YIP KWOK SUN v. POLY STYLE LTD

DCMP 2891/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2891 OF 2011

--------------------------------

--------------------------------

---------------------------

DECISION

---------------------------

1.  This is an appeal brought by the plaintiff against the Order of Master A Yim (“the master”) made on 12 August 2013 dismissing the plaintiff’s application under summons dated 31 July 2013 to vary an earlier Order made by her on 11 July 2013. In the earlier Order, she had dismissed an application by the plaintiff to file a new expert report.

BACKGROUND

2.  This action relates to an adverse possession claim made by the plaintiff against the defendant in respect of a piece of land known as Lot No. 1275 in D.D. 79, Ta Kwu Ling, New Territories (“the Land”).

3.  The plaintiff has been granted legal aid.  The Director of Legal Aid (“DLA”) first assigned Mr Yeung Yuen Bun, Benny of Messrs Cheng Yeung & Co (“CY”) to act for him on 28 September 2010.

4.  Following the assignment of CY, the plaintiff commenced the present proceedings against the defendant on 24 November 2011 by originating summons claiming adverse possession of part of the Land.  The defendant is the registered owner of the Land.  A number of affirmations have been filed by the plaintiff and on his behalf in support of his claim.  This included one by the plaintiff himself dated 24 November 2011 detailing his alleged possession of the Land.  The defendant opposed the application.  Eventually, the plaintiff accepted that there were factual disputes existed in the case and agreed to have the proceedings turned into an action by writ.  It was so ordered by the court by consent on 26 May 2012.

5.  The action then proceeded with the filing of pleadings, discovery and exchange of witness statements.  The Amended Statement of Claim dated 12 October 2012 was settled by the counsel originally assigned by the DLA (who has since left private practice and joined the judiciary).  The Agreed Statement of Issue in Dispute was filed on 23 May 2013 pursuant to the Order of Master KK Pang made on 8 March 2013.

The orders and directions on expert evidence

6.  By a Consent Order dated 24 January 2013 (“the Consent Order”), the parties agreed to the following:-

“1. Paragraph 2 of the Consent Summons filed on the 10^th day of December 2012 be replaced by the following:-

1.1 “The Plaintiff do lodge with the Court the Survey Report prepared by KEL and Surveying Planning & Gis Company Limited dated January 2011 in respect of the issues establishing the boundaries of Lot No 1275 in D.D. 79 pleaded in paragraphs 1 and 4 and the matters particularised in paragraph 5 of the Amended Statement of Claim filed on the 12th day of October 2012 within 7 days from the date of an Order to be made herein.”;

2. Paragraph 3 of the Consent Summons filed on the 10^th day of December 2012 be replaced by the following:-

2.1 “The defendant do lodge with the Court the Survey Report prepared by Ms. Chan Yuen Ki, ALS, MHKIS, MRICS, RPS(LS), Authorised Land Surveyor dated 3 August 2012, on issues related to the stated of the alleged exclusive occupation of the land by the plaintiff since 1982, as disputed and pleaded in paragraphs 3 to 6 of the Amended Defence filed on the 26^th day of October 2012, within 7 days from the date of an Order to be made herein.”;

3. The parties do exchangethe Survey Reportprepared by KEland Surveying Planning & GIS Company Limited in January2011 for the plaintiff and the survey report prepared by Ms Chan Yuen Ki, ALS, MHKIS, MRICS,RPS(LS), Authorised Land Surveyor dated 3 August 2012 for the Defendant within 7 days from the date hereof;

4. The parties do file the experts’ joint statement of the parts of their reports on which they agree,and those parts on which they disagree,and the reasons for their disagreement within 63 days from the date of exchange mentioned in paragraph 3 hereinabove;

5. Upon the Court satisfying paragraph 4 above, leave be granted to the parties to adduce the reports mentioned in paragraphs 1 and 2 above as expert evidence in this action.  The parties do comply with Order 38 rules 37A – 37C of the Rules of District Court, Cap336 and shall furnish a copy of the Code of Conduct for Expert Witness to each of the experts and thereafter the said reports be filed together with the Statement of Truth within the period so ordered by the Court.”

7.  In pursuance of the Consent Order:-

(a) the survey report of KEL and Surveying Planning & GIS Co Ltd dated January 2011 as prepared by Mr Ching Siu Tong (“Mr Ching”) was filed on 31 January 2013 on behalf of the plaintiff (“Mr Ching’s Report”);

(b) the survey report of Ms Chan Yuen Ki (“Ms Chan”) was filed on 31 January 2013 on behalf of the defendant (“Ms Chan’s Report”); and

(c) the Experts’ Joint Statement as signed by Mr Ching and Ms Chan was filed on 5 April 2013 (“the Experts’ Joint Statement”).

8.  There has been a re-assignment of the case from CY to Mr Li Man Pong of Messrs KY Lo & Co (“KYL”) on 10 June 2013.  There has also been a change of counsel and Mr Valentine Yim (who has appeared on behalf of the plaintiff both in the hearing before me and the hearing before the master) has been assigned in place of the originally assigned counsel.

9.  Shortly before the Case Management Conference (“CMC”) on 11 July 2013, the plaintiff took out a summons dated 3 July 2013 (“the 3 July Summons”) seeking the following orders:-

“1. The Plaintiff do have leave to file and serve on the Defendant within 63 days from the date of an Order to be made herein a survey report by an Authorised Land Surveyor in place of the survey report made in January 2011 by the then Authorised Land Surveyor for the plaintiff, Mr Ching Siu Tong of Keland Surveying, Planning & GIS Co. Ltd.

2. The parties do file the experts' joint statement of the parts of their reports on which they agree, and those parts on which they disagree, and the reasons for their disagreement within 63 days from the date of exchange mentioned in paragraph 1 hereinabove;

3. Upon the Court satisfying paragraph 2 above, leave be granted to the parties to adduce the report mentioned in paragraph 1 above and the survey report prepared by Ms. Chan Yuen Ki, Authorised Land Surveyor dated3^rd August 2012 for the Defendant as expert evidence in this action.

4. Costs of this application be to the Defendant in any event.”

10.  The plaintiff’s application was supported by the affidavit of Tam Kam Tong (“Tam”), a solicitor of KYL, filed on 4 July 2013 (“Tam’s affidavit”).

11.  After hearing arguments from both sides, the master dismissed the plaintiff’s application and made the following Orders on 11 July 2013 (“the 11 July Order”):-

“1. The plaintiff’s applicationforleavetofilenewexpertreportis refused.

2. The parties are to address the court as to whether it is necessary for the respective experts of the parties to give oral evidence at trial during the next CMC. Where appropriate, a short statement setting out in bullet point those issues relating to the expert evidence that require oral evidence be filed and served on or before 1 August 2013.

3. Parties are directed to take out all interlocutory application, including leave to file supplemental expert joint expert statement, on or before 11 September 2013”

12.  In pursuance of the 11 July Order, both the plaintiff and the defendant have filed the short statements on expert evidence.  The plaintiff’ short statement was filed on 1 August 2013 (“the plaintiff’s short statement”) while the defendant’s short statement was also filed on the same day (“the defendant’s short statement”). 

13.  However, before the filing of the plaintiff’s short statement, the plaintiff took out another summons dated 31 July 2013 (“the 31 July Summons”), which was only served on the defendant’s solicitors on 8 August 2013.  By the 31 July Summons, the plaintiff sought a variation of §§1 and 3 of the 11 July Order.  The Orders sought are exactly in the same term as the 3 July Summons which are set out below for the sake of completeness:-

“1. The Order made by Master A. Yim on 11 July 2013 be varied to the extent that paragraphs 1 and 3 thereof be replaced by the following respectively:-

1. (a) The Plaintiff do have leave to file and serve on the Defendant within 63 days from the date of this Order a survey report by an Authorised Land Surveyor in place of the survey report made in January 2011 by the then Authorised Land Surveyor for the plaintiff, Mr Ching Siu Tong of KEland Surveying, Planning & GIS Co. Ltd.

(b) The parties do file an experts’ joint statement, in place of the experts’ joint statement filed herein on 5 April 2013, of the parts of their reports on which they agree, and those parts on which they disagree, and the reasons for their disagreement within 63 days from the date of exchange referred to in sub-paragraph (a) hereof.

(c) Upon the court satisfying sub-paragraph (b) hereof, leave be granted to the parties to adduce the report referred to in sub-paragraph (a) hereof and the survey report by Ms Chan Yuen Ki, Authorised Land Surveyor dated 3 August 2012 as expert evidence in the trial of this action.

3.  Parties are directed to take out all interlocutory applications within 42 days from the date of the filing of the experts' joint statement referred to in paragraph l (b) hereof.”   

14.  The plaintiff’s application under the 31 July Summons was supported by Tam’s 2^nd affidavit filed on 9 August 2013.

15.  After hearing arguments from both sides, the master dismissed the plaintiff’s application on 12 August 2013 (“the 12 August Order”).

16.  By a Notice of Appeal filed on 26 August 2013, the plaintiff now appeals against the 12 August Order made by the master and seeks to reinstate the order sought under the 31 July Summons.

The plaintiff’s case

17.  The plaintiff’s main contention on the appeal is that due to no fault of his own, his appointed expert Mr Ching has been refusing to co-operate with his present assigned solicitors and/or to provide further assistance in this case.  Thus, according to the plaintiff, it is only just and fair that he should be given the opportunity to change his expert even at this late stage.

18.  In order to understand the plaintiff’s arguments, it is necessary to go into the history of the exchange between Mr Ching and the plaintiff’s previous and present assigned solicitors.

19.  When Mr Ching was first instructed by CY to act as expert for the plaintiff, it was made under the cover of a letter dated 21 December 2010 issued by CY to Mr Ching.  The subject heading of the letter was: “Re: Adverse possession The Remaining Portions of Lot Nos 1275 and 1268 in D.D. 79” [emphasis added].  In the letter itself, Mr Ching was instructed to “carry out the topographical and land boundary survey and to prepare a survey report in respect of the Remaining Portion of Lot No. 1275 in D.D. 79 (“Lot 1275”) for the above-mentioned purpose.” [emphasis added]

20.  In Mr Ching’s Report dated January 2011, the purpose of the report and its conclusion was respectively stated by him as follows:-

“1. Purpose

The purpose of this survey was to re-establish the boundaries of Lot 1275 RP in D.D. 79, Ng Chow Road, North.

9. Conclusion

The boundary evidence was found consistent in general.  No major inconsistencies were spotted upon correlation among different records when comparing to recent field survey.  In light of this, the boundaries of the subject lot were redefined, in general; by following the existing occupational features; eg field bunds, retaining walls, by adopting the boundary data of the adjoining lot previously redefined and by following the graphical depiction in the Lot Index Plan with respect to other old survey records, eg DD sheet.”

21.  After the case was assigned to KYL in June 2013 and having studied the documents, the plaintiff’s legal team formed the view that Mr Ching’s Report did not address one of the central issues of this action, namely whether the plaintiff has been in factual possession of part of Lot 1275 since about 1982 (“the Possession Issue”).         

22.  A conference therefore was arranged between the plaintiff, the solicitors, the counsel and the expert on 27 June 2013. According to Tam’s affidavit, Mr Ching revealed at the conference that the instructions given to him by CY when he was first instructed were to carry out a topographical and land boundary survey and to prepare a survey report about Lot 1275 RP in D.D. 79.  He also admitted that if his instructions were to provide and expert report on whether the plaintiff has been in factual possession of part of Lot 1275 since about 1982, his report would certainly have been different.  Mr Ching then agreed to provide a further expert report, giving his expert opinion on the Possession Issue, if leave is granted.  However, on the next day ie 28 June 2013, he wrote to KYL stating that due to their workloads on hand, they are unable to provide further assistance in this case. 

23.  KYL then immediately arranged for another authorised land surveyor, Mr Ma Yung Kong, Helicon of Helicon Ma Surveying Limited (“Mr Ma”) to have a meeting with the plaintiff and his legal representatives.  In the conference held on 2 July 2013, Mr Ma agreed that Mr Ching’s report had failed to address the Possession Issue and he was willing to prepare an expert report on the Possession Issue if leave is granted.

24.  As a result, the plaintiff took out the 3 July Summons seeking leave to file and serve an expert report in place of Mr Ching’s Report.  The grounds advanced by the plaintiff’s counsel at the hearing of the summons on 11 July 2013 (as appeared in his Skeleton Argument dated 8 July 2013) are as follows:-

“(1) the application if granted will assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” (see Order 1A rule 2(2) of the RHC);

(2) P should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to D which cannot be compensated by costs;

(3) since no milestone dates of any sort (eg trial date) has been fixed, allowing P’s application will not cause any real prejudice to D which cannot be compensated by costs; and

(4) the relevant facts clearly show that P’s application is not “expert shopping” (Mr Ching could have made a supplemental expert report to give his opinion on the Possession Issue.  However, he has now refused to provide further assistance in this case.)

25.  As said, the summons was dismissed by the master resulting in the 11 July Order: (see §11 above).

26.  On 22 July 2013 KYL wrote to Mr Ching, enclosing a copy of the draft Order made by the master:-

(1) reminding him of his duty to the court as an expert; and

(2) urging him to reconsider his decision to terminate his service and to continue to act as expert in the further conduct of his action.

27.  Later on the same day, after KYL had received the court’s comment on the draft Order, KYL subsequently sent two reminder letters to Mr Ching.  In particular, KYL highlighted the need to meet up with him concerning the short statement setting out in bullet points the issues that require expert oral evidence.  In one of these letters KYL attached for Mr Ching’s reference the Order approved by the court.

28.  On 23 July 2013, Mr Ching had a telephone conversation with Tam during which Mr Ching promised that he would attend court to give oral evidence during the trial.  According to Tam, he was non-committal as to whether he would help in preparing the short statement or supplemental expert joint statement.  On the same day ie 23 July 2013, Mr Ching wrote to KYL and put on record the following matters:

“Nevertheless, I, being an expert witness, appreciate that my paramount duty is to the court and I have an overriding duty to help the Court impartially. While I have completed my survey report in January 2011 and a joint statement with the other side’s expert in March 2013, I will be pleased to attend court and give evidence at trial for my submitted survey report and joint statement.”

29.  On 26 July 2013, KYL sent Mr Ching a letter asking for his reply on the attached draft plaintiff’s short statement.

30.  On 26 July 2013, Mr Ching wrote to KYL indicating that he reiterate his decision in his letter dated 28 June 2013, namely due to their workloads on hand, they are unable to provide further assistance in this case. Further, he stated that:-

“2. Please be noted that I have no further supplement on my submitted expert evidence, ie the survey report in January 2011 and the joint statement with the other side’s expert in March 2013, via Messrs Cheng Yeung & Co. Grateful if you would advise your client and the Clerk to the Deputy Judge accordingly. [emphasis original]”

31.  On the next day, ie 27 July 2013, Mr Ching telephoned Tam.  According to Tam’s affidavit, he started by saying that he was tape-recording the telephone conversation.  He then told Tam that he had decided not to respond to the plaintiff’s solicitors request to him to comment on the draft plaintiff’s short statement.  He warned that he would apply for an injunction against KYL upon receipt of further correspondence from KYL on the matter.  He said that he would attend court to testify if the court summonsed him to do so, but he refused to do other than that.  He considered himself owing a duty to the court but not to the plaintiff or KYL.

32.  Later in the same day, Mr Ching wrote to KYL, indicating that he reiterates his decision in his letter dated 28 June 2013 (namely due to their workloads on hand, they are unable to provide further assistance in this case).  Further, he stated, inter alia, that:-

“1. Please be reminded that my decision in my letter dated 28 June 2013 is valid and still applicable;

2. Both I and our company do not have any employment agreement with your client and/or our agreement now. Hence I am not in a position and not willing to comment on plaintiff’s short statement;

3. Please consider NOT to send repeating requests as your actions are now causing nusisances and disturbances to me and our company; and

4. Grateful if you would convey the above to your client and the Clerk to Deputy Judge accordingly.”

33.  The plaintiff considers that such stance taken by Mr Ching will make it impossible for the plaintiff to comply with that part of the Order of the master which relates to expert evidence.  This is because:-

(1) The draft plaintiff’s short statement has identified additional issues on which expert evidence is required; and

(2) It will not be enough for Mr Ching to attend court just to testify on (i) Mr Ching’s Report and (ii) the present expert joint statement but not (iii) the said additional issues.

34.  Hence, on 31 July 2013, the plaintiff took out a summons for an order to vary the master’s order pursuant to Order 38, rule 44 of the RDC: see §13 above.

The defendant’s case

35.  The defendant’s objection to the plaintiff’s appeal mainly consisted of the following grounds:-

(1) the re-visiting of the whole question of expert evidence when the parties have already filed and exchanged their expert reports and filed the Experts’ Joint Statement would cause obvious prejudice to the defendant;

(2) the application should not be allowed as the original Order / directions was made under a Consent Order;

(3) the plaintiff should not be allowed to shop around for expert; and

(4) no sufficient cause has been shown to vary the order on expert evidence. 

ISSUES TO BE DECIDED

36.  In my view, the central issue to be decided in this case is whether it will be fair and just in all the circumstances of this case to allow the plaintiff to change his expert at this stage of the proceedings.

37.  In order to determine the central issue, on the particular facts of this case, the court has to look at and to decide upon the following sub-issues:-

(1) Whether the plaintiff’s expert had addressed the Possession Issue in his report and/or experts’ joint statement;

(2) Whether the plaintiff was shopping around for a new expert;

(3) Whether real and obvious prejudice has been caused to the defendant; and

(4) Is it still possible for the court to make a just resolution of the disputes and real issues between the parties without appointing a new expert.

DISCUSSION

The relevant legal principles

38.  It is not disputed that following are the relevant principles of law governing the change of experts.  They have been helpfully summarised by Mr Yim, the plaintiff’s counsel.  I can do no better than reproducing his summary of those principles as appear in his written submissions here.  

39.  In Law Chung Fai v Lam Ming Kuen, unrep, HCPI 96/2008, 13 September 2010, Bharwaney J summarized the principles to be applied in determining an application to change an expert witness as follows (at §9 of judgment):-

“9. The principles that have to be applied in determining an application to change an expert witness may be summarised as follows:-

(a) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court's management powers.  These powers must be exercised in the light of the underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

(b) In the exercise of its powers of case management. the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.

(c) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it.  It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot.  Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case.

(d) The disclosure of the original expert's report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert.  However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called.

(e) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert.

(f) However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert.

(g) In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side.  If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute.

(h) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts.  All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

(i) It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may arise and which prompts an application by a party to change his expert.

(j) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.” [emphases added]

40.  It has also been held that an application to change an expert should only be entered when there are very good reasons and the defects cannot be remedied.  In Tanag Padam Rqj v Shek Chi You and Wong Ching Yi trading as Pak Tsun Company and Others, unrep, HCPI 613/2011, 26 April 2013, Master Leong stated (at §§36-38 of judgment):-

“36. It is trite law, especially with the CJR which aims to minimize litigation costs and time, that “expert shopping” should be discouraged. The “default position” for case management must be that any change of experts, especially at such a late state, should be refused unless there are very good reasons.

37. Of course, there were cases when very good reasons had been advanced, for example when substantial disputes emerged late in the proceedings in an area in which one expert had limited expertise (as in the case of Law Chung Fai v Lam Ming Kuen HCPI 96/2008). I can also envisage other circumstances when the court may grant such indulgence, eg when an expert refused reasonable requests for clarifications of his opinion. or perhaps when an expert opinion is so unreasonable and unsatisfactory that it raises question on the credibility or. at least. the competence of the expert.

38. However,whenthe alleged “defects”canberemedied by further communications with the expert (eg by providing additional evidence, seeking clarifications on matters not understood, seeking opinion on points not addressed in the original report, or, in general, by commissioning supplemental reports), then there is no good reason to seek to change the expert, especially in circumstances when the party has made no attempt to (or, as in this case, did not agree to) communicate with the experts after the original report.” [emphases added]

41.  In Edwards-Tubb v JD Wetherspoon Plc [2011] 1 WLR 1373, a decision of the English Court of Appeal, Hughes LJ (whose judgment the other two members of the court agreed) said (at §30):-

“30. …… I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert. Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the fist expert is not necessarily right. That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion. It would not usually be right simply to deny him permission to reply on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence ……”

42.  While I have no problem in accepting the principles stated in the above cases, I consider that the facts in our case are very different from those in the cases referred to.  I shall examine the sub-issues in order to answer the central issue of whether it will be fair and just in all circumstances of this case to allow the plaintiff to change expert at this stage.

(1)     Did the plaintiff’s expert address the possession issue in his report and experts’ joint statement?

43.  First, I do not accept the plaintiff’s claim that Mr Ching did not know when he was first instructed to provide an expert report that it was for the purpose of commenting on the adverse and/or factual possession of the Land.  In my view, the letter of CY dated 21 December 2010 has clearly stated what the purpose of engaging Mr Ching was in the first place.  It was, as stated in the heading of the letter, in relation to the “Adverse Possession” of the Land.  If that was not clear enough, the letter went on to say on page 2 that:-

“Our client and his family are residing in Lot 1275.  As regards the Remaining Portion of Lot No 1268 in D.D. 79 (“Lot 1268”), we are instructed that our client is permitted to grow crops by the owner of Lot 1268.  Hence, there is no question of adverse possession of Lot 1268.”

44.  While I think there certainly existed room for improvement in the language employed in the letter, it is not fair to say that it is not clear what the expert was asked by CY to do.  As an expert and very experienced surveyor, I think Mr Ching knew very well what he was asked to include in his report.

45.  Second, it appears that Mr Ching understood well what he was required to do by CY as he stated in the 2^nd paragraph on page 2 of his report that: “We were instructed by our client, who was the legal representatives of the occupier to re-establish the lot boundaries for the purpose of adverse possession” [emphasis added].   Further, he stated under the heading of “Ground Evidence” on page 3 of his report that “During the time of survey, the subject lot, together with the adjoining Lot 1268RP, was partly fenced.  Most of the areas were being used as agricultural purpose.”  Also, Mr Ching made local enquiries in relation to the occupation of the Land as on page 4 of his report under the heading of “Local Enquiries” he has stated the following :-

“Local enquires were conducted. According to the occupier, Mr Yip of about 60 years old, his family had been cultivating in Lots 1275RP and 1268 RP for about 30 years and has also been residing in Lot 1275RP for the same period. He alleged that he had erected some fences around the extent of his cultivation areas. Nevertheless, he had limited knowledge about the extent of the lot boundary. He further disclosed that he was not the registered owner of the subject lot and had never seen the owner before. Moreover, he realized that there would be a resumption conducting by the Government but again he had limited knowledge about the limits of the area to be resumed.”

46.  Mr Ching went on to examine the lot index plan, the DD sheets, the survey sheets and aerial photos and concluded at page 6 of his report that “the subject site was an agricultural field since the DD survey and did not undergo significant change of usage up to the moment.”    

47.  I agree with Mr Li, SC, the defendant counsel’s submission that, while at first sight it seems Mr Ching’s Report was concerned with the boundary demarcation of the Land, in fact, the report was actually about boundaries with reference to the occupational history of the plaintiff and his family.  This apparently was an observation made by the master at the hearing of the summons.  In my view, it is not correct to say that the central issue of factual or adverse possession of the Land has not been dealt with in Mr Ching’s Report as submitted by the plaintiff.  While Mr Ching might not have expressed his views in a way as an expert in a “traditional” survey report would normally do (if there is such a thing as a “traditional” survey report at all), it is not correct in my judgment to say that he has failed to deal with the central issue of adverse / factual possession in his report as alleged by the plaintiff. 

48.  Third, even if Mr Ching has not dealt the issue of adverse possession in his 2011 report as claimed by the plaintiff (which I do not agree), then, in my view, he must have dealt with that issue in the Experts’ Joint Statement.  The Experts’ Joint Statement was filed pursuant to the terms of the Consent Order agreed by the parties back in January 2013.  The Experts’ Joint Statement set out in table form of what have been agreed or disagreed by the experts in their main reports.  As Ms Chan (the defendant’s expert) had already dealt with the issue of factual/adverse possession in a more comprehensive manner in her report, what Mr Ching needed to do was to respond to each and every single paragraph of her report in the Experts’ Joint Statement.  This is exactly what Mr Ching did.  Thus, there is no question of him not having to deal with the issue of adverse possession head-on in the Experts’ Joint Statement.  

49.  Perhaps it is apt for me to point out at this juncture that, in a case dealing with adverse possession, in most instances, the role of a surveying expert is only limited to assist the court to define the boundaries of the land in dispute and in comparing the usage of the land over the years during the disputed period of time by looking at evidence like lot index plans, survey sheets, aerial photos and other documentary evidence.  The ultimate question of whether the person claiming adverse possession has been in occupation is a factual one and usually has to be established by the claimant in calling factual witnesses.     

50.  In the aforesaid circumstances, I cannot agree with the plaintiff’s submissions that Mr Ching has failed to address the central issue of adverse possession in his report and the Experts’ Joint Statement. 

(2)     Was the defendant expert shopping?

51.  While I would not go as far as saying that the plaintiff had deliberately tried to “expert shopping” in this case, I consider the way the plaintiff went round to try to change his expert has been most peculiar and unsatisfactory.  It has left a lot of room to be desired for.

52.  As mentioned, it was only after newly assigned solicitors came on board in this case that they saw a need for an update report from the plaintiff’s own expert in addition to Mr Ching’s Report and the Experts’ Joint Statement.  In the letter to Mr Ching, they requested Mr Ching to have a meeting with the plaintiff’s counsel “for the purpose of the sharing of your expert opinion with our counsel and team members, and above all, primarily the onward preparation of an all-round update and supplemental report, further to the current report prepared by (the plaintiff’s expert)” [emphasis added]: (see KYL’s letter dated 17 June 2013).       

53.  Thus, before the plaintiff’s legal team have even met Mr Ching in conference, they had already decided that an “update and supplemental” expert report would be needed from him.  In my judgment, had the plaintiff’s solicitors and counsel studied Mr Ching’s Report and the Experts’ Joint Statement more carefully, they would have been able to find all the essential opinions that require to be adduced from a surveyor expert in an adverse possession case are contained in those 2 documents.  If, under those circumstances, they decided to ask the expert to prepare an update report without the leave of the court or agreement with the other side, they would be doing so at their own risk.

54.  Exactly what happened during the conference on 27 June 2013 is not clear.  According to the plaintiff’s solicitors, Mr Ching agreed to provide a further expert report giving his expert opinion on the possession issue at the end of that meeting.  This seems to have been confirmed by the letter written by KYL to Mr Ching dated 27 June 2013. However, on the very next day ie on 28 June 2013, Mr Ching wrote to KYL and stated that, due to their “workloads on hand”, he would not be able to provide further assistance in the case.  

55.  I suspect that the alleged “workloads on hand” was only used by Mr Ching as an excuse for not getting further involved in the case.  The true reasons of why he took such a step are best known to him.  Perhaps something had been said to him during the meeting which has caused him to act in such a way.  Perhaps he has second thought on providing a further expert report after the meeting.  I do not wish to speculate into what are the true reasons behind his decision.  It is not necessary for me to do so.  However, what I find to be astonishing is that, instead of trying to find out what are the true reasons behind his decision and try to convince him to change his mind, the plaintiff’s legal team saw fit to immediately arrange a conference with another land surveyor ie Mr Ma with a view to instruct him as a substitute expert to prepare a report on the Possession Issue.  That meeting with the “new” expert was held on 2 July 2013.  Mr Ma, unsurprisingly perhaps, reinforced the plaintiff legal team’s belief that Mr Ching’s Report had failed to address the Possession Issue and agreed to prepare an expert report on the Possession Issue if leave to do so is granted by the court.

56.  In my judgment, such approach to tackle an existing expert’s un-cooperative attitude is far from ideal.  What the plaintiff had done was trying to secure the service of a substitute expert opinion first (namely from Mr Ma in this case) and then present the court with a fait accompli. In my view, such practice is wrong and should not be encouraged at all.  What the plaintiff’s solicitors should have done in my view is that once they find out there is a possibility that a further expert report may be necessary, they should apply to court by summons for further direction.  Instead of meeting with the existing expert or a new proposed substitute expert with a view to prepare an update report (without the leave of the court), they should ask the court to give them leave to do so first.  Otherwise, they run the risk of not able to recover the costs of preparing such further report and/or meeting with the new or existing expert at all.  Worse still, they may find themselves in a situation like the plaintiff’s legal team has found themselves in at the moment. 

(3)     Whether real and obvious prejudice has been caused to the defendant

57.  I agree with Mr Li’s submission that prejudice will be caused to the defendant if the plaintiff is allowed to change his expert at this stage.  The prejudice is obvious as the plaintiff’s proposed substitute expert will be having Mr Ching’s Report, Mr Chan’s Report and the Experts’ Joint Statement when preparing the new report.  This will defeat the whole purpose of having the protocol of how the expert reports should be prepared and disclosed/exchanged under the Consent Order in the first place.  This is like allowing the plaintiff to have a second bite at the cherry when, to a large extent, this situation was created by the way the plaintiff’s legal team had handled the matter. 

58.  In addition, to allow the plaintiff to substitute a new expert now would inevitably cause delay to the trial of the matter.  I was told that this case is ready to be set down for trial at the next CMC scheduled on 16 January 2014.  CMC date is regarded as a “milestone date” under the rules of the CJR.  This action was commenced on 24 November 2011 and Mr Ching’s Report was dated back in January 2011.  In my view, there is no good reason why the action should be further delayed.  Any further delay would only be prejudicial to the defendant in the circumstances. 

(4) Is adjudicating on the real issues and disputes between the parties still possible without appointing a new expert?  

59.  In my opinion, it is still possible for the court to determine the real issues and dispute between the parties in accordance with their substantive rights without appointing a new expert.  As mentioned, Mr Ching has already expressed very clearly in his letter dated 23 July 2013 to the plaintiff’s solicitors that he appreciates that his paramount duty is to the court and he has an overriding duty to assist the court impartially.  He has also agreed that he will attend court to give evidence at trial based on his report and the Experts’ Joint Statement.  Further, the plaintiff’s solicitors and counsel also managed to produce a short statement pursuant to the 11 July Order without any input from Mr Ching.  Hence, there is no need for Mr Ching to prepare the short statement anymore.  In any event, the master’s 11 July Order was put in a way that such short statement should be prepared “where appropriate” only.  Thus, the parties were not under a strict obligation to prepare the short statement, least to say that such short statement must be prepared by the expert.         

60.  While I can see some inconvenience to the plaintiff’s legal team now that his own expert Mr Ching refuses to co-operate with them, for example, they may not have a pre-trial conference with the expert or able to clarify matters with him prior to trial.  However, it is not equal to say that a just resolution of the disputes or real issues in this case is not possible.  Since Mr Ching is prepared to give evidence in his capacity as expert at the trial of this action (based on what he has already stated in his report and the Experts’ Joint Statement), I do not see why a new substitute expert is necessary.  As to the contents of the short statements prepared by the plaintiff’s counsel and the defendant’s expert, so long as Mr Ching has sufficient notice that he will be asked questions on those matters, I cannot see any real prejudice will be caused to the plaintiff.

61.  In submission, Mr Yim has referred me to the following passage in Chimbusco Pan Nation Petro-Chemical Co Ltd v The Owners and/or Demise Charterers of The Ship or Vessel ‘Decurion’, unrep., CACV 198/2011 & CACV 214/2011, 31 Jan 2012, where Cheung JA stated (at p 5 of judgment):-

“11. …

(1) It is clear that the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate: see Nantong Angang Garments Co Ltd v Hellmann International Forwarders Ltd, CACV 64/2005. There are two conflicting principles at play. First, a party being required to observe the procedural rules, the default of which may result in judgment being entered against it. Second, a party should not be deprived of an adjudication on the merits due to a procedural default unless there is prejudice to the other party which cannot be compensated by costs. These two principles are not absolute. A rigid application of the first principle may lead to dismissal of actions without consideration of whether the defendant has been prejudiced by the default. But, the Court has treated the existence of such prejudice to be crucial and often decisive. Likewise a rigid application of the second principle without exception may enable a wealthy litigant to flout the rules. The resolution to these two conflicting principles is to consider all the circumstances of the case and not confine the decision to the application of a universally applicable rule of thumb: see Costellow v Somerset Country Council [1993] 1 WLR 256, per Sir Thomas Bingham M. R. at 263.

(2)  I do not consider this approach has been drastically changed by the introduction of the Civil Justice Reform in Hong Kong since 2 April 2009.  An expeditious disposal of a case has to be considered together with the equally salutary objective of ensuring fairness between the parties…. [emphases added]”

62.  While I entirely agree with the observations made by the learned judge in the above case, I do not consider that the refusal of allowing a substitute expert to take the place of Mr Ching will create any injustice to the plaintiff in our case.  There may be inconvenience of having an un-cooperative expert but this is not the same as saying that a fair adjudication of the real disputes and issues between the parties is no longer possible.  In short, the refusal of allowing a new expert in this case will not in my view deprive the plaintiff a just resolution of the matter.   

Whether the application should be made under Order 38 rules 36 & 44 and Order 32 rule 8 of the RDC?

63.  One further thing I would like to mention before leaving the matter. 

64.  In the 31 July Summons, the plaintiff invokes Order 38 rules 36 & 44 and Order 32 rule 8 of the RDC to vary instead of appealing against the 11 July Order made by the master.

65.  A party is entitled to, “on sufficient cause being shown”, makes an application to revoke or vary an interlocutory direction and order made: see Order 32, rule 8 of RDC.  Order 38, r 44 provides the same power to the court to vary any direction made in the context of expert evidence.     

66.  The test in each case is whether “sufficient cause” has been shown to vary the Order.  The test on what constitutes to “sufficient cause” has been stated by Chu J (as she then was) in Beacons College Ltd v Yiu Man Hau Alfred & Others (2002) HCA 4273 of 2001 as follows:-

“11. In my judgment, it is not unheard of for interlocutory applications to be renewed: see, for example, Order 24, rule 17 Rules of High Court and Order 32, rule 8 Rules of District Court. Ultimately, it is a matter of judicial discretion. Whether the applications are identical in terms of the statutory provisions relied upon or the relief sought is not definitive of the matter. What is important is whether the substance of the applications or the issues involved are essentially the same. If they are, then the subsequent application should not be entertained, unless:

(1) there is material change of circumstances; or

(2) the grounds or evidence relied upon for the subsequent application are matters that could not reasonably be expected to be adduced at the earlier application: Chanel Ltd v Woolworth & Co Ltd [1981] 1 WLR 485, 492H-493A and Habib Bank AG Zurich v. Mindi Investments Ltd 131 SJ 1455, at p. 5 of the transcript.”

67.  I agree with the defendant’s submissions that what the plaintiff is effectively seeking to do is try to vary the terms agreed by the parties under the Consent Order.  In my view, the plaintiff is not entitled to do so under the disguise of a variation of the 11 July Order.  If the plaintiff was not satisfied with the 11 July Order, the proper course for him to take is to appeal against the master’s decision instead of seeking to vary the order. 

68.  In my opinion, based on the factual circumstances and the reasons stated under sub-issues discussed above, there was simply no material change of circumstances between the 3 July Summons and the 31 July Summons which would justify the plaintiff in making an application to vary the 11 July Order instead of appealing against it.                   

CONCLUSION

69.  In the aforesaid circumstances, I am of the view that the master was absolutely right in dismissing the 31 July Summons. 

70.  Therefore, the plaintiff’s appeal is hereby dismissed with costs in favour of the defendant, such costs to be taxed if not agreed with certificate for counsel.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

71.  Lastly, I would like to thank counsel on both sides for their very helpful assistance.