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 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 of Wing 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.