MA CHEE WOON v. CHENG ZHEN SHU AND ANOTHER

HCA 1870/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1870 OF 2013

_________________________

_________________________

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D E C I S I O N

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THE APPLICATION

1.  The plaintiff applies by way of Summons dated 18 March 2015 to seek leave to amend his earlier Summons issued on 10th October 2014 as per the draft attached thereto.  The draft Amended Summons sets out the plaintiff’s application for an order, inter alia, that:

(1) Leave be granted to the plaintiff and the 1st and 2nd defendants to adduce expert evidence by way of a land surveyor report in respect of the state and conditions from 1980 to 2013 and on the current state and conditions of the subject Five Lots of Land in this action, viz,:

(a) Remaining Portion of Peng Chau Lot No.378 (“Lot 378 RP”);

(b) Remaining Portion of Peng Chau Lot No.380 (“Lot 380 RP”);

(c) Section A of Peng Chau Lot No.378 (“Lot 378 SA”);

(d) Peng Chau Lot No.379 (“Lot 379”); and

(e) Section A of Peng Chau Lot No.380 (“Lot 380 SA”)

(“collectively, the Five Lots of Land”).

(2) The plaintiff’s expert shall be Mr. Ng Jor Choi (“Mr. Ng”) of TH & Associates Limited, a land surveyor.  The 1st and 2nd Defendants will nominate their land surveyor expert within 14 days from the date of the Order to be made herein;

(3) The parties shall lodge and exchange their respective land surveyor reports within 56 days from the date of the Order to be made herein;

2.  The defendants do not object to the expert directions sought on the state and conditions from 1980 to 2013 of the Five Lots of Land, but object to the expert direction as to the current state and conditions of the Five Lots of Land.  The defendants claim that as this action arose in 2013, the current state and conditions of the Five Lots of Land are irrelevant to the subject matter in dispute herein.

3.  In the premises, the only issue in dispute is whether expert evidence should be adduced with regards to “the current state and condition of the Five Lots of Land”.

4.  The parties are legally represented.[1]

THE FACTUAL BACKGROUND

5.  The brief factual background of this matter is that the plaintiff claims adverse possession of the Five Lots of Land in Peng Chau, of which the 1^st defendant is the registered owner of two lots and the 2^nd defendant the registered owner of the remaining three lots.  The ground for the adverse possession is that the plaintiff had exclusive control and possession of the Five Lots of Land since 1983 until about 2013.[2]

6.  In about May 2013, the defendants had sent some workers to enter the Five Lots of Land.  They moved two backhoes inside to wrongfully cause destruction to the Five Lots of Land.  In or about August 2013, it was found the Five Lots of Land was locked up and since then, the plaintiff had been unable to gain entry to the Five Lots of Land. In the premises, the plaintiff claims that he had been wrongfully evicted.  He asks the Court to make a declaration of his possessory title over the Five Lots of Land.[3]

7.  The defendants dispute the plaintiff’s claim.  They pleaded in the Defence and Counterclaim that they bought the Five Lots of Land in 1991 for development together with other adjoining pieces of land.[4] They dispute that the plaintiff was ever in exclusive possession of the Five Lots of Land as they had securely fenced them to prevent trespasser from entering and there is a main gate which is locked.  However, they agreed that in or about 1995, upon the plaintiff’s request, they allowed the plaintiff “to place some scrap metals in a small area of the open spaces in Lot 380RP and the plaintiff was required to seek permission and to borrow a key (“the Key”) from the 1^st and 2^nd defendants and/or their representative(s) to open the lock to the Main Gate in order to gain entry to Lot 380RP…”[5]  On this basis, the defendants pleaded that the plaintiff was a mere licensee of the “small area of the open spaces in Lot 380RP”  They planned to develop the Five Lots of Land in 1997/1998 and they “requested the plaintiff to remove the tools and scrap metals from the Five Lots of Land to facilitate such development…”[6]  The plaintiff did not remove the tools and the scrap metals and the defendants took over the Five Lots of Land and locked the main gate with a lock.  Hence this litigation.

THE ISSUES IN DISPUTE

8.  According to the plaintiff’s submissions, the issues in dispute are:

(1) Whether the plaintiff has possessed the Five Lots of Land since 1983.

(2) The historical land use of the Five Lots of Land from early 1980s to 2014, including whether there were structures, iron wires and fences, personal chattels, or plants, flowers and fruits on the Five Lots of Land continuously since early 1980s as claimed by the plaintiff.

(3) Damages to be awarded to the plaintiff, if any, for trespass, wrongful acts of unlawful nuisance and interference of the Five Lots of Land by the 1st and/or 2nd defendants.[7]

9.  According to the defendants, the issues in dispute are:

(1) Whether the plaintiff had occupied the Five Lots of Land as a trespasser with exclusive possession/control during the relevant period (i.e. 1983 to mid-2013) or whether he was simply a licensee of the defendants.

(2) The plaintiff commenced the present action in October 2013.  It is the plaintiff case that he started to occupy the Five Lots of Land in about 1983 and continued occupying the land until the defendants prevented him from entering in or about mid-2013.  In other words, the plaintiff’s claim is based on the 30 odd years of adverse possession of the Five Lots of Land from 1983 to 2013 which he claimed to have satisfied the requirement of 20 years under the old sections 7 and 17 of the Limitation Ordinance Cap 347.

(3) Further, it was never in dispute that the defendants took possession of the Five Lots of Land (and the Area) in or about April 2013 by refusing the plaintiff from entering.[8]

THE RELEVANT LEGAL PRINCIPLES

10.  The relevant legal principles for the resolution of the disputes between the parties are:

(1) Under Order 38 rule 36 of RHC, unless the parties agree, no expert evidence may be adduced at the trial without leave of court.  See Fung Chun Man v Hospital Authority (unreported, HCPI 1113/2006 by Bharwaney J on 24 June 2011);

(2) The court is concerned with proper directions for expert evidence in order not to cause delay and waste of expenses.  Faith Bright Development Limited v Ng Kwok Kuen [2010] 5 HKLRD 425 at 430-431;

(3) Where the proposed expert evidence is plainly inadmissible or irrelevant, the court will refuse admission of such evidence.  If the court cannot form a clear view on the relevance or the evidence is clearly relevant, it should grant leave for the evidence to be adduced at the trial.  The evidence is relevant if it is helpful to the court in arriving at its decision on one or more of the issues to be resolved.  Wong Hoi Fung v American International Assurance Company (Bermuda) Limited & Shrila Chan [2002] 3 HKLRD 507;

(4) When there is a dispute over whether expert evidence should be adduced at trial, the court has to examine the pleadings to determine whether the proposed expert evidence is required in the pleaded case.  Yeung Ga Wai v Lau Ming Shum (unreported, HCA798/2004, Reg. Lung 19 July 2012; the burden of establishing relevance is on the applicant, at §7 of Majorette Hong Kong Ltd v Fullmore Corporation Ltd (unreported, HCA1583/2008, Reg. Lung 23 June 2010);

(5) Expert evidence must be confined to the live issues of dispute between the parties, which must be sought from the pleadings China Gold Finance Limited v CIL Holdings Limited & Ors (unreported, HCA2900/2001, 25 September 2012, at para. 17-18).  See also §21 of the Court of Final Appeal’s Decision in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 per the CJ.)

DISCUSSION

11.  There seems to be no dispute that the real issue in dispute is whether the plaintiff had adversely possessed the Five Lots of Land since 1983; that the plaintiff was evicted by the defendants from the Five Lots of Land in mid-2013 and that if the plaintiff were legally entitled to the Five Lots of Land, damages for the defendants’ eviction of him therefrom.

12.  As the defendants have no objection to expert evidence being given on the conditions and state of the Five Lots of Land as from 1983 to 2013, expert evidence should be allowed for this period.  This will support the plaintiff’s argument that he was the trespasser during this period of time before his eviction by the defendants.

13.  The crucial issue in dispute is “the current state and condition of the Five Lots of Land”, which the plaintiff submits are important “to help to establish whether there was such use as claimed by the plaintiff, by comparing the current state and condition of the Five Lots of Land with historical photos and survey sheets.”[9]

14.  The plaintiff also submits that “By comparing the current state and condition, including current structures, iron wires and fences, personal chattels stored therein and plants, flower and fruits with the historical photos and survey sheets, the experts are able to assist the Court by giving opinions on the historical land use matching with the current state of the land as inspected in their visits to the Five Lots of Land.  The experts are in the proper position to match and identify the current structures, iron wires and fences, personal chattels stored therein and plants, flower and fruits, and to determine whether they are the same as the old ones as depicted in the photos and survey sheets, to corroborate the plaintiff’s evidence.  The experts’ opinion will in turn assist the Court to determine whether there has been any physical use and possession since 1983 and the nature thereof.”[10]

15.  However, the plaintiff has pleaded his right as from 1983 to present.  It is admitted by the defendants that they had evicted him in 2013.  If the plaintiff can prove adverse possession as from 1983 to 2013, he should be entitled to claim damages for being unlawfully evicted by the defendants.  The plaintiff cannot explain why the conditions and state of the Five Lots of Land after 2013 are relevant for the trial, the burden being on the plaintiff.  See Majorette Hong Kong Ltd.

16.  The plaintiff refers to my Decision in Pak Ko Batteries Factory Limited & Ors v New Leader Battery Industry Limited (unreported, HCA 1139/2007, 14 January 2014) at §10.  In this case, the plaintiff and the defendant agreed that there should be expert evidence on the legal effects of the decisions made by the courts and the administrative office in PRC in relation to a patent registration.  The dispute between the parties was over whether the defendant had libeled against the plaintiff when it published a statement saying that the plaintiff had infringed its patent, which was invalidated by the court but subsequently revived by the administrative office.  The Court had to choose which set of directions on expert evidence should be adopted.  At paragraph 11 of the Decision, I referred to the case of China Gold Finance Limited vCIL Holdings Limited & Ors (HCA 2900/2001) and stressed on the significance of real issue in dispute.  So, the question boils down to what the real issue in dispute should be.

17.  In determining the parameter of the disputes as this case, the real issue in dispute lies upon what proof the plaintiff he is up to so that he can succeed in his claims.  I put this question to Miss Poon.  If the plaintiff can prove, on the balance of probabilities, he was in adverse possession of the Five Lots of Land as from 1983 until 2013 when he was evicted by the defendants, will he succeed in his claims?  The answer, as she admits, must be yes.

18.  The plaintiff then raises the issue that by comparing the present state of the Five Lots of Land, it will throw light on the area of the possession and support the plaintiff’s case in terms of credibility of his evidence.  But this cannot explain why the Court will require expert evidence after 2013 by which time the defendants had already evicted the plaintiff from the land.

19.  I agree with the defendants that the current state of the Five Lots of Land bears no relevance at trial.  Expert evidence on this area will not assist the court to come to a fair resolution of the disputes between the parties.  It would therefore waste costs and time to adduce such expert evidence at trial.

20.  It is only when the court finds that the plaintiff has reasons to adduce the proposed expert evidence, which is disputed by the defendants, saying that they do not want to rely upon the expert evidence as proposed by the plaintiff, then the Court would consider giving leave to the plaintiff to adduce the expert evidence, subject to the defendants’ right to respond to it. If the plaintiff cannot even show that the proposed expert evidence is relevant to the plaintiff’s case, the court should not make an order to allow the plaintiff to adduce such expert evidence because to do so would cause the defendants to spend time and costs on the expert evidence unnecessarily and would also waste the court’s time at trial.

21.  The plaintiff’s summons is therefore dismissed.  As the defendants have no objection to expert evidence on the areas of the occupation and the change of the use of the Five Lots of Land as from 1980 to 2013, directions should be given to give leave to the plaintiff to adduce expert evidence on these areas of disputed issues.  This will be dealt with in the Case Management Conference after determination of the plaintiff’s summons herein.

COSTS AND ORDER

22.  As to the costs of this application, I bear in mind that the plaintiff is legally aided and that immediate payment of costs should not be ordered.  I shall simply make the assessment of the costs under O.62, r.9A on the quantum, which is assessed at $100,000 (including counsel’s certificate) to be paid by the plaintiff to the defendants, such costs should be paid in any event.  The plaintiff’s own costs shall be taxed in according with Legal Aid Regulations.

23.  The Court shall now make an order in terms as follows:

(1) The plaintiff’s summons be dismissed;

(2) Costs are as per paragraph 22 above.

CASE MANAGEMENT CONFERENCE

24.  The Court shall now make the following directions:

(1) Leave to the plaintiff to set down within 42 days commencing on 21 July 2015 for a 10-day trial before a bilingual judge alone in the fixture list.  There be a pre-trial review before the trial judge for 30 minutes on a date 12 weeks before trial.  Parties shall raise the issues of related actions, recusal of the trial judge, if any, and confirm the length of the trial by counsel in charge at the pre-trial review.  At the setting down the plaintiff shall produce a letter to the Listing Clerk confirming that there are no outstanding interlocutory applications.  Upon setting down, all interlocutory applications shall be listed to be heard by the Registrar prior to the Pre-trial Review;

(2) By consent, leave be given to the parties to adduce expert evidence by way of a land surveyor report in respect of the state and conditions from 1980 to 2013 of the Five Lots of Land; the plaintiff’s expert being Mr. Ng Jor Choi of T. H. Associates Ltd. and the defendants shall give the expert’s name to  the plaintiff’s solicitors within 28 days from the date hereof;

(3) The parties shall exchange their expert reports within 56 days from the date hereof;

(4) The experts shall hold a without prejudice meeting within 28 days thereafter to prepare a joint statement, setting out the issues in common and the issues in dispute, with the reasons for their views;

(5) Liberty to apply;

(6) Costs of this Case Management Conference be in the cause (30 minutes).  The plaintiff’s costs be taxed in accordance with the Legal Aid Regulations.

HCA 1870/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1870 OF 2013

_________________________

_________________________

_____________

D E C I S I O N

_____________

THE APPLICATION

1.  The defendants apply for leave to amend their Defence and Counterclaim by way of summons dated 17 September 2014.  The draft Amended Defence and Amended Counterclaim is attached to the summons.  The application will be dealt with without affidavit evidence.

2.  The plaintiff opposes this application.  The parties are legally represented.[1]

3.  The plaintiff opposes the application, as submitted by counsel, mainly against the introduction of the new term and content, “Area” in almost all the proposed amendments and on the ground of retraction of admission.[2]

4.  In particular, the plaintiff complains that the word “Area” in the amended version was not defined in the pleadings and is therefore vague.  As to retraction of admission, the plaintiff alleges that the defendants had in the original pleadings admitted that the plaintiff had trespassed the “Five Lots of Land”, which represent the whole piece of land in dispute whereas the amended version has limited the trespassed area to the “Area” as pleaded in the amended version.

5.  The defendants dispute the plaintiff’s allegations.

THE BRIEF FACTS OF THE CASE

6.  The brief factual background of this matter is that the plaintiff claims adverse possession of the “Five Lots of Land” in Peng Chau, of which the 1^st defendant is the registered owner of two lots and the 2^nd defendant the registered owner of the remaining three lots. The ground for the adverse possession is that the plaintiff had exclusive control and possession of the Five Lots of Land since 1983 until about 2013.[3]  He asks the Court to make a declaration of his possessory title over the Five Lots of Land.[4]

7.  The defendants dispute the plaintiff’s claim. They pleaded in the Defence and Counterclaim that they bought the Five Lots of Land in 1991 for development together with other adjoining pieces of land.[5]  They dispute that the plaintiff was ever in exclusive possession of the Five Lots of Land as they had securely fenced them to prevent trespasser from entering and there is a main gate which is locked.  However, they agreed that in or about 1995, upon the plaintiff’s request, they allowed the plaintiff “to place some scrap metals in a small area of the open spaces in Lot 380RP and the plaintiff was required to seek permission and to borrow a key (“the Key”) from the 1^st and 2^nd Defendants and/or their representative(s) to open the lock to the Main Gate in order to gain entry to Lot 380RP…”[6]  On this basis, the defendants pleaded that the plaintiff was a mere licensee of the “small area of the open spaces in Lot 380RP”  They planned to develop the Five Lots of Land in 1997/1998 and they “requested the plaintiff to remove the tools and scrap metals from the Five Lots of Land to facilitate such development…”[7]  The plaintiff did not remove the tools and the scrap metals and the defendants took over the Five Lots of Land and locked the main gate with a lock.  Hence this litigation.

8.  I have to summarize the facts above from the pleadings myself as I am unable to derive assistance from the written submissions of both counsel.  Given the heavy workload of the court, especially the masters and the short time for reading the materials, I consider that invariably in almost every interlocutory application, counsel should, in their written submissions, agree the facts for their disputes in the application.  If they are unable to agree the facts between themselves, they should set out their own brief facts, identifying the issues of dispute, in support of his own argument.  By attempt of agreeing the brief facts relevant to the issues in dispute, the parties may focus their attention on the real issues of dispute.  From the discussion below, it will demonstrate the importance of such basic facts.

THE RELEVANT LEGAL PRINCIPLES

9.  It is important to bear in mind that litigation should not be treated as a game and Rules do not exist for the sake of compliance with them as an end in themselves; they exist for the purpose of ensuring that disputes before the courts are justly resolved.  See paragraph 34 of The Liquidator ofWing Fai Construction Co Ltd (in compulsory liquidation) v Yip Kwong Robert and others (2011) 14 HKCFAR 935 by the CJ.

10.  “It is well established that, generally speaking, all such amendments ought to be made ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’ (per Jenkins L.J. in G. L. Baker Ltd v Medway Building and Supplies Ltd [1958] 1 WLR 1216 at 1231);…  Leave is readily granted to amend before the trial unless it can be demonstrated that the new claim based on the proposed amendment is bound to fail (see Hancock Shipping Co. Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025). …” Natamon Protpakorn v Citibank N.A. C.A. [2009] 1 HKLRD 455.

11.  Absent any real prejudice, the case must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication.  See paragraph 22 of VSC Building Products Co Ltd v Kono Insurance Ltd (unreported, HCA947/2005, 9 September 2009 per A. Cheung J. (as he then was))

12.  Those are the general legal principles applicable to Order 20 RHC and this application.

GROUND 1 – LACK OF PARTICULARS

The legal principles

13.  Mr. Shum, counsel for the plaintiff relies upon the authority of the Court of Appeal in Perak Pioneer Ltd v Carrian Holdings Ltd (unrep., CACV 59/1985, 13 June 1985, Fuad JA at page 5) that the Court will not allow amendments lacking particulars and which would cause embarrassment.  He complains that in the amended version, the defendants introduce a new term “the Area”, which is not defined in the pleading.  He further submits thatʻ “The Area” is pleaded in the proposed amendments as “some ruins situated in Lot 380RP” (§13 of the proposed Amended D&CC).  However, “ruins” is not defined anywhere in the proposed Amended D&CC.’[8]  He takes the view that this term must be defined in the pleadings, referring to the authorities of Kwok Chin Wing v 21 Holdings Limited (2013) 16 HKCFAR 663 at 672 §21, which says that it is the pleadings that define the issues of dispute.

The real issue

14.  There is no question about the legal principles of the Court of Appeal and the Court of Final Appeal as stated above.  The question here is: Is “the Area” the real issue of disputes between the parties at trial?

15.  It is apparent from the summary of the facts above that “the Area” is not the real issue of dispute at trial.  The plaintiff has clearly pleaded his case that at the material time, he was the trespasser of the whole of the Five Lots of Land whereas the defendants say that he was not because they only gave him a licence for occupying a limited area of the Five Lots of Land, which they now define as “the Area”.

16.  Mr. Shum argues that “some ruins situated in Lot 380RP” is also not defined in the pleadings.  This term has been pleaded in paragraph 15 of the original Defence and Counterclaim, to which the plaintiff has replied. See paragraph 8 of the Reply [46][9]. This demonstrates that the plaintiff was able to plead to the facts in dispute without a definition for those words.  To argue over these words again in this application amounts to a play of game as criticized by the Court of Final Appeal in Wing Fai Construction, which was deprecated by the Court of Final Appeal.

17.  I have no difficulty in rejecting Mr. Shum’s argument on this point.

GROUND 2 – RESILMENT OF ADMISSION

18.  The other point taken by Mr. Shum is that the defendants are withdrawing their admission without explanation.  He relies upon the authority of the HKCP 2015 at 27/3/9.  Order 27 of RHC provides for admissions by a party by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party.  O.27 r.1.  The other party to whom the admission has been made can apply to court for judgment for the admissions made. R.3.

19.  Mr. Shum submits that the defendants attempt to withdraw their admissions by the proposed amendments.  His argument runs like this.  The defendants counterclaim for the Five Lots of Land as pleaded in §41 of the Defence and Counterclaim, and in §24 they also pleaded that the 2^nd defendant had sent a letter dated 9 September 1998 demanding the plaintiff to remove all the tools and materials “that he placed inside the Five Lots of Land and reinstate the lands to their original state…”  Mr. Shum submits that it is not the case that the defendants are “not admitting to the fact that the Plaintiff was a trespasser of the Five Lots of Land”[10]

20.  To read the pleadings the way as proposed by Mr. Shum has trespassed upon the general principle of interpretation of a document out of context as criticized by the Court of Final Appeal in Fully Profit (Asia) Ltd v The Secretary for Justice (2013) 16 HKCFAR 351 where at §15, the CJ said: “The surer guide to interpretation is context.  Here, I would just add that in the area of statutory and constitutional interpretation, it is context that is key; context is the starting point (together with purpose)…”

21.  Although it is true that in those paragraphs of the Defence and Counterclaim, the defendants had not specified the part of the Five Lots of the Land but referring to the Five Lots of Land, it is sufficiently clear that the defendants have been arguing with the plaintiff that the plaintiff was only given possession of the limited area in one of the Five Lots of the Land for storing scrap metals.[11]  There are other paragraphs in the pleadings where the defendants argued that there was evidence to show that the plaintiff was only given a licence to use the limited area of land within the Five Lots of Land.[12]  Mr. Shum’s argument does not have any merit or substance.

22.  The plaintiff’s arguments fail.

23.  The general principles for amendment as cited in the authorities apply.  The defendants’ application is allowed.

COSTS AND ORDER

24.  As to the costs of this application, including the costs for today’s hearing, the costs for and occasioned by the amendments be to the plaintiff to be assessed if not agreed, in any event and the costs of this application, including the costs reserved and the costs for the hearing today (with counsel’s certificate) be to the defendants. Mr. Shum has asked this court to defer assessment of the costs as the costs of amendment are given to the plaintiff.  I decline to accept this proposal because the costs of the amendments have to be deferred to the end of the proceedings as it is impossible to assess them at this stage whereas the costs for this interlocutory argument can be assessed today and it has been the usual practice after the CJR that interlocutory costs should be assessed after the hearing.  The costs of the application are to be assessed under Order 62 r.9A at $80,000.  Since the plaintiff is legally aided, the costs shall be paid in any event.

25.  The Court will now make an order in terms as follows:

a. Leave be granted to the defendants to amend their Defence and Counterclaim as per the draft attached to the summons herein;

b. Service of the Amended Defence and Counterclaim be dispensed with;

c. The plaintiff be at liberty to amend his Reply consequential upon the defendants’ amendments herein and file and serve the same within 14 days from the date hereof;

d. Costs of and occasioned by the amendments to the Defence and Counterclaim be to the plaintiff to be taxed if not agreed in any event;

e. Costs of this application, including the costs reserved and for today’s hearing (with a counsel’s certificate) be to the defendants as per paragraph 24 supra;

f. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

26.  I shall now deal with the Case Management Summons matter. As agreed by the parties, it should be deferred to 21 April 2015 immediately after the hearing of the summons on expert evidence.

Mr. Erik Shum, instructed by Tsangs, assigned by DLA, for the plaintiff

Mr. Raymond Fong, instructed by Philip K.H. Wong, Kennedy Y.H. Wong & Co., for the 1^st and 2^nd defendants