Lai Chi Kok Amusement Park Co, Ltd v. Chat Yat Chiu and Others

DCMP 2446/2022 & DCMP 2448/2022

(Consolidated)

[2026] HKDC 1085

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2446 & 2448 OF 2022

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BETWEEN

(BY ORIGINAL CLAIM)

AND BETWEEN

(BY COUNTERCLAIM OF THE 1ST DEFENDANT IN THE ORIGINAL ACTION)

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REASONS FOR DECISION

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A. Introduction

1.On 18 May 2026, the first day of the trial of these consolidated actions, this Court heard the application of Mr Chan Yat Chiu (陳逸超), the 1^st Defendant (by Original Action) (“D1”), by summons dated 27 April 2026 (“Summons”) for, inter alia, “leave … to file and serve the 2^nd Supplemental Witness Statement of Chan Yat Chiu as per the draft as annexed hereto” (“2^nd SWS”) pursuant to Order 3, rule 5 and Order 38, rule 2A of the Rules of the District Court, Cap 336H. Unless otherwise specified, references to Orders, rules, and forms are to those in these rules.

2.At the conclusion of the hearing, I dismissed the Summons, as amended in the course of the hearing, with costs. These are my reasons for the decision.

B. Factual and procedural background

3.This case concerns Lot No. 1249 in Survey District No. 4 (“the Lot”), in a region described as Kau Wa Keng (九華徑). Despite the parties’ repeated references to Kau Wa Keng Pumping Station Upper Village (九華徑泵房上村) (“the Village”), it is unclear how its boundaries are defined and what its precise relationship with the Lot is.

4.The Lot had been owned by a senior member of the Tsang family dating back to the 1900s. In 1979, Cornhill Enterprises Limited became a 50% co-owner of the Lot. In September 2022, it transferred its share to Lai Chi Kok Amusement Park Company, Limited, i.e. the Plaintiff (by Original Action) (“P”).

5.In the 1950s, Mr Tsang Hing Leung (曾慶良) became a one-sixth co-owner of the Lot. Between 2015 and 2017, Ultra Sky Limited acquired a one-sixth share each from Mr Tsang Hing Leung and two other members of the Tsang family to become the other 50% co-owner of the Lot.

6.By originating summonses issued on 11 July 2022, Cornhill Enterprises Limited commenced DCMP 2446/2022 and DCMP 2448/2022, seeking possession of two areas in the Lot described respectively as “Area-1” and “Area-3” against unnamed occupier(s) pursuant to Order 113.

7.By order dated 19 October 2022, D1 (then acting in person) was joined in the actions as the 1^st Defendant. On 23 November 2022, D1’s solicitors filed a notice to act in the actions.

8.On 6 March 2023, it was ordered that the actions be consolidated and continued as if they had been begun by writ, with consequential directions for filing of pleadings.

9.On 3 April 2023, P filed the Consolidated Statement of Claim, claiming possession of Area-1 and Area-3, as identified respectively in Annexes 1 and 2 thereto.

10.On 18 July 2023, D1 filed the Consolidated Defence and Counterclaim, claiming adverse possession on the basis of his being the “sole occupier” since around autumn 2009 of a piece of land known as “No. 6F, Kau Wa Keng Pumping Station Upper Village, Hong Kong (“No. 6F”)” (§3), which “comprises part of Area-1 and the whole of Area-3 [, which is] coloured in red and marked with boundaries in green at the plan in Annex 1” (§4) (“the D&C Plan”). As confirmed at the hearing, D1 was claiming a possessory title in respect of only the area with green boundaries in the D&C Plan, and the “rest of the Lot was and is used and/or occupied by other persons” (§5).

11.On 14 August 2023, P filed the Consolidated Reply and Defence to Counterclaim (re-amended on 21 October 2024), claiming the following: ―

(1) From the 1980s to 2016, Mr Leung Geu (梁照) paid “yearly land rental (or licence fee)” in around March each year in respect of the Lot to Mr Tsang Hing Leung, who received it as one of the co-owners until 2015, and thereafter as an agent for the new co-owner, Ultra Sky Limited (§4(b)(iA)).

(2) D1 was permitted by Mr Chan Kwun Kit (陳冠杰) to “stay in and use Area-1 from 2006” (§4(b)(ii)).

(3) “Area-3 (re-amended to “part of Area-3”) had been used by “Mr Leung Geu’s brother and other family members of Mr Leung Geu until 2016” (§4(b)(v)), so it was not occupied exclusively by D1.

12.By order dated 9 February 2024, Registrar Soong gave the usual directions pursuant to Case Management Summons filed on 27 October 2023, including the filing and service of Lists of Documents and/or Supplemental Lists of Documents by 8 March 2024 (§2), and the obtaining of counsel’s advice by 10 May 2024 (§6).

13.By order dated 12 August 2024, Ultra Sky Limited was joined as the 2^nd Defendant (by Counterclaim). No acknowledgement of service was ever filed.

14.By order dated 16 October 2024, P was granted leave to file one further witness statement and two supplemental witness statements (§8); and D1 was granted leave to file supplemental witness statements in reply (if any) (§9).

15.As of 11 November 2024, the parties had filed witness statements from persons claiming to be residents of the Village. Except Ms Lam Mo Ching (林務貞), they identified their residences merely by name, or by loose descriptions as to their relative positions, rather than by markings on any plan. A summary of the accounts presented by the witnesses is as follows:

P’s proposed witnesses
Name	Residence	Period
Chan Kwun Kit	No.6F	1989 to 2006
Fung Mun Yee	No.6G (“diagonally opposite” No.2)	2009 to 2024
Lam Mo Ching	No.2A (green area on D&C Plan)	End of 1995 to mid 1996
	No.2A (blue area on D&C Plan)	1996 to 2004
	No.2A (striped area on D&C Plan)	1999 to 2004 (her son and his family)
D1’s proposed witnesses
D1	No.2 (“diagonally opposite” the Lot)	1994 to 2008
	No. 6F	2009 to now
Wong Keung Bun	No.2B (“diagonally opposite” to the Lot)	1993 to 2023
Chow Kwok Shing	No.2A	“all along”

16.By order dated 26 February 2025, leave was granted to set down the actions for an 8-day trial to commence on 18 May 2026 (§1); and “all late interlocutory applications shall be taken out prior to the Pre-trial Review” (§5). The actions were set down for trial on 8 April 2025.

17.On 16 March 2026, the Pre-Trial Review took place. No interlocutory application was made or foreshadowed.

18.By letter dated 15 April 2026, D1’s solicitors served on P’s solicitors “the Supplemental List of Document of the 1^st Defendant filed on 15^th April 2026” (“SLOD”), citing a “continuing discovery obligation”. Despite the deadline having expired over two years prior on 8 March 2024, D1 purportedly did so without seeking court leave or P’s consent.

19.In that letter, five items of documents were disclosed. D1’s solicitors sought their inclusion in the trial bundle, which they “trust … should not be controversial”. For the purposes of the Summons, only the following three items, respectively “Item 6”, “Item 7” and “Item 8”, are relevant since they were subsequently annexed to the 2^nd SWS.

(1) Item 6 is an annotated, colour-coded version of the D&C Plan which “aids the Court’s understanding of who was/is on which part of Lot 1249, the source of which can be found in the witness statements of D1’s witnesses”. The last assertion is inaccurate. As summarised above, the witnesses identified their residences by name or loose descriptions rather than by any markings on a plan.

(2) Item 7 is an updated floor plan of No. 6F which “adds annotation of approximate measurement (and therefore size) thereof”. However, this plan merely contains approximate square footage without any specific dimensions.

(3) Item 8 is a “video recording of [the Village] taken on 14/4/2026 showing the different structures referred to in the respective witness statements of parties’ witnesses, including those on Area-1 and Area-3, on Lot 1249 and the nearby vicinity with voice over (in Punti) by D1”.

20.By letter dated 22 April 2026, P’s solicitors objected to the inclusion of the aforesaid documents in the trial bundle.

21.The documents’ makers were not identified, and there was no clear evidential basis for their admission.

22.D1’s Summons dated 27 April 2026 is noteworthy in several respects.

(1) The supporting affidavit from D1’s solicitors disclosed “a change in counsel […] only shortly before the PTR” on 16 March 2026. The change was “solely caused by [D1’s] financial constraints, and in fact [he] has delayed in paying his costs on account for [his solicitors’] professional fees and for engagement of Counsel for the PTR and the trial”. There is, however, no explanation as to how these facts relate to his late creation and production of the three documents.

(2) While the affidavit correctly identified D1 as the source for Items 7 and 8, its attribution of Item 6’s annotations to existing witness statements is incorrect. D1’s authorship of those annotations was only first disclosed in the draft 2^nd SWS.

(3) The draft 2^nd SWS, together with the Statement of Truth, is undated and unsigned. It enclosed Items 6, 7 and 8 as Annexes 2 (CYC-3), 3 (CYC-4) and 4 (CYC-5). At the hearing, D1’s solicitors handed up a signed copy dated 18 May 2026.

(4) Neither the affidavit nor the draft 2^nd SWS explains the late creation and disclosure of these documents, although D1 has been represented by the same solicitors for more than three years.

C. D1’s failure to seek leave for late filing and serving of SLOD

23.Order 24, rule 2(1) requires parties to an action to make mutual discovery by exchanging lists of documents within 14 days after the close of pleadings, disclosing all documents in their possession, custody, or power relating to matters in question. The list of documents and the affidavit verifying the same must be in Form Nos 26 and 27 respectively: Order 24, rule 5.

24.In Liu Chen v Chan Poon Wing HCPI 779/2006 (unreported, 7 October 2009), the plaintiff sought leave to file and serve a witness statement out of time, but failed to seek leave to adduce two documents annexed thereto (§21). Master Marlene Ng held at §24:

“where discovery is given at the eleventh hour, it is quite impermissible for the litigant giving such discovery to do so under the guise of voluntary discovery or as annexure to a further or supplemental witness statement without seeking leave of the court to give further discovery out of time.”

(The dictum was applied in Kinetics Medical Health Group v Dr Tse Ivan Cheong Yau HCA 1115/2010 (unreported, 8 May 2013) §32, DHCJ Marlene Ng).

25.The rules under Order 24 and Order 38 do not envisage making discovery by attaching documents as “exhibits” or annexures to witness statements. The rationale is clear: Order 24 establishes a comprehensive discovery regime with its own detailed enforcement provisions which interact with other procedural rules.

26.Marlene Ng J explained in Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508 at §84:

“in principle it is unnecessary to append documents to a witness statement if they are clearly identified in the body of the statement itself. Oftentimes, indiscriminate inclusion of appendices serve only to encumber the witness statement , and to lead to eventual duplication of documents in the trial bundle.”

27.Further, the legislative history of Order 38, rule 2A shows that the rule does not permit annexing documents to witness statements as “exhibits”.

28.The current Order 38, rule 2A originated from the English equivalent of rule 6 of the Rules of the Supreme Court (Amendment No. 2) 1986, SI 1986/1187 which came into force on 1 October 1986. That regime was discretionary and only applied to specified courts. There were no express requirements on the content of a witness statement. The recommendations of the Report of the Review Body on Civil Justice (June 1988, Cm 394), at p 42, §235, were implemented in two stages. First, on 1 October 1988, the Rules of the Supreme Court (Amendment No. 2) 1988, SI 1988/1340 came into force to extend the rule’s operation to all proceedings.

29.Second, on 16 November 1992, the Rules of the Supreme Court (Amendment No. 2) 1992, SI 1992/1907 came into force. That amendment substituted the earlier rule with a mandatory regime and new wording which was substantially adopted on 25 May 1995 as the current Order 38, rule 2A: see the Rules of the Supreme Court (Amendment) (No. 3) Rules 1995 (LN 223 of 1995), and Explanatory Note, paragraph (d). Order 38, rule 2A(4)(b) was introduced in 1992, requiring witness statements to “sufficiently identify any document referred to therein”. The practice of annexing documents as “exhibits” is inconsistent with this mandatory obligation to merely identify documentary references.

30.For completeness, Order 41, rule 11(1) ― reinforced by paragraph 8 of Practice Direction 10.1 ― provides that “Any document to be used in conjunction with an affidavit must be exhibited, and not annexed, to the affidavit.” Thus, annexing documents to affidavits is prohibited even under Order 41. Further, the term “exhibit” is entirely absent from Order 38.

31.The following propositions emerge from the authorities and the relevant rules:

(1) Discovery shall be made by exchanging lists of documents in Form 26 under Order 24, rather than by annexing them to witness statements.

(2) If a document has been properly disclosed in a list of documents, it is improper to annex the same to a witness statement. The obligation to “sufficiently identify” a document is satisfied by referencing its item number in the list served or to be served out of time with leave. Parties should insert the corresponding trial bundle references before lodging.

(3) It is irregular to file a supplemental list of documents enumerating certain additional documents out of time without leave, while solely seeking leave to adduce a witness statement which annexes those additional documents as “exhibits”.

(4) To adduce documents outside the time limit specified in a relevant order, a party must first seek the other side’s consent to file a supplemental list of documents so that a consent order can be made, failing which he should seek leave to file that list.

(5) If those additional documents are not self-explanatory or contain purported factual narratives (such as the “annotations” in this case), leave must be sought to file and serve a supplemental witness statement to provide the necessary factual foundation.

32.D1’s failure to seek leave before filing and serving the SLOD enumerating the three documents out of time, and the annexing of those three documents to the 2^nd SWS, were therefore irregular.

33.At the hearing, Miss Ho, appearing for D1, fairly accepted that retrospective leave to file and serve the SLOD was required and sought leave to amend the Summons to include such relief. As the parties agreed that their existing submissions would be sufficient to deal with this new relief, I treated the Summons as amended to that extent.

D. Applicable principles governing late application to adduce supplemental witness statements

34.The relevant principles governing late applications for adducing witness statements are well-established.

35.“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”: Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 §7, Bharwaney J; see also Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508 §§32-33, Marlene Ng J.

36.“A late application to amend or to introduce new evidence has a fairly high threshold to pass”: Wise Union Industries Limited v Hong Kong Science Technology Parks Corporation HCAL 12/2009 (unreported, 21 September 2009) §2, Andrew Cheung J (as the Chief Justice then was).

37.“First and foremost the supplemental witness statement that a party intends to serve must be admissible, relevant and probative. Logic dictates that any supplemental witness statement intended to be served must satisfy such criteria before the court brings the underlying objectives into the weighing exercise because leave should not be given for any party to introduce inadmissible, irrelevant or non-probative evidence at trial.”: Ho Wai Tung v Ho Fung [2020] 4 HKLRD 508 §§32-33, Marlene Ng J.

38.“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 Civil Justice Reform”[1]:  Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 §5, Bharwaney J; see the underlying objectives in Order 1A, rule 1.

39.“To summarise, the relevant considerations for a judge exercising his discretion are:

(1) the merits of the proposed application: whether the application if granted would assist the court in securing the just resolution of the dispute in accordance with the substantive rights of the parties;

(2) whether there is any disruption to the trial or any milestone date;

(3) the presence or absence of any real prejudice to the other party;

(4) any conscious flouting of the rules of court, practice directions and/or case management directions/timetables, or any over-reaching or deliberate maneuvering on the part of the applicant; and

(5) the objectives of the CJR.”: Re Cao Zhong [2021] HKCFI 3143 §23, Recorder William Wong SC.

40.“Although there is no doubt 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, it can hardly be said to be just if a party is required, as a result of late applications made by its opponent at the last minute, in disregard of timetables laid down by the court in good time at case management hearings and pretrial review hearings, to plead to amendments, consider new documents and evidence, and to file supplemental witness statements at the eve of trial.”: Hong Kong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Investment Ltd HCA 1576/2011 (unreported, 25 February 2014) §3, Mimmie Chan J.

41.“Delay itself is a ground justifying refusal of leave, since delay of a trial is prejudice to a party, who has every right to expect that a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted. […] The applicant for leave must establish, by affidavit evidence, exceptional circumstances to explain and justify the delay. Change of the legal team has rarely, if ever, been accepted as justification for a last minute change of case or amendment of pleadings, which would result in or necessitate a response from the other side which it cannot in all fairness be expected to do in the availability of time before trial. PD 5.2 makes it clear that change of the legal team will not be treated as exceptional circumstances.”[2]: Hong Kong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Investment Ltd HCA 1576/2011 (unreported, 25 February 2014) §1, Mimmie Chan J.

42.“Prejudice is inevitably caused, in the disruptions in the preparation for trial, the need to consider the new evidence and the need to respond thereto, coupled with the need to locate witnesses at the last minute to consider and if necessary to respond to the new evidence, and the last minute distraction from the proper focus and priority of the due preparation for trial. This is actual prejudice.” Converge Design and Construction Co Ltd v Mount Kelly International Limited [2020] HKCFI 2433 §2, Mimmie Chan J.

43.“Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such applications. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs.”: Li Xiao Yun v China Gas Holdings Limited CACV 38/2013 (unreported, 11 March 2013) §18, Lam JA (as he then was).

E. The parties’ submissions

44.In support of the Summons, Miss Ho argued that:

(1) Item 6 to Item 8 “are plainly relevant, of high probative value and can save the Court’s and parties time and resources”.

(2) They “are not new evidence as such” and “no new issue arises therefrom”.

(3) The “circumstances of how they came into place have been fully explained”.

45.She elaborated as follows:

(1) Item 6 is “to assist the Court in understanding the physical situation of the Lot” and there is no “improvement of the evidence” as such. It is simply an annotated version of the D&C Plan. “It demonstrates [D1’s] case on who is occupying which part of the Lot, the source of which can be found in pleadings and/or witness statements already before the Court ― it is nevertheless not a mere repetition” (italics in original).

(2) Item 7 “serves to supplement [D1’s] earlier rough estimate of the size of No. 6F” in the floor plan annexed to his witness statement.

(3) Item 8 is a 71-second video which “serves to present the factual situation of the Lot to the Court in a visual manner in addition to the existing verbal description … This avoids wasting the Court’s time and resources during trial.”

46.In response, Mr Lau, appearing with Miss Cheung for P, argued that: (1) no tenable reason had been given for the inexcusable delay; (2) the relevance of the documents was “tangential” at most; and (3) there would be prejudice in that, for example, P had no opportunity to verify the measurements in Item 7.

F. Discussion

47.Despite Miss Ho’s valiant efforts, I am unable to accept her submissions.

48.First, regarding relevance and probative value, the starting point is to consider the issues as defined primarily by the pleadings, and supplemented by the Agreed Statement of Issues in Dispute dated 12 February 2025. Two central issues arise:

(1) Whether Mr Leung Geu (梁照) paid “yearly land rental (or licence fee)” to Mr Tsang Hing Leung from the 1980s to 2016 in respect of the Lot and, if so, its legal consequences.

(2) Whether D1 has been exclusively possessing No. 6F continuously since 2009 (as alleged by D1), or whether his occupation was under the permission of Mr Chan Kwun Kit (陳冠杰) (as alleged by P).

49.Although D1 relies on his neighbours’ accounts to support parts of his factual case, the information in the three documents fails to establish any plain relevance or high probative value to the central issues.

50.Item 6 shows the relative positions of the neighbours’ residences, including Mr Leung Geu who will not be a witness. The loose manner in which the witnesses describe their residential locations in their statements supports the inference that Item 6 is irrelevant to any issue and unnecessary for the fair disposal of these actions.

51.Item 7 shows certain asserted partition areas inside No. 6F. However, no material demonstrates how these measurements interact with the Lot as depicted in the D&C Plan.

52.Item 8 is a 71-second video filmed roughly 20 metres away, showing multiple structures with a Punti voiceover commentary identifying their occupiers. However, the Cantonese phrase “係[人名]嘅” used in the commentary lacks grammatical tense markers and any indication of the period of occupation. Further, D1 fails to explain how the locality’s physical appearance in 2026 is relevant to the issues concerning events from years ago, or how this video supplements existing trial materials such as historical aerial photographs.

53.Second, the three documents contain fresh information which requires justification at this stage. Regarding Item 6, I reject the submission that the source of the annotations “can be found in pleadings and/or witness statements already before the Court” (italics in original) as alleged by D1. The paragraphs cited simply do not contain the information in Item 6.

54.Third, D1 fails to explain why these documents were not created during the three years since he was joined in these actions.

(1) It is well-established that a change of the legal team rarely, if ever, justifies delay. In this case, despite the change of counsel, D1 has been represented by the same firm of solicitors for over three years.

(2) The supporting affidavit deposed to no causal connection between D1’s financial constraints and change of counsel, and his previous failure to create the documents.

55.In the circumstances, the Court lacks any sufficient basis to exercise its case management discretion in D1’s favour, having regard to the underlying objectives under Order 1A.

G. Disposition

56.For these reasons, leave to file and serve the SLOD and the 2^nd SWS (with the three annexed documents) was refused. The Summons, as amended, was dismissed. On the basis of the parties’ agreement, I ordered that D1 pay P costs of and occasioned by the Summons, as amended, in any event, to be taxed if not agreed, with certificate for one counsel. To facilitate taxation, the parties agreed that the hearing lasted for one hour.

57.I thank Miss Ho and Mr Lau (appearing with Miss Cheung) for their helpful submissions.

Mr Kin Lau and Miss Dora Cheung, instructed by Woo Kwan Lee & Lo, for the Plaintiff (by Original Action) and 1^st Defendant (by Counterclaim)

Miss Ivy Ho, instructed by Ngans Lawyers LLP, for the 1^st Defendant (by Original action) and the Plaintiff (by Counterclaim)