Chea Shiu Chow v. Cheung Wai Keung the Personal Representative of Cheung Chit Chiu, Deceased and Others

HCA 1346/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1346 OF 2012

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(by original Writ and Order to carry on dated 26 January 2017)

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Before:  Hon Lisa Wong J in Chambers

Date of Hearing:  7 April 2017

Date of Decision on Costs:  7 April 2017

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DECISION ON COSTS

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1.Before the court is the summons dated 7 March 2017 (“Summons”) by the first-named 1^st defendant and the 2^nd defendant (“applying defendants”) for an order that the plaintiff provides them with 5 classes of original documents signed by Mr Chea Shiu Chow (who was until his death on 20 October 2016 the plaintiff in this action) (“Mr Chea”) in the years 1994 and 1995.

2.At the invitation of the parties, I make no order on the Summons (save as to costs) upon the plaintiff confirming through counsel that what appears to be Mr Chea’s signature on the document pleaded in paragraph 3 of the 2^nd defendant’s Amended Defence and Counterclaim (“Document”) is indeed Mr Chea’s signature.

3.What the parties cannot agree upon is who should bear the costs of and occasioned by the Summons. 

4.To put the costs argument in context, the purpose for which the applying defendants seek the said original documents was to establish the authenticity of the Document by having Mr Chea’s signatures on the documents that are the subject-matter of the Summons compared against what appears to be Mr Chea’s signature on the Document.[1]

5.To explain the relevance of the Document, by this action, Mr Chea and, after his death, his estate represented by his daughter Madam Chea So Man (“Madam Chea”) seek a declaration that Mr Chea has acquired possessory title to Lot No.539 in Demarcation District 84 and Lot No.440 in Demarcation District 87 (“Lots” collectively).  The Document is, on its face, a Chinese tenancy agreement dated 4 December 1994 made between the 2^nd defendant as landlord and Mr Chea as tenant in respect of the Lots.  It is therefore material to the issue whether Mr Chea and his family’s occupation and use of the Lots since about March 1995 is as of right or as of wrong.  In support of the former in defence to the claim to possessory title of the Lots, the applying defendants produce the Document and contend that Mr Chea entered into the Lots pursuant to the tenancy contained in the Document.

6.Such tenancy was first mentioned in, and the Document produced by, the Affirmation of Cheung Wai Keung filed on behalf of the 2^nd defendant on 2 January 2013 (“Affirmation”) (which was made in support of the 2^nd defendant’s application to be joined as a defendant to this action).  It was then formally pleaded by the 2^nd defendant in paragraphs 3, 4, 9, 11, 12, 22, 24, 25, 26, 28 and 29 of her Defence and Counterclaim filed on 3 March 2014.

7.It is fair to say that, prior to June 2016, Mr Chea’s position regarding the Document and the tenancy prima facie contained in it had consistently been one of denial.  That is to say, he denied having signed the alleged or any tenancy agreement with the 2^nd defendant in respect of the Lots. See paragraph 6 of Mr Chea’s Affirmation dated 20 January 2013 in opposition to the 2^nd defendant’s application for joinder.  See also paragraphs 3, 4, 5, 6, 7 and 10 of the Reply and Defence to Counterclaim of the 2^nd Defendant filed on 31 March 2014.

8.Notwithstanding such denial on pleading, it was subsequently sufficiently made clear by the statements of Mr Chea and his witnesses, all dated 23 June 2016, that Mr Chea’s true case on the Document is that he did sign the Document (though he no longer had any independent recollection of having done so due to the lapse of time) but it was a sham to disguise the true nature of the annual payments of $2,000 extorted from Mr Chea by some villagers surnamed Cheung to ensure the smooth movement of his plants in and out of Lee Uk Tsuen, North New Territories in which the Lots are situate.

9.In this regard:

(1)  Paragraphs 7, 8 and 10 of the Witness Statement of Mr Man Tung Sang (who is the brother-in-law of Mr Chea’s wife and who actually drafted the Document at Mr Chea’s request) contain the following contents:

“其後，本人到車先生家中飯聚，車先生便對本人說當日白天，有張姓人士到他家中問及他是否正為親友尋找土地，如想日後道路暢通，出入順利，便需每年繳交港幣貳仟圓（HK$2,000）作路費，並留下一名張姓人士資料之字條，要求本人擬定及簽署一份租約形式的文件作掩飾。因本人認為此文件並不恰當，所以本人拒絕受其牽連。當時，車先生對本人說鄉村地方常有類似事件，小事一椿，沒有什麼問題，亦因土地實為車先生購買，他便著本人根據張姓人士要求以他的名義草擬該文件，並由他簽署。再者，由於車先生已決定從胡先生處購入涉案土地，不想有人從中作梗，而影響與胡先生的交易，亦為求搬遷順利，出入安全，可以無憂地繼續做花農生意，便著本人按照他們的意思去做，亦不需要向家人提及以免家人不安。本人現將張偉強於誓章提交之附件CWK-5文件第一頁副本列為証物 ”MTS-2”。本人從未接觸過張姓一伙人，包括文件上所寫的張樨英。” (emphasis added)

“當時本人與車先生均清楚知道該文件絕對不是租約，只是一份偽裝為租約的文件，用來掩飾張姓人士要收取過路錢那些不合法的行為。… 這只是為了車先生家人及生意出入方便而作的文件。本人在此澄清，張偉強於誓章提交之附件CWK-5文件第二頁並非本人筆跡，本人記憶中車先生曾告知本人張姓人士於其後取回文件時，見非本人簽署文件，要求車先生額外提供本人之通訊地址，當中之郵政信箱地址是本人當時所有。”

“直至2016 年農曆年後，車先生女兒宴請本人到她新居作客，飯後談及涉案土地之案件，本人才將事情告知。車先生女兒才知道當年曾有此事。”

(2)  Paragraph 16 of the Witness Statement of Madam Chea reads as follows:

“直至2016 年農曆年後，本人宴請文東生先生（即本人之姨丈）到新居作客，本人與姨丈飯後談及涉案土地之案件，姨丈才將本人父親當年曾簽署一份有關買路錢的文件之事告知本人。本人現將張偉強於誓章提交之附件CWK-5文件第一頁副本列為証物 ”CSM-2”。其後，本人向父親問及有關該份文件之事，父親稱已完全沒有印象自己曾簽署該份文件。”

(3)  Paragraph 32 of the Witness Statement of Mr Chea reads as follows:

“於2016 年農曆新年後，本人女兒向本人概述與文先生談及涉案土地之案件及那份本人與張樨英簽署之所謂租約，本人才依稀記得當年曾有此事，但直至目前為止本人仍然無法記起有關細節或詳情；而本人相信文先生所言非虛。本人採納有關此文件的証人口供，本人一向明白張姓族人在打鼓嶺的勢力甚是，為了家人出入平安及生意能順利運作，所以本人是願意每年付出港幣貳仟圓（HK$2,000）過路費給姓張人士。本人現將張偉強於誓章提交之附件CWK-5文件第一頁副本列為証物 ”CSC-7”。本人一向不與人爭執，也不願家人或生意受滋擾，本人一直不會拒絕小數目的支出以保道路暢通及與村民和睦。其實每年農曆年底，正當我們極之繁忙之際，往往有些有勢力人士包括村委及鄉事到來索取利是˴免費年枯及年花，本人一向不會拒絕。” (emphasis added)

10.I have not overlooked paragraph 34 of Mr Chea’s statement by which he denied having signed any tenancy agreement in respect of the Lots.  However, reading paragraph 34 in context, it is sufficiently clear that what Mr Chea meant is that he had not signed any real tenancy agreement regarding the Lots.

11.Anyone reading these witness statements would have realised that it is now accepted that Mr Chea did sign the Document and that what is in issue is whether the Document was intended to embody a genuine tenancy agreement, but not the applying defendants or those acting for them.

12.Despite the clear terms of the said witness statements filed and served on behalf of the plaintiff, by a letter dated 20 January 2017 from their solicitors, Messrs Edmund Cheung & Co (“ECC”), to the plaintiff’s solicitors, Messrs Cheung & Yip (“CY”), the applying defendants requested the plaintiff to produce the documents sought by the Summons for comparison against the tenant’s signature on the Document by a handwriting expert.  They so requested on the basis that the plaintiff still disclaimed Mr Chea’s signature on the Document (which is not the case).

13.Unfortunately, instead of correcting the applying defendants’ wrong understanding that the plaintiff was still disputing the authenticity of the Document, by a letter dated 17 February 2017 from CY to ECC, the plaintiff asked for time to locate the documents sought.  (Indeed, by her Affirmation filed on 31 March 2017, Madam Chea confirms that she has made a thorough search of Mr Chea’s belongings and has found just one document falling with the description in the schedule to the Summons.)

14.Without waiting to hear further from the plaintiff, the applying defendants took out the Summons on 7 March 2017.

15.In the meantime, the plaintiff’s revised position regarding the Document has been formalised by amendments to the Reply and Defence to Counterclaim of the 2^nd Defendant made on 15 March 2017.  In particular, paragraph 4B (a new paragraph) contains the following sub-paragraphs:

“(d) Mr Man drafted the bogus agreement in accordance with the demand of the Cheung’s clan.”

“(f) In the premises, there was never any landlord and tenancy (sic) relationship between the Plaintiff and the 2^nd Defendant, by reason that the purported tenancy agreement is a sham and a bogus agreement to disguise the aforesaid extortions of the Villagers surnamed Cheung.”

“(i) The only reason for the Plaintiff to enter into the bogus tenancy agreement was to ensure that his business can enjoy smooth transportation through the Village at the small price of $2,000/year.”

“(j) In the premises the purported tenancy agreement was a sham to cover up the aforesaid extortion acts of some Villagers surnamed Cheung.”

16.It is clear to me that whether or not Mr Chea did sign the Document ceased to be a live issue as from the filing and service of the plaintiff’s said witness statements in June 2016, well before the issue of the Summons.

17.I cannot agree with the submission made by Mr K M Chong, counsel for the applying defendants, that it remains necessary for his clients to proceed with the Summons even after the filing of the Amended Reply and Amended Defence to Counterclaim of the 2^nd Defendant on 15 March 2017 because there are still no express admissions that Mr Chea “had been privy to the 1994 tenancy (bogus or otherwise)” or that “the signature purporting to be her (sic) on the 1994 tenancy was [Mr Chea]’s signature”.  To the contrary, even after the amendments made on 15 March 2017, the plaintiff has maintained in paragraph 3 of the Amended Reply and Amended Defence to Counterclaim of the 2^nd defendant the challenge to the Document, including its authenticity.

18.With respect, Mr Chong is being pedantic.  While the Amended Reply and Amended Defence to Counterclaim of the 2^nd Defendant could most certainly have been better drafted, the non-admissions/denial with which counsel is concerned must be viewed against the rest of the pleading which sets out a positive case that Mr Chea signed the Document but not for the purpose of taking a tenancy of the Lots as the Document was made out to show.

19.Anyway, the plaintiff has by the abovementioned witness statements (paragraph 9 above) committed to a case on evidence that admits the signing of the Document by Mr Chea. 

20.Any inconsistencies between the plaintiff’s pleading (whether before or after amendment) and the evidence contained in the plaintiff’s witness statements or ambiguities as to their precise meanings could and should have been clarified by correspondence between the parties’ solicitors.

21.For these reasons, I would have dismissed the Summons had I been asked to rule on it, on the ground that it is now common ground that Mr Chea did sign the Document.

22.Although costs should normally follow the event, in this case, the plaintiff and/or those acting for her are not at all blameless. This application could and would have been avoided if the plaintiff’s solicitors had properly answered ECC’s letter dated 20 January 2017 by pointing out that the applying defendants were proceeding on the wrong basis and that the plaintiff would no longer contest Mr Chea’s signature on the Document.

23.I believe the court should express its disapproval of both parties’ handling of this matter by making no order as to costs.

Ms Dora K.H. Chan, instructed by Cheung & Yip, for the plaintiff

Mr K.M. Chong, instructed by Edmund Cheung & Co, for the first-named 1^st defendant & the 2^nd defendants