Nam Ching Wun v. Tsun Un Pawn Shop and Others

HCA 2151/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2151 OF 2008

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BETWEEN

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REASONS FOR DECISION

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I. INTRODUCTION

1.The trial of this action will commence on 19 November 2014 with 12 days reserved. On 13 August 2014 (ie six days before the Pre‑trial Review (“PTR”) on 19 August 2014), the plaintiff (“P”) filed/served a summons (“Summons”) seeking (a) leave to file/serve the witness statement of Lo Kwok Keung (“Son”) as per the draft annexed to the Summons, and (b) leave for such witness statement to stand as his evidence-in-chief at trial.

2.The Summons was initially returnable before me at the PTR on 19 August 2014 (“1^st PTR”).  All defendants except the 4^th defendant (“D4”) who was absent and against whom default judgment had been entered on 26 November 2009 (collectively, “Ds”) opposed the application.  Inevitably, since only 30 minutes were reserved for the 1^st PTR, the Summons had to be adjourned to 25 September 2014 for argument (“Hearing”) to be heard together with a second PTR (“2^nd PTR”).

3.When the Summons was first returnable before this court, the trial was 12 weeks away, but by the time of the adjourned hearing for argument the trial at seven weeks away was almost too close for comfort.  As pointed out in Hongkong Changyi Real Estate Development Limited v Neo-China (Group) Infrastructure Investment Limited & anor,[1] the bane of any late application is that it imposes a heavy burden on the other party and the court.  The court has to allocate preciously limited resources to fix an urgent hearing for argument, the hearing itself will be delayed, the parties will be taken nearer and nearer to the trial dates, and the other party through no fault of his own will be sidetracked from his preparations for trial and kept on tenterhooks not knowing the outcome of the hearing and how it will affect him.

4.Late applications should be few and far between after the Civil Justice Reform (“CJR”).  But the regrettable reality is that even now, several years after the implementation of the CJR, such late applications are not unknown despite the well-proclaimed need for change of litigation culture, the underlying objectives and guidance to good case management in Orders 1A and 1B of the Rules of the High Court (“RHC”), and the court’s encouragement for early, comprehensive and effective preparation for trial.

II.  SUMMONS

5.On 13 August and 15 September 2014 respectively, P filed two affirmations of the Son (“Son 1^st Aff” and “Son 2^nd Aff”) in support of the Summons.  On 26 August 2014, the 1^st and 3^rd defendants (“D1” and “D3”) filed the affirmation of their solicitor Mak Ka Yan Claire (“Mak Aff”) in opposition.  On 1 September 2014, the 6^th defendant (“D6”) filed the affirmation of their solicitor Chan Kin Wo in opposition.  The 5^th defendant (“D5”) was self-represented, and appeared in these proceedings by Lee Kam Chiu (“Lee”).  D5 did not file any affirmation in opposition.

6.At the Hearing, after hearing submissions by Mr Khaw (counsel for P), Mr Shum (counsel for D1 and D3), Ms Chiu (counsel for D2), Mr Au (counsel for D6) and Lee, I dismissed the Summons with costs to the Ds to be taxed if not agreed, and ordered that P’s own costs be taxed in accordance with the Legal Aid Regulations.  For the avoidance of doubt, the costs awarded in favour of the Ds would include all costs reserved if any.  To assist the taxing master, I apportioned 1 hour 10 minutes of the overall hearing time on 25 September 2014 for the Hearing of the Summons.

7.These are my Reasons for Decision which I have reserved.  To properly understand the application by way of the Summons, it is necessary to start with the parties’ respective pleaded case, and the procedural history of this litigation.

III.  CLAIM AND DEFENCE

8.P’s claim was primarily for declaratory and other reliefs against the Ds in respect of various pieces of land in Tung Shing Lei, Yuen Long, New Territories (collectively, “Land”) by way of adverse possession.  P’s case was that she (and her family) had been in actual physical occupation and exclusive possession of the Land on which House No 150A (“House”) was erected for a continuous period of not less than 20 years without interruption or permission from anyone.

9.According to the Re-Re-Amended Statement of Claim, the pieces of land that comprised the Land were as follows:

(a) part of Lot 728 (“Lot 728”) in Demarcation District 115 (“DD115”) marked in yellow in the plan attached thereto (“1^st Plan”) of which D1 was/is the registered owner (“Lot 728 Portion”) and the 2^nd defendant (“D2”) and D3 as tenants-in-common in equal shares were declared and still are the beneficial owners;

(b) part of Lot 719 (“Lot 719”) in DD115 marked in indigo in the 1^st Plan of which D4 was/is the registered owner (“Lot 719 Portion”);

(c) part of Lot 1394 (“Lot 1394”) in DD115 marked in violet in the 1^st Plan of which D5 was/is the registered owner (“Lot 1394 Portion”);

(d) part of Section A of Lot 727 (“Lot 727A”) of DD115 marked in green in the 1^st Plan of which D6 was/is the registered owner (“Lot 727 Portion”);

(e) part of Lot 726 of DD115 marked in pink in the 1^st Plan (“Lot 726 Portion”).

10.The 1^st Plan was prepared by P’s surveying expert Leung Shou Chun (“Leung”).  The surveying expert jointly engaged by D1, D2, D3 and D6 was Joseph Wong (“Wong”).  D5 did not adduce any surveying expert evidence.  By their joint report dated 24 January 2013, Leung and Wong made some adjustments to the boundaries of the Lot 728 and Lot 727A Portions, and produced a plan that depicted the boundaries of the Lot 728 and Lot 727A Portions as agreed by them (“2^nd Plan”).

11.Without prejudice and subject to the Ds’ dispute as to liability, P, D1, D2, D3 and D6 at the 1^st PTR confirmed their surveying experts had no disagreement over the adjusted boundaries of the Lot 728 and Lot 727A Portions in the 2^nd Plan.  It appeared to the untrained eye that the 2^nd Plan did not make any discernible adjustment to the boundary line of the Lot 726 Portion in the 1^st Plan where it adjoined the Lot 726 Portion, but in any event this was of little concern since the Lot 726 Portion was not the subject matter of the present action.  The 2^nd Plan made some adjustment to the boundary line between the Lot 727A and Lot 1394 Portions such that it appeared to the untrained eye that the size of the Lot 1394 Portion in the 1^st Plan was reduced as a result of incorporation of part of the Lot 1394 Portion shown in the 1^st Plan into the Lot 727A Portion shown in the 2^nd Plan.

12.At the 1^st PTR, there was no updated plan from Leung and Wong that combined/depicted all of the colour-coded Lot 728, Lot 727A, Lot 719 and Lot 1394 Portions (collectively, “Portions”) on the 1^st Plan as revised by the 2^nd Plan.  More importantly, P’s pleadings still relied on the 1^st Plan which, according to her own surveying expert Leung and in light of the 2^nd Plan, was no longer accurate, and no attempt had yet been made for leave to amend the Re‑Re-Amended Statement of Claim to reflect the updated boundary/area of each Portion.

13.When the above matters were raised by this court at the 1^st PTR, P, D1, D2, D3 and D6 indicated they would look into the matter and would liaise with Leung and Wong to come up with a finalised survey plan that would reflect all the features shown in the 1^st Plan but revised as per the 2^nd Plan.  As at the 2^nd PTR, this court was advised that Leung and Wong had yet to complete such finalised survey plan (“Final Plan”).  Given the imminence of the trial, this court expressed concern about such state of affairs, and gave directions requiring P to promptly serve the Final Plan on D5.

14.I take this opportunity to remind P, D1, D2, D3 and D6 that if in due course the surveying experts are in agreement over the Final Plan, Leung ad Wong should jointly confirm so in writing (perhaps even on the Final Plan itself).  At the 2^nd PTR, Mr Khaw submitted that Leung and Wong would also prepare a joint memorandum.  He did not elaborate on the anticipated contents of the joint memorandum.  If the Final Plan is a mere revision of the 1^st Plan by adjusting the boundary lines of the Portions according to the 2^nd Plan, there does not seem to be any need for a further memorandum.  But if the Final Plan is not self-explanatory and requires clarification, then application for leave to adduce further expert evidence by way of a fresh joint memorandum will be required under Order 38 rule 36 of the RHC otherwise the surveying experts may not be able to produce such joint memorandum and/or give evidence on those matters.[2]

15.With the aforesaid caveat, I now turn to the parties’ respective contentions.

(a) P’s claim

16.P pleaded that her occupation of the Land was adverse to the Ds in that:

(a) since in/about 1961, she and her late husband Lo Chuen (“Lo”) as trespassers had been occupying the Land as their residence, and P and her family used the whole of the Lot 727A Portion for planting a variety of vegetables and fruit trees and for storing chicken cages;

(b) P and her family used “part of the Land” for planting vegetables and fruit trees, and breeding/raising livestock and poultry;

(c) the Land P and her family occupied was/is enclosed by fence (with certain parts of the Lot 727A Portion enclosed since about the 1960s and the 1980s respectively) and/or walls.

17.At the 1^st PTR, this court expressed concern over the broad generality of P’s pleaded case.  At the 2^nd PTR, Mr Khaw produced draft voluntary particulars of P’s pleadings, which he said would be finalised upon receipt of the Final Plan.  Mr Khaw said P would in due course also apply to further amend the Re-Re-Amended Statement of Claim to replace the 1^st Plan with the Final Plan and to serve the finalised voluntary particulars. At the 2^nd PTR, Mr Au queried whether various draft voluntary particulars by P had evidential support, and Mr Khaw promised to look into this when finalising the voluntary particulars.

(b) Defence and counterclaim by D1, D2 and D3 and P’s reply

18.D1, D2 and D3 denied P’s claim, and counterclaimed for possession of such part(s) of Lot 728 as may be found to be wrongfully used/occupied by P as trespasser without the consent of D1, D2 and D3 or any of them with consequential injunctive relief.  They averred that since Lot 728 was/is held in trust for the Tang Chak (or Chok) Hing Tso (“Tso”) and the estate of Tang Chik (or Tsik) Fuk deceased as tenants‑in‑common in equal shares, and that a new equitable interest in Lot 728 is created by virtue of sections 10 and 22 of the Limitation Ordinance Cap 347 (“LO”) whenever a new member of the Tso is born, so a new limitation period under sections 7(2) and 22 of the LO will start to run and not expire until 6 years after the newly born member ceases to be an infant.  Since 15 members of the Tso were born between 1966 and 2004, the title of D1 as trustees to Lot 728 would be preserved, and the requisite limitation period for P to acquire a squatter’s title in respect of the Lot 728 Portion had not expired as at the date of the Writ of Summons.

19.P disagreed with this line of defence, and added that each of the Tso and the estate of Tang Chik (or Tsik) Fuk deceased held a distinct and separate one-half share in the Lot 728 Portion, so even if the title of the Tso in respect of its one-half share in the Lot 728 Portion had not been extinguished, the title of D1 and D3 in respect of D3’s title in the Lot 728 Portion had been extinguished by virtue of section 17 of the LO, and section 10(2) of the LO would not operate to preserve D3’s title in the Lot 728 Portion.

(c) Defence and counterclaim by D5 and P’s reply

20.D5 denied P’s claim, and disputed P’s alleged control and exclusive possession of the Lot 1394 Portion.  It was averred that the Lot 1394 Portion was an open area (ie “半開放的土地”) and not fenced from 1961 up until 4 September 2002.  D5 averred that since 1964 nearby residents who raised pigs/chicken would pass through the Lot 1394 Portion by using handcarts to deliver pig/chicken feed, and the Lot 1394 Portion was for the convenience of ingress/egress (ie “出入方便”) by the nearby residents, and was not solely occupied by P and her family.

21.D5 noted it was averred that the wire fence was put up by workers employed by Lau Kin Shing (“Lau”) in September 2002 (ie less than 12 years ago) and not by P or her family, and the photographs Lau took showed only grass and shrubs in the Lot 1394 Portion with no hanging of clothes or planting of vegetables.  D5 claimed the condition of the Lot 1394 Portion remained the same when in December 2013 and February 2014 Lee entered onto the Lot 1394 Portion through an opening in the wire fence (points AB-AC on the 1^st Plan) to clear grass and shrubs, which act, D5 claimed, demonstrated D5’s ownership over such land.  On 8 February 2014, D5 issued a demand letter to require P to remove the fence that abutted the Lot 1394 Portion shown on the 1^st Plan, to restore the Lot 1394 Portion to its condition before September 2002, and to deliver up the Lot 1394 Portion to them.

22.P averred in reply that since about 1964 she and her family had exclusive possession and control over the Lot 1394 Portion adverse to the rights and interests of D5 and their family for a continuous period of more than 20 years.  “At all material times”, P and her family caused “the lots of land which have been occupied and under their exclusive possession (including the Lot 1394 Portion) to be fenced off, to the exclusion of others”.  P claimed that Lee entered onto the Lot 1394 Portion unlawfully without the consent/approval of P and her family, and since in/about 1964 the Lot 1394 Portion had never been under the occupation, use and/or control of D5 or their servants/agents.

(d) Defence and counterclaim by D6 and P’s reply

23.D6 also denied P’s claim, and averred that P/Lo had never been in actual physical control/occupation/possession of Lot 727A or any part thereof for a period of not less than 20 years, but even if they did, they occupied the Lot 727A Portion or any part thereof as trespassers, but not to the exclusion of the world at large, D6 and/or their predecessor‑in‑title (“D6 Predecessor”).  D6 specifically denied the House, any erection or any erection of a permanent nature had been erected by P/Lo on the Lot 727A Portion.  They claimed that since 1976 the D6 Predecessor had continuously let Lot 727 of DD115 (“Lot 727”) (of which Lot 727A was part before sub-division in 2009) and other lots in DD115 to various tenants.

24.D6 claimed there were (a) a footpath on Lot 727 (ie the Passage in the 1^st Plan, “Passage”) used by the tenants to gain access to the public footpath, (b) an entrance from Lot 727 (point U on the 1^st Plan) to Lot 728 (“Entrance”), and (c) a gate leading to Lot 728 via the Passage (points AM-AL on the 1^st Plan, “Gate”).

25.There was no dispute that in/about 1974 a blaze broke out on Lot 727 and Lo helped the D6 Predecessor put out the blaze.  D6 averred that the D6 Predecessor then gave permission for Lo to use the Entrance/Passage, which Lo did in order to gain access to and from the public footpath.  D6 claimed Lo, P and her servants/agents knew they could only use the Entrance/Passage to gain access to Lot 728 from the public footpath but subject always to permission by the D6 Predecessor and its tenants.  Further or in the alterative, Lo used the Entrance/Passage as licensee with permission by the D6 Predecessor, and Lo was aware that such licence could be revoked at any time.

26.D6 further averred that Lo was able to access Lot 727 and the Passage by reason of his employment as caretaker of Lot 727’s tenant 金沙雲石廠.  But after such tenancy ended in/about 1995, P’s family approached the D6 Predecessor for permission to continue to use the Entrance/Passage. In/about mid-1996, P was not longer permitted to use the Entrance as (a) it was blocked by 豐達貿易公司 (ie the tenant that rented Lot 727 since about 1996), and (b) the D6 Predecessor withdrew their permission for P and/or revoked P’s licence to use the Passage via the Gate.  Since 1996, P and her agents/servants could no longer access the public footpath from Lot 728 by using the Entrance/Passage and going through Lot 727, and thereafter P and her servants/agents did not raise the matter of permission to use the Entrance/Passage any further.

27.D6 claimed that although the D6 Predecessor had previously fenced off the boundary of Lot 727 that adjoined Lot 728, part of the fence particularly along points Z, AA-AF, AH and AJ-AL in the 1^st Plan (with an opening at points AJ-AK for erecting the Gate) was quite often removed by someone unknown to the D6 Predecessor.  In/about early January 2001, the lawful attorney of the D6 Predecessor, ie Lau, upon discovering there was no fence at the aforesaid boundary and part of Lot 727 was used by someone for dumping unwanted flower pots, requested the then tenant to put up a fence along the boundary line to the cost of the D6 Predecessor, but P interfered with such works.  On/about 3 May 2002, the D6 Predecessor’s solicitors sent a letter of warning to the occupiers of Lot 719, which elicited a reply by P’s solicitors on/about 27 May 2002 that stated P had been in continuous occupation of the Lot 728 Portion for over 40 years and hence any attempt to fence such land was unlawful.  The D6 Predecessor’s solicitors sought particulars of the alleged continuous occupation, but there was no reply.  On/about 25 May 2002, Lau engaged workmen to put up the fence, but P and some persons from Lot 719 or Lot 728 who were unknown to Lau again interfered with the works.  The matter was reported to the police.  Eventually, the fence was completed on 4 September 2002 without further interference.  From 4 September 2002 to 14 January 2004, Lau discovered that a portion of the fence was removed by someone, so he reported the matter to the police on 14 January 2004, and thereafter the fence was reinstated.

28.D6 claimed that at all material times the D6 Predecessor and D6 paid the rates/government rent and retained ownership/control over Lot 727.  They averred that use of the Entrance/Passage by Lo, P and her servants/agents was always subject to the permission by the D6 Predecessor in respect of the land comprising Lot 727.

29.D6 also ran a further line of defence that concerned the proposed sale of the Lot 727A Portion by the D6 Predecessor to P, but such defence had no material impact on the present application by the Summons.  D6 counterclaimed for possession of such part(s) of Lot 727A as may be found to be wrongfully used or occupied by P as trespasser without their consent (ie P through herself and her agents and without D6’s consent from time to time dumped waste material and thereby trespassed upon part(s) of Lot 727A) with consequential injunctive relief.

30.In reply, P claimed Lo and their family used the Entrance (which P did not admit was/is within the Lot 727A Portion) until it was blocked in/about 2000, “and they having been using the Passage continuously”.  P admitted that Lo was employed by 金沙雲石廠for three months in 1991, but denied the D6 Predecessor, its tenant or any other person ever granted any permission or licence to P, Lo and their family for use of the Entrance/Passage leading to Lot 727, or P, Lo and their family had any knowledge of the alleged permission/licence by D6 or at all.

31.P agreed that in 2002 there was a series of correspondence between the solicitors for Lau as the lawful attorney of the D6 Predecessor and her solicitors about fencing matters, but she claimed that any attempt to fence part of the Lot 727A Portion was unlawful.  P in her pleadings also dealt with a series of correspondence in 2008-2009 over the potential sale and purchase of the Lot 727A Portion, but eventually upon subdivision of Lot 727 in 2009, Lot 727A was sold to D6 by the D6 Predecessor.

32.From the above summary, one can see that apart from a limitation defence, the case of D1, D2 and D3 was, broadly speaking, one of putting P to proof of her allegations on adverse possession.  On the other hand, apart from denying liability, D5 and D6 also ran their respective positive defence case against P.

IV.  PROCEDURAL HISTORY

33.The present action commenced on 29 October 2008.  P was all along legally aided.  D1 and D3 served their original Defence and Counterclaim on 26 November 2008.  D2 filed theirs on 13 February 2009, and D6 served theirs on 10 October 2011.

34.On 4 July 2011, P filed a timetabling questionnaire which (a) stated she had only one witness as to fact, ie herself, and (b) confirmed she did not intend to take out any interlocutory application.  On 19 September 2011, Registrar KW Lung ordered inter alia “all witness statements” as to fact shall be exchanged between the parties within 60 days after discovery, and such witness statements shall stand as evidence-in-chief unless otherwise directed by the trial judge.

35.On 4 October 2011, P applied by summons under Order 39 rule 1 of the RHC for an order that P as witness be examined forthwith before the Registrar or one of the examiners of the court on usual terms.  Such summons was supported by the 6^th affirmation of P’s solicitor Tang Sau Yu (“Tang”) filed on the same day.

36.The reason put forward in Tang’s 6^th affirmation for taking P’s evidence by deposition in advance of the trial (“Examination”) was P’s advanced age and poor health.  P was said to be 81 years old and suffered from myriad ailments, including partial deafness, fainting spells since September 2007, and elevated blood pressure since January 2008.  She was diagnosed to suffer from hypertension in April 2008.  She attended follow up at an outpatient clinic and the interval between each follow up varied from seven days to three months.  Tang emphasised that:

“5. The evidence of [P] is necessary for the purposes of justice. She is a material witness because only she has the personal knowledge and is able to give evidence on matters of physical occupation and possession of the House since 1961. Given her current age, she will be too old and decrepit to attend a trial.” (my emphasis)

37.On 28 October 2011, Master J Wong ordered that P as witness be examined viva voce on oath or affirmation before the Registrar or one of the examiners of the court and immediately thereafter be cross‑examined and re-examined by solicitors/counsel of the parties, and such Examination was to take place after completion of discovery and service of P’s witness statement on the Ds.  It was further ordered that:

“4. The depositions taken at the examination be filed in the Registry of the High Court, and the office copies thereof may be read and given in evidence on the trial of this cause, saving all just exceptions, without any further proof of the absence of the said witness than the affidavit of the solicitor of the party using the same, as to his belief;

5. Subject to directions of trial judge, [P] do call the witness Nam Ching Wun at trial of this action for cross-examination by any of the Defendant(s) and for re-examination by [P].  If she is still alive and capable of attending trial; ……”

38.P made her witness statement on 28 February 2012. P exchanged her witness statement with D6 on 2 March 2012.

39.On 24 April 2012, P filed a listing questionnaire which again confirmed she would be the only witness at trial.  She also referred to the order of Master J Wong dated 28 October 2011, and advised that the date for the Examination had not been fixed because not all parties had exchanged witness statements.  P therefore proposed that directions be granted for D1, D2, D3 and D5 to exchange their respective witness statements with her on/before 4 May 2012, and such witness statements shall stand as evidence in chief unless otherwise directed by the trial judge.

40.At the first case management conference on 2 May 2012, Registrar KW Lung ordered that the present action be adjourned for a 2^nd case management conference, and granted directions inter alia that all interlocutory applications as might be advised be taken out within 14 days after obtaining counsel’s advice.

41.P exchanged her own witness statement with D1, D2 and D3 on 4 and 9 May 2012.

42.On 5 October 2012, P applied by summons under Order 39 rule 1 of the RHC for an order that P as witness be examined viva voce on oath or affirmation before the Registrar or one of the bilingual examiners of the court and immediately thereafter be cross-examined by solicitors/counsel of the parties with three days reserved.

43.On the same day, P filed Tang’s 10^th affirmation in support of such application.  Tang referred the order of Master J Wong dated 28 October 2011, and confirmed that the parties had exchanged lists of documents and witness statements.  Tang reiterated P’s personal background, age and health as set out in her 6^th affirmation, adding that (a) P received education in Mainland China up to primary level 2, (b) she spoke Hakka dialect, but not Cantonese dialect or English language, and (c) she could only write limited Chinese and understand very simple Cantonese.  Tang went on to state as follows:

“5. [P] is the only witness for the Plaintiff. She will give material evidence on issues including her physical occupation of the various pieces of land since 1961, the gradual developments of each pieces of land, the lot boundaries and the nature of occupation (open, uninterrupted exclusive to the whole world and without any lease, licence, consideration, permission). [D1 to D3] and [D6] are expected to take place in the deposition.

……

9. There will be some difficulties in taking the deposition. …..” (my emphasis)

44.The hearing of the summons filed on 5 October 2012 was adjourned to be heard together with the 2^nd case management conference on 31 October 2012.

45.On 27 October 2012, P filed a listing questionnaire which confirmed she was the witness for the plaintiff, and witness statements had already been exchanged with D1, D2, D3 and D6.  The listing questionnaire also indicted P intended to file a supplemental witness statement, and proposed that directions be granted for all interlocutory applications as might be advised to be taken out within 14 days after obtaining counsel’s advice.

46.At the 2^nd case management conference on 31 October 2012, Registrar KW Lung adjourned the present action for a 3^rd case management conference with some case management directions, but he did not grant any order as regards (a) P’s intention to file her supplemental witness statement or (b) P’s summons filed on 5 October 2012.

47.On 25 January 2013, Registrar KW Lung granted leave for P to serve her supplemental witness statement within seven days.  On 29 January 2013, P made her supplemental witness statement, and the same was served on the other Ds.

48.At the 3^rd case management conference on 13 March 2013, Registrar KW Lung granted leave for P to serve the witness statement of 曹文俊, which was made on 6 March 2013 and subsequently served.  P through her solicitors confirmed at the 3^rd case management conference that she was ready for trial, and Registrar KW Lung granted leave for her to set the present action down for a 12-day trial in the fixture list with a PTR to be held 12 weeks before trial.  The trial of the present action was then set down to commence on 19 November 2014 with 12 days reserved.

49.On 23 October 2013, this court ordered P as witness be examined viva voce on oath or affirmation before Master Hui on 9 May 2014 with 3 days reserved.

50.On 14 March 2014, this court granted leave for D5 to file/serve their Defence and witness statements out of time.  Leave was also granted for P to file and serve further supplemental witness statement in reply.  On 4 April 2014, P filed her 2^nd supplemental witness statement.

51.The Examination of P as witness took place on 9, 12 and 13 May 2014 before Master Hui, and P was examined, cross-examined and re-examined.

52.Until service of the Summons filed on 13 August 2014, P never intimated to the court and/or to the Ds about any intention to serve the Son’s witness statement and/or to call the Son as a witness at trial.  As the Son admitted in the Son 1^st Aff, he was present throughout the hearing of the Examination before Master Hui.  Neither P nor her legal representatives intimated to the Ds and/or their legal representatives or to the court at any time before the Examination that P might potentially call the Son as an additional witness for the trial.

V.  LEGAL PRINCIPLES

53.The principles for a late application for leave to serve additional witness statement and to call additional witness at trial are trite.  Mr Khaw, Mr Shum, Ms Chiu and Mr Au cited a number of authorities on the relevant case management principles.[3] There is little that I can add to them, so it is perhaps more useful that I give a short summary of the relevant principles.  It must be remembered that notwithstanding the general principles discussed below, each case necessarily turns on its own circumstances.

54.Whether to allow a late application for additional witness evidence at the brink of a trial requires the court to carry out a balancing exercise, and the court must exercise its case management discretion in a fair manner having regard to all the circumstances and the explanation given for the lateness of the application.  If the predicament that the applicant finds himself in is of his own making and the applicant has only himself to blame for the delay and inactivity, eg when the need for additional witness evidence is already evident at an earlier stage of the proceedings and the applicant for no good reason waited until the last possible moment to introduce a new witness statement that contains substantial matters, then the court is unlikely to grant indulgence.  Even before the CJR and more so afterwards, it would be rare for the court to grant late indulgence even on terms as to costs without a satisfactory explanation being given to justify the delay and the grant of indulgence.

55.The court bears in mind that the primary aim in the exercise of case management powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC), but neither does the court forget the need to deal with cases expeditiously, cost-effectively and proportionately to achieve justice and fairness for the parties before the court and also for other litigants who have demands on the court’s resources.

56.The court will take note of the presence or absence of any real prejudice to the other party.  Delay itself can amount to real prejudice, and the later the applicant makes the application to adduce additional witness evidence, the more likely it is to cause real prejudice to the other party, especially when a milestone date is likely to be jeopardised by (a) insufficient remaining time until the milestone event to accommodate the other party’s response if the application is granted, (b) the other party being unfairly or oppressively burdened by having to scramble up a response if the application is granted which thereby adversely affects necessary efforts on his part to meet any milestone event/requirement, and/or (c) significant time that will be taken up by the new matters at trial such that the trial dates are likely to be compromised.  The court is also unlikely to be sympathetic to any late application that raises a new dimension or focus at a late stage that shifts the litigation goalposts, especially when time and opportunity have already been given for the applicant to put forward the fullness of his case.  Such procedural prejudice can amount to real and serious prejudice, and may overshadow any prejudice the applicant may suffer by, say, not having an additional witness statement admitted into evidence.

57.Significantly, after the CJR, the court expects careful and conscientious consideration and attention to be given to the completion of timetabling/listing questionnaires before the case is set down for trial.  The court will be concerned to see if there is any conscious flouting of the rules of court, practice directions and/or case management timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant.  Disobeying rules of court and court-imposed case management directions and timetable without good reason makes a mockery of the case management system envisaged by the CJR.

58.To sum up, after the implementation of the CJR and the awareness heightened by such reform as to the need for early, proper and comprehensive preparation for trial, the courts are unlikely to smile kindly on late applications.  As I have said in Liu Chen vChan Poon Wing & anor, “[to] say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, costs-effectiveness and fairness between parties enshrined in Order 1A of the RHC”.[4]

59.Mr Khaw submitted the presumption is that all relevant evidence should be admitted unless there is a compelling reason to the contrary.[5] Whilst such proposition is not objectionable as a matter of broad principle, it must be understood that well managed civil litigation envisages “all relevant evidence” that will be adduced at trial is introduced in a proper and timely manner so that the other party can effectively respond in good time and will not suffer forensic prejudice as a result of any lateness.  In the end, Mr Khaw did not shy away from the need, particularly in the case of a late application, for the court to conduct a balancing exercise for proper case management.

VI.  DISCUSSION

60.There can be no doubt that the application for additional witness evidence by way of the Summons was prodigiously late, which delay was compounded by the total surprise to the Ds who had not been forewarned at all.  The procedural history of the present litigation showed that all along P and曹文俊 were the only witnesses for the claimant.  However, for present purposes, I put aside the witness statement of 曹文俊because the contents thereof were limited in scope and did not cover the broad spectrum of matters and events in the witness statements of the Plaintiff and in the Son’s draft witness statement.

61.P’s solicitors time and again confirmed in the timetabling and listing questionnaires that P and曹文俊 were the only witnesses, and Tang reiterated so in her 6^th and 10^th affirmations.  The Ds were led to believe that the only factual witness evidence they had to meet would be from P and 曹文俊, and no doubt they prepared their respective defence on such basis. In adversarial litigation (the extremes of which nowadays have been tempered by the CJR), apart from the substantive merits, forensic considerations remain important, particularly for defendants who have no positive defence case and who elect to put the claimants to proof.  In my view, it is an understatement to say the Ds had been taken by surprise by the Summons filed shortly before the 1^st PTR but well after the Examination.

62.According to the Son 1^st and 2^nd Affs, he was born in 1964 and claimed to remember things that occurred since about 1969 (ie after he reached six years of age).  He said (a) he lived with P for a continuous period of about 25 years since he was born, (b) after he got married and moved out in 1989 he still lived in Yuen Long and visited P almost every day, and (c) he moved back to live with her in 2012.  The Son claimed to have full knowledge of the matters relating to his family’s occupation of the disputed land (at least starting from 1970) and could provide relevant information.

63.However, the Son was all along available to provide a witness statement had P considered it useful to do so.  As evident from the transcript of P’s deposition at the Examination (“Transcript”), the Son had helped P in her conduct of the present litigation ever since her initial application for legal aid,[6] and he and/or his siblings had accompanied P to her solicitors’ office and helped in reading her witness statements.[7] There was also no dispute that all along P (who was/is legally aided) had the benefit of legal advice by her assigned solicitors/counsel.

64.The Ds argued that had P wished to have the Son give a corroborating witness statement on various factual matters relating to her claim of adverse possession, such corroborating witness statement should have been made and served in accordance with the interlocutory case management timetable.  It was said that given the nature of adverse possession claims that usually involve witness evidence that spans a long period of time, it is usual for the claimants to put forward corroborating witness evidence from other witnesses at an early opportunity, particularly when the “star” witness is an elderly person.  However, in the present case, P had chosen to rely on her own witness evidence, and Tang’s 6^th and 10^th affirmations even suggested she was the only witness who could give factual evidence on matters relating to the alleged adverse possession.  The Ds submitted this must have been an informed decision on the part of P.

65.The reason the Son gave in the Son 1^st and 2^nd Affs for wishing to put himself forward as an additional witness now was P’s poor state in giving evidence at the Examination, which he attributed to her deteriorating condition after an accident she suffered in October 2012.  Hence, it is more appropriate that I should start with the Son’s allegations of P’s deteriorating health and condition.

66.The Son 1^st Aff claimed that P’s health had deteriorated since the accident in October 2012.  However, it must be noted that prior to October 2012, P was already said to be in poor health.  This was evident from Tang’s 6^th and 10^th affirmations filed in October 2011 and October 2012 (the latter affirmation was filed just a few days before the accident in October 2012).  P and her legal representatives were well aware of her advanced age and her various ailments, especially her fainting spells, high blood pressure and hypertension.  Nevertheless, despite the Son’s availability, P maintained under legal advice that she would be the only key factual witness on the issue of adverse possession.  In my view, it was plainly P’s considered decision under legal advice and in full knowledge of her advanced age and poor health only to have herself as the main factual witness and not to rely on any additional factual witness (eg the Son and/or, say, his siblings) on the factual issues in respect of her claim of adverse possession.

67.In the Son 2^nd Aff, it was said that P “had been in reasonably good health when the present action commenced. As [P] is able to give evidence which covers the matter regarding her (and [their] family’s) occupation of the lots of land in question from 1961, it was not considered necessary to ask [the Son] or any of [his] siblings to give evidence on the same or similar issues that [P] would cover, in order to avoid duplication of costs and resources” (my emphasis).  The Ds argued this showed that all along it was a considered decision by P under legal advice to rely on P as the key factual witness.  But in my view the greater significance of this must be the recognition that time would not stand still, and as the litigation progressed it was incumbent on P and her legal representatives to reconsider/revisit her case and circumstances, especially when P is elderly and in poor health.  Indeed, the essential purpose of compiling listing questionnaires and attending case management conferences is to encourage litigants and their legal representatives to keep their case under periodic review so that needful steps can be promptly taken.

68.On 13 October 2012, P was hit by a wheelchair pushed by a domestic helper whilst crossing the road and as a result she suffered a fall.  The police was called, and she was sent to the accident and emergency department of Pok Oi Hospital.  According to the medical report of Pok Oi Hospital dated 11 July 2014, x-ray revealed fracture neck of femur and she was admitted to Tuen Mun Hospital for surgery under general anesthesia on the following day.  P was discharged on 2 November 2012.  According to the medical report by Tuen Mun Hospital dated 15 July 2014, physiotherapy was arranged for P after the operation; P could walk with a stick but complained of mild residual pain at the latest follow up on 26 November 2013.

69.The Son 1^st Aff claimed P suffered shock as a result of the accident, and she had to undergo a long period of rehabilitation.  P suffered from mobility limitation, and “also started to appear to be more forgetful.  The long period of treatment and her inability to walk properly has obviously affected her mood and caused her a lot of anxiety and distress.  Now, she can walk with the aid of a walking stick; but she needs to be accompanied whenever she goes out.  Further, she became slow in communicating with other people although she is capable of managing her normal routines and daily activities.”

70.Regrettably, the two medical reports from Pok Oi and Tuen Mun Hospitals did not support such allegations.  No attempt had been made to obtain medical report/records in respect of P’s follow up consultations to demonstrate her “deteriorating” condition after her discharge from hospitalisation in November 2012.  It is interesting to note that although the medical report by Tuen Mun Hospital was dated 15 July 2014, the last follow up was on 26 November 2013, which meant P did not require any orthopaedic follow up for more seven months.  This suggested that any sequelae arising from her injuries in October 2012 would not have been too debilitating.

71.Another aspect in relation to the medical reports gives pause for concern.  Given that time would be required to obtain such reports from the relevant hospitals and there was no suggestion there was any purpose for obtaining such reports other than to support P’s present application by way of the Summons, it can be inferred that P had intended to put forward an application for leave to adduce additional witness statement well beforehand.  This feeds the suspicion alluded to in the Mak Aff that P had contemplated a possible application to serve the Son’s witness statement long before the Summons was filed.

72.At the Hearing, Mr Khaw frankly agreed that a decision was made shortly after the Examination to adduce additional witness evidence from the Son at trial. That being the case, the Ds could be forgiven in their complaint that it took P three months after the Examination to file the Summons.  In the Son 2^nd Aff, the Son explained that he worked as a senior hawker control officer of the Food and Environmental Hygiene Department.  He claimed it was the government’s policy that as a civil servant he could not give evidence in court unless he had obtained permission from his department head.  Shortly after the conclusion of the Examination, he proceeded to apply for such permission, and subsequently obtained the same from his department head.

73.Mr Shum submitted (and I agree) that such explanation defied common sense.  The present action is a civil action concerning private rights and did not involve government affairs or public policy.  Mr Shum reminded that article 35 of the Basic Law provided that “Hong Kong residents shall have right to …… access to the courts …… and to judicial remedies”.  Significantly, there was no supporting or documentary evidence (a) to demonstrate the alleged government policy that would apparently interfere with the private rights of civil servants, or (b) to evidence the alleged permission by the Son’s department head.  But even if there were such government policy (which I do not accept), it did not explain why the Ds could not have been forewarned of P’s intention to adduce additional witness evidence from the Son subject to approval being obtained from the Son’s department head. In the end, Mr Khaw agreed it would have been better if appropriate forewarning had been given to the Ds.

74.In a late application for adducing additional witness evidence, it behoved the applicant to provide the court and the other party with a full account of the lateness to enable the court to exercise its discretion to properly deal with likely objection by the other party and to be assured that the applicant had acted fairly and not attempted to spring such application on the other party at the last possible moment without any forewarning.  An applicant who seeks indulgence has to take special care to be forthcoming and frank to enable the other party to appreciate the reason for and the ramifications of the intended application at the earliest opportunity.

75.Also, one must not forget that the present action had come before the courts for 2^nd and 3^rd case management conferences on 31 October 2012 and 13 March 2013 respectively before it was set down for trial, and the Examination did not take place until May 2014.  During that time, P made her supplemental and 2^nd supplemental witness statements on 29 January 2013 (when one might expect her mobility problem to be more acute since it was shortly after her operation) and 4 April 2014 (when one might expect her residual disabilities to have settled), so P and her legal representatives had had opportunities at various stages after the accident in October 2012 to reconsider/revisit the sufficiency or otherwise of just relying on her factual witness evidence.  If, as the Son 1^st Aff asserted, P’s condition had deteriorated since November 2012, surely this would have been a matter that any prudent litigant and/or legal representative would have taken into account in the aforesaid periodic assessments.  P’s continued insistence (upon legal advice) to have only herself as the key factual witness up to the time of the Examination rightly drew observations from the Ds that it was her considered and informed choice, and the Summons could not be justified by her alleged deteriorating condition or ill health.  As a corollary to this, the proposed introduction of the Son’s additional witness evidence at this late stage plainly flouted earlier case management timetable in the present action.

76.The Son 2^nd Aff in reply tried to explain this by saying “[the] change [in P] was gradual and it did not lead [them] to consider whether and to what extent such change would affect [P’s] ability to give oral evidence in these proceedings prior to the [Examination]. In fact, prior to the [Examination], she was able to understand what would happen at the [Examination] when the same was explained to her; further, she was also capable of expressly herself (albeit slowly, given her age) when she was asked to elaborate some aspects of her evidence”.  However, this did not sit well with the Son 1^st Aff which alluded to a deteriorating condition with P being more forgetful and having anxiety/distress and mood problems after her hospitalisation in late 2012.  But, as explained above, there was no medical evidence in relation to P’s post‑hospitalisation condition that supported any of the above assertions.

77.In any event, P’s solicitors were all along mindful of the fact that P was old and infirm, and that her health condition might deteriorate, which was the very reason why P asked for the Examination in advance of the trial.  Indeed, Tang’s 10^th affirmation acknowledged there would be some difficulties in taking P’s deposition.  And yet P was never swayed from her stance that she would be the key witness on the factual issues in respect of her claim on adverse possession.  I am not persuaded the accident in October 2012 (which happened more than 20 months before the Summons was filed) and any residual disabilities arising therefrom provided justifiable basis for the late application.

78.That leaves the other reason P put forward for the late application, ie P’s poor performance at the Examination.  The Son 1^st Aff acknowledged the Examination was arranged in view of P’s age and uncertain health condition.  For the Examination, the Son and his siblings accompanied P to court everyday, and they were present when P gave evidence.  The Son claimed P was subject to lengthy and tiring cross‑examination, and stated in the Son 1^st Aff as follows:

“7. …… I observed that at the hearing, it took [P] quite some time to understand some of the questions put and she sometimes had difficulty in expressing herself and articulating what she might want to say in a coherent manner. She also showed that she was unable to remember some of the details, particularly when she was under stress. Further, during the hearing, she felt unwell and distressed and had to ask for a rest on a few occasions.

8. What I observed at the hearing is perfectly understandable, given [P]’s age and health condition.  I do not know if [P] will be in a position (or will be required) to give further evidence at trial …… It will, hwoever, be unsatisfactory if [P] is unable to provide the Cout with all relevant evidence due to her deteriorating condition and age. ……”

79.Plainly, the Son wished to put himself forward as an additional witness after seeing P’s poor state in giving evidence at the Examination, which he said was “perfectly understandable”.  Bearing in mind that I will be the trial judge in the upcoming trial, it is inappropriate for me at this stage to make observations on the quality or weight of P’s evidence under the Examination.  However, I should point out that even assuming P had the difficulties the Son claimed she had at the Examination (but I make no finding in this respect), it must be remembered that P’s age and infirmity were nothing new, and indeed Tang’s 6^th affirmation already stated that P would be too “old and decrepit” to attend the trial and Tang’s 10^th affirmation acknowledged there would be difficulties in taking her deposition.  That being the case, how P fared when she gave evidence at the Examination would not have constituted new basis for adducing late additional witness evidence.

80.In my view, there was no satisfactory reason for the delay in taking out the present application, which must be a relevant consideration in the balancing exercise to be conducted in deciding whether or not to grant P the indulgence sought.  But even if I am wrong and the reasons the Son put forward provided a satisfactory explanation, P still had insurmountable hurdles.

81.I now turn to the issue of potential prejudice to the Ds posed by the proposed late introduction of the Son’s additional witness evidence.  The Son claimed the contents of his draft witness statement were largely in line with those of P’s witness statements, and they did not raise any new matter.  But the Ds disagreed and claimed they would suffer obvious, real and irreparable prejudice that could not be mitigated or compensated by costs if the Summons were allowed.

82.There is no doubt that P’s case relied heavily on her oral evidence (which is not unusual in adverse possession cases).  The Ds complained that to have the Son prepare his witness statement and then to give evidence after witnessing the Ds’ cross-examination of P would allow an opportunity for the Son to tailor-make his witness statement and to rehearse his evidence to the forensic prejudice of the Ds.

83.Mr Khaw’s written submissions dated 14 August 2014 for the 1^st PTR stated “[it] is yet to be decided” if P would give oral testimony at trial.  At the Hearing, Mr Khaw submitted that it would be “unlikely” that P would attend trial to give oral evidence.  Although P and the Ds agreed (and I have ordered) that the deposition of P’s evidence taken at the Examination be received in evidence at trial pursuant to Order 38 rule 9(1) of the RHC, P is reminded that under paragraph 5 of the order of Master J Wong dated 28 October 2011,[8] if she does not intend to give evidence and be cross-examined and re-examined at trial, then subject to the directions of the trial judge, she is required to satisfy the court at trial why she is not “capable of attending trial” presumably on the basis of pertinent medical and factual evidence.

84.I now proceed to consider the Ds’ allegations of irreparable forensic prejudice in light of the special feature in the present action of a “split trial” between the Examination and the trial proper.  If (and Mr Khaw suggested it would be likely) P does not give evidence at trial, in practical terms the Summons would be akin to an application for leave to adduce additional witness evidence after the key factual witness had given evidence and the party calling such witness perceived such key factual witness to be in a poor state when she gave evidence.

85.First, as the Ds noted, the Son had the opportunity to hear P’s evidence at the Examination and to review the Transcript before he prepared his own draft witness statement.  Ordinarily, a witness as to fact would not have that luxury.  Mr Shum expressed concern over such forensic advantage which allowed the Son’s witness statement to be tailor-made in light of P’s evidence.

86.Here, although the Son claimed the contents of his draft witness statement were in line with P’s witness statements, I note as a matter of interest that even though P’s witness statements did not allude to the proximity of the pigsties and her family’s residence on the Land, she emphasised time and again when she gave evidence at the Examination that the pigs “almost slept with man” and “could not be separated from man”,[9] and paragraph 4 of the Son’s draft witness statement stated that “我們之居所以及養豬和養雞的地方緊緊相連”.  Further, although paragraph 8 of P’s witness statement dated 28 February 2012 merely stated “本人多年來在該兩塊地上種過蕃薯苗作為養豬飼料”, she gave evidence at the Examination that the sweet potato seedlings were not just pig feed but “of course, men can eat it”,[10] and paragraph 7 of the Son’s draft witness statement stated “……蕃薯苗可以餵豬, 亦可以給人吃……”

87.Mr Khaw submitted that these matters in the Son’s draft witness statement would be within his personal knowledge.  Even accepting that, there is no escape from the fact that P being the key witness on factual matters had not seen fit to refer to these matters in her witness statements, and such matters were only elicited under cross‑examination at the Examination.  It is not for me at this stage to make observations on the value (if any) of these pieces of evidence, but one cannot put aside the nagging concern the Ds raised over the Son’s draft witness statement that it had been prepared with P’s evidence in mind.  Such concern is, of course, compounded by the relief sought in the Summons for the Son’s witness statement to stand as his evidence‑in‑chief.  Mr Khaw indicated that P would be prepared to forego such relief, but it still would not remove the forensic advantage the Son had through knowledge of P’s viva voce evidence when he prepared his own draft witness statement covering factual matters most of which had been canvassed by P in her evidence when he would not have had such benefit had his witness statement been served in a timely fashion.

88.Secondly, Mr Shum argued that had the Ds been aware of the possibility that the Son would be a witness for P, they would have objected to his presence during the Examination.  Mr Khaw submitted there is no rule of law which requires that in a trial the witnesses to be called by one side must all remain out of court until their turn to give evidence, which is purely a matter of the court’s discretion.[11]

89.The Ds argued that such contention ignored the reality that the Ds being unaware of another factual witness tap-dancing in the wings had lost the opportunity to persuade Master Hui to exercise his discretion to exclude the Son from being present at the Examination, and further, in order to give practical effect to such order in the particular circumstances of “split trial” between the Examination and the trial proper in the present action, to disallow the Son from reading the Transcript prior to the trial. Mr Khaw said he was unaware of any rule of evidence or procedure that would prevent the Son as a potential witness from reading the Transcript, and he claimed that any perceived advantage in P’s favour was due to the “inherent” nature of P’s deposition evidence being taken in advance of the trial proper and not because of any alleged overreaching by P.

90.Whilst I accept it is inherent in the nature of taking witness evidence by deposition that certain witness(es) will give evidence in advance of the trial proper with consequent risk that other witness(es) may have access to the transcript of the evidence taken by deposition (unless, as the Ds urged, access to such transcript is excluded under court direction), the taking of evidence by deposition should not put P in a forensically advantageous position of being able to check the quality of her own deposition evidence before deciding whether or not to adduce additional witness evidence, and then upon making such decision to prepare the Son’s additional witness statement with the benefit of hindsight through the prism of the deposition evidence.  Mr Shum submitted this was in principle objectionable, and if allowed would encourage litigants to adopt deliberate tactics by seeking to take the evidence of elderly witnesses by deposition first but keeping additional “sweeper” witness evidence up their sleeves until such time (upon mature review of the deposition evidence) it is thought that such additional evidence will be helpful.

91.Mr Khaw asked me not to loose sight of the fact that (a) D1 to D3 did not run any positive case to contradict P’s case on the occupation of the Land, and (b) P’s evidence given under the Examination would be admitted as evidence at trial, which would provide more fodder for Ds’ cross-examination of the Son when he would give evidence at trial.  He submitted there would be no unfairness against the Ds, but it would be unfair if P’s interests were prejudiced simply because of her health condition, particularly when the Son was ready, able and willing to give evidence on the matters relevant to this dispute.  Mr Khaw argued that in any event, whether the Son was present at the Examination or not, he would be entitled to look at the Transcript prior to the trial.

92.In my view, this is where the fallacy of P’s arguments on the issue of forensic prejudice lies.  Mr Khaw advised it would be unlikely for P to give viva voce evidence at trial, which meant that practically speaking the Ds had completed their cross-examination of P as the key factual witness on the understanding that apart from 曹文俊 P would not be calling any further factual witness evidence.  The Ds pointed out that they had adopted lines of cross-examination on such understanding.  Indeed, Mr Shum submitted that on such basis he had “thrown some of his cards to the wind” by seeking to undermine P’s reliability by cross-examining her on general rather than specific matters.  But had he known the Son might be called as a factual witness at trial, he would have been duty-bound to cross-examine P on inconsistencies in P’s and the Son’s witness statements on “common topics”.  For example, he might have cross-examined P on the Son’s alleged periods of occupancy at the House and/or the frequency of his visits to the House in order to verify the Son’s alleged personal or first-hand knowledge of the affairs at the Land.  In the end, Mr Khaw conceded, as he must, that the existence of an additional factual witness whose evidence, according to P, covered similar topics canvassed by P in her evidence might affect the cross-examiners’ approach in questioning P.  In my view, this is an irremediable forensic disadvantage since the Ds had already cross‑examined P under deposition, and according to Mr Khaw, it would be unlikely for P to be tendered for further cross-examination at trial.

93.This disadvantage is particularly significant for D1, D2 and D3 who essentially put P to proof of her factual assertions.  In such circumstances, their cross-examination took on special significance.  This is borne out by the Transcript which showed Mr Shum’s concern that P’s evidence must be clearly recorded,[12] and Mr Khaw’s quick objection when he thought Mr Shum’s cross-examination strayed from the straight and narrow of a denial defence.[13]

94.I also note that although Mr Khaw argued the contents of P’s testimony and those of the Son’s draft witness statement were broadly similar, Mr Shum’s complained that certain facts and matters contained in the Son’s draft witness statement were different from those in P’s witness statements, and that on a preliminary reading and comparison with P’s testimony there were a number of material differences, eg:

(a) Paragraph 11 of the Son’s draft witness statement stated that 豐達貿易公司 demolished the wire fence erected by 劉四伯 between Lots 727 and 728 (points R - V in the 1^st Plan), but paragraph 8 of P’s witness statement said someone demolished wire fences erected by P/Lo from points L to R to V in the 1^st Plan.  Further, P’s evidence was that only brick and not wire fence was built by劉四伯.[14]

(b) Paragraph 10 of the Son’s draft witness statement mentioned that P’s family had ceased to raise chicken at certain time, but this was not mentioned by P.[15]

(c) Paragraphs 50 and 8 of the Son’s draft witness statement stated that the original hut their family lived in was built by Lo before 1961 using wood and bricks, and that it was extended before 1970.  But P’s evidence was that the hut was built by Lo with wood only before 1961, and was extended with wood and bricks between 1964 and 1969.[16]

In my view, the Ds should have reasonable opportunity to investigate these matters and to cross-examine P on them, but with Mr Khaw indicating that P would be unlikely to give evidence at trial, this would probably be a lost opportunity for the Ds.

95.The Ds submitted that if P were allowed to adduce the Son’s additional witness evidence, they would need to look further into his evidence to see whether they would need to traverse any particular factual assertion with countervailing evidence, and further specific discovery might even be required.  As an illustration, it appeared that apart from the Son’s assertions in his draft witness statement there was little if any documentary evidence to show he had lived at the House and/or he frequented the House during the various periods as claimed,[17] which matters must be material to his alleged personal or first-hand knowledge of developments over the years at the Land.  Surely, the Ds would be entitled to investigate these matters, and perhaps even to adduce further witness or other evidence in reply.  Mr Khaw submitted that in the remaining 7-8 weeks before trial P would cooperate by responding to any reasonable requests by the Ds for information/documents, but in the absence of any voluntary discovery made by P under the Summons it is unclear how long any investigative efforts would take, and where they would lead.  The court has no confidence that all these steps can reasonably be completed in good time without unfairly encroaching upon the Ds’ pre-trial preparations at this late stage.

96.Mr Khaw submitted that the length of trial would not be affected even if the Son were to give evidence at trial.  In my view, even if the trial would not be prolonged, it does not overcome the aforesaid forensic prejudice to the Ds or the possible effect on the trial given the need for investigation by the Ds.

97.In my view, the Ds had not exaggerated the difficulties they would face if they had to deal with the Son’s additional witness evidence.  What P sought to do was to shift the evidential goalposts that were already crystallised by the time leave was granted to set the case down for trial.  I bear in mind it was specifically provided in the order of Master J Wong dated 28 October 2011 that P’s evidence by deposition would not be taken before discovery and exchange of witness statements were completed.  This was to ensure that all the evidential cards were on the table before P’s evidence was taken by deposition.  Even though P would inevitably be prejudiced by not having the Son’s witness statement admitted as evidence, but taking into account the lack of good explanation for the delay, the real prejudice that would be caused to the Ds in having to deal with the new evidence with risk of adverse impact on the trial, and the court’s duty to apply the underlying objectives to refuse inappropriate late applications, the Summons must be dismissed.

VII.  POSTSCRIPT

98.At the 2nd PTR, I had given directions for the parties to agree on a marked-up set of the Transcript and for copies of the exhibits produced at the Examination to be included in the trial bundle.  For such purpose, the three box-files that comprised the draft trial bundles should be released to P’s solicitors for updating.  However, since this court had marked up certain parts of Parts A-E of the draft trial bundles (ie the first box file), it is inappropriate for this draft trial bundle to be released.  P’s solicitors should send updated insertion/replacement pages for my clerk to attend to the collation of the trial bundles.

Mr Richard Khaw, instructed by Robin Bridge & John Liu, for the plaintiff

Mr Erik Shum, instructed by Wong, Hui & Co, for the 1^st and 3^rd defendants

Ms Yvonne Chiu, instructed by T K Tsui & Co, for the 2^nd defendant

The 4^th defendant in person and absent

The 5^th defendant in person and appeared by Mr Lee Kam Chiu

Mr Au Lut Chi, instructed by Tsang Chan & Woo, for the 6^th defendant