Winpo Development Ltd v. Wong Kar Fu and Others

CAMP 32/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 32 OF 2017

(ON AN INTENDED APPEAL FROM HCA NO 3541 OF 1993)

____________

AND BETWEEN

AND BETWEEN

AND

CAMP 33/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 33 OF 2017

(ON AN INTENDED APPEAL FROM HCA NO 2228 OF 2011)

____________

____________

____________

(By Order to carry on proceedings

dated 1 November 2016)

____________

Before :   Hon Lam VP and Poon JA in Court

Dates of Written Submissions : 4 and 17 October 2017

Date of Judgment :  16 November 2017

______________

J U D G M E N T

______________

Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.Before this Court are 2 summonses taken out by the Plaintiffs on 4 October 2017 applying for leave to appeal against the order made by Mr Recorder Whitehead, SC (“the Judge”) on 18 January 2017, the 4^th day of the consolidated trial of HCA 3541/1993 and HCA 2228/2011 (“the Actions”) granting leave to the 3^rd Defendant in HCA 3541/1993 and the 1^st Defendant in HCA 2228/2011 (“the Defendants”) to admit 23 electricity bills dated since 4 January 1994 till 5 January 2012 (“the Electricity Bills”) as evidence in the trial.

2.The Plaintiffs requested that the 2 summonses be heard together with the substantive appeals, CACV 140 & 141/2017, they brought on 4 October 2017 against the main judgment handed down by the Judge on 26 May 2017 (“the Main Judgment”).  We considered that, as a matter of proper case management, the 2 summonses should be disposed of before the substantive appeals.  We therefore directed the parties to file their written submissions.  Having considered their submissions, we took the view that the 2 summonses can be disposed of on paper without an oral hearing.  We now hand down our judgment.

BACKGROUND

3.The background leading to the Actions is in the Main Judgment, which we would respectfully adopt.

4.In brief, the Plaintiffs are the registered owners of the landed properties, the subject matters of the Actions (“the Disputed Lots”).  The Defendants alleged that they had, since 1952, assumed and enjoyed exclusive possession and occupation of the Disputed Lots adverse to the title and interest of the Plaintiffs.

APPLICATION TO ADMIT THE ELECTRICITY BILLS

5.The trial took place before the Judge in January 2017.  During the trial, the Defendants applied to produce the Electricity Bills as evidence to show that their family had occupied the Disputed Lots at least from 1960s so as to establish their case on adverse possession.  The Plaintiffs opposed the application.

6.Having considered the submissions from both parties, the Judge concluded that the failure to make discovery of the Electricity Bills at an earlier time was a genuine oversight by those representing the Defendants, and not the result of any conscious manoeuvring; that the Electricity Bills were relevant to the issues before the court, and that any prejudice to the Plaintiffs was minimal.  The Judge therefore held that it was in the interests of the just resolution of the case that they be admitted as evidence.

LEAVE TO APPEAL

7.After the conclusion of the trial and while judgment was pending, the Plaintiffs on 1 February 2017 took out 2 summonses for leave to appeal against the Judge’s decision to admit the Electricity Bills at trial.  The grounds of appeal, in essence, were (i) the late admission of the Electricity Bills caused prejudice to the Plaintiffs and deprived them of the chance to investigate the authenticity of the documents and to cross-examine the makers and (ii) the decision to admit the Electricity Bills was outside the generous ambit with which a reasonable disagreement is possible.

8.The hearing of the 2 summonses were then adjourned pending the judgment of the Actions to be handed down.

9.On 26 May 2017, the Judge handed down the Main Judgment, dismissing the Plaintiffs’ claims and making declarations that (i) the Defendants has established possessory title to the Disputed Lots, (ii) the Plaintiffs are barred from bringing any action in law to recover the land, and (iii) the Plaintiffs’ title to the Disputed Lots was extinguished at a time before the issue of the Writ pursuant to section 17 of the Limitation Ordinance, Cap 347.

10.The Plaintiffs’ 2 summonses for leave to appeal against the orders for admission of Electricity Bills were heard on 20 September 2017.  By Decision handed down on the same day, the Judge dismissed the Plaintiffs’ application for leave to appeal with the following reasons :

(1) The court was satisfied that the exclusion of the Electricity Bills from earlier disclosure was just a matter of oversight, as opposed to any tactical manoeuvring.  The admission of the bills was for just resolution of the case.

(2) As to the issue of prejudice, the court considered that the Electricity Bills were simply a number of electronically generated utility bills of some antiquity and there was nothing dubious about their origin.  Given the age of the bills, it was unlikely that the makers could have been identified, and even if they were, there was no legitimate need to cross examine them.

(3) Further, the issue of electricity being supplied to the Disputed Lots was raised in the pleadings as early as 2011, and a number of electricity bills were then produced by the Defendants.  Thus, the issue of electricity supply was no surprise to the Plaintiffs.

(4) The Plaintiffs’ contention about being overly distracted by the Defendants’ several late applications was rejected.  The Judge considered that the Plaintiffs’ counsel was able to deal thoroughly with his objections to the discovery application relating to the Electricity Bills and he did not apply for adjournment in response to the newly admitted evidence.

(5) Lastly, the court, in admitting these electricity bills, reserved its position as to the weight to be attached to the same.  Although the bills were relevant and lent support to the Defendants’ case, it was not a determinative factor.  Even had the court not admitted the Electricity Bills into evidence, the court would still have reached the same conclusions upon the merits of the case.

THE RENEWED APPLICATION FOR LEAVE TO APPEAL

11.By way of the 2 summonses taken out on 4 October 2017, the Plaintiffs now renew their application for leave to appeal before us.

12.Under section 14AA of the High Court Ordinance, Cap 4, leave will not be granted unless the court is satisfied that :

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.

13.Such leave to appeal is not lightly granted especially for a case management decision.  This Court has repeatedly pointed out that case management decisions are within the province of first instance judge and the appellate court should not interfere or substitute its own view as to what is reasonable for that of the judge unless it is satisfied that the judge’s decision was plainly wrong.  A party who seeks to challenge a case management decision such as the one made by the Judge faces a very high hurdle; he must show that the judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational: Wong Kar Gee Mimi v. Severn Villa Ltd [2012] 1 HKLRD 887 at [31]; see also Cheung Yee Mong v. So Kwok Yan [1996] 2 HKLR 48 at 51 and Lee Tak Yee v. Chen Park Kuen [2001] 1 HKLRD 401.

14.With these principles in mind, we turn to the Plaintiffs’ Grounds of Appeal.

15.Grounds 1, 2 and 4 can be dealt with together.  Ground 1 complains that the Judge erred in principle to have admitted the Electricity Bills when the Defendants did not have any good or satisfactory reason for the “extreme lateness” in disclosing and producing the Electricity Bills.  Grounds 2 and 4 complain the Judge was plainly wrong to have found that the prejudice caused to the Plaintiffs were minimal by such late admission of the Electricity Bills and the Plaintiffs were deprived of the chance to investigate the authenticity of the documents.

16.In our view, the reason for late disclosure is not the only determinative factor that the court needs to consider in an application for late disclosure.  Depending on the actual circumstances of the case, absence of a satisfactory explanation for the delay may be fatal to the application.  In other cases, it may not.  Hence, the Judge, for the reasons that he gave, is entitled to accept the Defendants’ explanation and find that the prejudice caused to the Plaintiffs was minimal.

17.Further, it is significant to note that the Plaintiffs did not apply for any adjournment of the trial to carry out any investigation on the authenticity of the Electricity Bills.  Even with the alleged prejudice, they were content to carry on with the trial.  The decision then not to apply for an adjournment very much militates against their contention now that they had suffered the prejudice as alleged.

18.We further note that the Judge had reminded himself when admitting the Electricity Bills to reserve his position as to the weight to be attached to them.  When dismissing the Plaintiffs’ leave to appeal for the admission, the Judge explained at paragraphs 11 to 15 of that judgment how the late admission of the Electricity Bills could not have caused any real prejudice to the Plaintiffs.  We cannot see any error in that analysis.

19.Ground 3 complains that the Judge failed to consider or put sufficient weight to the fact that the Defendants had made quite a number of late interlocutory applications that hampered the Plaintiffs’ preparation for the trial and the adverse effect of these previous late applications made the cumulative effect of the late admission of the Electricity Bills even more prejudicial to the Plaintiffs.

20.We have already explained why the Plaintiffs could not have suffered any real prejudice by the late production of the Electricity Bills.  Absence any such real prejudice, we fail to see how the earlier interlocutory applications, against which no appeal had been brought, can add anything to the Plaintiffs’ complaint.

21.Ground 5 concerns the Judge’s finding that the Defendants did not manoeuvre on purpose for the late disclosure of Electricity Bills.  We can see no basis whatsoever to interfere with the Judge’s finding.

22.Grounds 6 and 7 complain that the probative value of the Electricity Bills was plainly not sufficient to override the lateness and/or prejudice but on the other hand, the lack of the same will substantially affect the Defendants’ chance to discharge the burden of proof and therefore, it is plainly wrong to admit the documents. The Judge clearly had in his mind the relevance and probative value of the Electricity Bills and the possible prejudice that might be caused to Plaintiffs by their late production when he allowed the Defendants’ application.  We can see no substance in this complaint.

DISPOSITION

23.In sum, the Judge had duly considered the relevance of the Electricity Bills, and balanced the interest of the parties and prejudice that might be caused to the Plaintiffs by their late production before allowing their admission as evidence at trial.  We can see no basis to interfere with his case management decision.

24.For the reasons stated above, we are not satisfied that the Plaintiffs’ intended appeal has any reasonable prospect of success.  There is no other reason in the interest of justice why the appeal should be heard either.  Accordingly, we dismiss the Plaintiffs’ two summonses dated 4 October 2017.

25.As the Plaintiffs’ applications are devoid of merits, we make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, Cap 4A, that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.

26.Costs should follow event.  We order the Plaintiffs to pay the costs of the Defendants, to be assessed summarily.  We further direct the Defendants to file and serve a skeleton bill of costs (not more than 2 pages) within 14 days from the date of this judgment and the Plaintiffs to file and serve a statement of objection (not more than 2 pages with no exhibits) within 14 days thereafter.  We will then assess the Defendants’ costs on paper.

Mr Chan Chi Hung, SC, leading Mr Liu Cheong Wang Jerome, instructed by Kao, Lee & Yip, for the plaintiffs in CAMP 32/2017 & CAMP 33/2017

Mr Lam Chin Ching Gary, instructed by Haldanes, for the 3^rd defendant in CAMP 32/2017 and the 1^st defendant in CAMP 33/2017