TANG PING KWAN v. TANG KAI TUNG

HCA 1705/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1705 OF 1998

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J U D G M E N T

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1.  This is the Plaintiff’s appeal against an order of Master Levy made on 6 October 2010 (the “Order”) dismissing the Plaintiff’s application by summons dated 6 July 2010 (the “Summons”) for leave to file evidence in reply to the Affirmation of the Defendant filed on 15 June 2010 in connection with the Defendant’s application by summons dated 23 April 2010 to dismiss this action for want of prosecution (the “Dismissal Summons”).

2.  Briefly stated, the history of this action is as follows.

3.  On 5 February 1998, the late Tang Ping Kwan, deceased (the “Deceased”), commenced the present action against the Defendant claiming various lots of land in Yuen Long, New Territories (the “Lots”). The Defendant, being the manager of Tang Yuk Cho Tso, is the registered owner of the Lots.  The Deceased claimed to be entitled to the Lots as successor of the purchaser of the Lots, the alleged purchases having taken place back in the 1930s, or alternatively on the ground of adverse possession.  A Defence by the Defendant was filed on 2 April 1998.

4.  Apparently, discovery and inspection of documents took place in November 1998, but no witness statements were filed or exchanged notwithstanding an order of Mr Registrar Betts made on 14 September 1998.  The Deceased then passed away and, by an order of Master C B Chan made on 5 September 2001, Tang Wai Lun (the current Plaintiff) was appointed to represent the estate of the Deceased for the purpose of these proceedings.

5.  Nothing much happened in these proceedings since that appointment was made in 2001.  As mentioned earlier, on 23 April 2010, the Defendant applied to dismiss this action for want of prosecution.  An affirmation of George Yuen Chee Mok, the Defendant’s solicitor, was filed in support of the application.

6.  Pursuant to an unless order of Master Levy made on 3 May 2010, the Plaintiff filed two affirmations in opposition on 17 May 2010, one made by the Plaintiff himself and the other made by the Deceased some 9 years ago on 24 March 2001.

7.  At the 2^nd call-over hearing of the Dismissal Summons before Madam Registrar Queeny Au-Yeung, an attempt was made by the Plaintiff to have the Dismissal Summons dismissed on the basis that the evidence which had been filed on behalf of the Defendant on the issues of “prejudice” or “fair trial not being possible” amounted to no more than bare assertions.  That attempt was not successful.  The Registrar gave leave to the Defendant to file and serve a reply affirmation within 28 days, which the Defendant did on 15 June 2010.  Paragraph 2 of the order of the Registrar states as follows: “no further affirmation may be filed without leave from the Court.  Any application for filing of further evidence must be made within 21 days upon filing of reply affirmation”.

8.  On 6 July 2010, the Plaintiff took out a summons (i.e. the Summons) seeking leave to file a further affirmation in reply.  This summons was supported by the 1^st Affirmation of Tang Chee Ho filed on 16 July 2010.  The Summons came before Master K Lo on 20 July 2010, who ordered the Plaintiff to file and serve a supplemental affirmation in support of the Summons to exhibit the Plaintiff’s draft affirmation within 21 days.  This the Plaintiff did by the 2^nd Affirmation of Tang Chee Ho filed on 10 August 2010.

9.  There are 5 exhibits to the 2^nd Affirmation of Tang Chee Ho, being 5 draft affirmations of the Plaintiff and 4 other persons which the Plaintiff wished to rely upon in opposition to the Dismissal Summons.  The Summons came before Master Levy on 6 October 2010.  Having heard submissions from counsel for the Plaintiff and the Defendant respectively, Master Levy ordered that the Summons be dismissed with costs to the Defendant.

10.  By a Notice of Appeal dated 19 October 2010, the Plaintiff appealed against the Order of Master Levy.  Apparently, Master Levy dismissed the Summons for 3 reasons:

(i) the evidence contained in the 5 draft affirmations went beyond matters in reply to the last affirmation filed by the Defendant on 15 June 2010 (the “Defendant’s Affirmation”), as they were intended to be adduced, according to the Plaintiff’s counsel, for the purpose of putting forward all the evidence before the court so that the court would have all relevant matters for consideration at the hearing of the dismissal application (this was considered by Master Levy to be a wrong approach),

(ii) there was an absence of explanation by the Plaintiff for the failure to put forward the evidence contained in the 5 draft affirmations earlier even though it appeared that the Plaintiff could have done so, and

(iii) substantial parts of the evidence were irrelevant.

11.  The issue before me is whether the Plaintiff ought to be permitted to adduce the evidence contained in the 5 draft affirmations at the substantive hearing of the Dismissal Summons.  I have been told that no date has yet been fixed for the substantive hearing of the Dismissal Summons, and thus the Defendant will have an opportunity to put in further evidence in reply to the 5 affirmations in the event that leave is granted to the Plaintiff to file the 5 affirmations.  Nevertheless, I must still consider whether the Plaintiff ought to be permitted to file the 5 affirmations in the first place.

12.  When considering this issue, I consider that it is important to bear in mind that in the Summons, what the Plaintiff is seeking is leave to file a further affirmation “in reply”.  In the context, it must mean in reply to the Defendant’s Affirmation filed on 15 June 2010.  In the submissions before me, Mr Wong for the Plaintiff confirms that the purpose of adducing the evidence contained in the 5 draft affirmations is to reply to the allegation of prejudice raised in the Defendant’s Affirmation.  Mr Wong is not suggesting that the Plaintiff ought to be permitted, or is seeking, to file evidence generally in opposition to the Dismissal Summons. This being the Plaintiff’s position, I do not have to consider whether the Plaintiff ought to be given leave to file evidence generally, but will concentrate on whether the evidence contained in the 5 draft affirmations can properly be regarded as evidence in reply to the Defendant’s Affirmation.

13.  For this purpose, it is first necessary to see what is said in the Defendant’s Affirmation.  This affirmation, which consists of 5 pages with a few exhibits, relates to the issues of “prejudice” or “fair trial not being possible” which are relevant to the Defendant’s application for dismissal of the action on the ground of want of prosecution by the Plaintiff. In particular, the Defendant says that:-

(1) he suffered a severe head injury as a result of a violent attack on him by some unknown persons some time after he had served the Defence in this case in April 1998, and his memory has been worse than before and is still deteriorating;

(2) a key witness that he could call to give evidence, Madam Ngan Loi Ngan (“Madam Ngan”), has passed away on 6 January 2010 (the Defendant has also outlined the areas on which Madam Ngan could have given relevant evidence in paragraph 4c of the Defendant’s Affirmation); and

(3) the Plaintiff’s key witnesses, Mr Tang Ping Kwan and Madam Law Mui, have also passed away (it is said that the Defendant has thereby been deprived of the opportunity to cross examine these witnesses).

14.  This is not the occasion to examine whether such evidence is sufficient for the Defendant to make out a case that he will suffer prejudice or that there is a substantial risk that a fair trial will not be possible as a result of the Plaintiff’s delay in the prosecution of this action, and I express no view on this matter.

15.  It seems clear, however, that the major point relied upon by the Defendant is the passing away of Madam Ngan, and this apparently is also how the Plaintiff views the situation as can be seen from paragraph 10 of Mr Wong’s Skeleton Submissions.

16.  As mentioned above, the areas on which Madam Ngan could have given relevant evidence are summarized in paragraph 4c of the Defendant’s Affirmation, as follows:-

“i. who were the beneficial owners of Tang Yuk Cho Tso in 1936 including their names and relationship;

ii. from her true and accurate recollection in 1936/1937, Tang Chong Ming did not sign any conveyance of sale dated 28^th December 1936 and 26^th January 1937 as alleged by the Plaintiff and that Tang Chong Ming was not in financial difficulty in 1936/1937 and had never sold or intended to sell Tang Yuk Cho Tso’s lands;

iii. sale of Tang Yuk Cho Tso’s lands must first obtain the unanimous consent of all the members of the Tso and that no meeting for such purposes was ever convened or held in 1936/1937;

iv. the approval of the village elders and the written consent of the District Officer, Yuen Long (formerly the Land Officer of the New Territories Land Office) were required and no such consents had been obtained; and

v. the status and particulars of the lettings of Tang Yuk Cho Tso’s land referred to or alleged in the Defendant’s Defence.”

17.  Mr Wong submits that the evidence contained in the 5 draft affirmations goes to show that the Defendant will not suffer any, or any real, prejudice notwithstanding the passing away of Madam Ngan because, it is said, the matters on which Madam Ngan could have given evidence are in fact largely contained or recorded in documents.  Mr Wong says that the importance of Madam Ngan’s evidence should be assessed by reference to objective evidence, and the relevant issues that could have been dealt with by her do not depend on oral evidence.

18.  Mr Wong also refers me to paragraph 13 of the Defence, where it is pleaded as follows:-

“Paragraph 10 of the Statement of Claim is denied. The Defendant avers that:-

i) For about 12 years prior to 1993, the main portion of the house erected on Kam Tin Pak Pin Lot No.137 in Demarcation District No.109 was occupied by a Mr. Luk under a lease granted by the Defendant’s mother, Madam Lau Yung, as the representative of the Tso. All along, the monthly rent under the said lease was collected by Madam Lau Yung or other representative of the Tso for the Tso. The said monthly rent in 1993 was $100.00.

ii) The house on Lot No.168 in Demarcation District No.109 was erected in 1994 or 1995 by the Plaintiff despite the protest and objection of the Defendant. Before the erection of the said house, the said land was at all material times vacant and non-occupied.

iii) The land registered as Lot Nos.915 and 961 in Demarcation District No.109 was at all material times and is vacant and non-occupied;

iv) The land registered as Lot No.1109 in Demarcation District No.109 was occupied by someone who claimed to be a tenant of the same. In about April 1997, the Defendant collected the annual rent in the sum of HK$500.00 for the period ending 1997 from the said tenant. The said tenant quitted in 1997 and the said land is vacant and non-occupied;

v) The land registered as Lot No.1144 was vacant and non-occupied at all the material times prior to 1995. Currently, the said land is used to plant vegetables by someone unknown to the Defendant.”

19.  This paragraph of the Defence is in answer to paragraph 10 of the Statement of Claim relating to the alleged adverse possession of the Lots by the Plaintiff or persons through whom the Plaintiff derived his title to the Lots.

20.  Mr Wong then refers me to paragraph 4c of the Defendant’s Affirmation, from which it appears that information provided by Madam Ngan relating to “the history of [the Defendant’s] family affairs and the lands held by Tang Yuk Cho Tso” was used for the preparation of the Defence in 1998.

21.  According to Mr Wong, the purpose of the 5 draft affirmations is mainly to produce (a) some relevant aerial photos, (b) evidence from tenants of the Lots, and (c) relevant tenancy agreements, and they all go to rebut the evidence which Madam Ngan could have given as mentioned in paragraph 4c(v) of the Defendant’s Affirmation (i.e. the status and particulars of the lettings of the Lots at the material times).

22.  I have read the 5 draft affirmations and do not propose to set out in detail their contents in this judgment.  It seems to me that substantial parts of the 5 draft affirmations (and the exhibits thereto) relate to matters well beyond what Madam Ngan supposedly could have given evidence on, and deal with matters which are not in reply to the allegation of prejudice raised by the Defendant.

23.  Of the 5 draft affirmations, the principal one is a draft 2^nd affirmation of the Plaintiff.  Apart from some background matters and repetitions of matters already dealt with in the earlier affirmation of the Plaintiff, the following additional materials (amongst others) are dealt with in the draft 2^nd affirmation of the Plaintiff:-

(1) In paragraph 4, the land searches of the Lots are referred to and sought to be produced as exhibits “TWL-4” to “TWL-9”. Mr Wong has not suggested that these land searches in any way neutralize the potential evidence of Madam Ngan, or show that the potential evidence of Madam Ngan would not be material.

(2) In paragraph 5, a number of tenancy agreements and photographs are referred to and sought to be produced as exhibits. However, these tenancy agreements and photographs were entered into or taken between 2002 and 2010, long after the commencement of this action, and it is difficult to see how these tenancy agreements and photographs can in any sense be regarded as evidence in reply to the Defendant’s Affirmation.

(3) Paragraphs 6 to 8 and 13 do not relate to (a) aerial photos, (b) evidence from tenants of the Lots, or (c) tenancy agreements, and Mr Wong has not suggested that the matters set out in those paragraphs in any way neutralize the potential evidence of Madam Ngan, or show that the potential evidence of Madam Ngan would not be material. It seems to me that those matters relate more generally to the merits of the Plaintiff’s claim.

24.  In respect of the other 4 draft affirmations, one is intended to be made by Lee Yat Kan, and another is intended to be made by Lam Wing Yuen.  It appears from the draft affirmation of Lee Yat Kan that he only started to lease Lot No.961 in Demarcation District No.109 as from 1 January 2004, and from the draft affirmation of Lam Wing Yuen that he started to lease Lot No.915 in Demarcation District No.109 as from 1 January 1997, shortly before the commencement of this action.  Plainly, the contents of these 2 affirmations cannot be regarded as reply to the Defendant’s Affirmation.  The other two draft affirmations are intended to be made by two other tenants who have occupied some of the Lots for much longer periods of time, but the relevant tenancy agreements have already been produced as exhibits to the Plaintiff’s 1^st affirmation filed on 17 May 2010.

25.  Mr Wong has not sought to segregate those parts of the 5 draft affirmations which can properly be regarded as evidence in reply to the Defendant’s Affirmation and those which cannot be so regarded, and asked for leave to adduce only the former as evidence.  I do not think it is for the Court to do this for the Plaintiff.  In these circumstances and in light of the basis on which the Plaintiff puts forward the 5 affirmations, I agree with Master Levy that the Plaintiff should not be permitted to file the 5 affirmations.  I leave open the question of whether the Plaintiff may make another application to seek to adduce evidence on a more limited basis strictly in reply to the Defendant’s Affirmation.  This must not be read as any encouragement for the Plaintiff to make such application or that there is any good or sufficient ground to do so, and it is a matter entirely for the Plaintiff to decide whether it is advisable to make such application.

26.  I therefore dismiss the Notice of Appeal with costs to the Defendant.