Double Proof Ltd v. Ho Kwok Wing
Read the full judgment text of DCCJ 5753/2019 on BabelCite. This District Court judgment was delivered on 29 November 2023.
1. On about 24 August 2023, judgment of this action was granted in favour of the plaintiff against the defendant (“ the Judgment ”).
Cited by 2 cases · Cites 6 cases
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DCCJ 5753/2019 [2023] HKDC 1742 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 5753 OF 2019 ---------------------------------------
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------------------------ DECISION ------------------------ (A) Applications 1.On about 24 August 2023, judgment of this action was granted in favour of the plaintiff against the defendant (“the Judgment”). 2.The defendant then took out the following four summonses:-
(B) Background of the case 3.The background of the case is summarized in the Judgment. The plaintiff and the defendant are neighbours of two adjacent units within a multi-storey industrial building. The plaintiff complains that the defendant has wrongfully cut off and blocked the sewage or waste pipe of its toilet. The plaintiff avers that the defendant's conduct was in breach of DMC and sub-DMC and his sewage easement was also infringed. The defendant denies the plaintiff's claim. The defendant does not admit that there was such a sewage pipe and put the plaintiff to strict proof. The defendant counterclaimed for damages by alleging that the plaintiff wrongfully stopped the fresh water supply to the defendant's unit for about one month. 4.The defendant did not file or exchange any witness statements. By the Order of Master Jocelyn Leung dated 19 September 2022, the defendant was debarred from filing and exchanging her witness statement(s) and be debarred from relying on the evidence of factual witnesses at the trial. Hence, the defendant’s allegations as pleaded in her defence and counterclaim were unsubstantiated or unproven, unless the same were expressly admitted by the plaintiff. 5.At the trial, the plaintiff called Madam Lin and Mr Chatlani to give evidence. I found both of them honest and credible. Their evidence was reasonable and materially consistent. Their evidence also tallied with the contemporaneous documents. I accepted their evidence. This court found that the defendant was in wrongful breach of the DMC and the Sub-DMC. Furthermore, the defendant had wrongfully interfered with the quasi-easement enjoyed by the plaintiff or had constituted nuisance (see paragraph 81 of the Judgment). The plaintiff's claim was allowed and the defendant's counterclaim was dismissed. This court ordered that:-
The Costs Summons 6.By the Costs Summons, the defendant asked for variation of the costs order nisi. The defendant contended that the plaintiff shall pay one-third of the costs in this action to the defendant; and that the defendant shall pay two-third of the costs to the plaintiff. 7.At this hearing, Mr Fung, solicitor for the defendant, asked for an adjournment of the Costs Summons. His reason was that the defendant was in the course of appeal. The defendant's reason for adjourning the Costs Summons has no basis and is unreasonable. Application for adjournment is refused. 8.Regarding the Costs Summons, the defendant has provided the court with no valid reasons in support of her contention that she should only pay two-third of the costs of the action to the plaintiff, whilst the plaintiff should pay her one-third of the costs of the action. 9.The defendant's Costs Summons was unsupported by any good reasons. The Costs Summons is dismissed. The New Evidence Summons 10.The defendant sought leave to adduce the Witness Statement of Ho Kwok Wing (賀國榮) and the Witness Statement of Wong Kwai Pan (黃貴斌) together with the new documents attached to the two witness statements (“the two witness statements”). 11.The defendant was all along represented by her legal representatives in these proceedings. The defendant did not file any witness statements in these proceedings. 12.By the Order of Master Jocelyn Leung dated 7 February 2022, unless the parties file and exchange their witness statements before 7 March 2022, the defaulting parties be debarred from filing and exchanging the same and relying on the evidence of factual witnesses at the trial. 13.By the Order of Master Jocelyn Leung dated 19 September 2022, it was ordered that as no witness statement had been filed by the defendant, the defendant was debarred from filing and exchanging the same and the defendant was debarred from relying on the evidence of factual witnesses at the trial. 14.After the Judgment had been handed down, the defendant took out the New Evidence Summons for leave to file and serve the two witness statements which contained various new documents as their annexures. 15.At this hearing, Mr Fung confirmed that the defendant did not simply ask for leave to file and serve the two witness statements alone, the defendant actually purported to use the contents of these two witness statements (together with the annexed new documents) as new evidence (collectively referred to as “New Evidence”). The defendant contended that this New Evidence could show that the factual findings of the court in the Judgment were wrong and the plaintiff's witnesses were dishonest. Mr Fung submitted that the New Evidence was also relevant to the drafted grounds of appeal. 16.By asking for leave to file and serve witness statements at this stage, the defendant realized that her application was against the Order of Master Jocelyn Leung dated 19 September 2022. Therefore, the defendant asked this court for relief from sanction arising from the unless order made by Master Jocelyn Leung. 17.In support of her New Evidence Summons, the defendant filed an affirmation dated 20 September 2023 and her 3rd affirmation dated 5 October 2023. She purported to explain her reasons for delay in making the application for relief against the sanction. In her affirmation, the defendant referred to matters back in 1991. She said that by the Provisional Sale and Purchase Agreement of Unit 4B dated 27 March 1991 (“PSPA”), the plaintiff was the vendor and a company called Auslong Limited was the purchaser at that time. Her husband had 80% interest in Auslong Limited. Auslong Limited agreed to let the defendant continue with the purchase of Unit 4B in place of Auslong Limited. The defendant now complained that before signing the formal sale and purchase agreement of Unit 4B (“SPA”), all documents relating to Unit 4B were kept by a shareholder of Auslong Limited called Mr Lai. The defendant asserted that one year later, i.e. in 1992, Mr Lai and another shareholder left Hong Kong. Auslong Limited was then dissolved. The new documents annexed to the two witness statements “were only discovered in mid 2023 (quote)”. 18.In her affirmation, the defendant continued to explain how the new documents were relevant to this case and how they would show the factual findings made by this court in the Judgment were wrong. The gist of the defendant's complaint was that Toilet 4A was not part of Unit 4A. Toilet 4A, the defendant contended, should have been assigned to her back in 1991 on the strength of the PSPA. In addition, the defendant alleged that Toilet 4A and/or the Pipe were illegal structures. 19.In particulars, the defendant said that the property agent promised her that the plaintiff would not build a toilet after the 1991 Partition. 20.Secondly, the defendant alleged for the first time that a company called Kaybee International Limited illegally forfeited Mr Lai’s personal cheque of HK$400,000 in about 1991. I have serious doubts as to the truthfulness of this allegation and its relevance to the defendant’s application here. 21.Thirdly, regarding the 1991 Partition, i.e. partitioning Unit 4 into Unit 4A and Unit 4B in 1991 (see paragraphs 5 and 6 of the Judgment), the defendant now alleged that the architect was actually instructed by Auslong Limited and not by the plaintiff. The defendant referred to a letter of exemption issued by the Buildings Authority dated 16 May 1991 (see paragraph 49 of the Judgment) in which the Building Authority stated that the proposed partitioning work would be considered as exempted work, provided that the Building (Standard of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations were not contravened. The defendant claimed that the Building Authority's letter above was only a reply letter and not an exemption letter. Hence, she believed that Toilet 4A was illegal. At this hearing, Mr Fung submitted that the Pipe was also illegal. 22.Fourthly, the defendant even claimed in her affirmation that the existence of Toilet 4A was not known to her at all material time until 2019. In support of this allegation, the defendant shifted the blame to Auslong Limited’s architect and her solicitors in the 1991 conveyancing transaction. She even made unwarranted accusations against Mr Chatlani of the plaintiff during the 1991 conveyancing transaction. For the purpose of disposal of the New Evidence Summons, it is unfair to those innocent persons if the details of the accusations against them are set out here without offering them a chance to reply. Hence, it is inappropriate for me to set out the defendant's unwarranted complaints in detail here. I have serious doubts as to the truthfulness of the defendant’s allegations. 23.I will, however, set out the gist of defendant's complaints. The defendant blamed her solicitors in the 1991 conveyancing transaction for not telling her that “part of the area was wrongly assigned to P to form a new toilet for [P's] Unit 4A (quote)”. She also blamed them for not telling her about the plan attached to the SPA. The plan showed Unit 4B did not include Toilet 4A. She said that the plan was attached to the SPA without her knowledge or consent. She only had knowledge about the plan attached to the SPA by her conveyancing solicitors in 2019 (see para. 36 of the Affirmation of Ho Kwok Wing dated 20 September 2023). Then, the defendant accused Mr Chatlani for misleading her. The defendant’s accusations against Mr Chatlani were contradicted by a letter dated 26 July 2001 issued by the plaintiff to Wallon Industries Limited (of which the the defendant was the director and company secretary) and the defendant’s letter dated 1 March 2005 (see paragraphs 40, 43 and 53 of the Judgment). 24.In conclusion, the defendant would like to assert her right under the PSPA. She claimed that she had no personal knowledge about the plan attached to the SPA of Unit 4B and therefore the plan did not bind her. That is to say, the area of Toilet 4A should be sold to her in accordance with the PSPA, as opposed to the SPA and the 1991 Assignment of Unit 4B. According to the defendant’s theory, Toilet 4A should belong to her and there is no issue of breach of DMC or sub-DMC or infringement of any easement. At today’s hearing, Mr Fung even verbally alleged fraud against Mr Chatlani. I have no doubt that this is unfair to Mr Chatlani. Fraud and/or misrepresentation was un-pleaded. 25.For these reasons, the defendant applied for leave to file and serve her witness statement and her husband’s witness statement which contained substantially the same allegations. 26.Mr Fung did not even refer to the leading case of Ladd v Marshall [1954] 1 WLR 1489 in his written submission at all. He submitted that in the interest of justice, leave should be granted and the two witness statements shall stand as evidence. He submitted that the New Evidence showed the factual findings made by this court were all wrong because Toilet 4A belonged to the defendant. 27.Before discussion the principles laid down in Ladd v Marshall, it is important to make the following observations. 28.Firstly, if the court allows the defendant to file and serve the two witness statements and treats them as evidence, the result is to allow the defendant and her husband to give evidence without taking oath. Further, this will deprive the plaintiff of its legitimate right to cross-examine the defendant and her husband in the witness box. This will undermine the cornerstone of a fair trial, especially after the Judgment has been handed down. 29.Secondly, this application was made after trial and Judgment has been handed down. The defendant had not pleaded her present allegation that Toilet 4A should belong to her, nor had she pleaded illegality in her defence and counterclaim. This action was commenced on 24 October 2019. If she really had such knowledge about the existence of Toilet 4A in 2019, there was no reason why she did not plead her ownership in her defence and counterclaim dated 24 January 2020. 30.Thirdly, Master Jocelyn’s Orders were made in 2022. If the defendant had really discovered that she was misled by the estate agent, architect instructed by Auslong Limited, her former conveyancing solicitors and etc, and that she only had the knowledge about the plan attached to the SPA and the existence of Toilet 4A later (I do not accept that she only had such knowledge only in mid-2023), she failed to explain why she did not file and serve her witness statement or her husband’s witness statement in breach of the court's orders in 2022. 31.Fourthly, the defendant was represented by counsel at the trial. At the opening submission of the trial, I enquired with both counsel about the assignment plans of Unit 4A and Unit 4B and asked them to replace the black and white copies in the trial bundles with coloured copies (see pages 8 to 9 of the transcript of the trial). Upon perusing the coloured copies, the assignment plan of Unit 4A clearly showed that Toilet 4A formed part of Unit 4A because its office area and Toilet 4A were both coloured pink. Likewise, the assignment plan to Unit 4B also showed that only its office area and Toilet 4B were coloured pink, i.e. the newly constructed Toilet 4A was not coloured pink on the assignment plan of Unit 4B. 32.At the opening submission, I specifically enquired with defendant’s counsel if the defendant took issue that Toilet 4A formed part of Unit 4A. Counsel for the defendant expressly stated that the defendant did not take issue on that (see page 13 of the transcript of the trial). Counsel for the defendant expressly confirmed that Toilet 4A was the property of the plaintiff, i.e. 26 part of the 66 shares (see page 13 of the transcript of the trial and also paragraph 6 of the Judgment). 33.Furthermore, at the written closing submission of the defendant's counsel, she stated that it was an undisputed facts/indisputable fact that Toilet 4A formed part of Unit 4A which was the plaintiff’s property (see paragraph 14(4) of the written closing submission of the defendant’s counsel). 34.The defendant's present assertion that Toilet 4A should belong to her is also her first ground of appeal which I will come to that in the latter part of this Decision. 35.The defendant had not explained why she instructed her counsel to confirm at the trial that Toilet 4A formed part of Unit 4. Mr Fung could not provide an explanation either. 36.The test for admitting new evidence was laid down in Ladd v Marshall. There are three hurdles for the defendant to overcome if she wishes to adduce new evidence after trial, namely:-
37.For the reasons set out hereinabove, I am not satisfied that the defendant had tried her endeavour or diligence in retrieving the documents now attached to the two witness statements before the trial. The defendant simply alleged that she found those documents in mid 2023 without providing any particulars at all. The trial was commenced on 26 June 2023, I do not even know if those new documents were discovered before or after 26 June 2023. Concerning the allegations made in the two witness statements, if the defendant really discovered the existence of Toilet 4A (including the Pipe) in 2019, there was no reason for her not to file any witness statements and give evidence at the trial. Furthermore, I see no reason why relief against sanction arising from Master Jocelyn's order should be given to the defendant, especially after Judgment has been handed down. The Evidence Summons can be disposed of on the ground alone. 38.For completeness sake, I shall rule on the second and third conditions of Ladd v Marshall. Concerning the second condition, I fail to see how the attached documents could have any important effect to the outcome of this case. The attached documents were mainly old documents relating to the 1991 conveyancing transaction of Unit 4B, defendant's solicitors' letters, internal decoration plans, photographs, newspaper cutting, a report of Citiland Surveyors Limited dated 22 May 2023 concerning the saleable area of unit 4B and etc. As a general principle, interest in land can only be disposed of by deed, not by provisional sale and purchase agreement. 39.Regarding the third condition, I do not consider the allegations contained in the two witness statement credible. It is because they were contradicted by Wallon’s letter and the defendant's own letter as pointed out hereinabove. The defendant's new allegations were also contradicted by Madam Lin’s evidence and Mr Chatlani’s evidence. Mr Chatlani had fully explained that because the plaintiff needed some area for constructing a new toilet after the 1991 Partition, the plaintiff reduced the selling price of Unit 4B. The defendant was keen on purchasing Unit 4B and she agreed. I found that the defendant had direct knowledge of the existence of Toilet 4A at the material times (see paragraph 70 of the Judgment). The assertions contained in the two witness statement are simply not credible. 40.Hence, the New Evidence Summons is dismissed. The Leave to Appeal Summons 41.There are all together 34 grounds of appeal in the defendant’s draft notice of appeal. Mr Fung confirmed that all of the 34 grounds of appeal related to the challenges of the factual findings. 42.Ground 1 to Ground 18 are basically drafted in substantially the same template to the effect that trial judge erred in finding certain facts or erred in accepting the evidence of the plaintiff or erred in not accepting the “defendant's fact” or erred in reaching the conclusion of certain factual matters, by referring to certain paragraph numbers of the Judgment. Insufficient particulars are contained in the draft notice of appeal. The term “defendant's fact”, according to Mr Fung, meant the defendant's pleaded facts. 43.Ground 19 to Ground 34 are drafted in substantially the same template to the effect that the trial judge erred in overlooking certain facts. 44.The skeleton submission of the defendant does not actually address on each of 34 grounds of appeal with particulars. The defendant’s position is that if the court allows the New Evidence Summons and accepts the allegations stated in the two witness statements (without witnesses taking the oath and being cross-examined), then all of the plaintiff's evidence should be rejected by the court. I do not understand why the defendant or her legal representative will have this belief. 45.Mr Fung fairly conceded that if the New Evidence Summons is refused, some of the 43 grounds of appeal shall fall. 46.According to s.63A(2) of the District Court Ordinance (Cap.336), leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that:-
47.According to SMSE v KL [2009] 4 HKLRD 125, the Court of Appeal held that reasonable prospects of success involved the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”. 48.Regardless of the New Evidence or his written skeleton submission, Mr Fung was invited to explain each of the 34 grounds to this court to see if the defendant had reasonable prospect of success or if there is some other reason in the interests of justice why the appeal should be heard. The defendant failed to establish the alleged matters in the grounds of appeal were credible, true or relevant to the present case. Mr Fung’s explanations did not advance the defendant's case further. 49.It is well established law that the appellate court will rarely interfere with a trial judge’s assessment of the credibility and evidence of witnesses and his findings of primary facts. In Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1, the Court of Final Appeal held that:
50.As I have found both Madam Lin and Mr Chatlani credible witnesses and the defendant failed to give evidence, there is no substance in the 34 grounds of appeal which are all about challenges to the finding of facts as admitted by the defendant. 51.Apart from the so-called New Evidence, the defendant was unable to point out which finding of facts are inconsistent with the undisputed documents at the trial bundles, or which part of the evidence of Madam Lin or Mr Chatlani was plainly false or plainly unreasonable so that no reasonable tribunal of facts properly directed would have accepted it. 52.Hence, there is no substance in the Leave to Appeal Summons. There is no other reason in the interests of justice that the appeal should be heard. The Leave to Appeal Summons is dismissed. The Stay of Execution Summons 53.The defendant filed her Stay of Execution Summons and her 2nd affirmation which is consisted of 25 pages. In her 2nd affirmation, the defendant rehearsed her complaints against the findings by the court in the Judgment and repeated her so-called New Evidence under her New Evidence Summons. She did not depose to any prejudice or difficulties if the enforcement of the Judgment was not stayed pending appeal. 54.According to section 66 of the District Court Ordinance (Cap. 336), it is provided that:-
55.In Asparouh Ianev Dimitrov v Dominic Tak Min Lau & Anor, unrep. CACV 568/2020, 17 August 2021, the Court of Appeal held that:-
56.The purported grounds of appeal are devoid of merits and the defendant does not have a reasonable prospect of success in her intended appeal. Further, reinstatement of the Pipe will not cause any irreparable damage to the defendant even if she somehow succeeds in her appeal. On the contrary, the plaintiff had been deprived of the use of its Toilet 4A since about late July 2019. He is a successful party after a full trial. If the execution of the Judgment is stayed pending appeal and the defendant loses in her appeal, the stay will amount to deprivation of the plaintiff's fruit of litigation during the period pending appeal. The plaintiff has already spent more than 4 years to claim for something to which it is originally entitled. The Judgment is granted in its favour in August this year. Justice delayed is justice denied. 57.Hence, I refuse to exercise my discretion to grant leave to the defendant for stay of execution pending appeal. The Stay of Execution Summons is dismissed. Costs 58.The court has unfettered discretion on the issue of costs. 59.The Costs Summons is not supported by any reasons at all. 60.I have carefully examined all of the affirmations including their exhibits of the defendant under her New Evidence Summons, Leave to Appeal Summons and the Stay of Execution Summons. I agree with Mr Chan, counsel for the plaintiff, that these applications were non starters. 61.The filing of the two witness statements was in fact an application to adduce new evidence. The draft witness statement of Ho Kwok Wing and the draft witness statement of Wong Kwai Pan inclusive of exhibits are consisted of 27 pages and 97 pages respectively. I have also considered the affirmation of Ho Kwok Wing and her 3rd affirmation. Nevertheless, the defendant failed to explain why she was in breach of the Unless Order made by Master Jocelyn Leung in 2022. It is hard to see how the defendant's complaint against her estate agent, Mr Lai of Auslong Limited, the conveyancing solicitors in the 1991 transaction or Mr Chatlani of the plaintiff for matters happened in about 1991, i.e. 32 years ago, can have any bearing to the present case or present applications. 62.Regarding the Leave to Appeal Summons, the defendant failed to explain why she could advance a case which was contrary to the title documents and her counsel’s confirmation at the opening submission and closing submission (Ground 1). Her grounds of appeal are clearly problematic. One further example is Ground 24. The defendant complained that the trial judge erred wholly in overlooking clause 2 of the Sub-DMC. The defendant submitted that by the Sub-DMC, the parties’ express intention was to grant to the defendant all right over the use of the Pipe. As a matter of fact, the Sub-DMC was dated 16 July 1991. The defendant's present case is that she was only aware of Toilet 4A and the Pipe in about 2019. Hence, it is hard to understand how the defendant can say it was the parties’ express intention that the defendant was granted all right over the use of the Pipe back in 1991. Secondly, the defendant failed to explain how she would use the Pipe after 1991 if it was the parties' express intention as alleged, bearing in mind that the Pipe did not serve Unit 4B. 63.Regarding the Stay of Execution Summons, there is simply no suggestion of any possible prejudice or even difficulties on the part of the defendant if the execution is not stayed pending appeal. The defendant simply sought the opportunity to rehearse her complaints in her 2nd affirmation. 64.Because of the defendant's 4 unmeritorious summonses, the plaintiff, as a winning party, has to incur further legal costs to defend the fruit of its litigation. Unnecessary costs was also incurred on perusal of the trial transcript which the defendant sought to adduce for this hearing, but the defendant did not even refer to it at this hearing or in her solicitor's skeleton submission. 65.I have considered Cheung Wei Man Vivien & Anor v Centaline Agency Ltd HCA 286/2000, 15 December 2006, at para 4 per Lam J (as he then was); also Town Planning Board v Society for Protection of the Harbour Ltd (2004) 7 HKCFAR 114, at paras 16-18. The Court has an unfettered discretion in making indemnity costs order. 66.The New Evidence Summons, Leave to Appeal Summons and the Stay of Execution Summons are totally devoid of merits which to a great extent are based on the so-called New Evidence. The costs of and occasioned these three summonses should be assessed on indemnity basis. Hence, indemnity costs orders should be made, with certificate for counsel. The costs of and occasioned by the Costs Summons should be assessed on party and party basis, with certificate for counsel. Deposition 67.The Costs Summons be dismissed with costs to the plaintiff on party and party basis, with certificate for counsel, to be taxed if not agreed. 68.The New Evidence Summons be dismissed with costs to the plaintiff on indemnity basis, with certificate for counsel, to be taxed if not agreed. 69.The Leave to Appeal Summons be dismissed with costs to the plaintiff on indemnity basis, with certificate for counsel, to be taxed if not agreed. 70.The Stay of Execution Summons be dismissed with costs to the plaintiff on indemnity basis, with certificate for counsel, to be taxed if not agreed.
Mr Sunny Chan instructed by Lo, Wong & Tsui for the plaintiff. Mr Fung Lim Kai of Benny Kong & Tsai LLP for the defendant. | ||||||||||||||||||||
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