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

____________

BETWEEN

____________

Before: Mr Recorder McCoy, SC, in Court

Date of Hearing: 28 August 2006

Date of Ruling: 28 August 2006

____________________________

FOURTH   RULING

____________________________

1.This is yet another ruling in this contested case of adverse possession.  The Defendants applied on the 5^th day of trial to re-re-amend their defence and counterclaim.  Essentially what is sought is to take a more flexible position as to the area claimed, than that previously adopted.

2.At the start of the trial, the Defendants narrowed themselves down to one fixed area, that was then amended by an application for an alternative area.  Now there is an application to vary the original area by overtaking the document known as Plan V, and substituting it with a new Plan V(a), and adding an alternative prayer that the court give judgment essentially for such portion of adversarily possessed title, as it may find to be established on all the evidence.  This is opposed by the Plaintiffs on the grounds, inter-alia, that is too late, that the preparation of their case had followed the contours of the original pleading and that they will be prejudiced.

3.Mr Lam for the Defendants is correct in identifying that the disputes in this trial are as to (a) the period of which the Defendants have occupied certain portions of land and; (b) the area of that land.  In short, the issues are time and size.  To that extent, that has always been at the forefront of the Defendants’ case and must have been staring at the Plaintiffs since this action was filed in 2003.

4.But Mr Mak is right to complain that this is yet another almost tiresome change in the Defendants’ case.  However, whether wearisome or not, the test is whether it is prejudicial and is uncompensatable.  Mr Mak, in addition, observes that the new Plan V(a) put forward is by a surveyor other than the Plaintiffs’ one, because, hitherto, the defence had adopted the Plaintiffs’ own configuration and coordinates as being the configuration and coordinates which would be used by both sides.

5.The introduction of a new surveyor’s map by the Defendants raises the spectre that the coordinates which have not been in dispute hitherto may now fall back into dispute.

6.Mr Mak also takes umbrage at what is called note II to Plan V(a), which states that the surveyor had been informed by the 2^nd Defendant on 25 August 2006 of the various coordinates which have now been asserted in Plan V(a).  Mr Mak says, that this is an attempt to adduce evidence or material by the backdoor which had not come in by the frontdoor at the appropriate time of the trial.  Note II is not, in itself, to be regarded as evidence.

7.It is, of course, a truism that unless the Defendants had engaged the surveyor in the 70’s, 80’s or 90’s, they would never have been any accurate measurements of the area of the disputed land.  The task that faces me now, includes to identify exactly by some coordinates what that land may be, if it is proven that the Defendants have a viable claim to some of it.

8.Almost with greater reluctance than before, I am going to allow the amendment.  It might in itself generate other issues, and I am now going to seek confirmation from Mr Lam as to whether, in fact, it is agreed that the coordinates A, B, C, etc set out in Plan V(a) under the hand of Andrew Lau & Associates Ltd are formally agreed as being identical to those set out by the Plaintiffs’ solicitors, Henry Chan Surveyors Ltd.  If they prove not to be, then on the face of it, the Plaintiffs will have good grounds for an application, for an adjournment.

9.I am going to allow the amendment, I squeeze again all question of costs back to the end of the trial, but those piling up on one side must by now be significant I would have thought.

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