YU YUK YING v. THE HONG KONG TIN TAK SHING KAU CHUNG WOO CHING SAI ASSOCIATION LTD

HCA3021/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. HCA3021 OF 2000

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R U L I N G

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1. I have to rule on two separate matters that arise from my judgment of 18 June last year when I dismissed the plaintiff's action for possession based on adverse possession of a plot of land, together with a house that stood on it, at Tai Po, New Territories.

2. The first matter arises from the order for costs that I made in favour of the successful defendants. They now seek an order for their costs to be taxed on an indemnity basis.

3. The second matter is an application by the Legal Aid Department for the plaintiff to show cause why her legal aid certificate should not be discharged.

4. Both these issues arise from the plaintiff's failure to make pre-trial discovery of the application forms and other documents that related to the tenancy of a flat at Kwai Chung that she obtained from the Housing Authority.

5. Discovery was ordered late on in the course of the trial which proved to be decisive against her in the action because the documents that were discovered showed the clearest admission that she and her family accepted that they occupied the land at Tai Po under a licence from the defendants, with the effect that adverse possession could not run against them.

6. In respect of the application for indemnity costs, Miss Hui, who appears on behalf of the defendants, submits that this failure to disclose amounted to a serious professional foul by the plaintiff. Had she done what she ought to have done at the outset, it would have been clear that she simply had no case and the defendants, in all probability, would not have been put to the trouble, anxiety and expense of defending an action that was bound to have failed.

7. The plaintiff's answer to this is that when she went to her solicitors, at first without the benefit of legal aid, she told them that she lived at a public housing flat and gave them the address from which they corresponded with her. Subsequently she also told the Legal Aid Department of that address.

8. Mr Wan, who has been her counsel throughout and who in due course gave an opinion as to the merits of her case for the purposes of her application for legal aid, has submitted that he and his instructing solicitors had come to the view that this fact could not have had a bearing on the question of adverse possession of the land at Tai Po and for that reason they decided not to take this aspect of the matter any further by asking her to produce the application forms for the grant of the tenancy which, when they came, proved to be so decisive.

9. For that reason as well they decided to give the address of the disputed land as her address in her witness statement where she still spent a lot of time and which, after all, was the property to which the action related.

10. I am satisfied that at no time did the plaintiff seek to hide the fact that she was the tenant of a flat at Kwai Chung. She told her solicitors so at the outset and it was up to them to make what they would of that and advise her accordingly.

11. In this regard, she did not act in an underhand way. She has been open about this and in such circumstances I cannot see how she can properly be condemned in an order for indemnity costs. No fault can possibly attach to her on this matter.

12. I should also mention that she volunteered the fact that she had this tenancy in the course of her evidence in the trial. She was open about that when she gave her evidence.

13. As to whether her solicitors and counsel should have looked into this matter further and called for the application documents, I am convinced that they should have done so. A wrong decision was made but it was a decision arrived at in good faith. There is no question that they had sought to avoid evidence which they considered might have been inconvenient to her case.

14. On this occasion, Miss Hui has failed to demonstrate on the authorities to which she and Mr Wan have referred me that this is the type of case calling for costs to be taxed on an indemnity basis. But it is a case which must provide a salutary lesson to those concerned to be more careful in future, but it is no more than one of those cases where something that should not have been allowed to happen has happened., but not to such an unreasonable extent that it should be condemned.

15. The law does not expect solicitors and counsel to get things right every time, although the hope and aspiration is that they always will. One cannot expect perfection every time. This error falls within the reasonably broad range of acceptable mistakes that are apt to happen from time to time. I will let the matter rest there and say that the defendants' costs will be taxed on a party and party basis.

16. As to the legal aid application, I have already observed that she provided the Housing Authority's flat's address to the Legal Aid Department in her application form. Her counsel, Mr Wan, had advised as to the significance of this in his opinion on the merits. The Legal Aid Department's lawyers could have begged to differ on this aspect but they chose not to. I cannot see how this lady can be blamed for what has happened. She had been frank about the primary fact and it was for the Department and the lawyers to make what they would of that.

17. For these reasons, I decline to discharge her legal aid certificate.

18. I should just for the purposes of the record indicate that Mr Leung, who is the solicitor of the Legal Aid Department who made the application today for the plaintiff to show cause as to why her certificate should not be discharged was not involved in the matter originally. He has come into it somewhat late in the day and I have no doubt he was in part encouraged by my remarks and my judgment so no possible fault can attach to him and I shall ask for these remarks to be related to the Department.