YU TECK SEIK v. YU TECK SEIK

1993, No.A10827

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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D E C I S I O N

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1. I have no hesitation whatever in dismissing this application by the Plaintiff to vacate trial dates.

2. I have been taken to the history of the proceedings with great care and precision by Mr Wu, who appears for the Defendant. I have reminded myself of the principles listed in the White Book at MN 35/3/1. I have listened to all the arguments. This case is one of unmitigated delay without reasonable excuse. Certain landmarks stand out. The writ with regard to the present dispute about the right to occupy a cottage in Rennie's Mill was issued in the District Court in 1986; there is some misunderstanding about precisely when the ordered transfer to the High Court took place - in 1991 or 1993, but this does not really matter. The next landmark is on 27th May 1994, wherein in the context of a Reply and Defence to Counterclaim by the Plaintiff, it is averred that a letter dated 1961 duly signed by the Defendant's late husband, Mr See, and one Mr Lam, addressed to the administration of Rennie's Mill, apparently requested that the cottage in question be registered in the sole name of Mr Lam. It has been clear since the time of that pleading, although no formal rejoinder has been issued, that the Defendant takes issue with validity of this letter.

3. In fact, in the context of this case, the existence of this letter did not actually emerge until the Plaintiff served his List of Documents on 30th March 1996 pursuant to an unless order, and even then it was but a copy thereof. Be that as it may. The Defendant, pursuant to that List, inspected the letter in question and duly served a notice under Order 27 rule 4 of the Rules of the Supreme Court objecting to the authenticity of that document. The Defendant was effectively there saying : "If you want to rely on it, we dispute its validity, you prove it." So the profile of this letter in the circumstances of this case could not be gainsaid.

4. This obviously set the parties thinking. The next relevant date is a summons taken out on 11th October 1996 by the Defendant to adduce handwriting expert evidence with regard to the said letter. It was not opposed. On 30th October 1996, Yeung, J. made an order :

"(1) The Plaintiff and the Defendant do have leave to adduce the evidence of one handwriting expert witness each in respect of the authenticity of the signature of a 'Mr. See Man Cheung' in a letter of 1961 addressed to Mr. Yung, the officer-in-charge of Rennie's Mill Village Cottage Area Office. Such evidence to be disclosed in the form of a written report within 28 days."

5. On 23rd November 1996, the Defendant served and filed a handwriting report. I understand from Mr Wu, who has been totally on top of this case, and I am grateful to him for that, that the handwriting report by his expert was based upon examination of the best photocopy of the letter in question, together with original signatures of two other documents - a letter written in 1963 admittedly by the Defendant's husband to the Housing Authority containing an original signature, and also a Certificate of Identity. So original signatures were available for correlation.

6. However, so far as the Plaintiff was concerned, nothing happened. On 5th March 1997, there was a checklist hearing before Yeung J. The Order of 30th October 1996, which had referred to 28 days, was now substituted by a further order for the exchange of handwritten expert reports within three months. Again nothing happened.

7. On 29th April 1997, the Defendant took out an application to set down. It was heard on 13th May 1997, again by Yeung J. The learned judge, having heard nothing from either party that would alarm him, and not having been put on notice that anything was untoward, fixed the trial dates for 24th to 28th November 1997. As Mr Wu points out, at the time of the checklist hearing, the Plaintiff's solicitors knew full well that they were encountering difficulties in finding an expert witness who could do the job, and who would be within the confines of their pocket. But nothing was said. The case was fixed. The silence was deafening.

8. Now 5th June 1997 was the last day for the parties to exchange pursuant to Yeung J.'s Order of 5th March. Nothing happened. There was then a further gap of five months until 7th November 1997, when the summons before me today to postpone the trial was taken out. The application is backed by an affidavit saying the Plaintiff has hitherto been unable satisfactorily to find a handwriting expert, that they have now found one, that he has been able to provide a provisional report but that he could not do better (reasonably enough I suppose) until he had a sight of original signatures. And then after the sight of original signatures, he would require another four weeks to produce a final report. I also have been shown a copy of a letter by the Plaintiff's solicitors to the Housing Authority dated 11th November 1997, over one year after the Defendant had itself applied for leave to adduce expert evidence, whereby the Plaintiff's solicitors were requesting the Housing Department or the Housing Manager of the Clearance Unit in question to ascertain whether the original of the 1961 letter, the very letter in dispute, was still kept in the Housing Department's office. I am told by Counsel appearing on behalf of the Plaintiff this morning that the lateness of this letter is because the solicitors misunderstood the importance of the original letter. I find that difficult to accept. There is nothing on affidavit before me to this effect, and against the uncontradicted history of the case that is a very strange proposition to put forward.

9. In any event, all is not lost because original documents which the Defendant's expert has based his opinion upon, that is the 1963 letter and a copy of Mr See's Certificate of Identity, are available now for the scrutiny of the expert that the Plaintiff has now instructed, a Mr Shum. A letter dated 10th November 1997 from Liu, Chan & Lam, who instruct Mr Wu (a letter I may say stimulated by the issue of this summons to adjourn), reads as follows :

" Please note that the letter dated 8th March 1963 and the Certificate of Identity of Mr. See Sing which you are asking for in the Summons were already included in our List of Documents dated 9th February 1996 and in the list set out in our expert report dated 25th January 1995. However you have never asked for either copies or inspection of the same or any of them.

We have never had nor shall we have any objection for you or your expert to get copies thereof or to inspect the same at any time within office hours upon prior appointment."

10. Mr Wu, with characteristic fairness says : "We can give you the documents today. They can be transmitted to your expert, subject of course to the usual undertakings to retain the same in safe custody which should be given by the solicitors." So there is in fact no problem. But against this background, and against the history of a civil action which has been tardily run in the extreme and with this type of excuse, the Plaintiff sees fit to come and ask for these dates to be vacated at this late date.

11. Now litigation is not a garden party; equally, it is not guerrilla warfare. In my judgment, there is not an iota of fairness in this application. On the history alone of the delays, and the general lack of competence shown, I would not have acceded to this application. But there is more. The Defendant, who is an old lady, has put in an affidavit. She recounts the mental strain of the action. She recounts also how her daughter, one of the witnesses of fact she wishes to call, has taken special leave from her job, arranged well in advance, to attend this trial. Yet the Plaintiff wanders along to the Court, manifestly unprepared, and says in effect "Oh, by the way, please take the case off." I confess I am finding it difficult to restrain myself in my choice of words. However, I will do so. I have not the slightest hesitation in rejecting this application. The situation which has prompted it ought never to have been allowed to develop in the way that it has. Now that it has, the Plaintiff must live with it. But even now the position is not lost. Two weeks before trial the Plaintiff can be given the very same documents to which the Defendant's expert has alluded. There was no evidence before me that this expert cannot look at them, or otherwise deal with them in this period. Indeed I would be surprised if two weeks was insufficient.

12. So I reject the application. It fails in limine. The costs of and occasioned by the application must, of course, be to the Defendant in any event, to be taxed if not agreed, with a Certificate for Counsel. The trial of this action, which commenced in 1986, will go ahead; apparently it is listed before me. I will hear it. Although rejecting this application, for the avoidance of doubt I have formed no conclusions adverse to anyone's interest, and I will hear the evidence as it is put before me by the parties. For those purposes, I shall do my best to reject or to remove from my mind any irritation that I may feel at the protracted and unsatisfactory history of events leading to this application. The parties will get a fair trial, but a trial there will be.