WONG SUI YEUNG v. CHIU KWONG WING AND OTHERS

HCA 5249/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5249 OF 1999

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REASONS  FOR  DECISIONS

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1.  This action concerns an incident which took place in April 1998. The Plaintiff claimed that a lychee tree that was regarded as the fung shui tree of his family had been chopped down by construction workers carrying out construction works for the 1^st Defendant. The writ was issued in 1999. Leave to set down the action for trial was first granted by the Listing Master in 2002. The Plaintiff did not comply with the direction for setting down and instead applied twice for extension of time to set down the action. It was eventually set down in 2004 and the trial was scheduled to start on 9 May 2005.

2.  On 5 May 2005, the Plaintiff took out a summons asking for leave to file an affidavit by an expert on Chinese customary law. The expert was only instructed at the weekend around 30 April 2005. Due to the limited time available, the expert could not express a final view on the point he was asked to consider. He understandably said he needed to conduct further research and hence, the summons also sought leave to file a supplemental affidavit by the expert within 35 days from the date of the order. The summons also prayed for the vacation of the trial dates between 9 and 13 May 2005. The summons was returnable on the first day of trial.

3.  On 6 May 2005, the Defendants issued a Notice of Motion asking the court to determine two questions of law under Order 14A, viz.

(a) whether the Plaintiff can maintain a cause of action in trespass or conversion of a mature tree growing on land in which he has no interest; and

(b) whether the 4^th Defendant as a village representative has a duty to protect and enforce the Plaintiff’s private property rights.

The Motion also sought the dismissal of the Plaintiff’s claims upon determination of those issues in favour of the Defendants.

4.  After hearing submissions, on 10 May 2005 I dismissed the Plaintiffs’ summons and proceeded to hear the Notice of Motion. After hearing counsel on the Motion, I determined the questions of law in favour of the Defendants. I therefore dismissed the Plaintiff’s claim accordingly. The following are my reasons for these decisions.

5.  On 9 May 2005, Mr Fan quite properly informed this court that he was only instructed very shortly before the Pre-trial Review that took place on 13 April 2005. After the Pre-trial Review, the Plaintiff had sought advice from a more senior counsel in the light of the queries raised by this court as to the ownership of the land on which the tree was planted. As a result of such consultation, the Plaintiff decided to instruct an expert on Chinese customary law. Hence, whatever criticism I shall make below as to the conduct of the case on behalf of the Plaintiff must not be understood as criticism directed against Mr Fan personally. In fact, Mr Pang readily acknowledged that Mr Fan had acted properly throughout. In my view, Mr Fan has done all he possibly could for his client in a most difficult circumstance. Unfortunately, I cannot say the same in respect of those instructing Mr Fan.

6.  I should also mention that the solicitor who had the conduct of this action on behalf of the Plaintiff chose to send her assistant to attend this trial as she was engaged in another matter. However, the assistant only came into the case at a comparatively late stage (albeit earlier than Mr Fan) and he was unable to provide much assistance in dealing with conduct of the case in the past. On a number of occasions, time had to be given so that proper instructions could be taken from the solicitor having personal conduct of the case from the beginning. I must say I find that unsatisfactory, particularly in the light of the fact that there were so many aspects relating to the Plaintiff’s conduct of the case in the past that cried out for explanation in the context of the Plaintiff’s summons of 5 May 2005. Even though the solicitor made an affirmation on 9 May 2005 dealing with the conduct of the case, the affirmation raises more questions than answers. I will come back to that affirmation later on.

7.  At this juncture, I would explain the significance of the intended new evidence.  That requires an examination as to how the case had been prepared right up to the issue of the summons on 9 May 2005 by the Plaintiff. It is now common ground (although it was not so at the time of the Pre-trial Review) that the tree in question was not planted on a piece of land owned or occupied by the Plaintiff. Mr Fan very properly accepted that the Plaintiff had no interest in that piece of land. In the Statement of Claim, the Plaintiff’s cause of action was formulated as a claim based on conversion and/or trespass of the tree as a chattel as opposed to an interest in land. Under common law, a tree growing on a piece of land is not regarded as chattel (see Megarry & Wade, The Law of Real Property, 6^th Edn. Para.1-011; Re Ainslie (1885) 30 Ch D 485). Whilst there are cases where an interest in land concerning trees growing thereon was segregated from the ownership of the land based on a grant by the landowner (see Eastern Construction Co Ltd v National Trust [1914] AC 197; McDonell Estate v Scott World Wide Inc (1997) 149 DLR (4^th) 645 and Monsanto plc v Tilly [2000] Env LR 313), they could not assist the Plaintiff as there is no suggestion that either he or his predecessor had obtained any grant from the landowner.

8.  The pleadings of the Plaintiff only asserted that the Plaintiff was the owner of the tree. Paragraph 1 of the Statement of Claim is in the following terms,

“At all material times, the Plaintiff … was the owner of a lychee tree being the fung shui tree of the Plaintiff and his family … The fung shui tree had been in the Plaintiff’s family for over a hundred years and was inherited by the Plaintiff from his ancestors pursuant to local and customary law.”

9.  On 16 June 1999, the Defendants requested for particulars regarding the Plaintiff’s ownership of the tree. The following particulars were requested,

(a) how did the lychee tree first come to grow (sic)at the alleged location;

(b) how did the Plaintiff’s ancestors first acquire an interest, if any, in the lychee tree; and

(c) the provisions or details of the alleged local and customary law which the Plaintiff alleges he can rely on for the inheritance of the lychee tree.

10.  On 13 July 1999, the Plaintiff responded to such requests. As to (a) and (b), the Plaintiff said,

“These queries are matters of evidence which will be dealt with at trial.”

As to (c), the response was:

“This request relates to matters of evidence and law which will be dealt with at trial.”

11.  I do not propose to comment on the adequacy of those responses. However, it should have been clear to the Plaintiff that his “ownership” of the tree was very much in dispute and those advising the Plaintiff should have focused their attention on this issue by such requests, if not before.

12.  On 3 September 1999, the Plaintiff filed an affirmation by Lee Yun Sau, a former Vice Chairman of the Heung Yee Kuk.  In that Affirmation, Mr Lee gave some evidence about local custom as to division of assets in a village. Paragraph 6 of his Affirmation asserted, inter alias,

“In addition trees and bushes in the village were also often divided amongst families. It is common knowledge and acceptance in such villages for trees and bushes in the village to be divided and passed to the male offspring of future generations. In a typical New Territories village even today, often the inhabitants will be able to state without dispute which tree/bush belongs to which family in the village. In the original division of assets, from generations before the trees planted from their forefathers would be divided amongst the male offspring even though the tree/bush itself may be situated on land which does not belong to the family itself. Once the assets have been divided, then each of the brothers would keep those assets and pass them down to their male offspring in future generations. This is a clear custom and tradition in New Territories village.”

13.  On 19 December 2000, the Plaintiff filed another affirmation by one Lau Wan Hei, a member of Heung Yee Kuk, who gave evidence about village custom as to division of assets. Paragraph 5 of his affirmation asserted,

“I can confirm that in the old days, much of the land used by the villagers were not registered at Government Registries but the villagers would nevertheless divide amongst themselves not only land but also chattels regardless of registration. In the division and allocation of land, whatever is growing on the land for e.g. crops, trees, bushes would also pass with the land. Even when divided there would be no official record of ownership but there would be no doubt between the villagers themselves as to the ownership.”

14.  These two gentlemen also gave evidence about compensation paid by the government to the villagers during the construction of the reservoir at Man Yee Wan (viz. High Island Reservoir). It was said that the compensation included compensation for crops and trees grown on Government land.

15.  On 4 January 2001, the Plaintiff obtained directions from Master Jones including a direction that an expert on local customary New Territories law to be agreed if possible, and if not, the expert evidence be limited to one witness for each party.

16.  Nothing was done by the Plaintiff pursuant such direction. In Paragraphs 3 and 6 of the affirmation of Ms Wong of 9 May 2005, as solicitor having conduct of the case on behalf of the Plaintiff, she deposed that she believed the Plaintiff and those advising him regarded the evidence of Mr Lee and Mr Lau as experts on the relevant customary law issues.

17.  Mr Pang pointed out that that was not the stance taken by Ms Wong when she did the checklist (4 March 2002) and the revised checklist (5 March 2002) filed in support of an application for leave to set down the case for trial. In those checklists, it is quite apparent that she regarded Mr Lee and Mr Lau as factual witnesses. She was under the misapprehension that no direction has been obtained for expert evidence.

18.  When the Listing Master gave leave for the case to be set down on 6 March 2002, he also gave leave to the parties to adduce evidence of fung shui expert. Nothing was said about expert on Chinese customary law.

19.  It is against these backgrounds that the case was eventually set down for trial in 2004. As I said in the course of hearing, a litigant and those advising him should ensure that his case is ready for trial before he applied for leave to set down. The court and those on the other side are entitled to assume that a litigant would abide by the statements in his checklist and in general no further evidence are to be filed subsequent to the leave to set down. Far too often, this court has to deal with last minute applications made shortly before or during trial for amendment of pleadings and further evidence to be filed. Such applications should be exceptions rather than the norm. The court should be able to rely on the diligent conduct of solicitors in the preparation of his client’s case for trial. Otherwise, it would make a mockery of our case management system. 

20.  I think Mr Pang was quite justified in submitting that given the lack of action on the part of the Plaintiff with regard to expert evidence on Chinese customary law, the Defendants were entitled to assume that the Plaintiff had abandoned the idea of calling any expert evidence in that regard.

21.  Ms Wong said in Paragraph 6 of her affirmation that the need to obtain a further expert report only occurred to the Plaintiff as a result of the Pre-trial Review. I find that to be puzzling. I certainly made no suggestion at the Pre-trial Review to the Plaintiff to get further expert evidence. I only enquired with the parties whether there is any evidence as to ownership of the piece of land on which the tree was planted and what was the legal basis of the Plaintiff’s claim if the Plaintiff was not the owner of the land. I would imagine that these are elementary questions and those advising the Plaintiff should have sorted out the same a long time ago. As I said, the Defendants’ request for particulars should have focused the minds of those advising the Plaintiff on these questions.

22.  Ms Wong also made reference to the letter dated 11 April 2005 from this court as the reason for the Plaintiff’s attempt to file evidence from Professor Dicks. I fail to see how that could hold any water. Firstly, I made clear at the Pretrial Review that as a professional judge, I appreciated the difference in the capacity in which Mr Lee was involved in the two actions and my own inclination was that there was no justification for recusing myself. Whilst Mr Fan did reserve the Plaintiff’s position on the matter at the Pre-trial Review, the Plaintiff did not proceed with any application for recusal.  In any event, I do not think the evidence of Mr Lee can be considered on the same footing as those of Professor Dicks. At the most, Mr Lee could only testify as to what he had witnessed in terms of division of assets by villagers and compensation paid by the government. He cannot testify on the legal backing for these practices as he is not being put forward as an expert witness.

23.  I now turn to the Affidavit of Professor Dicks. I have already mentioned that Professor Dicks was unable to express any final conclusion at this stage. Professor Dicks opined that there could be customary rights over uncultivated land and he cited by way of examples right to graze animals, collect firewood or natural products. He considered that a customary right arising from the allocation of important fruit-bearing trees on a particular area of common land to particular families would be a typical method of bring order and predictability into the enjoyment of customary rights over common land by a rural community. More specifically, Professor Dicks commented that there was no general principle of fixtures in Chinese law and it seems probable (he could not put it higher than that at this stage, see Paragraphs 18 and 19 of his Affidavit) that there was no rule requiring a tree planted on a piece of land to be the property of the landowner. Reference was also made to a possible alternative by way of analogy with the concept of profits à prendre under common law. Lastly, Professor Dicks referred to the distinction between “guan tian” and uncultivated land under traditional Chinese law. He said the latter was regarded as ownerless and the accrual of customary rights on such land should survive the vesting of all land in the British Crown under the Convention of Peking.

24.  Given that it is only a preliminary opinion and the Defendants had virtually no chance to file any expert evidence in response, it would not be appropriate for me to express any views on the validity of these observations. However, it is indisputable (and Mr Fan sensibly did not seek to dispute) that if the Plaintiff were allowed to put in expert evidence from Professor Dicks, a lot of new issues would be opened up in this piece of litigation which had never been properly canvassed before. Although the cause of action will still be based on the chopping of the tree, the underlying legal basis supporting the claim will be substantially transformed. I think Mr Fan recognized this because he agreed that the Plaintiff’s pleadings needed to be amended if this evidence were introduced. However, at this stage, he was unable to formulate the proposed amendments due to the fact that the opinion of Professor Dicks has yet to be finalized. He further told me that if the application of the Plaintiff were allowed, he did not feel able to resist an order for costs that the Plaintiff shall pay the Defendants’ costs incurred in this action up to this stage. Towards the end of his submissions, Mr Fan even offered an undertaking by the Plaintiff to pay $500,000 into court to secure such costs liability on the part of the Plaintiff.

25.  The question I have to consider is whether this court could permit such a course to be taken in the circumstances of this case. It is a balancing exercise and the court must exercise its discretion in a manner fair to the parties. I have dealt with the approach that the court should adopt in dealing with late applications that would result in trial dates being vacated in several judgments and I do not propose to repeat what I have said on those occasions (see Yuen Yuk Kwan Mabel v Lead Bright Ltd HCA 336 of 2002, 18 June 2003; Man Fong Hang v Man Ping Nam HCA 7935 of 1998, 21 July 2003; Guangzhou Green-Enhan Bio-Engineering Co Ltd v Green Power Health Products International Co Ltd HCA 4651 of 2002, 21 August 2004; Chan Kwan Yin Shirley v Wu Wing HCA 7718 of 2000, 27 August 2004; contra. Ip Yin Ping v Ip Anne HCMP 1840 of 2002, 20 January 2003). Valuable guidance can be found in the judgments of the English Court of Appeal in Mortgage Corporation v Sandoes [1997] PNLR 263 and Costellow v Somerset County Council [1993] 1 WLR 256.

26.  Although I appreciate that without the new evidence, the Plaintiff would have great difficulties in establishing his case (as evidenced by what transpired in the outcome of the Motion), for the following reasons I am of the view that fairness mandates this court to act firmly and tell the Plaintiff that he already had ample opportunity to put his house in order and the Defendants had a legitimate expectation to a final adjudication of this action at this trial,

(a)	The Plaintiff should have addressed the question of customary law right from the beginning. It is an elementary principle of the common law that a tree growing on land cannot be regarded as chattel. The person who drafted the Statement of Claim for the Plaintiff should have thought about this. In any event, those advising the Plaintiff should have focused on the issue when they dealt with the Defendants’ request for particulars way back in 1999. Given what was said in the checklists filed by the solicitor for the Plaintiff in applying for leave to set down, the Defendants were entitled to assume that the Plaintiff is not going to raise any question of customary law at the trial which requires evidence from a Chinese customary law expert.
(b)	The dilatoriness on the part of the Plaintiff in the preparation of this case for trial is wholly unacceptable. The Defendants had this action hanging over their heads for 6 years. As mentioned, leave to set down was granted in 2002 and the Plaintiff had failed to set down as directed on two occasions. We are now in mid-2005. It should be apparent from what I have said above that I took a dim view of  Ms Wong’s conduct of this case. Despite her attempt in explanation, I am in agreement with Mr Pang’s submission that such conduct can be characterized as “reckless”. There is a faint suggestion that the lack of proper preparation for trial was attributable to ongoing settlement negotiations between the parties. As far as I am concerned, this can never be an excuse and any reasonably competent litigation solicitor should know better than that.
(c)	If the Plaintiff succeeds on his summons, much works have to be done by the Plaintiff and the Defendants. The case would not be ready for trial until all the new evidence is in place. At this moment, the Plaintiff is unable to tell how much additional evidence would be put in. Not only is the final report of Professor Dicks not yet ready, the Plaintiff is also gathering additional witness statements from other witnesses as revealed in the summons of 5 May 2005. Due to the fact that those statements have yet to be finalized, the Plaintiff applied by a summons dated 6 May 2005 deleting the reference to those other additional witness statements in the summons of 5 May 2005. If the Plaintiff gets leave to put in all these new materials, the Defendants would have to respond to the same and this could take considerable time. Judging from my experience and the manner this case has been prepared in the past, it would not be surprising if the parties take another 9 months to have the new evidence in place. Due to the state of the court’s diary, it would take another lengthy period before the trial can actually start. Bearing in mind that we are talking about events in 1998, such further delay of the trial should not be lightly allowed.
(d)	Quite a number of witnesses who had given witness statements are people of advanced age, ranging from 70s to 90s. One witness has passed away. Although that was a witness for the Plaintiff, the Defendants are prejudiced by losing the chance to cross-examine him. To the extent that the memory of any  witnesses might deteriorate if there were to be further delay, the Defendants would suffer further prejudice.
(e)	Even if the Plaintiff could get over the question of liability by reference to expert evidence on Chinese customary law, there is still a conspicuous absence of material before me to suggest that the Plaintiff has any real prospect of establishing a quantum larger than the value of an ordinary tree. Mr Fan frankly told the court that he had asked the same question but to no avail. The legal costs that parties would have to incur if the new evidence is permitted would apparently be wholly disproportionate to the claim. Of course, parties are entitled to litigate on their rights even though the subject matter involved might not be of high monetary value. However, when indulgence is sought, the court is entitled to examine the costs implications of such indulgence on the other parties (see (f) below).
(f)	Although the Plaintiff said he would be good for any costs liability if he failed in his claim, the only asset he was prepared to disclose to this court is a piece of land in the village. However, that piece of land was held in the joint names of the Plaintiff and his two brothers. That could present all sorts of problems in enforcement of judgment on costs. In short, on the material and submissions presented to me, I am not satisfied that the Defendants would have no difficulty in recovering costs from the Plaintiff. The prejudice would be compounded if the case were adjourned for new evidence to be filed. Substantial amount of additional costs would have to be incurred by the Defendants.
(g)	As Lord Griffiths said in Ketteman v Hansel Properties [1987] 1 AC 189 at p.220, “there will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall upon their own heads rather than by allowing an amendment at a very late stage of the proceedings.”

27.  I therefore dismissed the application by the Plaintiff.

28.  Turning to the Motion, it is not disputed by the Plaintiff that the tree was planted on a piece of land on which he had no interest. The Statement of Claim advanced a claim on the basis that in chopping down the tree, the 1^st to 3^rd Defendants committed the tort of trespass and/or conversion and damages were sought by way of relief.

29.  Without the expert evidence on Chinese customary law, the Plaintiff is unable to establish that he had any interest in the tree that could support a claim in trespass and/or conversion. I do not think the evidence of Mr Lee or Mr Lau or the other factual witnesses, even if they were believed, could take the matter further. They are not experts on customary law and they could not explain the legal basis for asserting that the Plaintiff had a legal claim when the common law points otherwise. Even in the context of Section 13 of the New Territories Ordinance, a line needs to be drawn between traditional practices and customs enforceable by law.  Taking them to the highest, those factual evidence only amount to evidence of traditional practices. Whether such practices could be elevated into the status of custom or customary rights enforceable by law is a question on which the Plaintiff had failed to file any admissible evidence. Mr Fan was unable to offer any submissions to the contrary.

30.  As regards the 4^th Defendant, he was not involved in the chopping of the tree. The Statement of Claim alleged that as elected village representative of the village, he owed a duty to the Plaintiff to ensure his interests and well being were protected. The following are pleaded as particulars of alleged breach of duty on his part.

(a)	as village representative and an indigenous villager himself, the 4th Defendant knew or ought to have known that the fung shui tree belonged to the Plaintiff;
(b)	failed to ensure and oversee that the 1st Defendant’s construction of the said residential building and the actions and directions of the 2nd and 3rd Defendants would not encroach or trespass on to the Plaintiff’s property;
(c)	failed to carry out his duties as village representative to protect the Plaintiff’s interests and failed to ensure that the activities of his constituency were properly monitored;
(d)	failed to prevent the fung shui tree from being chopped down and removed or alternatively allowing the fung shui tree to be chopped down without the matter being referred through the proper channels and without the consent and knowledge of the Plaintiff;
(e)	failing to take any action as village representative to remedy the situation and negotiate a settlement between the parties after reporting to the Plaintiff on 24th April 1998 that “his tree” had been chopped down;
(f)	avoiding his duties and responsibilities by asking the Plaintiff on 24th April 1998 and subsequently thereafter, not to take any action against the wrong doers and not to cause a “fuss”.

31.  Mr Pang invited this court to examine the function and power of a village representative by reference to the Heung Yee Kuk Ordinance Cap 1097 and Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459 at p.467. It is difficult to see how it could be suggested that a village representative had any power to prevent the 1^st to 3^rd Defendants from chopping the tree. Nor could I see how it could be suggested that a village representative had any power to impose a settlement negotiation on the parties. Without any powers of such nature, the 4^th Defendant was in the same position as any other villagers living in the vicinity. Under such circumstances, it is impossible to see why the 4^th Defendant owed the Plaintiff the duty as alleged. It is neither here nor there whether the 4^th Defendant were aware of the Plaintiff’s “interest” in the tree and whether he had asked the Plaintiff not to take any action. Again Mr Fan was unable to say anything to support the claim against the 4^th Defendant.

32.  It would be a waste of time and costs to hear the evidence in such circumstances. I therefore decided to entertain the Motion and determined the questions in favour of the Defendants. It followed that the Plaintiff’s claim must be dismissed.

33.  Lastly, I want to say something about a letter written by solicitors for the Plaintiff on 25 April 2005. That was written after the Pre-Trial Review. With the trial due to commence in two weeks’ time, the solicitor wrote to solicitors for the Defendants saying that the Plaintiff wished to limit his claim to an amount not exceeding $1 million and asked the Defendants to consent to have the case transferred to the District Court. The solicitor had not offered any explanation as to why such a letter was written. Making this suggestion at such a late stage (by then most of the costs for preparation of trial would have been incurred) was bizarre. The question of quantum and proper venue for trial should have been considered right at the beginning when the action was commenced. As mentioned, even up to now the Plaintiff had insufficient evidence to enable his counsel to properly quantify the quantum. Coupled with the fact that the solicitor surely appreciated by 25 April 2005 that the Plaintiff’s house was in a complete disarray, the inevitable inference is that such a letter was written with a view to put off the trial dates by the backdoor, knowing full well that the Plaintiff might not be able to succeed in an application for adjournment. Of course the tactic was not successful. At the end of the day, the letter only serves to reflect badly on the solicitor involved.