WEALTH HILL INTERNATIONAL INVESTMENT LTD AND OTHERS v. WONG KWAN SIU

CACV 122/2013
CACV 138/2013
(Heard together)

CACV 122/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 122 OF 2013

( ON APPEAL FROM HCA NO 828 OF 2008)

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REASONS FOR JUDGMENT

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Hon Cheung JA:

1.  I agree with the reasons for judgment of Yuen JA.

Hon Yuen JA:

2.  There are two identical summonses applying for leave to adduce fresh evidence on two related appeals.  The applications are made by Tsang Wan Shing Tong 曾宏盛堂 (“TWST”) which is the appellant in CACV122/2013 and the respondent in CACV138/2013.  The fresh evidence in each application is the same document.  At the conclusion of the hearing on 26 September 2014, we gave orders in terms of the two summonses.  My reasons appear below.    

Background

3.  HCA828/2008 and HCA829/2008 were concerned with claims to adverse possession over four pieces of land (called for convenience “Land 1, 2, 3 and 4”).  For present purposes, we only need to focus on Land 2 and Land 4.

4.  TWST was the registered owner of Land 2 and Land 4.  This t’ong was represented by four managers, including Tsang Hin Keung 曾憲強 (“THK”).

5.  Land 2 was occupied by Wong Kwan Siu (“Madam Wong”) and Land 4 was occupied by her mother Ng Kwai Hing (“Madam Ng”).  Each claimed adverse possession of the land occupied by herself.

6.  The relevant issues at the trial before Anthony Chan J were:

(1) whether Madam Wong and/or Madam Ng were/was in adverse possession of Land 2 and Land 4 respectively; and

(2) if so, whether TWST could nevertheless defeat their/her claim(s) because it had members who were minors and for whom the limitation period was extended by reason of disability. 

In respect of the second issue, THK had produced a “family tree”, which he said he had first compiled in 1993-4, which included Tsang Cheuk Lam 曾焯霖 formerly known as Tsang Hing Kiu 曾慶翹 who was born in 1988, Jayson Tsang Lok Hei 曾樂希 born in 2006, and Jayden Tsang Lok Heng 曾樂恒 born in 2008, for whom the limitation period had not expired when proceedings were issued by TWST in 2008.  (For convenience, the three of them are referred to as the “three minors”, although Tsang Cheuk Lam is no longer a minor).

Trial and judgment

7.1   Judgment was handed down on 29 May 2013. 

7.2   In respect of the first issue, the judge found that Madam Wong was in adverse possession of Land 2, but that Madam Ng was not in adverse possession of Land 4 because she had paid rent for it at some stage.

8.1   In respect of the second issue, the judge accepted that if land belonged to a t’ong, the birth of a new member of the t’ong creates a new equitable interest, and a new limitation period starts to run. 

8.2   However he did not accept the “family tree” as evidence of the membership of TWST, as he did not accept that THK would have compiled one starting in 1993-4 when he had not yet been appointed as manager and when he had previously shown no interest in t’ong affairs. 

8.3   It was an important part of the judge’s decision that no records of TWST showing its membership had been produced in evidence.  He pointed out at para. 81:

“It is difficult to believe that no record had been kept for the members of TWST if there were such members (there is no evidence whether the managers were or were not members of TWST)”.

8.4   One of the issues that had been raised by the defence was that members of another t’ong, Ng Kwai Tong 五桂堂 (“NKT”) were being passed off as members of TWST.  As noted by the judge in para. 81, THK’s qualification as a manager of TWST was itself called into question.         

8.5   Consequently the judge found that the plaintiffs had failed to prove that Madam Wong’s claim to adverse possession was defeated by the three minors who had been put forward as members of TWST.

Appeals

9.1 In CACV122/2013, TWST is appealing the finding of adverse possession of Land 2.

9.2   In CACV138/2013, Madam Ng is appealing the finding of no adverse possession of Land 4.  One of the grounds of appeal is that as the plaintiffs had failed to prove that there were existing members of TWST, the judge should have found Land 4 was bona vacantia.  (Madam Wong has also filed a respondent’s notice in CACV122/2013 on this basis).    

Application for fresh evidence

10.1   The fresh evidence that TWST seeks to adduce in both appeals is a document entitled “List of Members”, which was attached to an “Application for Succession to Estates” filed with Government in 1966 (“the 1966 Membership List”). 

10.2 There were attached to the Application

(a) a “List of Members” for TWST, as well as 

(b) a “List of Members” for NKT.

10.3 Both Lists were signed by Tsang Kam Sang 曾金生 and Tsang Kwai Chuen 曾桂全.

10.4 Nine persons (including the two of them) were named as members of both t’ongs.

11.  Of the nine persons named as members of TWST in the 1966 Membership List, the materials before us show:

(1) Tsang Kam Sang was the father of THK;     

(2) Tsang Kwai Chuen was the grandfather of Jayson and Jayden;

(3) Tsang Kwai Lun 曾桂粦, possibly also known as 曾貴粦, is said to be the grandfather of Cheuk Lam.  (I say “said to be the grandfather” not only because the different characters 桂 and 貴 may show different persons were referred to, but also because the birth certificate of Tsang Cheuk Lam’s father Tsang Kwok Keung 曾國強 shows his father’s name as Tsang Ming 曾明, and the bundles before us do not include any official records showing that was another name for Tsang Kwai Lun曾桂粦).

Principles

12.  The principles applied by the court when considering an application to adduce fresh evidence on appeal are clear (Ladd v Marshall [1954] 1 WLR 1489).  Leave will only be granted if the following three conditions are satisfied:

(1) it is shown that the fresh evidence could not have been obtained with reasonable diligence for use at the trial;     

(2) the fresh evidence is such that, if given, it would probably have an important influence on the result of the case; and

(3) the fresh evidence is such as is presumably to be believed.

Discussion

13.  Mr Alwin Chan, counsel for Madam Wong and Mr Albert Yau, counsel for Madam Ng do not contest Condition 3 for the purposes of this application, although they do not accept that the contents of the 1966 Membership List are necessarily accurate.  They submitted that Conditions 1 and 2 are not satisfied.  Mr Yau argued Condition 1 and Mr Chan, Condition 2.

14.  To understand the contentions regarding Condition 1, it is necessary to summarize the circumstances in which the 1966 Membership List was found:

14.1   THK was also the village representative of a village. 

14.2   After the judgment below was handed down, some people challenged THK’s qualification to be a village representative.

14.3   For the purposes of a hearing under the Village Representative Election Ordinance Cap.576, an investigation report was prepared by the Election Registration Officer for the Revising Officer.

14.4   The investigation report dated 13 September 2013 had annexed to it a number of documents.  Annexure 12 turned out to be the 1966 Membership List.  THK has said on affirmation that neither he nor his co-managers were aware of this document, and that even though one of the two signatories is his father, he was never made aware of it, being in his early teens when his father died.        

14.5   Subsequently TWST’s current solicitors (who did not represent it at the trial) wrote to the Tso and Tong Registry of the Yuen Long District Office (“YLDO”) asking why the 1966 Membership List had not been supplied when they had inquired in June 2013 (post-trial) for TWST’s membership list(s).  At that time they had been supplied with a 2003 Membership List only.  (As for the 2003 Membership List, THK and the other named plaintiffs were signatories but they have said on affirmation that they had forgotten about it and hence had not made inquiries with the YLDO for a copy for use at trial).

14.6   The reply from the YLDO dated 19 February 2014 is significant.  It said that the 2003 Membership List was in fact the earliest list filed under TWST’s reference in the Tso and Tong Registry.  However in the course of the Village Representative investigation, they had looked into all records available relating to THK’s ancestral affiliation, and they had then found the 1966 Membership List which had been processed under a file relating to property succession.

14.7   It was in these circumstances that the summonses were issued to produce the 1966 Membership List on the appeals.  It would seem that the summonses were issued rather late in the day but Mr Yau specifically said he did not take any point on delay. 

15.1  It is well-established that the discretion to admit fresh evidence on appeal should be exercised in the light of the maxim that it is in the interest of the state that there should be finality in litigation (interest reipublicae ut sit finis litium). In a case where no attempt at all had been made to search for the evidence before trial, the court will be more astute when examining the applicant’s contention that even if he had exercised reasonable diligence before trial, he would not have been able to obtain it for use at trial.  Indeed in Williams v Reason [1988] 1 All ER 262, the appellate court even heard oral evidence from the proposed new witness who testified that had he been approached before trial, he would not have given the evidence that he was now willing to give (265).  However whether Condition 1 is satisfied is ultimately a question of fact in each case, and in the circumstances of the present case, I take the view that it is clear that Condition 1 has been satisfied. 

15.2   It is clear from the YLDO’s reply that had TWST made inquiries for Membership List(s) before trial,

(a) the 1966 Membership List would not have been supplied, as it was not in the Tso and Tong Registry file but in another file; and

(b) the 2003 Membership List would probably have been supplied, but that is not the document the subject matter of the present application. 

15.3   In respect of point (a) above, Mr Yau has not suggested that TWST should have asked the YLDO to undertake a search of all the YLDO’s files in case a membership list might turn up in one file or another.  If TWST had indeed made such a request, one wonders whether the YLDO would have been willing or able to undertake such a wide-ranging search.  Nor is it to the point for Mr Yau to say that the staff of YLDO had not acted with reasonable diligence when it confined its search to the Tso and Tong Registry when approached by TWST’s solicitors. First, that is the natural place to look, and secondly, the YLDO is not the servant or agent of TWST.

15.4   In respect of point (b) above, it should be noted that the 2003 Membership List is not simply an updated version of the 1966 Membership List.  Most of the names are different, and more importantly, the 2003 Membership List states under “Name of Tso/Tong”: “TWST and NKT” 曾宏盛堂及五桂堂.  Whereas the 1966 Membership List makes it clear who are the members of TWST only, the point might well have been taken at trial by the defence that the 2003 Membership List refers to two t’ongs (the defence case being that NKT was different from TWST) and that the 2003 Membership List did not specify who was a member of TWST and who was a member of NKT. 

15.5 Accordingly, whilst the 2003 Membership List could and should have been produced at trial, that does not detract from the significance of the 1966 Membership List, and it is clear that the 1966 Membership List would not have been obtained by TWST even if they had used reasonable diligence in making enquiries with the YLDO before trial.       

16. As for Condition 2, it is clear from the reference to para. 81 of the judgment below that the membership of TWST was of crucial importance.  Mr Chan argued that the case turned on the credibility of THK but that is a circuitous argument because one of the reasons why the judge did not believe THK’s evidence was because he had no documents to back up his testimony.  In any event the fresh evidence does not need to be conclusive.    If the 1966 Membership List is correct, and there was evidence that the members named in it were ancestors of the three minors, that would clearly have an important influence on Madam Wong’s adverse possession claim regarding Land 2 and Madam Ng’s bona vacantia argument regarding Land 4.  

Order

17.1 For the reasons set out above, an order was made in terms of the two summonses with costs to be in the cause of the appeals.  For the avoidance of doubt, we did not see fit to certify for two counsel.  Madam Wong and Madam Ng’s own costs are to be taxed in accordance with Legal Aid regulations. 

17.2 We also gave directions that any amendment to Notices of Appeal or Respondent’s Notices must be filed within 7 days, and any consequential documents must be filed within 7 days thereafter.  For the avoidance of doubt, these directions override the provisions in the Rules of the High Court permitting the amendment of Respondent’s Notices without leave.