MAN FUNG CHOY v. MAN SHING LI

CACV 68/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 68 OF 2004

(ON APPEAL FROM HCA NO. 9907 OF 1997)

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J U D G M E N T

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Hon Le Pichon JA:

1. On 25 February 2004, Chung J

(a)	dismissed the plaintiff's appeal from the decision of Master Lung, refused to allow the filing and service of the supplemental witness statement of Man Ping Nam dated 13 January 2003 and ordered each party to pay his/her own costs;
(b)	allowed the defendant's appeal from, and setting aside, the decision of Master Lung granting leave to the plaintiff to file and serve the witness statement/opinion of Mr Robinson and ordered the plaintiff to pay the defendant's costs.

The plaintiff appeals against both these orders.

Background

2. The plaintiff is the natural daughter of Man Chau Cho ("Man Senior") and Wong Yuen Yin ("the deceased"). The defendant is the adopted son of the deceased.

3. The nature of the proceedings was summarised by the judge in paragraphs 3 and 5 of his judgment which are reproduced below:

"3. The plaintiff sues as the executrix of the deceased's will dated 5 March 1979 under which the plaintiff was named as her sole executrix and sole beneficiary. The deceased passed away on 7 March 1979. A piece of land known as Lot No. 763, DD 99 was owned by a business t'ong called 'Man Shek Chung Wui' (文石涌會) (respectively 'the said lot' and 'the said t'ong'). The plaintiff pleads that she was the lawful and natural daughter of the deceased whereas the defendant was the deceased's adopted son. The deceased acquired 5 units or shares of the interest of and in the said t'ong ('the properties in issue') and caused them to be registered in the name of the plaintiff's father. The plaintiff alleges that deceased remained the beneficial owner thereof nevertheless.

...

5. The defendant's pleaded case, on the other hand, is this. It is admitted the deceased acquired the properties in issue and caused them to be registered with the said t'ong. The defendant says that he has been registered as a member of the said t'ong since about 1960, when the deceased changed the registration from his father's name into his name. Further, he has been exercising his right of ownership of the properties in issue since then. Since about 1967, the defendant authorised the plaintiff, and a Mr Man if the plaintiff was unavailable, to receive the income from the properties in issue on his behalf when he was absent from Hong Kong. If the properties in issue should be found to still form part of the deceased's estate, the defendant contends that the plaintiff's claim is statutorily barred pursuant to the provisions of the Limitation Ordinance (Cap. 347) and/or the plaintiff is guilty of laches."

The supplemental witness statement

4. Mr Man's witness statement is dated 19 June 2001. It dealt with the practice of the Wui in registering members from the Man clan. He was appointed a manager of the Wui in 1949. He left Hong Kong in 1952 and apart from a short visit did not return until 1978 to live permanently here. He has been managing the Wui since 1996 and is familiar with the affairs of the Wui. Mr Man discovered a mistake in his witness statement which he wished to correct. That was the reason for his supplemental witness statement.

5. In paragraph 1 of his supplemental witness statement, Mr Man made the following observation:

"... I was told that this mistake is their relevant for the purpose of determination of the issues between the plaintiff and the defendant ..."

The judge's reason for disallowing the appeal from Master Lung who had refused to allow the service and filing of the supplemental witness statement appeared to be based purely on that observation which the judge took to be an express admission that the supplemental statement was irrelevant to the issues arising in the action.

6. In my view, whilst the court was entitled to take note of Mr Man's observation of irrelevancy, it should not take it at face value but form it's own opinion on the question of relevance. It would not appear that the judge undertook that exercise. Mr Remedios who appeared for the defendant acknowledged that that was the case. However, he submitted there was good reason to disallow this supplemental statement. He referred to this court's decision in Commerzbank Aktiengesellschaft (Hong Kong) v Peregrine Fixed Income Limited (In Liquidation), CACV 296/2002, unreported, 10 September 2002 for the proposition that where the supplemental statement is not a clarification of the earlier statement or does not fill any gaps left by the earlier statement but reflected the change of evidence by the witness, the supplemental statement should not be allowed because it would be undesirable for there to be two conflicting statements from the same witness. But the present case is not that of a witness changing his evidence. It would appear that the mistake arose in the course of the preparation of the original statement by the plaintiff's solicitors. In other words, the mistake was that of the solicitors and not that of Mr Man. Commerzbank is thus distinguishable.

7. I agree with Mr Chong who appeared for the plaintiff that what is at stake here is the witness's credibility. Justice requires that he should be given the opportunity to put the record straight given the inaccuracy in the original statement which arose through the mistake of a third party, i.e. the plaintiff's solicitors in the preparation of the statement. For my part, I do not consider that it can be right not to allow a witness to correct a mistake in his original statement where the mistake was not his mistake.

Mr Robinson's report

8. Mr Chong accepted that only the last section of the report under the heading "The nature of the interest of a member of the Wui" is relevant to the issues to be resolved. Much of the objection as to relevance made by counsel for the defendant related to the other parts of Mr Robinson's report.

9. As regards the last section of the report referred to above, Mr Remedios's submission was not that the matters dealt with were irrelevant; rather, it was said that they had already been dealt with in Mr Man's witness statement. Since, on any view, it cannot be said that this section of the report is irrelevant, the plaintiff ought to be allowed to file and serve such part of Mr Robinson's report as is relevant, namely, paragraphs 1 to 13 (inclusive) appearing on pages 1-3 and the last section under the heading "The nature of the interest of a member of the Wui" appearing on pages 12-14.

Conclusion

10. For the reasons stated, I would allow the appeal. I would set aside (1) paragraph 2 of the order dismissing the appeal from the order of the master dismissing the plaintiff's application for leave to file and serve the supplemental witness statement from Mr Man and (2) the order made by the judge allowing the defendant's appeal from the order of the master allowing and setting aside the master's order the plaintiff to adduce expert evidence at the trial in respect of Chinese law be set aside. I would also order that there be an order nisi that the plaintiff be entitled to the costs both here and below including, so far as necessary, the costs of the hearing before the master.

Hon Yeung JA:

11. I agree.