Uni- Creation Investments Ltd v. Secretary for Justice

HCMP 2166/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2166 OF 2015

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J U D G M E N T

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1.By an Originating Summons dated 10 September 2015 the plaintiff, who since 2007 had been the registered owner and government lessee of certain parcels of land ("the lots") situated at Tung Chung (or more specifically in the village of Nim Yuen), Lantau Island, seeks certain relief against the defendant, the Secretary for Justice. In outline, the relief sought is a declaration that the use of the lots as a private columbarium does not breach the Offensive Trades Clause (the "OTC") contained in the Government Lease of the land which dates back to 1905. The clause reads:

" the lessee or any other person or persons shall not, nor will, during the continuance of this demise, use, exercise or follow, in or upon the said premises, or any part thereof, any noisy, noisome or offensive trade or business whatever ...."

2.Consequential relief includes a declaration that the plaintiff may continue its columbarium business on the lots and that the Government has no right of re-entry pursuant to the above covenant.

3.The defendant counterclaims that the plaintiff's columbarium is a breach of the OTC and seeks an order that the plaintiff ceases its business on the lots and removes or demolishes all items relating to the business.  The burden of proof is on the defendant to demonstrate that the plaintiff is in breach.

Issues

4.The parties were not able to agree a list of issues and therefore filed a document setting out their respective issues.  In truth they amount to almost the same thing.  They both agree that the first question is whether or not the plaintiff is in breach of the OTC (and if so, as a consequential issue, whether there should be any equitable relief against re-entry or relief against forfeiture).  The only reason the plaintiff's list of issues is longer is that it sets out grounds upon which it is said that it would be unreasonable to regard the use of the lots as a columbarium as offensive, namely, inter alia:

(i) The specific characteristics of the plaintiff's columbarium and mode of operation of the plaintiff's columbarium;

(ii) The location and visibility of the plaintiff's columbarium vis-à-vis the persons intended to be benefited;

(iii) Pre-existing burial urns, kam taps and graves in and around Nim Yuen village;

(iv) The fact that other private columbaria set out in §§17 - 19 of the Statement of Agreed Facts are permitted to operate within their respective locality notwithstanding the existence of the Offensive Trade Clause in the relevant lease; and

(v) Future regulation of the plaintiff's columbarium business under the licensing regime in the Private Columbaria Bill to be passed by the Legislative Council.

5.It is helpful that such matters are noted at the outset as I agree and accept that they are relevant and require careful consideration when answering the key question namely, does this columbarium in this location constitute a breach of the OTC?  It is important to note also, at the outset, that the defendant accepts that the operation of a columbarium is not offensive per se.  Mr Ringo Lam, a senior land executive in the Lands Department affirms that "the existence of the Offensive Trade Clause in the relevant lease is no immediate bar to columbarium business on the land concerned".  Thus, there already exist in Hong Kong columbaria (to which more specific mention will be made later in this judgment) on land which is subject to the same 1905 OTC and listed as approved under "Part A of the Information Government Leases".  It is important therefore to start with a brief outline of this columbarium and this location.

The Columbarium

6.The columbarium consists of 8 New Territories Style (ie 3 storeys each and approximately 700 sq ft per floor) houses, built in fairly close proximity to each other in 2015.  The plaintiffs have owned the land since 2007.  The original plan was to build a columbarium in a more traditional style but for reasons which are not relevant to this case and about which no point is made either for or against either party, the plan changed to a residential development, hence the 8 residential style buildings.  In 2013/14 the plan changed again and reverted to a columbarium use of the houses.  The unchallenged affidavit evidence of Mr E J Davison, the plaintiff's solicitor who has many years' experience in the Hong Kong land office and in private practice specializing in Hong Kong land and New Territories land issues states:

" It should be noted that the Lots where the Nim Yuen Columbarium is located were not subject to any statutory plans at the time. The Lots therefore have not been subject to any town planning control and no planning permission was required from the Town Planning Board for the operation as columbarium. The Draft Tung Chung Valley Development Permission Area Plan was gazette on 22^nd August 2015 and made available for public representations by 22^nd October 2015. By the Plaintiff's representation dated 22^nd October 2015, the Plaintiff highlighted the Nim Yuen Columbarium's 'existing use' in the locality, which is an abandoned secluded old village with no settlement and surrounded by historical burial grounds, graves and 'kam taps' etc. The Plaintiff proposed that columbarium use be always permitted in the Draft Plan.

After the Nim Yuen Columbarium was opened for business in May 2015, by a letter dated 6^th May 2015, Albert So Surveyors Ltd, the Plaintiff's estate surveyor, applied to the Development Bureau for including the Nim Yuen Columbarium under Part A of the list of private columbaria of the Information on Private Columbaria published on the Development Bureau's website.  The Information was published since 16^th December 2010."

7.I recite this solely to emphasize that the sole complaint being made by the defendant in this case is the alleged breach of the OTC.  In all other respects the conduct of the plaintiffs since 2007 has been without criticism.  Nor is there any criticism of the manner in which the columbarium has been operated or is proposed to be operated.  In short, all the rules and regulations under which it is proposed to be run are designed to minimise its impact on the surrounding area.  For example: visiting by appointment; no burning of candles, incense etc; shuttle bus services and the sale of niches to be staggered over several years ahead.

The Location

8.The parties agree that the "relevant location" is Nim Yuen and Lam Che villages.  Nim Yuen, which is the site of the columbarium, was abandoned as a village (where people then lived) in the 1980s.  ‌It is in a remote and secluded part of the North Lantau Country Park beyond the new town of Tung Chung.  None of the original village houses remain.  Topographically it is in a valley and surrounded by trees.

9.Lam Che is the nearest inhabited village.  It is about 160 metres away.  It is not entirely clear how many people live in Lam Che village.  It could be as few as 5.  On any view it is a very small number.

10.The evidence includes many many photographs, including aerial photographs, and plans of the immediate and wider area.  The description of "remote and secluded" is entirely borne out by this evidence.  The photos and plans also show the several ancient burial sites within the relevant location. Burial urns, "Kam Taps", are to be found nearby and there are 2 clan graves, one 102 meters away, the other 56 meters away which both date back to the mid nineteenth century.

The OTC

11.The key words in the covenant are "any noisy, noisome or offensive trade ...."  In my judgment it is sufficient to focus on the word "offensive" in this case.  "Noisy" is a particular physical sensation and is not alleged in this case.  "Noisome" has a wider meaning and may include anything unpleasant or disagreeable.  For all practical purposes that which is "offensive" would include that which is "noisome".

12.Mr Benjamin Yu SC, leading Mr Justin Lam, for the plaintiff invited the court to examine the defendant's evidence (or lack of it) first and if it is found that there is none of any weight, or reliability or significance, the burden of proof has not been discharged and considerations as to whether "offensive" should be given a wide or narrow meaning become unnecessary.

13.Mr Eugene Fung SC, leading Mr Abraham Chan, for the defendant however invites the court to give "offensive" a wide meaning at the outset.  I prefer Mr Fung's approach and will now address the competing submissions concerning the definition of offensive.

The Meaning of "offensive"

14.The difference between Mr Yu's and Mr Fung's submissions is simple to state.  Mr Yu urges the court to confine that which is offensive to purely physical sensations; offensive to the ear, or the nose or the eye.  Mr Fung submits that it should be given a wider meaning to include anything which causes reasonable discomfort or disquiet to any person within the relevant location.

15.Having considered counsels' helpful submissions and authorities I think that the word "offensive" should not be constructed too narrowly in the context of this case.  Of course, however one defines it the outcome of the issue will depend on the quality of the evidence.  The case does not turn on the definition of "offensive" but on the evidence adduced to prove it.

16.Mr Yu submits that by the application of the ejusdem generis maxim what is "offensive" is governed by the words which precede it which imply purely physical sensations.  He cites a passage from Fletcher Moulton LJ's dissenting judgment in Nussey v Provincial Bill Posting Company [1909] 1 Ch 734 at 741:

" The argument on behalf of the plaintiff is that exhibiting posters is an 'offensive' trade. Even if the word were used alone, without any context serviceable to guide us as to its meaning, I personally should have no doubt that this construction was unsustainable. But it occurs in company with the three other descriptive adjectives noisy, noisome, and dangerous, and in my opinion means something ejusdem generis with them, namely, some trade the carrying on of which physically interferes with the comfort of a neighbour. And this is, in my opinion, its ordinary and natural interpretation as well as its recognized meaning in such covenants. It has nothing to do with the purely aesthetic susceptibilities of possible owners of adjacent land. I cannot help protesting against the process of arriving at the true meaning of words in common use by etymological reasoning based on their derivation. We have no right to say because offensive is an adjectival derivative from the verb offend that therefore whatever offends is rightly termed offensive. A man by tactless language in a speech may give just offence, but that would not justify one in saying that he was guilty of using offensive language. The word 'offensive' as applied to trades has a fairly defined meaning of its own, though it would no doubt be interpreted more widely in a high-class residential neighbourhood than in a case like the present, where at the time of the sale there were no houses, and which it was not intended to restrict to residential purposes. In such a case as the present I can see no reason for giving to the word any but its ordinary and well-known meaning when applied to trades, which is strictly ejusdem generis with noisy, noisome, and dangerous, and if we do so the trade of exhibiting posters is clearly outside the convenant."

17.Mr Fung stresses the importance of context when both defining "offensive" and when construing the clause as a whole.  The obvious importance of context becomes apparent merely by noting the very varied subject matters in the many authorities referred to; for example, burning bricks, erecting a large advertising hoarding, topless waitresses in a restaurant, building a hospital in a wealthy area of a city, running a fish and chip shop and, here, the storage of ashes after cremation.

18.Mr Fung relied on a number of authorities from the 19^th, the 20^th and the 21^st centuries, some of which I refer to below.  My approach will be that the word "offensive" should not be given an over narrow interpretation in this case given the understandable sensitivities surrounding the delicate issues involved; namely, the treatment of human remains and the worshipping of one's ancestors.  ‌Where a trade does not offend by virtue of smell, noise or sight, it may still be "offensive" within the meaning of the OTC in question provided that, in context, there is good reason to so conclude.

19.In Earl of Pembroke v Warren [1896] 1 IR 76, Sir Peter O'Brian LCG said:

" ... any business, which would be so annoying and hurtful as materially to diminish the comfort and enjoyment, and thereby the value, of the residences in the [locality] - any business in fact that would produce such a sense of discomfort as prejudicially to affect the residential character of the [locality] and the value of the property and houses therein ..."

and later:

" ... the word 'offensive' was introduced to reach what would be annoying and hurtful, not alone to the physical eye but to the mind's eye, which would be annoying and hurtful not merely to the eye and the nose, but to the feelings and the mind of the occupiers of the houses in [the locality]."

20.In the Canadian case of Re Koumoudouros in 1978 the trial judge said:

" ... the use of topless waitresses and the provision of nude dancing in the restaurant operated by the defendant is an offensive trade or business .... The association with the building of a restaurant which provides entertainment so sexually orientated is offensive because it reduces the value of the building: it reflects badly on the images of the tenants, and it offends the sensibilities of and causes inconvenience to at least some of the tenants with good reason, that is the activities, while not apparently offending or violating any criminal or provincial law or municipal by-law, are not suited to the locality in which...."

21.The Hong Kong context was referred to in the case of Regal Shining Ltd v Secretary for Justice [2016] 3 HKC 291. At first instance Anthony Chan J had observed that:

" The location of a grave or [depository for human remains] is a sensitive issue for any community, especially a superstitious one like Hong Kong, ie, a lot of Hong Kong people would not like to reside in the same neighbourhood where a grave or Depository is situated. The other side of the same coin is that the location of a grave or Depository is liable to affect the value of the land in the neighbourhood. Hence, conflict may arise between neighbours due to the location of such facilities. ...

One may start off with a few obvious points about the social conditions in Hong Kong.  Hong Kong is a small place with a big population. ... Hong Kong people are superstitious, likely more so in those days [ie in the 1950s].  The points made above on reluctance to live near a graveyard and the value of neighbouring land being depressed by the existence of the same must be part of the factual matrix."

22.On appeal Lam VP emphasised the point saying:

" The adverse impact to the neighbourhood due to the presence of a resting place for dead is beyond dispute."

23.In passing it should be noted that the key words above are "to the neighbourhood".  ‌The neighbourhood in Regal Shining was very different from Nim Yuen and different issues were under consideration.  The case did not concern an alleged breach of the OTC.  However, it does give support to the importance of context when construing a clause and defining the words therein.

24.To conclude my consideration of the meaning of "offensive" I return to the nineteenth century to cite a brief passage from Duke of Devonshire v Brookshaw [1899] 81 LT 83 (a case concerning a fish and chip shop) which not only succinctly makes the same point but also stresses the crucial point of adequacy of evidence to which I now turn:

" It is quite possible, and I will assume that a fried fish shop can be carried on in a narrow street without giving offence to anyone. That is an abstract proposition which I assume for the purpose of my judgment. But the question I have to determine is whether, having regard to the nature of the business, and the locality in which it is situated, and the manner in which it is carried on, this is an offensive trade or business. Now, I have sufficient evidence to show that this business is so carried on as to be an offence to some of the neighbours. I have the evidence of several people who have lost lodgers, and have their houses unlet for this reason. ‌Therefore, I have it proved as a fact that the business as carried on offends many persons, and so far as I can judge from seeing them in the box the witnesses are not persons of extraordinary delicacy in the nostrils or elsewhere. I therefore think it is proved that the business is an offence to them."

Evidence

25.Evidence by affidavit or affirmation has been given by eight deponents. There are 15 affirmations/affidavits in total, 2 of which were filed at the commencement of the hearing and admitted de bene esse.  I now admit them as evidence in the case.  No oral testimony was given.  There are approximately 2,000 pages of exhibits.

26.Evidence from surveyors giving measurements etc. was non-controversial.  Only one affirmation was relied on as evidence in opposition to the columbarium, namely that of Mr Ringo Lam a senior land executive from the Lands Department.  Needless to say he does not reside in the relevant locality but he has helpfully brought together all the evidence upon which the defendant relies to discharge the burden of proof on it.

27.There must be relevant credible evidence that given (i) the nature of the business, (ii) the locality of the business, (iii) the nature of its operation and (iv) its effect on the neighbourhood there are people in the locality who find the columbarium offensive.  If there is such evidence the offence felt by such people must be genuine and reasonable.

28.This approach is illustrated by the following extract from the majority judgment in Nussey v Provincial Bill Posting:

" Further, the word 'offensive' is, I think, to be construed relatively to the person contemplated as enjoying the benefit of the stipulation, that is to say, relative to such a person as would be the purchaser of such a plot upon such an estate as this estate is by the conditions and plan shewn to be. The question, therefore, is whether the trade or calling of a bill-poster carried on upon a hoarding 156 feet long and 15 feet high, carrying with it such disfigurement and such litter by waste-paper and so on as would result from the employment of the site for such a purpose, can properly be called offensive, that is as legitimately furnishing ground of offence to a reasonable person who became a purchaser of a lot on this estate."

29.The next question is to ask what constitutes real evidence which the court should consider.  I agree with Mr Fung's submission that, in a case of this nature, it is permissible, albert with a measure of caution, to look beyond what might otherwise be regarded as legally admissible evidence.  A strict application of the rules of evidence could be regarded as a somewhat narrow approach.  For example, a letter of opposition should not be ignored simply because it is unsigned. Ultimately it is a matter of how much weight should be attached to any particular piece of material.  Mr Fung was correct to say (not his exact words) that if all the matters before the court do not provide sufficient credible evidence "we lose".

30.The evidence upon which the defendant relies requires particular scrutiny, the burden being on it.  Firstly, however some observations on the plaintiff's evidence may be made.

Plaintiff's evidence

31.I have already referred to the affidavits of Mr E J Davison. They amount to a measured, detailed and helpful account of the issues to be resolved.  It is unnecessary to refer to all of his evidence, it totals 35 pages and is unchallenged as to fact.  One or two matters merit particular mention.

(a) He states "there are quite a number of private columbaria with the annotation 'columbarium use may be permitted under the lease'."  In particular, he mentions the Lung Ngan Monastery which is also in a remote location on Lantau Island but with villages houses nearby.  He also cites the Lung Shan temple near Fanling which is also in a remote setting but with some village houses in the near vicinity.  These are both listed in Part A of the "Information on Private Columbaria" which means that the use of the land "does not contravene the user restrictions in the land leases ...".

(b) He also refers to 3 columbaria which are listed in Part B of the information which means that compliance checks are still pending but that columbarium use is currently permitted.  ‌They are Cheng Ha Chung Shea, Sha Tin Ching Yuen and Sincerity Park, all of which are much closer to built up areas than the Part A examples.

(c) Finally he refers to 3 more columbaria from Part A (Ching Chung Sin Yuen, Shan Yuan and Tsz Wan Kok) which are held under New Grants (not the 1905 Lease), which nonetheless are subject to the OTC, which are close to residential areas and which are permitted for columbarium use.

(d) In his second affidavit he reminds the court that a Private Columbaria Bill was introduced to LegCo on 25 June 2014.  ‌It is likely to be enacted in March 2017.  He adds:

" Upon enactment of the Private Columbaria Bill, no person may operate a private columbarium in Hong Kong, unless such operation is covered by a licence, an exemption or temporary suspension of liability. A licensing board will also be established to regulate the operation and management of columbaria including granting applications for licence, issuing of guidelines and code of practices, handling of complaint, investigating irregularities, exercising power to revoke or suspend licence, etc ...."

32.Thus the plaintiffs fully recognize that should they succeed in this action it will be necessary, in due course, to apply for a licence.  It is worthy of note that as things presently stand no criticism is made by the defendant of the manner in which this columbarium has been or is intended to be operated.

33.The manner of operation is fully dealt with by the plaintiff's second deponent, Mr Cheng Yung Hing, a Director of the plaintiff company.  In summary it re-enforces the unchallenged fact that save for the alleged breach of the OTC the company's conduct in this matter, since 2007, has given rise is no criticism whatever.  The evidence permits me to add that their conduct has been measured, cautious and sensitive.

34.Mr Kwan Wai On is an indigenous villager of Nim Yuen village and since 2011 has been the village representative of Nim Yuen and Lam Che.  He now lives in Ma Wan New Village on Lantau.  After a detailed account of the locality's history he invites the court to conclude that:

" ... the operation of the Nim Yuen Columbarium is consistent with the existing use of the land in the area and it will not cause any inconvenience or nuisance to the villagers in the neighbourhood. I have no reason to believe that the plaintiff has breached the offensive trade clause in the land lease of the relevant Lots by operating the Nim Yuen Columbarium."

35.In his 3^rd affirmation he exhibits a letter from Mr Li Kei Lok who previously had voiced opposition to the columbarium.  Mr Li is an indigenous villager of Lam Che Village and his letter tellingly states as follows:

" In around the beginning of 2015, without fully understanding the actual situation, I listened to and believed in the rumors about the negative effects that the construction of a private columbarium in Nim Yuen might bring, ie the worries in relation to the traffic problems, environmental impact, mental pressure and psychological impact to the villagers owing to the taboos, etc. As a result, I ignited a campaign to sign and oppose to that private columbarium.

The private columbarium in Nim Yuen Village has now been in business for quite a period of time. My family and I have noticed that the columbarium does not produce noise or bad odour, does not affect the environment nor cause traffic problems during Ching Ming and Chung Yeung Festivals. Nor would it cause any psychological pressure or nuisance to the lives of the villagers. Moreover, the banner in opposition of the columbarium in front of the village had already been taken down.

By reason of the above, the worries of my family and I have been eased, and I do not oppose to the continuous operation of the private columbarium in the Nim Yuen Village.

(dated February 2017) "

36.Mr Fan Chi Ping, an indigenous villager of Ma Wan Village (outside the relevant locality but nonetheless nearby) is also Chairman of the Tung Chung Rural Committee.  His affirmation shows a deep knowledge of local history and is firmly in support of the columbarium.  He concludes:

" Because there are so many villagers' ancestral graves nearby already, I believe that operating a columbarium in Nim Yuen Village is in harmony with and correspond to the surrounding environment of that location. Moreover, Nim Yuen Columbarium can help to ease the serious shortage of public niches in Hong Kong. Therefore, I think the columbarium should be supported.

According to the Secretary for Development, Mr Paul Chan Mo Po, the population of Tung Chung New Town will reach more than two hundred thousand. It is thus necessary for Tung Chung residents to have facilities to store their ancestors’ remains. By reason of the Tung Chun residents’ rising demand for columbarium niches, I believe that the additional niches provided by the Tung Chung Nim Yuen Columbarium can ease the problem of shortage of niches.

I notice that some people oppose to the development of a columbarium inside Nim Yuen Village. Those people are probably misguided by the supernatural theory which causes fear in their hearts.  As the Chairman of Tung Chung Rural Committee, I believe that the villagers should think and act rationally.  The villagers should recognize the indisputable fact that there is rising demand for niches, and understand the benefits the Nim Yuen Columbarium can bring to the community."

37.Mr Law Lai Chi is the Resident Representative of another nearby village, Shek Lau Po Village.  ‌His affirmation includes a reference to a meeting held in June 2015 designed to oppose the columbarium.  He points out that the motion was to "oppose against columbarium operating illegally in Nim Yuen Village".  ‌He, with others, signed his support for the motion.  ‌He stresses however that the opposition was founded on the assumption that it would be "illegal".  He now gives strong support for the venture on the basis that it is run legally.  He has collected 89 signatures from his village also in support.

38.In conclusion, although the support in the above affirmations comes from people outside the "relevant location" it would be unfair not to consider it.  These are people with great local knowledge and understanding, all from nearby villages, and their opinions merit being heard.  Moreover, according to Mr Kwan Wai On there are only 5 people living within the "relevant location".  According to his letter (at paragraph 35 above) Mr Li Kei Lok is one of them.  His letter commenced "I am an indigenous villager of Lam Che Village and am living there with my father and family ...".  That would seem to cover most if not all of the total population.

Defendant's evidence

39.As already noted the sole deponent giving positive support for the defendant's case is Mr Ringo Lam Chi Wai.  Mr Yu describes the defence evidence as "sorely wanting".  As will be seen the court is in full agreement with this description.  It is, of course, no reflection on Mr Lam in his professional capacity.

40.When evaluating the defendant's evidence a useful starting point is a reminder of the existence of numerous Kam Taps and two Clan Graves within the relevant location.  All the plaintiff's local deponents give extensive information and history regarding these sites.  It hardly needs to be said that they are all very old.  A preliminary question therefore arises, is there any evidence that in the preceding two centuries the local villagers (then far more numerous than now) found these burial sites in any way offensive in the sense urged by Mr Fung, namely of causing disquiet or a sense of unease?  There is none.  The defendant’s evidence must therefore, inter alia, explain why this particular method of storage of human remains is different, and so different, that a breach of the OTC has been caused.

41.Mr Ringo Lam summarises the evidence opposing the columbarium in his affirmation as follows:

" A number of complaints against the columbarium were received by the Government including (i) two via the 1823 call centre; (ii) one from 各界關注骨灰龕法案大聯盟Alliance for the Concern over Columbarium Policy; (iii) one issued by the village representative of 藍輋Lam Che for and on behalf of 東涌藍輋村發展及管理團體; and (iv) one from 東涌石榴埔村村公所 (enclosing signatures from 85 objectors) .... Moreover, one banner marked with '反對東涌稔園在稔園村經營違規骨灰龕場...'"

42.The English translation of the banner reads:

" Strongly opposing to the illegal operation of a columbarium in Tung Chung Nim Yuen village without license, causing damage to feng shui, (notice by the villagers of Lam Che village)."

43.The translation of item (iv) is "village office of Shek Lau Po village, Tung Chung".

44.Fair criticism is made by Mr Yu on the plaintiff's behalf in respect of each of these "complaints" as follows:

(i) The calls via the 1823 call centre are wholly without particulars and should attract no weight.

(ii) The "Alliance" letter is unsigned and dated 27 May 2015.  It does not constitute a complaint or opposition.  It merely asks the Distrct Lands Office and the Lands Department to "investigate" inter alia, whether there is any "illegal development" on the lots.

(iii) This is also an unsigned letter.  It comes from the "Lam Che Village Development and Management Group" and the "Lam Che Village Representative".  The plaintiff has adduced evidence that the former body does not exist as a legal registered entity and the latter individual is unknown. What is known is that Mr Kwan Wai On is the relevant Indigenous Village Representative and he has always supported the columbarium.  Thus, as evidence of opinions from people whom the OTC is intended to benefit it is of little weight.  The court accepts that the content of the letter illustrates genuine feelings of some people in Hong Kong.  However for the reasons outlined the letter does not advance the defendant's case.

(iv) This is a letter dated 15 June 2015 written by Mr Law Wai Hung on behalf of The Shek Lau Po Village Committee.  The letter complains that the columbarium will "destroy our homeland", "disturb our peace", create "anxiety and fear", "create nuisance" and "affect safety".  ‌These are strong heartfelt words.  ‌Strangely however, when the plaintiff's first columbarium plans were being mooted, in 2010, the same Mr Law had given his support.

Taken in isolation the feelings expressed in the letter represent the high water mark of the defendant's opposition.  It is however a bridge too far to categorise it as persuasive evidence upon which the court could find, as a fact, that persons in the relevant location who are person intended to be benefited by the clause find it offensive, as defined above.

As to the form containing 85 signatures, apart from suspicions raised as to the authenticity of some of the signatures, the point is made that the signatories were objecting to an "illegal" columbarium. It may be assumed that their opposition would either fall away or be considerably diluted if the columbarium were "legal" which is the issue at the centre of these proceedings.

(v) The banner.  Similar objections are made, with some force, with regard to the banner.  First, there is no evidence as to who erected it or when.  It is agreed that it is no longer standing.  Secondly, it refers to an "illegal" columbarium.  Thirdly, it focuses on the issue of "feng shui".  ‌The court respects the strength and depth of feelings and belief held by many Hong Kong people over feng shui matters.However, whilst concerns over feng shui matters are anonymously asserted, there is no cogent evidence in support.  I agree that feng shui as an issue is relevant but I can make no factual findings which might support the defendant's case.

(vi) The defendant finally relies on the letter dated 11 February 2016 exhibited to Mr Ringo Lam's 2^nd affirmation admitted de beneesse at the hearing.  ‌The weight which can properly be attached to it is affected by its lateness.  Moreover its author is unknown and purports to head a non-existent organization.  It states that the villagers find the columbarium use as "offensive" without saying why.  Most significantly, and in conclusion, none of the authors of any letter exhibited or signatories of petitions have come forward to give formal evidence.

Reasonableness

45.Mr Yu submits that the defendant's failures to adduce any reliable evidence should bring the matter to a conclusion.  I proceed on the basis that whilst his description of the evidence being "sorely wanting" is not unreasonable, there is some evidence which calls for careful consideration.  Albeit, I must agree that it is weak.

46.It is necessary therefore to consider whether such evidence as there is that the columbarium use is offensive, is reasonable.

47.As to what is "reasonable", in a case of this nature, is likely to vary from one person to another.  ‌It must be an objective evaluation.  ‌Once again context is all important.  The reasonableness or otherwise relates to the way in which this particular business in this particular locality is carried on.  A trade could be inoffensive if properly managed but offensive if badly managed.  It could be offensive in one location but inoffensive in another.

48.An assessment of "this particular locality" has already been addressed.  The fact that it is in a remote, secluded valley is in itself a factor to be weighed in the balance when assessing reasonableness. The fact that Mr Lam relies on evidence that the columbarium might be visible if one stood on the roof of a school 600 metres away and from the upper floors of the flats in the Yat Tung estate 1,250 metres away merely serves to illustrate the weakness of the argument.

49.Factors relevant to "reasonableness" have already been dealt with under the heading of "the meaning of offensive".  I have accepted that the definition may extend beyond the purely nose, ear and eye sensations.  Looking to the wider meaning, Mr Ringo Lam affirms, in support, that:

(i) " spirits and the dead are traditionally taken as a taboo by the Chinese"; and

(ii) " [g]iven the large scale, proximity, lucrative operation mode and the possible traffic and environment effects brought to the area, resentment, psychological discomfort and annoyance can reasonably be expected from the villagers and others in the vicinity".

50.Mr Fung submits, inter alia, that:

" It is common ground that the village graves in question are part of the indigenous tradition of the area and involve only ancestral graves of the village clans. As such, they offer no meaningful comparison to the situation of the Columbarium, which involves potentially tens of thousands of sets of remains of deceased persons who are 'outsiders' in relation to the village clan. If anything, given the existence of venerated ancestral sites, the court might be particularly slow to find that villagers who take offence to the Columbarium are reacting unreasonably."

51.Before analysing the issue further it is important to remember that we are considering "reasonableness" in relation to evidence of "offensiveness" which is "sorely wanting" or "weak".

52.In concluding that such objection as there may be is not reasonable the following points may be made.

(i) The evidence of Mr Davison, already outlined, in which he refers, for comparative purposes, to 8 others columbaria being operated in Hong Kong.

(ii) From an objective stance it is difficult to understand why a local villager is willing to live near clan graves and kam taps housing exhumed human bones but not near an orderly storage of human ashes.  Drawing a distinction between the remains of ancient villagers on the one hand and the remains of outsiders, on the other hand is also, in my judgment, unreasonable.

(iii) There can be no reasonable concern about traffic issues or a deterioration of the environment.  ‌In fact, the defendant makes no criticism of the manner of operation of the columbarium.  In any event, it will in due course be subject to a Government Licence.

(iv) There is no evidence relating to the land values being affected.  In any event, all the Lots in Nim Yuen are taken up by the columbarium.  There are no more to be affected.

Conclusion

53.At the conclusion of this judgment I shall make an order in terms of the plaintiff's originating summons.  Before doing so, and for the sake of completeness the following final points should be made.

(1)  Contra proferentem rule

54.The defendant places reliance on the principle that if an ambiguity arises on the interpretation a Government lease a presumption in favour of the Government applies.  In the present case it is the application of the rule that is in issue.  It will be clear that I am not troubled by any ambiguity in this case, and therefore there is no need to consider the rule.  Lewison's The Interpretation of Contracts states:

" However, the principle only applies where there is a doubt or ambiguity. It should not be used for the purpose of creating a doubt or magnifying an ambiguity, where the circumstance of the case raise no real difficulty."

The rule, in this context, has been described as "usually a rule of, if not last, very late resort".

(2)  The plaintiff's letter dated 19 February 2014, written to the District Lands Officer

55.It reads:

" As business decision are inevitably influenced by prevailing economic climate, our Board of Directors hereby decided to re-develop the NTEH on the Lots under application for domestic and/or non-industrial purpose, and not for offensive purposes like boiling of lard, boiling of manure, columbarium and boiling of soap etc.

However, this decision does not preclude our Board of Directors and subsequent assignees, in future, from switching the aforesaid purposes to some other purposes, as long as they are permissible under the lease governing the Lots and legal under relevant statutes."

[italics added]

56.The defendant invites the court to regard this as an admission by the plaintiff, in February 2014, that "columbarium" is an "offensive purpose".  Placed in the context of this case which is strongly in the plaintiff's favour, I decline to do so.  In the present case the defendant agrees that columbaria per se are not offensive.  They therefore ask the court to give weight to a written statement which they agree is not the case.  The statement was made at the time when the plaintiff was pursuing its plan to build residential blocks and Mr Cheng Yung Hing, the plaintiff's director, places the letter in context and fully explains it is his affirmation of 18 November 2015.  In all the circumstances, it does not advance the defendant's case.

(3)  Relief against Re-entry

57.This is the plaintiff's fall back position should the court have concluded that the defendant had proved a breach of the OTC.  In view of my findings I consider it unnecessary to deal with the competing submissions on this issue.

(4)  The purpose of the OTC in relation to land value

58.Mr Fung submits that the purpose of the OTC is twofold: (i) to prevent a sense of discomfort in the neighborhood and (2) the preserve the value of the property.  No evidence has been adduced in relation to (2).

Decision

59.I now make an order in terms of paragraphs (2), (3), (6) and (8) of the originating summons.  The defendant's counterclaim is dismissed.  A costs order in the plaintiff's favour shall be on a nisi basis.

Mr Benjamin Yu, SC and Mr Justin Lam, instructed by Kao, Lee & Yip, for the plaintiff

Mr Eugene Fung, SC and Mr Abraham Chan, instructed by Department of Justice, for the defendant