Tsang King Wan v. Realray Investments Ltd

HCA 922/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 922 OF 2006

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Before: Hon Chung J in Court

Date of Hearing: 15 June 2009

Date of Decision: 15 June 2009

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D E C I S I O N

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1.This is the plaintiff’s application for leave to amend her statement of claim.  The summons was taken out on 30 April 2009 but returnable on 8 June 2009 (that is, the first day of the trial).  It is opposed by the defendant.

2.A few words need to be spent on the background leading to the application to better understand it.

3.The plaintiff commenced this action in April 2006, claiming in gist that she was the squatter who has been occupying the suit property (two land lots in the Yuen Long area) for more than 12 years (alternatively, more than 20 years).  The claim is therefore premised on the provisions in the Limitation Ordinance (Cap. 347) relating to land and real property interests.

4.The original (and primary) case of the plaintiff (as presently pleaded in the statement of claim, and stated in the court testimony of most of the plaintiff’s witnesses) is that the plaintiff began to occupy the suit property since 1975 (until she was wrongfully driven out in 2006).

5.The amendment set out in the draft attached to the plaintiff’s summons is the addition of a new paragraph 4A, it reads:-

“Alternatively if, which is denied, the Plaintiff did not enter into continuous possession of the land since 1975 to the exclusion of the defendant’s predecessors-in-title … , the plaintiff nevertheless entered into such possession on a date more than 12 and/or more than 20 years before the commencement of this action.”

(“the primary proposed amendment”).

6.At the end of the hearing of the application, the plaintiff put forth another draft amendment (“the alternative proposed amendment”).  The alternative proposed amendment (in the form of a new paragraph 3A) reads:-

“Alternatively, on the date set out below, the Defendant’s predecessors-in-title discontinued possession of [the suit property] or alternatively were dispossessed of the same and the Plaintiff has been continuously in possession of [the suit property] since about:

(a)   1975; 

(b)   alternatively, 1978;

(c)   alternatively, 1980;

(d)   alternatively, 1983;

(e)   alternatively, 1989

to the exclusion of the Defendant and the Defendant’s predecessors-in-title …. .”

7.Correspondingly, in the particulars (ii) to (iv) given under the said new paragraph 3 and 3A, the references to the year “1975” should read “1975; alternatively, 1978; alternatively, 1980; alternatively, 1983; alternatively, 1989”.

8.The plaintiff has at one stage put forth a draft amendment the particularity of which lies somewhere in-between the primary proposed amendment and the alternative proposed amendment.  However, that was not pursued to the end.  Had it been so pursued, I would still have concluded in the manner set out below.

9.The relevant legal principles do not appear to be in dispute: see Hong Kong Civil Procedure 2009, Vol. 1, para. 20/8/4, 20/8/6, 20/8/9 and 20/8/11 to 20/8/12.  More specifically:-

(a) in view of the timing of the application, the plaintiff is in short seeking the court to grant an “indulgence” in her favour;

(b)    the court’s discretion should be exercised in a manner which is fair and just, taking into account the interests of all parties involved in the litigation in question;

(c) in practice, leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated.

10.The purposes for requiring pleadings in civil litigation ought to be borne in mind when the court exercises its discretion.  Those purposes have been set out in details in Hong Kong Civil Procedure 2009, Vol. 1, para. 18/12/1.  They are well-known and need not be repeated here.

11.The primary proposed amendment does not fulfil the requirements summarized in above.  A date:-

“more than 12 and/or more than 20 years before the commencement of this action”

(theoretically at least) can include a period beginning from the plaintiff’s birth (in about 1932), a period of about 74 years (up to November 2006).

12.Accordingly, leave to amend should be refused as regards the primary proposed amendment.

13.The alternative dates set out in the alternative proposed amendment are supported by evidence adduced by the plaintiff during trial:-

(1) 1978 is a date mentioned in the plaintiff’s testimony about when she started to plant the trees in the suit property.  Reliance is placed in the physical features said to be shown in the areo-photographs taken in that year;

(2) 1983 is a date mentioned in the testimony of Ng Yuk Wing Steven (PW2);

(3) 1980 and 1989 are dates mentioned in the testimony of Madam Wong Chuen Fong (PW4).

14.In relation to the above dates, I am satisfied that it is unlikely the defendant will suffer irreparable prejudice which cannot be compensated for by an award of costs if leave is given for the statement of claim to be amended.  Because they are referred to in the evidence already adduced, it is also unlikely that the trial will need to be adjourned as a result of the amendment.

15.By reason of the matters aforesaid, leave is given for the statement of claim to be amended as set out in the alternative proposed amendment.

Mr Paul Harris, SC, instructed by Messrs Haldanes, for the Plaintiff

Mr Chan Chi Hung, SC and Mr Jerome Liu, instructed by Messrs Kao, Lee & Yip, for the Defendant