Tsan Luk Yuk Yin and Others v. The Secretary for The Environment, Transport and Works

LDMR 3/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS REFERENCE APPLICATION NO. 3 OF 2005

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REASONS  FOR  DECISION

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1.This is an application by the respondent to adduce a bundle of document consisting of copies of land grant of 14 properties in Cheung Sha and 4 properties in other parts of Lantau Island (“the Bundle”) on the second day of a 5-day trial.

2.The purpose of adducing the Bundle, according to Mr. Mok for the respondent, is to rebut the theory suggested by Mr. Alnwick Chan, the applicant’s expert (“Mr. A Chan”), on his conclusion that there has been no villa type development in Tai O of Lantau, not because of lack of demand but due to the fact that there has been a lack of supply of land (as particularized in Mr. A Chan’s last report dated 28 December 2012).

3.With the Bundle in evidence, Mr. Mok is trying to show that the question of lack of supply of land can be cured by a process of surrender of land in exchange for a new grant and/or by way of merged site development which is the situation as shown in certain land grants in the Bundle.

4.Mr. Mok also explained the reason for the late production of the Bundle is because of the fact that this point is only discovered by him last week when he is preparing for this trial.  It is the submission of Mr. Mok that he is entitled to cross-examine Mr. A Chan on the possibility of a land exchange or merged site development even without such point being raised by the respondent’s expert in advance so any complaint of the late production of the Bundle is not justified.  In fact, it is only for fairness that the respondent sought to adduce the Bundle.

5.Mr. Chow for the applicant opposed to the production of the Bundle at such late stage.  It is submitted that the Bundle raised new issues about land assembly process and the applicant had been deprived of the chance to check the background of the transactions involved and also for an analysis of the government policy as to land exchange at the material time.  The details as to how the land was being held at the first place, how much time spent in the acquisition and how premium were assessed in these land exchange transactions are relevant in deciding whether the respondent is justified to rely upon the 18 transactions to rebut Mr. A Chan’s evidence.

6.Having considered the argument, we declined to allow the production of the Bundle as sought by the respondent with reasons to be handed down.  This is the reason for our decision.

7.It is most unfortunate that such a point was only discovered by Mr. Mok last week but this does not mean that the Bundle should be admitted.  We do not find this to be a valid reason to justify the lateness of the introduction of the Bundle.

8.We agreed with Mr. Chow that the Bundle is being introduced at such a late stage that leave should be refused.  There had been orders for the exchange of expert reports as well as meeting of experts with statement of agreement and disagreement to be prepared.  The purpose of such a move is to prevent parties from being taken by surprise as to the true nature of the dispute and thereby being obliged to seek for an adjournment.  The Bundle sought to be produced is to show that amalgamation of lots have been happening in Cheung Sha and this can also be done in Tai O in order to solve the problem of lack of supply.  Hence, the background of the land exchange must be relevant because there may be special features of these transactions in Cheung Sha to make it distinguishable from the situation in Tai O, where the subject lot located.

9.It would be unfair for the applicant to deal with the Bundle without the opportunity to at least study and analyse the same.  To allow the Bundle to be admitted, we can foresee that it is inevitable for an adjournment to be sought by the applicant, which may lead to the lengthening of the trial process, the unnecessary increase of costs and a waste of the resources of the court.  This is not in furtherance of the underlying objectives of the Civil Justice Reform and most undesirable, in particular for the fact that the trial is already underway.  The trial was a milestone event, and it would be undesirable to interrupt Mr. A Chan’s evidence. 

10.Having said so, this Tribunal had also borne in the mind Order 1A rule 2 of the Rules of the High Court which provides that in giving effect to the underlying objectives of these rules, the court shall always recognise the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.  Since Mr. Mok also indicated that he is entitled to cross-examine Mr. A Chan on the issue of land exchange even without the production of the Bundle (which is not in dispute by the applicant), we found no injustice is being caused to the respondent in not allowing the Bundle to be admitted.

11.If the respondent is minded to adduce the Bundle, the applicant should be alerted well in advance so that the applicant can have the chance to analyse the land exchange transactions in question in order to properly deal with the new evidence.  Given the lateness of this application without any justification, the application must be refused.

Mr Anderson Chow SC and Mr Richard Khaw, instructed by Keith Lam Lau & Chan, for the applicant

Mr Y C Mok and Ms Teresa Wu, instructed by the Department of Justice, for the respondent