WONG CHEUNG TAI v. 房麗芬

DCCJ 3535/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.3535 OF 2014

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DCCJ 3538/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.3538 OF 2014

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DECISION

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Introduction

1.  There are 2 summonses both filed 17 Oct 2016 before me, one taken out each by the defendant in the captioned 2 actions. Both are for striking out certain parts of 2 witness statements in each action on the same grounds of (a) scandalous, frivolous or vexatious; or (b) tending to prejudice, embarrass or delay the fair trial of the action; or (c) being an abuse of the process of the Court; or (d) being irrelevant or oppressive; or (e) offending O.38 r.2A of the Rules of the District Court, Cap.336H (“RDC”). 

The 2 actions

2.  The plaintiff in both actions is Madam Wong Cheung Tai (黃長娣) (“Mdm Wong”). The defendant in DCCJ 3535/2014 (“3535 action”) is 房麗芬 (“Mdm Fong”) while that in DCCJ 3538/2014 (“3538 action”) is Mr Fong Yuen Fai (房遠輝) (“Mr Fong”), the younger brother of Mdm Fong.

3.  The 2 actions have been set down for trial one after the other before the same trial judge commencing on 14 June 2017 with 6 days reserved (with pre-trial review on 24 Apr 2017). Hence both applications came to be heard together before me.

The pleadings

4.  By these 2 actions, Mdm Wong sought to recover, inter alia, vacant possession of two houses No.392 & No.392C(1) (collectively “the 2 houses”) both on Lot No.2170 in Demarcation District No.116, Yuen Long (“the lot”) she owned.

5.  Before Mdm Wong’s purchase of the lot from her predecessor in Jan 2013, the previous owner had granted 2 renewable oral annual tenancies of the 2 houses to Mdm Fong and Mr Fong respectively (“the 2 oral tenancies”).

6.  It is Mdm Wong’s case that she had with the assistance of her daughter-in-law and others made visits on the lot and had on 4 Feb 2013 and 17 Feb 2013 respectively duly procured Mdm Fong and Mr Fong to agree to and executed 2 Chinese written tenancy agreement over the 2 houses with her (“the 2 written tenancy agreements”). The 2 oral tenancies, said Mdm Wong, were thus surrendered and/or determined.

7.  Mdm Wong further claimed that she had, on 8 Jan 2014, through her solicitors served proper notices to terminate the 2 written tenancy agreements. Despite service of such notice and despite expiry of the 2 written tenancy agreements, Mdm Fong and Mr Fong had, she said, since 5 Feb 2014 and 1 Mar 2014 respectively refused to vacate their respective house.

8.  Mdm Fong and Mr Fong both denied surrender and/or determination of the 2 oral tenancies and claimed their continuation up to today. They said the 2 written tenancy agreements are not valid contract at all, for there was a lack of intention to enter into binding agreement, a lack of consideration for the shortened notice period and/or they were induced to sign on these 2 partly prefilled pro forma Chinese tenancy forms by fraudulent misrepresentations or actionable misrepresentations under the Misrepresentation Ordinance, Cap.284 (collectively “the vitiating means”).

9.  In essence, the vitiating means they complained of are that Mdm Wong & her agents had represented to them that the 2 oral tenancies would continue unchanged despite the entry of the 2 written tenancy agreements when, in fact, the notice period of 6 months under the former was reduced to to 1 month under the latter. They therefore counterclaimed for, inter alia, rescission of the 2 written tenancy agreements.

10.  In reply, Mdm Wong denies the vitiating means and avers that Mdm Fong and Mr Fong had entered into the 2 written tenancy agreements voluntarily and with full knowledge and understanding of their full terms and effect.

11.  Alternatively, Mdm Wong suggested that the 2 oral tenancies would in any event have by now been terminated and/or not renewed by failure to pay rent on the part of Mdm Fong and Mr Fong.

12.  In reply, the two of them contended that they had attempted to pay rent to Mdm Wong pursuant to the 2 oral tenancies but she refused to accept. The 2 oral tenancies automatically renewed themselves by operation of law in the absence of any valid notice of termination served on them. Had they failed to pay rent as alleged, they claimed for relief against forfeiture.

13.  Finally, Mdm Wong denied that the two of them are entitled to any relief against forfeiture and disagreed with their pleaded manner of tendering rent under the 2 oral tenancies.

Witness statements concerned

14.  The witness statements concerned in 3535 action are witness statements of plaintiff and of 劉美金 (“Mdm Lau”) both filed 18 July 2016. Those in 3538 action are also witness statements of plaintiff and of Mdm Lau both filed 18 July 2016[1]. Mdm Lau is the daughter-in-law of Mdm Wong.

The parts complained of

15.  The parts which defence sought to be struck out from plaintiff’s statements and those of Mdm Lau in the 2 actions are more particularly stated in two Schedules I and II annexed to the respective summons[2].

16.  In gist, they are references to other tenancies, both oral and written, for other houses also on the lot entered into, and those sought to be entered into but not entered into, by third parties with Mdm Wong, save for that with the particular defendant in either 3535 action or 3538 action (“TP tenancies”).

Defence submissions

17.  The submissions of Mr James Wong appearing for Mdm Fong and Mr Fong (“Mr Wong”) are simple and straightforward. He submitted that these TP tenancies are not the subject matter of 3535 action or 3538 action. They are not mentioned at all on the pleadings of either.  Mdm Fong and Mr Fong are not parties to them. Any references of TP tenancies in the witness statements concerned are therefore irrelevant, scandalous and inadmissible.

18.  He relied, inter alia, on the decision of Registrar Lung in Talent Weaving Dyeing & Printing Ltd v Able Billion Textiles Ltd [2013] 2 HKLRD 479, 481-2 to submit that this court has a discretion to strike out or expunge the complained parts.

19.  It is submitted that these references to TP tenancies went beyond the ambit of the issues on pleadings and that they do not assist the trial court in resolving these issues one way or another. And Mr Wong went over the complained parts one by one with this court in order to make good his submissions.

20.  Mr Wong emphasized that there is risk that the trial court may be distracted by these references or that the 2 trials may be embarrassed or delayed by evidence on them if it fails to disregard them as irrelevant and inadmissible matters. As plaintiff recently in Oct 2016 filed 2^nd list of documents disclosing divers documents supporting these references, he may be forced to seek out the other parties of TP tenancies to take statements and to give evidence at trial to rebut them if they are not expunged now.

Plaintiff’s submissions

21.  Mr Patrick Szeto appearing for Mdm Wong in both actions (“Mr Szeto”) pointed out that O.38 r.2A, RDC, set out in the margin of the 2 summonses is not the source of this court’s jurisdiction to expunge parts of witness statement. And some of the authorities cited in Talent Weaving, supra, do not support the undisputed propositions set out at para 5 of that judgment.

22.  While he accepted this court has an inherent or general jurisdiction to strike out parts of witness statement, Mr Szeto cited another decision of Registrar Lung in Ng Yuk Pui Kelly v Dung Wai Man & others, unreported, HCA 1826 of 2011, 28 Nov 2014, para 17-18, to submit that such discretion should be exercised in a prudent manner[3] to strike out parts that are clearly objectionable and, if in doubt at this interlocutory stage, the matter should be left to the trial judge.

23.  Given that documents in form of written tenancy agreements of the TP tenancies had been disclosed in plaintiff’s 2^nd list of documents and that no application was made so far to strike them out, Mr Szeto suggested the complained parts in the witness statements concerned are admissible to support these documents to be produced at trial and/or that both their admissibility should be left to be ruled upon by the trial judge together at trial.

24.  Mr Szeto next pointed out that Mdm Wong purchased the lot with a view to let her and her family members, after expiry of all tenancies on the lot, to reside at the lot together, as they used to reside in rented property of others[4]. Mdm Wong should, he submitted, not be prevented from telling the Court her entire story how she set out to achieve her aim[5] i.e. recovering possession of the entirety of the lot from all her tenants, including progress and results of the TP tenancies.

25.  Under O.38 r.2A(a)(1), RDC, this court, Mr Szeto submitted, is not limited to considering “facts in dispute” on the pleadings and can have regard to other facts the opposite side has not admitted.

26.  These TP tenancies are, Mr Szeto submitted, relevant background matters. Due to family affinity of their holders (one TP tenancy is that of Mr Chan Ming Sing, the late husband of Mdm Fong (“the husband”), not to mention Mr Fong is her younger brother), their physical proximity (they are all houses on the lot) and their temporal proximity (their commencement dates are same or close to those of the 2 written tenancy agreements), they are, he submitted, admissible to prove that Mdm Wong and her agents had adopted a consistent approach in dealing with all her tenants on the lot and that there was no need for her/them to resort to the vitiating means in dealing with Mdm Fong and Mr Fong over the 2 houses.

27.  Mr Szeto submitted that the TP tenancy not entered into by 歐穗林 complained of and referred to in both statements of Mdm Lau was good proof of his submissions above.

28.  Mr Szeto reminded me that the weight of these relevant background evidence in terms of TP tenancies lies with that of the trial judge and he urged to me to dismiss both summonses before me and leave the entirety of all witness statements concerned to be considered or decided by the trial judge if required.

Analysis

29.  The 2 summonses are supported by one identical affirmation of Cheng Kin Pong (“Cheng”), an assistant solicitor, filed in each action on 30 Nov 2016. Mdm Wong filed her identical affirmation in each action on 28 Dec 2016 to oppose them.

30.  I have fully and carefully considered all evidence, submissions and authorities put before me.

Applicable principles

31.  First, I agree with Mr Wong that the failure to cite the correct rules of RDC in the margin of the 2 summonses is immaterial so long this court has the jurisdiction to grant the relief sought and the other side is not prejudiced: see Hong Kong Civil Procedure 2017, Vol.1 (“HKCP”), p.750, para 32/6/3, citing Premier Fashion Wears Ltd v Li Hung Chung [1994] 1 HKC 213, CA, 216D, 218G-291A, 220F.

32.  Despite his misgivings with Talent Weaving, supra, Mr Szeto agreed that it is binding on me and that this court has in any event inherent or general jurisdiction to strike out witness statements. And he never complained before me that he was prejudiced by the margin note, not to mention that Cheng’s firm had written to plaintiff’s solicitors as early as on 7 Oct 2016 informing them the grounds of striking out and referring them to HKCP, 2016 Edition, para 18/19/7, where the Court’s general jurisdiction to expunge scandalous matter in any record or proceedings is referred to.

33.  Given that Mr Wong advanced in effect only one ground of irrelevance to strike out, on this narrow ground, I am fully satisfied on the authorities and submissions before me that I have inherent and/or general jurisdiction to do so if the parts complained of are irrelevant, inadmissible and scandalous at trial.

34.  This jurisdiction is, I think, in line with the underlying objectives of the Court under O.1A, r.1, RDC, and the Court’s duty to actively manage cases under O.1A, r.4, RDC[6]. The Court’s general powers of management under O.1B, r.1(2)(j), RDC, also include that to “exclude an issue from consideration”.

35.  It is also, I think, in line with the power of the Court on exchange of witness statements under O.38, r.2A, RDC, which power shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving cost, having regard to all the circumstances including the extent to which the facts are in dispute or have been admitted, the extent to which the issues of facts are defined by the pleadings[7], and other matters.

36.  In particular, O.38, r.2A(8), RDC, makes it clear that nothing in that rule shall make admissible evidence which is otherwise inadmissible. It goes without saying that, in order to be admissible, evidence must first be relevant.

37.  At the same time, I am fully aware of such matters Mr Szeto urged me to guard against by reference of the case of Ng Yuk Pui Kelly, supra. Instead of me deciding on the 2 summonses now, the matters complained of could also, I bear in mind, be left to be ruled or decided by the trial judge at pre-trial review or trial, including left entirely intact in the witness statements concerned but to be completely disregarded by the trial judge from his consideration at trial.

TP tenancies

38.  While I have considered individual part complained of and would so rule below, I have also considered the TP tenancies complained of as a whole by Mr Wong.

39.  In a civil trial, the starting point to determine relevancy of a particular piece of evidence must, I think, be the issues defined by way of pleadings. For both actions before me, Mr Szeto agreed with Mr Wong’s succinct summary of the issues in his skeleton. They are (a) if the 2 oral tenancies had been surrendered or terminated by the 2 written tenancy agreements, or that they remains valid today; (b) if the 2 written tenancy agreements are valid contracts i.e. did Mdm Fong and Mr Fong enter into them by reason of the vitiating means; and (c) in any event, had the 2 oral tenancies expired or been terminated by alleged failure to pay rent on the part of Mdm Fong and Mr Fong, and if so, should relief against forfeiture be given to either or both of them.

40.  I remind myself that relevant factual evidence is evidence that could, or tends to, prove or disprove a fact in issue (or more than one fact in issue) directly on its own and/or indirectly together with other facts proved. Hence, if individual circumstances allow, background evidence could be relevant and admissible at trial.

41.  As was submitted by Mr Szeto, such references to TP tenancies complained of in the witness statements concerned are relevant background evidence admissible to disprove alleged adoption of vitiating means by Mdm Wong and/or her agent in their dealings with Mdm Fong and Mr Fong over the 2 houses.

42.  As the 2 actions remain to be tried, I will say no more than is necessary for reaching my decision on the 2 summonses.

43.  Having regard to all materials and submissions before me, including contents of witness statement of Mdm Fong filed in 3535 action and that of Mr Fong filed in 3538 action, I think such background evidence or evidence in the witness statements concerned that: -

(a) Mdm Wong’s motive or purpose was to recover the whole of the lot from all tenants thereon;

(b) all tenants thereon enjoyed oral tenancies from her predecessor;

(c) Mdm Lau had on Mdm Wong’s behalf made a visit in or about Jan 2013 to all her tenants on the lot to negotiate new written tenancies to replace the oral tenancies;

(d) Mdm Lau had brought along on such visit pre-filled standard form tenancy agreements signed by Mdm Wong for the purpose of such renegotiation with all her tenants;

(e) Mdm Fong also dealt with negotiation of new written tenancy agreement for and on behalf of the husband; and

(f) the husband also paid 1^st year rental and collected written tenancy agreement for and on behalf of Mdm Fong

could be evidence relevant as defined in para 40 aboveand be admissible at trial.

44.  I do not find the aforesaid plainly objectionable at this stage and take the view that they, together with such further documents disclosed by Mdm Wong lately, should be left to be considered or ruled by the trial judge at a later stage.

45.  While some of the aforesaid are not pleaded at all (e.g. those in para 43(a) above) and it is unclear if the same was admitted or denied by Mdm Fong or Mr Fong, I agreed with Mr Szeto that relevance cannot be approached too narrowly, especially at interlocutory stage.

46.  And one circumstance peculiar to these 2 actions is that they are to be tried by the same trial judge one after another. To save witness from giving evidence twice, the typical direction given by the trial judge is that the evidence adduced at one trial would be admissible in the other, and vice versa. For present purpose, I see no reason why the trial judge should decline to give such reasonable direction at pre-trial review or at trial.

47.  If such direction was given, evidence adduced in 3538 action of Mr Fong’s oral tenancy and entry to written tenancy agreement would, Mr Wong agreed, be admissible in 3535 action, and evidence adduced in 3535 action of Mdm Fong’s oral tenancy and entry to written tenancy agreement would be admissible in 3538 action. To cater for such possible direction, I have decided to keep such evidence about Mr Fong in 3535 action and the same of Mdm Fong in 3538 action.

48.  Furthermore, it is apparent to me that the negotiation of and entry into written tenancy agreements with Mdm Fong and the husband was so intertwined that I have decided that the entire context should be kept for the trial judge to consider the evidence as a whole, though a separate action was, I was told by Mr Wong, commenced by Mdm Wong to recover possession against the husband for another house on the lot (this 3^rd action was unfortunately not ordered to be tried together with the 2 actions before me).

49.  Moving on to irrelevant parts, I am firmly of the view that such details and results of negotiation of new written tenancy agreements of TP tenancies (save and excepted those of the husband, Mdm Fong and Mr Fong) are plainly objectionable and ought to be expunged from the witness statements concerned at this interlocutory stage.

50.  The foremost factor is that, of course, they are plainly irrelevant to the issues at trial, including that of disproving vitiating means Mr Szeto advanced in his submissions, even in the broad sense of relevancy I reminded myself in para 40 above.

51.  Mr Wong is, I think, plainly right in his submissions that the validity or otherwise of these new written tenancy agreements of TP tenancies (save and excepted those of the husband, Mdm Fong and Mr Fong), if any were entered into at all, is not the subject matter to be resolved at the trial of these 2 actions. Mdm Fong and Mr Fong were not party to them. Neither were they involved in the negotiations for and on behalf of the other tenants.

52.  Moreover, one thinks that the individual backgrounds and circumstances of these other tenants (save and excepted those of the husband, Mdm Fong and Mr Fong) could well differ from those of Mdm Fong or those of Mr Fong such that Mdm Wong and/or her agent had the opportunities, and/or had no choice but, to deploy the vitiating means against Mdm Fong and Mr Fong in their dealings over the 2 houses, irrespective whether they adopted a consistent approach in dealing with all tenants on the lot or not.

53.  The fact that written tenancy agreement was entered with particular TP tenancies or not entered with particular TP tenancies (such as the case with 歐穗林 singled out by Mr Szeto), one thinks, does not prove or tend to prove that vitiating means had not been deployed against Mdm Fong or Mr Fong in the case of the 2 houses.

54.  As such, they are, I think, plainly inadmissible at trial and scandalous and liable to be struck out.

55.  While it is open to me to leave the aforesaid matters intact at this stage to be decided or ruled upon by the trial judge later, I find such a course of action inconsistent with the underlying objectives of RDC and with the stated objectives of exchange of witness statement under O.38 r.2A, RDC.

56.  Such a course of action would, I think, add to the length and costs of the trial by requiring further time be spent on submissions and ruling by the trial court and/or possible further evidence to be adduced on TP tenancies.

57.  There is, I agree with Mr Wong, a real risk that the trial court would be distracted by such other evidence adduced on TP tenancies, instead of properly focusing on the negotiation of the 2 written tenancy agreements, and collection of rentals, between Mdm Wong and/or her agent on one hand and Mdm Fong (and her agent the husband) and Mr Fong on the other hand.

58.  By way of example, altogether as many as 19 paragraphs out of a total of 45 paragraphs of Mdm Lau’s 2 witness statements filed in both actions are devoted to details and results of negotiation of new written tenancy agreements on TP tenancies apart from those of the husband, Mdm Fong and Mr Fong. These occupy a major portion of the statements concerned, not to mention possible further evidence to be given on these matters at trial.

59.  All things considered, such a course of action does not, in my view, promote fair and expeditious disposal of these 2 actions. It unjustifiably adds to the costs of both parties and, in the end, that of the losing party[8].

60.  It is, in my view, procedurally uneconomical to leave these plainly objectionable matters intact in the witness statements concerned even at this stage. They should be identified and disposed of promptly so as to let the parties know promptly where they stand in their preparation of trial and also to ensure that the limited resource of the Court is used fairly among all court users.

61.  All in all, I consider it proper and appropriate to exercise my discretion to strike out or expunge such details and results of negotiation of TP tenancies entered into and sought to be entered into (save and except those of Mdm Fong, the husband and Mr Fong) in all the circumstances of these 2 actions.

Disposition

Summons in 3535 action

62.  I order that entire para 14 of the witness statement of Mdm Wong filed 18 July 2016 be struck out, and that entire para 26 to 44, and such reference to “various tenants” (to be replaced by “defendant and Mr Fong”) in para 45 of the witness statement of Mdm Lau filed 18 July 2016 be struck out, on the grounds of them being irrelevant and scandalous.

63.  I give leave to plaintiff to file and serve copy edited witness statements of Mdm Wong and of Mdm Lau both filed 18 July 2016 for their use at trial within 3 weeks from the date hereof and that there be liberty to apply.

Summons in 3538 action

64.  I order that entire para 14 of the witness statement of Mdm Wong filed 18 July 2016 be struck out, and that entire para 26 to 44, and such reference to “various tenants” (to be replaced by “defendant and Mdm Fong”) in para 45 of the witness statement of Mdm Lau filed 18 July 2016 be struck out, on the grounds of them being irrelevant and scandalous.

65.  I give leave to plaintiff to file and serve copy edited witness statements of Mdm Wong and of Mdm Lau both filed 18 July 2016 for their use at trial within 3 weeks from the date hereof and that there be liberty to apply.

Costs

Summons in 3535 action

66.  I make a costs order nisi that plaintiff shall pay defendant all costs of and incidental to the summons (including all reserved costs and with certificate for counsel), such costs are to be taxed if not agreed, and that defendant’s own costs are to be taxed in accordance with Legal Aid Regulations.

67.  The above order shall become absolute if none applies by summons within 14 days hereof to vary the same.

Summons in 3538 action

68.  I make a costs order nisi that plaintiff shall pay defendant all costs of and incidental to the summons (including all reserved costs and with certificate for counsel), such costs are to be taxed if not agreed, and that defendant’s own costs are to be taxed in accordance with Legal Aid Regulations.

69.  The above order shall become absolute if none applies by summons within 14 days hereof to vary the same.

70.  Finally, it remains for me to thank Mr Wong and Mr Szeto for their valuable assistance.