POON KWAN LUN v. WONG YU KIN

HCA 1179/2015

[2019] HKCFI 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1179 OF 2015

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D E C I S I O N

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1.  This is a case involving an issue on adverse possession.

2.  The plaintiff claims to have been in exclusive possession of the subject land in question.  The defence, amongst others, was that the plaintiff’s side was in possession, pursuant to the grant of a licence on the defendant’s side in as early as 1981 or two, ie about 36 years ago, and subsequent revocation of a licence.

3.  In issue is the witness statement of one Man Chan Muk Mui (Madam Chan).  Her evidence is crucial to the defendant’s case in terms of the grant and revocation of the alleged licence.  Madam Chan has since deceased in 27 January 2018.

4.  The issue today before this court is whether her affirmation filed on 5 July 2017 and subsequent witness statement filed on 17 October 2017, should be admitted into the evidence under the hearsay rule.  Hearsay evidence is admissible in a civil court.  Today, I am dealing with the question of admissibility and not weight.

5.  I have been referred to various cases by counsel on both sides, and section 49(2) of the Evidence Ordinance, Cap 8.

6.  Running through the list of factors which the court will have to take into account when faced with a situation similar to the present, my views, are as follows.

7.  Under section 49(2)(a), it is no longer possible for Madam Chan to give evidence because of her demise.

8.  With regard to (b), her affirmation and witness statements were not made contemporaneously in the sense that the contents thereof talked about events made many years before those two documents came into existence.  And plainly, those two documents were made for the purpose of this litigation.

9.  With regard to (c), there is no suggestion that what she talked about in those two documents involved multiple hearsay.

10.  With regard to (d), there is no suggestion of any motive to conceal or misrepresent matters.  Of course, the witness statement and affirmation appear to be prepared by legal representatives.  At trial, counsel can always comment that there may be collaboration between witnesses, but that is not the matter that I will have to deal with today.

11.  As regards item (e), the original affirmation had subsequently been “amended” in the sense that there were some changes to the contents which eventually found its way into the witness statement of Madam Chan.  The defendant has been frank in informing the court, through the affirmation of Wong Wai Ming, as to how those amendments came into being.  It cannot be said, on the face of these amendments, that there had been any bad faith on the part of the defendant or Madam Chan.

12.  With regard to (f), there is nothing to suggest any attempt to prevent proper evaluation of the weight of the evidence. 

13.  As to (g), it does not come into play because apart from the two documents in question, there is no suggestion of evidence adduced by the defendant or Madam Chan that is inconsistent with Madam Chan’s evidence.

14.  In the present case, the witness statement and affirmation of Madam Chan were quite short.  However, they do disclose a lot of matters worthy for cross-examination on the part of the plaintiff.

15.  The plaintiff will plainly be prejudiced in the sense that they would not have the opportunity to cross-examine Madam Chan.  In that respect, Mr Chang, counsel for the plaintiff, has cited a most directly relevant case, Cheung Wei Man Vivien & anor v Centaline Property Agency Limited & ors [2004] 1 HKC 692, Lam J (as he then was).

16.  It has to be noted that in the Cheung Vivien case, the witness who made the subject witness statement was available but did not wish to be cross-examined.  In the present case, Madam Chan had died.

17.  There had been no attempt to take deposition of Madam Chan before her demise although when she made the affirmation, she was aware of her age and why she made that affirmation in view of her health.  That said, the legal representatives of the defendant have taken the attempt to prepare an affirmation from her.

18.  Each case must be decided on its own facts.  In the case of Chung Hon v Ng Sau Chun [2019] HKCFI 637, Au-Yeung J, the witness statement in question was not a contemporaneous statement.  The declaration of the deceased person was found to have so little weight that balancing against the prejudice, the court refused to admit it for trial.

19.  In the present case, there is some overlap between the evidence of Madam Chan and the witness, Mr Man.  How that will interplay at the trial is a matter for the trial judge.

20.  In a case of adverse possession, the court often will have to resort to hearsay evidence.  Here, the statement of Madam Chan, who is the mother of one of the witnesses in the present case, did provide some evidence which may be relevant to the case of the defendant.

21.  Looking at matters in the round, in my view, the statement and affirmation of Madam Chan, who is now deceased, ought to be adduced in evidence under the hearsay rule but it would be up to the trial judge, having heard all the evidence, to decide what weight to afford to it.

22.  In the premises, I would permit this evidence to be used at the trial.  I am sure judges will guide themselves along the lines of those cases cited by Mr Gary Lam, counsel for the defendant, ie Winpo Development Ltd v Wong Ka Fu & ors, HCA 3541/1993 (unreported), 26 May 2017, Recorder Whitehead SC; To Ho Sum Eddy v Land Zone Limited, HCA 10/2018 (unreported), 2 May 2017, DHCJ Kent Yee; and Bank of China v Wong Kam Ho & ors, HCMP 3324/2002 (unreported) 18 May 2012, Registrar KW Lung.