provisions in my view is not without reason. Since Order 113 provides a mechanism by which a land owner is able to evict unknown occupants through a summary procedure, I am therefore inclined to think that the requirement of the letter- box being at the premises in sub-r 4(2)(b) is designed to give sufficient notice to occupiers of a property where the unlawful occupation occurs. By inserting an originating summons in a letter-box that is not at the premises in question may unlikely give sufficient notice to the trespassers of an Order 113 proceedings. Thus analyzed, I believe that to constitute a valid service, the letter-box must be at the premises where the unlawful occupation by unknown occupiers takes place. For these reasons, I accept Mr Yau s contention that service by insertion through the letter- box is ineffective in this case. By virtue of sub-r 4(2), however, the service by insertion through the letter-box will only be required to be effected if it is practicable. Thus, even if this mode of service fails, it is not fatal to service if the affixing is found to be effective (and I have already found the service by affixing to be valid). B.4 Whether service regular? In addition to effecting service by affixing (which is found to be valid) and by insertion through the letter- box (which I have found to be ineffective), the process server has further effected service by leaving the documents on the ground inside the main gate. The evidence is not clear if the main gate was locked but sufficiently clear, in my view, which the documents of the proceedings had been left on the ground at the gate of the Land Lot. Thus, apart from affixing, the plaintiffs have used a further means to bring to the occupants the notice of the proceedings. In the circumstances, I find the service of the proceedings has complied with sub-r 4(2), and sufficient notice has been given to the occupants including Chow. Apart from being satisfied that the service had been regular, I further find, on the evidence, that Chow likely had had notice of the proceedings but chosen to ignore them. It is because I think Chow appears to be rather evasive and coy in describing how he came to know about the proceedings: even if the Originating Summons have been served, I might have thought that these were letters from the developers and therefore I did not take any further action, until about 6 June 2012 when I saw the Chinese version of the Notice to Occupier to Quit (which was outside the door of his house, House 61B) . The service had been regular. Chow will need to show that his claim has real prospect of success. C. WHETHER CHOW S CLAIM HAS REAL PROSPECT OF SUCCESS Chow s claim for adverse possession is based on his alleged occupation of the Land Lot on which the house was erected, which he described as House 61B, for at least 35 years prior to his eviction in 2012. Chow affirmed that he together with his sworn brother Ho paid $60,000 to a man called Sit to purchase the Land Lot, and thereafter the two started residing at House 61B. Later Ho was joined by his wife and his child until Ho s death in 1998. Ho s widow moved out. However, Chow and later his wife continued living in House 61B. Ho s widow has also affirmed deposing that she had previously lived in one of the rooms of House 61B on the Land Lot. She further deposed to the layout of the House that consisted of two rooms with a living room and a yard outside, which was enclosed by a fence. After Ho s death, Ho s tablet was kept in the living room of the house. In addition to the evidence of Ho s widow, Chow further produced a number of documentary evidence to support his assertion, which includes: (a) A copy of Modification of Tenancy issued in 1970 by the District Commissioner of New Territories granting permission to Sit to erect three temporary structures on the Land Lot. (b) A bundle of payment receipts for the payment of the fees of the said modification. (c) A bundle of electricity bills of House 61B addressed to a person (whom is alleged to be Chow s friend) who had helped apply for the electricity on behalf of Ho and Chow when the latter could not affording making the necessary payment. (d) Chow s polling card showing his address as House 61B. The plaintiffs dispute Chow s account of the alleged occupation. They said the house at the Land Lot was House 61A, not 61B, which was evidenced by the Lands Department s Lot Index Plan, which identifies that the structure on the Land Lot 61A. Counsel for the plaintiffs, Mr Tsui, therefore submitted that Chow even fails to show that his alleged occupation was in relation to the house on the Land Lot. It was futher averred that the plaintiffs became the registered owners of the Land Lot in 1973 when the previous registered owner, their aunt, transferred the legal title to them. The aunt had leased the Land to Sit under an oral tenancy for an annual rent of $200. After the transfer of ownership, the Plaintiff continued to let their aunt receive the rents until 2007 when the tenant had allegedly stopped paying rent. The plaintiffs then instructed solicitors to send demand letter to demand for payment of the arrears of rent and for the surrender of the tenancy. The plaintiffs have also exhibited copies of property demand as well as government rates demand note that show the property address as House 61A. Thus, Mr Tsui submits that Chow s defence is totally devoid of merits. First, Chow is unable to show exclusive possession as, according to his evidence, he has only been co-possessing the Land with Ho. Secondly, the purchase of the land is a bare assertion and it is not sufficient to show his requisite intention to adversely possess the Land. Thirdly, the documentary evidence was flimsy and it does not show that Chow had the intention to exclude the world at large. I am unable to say on the basis of the evidence alone without cross-examination of Chow and the widow whether Mr Tsui s submissions can be borne out. Sit, the person who had allegedly sold the house (be it House 61 A or 61B) to Ho and Chow, was according to the said Modification of Tenancy evidence Chow has produced was the permittee. And yet, this Sit, according to the plaintiffs evidence, was also the tenant (at least for a period of time as the plaintiffs evidence is quite woolly in this respect) of the Land. Thus, this Sit does not seem to be a recent fabrication by Chow. Further, the plaintiffs evidence shows that there was in fact a previous tenancy (lasting to at least 2007) - which evidence was not mentioned in the first affirmation in support of the application for the possession order. There is an issue (though this has not been raised by counsel) as to whether the termination of tenancy was valid, which may have a bearing on the consideration of whether it is a case of tenancy holding over (which does not entitle the plaintiffs to the Order 113 summary procedure). While there is evidence pointing to the addresses of House 61A and House 61B as separate postal addresses, it is however not in dispute that the house both parties referred to is the very structure as shown in the photos of the Land Lot. It is thus immaterial, in my view, whether the house in question is 61A or 61B. Thus, one of the criticisms that Chow has failed to show possession of the Land does not seem to be valid. For these reasons foregoing and having looked at the evidence in the round, I cannot at this stage completely dismiss Chow s case. Rather, I am satisfied that there is a high degree of conviction in Chow s evidence, which is supported by Chow s documents dating back some years before the order to evict. D. CONCLUSION AND ORDERS The possession order against Chow is therefore set aside. Since service has been found to be regular, the usual costs order will be for Chow to pay the costs of the setting aside. Thus, I make a costs order nisi that the 2nd defendant do pay the plaintiffs costs of the application including the costs reserved together with certificate for counsel, to be taxed if not agreed. The 2nd defendant s own costs are to be taxed in accordance with the Legal Aid Regulations. E. CASE MANAGEMENT DIRECTIONS Given the issue raised by the 2nd defendant, I think the proceedings should be proceeded by way of a writ rather than by the originating summons. Thus I will covert this originating summons to a writ action. Within 28 days of the expiry of the time to appeal against this order, the plaintiffs do file and serve their statement of claim. The service of the rest of the pleadings should be governed by Order 18. Lastly I wish to thank both counsel for their assistance in this application. 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