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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THIRD   RULING

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1.This is the second ruling on the 5^th day of this civil trial in relation to adverse possession.  For the context I refer to the two earlier rulings I have given.

2.The Plaintiffs wish to recall an expert, Mr Henry Chan, a registered surveyor, to give evidence in relation to certain plans which had become prominent in the course of this trial.  There are three plans ultimately in issue.

3.The first by date is 30 March 1998 and is found at E5 in the bundle; that is within the Defendant’s bundle.  It is a signed plan approved by Leung Sau Tsang, authorized Land Surveyor at the scale of 1 to 400.  The person who commissioned the plan is the 4^th Plaintiff in the case, and he has given oral evidence that there are shortcomings or errors in the plan but this was neither cross-examined or examined about to elicit what those shortcomings may or may not have been.

4.The second plan in point of time is dated 12 April 2002.  This is found amongst the trial documents in bundle C143, a plan prepared by Andrew Lau and Associates (China) Limited for the Defendants and this showed the relevant area at the scale of 1 to 150.

5.The third plan is dated 25 March 2003 and that is in bundle A8 prepared by Henry Chan, the expert whose further evidence is being objected to.  Mr Chan in the course of his oral evidence compared A8 with C143 and reached the conclusion that the fence line zones were in a different place.

6.Subsequent to that on the application of Mr Simon Lam for the Defendant, I did allow the 2^nd Defendant, Mr Li Wai Kin, to be recalled to give further evidence to explain his position in relation to the fence.  He said that after the original fence had been knocked down by other persons (and that incident is the subject of a separate proceeding) there was a need to restore the fence, but he could not do so because the land was badly cut up.  He therefore erected a temporary two or three-wire casual fence structure, one metre approximately in from the previous boundary.  His evidence was that the earlier boundary where the fence had been knocked down was delineated by the line A to B on plan A8.

7.Mr Andrew Lau when he surveyed in terms of plan C143, drew the boundary line delineated by the fence, and photographic evidence which has been adduced suggests at that time the temporary fence structure was in place.

8.Mr Andrew Mak for the Plaintiffs now wishes to recall Mr Henry Chan only in relation to the temporary fence and he wishes the expert surveyor to give comparative evidence to show or give assistance to the Court as to whether the line delineated in A8, C143 and E5 are the same and if not, why not.

9.In my view, this evidence is relevant and is admissible and arises out of the evidence of Mr Li.  Mr Lam may cross-examined in relation to it.  There has been in this case an evidential sprawl.  This is evidence being called almost at the stage when we were trying to enter the phase of closing submission.

10.In my view, it properly arises out of the matter for which the Defendants were earlier given leave to call the 2^nd Defendant.  It is a narrow and confined point; I will allow it.  There has to be some closure in this case to the evidence but I am going to allow it as a matter that is admissible; the weight to be decided.  I bear in mind that the Plaintiffs own witness, the 4^th Plaintiff, specifically said in evidence that the map E5 is defective.  As I said earlier at this stage of the evidence just why that may be exactly the type of matter that Mr Lam would cross-examine Mr Chan on, because Mr Lam in his submission, which was well-structured, said Mr Chan will be asked to compare something that is not valid namely E5, with something that is a surely valid, namely C143.  In all the circumstances, I am applying a generous approach in the interest of justice to both parties.  I am going to allow this evidence to be called.

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