TANG TAK SUM AND ANOTHER v. TANG KAI FONG

HCA 2089/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2089 OF 2009

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REASONS FOR DECISION

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1. This action concerns a plot of land in Tuen Mun, New Territories which used to be owned by Tang Cheung Mou. The plaintiffs and the defendant are respectively members of different fongs of the Tang family. The plaintiffs commenced the present action for, among other things, an account from the defendant. The defendant resists; and counterclaims for rights over the land to the exclusion of the plaintiffs.

2. Much of the historical background of the dealings in connection with the land and the evolution of the alleged rights of the parties in the land are disputed.  For the purpose of this application, there is no need to enter into the allegations in detail.  Trial has been fixed to commence on 21 March 2013 with 5 days reserved.  For that, an expert report on Chinese law and customs has been filed by the plaintiffs pursuant to the leave of the court.  This is the application by the plaintiffs to adduce the supplemental report of the same expert.  At the end of the hearing, I gave the plaintiffs leave to do so.  As indicated, I now explain why.

3. By consent, the master gave leave to the plaintiffs to adduce expert evidence from Professor Chang Wejen of Academia Sinica, Taipei on Chinese law and customs on 30 September 2011.  In consenting to the order, the defendant made clear on the order the following stance:

(1)  The defendant makes no admission to the contents of the expert evidence to be adduced by the plaintiffs notwithstanding the defendant has no expert evidence of his own.

(2)  The defendant makes no admission that expert evidence is necessary for the disposal of the proceedings.

The order followed by setting out 10 issues on which the plaintiffs had leave to adduce expert evidence on.

4. Proceedings have since been stayed for mediation.  Mediation failed. Pursuant to further direction, the plaintiffs eventually served the expert report of Professor Chang on 13 April 2012.

5. The expert report filed proves to be inadequate for 2 reasons.  First it was dated 18 January 2010 and was therefore obtained well before the leave and direction to do so in September 2011.  Second, and not surprisingly, it does not cover all of the 10 issues set out in the direction.  It is common ground that it covers the first 4 issues so set out.

6. However, nothing has been done until, according to the plaintiffs’ solicitors, the discovery of the inadequacy of Professor Chang’s report in September 2012.  The expert was approached, who came up with the supplemental report dated 1 December 2012.  It is common ground that the supplemental report now covers most, if not all, of the remaining issues set out in the court’s direction in September 2011.

7. By summons dated 6 December 2013, the plaintiffs sought, among other things, leave to adduce the supplemental expert report.  It was heard before Deputy High Court Judge Lok at the pre-trial review on 13 December 2012.  The learned judge gave leave to the parties to file affirmations and adjourned the application for substantive argument.  Hence this hearing.

8. Essentially, this was an oversight on the part of the legal team of the plaintiffs in that they adduced the expert report prepared in advance and without regard to the whole list of issues set out by the court when leave to adduce such evidence was given.  The plaintiffs’ solicitors did not seek to deny that.  The oversight was compounded by the delay in discovering the problem.

9. As to the time taken by the expert to come up with the supplemental report once the problem was discovered, the explanation was that the expert was pre-occupied by the reconstruction of his residence which was severely damaged when Typhoon Saola hit Taiwan in August 2012.

10. Mr Chong, with Mr Tam, for the plaintiffs and Mr Shum for the defendant cited numerous authorities which helped illustrate the court’s attitude and approach to late interlocutory application that bears the consequence of jeopardising the milestone dates, trial date being one of them. It suffices for me to say that each case turns on its own circumstances.  No factor is considered in isolation.  All factors considered, the court has eventually to ensure the just resolution of the dispute between the parties.  This in my view is enshrined in both O.1A of the Rules and the authorities cited.

11. The defendant is not to blame for complaining about the late application, notwithstanding the explanation given on behalf of the plaintiffs. In opposing the application, Mr Shum suggested that the supplemental expert report also caused those instructing him to re-consider whether to adduce the defendant’s own expert evidence.  But if he sought to do that, the integrity of the timetable, in particular the trial date, would be jeopardised.  That, according to Mr Shum, became all the more relevant consideration when deciding whether to give the plaintiffs leave to adduce the supplemental report.

12. At least since the new court rules have come in place since 2009, the parties are expected to be proactive about case management.  As far as expert evidence is concerned, the parties have a duty to consider and to contemplate if expert evidence should be adduced.  If yes, an application should be made pursuant to O.38, r.36 of the Rules of the High Court.

13. The test for that is trite, namely that the expert evidence had to be relevant, necessary and of probative value in assisting the court to resolve the parties’ dispute.  In the present case, the plaintiffs initiated the consideration of expert evidence on Chinese law and customs, as that was raised specifically on pleading.  The defendant could have opposed; but decided to consent to leave.

14. It was suggested that the defendant adopted a wait and see approach.  However the qualification for the defendant’s consent as stated in the consent order in September 2011 (above) does not clearly, if indeed, reflect that.  In any event, the questions of relevance and necessity of expert evidence normally do not depend on what the expert may have to say in due course.

15. Mr Shum explained that that his client might nevertheless have to rely on expert evidence on Chinese law and customs, because the court might not accept his primary stance that such evidence is irrelevant and unnecessary.  In that case, the defendant should nevertheless have obtained leave to adduce his own expert evidence at the same time as the plaintiffs sought theirs.

16. By indicating that such expert evidence was unnecessary; and therefore would have no expert evidence of his own when consenting to the leave to the plaintiffs to adduce such evidence, the defendant has made his stance clear.  If the defendant now decides to adduce expert evidence on Chinese law and customs, he would have to apply on the basis of change of mind or circumstances.

17. Has there been change in circumstances?  I think not.  As mentioned, it is common ground that the supplemental expert report covers what should have been included in the expert report already filed.  It never seeks to go beyond the issues set out in the direction and the leave to adduce such evidence back in September 2011.  The consideration of the relevance of and necessity for such evidence in respect of those issues, which was and still in dispute, has not changed.

18. I therefore do not agree with the suggestion that the supplemental expert report sought to be adduced by the plaintiffs has brought about any change in circumstances that should cause the defendant to change his assessment of the relevance of and necessity for expert evidence in the present case.

19. In conclusion, I gave leave to the plaintiffs to adduce the supplemental expert report.  That has to happen by 15 February 2013.  I indicated that if the defendant was minded to apply now for leave to adduce expert evidence, I would hear it; but his client had to consider the above reasoning (which was discussed during the hearing) and the time frame before the trial.  Mr Shum must be acutely aware of all those; and indicated that his client would not seek to do so in this hearing.

20. The need for the supplemental expert report compounded with the late application for adducing it put the plaintiffs in rather poor light.  The fact was that the defendant was entitled to expect to deal with no more expert evidence than the expert report already filed especially after the plaintiffs have indicated readiness to set down the case for trial on such basis.  The present application was taken out some 7 months after leave to set down.  When the plaintiffs came before Deputy High Court Judge Lok for such leave, they saw fit to do so without any affidavit to explain.  The defendant’s opposition was not utterly unreasonable; and it was the indulgence of the court that the plaintiffs sought, whether the defendant strongly opposed or not.  I therefore exercised discretion to order costs of the application against the plaintiffs.