Yim Kow (釋衍隆) As Manager of Po Lam Tong (寶林堂) v. Kong Wing Hon (江榮漢) Otherwise Known As Sik Hin Fung (釋衍峰) Otherwise Known As衍峰 Otherwise Known As Sik Guo Lam (釋果林)

DCCJ 3583/2016

[2021] HKDC 861

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3583 OF 2016

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Coram: His Honour Judge H. Au-Yeung in Chambers (Open to Public)

Date of Hearing: 14 July 2021

Date of Decision: 14 July 2021

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DECISION

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THE APPLICATION

1.This is the plaintiff’s application to amend his Statement of Claim which is made by virtue of summons filed on 22 June 2021 (“the Summons”). 

2.While the hearing today is supposed to be a call-over hearing and only 3 minutes have been reserved, parties have made substantive argument on the Summons because the trial of this action is going to commence soon on 27 July 2021.

THE PLAINTIFF’S CASE

3.In the present case, the plaintiff seeks to recover vacant possession of some pieces of land and the extension thereto (“the Land”) and the buildings erected thereon which is known as, among other names, “Kei Yuen” (“Kei Yuen”).  Among other things, it was pleaded in the Statement of Claim that:

(1)  Sai Chuk Lam Zen Monastery (西竺林禪院), otherwise known as Sai Chuk Lam (西竺林) (“Sai Chuk Lam”), was and is a Buddhist Zen Monastery, being an unincorporated association of Buddhist monks having the right to possess, inter alia, the Land and Kei Yuen;

(2)  In around August 1992, by an oral licence given to the Defendant through the then chief managing monk of Sai Chuk Lam and Kei Yuen, the defendant was permitted to occupy the Land and Kei Yuen (“the Licence”);

(3)  Since 1998, the overall managing right of Sai Chuk Lam, including the right to possess, inter alia, the Land and Kei Yuen has been passed on to Po Lam Tong (“T’ong”), which has since 1967 been and still is a t’ong within the meaning of section 15 of the New Territories Ordinance (Cap.97, Laws of Hong Kong);

(4)  The Licence was terminated on 6 August 2004, and the T’ong is entitled to recover vacant possession of the Land and Kei Yuen from the defendant since 7 August 2004.

DISCUSSION

4.In essence, the plaintiff is seeking to give particulars to two averments already pleaded in the Statement of Claim, namely:

(1)  how Sai Chuk Lam as a whole have the right to possess the Land and Kei Yuen;

(2)  how the managing right of Sai Chuk Lam including the right to possess the Land and Kei Yuen was passed to Po Lam Tong.

5.Although I agree that the particulars which are sought to be added do not amount to a new case, I am of the view that the plaintiff should not be allowed to make the proposed amendments at this late stage, for the following reasons:

(1)  If the present application is allowed, the defendant would have to be given time to file his Amended Defence.  The defendant’s counsel, Mr Johnny Chan, told me that he would need 14 days, which is very reasonable.  However, the trial shall commence on 27 July 2021 (i.e. 13 days later).  There is no reason why the defendant should be forced to file his amended pleading in just slightly more than a week only for the sake of rescuing the plaintiff’s late application.  I do not agree with the plaintiff’s submission that the defendant should have taken instructions and prepared for the drafting of the Amended Defence in advance, because it might well be a waste of costs for the defendant to do so.

(2)  On the other hand, if the defendant is going to be given the usual time of at least 2 weeks to consider how his Amended Defence is to be drafted, the trial will unavoidably have to be vacated.  Given it is a milestone date, this will not be done unless there are exceptional circumstances.  However, the plaintiff has not put forward any such reasons at all. 

(3)  The problem herein does not stop there, because it is the defendant’s case that if the proposed amendments are allowed, he will need to call an additional witness to answer the new matters as pleaded in sub-paragraphs (4), (5) and (6) of the particulars under paragraph 1 of the draft Amended Statement of Claim, which have the combined effect of alleging that the legal title of the Land was held for the benefit of all the Buddhist disciples of Sai Chuk Lam and that those disciples have the right to possess the Land and Kei Yuen.  If a new witness statement has to be prepared, it is unavoidable that the trial has to be vacated.  Mr Stony Chan counter-argued that since these matters have been referred to in paragraph 4 of the Defence, the defendant should have adduced evidence to cover this area.  With respect, I do not agree with the plaintiff.  The said paragraph 4 of the Defence merely pleaded that Kei Yuen which was built on the Land was used as a hostel for Po Kwong and Yeung Yui Sim (monks who were previous owners of the Land) and their disciples. It is quite different from saying that the Buddhist disciples there have a right to possess the Land. 

6.I have also taken into account the fact that the plaintiff has confirmed that he is not going to adduce any further evidence even if the proposed amendments are allowed, and that the substance of the proposed amendments have already been covered by the evidence placed before the court. That being the case, I doubt whether it is really necessary for the plaintiff to make the amendments.  The defendant has never complained that the Statement of Claim is lacking in particulars.  Neither has he threatened to strike out the plaintiff’s claim by reason of the Statement of Claim not pleading a reasonable cause of action.  Indeed, Mr Johnny Chan also confirmed at the hearing that he is not entitled to make any submissions at the trial that any part of the evidence to be adduced by the plaintiff is inadmissible by reason of the non-pleading thereof.

ORDER

7.By reasons of the aforesaid, I dismiss the Summons.

COSTS

8.The plaintiff should bear the costs of this application, with certificate for counsel.  Such cost should be summarily assessed.  The defendant asked for $15,206 which is a very reasonable sum, and I will allow this amount in full.  It shall be payable by the plaintiff on or before 28 July 2021.

Mr Stony Chan, instructed by Liu, Choi & Chan, for the plaintiff

Mr Johnny Chan, instructed by Yu Hung & Co, for the defendant