Kwan Kwai Lin and Another v. Yeung on Ki

HCA 3013/2015

[2025] HKCFI 5265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3013 OF 2015

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REASONS FOR DECISION

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THE APPLICATION

1.This Decision deals with the plaintiffs’ application made by summons filed on 24 October 2025 (“the Summons”)[1] for leave to adduce the witness statement of Kwan Tsz Ching at the re-trial which shall commence on 17 March 2026 (with another 5 days reserved).

BACKGROUND

2.This action has had a long history.  However, for the purpose of the present application, I do not think it is required to refer to such history at length, and the relevant parts thereof may be briefly stated as follows.

3.The action was brought by Kwan Kwai Lin (“the Husband”) in both his personal capacity and his capacity as the administrator of the estate of his wife (“the Wife”), against Yeung On Ki, the Wife’s younger sister (“the Younger Sister”).

4.The subject matter of this action is a residential flat located in Yuen Long (“the Property”), which was purchased in August 2003 and registered under the sole name of the Younger Sister.

5.In gist, it was the plaintiffs’ case that the Husband and the Wife were and are the 100% beneficial owner of the Property on the following 3 (non-mutual exclusive) alternatives:

(1)  an express common intention constructive trust based on an express oral agreement;

(2)  an inferred common intention constructive trust based on monetary contribution to the purchase price of the Property; and/or

(3)  a resulting trust arising from monetary contribution to the purchase price of the Property.

6.The Younger Sister denied the plaintiffs’ claims and counterclaimed against them for, inter alia, vacant possession of the Property.

7.The trial of the action took place in October 2021 (“the First Trial”).  By a Judgment handed down on 14 January 2022 (“the First Trial Judgment”), the learned Judge, inter alia, dismissed the plaintiffs’ claims, and ordered the plaintiffs to deliver vacant possession of the Property to the Younger Sister.

8.The plaintiffs appealed to the Court of Appeal, which:

(1)  dismissed the 1^st plaintiff’s (i.e. the Husband suing in his personal capacity) appeal;

(2)  allowed the 2^nd plaintiff’s (i.e. the Husband suing in his capacity as the administrator of the Wife’s estate) appeal,

and ordered that:

“The 2^nd plaintiff’s claims against the defendant (limited to the issues of inferred common intention constructive trust and/or resulting trust and the issue of breach of trust for causing and/or procuring [a mortgage in 2015]), and the defendant’s counterclaim against the plaintiffs shall be remitted to the Court of First Instance for a retrial (before another judge).”[2]

9.The re-trial has since then been fixed to be heard by this Court.  As aforesaid, the re-trial shall commence on 17 March 2026.

DISCUSSION

10.The additional witness whom the plaintiffs would like to call at the re-trial is Kwan Tsz Ching (i.e. the daughter of the Husband and the Wife) (“the Daughter”).  She was not a witness in the First Trial.  Her proposed evidence would touch upon, among other things:

(1)  the reason why the Property was purchased;

(2)  her conversation with the Younger Sister;

(3)  certain WhatsApp messages between her and the Younger Sister.

11.While Ms Law (who acts for the Younger Sister) does not question the relevance of the Daughter’s witness statement, she opposes the plaintiffs’ application.  The reasons relied on are as follows:

(1)  The plaintiffs should not be allowed to take the opportunity of the re-trial to “patch-up” their case by calling the Daughter to give evidence, when she could and should have been called.  It would be very unfair to the Younger Sister if the plaintiffs were to be allowed a second bite of the cherry;

(2)  While the Husband now alleges that the Daughter’s physical and/or emotional condition at the time of the First Trial was unsuitable to testify, such reasons were not given at the First Trial;

(3)  This application should be dismissed on the ground of delay:

(a)  While the relevant Legal Aid Certificate was granted on 25 August 2025, this application was not made until 24 October 2025;

(b)  The re-trial is less than 5 months away.

(4)  The introduction of a new witness would prejudice the Younger Sister’s position and she would have to consider filing a further round of evidence in reply to the new allegations.

12.First of all, it should be borne in mind that the reason why the 2^nd plaintiff’s appeal was allowed (and as a result a re-trial was directed) had nothing to do with the merits of the case, but primarily because of the feature of judicial copying found in the First Trial Judgment.  Apart from those claims which the Court of Appeal considered unsustainable, the remaining issues were sent back to the Court of First Instance for re-trial before a different Judge.  In these circumstances, I do not think the parties are bound to rely only on the evidence which had been adduced in the First Trial only, and the new Trial Judge must have a discretion to decide whether new evidence may be admitted.  Indeed, even Ms Law has fairly accepted that that is the case here.

13.In such circumstances, the general legal principles applicable to a late application for leave to rely on a witness statement are applicable.  They have been summarised by Bharwaney J in Gurung An Parsad v Great Wealthy Engineering Company Limited & Another [2012] 3 HKLRD 705 at [5] – [9]:

“5. Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform. […] Finally, a late application for leave to rely on additional witness statements, that is to say, an application made after the case has been, or is ready to be, set down for trial, will not be considered without signed witness statements containing a statement of truth being furnished.

8. Chung Hiu Bun, the administrator of the estate of Chung Chun Kong, deceased v. Yeung Yiu Sing and anor., HCPI 123/2012, 28 July 2011 is an example of a case where a party, after the case was set down for trial, sought to present new evidence and a new case. The plaintiff was not to blame for not adducing this evidence earlier because the new evidence had only been discovered recently and rather fortuitously. In this case, the defendants could see that the witness statements that were sought to be adduced and the amendments that were sought to be introduced were very relevant to the claim so they very sensibly consented to the plaintiff’s application. However, there are many other cases where strong opposition can be made to any such late application, particularly where the probative value of the new evidence is low and of marginal relevance. Further, the court would also be less inclined to accede to such late applications where additional witness statements are produced that speak of the same facts that have already been mentioned in previously served witness statements.

9. Very strong grounds would be required to move a court to accede to such applications if doing so would result in trial dates being vacated.”

14.While the above were said in a personal injury case, I am of the view that the principles referred to are equally applicable herein.

15.For completeness, it may also be helpful to refer to the case of Chu Hsiao-Chiu alias Chu Tony Chu Hsiao-Chiu alias Chu Hsiao Chiu, deceased v Ma Jinrui & Another [2020] HKCFI 942, in which the plaintiff therein sought leave to file two affidavits in opposition to various applications taken out by the defendants less than 3 weeks before the substantive hearing.  In his Decision, Coleman J took the view that:

“18. It is well-established in the ‘post-CJR era’ that the underlying objectives emphasise not only substantive but also procedural fairness. Therefore, late or last-minute applications trigger the Court’s expectation that the applicant will provide a full account of the lateness of the application, and full justification as to why the application should be entertained at all at such a late stage.

19. There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid. Courts should take into account that there may be an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, the vacation or adjournment of the hearing occasioned by last-minute applications may mean the loss of the hearing day which could have benefited other litigants, and inefficiencies in the use of Court time, which is a public resource. Hence, late applications can be dismissed on the basis of lateness alone.”

16.When the Court considers applications like the present one, it shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the Rules of the High Court).  The question is whether there are any factors which are so strong that they may outweigh this primary aim.

17.In the present case, although the application is made relatively late, I am of the view that leave should be granted for the Daughter’s witness statement to be adduced.

18.First, although the plaintiffs are indeed trying to “patch-up” their case, on my part, I cannot see anything wrong about it.  The Judge who is going to conduct the re-trial will have to consider whether such new evidence should be given any weight.  As I see it, the introduction of the new witness is conducive to the achievement of the said primary aim of the Court’s adjudging the dispute according to the substantive merits of the case.  Viewed in this way, I do not think the Court should take into account the so-called “prejudice” suffered by the Younger Sister, if such “prejudice” means she would have to face evidence which is detrimental to her case.  Indeed, as pointed out by Mr Ma for the plaintiffs, there is nothing which stops the witnesses who have given evidence at the First Trial to give evidence in a way during cross-examination which amount to an attempt to improve the plaintiffs’ case and to deal with the Younger Sister’s arguments made in the closing submissions in the First Trial. Again, the question is whether the Court should accept such evidence, which is a matter for the Judge of the re-trial.

19.Second, it follows from the first point that the real issue is whether the Younger Sister can be given adequate opportunity to deal with the proposed new evidence.  I am of the view that she certainly can:

(1)  The Daughter’s witness statement is short. Excluding the introduction, it only comprises 15 paragraphs which run through slightly more than 4 pages;

(2)  As far as the reason why the Property was purchased, that concerns conversation between the Daughter and the Wife in respect of which the Younger Sister is unlikely to have any knowledge;

(3)  In relation to the conversation between the Daughter and the Younger Sister, the allegation is short, and I do not think it would take long for the Younger Sister’s legal team to take instruction and for the Younger Sister to write a supplemental witness statement to reply (if she is so advised, which Mr Ma has raised no objection);

(4)  For the WhatsApp messages, as Ms Law confirmed at the hearing, they were all included in the trial bundle in the First Trial, in respect of which the Younger Sister’s legal team must have taken instructions long time ago for the purpose of the First Trial;

(5)  The trial will only commence on 17 March 2026. There is still a lot of time left for the Younger Sister to complete her supplemental witness statement.  In fact, Ms Law has told this Court that the Younger Sister would need 4 weeks to prepare for her supplemental witness statement.  That would only bring us to 1 December 2025, which is still 2½ months away from the re-trial date;

(6)  Since the trial is not going to commence until 4½ months later, the Younger Sister’s preparation thereof cannot be said to be disrupted or distracted by reason of the relatively late introduction of the Daughter’s witness statement.

20.Third, it only took slightly more than 4 days[3] for the opening submissions and the evidence in the First Trial.  On the other hand, 6 days have been reserved for the re-trial.  As it is my usual practice to fix an additional date for closing submissions, it means the number of days reserved for the re-trial must be adequate despite:

(1)  the plaintiffs’ calling of an additional witness at the trial; and

(2)  the further evidence to be given by the Daughter.

21.Fourth, I do not think the fact that the plaintiffs have taken around 2 months after the grant of Legal Aid Certificate to cover this application can be said to amount to delay.  Even if it does, given the discussion above, I do not think this factor is strong enough to outweigh the other factors.

22.Fifth, the Husband has explained why he did not call the Daughter to give evidence at the First Trial. I do not think it matters that those reasons were not mentioned in the First Trial.

ORDER

23.For reasons of the aforesaid, I grant leave to the plaintiffs to file and serve the Witness Statement of Kwan Tsz Ching as per the draft attached to the Summons.

24.I also grant leave for the Younger Sister to file and serve a supplemental witness statement by 1 December 2025.

COSTS

25.The costs of the application shall be in the cause of the re-trial.

26.The plaintiffs’ own costs shall be taxed in accordance with Legal Aid Regulations.