YANG JUNLING v. LEE YIU KEI AND ANOTHER

HCA 1723/2016

[2018] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1723 OF 2016

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D E C I S I O N

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The applications

1.  There are two summonses taken out by the defendants (“Ds”) before me today.  They are for specific discovery of documents from the plaintiff (“P”) and for leave to adduce expert evidence at the trial respectively.

2.  P submits that for the specific discovery summons, she has given all the documents required in her possession, custody or power to Ds.  For the documents that she does not have possession or custody, she has made an affidavit stating the fact.  Accordingly, she submits that Ds should not pursue the application for specific discovery.  The solicitor acting for P had advised Ds not to proceed with their applications.  However, Ds insisted to proceed.

3.  As to Ds’ application for leave to adduce expert evidence at the trial, the request for expert evidence is on the following issues:

a)  good title of the property; and

b)  should exempt special stamp duty on the property.

4.  P opposes this application for leave to adduce expert evidence because those issues are legal issues for the court, which does not require expert evidence to assist it.

5.  P is represented by a solicitor and Ds are acting in person.[1]

6.  I shall set out the circumstances where today’s hearing was ordered to be heard before myself.  At the Case Management Conference on 19 July 2018, P informed me that she was ready for setting down for trial.  Ds said that the matter was not ready for trial because the above interlocutory applications were still outstanding.  P submitted that the specific discovery application was taken out in February 2018 and there had been call-over hearing.  The court had given directions and time reserved for the hearing was three hours.  Ds should have set the matter down for hearing.  However, Ds had not set the matter down for hearing despite P having told them to do so.

7.  In order to facilitate expeditious disposal of Ds’ applications, I offered my early dates for the parties. In the end, the parties agreed to fix this date for the hearing.  On 1 August 2018, Ds wrote to me saying that they would take out other applications of security for costs and interrogatories later.  She proposed to adjourn this hearing to another date so that all applications could be heard together.  P opposed this proposal.  I refused the proposal as there was no reason for Ds not to take out all interlocutory applications in one go.  It smacks of delaying tactics on the part of Ds.

8.  Today, Ds complain that P’s skeleton argument and the bundles of documents have not been served on them.  P explains that the messenger was unable to gain entry to Ds’ residence. P sent the skeleton arguments to Ds by way of email.  Ds disagree that service can be done by way of email.  Ds ask this court to ignore P’s skeleton argument.  P agrees to do so.

9.  Ds have not put in their skeleton argument and bundles until this morning.  The skeleton argument and the supporting affidavit were written in handwriting.  Madam Leung of Ds read out the contents of the skeleton and her affidavit in court in English.

10.  I shall now deal with Ds’ applications.

Specific discovery

11.  Ds deny having received the documents set out in the summons.

12.  In the supporting affidavit, Ds admit that those documents had been given by their solicitors to them previously.  But they had lost them.  Madam Leung further says that her solicitor might have the documents, but she believes that her solicitor would not bother to get the documents for her.

13.  However, they had not put the above fact in their affidavit.  In the circumstances, evidence in the affidavit shows that they had the documents.  At least, they should be able to obtain copy of those documents from their former solicitor.  But there is no evidence from Ds that they had attempted to do so in the supporting affidavit.

14.  Ds only said that those documents are relevant and most important.  But they had not set out the reasons in support of their saying that those documents are important for the trial.  Ds admit that those documents were the letters between their solicitor and P’s solicitor.  However, P agrees that those documents are relevant and that they have been disclosed.

15.  Ds say that P has made an affidavit that she did not have the documents.  But she did not say that her solicitor did not have the documents.  Her solicitor should have the documents.

Expert evidence

16.  Ds submit that this is technical issue on the title of the property and the court would be assisted by the expert’s opinion, saving time and costs for the proceedings.

17.  What follow are P’s argument.

Specific discovery

18.  P replies that she had already filed and served a list of documents and a supplemental list of documents, which set out all the relevant documents, including those Ds required in the summons.

19.  P had also made an affidavit, in which she said that other than those documents in the list of the documents and the supplemental list of documents, she did not have possession, custody or power of other documents relating to any matter in question in the action.  The affidavit is, in interlocutory proceedings, conclusive evidence.

20.  P had already, through her solicitor, informed Ds of the above and advised them to withdraw their application for specific discovery.  Ds refused to accept.

Expert evidence

21.  Title of the property is a matter of law, which the court does not require expert evidence.  To adduce expert evidence will not assist the court, but rather would waste costs and time.  The same is true for the additional stamp duty, which is a matter of law for the court.

Discussion

22.  On the application of specific discovery, it appears quite clear that Ds had a solicitor acting for her previously.  Ds admit that the documents required are those letters of correspondence between her former solicitor and P’s solicitor.  Ds did not say that they had lost those documents in their affidavit.  Nor did they say in the affidavit that they had attempted to obtain those documents from their former solicitor.

23.  Under normal circumstances, the former solicitor should give them copy of those documents if they requested.

24.  Ds do not dispute that they did not make any attempt to inspect the documents on the list of documents and the supplemental list of documents.

25.  Ds complain that the lists do not have a summary of the contents of the letters.  The lists are therefore not complying with the provision under Order 24, RHC.  Madam Leung reads out the provision.  The provision requires a description of the document for identification of it. The description is quite clear.  They are the letters between the solicitors.  She is entitled to inspect the documents. She has elected not to inspect the documents.

26.  In the circumstances, it is unreasonable for Ds to take out the application for specific discovery.  This is unnecessary and the court should not exercise its discretion to make the order as Ds request.  Ds have not been able to demonstrate that they do not have those documents.

27.  As to expert evidence, I agree with P that those issues are matters of the law, which the court should be capable of making decision without any assistance from an expert.

28.  I therefore dismiss Ds’ respective summonses.

Costs and order

29.  As to costs of the applications, they should follow the event under O.62, r.3 RHC.  The costs are summarily assessed under O.62, r.9A at $ 65,000, to be paid by Ds to P within 14 days from the date hereof.

Case management directions

30.  Although Ds are having two applications, one on security for costs, the other on interrogatories, it appears that such applications are to delay the proceedings.  Master Ho had on 4 January 2018 made an order that all interlocutory applications shall be taken out within 14 days after 31 May 2018.  Ds are out of time.  I shall therefore give leave to the plaintiff to set the matter down for trial within 42 days from the date hereof for a 6-day trial before a bilingual judge in the fixture list.  There shall be a pre-trial review before the trial judge for 30 minutes on a day 12 weeks before trial.  The plaintiff shall submit a letter to the listing clerk to confirm that there is no outstanding application at least 7 days before the date for listing.

31.  The costs of this Case Management Conference (30 minutes) shall be in the cause.