Lau Wing Hong and Others v. Wong Wor Hung and Another

HCA 1454/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1454 OF 2003

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BETWEEN

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Before: Mr Recorder McCoy, SC, in Court

Date of Hearing: 25 August 2006

Date of Ruling: 25 August 2006

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R U L I N G

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1.Today is the 4^th day of a civil trial pertaining to a claim for adverse possession to a relatively small piece of land in Sheung Wo Che Village, Shatin.  The Plaintiffs are the registered owners of the relevant land.  The Defendants, a mother and son, are in possession as tenants over some of the registered owners’ land.  The dispute is in relation to other land, other than the rented land, that the tenants have occupied.  The original defence to the claim by the Plaintiffs bizarrely claimed on behalf of the Defendants that the land owned by the registered owners and which the Defendants continuously rented from them, was adversely possessed – an impossibility.  It also, and equally bizarrely, claimed that land owned by the government which the Defendants had been in occupation of, at the earliest since 1974, was, adversely possessed when the law requires 60 years of adverse possession to establish ownership against the government.

2.On the opening day of the trial, almost as a result of the prompting by learned counsel for the Plaintiffs, Mr Andrew Mak, counsel for the Defendants proffered a further amended plan schematically setting out the terms of the area claimed by the defence and counterclaim.  This amendment reduced the size of the claim in the original defence and counterclaim by understandably abandoning the claim to both the government land and the Plaintiffs’ own land of which the tenants had been occupying as tenants. The Defendants still claimed, however, a further significant portion of land.

3.In the course of his detailed and helpful opening, Mr Mak observed that the plea in this case was framed as an all or nothing situation.  In further response to that, this morning after the evidence of the non-expert witnesses has been completed, Mr Lam for the Defendants has applied to further amend the defence and counterclaim by, in the alternative, seeking to further reduce the area now being sought.  The explanation is that on the Defendants’ case, they originally squatted on land in excess of that leased to them, and in 1974, this was the smallish area in the proposed amendment.  The coloured scheme Plan V regrettably contains very few coordinates and the material coordinates are not given in terms of surveying dimensions.  In addition, the claim called Plan V does not exclusively involve straight-line angles, but includes a gently described curve, which will require some careful precision in its description if it ever is to be the basis of a declaration in favour of the Defendants.  So in short, the case for the Defendants has altered twice, the original Plan IV has now shrunk, and the new Plan IV has now been pleaded in the alternative to an even smaller claimed area in a newer Plan V.

4.The principles on which amendment should be made are well-known, and Mr Lam was accurate in pressing that the test is whether there is any uncompensatable prejudice.

5.Mr Mak has pointed out that other evidence might have to be called and he has properly drawn attention to the omissions that I have referred to.  At the end of the day, however, I am prepared to allow the amendment despite the inherent shortcomings which I have detailed.

6.I said at the start of the case that I would reserve all question of costs until at the end of the trial, and I still intend to do that, but I make it clear that the costs of this application will be unarguably in favour of the Plaintiffs.  The precise width and detail of that costs order is a matter I will consider at the end of the trial.  Mr Mak has said that all costs up until today have been thrown away.  I mean to give that some thought but currently express no view on it, and Mr Lam will want to give attention to that contention by reference to the authorities and the principles in the White Book.

7.So for present purposes, I am going to allow the amendment by making the orders sought.  All question of costs in relation to the consequences of this amendment are formally reserved to the end of the trial, but with an indication, that will not be altered, that the Plaintiffs will become beneficiary of an order of costs, in terms finally to be decided, at the end of this phase of the trial.

8.Forty eights hours for the Plaintiffs to file any consequential reply have been sought, and that too is granted.

Mr Andrew Y S Mak, instructed by Messrs Chan & Associates, for the Plaintiffs

Mr Simon H W Lam, instructed by Messrs Chiu, Szeto & Cheng, for theDefendants