Ng Wing Tak and Another v. Ng Lok Yin

HCA 1075/2024

[2026] HKCFI 4889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1075 OF 2024

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BETWEEN

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DECISION

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A.  The application

1.This is the application of the 1^st Plaintiff (“P1”) and the 2^nd Plaintiff (“P2”) (collectively “Ps”) by Summons dated 21 April 2026 (“the Summons”) for leave to amend their witness statements both filed on 25 September 2025 (“WS”). Ps took out the Summons in English without draft amended witness statement annexed.

2.The substantive argument of the Summons was first heard by me on 17 June 2026 (“June Hearing”).

3.On 4 May 2026 (the day before the 1^st call over hearing of the Summons), each of P1 and P2 filed affirmations exhibited their draft amended witness statements (“AWS”). On 7 May 2026, P1 and P2 filed further affirmations in support of the Summons and stated their intention to replace the WS by the AWS.

4.The reasons advanced by Ps in support of their application are:

(1)  They found that the WS have omissions and are incomplete, part of the contents is repetitive or lack of clarity (「存在若干遺漏及不完整之處 ，且部份內容出現重複或表述欠清晰之情況」).

(2)  They have sought independent legal advice and were advised that they should amend the WS to ensure its contents are accurate and complete.

(3)  The amendments are supplementary or for clarification. They made the amendments in accordance with the facts (「根據事實」), including supplementing key facts, deleting contents that are redundant, and reorganizing the chronology of the events (「包括補充關鍵事實、刪減冗餘內容，以及重整事件時序」).

(4)  About 80% to 83% of the WS require amendments. Due to the volume of the amendments and that some of the changes are made to the names and descriptions, it is tidier and more costs effective to do it by way of an amendment instead of adducing a supplementary witness statement that requires cross referencing.

(5)  No prejudice will be caused to the Defendant (“D”). The amendments should be allowed in the interest of justice.

(6)  The Summons was taken out in compliance with the Order made by Master Hui on 24 March 2026 (“March Order”)

5.D opposes the Summons on the following grounds:

(1)  The power to allow amendments to witness statements should be exercised only in exceptional circumstances. Ps have the burden to show that this is an exceptional circumstance.

(2)  Ps should not be allowed to rewrite the facts of their case by the intended amendments.

(3)  The WS were written by Ps themselves verified by statement of truth. Ps have not explained why they sought to amend the WS which they had once confirmed to be true and accurate.

(4)  Ps’ assertion that the AWS was made in accordance with the fact (「根據事實修改」)[1] per se does not justify the amendment. They had verified the truth and accuracy of the WS. They shall explain specifically why amendments are now necessary.

(5)  D does not object to the editorial changes. For amendments that are more than editorial, Ps shall file supplementary witness statement to give specific reasons for each of those changes. If the amendments are allowed, D shall be given leave to respond. Further, these should not prejudice D from taking issue on the matters stated in the WS, the AWS and further supplementary witness statement, if any, at trial.

6.Some of the changes made in the AWS are editorial, for example, Ps want to change 「兄弟姐妹」(the siblings) to 「姐弟三人」 (the three sisters and brothers). Some other changes do not appear to be mere editorial.

7.To illustrate the nature and extent of the amendments sought, I take paragraph 4 of the AWS[2] as a non-exhaustive example.

8.Firstly, it was stated in paragraph 4 of WS that 「在簽署兄弟姐妹的原始同意書之前，兄弟姐妹口頭討論了財產的安排，在此期間，他們達成一項協議（「信託協議」) 」(Before signing the siblings’ original consent document, the siblings had an oral discussion on the arrangement of assets, during this period, they reached an agreement (“Trust Agreement”)).

9.Ps sought to change the above to 「在簽署相關文件前， 姐弟三人口頭討論並達成共識（下稱2014年協議）」(Before signing the relevant documents, the three sisters and brother have oral discussion and reached a consensus (“2014 Agreement”)). The reference to “the siblings’ original consent document” was changed to “relevant documents”. Instead of having reached an agreement, they reached a consensus.

10.Secondly, it was stated in paragraph 4(a) of WS that「為了方便管理, 將祖屋轉讓給被告伍樂然為財產的合法所有權」 (For the convenience of management，the Ancestor House was transferred to D as the lawful ownership (sic) of the assets).

11.Ps sought to change the above to 「為了方便日後文件簽署及出席業主立案法團會議，及處理祖屋相關申請， 由被告伍樂然暫時作為法定業主，持有祖屋」(For the convenience of signing documents and attending incorporated owners’ meeting in the future, and handling application relating to the Ancestor House, D is to be a temporary legal owner holding the Ancestor House).

12.Thirdly, it was stated in paragraph 4(b) of WS that 「被告將以同等份額持有兄弟姊妺信託財產, 即各自擁有財產的三分之一股份」 (D will hold the siblings’ trust assets in equal shares, that is each owns one-third of the shares of the assets).

13.In AWS, it was changed to「被告將以信託形式持有祖屋, 三姊弟各自擁有三分之一受益權」(D will hold the Ancestor House on trust, each of the three sisters and brother owns one-third of the beneficial rights).

14.Fourthly, it was stated in paragraph 4(c) of the WS that the siblings agreed not to sell the Premises「該房產」 before the death of mother in any event. The agreement was made after having taken into account that P2 and mother Madam Poon resided in the Premises at that time. The siblings anticipated that the possible redevelopment by the Government would likely take place after the death of mother because there are many units and many people involved in that area, it would be more difficult for the Government to complete the purchase.

15.Ps deleted the above in its entirely and added「母親在世期間絕不出售或按揭祖屋，等市區重建局（下稱「市建局」）收購後，出售收益，再扣除開支後，平均分配三人」(The Ancestor House will absolutely not be sold or mortgaged during the lifetime of mother. After the purchase by the Urban Renewal Authority, the sale proceeds (after deduction of the expenses) are to be distributed to the three of them).

16.Fifthly, Ps further deleted in the entirety paragraphs 4(d) to (h) of WS which contain matters stated to be part of the discussions leading to the Trust Agreement. Ps inserted a new paragraph stating that Ps have never received any money or other compensation as consideration.

B.  Applicable legal principles

17.The relevant legal principles on amendment of witness statements are not in dispute. Witness statement is a “document” in the proceedings that falls within the power of the Court under Order 20 rule 8(1) of the Rules of the High Court. This power is to be exercised only in exceptional circumstances: Hong Kong Civil Procedure 2026 Vol. 1 38/2A/10. Ps shall justify that this is an exceptional circumstance.

18.The Court may grant leave to adduce supplementary witness statement in cases where it is necessary to address genuinely new matters that have arisen after the witness statements were served, or to fill in material gaps in the evidence that could not reasonably have been included or anticipated in the witness statements that were served, or to answer the statements of the opposite party: Hong Kong Civil Procedure 2026 Vol. 1 38/2A/12.

19.Case management power shall be exercised in a manner that meet the underlying objectives of achieving cost effectiveness, procedural fairness, proportionality with the primary aim to secure the just resolution of the parties’ substantive dispute.

20.An amendment, if allowed, would not obviate the fact that Ps had given an earlier version of the events verified by statement of truth. As rightly accepted by both parties, D should not be prohibited from taking issues, where relevant, on the veracity of different versions put forward by Ps simply because Ps said that the new version superseded the old one.

C.  June Hearing

21.At the June Hearing, Ps orally submitted the specific reasons for most of the amended paragraphs. Counsel for D submitted that D would not object to the Summons if Ps set out in supplementary witness statements their specific reasons for each of the disputed amendments. Ps have no objection to file such supplementary witness statements.

22.There ought to be a reason for Ps to make the deliberate changes to the terminology and description of events. In light of the extent and nature of the intended amendments, I agree that stating the specific reasons for these amendments by Ps will help the parties to focus on the real issues at trial, prevent D from being taken by surprise at trial, and to enable that only necessary and relevant issues will be dealt with at trial.

23.Ps attempted to justify the Summons by contending that it was taken out in compliance with the March Order. This may be due to their misunderstanding of the March Order. The March Order was made by Master Hui at a Case Management Conference. It is an unless order requiring Ps to take out application for specific discovery and/or leave to adduce supplementary witness statement, if any, by 4 pm on 21 April 2026, failing which they be debarred from doing so. Master Hui did not require them to make any of these applications, but if Ps intend to adduce supplementary witness statement or seek specific discovery, they shall apply by the stipulated deadline. Ps cannot use the March Order as a ground to justify the relief sought in the Summons.

24.At the end of the June Hearing, I ordered (“June Order”), inter alia, that the hearing of the Summons be adjourned to today, Ps shall file and serve supplementary witness statements to give specific explanation to the amendments sought (“Explanation Statement”) on or before 8 July 2026. The content of the Explanation Statement is one of the matters for consideration of whether the Summons should be allowed.

D.  Events after the June Hearing

25.Ps did not file and serve the Explanation Statement pursuant to the June Order.

26.Ps lodged on 8 July 2026 an unsigned written submission titled “原告人就2026年5月4日存檔誓詞内夾附的修訂證人陳述書提出的修訂之陳詞” (“July Submissions”). Ps repeated the general grounds summarized above, and included in Section E and Section F explanations for the disputed amendments with reference to specific paragraphs in the AWS.

27.I do not see any reasons why Ps lodged an unsigned written submissions but not a supplementary witness statements pursuant to the June Order. The parties’ past conduct in this case show that Ps can differentiate between submissions and supplementary witness statement. Ps had filed witness statements with signature and statement of truth, and submissions without. The lack of legal representation cannot be a valid reason.

28.The July Submissions, which was lodged without leave of the Court, shall be expunged from the Court files.

29.On 20 July 2026, D took out a Summons for an unless order requiring Ps to file the Explanation Statement. On 4 August 2026, Master Hui granted the unless order requiring Ps to file and serve the Explanation Statement within 14 days.

30.On 18 August 2026, P1 and P2 filed their supplementary witness statement (“August Statement”).

31.The August Statement is not in compliance with the June Order. It is mainly a repetition of the reasons summarized in paragraph 4 above[3] with submissions on legal principles. Ps did not include the contents of Sections E and F of the July Submissions nor put forward any specific reasons in the August Statement. Ps maintained that the contents in the WS and the AWS are the same facts and are consistent[4]. This will be a matter to be raised at trial. I refrain from expressing any view on this.

32.The August Statement also contained incorrect statements, including (a) the statement in paragraph 10 that leave to amend the WS has been granted to them at the June Hearing which is plainly wrong; and (b) the incorrect statement in paragraph 15 that this Court suggested amendments to paragraph 38 of AWS.

33.The August Statement ought to be expunged from the Court files.

E.  Disposition of the Summons

34.In the exercise of case management power, I shall balance proportionality, procedural economy, costs effectiveness and the objective of fair resolution of the dispute between the parties. The veracity of the events set out in the AWS, where relevant, can be tested at the trial. There will be no real prejudice against D to allow the amendments if (a) Ps provide their specific reasons for each or each category of the disputed amendments by way of supplementary witness statement; (b) D has leave to file witness statement in response; and (c) there be proper costs order to address the extra costs incurred as a result of the late changes made by Ps. Both parties agree.

35.On the issue of costs, the usual costs order in an application for amendment is to direct the applicant for leave to amend to bear the costs of and occasioned by the amendments. Ps handled this application in a confusing manner without regard to the Court orders which caused costs having been unnecessarily incurred. D’s initial opposition cannot be said to be unreasonable. Ps shall bear the costs of their application. P2[5] agrees but disputes the amount of costs claimed by D.

[submissions on statement of costs lodged by D]

36.By reasons of the above, I order that:

(1)  Each of P1 and P2 do file and serve within 7 days from the date hereof, i.e. on or before 31 August 2026, a signed supplementary witness statement containing respectively Sections E and F of the July Submissions. These supplementary witness statements shall be verified by statement of truth.

(2)  Subject to P1 and P2’s compliance of (1) above, leave be granted to P1 and P2 to make amendments to the WS as per the draft handed up to the Court today, and to file and serve on or before 31 August 2026 the amended witness statement verified by statement of truth together with the supplementary witness statement under (1) above.

(3)  D do have leave to file and serve supplementary witness statement in response to Ps’ amended witness statements within 28 days thereafter, i.e. on or before 28 September 2026.

(4)  July Submissions and August Statement be expunged from Court files.

(5)  The costs of the Summons (including the hearings on 5 May, 20 May[6], 17 June and 24 August 2026) be paid by Ps to D summarily assessed at HK$24,400.

(6)  Ps shall pay D the costs of and occasioned by Ps’ amendments to WS at an amount to be taxed if not agreed.

(7)  The case management conference (“CMC”) fixed for 10 September 2026 be adjourned to 19 November 2026 at 10:00 am.

(8)  Solicitors for the parties and the parties themselves (if not legally represented) shall file and serve an updated Listing Questionnaire and an updated Certificate on time estimate for trial in accordance with paragraph 25 of Practice Direction 5.2 not less than 14 days before the next CMC hearing,

(9)  The Solicitors for D shall lodge and serve a Case Management Conference bundle in accordance with paragraph 26 of Practice Direction 5.2 not less than 14 days before the next CMC hearing.

(10)  The Solicitors for D shall draw up this Order within 14 days for the Court’s approval and thereafter file with the Court and serve on Ps a sealed copy of this Order.

The 1^st Plaintiff: NG WING TAK, in person, present at the hearing on 17 June 2026, absent on 24 August 2026

The 2^nd Plaintiff: NG WING CHI, in person, present at the hearing on 17 June 2026 and 24 August 2026

Mr. Gavin Choi, instructed by Messrs Littlewoods, for the Defendant