LIM POR YEN v. HIGHFIT DEVELOPMENT CO LTD AND ANOTHER

CACV19/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 19 OF 2004

(ON APPEAL FROM HCA NO. 1942 OF 2002)

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J U D G M E N T

Hon Rogers VP:

1.           This is a piece of what I would term ‘satellite’ litigation, to the extent that it really benefits no one and simply serves to lengthen the time it takes to bring a case to trial.

2.           The plaintiff’s case is based upon what is said to have been loans which were made either to a company or to the 2nd defendant.  The loans totalled over half a billion dollars and, together with interest, the claim now comes to well over a billion dollars.  It is said that the loans were made over a period between 1994 and 2001.  That is the start.

3.           The defences which came in from both the 1st and 2nd defendants are identical.  In essence, the 2nd defendant says that she was taken as the third wife of the plaintiff in 1956 and thereafter she lived with him until they separated in about 2002.  She says that in the 1990s she wanted to emigrate either to the United States or to Europe, but the plaintiff persuaded her to stay and instead gave her the money to invest in a large project in Shanghai.  There the case rests. 

4.           The plaintiff, having lived with the 2nd defendant and called her his wife from 1956 to 2002, takes grave exception to the fact that in the pleadings there is a reference by the 1st and 2nd defendants as follows, “The plaintiff and the 2nd defendant were married in or about 1956, the 2nd defendant being the plaintiff’s third wife.”  It is said that that is embarrassing, and so on and so forth, and should be struck out.  The Master struck it out, the judge below agreed with her. 

5.           The defendants have given further and better particulars of what they say is meant by that pleading.  In effect, they are saying that in March 1956 the plaintiff announced to his friends that he had taken the 2nd defendant as his third wife and that thereafter they had lived together and they had had two children together.  In 1968 they bought a property in Perkins Road and there they lived together until the plaintiff no longer lived there in March 2002.  It is said that they were recognised as husband and wife by all and sundry and, in effect, that either the 2nd defendant was a wife or she was a legitimately taken concubine.  The 2nd defendant has made an affirmation and in that she refers to expert opinion which she has obtained from an expert in Chinese customary law.  In that she said:

“My solicitors have already obtained an expert opinion on my behalf, which concludes that under Chinese law and custom I have marital rights and status.  As such, the issue of my marital status and rights are relevant to these proceedings.”

6.           The drift of the defence is quite clear; that whether or not the 2nd defendant was a wife as is known in strict law or whether she was a concubine, the plaintiff intended to give her the money as an outright gift and no doubt questions of concubinage are relevant.  The question of whether a husband should look after a concubine is a matter referred to in some of the cases, but is obviously a matter which needs to be finally determined and, in any event, the 2nd defendant says that the money was a gift.

7.           It seems to me that the situation is strictly this:  that the defences of the 1st and 2nd defendants should be amended along the lines of the particulars and the paragraph in the affirmation to which I have referred.  Mr Thomson, on behalf of the defendants, does not demur or object to making such an amendment.  Mr Beresford, who appears on behalf of the plaintiff, says that as a matter of pleading, he would not object to such an amendment, but he says that whether the 2nd defendant was a concubine is irrelevant.  As I have already indicated, I cannot see that it is necessarily irrelevant.  It may be relevant or it may not be the deciding factor in the case, or the judge may decide that it is a matter which cannot affect the case.  But at the stage that the case has reached, it seems to me that it is a legitimate matter to be brought up in the pleadings and may well be very relevant when it comes to the trial.

8.           It is objected that expert evidence will have to be called.  This does not seem to me to be any great hardship to the parties in a case of this size.  The expert evidence seems to be quite well contained and two well-known experts have been engaged, one on each side.  The cost of bringing them to Hong Kong and hearing that evidence seems to me to be minimal in comparison with the rest of the case.  I do not consider that any considerations of that nature even enter into it.

9.           In my view, this appeal should be allowed on the basis that the 1st and 2nd defendants undertake to apply to amend their defences along the lines of their further and better particulars and the sentence in paragraph 2 of the 2nd defendant’s affirmation, which I have cited above.  On that basis I would allow this appeal.

Hon Le Pichon JA:

10.         I agree.