Memorial Park Hong Kong Ltd v. Secretary for Justice

HCMP 2609/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2609 OF 2010

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BETWEEN

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Before: Hon Sakhrani J in Chambers

Date of Hearing: 24 June 2011

Date of Ruling: 24 June 2011

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1.This is a directions hearing on the plaintiff’s originating summons.

2.The plaintiff asks for certain proposed directions as set out in Annex 2 to Mr. Yim’s, counsel for the plaintiff, submissions.  As I indicated to counsel it seems to me that the matter should proceed as if begun by writ as I think it would be useful to have pleadings to be filed in this matter. 

3.Although as Mr. Yim has helpfully said that the issue between the parties is as to the meaning of the words “human remains” in General Condition 15 of the General Conditions of Sale, the plaintiff wishes to seek expert evidence as set out in its summons dated 8 April 2011.  The expert evidence that they wish to obtain is on the customary manner of disposal of the dead among the Chinese population in Hong Kong in the period 1934 to 1941 as set out in the summons.  There has been some modification to the scope of the expert evidence in the proposed directions. 

4.However, whether expert evidence should or should not be directed is a matter for the Court to consider whether it is relevant and admissible at trial.  Expert evidence on a particular matter is only admissible if it has relevance as well as probative value.

5.It is clear that by the framing of the scope of the expert evidence the plaintiff wishes to rely on custom.  It is also clear from the 3^rd affirmation of Gilbert Leung Kam Ho, for the plaintiff, that the plaintiff relies on “background knowledge” or “matrix of facts” as set out in paragraph 5(c) in support of the meaning of the words “human remains” in General Condition 15.  That being so, it seems to me that all the material facts should be pleaded so that the defendant and the Court will know what are the relevant factual matters relied on as part of the “background knowledge” or “matrix of facts”. 

6.The pleadings would clearly define the issues between the parties and once the pleadings have closed, the Court would then be in a position to see whether the application for the adducing of expert evidence is a proper application. 

7.The cases cited by Mr. Yim are, in my view, all distinguishable on their facts.  Each case depends on its own facts. 

8.As a matter of proper and effective case management it seems to me that I should exercise my discretion and order that the proceedings do continue as if begun by writ and give directions for the filing of pleadings.  I will now hear counsel on the time needed to file pleadings.

Mr Valentine Yim, instructed by Messrs Ong & Chung, for the Plaintiff

Mr Samuel Lee, Senior Government Counsel of Department of Justice, for the Defendant