MA CHEE WOON v. CHENG ZHEN SHU AND ANOTHER

HCA 1870/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1870 OF 2013

_________________________

_________________________

_____________

D E C I S I O N

_____________

THE APPLICATION

1.  The plaintiff applies by way of Summons dated 18 March 2015 to seek leave to amend his earlier Summons issued on 10th October 2014 as per the draft attached thereto.  The draft Amended Summons sets out the plaintiff’s application for an order, inter alia, that:

(1) Leave be granted to the plaintiff and the 1st and 2nd defendants to adduce expert evidence by way of a land surveyor report in respect of the state and conditions from 1980 to 2013 and on the current state and conditions of the subject Five Lots of Land in this action, viz,:

(a) Remaining Portion of Peng Chau Lot No.378 (“Lot 378 RP”);

(b) Remaining Portion of Peng Chau Lot No.380 (“Lot 380 RP”);

(c) Section A of Peng Chau Lot No.378 (“Lot 378 SA”);

(d) Peng Chau Lot No.379 (“Lot 379”); and

(e) Section A of Peng Chau Lot No.380 (“Lot 380 SA”)

(“collectively, the Five Lots of Land”).

(2) The plaintiff’s expert shall be Mr. Ng Jor Choi (“Mr. Ng”) of TH & Associates Limited, a land surveyor.  The 1st and 2nd Defendants will nominate their land surveyor expert within 14 days from the date of the Order to be made herein;

(3) The parties shall lodge and exchange their respective land surveyor reports within 56 days from the date of the Order to be made herein;

2.  The defendants do not object to the expert directions sought on the state and conditions from 1980 to 2013 of the Five Lots of Land, but object to the expert direction as to the current state and conditions of the Five Lots of Land.  The defendants claim that as this action arose in 2013, the current state and conditions of the Five Lots of Land are irrelevant to the subject matter in dispute herein.

3.  In the premises, the only issue in dispute is whether expert evidence should be adduced with regards to “the current state and condition of the Five Lots of Land”.

4.  The parties are legally represented.[1]

THE FACTUAL BACKGROUND

5.  The brief factual background of this matter is that the plaintiff claims adverse possession of the Five Lots of Land in Peng Chau, of which the 1^st defendant is the registered owner of two lots and the 2^nd defendant the registered owner of the remaining three lots.  The ground for the adverse possession is that the plaintiff had exclusive control and possession of the Five Lots of Land since 1983 until about 2013.[2]

6.  In about May 2013, the defendants had sent some workers to enter the Five Lots of Land.  They moved two backhoes inside to wrongfully cause destruction to the Five Lots of Land.  In or about August 2013, it was found the Five Lots of Land was locked up and since then, the plaintiff had been unable to gain entry to the Five Lots of Land. In the premises, the plaintiff claims that he had been wrongfully evicted.  He asks the Court to make a declaration of his possessory title over the Five Lots of Land.[3]

7.  The defendants dispute the plaintiff’s claim.  They pleaded in the Defence and Counterclaim that they bought the Five Lots of Land in 1991 for development together with other adjoining pieces of land.[4] They dispute that the plaintiff was ever in exclusive possession of the Five Lots of Land as they had securely fenced them to prevent trespasser from entering and there is a main gate which is locked.  However, they agreed that in or about 1995, upon the plaintiff’s request, they allowed the plaintiff “to place some scrap metals in a small area of the open spaces in Lot 380RP and the plaintiff was required to seek permission and to borrow a key (“the Key”) from the 1^st and 2^nd defendants and/or their representative(s) to open the lock to the Main Gate in order to gain entry to Lot 380RP…”[5]  On this basis, the defendants pleaded that the plaintiff was a mere licensee of the “small area of the open spaces in Lot 380RP”  They planned to develop the Five Lots of Land in 1997/1998 and they “requested the plaintiff to remove the tools and scrap metals from the Five Lots of Land to facilitate such development…”[6]  The plaintiff did not remove the tools and the scrap metals and the defendants took over the Five Lots of Land and locked the main gate with a lock.  Hence this litigation.

THE ISSUES IN DISPUTE

8.  According to the plaintiff’s submissions, the issues in dispute are:

(1) Whether the plaintiff has possessed the Five Lots of Land since 1983.

(2) The historical land use of the Five Lots of Land from early 1980s to 2014, including whether there were structures, iron wires and fences, personal chattels, or plants, flowers and fruits on the Five Lots of Land continuously since early 1980s as claimed by the plaintiff.

(3) Damages to be awarded to the plaintiff, if any, for trespass, wrongful acts of unlawful nuisance and interference of the Five Lots of Land by the 1st and/or 2nd defendants.[7]

9.  According to the defendants, the issues in dispute are:

(1) Whether the plaintiff had occupied the Five Lots of Land as a trespasser with exclusive possession/control during the relevant period (i.e. 1983 to mid-2013) or whether he was simply a licensee of the defendants.

(2) The plaintiff commenced the present action in October 2013.  It is the plaintiff case that he started to occupy the Five Lots of Land in about 1983 and continued occupying the land until the defendants prevented him from entering in or about mid-2013.  In other words, the plaintiff’s claim is based on the 30 odd years of adverse possession of the Five Lots of Land from 1983 to 2013 which he claimed to have satisfied the requirement of 20 years under the old sections 7 and 17 of the Limitation Ordinance Cap 347.

(3) Further, it was never in dispute that the defendants took possession of the Five Lots of Land (and the Area) in or about April 2013 by refusing the plaintiff from entering.[8]

THE RELEVANT LEGAL PRINCIPLES

10.  The relevant legal principles for the resolution of the disputes between the parties are:

(1) Under Order 38 rule 36 of RHC, unless the parties agree, no expert evidence may be adduced at the trial without leave of court.  See Fung Chun Man v Hospital Authority (unreported, HCPI 1113/2006 by Bharwaney J on 24 June 2011);

(2) The court is concerned with proper directions for expert evidence in order not to cause delay and waste of expenses.  Faith Bright Development Limited v Ng Kwok Kuen [2010] 5 HKLRD 425 at 430-431;

(3) Where the proposed expert evidence is plainly inadmissible or irrelevant, the court will refuse admission of such evidence.  If the court cannot form a clear view on the relevance or the evidence is clearly relevant, it should grant leave for the evidence to be adduced at the trial.  The evidence is relevant if it is helpful to the court in arriving at its decision on one or more of the issues to be resolved.  Wong Hoi Fung v American International Assurance Company (Bermuda) Limited & Shrila Chan [2002] 3 HKLRD 507;

(4) When there is a dispute over whether expert evidence should be adduced at trial, the court has to examine the pleadings to determine whether the proposed expert evidence is required in the pleaded case.  Yeung Ga Wai v Lau Ming Shum (unreported, HCA798/2004, Reg. Lung 19 July 2012; the burden of establishing relevance is on the applicant, at §7 of Majorette Hong Kong Ltd v Fullmore Corporation Ltd (unreported, HCA1583/2008, Reg. Lung 23 June 2010);

(5) Expert evidence must be confined to the live issues of dispute between the parties, which must be sought from the pleadings China Gold Finance Limited v CIL Holdings Limited & Ors (unreported, HCA2900/2001, 25 September 2012, at para. 17-18).  See also §21 of the Court of Final Appeal’s Decision in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 per the CJ.)

DISCUSSION

11.  There seems to be no dispute that the real issue in dispute is whether the plaintiff had adversely possessed the Five Lots of Land since 1983; that the plaintiff was evicted by the defendants from the Five Lots of Land in mid-2013 and that if the plaintiff were legally entitled to the Five Lots of Land, damages for the defendants’ eviction of him therefrom.

12.  As the defendants have no objection to expert evidence being given on the conditions and state of the Five Lots of Land as from 1983 to 2013, expert evidence should be allowed for this period.  This will support the plaintiff’s argument that he was the trespasser during this period of time before his eviction by the defendants.

13.  The crucial issue in dispute is “the current state and condition of the Five Lots of Land”, which the plaintiff submits are important “to help to establish whether there was such use as claimed by the plaintiff, by comparing the current state and condition of the Five Lots of Land with historical photos and survey sheets.”[9]

14.  The plaintiff also submits that “By comparing the current state and condition, including current structures, iron wires and fences, personal chattels stored therein and plants, flower and fruits with the historical photos and survey sheets, the experts are able to assist the Court by giving opinions on the historical land use matching with the current state of the land as inspected in their visits to the Five Lots of Land.  The experts are in the proper position to match and identify the current structures, iron wires and fences, personal chattels stored therein and plants, flower and fruits, and to determine whether they are the same as the old ones as depicted in the photos and survey sheets, to corroborate the plaintiff’s evidence.  The experts’ opinion will in turn assist the Court to determine whether there has been any physical use and possession since 1983 and the nature thereof.”[10]

15.  However, the plaintiff has pleaded his right as from 1983 to present.  It is admitted by the defendants that they had evicted him in 2013.  If the plaintiff can prove adverse possession as from 1983 to 2013, he should be entitled to claim damages for being unlawfully evicted by the defendants.  The plaintiff cannot explain why the conditions and state of the Five Lots of Land after 2013 are relevant for the trial, the burden being on the plaintiff.  See Majorette Hong Kong Ltd.

16.  The plaintiff refers to my Decision in Pak Ko Batteries Factory Limited & Ors v New Leader Battery Industry Limited (unreported, HCA 1139/2007, 14 January 2014) at §10.  In this case, the plaintiff and the defendant agreed that there should be expert evidence on the legal effects of the decisions made by the courts and the administrative office in PRC in relation to a patent registration.  The dispute between the parties was over whether the defendant had libeled against the plaintiff when it published a statement saying that the plaintiff had infringed its patent, which was invalidated by the court but subsequently revived by the administrative office.  The Court had to choose which set of directions on expert evidence should be adopted.  At paragraph 11 of the Decision, I referred to the case of China Gold Finance Limited v CIL Holdings Limited & Ors (HCA 2900/2001) and stressed on the significance of real issue in dispute.  So, the question boils down to what the real issue in dispute should be.

17.  In determining the parameter of the disputes as this case, the real issue in dispute lies upon what proof the plaintiff he is up to so that he can succeed in his claims.  I put this question to Miss Poon.  If the plaintiff can prove, on the balance of probabilities, he was in adverse possession of the Five Lots of Land as from 1983 until 2013 when he was evicted by the defendants, will he succeed in his claims?  The answer, as she admits, must be yes.

18.  The plaintiff then raises the issue that by comparing the present state of the Five Lots of Land, it will throw light on the area of the possession and support the plaintiff’s case in terms of credibility of his evidence.  But this cannot explain why the Court will require expert evidence after 2013 by which time the defendants had already evicted the plaintiff from the land.

19.  I agree with the defendants that the current state of the Five Lots of Land bears no relevance at trial.  Expert evidence on this area will not assist the court to come to a fair resolution of the disputes between the parties.  It would therefore waste costs and time to adduce such expert evidence at trial.

20.  It is only when the court finds that the plaintiff has reasons to adduce the proposed expert evidence, which is disputed by the defendants, saying that they do not want to rely upon the expert evidence as proposed by the plaintiff, then the Court would consider giving leave to the plaintiff to adduce the expert evidence, subject to the defendants’ right to respond to it. If the plaintiff cannot even show that the proposed expert evidence is relevant to the plaintiff’s case, the court should not make an order to allow the plaintiff to adduce such expert evidence because to do so would cause the defendants to spend time and costs on the expert evidence unnecessarily and would also waste the court’s time at trial.

21.  The plaintiff’s summons is therefore dismissed.  As the defendants have no objection to expert evidence on the areas of the occupation and the change of the use of the Five Lots of Land as from 1980 to 2013, directions should be given to give leave to the plaintiff to adduce expert evidence on these areas of disputed issues.  This will be dealt with in the Case Management Conference after determination of the plaintiff’s summons herein.

COSTS AND ORDER

22.  As to the costs of this application, I bear in mind that the plaintiff is legally aided and that immediate payment of costs should not be ordered.  I shall simply make the assessment of the costs under O.62, r.9A on the quantum, which is assessed at $100,000 (including counsel’s certificate) to be paid by the plaintiff to the defendants, such costs should be paid in any event.  The plaintiff’s own costs shall be taxed in according with Legal Aid Regulations.

23.  The Court shall now make an order in terms as follows:

(1) The plaintiff’s summons be dismissed;

(2) Costs are as per paragraph 22 above.

CASE MANAGEMENT CONFERENCE

24.  The Court shall now make the following directions:

(1) Leave to the plaintiff to set down within 42 days commencing on 21 July 2015 for a 10-day trial before a bilingual judge alone in the fixture list.  There be a pre-trial review before the trial judge for 30 minutes on a date 12 weeks before trial.  Parties shall raise the issues of related actions, recusal of the trial judge, if any, and confirm the length of the trial by counsel in charge at the pre-trial review.  At the setting down the plaintiff shall produce a letter to the Listing Clerk confirming that there are no outstanding interlocutory applications.  Upon setting down, all interlocutory applications shall be listed to be heard by the Registrar prior to the Pre-trial Review;

(2) By consent, leave be given to the parties to adduce expert evidence by way of a land surveyor report in respect of the state and conditions from 1980 to 2013 of the Five Lots of Land; the plaintiff’s expert being Mr. Ng Jor Choi of T. H. Associates Ltd. and the defendants shall give the expert’s name to  the plaintiff’s solicitors within 28 days from the date hereof;

(3) The parties shall exchange their expert reports within 56 days from the date hereof;

(4) The experts shall hold a without prejudice meeting within 28 days thereafter to prepare a joint statement, setting out the issues in common and the issues in dispute, with the reasons for their views;

(5) Liberty to apply;

(6) Costs of this Case Management Conference be in the cause (30 minutes).  The plaintiff’s costs be taxed in accordance with the Legal Aid Regulations.