WONG SUI YEUNG v. CHIU KWONG WING AND OTHERS

cacv 190/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 190 of 2005

(on appeal from HCA NO. 5249 of 1999)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from orders of Mr Justice Lam made on 10 and 18 May 2005 whereby he refused leave to file an affidavit by an expert on Chinese customary law, he refused leave to file a supplemental affidavit by the same expert within 35 days from the date of his order and he refused to vacate the trial dates which had been set between 9 and 13 May 2005.  The second part of the appeal was in respect of his dismissal of the plaintiff’s claim after he had decided a question of law in favour of the defendants and he ordered the plaintiff to pay the costs of the action.  At the conclusion of the hearing of this appeal, this appeal was dismissed.  After hearing argument, the decision on the question of costs was reserved.

Background

2.  The plaintiff’s claim arose from the destruction of a lychee tree which was said to be a fung shui tree in Ko Tong, Sai Kung, New Territories.  The important point in relation to this case was that the tree was located on land which did not belong to the plaintiff.  The plaintiff’s claim was that he was an indigenous villager and that the tree had been in the ownership of the plaintiff’s family for more than 100 years and had been inherited by the plaintiff from his ancestors “pursuant to local and customary law”.  The basis of the claim was that the tree had been destroyed in the course of the erection of a three-storey residential building on land owned by the first defendant, which was nearby the tree.  The claim against the second defendant was on the basis that he had been appointed to supervise and manage the construction of the building.  The claim against the third defendant was that it was the construction company that was responsible for carrying out the building work and the destruction of the tree.  The claim against the fourth defendant was that he was the elected village representative and owed the plaintiff a duty of care to ensure that the plaintiff’s tree would be properly protected.  It suffices to say that at the opening of this appeal Mr Chan, who appeared on this appeal but not below, said that the plaintiff was not pursuing any claim against the fourth defendant.

3.  The history of the action may be briefly summarised as follows.  The tree was cut down on or about 24 April 1998.  The following year, on 29 March 1999, the writ was issued followed by a statement of claim the following month.  The summons for directions was heard on 13 December 2000 and, as part of that, directions were given that an expert on local customary New Territories law should be agreed, if possible, and, if not, expert evidence limited to one witness for each party would be permitted.

4.  As the judge below observed, it must have been obvious from the outset that such evidence was required since without it the plaintiff would have no case at all because, under common law, a tree growing on a piece of land is not regarded as a chattel.  As framed the statement of claim did not show any basis upon which the plaintiff could show a segregation of the interest in land in respect of the particular tree and the ownership of the land itself.  Indeed, further and better particulars were sought in June 1999 as to how the plaintiff’s ancestors came to acquire an interest in the tree and as to the provisions of the local and customary law which were said to give rise to the ownership.  Those requests were refused on the basis that they were matters of evidence.  As the judge said, it should have been clear to the plaintiff and his advisers that the ownership of the tree was very much in dispute and that the plaintiff’s advisers should have focused their attention on that issue.  There were two affirmations filed on behalf of the plaintiff which were to serve as witness statements but these related to the division of assets in the village and did not assist in the question of the customary law as to the ownership of trees on land not owned by the alleged owner of the tree.

5.  It would appear that after the summons for directions matters went downhill even further.  When the plaintiff’s checklist was filed in March 2002 the indication was given that no directions had been obtained for expert evidence.  The solicitor handling the case on behalf the plaintiff filed an affirmation in connection with the application for the adjournment of the trial in May 2005 where she said that she believed that the plaintiff and those advising him regarded the evidence of the two persons referred to above as being experts on relevant customary law.  But that, as the judge observed, did not sit well with the checklists which had been filed on behalf of the plaintiff.

6.  It was not until just before the trial, when new counsel was instructed, that it would seem that the importance of obtaining expert evidence as to customary law was brought home to the plaintiff and his solicitors.  Very much as a last effort, steps were taken to try to locate a suitable expert.  A number of potential experts were approached but it appeared that most of them were engaged in other matters and could not take the case immediately.  It was in those circumstances that, at the commencement of the trial, application was made to admit evidence in the form of a preliminary statement from one of those experts, a well-known expert on the Chinese customary law, and for leave to adjourn the trial so that further evidence could be obtained within a month or so.  That further adjournment was on the basis that the expert’s report obtained at that stage was only an unsatisfactory preliminary view and the expert had indicated that further research was necessary and he had had inadequate time to prepare his report.  The judge refused those applications and he heard the defendants’ application that, as a matter of law, the plaintiff’s case was hopeless.  In those circumstances the action was dismissed.

7.  The judge set out in paragraph 26 of his judgment his reasons for not acceding to the application for an adjournment.  I do not intend to set out his reasons in full.  Mr Chan did not seek to challenge any of those reasons and conceded that the judge’s order was a matter of discretion.  A major basis for attacking the exercise of the discretion was that the judge failed to take into account the difficulty that the plaintiff might have in bringing an action for negligence against the solicitor involved despite the fact that it was the solicitor who was responsible for the total lack of preparation of the case.

8.  I am far from satisfied that there would be any such difficulty as Mr Chan sought to argue.  The matter seems to me to be clear.  In paragraph 26(b) the judge had said: --

“The dilatoriness on the part of the Plaintiff in the preparation of this case for trial is wholly unacceptable. The Defendants had this action hanging over their heads for 6 years. As mentioned, leave to set down was granted in 2002 and the Plaintiff had failed to set down as directed on two occasions. We are now in mid-2005. It should be apparent from what I have said above that I took a dim view of Ms Wong’s conduct of this case. Despite her attempt in explanation, I am in agreement with Mr Pang’s submission that such conduct can be characterized as “reckless”. There is a faint suggestion that the lack of proper preparation for trial was attributable to ongoing settlement negotiations between the parties. As far as I am concerned, this can never be an excuse and any reasonably competent litigation solicitor should know better than that.”

The only question that might arise is as to whether the plaintiff’s case might have been such that he should have been advised from the outset not to commence proceedings, but that is not what has been argued.

9.  Then it was said that in paragraph 26(f) the judge had emphasised the difficulty of the defendants’ recovering costs if the claim failed.  It was said that the plaintiff had offered to pay $500,000 into court in respect of the costs thrown away and that that would have been sufficient to protect the defendants.  It is quite clear from the judgment that the judge was well aware of this offer but did not consider that it answered all the problems in connection with the defendants recovering costs incurred in the action.

10.  In my view neither of these matters in any way begin to be grounds upon which this court could fault the exercise of the discretion by the judge below.  The tree was felled eight years ago.  The action has been prosecuted in a worse than dilatory manner.  The very nature of the action, let alone the events following the commencement of the action, must have brought home to any lawyer the need for the matters which the plaintiff’s solicitors, at the final moments, sought to rectify.  In an assessment of the nature which the judge had to perform it is not only the interests of the plaintiff that must be considered but those of the defendants as well.  It is not right that actions should be allowed to linger.  Litigants cannot be put to such gross inconvenience in relation to preparation of the case that having prepared for trial, they have to start again, virtually from the beginning, six years from the date when the action first started.  Nothing that has transpired would lead to the conclusion that if the judge had allowed the plaintiff to start again the plaintiff’s case would have been conducted in any better manner than previously.

11.  I would also note that the quantum of the claim has, so far, been wholly unparticularised save for the fact that the plaintiff sought to have the matter transferred to the District Court.  This indicated that there was, perhaps, not a great deal at stake, particularly when one considers the amount of costs involved.

12.  At the commencement of the hearing of this appeal an application was made to permit further evidence to be adduced.  That evidence consisted of an opinion of the customary law expert and a draft statement of claim based thereon.  I would make two observations in respect of the opinion.  In the first place it appears that this again was only obtained shortly before the hearing.  In the second place it was by no means conclusive.  It clearly opens the way for further disputes.  Even if that opinion were admitted and not controverted, it seems to me that the plaintiff had still not established his case; yet further evidence would be required.  The evidence was considered by this court de bene esse, but in my view leave to admit it should not be given.  It was clearly material which the plaintiff could have obtained at any time and it would be wrong for this court to admit it at this stage.  Coupled with that, as already indicated, the evidence was not conclusive in the plaintiff’s favour.  I would therefore dismiss the application to admit the further evidence with costs.

13.  With regard to the question of costs in my view this appeal should never have been brought.  In the light of the judgment below it was clear that any appeal would have been doomed to failure.  As noted above, the plaintiff’s claim for damages has been unparticularised.  It cannot be imagined it would be very great.  Given the attempt to have the matter transferred to the District Court, it can only be supposed that the plaintiff’s most optimistic estimate must be less than the costs incurred to date.  As such this appeal constituted no more than a harassment of the defendants.  This appeal was, in the circumstances, vexatious.  It was not until the opening of the appeal that the indication was given that the matter would not be proceeded with against the fourth defendant.  In my view, the defendants should not have to suffer the detriment of only obtaining party and party costs but should be entitled to their costs on an indemnity basis.  I would therefore so order.

Hon Le Pichon JA:

14.  I agree.

Hon Barma J:

15.  I agree.