YIP KWOK SUN v. POLY STYLE LTD

DCMP2891/2011

[2018] HKDC 437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGSNO. 2891 OF 2011

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JUDGMENT

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A.INTRODUCTION

1.  This action was begun by way of originating summons (OS) by the late Mr Yip Kwok Sun (the deceased) in late 2011. He passed away in late 2016 before it came on trial. By order of court, his wife and administratrix i.e. Mdm Seekao Luan (the wife) was allowed to carry on these proceedings. Mr Valentine Yimof counsel (Mr Yim) appeared for the wife.

2.  The defendant company is the registered owner of remaining portion of lot 1275 in DD 79, New Territories (the lot). Mr Issac Chan of counsel (Mr Chan) appeared for it.

3.  By these proceedings, the wife claimed that, since about Apr 1982, the deceased, herself and/or their son(s) (the Yip family) have been in continuous adverse possession over a portion of the lot identified by pink in “Plan 2” (the disputed land) annexed to the Re-Re-Amended Statement of Claim (RRASOC) for the prescribed period under the Limitation Ordinance, Cap.347 (LO), such that defendant’s title thereto has been extinguished under LO.

4.  The defence took issue with the wife’s claim as to whether the deceased had the requisite intention to possess, and whether the Yip family has taken exclusive possession of, and continuous possession(for it is said they had once discontinued possession), of the disputed land so as to be in continuous adverse possession of the same forthe requiredperiod under LO.

B. BACKGROUND FACTS

5.  The following facts are derived from undisputed or common evidence and/or from my observation of the photographic evidence before me, and I find them proven. In setting them out below, I will also outline the issues in dispute.

The lot

6.  The lot with its boundary in yellow is identified in Appendix A ofa survey report dated Jan 2011 prepared by Mr Ching Siu Tong (Mr Ching) i.e. the 1^stexpert land surveyor of the plaintiff who gave evidence before me. Its area is about 23,000 square feet.

7.  The lot is located near the junction of Ng Chow Road and Wong Keng Shan Road, North, and is at the western side of Wo Keng Shan Road, North. It is of a knife-head shape with its longer sides having a northwestern to southeastern orientation.

8.  The lot abuts government lands along most of its eastern and southern side. At its western side, it adjoins (a) the remaining portion of lot 1276; (b) lot 1267; and (c) the remaining portion of lot 1268 (lot 1268 RP) all in DD 79.

The disputed land

9.  The disputed land forming the subject matter of these proceedings is only a portion of the lot. Itis the northwestern portion of the lot. Its area is about 19,000 square feet.

The Yip family

10.  In early 1979, the deceased got married to the wife of Thai origin. In Dec 1979, the wife gave birth to their elder son, Mr Yip Chor Tung (Tung). In Jan 1981, their younger son, Mr Yip Chor Tat (Tat), was also born. At the birth of his 2 sons, the deceased’s occupation was delivery worker. The wife, Tung and Tat (collectively Yip family members) all gave evidence before me.

The Yip family brought to the lot

11.  One Mr Yip Leung For (For) also gave evidence for the wife. The deceased is a cousin of For. In early 1982, the deceased sought help from For to find a place to live and to farm in order to make a living for the Yip’s family. Having talked with one Chung Nang (Nang), For brought the deceased to the lot and introduced him to Nang. The deceased negotiated solely himself with Nang. Afterwards, the deceased paid $33,000 to Nang and the Yip family was allowed to move to, reside at, and cultivate the lot.

12.  The Yip family moved into the lot in about Apr 1982. Before they moved in, the disputed land was not fenced off at all.

Defendant’s predecessor

13.  At that time, lot 1275 in DD 79 was registered in Li Pui Un Tong (theTong). Lot 1275 in DD 79 was in the first place granted by way of Block Government Lease with a 75-year term commencing 1 July 1989 and renewable for 24 years, and it was classified as “2^nd class Padi & Waste”.

Land resumed to build Wo Keng Shan Road

14.  In late 1990, the government resumed, among others, a portion of lot 1275 in DD 79 for building Northeast New Territories Landfill – Access Road, Ta Kwu Ling, New Territories. The notice of resumption was dated 13 Sept 1990 and the resumed lands reverted to the government on 14 Dec 1990.

15.  After the resumption, the remaining part of lot 1275 in DD 79 came to be registered at the Land Registry as the lot and Wo Keng Shan Road also came to be built to the east of the lot.

16.  In connection of the said land resumption, on 9 Jan and 25 Feb 1991, the deceased was respectively paid ex gratia allowance[1] in the 2 sums of $132,993.07 and $24,554.55 by the Agriculture and Fisheries Department and by the Lands Department for his crops on certain portion of lot 1275 in DD 79 and on other affected government lands, and for miscellaneous permanent farm improvement measures[2] on certain portion of lot 1275 in DD 79.

The lot sold to defendant

17.  On 15 Nov 1996, the Tong assigned the lot to the defendant. Since then, the defendant has been its registered owner. It was pleaded in Defence[3] that, “as a matter of law, there cannot be any adverse possession of the disputed land at any time when the Tong remained as its registered owner” (the Tong defence) [4].

18.  On the Tong defence, the parties disagreed on the burden of proof of certain evidence to be adduced for the said defence. If the Tong defence does applies, time under LO could only start to run afterthe defendant became registered owner of the lot.

Occupation by the Yip family

19.  Subject to one discontinuance issue for certain disputed years to be explained below, Mr Chan confirmed that he took no issue that the Yip family had indeed occupied, resided and cultivated the disputed land and other lands nearby from about Apr 1982 up to the issue of OS in late 2011.

20.  I therefore decide to accept, with 2 caveats, for the conceded years, such part of hearsay evidence of the deceased to that effect in a statutory declaration to be referred to below and also such evidence of the Yip family members to same effect, all, I find, are also supported by common expert land surveyors’ opinion below based on 35 aerial photos of, inter alia, the disputed land taken over the decades[5].

21.  During these years, the wife, I also accept her undisputed evidence, from time to time spared time to assist the deceased in the cultivation (in the form of growing vegetables and flowers) within the disputed land and lands nearby (despite she looked after their 2 young sons in the 1980’s and operated different stalls in turn since the 1990’s until today selling, inter alia, farm products sourced from the lands they cultivated).

22.  The 2 caveats I make are that (i) Tung resided, I find, in student hostel while he studied at a university in Hong Kong between 2002 and 2008, and, in Nov 2011, he moved elsewhere to reside upon his marriage; (ii) Tat also, I find, moved elsewhere to reside upon his marriage in the 2000’s.

Lot 1268RP & other lands also occupied

23.  Subject to the discontinuance issue and my 2 caveats, the Yip family had, I accept from about Apr 1982 to issue of OS in late 2011, occupied not only the disputed land, but also other nearby lands, including lot 1268RP to its south and some lands (including a path leading to Ng Chow Road) to its north. All such area so occupied are marked in yellow (the occupied area) in a lot index plan produced as exhibit “YKS-2”[6] to the affirmation of the deceased dated 25 Nov 2011.

The years 1982 - 1998

24.  On 29 Dec 1982, as shown by aerial photo taken that day, there were cultivation fields within the disputed land, an irrigation pond roughly in the middle of it (the pond), a structure at the southern corner of it (the southern structure)[7], a path connecting the disputed land with Ng Chow Road to the north (the path), and another structure outside the lot above the northern tip of the disputed land to the right of the path (the northern structure). The deceased had, I find, laid concrete to an adjacent area to the west of the southern structure as shown on the said aerial photo.

25.  Subject to the discontinuance issue and my 2 caveats, the Yip family has, I accept, resided at the southern structure from about Apr 1982 to the issue of OS in late 2011. The southern structure was marked as “TS” in a lot index plan (the F&B plan)[8] as part of the deceased’s answer dated 30 Oct 2012 to request for further & better particulars of the statement of claim.

26.  The pond, the southern and northern structures were also respectively marked “P1”, “TS-1” & “TS-2” in Appendix 3 to 37 of a survey report dated 3 Aug 2012 prepared by defendant’s expert land surveyor, Ms Chan Yuen Ki (Ms Chan).

27.  In about 1985, the deceased dug a well within the disputed land near the southern structure (the well) at such approximate location marked in the F&B plan.

28.  By 1 Oct 1985, as shown by aerial photo, cultivation fields, the pond, the southern and northern structures remained within the disputed land. A concrete paved footpath was found branching from Ng Chow Road down to the southern structure, and running along the cultivation fields (the footpath).

29.  Aerials photos for the years 1986, 1987, 1988, 1989 and 1990 showed same or about the same aforesaid site situation as captured in photos for previous years back to 1985.

30.  Between 1982 and around 1988, the deceased made annual payment of $500 to one Chung Ming (Ming). Such payment began 2 or 3 months after the Yip family moved into the disputed land. Ming came along to demand the same from the deceased as payment to one Mdm Chung Por (Mdm Chung). The deceased compiled until Ming stopped making his demands around 1988.

31.  The defence says these annual payments were rent (which the wife disagreed) such that possession of the disputed land from 1982 to 1988 was not that of the Yip family at law.If so, time under LO cannot run before 1988 (the rent issue).

32.  Moving to 17 July 1991, as shown by aerial photo of the said date, the northeastern side of the disputed land had been turned into a large construction site. The southern structure and the pond had by then been enlarged by the deceased, who, I also accept, had surrounded the pond with iron wires. The cultivation fields within the disputed land were under cultivation.

33.  The aerial photo for 1992 showed about the same site situation as captured in 1991 photo but that the northern structure had by then been demolished.

34.  In about 1992, the deceased planted around 20 trees of different species[9] along the northwestern boundary of the occupied area, the southern boundary of the occupied area, the southern boundary of the disputed land, the southeastern boundary of the disputed land, and the northeastern boundary of the occupied area, at such locations approximately marked in the F&B plan.

35.  Save giving about the same site situation shown in aerial photo of 1992, aerial photo taken on 29 May 1993 showed that a dual carriageway now known as Wo Keng Shan Road had been formed at the northeastern side of the lot and that the footpath had been extended north to join Ng Chow Road.

36.  In late 1993, the deceased received an acknowledgment card   from the District Lands Office (N. T. North) in reply to his letter dated 8 Oct 1993 on effect of catch water or drainage channel to be built[10].

37.  Aerials photos for the years 1994, 1995, 1996, 1997 and 1998 showed same or about the same aforesaid site situation as captured in photos for previous years back to 1993, except that, starting from 1995, a drainage channel in the form of a white line was found along the northeastern boundary of the lot.

38.  For the years from 1982 to 1998, farming activities of one scale or another was shown on aerial photos on cultivation fields within the disputed land.

The material years in dispute

39.  Forsuch years from 1999 to 2001 (the material years), the defence contended that the Yip family had ceased farming the whole disputed hand and resided elsewhere such that they had discontinued possession and time had to run afreshafter their resumption of possession in 2002 (the discontinuance issue).

40.  On the discontinuance issue, the defence relied on expert opinion of Ms Chan, who, after viewing, inter alia, 5 aerial photos taken on 5 specific dates from Sept 1999 to Sept 2001 (the 5 photos) [11], came to the view that the disputed land was laid “fallow” (i.e. left abandoned with no agricultural activity[12]) during the material years.

41.  The defence also refers to the deceased’snon-production of address proof for the material years and to so-called “suspicious” aspects of addresses found in such documents that were produced.

42.  The Yip family members for their part denied the alleged cessation of all farming at the disputed land and moving of residence elsewhere during the material years Mr Chan put to them. So did two neighbours of the Yip family called before me i.e. Mr Siu Tin Sang (MrSiu) and Mdm Liu Shui Yung (MdmLiu).

43.  And the wife called a 2^ndexpert land surveyor, Mr Ian Wootten (Mr Wootten), who gave his different interpretations of the 5 photos from that of Ms Chan. In Mr Wootten’s opinion, the disputed land had remained in continuous active use “as part of a cultivation cycle” during the material years. It was “deliberately” and “temporarily” left uncultivated i.e. laid fallow on the 5 specific dates as captured by the 5 photos in order to “let the disputed land to recover as part of a cultivation cycle”.

The years 2002 - 2011

44.  It was common ground that, by 27 May 2002 as shown by aerial photo of that date, farming activity was found at cultivation fields within the disputed land.

45.  Aerial photo taken on 3 July 2003 showed the same site situation in 2002 photo. But the portion of the footpath leading to Ng Chow Road had been widened. The pond and the southern structure remained within the disputed land.

46.  Aerial photo taken on 1 Aug 2004 showed about the same site situation as captured in the previous year, except that the footpath had been so widened to become a vehicle path to allow a car to be driven directly to the southern structure (the vehicle path).

47.  Aerial photo dated 25 Oct 2005 showed cultivation fields, the pond, the southern structure and the vehicle path within the disputed land as before.

48.  Aerials photos for the years 2006, 2007, 2008 and 2009 showed the same cultivation fields, the pond, the southern structure and the vehicle path within the disputed land as before.

49.  Starting from about 2006, many relatively tall and big trees were found on aerial photos along the northwestern boundary of the disputed land, the southern boundary of the occupied area, and the southeastern boundary of the disputed land.

50.  In about 2006, the deceased surrounded the southern structure with iron wires.

51.  In about 2006, the deceased also erected fencing by way of iron wires along the northwestern boundary of the occupied area, and the northeastern boundary of the occupied area, at such points approximately marked in the F&B plan.

52.  In about 2006, the deceased further erected fencing by way of bamboo along the southeastern boundary of the occupied area at such points approximately marked in the F&B plan.

53.  In about 2006, the deceased began to place one large and one smaller container next to each other at the entrance to the disputed land outside the boundary of the lot.

54.  For the 3 aerial photos for year 2007, 2008 and 2009, vegetation covers in blue was found in triangular area of different sizes at southeastern corner of the occupied area.

55.  Aerial photo taken on 3 Aug 2010 showed about the same situation in 2008 and 2009 photos, save that the southern structure had been enlarged again.

56.  Aerial photo dated 9 Sept 2011 gave the same site situation as in 2010 photo.

57.  For the years from 2002 to 2011, farming activities of one scale or another were shown on aerial photos on cultivation fields within the disputed land.

The 2010 encounters

58.  Moving back in time, between Jan and Apr 2010, Ms Cheung Sze Man, Bonnie (Bonnie), defendant’s former manager who gave evidence before me on subpoena, visited the lot a few times with her male colleague(s) and had a few encounters with the deceased and/or his 2 son(s)(the 2010 encounters).

59.  During the 2010 encounters, Bonnie told the deceased that she was representative of the owner of the disputed land and showed proof of ownership to him as requested. But there is disagreement by the parties over other aspects of the 2010 encounters.

60.  On her first visit on 14 Jan 2010, Bonnie took a photograph of the lot produced as exhibit “BC-5” of her affirmation dated 10 Feb 2012, which showed, I find, the southeastern corner of the occupied area with vegetation covers in blue[13], the southern structure[14], cultivation activity within the occupied area and fencing thereof.

61.  Also, when Bonnie visited the lot in 2010, she saw the 2 containers placed by the deceased within the lot at the entrance to the disputed land and the deceased himself working on the cultivation fields within the lot.

62.  On 27 Jul 2010, defendant’s solicitors inadvertently and wrongly claiming to act for Hero Star (Hong Kong) Ltd. as the owner of the lot issued a letter to the deceased demanding him, inter alia, not to occupy the lot[15].

The Jan 2011 survey

63.  On 5 Jan 2011, Mr Ching conducted a site survey of the lot and nearby lands (the Jan 2011 survey). 12 photos were taken during the Jan 2011 survey and they are produced with an index in Appendix T in his survey report dated Jan 2011 (Appendix T)[16].

64.  During the Jan 2011 survey, the following matters were, I find, observed and found to exist.

65.  The lot and adjoining lot 1268RP were partly fenced. Some fences, made either of metal or bamboo, were found along the extents of the cultivation areas.

66.  Photo 4 in Appendix T showed, I find, fencing erected by the deceased along the northwestern boundary of the disputed land. Photo 9 in Appendix T showed another set of fencing erected by the deceased along the southeastern boundary of the disputed land.

67.  At the entrance to the disputed land, which was situated near the junction of Ng Chow Road and Wo Keng Shan Road outside the boundary of the lot, the metal gate erected by the deceased was found being open[17], together with a bigger container and a smaller container placed by him nearby, as shown in photo 1 of Appendix T. A male was captured working in the cultivation field in the background within the disputed land in this photo and also at a closer distance in photo 2 of Appendix T.

68.  A drainage channel along the northeastern boundary of the disputed land could be found and seen at the left of photo 2 of Appendix T and the middle of photo 1 of Appendix T.

69.  The southern structure resided by the Yip family was found at the southeastern corner of the disputed land and shown in photos 5, 6, 8 & 12 of Appendix T. On the day of the Jan 2011 survey, it was found made of corrugated zinc and completely fenced with a gate of its own[18], and standing on a concrete platform or retaining wall.

70.  Some relatively large trees planted in the past by the deceased had grown up at locations outside the lot along the northeastern boundary of the occupied area as shown by photo 3 of Appendix T, and along the southeastern boundary of the disputed land as shown by photo 9 of Appendix T.

71.  The vehicle path as an access to the southern structure traversing the disputed land from a northwestern to a southeastern direction was found to be about 3m wide and shown in photos 2 & 6 of Appendix T. A motor vehicle was parked near the vehicle path in photos 1 and 5[19] of Appendix T.

72.  Agricultural facilitates (the deceased, I accept, had built automatic watering system consisting of pump room on the disputed land after he moved into it) were also found being fenced off in photos 6 & 7 of Appendix T.

73.  Most of the areas surveyed were then being used by the Yip family for agricultural purposes. Many distinctive field bunds were found and spotted due to differences in elevation, as was shown by photos, 2, 5, 6, 9, 10, 11 & 12 of Appendix T. Vegetation covers in blue were seen in photos 2, 5, 6, 11 & 12 of Appendix T.

74.  The route marked in red in copy photos 6, 11 & 12 of Appendix T produced as Exh.P7 to P9 served, I find, as an access to lot 1268RP also occupied by the Yip family (which was partly shown in photos 10 & 12 of Appendix T).

75.  Photo 12 of Appendix T showed another catchment channel along the southern boundary of the occupied area, with a post warning flooding erected at the bottom right of the picture.

OS issued by the deceased

76.  As at 1 Apr 2011, the ratable value of the lot was $15,000[20]. On 24 Nov 2011, the deceased issued the OS against the defendant, asserting his possessory title of a part of the lot by way of continuous adverse possession for no less than 20 years.

77.  The major issues were (and they remain[21]) whether the deceased has factually been in continuous possession of, and used and enjoyed, the disputed land to the exclusion of others since about Apr 1982 as claimed in RRASOC.

78.  It is submitted by defence that such possession of the disputed land by the deceased prior to the OS was not exclusive enough for purpose of adverse possession (exclusive possession issue).

79.  It was also asserted that the evidence demonstrated that, throughout the entire period of the possession by the Yip family, the deceased was willing, if asked, to pay rent to the owner of the disputed land.Thus, issue[22] was taken as to whether the deceased had the requisite intention to possess, enjoy and/or use the disputedland to the exclusion of others (the intention issue).

80.  If the wife succeeds both on the exclusive possession andthe intention issues, one must decide[23]whether the estate of the deceased has acquired possessory title of the disputedland, and whether defendant’s title thereto has been extinguished by virtue of s.17 of LO, by reason of adverse possession by the deceased for a continuous period of (a) no less than 20 years since around Apr 1982, or (b) no less than 12 years since 15 Nov 1996.

81.  On 26 May 2012, it was ordered that the OS be continued as if begun by writ of summons.

The counterclaim

82.  On 20 Sept 2012, the defendant raised a counterclaim of trespass against the deceased. Hence, if the wife fails to prove adverse possession as she claimed, issue[24] arises as to whether the deceased had wrongfully occupied the disputed land without defendant’s knowledge and consent and has thereby trespassed the same and liable to pay damages to defendant.

The deceased passed away

83.  On 18 Feb 2016, these proceedings were set down for trial for 7 days to commence on 1 Nov 2016. Unfortunately, on 19 Apr 2016, the deceased passed away at 65. Prior to his death, on 1 Sep 2015, he had made a statutory declaration (the declaration) confirming the contents of his 3 witness statements in this action[25]. The weight of the declaration as hearsay is hotly disputed before me.

84.  Letters of administration with will annexed of the estate of the deceased was granted by the Court of First Instance to the wife on 15 July 2016. On 2 Sept 2016, these proceedings were ordered to be carried on by the wife.

C1. APPLICABLE STATUTE

85.  I have had regard to, inter alia, ss.7, 8, 10, 13, 17 & 38A of LO, whose provisions I do not reproduce herein to lengthen this long judgment. It should, however, be noted that, under s.38A, the limitation period would be 20 years if adverse possession, if any, commenced, and had not expired, before 1 July 1991 and it would be 12 years if it commenced on or after 1 July 1991.

86.  Nevertheless, though a squatter claims to begin his adverse possession prior to the cutoff date of 1991 and hence needs to establish 20 years’ adverse possession, if the objective evidence shows that adverse possession only began at a much later day but is long enough to cover a period of 12 years prior to the commencement of the action, he can also rely on the shorter period to establish his claim: Yu Siu Cheuk v Realway Investments Ltd, unreported, CACV 181/2009, 10 Nov 2008, para.29, per Cheung JA.

C2. PRINCIPLES OF ADVERSE POSSESSION

87.  Again, without reproducing them herein, I refer to, and have reminded myself of, such basic principles of adverse possession succinctly summarized by Harris J. at para.22 of the judgment of Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy & others, unreported, CACV 178/2015, 28 Oct 2016.

88.  On intention to possess, Mr Chan relied upon such principles accepted and decided by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (No.2) (1997 – 98) 1 HKCFAR 55, 68E-69F, including the principle that a squatter’s willingness to pay rent, if requested, is inconsistent with the requisite intention to possess, which, it is accepted, is binding[26] on me.

D1.   ANALYSIS

89.  I have fully and carefully considered all evidence, submissions and authorities of both parties.I am most grateful for the valuable assistance provided by Mr Yim and Mr Chan.

D2.  ASSESSMENT OF WITNESSES

90.  Generally speaking, Mr Chan focused his cross-examination, I observe, more on exploring weak points or gaps of the wife’s claim than attacking credibility of her witnesses. Nonetheless, I would briefly indicate below my general assessment of the credibility of the witnesses of both parties and also the major considerations that I have borne in mind in reaching my findings of fact.

Factual witnesses

91.  Tung does not impress me as a credible or reliable witness despite he holds postgraduate qualifications (though I would still accept such undisputed evidence of his and/or those corroborated by other evidence before me).

92.  Tung gave, I note, an address of “40/F, Shui Lau Hang Tsuen” in his witness statement dated 9 May 2013 when he had already got married and resided elsewhere[27]. On occasions, he did not directly answer questions and gave answers providing materials not covered in witness statements of his or of the deceased. And his answers on the 5 photos did not sit well with the expert evidences before me, as Mr Chan rightly submitted in his closing submissions.

93.  For Tat, whose short evidence focused narrowly on the 2010 encounters, I have come to a different conclusion. I find him a credible and reliable witness who was not shaken after cross-examination. I accept his evidence, including such in conflict given by Bonnie.

94.  The wife is an interested party. She is the sole beneficiary under the will of the deceased. At the same time, she has only limited education of primary 3 in Thailand before she came to Hong Kong in 1979. In assessing her evidence, I have guarded against the former while taking into account the latter. I do not think all her evidence is true or reliable. I do, however, accept such evidence of her not disputed or supported by other evidence.

95.  For’s evidence was confined to 2 aspects i.e. his introduction of the deceased to the lot and continuous occupation of the lotby the Yip family over the decades. I find For an honest and reliable witness. He was so frank as to give unfavorable evidence against the deceased on the rent issue which I will address below. I accept his evidence.

96.  Regarding Mr Siu and Mdm Liu, they do not, I think, have any interest to serve as witness at all. Their evidence was both unshaken after cross-examination. I find them honest and reliable witnesses and accept all their evidence. Among others, I accept they did reside at such places for such years, and that they did observe farming and other activities of the Yip family at the disputed land, as they had testified before me.

97.  As for Bonnie, though she claimed in her supplemental witness statement dated 30 May 2014 that she had resigned from defendant allegedly in Nov 2013[28], I have reminded myself that she admittedly gave the bulk of her evidence in her witness statement dated 8 May 2013 when she was still employed by defendant and that statement, she admitted, was drafted in consultation with her then superior, Mr Tony Leung, not called before me.

98.  The focus of Bonnie’s evidence is the 2010 encounters. By the trial in late 2016, upon being cross-examined by Mr Yim, she gave, I note, no few answers of “no impression”. Her evidence conflicts with that of the deceased, Tung and Tat on a few points. As shall be seen below, I shall resolve some but not all of these points. I accept some of Bonnie’s evidence but not all of her evidence.

99.  Last but not least, I have generally taken into consideration the lapse of time in assessing the evidence of these factual witnesses and its impact on the respective cases of both parties, which involved events going back as early as to early 1980s.

Expert witnesses

100.  Moving to the experts, there is first, I notice, much common ground between Mr Ching and Ms Chan as was disclosed from their joint experts’ statement dated 28 Mar 2013.

101.  Equally, on being put paragraph by paragraph by Mr Yim the contents of the supplemental expert report prepared by Mr Wootten dated 1 Sept 2015, Ms Chan turned out to agree, and also turned out not to rule out, many of the different observations, interpretations and propositions made by Mr Wootten[29].

102.  As Ms Chan agreed with Mr Yim, the narrow dispute she had with Mr Wootten centered on the latter’s conclusion that the disputed land had been worked to become the way it looked from the air on the 5 photos (on which Mr Wootten agreed no little with Ms Chan on cross-examination) “as part of a cultivation cycle”. She countered at times in her evidence the disputed land was left “abandoned”[30] without cultivation during the material years.

The declaration of the deceased

103.  In assessing the weight, if any, to be given to the declaration, I have had regard to all the circumstances of these proceedings, including the matters identified in s.49(2) of Evidence Ordinance, Cap.8 (EO), and counsels’ submissions on them.

104.  Due to the unfortunate demise of the deceased, it would, of course, have been unreasonable and impracticable for the wife to call him as a witness before me. The deceased had, I note, not made his various statements in his 3 witness statements (which were confirmed by him in the declaration) contemporaneously with most, if not all, of the events and exchanges stated therein. Some of the matters therein do, I think, involve multiple hearsay.

105.  The deceased himself, as a former party to these proceedings, had of course a motive to conceal or misrepresent matters. The 3 witness statements were made by him with the assistance of his legal advisers and the declaration given by him, I suspect, in anticipation of his possible demise. That was, however, by no means, I think, a deliberate attempt to prevent proper evaluation of the weight of the declaration, though the defence is now deprived of the opportunity to cross-examine the deceased to test the veracity of his evidence. As was seen elsewhere in this Judgment, I have always watched out for consistency or inconsistency of the contents of the declaration with other evidences adduced by the parties before me.

106.  By s.50(2) of EO, I shall also specifically consider below such supporting and/or contradicting hearsay evidence, if any, also coming from the deceased himself adduced by either party before me.

107.  All circumstances having been so considered, I decide, as the case may be, to give full or more weight to such admissions and such statements made by the deceased against his own interest in the declaration (or in the 3 witness statements) and to give less or no weight to self-serving matters asserted by him therein, unless the same or any part thereof is undisputed and/or corroborated by other evidence before me that I accept.

D3.   FACTUAL POSSESSION

D3.1  The rent issue

108.  On this first issue, I do not accept para.46(1) of the witness statement of the deceased that the annual payment of $500 he paid to Ming was made “simply with a view to avoid trouble that might arise in his occupation of the lot”, let alone the wife’s assertion in the box that it was “as if protection money” paid to “triad”.

109.  The above clarification and assertion sound incredible to me when I note that the deceased acknowledged that Mdm Chung did not live in the vicinity and, importantly, appeared to him to be “already in her 70’s” when he met her on several occasions in the early 1980’s. The deceased never, I note, elaborated in his witness statements on what “trouble” might have arisen if the money was not paid as demanded by Ming. And the wife’s assertion was, I notice, nowhere found in the witness statements of her husband or hers.

Annual payment made as rent

110.  I find instead the said annual payment was paid by the deceased as “rent” as the deceased himself had admitted in the past on the several occasions I find below.

111.  Firstly, as frankly disclosed by For in cross-examination and re-examination and I accept, the deceased did once tell For that “none had come to collect rent for 2 years and, if one does come to collect, he would pay the same (emphasis by italics added)”.

112.  Secondly, during the 2010 encounters, I find that that the deceased had told Bonnie (she agreed when it was put to her by Mr Yim) that he“had not paid rent to anybody for more than 20 years (emphasis by italics added)”[31]. As Bonnie concluded therefrom, thedeceased, I think, implicitly in such negative answer averred that he had paid rent to someone more than 2 decades ago.

113.  Thirdly, at para 12 of the supplemental witness statement of the deceased, the deceased himself unequivocally described the annual payment of $500 by using the word “rent” and I quote: “So from 1988 onwards I treated that part of 1275 RP which I hitherto paid rent to Chung Por through Chung Ming (“the Land”) as my own (emphasis by italics added)”.

114.  I can see no reason not to give full weight to the above 3 admissions of the deceased, which are, I think, consistent with one another. They, of course, contradicted with the above clarification of the deceased or the assertion of the wife.

Possession first taken not in own’s right

115.  Accordingly, as the Yip family first took possession of the disputed land from about Apr 1982 to 1988 with the licence or permission of Ming and/or Mdm Chung, it is the latter who is treated at law as being in possession: Tsang Foo Keung, supra, para 22(6).

116.  On the facts found below before the Court of Appeal in Tsang Foo Keung, supra, and as the law was explained by Chow J. at first instance below[32], it does not, I think, matter that the licensor or the one giving permission is not the true owner or agent of the true owner of the land in question.

117.  Hence, it does not matter that, during Apr 1982 to 1988, lot 1275 in DD 79 was vested in the Tong and there is no evidence that Ming and/or Mdm Chung was/were authorized agent(s) of the Tong. The Yip family was still treated at law to have taken possession of the disputed land for Ming and/or Mdm Chung.

Time to run earliest as from 1989

118.  The consequence is that, time, if run at all, could only start to run as from 1989 after the deceased had stopped making these annual payments to Ming.

D3.2 The Tongdefence

All living members to be barred

119.  On this second issue, it is settled law that, for a hereditary tong preserved under s.13 of New Territories Ordinance, Cap.97 (NTO), new equitable interest arises upon birth of each new member having hereditary link with the focal ancestor and a person claiming adverse possession cannot extinguish the title of the tong under LO unless he could establish the requisite limitation period against all the living members of the tong: Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705; Tsang Kwong Kuen v Hau Wai Keung Gaius [2014] 5 HKLRD 622.

120.  There is land search before me indicating that manager had been appointed for the Tong under NTO. The Tong, I am satisfied, is a hereditary tong preserved under NTO.

No evidence on living members

121.  But there is no evidence before me one way or another if the Tong had any new member(s) and/or living member(s) for the relevant period from 1982 to 1996 when it was registered owner of lot 1275 in DD 79 and the lot. As such, it becomes crucial to decide who bears the burden of proof on such point.

Burden of proof on defence

122.  Having carefully considered counsels’ submissions, I agree with Mr Yim that the burden is on the defence to adduce such evidence to order to defeat plaintiff’s claim of adverse possession.

123.  While it is, as submitted by Mr Chan, incumbent on a squatter to prove both elements of adverse possession i.e. (1) factual possession and (2) intention to possess for the requisite period under LO (so, it is argued, the squatter also bears the burden to prove the date when adverse possession accrued), in a claim of adverse possession against a tong, I do not think the squatter carries the additional burden of proving that “new member(s) was/were born and/or members was/were surviving” during the period when the tong was the registered owner of the disputed piece of land.

124.  On basic principles of evidence[33] and on the authority of the judgment of Deputy Judge To (as he then was) in Tsang Wing Kit Eric & Another v Lee Yuk Sun & Another, unreported, HCMP 1154/2005, 11 May 2009, para 12[34], I agree with Mr Yim that the burden rests with the defendant.

125.  The mere fact that the paper owner of the disputed piece of land is a tong by no means indicates, I think, that at any period in time it had member(s) surviving or new member(s) born. It lies therefore upon the tong or its successor to plead such members and adduce evidence thereof[35] in order for the plea open at LO to be run against a claim of adverse possession by a squatter. Such matters form, I think, the essential of the case of the tong or of its successor, the proof of such allegations rests with them and not with the squatter.

126.  The plea raised in the Defence quoted at para.17 above is, I think, incomplete. The pleader should have additionally pleaded such material facts about living and/or new member(s) to the Tong from 1982 to 1996 (but he did not). If so pleaded, it is open, I think, for the plaintiff to plead in Reply expiry of limitation period against all such alleged new and/or living member(s) of the Tong.

Defence fails for lack of evidence

127.  The Tong defence raised by the defendant therefore fails for want of evidence before me.

D3.3  The discontinuance issue

Factual evidence of plaintiff accepted

128.  On this third issue, I first indicate my conclusion on the evidence of the factual witnesses and my reasons thereof. I start with the evidence of the 2 neighbours.

129.  Mr Chan submitted that for not particularly close neighbours like Mr Siu and Mdm Liu who simply glanced when they passed by, it is not improbable that a 2-year gap of farming activities in the middle of 40 years that took place over 15 years ago has escaped their memories or simply not noticed by them. I am afraid I disagree with him.

130.  First, as a matter of record, they never, I note, used the word “glanced” in their evidence or gave evidence to that effect. Neither did any of them estimate how much time they had spent on each of their observation in issue.

131.  Secondly, I find it more likely than not that they would have noticed and still remembered the Yip family ceasing farming activities or moving away to reside elsewhere had such alleged events occurred as the defence put to them.

132.  On their evidence, Mr Siu and Mdm Liu had routinely or consistently observed the Yip family residing and farming the disputed land for a long time since 1982 (in Mr Siu’s case, except from Sept 1992 to July 1993 while he studied abroad) and since 1991 (in Mdm Liu’s case). Such alleged cessation of farming activities or residence elsewhere thereafter for as long as the material years on defence case would most likely, I think, have attracted their attention and recollection.

133.  During the material years, Mr Siu was in his 30’s and working whereas Mdm Liu was a full time housewife in her 50’s. There was nothing before me to indicate either of them had or have any memory or observation problem in those days or today.

134.  Having considered all evidence and submissions on this issue, I accept the observation evidence of Mr Siu and of Mdm Liu that the Yip family had not ceased farming activities at the disputed land nor moved elsewhere to reside during the material years.

135.  I also accept similar evidence of For to the above effect on the basis that he visited the Yip family at the disputed land over the decades at a frequency of 8 to 10 times per year.

136.  Such evidence of Mr Siu, Mdm Liu and For, of course, confirms the evidence of the wife and of Tung to similar effect. I therefore decide to accept such evidence of the wife and of Tung on this same point.

137.  For reasons given below, I accept evidence of all 5 factual witnesses above on this point notwithstanding the expert opinion of Ms Chan on the 5 photos and Mr Chan’s submissions on address proof.

138.  First and foremost, such evidence of all 5 factual witnesses  on this point should, I accept Mr Yim’s submissions, be generally preferred to the expert opinion of Ms Chan on the 5 photos by reason of their inherent nature.

139.  They are, by their nature, direct first-hand observation or personal evidence on the ground throughout the material years or on occasions thereof more than mere 5 days.

140.  Instead, the defence has to indirectly ask this court to draw the inference that the Yip family had ceased all farming on the ground at the disputed land throughout the material years from, inter alia, expert interpretation of the 5 photos taken from the air on 5 specific dates during the material years and, one step further from that, that the Yip family had resided elsewhere during the material years.

141.  Although said in the context of a probate dispute involving handwriting expert evidence, the words of Chan PJ in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, 404A that “the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert” are, I think, equally apposite here and I so follow.

Expert opinion of plaintiff preferred

142.  As far as the narrow dispute of opinion between Mr Wootten and Ms Chan is concerned, I prefer the former’s conclusion to that of the latter. The conclusion of Mr Wootten is corroborative of the factual evidence of the 5 factual witnesses I accept above. I arrive at such preference for the following reasons.

143.  Firstly, Ms Chan never went so far as Mr Chan put to plaintiff’s witnesses that farming had ceased on the “entirety” of the disputed land during the material years. While she opined in her supplementary expert report[36] that “most” part of the disputed land was not under cultivation from 7 Sept 1999 to 24 Sept 2001, she also, I note, referred to “a small part identified with green patch and reddish patch occasionally”.

144.  As Mr Chan put it in her supplemental expert report[37] and agreed under cross-examination, that amounted, I think, to no more than “reduced scale of farming” during the material years (which Mr Ching agreed with Mr Chan by saying farming was “less active” as compared to periods before and after) and is, in my view, not equal to “abandonment” of the disputed land she sought to argue.

145.  And while Mr Wootten agreed with Mr Chan that the disputed land shown in the 3 photos taken on 17 Oct 2000, 1 Mar 2001 and 24 Sept 2001 was “generally”, “chiefly” or “mostly” “bare earth”, he and Mr Ching could, among the 5 photos, still point to green patches on the disputed land, which, to use words of Ms Chan and I agree, were “signs of cultivations”. Had the disputed land been abandoned as suggested by Ms Chan, these signs would not, I think, have existed nor persisted in the 5 photos.

146.  For the disputed land captured by the 7 Sept 1999 photo, it is common ground between Mr Wootten and Ms Chan (which I accept) that there were 2 green patches, one to the northeast of the southern structure and one to its northwest[38], and also green rows in between these 2 green patches.

147.  For the disputed land captured by the 17 Oct 2000 photo, it is common opinion of Mr Ching and Mr Wootten (which I accept) that there remained “green dots” or “green tinge”[39] thereon.

148.  For the disputed land captured on 1 March 2001, I agree with the opinion of Mr Ching and of Mr Wootten[40], and also statement made by the deceased[41], that there was a green patch with furrows to the north of the southern structure.

149.  Secondly, comparing and/or looking at the scene(s) captured by the 5 photos, there were, I find, indications of human activities going on the ground within the disputed land or the occupied area. Again, had the disputed land been abandoned as Ms Chan suggested, these activities would likely, I think, not have been expended nor continued to have been expended on the ground.

150.  Comparing 17 Oct 2000 photo with that of 9 Aug 2000 photo taken 2 months ago, I agree that a patch to the north of the southern structure had been “extensively worked” according to Mr Wootten, and, as Ms Chan agreed with Mr Yim, turned into a white area by “human activities”, during these 2 months.

151.  Looking at 17 Oct 2000 photo myself, I think it likely, and I find, as suggested by the deceased in his statement that the dark area to the west of the southern structure on lot 1268RP (but within the occupied area) had been burnt by him[42] by way of farming activities to “rejuvenate” the land[43].

152.  Comparing 1 Mar 2001 photo with that of 17 Oct 2000 photo taken about 5 months ago, the aforesaid white area to the north of the southern structure had, I also think it likely and find, been turned into green with “furrows”[44] by human activities during these 5 months. To use Mr Wootten’s words[45] which Ms Chan agreed and not ruled out, “land appeared to be at work” “indicating growth of new seedlings” and that the land was “being readied for cultivation”.

153.  Looking at 24 Sept 2001 photo myself, I also think it likely and find that the dark area to the west of the southern structure on lot 1268RP (but within the occupied area) had been burnt by the deceased as he said in his statement[46] for similar farming reason of “rejuvenating” the land[47].

154.  For disputed land captured by 24 Sept 2001 photos, Ms Chan also did not rule out “the land has been worked up ready for new plantings” as suggested by Mr Wootten. Compared this photo with the previous one taken on 1 Mar 2001 about 6 months ago, she also agreed that the footpath to west and then northwest of the southern structure had been widened in the interim period[48].

155.  Thirdly, notwithstanding Mr Chan’s various criticism of the methodology of Mr Wootten and his lack of expertise in botany, Ms Chan agreed on cross-examination with Mr Wootten’s suggestion[49] (which appeals to me to make good common sense) that natural regrowth[50] would emerge quickly over time in months if the disputed land was left abandoned (and not been worked over) but she does not observe such regrowth within the disputed land (as compared to surrounding lands outside) as captured by 17 Oct 2000, 1 Mar 2001 and 24 Sept 2001 photos. Therefore, her contention that the disputed land was left abandoned during the material years loses, I think, force, if not much force, for this additional reason.

156.  Finally, at about the end of Mr Yim’s cross-examination, even Ms Chan herself came around to say she did not rule out Mr Wootten’s “part of the cultivation cycle” conclusion. With respect to Ms Chan, I find that conclusion likely here as Mr Wootten opined and on the factual evidence I accept.

No requirement of continuous use at law

157.  On this issue, I further accept the legal propositions in the following 3 paragraphs all cited by Mr Yim. They all support the wife’s claim that possession of the disputed land had not been discontinued in the circumstances of this case as I have found.

158.  At law, what is required is the taking of possession and not continuous use. Once possession had been taken, one does not need continuous use to maintain possession: Chow Tin Sang v Citihero International Ltd, unreported, CACV 121/2012, 20 June 2013, para 27, per Cheung JA.

159.  For arable land, possession continues despite no use is made of it during winter months: Bligh v Martin [1968] 1 WLR 804, 811G-812C.

160.  Inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole: Grand Wayfair Investment Co. Ltd v Chan Yung Kan & Others, unreported, HCA 558/2007, para. 83, per DHCJ Seagroatt.

Conclusion not altered by documents        

161.  Moving to address proof, there are 3 groups of them before me: 1) electricity bills[51]; 2) water bills[52]; and 3) miscellaneous ones[53]. They bear on their faces 5 English addresses and 1 Chinese address[54], with 5 of them set out at para.27 of the witness statement of the deceased[55]. Mr Chan made 2 submissions about so-called “suspicious” aspects of these documents.

162.  First, he submitted such electricity bills with the 2 English addresses incorporating “Wong Kan Shan New Village”[56] probably point to another residence of the Yip family otherthan the disputed land as Mr Siu and the wife could tell the whereabouts of “禾徑山村”[57] in their oral evidence but that Mr Siu had never heard of “禾徑山新村” in his oral evidence (underline added for emphasis).

163.  Secondly, no documents (including electricity bills) with issued dates between 1999 and 2002 are, Mr Chan pointed out, produced to show or prove the then residential address of the Yip family and no satisfactory explanation is forthcoming such that inference should be drawn that the Yip family was residing away from the disputed land during the materials years.

164.  As submitted by Mr Yim and I agree, the obstacle, if not the fatal flaw, of the 1^st submission of Mr Chan is that, if the defence is right, looking at the dates and addresses on the electricity bills before me, the Yip family would have resided elsewhere at 2 addresses at “Wong Kan Shan New Village” at the same time from at least 1987 to 1990[58] and one address at “Wong Kan Shan New Village” from 1991 to 1999[59]. That is, one notices, not in line with the defence case on the discontinuance issue i.e. the Yip family residing at the disputed land from 1982 to 1998 and only elsewhere during the material years.

165.  To the contrary, I find the deceased giving at para.28.1, 28.2, 28.4 & 28.6 of his witness statement a plausible explanation of the above 2 addresses by reference to 2 houses/structures in the occupied area in the past (which, I think and agree, is supported by aerial photos and expert opinion before me), and delivery “by hand” of electricity bills and “on-site billing” with “present meter readings” and other entries in handwritten words on the face of some of the bills.

166.  Regarding 2^nd submission made by Mr Chan, I do note that the latest electricity bill produced is one issued on 2 Jul 1999[60] and none thereafter[61]. The latest water bill produced is one issued on 5 Oct 1999[62] and, for period thereafter, only one issued in 2009[63] and another in 2012[64]. That one issued on 5 Oct 1999 was within the material years if one counts from the 1^st photo dated 7 Sept 1999 among the 5 photos. For the miscellaneous documents, none of them was, I note, issued between 1999 and 2002.

167.  I agree with Mr Chan that the wife and Tung did not, and cannot, give satisfactory explanation on the matter on cross-examination. But they were, I think, apparently not in charge of such matter between 1999 and 2002 and not in a good position to explain.

168.  The person then in charge and in the best position to explain is, I think, the deceased i.e. the addressee of the electricity and water bills before me. While the deceased had explained other areas of concern on these utilities bills etc. at para.28 of his witness statement, he did not, I note, explain in his 3 witness statements the non-production of address proof dated between 1999 and 2002. As a result of his death, the wife cannot call the deceased and the defence cannot cross-examine him either on this point.

169.  All circumstances considered, I am, however, not persuaded to draw the inference as Mr Chan urged me to do so in his 2^nd submission and, if it is necessary to do so, I accept the deceased’s statements at para.26 - 28 of his witness statement[65].

170.  There are, first, countervailing factual evidence from, inter alia, Mdm Liu and Mr Siu who are independent witnesses. The expert opinion of Mr Wootten I accept is also corroborative of all such first-hand direct factual evidence on the ground called by the wife on this point.

171.  Further, it is not disputed that the Yip family has resided at the disputed land during not only before the material years but also after them up to issue of OS.

172.  Mr Chan has stressed in substance in his submissions on intention to possess section below that the disputed land was indispensable to the deceased. As shall be seen, I agree with such submission with slight qualification. The Yip family, I accept, had since about Apr 1982 resided at the disputed land in order to make their living and in order to survive. On that basis, there was, I think, no reason (and none was proffered on the evidence before me) for the Yip family to leave in 1999 their residence since 1982 and/or to leave in 1999 their means of living and survival since 1982, as the defence contended before me (had there been any good reason for the Yip family to leave either one or both as alleged, one begs to ask why they returned after the material years as conceded). It is, I think, inherently unlikely for them to leave in the first place on the evidence before me.

No discontinuanceof possession

173.  On the totality of evidence before me, I find it more likely than not that the Yip family had continued to occupy, cultivate and reside at the occupied area (inclusive of the disputed land within the lot) during the material years.

174.  Such factual and adverse possession, if any, commenced before the material years had not, I conclude, been discontinued at all during the material years.

D3.4  Exclusive possessionissue

175.  It is submitted by Mr Chan that, for most of the prescribed period under LO, the deceased had not achieved sufficient exclusive control of the disputed land for purpose of adverse possession.

176.  He heavily relied on the Court of Appeal judgment of Gotland Enterprises Ltd v Kwok Chi Yau & Others, unreported, CACV 260/2014, 19 Jan 2016, where Lam VP reminded at para.36 that one should not lose sight that occupation must have an exclusive character in order to qualify as the requisite factual possession for purpose of adverse possession.

177.  Mr Chan’s core submission is that the “farming part” of the disputed land was not under any exclusive occupation prior to the disputed land being fenced off in about 2006.

178.  He developed it by pointing to aerial photos before 1990 showing, he argued, such farming parts naturally merging with other neighboring lands without defined boundaries.

179.  The metal gate was not, he noted, erected at the entrance leading to the disputed land until around 2003 when Tat obtained his driving licence.

180.  Putting 2 wooden blocks at the said entrance as asserted by the deceased and/or Tung is, he argued, equivocal acts not suggestive of excluding others.

181.  Before about 2006, the deceased, Mr Chan stressed, only fenced up with iron wires, and erected gate to, the southern structure and not to the “farming part” of the disputed land. That impressed one, he argued, to conclude that the southern structure was to be excluded from the “farming part” of the disputed land.

182.  The “faming part” of the disputed land being unfenced before 2006 and without any gate at its entrance before 2003 was essentially, he further argued, an open area with no obvious features to exclude strangers. One Mr Yip Hon, he referred to para.23 of the witness statement of the deceased and oral evidence of Tat, was hence undeterred by alleged height difference and “intruded” into it in about 2006, forcing the deceased to fence up after the incident.

183.  With respects, I think Mr Chan took an unduly narrow view of the law in the factual context of this case. He further overlooked other pertinent principles of law Mr Yim had referred me to and other factual features of this case which, I agree with Mr Yim, clearly distinguish it from Gotland Enterprises Ltd, supra, he cited.

184.  In view of my conclusion on the rent issue, I shall confine my discussion below for the period as from 1989.

185.  I start with the law.

186.  In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion: Powell v McFarlane (1977) 38 P&CR 452, 471, per Slade J. Enclosure is the strongest possible evidence of adverse possession, but it is not indispensable: Seddon v Smith (1877) 36 LT 168, 169, per Cockburn CJ.

187.  Absent enclosure evidence of the disputed land in this case before 2003 or 2006 as Mr Chan argued, one must still examine what steps were taken by the deceased to exclude others, or whether he had established exclusive occupation of the disputed land,against a background of the absence of enclosure: Gotland Enterprises Ltd, supra, para.37 and 39.

188.  Paving or cultivating land is evidence of possession: Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122, 1129, per Cheung JA.  The ploughing up and cultivation of agricultural land is acts which by its very nature are so drastic as to point unequivocally, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned: Powell v McFarlane, supra, 477-8, per Slade J.

189.  Turning to facts of this case, the nature and ordinary users of the lot being “arable land” under the Block Government Lease, the Yip family had, I find, consistently cultivated the occupied area inclusive of the disputed land from about 1989 to late 2011, as much as an occupying owner would reasonably be expected to deal with it.

190.  During these many years, the Yip family had from time to time made considerable improvement, and further investment, to the occupied area inclusive of the disputed land[66], and the deceased had received monetary compensation from the government in connection with land resumption relating to the lot, as set out in the section of background facts above.

191.  Save the alleged “intrusion” by Mr Yip Hon in about 2006 which was one-off and there being no suggestion that the said alleged intruder had stayed behind, there is no contrary evidence before me at all that the Tong, the defendant or anyone else had made use of the disputed land in any way during these many years since 1989.

192.  Though they did not fence up, or erect any gate to the entrance of, the disputed land (as opposed to the southern structure) before 2003 or 2006, subject to my 2 caveats, the Yip family had, I find, consistently resided at the southern structure within the disputed land throughout these many years in order to be in the best position to assert control of, and to cultivate, the disputed land.

193.  As a matter of facts, the Yip family made their living from cultivating the disputed land they resided in. The cultivation fields and the southern structure are, as Mr Yim rightly submitted and I agree, inter-related and inseparable from one another. It was wholly inconceivable that they took exclusive possession of the southern structure without also taking similar possession of the “farming part” of the disputed land. The carving out of the latter by Mr Chan for submission is, in my view, unrealistic: see also Hero Smart Corporation Ltd. v謝美娟, unreported, DCMP 346/2010, 26 Apr 2012, para.65, per DDJ K.H. Hui.

194.  Looking at the cultivated areas shown on all the aerial photos before me, and comparing them, against the shape or boundaries of the occupied area marked in Exh.“YKS-2” of the affirmation of the deceased dated 25 Nov 2011, the rough shape, or the 4 approximate boundaries, of the occupied area had, I think, already and clearly been formed since at least 1992 and I can see nothing wrong with boundaries delineated by cultivation field bunds or the extent of cultivations, as was found the case during the Jan 2011 survey.

195.  It comes, I think, no surprise that the deceased did not see fit to fence up the southwestern boundary of the disputed land over the years because, as the deceased explained at para 20.2 of his witness statement and I accept, he also over the years encroached over lot 1268RP which formed the southern half of the occupied area[67].

196.  As to the northeastern boundary of the occupied area, again, as the deceased explained at para.20.4 of his witness statement and I accept, it was over the years running along Wo Keng Shan Road and its predecessor[68].

197.  The “sandwiching” of the disputed land within the northern and southern parts of the occupied area, or the “encroachment” by the Yip family of the lands to the north and south of the disputed land, over the years reinforced, I think, them having asserted and exercised exclusive control of the disputed land in between: Chow Tin Sang, supra, para.40 - 42, per Cheung JA.

198.  Regarding western boundary of the occupied area (and the disputed land), as was shown by photo 4 of Appendix T and explained by the deceased at para.20.1 of his witness statement and I accept, it was over the years marked by natural height difference with a higher ground level for the occupied area.

199.  For the sake of argument, assuming there was indeed “intrusion” by one Mr Yip Hon coming through this western boundary as claimed by Tung[69] or as asserted by the deceased[70], I do not think exclusive occupation demands one to build or have an impeccable boundary, if the same could be built or found at all. Even fences or walls could, one thinks, be broken by intruders.

200.  For the eastern boundary of the disputed land, as shown by photo 9 of Appendix T and explained by the deceased at para.20.3 of his witness statement and I accept, they were marked by some of the trees the deceased himself had planted as early as in about 1992 (it took time for them to grow afterwards).

201.  These 4-side barriers or boundaries, both natural and man-made, in the context of this case, suffice in my view to mark out the occupied area (inclusive of the disputed land) over which the Yip family had asserted and exercised exclusive control.

202.  Moving to the entrance leading to the disputed land, after the demolition of the northern structure thereon as captured by the 1992 aerial photo, I find that the current metal gate found at the entrance of the vehicle path at such approximate location marked in the F&B plan was only erected in about 2006 by the deceasedas asserted by him at para.25 of his witness statement.

203.  I do not prefer the different oral evidence of Tat, For and/or Tung on the timing of this erection. All 3 of them were apparently having difficulty with their memory on cross-examination and their evidence on this point is, I think, unreliable.

204.  Regarding 2 alleged large wooden blocks[71] (and alleged plant called 臭草花) and alleged large bamboo baskets[72] in between the former allegedly placed at the said entrance as asserted by the deceased at para.21 & 22 of his witness statement and orally claimed by Tung, after careful consideration, I do not find it safe to act on such assertion or evidence for want of corroborative evidence and for inconsistent evidence coming from For and Mr Siu.

205.  Neither do I accept the self-serving assertion of the deceased at para.20 of his witness statement that he had orally discussed with the occupiers of lands nearby and reached understanding as to the boundary of the occupied area. That is, I note, not corroborated by any other evidence before me that I accept.

206.  Albeit that the current metal gate was only erected at the entrance to the disputed land in about 2006, that entrance was not on the disputed land itself but upon nearby lands encroached upon by the Yip family to its north. That encroachment also allowed the deceased to assert exclusive control over the entrance on the disputed land itself by way of the footpath/vehicle path.

207.  And what matters most, I think, is the perception an outsider and the paper owner would have perceived the moment he/she stepped onto the disputed land itself before 2006. As was captured in photo 2 of Appendix T, it should, I find, be reasonably clear to an outsider and the paper owner approaching the habitable and fenced southern structure along the footpath/vehicle path (with vehicle parked nearby) while observing vegetables and flowers growing on the fields and agricultural facilities working in the background, and likely meeting the deceased himself working on the fields[73] and likely hearing the barking sound of dog raised by him[74], that the disputed land was privately owned and being actively used by its “owner” i.e. the deceased, and not an abandoned waste land of no one.

208.  Notwithstanding absence of the current metal gate erected at its entrance, and absence of fencing by way of iron wires and bamboo along the boundaries of the occupied area, before 2006, I am still satisfied on the balance of probabilities that the Yip family had established sufficiently exclusive occupation of the disputed land for the period from about 1992 to 2006.

209.  Gotland Enterprises Ltd, supra, Mr Chan cited is, I agree with Mr Yim, clearly distinguishable on its unique facts and findings, among others, that some of the lands concerned were ponds, the 1^st or 5^th defendants not residing therein but merely using the ponds for fish farming with minimal effort spent, no fencing of the lands against visitors who from time to time arrived, and registered owner’s agent making use of the lands in the past. In contrast, the Yip family did not before 2006 merely use/cultivate the disputed land for profit but occupied it as if it was their land and no one else did so.

210.  With the erection of the current metal gate and the current fencing of iron wires and bamboo, as was captured in the Jan 2011 survey, I think the exclusive character of the occupation of the Yip family over the disputed land could only be, and had been, strengthened after 2006 and not reduced[75] and Mr Chan has not, I note, contended that the same was not sufficiently exclusive at law.

D3.5  Conclusion on factual possession

211.  I am therefore satisfied on balance that the Yip family had continuously and exclusively occupied the disputed land from about 1992 to Nov 2011 (when the OS was issued) so as to amount to requisite factual possession for such period of time.

D4.   INTENTION TO POSSESS

D4.1  General approach & observation

212.  In line with the authorities and my treatment of the declaration above, I will give no or little weight below to such self-serving statement of intention given by the deceased (or by the wife or Tung for the deceased) and give full or considerable weight to such declarations made by him against his own interest.

213.  And I will focus more on the actions of the deceased (in light of the nature of the disputed land and its use) to see what inference should properly be drawn as to his intention.

214.  For most of evidence recited by Mr Chan at para.10(a)-(f) of his written closing submissions which I do not repeat herein, I agree that the disputed land was “of utmost importance” or indispensable to the Yip family from Apr 1982 until, I would rather think, the 2 sons grew up to have their own careers, namely, Tung became a teacher at an university and Tat began his contractor business[76]. The disputed land was, as I describe it above, their means of living and survival.

D.4.2 The years 1982 to 1990

215.  As a responsible husband and father (so described by the Yip family members) which I accept, it was thus understandable, I agree with Mr Chan, for the deceased to make payments of “rent” to Ming from 1982 to 1988 for, inter alia, the disputed land.

216.  For the same reason, it is also not surprising to find that, on For’s evidence I accept above, 2 years after Ming had stopped making such demand i.e. about 1990, the deceased was still saying to For that if someone came along to collect rent from him, he was ready to so pay. This was a declaration made by the deceased against his interest and I give full weight to it.

217.  Hence, notwithstanding the cultivations of, inter alia, the disputed land and the improvements made to it by the deceased up to about 1990, I agree with Mr Chan on the binding principle of Wong Tak Yue, supra, (about a squatter’s willingness to pay rent if so requested) that such willingness on the part of the deceased up to about 1990 was inconsistent with his having the requisite intention to possess as a matter of Hong Kong law and the deceased, I find, did not have the same up to about 1990.

D4.3  The years 1990 - 2010

218.  What I cannot agree with Mr Chan is his further submissions on this issue that there had not been any material change of circumstances thereafter, such that, he so argued, the willingness of the deceased towards payment of rent, and his lack of intention to possess at law, remained the same even up to 2010.

219.  As shall be explained below, my views are that there had been such material changes of circumstances thereafter, as confirmed by the conducts of the deceased towards defendant’s representatives during the 2010 encounters, and that the dependence of the Yip family over, inter alia, the disputed land could equally operate in the opposite direction, such that Mr Chan’s further submissions of the deceased having the same willingness and the same lack of intention to possess throughout cannot be accepted.

220.  First, the occupation of, inter alia, the disputed land by the  Yip family after 1989 was, on my findings, no longer attributable to any payment of rent to Ming and/or Mdm Chung: see e.g. Ho Hang-wan v Ma Ting-cheung, personal representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649, 654 per Hunter JA.

221.  After 1988, Ming no longer, or, indeed, none, came to collect rent from the deceased and there is no evidence either that the deceased attempted to locate Ming, Mdm Chung or the owner of the disputed land in order to pay rent to anyone from 1988 to 2010.

222.  Between about 1990 and 2010, there was a time gap as long   as 2 decades, during which the deceased paid nothing, and paid heed to none, for the occupation and cultivation of, inter alia, the disputed land by the Yip family.

223.  Importantly, as Mr Yim submitted and I agree, the dependence of the Yip family on the disputed land for their living and survival, so stressed by Mr Chan, would also most likely have (and, I believe, had) motivated or forced them to stay behind the occupied area after 1988 and continue cultivating, inter alia, the disputed land notwithstanding the deceased paid nothing nor obtained the permission of none to do the same.

224.  And, during these 2 long decades, the Yip family had managed and succeeded by their own efforts to survive on their continued occupation and cultivation of the disputed land and other lands nearby they had encroached upon, and the deceased had seen fit to make improvement and, hence, further investment of his own into such lands. No one else in the meantime had made use of the lands, or interfered with them over the same, on the evidence before me, save and except the one-off alleged intrusion by Mr Yip Hon.

225.  Though the occupied area (or the disputed land) is not fully enclosed today, more and more barriers like trees, metal gate, containers and fences came to be erected by the deceased over these 20 years to exclude others from the lands.

226.  And, during these 2 decades, the 2 sons gradually grew up, finished their respective educations, started working and, finally, had their own careers whereas the wife also opened and maintained her stalls selling farm produce as from the 1990’s.

227.  As time passed, and the aforesaid material changes happened and developed, over these 2 decades, the former willingness of the deceased towards payment of rent could no longer, I think, remain as it was in about 1990 when he discussed it with For: see e.g. Hero Smart Corporation Ltd, supra, para.55 - 59, per DDJ K.H. Hui.

D4.4  The 2010 encounters & thereafter

228.  By the 2010 encounters, it is apparent, and I find, that the deceased was not willing to pay rent to the defendant, nor willing to sign tenancy agreement with it, over the lot. Had he been as willing to pay rent if requested as it was 20 years ago as Mr Chan contended, Bonnie would, I think, have achieved these tasks soon after meeting him but she never did that at the end of the day.

229.  First, I find, as per Tat’s evidence in line with para.35 and 36 of witness statement of the deceased, that Tat had once driven defendant’s representatives away. Bonnie did once later in Tat’s presence, as Tat agreed, ask the deceased to sign tenancy agreement over the lot. But Tat told Bonnie in the presence of the deceased that they would not sign anything as they had been living there for a long time.

230.  Subsequently, as Tung agreed in his evidence, Bonnie, I accept, met Tung in the absence of the deceased and enquired if the deceased would sign a tenancy agreement over the lot, paying a rent of $200 per year. Tung answered Bonnie saying that the deceased had returned to his hometown in the Mainland.

231.  I do not find it necessary to decide whether Tung had said to Bonnie that the tenancy agreement had to be signed by the deceased as Bonnie contended, or that, as Tung contended, he merely said whatever document they wanted the deceased to sign had first be given to him to be explained to the deceased. Neither do I decide whether Tung, on the same occasion, gave Bonnie his email address for her to send him tenancy agreement as he claimed[77], or whether Bonnie had left behind copy tenancy agreement with him as she claimed. Resolution one way or another of these differences does not, I think, shed light on the willingness or intention of the deceased.

232.  Moving on, it was admitted by the deceased in his witness statement, to which I give full weight, that Bonnie did later find him alone in person, brought him a document and asked him to sign on it. I think it likely the said document was a tenancy agreement as Bonnie gave evidence and I so find.

233.  It was common ground between Bonnie’s evidence and the deceased in his witness statement and further supplemental witness statement (and I so find) that the deceased declined to sign the said document (which I find to be tenancy agreement above) and asked her to contact Tung on the document as he was illiterate.

234.  Whether the deceased replied Bonnie that there was no need to sign tenancy agreement as he merely asked to be allowed to cultivate on the lot as Bonnie suggested or that these words were never uttered by the deceased as he denied I do not find it necessary to decide either. As I see it, the crux is that the deceased declinedto sign the tenancy agreement brought before him.

235.  As Bonnie confirmed when Mr Yim put to her in cross-examination, the deceased has never clearly indicated that he would sign tenancy agreement over the lot.

236.  Neither do I find any evidence before me that the deceased has indicated that he would pay rent to the defendant for his occupation of the lot, though Bonnie added in re-examination that the deceased has never indicated to her either during their meetings that he would refuse to  pay rent to the defendant in any event.

237.  For sake of completeness, Bonnie, Tung agreed with her and I so find, followed up on the matter of tenancy agreement by phoning up Tung, whereupon Tung said nothing would be signed as legal advice would be sought.

238.  And, Ms Chan agreed with Mr Yim in cross-examination, she could not successfully make a survey of the lot because the deceased stopped them from entering it at the entrance thereof. I therefore accept para.39 of the witness statement of the deceased.

239.  As is set out in background facts, defendant solicitors later wrote to the deceased to seek possession of the lot, which was later followed by the deceased issuing the OS.

D4.5  More principles on intention to possess

240.  Some more elaboration of the intention to possess at law is, I think, useful.

241.  At law, what the requisite intention to possess requires is not an intention to own or acquire ownership but an intention to possess: Pye v Graham, supra, 436H, per Lord Browne-Wilkinson. The only intention which has to be demonstrated is an intention to occupy and use the land as one own’s: Pye v Graham, supra, 446C, per Lord Hope.

242.  The requisite intention is, in one’s own name and on one own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, “so far as is reasonably practicable and so far as the processes of the law allows”. This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land “will realize that, at least until he acquires a statutory title by long possession and can thus invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in positon to exclude him”: Powell v McFarlane, supra, 471-2, per Slade J.

243.  Where the evidence establishes the squatter has occupied the land and made full use of it in the way in which an owner would, in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess: Pye v Graham, supra, 447E-F, per Lord Hutton & 446E, per Lord Hope.

D4.6  Inference drawn from deceased’s conducts

244.  On the basis of my findings in the factual possession section above, I am satisfied on the balance of probabilities that the Yip family had occupied and made use of, inter alia, the disputed land as if an occupying owner would have done and in much the same way as if it were their own from about 1992 to 2011, notwithstanding the deceased did not put up fences of iron wires or bamboo, or erect metal gate at the entrance leading to it until about 2006.

245.  The actions of the Yip family themselves during these almost 20 years are, in my views, unequivocal pointing to their own occupation, and use, of the disputed land as if they owned it. There is no contrary evidence before me.

246.  On my findings for the 2010 encounters above, the deceased, I think, excluded the true owner i.e. the defendant and had dealt with its representatives including Bonnie “in so far as the processes of the law allowed him” to do so.

247.  The payment of “rent” to Ming from 1982 to 1988 by the deceased and the words of the deceased to For in about 1990 cannot, I emphasize, overcome all the above other conducts and considerations, including the deceased’s conducts during the 2010 encounters, that point to him having developed a different attitude or intention during this long period from about 1992 to Nov 2011.

248.  By, I think, Nov 1999 i.e. close to one decade after the deceased discussed with For about payment of rent and at least 12 years before the commencement of these proceedings, the deceased could no longer, I think, be willing to pay rent for the disputed land if requested and must have by then developed the requisite intention to possess as elaborated above required at law.

D4.7  Conclusion on intention to possess

249.  All circumstances having been carefully considered, I am satisfied on the balance of probabilities that the deceased had the requisite intention to possess the disputed land for a continuous period of at least 12 years before the commencement of these proceedings.

D5.   CONCLUSION ON ADVERSE POSSESSION

250.  Accordingly, notwithstanding that the wife claims that adverse possession had begun as early as in about Apr 1982 and fails to prove that, the evidence before me proved that adverse possession began much later but was still long enough to cover a period of at least 12 years prior to the commencement of this action.

251.  For the continuous prescribed period of at least 12 years before the issue of OS in Nov 2011, the deceased has, I find, both the requisite factual possession of, and intention to possess, the disputed land. Under LO, the defendant can therefore no longer take action to recover the disputed land from the wife and its title to the same has also been extinguished.

D6.   COUNTERCLAIM

D6.1 Trespass

252.  On my above conclusion on adverse possession, defendant’s counterclaim for trespass must fail and I so decide.

253.  Had I come to a wrong conclusion on the issue of adverse possession, I would have upheld defendant’s claim for trespass (for the Yip family had on their own admissions wrongfully and without defendant’s consent taken possession of the disputed land owned by the defendant) since 15 Nov 1996 and I would have ordered the wife to deliver up vacant possession of the disputed land to the defendant.

D6.2 Damages for trespass

254.  Had I come to a wrong conclusion on the issue of adverse possession, I would have further awarded damages to the defendant from 15 Nov 1996[78] to the bringing of the Counterclaim and thereafter until delivery up of vacant possession.

255.  For the amounts thereof, absent expert valuation evidence adduced by the defendant before me, I would have applied for such period covered by a notice of interim valuation of the lot dated 20 Apr 2011 addressed to the deceased before me[79] (the Notice) such figures of rateable values found therein and, for such period not covered by the Notice, I would have awarded only nominal amounts of damages[80] to the defendant.

E. DISPOSITION

256.  However, for the conclusions I have reached in the various sections above, I dismiss the counterclaim and I allow the plaintiff’s claim by making the following declarations in plaintiff’s favour against the defendant, namely: -

(1)   the plaintiff has been in adverse possession of a portion of the Remaining Portion of Lot No.1275 in D.D. 79, New Territories marked for identification by pink in “Plan 2” annexed to the Re-Re-Amended Statement of Claim filed on 31 July 2014 for a continuous period of no less than 12 years prior to the commencement of these proceedings;

(2)   the defendant’s title to the said land has been extinguished by virtue of s.17 of Limitation Ordinance, Cap.347; and

(3)   the plaintiff has acquired a possessory title to the said land.

F.  COSTS

257.  Finally, I make orders nisi that the defendant do pay the plaintiff’s costs of the claim as well as that of the counterclaim, including the costs of this trial with certificate of counsel and all reserved costs, to be taxed if not agreed, and that plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. These orders shall become absolute should none applies by summons within 14 days of this judgment to vary the same.

DCMP 2891/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2891 OF 2011

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DECISION ON COSTS

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1.  This is an application by the plaintiff to vary the costs order nisi made by me.

BACKGROUND

2.  At the end of the Decision dated 24 June 2015 (“the Decision”) in relation to the summons taken out by the plaintiff dated 17 November 2014 (“2014 Summons”), I made an order nisi that the plaintiff should pay the costs of the application to the defendant in any event and the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.  I further ordered that such costs to be taxed if not agreed with certificate for counsel.  The order was made on a nisi basis which would become absolute after 14 days in the absence of any application to vary the same by the parties.

3.  By a summons dated 6 July 2015 (“the Costs Summons”), the plaintiff sought to have the order nisi substituted with the following:-

“(1) Costs of the Summons taken out by the plaintiff on 17 November 2014 (“the 2014 Summons”) and the hearing of the same on 26 May 2015 be to the plaintiff in any event, such costs to be taxed if not agreed, with certificate for counsel, and the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations;

(2)& Costs occasioned by the 2014 Summons to the defendant, namely costs of the defendant to file and serve further expert evidence, if so advised, in response to the supplemental expert report by the plaintiff’s 2^nd expert, be to the defendant in any event.”

(“Proposed Order”)

4.  The parties agreed that this costs issue can be dealt with by way of paper submissions and an oral hearing was deemed not to be necessary.  Hence, the original scheduled oral hearing was dispensed with.

DISCUSSION

Categories of costs

5.  I agree with the defendant’s counsel, Mr Isaac Chan, that in fact there are 3 categories of costs involved in the Proposed Order put forward by the plaintiff.  They are:-

(i) The costs of the 2014 Summons (excluding the costs of the hearing). [Instead of what had been stated in the 2014 Summons when the plaintiff offered “the costs of and occasion by this application be to the defendant in any event”, this has now been changed to “costs to the plaintiff”];

(ii) The costs of the hearing. [The plaintiff now seeks the costs of the hearing instead of agreeing to pay for it as stated in the 2014 Summons]; and

(iii) The costs occasioned by the 2014 Summons. [The plaintiff agrees that this part of the costs should be to the defendant but seeks to limit the scope to the defendant’s costs of preparing and filing a consequential expert report only].

The plaintiff’s arguments

6.  After citing extensively the history of this case, which had already been referred to in the Decision, the plaintiff argues that as the proposed expert evidence was “reasonably required to resolve the issues before the court” (see §§19, 20, 22-24, 28-29 of my Decision), as such the 2014 Summons was not issued without any basis or merits.

7.  The plaintiff first attacked the conduct of the defendant, principally on its stance that it had, on one hand consented to be the plaintiff’s 2014 Summons to obtain a supplemental expert report while on the other hand only agreed to allow Mr Ching to be appointed as the expert.  Further, the plaintiff argues that the 2014 Summons is essentially the same as the consent order reached by the parties, save and except the appointment of the expert was someone else other than Mr Ching.  Moreover, the plaintiff claims that the hearing of the 2014 Summons and delay in the proceedings were necessitated by the defendant’s unreasonable refusal of consent to the 2014 Summons.  The plaintiff alleges that the defendant’s objection was futile and without merits.  The plaintiff also alleges that the defendant has not filed a single word of affidavit evidence in opposition to the 2014 Summons.

Applicable legal principleson costs

8.  I would agree and respectfully adopt the following legal principles on costs which are helpfully summarised by the defendant’s counsel in his written submissions.

9.  It is well established principle that when a party comes to the court for indulgence, he or she will at least have to bear the costs in relation to the application (if not also the costs of the hearing).

10.  It is now also well established that in the post-CJR era, in relation to interlocutory applications, costs to follow the event is no longer the “usual order” but just an option. (see Melvin Waxman v Li Fei Yu, HCA 1972/2012, Hon To J, 11 September 2013, unreported; §62/3/3B, Hong Kong Civil Procedure 2015).

11.  It is provided in O 62 r 5 of the RDC that:-

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account-

(aa) the underlying objectives set out in Order 1A, rule 1;

……

(e) the conduct of all the parties;

……

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes-

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) …

(d) conduct before, as well as during, the proceedings.”

Extraordinary application

12.  Whether to admit expert evidence is a matter within the court’s discretion.  Expert evidence is an area that the court would robustly monitor, especially in the post-CJR era.  As Hon Bharwaney J explained in Fung Chun Man v Hospital Authority, unreported, HCPI 1113/2006, 24 June 2011:-

“16 However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a later application is made for expert evidence to be adduced. These matters have to be considered and weighted in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties. Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with faire access to proper experts for all parties.” [emphasis added]

13.  Similar principles have been cited by the plaintiff’s counsel Mr Valentine Yim in his written submission.  In particular, the plaintiff has quoted extensively from Hong Kong Civil Procedure 2015 in support of his argument, viz §62/0/2 (p 1126); §62/3/3B (pp 1136 – 1137).

14.  The plaintiff further submits that the approach of To, J in Melvin Waxman v Li Fei Yu, HCA 1972/2012, 11 September 2013, unrep, has been followed in, among others:-

(a) TSC v LYK, FCMC 2359/2013, 22 Jan 2014, unrep, DDJ Grace Chan, §§40-41;

(b) Hind International Investment Ltd v K & L Gates (a firm of solicitors), HCA 1325/2011, 12 August 2014, unrep, DHCJ B Chu (as Madam Justice B Chu then was), §§7-9.

15.  Further, in TSC v LYK, DDJ Grace Chan said (at §42):-

“42. Further, in the exercise of its wider discretion of costs under Order 62 rule 3(2A), the court is empowered under Order 62 rule 5 to take into account special matters set out therein. This rule is of general application and applies to costs in interlocutory proceedings as well as to other proceedings. Of relevance in this application, in my view, is rule 5(1)(e) and (f), which read as follows:

“5(1) The court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account-

…

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successfully;

…

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes-

(a) whether it was reasonable for a party to raise, pursue or contest a particularallegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.” [emphasis added]

16.  In Hind International Investment Ltd v K & L Gates (a firm of solicitors), after agreeing with To J’s statement in Melvin Waxman that the principle of “costs to follow the event” is no longer the prescribed usual order but is instead an option, DHCJ B Chu (as Madam Justice b Chu then was) added (at §8):-

“8. … Further Order 62 rule 5 has now set out special matters for the court to take into account in exercising its discretion of costs, which is of general application and also applies to costs in interlocutory proceedings.”

FINDINGS

17.  I am afraid that I do not find the plaintiff’s arguments on costs convincing at all for the following reasons.

18.  First and foremost, it was the plaintiff who had come to court to ask for an indulgence in this case under the 2014 Summons.  It was not due to the fault of the defendant in any way that the plaintiff’s own appointed expert had behaved in a fickle manner and kept changing his mind in whether he would provide a supplemental report or not.  I agree with Mr Chan’s submission that it is the usual norm that a party who comes to court to ask for an indulgence should expect to bear the costs in relation with the application, if not also the costs of the hearing.  The latter would obviously depend on the conduct of the parties, in particular whether the party objecting to the application has conducted reasonably and whether he/she has caused an unnecessary hearing.

19.  Second, as explained in Fung Chun Man, supra, admission of expert evidence is never a rubber-stamping exercise.  It is most unusual, as in the circumstance of this case, that the court would allow a single party to have different experts in the same area of expertise to comment on an overlapping subject matter, whether it is consented by the parties or otherwise.  I agree with the defendant’s submissions that the plaintiff’s application for calling the 2^nd expert to comment on the 4 aerial photos is in itself an extraordinary application when the 1^st expert had already commented on many of the aerial photos already, with only 2 overlapping photos.  Hence, in my judgment, the defendant was perfectly entitled to object to such unusual application, including attending the hearing for the oral arguments.

20.  Third, this court when exercising the discretion to allow such unusual, if not extraordinary, application had to strike a “fine balance” between the various factors mentioned in Fung Chun Man in order to ensure “cost effectiveness and economy, expedition, proportionality and fairness between the parties”.  I agree with Mr Chan that most of the oral arguments at the hearing was concentrated on whether there could have been an alternative way to obtain the 1^st expert’s opinion, ie to put the relevant aerial photos to the 1^st expert when he comes to court to testify or to allow the plaintiff to call a different expert solely to give evidence on those 4 aerial photos, the latter would create a rather odd if not absurd scenario.  In the end, the court reluctantly struck that balance by tilting towards the latter, but certainly less than ideal, approach.

21.  However, that does not mean the plaintiff had “won” the arguments at the hearing as the plaintiff’s counsel seems to have suggested in his written submissions. 

22.  In my judgment, given the rather unusual background to this case and the extraordinary behaviour of the 1^st expert, not only the court is entitled to, but, in my view, it will be conducive to good case management and pursuant of justice, that full arguments on both sides should be heard in court. I therefore do not consider that the defendant had behaved in an unreasonable manner as alleged by the plaintiff by insisting on the oral hearing for the 2014 Summons.

23.  Further, in the rather unusual circumstances of this case, I do not consider it was fair for the plaintiff to say that the defendant had behaved unreasonably when it insisted that the same expert should give opinion on the 4 additional aerial photos at trial in the first place.  In this regard, I would like to make the observation that the plaintiff did not have leave to submit the supplemental expert report and did not ask for such leave until the last possible moment on 17 September 2014, being the last date of an unless order to require him to seek such direction.  Hence, when the 2014 Summons was taken out on 17 November 2014, it was already out of time under the unless order and the plaintiff was debarred from seeking leave to file any supplemental expert report.  But for the defendant’s consent and subsequently the court’s order pursuant to the consent summons, the plaintiff could not even started the process out of time.

24.  Thus, I find it rather surprising that, given the above circumstances, the plaintiff now turned around against his own proposed terms of the costs order (as stated in the 2014 Summons) and asks for the costs of the hearing. 

25.  Lastly, I reject the plaintiff’s arguments that the defendant’s failure to file any evidence in opposition of the 2014 Summons should be construed against it.  It is trite that an affidavit should contain only evidence and not legal arguments: (see eg the case of Oh Jae-Hoon v Richdale [2003] 4 HKC 318).  In any event, I do not see how a further affidavit filed by the defendant to the plaintiff’s application in this case would have assisted the court or defendant’s legal arguments.  After all, this is what skeleton arguments filed by the parties under the practice directions are there for.  I do not see what difference an affidavit filed by the defendant would have made to either the application or the arguments at the hearing in this case.

CONCLUSION

26.  For the aforesaid reasons, I find that the costs of the 2014 Summons should be to the defendant as originally proposed by the plaintiff in the 2014 Summons.  Given the nature of the application, which in essence was the plaintiff in asking an indulgence from the court (even though it might not had been due to the plaintiff’s own fault), costs of the 2014 Summons should be to the defendant in accordance with the general rule in such situation.  In my view, the costs of the application would be incurred whether the defendant consent to it or not.  Therefore, I do not find the defendant’s opposition to the application has any effect on such costs at all. 

27.  As for the costs of the hearing, as found above, I do not consider the defendant’s attendance (represented by counsel and solicitors) unreasonable, eventhough it had not been successful in opposing the application.  After all, the application involved a fine balancing exercise of the court.  In this case, the plaintiff just managed to persuade the court to tilt the balance in his favour.  However, that in my judgment does not mean that he should be entitled to costs of the hearing. 

28.  As for the costs occasioned by the 2014 Summons, I agree that the nisi order for “costs occasioned by the 2014 Summons be to the defendant in any event” should apply. 

29.  For the aforesaid reasons, I hold the order nisi should be upheld and made absolute.  Hence, the plaintiff’s Costs Summons application is hereby dismissed with costs, with certificate for counsel.

30.  Since the plaintiff is seeking to withdraw his position stated in the 2014 Summons by making the present application, I agree that both the costs of the Costs Summons as well as the reserved costs of the consent summons dated 10 July 2015 should be to the defendant in any event.

31.  I would like to thank counsel on both sides for their helpful written submissions.

DCMP 2891/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2891 OF 2011

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DECISION

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INTRODUCTION

1.  This is an application by the plaintiff to seek leave to engage an authorised land surveyor, other than the plaintiff's present expert Mr Ching Siu Tong (“Mr Ching”), for the purpose of preparing a supplemental expert report confined to the scope of the 4 aerial photos referred to in the supplemental expert report by the defendant expert, Ms Chan Yuen Ki ("Ms Chan") filed on 3 June 2014.

BACKGROUND

2.  This action arose out of an adverse possession claim whereby the plaintiff claims against the defendant, who is the registered owner, in respect of a piece of land known as the remaining portion of lot no. 1275 in DD 79 ("the Land"). It is the plaintiff's case that he has been in adverse possession of the Land for over 20 years (since 1982), or alternatively for more than 12 years (since 1996), before the commencement of this action.

3.  On 31 October 2013 I handed down a decision in this case when I refused the plaintiff’s application to appoint a new expert to substitute Mr Ching as the plaintiff's expert in this case.  In the decision, I have set out the background to the dispute in relation to the appointment of the plaintiff's expert.  I would refer the parties to that decision for the background as well as the reasons for my decision.

4.  The background to the current application started when the plaintiff, with leave of the court, filed a supplemental witness statement on 30 April 2014 whereby 4 aerial photos taken respectively on 7 September 1999, 17 October 2000, 1 March 2001 and 24 September 2001 were referred to and commented upon by him. The plaintiff explained his cultivation activities on the Land during the periods covered by the 4 aerial photos in the supplemental witness statement.

5.  As a result, also pursuant to an order of the court, the defendant filed the defendant’s supplemental expert report on 3 June 2014 in which the defendant's expert Ms Chan, by reference to the 4 aerial photos, opined that most of the Land was not under cultivation for the period from 7 September 1999 to 24 of September 2001. This is in direct contradiction to the plaintiff's evidence contained in the supplemental witness statement.

6.  As the factual possession of the Land is central to the core issue in this case, the plaintiff's solicitors took out a summons on 17 September 2014 to apply for leave to file and serve a supplemental expert report from the plaintiff's own expert, ie Mr Ching of KELand Surveying, Planning and GIS Co Ltd ("KELand”), to respond to the defendant's supplemental expert report, in particular to the comments made by Ms Chan on the 4 aerial photos.

7.  On the same day as the plaintiff taking out the summons, the partner in charge of the case in the plaintiff's solicitors firm, namely Mr Li Man Pong ("Mr Li") and a staff member of the firm one Ms Joyce Wong ("Ms Wong") visited KELand’s office and met with Mr Ching. Although the meeting was not a pre-arranged one, Mr Ching appeared to be friendly and amicable.  He also indicated to Mr Li and Ms Wong that he was willing to assist in making the supplemental expert report.  Mr Ching was informed that the plaintiff’s solicitors would provide him with the updated information and relevant documents which would enable him to prepare the supplemental expert report.

8.  By consent, on 6 October 2014, Master SP Yip made the following order in relation to the appointment of Mr Ching to prepare the supplemental expert report:-

“1. The plaintiff do have leave to file and serve by 17^th November 2014 a supplemental expert report by the plaintiff’s expert, Mr. Ching Siu Tong, containing his expert opinions responding to and/or commenting on the expert opinions on the aerial photos referred to in the Supplemental Expert Report by Ms. Chan Yuen Ki filed by the defendant on 3^rd June 2014, subject to paragraph 2 hereinbelow.

2. Mr. Ching Siu Tong should base and confine his expert opinions solely on the mother prints of those aerial photos referred to by Ms. Chan Yuen Ki in her Supplemental Expert Report filed by the defendant on 3^rd June 2014.

3. The defendant do have leave to file and serve further expert evidence, if so advised, in response to the said supplemental expert report by Mr. Ching Siu Tong by 29^th December 2014.

4. No further expert evidence is to be adduced by either party without leave of the Court.”

9.  On the same day, the plaintiff's solicitors sent a draft copy of the Order to Mr Ching for his perusal and preparation of the supplemental expert report.

10.  On 7 October 2014, a female staff of KELand telephoned Mr Li and quoted a fee of $15,000 for preparing the said supplemental expert report.  Mr Li asked the female staff to forward the quotation to them so that they could forward it to the Legal Aid Department for their approval. The female staff subsequently requested the plaintiff’s solicitors to send them $8,000 as advanced payment for the purpose of preparing the said supplemental expert report.  Mr Li repeated the standard procedure of payment by the Legal Aid Department to experts to the female staff.  However, no quotation from Mr Ching was ever received by the plaintiff’s solicitors.

11.  Instead, on 8 October 2014, Mr Ching sent a letter to the plaintiff solicitors stating effectively his refusal to prepare the supplemental expert report in accordance with the court Order. In particular, the letter stated the following position of Mr Ching in this matter:-

“1. Please be reminded that my decision in my letter dated 28^th June 2013 is valid and still applicable. [The 2^nd paragraph of the letter states “Upon going through our workloads on hand, I regret that we are unable to provide further assistance in the case.”]

2. Both I and our company do not have any employment agreement with your client and/or your company now.  Hence I am not in a position and not willing to comment on your letter.” [emphasis added]

12.  On 7 November 2014, in a final attempt to persuade Mr Ching to prepare the supplemental expert report, Mr Li went to Mr Ching's office with Ms Wong, took with him all the necessary documents which would be needed for the expert to prepare the supplemental report, in the hope that Mr Ching would change his mind. However, Mr Ching blankly refused even to meet with them on this occasion.

13.  With such uncooperative attitude from his own expert, the plaintiff has no alternative but to issue the present application.

Relevant legal principles

14.  The relevant principles of law are not in dispute and had been summarised in my earlier decision. I do not wish to repeat those cases which I had already cited here.  However, it may be helpful in the context of this case to add the following authorities which I think are relevant in the present context.

15.  Under the post-CJR regime, when faced with an application for leave to adduce expert evidence, it has been said that the underlying objectives of the CJR must be taken into consideration.  In Fung Chun Man v Hospital Authority, unreported, HCPI 1113/2006, 24 June 2011, Bharwaney J stated at §§9 to 16 the following:-

“9. The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (“RHC”).  However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers.  Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

…

11. The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

12. In this regard, I echo the observations of Evans-Lombe J in Barings PLC v Coopers & Lybrand (No. 2) [2001] Lloyds Report Bank 85:

“45. Expert evidence is admissible …. in any case where the court accepts there exists a recognized expertise governed by recognized standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”

13. The Court of Appeal in Mann v Messrs. Chetty & Patel (a firm) [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before deciding to allow expert evidence:

“(a) how cogent the proposed expert evidence will be;

(b) how helpful it will be in resolving any of the issues in the case; and

(c) how much it will cost and the relationship of that cost to the sums at stake.”

14. Chu J, as she then was, referred to Barings PLC v Coopers & Lybrand and concluded, in Wong Hoi Fung v American Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.

15. In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.

16. However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a later application is made for expert evidence to be adduced.  These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.  Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.” [emphasis added]

16.  The above principles have been adopted in the recent case of Elijah Saatori v Raffles Medical Group (Hong Kong) Ltd, unrep., HCPI 1114/2006, 31 March 2015 by Chow J.

17.  Therefore, when considering an application of such nature, the court should look into the facts and circumstances of each case to exercise its discretion against the underlying objectives of the CJR in order to ensure that justice can be served and a fair trial can proceed for all parties.

Issues raised in this application

18.  In my opinion, the following are the issues which the court has to resolve in deciding whether to exercise the discretion in favour of the plaintiff in this case:-

(i) Is the proposed expert evidence reasonably required to resolve the issues before the court;

(ii) Any prejudice cause to the defendant; and

(iii) other relevant circumstances which the court should take into account.

(i) Is the proposed expert evidence reasonably required to resolve the    issues before the court?

19.  In my judgment, the situation the plaintiff now faces is very different from the dilemma he faced in the last application before me.  Unlike the last occasion, I do not regard the plaintiff has created the situation himself this time.  Rather, he was forced into a situation where he would not be able to rely on any expert opinion due to the extremely uncooperative attitude displayed by his own expert.

20.  In my view, the 4 aerial photos clearly raised important factual issues on whether the plaintiff was in factual possession of the Land as it is trite that cultivating land is evidence of possession: see Tsoi Ping Hung and another v Cheung Chow Lan and others, unreported, CACV 126/2014, 5 May 2015; Norton v London and North Western Rly Co (1879) 13 Ch D 268 at 273. Thus, whether there were cultivation activities on the Land during the periods shown in the 4 aerial photos are important matters which the court has to consider and to resolve in this case.

21.  I think it will be fair to say that when the plaintiff included the 4 aerial photos in his supplemental witness statement, he was not expecting the defendant would ask its own expert to comment on them by way of expert opinion.  Least he would expect that his own expert would refuse to comment on them when asked by the court to do so. 

22.  As the defendant’s expert has already expressed an opinion that there was no continuous cultivation on the Land by looking at the 4 aerial photos, I think it will only be fair and just for the plaintiff to seek a supplemental expert report from his own expert to comment on this matter. Otherwise, it will create an unlevelled playing field where the defendant would be allowed to call its expert to comment on the matter while the plaintiff will not be able to do so due to his own expert’s uncooperative attitude.

23.  Mr Isaac Chan, the defendant’s counsel, in his submission says that the proposed expert report is of "negligible assistance" to the court in resolving the material issues in this case.  In particular, he submits that only 2 out of 4 of the aerial photos are new and have not been covered in the joint statement of the experts.

24.  I cannot agree with this submission as the matters raised by the plaintiff in his supplemental witness statement in relation to the 4 aerial photos, albeit brief, are very specific and significant. Equally, the subsequent opinions expressed by Ms Chan are also very precise and important.  Under such circumstances, I think it is only fair that the plaintiff will have his own expert to comment on such important matters. 

25.  Mr Chan further submits that there is no restriction to simply put the 2 additional photos to Mr Ching during examination in chief when he gives evidence at the trial.

26.  In my judgment, it will not be ideal for Mr Ching to merely comment on them at the trial without the opportunity for both the court and the parties to know in advance what the plaintiff's expert opinion is likely to be on such important issues.  Under Order 38, rule 37 of the Rules of the District Court, unless the court considers that there are special reasons for not doing so, the court will direct the substance of the expert evidence to be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify: see §38/37 of the Hong Kong Civil Procedure 2015.  I believe the rule is there for good reasons, namely, to prevent any surprises at trial and to allow the parties to properly prepared to deal with the other side’s expert evidence in advance. Therefore, I do not consider it will be desirable to have any experts to comment on matters at the trial which they have not had previously expressed an opinion in writing before.  Otherwise, this will only lead to unnecessary arguments, likely prolonging or even possible adjournment of the trial.  In my view, they will not be consistent with the underlying objectives of the CJR.

(ii) Is there any prejudice caused to the defendant?

27.  The defendant claims that if the court allows the application, it will cause prejudice to the defendant in that (i) the present application has already caused the CMC adjourned on at least three occasions; and (ii) that this is back-door way of introducing a new expert.

28.  As said, I do not consider that the present application was caused by the plaintiff’s own doing.  Rather, this was due to a professional expert, who knowingly taken up a legal aided case, has, for reasons best known to him, subsequently displayed a rather uncooperative attitude towards his own client and solicitors.  If Mr Ching is so busy with his professional work and could not assist in writing any further supplemental report(s), then he should not have taken up the case in the first place.  By agreeing to act as an expert in this case, he must have known that it may cause interruptions in his professional work from time to time and also may require him to give supplement opinion to the main report from time to time. Further, if he is not prepared to accept the payment method specified by the Legal Aid Department in paying its appointed experts, he should not have taken up the case in the first place. By displaying such an uncooperative attitude, he is really not doing any service to his client or assisting the court.  Besides, by saying that he is unwilling to even comment on the letters sent by the plaintiff’s solicitors, Mr Ching is effectively flouting the Order given by Master SP Yip on 3 October 2014. 

29.  Hence, I do not agree with the defendant's submission that the current situation was single-handedly created by the plaintiff. I was told that leave was only granted to the plaintiff to file the supplemental witness statement after a full argument before the master involving counsel from both sides.  I understand that it was the defendant’s former counsel who had asked the master to give leave to the defendant to file and serve a witness statement/supplemental witness statement and supplemental expert report in reply to the matters raised by the plaintiff in relation to the 4 aerial photographs stated in his supplemental witness statement: see Order of Master SP Yip dated 29 April 2014.  I noted that no provision has been made in the Order to provide the opportunity for the plaintiff to ask his own expert to reply to the defendant's expert opinion. The consent summons dated 6 October 2014 was only filed after extended negotiations between the parties.  I therefore do not agree that all the delays in setting down the case for trial was caused by the plaintiff or his solicitors.  Instead, I consider that a lot of it was caused by circumstances beyond his control, in particular the rather unexpected and uncooperative attitude displayed by his own expert.

30.  I also do not agree with the defendant's submission that the current application was a backdoor way of introducing a new expert in this case.  It is clear that both in the correspondence between the parties prior to the issue of the summons and in the consent summons filed by the parties dated 6 October 2014, the plaintiff was fully expecting to engage Mr Ching to prepare the supplemental expert report.  It was only due to the circumstances as set out above that have prevented the plaintiff and his solicitors from doing so.  Further, it is clear that the plaintiff and his solicitors are not trying to substitute Mr Ching as an expert in this case. What they are asking is to merely having the chance of an expert to comment on the opinion given by the defendant expert on the 4 aerial photos. I do not see anything wrong with that. To the contrary, I see an unjust and unfair situation will be resulted if the court refuses leave to the plaintiff to have an expert to comment on those matters.

31.  I therefore do not see any real prejudice will be caused to the defendant if the court is to grant leave to the plaintiff to have a new expert other than Mr Ching to comment on the opinions given by Ms Chan on the photographs.

(iii) Other relevant circumstances

32.  Other relevant circumstances I have taken into consideration in this case included:-

(i) no trial date yet been fixed for this case;

(ii) leave has been granted by the master to allow the plaintiff to file a supplemental report from its own expert to comment on the 4 aerial photos (albeit the originally intended expert was Mr Ching); and

(iii) there will not be any substantial delay in asking the plaintiff to appoint an expert to comment on such narrow issues.

33.  All the above circumstances in my view strongly indicate that in the interests of justice and in line with the underlying objectives of the CJR, the court should grant leave to the plaintiff to appoint an expert other than Mr Ching to comment on those 4 aerial photos.

CONCLUSION

34.  In conclusion, I am of the view that it is only just and fair in the circumstances of this case to allow the plaintiff to engage an authorised land surveyor other than Mr Ching to prepare a supplemental expert report specifically dealing with the opinion expressed by the defendant's expert in her supplemental expert report filed on 3 June 2014.

35.  I therefore make an order in terms of the plaintiff’s summons dated 17 November 2014.

36.  In the summons, the plaintiff was contented to have the costs of and occasioned by this application be to the defendant in any event and the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.  I have no problem in granting such a costs order save to add that such costs should be taxed if not agreed with certificate for counsel.  I shall make this as an order nisi and it will become absolute after 14 days in the absence of any application to vary the same.

37.  Lastly, I would like to thank counsel on both sides for their helpful assistance.   

DCMP 2891/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2891 OF 2011

--------------------------------

--------------------------------

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DECISION

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1.  This is an appeal brought by the plaintiff against the Order of Master A Yim (“the master”) made on 12 August 2013 dismissing the plaintiff’s application under summons dated 31 July 2013 to vary an earlier Order made by her on 11 July 2013. In the earlier Order, she had dismissed an application by the plaintiff to file a new expert report.

BACKGROUND

2.  This action relates to an adverse possession claim made by the plaintiff against the defendant in respect of a piece of land known as Lot No. 1275 in D.D. 79, Ta Kwu Ling, New Territories (“the Land”).

3.  The plaintiff has been granted legal aid.  The Director of Legal Aid (“DLA”) first assigned Mr Yeung Yuen Bun, Benny of Messrs Cheng Yeung & Co (“CY”) to act for him on 28 September 2010.

4.  Following the assignment of CY, the plaintiff commenced the present proceedings against the defendant on 24 November 2011 by originating summons claiming adverse possession of part of the Land.  The defendant is the registered owner of the Land.  A number of affirmations have been filed by the plaintiff and on his behalf in support of his claim.  This included one by the plaintiff himself dated 24 November 2011 detailing his alleged possession of the Land.  The defendant opposed the application.  Eventually, the plaintiff accepted that there were factual disputes existed in the case and agreed to have the proceedings turned into an action by writ.  It was so ordered by the court by consent on 26 May 2012.

5.  The action then proceeded with the filing of pleadings, discovery and exchange of witness statements.  The Amended Statement of Claim dated 12 October 2012 was settled by the counsel originally assigned by the DLA (who has since left private practice and joined the judiciary).  The Agreed Statement of Issue in Dispute was filed on 23 May 2013 pursuant to the Order of Master KK Pang made on 8 March 2013.

The orders and directions on expert evidence

6.  By a Consent Order dated 24 January 2013 (“the Consent Order”), the parties agreed to the following:-

“1. Paragraph 2 of the Consent Summons filed on the 10^th day of December 2012 be replaced by the following:-

1.1 “The Plaintiff do lodge with the Court the Survey Report prepared by KEL and Surveying Planning & Gis Company Limited dated January 2011 in respect of the issues establishing the boundaries of Lot No 1275 in D.D. 79 pleaded in paragraphs 1 and 4 and the matters particularised in paragraph 5 of the Amended Statement of Claim filed on the 12th day of October 2012 within 7 days from the date of an Order to be made herein.”;

2. Paragraph 3 of the Consent Summons filed on the 10^th day of December 2012 be replaced by the following:-

2.1 “The defendant do lodge with the Court the Survey Report prepared by Ms. Chan Yuen Ki, ALS, MHKIS, MRICS, RPS(LS), Authorised Land Surveyor dated 3 August 2012, on issues related to the stated of the alleged exclusive occupation of the land by the plaintiff since 1982, as disputed and pleaded in paragraphs 3 to 6 of the Amended Defence filed on the 26^th day of October 2012, within 7 days from the date of an Order to be made herein.”;

3. The parties do exchangethe Survey Reportprepared by KEland Surveying Planning & GIS Company Limited in January2011 for the plaintiff and the survey report prepared by Ms Chan Yuen Ki, ALS, MHKIS, MRICS,RPS(LS), Authorised Land Surveyor dated 3 August 2012 for the Defendant within 7 days from the date hereof;

4. The parties do file the experts’ joint statement of the parts of their reports on which they agree,and those parts on which they disagree,and the reasons for their disagreement within 63 days from the date of exchange mentioned in paragraph 3 hereinabove;

5. Upon the Court satisfying paragraph 4 above, leave be granted to the parties to adduce the reports mentioned in paragraphs 1 and 2 above as expert evidence in this action.  The parties do comply with Order 38 rules 37A – 37C of the Rules of District Court, Cap336 and shall furnish a copy of the Code of Conduct for Expert Witness to each of the experts and thereafter the said reports be filed together with the Statement of Truth within the period so ordered by the Court.”

7.  In pursuance of the Consent Order:-

(a) the survey report of KEL and Surveying Planning & GIS Co Ltd dated January 2011 as prepared by Mr Ching Siu Tong (“Mr Ching”) was filed on 31 January 2013 on behalf of the plaintiff (“Mr Ching’s Report”);

(b) the survey report of Ms Chan Yuen Ki (“Ms Chan”) was filed on 31 January 2013 on behalf of the defendant (“Ms Chan’s Report”); and

(c) the Experts’ Joint Statement as signed by Mr Ching and Ms Chan was filed on 5 April 2013 (“the Experts’ Joint Statement”).

8.  There has been a re-assignment of the case from CY to Mr Li Man Pong of Messrs KY Lo & Co (“KYL”) on 10 June 2013.  There has also been a change of counsel and Mr Valentine Yim (who has appeared on behalf of the plaintiff both in the hearing before me and the hearing before the master) has been assigned in place of the originally assigned counsel.

9.  Shortly before the Case Management Conference (“CMC”) on 11 July 2013, the plaintiff took out a summons dated 3 July 2013 (“the 3 July Summons”) seeking the following orders:-

“1. The Plaintiff do have leave to file and serve on the Defendant within 63 days from the date of an Order to be made herein a survey report by an Authorised Land Surveyor in place of the survey report made in January 2011 by the then Authorised Land Surveyor for the plaintiff, Mr Ching Siu Tong of Keland Surveying, Planning & GIS Co. Ltd.

2. The parties do file the experts' joint statement of the parts of their reports on which they agree, and those parts on which they disagree, and the reasons for their disagreement within 63 days from the date of exchange mentioned in paragraph 1 hereinabove;

3. Upon the Court satisfying paragraph 2 above, leave be granted to the parties to adduce the report mentioned in paragraph 1 above and the survey report prepared by Ms. Chan Yuen Ki, Authorised Land Surveyor dated3^rd August 2012 for the Defendant as expert evidence in this action.

4. Costs of this application be to the Defendant in any event.”

10.  The plaintiff’s application was supported by the affidavit of Tam Kam Tong (“Tam”), a solicitor of KYL, filed on 4 July 2013 (“Tam’s affidavit”).

11.  After hearing arguments from both sides, the master dismissed the plaintiff’s application and made the following Orders on 11 July 2013 (“the 11 July Order”):-

“1. The plaintiff’s applicationforleavetofilenewexpertreportis refused.

2. The parties are to address the court as to whether it is necessary for the respective experts of the parties to give oral evidence at trial during the next CMC. Where appropriate, a short statement setting out in bullet point those issues relating to the expert evidence that require oral evidence be filed and served on or before 1 August 2013.

3. Parties are directed to take out all interlocutory application, including leave to file supplemental expert joint expert statement, on or before 11 September 2013”

12.  In pursuance of the 11 July Order, both the plaintiff and the defendant have filed the short statements on expert evidence.  The plaintiff’ short statement was filed on 1 August 2013 (“the plaintiff’s short statement”) while the defendant’s short statement was also filed on the same day (“the defendant’s short statement”). 

13.  However, before the filing of the plaintiff’s short statement, the plaintiff took out another summons dated 31 July 2013 (“the 31 July Summons”), which was only served on the defendant’s solicitors on 8 August 2013.  By the 31 July Summons, the plaintiff sought a variation of §§1 and 3 of the 11 July Order.  The Orders sought are exactly in the same term as the 3 July Summons which are set out below for the sake of completeness:-

“1. The Order made by Master A. Yim on 11 July 2013 be varied to the extent that paragraphs 1 and 3 thereof be replaced by the following respectively:-

1. (a) The Plaintiff do have leave to file and serve on the Defendant within 63 days from the date of this Order a survey report by an Authorised Land Surveyor in place of the survey report made in January 2011 by the then Authorised Land Surveyor for the plaintiff, Mr Ching Siu Tong of KEland Surveying, Planning & GIS Co. Ltd.

(b) The parties do file an experts’ joint statement, in place of the experts’ joint statement filed herein on 5 April 2013, of the parts of their reports on which they agree, and those parts on which they disagree, and the reasons for their disagreement within 63 days from the date of exchange referred to in sub-paragraph (a) hereof.

(c) Upon the court satisfying sub-paragraph (b) hereof, leave be granted to the parties to adduce the report referred to in sub-paragraph (a) hereof and the survey report by Ms Chan Yuen Ki, Authorised Land Surveyor dated 3 August 2012 as expert evidence in the trial of this action.

3.  Parties are directed to take out all interlocutory applications within 42 days from the date of the filing of the experts' joint statement referred to in paragraph l (b) hereof.”   

14.  The plaintiff’s application under the 31 July Summons was supported by Tam’s 2^nd affidavit filed on 9 August 2013.

15.  After hearing arguments from both sides, the master dismissed the plaintiff’s application on 12 August 2013 (“the 12 August Order”).

16.  By a Notice of Appeal filed on 26 August 2013, the plaintiff now appeals against the 12 August Order made by the master and seeks to reinstate the order sought under the 31 July Summons.

The plaintiff’s case

17.  The plaintiff’s main contention on the appeal is that due to no fault of his own, his appointed expert Mr Ching has been refusing to co-operate with his present assigned solicitors and/or to provide further assistance in this case.  Thus, according to the plaintiff, it is only just and fair that he should be given the opportunity to change his expert even at this late stage.

18.  In order to understand the plaintiff’s arguments, it is necessary to go into the history of the exchange between Mr Ching and the plaintiff’s previous and present assigned solicitors.

19.  When Mr Ching was first instructed by CY to act as expert for the plaintiff, it was made under the cover of a letter dated 21 December 2010 issued by CY to Mr Ching.  The subject heading of the letter was: “Re: Adverse possession The Remaining Portions of Lot Nos 1275 and 1268 in D.D. 79” [emphasis added].  In the letter itself, Mr Ching was instructed to “carry out the topographical and land boundary survey and to prepare a survey report in respect of the Remaining Portion of Lot No. 1275 in D.D. 79 (“Lot 1275”) for the above-mentioned purpose.” [emphasis added]

20.  In Mr Ching’s Report dated January 2011, the purpose of the report and its conclusion was respectively stated by him as follows:-

“1. Purpose

The purpose of this survey was to re-establish the boundaries of Lot 1275 RP in D.D. 79, Ng Chow Road, North.

9. Conclusion

The boundary evidence was found consistent in general.  No major inconsistencies were spotted upon correlation among different records when comparing to recent field survey.  In light of this, the boundaries of the subject lot were redefined, in general; by following the existing occupational features; eg field bunds, retaining walls, by adopting the boundary data of the adjoining lot previously redefined and by following the graphical depiction in the Lot Index Plan with respect to other old survey records, eg DD sheet.”

21.  After the case was assigned to KYL in June 2013 and having studied the documents, the plaintiff’s legal team formed the view that Mr Ching’s Report did not address one of the central issues of this action, namely whether the plaintiff has been in factual possession of part of Lot 1275 since about 1982 (“the Possession Issue”).         

22.  A conference therefore was arranged between the plaintiff, the solicitors, the counsel and the expert on 27 June 2013. According to Tam’s affidavit, Mr Ching revealed at the conference that the instructions given to him by CY when he was first instructed were to carry out a topographical and land boundary survey and to prepare a survey report about Lot 1275 RP in D.D. 79.  He also admitted that if his instructions were to provide and expert report on whether the plaintiff has been in factual possession of part of Lot 1275 since about 1982, his report would certainly have been different.  Mr Ching then agreed to provide a further expert report, giving his expert opinion on the Possession Issue, if leave is granted.  However, on the next day ie 28 June 2013, he wrote to KYL stating that due to their workloads on hand, they are unable to provide further assistance in this case. 

23.  KYL then immediately arranged for another authorised land surveyor, Mr Ma Yung Kong, Helicon of Helicon Ma Surveying Limited (“Mr Ma”) to have a meeting with the plaintiff and his legal representatives.  In the conference held on 2 July 2013, Mr Ma agreed that Mr Ching’s report had failed to address the Possession Issue and he was willing to prepare an expert report on the Possession Issue if leave is granted.

24.  As a result, the plaintiff took out the 3 July Summons seeking leave to file and serve an expert report in place of Mr Ching’s Report.  The grounds advanced by the plaintiff’s counsel at the hearing of the summons on 11 July 2013 (as appeared in his Skeleton Argument dated 8 July 2013) are as follows:-

“(1) the application if granted will assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” (see Order 1A rule 2(2) of the RHC);

(2) P should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to D which cannot be compensated by costs;

(3) since no milestone dates of any sort (eg trial date) has been fixed, allowing P’s application will not cause any real prejudice to D which cannot be compensated by costs; and

(4) the relevant facts clearly show that P’s application is not “expert shopping” (Mr Ching could have made a supplemental expert report to give his opinion on the Possession Issue.  However, he has now refused to provide further assistance in this case.)

25.  As said, the summons was dismissed by the master resulting in the 11 July Order: (see §11 above).

26.  On 22 July 2013 KYL wrote to Mr Ching, enclosing a copy of the draft Order made by the master:-

(1) reminding him of his duty to the court as an expert; and

(2) urging him to reconsider his decision to terminate his service and to continue to act as expert in the further conduct of his action.

27.  Later on the same day, after KYL had received the court’s comment on the draft Order, KYL subsequently sent two reminder letters to Mr Ching.  In particular, KYL highlighted the need to meet up with him concerning the short statement setting out in bullet points the issues that require expert oral evidence.  In one of these letters KYL attached for Mr Ching’s reference the Order approved by the court.

28.  On 23 July 2013, Mr Ching had a telephone conversation with Tam during which Mr Ching promised that he would attend court to give oral evidence during the trial.  According to Tam, he was non-committal as to whether he would help in preparing the short statement or supplemental expert joint statement.  On the same day ie 23 July 2013, Mr Ching wrote to KYL and put on record the following matters:

“Nevertheless, I, being an expert witness, appreciate that my paramount duty is to the court and I have an overriding duty to help the Court impartially. While I have completed my survey report in January 2011 and a joint statement with the other side’s expert in March 2013, I will be pleased to attend court and give evidence at trial for my submitted survey report and joint statement.”

29.  On 26 July 2013, KYL sent Mr Ching a letter asking for his reply on the attached draft plaintiff’s short statement.

30.  On 26 July 2013, Mr Ching wrote to KYL indicating that he reiterate his decision in his letter dated 28 June 2013, namely due to their workloads on hand, they are unable to provide further assistance in this case. Further, he stated that:-

“2. Please be noted that I have no further supplement on my submitted expert evidence, ie the survey report in January 2011 and the joint statement with the other side’s expert in March 2013, via Messrs Cheng Yeung & Co. Grateful if you would advise your client and the Clerk to the Deputy Judge accordingly. [emphasis original]”

31.  On the next day, ie 27 July 2013, Mr Ching telephoned Tam.  According to Tam’s affidavit, he started by saying that he was tape-recording the telephone conversation.  He then told Tam that he had decided not to respond to the plaintiff’s solicitors request to him to comment on the draft plaintiff’s short statement.  He warned that he would apply for an injunction against KYL upon receipt of further correspondence from KYL on the matter.  He said that he would attend court to testify if the court summonsed him to do so, but he refused to do other than that.  He considered himself owing a duty to the court but not to the plaintiff or KYL.

32.  Later in the same day, Mr Ching wrote to KYL, indicating that he reiterates his decision in his letter dated 28 June 2013 (namely due to their workloads on hand, they are unable to provide further assistance in this case).  Further, he stated, inter alia, that:-

“1. Please be reminded that my decision in my letter dated 28 June 2013 is valid and still applicable;

2. Both I and our company do not have any employment agreement with your client and/or our agreement now. Hence I am not in a position and not willing to comment on plaintiff’s short statement;

3. Please consider NOT to send repeating requests as your actions are now causing nusisances and disturbances to me and our company; and

4. Grateful if you would convey the above to your client and the Clerk to Deputy Judge accordingly.”

33.  The plaintiff considers that such stance taken by Mr Ching will make it impossible for the plaintiff to comply with that part of the Order of the master which relates to expert evidence.  This is because:-

(1) The draft plaintiff’s short statement has identified additional issues on which expert evidence is required; and

(2) It will not be enough for Mr Ching to attend court just to testify on (i) Mr Ching’s Report and (ii) the present expert joint statement but not (iii) the said additional issues.

34.  Hence, on 31 July 2013, the plaintiff took out a summons for an order to vary the master’s order pursuant to Order 38, rule 44 of the RDC: see §13 above.

The defendant’s case

35.  The defendant’s objection to the plaintiff’s appeal mainly consisted of the following grounds:-

(1) the re-visiting of the whole question of expert evidence when the parties have already filed and exchanged their expert reports and filed the Experts’ Joint Statement would cause obvious prejudice to the defendant;

(2) the application should not be allowed as the original Order / directions was made under a Consent Order;

(3) the plaintiff should not be allowed to shop around for expert; and

(4) no sufficient cause has been shown to vary the order on expert evidence. 

ISSUES TO BE DECIDED

36.  In my view, the central issue to be decided in this case is whether it will be fair and just in all the circumstances of this case to allow the plaintiff to change his expert at this stage of the proceedings.

37.  In order to determine the central issue, on the particular facts of this case, the court has to look at and to decide upon the following sub-issues:-

(1) Whether the plaintiff’s expert had addressed the Possession Issue in his report and/or experts’ joint statement;

(2) Whether the plaintiff was shopping around for a new expert;

(3) Whether real and obvious prejudice has been caused to the defendant; and

(4) Is it still possible for the court to make a just resolution of the disputes and real issues between the parties without appointing a new expert.

DISCUSSION

The relevant legal principles

38.  It is not disputed that following are the relevant principles of law governing the change of experts.  They have been helpfully summarised by Mr Yim, the plaintiff’s counsel.  I can do no better than reproducing his summary of those principles as appear in his written submissions here.  

39.  In Law Chung Fai v Lam Ming Kuen, unrep, HCPI 96/2008, 13 September 2010, Bharwaney J summarized the principles to be applied in determining an application to change an expert witness as follows (at §9 of judgment):-

“9. The principles that have to be applied in determining an application to change an expert witness may be summarised as follows:-

(a) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court's management powers. These powers must be exercised in the light of the underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

(b) In the exercise of its powers of case management. the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

(c) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case.

(d) The disclosure of the original expert's report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert. However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called.

(e) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f) However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.

(g) In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute.

(h) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

(i) It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may arise and which prompts an application by a party to change his expert.

(j) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.” [emphases added]

40.  It has also been held that an application to change an expert should only be entered when there are very good reasons and the defects cannot be remedied. In Tanag Padam Rqj v Shek Chi You and Wong Ching Yi trading as Pak Tsun Company and Others, unrep, HCPI 613/2011, 26 April 2013, Master Leong stated (at §§36-38 of judgment):-

“36. It is trite law, especially with the CJR which aims to minimize litigation costs and time, that “expert shopping” should be discouraged. The “default position” for case management must be that any change of experts, especially at such a late state, should be refused unless there are very good reasons.

37. Of course, there were cases when very good reasons had been advanced, for example when substantial disputes emerged late in the proceedings in an area in which one expert had limited expertise (as in the case of Law Chung Fai v Lam Ming Kuen HCPI 96/2008). I can also envisage other circumstances when the court may grant such indulgence, eg when an expert refused reasonable requests for clarifications of his opinion. or perhaps when an expert opinion is so unreasonable and unsatisfactory that it raises question on the credibility or. at least. the competence of the expert.

38. However,whenthe alleged “defects”canberemedied by further communications with the expert (eg by providing additional evidence, seeking clarifications on matters not understood, seeking opinion on points not addressed in the original report, or, in general, by commissioning supplemental reports), then there is no good reason to seek to change the expert, especially in circumstances when the party has made no attempt to (or, as in this case, did not agree to) communicate with the experts after the original report.” [emphases added]

41.  In Edwards-Tubb v JD Wetherspoon Plc [2011] 1 WLR 1373, a decision of the English Court of Appeal, Hughes LJ (whose judgment the other two members of the court agreed) said (at §30):-

“30. …… I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the fist expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to reply on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence ……”

42.  While I have no problem in accepting the principles stated in the above cases, I consider that the facts in our case are very different from those in the cases referred to.  I shall examine the sub-issues in order to answer the central issue of whether it will be fair and just in all circumstances of this case to allow the plaintiff to change expert at this stage.

(1)     Did the plaintiff’s expert address the possession issue in his report and experts’ joint statement?

43.  First, I do not accept the plaintiff’s claim that Mr Ching did not know when he was first instructed to provide an expert report that it was for the purpose of commenting on the adverse and/or factual possession of the Land.  In my view, the letter of CY dated 21 December 2010 has clearly stated what the purpose of engaging Mr Ching was in the first place.  It was, as stated in the heading of the letter, in relation to the “Adverse Possession” of the Land.  If that was not clear enough, the letter went on to say on page 2 that:-

“Our client and his family are residing in Lot 1275.  As regards the Remaining Portion of Lot No 1268 in D.D. 79 (“Lot 1268”), we are instructed that our client is permitted to grow crops by the owner of Lot 1268.  Hence, there is no question of adverse possession of Lot 1268.”

44.  While I think there certainly existed room for improvement in the language employed in the letter, it is not fair to say that it is not clear what the expert was asked by CY to do.  As an expert and very experienced surveyor, I think Mr Ching knew very well what he was asked to include in his report.

45.  Second, it appears that Mr Ching understood well what he was required to do by CY as he stated in the 2^nd paragraph on page 2 of his report that: “We were instructed by our client, who was the legal representatives of the occupier to re-establish the lot boundaries for the purpose of adverse possession” [emphasis added].   Further, he stated under the heading of “Ground Evidence” on page 3 of his report that “During the time of survey, the subject lot, together with the adjoining Lot 1268RP, was partly fenced.  Most of the areas were being used as agricultural purpose.”  Also, Mr Ching made local enquiries in relation to the occupation of the Land as on page 4 of his report under the heading of “Local Enquiries” he has stated the following :-

“Local enquires were conducted. According to the occupier, Mr Yip of about 60 years old, his family had been cultivating in Lots 1275RP and 1268 RP for about 30 years and has also been residing in Lot 1275RP for the same period. He alleged that he had erected some fences around the extent of his cultivation areas. Nevertheless, he had limited knowledge about the extent of the lot boundary. He further disclosed that he was not the registered owner of the subject lot and had never seen the owner before. Moreover, he realized that there would be a resumption conducting by the Government but again he had limited knowledge about the limits of the area to be resumed.”

46.  Mr Ching went on to examine the lot index plan, the DD sheets, the survey sheets and aerial photos and concluded at page 6 of his report that “the subject site was an agricultural field since the DD survey and did not undergo significant change of usage up to the moment.”    

47.  I agree with Mr Li, SC, the defendant counsel’s submission that, while at first sight it seems Mr Ching’s Report was concerned with the boundary demarcation of the Land, in fact, the report was actually about boundaries with reference to the occupational history of the plaintiff and his family.  This apparently was an observation made by the master at the hearing of the summons.  In my view, it is not correct to say that the central issue of factual or adverse possession of the Land has not been dealt with in Mr Ching’s Report as submitted by the plaintiff.  While Mr Ching might not have expressed his views in a way as an expert in a “traditional” survey report would normally do (if there is such a thing as a “traditional” survey report at all), it is not correct in my judgment to say that he has failed to deal with the central issue of adverse / factual possession in his report as alleged by the plaintiff. 

48.  Third, even if Mr Ching has not dealt the issue of adverse possession in his 2011 report as claimed by the plaintiff (which I do not agree), then, in my view, he must have dealt with that issue in the Experts’ Joint Statement.  The Experts’ Joint Statement was filed pursuant to the terms of the Consent Order agreed by the parties back in January 2013.  The Experts’ Joint Statement set out in table form of what have been agreed or disagreed by the experts in their main reports.  As Ms Chan (the defendant’s expert) had already dealt with the issue of factual/adverse possession in a more comprehensive manner in her report, what Mr Ching needed to do was to respond to each and every single paragraph of her report in the Experts’ Joint Statement.  This is exactly what Mr Ching did.  Thus, there is no question of him not having to deal with the issue of adverse possession head-on in the Experts’ Joint Statement.  

49.  Perhaps it is apt for me to point out at this juncture that, in a case dealing with adverse possession, in most instances, the role of a surveying expert is only limited to assist the court to define the boundaries of the land in dispute and in comparing the usage of the land over the years during the disputed period of time by looking at evidence like lot index plans, survey sheets, aerial photos and other documentary evidence.  The ultimate question of whether the person claiming adverse possession has been in occupation is a factual one and usually has to be established by the claimant in calling factual witnesses.     

50.  In the aforesaid circumstances, I cannot agree with the plaintiff’s submissions that Mr Ching has failed to address the central issue of adverse possession in his report and the Experts’ Joint Statement. 

(2)     Was the defendant expert shopping?

51.  While I would not go as far as saying that the plaintiff had deliberately tried to “expert shopping” in this case, I consider the way the plaintiff went round to try to change his expert has been most peculiar and unsatisfactory.  It has left a lot of room to be desired for.

52.  As mentioned, it was only after newly assigned solicitors came on board in this case that they saw a need for an update report from the plaintiff’s own expert in addition to Mr Ching’s Report and the Experts’ Joint Statement.  In the letter to Mr Ching, they requested Mr Ching to have a meeting with the plaintiff’s counsel “for the purpose of the sharing of your expert opinion with our counsel and team members, and above all, primarily the onward preparation of an all-round update and supplemental report, further to the current report prepared by (the plaintiff’s expert)” [emphasis added]: (see KYL’s letter dated 17 June 2013).       

53.  Thus, before the plaintiff’s legal team have even met Mr Ching in conference, they had already decided that an “update and supplemental” expert report would be needed from him.  In my judgment, had the plaintiff’s solicitors and counsel studied Mr Ching’s Report and the Experts’ Joint Statement more carefully, they would have been able to find all the essential opinions that require to be adduced from a surveyor expert in an adverse possession case are contained in those 2 documents.  If, under those circumstances, they decided to ask the expert to prepare an update report without the leave of the court or agreement with the other side, they would be doing so at their own risk.

54.  Exactly what happened during the conference on 27 June 2013 is not clear.  According to the plaintiff’s solicitors, Mr Ching agreed to provide a further expert report giving his expert opinion on the possession issue at the end of that meeting.  This seems to have been confirmed by the letter written by KYL to Mr Ching dated 27 June 2013. However, on the very next day ie on 28 June 2013, Mr Ching wrote to KYL and stated that, due to their “workloads on hand”, he would not be able to provide further assistance in the case.  

55.  I suspect that the alleged “workloads on hand” was only used by Mr Ching as an excuse for not getting further involved in the case.  The true reasons of why he took such a step are best known to him.  Perhaps something had been said to him during the meeting which has caused him to act in such a way.  Perhaps he has second thought on providing a further expert report after the meeting.  I do not wish to speculate into what are the true reasons behind his decision.  It is not necessary for me to do so.  However, what I find to be astonishing is that, instead of trying to find out what are the true reasons behind his decision and try to convince him to change his mind, the plaintiff’s legal team saw fit to immediately arrange a conference with another land surveyor ie Mr Ma with a view to instruct him as a substitute expert to prepare a report on the Possession Issue.  That meeting with the “new” expert was held on 2 July 2013.  Mr Ma, unsurprisingly perhaps, reinforced the plaintiff legal team’s belief that Mr Ching’s Report had failed to address the Possession Issue and agreed to prepare an expert report on the Possession Issue if leave to do so is granted by the court.

56.  In my judgment, such approach to tackle an existing expert’s un-cooperative attitude is far from ideal.  What the plaintiff had done was trying to secure the service of a substitute expert opinion first (namely from Mr Ma in this case) and then present the court with a fait accompli. In my view, such practice is wrong and should not be encouraged at all.  What the plaintiff’s solicitors should have done in my view is that once they find out there is a possibility that a further expert report may be necessary, they should apply to court by summons for further direction.  Instead of meeting with the existing expert or a new proposed substitute expert with a view to prepare an update report (without the leave of the court), they should ask the court to give them leave to do so first.  Otherwise, they run the risk of not able to recover the costs of preparing such further report and/or meeting with the new or existing expert at all.  Worse still, they may find themselves in a situation like the plaintiff’s legal team has found themselves in at the moment. 

(3)     Whether real and obvious prejudice has been caused to the defendant

57.  I agree with Mr Li’s submission that prejudice will be caused to the defendant if the plaintiff is allowed to change his expert at this stage.  The prejudice is obvious as the plaintiff’s proposed substitute expert will be having Mr Ching’s Report, Mr Chan’s Report and the Experts’ Joint Statement when preparing the new report.  This will defeat the whole purpose of having the protocol of how the expert reports should be prepared and disclosed/exchanged under the Consent Order in the first place.  This is like allowing the plaintiff to have a second bite at the cherry when, to a large extent, this situation was created by the way the plaintiff’s legal team had handled the matter. 

58.  In addition, to allow the plaintiff to substitute a new expert now would inevitably cause delay to the trial of the matter.  I was told that this case is ready to be set down for trial at the next CMC scheduled on 16 January 2014.  CMC date is regarded as a “milestone date” under the rules of the CJR.  This action was commenced on 24 November 2011 and Mr Ching’s Report was dated back in January 2011.  In my view, there is no good reason why the action should be further delayed.  Any further delay would only be prejudicial to the defendant in the circumstances. 

(4) Is adjudicating on the real issues and disputes between the parties still possible without appointing a new expert?  

59.  In my opinion, it is still possible for the court to determine the real issues and dispute between the parties in accordance with their substantive rights without appointing a new expert.  As mentioned, Mr Ching has already expressed very clearly in his letter dated 23 July 2013 to the plaintiff’s solicitors that he appreciates that his paramount duty is to the court and he has an overriding duty to assist the court impartially.  He has also agreed that he will attend court to give evidence at trial based on his report and the Experts’ Joint Statement.  Further, the plaintiff’s solicitors and counsel also managed to produce a short statement pursuant to the 11 July Order without any input from Mr Ching.  Hence, there is no need for Mr Ching to prepare the short statement anymore.  In any event, the master’s 11 July Order was put in a way that such short statement should be prepared “where appropriate” only.  Thus, the parties were not under a strict obligation to prepare the short statement, least to say that such short statement must be prepared by the expert.         

60.  While I can see some inconvenience to the plaintiff’s legal team now that his own expert Mr Ching refuses to co-operate with them, for example, they may not have a pre-trial conference with the expert or able to clarify matters with him prior to trial.  However, it is not equal to say that a just resolution of the disputes or real issues in this case is not possible.  Since Mr Ching is prepared to give evidence in his capacity as expert at the trial of this action (based on what he has already stated in his report and the Experts’ Joint Statement), I do not see why a new substitute expert is necessary.  As to the contents of the short statements prepared by the plaintiff’s counsel and the defendant’s expert, so long as Mr Ching has sufficient notice that he will be asked questions on those matters, I cannot see any real prejudice will be caused to the plaintiff.

61.  In submission, Mr Yim has referred me to the following passage in Chimbusco Pan Nation Petro-Chemical Co Ltd v The Owners and/or Demise Charterers of The Ship or Vessel ‘Decurion’, unrep., CACV 198/2011 & CACV 214/2011, 31 Jan 2012, where Cheung JA stated (at p 5 of judgment):-

“11. …

(1) It is clear that the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate: see Nantong Angang Garments Co Ltd v Hellmann International Forwarders Ltd, CACV 64/2005. There are two conflicting principles at play. First, a party being required to observe the procedural rules, the default of which may result in judgment being entered against it. Second, a party should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to the other party which cannot be compensated by costs. These two principles are not absolute. A rigid application of the first principle may lead to dismissal of actions without consideration of whether the defendant has been prejudiced by the default. But, the Court has treated the existence of such prejudice to be crucial and often decisive. Likewise a rigid application of the second principle without exception may enable a wealthy litigant to flout the rules. The resolution to these two conflicting principles is to consider all the circumstances of the case and not confine the decision to the application of a universally applicable rule of thumb: see Costellow v Somerset Country Council [1993] 1 WLR 256, per Sir Thomas Bingham M. R. at 263.

(2)  I do not consider this approach has been drastically changed by the introduction of the Civil Justice Reform in Hong Kong since 2 April 2009.  An expeditious disposal of a case has to be considered together with the equally salutary objective of ensuring fairness between the parties…. [emphases added]”

62.  While I entirely agree with the observations made by the learned judge in the above case, I do not consider that the refusal of allowing a substitute expert to take the place of Mr Ching will create any injustice to the plaintiff in our case.  There may be inconvenience of having an un-cooperative expert but this is not the same as saying that a fair adjudication of the real disputes and issues between the parties is no longer possible.  In short, the refusal of allowing a new expert in this case will not in my view deprive the plaintiff a just resolution of the matter.   

Whether the application should be made under Order 38 rules 36 & 44 and Order 32 rule 8 of the RDC?

63.  One further thing I would like to mention before leaving the matter. 

64.  In the 31 July Summons, the plaintiff invokes Order 38 rules 36 & 44 and Order 32 rule 8 of the RDC to vary instead of appealing against the 11 July Order made by the master.

65.  A party is entitled to, “on sufficient cause being shown”, makes an application to revoke or vary an interlocutory direction and order made: see Order 32, rule 8 of RDC.  Order 38, r 44 provides the same power to the court to vary any direction made in the context of expert evidence.     

66.  The test in each case is whether “sufficient cause” has been shown to vary the Order.  The test on what constitutes to “sufficient cause” has been stated by Chu J (as she then was) in Beacons College Ltd v Yiu Man Hau Alfred & Others (2002) HCA 4273 of 2001 as follows:-

“11. In my judgment, it is not unheard of for interlocutory applications to be renewed: see, for example, Order 24, rule 17 Rules of High Court and Order 32, rule 8 Rules of District Court. Ultimately, it is a matter of judicial discretion. Whether the applications are identical in terms of the statutory provisions relied upon or the relief sought is not definitive of the matter. What is important is whether the substance of the applications or the issues involved are essentially the same. If they are, then the subsequent application should not be entertained, unless:

(1) there is material change of circumstances; or

(2) the grounds or evidence relied upon for the subsequent application are matters that could not reasonably be expected to be adduced at the earlier application: Chanel Ltd v Woolworth & Co Ltd [1981] 1 WLR 485, 492H-493A and Habib Bank AG Zurich v. Mindi Investments Ltd 131 SJ 1455, at p. 5 of the transcript.”

67.  I agree with the defendant’s submissions that what the plaintiff is effectively seeking to do is try to vary the terms agreed by the parties under the Consent Order.  In my view, the plaintiff is not entitled to do so under the disguise of a variation of the 11 July Order.  If the plaintiff was not satisfied with the 11 July Order, the proper course for him to take is to appeal against the master’s decision instead of seeking to vary the order. 

68.  In my opinion, based on the factual circumstances and the reasons stated under sub-issues discussed above, there was simply no material change of circumstances between the 3 July Summons and the 31 July Summons which would justify the plaintiff in making an application to vary the 11 July Order instead of appealing against it.                   

CONCLUSION

69.  In the aforesaid circumstances, I am of the view that the master was absolutely right in dismissing the 31 July Summons. 

70.  Therefore, the plaintiff’s appeal is hereby dismissed with costs in favour of the defendant, such costs to be taxed if not agreed with certificate for counsel.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

71.  Lastly, I would like to thank counsel on both sides for their very helpful assistance.

Mr Valentine Yim, instructed by KY Lo & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr CY Li, SC, instructed by Sit, Fung, Kwong & Shum, for the defendant