HAU KWAI CHOI AND ANOTHER v. HAU WAI KEUNG

CACV 179/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2014

(ON APPEAL FROM DCCJ NO 4285 OF 2012)

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REASONS FOR JUDGMENT

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Hon Poon J (giving the Reasons for Judgment of the Court) :

A. INTRODUCTION

1.  This is the defendant’s appeal against the order of Deputy District Judge Wu dated 23 April 2014 refusing the defendant’s application to file two witness statements, one from Mr Hau Wai Kin (“Mr Hau” and “the 2^nd Witness Statement”) and the other from Mr Kuk Kong Sang (“Mr Kuk” and “Mr Kuk’s Witness Statement”), and to amend the amended defence and counterclaim (“ADC”).

2.  On 14 January 2015, after hearing the parties, we allowed the appeal to the limited extent that the defendant be given leave to adduce the 2^nd Witness Statement and to amend §§5 & 7 of the ADC.  We dismissed the remainder of the appeal.  We further set aside the Judge’s costs order and replaced it with an order that there shall be no order as to costs.  We also made no order as to costs for the costs of the appeal.

3.  These are the reasons for our judgment.

BACKGROUND

4.  In her reasons for decision dated 24 April 2014, the learned Judge set out the parties’ respective case,[1] the agreed list of issues[2] and the circumstances leading to the defendant’s application before her.[3] For present purposes, we would gratefully adopt her summary without repeating it here.

5.  We would like to add that by an order dated 24 April 2014, the Judge dismissed the defendant’s application for leave to appeal to the Court of Appeal but adjourned the trial with liberty to restore and reserved the costs of the defendant’s application for stay and adjournment for argument.  Pursuant to an order dated 19 August 2014, this Court, differently constituted, gave the defendant leave to appeal.

APPLICABLE PRINCIPLES

6.  The Judge’s order under appeal is a case management decision involving the exercise of her discretion as the trial judge of the action.  As this Court has repeatedly said, case management decisions are pre-eminently within the trial judge’s province.  And the Court of Appeal will interfere only in wholly exceptionally circumstances.  In dealing with a case management decision in the context of an application for leave to appeal, Kwan JA had this to say in Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 :

“ 31. It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the Trial Judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a ‘very high hurdle’ and must show that the Judge ‘has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task’[4], or if the Judge ‘erred in principle or the order was irrational having regard to the issues that had to be resolved’[5]. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible[6].”

THE PRESENT CASE

7.  The defendant’s application below was filed on 22 April 2014, just one day before the commencement of the trial.  It is undoubtedly a very late application.  More importantly, the application, if allowed, would result in an inevitable adjournment thus derailing the trial, which is a milestone date under Order 25, rule 1B(8), Rules of the High Court, Cap 4A.  The court will not accede to the application unless there are exceptional circumstances justifying the variation : rule 1B(3).  The burden therefore rests squarely on the defendant to explain the delay and demonstrate the existence of exceptional circumstances justifying the late application.

8.  We first consider the application to adduce the two witness statements.

9.  Mr Hau Wai Kin is one of the brothers of the defendant.  He was supposedly a witness to be called by the plaintiff.  His witness statement was filed on 10 September 2013 (“the 1^st Witness Statement”) in which he gave evidence to support the plaintiff’s case.

10.  However, according to the defendant, Mr Hau approached him in early April 2014 and told him that the contents of the 1^st Witness Statement were in fact false.  He then gave the 2^nd Witness Statement.  There, he supported the defendant’s case and raised some new matters against the plaintiff.  He explained the change of his evidence thus :

“ In August of 2013, I have signed a document for my Father. At that time my Father called me and said the content of this document is to prove which year the old house has been reconstructed. He instructed me to immediately sign the document upon receipt and send it back to Hong Kong to him. Around the end of August 2013, my first younger sister Hau Wai Yan and her husband Jimmy flew from Germany to the United Kingdom with the document I signed back in August 2013 and asked me angrily why did I lie to assist my Father. At that time I told them that I did not read the content of the document because it was all in English and I don’t know English. In addition it was a request made by Father so I listened to him and signed it. Afterwards my first younger sister Hau Wai Yan translated the content of the document to me in Chinese. After Hau Wai Yan explained the content of the document to me, I was shocked because what my Father said about my second younger brother (Hau Wai Keung) is the total opposite. The truth is my Father is that type of person, my Father likes to gamble and he was the one who sought my second younger brother for help because my second younger brother has always been financially stable.”

11.  The Judge was not satisfied with Mr Hau’s explanation.  She said :

“ 27. But Hau Wai Kin has not taken any prompt step to correct his evidence upon discovery of its falsity since August 2013.  He has plenty of time to do so.  He could have done much earlier on what he seeks to do now, namely, to file and serve a new witness statement stating that he was misled by the 1^st named Plaintiff, setting forth the events leading to the false evidence being given by him previously and finally deposing the truth, but he has chosen to withhold the correction until this very moment before the Trial.  This being the case, he should not be allowed to give evidence contained in his new witness statement when to do so would inevitably delay the Trial.  The defendant is bound by the conduct of Hau Wai Kin.  The defendant cannot distant himself from Hau Wai Kin and claims that the delay is not caused by the defendant’s fault bearing in mind that Hau Wai Kin now intends to give evidence on behalf of the defendant as his witness.”

12.  With respect, the Judge made two fundamental errors.

13.  First, she erred when she said that because Mr Hau had failed to explain why he did not take any step to correct his evidence upon discovery of the falsity in the 1^st Witness Statement and had chosen to withhold the correction until shortly before the trial, he should not be allowed to give evidence as contained in the 2^nd Witness Statement, which would inevitably delay the trial.  On a closer analysis, there are two points in this part of the Judge’s reasoning :

(a) Mr Hau should not be allowed to give evidence as per the 2^nd Witness Statement because of his conduct.

(b) If he were allowed to give evidence as per the 2^nd Witness Statement, that would delay the trial.

While the Judge was correct in the second point, she erred in the first point.  The matter can be tested in this way. Suppose there is no application to adduce the 2^nd Witness Statement.  The plaintiff calls Mr Hau and in the course of his oral testimony, he changes his evidence and gives evidence as per the contents of the 2^nd Witness Statement.  While he will be subject to severe cross‑examination and heavy criticism in counsel’s submissions, the court cannot disallow him the opportunity to give evidence as per the contents of the 2^nd Witness Statement which, according to him, is the truth, simply because he changes his evidence in the course of his oral testimony.  The position does not change merely because he sought to change his evidence shortly before the trial.

14.  Second, the Judge erred when she said that the defendant is bound by Mr Hau’s conduct because he intended to call him.  On the evidence presently available, the defendant was not aware of the alleged falsity of the 1^st Witness Statement until Mr Hau approached him in April 2014.  Nor was he involved in any way as to when and how Mr Hau discovered the alleged falsity in the 1^st Witness Statement and why he did not take any prompt step to correct his evidence upon discovery of the falsity.  Thus there is no proper basis to associate Mr Hau’s conduct with the defendant or penalize him when he must have been surprised by Mr Hau’s conduct as much as the plaintiff.

15.  When the matter is looked in the round, we are satisfied that the defendant has shown exceptional circumstances justifying the late application to adduce the 2^nd Witness Statement.  The Judge plainly erred when she ruled otherwise.

16.  We next turn to Mr Kuk’s Witness Statement.  Mr Kuk is a brother–in-law of the defendant.  The defendant said Mr Kuk had expressed his eagerness to tell the truth and his intention to join as witness.  However as rightly pointed out by the Judge, the defendant had failed to explain the delay.  There is no explanation whatsoever why Mr Kuk did not give a witness statement until shortly before trial.  We agree with the Judge that the defendant had not shown any exceptional circumstances justifying the application to adduce Mr Kuk’s Witness Statement.

17.  Finally, we come to the application to amend the ADC.

18.  The proposed amendments in §§5 & 7 arose out of what Mr Hau now said in the 2^nd Witness Statement.  In light of our conclusion on the 2^nd Witness Statement, these proposed amendments should be allowed.

19.  We, however, agree with the Judge that the rest of the proposed amendments sought to add a new cause of action on adverse possession and that they did not arise from the 2^nd Witness Statement or Mr Kuk’s Witness Statement.  Absent any explanation as to why it was only raised one day before trial and any proper evidence in support of such a plea, the application must fail.  At the hearing before us, Mr Chong, for the defendant, submitted that the new cause of action arose out of the witness statement of the 1^st plaintiff.  But that witness statement was filed some time ago.  If it really supports the new cause of action based on adverse possession, then it must have become apparent once it was filed.  The defendant then ought to have taken out the application for amendment there and then.  Absent any explanation, the inordinate delay is inexcusable.

CONCLUSION

20.  For the above reasons, we allowed the defendant’s appeal to the limited extent that the defendant be give leave to adduce the 2^nd Witness Statement and to amend §§5 & 7 of the ADC.  We dismissed the remainder of the appeal.

21.  On the costs below, the Judge ordered the defendant to pay the plaintiff the costs of the application summarily assessed at HK$38,108.00.  In light of how we disposed of the appeal, we think there should be no order as to costs below.  We therefore set aside the Judge’s costs order and replaced it with an order that there shall be no order as to costs below.  For the same reason, we made no order as to the costs on the costs of the appeal.