Choy Hon Ki and Another v. 林家強

DCCJ 631/2018

[2023] HKDC 1408

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 631 OF 2018

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BETWEEN

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DECISION

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A. Introduction

1.By way of Summons dated 10 July 2023, the defendant (D) applies to exclude all records of communications, call records, WhatsApp chat records, and records of meetings between the 1^st and 2^nd plaintiffs (Ps) and D from 2016 to 2020.

2.The broad ground relied upon is without prejudice privilege (WPP).

3.Evidence had been filed as follows:-

(a) D filed林家強的非宗教式誓言dated 10 July 2023 in support of the Summons (D Aff).

(b) Ps filed蔡成就的非宗教式誓詞dated 18 September 2023, the draft of which was initially exhibited to the Affirmation of Wong Yee Ling dated 30 August 2023, in opposition to the Summons, but eventually filed on 18 September 2023 (Ps Aff).

(c) D filed 林家強的非宗教形式誓章dated 7 September 2023 (D Reply Aff) in reply to Ps Aff and in support of the Summons.

4.Both the Summons and D Aff in support did not identify precisely what evidence was sought to be expunged. Having perused the parties’ submissions, however, it appears that the admissibility of the following pieces of evidence is being disputed (the Disputed Evidence):-

(a) 蔡成就的證人陳述書dated 11 May 2020 (P2 WS) at §§21-29;

(b) 蔡成就的補充證人陳述書dated 12 April 2021 (P2 Supp WS) §37;

(c) Exhibit “CSC-14” as exhibited to P2 WS, being:-

(i) The recordings of the conversations which took place on 9 October 2017 (9 Oct Recording) and 10 October 2017 (10 Oct Recording, together the Recordings); and

(ii) Transcripts of the recordings prepared by Ps’ legal representatives of the two conversations (the 9 Oct Transcript and the 10 Oct Transcript, together, the Transcripts):

(d) Exhibit “CSC-15” as exhibited to P2 WS, being screenshots of WhatsApp messages between P2 and D from 15 December 2016 to 7 February 2019 (WhatsApp Messages); and

(e) Exhibit “CSC-20” as exhibited to P2 WS, being the photograph taken at one of the meetings between the Ps and D in 2017 (the Photograph).

5.The Action is due to be tried shortly – with trial fixed for 7 days beginning on 18 October 2023. Unfortunately, D only took out the Summons shortly before the PTR. At the PTR, this court suggested that the Summons be determined via paper disposal on an expedited basis and gave directions accordingly, a procedure to which both parties did not object.

B. The Underlying Case

6.The underlying case, as per the pleadings, is as follows.

7.Ps, being the registered owners of Lot No 1919 in Demarcation District No 76 (the Lot), commenced this Action seeking to recover vacant possession on the basis that D has been wrongly occupying the Lot upon the termination of a yearly tenancy.

8.In gist, Ps’ case is that:-

(a) By way of a Chinese written tenancy agreement sometime in 1961 of the Chinese Lunar Calendar between蔡祖勝 (their predecessor in title) as landlord and林超and沈根as tenants, the said Lot was leased out for 10 years from 1961 to 1970 of the Chinese Lunar Calendar [SoC §2].

(b) Upon expiry, another Chinese written tenancy agreement was signed between the same predecessor in title as landlord and林超as tenant, by virtue of which part of the Lot (ie, the Property) was leased out for another 10-year period from 30 December 1970 to 29 December 1980 [SoC §3].

(c) According to Ps, after the expiry of this second agreement, no written tenancy agreement was signed. However, 林超continued to occupy the said Property and became the yearly tenant thereof by making rental payments to Ps’ predecessors on a yearly basis [SoC §4].

(d) There is no dispute that D is the son of林超 [Def §6]. According to Ps, after the death of林超, D continued to occupy the said Property and took up a yearly tenancy by making rent payments on yearly basis in respect of the said Property in his father’s place [SoC §6].

(e) On 12 October 2016, Ps’ solicitors, Messrs Leung Kin & Co (LKCO), sent a letter on their behalf to D, giving notice that the yearly tenancy shall be terminated on 29 December 2017 (First Letter). This was followed by a Second Letter dated 10 May 2017 (the Second Letter).

(f) Despite so, D refused to hand over possession. Ps therefore commenced this Action [SoC §9].

9.D’s case, on the other hand, denies the existence of any tenancy – D claims adverse possession of the whole Lot D’s case is that, ever since 1962, his father was a squatter over the Lot [Defence §1], something D continued after his father’s death [Defence §6].

C. The Disputed Evidence

10.The Disputed Evidence can be conveniently described as follows.

11.As noted above, on 12 October 2016, Ps’ solicitors, LKCO, sent a letter to D, notifying him of the termination of the yearly tenancy on 29 December 2017 (ie, the First Letter). There is no dispute that the First Letter was in fact received by D and that D put forward no response.

12.After the issuance of the First Letter, on 15 December 2016 P2 sent a WhatsApp messages to D, asking whether D would be free for a chat:-

“林家強你好，我是蔡成就。你何時有空大家在鄧根年傾一傾？”

13.On 18 April 2017, P2 sent a further WhatsApp to D along a similar vein:-

“林家強你好，我是蔡成就。上次電話上，傾了一傾。我現在港，你何時有空大家出來再傾一傾？”

14.On 20 April 2017, it appears that a meeting was in fact held. In P2 WS §21, Ps explained that in the afternoon of 20 April 2017, their father, P2, and D met in a restaurant in Tai Po to discuss tenancy matters (商討租約的事宜) (20 April 2017 Meeting). Ps’ case is that, at that meeting, Ps asked D to sign a written tenancy agreement; D, in response, asks for “保障和賠償” arising out of the fact that he has constructed on the Lot. Ps’ case is that no consensus was reached.

15.On 10 May 2017, another letter was sent to D, reiterating and giving further notice that the yearly tenancy shall be terminated on 29 December 2017 (ie, the Second Letter). Again, there is no dispute that the Second Letter was received by D.

16.On 4 October 2017, P2 sent another WhatsApp message to D, again inviting D to have a chat.

“林家強你好，我是蔡成就。你打過電話給我們想傾一傾。我現在香港，你何時有空大家出來再傾一傾？”

17.In P WS §§22-23, Ps explained that in the afternoon of 9 October 2017, their father, P2, and D again met in a restaurant in Tai Po to discuss the tenancy matters (商討租約的事宜) (the 9 October 2017 Meeting). Among others, Ps suggested that in the 9 October 2017 Meeting:-

(a) D acknowledged that he and his family had been paying rent to Ps, and that the then rent was HK$5,500;

(b) D expressed the wish to purchase part of the Lot, to which Ps were willing to sell at HK$500 per sq ft.

18.For this meeting, the 9 Oct Recording and the 9 Oct Transcript is available.

19.Following the meeting, on the same day on 9 October 2017, P2 sent another WhatsApp message to D, asking whether he would be free to meet at the office of Messrs Leung Kin & Co for a chat:-

“明天，十月十日下午 你有空大家一起到聯和墟梁堅律師行再傾嗎？”

20.According to P2 WS §23, he did so because he had thought D agreed to the sale and purchase, and wished to formalize the deal at his lawyers; but, according to P2, D called him later that day and told him he was not yet ready for a deal; instead, D wanted another meeting with Ps on the next day.

21.According to P2 WS §24, the parties did eventually meet on the next day (10 October 2017) in a restaurant (the 10 October 2017 Meeting). P2’s case is that the sale and purchase of part of the Lot was discussed – D offered a lower price and wished to pay by way of instalments. Ps suggested that this amounted to an acknowledgement of their title by D.

22.For this, the 10 Oct Recording and the 10 Oct Transcript is available.

23.P2 WS §25 then referred to Ps’ case that they decided to reject D’s offer by way of a WhatsApp on the next day, ie, 11 Oct 2017:-

“林家強，你好，我是蔡成就。昨天（十月十日）下午，你在茶樓講的，不合心意，無可能。”

24.It should be noted that, at the witness statement stage, D had not filed evidence to specifically confirm or deny the meetings[1]. Instead, what he said was rather vague and general:-

“我根據原告人要求，在2017年期間會面，討論和解方案。在會面時，第一和第二原告人沒有提供身份證明文件等核實其聲稱業主身份。我不承認第一和第二原告人是爭議地段的合法業主。原告人提出多個和解方案，雙方沒有達成和解。會面當時情況非常混亂，原告人人多勢眾，我只有一人，我或說出與我認知事實不符的言論，該等言論並不代表全部事實…”[D WS §33]

25.In P2 Supp WS §37, in response to D’s description of the meetings, Ps further explained that the meetings between their father, P2, and D in 2017 concerning the signing of tenancy agreements were peaceful and harmonious. To that end, P exhibited a Photograph said to be showing D speaking to Ps’ father.

26.The meetings were followed by further communications, as narrated in P2 WS §§26-27. This correlates with WhatsApp messages dated 11 October 2017 to 5 February 2018 whereby parties invited each another to further discuss matters, in particular to the idea that there be a sale and purchase of part of the Lot. When no deal was reached, the Writ herein was taken out on 13 February 2018.

27.As further narrated at P2 WS §28, even after the Writ, there were further discussions by way of WhatsApp messages on 24 May 2018, 21-27 January 2019, and 3-7 February 2019.

28.Finally, P2 WS §29 is a conclusory paragraph.

D. D Reply Aff

29.At this juncture, I would also like to deal with the issue of D Reply Aff. The reason is as follows.

30.As noted above, in the witness statements, D had not set out with specificity his case in relation to the communications for which WPP is claimed. This may well be understandable, given D’s position that these are all covered by WPP.

31.However, what is not understandable is why, even in D Aff in support of his Summons, D did not put forward his case in this regard. D Aff is a 2-page affair which does not put forward D’s positive case in relation to the communications.

32.Instead, what D did was to file a reply affirmation (D Reply Aff) to do so. In this regard, I think there is considerable force in Ps’ point that an approach of leaving matters in affirmation in reply without affording Ps the opportunity to respond is unfair: Re Estate of Joachim Thomas [2011] 5 HKLRD 538 at §45 per Recorder Jat Sew Tong SC.

33.As such, while I have considered D Reply Aff, as noted below, insofar as it raises new points for which Ps were deprived of an opportunity to respond, I would not afford it any weight.

E. Legal Principles

34.There is no serious dispute between the parties as to the applicable legal principles.

35.According to Wilson Chan J in Poon Loi Tak v Poon Loi Cheung Desmond [2020] 1 HKLRD 511 at §13, the principles applicable to the determination as to what constitutes WPP negotiations for settlement are as follows:-

(a) A party claiming WPP on communication would have to show that the communication was made:-

(i) at a time when there was an existing dispute between the parties;

(ii) legal proceedings in relation to the dispute had commenced or were contemplated;

(iii) the communication was made in a genuine attempt to further negotiations to settle the dispute; and

(iv) the communication was made with the intention that, if negotiations failed, it could not be disclosed without the consent of the parties.

(b) It was not necessary for a “without prejudice” stamp to be expressly applied to the negotiations if it was clear from the surrounding circumstances that the parties were genuinely seeking to compromise the dispute.

(c) Whether a particular communication was indeed an attempt to resolve a dispute, is to be determined objectively (the subjective intention of the party in question being irrelevant) having regard to all the circumstances. It does not matter that litigation has not begun: the relevant question (to be decided objectively) is whether the parties “contemplated or might reasonably have contemplated that litigation would follow if they could not agree”: Poon Loi Tak (supra) at §16.

(d) WPP applies to all communications which form part of the negotiations, whether they are themselves offers. It has also been made clear that the protection of the privilege is not limited to admissions. A party will not be allowed to engage in an exercise of dissecting technical admissions from the overall body of without prejudice negotiations. Instead, the discussions as a whole will be protected, as a general freedom to negotiate is part of the same package: Poon Loi Tak (supra) at §22.

36.As to what constitutes a relevant existing dispute, in Yu Man Fung Alice v Chiau Sing Chi Stephen [2019] HKCFI 1549, Keith Yeung J at §§21 had this to say:-

“21. Not all disagreements, no matter what their natures are, qualify as a “dispute” for the purpose of the without prejudice principle…where a mortgagor in default wrote to his unpaid mortgagee, not seeking to dispute liability (nor even the amounts payable), but only seeking time to pay the shortfall…the without prejudice rule did not apply…”

37.This point was further discussed in Secretary for Justice v Wong Lai Yin [2021] HKCFI 162; affirmed by the Court of Appeal in [2022] 1 HKLRD 258. In that case, the Government claimed for possession of certain unleased government land occupied by an extended portion of a house situated in the subject lot that was in the 1^st defendant’s possession. The 1^st defendant’s defence is based on adverse possession.

38.In this context:-

(a) On 7 Nov 2014, the District Lands Office (DLO) requested inter alia the 1^st defendant to set back from occupying government lands [CFI §20].

(b) On 18 Nov 2015, issued a further letter to the 1^st defendant, demanding him to rectify the aforesaid irregularities by setting back the occupied areas from Government land and threatening prosecution action [CFI §23].

(c) In response, the 1^st defendant through his solicitors sent a “without prejudice” letter to the DLO (the First Letter), asking the relevant department to suspend any prosecution procedure and to consider granting a short-term or long-term tenancy of the relevant land to the 1^st defendant, so as to alleviate the trouble brought to all parties by litigation [CFI §25].

(d) About one month later, the DLO responded with a letter not marked “without prejudice” (the Second Letter). It simply asked the 1^st defendant to take note of a notice requiring him to cease the unlawful occupation of the unleased land, and rejecting the 1^st defendant’s application for a short-term tenancy.

39.At issue was whether the First and Second Letters constituted without prejudice communications. DHCJ Winnie Tsui held that WPP did not apply. Her Ladyship’s reasoning as follows.

(a) For there to be WPP, a core question was whether, at the relevant time the communications took place, there was in existence “a dispute in respect of which legal proceedings had commenced or were contemplated” [CFI §32].

(b) “…not every dispute between the parties would attract the without prejudice privilege. If in the course of the factual enquiry to ascertain the parties’ intention, the court finds that there is no dispute as to liability but only a dispute as to how to satisfy the admitted liability, that dispute may not trigger the without prejudice rule. The underlying public policy of the rule is to encourage parties to compromise a dispute without resort to litigation. Where liability is in fact admitted, that policy is not engaged.” [CFI §44]

(c) “…it is therefore important for the court to recognize that where there was an attempt to negotiate, that may only be half the story. The court must proceed to ascertain what exactly was being negotiated. The mere fact of negotiation does not by itself mean that here was a relevant dispute for without prejudice purposes.” [CFI §50]

(d) “…the mere assertion of one’s right without more does not amount to a dispute. It takes two to form a dispute. One must look at what the 1^st defendant did or say (and equally important, did not do or say) in the face of the DLO’s demand” [CFI §55]:

(e) On the facts of the case:-

(i) Until the 1^st defendant responded, there was no basis for a reasonable observe in the position of the DLO would have formed the view that the 1^st defendant disputed the Government’s title [CFI §§53-58].

(ii) The letters sent by the 1^st defendant does not change this analysis. The letters did not include any mention of adverse possession. The suggestion for a short term tenancy actually contradicts such. A reasonable person would conclude that the 1^st defendant was seeking for indulgence from the DLO [CFI §§59-78].

40.Her Ladyship’s decision was upheld by the Court of Appeal. G Lam JA confirmed, inter alia, that:-

(a) “As the authorities show, whether or not there was an extant dispute at the time is to be determined on an objective basis. The subjective thinking of the 1^st defendant or his solicitors is irrelevant.” [CA §24]

(b) Weight is given to the fact that, by asking for a short term tenancy, the 1^st defendant would appear not to be disputing the Government’s title – and therefore objectively there was no dispute [CA §28].

F. Analysis

41.Applying these principles, an important issue that I have to determine is whether D has shown that the Disputed Evidence arose at a time when there was a relevant dispute for without prejudice purposes which, in the present context, means a dispute over the title of the Lot as between the paper owner (Ps) and the claimed adverse possessor (D). If there was, viewed objectively, a true dispute over such title of the Lot, there is basis for claiming WPP; if, however, there is no such dispute but instead, all there was is an acknowledgment of liability and suggestions of accommodation and/or indulgence, no WPP can be claimed.

F.1 D’s Arguments

42.In this regard, D’s case is that, since at least 12 October 2016, there has been a dispute over the title of the Lot [D Skel §14]. D’s case runs as follows.

43.First, D relies on D Reply Aff. Particular focus is placed on §§7-8 [D Skel §§14-15]. In gist, D had this to say:-

“7. …但本人必須強調， 討論並非按本人或父親是租客，或原告人是爭議地段業主的身份為基礎，而討論的內容也並非…關於續約（或購買爭議地段）的事項…

8. …

(1) 本人在爭議地段已經居住了超過40多年，從來沒有聽聞本人父親曾就爭議地段定下任何租約或口頭承諾，未有聽過爭議地段有任何租約或口頭承諾…，亦沒有向任何所謂業主交過租金。由始至終，本人一直貫徹以上的立場，亦在以下提及的討論中多次重申；

…

(4) 因此，我們討論的基礎，並非因為本人是租客，簽約只是對方開出的和解方案。本人一直以來願意和原告人討論，是以嘗試達成和解，避免打官司及其衍生費用為目標，並非因為本人接受原告人的立場；

(5) 這個基礎，亦一直延續至於本人和原告人及後的一切討論。”

44.Second, D relies on P2’s Witness Statement at §18, whereby P2 said that, in Oct 2015, there was a meeting amongst P2, Ps’ father and D. P2 asked D to sign a tenancy agreement; D refused and also said he would not accept any increase in rent, but said that he was willing to continue to pay the existing rent. Against this background, it was P2’s case that “在2016年，我思前想後，又到律師樓查詢租客不肯就租用該物業簽租約的事宜。我得知被告人使用該物業又不肯確立他自己租客的身份，對我們的業權或有所影響 。”[P2 WS §20; D Skel §§16-17] D’s argument is that this is clear reference to the existence of a title dispute.

45.Third, D argues that one should not scrutinize the Disputed Evidence itself to ascertain if WPP applies – to do so, according to D, is to put the cart before the horse – “it is objectionable to try to rely on cherry-picked statements or purported admissions – and more so to work backwards on the basis of what was said during the impugned discussions to purportedly explains the bases of such discussions ex post facto”. [D Skel §§19-20; D Reply Skel §12]. D says that the court should only consider the nature of the dispute “at the time when the parties embarked on those communications”.

46.Fourth, even if this court decides to look into the Disputed Evidence, D points to a particular part of the 9 Oct Transcript, which D says point towards there being a title dispute [D Skel §§26-27]:-

“D: …你由頭到尾個目的係咩樣呢，都係想清晰個業權係咪

P2: 業權清楚啲同埋調整下租金”

F.2 Ps’ Arguments

47.In response, Ps’ case is simple – properly read in context, there was clearly no title dispute. Ps’ argument goes like this.

48.First, whether there was a dispute is to be viewed objectively. The beginning of the analysis is the First Letter. There, Ps through their solicitors LKCO first referred to the previous tenancy agreements between Ps’ predecessor in title and D. It was then suggested that D has taken up the yearly tenancy of the relevant portion of the Lot. Afterwards, notice of termination was given to D as follows:-

“We are instructed by our clients to give you notice that your aforesaid tenancy shall be terminated on 29th December 2017 and you are required to quit and deliver up vacant possession of the said portion to our clients on or before 29th December 2017, failing which we have instructions to commence legal proceedings against you with further notice, in which event you shall be liable to pay all costs and expenses incurred thereby”.

49.The Second Letter was couched in very similar terms.

50.In relation to these two letters, the undisputed evidence is that P did not respond. A reasonable person observing the events would not be able to detect the existence of a dispute – D’s subjective thoughts and beliefs are irrelevant [Ps Skel §§28-43].

51.Second, Ps rely on the contents of the Disputed Evidence, in particular, the Transcripts, whereby D repeatedly acknowledged Ps’ status as owner and confirmed his status as a tenant [Ps Skel §59-70]. The following are of particular relevance:-

(a) “我其實簽約真係無問題”;

(b) “佳叔你都知喇，咁多年以嚟，我地有無話去，侵占你嘅土地”;

(c) “我一路以來都係維護佳叔，從來都唔會話因為呢撻地唔係我，而人地有利益，行埋嚟，我會俾佢”;

(d) “我地租你田嘅承諾。租有交俾你，霸無霸過你，人地埋黎，無埋黎過，30幾年，無合約訂明左，你租俾我喎，我地一路係咁樣住，一路咁樣交租，從來無遣背過任何承諾。”

52.The rhetorical question is this – if there had been a genuine dispute over title, why would D repeatedly acknowledge his own status as a tenant? The ineluctable conclusion is that the discussion was not aimed at dealing with a title dispute – instead, the discussion was about “reducing the tenancy into writing, the adjustment of monthly rent, or even a potential sale of the Property from Ps to D”.

53.Third, analogous to the short term tenancy in Wong Lai Yin case, it is not disputed that there was a discussion whereby Ps would apparently sale the Property to D. This, it is said, is a factor that suggests there is no true dispute as to title (at least based on adverse possession). As G Lam JA noted in Wong Lai Yin at §28:-

“There is no answer from the 1^st defendant to the point that by requesting for a tenancy from the Government, the 1^st defendant would appear not to be disputing the Government’s title. As provided in s.17 of the Limitation Ordinance, the effect of adverse possession is the extinction of the paper owner’s title…”

F.3 D’s Reply Arguments

54.In his reply skeleton, D made the following additional points.

55.First, insofar as D’s silence following the First and Second Letters is concerned, D submit that:-

(a) This should be viewed against the fact that there were other protracted discussions at the time [D Reply Skel §4]. It is said that this makes the present case distinguishable from Wong Lai Yin (supra), where there was no suggestion that the 1^st defendant and the Government were in any sort of negotiations or discussions.

(b) This should be considered against the context that D was acting in person at the material time, and thus the fact that D did not write back could hardly be taken against him [D Reply Skel §§5-7].

56.Second, it is argued that the Recordings and Transcripts are incomplete [D Reply Skel §12(7)].

57.Third, D also provided a further analyses of the Disputed Evidence [D Reply Skel §§11-19], whereby D seeks to explain away the paragraphs which Ps say indicate D’s acknowledgment of his status as a tenant. In particular, D referred to a statement in the Transcript that “間屋，理民府到已經出左我地個名，1981年批左我老豆名” as support that D was thinking that he had interest in the land.

F.4 Analysis

58.In my view, Ps’ arguments are more compelling that D’s.

59.The starting point is this. I do not accept D’s argument that, in discerning whether or not there is a relevant dispute, I am somehow limited to evidence at the time when the parties embarked on those communications – and that somehow I should ignore the Transcripts and evidence that followed. This flies in the face of Wong Lai Yin (CFI) at §16; (CA) at §39. I am of the view I can take into account all the evidence as a whole.

60.Taking a wholistic view of all the evidence, in particular:-

(a) D’s failure to respond to a clearly asserted case of tenancy as per the First and Second Letters;

(b) D’s repeated affirmations in the Transcripts that Ps have good title and that he has no intention adversely possessing the land in question;

(c) D’s considering the suggestion to purchase the Property from Ps, which implies that he accepts Ps have good title,

I find that it is more likely than not that, at least up to the time of the Meetings, there was simply no extant dispute over the title of the Lot. Had there been such a dispute, it would be inconceivable that D would have said the things he did in the Recordings/Transcripts. Instead, I accept Ps’ argument that, at the time, the nub of the dispute is the conclusion of a written tenancy agreement, the rent thereon, and the terms upon which Ps may sell, and D purchase, the Property.

61.In doing so, I have not lost sight of the arguments put forward by D, and have taken them into account in a wholistic balancing exercise prior to arriving at my findings. Focusing on the main points raised by D:-

(a) As to the contents of D’s Reply Aff, I do not find them particularly useful. As noted in §§29-33 above, I have doubts over whether I should afford it any weight at all. In any event, its contents are again extremely vague – it is unclear whether, and to what extent, D’s thoughts/beliefs had been communicated to Ps, and on which occasion. A general reference that his position “在以下提及的討論中多次重申” rings hollow, especially when some of those occasions had been recorded.

(b) As to the reference in P2 WS §20 and 9 Oct Transcript to “業權”, I accept that this provides some prima facie support to D’s arguments. However, that sentence must be viewed against the broader context, especially what D himself said in the 9 and 10 October Meetings. The broader context, in my view, quite clearly shows that at the time there was no dispute over the title of the Lot as between paper owner and adverse possessor – the true litmus issue in this Action. In context, therefore, the phrase “業權” was more likely than not being used loosely, such as the form and terms of the tenancy.

(c) Similarly, as to D’s reference to “間屋，理民府到已經出左我地個名，1981年批左我老豆名”, there has been no explanation from D, who bears the burden of proof, on the nature of these documents and their precise relationship with the issue of the title of the Lot as between paper owner and adverse possessor. As such, I am unable to conclude from that mere sentence that there had been a dispute as to title. In any event, I do not think that this selected sentence could alter the overall impression that there was no dispute by the parties on the title of the Lot.

(d) As to the suggestion that one should not put too much weight on D’s failure to answer the First and Second Letters given he is a layman, and that there had been underlying negotiations, my analysis is as follows. First, D’s silence is part of the factual matrix which lends some weight to Ps’ arguments – it is far from determinative. Second, I note Ps’ point that D (acting in person) was more than capable of drafting pleadings and witness statements in this Action – and the objective evidence thus shows that D is capable of understanding his interests. Third, D had simply not put forward a clear case as to what the underlying negotiations exactly were.

(e) As to the suggestion that the Recordings and Transcripts are incomplete, I am not minded to take this point into account. The Recordings and Transcripts had been disclosed very early on – and yet the point was never raised until D Reply Aff. This is a factual point which, had it been raised earlier, Ps would have had a chance to explain. In any case, the burden is on D to show that WPP applies. If D took the view that the Recording and Transcript were incomprehensive, it is incumbent on D to set out what, on his case, were the discussion between the parties, with specificity. In the absence of such evidence, I do not think the allegation that the Recordings/Transcripts were not comprehensive would take D’s case any further.

62.To conclude:-

(a) I accept the submission that it takes two to form a dispute.

(b) In my view, there is insufficient evidence to show that, objectively, the title of Ps over the Lot was disputed when the First Letter and Second Letter were issued.

(c) Nor is there enough evidence to suggest that there was any such dispute at the time of the Meetings.

(d) As such, a key element of establishing WPP is not made out.

63.It follows from the above analysis that the Disputed Evidence up to the Meetings should not be expunged. This would cover the Recordings and Transcripts, P2 WS §§21-25, P2 Supp WS §37, the Photograph, and the WhatsApp Messages up to 10 October 2017.

F.5 The Disputed Evidence after the Meetings

64.What remains is the Disputed Evidence which came to life after the Meetings.

65.As identified in D Skel, these include certain WhatsApp messages between the parties on 11 October 2017 to 3 February 2019, which were also referred to in P2 WS §§26-29.

66.In this regard:-

(a) D submits that, in these messages, express reference was made to the discussions and proposals from the meetings and/or earlier negotiations. Further, both sides repeatedly evinced an intention to continue attempting to settle.

(b) By contrast, Ps submit that the messages prior to 8 December 2017 were conversations within the tenancy period. For the messages thereafter, Ps submitted that the parties were looking for a conversation and there was nothing material in substance. Ps submit that there was not a shred of evidence or words to indicate that D was disputing Ps’ right to the Lot or that D was asserting his adverse possession claim.

67.On balance, I accept Ps’ argument, at least until 18 May 2018 when the D&CC was filed. The Disputed Evidence in this period did not raise any material new points.

68.However, the D&CC filed on 18 May 2018 altered things. For the first time, it shows clearly that D disputed the title of Ps over the Lot and set out his claim for adverse possession. This is the first point of time when it became clear that the parties had an extant dispute over the title of the Lot.

69.I further accept D’s submissions that for the WhatsApp messages from 18 May 2018 onwards (the first one of which was on 24 May 2018), there were references to proposal and/or counterproposals with a view to settlement. As such, the intention of both parties to resolve the matter and the litigation is readily apparent from those WhatsApp messages. In the premises, I hold that WPP would apply to such communications.

70.Accordingly, I direct that the WhatsApp messages from 24 May 2018 onwards (last message on p.3, and p.4 of Exhibit “CSC-15”) and the relevant passages in the P2 WS (P2 WS §§28-29) be expunged. In contradistinction, the earlier WhatsApp messages and P2 §§26-27 can remain.

G. Other Matters

71.The parties have made a number of subsidiary points. It is strictly speaking not necessary for me to deal with them. However, I will express my brief views as follows.

G.1 Exception to WPP – Unambiguous Impropriety

72.Exclusion of without prejudice privilege, whether on the basis that it is being used as a cloak for perjury or other unambiguous impropriety, can only be applied in the clearest of cases. Further, it is not the mere inconsistency between an admission and a pleaded case or a stated position that loses the party the protection of privilege; it is the abuse of privilege that does so: Poon Loi Tak (supra) at §§52-55.

73.Ps did not push this point in their submissions; Ps only went as far as to say that D has made some inconsistent assertions. This does not amount to the exceptional circumstances envisaged by the authorities.

G.2 Waiver

74.There is an argument by Ps that D has already waived WPP in respect of the content of the Meetings as he has consciously referred to the communications in both his pleadings and witness statements.

75.This line of argument was not seriously pursued by Ps in submissions. In any case, D expressly reserved his right to dispute the admissibility of such negotiations. Had it been necessary, I would have accepted that objectively, D had not waived WPP, although the delay in making the application was clearly regrettable.

G.3 The Corresponding Parts in the Pleadings

76.There is also a one-line submission by D that if the Disputed Evidence were to be expunged, the corresponding paragraphs in the pleadings should also be struck out. These corresponding paragraphs only relate to the Disputed Evidence prior to the Meetings – and given my conclusion above that there is no WPP, it is strictly speaking not necessary for me to deal with these submissions.

77.In any event, I see the force in Ps’ submissions that the Summons makes no reference to the pleadings. Indeed, the Summons referred only to evidence and statements, but not pleadings. There is also no application before me to amend the Summons. This could be contrasted with the case of Yu Man Fung (supra), in which there was a proper application to strike out both the disputed pleadings and the evidence in question.

H. Disposition

78.For all these reasons, I direct that the last message on page 3, and page 4 of Exhibit “CSC-15” and P2 WS §§28-29 be expunged. The application in relation to the rest of the Disputed Evidence is dismissed.

79.For costs, D succeeded on a very limited part of the application, but failed in relation to other parts. A suitable order, in my view, would be costs be in the cause. I make an order nisi accordingly.

Mr Ivan Lee, instructed by Leung Kin & Co, for the 1^st and 2^nd plaintiffs

Mr Louis Cheng, instructed by Cheung, Yeung & Lee, Solicitors, for the defendant