Chan Suk Hing v. Lau Yuet Cho

DCMP 1795/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1795 OF 2016

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DECISION

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INTRODUCTION

1.The plaintiff applies for mandatory orders against the defendant by way of originating summons.

Background

2.Both the plaintiff and the defendant are the registered owners, tenants in common, of 77B Wing On Street, Peng Chau, New Territories, Hong Kong (“the Land”). 

3.On 6 February 1964, the Land was assigned to Yeung Yun by way of a New Grant.  On 15 May 1970 and 22 May 1970, Yeung Yun assigned to Ho Koi and Yeung Chi Kwan half share of the Land respectively.

4.Ho Koi passed away on 26 April 1984, his half share was vested to Ho Kam Tim (the plaintiff’s husband).  On 15 October 1997, Ho Kam Tim sold his share to Ho Yuen Ling.  On 3 June 2005, Ho Yuen Ling sold her share to the plaintiff.

5.On 19 March 1984, Yeung Chi Kwan sold her half share of the Land to both Wong Sau Kiu and Lau Yu Ping as joint tenants.  Lau Yu Ping assigned her share as one of the joint tenants to the defendant.  On 13 November 2008, Wong Sau Kiu passed away. The defendant, as the surviving joint tenant, became the sole owner of the half share of the Land.

6.Mr Lai, counsel for the plaintiff clarified (not deposed in the plaintiff’s affirmation), that both the plaintiff and the defendant are unrelated parties. A two-storeyed building was erected on the Land. The 1^st floor of the building was occupied by the defendant and the ground floor of the building was occupied by the plaintiff.  There is no internal staircase in the building, the two units have their own entrance and are self-contained.

7.The disputed area was a strip of land at the right side of the building and was described as “delineated and coloured red hatched black” in the plan of the New Grant. The disputed area was coupled with a special condition in the grant that no building shall be erected thereof.

8.As seen from the photos, the unit on the ground floor is somehow used as a commercial shop with a metal gate at the front entrance.  The unit on the 1^st floor (in accordance to the plan depicted) was built with an entrance at the side of the building leading to the 1^st floor by   staircases.  The said entrance was leading to the disputed area.  

9.The dispute arose when the defendant (i) erected a concrete structure at the rear of the disputed area and (ii) installed a metal gate at its front leading to the main road.  The defendant kept the keys of the metal gate.  Both the concrete structure and the metal gate effectively enclosed the disputed area for the defendant’s exclusive use.  The plaintiff was deprived of the enjoyment and the access to the disputed area.

10.The plaintiff claimed two mandatory orders that (i) the defendant do remove the said concrete structure and the metal gate, or (ii) alternatively, to provide the plaintiff with the keys.

11.The ratable value of the Land was $135,000 which is less than $240,000, and within the District Court jurisdiction.

Hearing of the originating summons

12.The defendant did not appear at the hearing.

13.Order 32 rule 5(1) of the Rules of the District Court, Cap 336H (“hereinafter referred to as “the Rules”) expressly provides,

“Where any party to a summons fails to attend on the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do. Rule 5(2) thereof.”

and Order 32 rule 5(2) of the Rules provides,

“Before proceeding in the absence of any party the Court may require to be satisfied that the summons or, as the case may be, notice of the time appointed for the resumed hearing was duly served on that party.”

14.The originating summons was served on the defendant by inserting the same into the letter box of the 1^st floor of the building on 21 June 2016.  The defendant did not file an acknowledgement of service.  On 21 July 2016, the notice of appointment of hearing was served on the defendant by ordinary post.  On 24 August 2016, the plaintiff’s solicitors left the hearing bundle at a conspicuous place near the entrance of the 1^st floor of the building.  

15.I am satisfied due service on the defendant has been established.

Analysis

16.Both the plaintiff and the defendant are co-owners, they have right to enter the Land within its boundary.  The principle is well said in  Land Law in Hong Kong, 3^rd edition, (2009) at page 458, paragraph 6,

“At common law, each co-owner enjoys concurrent occupation. As already seen, every co-owner has a right of occupation, no one can turn another out of the property or interfere with the common enjoyment of the land.”

17.Mr Lai cited Watson v Gray 14 Ch D 192 and Stedman v Smith 120 ER 1. The two authorities stated when part of the party wall was exclusive used by one of the co-owner, a cause of action of trespass of the party wall arises because the enjoyment of party wall by the other co-owner are ousted.  I am satisfied the same cause of action is in this present case.

18.The plaintiff and the defendant, as co-owners, are on common ground that both of them have been enjoying their de facto exclusive right of the unit on the ground floor and the unit on the 1^st floor of the Land throughout the years.  Although an order of partition of the Land would certainly be more satisfactory, it is not uncommon for rural area that ownership of land was assigned in this manner.

19.Notwithstanding this, the co-owners of the Land shall duly observe all conditions of the New Grant. The condition of use of the disputed area has been stated expressly in Clause 5 thereof, which provides “no building shall be erected on the area delineated and coloured red hatched black”.  In other words, the disputed area shall be kept free from structures.

20.It is indisputable, in breach of Clause 5 of the New Grant, a concrete structure has been built on one end the disputed area and a metal gate was erected at the other end.

21.I accept there is evidence contained in the letter written by the police to the plaintiff’s solicitors on 16 May 2016.  In that letter, it was recorded,

“Until 1^st January 2016, he [the plaintiff] retrieved his flat [on ground floor] but found that a wall had been built right after his rear door blocking his way to mezzanine floor (M/F). A report to the police was made.

The police located a female (surnamed Lau) inside 1/F on 77B Wing On Street, Peng Chau. She declared that the flat belonged to one of her family member.  In 2003, Ms Lau’s family had filed a complaint to Lands Department alleging the owner of G/F of 77B, Wing On Sreet, Peng Chau [the plaintiff] illegally built a M/F of 77B Wing On Street, Peng Chau.  Ms Lau further admitted that the wall was built by her family’s member”

22.In the premises, I am satisfied the orders sought by the plaintiff are justified.

Conclusion

23.I make the following orders:-

(i)    A mandatory order that the defendant do remove the concrete structure erected at No 77B Wing On Street, Peng Chau, New Territories, Hong Kong as indicated in yellow in the color shaded floor plan attached to the originating summons filed on 21 June 2016.

(ii)   A mandatory order that the defendant do remove the concrete structure erected on No 77B Wing On Street, Peng Chau, New Territories, Hong Kong as indicated in purple in the color shaded floor plan attached to the originating summons filed on 21 June 2016. 

(iii)  The costs of the originating summons, including this hearing, be to the plaintiff, with certificate for counsel, to be taxed if not agreed.

Mr Adrian Lai, instructed by Chak & Associates, for the plaintiff

The defendant was not represented and did not appear.