Tao Kin Lun, The Manager of Nam Ti Tai Tsung v. Wong Kwok Man, The Executor of the Estate of Wong Yung, Deceased and Others

DCCJ 2151/2013

[2018] HKDC 1251

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.2151 OF 2013

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JUDGMENT

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A. Introduction

1.This is a trial fought by two neighbors of adjoining lands[1].

2.The plaintiff complained of various structures (the Structures) of the house (the House) occupied by the 3^rd defendant (D3) trespassing into airspace of the land he managed, obstructing rebuilding works (the Works) of his ancestral shrine (the Shrine) and sought injunction against D3.

3.D3 in turn counterclaimed against the plaintiff in trespass for embedding metal rods into the wall of the House adjoining the Shrine during the Works and sought injunction too.

B. Issues in dispute

4.The issues raised in plaintiff’s claim are mainly:

(1) whether the Structures or any of them have protruded into airspace within boundary of land managed by plaintiff;

(2) if so, whether they are justified by easement over such land;

(3) if not, whether they constituted trespass to such land;

(4) what loss and damage, if any, the plaintiff has suffered if such trespass is proven; and

(5) what remedy should be given to plaintiff (if at all).

5.Other issues raised by D3 are principally:

(1) whether the Works had damaged the House, including its wall adjoining the Shrine;

(2) whether the Works had blocked common drainage serving the House and other houses;

(3) whether the plaintiff had, without justification, trespassed into land occupied by D3 by embedding metal rods to the wall of the House during the Works;

(4) what damage, if any, was caused to the House if such trespass is proven; and

(5) what remedy should be given to D3 (if at all).

Issues (1)-(4) raised by D3 are also to be considered in answering issue (5) raised in plaintiff’s claim.

C.   The parties & the lands

6.Nam Ti Tai Tsung (藍地大衆) is a Chinese customary trust or T’ong (the T’ong) under New Territories Ordinance, Cap.97 (NTO). The T’ong was and is the lessee of a block government lease of Lam Ti Lot No.44 in Demarcation District No.130 (Lot 44) for a term of 75 years commencing 1 July 1898 with a right of renewal. Under Cap.152[2], Lot 44 was deemed to have been renewed in 1973 to 27 Jun 1997. By Cap.150[3], it was further extended to 30 Jun 2047.

7.The Shrine (神廳) was built on Lot 44 long ago, even before plaintiff’s birth in 1959. It was one-storey high. Ancestral tablets of 4 clans surnamed Tao, Kwan, Yip and Lee living in Lam Ti were stored within it. Major ceremonies of the indigenous villagers of Nam Ti and the local community were also held within it.

8.In about 2013, the T’ong had 100 odd members. The plaintiff was born one of them. As from Jan 2011, he has been appointed the manager of the T’ong under NTO. Since his birth, he has resided at 2/F, 22 Lam Tei Tsuen[4] (the Village) [5]. He was one of the representatives of the Village from 2007 to 2015.　Mr Chris Ng of counsel (Mr Ng) appeared for him.

9.Mr Tao Lam Fat (Fat) was another member born in 1958. He was the only village representative of the Village from 1999 to 2003. Mr Ip Ying Nam (Nam) was another member born in 1959. Both Fat and Nam gave evidence for the plaintiff.

10.At all material times, D3 has been occupying the House, a 3-storey village house built on Lam Ti Lot No.48 in Demarcation District No.130 (Lot 48). The House was built after the Shrine was built. Its address is No.33 Lam Tei Main Street, Lam Tei.

11.Both Lot 48 and Lot 44 are rectangle in shape. They are located side by side. The western side of Lot 44 adjoins the eastern side of Lot 48. Their respective locations within the Village are marked in a Lot Index Plan before me[6].

12.Lot 48 was in Nov 1974 conveyed into D3’s late father and D3’s late eldest brother as tenants in common in equal share. By Cap.150, it was extended in 1997 to 30 Jun 2047. In Mar 2003, D3’s late eldest brother assigned his half share to D3’s late father. In Mar 2009, D3’s late father passed away. In Dec 2011, the 1^st defendant, D3’s younger brother, obtained probate of the last will of D3’s late father as the executor.

13.D3, aged 65 at trial, elected to give evidence. Mr Anthony Cheung of counsel (Mr Cheung) appeared for him. D3’s younger sister, Mdm Wong Song Nui (Mdm Wong), aged 57 at trial, also gave evidence for him.

D.   Background facts[7]

14.In May 2009, the plaintiff, as a representative of the Village, applied in writing to Lands Department (LD) to re-develop (重新發展) Lot 44 to build thereon one-storey village house purportedly with the same dimensions to the Shrine.

15.In May 2013, the Works began, with the third party (TP) [8] being the contractor engaged by the T’ong. Fung Shui master chose the commencement date and time of the Works for the T’ong. Before the Works began, ancestral tablets of the 4 clans were removed from the Shrine and stored elsewhere in the Village on the advice of Fung Shui master.

16.Fung Shui master had strongly advised the plaintiff that sewage pipes were “dirty and foul” and “must not be allowed to cross the roof and ridge” of the Shrine as it would “seriously damage Fung Shui” and was “highly disrespectful to the gods”.

17.Before the Works began, in early 2013, the plaintiff had met D3 and discussed about sewage pipes of the House allegedly protruding and overhanging the Shrine (the 2013 Meeting). He demanded their removal, telling D3 that Fung Shui was affected. But D3 refused.

18.On 22 May 2013, plaintiff’s solicitors wrote to owner and occupier of Lot 48[9]. They complained of alleged trespass of the Structures over Lot 44 and alleged negligence & nuisance due to alleged leakage from water & sewage pipes of the House. They demanded removal of the Structures and payment of $280,000 compensation for, inter alia, alleged damage to the Shrine.

19.Mr C.K. Lau (Mr Lau) is an authorized land surveyor registered under Land Survey Ordinance (LSO).

20.On 13 June 2013, on plaintiff’s instructions, Mr Lau arranged his staff to conduct a site survey of Lots 44 and 48 (the 1^st site survey). On the same day, the plaintiff commenced this action against the trustee of the estate of D3’s late father and the 2^nd defendants. The next day, he applied for interlocutory injunction against them.

21.At about same time, in about Jun 2013[10], Mdm Wong started making complaints of the Works to LD, the Buildings Department (BD) and the Drainage Services Department (DSD)[11] and kept making them until shortly before this trial.

22.In Sept 2013, D3 was added as a party to these proceedings.

23.In about Sept 2013, LD declined plaintiff’s redevelopment application for Lot 44 for want of certificate of exemption of the Works[12]. LD later demanded the plaintiff to stop the Works.

24.Nevertheless, the plaintiff continued the Works.

25.During the Works[13], TP completely demolished the Shrine and rebuilt it from the ground[14]. TP rebuilt its original wooden roof and brick walls, including that wall adjoining the House, with concrete. By about Jan 2014, TP had substantially completed the Works and the Shrine was reopened[15].

26.On 15 Jan 2014, the plaintiff withdrew its application of interlocutory injunction.

27.In March 2015, the plaintiff applied “retrospectively”[16] to LD for certificate of exemption of the Works. He appointed TP and Mr Cho Hin Cheung (Mr Cho) respectively as building contractor and registered professional engineer for the same.

28.Mr Chiu Chi Pun (Mr Chiu) and Mr John Yip (Mr Yip) are respectively expert building surveyors of the plaintiff and D3.

29.On 13 Aug 2015, Mr Chiu and Mr Yip (the 2 expert surveyors) jointly inspected the House (the 1^st joint inspection). They found: -

1) a crack of about 2.3m long (the Crack) running along most of the top surface of an inner brick wall of the House adjoining the Shrine (the inner Brick Wall)[17]; and

2) some water accumulation in a U-shaped surface channel at the backyard of the House and the Shrine (the Channel)[18].

30.At all material times, the Channel served as common drainage for the House and 2 other houses built on Lam Ti Lots Nos.49 & 50 in Demarcation District No.130 (the 2 other Houses)^[19], to the west, and further west, of the House.

31.On 30 Aug 2015, Mr Lau arranged a second site survey of Lots 44 and 48 by his staff.

32.With court leave, Mr Lau prepared his expert report dated 31 Aug 2015 (Lau’s report) and gave oral evidence for plaintiff.

33.With court leave, the 2 expert surveyors prepared their joint statement dated 5 Nov 2015 (the joint statement).

34.On 7 Dec 2015, the 2 expert surveyors jointly inspected the House again (the 2^nd joint inspection). They found 3 metal rods of about 6mm in diameter embedded into the outer wall of the House adjoining the Shrine (the outer Wall) from an opened up area of 110mm (H) x 220mm (W). Each rod protruded into the outer Wall for 80mm deep. They were positioned in arow with vertical interval of about 450mm[20].

35.On 1 Mar 2016, the 2 expert surveyors jointly inspected the House for the 3^rd time (the 3^rd joint inspection). They found:

1) 1 metal rod of about same 6mm in diameter protruded into the outer Wall for 80mm deep in an opened up area of 370mm (L) x 400mm (W); and

2) 3 metal rods of same diameter embedded into the outer Wall for 80mm deep in an opened up area of 1200mm (H) x 400mm (W) (these 3 rods were also positioned in arow with equal vertical interval of about 450mm)[21].

Hence, from opened-up areas of the House, a total of 7 rods had been found to have embedded to the outer Wall (the 7 Rods).

36.With court leave, the 2 expert surveyors prepared their supplemental joint statement dated 7 Apr 2016 (the supplemental joint statement). Both gave oral evidence before me.

37.Due to discovery of the 7 Rods in the 2^nd & 3^rd joint inspections, on 26 Apr 2016, D3 re-amended his Counterclaim and counterclaimed against the plaintiff in trespass regarding metal rods embedded to the outer Wall.

38.By about Oct 2016, LD had suspended further processing (終止繼續處理) of plaintiff’s retrospective application for certificate of exemption of the Works[22].

E.   Discussion

(1)   Opinion of Mr Lau

39.I do not find Mr Lau’s opinion questionable as submitted by Mr Cheung. To the contrary, Mr Lau gave, I think, detailed explanations of his task, and convincing and good reasons to support his opinion.

40.Lau’s report is relatively brief. That said, he had explained in details in the box what available records he had obtained, how he had instructed his 3-person survey team to conduct, under his direct supervision[23], half-day 1^st site survey on 13 Jun 2013[24], how he verified these ground results against the records he obtained, exercised his professional judgment and arrived at his opinion.

41.I also do not fault Mr Lau using one boundary survey plan of Lot 44 dated 2 Mar 2011[25] as complained by Mr Cheung. Another authorized land surveyor registered under LSO[26] certified the said boundary survey plan. It had been submitted to District Survey Office. Under Code of Practice issued under LSO[27], Mr Lau is entitled, I agree with him, to adopt boundary so previously defined unless it is proven wrong (and Mr Cheung has never cross-examined nor produced evidence otherwise).

(2)   Boundary of Lots 44 & 48

42.I decide to give full weight to, and accept, Mr Lau’s opinion. The boundaries of Lot 44 and Lot 48 are, I accept Mr Lau’s evidence, marked respectively in blue and red in Appendix D of Lau’s report[28]. Moreover, the House was built along the boundary line between Lot 44 and Lot 48.

(3)   Encroachment by 3 protruding objects

43.I further find from Mr Lau’s evidence that three structures of the House below (the 3 Objects) have been protruding and encroaching into the airspace within the boundary of Lot 44 to such extent indicated below[29] (the Encroachment).

44.The 3 Objects are: -

a) concrete fins protruding into Lot 44 for 0.12m to 0.39m (the Window & Roof Fins);

b) an overhanging drainage/sewage pipe protruding into Lot 44 for 0.11m to 0.13m (the Sewage Pipe); and

c) 2 air-conditioners protruding into Lot 44 for 0.41m to 0.43m (the 2 Air-conditioners).

45.Three photos at Appendix C, and Appendix D, of Lau’s report are, I accept, accurate record of the 3 Objects, their locations and the extent of the Encroachment. The said 3 photos were, I find, taken in about June 2013 after TP had completely demolished the Shrine, leaving behind its original brick wall adjoining the House at its west side[30].

46.As shown on the said 3 photos, the Window & Roof Fins are found above 2 windows at 1/F of the House and found at the roof of the House.

47.The Sewage Pipe is a thick pipe[31] running from about mid-point of 2/F horizontally towards the North to the backyard of the House before it runs downwards to connect with the Channel on the ground for discharging sewage. On D3’s admissions, it connects to 2 separate flushing facilities of the respective toilets[32] of 2 sub-divided rooms (套房) on 2/F of the House.

48.And the 2 Air-conditioners are found at 2 windows at 2/F of the House shown on the said 3 photos.

49.Mr Lau has not condescended on particulars of alleged encroachment of other structures than the 3 Objects. Though the Structures are defined on plaintiff’s pleadings to include many objects, Ifind other alleged encroachment not proven.

(4)   De minimis?

50.Though the shortest distance of the Encroachment being 0.11m (that for the Sewage Pipe), considering authorities before me and the overall circumstances of this case, I find all the Encroachment more than de minimis.

(5)   Easement relied by D3

51.D3 pleaded[33] that when Lot 48 was acquired in 1974, the Shrine and the House had already been in existence on Lot 44 and Lot 48 respectively, with the Structures at the same positions as they are today. Lot 44 has been serving as a servient tenement to Lot 48. In about 2000, D3’s family caused repair and replacement work to the old windows and pipes, without any objection from plaintiff or any member of the T’ong.

52.For grounds of acquisition of alleged easement, D3 did not rely on express grant on pleadings. Mr Cheung abandoned before me any reliance of s.16 of Cap.219^[34]. He relied only on 1) implied grant on the rule of Wheeldon v Burrows^[35](the Rule);and 2) prescription based on the fiction of lost modern grant (LMG).

53.Mr Cheung submitted that the D3’s user of the Structures, if any, protruding over Lot 44 for their different purposes of the House is capable of forming easement enjoyed by Lot 48 as dominant tenement over Lot 44.

54.For the Window & Roof Fins, and the Sewage Pipe, Mr Cheung submitted that the relevant year when D3’s alleged user commenced is 1974 and he relied on the Rule (coupled with Cap.150) and LMG (with length of continuous user being 20 years).

55.For the 2 Air-conditioners, Mr Cheung submitted that the relevant year when D3’s alleged user commenced is 1997 and he relied on LMG alone (with length of continuous user being 12 years in his submissions).

Plaintiff’s response to easement claim

56.Mr Ng did not dispute much with the law as submitted by Mr Cheung. He abandoned the T’ong and “exclusive possession” defence at paragraphs 4 & 5 of the Re-Amended Reply. He focused his challenge on the facts. All plaintiff’s witnesses claimed that the Sewage Pipe was built as late as in 2011. And the plaintiff puts D3 to strict proof of D3’s claimed periods of uninterrupted user for the rest of the Structures.

My views on easement

57.Given parties’ submissions & authorities before me, I hold the following principles applicable.

58.On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted: Wheeldon v Burrows, supra, p.41, per Thesigee LJ.

59.The Rule applies where the grantor makes simultaneous grants to two lessees and, therefore, applies to lands in New Territories which, in 1973, are all renewed at the same time under Cap.152: Tang Tim-fat v. Chan Fok-kei [1993] 2 HKLR 373, 381, per Deputy High Court Judge Jerome Chan (as he then was).

60.Suffiad J. cited Tang Tim-fat, supra, at p.42 of his judgment in Cheung Yuk Ying v The Personal Representative of Lo Koon Fuk as Manager of Loa Tsit Heung Tso, unreported, HCA 1127/2006, 14 June 2013, and observed that the Rule similarly applies when New Territories lands are extended in 1997 by Cap.150.

61.Notwithstanding our leasehold system of landholding, an easement could be acquired by LMG in Hong Kong, and the English fee simple and common landlord rules do not apply: China Field Ltd v Appeal Tribunal (Buildings) (No.2) (2009) 12 HKCFAR 342.

62.Such user for LMG must be as of right i.e. not by force, stealth or licence of the owner of the dominant tenement, and must have continued without interruption for at least 20 years: China Field Ltd, supra, 370F.

63.For my conclusion below, I find it unnecessary to decide whether 12 years (as opposed to 20 years) are the relevant period of uninterrupted user of the 2 Air-conditioners for the purpose of LMG as submitted by Mr Cheung.

64.This court is satisfied that the D3’s user of the 3 Objects protruding over Lot 44 for their different purposes of the House is capable of forming easement at law as submitted by Mr Cheung. Subject to proof of D3’s claimed periods of uninterrupted user of the 3 Objects, I would have further held all requirements of the Rule and of LMG set out above have been satisfied.

65.I move to consider if D3 has made good his claimed periods of uninterrupted user of the 3 Objects.

Length of uninterrupted user of the 3 Objects

Evidence adduced by D3

66.I do not find evidence of D3 or of Mdm Wong on this issue credible or reliable.

67.First, their evidence regarding the 2 Air-conditioners materially, I think, differs from D3’s pleaded case, from one another and on its own.

68.It was pleaded[36] that, in 1974, the Shrine and the House had already been in existence, with, among others, the 2 Air-conditioners[37] at the same positions as they are today. By an earlier affirmation (D3’s Affirmation)[38], D3 also said that, in 1974, the 2 Air-conditioners were already in the positions as they are today.

69.But D3 contradicted himself to say at paragraph 4 of his witness statement and in the box that the 2 Air-conditioners were installed in or about 1997 (and that the year of 1974 for the 2 Air-conditioners in D3’s Affirmation was wrong).

70.While it was pleaded[39] that there was an alleged repair and replacement works to the House in about 2000 (the alleged 2000 Works), it was not pleaded that the 2 Air-conditioners had been “replaced” in the alleged 2000 Works. At paragraph 6 of D3’s Affirmation and paragraph 6 of his witness statement, D3 did not mention “replacement” of the 2 Air-conditioners in the alleged 2000 Works either.

71.In contrast, Mdm Wong said in her witness statement and in the box that the 2 Air-conditioners were installed in 1997 or a few years before the alleged 2000 Works and later “replaced” in the alleged 2000 Works.

72.Secondly, the evidence of D3 and of Mdm Wong regarding the alleged 2000 Works materially, I think, differ from D3’s pleaded case, from one another and on its own.

73.It was pleaded[40] that the alleged 2000 Works were done “without any objection from the plaintiff or any members of [the T’ong].” Nowhere was it pleaded that anyone from D3’s family had “consulted” the representative/head of the Village or the manager of the T’ong for the alleged 2000 Works.

74.Departing from his pleadings, D3 claimed in paragraph 7 of D3’s Affirmation and paragraph 7 of his witness statement that “before commencement of [the alleged 2000 Works, we had consulted and obtained the approval of the then village head of [the Village], who had in turn consulted the then manager of [the T’ong] (italics supplied)”.

75.At paragraph 7 of his witness statement, D3 said: “the then village head had informed the then manager of [the T’ong] of the repair work and the manager did not raise any objection”.

76.In the box, D3 contradicted himself to claim that his late father had consulted and obtained approval of the alleged 2000 Works from one single person being the then head of the Village and the then manager of the T’ong. But such contents of his witness statement and D3’s Affirmation quoted above plainly suggest that two persons had been consulted in turn.

77.Mdm Wong also gave evidence of alleged “consultation” by her late father of the alleged 2000 Worksdeparting from D3’s pleaded case. She further contradicted herself in the box to claim that her late father had consulted the “person-in-charge” (負責人) of the Village about the alleged 2000 Works when she used instead the simple Chinese words of “village head” (村長) at paragraph 6 of her witness statement as the alleged person that had been consulted by her late father.

78.But, unlike D3, Mdm Wong gave no evidence of the “then manager” of the T’ong having been “consulted” for the alleged 2000 Works. She pointed to alleged scaffolding having been erected in the alleged 2000 Works and said the person-in-charge of the Shrine “ought to have known and consented”[41] to the same.

79.Thirdly, as Mr Ng submitted, D3 adduced no other evidence to support him and Mdm Wong on this issue (though one should also consider the long lapse of time involved).

80.D3 produced no family or aerial photos. He did not call the alleged contractor of the alleged 2000 Works. He did not call other neighbors of the House. And he did not call the alleged “niece” of his late father who allegedly occupied one sub-divided 2/F room of the House as early as from 2008^[42] free of charge^[43].

81.Mdm Wong also produced no documents like quotation or receipt regarding the alleged 2000 Works that she had allegedly paid over $100,000 out of alleged total costs of $130,000 odd.

82.Overall, unless otherwise supported by inherent probabilities, plaintiff’s admissions and/or undisputed facts, I have decided not to accept evidence of D3 or of Mdm Wong on this issue. In particular, I do not accept the alleged 2000 Works took place in about 2000 as alleged, if it ever took place at all. Neither do I accept the alleged consultation claimed by them.

The Window & Roof Fins

83.D3 and Mdm Wong both claimed that the House and the 2 other Houses were built as a “single” building having, inter alia, similar fins and produced photos[44] as proof.

84.However, D3 answered “no idea” (不清楚) when Mr Ng suggested that the House and the other 2 Houses could have been built at different times. And I do not think the said photos shed much light one way or another as claimed by D3 and Mdm Wong.

85.Nevertheless, under cross-examination, the plaintiff agreed that the Window & Roof Fins had already been in existence in 1974 after the House was built. I decide to give full weight to this admission and so find. It is because, since his birth in 1959, the plaintiff has resided in the vicinity of the Shrine i.e. within 1-minute walking distance from it. And, for over 20-30 years, he has worked as a supervisor of a company engaging in building village houses.

86.Mr Ng also did not dispute D3’s evidence of his whole family including himself moving to Lam Ti to reside in the House in 1974, I also accept such evidence of D3.

87.Hence, on the length of uninterrupted user of the Window & Roof Fins, D3 had, I think, managed to prove his case of claimed period from 1974.

The 2 Air-conditioners

88.Be it the pleaded case since 1974 or such case since 1997as asserted by D3 and Mdm Wong in evidence, there is no corroborative evidence of either before me. I find neither case proven and find it unnecessary to rule on Mr Cheung’s submission of 12 years being sufficient period of user for LMG here.

The Sewage Pipe

89.Again, there is no other evidence corroborative D3’s case of uninterrupted user here since 1974.

90.Notwithstanding cross-examination, the plaintiff, Fat and Nam remained, I think, firm and consistent in their common evidence that the Sewage Pipe was first built in 2011[45].

91.On photos before me[46], the Sewage Pipe looks, I think, relatively new and unlikely to have been “replaced” as long as more than one decade ago in 2000 as alleged.

92.I further find it inherently unlikely that the Sewage Pipe was designed and built allegedly in 1974in the first place at its current “awkward” position, having regard to the erection of the Shrine before the erection of the House, if not the location of the Channel at the backyard of the House.

93.I conclude that D3 has not proven his case of uninterrupted user of the Sewage Pipe since 1974.

Easement for the Window & Roof Fins

94.Hence, I find D3 to have only established easement enjoyed by Lot 48 over Lot 44 regarding the Window & Roof Fins by the Rule and LMG.

(6)   Trespass to Lot 44 proven

95.Trespass to land being actionable per se, on my findings above, I hold D3 liable to plaintiff for trespassing Lot 44 by the 2 Air-conditioners and the Sewage Pipe to the extent of the Encroachment.

(7)   Alleged loss & damage to plaintiff

(a)   Delay claim made by TP

96.I think the plaintiff has not shown that such proven trespass had caused alleged delay to the Works that allegedly rendered him liable to compensate TP as pleaded.

97.On photo before me[47], I am prepared to accept that, by Aug 2015, tiles remained to be installed onto the roof of the Shrine after rebuilding.

98.I am, however, not satisfied that TP could not complete the Works due to alleged obstruction (if at all) posed by the Sewage Pipe as claimed by plaintiff.

99.There was no complaint of the Sewage Pipe “obstructing” the previous roof of the Shrine before rebuilding. On photos before me[48] and on plaintiff’s admissions, the Sewage Pipe did not come into contact at all with the decorative ridge on the roof of the Shrine before the Works. Had TP rebuilt the Shrine with the same height as before as the plaintiff claimed in his application to LD, one imagines there should be no obstruction either after the rebuilding.

100.After the Shrine was rebuilt but before installation of new tiles on its new roof, on photos before me[49], there remained, I note, no shortage of space between the Sewage Pipe and the ridge on the new roof of the Shrine.

101.Overall, I think it likely that the Sewage Pipe only became an alleged obstruction (if at all) after the rebuilding due to changes made and/or to be made to the ridge of, and/or decoration of the ridge of, the new concrete roof as suggested by TP and/or Fung Shui master to plaintiff and not otherwise.

102.Indeed, plaintiff referred to new ceramic blocks larger in size than original ones to be installed along the ridge of the new concrete roof of the Shrine after rebuilding.

103.And a project drawing of the rebuilt Shrine dated 28 June 2013[50] indicate that the new decorative ridge on the roof was designed of such increased height that it was to “enclose” such part of the Sewage Pipe overhanging the said ridge of the rebuilt Shrine.

104.I agree with Mr Cheung that any non-completion of the Works was likely self-induced or caused by the plaintiff insisting on the Sewage Pipe “not crossing the roof and ridge” of the rebuilt Shrine for Fung Shui reason.

105.In any event, the plaintiff has only produced a simple demand letter dated 11 Jan 2015[51] from TP claiming balance of payment in sum of $146,400 for delay in completion due to alleged “legal problem” to the Works. For want of TP giving evidence, I give no weight to this letter. The plaintiff had not produced other documents evidencing scheduled completion date of the Works and records of payments to TP.  Neither did the plaintiff refer to such demand for balance payment made by TP in his witness statement.

106.Contrary to plaintiff’s claim, in the said demand letter above, TP did not complain at all of the Sewage Pipe allegedly “obstructing” completion of the decorative ridge on the new roof of the Shrine after rebuilding.

(b)   Alleged leakage damaging the Shrine

107.I think the plaintiff had not proven that such trespass by the Sewage Pipe had, before the Works, caused alleged leakage damage to the Shrine as he claimed.

108.I find plaintiff’s evidence adduced on this issue incredible, improbable and self-contradictory, and unable to hold against contrary evidence.

109.Firstly, the plaintiff strangely made no complaint to the Food and Environmental Hygiene Department of such alleged leakage from the Sewage Pipe allegedly damaging the Shrine.

110.Secondly, he incredibly saw fit to commence the Works without first resolving with D3 such alleged leakage from the Seepage Pipe. As such, the new Shrine after rebuilding would, one thinks, still suffer the same alleged problem afterwards.

111.Thirdly, the photos produced by plaintiff in this respect, I think, do not capture the alleged leakage or dripping from the Sewage Pipe to the Shrine, or any sign of that, as claimed.

112.The plaintiff did not adduce any expert surveying evidence on this issue.

113.Save producing an unsigned quotation of TP dated 21 May 2013 claiming that the left wall of the Shrine suffered from leakage problem that required repair costing $208,000, the plaintiff did not call TP either. Again, I give no weight to this unsigned quotation of TP. In any event, it gives no clue why the Shrine suffered from the alleged leakage problem to its wall.

114.On the other hand, the Shrine was a very old building before its rebuilding and, as admitted by plaintiff, it has no waterproofing layer at its roof. By 2013, it was, one thinks, likely to be in a dilapidated state susceptible to rainwater damage, despite alleged previous repairs as claimed by the plaintiff in the box.

115.Nam, who cleaned the Shrine from time to time on a voluntary basis, contradicted plaintiff to say in the box that he did not notice any alleged leakage from the Sewage Pipe to the Shrine.

116.This court notices that, to more or lesser extent, plaintiff’s all 3 witnesses acknowledged that Fung Shui played its part to explain their objection to the Sewage Pipe overhanging the Shrine. Their complaints were noticeably focused on the Sewage Pipe and not on the rest of the Structures.

117.Overall, I agree with Mr Cheung thatthe real concern that caused the plaintiff to demand D3 to remove the Sewage Pipe (as plaintiff disclosed to D3 in the 2013 Meeting[52]) is likely Fung Shui objection rather than unproven alleged leakage from the Sewage Pipe allegedly damaging the Shrine. The said leakage allegation is, I think, likely an excuse to justify or reinforce the said demand to remove the Sewage Pipe. And this Fung Shui objection to the Sewage Pipe is also likely the reason of plaintiff’s claim against D3.

(8)   The Works

(a)   Blocking the Common Drainage

118.I find that, from about May 2013 to Feb 2016, construction waste produced from demolition and rebuilding of the Shrine in the Works had obstructed the Channel, such that sewage could not drain away on it smoothly[53].

119.I accept the evidence of D3, Mdm Wong and Mr Yip to the above effect and reject such previous evidence of Mr Chiu and of the plaintiff to the contrary.

120.By a series of photos taken during the Works[54], different quantity of construction waste were, I note, shown to have dumped into the Channel with stagnant water and/or sewage found inside in some of the photos (the Channel was either not covered with plywood or partially covered by plywood[55]).

121.The plaintiff himself had admitted in the box that construction waste arising from demolition of the Shrine in the Works had been dumped inside the Channel and obstructing it, and that he had received letter from LD demanding him to clear up such waste to avoid obstructing drainage within Lot 44[56].

122.Mr Chiu also agreed in the box that waste was seen dumped inside the Channel on photo, water observed not drained away smoothly on the Channel on the date of the 1^st joint inspection and that such obstruction was caused by construction waste as suggested by DSD in its letter dated 24 Jan 2017[57].

123.While Mr Chiu originally suggested in the joint statement that alleged greases and dirt from household sewage directly discharged from kitchen and toilet on G/F of the House into the Channel could block it in the absence of routine cleaning, he admitted in the box that it was no more than his “guess” (估計). And it is, I think, not supported by evidence of alleged greases or dirt in the Channel either.

(b)   The Crack at the inner Brick Wall

124.I accept Mr Yip’s opinion and find that the Crack was caused by vibration generated by the Works (including drilling of holes at the outer Wall for insertion of metal rods) transmitted to the outer Wall through the metal rods, and in turn transmitted to the inner Brick Wall due to its contact with the outer Wall.

125.The above opinion of Mr Yip is, I think, inherently more likely than that of Mr Chiu.

126.Mr Chiu opined that the inner Brick Wall was freestanding. Either such lack of support, he opined, caused the Crack or that external forces other than the Works had acted on it causing the Crack.

127.There are, however, 2 flaws to Mr Chiu’s opinion.

128.First, the inner Brick Wall is not entirely freestanding as suggested by Mr Chiu. Though there was a 75mm-thick gap[58] between the inner Brick Wall and the outer Wall for the entire height of the inner Brick Wall[59], the top part of the inner Brick Wall had, I accept Mr Yip’s evidence in the box, a “cover”(蓋) in direct contact with the outer Wall.

129.Secondly, there is simply no evidence of alleged other external force(s) having acted on the inner Brick Wall as posed by Mr Chiu.

130.Mr Chiu had further sought to rely in the joint and supplemental joint statements certain hearsay expert opinion of Mr Cho recorded in documents, and in the joint statement, certain hearsay claim of TP.

131.I do not think they assist Mr Chiu at all.

132.This court had not given leave to Mr Cho to give expert opinion in this action. His opinion is controversial and objected to by D3, who has not been given leave to call expert rebuttal evidence from registered structural engineer. I have already ruled at trial that such documentary hearsay opinion from Mr Cho is inadmissible. In any event, I give no weight to Mr Cho’s opinion. His opinion has not been tested by cross-examination.

133.The plaintiff had also not called TP to give evidence nor produced any construction method statements of the Works. I also give no weight to such alleged hearsay claim from TP.

(c)   The Metal Rods embedded to the outer Wall

(i)   Number of metal rods

134.There are photos of the Works in progress[60] showing that more than the 7 Rods had been embedded to the outer Wall by a large vertical metal plate erected within Lot 44 over the original brick wall of the Shrine (the Metal Plate).

135.Mr Yip had given expert evidence on this issue of number in the supplemental joint statement and Mr Chiu had, I note, made admissions in the box agreeing much with Mr Yip. I accept their common evidence.

136.On all evidence before me[61], I am able to infer and I find that TP had, during the Works, erected the Metal Plate, drilled about 100 holes on the outer Wall, and inserted into them about 100 metal rods (the 100 Rods) of about 6mm in diameter for a depth of 80mm into the 300mm-thick outer Wall. The 100 Rods had protruded into the outer Wall, or into Lot 48, for a depth of 80mm (the Rods Protrusion).

(ii)   Reason for the Rods Protrusion

137.The 2 expert surveyors both agreed in the box that the Metal Plate was erected as “formwork” for rebuilding the Shrine with concrete in the Works and I so find.

138.Mr Chiu had first suggested in the supplemental joint statement that the Metal Plate was erected as a protective layer to “protect” the House from the Works. He however nowhere mentioned “formwork” therein as Mr Yip did.

139.In the box, Mr Chiu for the first time answered Mr Cheung agreeing to “formwork” being the “main reason” for erecting the Metal Plate, failing which the wall of the Shrine adjoining the House could not, he said, be rebuilt with concrete.

140.But Mr Chiu insisted in the box that the Metal Plate remained a “protection” measure to the House (which suggestion Mr Yip disputed) by reference to alleged trade practice. Mr Chiu produced, I note, no proof or document in support of such alleged practice. Neither was TP called to substantiate the same. Were it “protection” as claimed, TP or plaintiff should, one thinks, have notified D3 about the Rods Protrusion and sought his consent. But it was not done. I do not accept this alleged claim and opinion of “protecting” the House.

141.Mr Chiu added that the Rods Protrusion was done to “secure” the Metal Plate as a whole as many smaller plates were welded together to become the Metal Plate. I accept such evidence on looking at photo of the Metal Plate before me[62]. But, importantly, Mr Chiu agreed with Mr Cheung that screws could equally be used for “securing” the Metal Plate if required.

142.Hence, the Rods Protrusion is not, I think, a must in the Works for “securing” the Metal Plate to provide “formwork” for rebuilding the Shrine with concrete.

(iii)   Justified by necessity?

143.For the above reasons, I reject plaintiff’s claim that the Rods Protrusion is justified by necessity to protect the outer Wall from potential adverse effect from the Works.

(iv)   Alleged damage to the House

Alleged structural damage to the House

144.Mr Cheung submitted that the Works and the Rods Protrusion had caused structural damage, or serious risk of such damage in the long run, to the House and the outer Wall.

145.I do not so find.

146.The damage caused to the outer Wall by drilling holes for the Rods Protrusion cannot be doubted. The Works had also caused the Crack to develop on the top of the inner Brick Wall.

147.That said, none other damage to the House was observed by the 2 expert surveyors[63] nor complained by D3 or Mdm Wong. The Works began as early as in May 2013. It has been substantially completed by about Jan 2014. And the 1^st, 2^nd & 3^rd joint inspections took place between Aug 2015 and Mar 2016.

148.Upon Mdm Wong’s complaint, BD’s staff had, by 2016, inspected the House more than once, noted the Crack and the metal rods embedded to the outer Wall in the opened-up areas of the House. Save requiring Mdm Wong to reinstate the opened-up areas to avoid damage to the House, BD took no other action regarding safety of the House and, indeed, its staff informed Mdm Wong that there was no apparent structural danger with the House.

149.Moreover, the 2 expert surveyors suffer, I think, a common disadvantage on this issue. Both of them are not registered structural engineer.

150.Though Mr Yip claimed that certain load was, or possibly, transferred, from the rebuilt Shrine (or its part) and/or the 100 Rods (or their parts) onto the House (or its part) and possibly transferred within Lot 44 (see below), he could not calculate the amount of transfer nor quantify the possibility he raised.

151.Neither could Mr Chiu.

152.I cannot therefore give full weight to their expert opinion on this issue.

153.For reasons above, I also cannot give weight to such inadmissible documentary hearsay opinion of Mr Cho given without leave of this court.

154.Focusing on Mr Yip’s opinion on this issue, I think he had materially mistaken the outer Wall as a “brick” wall[64] in the supplemental joint statement[65] when it is a “concrete” wall[66].

155.Upon cross-examination, Mr Yip, I note, also retracted from his earlier view in the supplemental joint statement that the entire weight of the whole rebuilt Shrine could be transferred to the House.

156.And Mr Yip had to agree with Mr Chiu that certain load was transferred down to the ground within Lot 44 if the bottom of the Metal Plate reaches the ground (and I think it likely reaches the ground on the photo before me).

157.Hence, I also do not find it safe or reliable to rely on Mr Yip’s opinion on this issue.

Alleged seepage risk to the House

158.I think D3 has not proven that the Rods Protrusion poses any serious risk of water seepage to the House.

159.Importantly, Mr Yip cannot point to any observed seepage or water damage to the House after the 1^st, 2^nd & 3^rd joint inspections and substantial completion of the Works by about Jan 2014.

160.I prefer the opinion of Mr Chiu to that of Mr Yip on this issue. The holes for inserting the 100 Rods had, I agree with Mr Chiu, been filled. There was no gap between the outer Wall and the rebuilt Shrine. TP had also built a ridge on the roof of the rebuilt Shrine and provided for waterproofing layers at the said roof to avoid water seepage[67].

(9)   Trespass to Lot 48 proven

161.That said, I still hold the plaintiff liable to D3 for trespassing Lot 48 for a depth of 80mm due to the Rods Protrusion carried out by TP on plaintiff’s behalf during the Works.

162.Mr Ng did not strongly press this point but engagement of TP by the T’ong (even though the plaintiff claimed himself not negligent in the process[68]) does not, I think, excuse at law plaintiff’s liability for trespass by the Rods Protrusion.

(10)   Principles for granting mandatory injunction

163.In closing submissions, this court referred counsels to Morris v. Redland Bricks Ltd[1970] AC 652, where the House of Lords had set out general principles for granting mandatory injunction at 665F-666G of the judgment, and invited submissions. In that case, the court is also concerned with positive remedial actions.

164.In particular, it was said the grant of a mandatory injunction is entirely discretionary and can never be "as of course." Each case must depend upon its own particular circumstances.It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly: 665F-G of Morris, supra.

165.It can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. Damages will not be adequate remedy if such damage does happen: 665G-H of Morris, supra.

166.The costs of the remedial works to be done by the defendant should be taken into account. It must be balanced against possible damage to the plaintiff and if, on such balance, it is unreasonable to inflict such expenditure upon the defendant, the court may decline to grant the injunction sought: 666A & E in Morris, supra.

(11)   Remedy to plaintiff for trespass to Lot 44

(a)   Plaintiff not comes with clean hands?

167.D3 complained that the plaintiff did not come with clean hands and urged me not to grant injunction against the Structures as sought by plaintiff.

168.Mr Cheung emphasized that the plaintiff and D3 had a harmonious past relationship for decades. Dispute arose between them only because of plaintiff’s Fung Shui objection directed solely against the Sewage Pipe (and not to the rest of the Structures). Without first obtaining LD’s approval, the T’ong had proceeded to rebuild the Shrine in the Works affecting the House. The Works had damaged the House, caused the blockage of the Channel, and the Rods Protrusion had trespassed upon Lot 48. Equity ought not, he submitted, assist the plaintiff.

(b)   Plaintiff’s contrary submissions

169.In reply, Mr Ng submitted that, even if the plaintiff had rebuilt the Shrine without prior approval of LD, such alleged breach of government lease of Lot 44 had no connection with the relief sought for the Encroachment. The plaintiff should still be entitled to injunctive relief for trespass committed against Lot 44. Public policy, he submitted, does not demand denial of such relief to plaintiff.

(c)   My considerations

170.Be that plaintiff’s claim was likely motivated by Fung Shui objection directly solely against the Sewage Pipe, D3 had, I think, infringed the property right of plaintiff over Lot 44 by the Encroachment of the 2 Air-conditioners and the Sewage Pipe and such property right is entitled to protection of the law.

171.When it is said that a man must come to a Court of Equity with clean hands, it does not mean a general depravity. The misconduct “must have an immediate and necessary relation to the equity sued for”. It must be a depravity in a legal as well as a moral sense: Dering v Earl of Winchelsea [1878] 1 Cox Cas 318, 319-320.

172.Had the plaintiff been in breach of government lease of Lot 44 (which I do not decide in this action) in proceeding with the Works without LD’s approval, I think such alleged breach had no connection, or insufficiently close connection, with injunctive relief sought by plaintiff for removing the Encroachment caused by the 2 Air-conditioners and the Sewage Pipe.

173.While the Works had caused some damage to the House (in form of holes drilled to the outer Wall and the Crack on the inner Brick Wall) and obstructed the Channel, I think they had no connection, or insufficiently close connection, with injunctive relief sought by plaintiff for removing the Encroachment caused by the 2 Air-conditioners and the Sewage Pipe.

174.The case of Perect China International Ltd v Chan Yat Siu [2012] 5 HKC 258 cited by Mr Cheung is, I think, distinguishable. The applicant therein had suggested to the respondent therein (another house owner of the same estate) as to how to erect illegal structures in the latter’s house and approved the said erection, and that both parties had erected illegal structures in their respective houses in breach of the same deed of mutual covenant of the estate.

175.I disagree with Mr Cheung that the plaintiff does not come with clean hands to seek the equity he sought in this case (even assuming that the plaintiff was in breach of government lease of Lot 44 as suggested by D3).

176.Borrowing from the reasoning of the judgment of Choy Kuen Chi v Tat Fung Enterprises Co Ltd, unreported, HCA 915/2011, 20 July 2015, given in the different context of adverse possession, I think public policy does not demand that injunctive relief be denied to the plaintiff in this case. After all, the government can take such enforcement action as it sees fit in due course against the plaintiff for such alleged breach of government lease of Lot 44.

177.And D3’s complaint of the Rods Protrusion during the course of the Works forms the subject matter of his counterclaim to be resolved by this court.

178.I refer to Kelsen v Imperial Tobacco Co. Ltd [1957] 2 All ER 343, cited by Mr Ng. This is a case where a sign erected by the defendant invaded into the airspace of plaintiff’s land. Although McNair J. held the injury to the plaintiff’s legal rights was small, his lordship nevertheless granted a mandatory injunction that such portion of the sign projecting over plaintiff’s premises be removed.

179.Before coming to his decision, at 351C-I of his judgment, McNair J. cited such principles decided by A. L. Smith LJ in Shelfer v City of London Electric Lighting Co. [1895] 1 Ch. 287, 322-3, on whether to award damages in lieu of injunction. I have also borne such principles in mind in deciding this case.

180.While one may argue that the injury or damage caused by the Encroachment to plaintiff’s legal rights over Lot 44 was small[69], I do not think that damages would be an adequate remedy for the plaintiff. He has been deprived of his lawful right to use such part of the airspace over Lot 44 by “continuing” invasion of the 2 Air-conditioners and the Sewage Pipe, and such loss cannot be easily estimated in terms of money for purpose of compensation.

181.Since the plaintiff commenced these proceedings in 2013, D3 had put forward the defence of easement regarding the Structures enjoyed over Lot 44 to justify the alleged encroachment. That was ultimately rejected by this court for the Encroachment caused by the 2 Air-conditioners and the Sewage Pipe.

182.If this court is to award damages in lieu of injunction sought for removing the Encroachment caused by the 2 Air-conditioners and the Sewage Pipe, that, I think, would amount to sanctioning D3’s invasion of Lot 44 by allowing D3 to “purchase” the same after D3’s failure to justify it. I think the same problem exists irrespective whether declaration is granted in addition to such award or not.

183.There is no evidence before me that D3 would suffer any hardship, or has any difficulties, in terms of money or otherwise, in removing such parts of the 2 Air-conditioners and the Sewage Pipe projecting over Lot 44.

184.Balancing everything before me, I do not think it would be unreasonable or oppressive to grant a mandatory injunction against D3 as sought by plaintiff.

185.I grant a mandatory injunction ordering D3 to remove within 60 days at D3’s own expenses such parts of the 2 Air-conditioners and of the Sewage Pipe protruding and trespassing into the airspace of Lot 44.

(12)   Remedy to D3 for trespass to Lot 48

(a)   Objections to injunction by plaintiff

186.Mr Ng submitted that it is unjust and inequitable to grant mandatory injunction against the plaintiff as sought by D3. The removal of the Rods Protrusion would, he stressed, tear down or at the very least affect the structural safety of the Shrine or the House, or both, and endanger the life or property therein. Any injunction granted will cause disproportionate hardship to the plaintiff. A small monetary payment to D3 with a declaration of right should suffice in this case.

(b)   Matters urged on behalf of D3

187.To the contrary, Mr Cheung submitted that there will be adverse impact or damage to the House in the long run if the plaintiff is not ordered to remove the 100 Rods. Heavy expenses of compliance are, he urged, no reason for not granting an injunction. The Shrine after the Works was an illegal structure that LD would be taking enforcement action (and it requires rebuilding) anyway.

(c)   My considerations

188.D3 had not proved that the House had suffered structural damage, or serious risk of such damage in the long run, from the Rods Protrusion. Neither had D3 proven serious leakage risk to the House due to the Rods Protrusion as he alleged.

189.That said, the damage done to the outer Wall by drilling as many as 100 holes therein for inserting the 100 Rods for a depth of 80mm, and their “continuing” intrusion of Lot 48 in future, cannot be small. Neither can it be easily estimated in money. A small monetary payment cannot, I think, be sufficient for it.

190.Damages cannot, I think, be an adequate remedy to D3 in all the circumstances of this case. To disallow D3’s claim for injunction would also be in effect to sanction plaintiff’s continuing trespass to Lot 48 by way of “purchase”.

191.The case of Incorporated Owner of Shining Building v Glory Force Ltd [2007] 2 HKLRD 484 cited by Mr Ng is distinguishable. Damages were considered adequate remedy in that case. And the plaintiff itself was capable to remove the nailheads[70] affixed to external wall of its building with expenses borne by defendant.

192.The plaintiff had sought to justify trespass in the counterclaim by reference to alleged necessity and engagement of TP, both are ultimately rejected by this court.

193.Where a defendant has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to do positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff: 666B of Morris, supra. This principle applies, I think, with much force against plaintiff in this case.

194.There was, I find, alternative to the Rods Protrusion to secure the Metal Plate to provide formwork to rebuild the Shrine with concrete. But the drastic method of drilling 100 holes on the outer Wall and inserting 100 Rods thereto was adopted by TP on plaintiff’s behalf without D3’s consent. I think such high-handed action taken in complete disregard of neighbor’s rights and that plaintiff had acted wantonly and quite unreasonably in relation to his neighbour.

195.Of course, D3 would likely refuse consent if plaintiff or TP seek his consent, in view of parties’ previous dispute over the removal of the Sewage Pipe, if not for plaintiff’s claim in this action against D3 for alleged trespass of the Structures to Lot 44.

196.Ironically, by the Rods Protrusion, the plaintiff had committed the very wrong he sued D3 in his claim to seek the same relief of mandatory injunction.

197.For the above reasons, I agree with Mr Cheung that heavy expenses are no valid ground for the plaintiff to object to mandatory injunction sought by D3.

198.In so far Mr Ng complained of hardship to plaintiff due to another rebuilding of the Shrine (if required at all) as a result of such injunction, the plaintiff has, I think, only himself to blame for his unreasonable actions towards his neighbour.

199.While Mr Chiu stressed in his evidence that the removal of the Rods Protrusion demands “demolishing” of the wall of the rebuilt Shrine adjoining the House and that “equals to demolishing” of the rebuilt Shrine, he never, I note, gave detailed reasons behind these bold assertions.

200.On Mr Ng’s questioning, Mr Yip first denied demolishing of the wall of the Shrine adjoining the House to remove the Rods Protrusion is likely to cause collapse of the Shrine or making it unsafe. Later, Mr Yip agreed that removal of the 100 Rods possibly requires rebuilding of the Shrine.

201.As I point out above, the 2 expert surveyors suffer from the common handicap of not being registered structural engineer.

202.On all evidence before me, I am not fully satisfied that the removal of the Rods Protrusion would definitely demand demolishing of the wall of the rebuilt Shrine adjoining the House or, indeed, another rebuilding of the Shrine by the plaintiff.

203.Assuming that being the case, I still do not consider it oppressive or unreasonable in all the circumstances of this case to require the plaintiff to demolish one wall of the Shrine, or to rebuild the entire Shrine (and to rehouse ancestral tablets therein temporarily elsewhere), in order to remove the Rods Protrusion. I find nothing unjust or inequitable about that.

204.Again, the plaintiff has only himself to blame for proceeding with rebuilding the Shrine with concrete using the Metal Plate as formwork by the Rods Protrusion without D3’s consent and not by alternative method available to him.

205.On this point, I have not considered possible government enforcement action for alleged breach of government lease of Lot 44 that Mr Cheung submitted would require another rebuilding of the Shrine anyway.

206.Mr Yip said at p.4 of the supplemental joint statement that opening up of the outer Wall to locate the metal rods embedded thereto would “demolish [the outer Wall] and would cause a collapse or at least is unsafe to [the House] (italics supplied)”. Such opening-up is, according to Mr Yip at p.10 thereof, a “destructive method” causing damage to the House.

207.Indeed, BD’s staff, noting such opening-up areas of the House after their inspection of the House, saw fit to remind Mdm Wong to reinstate the same for reason of building safety.

208.Nevertheless, the plaintiff is not, I think, in a position or good position to object to injunction on the ground of such risk to the House. Such risk to the House, if it exists at all, by further opening-up “the outer Wall” to remove the Rods Protrusion, falls on D3 and not on the plaintiff. But D3 sought mandatory injunction nonetheless. I fail to see how it would be unjust or inequitable against the plaintiff in such circumstances.

209.In any event, the 2 expert surveyors never went so far to claim that such safety risk, if any exists at all, of opening up the outer Wall or the wall of the Shrine adjoining the House to remove the Rods Protrusion cannot be reduced or avoided by taking safety precautions. I am not convinced at all that persons or property inside the House or inside the Shrine must be endangered by the removal of the Rods Protrusion as submitted by Mr Ng.

210.It appears, however, that Mr Yip gave his opinion of repair or reinstatement costs to the outer Wall in the supplemental joint statement on the basis that the removal of the Rods Protrusion is to be carried out by opening up the “wall of the rebuilt Shrine adjoining the House”. He wrote at p.7 thereof: “all metal rods…shall be located and then be removed from the Shrine by removing the external wall and metal plates of the Shrine at the costs of the plaintiff”.

211.If the opening-up of the wall of the rebuilt Shrine adjoining the House is the appropriate method to go about removing the Rods Protrusion (and I do not decide it now), I think D3 has failed to adduce expert evidence of the methodology, and full particulars (including safety precautions to be taken), of such remedial works to be ordered against plaintiff.

212.If a court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly what he has to do as a matter of facts, so that in carrying out an order he can give his contractors the proper instructions: 666G of Morris, supra.

213.D3 once, I note, took out summons on 22 Apr 2016 for supplemental expert evidence from the 2 expert surveyors, or one single structural engineer, on remedial works to remove the Rods Protrusion and to reinstate the House to its original state, including the manner and methodology of the said works, and the safety precautions to be undertaken etc. But the said application was adjourned sine die on 25 Apr 2016 and never restored.

214.Notwithstanding the above omission, I am still prepared to grant D3’s application of mandatory injunction against plaintiff in all the circumstances of this case.

215.In order to inform the plaintiff what he is ordered to do and in the interest of safety to all parties, I give parties liberty to agreewithin 90 days the proper method, particulars (including safety precautions), and completion dates of such works to remove the Rods Protrusion and to repair and/or reinstate the House thereby required (collectively the Remedial Works). Failing agreement, the matter is to be restored for argument before this court.

216.I grant a mandatory injunction ordering the plaintiff to remove at plaintiff’s own expenses such protruding parts of all metal rods trespassing Lot 48 by being embedded into the outer Wall and, thereafter, also at plaintiff’s own expenses to reinstate and/or repair the outer Wall to its original state (if so required thereby). The parties are to agree on the method (including safety precautions), particulars, and completion dates, of the same within 90 days and, in case of disagreement, this court shall decide the same. The parties are at liberty to apply.

217.As I have ordered the plaintiff to bear all the costs of the Remedial Works, I find it unnecessary to resolve such quantum dispute of repair or reinstatement works between the 2 expert surveyors in the supplemental joint statement or to award any damages for the same as sought by D3.

218.Were I required to decide the said quantum dispute, I prefer, and would have adopted, Mr Chiu’s quantification to that of Mr Yip for 2 reasons. Unlike Mr Yip, Mr Chiu gave particulars of man-days required, and quoted relevant wages statistics, for the said repair or reinstatement works. Secondly, Mr Yip had materially mistaken the outer Wall as a brick wall when it is not.

F.   Disposition

219.For my conclusion at paragraph 95 above, I allow plaintiff’s claim in trespass against D3 and grant such injunction at paragraph 185 above.

220.For my conclusion at paragraph 161 above, I allow D3’s counterclaim in trespass against the plaintiff and grant such injunction at paragraph 216 above.

221.The parties are directed to lodge their respective drafts of injunctions they have obtained for approval by this court before the same is sealed. In case of injunction obtained by D3, it should be lodged for approval after the parties have reached agreement on the Remedial Works or after this court has ruled on the same.

G.   Costs

222.On plaintiff’s claim as against D3, I make an order nisi that D3 do pay the plaintiff the costs of such claim, together with all reserved costs and certificate of counsel for the trial of such claim, to be taxed if not agreed.

223.On D3’s counterclaim, I make an order nisi that the plaintiff do pay D3 the costs of counterclaim, together with all reserved costs and certificate of counsel for the trial of such counterclaim, to be taxed if not agreed.

224.Both costs orders nisi are to become absolute if none applies in writing to vary within 14 days.

225.Finally, I thank Mr Cheung and Mr Ng for their valuable assistance at this trial.

Mr Chris Ng, instructed by Messrs. Wong & Co., for the plaintiff

The 1^st defendant, unrepresented, was absent

The 2^nd defendant, unrepresented, was absent

Mr Anthony Cheung, instructed by Messrs. Benjamin Au & Billy Chan, for the 3^rd defendant

The third party, unrepresented, was absent