CHUNG HON v. NG SAU (or SHAU) CHUN AND OTHERS

HCA 1195/2014

[2019] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1195 OF 2014

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D E C I S I O N

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1.  This is the plaintiff’s application for an order to substitute the estate of D8 for D8 and for the carrying on of the proceedings in the absence of a person representing D8.

2.  D1 to D3 had by a previous order been substituted by D4 to D9.  D4 to D7 and D9, have written to the court seeking to be excused from the attendance of this hearing.  According to their letter, their solicitors have no instructions to act for D8 or his personal representatives.  They take a neutral stance to the present application. 

3.  This is an adverse possession claim.  Regarding D8 and D9, they were interested in three pieces of land in respect of which the plaintiff claims a declaration as a squatter.

4.  D8 had passed away in January 2019.  D8 was a joint tenant to the three pieces of land in question.  The estate of D8 will have no interest in the subject matter for which the declaration is sought by the plaintiff.  However, there remains a question of costs incurred prior to the demise of D8. 

5.  At the PTR hearing on 30 January 2019, the parties have confirmed that they considered that the proceedings could proceed to trial as scheduled in May 2019. 

Legal provisions

6.  Order 15, rule 7(1) and (2) provide that:

“(1) Where a party to an action dies … but the cause of action survives, the action shall not abate by reason of the death …

(2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party ...”

7.  Order 15, rule 15, provides that:

“(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks just.”

8.  In the present case, there is an issue of costs between the plaintiff and D8 which has devolved upon the estate of D8 upon the death of D8.  The estate of D8 should be substituted in place of D8 as a party.

9.  After the PTR hearing, the plaintiff had written to D9, the only person who the plaintiff knew and believed to likely to consent to represent the estate of D8.  The plaintiff asked if D9 was willing to represent the estate of D8 and, if not, whether D9 might provide any information about any person who might be willing to take up such a role.  D9 has not replied.

10.  The plaintiff had done a probate search but could not find record of any probate or letters of administration granted or applied for in respect of the estate of D8.  The Official Solicitor has made clear that it would not represent the estate of D8.

11.  In this case, this court is content to make an order that the action be carried on without a person representing the estate of D8. 

12.  Insofar as the subject lands are concerned, D8 no longer has interest in those lands as his interest had passed as a matter of law to D9 upon his demise.

13.  The only outstanding issue is past costs incurred whilst D8 was alive.  The trial of the present case will be heard commencing 6 May 2019.  It is not clear when an administrator or executor of the estate of D8 will be appointed and whether he or she will be appointed before the trial commences.  If there is no order to continue, the proceedings will be delayed and yet for no substantial purpose.

14.  Prior to his decease, D8 stood to have the same interest as D9 in the subject matter in this action and they were represented by the same firm of solicitors. 

15.  There is no real likelihood that the absence of a person representing the estate of D8 at the trial will lead to real prejudice to the estate of D8.  I, therefore, exercise my discretion to make an order that:

(1)  The proceedings in this action be continued as between the plaintiff and the estate of Chung Tsz Shun as the 8th defendant;

(2)  This action shall proceed in the absence of a person representing the 8th defendant; and

(3)  Paragraphs 1 and 2 of this order and any judgment or order subsequent to today shall bind the 8th defendant to the same extent as he would have been bound had a personal representative of his been present as a party to the proceedings.

16.  Costs of this application shall be in the cause.

HCA 1195/2014

[2019] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1195 OF 2014

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D E C I S I O N

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1.  There are two applications by D4 to D9 before the court:

(1)  for a direction that the plaintiff do give evidence-in-chief viva voce;

(2)  to adduce a declaration made by one Mr Chung Wa-kwai who has passed away since making of the declaration.

Application for the plaintiff to give evidence-in-chief viva voce

2.  This is a case in adverse possession.  The plaintiff seeks a declaration that the titles of D4 to D9 to nine plots of land (“the subject land”) have been extinguished pursuant to Sections 7(2) and 17 of the Limitation Ordinance, Cap 347.

3.  It is the plaintiff’s case that no later than 1954 the plaintiff’s father and his family members, including the plaintiff, as licensees had entered into and possessed exclusively the subject land and other adjacent lands.  The plaintiff moved away from the subject land in about 1994 and the plaintiff’s father passed away in August 2002.

4.  The plaintiff alleges that since no later than 1960 he and/or his family has or have been continuously in exclusive use, occupation, possession and control of the subject land for a period in excess of 20 years prior to issue of the writ.

5.  D4-D9 deny the plaintiff’s claim.  D8 has since passed away but, because he has joint tenancy with D9, his interest has passed in law to D9.  The present application can go forth without the presence of D8.

6.  D4 to D7 counterclaim against the plaintiff for possession of the subject lands.

7.  The main issue at the trial would, of course, be whether or not the plaintiff has exercised sufficient degree of exclusive possession and control of the subject land, both in terms of possession and having the requisite intention to possess to the exclusion of the world at large.

8.  The defendants’ side have no witnesses except the declaration of Chung Wa-kwai. The plaintiff has only himself and his daughter.

9.  The defendants apply for an order that the plaintiff do give evidence in-chief viva voce.  The reason is that the credibility of the plaintiff is crucial in the present case.  The case turns on findings on factual disputes and so the witness should give evidence viva voce, particularly since the evidence in the plaintiff’s witness statement is self-serving.  In reliance on his proposition, Mr Fung for the defendants, referred to the cases of Yeung Kam Wing v Wong Kwan Wui, HCA 8786/1999, 22 December 2003 (unreported); Yeung Wai Fan v Honiton International Limited, HCA 1051/2010, 11 September 2015 (unreported).

10.  Having heard counsel’s submission, I am of the view that it is not necessary to give a direction of the kind sought by Mr Fung, counsel for the defendants.

11.  This is a writ action and disputes of facts are expected.  Of course, in an adverse possession scenario the occupant, in this case the plaintiff, will give evidence as to factual possession and intention to possess which is unknown to the defendants.

12.  I have looked at the witness statements of the plaintiff.  The statement was structured as follows.  His main witness statement runs for 23 pages.  Out of that, about 18 pages were to explain title ownership which is largely not disputed as being supported by Land Registry documents.  He also tried to explain photo by photo, what was depicted by the photographs.  Pages 116 to 119 of the bundle contained his main “positive” case.  Pages 119 to 120 was his “negative” case, ie, he was saying that this did not happen as asserted by the defendants.  Naturally, for this part of the case the burden of proof is on the defendants.  Page 120 refers to the positive case of someone from the defendants’ side, Chung Mui, but Chung Mui is not going to give evidence.

13.  When one looks at the structure of the plaintiff’s witness statement the real dispute of facts runs only for about four pages in his witness statements.  In my view, it is a waste of time to ask the plaintiff to go into the witness-box and give oral evidence on the photos one by one again.  In respect of pages 116 to 119, I do not see and I have not heard from Mr Fung how the right to cross-examine the witness, the plaintiff, cannot protect the defendants’ rights.  In respect of pages 119 onwards, which contains the negative case of denial of the defendants’ version, I do not see what advantage can be gained by the plaintiff denying orally in the witness-box rather than denying it in writing in his witness statement.

14.  Parties should remember that a witness statement, of course, will be self-serving in many respects, but that does not necessarily mean that the court will accept all the contents without query. 

15.  Having considered the submission and also the structure of the witness statement in the present case, I see no reason why, notwithstanding the issues of fact and that credibility of the plaintiff is important, the court should waste time in asking the plaintiff to go through his witness statement in an oral manner. 

16.  In the premises, I dismiss the defendants’ application.

Leave to adduce the declaration of Chung Wa-kwai

17.  This declaration of Chung Wa-kwai purports to support the positive case of the defendants that the plaintiff’s father once obtained a personal licence to do certain things on the subject land and that the licence was terminated.

18.  If this part of the positive case of the defendants is accepted by the court, there is a chance that the plaintiff will be unable to satisfy the court that he had been in adverse possession for 20 years before the writ was issued.  The only basis for adducing this declaration is that Mr Chung Wa-kwai had passed away after the declaration was made.

19.  The court has discretion to give leave to adduce hearsay evidence and also declarations of a deceased person.  I also remind myself that, looking at the declaration, it is in the nature of a witness statement.  In law, if a witness does not come to court to be cross-examined, the court has discretion to disallow a party from relying on that witness statement.  This has been always the normal rule in a civil litigation.

20.  In Yes Profit Investment Limited v Mainly Tone Company Limited, HCA 2656/2008, 29 April 2013 (unreported), Deputy High Court Judge Leung had this to say:

“8. To begin with, the statutory declaration was not a contemporaneous document. The plaintiff had the estate agent made the statutory declaration in January 2009 shortly after and obviously for the purpose of this action commenced in December 2008. Getting the estate agent to make a statutory declaration may be neutral. But as soon as it was contemplated that the estate agent’s evidence would be required at the trial, attempt to still rely on her statutory declaration as if it were documentary evidence became problematic.

9. O.38, r.1 of the RHC requires the evidence of witness as to fact to be proved by the examination of witness in court. This general rule is not to be circumvented easily. If whether evidence is admissible by way of affidavit at the trial rests upon the court’s discretion under O.38, r.2, a statutory declaration should in no way be different.

10. The question of whether the defendant should have the opportunity to cross examine the estate agent on effectively her statement as to fact prepared for this action stands to be considered differently from that of merely whether a contemporaneous document is admissible as hearsay evidence.  O.38, r.21 allows a party to seek leave to cross examine the maker of a statement which the other party intends rely on as hearsay evidence.”

21.  I have read the declaration of Mr Chung Wa-kwai.  It was dated 25 April 2014, ie, two months before the writ was issued.  The circumstances under which the declaration was made was unclear.  As in the case of Yes Profit, this declaration was not a contemporaneous document because it referred to events which happened in the 1970s and 1997. 

22.  The court, of course, still has a discretion to give leave to adduce documents of this kind and consider the weight to be attached to it at the trial, but before doing so I had regard to section 49 of the Evidence Ordinance, Cap 8.  This section refers to the weight to be attached to hearsay evidence in civil proceedings.  I shall run through the tests that the court will consider under section 49(2).

23.  With regard to subsection (2)(a), it was, of course, not reasonable and practicable to call Mr Chung Wa-kwai who had passed away to give evidence. This sub-rule is fulfilled.

24.  With regard to subsection (2)(b), I have already mentioned that this declaration was not a contemporaneous document.

25.  With regard to subsection (2)(c), the document did refer to hearsay in its paragraph 3, as admitted by Mr Fung.

26.  With regard to subsection (2)(d), there is no evidence before the court from the defendants’ side to deal with the question of whether any person involved had any motive to conceal or misrepresent matters.  It is important to note from the contents of the declaration that the matters which Mr Chung Wa-kwai referred to concerned evidence which, if accepted, would be beneficial to the defendants’ case and yet the defendants have not begun to show the Court how subsection (2)(d) can be satisfied.

27.  With regard to subsection (2)(e), I give the benefit of the doubt to the defendants as this declaration appeared to have been made before a firm of solicitors and so it did not appear to have been an edited account, but the defendants have not begun to show that this document was not made in collaboration with another or for a particular purpose. 

28.  Likewise, with regard to subsection (2)(f) to (g) the defendants have not begun to show how the declaration could fulfil these requirements.  The only thing, of course, was that there appeared to be no other evidence adduced by either party consistent or inconsistent with this declaration.

29.  When there are so many queries to a declaration which was not a contemporaneous document the weight that the court is likely to accord to it would be small.  The probative value of this document is not such that it would persuade the court to give leave for adducing it because the prejudicial effect to the plaintiff by not being able to cross-examine the maker is far too great in this case.

30.  In the premises, I exercise my discretion not to give leave to adduce this declaration.  So I dismiss the second application.

(Submissions on costs)

31.  45 minutes of this hearing be apportioned to the two applications by D4 to D9.  Costs be to the plaintiff to be borne by D4 to D9.

Costs of this PTR

32.  The rest of the costs of the hearing be in the cause with certificate for counsel, about 15 minutes of this hearing.