SZETO CHAK MEI v. CHAN LAM SHAN AND OTHERS

HCMP 836/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 836 OF 2012

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D E C I S I O N

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1.  This is an application by the defendants to file further witness statements in this action.

2.  The trial of the action concerns a property in Mei Foo Sun Tsuen.  The plaintiff is the administratrix of the estate of the registered owner of the property.

3.  The 1^st defendant is the former wife of one of the sons of the registered owner.  The other defendants are persons living in the property who do not claim a proprietary interest of their own in the property and they reside there as part of the family of the 1 ^st defendant. 

4.  The 1^st defendant’s case is broadly that by reason of certain assurances and promises made to her by the registered owner (that is, her former father‑in‑law) during his life time, and by his wife, Madam Lui, a proprietary estoppel had arisen in her favour entitling her to treat the property as her own or, at any rate, to continue to occupy the property.

5.  The trial has been set down for some time now for five days to commence on 26 November 2015.  A direction was given on 13 May 2014 for the exchange of witness statements within 56 days.  An unless order was made on 29 October 2014 requiring the 1^st defendant to exchange witness statements by 10 December 2014, on which witness statements were eventually exchanged.

6.  The 1^st defendant took out a summons to file a supplemental witness statement on 20 July 2015.  Prior to that, as the correspondence in the bundle before me shows, the 1^st defendant had asked the plaintiff if she wished to file a supplemental witness statement, in which case the 1^st defendant proposed that each side could do so by consent within 14 days.  The plaintiff did not indicate that she wished to file any supplemental witness statement.

7.  By my order on 20 August 2015, I granted leave to the 1^st defendant to file her supplemental witness statement, but a number of paragraphs were required to be redacted, leaving only six paragraphs in the supplemental statement which, together, occupied about one page in Chinese.

8.  The 1^st defendant’s supplemental witness statement, as redacted, deals with a very limited of number of matters.  The paragraphs excluded were opposed by the plaintiff on various grounds, including that the trial was imminent and that new investigation would have to be conducted and possibly new witnesses called.

9.  On that occasion I gave leave also for the plaintiff to file a supplemental witness statement “in reply” within 21 days.  On 9 September 2015, the plaintiff filed a supplemental witness statement of 12 pages.  In my opinion, most of the content of that witness statement is not a reply to the 1^st defendant’s supplemental witness statement.  What the plaintiff’s supplemental witness statement seeks to deal with are either matters that were raised long before the 1^st defendant’s supplemental witness statement, or are new matters raised by plaintiff herself for the first time but not strictly in reply to 1^st defendant’s supplemental witness statement.  For example, the 1^st defendant’s allegation that her parents‑in‑law wished to transfer the property to her and her husband, and that the plaintiff had telephoned her in the early part of 1990 to tell her that the plaintiff’s father (that is, the 1^st defendant’s father-in-law) wanted to transfer the property to them, was pleaded in paragraph 7 (3) of the defence and counterclaim filed in June 2013, and also mentioned in paragraph 19 of the 1^st defendant’s first witness statement.  It was not at all a new allegation raised in the 1^st defendant’s supplemental witness statement.  Yet paragraphs 2 to 8 of the plaintiff’s supplemental statement deal extensively with that topic.

10.  As for section C of the plaintiff’s supplemental statement, it seems to me to go into an all‑out attack on the relationship between the 1^st defendant and her former mother-in-law which, in my view, cannot be justified under the cloak of a reply to paragraph 11 of the 1^st defendant’s supplemental witness statement.  In fact, it is difficult to identify any part of the plaintiff’s supplemental statement that can properly be regarded as a reply to the 1^st defendant’s supplemental statement. 

11.  In my view, it is an abuse of the liberty given to file a supplemental witness statement in reply. 

12.  In response, the 1^st defendant has at first objected but subsequently tried to introduce further evidence, including some that had specifically been excluded at the last hearing by way of further witness statements under a summons dated 7 October 2015.  The 1^st defendant seeks leave not only to file a supplemental witness statement for each of herself and the 3^rd defendant, but also to file a witness statement of a new witness, that is, the 2^nd defendant.

13.  The trial will be starting in three weeks’ time.  The trial bundles are due to be lodged, under my direction, on 5 November, that is, the day after tomorrow.  All these attempts to put in new evidence by way of supplemental witness statements have come very late. Moreover, the matters involved do not go directly to the issues.  They go to certain alleged incidents, habits, emotions and opinions within the family that are said to make the 1^st defendant’s case of the assurance or promise either more or less plausible as the case may be. The court has to be vigilant, particularly in this kind of case involving a family dispute where the contestants may have an inexhaustible mine of memories or impressions of all kinds of events that had happened in the family going a long way back.  The court needs to guard against having limitless rounds of evidence, or allowing the evidence to get out of hand.  Ensuring that any supplemental evidence is sufficiently concise, probative and necessary is especially important at a stage so close to the trial as here.  The court has to maintain the discipline of case management even if the parties consent to introduce new matters, because of the potential impact on the conduct of the trial.

14.  In the present case, it seems to me that if the plaintiff wishes to adduce a supplemental witness statement of her own covering the matters in her supplemental witness statement, she ought properly to apply for leave to do so and not to have “slipped it in” as purported evidence in reply. 

15.  It follows that the plaintiff’s supplemental witness statement ought to be expunged, and I so order.

16.  The 1^st defendant’s application is premised on the plaintiff’s supplemental witness statement and, as such, is at best premature.  That summons is therefore adjourned sine die with liberty to restore.

(Submissions as to costs)

17.  Costs of the hearing be to the 1^st defendant, in any event.  The 1^st defendant’s costs be taxed in accordance with the Legal Aid Regulations.  Subject to that, the costs of the 1^st defendant’s summons be reserved.