TEAM GLORY DEVELOPMENT LTD v. SO LUEN FAI

CACV 231/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 231 OF 2008

(ON APPEAL FROM HCA NO. 7943 OF 1995)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal on the basis that it is a matter of great general or public importance.  The case in which this arises commenced in 1995 and may be shortly stated as a case against squatters in the New Territories.  What is said on behalf of the defendants is that the adverse possession started in 1953 and continued thereafter.

2.  This court allowed the appeal striking out the claim first of all because there had been inordinate delay.  We have heard no argument today in respect of that.  The delay appears to have been about 10½ years inaction.  That was regarded by this court as being unexplained inordinate delay.  This court also held that the defendants would have suffered severe prejudice if this case were to come on because two important witnesses had died.  One had died in 2004, and that had been the 1st defendant’s mother.  She was the person who was around at the time when the adverse possession started.  Another was a neighbour who had died in 2001.  On that basis this court regarded the defendants as being under a severe disability and they would suffer severe prejudice.   

3.  Today the plaintiff comes to this court with a Notice of Motion.  The first point that was argued was not a question in the Notice of Motion.  It was said that there was a counterclaim by the defendants and that the defendants were under an equal obligation to pursue their counterclaim, which was in reality a mirror of their defence.  Well, so be it.  The defendant possibly was under a duty to continue with the counterclaim, but the fact is that we were looking at the plaintiff’s claim.  If the defendant had suffered severe prejudice and there was inordinate delay, it was right to strike it out.  The fact that the defendant has not pursued the counterclaim is neither here nor there.  The counterclaim may well be struck out and the defendant may well be content with that in the circumstances.

4.  The main point that was argued was the question no. 4 in the Notice of Motion, and that is whether an action should be struck out for want of prosecution, pursuant to Order 25, rule 1(4) of the Rules of the High Court, Cap. 40 and/or under inherent jurisdiction of the court on the ground of inordinate delay where a fair trial of the action is still possible.  It seems to me to be dividing things up far too much to say that a fair trial is possible if one of the parties has suffered severe prejudice because they cannot call a relevant witness.  A fair trial cannot be possible if one party is severely prejudiced.

5.  The argument then turned to whether or not the witnesses were relevant and whether their evidence would have been relevant.  It was said, “Self-serving statements would not suffice.”  That may be so.  Self-serving statements may be regarded with a great deal of circumspection by the court.  But the fact is that the deceased’s mother would have been able to give factual evidence about what happened from 1953 onwards, not merely opinion evidence or evidence as to her intention or her husband’s intention, but would have been able to give factual evidence.  That was highly important.

6.  Then it is said that there are a number of subsidiary points that other evidence could be given, such as aerial photographs.  These are all matters of possibility.  The other aspects of evidence may be regarded as satisfactory or may not be regarded as satisfactory, but the fact is the most important thing is for witnesses who were around at the time to give factual evidence to the court.  That cannot happen.  Neither is it an answer to say that, “The 1st defendant was 15 in 1975 and therefore could give evidence from then on, and that was when the 20 years goes back.”  That is not sufficient , in my view.  The defendant is entitled to rely on what happened back from 1953 onwards, and it cannot do so.

7.  In my view, there are no questions of great general or public importance which arise in this case.  This is merely an attempt to continue the factual argument on which this court decided that the action should be struck out.  I would, therefore, not give leave to appeal to the Court of Final Appeal.

Hon Le Pichon JA:

8.  I agree.

(Discussion re costs)

Hon Rogers VP:

9.  We are going to make costs on an indemnity basis.  The main reason is that the main point that was sought to be argued this morning was not in the Notice of Motion.  This whole application has been badly prepared, and I do not think that the defendant, in the circumstances, should have to bear the consequences.