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: 28 August 2006

Date of Ruling: 28 August 2006

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SECOND   RULING

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1.This is the fifth day of a civil action involving a claim for adverse possession.  Counsel over the weekend have prepared detailed written closing submissions which were about to be delivered when counsel for the Defendants indicated that he now wishes to recall a factual witness namely the 2^nd Defendant, who is partly in possession of the land subject of the trial dispute.

2.I refer to my earlier ruling which set out some of the background to this matter.  It involves a complicated claim to a reasonably small area of land intersected by about 6 different lots (including Government land) and some 5 or 6 different ownerships.  The issue that has now arisen, follows from the fact that a witness for the Plaintiffs, an expert surveyor, has produced a very detailed and timely survey report which indicates that the survey area he investigated is materially different to the extent of 1 metre in width, from that depicted by the Defendants’ surveyor, in C143 of the court papers.

3.The Plaintiffs’ surveyor in his earlier oral evidence added that it would appear that the boundary had spread by 1 metre between the scheme depicted in C143 and the scheme depicted by the Plaintiff’s surveyor at page 8 of bundle A.  Mr Lam wishes to recall the 2^nd Defendant, not to challenge the fact that the boundary is different, but to explain why it is different.  I have read the proposed witness statement of the 2^nd Defendant whose evidence in short is that the original fence had been pulled down and destroyed (by others) and the rest of his evidence is to the effect that there was a need therefore to reinstate a new fence along the same line where the original fence had been installed.  Before he could do that, he had put up a temporary fence because along the original fence line the soil had become too loose for poles to support the fence, so he inserted the poles temporarily in a nearby position inside the original fence line, which would support them.

4.The evidence goes on to show that the surveyor who prepared plan C143 took colour photographs showing the temporary wire fence in some stages of erection with some length of wire being evident on it.  Most unfortunately these photographs had not hitherto being discovered to the Plaintiff.  Mr Mak for the Plaintiffs objects, making the point that it is extremely late in the place.  He indicates that he may have to have his surveyor who prepared plan A8 present to hear what the 2^nd Defendant is going to say.  He criticises that the photographs had not being produced and discovered earlier, but he realistically accepts that the issue raised is relevant to the generality of the case, observing that the position of the fence on the Defendants’ case has always been fluid, as the Plaintiffs’ case has been that the Defendants had actually been involved in moving or creeping the fence out, over time.

5.Mr Mak argues that he may have to call evidence about soil profile and whether the land had been disturbed and possibly even some formal metallurgical evidence to look for contact between soil and metal posts.  I do really wonder whether that will be necessary or even useful as the case involves such a small piece of land and this limited issue involves a short period of time in April 2002.  However, he has a further and sustained objection, he says that the way this case has developed (and I do again refer to my earlier ruling) is not really just an ordinary application for adverse possession but has become in terms of former Chancery practice, an action to settle a boundary, without any of the proper procedures having been observed.

6.Mr Mak made observations on the belated introduction of plan 4 which was superseded by a plan 4A on the first day of the trial and the new plan 5 which only came into existence on the 4^th day of the trial.

7.Mr Mak argues that the Defendants have already been given some more time and that the trial is now only between those two plans, 4A and 5.  He continued that this is no prayer by the Defendants for the court to award any area of land as the evidence might ultimately demonstrate that has been adversely possessed.  I certainly am not going to rule now on the correctness or otherwise of that issue which would involve close analysis of law as to the nature and width of the Defendants’ prayer, which is proving to be as fluid as the fence line in this case. 

8.Mr Lam says that he was taken by surprise.  This is not the first surprise in this case.  He says he has no expectation that there would be an argument based on the 2002 temporary fence structure, albeit I have to say that to anybody at a visual approach the plan ABC etc in page A8 has fence lines there that appear to be different from those in C143.  At the end of the day, the point that finally persuades me reluctantly to allow this evidence to be called is because the Defendant is ultimately not challenging the Plaintiffs’ evidence, but is seeking to give further factual evidence to explain it.  I must at this stage say this has increasingly become a theme of this case.  I have been concerned on a number of occasions and had observed that the Defendants may not have cross examined in terms of the well known rule in Browne v.  Dunne in relation to certain factual matters.  Here Mr Lam says this matter has arisen ex improviso and was not a matter where any fault can lie on the Defendants’ side.

9.Without deciding that issue right now I simply conclude by saying I am willing to allow this evidence to go forward.  I will have to deal with the Plaintiffs’ position in reply if it is still finally to be maintained that evidence may have to be called by the Plaintiffs.  I do doubt whether the Plaintiffs can realistically call any evidence to contradict this as it seems to me to be a matter limited by its own context.  To this extent, the central issue is whether the Defendants had already had 20 years of settled possession in respect of some of the ground.  Subject to the Plaintiffs’ argument in law and fact, the issue in which the supplemental witness statement has sought to address relates to only 2002 whereas the Defendants’ case is from 1974 at the earliest or 1977 at the latest adverse possession had continuously existed for 20 years.

10.Nevertheless, I am prepared to allow the new evidence as an indulgence.  It may prove to have costs implications.  But I should simply put that costs issue back to the end of the trial.  I will have to decide any application by the Plaintiffs to adjourn or call other evidence.

11.Any consequence of either of these scenarios may further delay the case and it may cause the case to be fractionated and reduce the possibility of it being concluded within the remaining day and a part that we still have.  I shall have to deal with any of those issues at an appropriate time.  So Mr Lam you are being permitted to call this evidence and I reserve any issues of costs, I would deal with costs at the end of the trial.

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 the Defendants