Jade’s Realm Ltd v. Director of Lands for and on behalf of the Government of the Hong Kong Special Administrative Region
Read the full judgment text of HCA 1509/2012 on BabelCite. This High Court CFI judgment was delivered on 10 June 2014.
1. This is the Plaintiff’s application by summons dated 13 December 2013 (“ Summons ”) for specific discovery, inspection and taking copies of seven categories of documents pursuant to RHC Order 24 rules 7, 11 and 11A. The documents sought were set out in the Schedule to the Summons. The application is supported by the Fourth Affidavit of Simon Richard Deane dated 13 December 2013 (“ Deane 4 th ”), the Fifth Affidavit of Simon Richard Deane dated 2 May 2014 (“ Deane 5 th ”) and the Second Affid
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HCA 1509/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1509 OF 2012 ____________
_______________ J U D G M E N T _______________ Introduction 1.This is the Plaintiff’s application by summons dated 13 December 2013 (“Summons”) for specific discovery, inspection and taking copies of seven categories of documents pursuant to RHC Order 24 rules 7, 11 and 11A. The documents sought were set out in the Schedule to the Summons. The application is supported by the Fourth Affidavit of Simon Richard Deane dated 13 December 2013 (“Deane 4th”), the Fifth Affidavit of Simon Richard Deane dated 2 May 2014 (“Deane 5th”) and the Second Affidavit of Chong Chew Then (Mr. Deane’s wife) dated 2 May 2014 (“Chong 2nd”). 2.Before I turn to the Schedule itself, it is necessary to give a brief synopsis of the parties’ pleaded cases so that the application can be more easily understood. The Plaintiff’s pleaded case 3.As pleaded by the Plaintiff, the Hong Kong Government[1] was and is the owner of a piece of land in DD 214 (“Land”) in Nam Wai, Sai Kung, New Territories. For identification purpose, the Land is shaded yellow on a plan annexed to the amended Statement of Claim now replaced by the 8th Schedule (“8th Schedule Plan”). 4.By a Block Crown Lease dated 27 March 1907, Lot Nos. 355 and 356 in DD 214 (“the Lots”) were granted to one Yau Chiu Wa and others who were members of the Yau Clan. Through a chain of assignments, the Plaintiff became the registered owner of the Lots on 7 September 2007 and has remained so ever since. For identification purpose, the Lots are shaded pink on a plan annexed to the amended Statement of Claim now replaced by the 9th Schedule (“9th Schedule Plan”). The Lots adjourn the Land and are completely surrounded by it. 5.The Lots and the Land (collectively as “Enclosed Area”) are delineated by a stone wall traced purple (“Stone Wall”) on a plan annexed to the amended Statement of Claim now replaced by the 10th Schedule (“10th Schedule Plan”). 6.As pleaded in paragraph 8 of the amended Statement of Claim, between 1907 and 7 September 2007, a number of houses and structures (“Houses and Structures”) had been “constructed, completed and rebuilt” by the Plaintiff’s predecessors-in-title and the Plaintiff on the Enclosed Area. For identification purpose, the Houses and Structures are shaded green on the 10th Schedule Plan. 7.On the Plaintiff’s case, the Stone Wall was built in or about 1937 by the then registered owners of the Lots and members of the Yau Clan. Since not later than 1937, the Enclosed Area has been in the exclusive possession of and enjoyed by the Plaintiff’s predecessors‑in‑title and the Plaintiff as a single tenement. 8.It is further the Plaintiff’s case that, despite changes in ownership, the predecessors-in-title of the Plaintiff continued to possess exclusively the Enclosed Area and incur money and money’s worth in the maintenance, repair and reconstruction of the Stone Wall and the Houses and Structures. Further, since 7 September 2007, the Plaintiff has continued and still continues to occupy the Enclosed Area and incur money and money’s worth in the maintenance, repair and reconstruction of the Stone Wall and the Houses and Structures. 9.Lastly, the Defendant is said to be estopped from denying the Plaintiff’s title of and in the Land on the ground that the construction, maintenance and repair works on the Land and the Lots were done openly but the Defendant had stood by and acquiesced in the improvements to the Land and the Lots by the predecessors-in-title of the Plaintiff and the Plaintiff itself. 10.In the prayer for relief, the Plaintiff claims inter alia:
11.The Plaintiff has also put forward a number of alternative cases with regard to the locations of the Lots and the Land. For identification purpose, these locations are colour-shaded on the plans annexed to the amended Statement of Claim now replaced by the 11th, 12th and 13th Schedules. In the prayer for relief, the Plaintiff claims similar Declarations with regard to the Land and the Lots so identified. The amended Defence and Counterclaim 12.The Defendant disputes the Plaintiff’s claims on a number of grounds. For the present purpose, this court needs only mention five. 13.First, the boundaries of the Lots are not as set out in the plans annexed to the amended Statement of Claim. Rather, they are as indicated on a plan annexed to the amended Defence and Counterclaim now replaced by Schedule E (“Schedule E Plan”). 14.Second, there were acknowledgments of the Government’s title to the Land by the Plaintiff’s predecessors-in-title, including Madam Chu Kit Ha (“Madam Chu”), at various times between 1962 and 2006, so that the limitation period should be deemed to commence only on the dates of the acknowledgements pursuant to section 23 of the Limitation Ordinance. 15.Third, the Defendant disputes the time when the Houses and Structures referred to in paragraph 8 of the amended Statement of Claim were erected. The Defendant’s pleaded case, at paragraph 10(A) of the amended Defence and Counterclaim, is that they were first seen on the dates set out below and identified on a plan annexed to the amended Defence and Counterclaim now replaced by Schedule G (“Schedule G Plan”).
16.Fourth, the occupation of some of the Houses and Structures ie Structures Nos. 2, 3 & 4 was allowed to continue with the Government’s consent or licence consequent upon a territory-wide stock-taking survey on squatting structures in 1982 by the Squatter Control Unit of the Housing Department and, for that reason, was not adverse. 17.Fifth, the Plaintiff has acquired no proprietary interest in the Land. Nor is the Government estopped from exercising its rights over or taking any action in relation to the Land: in particular, the Defendant did not stand by or acquiesce in the investments in or improvements to the Houses and Structures by the Plaintiff’s predecessors-in-title and the Plaintiff. 18.In its amended Counterclaim, the Defendant counterclaims for:
The amended Reply and Defence to Counterclaim 19.By its amended Reply and Defence to Counterclaim dated 12 December 2013, the Plaintiff joins issue with the Defendant. The issues 20.Mr Chong submits, and this court is content to adopt with slight modification, the following are the principal issues which emerge from the pleadings:
The legal principles 21.I shall first remind myself of the principles which are germane to the present application.
22.On the question of oppression, Mummery J had this to say in Molnlycke AB v. Proctor & Gamble (No 3) [1990] RPC 498, 503:
23.After the introduction of the CJR, the court must give effect to the underlying objectives of the rules when exercising its powers under RHC Order 24. In Sunny Tadjudin v Bank of America unrep., HCA 322 of 2008, 22 December 2011, Deputy High Court Judge M Chan (as she then was) observed at paragraph 7:
24.A similar sentiment was expressed by Deputy High Court Judge Lok in HSBC Private Bank (Suisse) SA v. Mission Bridge Limited unrep. HCA 406 of 2008, 18 June 2012 at paragraph 16:
The Documents sought 25.I now return to the Schedule. Paragraph 1 of the Schedule 26.Paragraph 1 of the Schedule seeks:
27.In Mr Chong’s skeleton submissions for the Plaintiff, these documents are said to relate to the Government’s dealings with the Plaintiff’s predecessors-in-title viz Mr Chu Poon Shin (“Mr Chu”) and his daughter Madam Chu (collectively “the Chus”) concerning theuse of part of the Land for their fish farm business. The request is for the period from 16 February 1981 to 31 October 2006: 16 February 1981 was the date when Mr Chu became registered owner of the Lots while 31 October 2006 was the date when Madam Chu disposed of the Lots. Although the same is not evident from the Plaintiff’s affidavits in support, Mr Chong told this court the fish farm business was in operation during this period. Apparently, the Plaintiff uses the term “Property” in the Summons to refer to the Lots. 28.The basis of the Plaintiff’s request is set out in Deane 4th at paragraph 7:
29.Mr Chong, relying on the fact that the Defendant has disclosed some documents relating to the Government’s dealings with Madam Chu on the fish farm business, submits that the Defendant has impliedly conceded their relevance. Mr Chong further submits that the documents sought to be disclosed forms part of a chainof correspondence/exchange between the various Government Departments and Madam Chu and/or her solicitors, and should be disclosed. 30.In the view of this court, that is a non-point. The fact that the Defendant has disclosed some documents only means those documents actually disclosed are accepted by the Defendant (or rather its legal advisers) as relevant. It cannot, without more, mean those documents not disclosed are also relevant. 31.Ifthe Plaintiffhad put the documents disclosed by the Defendant before this court and if Mr Chong can demonstrate to this court that what has been disclosed and what the Plaintiff now seeks in paragraph 1 of the Schedule indeed form a chain of correspondence/ exchange between the Government Departments and Madam Chu and/or her solicitors, then perhaps he may have a point. 32.However, the fact is that documents disclosed by the Defendant have not been put before this court - what is exhibited to Deane 4th and hence before the court is simply (i) the 3 lists of documents filed by the Defendant in this action; and (ii) correspondence between the parties’ solicitors on the adequacy or otherwise of the Defendant’s discovery. No efforts, genuine or otherwise, have been made by the Plaintiff or its legal team to demonstrate to this court.
33.As far as existence is concerned, Mr Chong submits at paragraph 17 of his skeleton submission that, given the documents disclosed by the Defendant in its 2nd Supplemental List of Documents coupled with Chong 2nd as to what Madam Chong had been told by Madam Chu, the existence of the documents sought in paragraph 1 of the Schedule has been shown and proved. 34.With respect, that is a non sequitur. 35.To start with, it is unclear to this court how one can just look at a list of documents and infer that more documents are in existence and have not been disclosed. If the documents themselves have been put before the court, and those documents, on their face, refer to some other documents, then an inference that more has yet to be disclosed might be drawn. But that is not the case here. 36.Further, little weight can be placed on Chong 2nd as to what she has been told by Madam Chu. The reasons are these. 37.In Chong 2nd, Madam Chong said she had 2 telephone conversations with Madam Chu and had been told that (i) the Police, the Food and Environmental Hygiene Department, the Health Department and the Fire Department often paid visits to the fish farm to ensure the “cleanliness and safety/security of the [fish farm] business” because it was an important supplier of food to the local restaurants - their visits were to ensure the operation was not going to cause a health problem; and (ii) Madam Chu had added a storey to the house on the Property and subsequently a demolition order was served in 2003 – she had spent a lot of time visiting government officials to resolve the case. 38.However, Madam Chu denies she has ever given Madam Chong the above information. In a letter dated 28 January 2014 from Madam Chu’s solicitors Messrs Liu Chan & Lam (“LCL”) to the Plaintiff’s solicitors, LCL said at page 2:
39.As far as relevance is concerned, one simple example can illustrate the difficulties of the Plaintiff’s case. Suppose for the sake of argument there are correspondence between the Fire Department and the Food and Environmental Hygiene Department on the one hand and the Chus on the other. In all probabilities, these correspondence, if exist, would only be concerned with the safety and hygiene of the fish farm business. How these correspondence can conceivably relate to the issues in the proceedings which are adverse possession, acknowledgments of the Government’s title, occupation with Government’s consent since 1982 and so on is unclear from Mr Chong’s skeleton submission. 40.But that is not all. 41.If one reads paragraph 1 of the Schedule carefully, one will find that the Plaintiff is in fact seeking three different classes of documents:
42.As far as Classes 2 and 3 are concerned, there was no attempt by the Plaintiff to demonstrate to this court why these internal emails, memoranda etc. within any Government Department or between any two (or more) Government Departments during the 25‑year period, if exist, are relevant to any of the issues in the proceedings. 43.Take another example: emails, memoranda etc. within the Fire Department. Common sense dictates that these internal emails, memoranda etc., if exist, would only be concerned with the Fire Department’s own area of responsibility ie issues of fire safety of the Structures used in connection with the fish farm business. If the Plaintiff seeks specific discovery of these documents, it has to demonstrate why they are also relevant to questions of adverse possession, acknowledgments of the Government’s title, consent and so on. On this question, Mr Chong’s skeleton submission is silent save for the fact that the Defendant has disclosed some documents relating to the Government’s dealings with Madam Chu on the fish farm business. 44.In the view of this court, if the Plaintiff chooses to cast the net so wide as to encompass documents “which are now or, have at any time been, in the possession, custody, control or power of any department, agency, bureau, division or arm”[3] of the Government for the entire 25‑year period in question and which are not demonstrably relevant to the issues in this case, it runs the risk of its request being considered a fishing exercise, oppressive, not necessary for disposing of the case fairly or for saving costs and inimical to the objectives of cost effectiveness, expeditious disposal of cases, proportionality, procedural economy and ensurance of fairness between the parties under the CJR. That is how this court considers paragraph 1 of the Schedule. 45.For these reasons, this part of the application fails. Paragraph 2 of the Schedule 46.Paragraph 2 of the Schedule seeks:
47.This paragraph actually encompasses two sub-categories of documents ie:
48.The basis of the Plaintiff’s request is set out in Deane 4th at paragraph 8:
49.There is no further explanation of the relevance of these numbered documents in either Deane 4th or Deane 5th. 50.Regarding the Minutes Documents, the Defendant’s stance, as explained in the Affirmation of Chung Ka Wah Lawrence (“Chung 1st”) is that most of them have already been disclosed under its 2nd Supplemental List of Documents dated 6 December 2013 and it has a valid explanation for the non-disclosure of the remaining ones:
51.Regarding those documents already disclosed by the parties one way or another, Mr Chong does not press for them. 52.Regarding the 8 documents said to be irrelevant, Mr Chong complains that the Defendant has failed to explain the factual basis on which they are said to be irrelevant. He therefore asks this court to make an order for their discovery on the ground that they form part and parcel of the Minutes disclosed. Mr Chong submits that as a matter of law, “a document referred to in adiscovered documentis deemed to be relevant until the contrary is shown”: Ormerod, Grierson & Co. v. St. George’s Ironworks (1906) 95 L.T. 964; Irish Agricultural Society v. M’Cowan (1913) 47 Ir. L.T. 20; Kent Coal Concessions v. Duguid [1910] 1 KB 904. 53.This court has considered the authorities cited by Mr Chong but does not regard them as supportive of the breadth of the legal proposition put forward. 54.Irish Agricultural Society v. M’Cowan supra was an action of slander in which the financial position of the plaintiffs was one of the issues. The plaintiffs had included in their affidavit of documents their balance sheet but not the documents on which it was compiled. The Court ordered the plaintiffs to make a further and better affidavit on the ground that the admission of the former to be relevant necessarily involved an admission that the latter was also relevant. 55.Similarly, in Kent Coal Concessions v. Duguid supra, the plaintiff company, in pursuance of an order for discovery, had made an affidavit disclosing its directors’ reports and balance sheets which on their face were derived from books of account belonging to the plaintiff company. The English Court of Appeal held the plaintiff was bound to disclose such portions of the books of account as related to the matters set out in the balance sheets and directors’ reports on the ground that the balance sheets were worthless without the books from which they had been made up and once the balance sheets were admitted to be relevant, so much of the books as was the foundation of the balance sheets was also admitted to be relevant. 56.In the present case, the Plaintiff has not attempted to explain to this court how the Minutes or the 173 numbered documents referred to in them relate to the issues in the action. The Plaintiff has not attempted to argue that the 8 documents in issue are the foundation of the Minutes without which the Minutes would be worthless or unintelligible. The Plaintiff has not even placed the Minutes before this court – it was only upon the request by this court at the hearing that the Plaintiff provided a few pages of them to this court - the few pages simply show that numbered documents appear on their face, period. They are not self-explanatory; nor are the numbers dotted around those pages. At the end of the day, this court is left with a bald assertion from the Plaintiff that all the numbered documents form part of the Minutes, they are deemed to be relevant and should be disclosed. 57.In the view of this court, the fact that certain documents are referred to in the Minutes disclosed does not without more mean they are relevant to the issues in the action. The relevance of a document is fact‑sensitive and there should be no room for the application of any doctrine of “deemed” relevance as suggested by the Plaintiff. The burden remains on the Plaintiff to establish a prima facie case that those documents not disclosed by the Defendant relate to a matter in issue in the action. 58.The matter can also be tested this way. 59.It is well-established and has long been the practice that a party is entitled to cover up parts of a disclosed document which he considers to be irrelevant. If, as common sense dictates, parts of a disclosed document can be considered irrelevant to the issues in the action, there is no reason why documents referred to in a disclosed document (or some of them) cannot. It would be otherwise if the court is satisfied from the documents disclosed, from anything in the Plaintiff’s or the Defendant’s affidavits, or necessarily from the circumstances of the case that the documents withheld by the Defendant in the present case are relevant to the issues in the action. But this court is not so satisfied. 60.Regarding the request for the privileged documents, it suffers the same deficiency as the request for the 8 documents ie the Plaintiff has not attempted to explain to this court how they relate to any issues in the action – it merely relies on the fact that they are referred to in the Minutes disclosed. 61.Further, it is well-established that a statement on oath as to the ground given in support of a claim for privilege is conclusive and the party seeking discovery could not adduce evidence to show that the statement is insufficient or is untrue: Hong Kong Civil Procedure 2014 Vol. 1 para. 24/7/1. In the present case, Mr Deane of the Plaintiff is not suggesting that Mr Chung lied when he claimed the documents in question were subject to legal professional privilege. Nor is he suggesting that Mr Chung has proceeded on a misconception of the law. Mr Deane is simply saying without sight of the documents, it is impossible for him to verify the claim for privilege. That, in the view of this court, is hardly sufficient to “override” the Defendant’s claim to privilege. 62.Lastly, regarding the HA/LD Memo, Mr Chong’s submission consists of these two paragraphs:
63.There is no further explanation in Mr Chong’s skeleton submission as to what “correspondence” he was referring to in paragraph 42, exactly which of these internal documents explain how such correspondence “came into existence” and in what respects these internal documents are able to explain “how the correspondence came into existence”. In the view of this court, the Plaintiff has not even begun to demonstrate the relevance of the HA/LD Memo to any matter in issue in the action or their discovery is necessary for the fair disposal of the cause or matter or for saving costs. 64.Moreover, the Plaintiff has not placed any temporal limit to its request for the HA/LD Memo. Strictly speaking, if this court were to accede to the request, the Defendant will have to dig into the whole database of the Housing Authority and the Lands Department from inception up to the present day to search for records relating to the Property and its owners. In the view of this court, this part of the Plaintiff’s application is clearly oppressive and fishing. 65.For the above reasons, this part of the application fails. Paragraphs 3, 4 and 5 of the Schedule 66.These three paragraphs can be dealt with together as they all seek a specific document from the Defendant ie a letter from the Hong Kong Housing Authority to Madam Chu dated 25 February 2004 (para. 3); a Notice under section 6(1) Land (Miscellaneous Provisions) Ordinance posted by the Hong Kong Housing Authority on the Property on 25 February 2004 (para. 4); the response by the Lands Department to a letter from LCL dated 3 June 2005 (para. 5). 67.The Defendant’s response in correspondence and subsequently confirmed on oath (in the form of Chung 1st) is in substance the same - it does not have the document, whether original or copy, after search. On the authorities, this is a sufficient answer to the Plaintiff’s application for specific discovery: Hong Kong Civil Procedure 2014 Vol. 1 para. 24/7/1; Tai Fook Futures Ltd v Cheung Moon Hoi Jeff supra. 68.While the Plaintiff asserted in paragraphs 9 to 11 of Deane 4th that this is difficult to believe, with respect to Mr Deane, his belief is irrelevant for the present purpose: courts, in the exercise of their discretion, do not make an empty order for specific discovery: Berkeley Administration Inc v McClelland [1990] FSR 381 at 382-3. 69.Further, with regard to paragraph 5 of the Schedule, it is pointed out by the Defendant that LCL’s letter dated 3 June 2005 was addressed to the Housing Department and not the Lands Department. The Defendant submits and this court agrees that the Plaintiff has failed to show the Lands Department has in fact replied to LCL’s said letter. In other words, the Plaintiff has failed to show a prima facie case of “existence” of the document sought in the first place. 70.For these reasons, this part of the application fails. Paragraph 6 of the Schedule 71.Paragraph 6 of the Schedule seeks:
72.In paragraph 12 of Deane 4th, Mr Deane said:
73.To start with, this court has difficulty understanding why the Defendant’s conduct of the enforcement action in August 2012 is said to be an issue in the action. On the parties’ pleaded cases, it is common ground that the Lands Department did take enforcement action at the Property (and/or the Land surrounding it) on or about 21 August 2012. It is also not disputed by the Defendant that the Lands Department did carry out or attempt to carry out certain demolition works to the structures, most notably the iron gate on the site. The only issue between the parties is whether this was lawful land control action pursuant to the Land (Miscellaneous Provisions) Ordinance, Cap 28, which in turn depends on whether the Plaintiff can establish a squatter’s title to the Land: see paragraph 24 of the amended Statement of Claim and paragraph 19 of the amended Defence and Counterclaim. 74.If and in so far as the Plaintiff is seeking to find out whether the Police has recorded anything which suggests the land control action was or might have been unlawful, this is clearly fishing and not necessary for disposing of the case fairly or for saving costs. 75.This court also has difficulty understanding how the documents sought are relevant to the issue of quantum of the Plaintiff’s claim for damages. According to the particulars of damages pleaded in paragraph 25 of the amended Statement of Claim, the Plaintiff is seeking from the Defendant the costs of reinstatement of the iron gate and the Stone Wall. It is inherently improbable that the Lands Department and the Police would discuss such matters in their exchanges but the bottom line is that the burden is on the Plaintiff to show a prima facie case of relevance and the Plaintiff has failed in this regard. 76.The Defendant’s short answer to this request is that other than a handful of memos and emails which have been disclosed, it does not have any other documents relating to the enforcement action: paragraphs 67 and 69 Chung 1st. On the authorities, this is a sufficient answer to the Plaintiff’s application for specific discovery: Hong Kong Civil Procedure 2014 Vol. 1 para. 24/7/1; Tai Fook Futures Ltd v Cheung Moon Hoi Jeff supra. 77.For these reasons, this part of the application fails. Paragraph 7 of the Schedule 78.Paragraph 7 of the Schedule seeks:
79.From its wording, this paragraph substantially overlaps with Classes 2 and 3 [4] of Paragraph 1 of the Schedule, save that the period in question has changed from February 1981 – October 2006 to January 1999 – August 2012. According to Mr Chong, January 1999 was the time when the fish farm business under the control of Madam Chu was in “active operation”. 80.In paragraph 13 of Deane 4th, Mr Deane, after complaining that the Defendant has only disclosed a few emails during the period in question when there should have been many more, said:
81.In the view of this court, this request suffers the same deficiency as the request under Paragraph 1 of the Schedule. There was no attempt by the Plaintiff to demonstrate to this court the existence of these internal emails other than those already disclosed or why these emails within any Government Department or between any two (or more) Government Departments during the 13‑year period, if exist, are relevant to any of the issues in the proceedings. 82.Again, if the Plaintiff chooses to cast the net so wide as to encompass documents which would clearly be irrelevant to the issues in this case, for instance, internal emails among staff of the Fire Department or the Health Department, it runs the risk of its request being considered a fishing exercise, oppressive, not necessary for disposing of the case fairly or for saving costs and inimical to the objectives of cost effectiveness, expeditious disposal of cases, proportionality, procedural economy and ensurance of fairness between the parties under the CJR. That is how this court considers paragraph 7 of the Schedule. 83.For these reasons, and for reasons stated in relation to Paragraph 1 of the Schedule, this part of the application fails. Disposition and Costs Order nisi 84.In the exercise of its discretion, this court hereby dismisses the Plaintiff’s application. There shall be an order nisi that costs be to the Defendant, to be taxed if not agreed.
Mr K M Chong, instructed by Deacons, for the plaintiff Ms Teresa Wu, instructed by Secretary for Justice, for the defendant | ||||||||||||||||||||||||||||||||||||||||||||||
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