FUNG YAU LIN AND OTHERS v. LAM SHUET YING AND OTHERS

DCCJ 1005/2017

[2019] HKDC 1228

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1005 OF 2017

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REASONS FOR DECISION

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A.  Introduction

1.  The plaintiffs are the registered owners of Lots nos. 697 and 700 in Demarcation District 100 in North New Territories (the “Land”).  The 3^rd and 4^th defendants (the “Defendants”) are currently in occupation of the Land.  The plaintiffs bring this action to recover the Land.  The Defendants in turn claim declaratory relief that they have acquired a possessory title over the Land by reason of adverse possession.

B.  The plaintiffs’ application to change their expert

2.  At the hearing fixed for the pre-trial review of this action, I heard and granted the plaintiffs’ application for leave to adduce expert evidence of Mr Joseph Wong (“Mr Wong”) in replacement of Mr Chan Hon Kwan Henry (“Mr Chan”).  These are the short reasons for my decision.

3.  No doubt this is a very late application.  The trial of this action will take place on 5 November 2019 (with 5 days reserved).  The Summons was only taken out on 9 September 2019 and the plaintiffs cannot even serve the same on the Defendants with 2 clear days notice.

4.  The explanations provided by the plaintiffs in the form of a solicitor’s affirmation, are as follows:-

(1)  By an order dated 20 June 2018, the plaintiffs were given leave to adduce expert evidence by Mr Chan, a land surveyor expert.

(2)  By an order dated 8 March 2019, leave was given to set down the matter for trial.

(3)  Mr Chan subsequently informed the plaintiffs’ solicitors that he was unable to attend court on the trial dates.

(4)  The plaintiffs then made an application to change the trial dates.  The application was refused on 10 April 2019.

(5)  By letter dated 7 August 2019, Mr Chan again confirmed to the plaintiffs’ solicitors that he would not be able to attend trial.

(6)  The plaintiffs’ solicitors then attempted to seek replacement of the expert.  They were only informed on 5 September 2019 that Mr Wong was able to do so. 

5.  As the plaintiffs’ Counsel, Mr Pang accepts, this is a wholly unsatisfactory situation.  There is no evidence as to when Mr Chan informed the plaintiffs’ solicitors that he would not be able to attend the trial.  It is however clear that the plaintiffs had as from at least April 2019, to contact and find another expert.  They however saw fit to wait until after 7 August 2019 when their solicitors received Mr Chan’s confirmation again.

6.  There is currently no information provided by the plaintiffs regarding the qualification of Mr Wong.  The Court is told that given the time constrains, Mr Wong is also unable to prepare a draft report for the Court’s consideration but it is unlikely that there will be any significant divergence of opinion.

7.  As I have mentioned, this is an entirely unsatisfactory position.  I would have expected that the supporting affirmation should at least exhibit the CV of Mr Wong.

8.  Having said that, I am satisfied that there is no attempt to “shop” for an expert on account of the substance of the opinions in question.  It appears that the reason why Mr Chan will not be able to attend trial is because the plaintiff’s solicitors had not obtained or checked his diary prior to the setting down.[1]

9.  Bearing in mind that the Court’s primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, the plaintiffs’ right to have proper expert evidence adduced at trial should not be undermined in absence of any fault on their part.

10.  After all, the Court should strive to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court should strive to ensure a level playing field with fair access to proper experts for all parties: Law Chung Fai v Lam King Kuen [2].

11.  At this stage, the current timetable proposed for the filing of Mr Wong’s expert report and the report in reply by the Defendants’ expert should not cause any real disruption to the trial dates.

12.  I think for these reasons I ought to allow the plaintiffs to substitute Mr Wong for the original expert.

13.  On the Summons, I will therefore make an order in terms of Paragraphs 1 to 3 and 5 save that I will impose an unless order for Mr Wong to file and serve his expert report by 4 pm on 25 September 2019.  I further make an order that the experts do attend trial to give oral evidence and be cross-examined.

14.  There is no dispute that it is the plaintiffs who are seeking indulgence of this Court.  I therefore order that costs of and occasioned by the Summons dated 9 September 2019 be paid by the plaintiffs to the Defendants in any event.  Such costs are to be taxed if not agreed with certificate for counsel.  The Defendants’ own costs be taxed in accordance with the Legal Aid Regulations.

C.  Consequential directions for trial

15.  This leaves the question of the consequential directions for trial of this action:-

(1)  The plaintiffs do serve and lodge the Trial Bundles of this action on or before 15 October 2019;

(2)  The plaintiffs do file and serve their opening submissions and authorities they intend to rely on, together with a chronology of events (with e-submissions) on or before 22 October 2019;

(3)  The Defendants do file and serve their opening submissions and authorities (with e-submissions) on or before 29 October 2019.

(4)  Any application for a site visit of the locus in quo to be made no later than 28 days before the trial of the action.

(5)  Costs of this pre-trial review hearing be in the cause with certificate for Counsel.

16.  It remains for me to thank Counsel for their assistance