Pang Moon Wan v. Yu Chi Foon and Others

DCMP 2331/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2331 OF 2015

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DECISION

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1.By the summons dated 6 April 2016, the Plaintiff applies for leave, inter alia, that:-

a.  The estate of Pang Kwong Wan (彭廣運) (the “Plaintiff’s father”), to be joined as the 2^nd Plaintiff (the “Intended 2^nd Plaintiff”).

b.  The Plaintiff be appointed to represent the estate of Pang Kwong Wan, deceased (the “Plaintiff’s father”), to carry on the present proceedings.

c.  Leave to Ho Oi Fung (何愛鳳) (by her next friend and son, Pang Chiu Fat (彭照發)) (the “Plaintiff’s mother”),  to be joined as the 3^rd Plaintiff to the present proceedings.

2.O 20 r 8 (1A) of the Rules of the District Court (“RDC”) states that the court shall not order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

3.O 25 r 3 (3) of RDC states that the court shall not grant an application, where a milestone date is to be varied, unless there are exceptional circumstances justifying the variation. 

4.I refuse the application to add the Intended 2^nd Plaintiff as the 2^nd Plaintiff for the following reasons:-

a.  There is technical difficulty for the 2^nd Plaintiff to be joined and to grant the carry on order on the same date.  The amended writ should be served first.

b.  In my view, such joinder is not necessary for the disposal of the matter.  If the Plaintiff could prove adverse possession by his father, his successors, say for example, the Plaintiff’s mother or the Plaintiff, by way of receiving the rent or otherwise, may be the successive dispossessor.  If the land is dispossessed by the Plaintiff’s father, after his death, his family members remain in possession, the chain of possession would not be broken.

5.Para 20/8/6 of the Hong Kong Civil Procedure 2016 states that the guiding principle of cardinal importance on the question of amendment is that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings ……”.  “It is a well established principle that the object of the Court is to decide the rights of the parties, not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights……”.

6.The summons was taken out on 6 April 2016 and the substantial hearing is on 10 May 2016.  The trial is scheduled to commence on 13 June 2016.  The in between period from the date of the proposed order to the trial date is more than one month.  Under the normal course, I do not think that the trial dates will be disturbed.

7.I accept the Plaintiff’s submission that the joinder of the Plaintiff’s mother will not need further evidence.  The materials for the mother’s claim have been included in the existing evidence.  The amendments to the Statement of Claim are only minimal.

8.As to the Defendants’ submission of conflicting claims of the Plaintiff and his mother, I agree that it is not appropriate to go to the details of the merits of the case at this stage (Para 15/6/1 of Hong Kong Civil Procedure 2016).  It is trite that for adverse possession cases, the burden of proof is on the dispossessor and compelling evidence must be produced.

9.I doubt whether the Defendants’ position is prejudiced by the Plaintiff’s mother’s dementia.  After all, the Plaintiffs bear the burden to prove their case.  Even if there is prejudice to the Defendants, in the balancing exercise, the discretion is made in favour of the Plaintiff.

10.Given that the trial dates are imminent, it seems to me that any interlocutory application is not necessary, and any clarifications can be done at the trial.

11.I order that:-

a.  Leave to Ho Oi Fung (何愛鳳) (by her next friend and son Pang Chiu Fat (彭照發)) to join as the 2^nd Plaintiff to the proceedings.

b.  Leave to the Plaintiffs to make consequential amendments to the Originating Summons and the Re-Amended Statement of claim.

c.  The Plaintiffs shall file and serve the Amended Originating Summons and the Re-Re-Amended Statement of Claim on or before 12 May 2016.

d.  The Defendants shall file and serve the Amended Defence and Counterclaim on or before 19 May 2016.

e.  Leave to the Plaintiffs to file and serve the Amended Reply (if any) on or before 23 May 2016.

f.  Costs of and occasioned by the application be to the Defendants in any event, to be taxed if not agreed.  Costs for the hearings on 15 April 2016 and 10 May 2016 be in the cause.

Mr Patrick Chong, instructed by Hui & Lam, for the Plaintiff & Intended 2^nd Plaintiff & 3^rd Plaintiff

Mr Raymond Lau & Mr Fung Pak Kay, instructed by W K To & Co, for the 1^st to 4^th Defendants