LEE BING CHUENG v. SECRETARY FOR JUSTICE

HCA 1092/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1092 OF 2010

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BETWEEN

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REASONS FOR DECISION

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1.  This concerns an application by the defendant to adduce new documentary evidence in the course of the trial. After hearing submissions by both parties, I dismissed the application with costs. These are my Reasons for Decision which I have reserved.

2.  These Reasons for Decision should be read together with my Judgment after trial handed down today (“Judgment”).  I shall not repeat the background of the case and the evidence adduced at the trial which are set out in detail in the Judgment.  For convenience, I shall adopt the abbreviations used in the Judgment.

3.  Both parties adduced expert evidence as to land status, state and location at the trial.  The plaintiff’s expert was Mr Ng, and the defendant’s expert was Mr Cheng.  The focus of their expert evidence turned on the visualisation and interpretation of the images shown in 2 aerial photographs (ie the 6091 Photo and the 6091 Photo or collectively, the Photos) and their portion enlargements (ie Enlarged 6091 and Enlarged 6092 or collectively, the Enlarged Photos).

4.  In his opening submissions, Mr Chong (and with him Mr Tam), counsel to the plaintiff, alluded to the presence of granular noise that might degrade the quality of the Photos and/or the Enlarged Photos. Questions on the matter of granular noise were put to Mr Ng by Mr Chong, Mr Man, counsel for the defendant, and the court.

5.  Mr Ng started to give evidence in the afternoon on the 2^nd day of trial, and he completed his evidence in the morning on the following day.   The bulk of his evidence was given under cross‑examination which spanned both days.  Mr Chong’s re-examination was brief.  Then the court put a few questions to Mr Ng.  After Mr Ng answered those questions, both counsel were invited (if they so wished) to put further questions to him on matters arising from his answers to the questions by the court.  At this juncture, Mr Man informed the court the defendant had another portion enlargement of the 6091 Photo (“New Photo”) that had not been disclosed previously, and he would like to seek leave to disclose and adduce the same as it might offer assistance on the issue of granular noise.

6.  To say the least, Mr Chong was surprised by the New Photo which none of the plaintiff, Mr Ng and/or Mr Chong had seen before.  Upon enquiry by the court, Mr Man had no objection for Mr Chong to communicate with Mr Ng (who was then giving evidence) on the New Photo so that Mr Chong could properly advise the plaintiff and take instructions on Mr Man’s oral application for leave to adduce the New Photo as evidence.  After taking some preliminary instructions, Mr Chong informed the court that the plaintiff would oppose the application.

7.  It transpired that although both Enlarged 6091 and the New Photo were portion enlargements of the 6091 Photo, different methodologies had been used to produce such portion enlargements.  The New Photo being an enlarged reproduction of the 6091 Photo was made by taking a photograph of the 6091 Photo or Enlarged 6091.  This apparently represented dated technology for preparing portion enlargements of aerial photographs.  The current practice is to use digital processing.

8.  Mr Man informed the court that the New Photo was made for the purpose of the SMO’s survey of Ah Kung Ngam in 1993 (see paragraph 11 of the Judgment).  In fact, Mr Cheng himself was involved in the 1993 survey. Although he did not take the New Photo himself, he was the one who placed the order for the New Photo with another section within the SMO.  So Mr Cheng had access to the New Photo ever since 1993, but he only gave it to the defendant’s legal representatives on the 2^nd day of trial.  Nevertheless, this means that the defendant’s legal representatives, including Mr Man, had the New Photo to hand when Mr Ng gave evidence, yet no attempt had been made to disclose the New Photo throughout Mr Ng’s evidence.

9.  In my view, there can be no doubt that the New Photo was a discoverable document.  One of the crucial issues in this case was whether the plaintiff entered into possession of the Government Land and the Rented House standing thereon on or before 1 March 1949.  The Photos (ie aerial photographs taken by the British Air Force on 8 May 1949) and their portion enlargements (ie the Enlarged Photos) were thought to be the only available photographs that might illuminate the ground feature(s) at the Disputed House in 1949.  Indeed, such is the scarcity of relevant aerial photographs that Mr Man criticised Mr Ng for failing to seek out and review the 6091 Photo when he prepared the Ng Report.  The Peruvian Guano test for discovery made it abundantly clear that the New Photo ought to have been discovered and disclosed.

10.  Yet, the defendant failed to do so even though the New Photo had been available since the 1993 survey.  Since Mr Cheng himself was involved in the 1993 survey, he was all along aware of the New Photo.  Yet he never referred to the New Photo in the Cheng Report or later in the Joint Statement.  Mr Ng was, of course, unaware of the New Photo, which was prepared by the SMO for their internal use.  The only explanation Mr Man was able to offer was that Mr Cheng thought reference to Enlarged 6091 (which was of better quality than Enlarged 6092) was sufficient.

11.  However, Mr Man confirmed that when the defendant’s legal representatives attended to the exercise of making discovery in the course of the present action, they took instructions from Mr Cheng on the relevant documents to be discovered and/or disclosed.  Had proper explanation been given to Mr Cheng on the Peruvian Guano criteria for identifying the relevant documents for discovery, there could not have been any justifiable reason for failing to disclose the New Photo during discovery.

12.  More importantly, the issue of whether granular noise had degraded the quality of the Photos had been alluded to in Mr Chong’s opening submissions and made the subject of Mr Ng’s evidence.  Indeed, Mr Man had cross‑examined Mr Ng on this very subject.  If (as suggested by Mr Man) the New Photo might assist in clearing up this issue, there was no satisfactory reason why the New Photo had not been disclosed at the latest when Mr Ng gave evidence under cross-examination.

13.  In the course of his submissions, Mr Man conceded that the New Photo ought to have been disclosed as part of the defendant’s discovery of documents, and that he ought to have disclosed it when it came into his hands whilst Mr Ng was giving evidence.  He also accepted there was no good reason for the late disclosure.

14.  However, Mr Man urged me bear in mind Order 1A rule 2 of the Rules of the High Court which provides that the court in giving effect to the underlying objectives of these rules, the court shall always recognise the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.  He submitted that the New Photo would be relevant to the disputed issues, so I should grant leave for the defendant to disclose and adduce the New Photo despite the unjustified lateness of the application.

15.  Mr Man frankly accepted it would be unlikely for the court to grant such leave if the plaintiff would require an adjournment of the trial in order to properly meet the new evidence. The trial was a milestone event, and it would be undesirable to interrupt Mr Ng’s evidence.  In my view, even if (as Mr Man conceded) Mr Chong were to have the time and freedom to consult Mr Ng on the New Photo in order to properly advise the plaintiff, and further even if (as Mr Man also conceded) the defendant would not seek to challenge Mr Ng’s reliability and credibility due to any change of evidence on his part upon review of the New Photo, a sense of prejudicial unfairness, which could not be ameliorated by the above caveats, would still remain.

16.  Mr Man said he intended to put a few questions on the New Photo to Mr Ng, and subject to the above caveats Mr Ng’s answers thereto would become part of the overall evidence to be assessed by the court.  But, in my view, there must be an element of irremediable prejudice in requiring Mr Ng (who had almost completed his evidence) to give evidence on the New Photo on short notice and without the luxury enjoyed by Mr Cheng of being able to study the New Photo over an extended period.

17.  It must be remembered that prior to the trial Mr Ng had prepared the Ng Report based on the 6092 Photo and he later prepared the Joint Statement based on his study of the Photos and the Enlarged Photos, his review of the Cheng Report, and his discussion with Mr Cheng at the Joint Meeting. The Cheng Report and the Joint Statement were silent on the New Photo. Mr Chong did not have an opportunity to lead evidence-in-chief from Mr Ng on the New Photo. Further, if, as Mr Man suggested, he would cross-examine Mr Ng on the New Photo, Mr Chong would have to re‑examine Mr Ng in the dark without knowing beforehand Mr Cheng’s expert opinion on the New Photo.  After all, the plaintiff would have already closed his case by the time Mr Cheng gave oral evidence on the New Photo as part of the defendant’s case.  

18.  But, as Mr Man recognised, it would be unfair and unjust to countenance the alternative of adjourning the trial for the respective experts to reduce into writing their opinion on the New Photo so as to enable the parties to take proper and useful instructions, especially in view of the lateness of the defendant’s application and the absence of any good reason for such delay.

19.  Mr Chong added that from his brief discussion with Mr Ng, it appeared that Mr Ng would require technical information from the SMO on how the New Photo was generated, eg the resolution at which it was taken to achieve the enlargement effect, to assess the risk and (where appropriate) degree of distortion and to give meaningful opinion on any comparison between Enlarged 6091 and the New Photo.  Mr Chong reminded that the New Photo was prepared by the SMO for internal use, and it was not a publicly accessible aerial photograph which land surveyors were generally familiar.  I accept these are valid concerns.

20.  In all the circumstances, bearing in mind the unjustified lateness of the application and its prejudicial effect on the plaintiff, I refused the defendant’s application during the trial.  There is no reason why costs should not follow event, so I also ordered that costs of such application by the defendant be to the plaintiff in any event.  I left open the question of whether such costs should be taxed or summarily assessed.  In the Judgment I have granted a costs order nisi that the costs awarded thereunder in favour of the plaintiff be taxed if not agreed.  Given that the defendant’s application was made in the course of the trial and there might be nice questions over apportionment of time and costs for the defendant’s application, I now direct that costs of the defendant’s application in favour of the plaintiff be taxed if not agreed.