SECRETARY FOR JUSTICE v. LAU HON MO AND ANOTHER

HCA 2136/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2136 OF 2014

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BETWEEN

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D E C I S I O N

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THE APPLICATION

1.  This is the 1^st defendant’s application pursuant to the inherent jurisdiction of the Court and O.33, r.4 of RHC for an order of, inter alia, an expedited trial and a split trial on the issues of liability and quantum.

2.  The plaintiff opposes this application.

3.  The parties are legally represented.[1]

THE AGREED FACTUAL BACKGROUND

4.  The plaintiff has helpfully prepared the agreed facts of this case, which I shall reproduce below:

“1. In this action, the Plaintiff seeks, inter alia, possession of a piece of the (Government) see Remark Land near No. 717 Shek O Village of approximately 538 sq.m. and payment of mesne profits and other damages to be assessed from the occupiers of the (Government) Land.

2. The 1st Defendant counterclaims that he had adversely possessed the (Government) Land and that the Plaintiff’s action has been time-barred and the title of the Government to the (Government) Land has been extinguished by (but not limited to) sections 7(1) and 17 of the Limitation Ordinance.

3. In the Defence and Counterclaim filed on 3 December 2014, the 1st Defendant alleges, inter alia, that from 1950 his father, latterly with him after his birth in 1959, had exclusively occupied the (Government) Land for over 60 years. As the 1st Defendant alleges, at the time his father first occupied the (Government) Land, he erected a fence around it with a gate, and from 1950 his father farmed the (Government) Land and continued to farm it until his death on 28 May 2014.

4. The Plaintiff denies there has been exclusive possession of the (Government) Land by the 1st Defendant through his father since 1950 or at all for a period exceeding 60 years before the commencement of this action.  In his Reply and Defence to Counterclaim filed on 11 February 2015, the Plaintiff avers that subject to aerial photograph interpretation and photogrammetric measurement, according to the relevant aerial photographs currently kept by the Survey and Mapping Office of the Lands Department, a fence-like feature was first found in 1963 and was so found only on the eastern side of the (Government) Land.”

APPLICATION FOR AN EXPEDITED TRIAL

5.  Let us first deal with the application for an expedited trial.

6.  Counsel of both parties agree that this is a case management discretion of the court, the exercise of which must be made judiciously.

The relevant applicable legal principles

7.  The 1^st defendant relies on the UK authority of the Court of Appeal in W.L. Gore & Associates GMBH v Geox Spa (unreported, [2008] EWCA Civ 622 19 March 2008) per Lord Neubergeragreed by Lord Justice Rix.

8.  In this case, the Lord Neuburger discussed extensively and in detail the exercise of the court’s case management discretion, which in my opinion, is applicable to the exercise of case management discretion in Hong Kong as well.  It was a similar application for a speedy trial in this case where the appellant asked for a speedy trial on commercial ground.  The application was based upon that the date of the ordinarily fixed trial date and the decision to be given after the trial would prejudice its commercial interest in the promotion of its products.  The Judge in the first instance had refused the application because the directions order was made by consent and that to accede to the appellant’s request would prejudice the other litigants as the order would displace them from their position in the queue of cases waiting to be heard.  See §§12 & 21.  The Court of Appeal held that the court had the jurisdiction to reconsider the situation and change the directions even though the directions were made by consent, meaning no objection by the parties rather than an agreement between themselves.  On the second issue, the Court of Appeal found that the Listing Clerk was able to find a time slot in Chancery Court to accommodate this case by the vacation judges.  Lord Neuburger also said that if not for the second reason, he would have dismissed the appellant’s application.  See §24.

9.  It will be helpful to set out the factors that Lord Nerburger has set out in the judgment for exercising the case management discretion.  At paragraph 25 of the judgment, he said:

“To my mind, when considering such an application [for speedy trial] there are four factors to take into account. The first is whether the applicants (in this case, Gore) have shown good reason for expedition; the second is whether expedition would interfere with the good administration of justice; the third is whether expedition would cause prejudice to the other party; and the fourth is whether there are any other special reasons.”

10.  The 1^st defendant also relies upon other authorities to say that when considering real urgency, the availability of witnesses is a particularly relevant consideration.  Daltel Europe Ltd (In Liq) v Hassa Ali Makki (unreported, [2004] EWHC 1631 (Ch), 17 June 2004) at §§12-13 per Lloyd J; if the other parties can show no real prejudice, he has “no particular locus to oppose expedition” Law Debenture Trust v Elektrim (Unreported, [2008] EWHC 2187 (Ch) 1 Aug 2008 at §9 per Morgan J and that expediting a trial is entirely consistent with the Court’s specific underlying objective under O.1A r.1(b) RHC.

11.  The plaintiff opposes this application on two fronts.  First, the plaintiff submits that it has to “rely upon old records and documents of 60 years ago and to prepare expert evidence including aerial photograph interpretation which is a product of a thorough and meticulous study of the relevant aerial photographs with photogrammetric measurement devices and technologies”.[2]  The plaintiff today has informed this Court that there are at present over 8000 aerial photographs that the government would have to screen through in order to select the evidence to prove its case.  The government should be given reasonable time to prepare its case to meet the claim of adverse possession of the 1^st defendant.

What is the practical effect of the application

12.  The second front is what are the practical effects of having such an “expedited trial” order from the court?  This is, in my view, a good question to ask in any application to come to court.  Many a time, parties come to court applying for an order, which they are not clear about the practical effect of it.  This would be a waste of time and costs for the parties and the court.  A vivid example can be seen in Wing Mou Construction Co Ltd (in Liquidation) v Cosmic Insurance Corporation Ltd & Another (unreported, HCCT 40/2001, Ma J (as he then was) 20 June 2002 at §15(6)). In this case, the applicant was the third party.  It asked the court to allow it to be joined as a defendant on the ground that it might lose its procedural advantage being a third party.  The learned judge dismissed it saying that it was a misconception as the court would be in a position to give the appropriate directions for the third party to make the cross-examination or adduce expert evidence as necessary.  At paragraph 15(6) of the judgment, the learned judge said:

“Ultimately, the discretion is exercised … as with any exercise of discretion by the court, orders should only be made where necessary, just and convenient.”

13.  It is apparent on Gore case, where the appellant asked the Court to make an expedited trial order, it had ascertained the trial date in January 2009.  See §6.  It is on this basis it asked the court to give it an earlier date in order to expedite the trial.

14.  The term “expedited trial” is not found in O.33.  I can imagine that what the 1^st defendant mean an “expedited trial” refers to a “speedy trial”, which appears in the Practice Direction 5.3 that lays down the standard directions for the parties and the court in relation to summons for interlocutory orders and injunctions.  Under paragraph 9 of the Practice Direction, the court has the power to order that the trial should be expedited and give directions for the filing and service of the pleadings and the other interlocutory orders for the preparation for the trial.  It does not have the same effect as what were discussed in Gore case, taking precedence of the other cases waiting in the civil list for trial.  So there is doubt that I should have the power to make such an order.  The 1^st defendant refers me to O.1B and O.32, r. 11, which provides for the masters to have the same jurisdiction as a Judge in chambers except for those provisions specified, which do not apply to this application here.  The plaintiff has no argument on this issue.  Therefore, I shall take it that I have the jurisdiction to make an expedited order.  I would therefore consider the application as follows.

15.  In this case, it is clear that there are interlocutory applications for further and better particulars, assess to the Government Land for surveying and leave to adduce expert evidence, all of which, as according to the plaintiff, would be contested by the 1^st defendant.  See paragraph 12 of plaintiff’s written submissions.  Under those circumstances, it is simply not possible for the court to give leave to set down.  Without a trial date or a tentative trial date, this application is a misconception, to borrow the words in Wing Mou case.

16.  The 1^st defendant submits that the purpose of the application for an expedited trial order is to alert any other party or the bench that this case should be dealt with expeditiously when other applications may come to court for determination.

17.  The 1^st defendant may be entitled to put the plaintiff on notice that he would like to have a tight timetable for the proceedings, given his special circumstances as to the old age of the witnesses.  The case will be set down for trial immediately after completion of the preparation for the trial.  The case will be listed for trial accordingly.  But an expedited trial order would not assist the 1^st defendant in the present proceedings.

18.  The plaintiff has also raised the alternative of applying O.39, r.1 RHC to achieve the 1^st defendant’s purpose for the aged witnesses.  This may not be necessary to discuss here in view of the above.

19.  Before I move on to the discussion on a split trial, I should mention the remarks of the 1^st defendant on the plaintiff asking the 1^st defendant to produce medical evidence in respect of his seven witnesses any risk of deterioration of health and memory as ridiculous.  These seven people are aged between 68 to 93 years old.  The burden is on the 1^st defendant to establish the fact, on evidence, that he requires court’s support for a speedy trial.  Old age is one factor to be considered.  However, the state of health is, in my view, a far more important factor for the court’s consideration.  A 98 years old person in good health is a better witness than a 68 years old with poor health or even dementia.  In the exercise of its discretion the court is duty-bound to take all relevant factors into consideration.  To make such harsh comment on the opponent simply does not assist the court in making its judicial decision.

20.  The 1^st defendant’s application for an expedited trial is dismissed.

THE APPLICATION FOR A SPLIT TRIAL

21.  I shall now consider the application for a split trial.

22.  There is no dispute over the legal principles as set out in Telford Development Limited v Shui On Construction Co. Ltd. [1990] 2 HKC 110, where the Court of Appeal had overruled the decision of the Court of First Instance Judge’s decision ordering a split trial of the preliminary issues and had set out the following legal principles at 117A-B and 117 C-F:

a. The general rule is that all the issues in a case are to be tried at one and the same time.  There is power to order that different issues in a case be tried at different times.  But that departure from the general rule is ordered only if it is just and convenient.  And it is of course for the party who seeks such a departure to demonstrate that it is indeed just and convenient.

b. The applicant should provide information to estimate with any reasonable degree of accuracy how much time and costs would be saved if the preliminary issues are first determined. 

c. The Court would take into consideration the duplication of calling witnesses in the preliminary issue trial and the main trial and the delay to the main trial if the preliminary issues were taken to appeal courts.

23.  It is obvious that the burden is on the 1^st defendant to satisfy those conditions above in support of his application.  The 1^st defendant has failed to provide information to estimate with reasonable degree of accuracy how much time and costs would be saved for the split trial.  He has failed in limine.

24.  The 1^st defendant’s application for a split trial is dismissed too.

25.  As to the costs of the application, the 1^st defendant submits that the costs should be in the cause because this is a case management matter, which will be dealt with under the summons returnable on 18 June 2015, which can be dispensed with.  Mr. Chain submits that if those issues were raised in the Case Management Summons hearing, the costs of the case management should be in the cause.  The plaintiff disagrees and says that this is a separate application and the costs should follow the event.  I agree with the plaintiff.  Even if this summons is heard together with the Case Management Summons, the costs for this summons should follow the event whilst the costs of the Case Management Summons should be in the cause. This is the basis I shall award costs to the plaintiff.  The costs of and reserved for the 1^st defendant’s summons be to the plaintiff, to be assessed under O.62, r.9A at $65,000.  The costs of the Case Management Summons for the directions below shall be in cause.  The time for the Case Management Summons hearing is 30 minutes.  Upon application from the 1^st defendant, who, according to counsel, is having pro bono legal service, time for payment of the costs be within 2 month from the date hereof.

ORDER

26.  The court shall now make an order in terms as follows:

a. The 1^st defendant’s application for an expedited trial be dismissed;

b. The 1^st defendant’s application for a split trial be dismissed;

c. The costs of this application are as per paragraph 25, supra.

CASE MANAGEMENT SUMMONS HEARING

27.  The parties inform the Court that they are ready to deal with the directions for Case Management Summons returnable on 18 June 2015.  They ask this Court to deal with the directions here in order to save the hearing on 18 June 2015.  I shall accede to this request.

28.  The Court will make the following directions:

(1) The matter is adjourned to 11:30 a.m. on 22 October 2015 for the 2^nd Case Management Summons hearing, with the following directions:

a. All witness statements as to facts shall be exchanged between the parties within 42 days from the date the 1^st defendant gives answers to the plaintiff’s further and better particulars, and such witness statements shall stand as evidence in chief unless otherwise directed by the trial judge;

b. Parties shall within 28 days after exchange of the witness statements obtain counsel’s advice;

c. The parties shall take out application for leave to adduce expert evidence in accordance with paragraph 20 of the Practice Direction 5.2 within 14 days thereafter;

d. All other interlocutory applications as may be advised shall be taken out within 14 days after Counsel's advice;

e. Any party who is unable to comply with any of the above directions shall take out an application for extension of time within 7 days after the due date for compliance;

f. By consent, time shall run during the long vacation;

g. The hearing on 18 June 2015 be vacated.

(2) Parties shall, at least 7 days before the Case Management Conference, file and serve a certificate signed by their respective trial counsel with his/her own following estimates only (without taking into account of the time estimated by the other party), which will be placed before the trial Judge at the trial:

(a) time for the opening;

(b) time for examination in chief;

(c) time for cross-examination;

(d) time for final submission; and

(e) the above total time.

(3) Costs of this Case Management Summons hearing be in the cause.