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

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

INTRODUCTION

1.  This is an application by the plaintiff to seek leave to engage an authorised land surveyor, other than the plaintiff's present expert Mr Ching Siu Tong (“Mr Ching”), for the purpose of preparing a supplemental expert report confined to the scope of the 4 aerial photos referred to in the supplemental expert report by the defendant expert, Ms Chan Yuen Ki ("Ms Chan") filed on 3 June 2014.

BACKGROUND

2.  This action arose out of an adverse possession claim whereby the plaintiff claims against the defendant, who is the registered owner, in respect of a piece of land known as the remaining portion of lot no. 1275 in DD 79 ("the Land"). It is the plaintiff's case that he has been in adverse possession of the Land for over 20 years (since 1982), or alternatively for more than 12 years (since 1996), before the commencement of this action.

3.  On 31 October 2013 I handed down a decision in this case when I refused the plaintiff’s application to appoint a new expert to substitute Mr Ching as the plaintiff's expert in this case.  In the decision, I have set out the background to the dispute in relation to the appointment of the plaintiff's expert.  I would refer the parties to that decision for the background as well as the reasons for my decision.

4.  The background to the current application started when the plaintiff, with leave of the court, filed a supplemental witness statement on 30 April 2014 whereby 4 aerial photos taken respectively on 7 September 1999, 17 October 2000, 1 March 2001 and 24 September 2001 were referred to and commented upon by him. The plaintiff explained his cultivation activities on the Land during the periods covered by the 4 aerial photos in the supplemental witness statement.

5.  As a result, also pursuant to an order of the court, the defendant filed the defendant’s supplemental expert report on 3 June 2014 in which the defendant's expert Ms Chan, by reference to the 4 aerial photos, opined that most of the Land was not under cultivation for the period from 7 September 1999 to 24 of September 2001. This is in direct contradiction to the plaintiff's evidence contained in the supplemental witness statement.

6.  As the factual possession of the Land is central to the core issue in this case, the plaintiff's solicitors took out a summons on 17 September 2014 to apply for leave to file and serve a supplemental expert report from the plaintiff's own expert, ie Mr Ching of KELand Surveying, Planning and GIS Co Ltd ("KELand”), to respond to the defendant's supplemental expert report, in particular to the comments made by Ms Chan on the 4 aerial photos.

7.  On the same day as the plaintiff taking out the summons, the partner in charge of the case in the plaintiff's solicitors firm, namely Mr Li Man Pong ("Mr Li") and a staff member of the firm one Ms Joyce Wong ("Ms Wong") visited KELand’s office and met with Mr Ching. Although the meeting was not a pre-arranged one, Mr Ching appeared to be friendly and amicable.  He also indicated to Mr Li and Ms Wong that he was willing to assist in making the supplemental expert report.  Mr Ching was informed that the plaintiff’s solicitors would provide him with the updated information and relevant documents which would enable him to prepare the supplemental expert report.

8.  By consent, on 6 October 2014, Master SP Yip made the following order in relation to the appointment of Mr Ching to prepare the supplemental expert report:-

“1. The plaintiff do have leave to file and serve by 17^th November 2014 a supplemental expert report by the plaintiff’s expert, Mr. Ching Siu Tong, containing his expert opinions responding to and/or commenting on the expert opinions on the aerial photos referred to in the Supplemental Expert Report by Ms. Chan Yuen Ki filed by the defendant on 3^rd June 2014, subject to paragraph 2 hereinbelow.

2. Mr. Ching Siu Tong should base and confine his expert opinions solely on the mother prints of those aerial photos referred to by Ms. Chan Yuen Ki in her Supplemental Expert Report filed by the defendant on 3^rd June 2014.

3. The defendant do have leave to file and serve further expert evidence, if so advised, in response to the said supplemental expert report by Mr. Ching Siu Tong by 29^th December 2014.

4. No further expert evidence is to be adduced by either party without leave of the Court.”

9.  On the same day, the plaintiff's solicitors sent a draft copy of the Order to Mr Ching for his perusal and preparation of the supplemental expert report.

10.  On 7 October 2014, a female staff of KELand telephoned Mr Li and quoted a fee of $15,000 for preparing the said supplemental expert report.  Mr Li asked the female staff to forward the quotation to them so that they could forward it to the Legal Aid Department for their approval. The female staff subsequently requested the plaintiff’s solicitors to send them $8,000 as advanced payment for the purpose of preparing the said supplemental expert report.  Mr Li repeated the standard procedure of payment by the Legal Aid Department to experts to the female staff.  However, no quotation from Mr Ching was ever received by the plaintiff’s solicitors.

11.  Instead, on 8 October 2014, Mr Ching sent a letter to the plaintiff solicitors stating effectively his refusal to prepare the supplemental expert report in accordance with the court Order. In particular, the letter stated the following position of Mr Ching in this matter:-

“1. Please be reminded that my decision in my letter dated 28^th June 2013 is valid and still applicable. [The 2^nd paragraph of the letter states “Upon going through our workloads on hand, I regret that we are unable to provide further assistance in the case.”]

2. Both I and our company do not have any employment agreement with your client and/or your company now.  Hence I am not in a position and not willing to comment on your letter.” [emphasis added]

12.  On 7 November 2014, in a final attempt to persuade Mr Ching to prepare the supplemental expert report, Mr Li went to Mr Ching's office with Ms Wong, took with him all the necessary documents which would be needed for the expert to prepare the supplemental report, in the hope that Mr Ching would change his mind. However, Mr Ching blankly refused even to meet with them on this occasion.

13.  With such uncooperative attitude from his own expert, the plaintiff has no alternative but to issue the present application.

Relevant legal principles

14.  The relevant principles of law are not in dispute and had been summarised in my earlier decision. I do not wish to repeat those cases which I had already cited here.  However, it may be helpful in the context of this case to add the following authorities which I think are relevant in the present context.

15.  Under the post-CJR regime, when faced with an application for leave to adduce expert evidence, it has been said that the underlying objectives of the CJR must be taken into consideration.  In Fung Chun Man v Hospital Authority, unreported, HCPI 1113/2006, 24 June 2011, Bharwaney J stated at §§9 to 16 the following:-

“9. The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (“RHC”).  However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers.  Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; 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.

…

11. The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

12. In this regard, I echo the observations of Evans-Lombe J in Barings PLC v Coopers & Lybrand (No. 2) [2001] Lloyds Report Bank 85:

“45. Expert evidence is admissible …. in any case where the court accepts there exists a recognized expertise governed by recognized standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.”

13. The Court of Appeal in Mann v Messrs. Chetty & Patel (a firm) [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before deciding to allow expert evidence:

“(a) how cogent the proposed expert evidence will be;

(b) how helpful it will be in resolving any of the issues in the case; and

(c) how much it will cost and the relationship of that cost to the sums at stake.”

14. Chu J, as she then was, referred to Barings PLC v Coopers & Lybrand and concluded, in Wong Hoi Fung v American Assurance Co (Bermuda) Ltd [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.

15. In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.

16. However, even if a prima facie case is made out for the admission of expert evidence, in every case, 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 in cases where a later application is made for expert evidence to be adduced.  These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.  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.” [emphasis added]

16.  The above principles have been adopted in the recent case of Elijah Saatori v Raffles Medical Group (Hong Kong) Ltd, unrep., HCPI 1114/2006, 31 March 2015 by Chow J.

17.  Therefore, when considering an application of such nature, the court should look into the facts and circumstances of each case to exercise its discretion against the underlying objectives of the CJR in order to ensure that justice can be served and a fair trial can proceed for all parties.

Issues raised in this application

18.  In my opinion, the following are the issues which the court has to resolve in deciding whether to exercise the discretion in favour of the plaintiff in this case:-

(i) Is the proposed expert evidence reasonably required to resolve the issues before the court;

(ii) Any prejudice cause to the defendant; and

(iii) other relevant circumstances which the court should take into account.

(i) Is the proposed expert evidence reasonably required to resolve the    issues before the court?

19.  In my judgment, the situation the plaintiff now faces is very different from the dilemma he faced in the last application before me.  Unlike the last occasion, I do not regard the plaintiff has created the situation himself this time.  Rather, he was forced into a situation where he would not be able to rely on any expert opinion due to the extremely uncooperative attitude displayed by his own expert.

20.  In my view, the 4 aerial photos clearly raised important factual issues on whether the plaintiff was in factual possession of the Land as it is trite that cultivating land is evidence of possession: see Tsoi Ping Hung and another v Cheung Chow Lan and others, unreported, CACV 126/2014, 5 May 2015; Norton v London and North Western Rly Co (1879) 13 Ch D 268 at 273. Thus, whether there were cultivation activities on the Land during the periods shown in the 4 aerial photos are important matters which the court has to consider and to resolve in this case.

21.  I think it will be fair to say that when the plaintiff included the 4 aerial photos in his supplemental witness statement, he was not expecting the defendant would ask its own expert to comment on them by way of expert opinion.  Least he would expect that his own expert would refuse to comment on them when asked by the court to do so. 

22.  As the defendant’s expert has already expressed an opinion that there was no continuous cultivation on the Land by looking at the 4 aerial photos, I think it will only be fair and just for the plaintiff to seek a supplemental expert report from his own expert to comment on this matter. Otherwise, it will create an unlevelled playing field where the defendant would be allowed to call its expert to comment on the matter while the plaintiff will not be able to do so due to his own expert’s uncooperative attitude.

23.  Mr Isaac Chan, the defendant’s counsel, in his submission says that the proposed expert report is of "negligible assistance" to the court in resolving the material issues in this case.  In particular, he submits that only 2 out of 4 of the aerial photos are new and have not been covered in the joint statement of the experts.

24.  I cannot agree with this submission as the matters raised by the plaintiff in his supplemental witness statement in relation to the 4 aerial photos, albeit brief, are very specific and significant. Equally, the subsequent opinions expressed by Ms Chan are also very precise and important.  Under such circumstances, I think it is only fair that the plaintiff will have his own expert to comment on such important matters. 

25.  Mr Chan further submits that there is no restriction to simply put the 2 additional photos to Mr Ching during examination in chief when he gives evidence at the trial.

26.  In my judgment, it will not be ideal for Mr Ching to merely comment on them at the trial without the opportunity for both the court and the parties to know in advance what the plaintiff's expert opinion is likely to be on such important issues.  Under Order 38, rule 37 of the Rules of the District Court, unless the court considers that there are special reasons for not doing so, the court will direct the substance of the expert evidence to be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify: see §38/37 of the Hong Kong Civil Procedure 2015.  I believe the rule is there for good reasons, namely, to prevent any surprises at trial and to allow the parties to properly prepared to deal with the other side’s expert evidence in advance. Therefore, I do not consider it will be desirable to have any experts to comment on matters at the trial which they have not had previously expressed an opinion in writing before.  Otherwise, this will only lead to unnecessary arguments, likely prolonging or even possible adjournment of the trial.  In my view, they will not be consistent with the underlying objectives of the CJR.

(ii) Is there any prejudice caused to the defendant?

27.  The defendant claims that if the court allows the application, it will cause prejudice to the defendant in that (i) the present application has already caused the CMC adjourned on at least three occasions; and (ii) that this is back-door way of introducing a new expert.

28.  As said, I do not consider that the present application was caused by the plaintiff’s own doing.  Rather, this was due to a professional expert, who knowingly taken up a legal aided case, has, for reasons best known to him, subsequently displayed a rather uncooperative attitude towards his own client and solicitors.  If Mr Ching is so busy with his professional work and could not assist in writing any further supplemental report(s), then he should not have taken up the case in the first place.  By agreeing to act as an expert in this case, he must have known that it may cause interruptions in his professional work from time to time and also may require him to give supplement opinion to the main report from time to time. Further, if he is not prepared to accept the payment method specified by the Legal Aid Department in paying its appointed experts, he should not have taken up the case in the first place. By displaying such an uncooperative attitude, he is really not doing any service to his client or assisting the court.  Besides, by saying that he is unwilling to even comment on the letters sent by the plaintiff’s solicitors, Mr Ching is effectively flouting the Order given by Master SP Yip on 3 October 2014. 

29.  Hence, I do not agree with the defendant's submission that the current situation was single-handedly created by the plaintiff. I was told that leave was only granted to the plaintiff to file the supplemental witness statement after a full argument before the master involving counsel from both sides.  I understand that it was the defendant’s former counsel who had asked the master to give leave to the defendant to file and serve a witness statement/supplemental witness statement and supplemental expert report in reply to the matters raised by the plaintiff in relation to the 4 aerial photographs stated in his supplemental witness statement: see Order of Master SP Yip dated 29 April 2014.  I noted that no provision has been made in the Order to provide the opportunity for the plaintiff to ask his own expert to reply to the defendant's expert opinion. The consent summons dated 6 October 2014 was only filed after extended negotiations between the parties.  I therefore do not agree that all the delays in setting down the case for trial was caused by the plaintiff or his solicitors.  Instead, I consider that a lot of it was caused by circumstances beyond his control, in particular the rather unexpected and uncooperative attitude displayed by his own expert.

30.  I also do not agree with the defendant's submission that the current application was a backdoor way of introducing a new expert in this case.  It is clear that both in the correspondence between the parties prior to the issue of the summons and in the consent summons filed by the parties dated 6 October 2014, the plaintiff was fully expecting to engage Mr Ching to prepare the supplemental expert report.  It was only due to the circumstances as set out above that have prevented the plaintiff and his solicitors from doing so.  Further, it is clear that the plaintiff and his solicitors are not trying to substitute Mr Ching as an expert in this case. What they are asking is to merely having the chance of an expert to comment on the opinion given by the defendant expert on the 4 aerial photos. I do not see anything wrong with that. To the contrary, I see an unjust and unfair situation will be resulted if the court refuses leave to the plaintiff to have an expert to comment on those matters.

31.  I therefore do not see any real prejudice will be caused to the defendant if the court is to grant leave to the plaintiff to have a new expert other than Mr Ching to comment on the opinions given by Ms Chan on the photographs.

(iii) Other relevant circumstances

32.  Other relevant circumstances I have taken into consideration in this case included:-

(i) no trial date yet been fixed for this case;

(ii) leave has been granted by the master to allow the plaintiff to file a supplemental report from its own expert to comment on the 4 aerial photos (albeit the originally intended expert was Mr Ching); and

(iii) there will not be any substantial delay in asking the plaintiff to appoint an expert to comment on such narrow issues.

33.  All the above circumstances in my view strongly indicate that in the interests of justice and in line with the underlying objectives of the CJR, the court should grant leave to the plaintiff to appoint an expert other than Mr Ching to comment on those 4 aerial photos.

CONCLUSION

34.  In conclusion, I am of the view that it is only just and fair in the circumstances of this case to allow the plaintiff to engage an authorised land surveyor other than Mr Ching to prepare a supplemental expert report specifically dealing with the opinion expressed by the defendant's expert in her supplemental expert report filed on 3 June 2014.

35.  I therefore make an order in terms of the plaintiff’s summons dated 17 November 2014.

36.  In the summons, the plaintiff was contented to have the costs of and occasioned by this application be to the defendant in any event and the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.  I have no problem in granting such a costs order save to add that such costs should be taxed if not agreed with certificate for counsel.  I shall make this as an order nisi and it will become absolute after 14 days in the absence of any application to vary the same.

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