CHUNG WAI MAN v. SUPER EASE LTD AND ANOTHER

DCMP 3023/2016

[2020] HKDC 312

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3023 OF 2016

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D E C I S I O N

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1.  This is the plaintiff’s application for leave to adduce further witness statement and incidental documentary evidence for the purpose of the trial.

Background

2.  In October 2016, the plaintiff commenced the present action for declaration of his possessory title on the ground of adverse possession of parts of two lots of land in Yuen Long, New Territories.  For the present purpose, they may simply be referred to as the relevant parts of “Lot 211” and “Lot 212”.  The alleged adverse possession of the relevant parts of the two lots by the plaintiff is said to have commenced in 1985 and 1992 respectively. The 1^st defendant became the registered owner of Lot 211 in 1997 and the 2^nd defendant became the registered owner of Lot 212 in 2013. At the end of December 2016, this action was directed to continue as if begun by way of writ.  Pleadings have since been filed.

3.  In the statement of claim, the plaintiff sets out the particulars of the history of his alleged possession of the relevant parts of the lots over the years.  It is obvious from the defendants’ pleadings that the major defence is putting the plaintiff to proof of factual possession with the requisite intent as alleged[1]. The defendants also put forward their counterclaim for mesne profits and vacant possession.

4.  Witness statements were exchanged at the end of October 2018.  With leave of the court, both sides have put in land surveying expert reports in respect of the two lots and valuation report in respect of their values in 2019.

5.  In August 2019, this case was fixed for trial to commence on 6 May 2020.  The pre-trial review was fixed to be heard on 18 February 2020.  The latter was overtaken by the general adjournment period of the court (“GAP”) which commenced in late January 2020.  Since then, the pre-trial review hearing has remained pending.

6.  Meanwhile, the plaintiff intends to adduce his further witness statement and the incidental further documentary evidence for the purpose of the trial. On 19 February 2020, the documents intended to be filed for such an application were served on the defendants.  Both defendants indicated their intention to oppose.  The documents were also lodged with the court.

7.  On 22 April 2020, the Judiciary announced the end of the GAP with the progressive resumption of the court operation from 4 May 2020.  In other words, that would leave two days before the scheduled trial.  The parties agreed that it would be impracticable to begin the trial as scheduled, in view of the outstanding issues and the impracticability of holding a meaningful pre-trial review before the scheduled trial.  Hence the direction to adjourn the trial by consent, but proceeding with the pre-trial review hearing and the plaintiff’s intended application on 7 May.

8.  The hearing of the plaintiff’s application proceeded upon the plaintiff’s undertaking to file his summons after the re-opening of the Court Registry.

The principles

9.  Counsel for the parties have submitted extensively on the authorities and principles.  Without prejudice to the formulation of the principles and their applications as explained in the authorities, I say that there are in essence three major concerns in considering whether or not leave should be granted to adduce the further evidence, namely:-

(1)  the relevance of the evidence;

(2)  the delay and explanation; and

(3)  the prejudice if leave is granted.

Relevance

10.  The plaintiff set out the history of his alleged occupation of the relevant parts of the lots in his witness statement in line with his pleadings.

11.  In line with their major defence, the defendants’ witness statements are brief.  The 1^st defendant asserts that portions of Lot 211 were leased in 2008 and 2017 to two persons, one of which, according to the plaintiff, actually introduced him to come to occupy the relevant part of Lot 211 back in the 1980s.  Apart from that, both defendants make no real positive assertion in respect of the state of occupation of the lots over the years.

12.  It is therefore expected that the factual assertions of the plaintiff will be tested at trial mainly by reference to the land surveying expert evidence.  The experts engaged by the parties have studied and come up with their observations of and findings from the aerial photographs of the two lots over the relevant period of time.  The application to adduce further evidence was indeed brought about by the plaintiff’s intention to explain and clarify several aspects of his occupation history, in view of the land surveying expert evidence.

13.  Further, the plaintiff also seeks to correct his mistake in his statement regarding the dates (not the years, though) of birth of his daughters.

14.  As the plaintiff’s evidence is expected to be tested by reference to the expert evidence already known, his explanation and clarification must be relevant.  Of course, he could be cross examined at trial.  However, he is also not prevented from explaining or clarifying his case by way of evidence in chief, unless doing so would effectively contradict the history of his alleged occupation of the relevant parts of the two lots.  A party should not be allowed to do that without first sorting out his pleaded case.

15.  Subject always to how the evidence may turn out at the trial and the assessment by the court after hearing submissions, my impression from reading his supplemental witness statement at this stage is that this is on the whole not an attempt by the plaintiff to deviate from his case as pleaded and so far stated.

16.  I notice that the parties agree that the land surveying experts will be called to testify, notwithstanding that they apparently have no disagreement on the findings in their joint statement.  Therefore, the experts will also have the opportunity, if asked, to comment on the matters now sought to be clarified and explained by the plaintiff.  The supplemental witness statement of the plaintiff will only serve to put all parties on notice of what he will say in advance of the trial.

17.  As to the correction of the dates of birth of the plaintiff’s daughters, this cannot be objectionable.

18.  As to the new documentary evidence, it falls into two categories: (i) demand notes from the power company; and (ii) family photographs allegedly taken on site in the past.

19.  Similar demand notes from the power company have been disclosed in support of the plaintiff’s assertions.  These newly disclosed ones cover just another period of time.  By their nature and relevance, the documents are not objectionable.  The family photographs are potentially relevant, subject to proof of the time and identification of the locations in which they are said to have been taken.  Of course, weight of the further documentary evidence is always a different question.

20.  In the circumstances, subject to the other considerations in this application, the further evidence is not objectionable in terms of relevance, and should in principle be allowed to be adduced to ensure the fair resolution of the dispute between the two sides of the action.

Delay

21.  The witness statements of the parties were exchanged at the end of October 2018, and the expert evidence were filed by July 2019.  As the matter stood in February, it was indeed late for the plaintiff to seek to adduce the further evidence for the trial.  The plaintiff is expected to explain the delay, and he did so by his affirmation.

22.  Essentially, his explanation is this.  The need for explanation and clarification came about after the land surveying expert evidence has been explained to the plaintiff.  He managed to do so also with the assistance of his daughter, who has left for two years and returned to Hong Kong only in late December 2019.  The current counsel was briefed in early February 2020.  The further witness statement and documentary evidence were put together accordingly.  The defendants were then approached for their consent to adduce them.

23.  Delay may connote the manner in which a party conducts the proceedings. Further, reference to belated legal advice or change of counsel in explaining delay has never been attractive or adequate.  That said, the plaintiff’s explanation, and in the absence of contrary rebuttal evidence in this respect, does not suggest that he is merely acting irresponsibly in the conduct of proceedings.

24.  More importantly, delay is never viewed in isolation without reference to its impact.  The authorities, including those cited by counsel, which appear to suggest that delay alone suffices as a ground for denying leave should be properly understood.  This brings me to the next concern.

Prejudice

25.  Typically, a party seeking to adduce further evidence at the last minute will likely prejudice his opponent in terms of depriving the latter of a reasonable opportunity to respond effectively by proper investigation and rebuttal evidence without at the same time jeopardizing the commencement of the trial as scheduled.  If that happens, it would be open to the court to conclude that a proper balance to strike is to deny such last minute attempt to adduce the further evidence, albeit relevant.  This will likely to be the case, especially when the delay is not adequately explained.  In such a case, the party applying late may well be described as the author of his own predicament.

26.  In the present case, the defendants are of course entitled to inspect the new documents and to conduct their own investigation as a result.  They are also entitled to consider whether or not to require the maker of them to testify in court, and the plaintiff will then have to respond to that.  They can, if so advised, seek to adduce evidence in rebuttal.  The defendants will be able to take all these steps, as the trial is yet to be re-fixed to another date.  The GAP has at the beginning aggravated the impact of the late attempt of the plaintiff.  However, the adjournment of the trial has in a sense neutralized that.

27.  The reality is that giving leave to the plaintiff will not occasion prejudice to the defendants that could not be addressed as a costs issue.

Conclusion and order

28.  All matters considered, and in application of the relevant principles, I allow the application of the plaintiff.

29.  In both letters from his solicitors back in February and submissions of his counsel, the plaintiff conceded costs of and occasioned by the application to the defendants.  This must be right.  I so order, and such costs shall be to the defendants in any event and taxed, if not agreed, with certificate for counsel.

30.  I give leave to the defendants to lodge and serve within 28 days further witness statements in response to the further evidence as per the further witness statement and the documentary evidence of the plaintiff adduced pursuant to my leave[2].