Wong Pui Wan v. Wong Wing Kwong and Others
Read the full judgment text of DCCJ 118/2014 on BabelCite. This District Court judgment was delivered on 12 February 2018.
1. Both the plaintiff and the defendants belong to the same clan in Sai Kung. The plaintiff is the uncle of the defendants. By inheritance, their houses are adjacent to each other, both facing the unquestionably beautiful sea off Tai Mong Tsai Road, Sai Kung. At any rate, they should be considered the lucky ones. Yet, they are entangled in this litigation, the stake of which is no comparison to what they already have.
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DCCJ 118/2014 [2018] HKDC 160 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 118 OF 2014 --------------------------------------------
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--------------------- JUDGMENT ---------------------- INTRODUCTION 1.Both the plaintiff and the defendants belong to the same clan in Sai Kung. The plaintiff is the uncle of the defendants. By inheritance, their houses are adjacent to each other, both facing the unquestionably beautiful sea off Tai Mong Tsai Road, Sai Kung. At any rate, they should be considered the lucky ones. Yet, they are entangled in this litigation, the stake of which is no comparison to what they already have. ISSUE RESOLVED DURING THE COURSE OF THE TRIAL 2.By the plaintiff’s claim, he sought a relief, inter alia, an order against the 1st and 2nd defendants to remove the large water pipes on the wall of their modified house. 3.On the 4th day of the trial, the parties reached an agreement on this issue and as a result, an order was made by consent in the form of a Tomlin Order. SITE VISIT 4.At the request of the parties, a site visit was conducted on the 2nd day of the trial. 5.Additional photographs were taken at various locations of the site. Together with the plans indicating the routes taken at the site visit and the location of the 3 access points in issue, those photographs were produced as evidence. THE PLAINTIFF’S CASE 6.Back in the 1960s, Section B of Lot 611 in Demarcation District 216, Tai Wan, Sai Kung, New Territories (“Lot 611B”) was co-owned by the plaintiff’s father, Mr Wong Kai Fung (王啟峰) (“Wong KF”) and Mr Wong Koon Yung (王觀容) (“Wong KY”), the defendants’ father. In 1977, Wong KF acquired the Remaining Portion of Section B of Lot 611 (“Lot 611BRP”) solely by way of division of property. Wong KF passed away in or about 1978. The plaintiff became the owner of Lot 611BRP by an Assent in or about 1998. 7.The 1st and 2nd defendants are the registered owners of Lot 856 in Demarcation District 216, Tai Wan, Sai Kung, New Territories (formerly Sub-section 2 of Section B of Lot 610, hereinafter “Lot 856”), the address of which is known as No 23 Tai Wan Village, Tai Mong Tsai Road, Sai Kung, New Territories. 8.A small hut (“the disputed hut”) was built on Lot 611BRP in or about 1960. It was rented to Mr Chin Chun Shing (“Chin”) by Wong KF on a monthly basis in which Chin ran the business of soaps production until the end of the 1970s. 9.On or about 6 December, 2013, the 1st and 2nd defendants or their agents or sub-contractors unlawfully entered the hut and placed unknown items therein. 10.The plaintiff denied that the defendants have any right of way or easement at Point 1, Point 2 and Point 3 as identified in Plan 2 attached to the re-re-amended defence and counterclaim as alleged. Point 1 was blocked by the owner of the Remaining Portion of Lot 614 (“Lot 614RP”). The gate at Point 2 was for the purpose of preventing dogs from entering the plaintiff’s house and land. It was not secured by lock. Point 3 was not blocked. Anyone including the defendants could pass through freely. THE DEFENDANT’S CASE 11.The defendants said that their parents had exclusively occupied the portion of Lot 611BRP that was at the same ground level as Lot 856 as identified in plan 1 annexed to the re-re-amended defence and counterclaim (“the disputed land”) since the early 1960s. The disputed hut was built by Wong KY, their father, in the early 1960s. Between the 1960s and 1990, it was used by Wong KY as a cow shed and a chicken shed respectively. Between the 1980s and the 2000s, the defendants’ mother used the disputed land for cutting sugarcanes, drying pickled vegetables and hanging clothes. They were the successive possessors thereof of their parents. Therefore, the defendants said “any title or interest the plaintiff or the plaintiff’s predecessor-in-title has in the disputed land has been extinguished since in or about 1980 by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347)”. 12.Wong KY acquired Sub-Section 1 of Section B of Lot 611 in Demarcation District 216, Sai Kung, New Territories (“D2’s land”) in or about 1977 by way of a Division of Property. After his passing, the 1st and 2nd defendants and their brother Mr Wong Wing Ching (“Wong WC”) became the owner of the D2’s land in 1994. On 22 May 2011, the 2nd defendant purchased D2’s land from his brothers. The defendants said their family used D2’s land for the purposes of growing sugarcane and beekeeping. Prior to 2009 or 2010, they could have access of D2’s land through Point 1, Point 2 and Point 3. The plaintiff had since 2009 or 2010 blocked the right of way at Point 1. And since August 2012 also blocked the right of way at Point 2 and Point 3 by fence and/or gate which were built in late 2011. ISSUES 13.Counsel for both parties have formulated a statement of issues which consists of 13 pages (including the drainage issue which does not concern this trial). In my view, however, the following broad issues are for the determination by this trial:-
LEGAL PRINCIPLES ON ADVERSE POSSESSION 14.To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E. 15.Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-
16.Section 8(1) of LO provides:-
17.Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33. 18.Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-
19.Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-
20.Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-
LEGAL PRINCIPLES ON EASEMENTS 21.Easements may be acquired by express grant, implied grant or prescription. 22.Express grant needs no elaboration. 23.Apart from the rights that are expressly granted, there are also implied rights which are reasonably necessary for the enjoyment of the rights. The implied rights are described as ancillary rights. This principle is grounded on 2 legal bases: (i) the right under the grant will include all those easements which are necessary to the reasonable enjoyment of the property granted (Wheeldon v Burrows (1879) 12 Ch D 31 at 49); and (ii) the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment (per Parker J in Jones v Pritchard [1908] 1 Ch 630 at 638): see Chatham Industries Ltd v The Incorporated Owners of Gold King Industrial Building [2011] 3 HKLRD 140 at 147. 24.Under English rule, there are 3 kinds of prescription: (i) common law prescription which is based on user since time immemorial; (ii) prescription under the Prescription Act 1832; and (iii) prescription based on the fiction of lost modern grant. In the Hong Kong context, lost modern grant is the only way whereby right of way and other easements may be acquired by prescription: see China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at 360C-E. 25.In the groundbreaking speech of Lord Millett, NPJ in China Field (supra), His Lordship examined the 2 common law rules which prevent the application of the doctrine of lost modern grant. He held that the fee simple rule is “based on authority rather than principle, and the line of authority is deeply flawed. Statements of the rule in the leading cases are orbiter and based on the false premise that lost modern grant is merely a form of common law prescription”. Therefore, it should not be adopted in Hong Kong[1]. As a corollary, once the fee simple rule is abandoned, the common landlord rule has no logical foundation because “it is based on the premise that by assenting to his tenant’s possession of the dominant tenement the landlord has consented to the tenant’s user of rights over the servient tenement, so that the user is not “as of right”. The premise only has be stated to be seen to be wrong”[2]. As a result, a lessee of adjoining land would be able to acquire a right of way or other easements by long user against it. Such user must be as of right and must have continued without interruption for at least 20 years[3]. WHETHER THE PARENTS OF THE DEFENDANTS AND THE DEFENDANTS HAD ACQUIRED POSSESSION OF THE DISPUTED LAND SINCE THE EARLY 1960S? 26.It is not in dispute that prior to the rebuilding of No 23 Tai Wan Village, Nos 22, 23 and 24 of Tai Wan Village shared a common roof. No 23 was situated on Lot 856, was occupied by the defendants’ family. No 24 was situated on the Remaining Portion of Section B of Lot 610 (“Lot 610BRP”), was occupied by the plaintiff’s family. No 23 and No 24 were adjacent to each other, both facing the sea at the south-easterly direction. In between Lot 856 and the disputed land is a small piece of government land (“government land”). Geographically, both the government land and the disputed land are on the south-eastern side of Lot 856. BETWEEN 1960 AND 1977 27.It is necessary to examine the evolution of ownership of Section B of Lot 610 (“Lot 610B”) and Lot 611B. 28.By way of a Succession to Property dated 29 February 1960, Wong KF and Wong KY as successors became the owners of, among various pieces of land in Sai Kung, Lot 610B and Lot 611B. 29.By a Division of Property dated 10 March 1977, Wong KF became the owner of Lot 610BRP and Lot 611BRP whereas Wong KY became the owner of Sub-section 2 of Section B of Lot 610 (“Lot 610B2”) and D2’s land. 30.Wong KF passed away on 1 January 1978. A letter of administration was granted to the plaintiff as administrator on 30 November 1994. By an assent dated 15 June 1998, the plaintiff became the owner of Lot 610BRP and Lot 611BRP. 31.Wong KY passed away on 20 August 1990. By an assent dated 9 March 1994, Wong WC, the 1st and 2nd defendants became the owners of Lot 610B2 and D2’s land as tenants-in-common in equal shares. By a condition of exchange dated 16 December 2003, the Government granted Lot 856 to Wong WC, the 1st and 2nd defendants as tenants-in-common in equal shares in exchange of Lot 610B2. By an assignment dated 22 May 2011, the 1st defendant held 1/3 and the 2nd defendant held 2/3 interests of Lot 856 as tenants-in-common. By another assignment dated 22 May 2011, the 2nd defendant became the sole owner of D2’s land. 32.It can be seen that between February 1960 and March 1977, Wong KY and Wong KF as successors, were co-owners of Lot 611B as tenants-in-common in equal shares. As such, each of them had the right of possession to every part of Lot 611B by reason of unity of possession: see Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at 290E-F. 33.During this period of time, therefore, possession of Lot 611B by either of them cannot be adverse to the other co-owner because the possession was as of right rather than as of wrong: see Wong Tak Yue v Kung Kwok Wai David (1997-1998) 1 HKCFAR 55 at 68G-H, 69F-G. 34.That being the case, even if it was Wong KY who built and had the use of the disputed hut during this period of time, his act as such cannot be regarded as adverse to Wong KF. I am bound to reject the defendants’ claim that their parents had adversely possessed the disputed land (which forms part of Lot 611B) since the 1960s. AFTER MARCH 1977 The disputed hut 35.I shall first consider the question of possession relating to the disputed hut back in the 1960s. 36.The defendants said in the early 1960s, Wong KY built the disputed hut which was in front of No 23. They say their parents did so without seeking the permission of the plaintiff or Wong KF. Neither did they raise any objection thereto. The disputed hut was all along maintained by the defendants’ family. In late 1960s, the disputed hut was used as cattle shed. Starting from the 1970s, the defendants’ family ceased farming and switched to work in factories. Wong KY reared chicken in the disputed hut for self-consumption and sale for a small profit. The 1st defendant moved to work in England in 1975. The 2nd defendant joined the Fire Services Department in 1976. Wong KY and the 3rd defendant carried on rearing chicken. The disputed hut was assigned survey No TW/76/63 by the Squatter Control Office in 1976. 37.When the 1st defendant got married in 1978, a banquet was held in front of the disputed hut and at No 23. The hut of Chin (“Lot 611A hut”) was by the side of the disputed hut which was situated on Section A of Lot 611 (“Lot 611A”). It was used by Chin to operate a soap business. Lot 611A hut was enlarged and renovated with bricks in early 1970s. It was demolished between 1990 and 1991 when Lot 611A was redeveloped. 38.In the 1980s, the defendants’ mother had the disputed hut’s tin roof replaced with asbestos tiles and brick walls were erected therefor. Between 1980 and 2002, she used the land by the side of the disputed hut for the purposes of washing vegetables, cutting sugarcanes, making pickles, drying clothes and the placing of farming tools, table and chairs. The disputed hut was used for the storage of pickles and farming tools. She stopped doing so in about 2002 or 2004 after she hurt her leg from a fall. After that, the 3rd defendant used the disputed hut for the storage of used papers and soft drinks cans. 39.Wong KY and the 3rd defendant stopped rearing chicken in about 1986 or 1987. In 1993, the Environmental Protection Department inspected Lot 611B and asked the 3rd defendant to sign on a survey report confirming that it would not be used for rearing chicken. 40.The plaintiff has told a different story. 41.The plaintiff said the disputed hut was built by Chin, who was a friend of Wong KF, in or around 1960 for the purpose of producing soap. Chin paid a small monthly rent to Wong KF. Another hut, the Lot 611A hut, was built on Lot 611A. It was divided into 2 sections, one being used by Chin to make soap, the other to raise pigeons. 42.In the end of the 1970s, due to the decline of the soap business, Chin returned the disputed hut to the plaintiff’s mother and moved away. Thereafter, the plaintiff’s mother used the disputed land until 1993. 43.Mr Wong Wai Kin (“Wong WK”), is the nephew of the plaintiff. He lives in No 34B of Tai Wan Village, which is about 50 metres from Lot 611B. He was born in 1957. He said when he was a child, he always played on Lot 611B with other children. His mother told him that in the early 1960s, she helped Chin to build the disputed hut and the Lot 611A hut. The disputed hut was used by Chin to make soap. His grandmother (ie the plaintiff’s mother) always told him that the land he used to play with other children and the hut belonged to the plaintiff and therefore he should be respectful to the plaintiff’s property. His family used to pass through the disputed land to go to the bus station. 44.Mr Wong Kwok Man (“Wong KM”) is the cousin of the plaintiff. He was born in 1957. His house is about 300 metres from Lot 611BRP. He said the disputed hut was used by Chin to make soap. The son of Chin and himself studied at the same primary school. He used to play around on Lot 611BRP with Chin’s son and other children and saw Chin making soap inside the disputed hut. Chin also built the Lot 611A hut for raising pigeons. He emigrated to the United Kingdom in 1971 and came back to Hong Kong in 1977. 45.In the early 1990s, he and Wong Wing Yin (“Wong WY”) purchased Ground Floor of Section A of Lot 610 (“Lot 610A”) which included Lot 611A as the front yard. At the time of the purchase, the Lot 611A hut was still there. As it was decaying and of no use, they decided to remove it. The defendants’ mother then represented to Wong WY that the hut was built by the 2nd defendant and asked for $50,000 compensation. He knew that it was built by Chin. However, Wong WY still paid her a red packet of $5,000 in order to pacify her. 46.Wong WY is the nephew of the plaintiff. His house is about 100 metres from Lot 611BRP. As a child, he always played on Lot 611BRP with other children of the village. He remembered that the disputed hut was used by Chin to make soap from about 1960 to the end of the 1970s. Chin also built the Lot 611A hut for raising pigeons. The Chin’s family moved out of Tai Wan Village in the late 1970s. Thereafter, the plaintiff’s mother used the disputed hut for storage and the Lot 611A hut was left vacant. 47.In the early 1990s, he and Wong KM purchased Ground Floor of Lot 610A which included Lot 611A as the front yard. At the time of the purchase, the Lot 611A hut was still there. As it was decaying and of no use, they decided to remove it. The defendants’ mother then represented to him that the hut was built by the 2nd defendant and asked for $50,000 compensation. He knew that it was built by Chin. However, he still paid her a red packet of $5,000 in order to pacify her. 48.Josepha June Chih Wong (“Wong J”) is the eldest daughter of the plaintiff. She was born in the United Kingdom on 30 August 1968. Between 1969 and 1975, she was taken back to Hong Kong to be under the care of her grandparents and aunt. She was residing at her father’s house at Lot 610B. She remembered that the disputed hut was built on Lot 611B. She often visited Chin in the disputed hut. Her grandmother told her that Chin rented the disputed hut from her grandfather to run a soap business. She always played in the vicinity of Lot 611B. Between 1985 and 1987, she returned to the village during summer holidays. During her stay, she never saw the defendants’ family entering or using the disputed hut. 49.Ivy June Tai Wong (“Wong I”) is the second daughter of the plaintiff. She was born in the United Kingdom on 13 May 1971. Like Wong J, between 1972 and 1975, she was taken back to Hong Kong to live with her grandparents, aunt and sister. Her memory of the disputed hut and Lot 611B is the same as Wong J. Between August 1992 and April 1993, she pursued her study in Hong Kong. During the period, she visited her grandmother weekly or fortnightly. She never saw the defendants’ family entering or using the disputed hut. 50.For obvious reason, the parties are competing on the question of who built and had the use of the disputed hut. 51.Back in the 1960s, both Wong KF and Wong KY were the co-owners of Lot 611B. Lot 611B was subsequently sub-divided into Lot 611BRP and D2’s land in March 1977. As such, both of them were entitled to build a hut on Lot 611B for their own use. Common sense dictates that the hut so built would be situated as close to their own house as possible. 52.Both experts agreed that the aerial photographs show that in 1963, the following huts can be observed:-
53.AP 1963 shows that the Lot 611B hut was in front of the house on Lot 610B, which has subsequently become Lot 610BRP, ie No 24 of Tai Wan Village. The disputed hut was in front of the house on Lot 610B, which has subsequently become Lot 610B2 and then Lot 856, ie No 23 of Tai Wan Village. Hence, No 23 and No 24 each had a hut in front of it. And the Lot 611A hut was in front of No 22. As such, it is highly likely that each hut was built by the owners or occupiers for the time being of No 23 and No 24 separately. It is unlikely that both huts were built by either the owner or occupier of No 23 or No 24 solely. Furthermore, it is more probable than not that the Lot 611B hut was built by the then owner or occupier of No 24 and the disputed hut was built by the then owner or occupier of No 23. 54.In relation to the usage of the disputed hut, the defendants said that it was used as cattle shed in the 1960s, and as chicken shed from the 1970s up to 1986 or 1987. On the other hand, the plaintiff said it was used by Chin to make soap in the 1960s and the 1970s. Thereafter, it was used by the plaintiff’s mother for storage up to 1993. None of the plaintiff’s witnesses has mentioned that the disputed hut had ever been used to rear chicken. 55.According to the squatter structures survey record of the Lands Department dated 11 April 1979, the disputed hut, which was assigned survey number TW/76/63, was recorded to be used as chicken shed as at that date. The Environmental Protection Department conducted a livestock freezing survey on 22 October 1987. According to its record, the disputed hut was no longer used as chicken shed and was vacant as at that date. 56.It seems clear that the records of the 2 government departments lend support to the case of the defendants, and contradicted that of the plaintiff. 57.It is common ground that Chin had used a hut to make soap. Both parties said that Chin was a tenant of the hut that he rented, though they are referring to different huts. The defendants said that Chin used Lot 611A hut for his soap production whereas the plaintiff said he used the disputed hut as well as Lot 611A hut for that purpose. 58.As a matter of fact, Lot 611B (where the disputed hut was situated) and Lot 611A (where the Lot 611A hut was situated) belonged to different owners. Lot 611A was not among the pieces of land inherited by Wong KF and Wong KY by way of succession. 59.To my mind, unless there was compelling reason to do so, it is out of the ordinary for Chin to rent the 2 huts standing next to each other but belonging to different owners at the same time. The plaintiff has given no reason for Chin’s act as he suggested. I am not inclined to believe that Chin had rented the 2 huts at the same time. 60.It seems to me that the 2nd defendant had an accurate memory of the changes that had taken place to the 2 huts. He said Chin had renovated and enlarged the Lot 611A hut in the early 1970s. In the 1980s, his mother had replaced the leaky tin roof with asbestos tiles roof. 61.Both experts agreed that Lot 611A hut had a new roof in 1972. By observing the aerial photograph, it is of course not possible to discern clearly what sort of works had been done. But replacement of roof is indicative that the Lot 611A hut had undergone renovation. Both experts also agreed that in 1985, a new roof was put on the disputed hut. This is in line with what the 2nd defendant had said although he was unable to say in which year that it was done. 62.On the other hand, none of the witnesses for the plaintiff had mentioned that works of that sort had been done to the 2 huts. Replacing the roof of the disputed hut must be something that should have caught the attention of those living in the vicinity and those who used to walk past or play around it. It must not have escaped the notice of the plaintiff because it was situated on his own land after the division of property in 1977 and according to him, it was used by his mother in the 1980s. Replacing the roof is something which can only be done by those in control of the disputed hut. If it was done by the plaintiff or his mother, it must not have escaped the attention of the plaintiff and he should have said so in his evidence. I do not believe that the disputed hut was under the control of the plaintiff or his mother. I believe that the roof of the disputed hut was replaced by the defendants’ mother out of necessity because it was under the control of and used by the defendants’ family at that time. 63.In my judgment, it is highly likely that the disputed hut was built, used and maintained by the defendants’ family. Chin was in fact renting the Lot 611A hut for his soap business. 64.As the 2 huts were standing next to each other, it is probable that the children in the village, including the plaintiff’s daughters, Wong WK, Wong KM and Wong WY, have mixed up Lot 611A hut with the disputed hut. 65.On 25 October 1993, the Environmental Protection Department (“EPD”) conducted a pre-operational survey at Tai Wan Village prior to the implementation of the Livestock Waste Control Scheme. The investigator gathered information from the 3rd defendant as the operator or owner of the disputed hut. The 3rd defendant, who had signed on the survey form of EPD (E13-14 of the subpoena bundle), informed the investigator that the disputed hut had ceased to be a chicken shed for a few years or 2 years. What she said is consistent with information recorded in the squatter structures survey form of the Lands Department dated 11 April 1979 (E24 of the subpoena bundle) that the disputed hut was used as chicken shed and the surveyed livestock structures record dated 22 October 1987 (E27 of the subpoena bundle) that no livestock was seen in the disputed hut as at that date. In my opinion, the information volunteered by the 3rd defendant has the following meanings. Firstly, it shows that the disputed hut was previously used by her or her family to rear chicken. Otherwise, she could simply say that she had nothing to do with the disputed hut. Secondly, it also shows that she was having the control of the disputed hut at the time of the survey. A photograph taken by the investigator (E8 of the subpoena bundle) on that day shows that the door of the disputed hut was closed. The investigator recorded in the survey form that odds and ends were placed inside the disputed hut. Those odds and ends must belong to her or else she did not have to respond to the questions of the investigator. She could not have put things in the disputed hut if it was not under her control. In a field visit conducted by EPD on 2 July 1996, the 3rd defendant was also approached to provide information in relation to the use of the disputed hut (see E22 of the subpoena bundle). 66.In my view, the defendants were in physical control of the disputed hut all the time up to the rebuilding of the 2 houses on Lot 856. 67.Originally, Lot 611BRP was at about the same level as Lot 610B2. When the Government granted Lot 856 to the 1st and 2nd defendants and Wong WC in exchange of Lot 610B2 in December 2003, they were allowed to rebuild 2 houses thereon. As a result of the exchange, a piece of government land was created between Lot 856 and Lot 611BRP. The new houses were to be built on an elevated platform. When the site formation works of the new houses were done, the 1st and 2nd defendants also raised the ground level of the government land to the same level as that of the new houses (“the elevated government land”). When the new houses were built in 2013, the 1st and 2nd defendants also constructed a stairway on the elevated government land which led to entrance of the disputed hut (see pp366, 370 of bundle 2). As a result, the disputed hut can only be accessed from the elevated government land through the stairway. 68.To my mind, this is no clearer act of the 1st and 2nd defendants exerting control on the disputed hut, to the exclusion of others including the plaintiff as the paper owner. 69.In the light of the above, I am satisfied that the parents of the defendants and the defendants had had physical control and possession of the disputed hut since March 1977, which has lasted for more than 20 years. THE OPEN SPACE OF THE DSIPTUED LAND 70.The open space of the disputed land (“disputed open space”) warrants a separate consideration. 71.The defendants said that between 1980 and 2002, the defendants’ mother used the disputed open space for the purposes of washing vegetables, cutting sugarcanes, making pickles, drying clothes and the placing of farming tools, table and chairs. 72.Mr Andrew Mak, who appeared for the defendants with Miss Carol Wong, placed emphasis on the different plants including papaya tree, taro, paederia scandens or Chinese feverine, cycads and four seasons tangerine that were planted in the disputed open space by the 2nd defendant. The 2nd defendant claimed that the growing of those plants required a lot of nurture including watering, fertilizing and pruning. 73.There is no serious dispute that the disputed open space was used by the defendants’ mother as such because the plaintiff was residing in England between 1960 and 1997. And the 2 daughters of the plaintiff were only a few years old when they lived in the village in the early 1970s. 74.However, I am not persuaded that the use of the disputed open space by the defendants’ mother as alleged amounted to factual possession. 75.The Court of Appeal in Gotland Enterprises Ltd v Kwok Chi Yau and others, CACV 260/2014, 19/1/2016, unreported, had this to say:-
76.What the defendants’ mother did was merely making use of the disputed open space for her own daily routine. There is no evidence that she had done anything to exclude any other people from it. 77.It cannot be disputed that there was nothing set up by the defendants’ family to prevent people in the village to stay in or walk through the disputed open space. Thus, children in the village could play thereon and other villagers could use it as a passageway between their home and Tai Mong Tsai Road. Wong WK, Wong KM, Wong WY and the 2 daughters of the plaintiff all said that they used to play with other children on the disputed open space when they were young. They were not challenged on this matter in cross-examination. In cross-examination, Wong WY said he used to walk past Nos 22, 23 and 24 (of Tai Wan Village) in order to go to the bus station. Under cross-examination, the 2nd defendant also confirmed that the villagers could use the open space in front of Nos 22, 23 and 24 as a passageway. The children in the village could also play there. There is no suggestion from the defendants that this situation had changed at any period of time. The 2nd defendant also agreed in cross-examination that prior to 2012, the defendants’ family had not enclosed the disputed open space in any form. 78.I am not satisfied that the defendants have established exclusive possession of the disputed open space. 79.In cross-examination, the 2nd defendant in referring to a photograph at C100 of the core bundle, described the plants that were grown in the disputed open space. He agreed that the papaya tree was not grown on the disputed open space. He also agreed that those plants were grown there unintentionally but added that they required nurturing by his family. 80.I must say that those plants were grown in a disorderly manner. It does not seem that they were looked after at all. I do not believe that the defendants’ family had put any effort to maintain them. They were only allowed to be grown randomly. In this respect, I reject the claim of the 2nd defendant that the defendants’ family had maintained or nurtured the plants in the disputed open space. 81.In any event, even the growing of lychee trees, which involved the picking of fruits, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, cannot constitute continuous and exclusive possession or control of the land: see Wai Wah Traders Ltd v Wong Yim trading as creative Advertising Design Company and others, HCMP965/2000, 8/12/2011, unreported. 82.That being the case, I do not accept that the growing of random plants in the disputed open space can be regarded as gaining of physical possession or control thereof by the defendants. 83.Finally, Mr Mak made submission to the effect that the building of stone kerb by the plaintiff delineating No 23 and No 24 is an unequivocal recognition of the delineation between the land of No 24 and the land of No 23. Therefore, it was recognized by the plaintiff that the disputed land which located on the side of No 23 was not part of the plaintiff’s land. 84.From the aerial photograph dated 23 December 1964, it can be seen that a kerb line existed between No 23 and No 24. Both experts agreed that it was rebuilt to become a low wall in 1973. The plaintiff said his wife did so for the safety of their daughters. Be it the kerb line or the low wall, they were built or rebuilt prior to the division of property between Wong KF and Wong KY. With this background, I do not think that they can be regarded as a recognition by the plaintiff that the disputed land did not belong to him. After all, the burden is on the defendants as squatters to prove factual possession, not on the plaintiff as the paper owner to disprove the same. WHETHER THE DEFENDANTS WERE IN SUCCESSIVE POSSESSION OF THE DISPUTED LAND? 85.In the light of my findings on the above issue, this issue is only relevant to the disputed hut. 86.The Privy Council in the last appeal from Hong Kong, the case of Sze To Chun Keung v Kung Kwok Wai David [1997] HKLRD 885 at 888I-J, held that for the purpose of the LO, all that matters is that there should have been continuous adverse possession for the period of limitation. 87.Bokhary PJ in Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70 expressed the opinion that there is no difficulty in aggregating the period of possession by the squatter and the period of possession by him through his tenant. The legal position as stated by Brooking J in the Australian case of Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 was adopted that “where the adverse possession has been continuous, it is possible to tack the possession of one intruder on to that of another although there has been no assignment of possessory rights.” 88.Therefore, provided that the possession by the defendant’s parents and the defendants were continuous, the periods of their respective possession can be added together. 89.I accept that the disputed hut was built by the defendants’ parents in the 1960s. It was used by the defendants’ family as cattle shed in the 1960s; and as chicken shed in the 1970s up to the middle of the 1980s; and thereafter as a storage place by the defendants’ mother up to 2002 or 2004. After the defendants’ mother hurt her leg in 2002 or 2004, it was used as a storage place by the 3rd defendant. 90.I am satisfied that the defendants’ parents and the 3rd defendant were in continuous and successive possession of the disputed hut from the 1960s up to the rebuilding of Lot 856 in 2013. WHETHER THEY HAVE THE REQUISITE INTENTION TO POSSESS? 91.In view of the long and continuous use, occupation and control of the disputed hut by the defendants’ parents and the 3rd defendant, they clearly have demonstrated the requisite intention to possess the disputed hut to the exclusion of the world at large including the plaintiff as the paper owner. My view is fortified by the fact that during the time when Lot 856 was rebuilt, the 1st and 2nd defendants constructed a stairway leading from the elevated government land to the disputed hut, making it only accessible from the 2 houses on Lot 856. This was done without first consulting the plaintiff. 92.Nevertheless, no similar stairway was constructed in relation to the disputed open space. Hence, the disputed open space was no longer accessible from the 2 houses on Lot 856 but accessible from the open space in front of No 24, ie the house of the plaintiff: see the upper photograph in C108 of the core bundle. To my mind, this is no clearer indication that the defendants had no intention to possess the disputed open space. WHETHER THE DEFENDANTS HAVE A RIGHT OF WAY OR EASEMENT AT POINT 1, POINT 2 AND POINT 3? Wheeldon v Burrows 93.The defendants said that prior to 2009 or 2010, they “always have easement rights and/or rights of way to egress and ingress” from Point 1, Point 2 and Point 3 as marked on Plan 2 attached to the re-re-amended defence and counterclaim to D2’s land. Since the construction of a house on Lot 612 (“Lot 612 house”) by the plaintiff in or about 2009 or 2010, Point 1 was blocked. After a letter of compliance was issued in or about August 2012, the plaintiff unlawfully possessed a piece of government land adjoining Lot 612 house. The right of way leading to Point 2 and Point 3 were also blocked by fence, gate and/or hoarding constructed by the plaintiff. 94.At paragraph 30.7 of the re-re-amended defence and counterclaim, the defendants pleaded that the easements and/or rights of way that they are entitled are:-
95.It seems that the defendants are basing their claim of easement or right of way on the rule in Wheeldon v Burrows (1879) 12 Ch D 31. 96.In my view, the reliance on the rule in Wheeldon v Burrows (supra) is problematic. 97.In Wheeldon v Burrows (supra), a workshop and an adjacent piece of land belonged to the same owner. The workshop had windows overlooking and receiving light from the adjacent land. The adjacent land was first sold to the husband of the plaintiff. The workshop was later sold to the defendant. The plaintiff, as the widow and devisee, erected boardings near the edge of her own land facing the windows of the defendant’s workshop, which was knocked down by the defendant for the purpose of asserting his right to an easement of light, resulting in an action for trespass. The defendant pleaded that the windows were apparent continuous easements necessary to the convenient enjoyment of the workshop and that such windows or lights were expressly or impliedly reserved to the grantor and were then vested in the defendant. Thesiger, LJ, after reviewing the authorities, had this to say at p49:-
98.Therefore, for the rule to apply, there must be a grant of a part of a tenement by the owner of that tenement to the grantee whereupon the grantee will enjoy all those easements which are necessary to the reasonable enjoyment of the property so granted and have been and are at the time of the grant enjoyed during the unity of ownership for the benefit of the part granted. 99.Here, D2’s land was not granted to D2 by the plaintiff. It was carved out from Lot 611B in 1977 when the division of land took place between Wong KF and Wong KY. More importantly, the defendants are not claiming an easement over Lot 611BRP but the piece of government land adjoining D2’s land because Point 2 and Point 3 are both situated thereon. Also, it is the pleaded case of the defendants that the alleged easement was enjoyed at the time of the grant of the Government Lease. Their claim for easement, if at all, should theoretically be directed at the government instead of the plaintiff. 100.Finally, the defendants pleaded necessity to use Point 1, Point 2 and Point 3. Way of necessity is one of the exceptions to the 2nd proposition of law in Wheeldon v Burrows (supra) that if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. The rule is founded on the principle that a man cannot derogate from his own grant[4]. Such implied right is in favour of the grantor rather than the grantee. It seems that the 2nd defendant is regarding himself as the grantee of D2’s land. 101.Point 1 is situated on the entrance outside the lane of Lot 612. In other words, it is situated outside the boundary of Lot 612. And Lot 612 is not connected to D2’s land one way or the other. That being so, there is no basis at all for the 2nd defendant to claim easement against the plaintiff, let alone under the rule in Wheeldon v Burrows (Supra). Chaplin 102.In response to the opening submission of Mr Erik Shum, counsel for the plaintiff, Mr Mak informed this court that the defendants were claiming private and public right of way via Point 1, Point 2 and Point 3 and he would rely on the case of WH Chaplin & Co Ltd v Mayor of the City of Westminster (1901) 2 Ch D 329. 103.Before going into the legal principle involved in Chaplin (supra), Mr Mak made submission on 2 ancillary points in reply to Mr Shum’s submission. 104.Firstly, Mr Mak submitted that the presence of intervening land (ie government land) in between Point 3 and Point 1 does not prevent the creation of a private right of way. The cases of Todrick v Western National Omnibus Co Ltd (1934) 1 Ch D 561; Pugh v Savage (1970) 2 QB 373; Robinson Webster (Holdings) Ltd v Agombar [2002] 1 P & CR 20; Propertypoint Ltd v Kirri [2009] EWHC 2958; and Gale on Easements 19th Ed 1-30 were referred to. 105.In Todrick (supra), the trial judge held that a valid easement had not been granted because the right of way as granted did not lead directly to the dominant tenement. On appeal, the Court of Appeal held that it was sufficient that a right of way should be beneficial in respect of the ownership of the land to which it purported to be made appurtenant, and there need be no physical contiguity between the way and the dominant tenement. The principle was applied in the subsequent cases cited by Mr Mak and adopted by learned author of Gale (supra). 106.Secondly, Mr Mak submitted that it is not necessary to identify precisely the route by which the right of way is claimed. The cases of Wimbledon & Putney Commons Conservators v Dixon (1875) 1 Ch D 362 and Joseph McNulty v Donovan Ross [2015] NIQB 42 were referred to. 107.In Wimbledon (supra), it was held that if there is the terminus a quo and the terminus ad quem, the mere fact that the owner does not go precisely in the same track for the purpose of going from one place to the other, would not enable the owner of the servient tenement to dispute the right of way[5]. The principle was applied in McNulty (supra). 108.I see no reason to depart from the 2 propositions of law. 109.Turning to Chaplin (supra), Mr Mak submitted that it is the authority that an owner has a private right at the point of access to any abutting government land such as highway. The Chaplin private right of the 2nd defendant is a separate right from his right for a public right of way. D2’s land is abutting the government land. The plaintiff has blocked their access into the government land. Even in a cause of action of public nuisance, the owner can claim any damage over and above to the damage and loss suffered by the public. Chaplin (supra) is applicable for any public right of way, as much as highway, on the government land. The government land in the present case is such a public right of way, that it does not exclude members of public from using. 110.It is necessary to understand the principle that can be derived from Chaplin (supra). 111.In this case, the plaintiffs, who ran the business of wholesaling wine and spirit, were the owner of premises abutting on a street. For the purpose of lighting the street, the defendant proposed to erect a lamp-post on the pavement on the west side of the street near the kerb. The plaintiffs were in the habit of loading on and unloading from vans standing in the roadway on the street cases of wine which were carried and heavy barrels of wine which were rolled to and from its cellars, and empties which were carried to their offices. They frequently had three vans standing there: the center one employed in loading or unloading barrels, the northern one used for cases, and the southern one for empties. They said this arrangement of the vans was necessitated by the character of the slope of the street and that the lamp-post would be at the exact spot where barrels had to be unloaded. It would obstruct their business. The plaintiffs therefore took out an action for an injunction to restrain the defendant from erecting any structure or post on the west side of the street in such a position as to cause obstruction to the plaintiffs as occupier of adjoining premises. 112.Buckley J held that a person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway. If any obstruction be placed in his doorway or gateway, that obstruction would be an interference with a private right. But immediately that he has stepped on to the highway, and is using the highway, what he was using was not a private right but a public right. Therefore, the lamp-post which was set up near to the plaintiffs’ premises was an obstruction to the highway adjoining these premises, but was no obstruction to their private right of stepping from the highway on to their own premises. The plaintiff’s action was therefore dismissed. 113.Hence, His Lordship drew a distinction between the right of the owner to step from his premises on to the highway, which is a private right; and the right to use the highway, which is a public right. So much was the principle laid down by His Lordship. 114.I do not think Chaplin (supra) is of assistance to the defendants. At most, it only identifies the right of the 2nd defendant as owner of D2’s land to step from D2’s land on to the government land abutting to it is a private right. It does not create a right of way in favour of the 2nd defendant. In the Hong Kong context, easement can only be created by express grant, implied grant and the doctrine of lost modern grant: see China Field (supra). It cannot be argued that Chaplin (supra) is the authority on easement. 115.Mr Mak made it a point that the government land abutting D2’s land is “a public right of way”. Mr Mak referred to Gulliksen v Pembrokeshire County Council [2003] QB 123 and submitted that at common law, highway is a way over which all members of the public have the right to pass and repass without hindrance. Members of the public would not be excluded from government land. The government land abutting to D2’s land is therefore a public right of way because members of the public are not excluded from using it. 116.Whilst I accept that so long that government land is not fenced off, members of the public are free to walk across it, it does not follow that government land is a highway or “public right of way” as Mr Mak put it. In my opinion, access to unfenced government land by members of the public is not as of right but with the implied consent of the government. The government may restrict access to government land for whatever reason at any time. 117.Even assuming for the moment that the 2nd defendant has the right as a member of the public to walk across the government land abutting D2’s land, he is not saying that he has a right of way over the land between Point 2 and Point 1. To walk from Point 1 to Point 2, there are 2 possible routes:-
118.It is not the pleaded case of the 2nd defendant that he has acquired a right of way on the land along either of the 2 routes by express grant, implied grant or prescription. He is only alleging that access to D2’s land through Point 1, Point 2 and Point 3 was blocked by the plaintiff. The principle in Tordick (supra) clearly would not come in aid of him. PRESCRIPTION 119.On a plain reading of the defendants’ re-re-amended defence and counterclaim, it can fairly be said that the defendants are relying on the rule in Wheeldon v Burrows (supra) in asserting their claim of right of way. That is the reason why Mr Shum for the plaintiff did not address on the law of prescription in his opening submission. 120.However, in his opening submission at paragraph 75, Mr Mak for the defendants mentioned in passing that “there may be an easement right by prescription”. This is one of the reasons why Mr Shum has to make a supplemental opening submission in response. 121.The pleaded case of the defendants which can remotely be said as relating to the issue of prescription appeared at paragraph 30.3:-
122.While I understand that counsel should explore all avenues that could be argued in favour of his or her client, he or she must do so openly so that the other side would be in a position to respond as a matter of fairness. 123.To establish prescription by the doctrine of lost modern grant, the claimant needs to prove continuous and uninterrupted user for at least 20 years. The issue is fact sensitive. For this reason, if the claimant is relying on the doctrine, he must explicitly say so in the pleadings so that the respondent may be able to respond at the pleadings stage, in the preparation of evidence and at the trial. After all, this is not a trial by ambush. 124.In the present case, it is quite obvious that the plaintiff was not alerted of the issue of prescription because nothing was said about it in the re-re-re amended reply and defence to counterclaim. Nor did the plaintiff lead any factual evidence on the issue. 125.This is plainly unfair to the plaintiff. In the interest of justice, I hold that the issue of prescription was not raised by the defendants in the pleadings. The defendants are bound by their own pleadings. They are not allowed to rely on it at this trial. 126.In any event, I take the view that the reliance on prescription should fail because Point 2 and Point 3 are situated on government land. The proper defendant should be the government. And the defendants have not specified the land involved between Point 1 and Point 2, which made it impossible for them to prove the long user against the proper owner or owners. 127.For the above reasons, the defendants’ claim of easement or right of way must fail. WHETHER THE PLAITNIFF HAD BLOCKED THE SAID RIGH OF WAY AT POINT 1, POINT 2 AND POINT 3? 128.In view of my holdings above, this issue does not require consideration. 129.In any event, the plaintiff confirmed that the hoarding at Point 3 and the gate at Point 2 were erected by him. It cannot be disputed that the plaintiff had built a boundary wall for Lot 612 at the point near Point 1. Wong KM also confirmed that he had boarded up the boundary of Lot 614RP, a section of which is close to Point 1. They are perfectly entitled to do so for the purpose of protecting their own land. CONCLUSION AND ORDER 130.In the light of my findings above, I make the following orders:-
COSTS 131.As a result of this judgment, the plaintiff is the major winner. I make an order nisi that the defendants shall pay the plaintiff 50% of the costs of this action (claim and counterclaim included), to be taxed if not agreed, with certificate for counsel. 132.In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.
Mr Erik Shum, instructed by Wong Poon Chan Law & Co, for the plaintiff Mr Andrew Mak & Ms Carol Wong, instructed by T Y Lam & Co, for the 1st to 3rd defendants | |||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 118/2014