Lee Kok Che and Others v. Royal Mortgage Ltd and Others

HCA 1308/2015

[2023] HKCFI 648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1308 OF 2015

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BETWEEN

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(By Original Action)

AND BETWEEN

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(By Counterclaim)

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J U D G M E N T

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A. Introduction

1.For ease of presentation, I will refer to the 1^st to 3^rd plaintiffs by Original Action (also being sued respectively as the 1^st and 3^rd defendants by Counterclaim)  respectively as “P1”, “P2” and “P3” (and collectively “Ps”), the 1^st defendant by Original Action (also suing as the 7^th plaintiff by Counterclaim)  as “D1”, the 2^nd defendant by Original Action (not involved in the Counterclaim)  as “D2”, and the 3^rd to 8^th defendants by Original Action (also suing respectively as the 1^st to 6^th plaintiffs by Counterclaim)  respectively as “D3” to “D8”. 

2.Ps’ claim is for a right of way over a stretch of road.  It serves relevantly 5 lots of land owned or used by them (the “Five Lots”, and those 4 amongst the Five Lots occupied by P3 being the “Workshop Lots”[1]). The subject stretch of road has been called the “Suit Access Road”, and has been marked for identification purpose on Annex 1A annexed to the Re-Re-Amended Statement of Claim[2] (the “RRA-SOC”).  It runs via inter alia various lots of lands registered in the names of D3 to D8.  D1 is now the mortgagee in possession of those lots.  Those lots have been collectively referred to as the “Suit Land”.

3.During the trial, Mr Andrew Mak and Ms Vivian Chan appeared for Ps.  The defendants did not appear, whether in person nor by any legal representatives.  I will say more about the parties below.

B.  The Suit Land, the Suit Access Road, and the parties

4.San Wai Tsuen (新圍村)  is located within Demarcation District No. 104, Yuen Long, the New Territories (“DD 104”).

5.All the Five Lots and the Suit Land are within San Wai Tsuen. 

6.The Suit Access Road starts off from Ching Yau Road[3] where Lot 1615 is at, runs via divers lots of land before it reaches Lots 2121A and 2121RP, and then continues towards the Five Lots, the end of which abuts the north-easterly portion of Lot 1993.  At where Lots 2121A and 2121RP are, there are 2 branches, which have been called (1) the “1^st Branch Access Road” (running southeast and ending at Lots 2037 and 2038), and (2)  the “2^nd Branch Access Road” (running northwest and ending at Lot 2116).  

7.The Five Lots are Lots 1992, 1993, 1994, 2184 and 2185.  The latter 4 (i.e. Lots 1993, 1994, 2184 and 2185)  are the Workshop Lots.

8.P1 and P2 are husband and wife.  They have since February 1989 been the registered owners of the Five Lots.  They have built a residence on Lot 1992, and have been living there since about 1998.  

9.P3 is a limited company incorporated in Hong Kong.  P1 and P2 have been 2 of its directors and major shareholders.

10.P3 has been occupying the Workshop Lots and running a steel furniture workshop there.  It did so initially as a licensee, and subsequently as a tenant.

11.The Suit Land comprises a number of lots:

(a)  Lot 1615, which is owned by parties not before this Court;

(b)  A government lot (the “Access Road Government Lot”);

(c)  Lot 2121A, which is owned by P1; and

(d)  The following lots, which are variably registered in the names of D3 to D8.  I set the particulars out, together with the dates when the defendants acquired the same, in the following table:

	Lots	Registered owners	Since
1	2123	D2	22-12-2015
2	4160D	D3	02-02-2009[4]
3	4160E
4	4160F
5	4160G
6	4160H
7	4160I
8	4160J1
9	4160JRP
10	4160A
11	4160RP	D4	02-02-2009
12	2122	D5	03-05-2008
13	2077A
14	2121RP	D6	29-10-2010
15	2079
16	2080	D7	20-02-2008
17	2078
18	2054
19	2082RP	D8	20-02-2008[5]
20	2082C
21	2082D
22	2082E

12.D1 is the mortgagee in possession of those lots owned by D3 to D8.  D1 has entered into settlement with Ps as embodied in the Tomlin Order granted by this Court of 3 January 2023[6] (the “Ps/D1 Tomlin Order”).

13.D2 had at an even earlier stage and separately entered into a separate settlement with Ps, as embodied in the Tomlin Order of Lok J of 27 July 2022.

14.In relation to D3 to D8:

(a)  They are corporate entities;

(b)  They filed their Defence and Counterclaim on 22 October 2015 (the “D&CC/D3-D8”).  They have not since then taken any further active part in the proceedings;

(c)  They have since 26 November 2021, when their previous solicitors were granted leave to cease to act, been unrepresented;

(d)  No application has been made by any of their directors to represent them;

(e)  They were absent during the trial;

(f)  Specifically in relation to D3:

(i)  It was struck off the Companies Register and dissolved on 31 December 2021 pursuant to s746(2)  of the Companies Ordinance Cap 622(“CO”);

(ii)  It has subsequently been restored to the Companies Register in other court proceedings unrelated to the present action;

(g)  Specifically in relation to D5 and D7:

(i)  They were dissolved respectively on 13 May 2021 and 29 April 2021 following compulsory winding up proceedings;

(ii)  They have subsequently been restored pursuant to Court Orders made in other court proceedings unrelated to the present action for limited purposes only;

(iii)  Upon Ps’ applications, Master J Wong on 18 January 2023 granted Ps leave under s186 of the Companies (Winding Up and Miscellaneous Provisions)  Ordinance Cap 32 to proceed against D5 and D7 in these proceedings;

(h)  Specifically in relation to D6:

(i)  It was a non-Hong Kong company registered in the British Virgin Islands (“BVI”);

(ii)  Ps have obtained a legal opinion on D6’s status under BVI law[7]:

(1)  D6 was struck off the Companies Register in BVI on 1 November 2014 and subsequently dissolved on 31 October 2021 for non-payment of fees for 7 years;

(2)  Its current registered agent is Bolder Corporate Services (BVI)  Limited, and there is no indication that it has resigned;

(3)  According to the BVI Business Companies Act 2004[8] (“BCA”), the directors, members liquidator or receiver of a struck-off company may not commence or defend any legal proceedings, make any claim or claim any right for, or in the name of, the company.  However, the fact that the company is struck off the Register and dissolved does not (1)  absolve the company from any liability that arose or would have arisen prior to its striking off and dissolution, (2)  prevent any creditor from making a claim against the company and pursuing its claim through to judgment or execution, or (3)  affect the liability of any of the company’s members, directors, officers or agents;

(4)  An application may be made to the BVI Court for the restoration of such a company to the Register by certain classes of persons[9] upon satisfaction of certain conditions[10];

(5)  Till date, there has not been any such application.

(i)  The Counterclaims of D3, D4, D6 and D8 have been provisionally struck out more than 3 months ago for non-attendance of Case Management Conferences or Pre-trial Reviews, and hence have since been dismissed – see Order 25 rule 1C(6);

(j)  Given the rather unusual status of D5 and D7, Ps have not previously sought any order for D5 and D7’s Counterclaims to be provisionally struck out despite their non-attendance of Case Management Conferences and Pre-trial Reviews (earlier before Lok J and subsequently before this Court).  Their Counterclaims will have to be dealt with during this trial.

C.  Whether to proceed in absence

15.I have read the affirmation of service of Wong Wing Kan of 6 February 2023.  I am satisfied that D3 to D5, D7 and D8 have either been served with the necessary documents and/or provided with the notice of the hearing of the present trial.  In so far as D1 is concerned, in a letter of 3 February 2023, D1’s solicitors (who attended the Pre-trial hearings on D1’s behalf), with reference to certain exchanges between this Court and D1’s solicitor during that the 2^nd Pre-trial Review on 31 January 2023, and given the Ps/D1 Tomlin Order and the stay of the proceedings as between them, stated that they have no locus standi to attend the trial until a separate application has been made by either side under the liberty-to-apply clause, and that they have no instruction to make one at the moment.  I note also that there exists common management amongst the defendants.  Leung Chi Yan (梁熾仁)  is company secretary of D1, the sole director of D8, and the manager of D3 to D8 at least at the time when he signed the Statement of Truth of the D&CC/D3-D8.

16.In relation to D6, while notice of hearing has been served upon its registered agent, I record that Mr Mak informed this court in the course of his oral opening that, given the current status of D6, and given the authorities which he would go further into, he would in the course of his closing and after evidence invite this court to stay the action against D6, and that this Court might consider doing that as part of the Judgment.  One main reasons for him taking that course is the possibility of D6 being restored in the course of the trial, which possibility Ps could have no control, and the difficulty that that eventuality might present if the case against D6 were to be stayed at the outset of the trial.  I will come back to this later.

17.In the circumstances, I deem it appropriate to continue with the trial in the absence of D3 to D8.

18.Despite the non-participation of D3 to D8, Ps proceeded in their absence to prove their case.

D.  Parties’ pleaded cases

19.The Writ and the Statement of Claim are both dated 15 June 2015.  There have been several rounds of amendments. The current RRA-SOC is dated 8 November 2022.

20.Ps case is that there has been dedication of the Suit Access Road as a public highway.  They rely on the common law presumption to that effect (§14 of the RRA-SOC), or alternatively that the predecessors-in-title of the Suit Land have dedicated the Suit Land as a public highway which dedication have been accepted by members of the public (§§13-16 of the RRA-SOC, and §(1)(a)  of the prayer for relief)  and consented to by the Government (§17 of the RRA-SOC, and also §(1)(a)  of the prayer for relief).  Further or in the alternative, they rely on the doctrine of lost modern grant (§§18-19 of the RRA-SOC, and §(1)(b)  of the prayer for relief).

21.As presented by Mr Mak during the trial, the primary basis of Ps’ claim is the doctrine of lost modern grant, which strength Mr Mak submits is overwhelming. 

22.In D&CC/D3-D8, P1 and P2’s occupation of Lot 1992 as residence, P3’s operation of a steel furniture and steel works workshop at the Workshop Lots, and the existence of the Suit Access Road[11] are admitted.  In defence, D3 to D8 plead, relevantly, as follows:

(a)  They deny in general any public dedication or consent by the government (§§13-20);

(b)  The use of the Five Lots by Ps for residential and industrial purposes has amounted to a radical change in the character of the Five Lots from their previous user for agricultural purpose (§22 and the Particulars thereunder);

(c)  Ps’ actual use of the Workshop Lots are in breach of the terms of Ps’ application for planning approval as approved by the Director of Planning and in breach of the conditions of a short term waiver which Ps received from the District Land Office Yuen Long (Particulars (q)  under §22);

(d)  The use of the Suit Access Road by Ps has resulted in a substantial increase or alteration in the burden on the same (§23 and the Particulars thereunder);

(e)  The use at the material times of the Suit Access Road was subject to the express consent of D3 to D8’s predecessors-in-title (§24 and the Particulars thereunder), and that since no later than May 2008, D3 to D8’s predecessors-in-title had openly been objecting to Ps’ use of the Suit Access Road over the lots owned by D3 to D8 (§25 and the Particulars thereunder);

(f)  Even if any right of way over the Suit Access Road had been established, it has as a result been extinguished as a result of the matters pleaded in §§22 and 23 of the D&CC/D3-D8 (§26).

23.D1 has also filed a Defence, principally adopting and relying on the defences raised by D3 to D8.

24.No defence has ever been filed by D2.

E.  The Issues

25.Mr Mak has identified the following 7 issues. Subject to the reservations I have about Issue 6 which I will explain below, I am of the view that they correctly and adequately cover those issues this Court is required to consider.  They are:

(a)  Issue 1 - Whether Ps have acquired pedestrian and vehicular right of way by virtue of the doctrine of lost modern grant;

(b)  Issue 2 - Whether Ps’ use of the Suit Access Road was subject to the express consent of D3 to D8’s predecessors-in-title, and whether since no later than May 2008, D3 to D8’s predecessors-in-title had openly been objecting to Ps’ use of the Suit Access Road;

(c)  Issue 3 - Whether the use of the Five Lots by Ps for residential and industrial purposes has (i)  amounted to a radical change in the character of the Five Lots; or that (ii) the use of the Suit Access Road by Ps has resulted in a substantial increase or alteration in its burden, such that the easement of the right of way would be extinguished;

(d)  Issue 4 - Whether Ps’ actual use of the Workshop Lots are in breach of the terms of Ps’ application for planning approval as approved by the Director of Planning and in breach of the short term waiver (i.e. an illegality issue);

(e)  Issue 5 - Whether there had been (i)  public dedication by predecessors-in-title of the Suit Land, (ii)  acceptance of such dedication by the public and (iii)  consent of the Government to such dedication;

(f)  Issue 6 - Whether the Tomlin Order dated 3 January 2023 settling the disputes between D1 and Ps would have the effect of extinguishing the claims of Ps against D3 to D8; and

(g)  Issue 7 - The remedy available to Ps.

F.  The trial bundles, and witnesses

26.Placed before me are a set of trial bundle comprising 8 box files, and a supplemental set comprising 5.  Apart from pleadings, witness statements and expert reports, various land search records, company search records, deeds of grant of right of way, mortgage, plans and correspondence.  I have in so far as necessary considered them.

27.Ps have called the following factual witnesses:

(a)  P1:

(i)  He has made a statement dated 13 September 2022 (“P1/WS”), which accuracy he has confirmed in the witness box;

(ii)  In gist, he explains how he and his wife (P2)  came to acquire the Five Lots, the use and occupation of the same by them and P3, and their uninterrupted use of the Suit Access Road for ingress and egress over the years.  He explains how in June 2015 D1 started to fence up Lot 2082 and block up the Suit Access Road, which conduct subsequently led to Ps seeking and obtaining an injunction against D1;

(iii)  I will deal with his evidence further below;

(b)  P2:

(i)  As said, she is P1’s wife;

(ii)  She has made a statement also dated 13 September 2022 (“P2/WS”), the accuracy of which she has confirmed in the witness box;

(iii)  Her evidence is to similar effects as that of P1;

(c)  Lee Ching Shu Carson (李正樹)  (“Carson Lee”):

(i)  He is the youngest son of P1 and P2.  He is also a director of P3;

(ii)  He has made 2 statements dated 13 September and 18 October 2022 (respectively “CL/WS1” and “CL/WS2”), the accuracy of which he has confirmed in the witness box;

(iii)  In CL/WS1, he has amongst other matters given some further details about the operation of P3, its use of the Suit Access Road, the background of the defendants, and certain transaction history about the Suit Land;

(iv)  CL/WS2 was prepared in answer to the witness statement of Li Kwok Wai filed on behalf of D1.  I record that Li Kwok Wai has not been called, and his witness statement not adduced;

(v)  I will deal with Carson Lee’s evidence further below;

(d)  周振勤 (“Chau”):

(i)  He has made a statement dated 13 September 2022 (“Chau/WS”), the accuracy of which he has confirmed in the witness box;

(ii)  He was born in San Wai Tsuen in 1964.  He grew up there.  He has since 2015 been the village representative of San Wai Tsuen.  His evidence relates to the use of the Suit Access Road at different stages over the years by himself and his family, other villagers, Ps, public and utilities officers and personnel, and members of the public;

(iii)  I will deal with his evidence further below; and

(e)  張基敬 (“Cheung”):

(i)  He has made a statement dated 2 September 2022 (“Cheung/WS”), the accuracy of which he has confirmed in the witness box;

(ii)  He was born in San Wai Tsuen in 1954, and grew up there.  Save between 1968 and 1976, he had been living at Sai Wai Tsuen until 1991.  Similar to that of Chau’s, his evidence relates to the use of the Suit Access Road at different stages over the years by himself and his family, other villagers, Ps, public and utilities officers and personnel, and members of the public;

(iii)  I will deal with his evidence further below.

28.Ps have also called the following expert witnesses:

(a)  Horace Mak (“Horace Mak”):

(i)  He is called as a traffic engineer;

(ii)  He has prepared a report dated 13 September 2022[12] (“Mak/Rep”)  “on the proper alignment(s)  and minimum width(s)  of all the divers constituent stretches or parts of the Suit Access Road required for the safe passage of pedestrians and vehicles including 16-tonne trucks over and along the same”[13];

(iii)  As summarised by him in the course of his testimony, he has conducted a detailed swept path test analysis of a 16-tonne truck travelling on, over and along the Suit Access Road.  He observed that there can be clearance issues at certain specific points of the Suit Access Road.  He notes however that with reduced speed and any pedestrian giving way, “no safety issue would arise”[14];

(iv)  He concludes at §2.2.1 of the Mak/Rep that:

“… despite the aforesaid problem over and along some stretches or parts of the Suit Access Road identified …, such problem is very much ameliorated by (i)  the existence of the locations [as] set out …which can and do provide minimum space for standing pedestrians at shoulder level on either side of those locations at the Suit Access Road, and (ii)  the sensible behaviour of the drivers of the 16-tonne trucks and the pedestrians using the Suit Access Road.”

(b)  Tang Wing Lun (“Tang”):

(i)  He is called as an authorised land surveyor;

(ii)  He has prepared an expert survey report dated 3 October 2022[15] (“Tang/Rep”)  on the history of the Suit Access Road.  It covers the study period between 1962 and 2022;

(iii)  In Tang/Rep, Tang concludes at §§43 to 45[16], inter alia, that:

“43. The result of the study of aerial photos, old survey sheets and our site survey were as follows,

(i)  Aerial Photograph:

(a)  By observation of the aerial photos, we revealed that the SAR[17] appeared during the study period between 1963 and 2022 but might not be the first appearance and continued to the present date. No fence or gate was observed to block the SAR between the study period between 1963 and 2022. Hence, [P1] – [P3] could access through the SAR from Ching Yau Road without any obstructions. Moreover, there was no alternative road for [P1] – [P3] to enter their land Lot 1993 from Ching Yau Road.

(b)  There were footpaths in the same locations as Feeder Road 1 and Feeder Road 2[18] in year 1963, and the Feeder Road 1 and Feeder Road 2 were formed in the year 1972 and 1994 respectively. The villagers nearby must have used the SAR by foot or by vehicle in the past years to and from Ching Yau Road.

…

(ii)  Survey Sheet:

(a)  Throughout our study period between 1962 and 2022, no fence or gate was depicted to block the SAR. In other words, people could directly pass through the SAR from Ching Yau Road to [P1] – [P3] land Lot 1993 without any obstruction.

(b)  Since 1984, the SAR was described as ‘Road’.

…

…

44. Finally, it could be concluded that, from a land surveyor point of view, the overall alignment and widths on the SAR (subject to what I am going to say in relation to that part of the SAR which measures 3.l6m in width (‘3.16m Location’))  still provide sufficient room and space for a 16 tonne truck to travel on, over and along the SAR from Lot 1993 in DD 104 to Ching Yau Road and vice versa without too much difficulty.

45.     As for the ‘3.16m Location’, there are fence on one side of the SAR and wall on the other side.  The truck driver with sufficient care and skill could go through very slowly.”

(iv)  As summarised by Tang in the course of his oral testimony, the aerial photographs and survey sheets show that the Suit Access Road has been there in essentially the same form as it is since at least 1962. The only change is the widening of the dead end on Lots 2082C, 2082D, 2082E and 2082RP, which was carried out during 23 June 1994 and 4 June 1995 when the 2 relevant and available aerial photographs were taken;

(v)  He confirmed during his testimony that he and his colleagues did a site survey on 14 August 2022.  After the survey, he prepared and signed off Plan No. LSC/YL/4973/An1/Row1 (i.e. the “Right of Way Plan” described in footnote 1 above)[19]. It depicts the Suit Access Road with the surveyed locations and boundaries of the Suit Land marked.  As said, a copy of the Right of Way Plan is attached as Annex A of this Judgment.

29.The witnesses have not been subject to any cross-examination. 

30.Specifically in relation to the experts, their expertise has not been subject to any challenge.  Having considered their experience and qualifications as set out in their reports, I ruled in the course of their respective oral testimonies that they are qualified to give evidence as experts. 

31.The evidence of all the witnesses is not inherently improbable.  There are no material inconsistencies with any contemporaneous documents.  Nor are there any material inconsistencies.  I find all of them to be honest and reliable witnesses.  I accept their evidence.

32.I will state my findings of facts relevant to each of the issues when I come to consider them below.

G.  Issue 1 and Issue 2

33.I consider Issue 1 and Issue 2 together.  They both go to the elements of the doctrine of lost modern grant that are required to be established.  In fact, as I will explain below, my view is that Issue 1 cannot be answered without having answered Issue 2 first.

G.1.   The law

34.As explained by Lord Millett in China Field Ltd v Appeal Tribunal (Buildings)  (No 2) (2009)  12 HKCFAR 342 at §41, lost modern grant is the only method by which rights of way and other easements may be acquired in Hong Kong in the absence of an actual grant, express or implied.

35.The doctrine of lost modern grant was developed in the UK with recourse to a “presumption … of a grant made in modern times, that is to say after 1189 but before the period of enjoyment relied on, and which had since been lost” – China Field, §46.

36.As to the nature of the user required to enable a right of way to be acquired pursuant to the doctrine, Lord Millett at §71 of China Field explained that:

“Such user must be as of right, that is to say not by force, stealth or licence of the owner of the dominant tenement, and must have continued without interruption for at least 20 years. ”

37.We do not have the benefit of any submissions from the defendants.  But according to Mr Mak’s understanding, which I agree, the nature of the user required (as explained above)  is the reason why D3 to D8 have raised in D&CC/D3-D8 Issue 2.  As such, and as I have stated above, I am of the view that Issue 2 will have to be considered and answered first before Issue 1 can be answered.

38.On the test to be applied, Lord Millett has further explained,[20] in the context of the public policy behind, that:

“… the test does not depend on the view which an assiduous reader might derive from the law reports, but on what ordinary people may reasonably expect the law to be. The idea that long de facto and peaceful enjoyment of a right over another’s land is no doubt based on public policy, but it also accords with people’s reasonable expectations. There is no reason to think that landowners in Hong Kong have refrained from disturbing their neighbours’ enjoyment of a right over their land because of their belief that such enjoyment, however long continued, could never mature into a legally enforceable right. Rather the boot is on the other foot. People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.” (Emphasis added)

39.The doctrine has recently been applied by Coleman J in Tai Sang Feeds Company Limited & Ors v Sharply Development Limited [2021] HKCFI 163, wherein the elements required to be established, and the nature of any right so acquired, have been reiterated at §§27 and 28, that:

“27. If a plaintiff relies on such a right acquired by prescription, necessary particulars must be pleaded and proved to show the alleged use for the continuous period of not less than 20 years, which must be uninterrupted: see Cheung Leung Tak v Cheung Chi Hung [2018] 5 HKLRD 579 at §38. The requirement for the alleged use for the continuous period of not less than 20 years does not require the claimant to establish that he himself has used the land for that period, so long as he and any predecessors in title I have used the land for that period.

28.     If the owner of the dominant tenement can establish a right of way has been acquired, it does not follow that he has an absolute right to use each and every portion of the right of way, but is only entitled to complain of substantial interference with that right by the owner of the servant tenement: see Lee Tai Property Development Ltd v Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193 at 198B-D.”

G.2.   Findings of facts

40.As I have stated above, I accept the evidence of all the factual and expert witnesses called.

41.On the evidence before me, I find that the Suit Access Road has been in existence in basically the present form since at least 1962.  Even the widening of the dead end on Lots 2082C, 2082D, 2082E and 2082RP had been carried out more than 20 years before the issue of the Writ herein.  The use has been uninterrupted.  No fence or gate has been observed to block the Suit Access Road between 1963 and 2022.  The use has not been subject to any express consent of the predecessors-in-title of D3 to D8; nor is there any credible evidence of any objection from them, and I find that there has been none.

42.In my view, the above findings are amply supported by the surveys conducted by Tang based on actual site survey, and on the aerial photographs and survey sheets which he has collected, examined and produced.  I have summarised above Tang’s expert opinion.

43.The factual evidence of Ps, Carson Lee, Chau and Cheung is to the same effect.

44.Chau’s and Cheung’s evidence is objective, and is based on their own personal experience.  See:

(a)  Chau’s evidence at §§11-13 of Chau/WS[21], that:

“11. 我母親高順女士自1950年開始便在新圍村居住。我記得我小時候該道路還沒有名稱，在2008年左右才開始被命名為「橫平山東路」。

12. 自我懂事以來，新圍村的村民（包括我和我的家人）或是外間人士多年來也都是公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步或駕駛車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返青山公路（即現在的新潭路），而不論他們是步行、駕駛或是乘坐汽車，使用該道路均從來不須付費或是徵得任何人同意或允許。

13.  該道路也經常有政府或公職人員使用，我也曾幾次目睹消防車或救護車入村內協助村民。”

(b)  Cheung’s evidence describing the uninterrupted use of the Suit Access Road in the 1960s (§§12-21 of Cheung/WS), the 1970s (§§22-24), and from the 1980s onward (§§25-28).  In relation the use of the Suit Access Road in the 1960s, he says[22] that:

“14. 其實當年在1960年代開始，新圍村內多戶人家都有飼養禽畜，主要是養豬和養雞，最早於1960年代開始的應該是馬本、上海婆（真正姓名不詳）、麥榮球、周寧瑞、和位於現時李國治夫婦擁有的地段（即地段第1992、1993、1994、2184及2185號）的關煥（肥關）[23]，其後開始的有黃明、雅園（即現時秀麗居地段）姓吳的、保園（即屬於現時倚翠軒地段）的張順餘、還有黃菊晶的母親（菊媽）、洪振民、余旭順等。禽畜的飼料都是供應商從外間用貨車送來，商販收集豬隻去屠場或雞隻去家禽市場用的也都是貨車，這些貨車也是用該道路往返新圍村。

15.  新圍村內的土地，除了用作農業也有用於工業用途的。自1960 年代尾至2000 年左右，新圍村內56號屋（即地段2053S.B. R.P.、2056R.P及2057S.B. R.P.）的周年發和余寶玉夫婦也曾經營木傢俬工廠／作坊。村內60號曾在1977至1979年被業主馮庭的弟弟用以經營紗廠。此外，地段2051號也曾被洪垣用來經營製作籐器家具的工作坊，不過是在1980年代（1981至1987年左右），時間比較後期。這些家具材料和製成品都是以大貨車使用該道路往返新圍村運送的，所以從我小時候，該道路上的大貨車往來是很尋常的情況。”

In respect of the use in 1980s and onwards, he says in particular[24] that:

“27. 約於1993年左右，我開始留意到李國治夫婦的中華鋼具廠的送貨貨車在該道路上往來。由於他們位於該道路末端，我留意到中華鋼具時，他們的廠房已經建好，工廠也已在營運中。

28.  另外，近這十年來也有不少旅遊人士不時經過上新圍村，大部分是行山或是踏單車，他們都是隨意自由往來經過該道路，從來沒有村民或其他人攔截或阻擋這些人士。”

45.I note also the following specific evidence of P1 at §§23, 24, and 32 to 35[25], which I accept:

“23. 本人與第二原告人遷入新圍村後，多年來與村內村民相處融洽，而村內每逢有慶典或過節例如春節盤菜宴等，我和第二原告人也往往樂於支持。我記憶中，已故村長黃國祺通常每年會在春節前代表新圍村村公所募捐，詢問我跟第二原告人會否支持宴會或節慶，我通常都會作出一些金錢上的支持聊表心意，金額都是隨我們意願的，這些自願性的捐助與其他村務無關，也沒有任何附帶條件 …

24. 就此，我不同意第三至第八被告人在其抗辯及反申索書第24段，指稱第一及／或第三原告人的捐助與第三至第八被告人的先前的業權持有人有關。第三至第八被告人的先前業權持有人從來沒有給予三名原告人就使用或通過該道路的任何准許。三名原告人從來沒有就使用或通過該道路支付過任何金額予任何人。

…

32. 自本人和第二原告人購入該五塊地段以來，我和我的家人丶親友以及訪客等都是公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步、駕駛或乘坐車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返該五塊地段和青山公路（即現在的新潭路），從來不須付費或是徵得任何人同意或允許。

33. 自1993年左右，第三原告人（中華鋼具）的董事、員工、供應商、運輸人員及訪客也都是公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步或駕駛車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返該廠房地段和青山公路（即現在的新潭路），從來不須付費或是徵得任何人同意或允許。

34. 從我觀察所知，新圍村的村民（包括我和我的家人）或是外間公眾人士多年來也都是公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步或駕駛或乘坐車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返青山公路（即現在的新潭路），而不論他們是步行還是駕駛汽車，使用該道路均從來不須付費或是徵得任何人同意或允許。

35.  該道路也經常有政府或公職人員使用，例如郵 差、往新圍村各住戶抄水錶的水務署職員、抄電錶紀錄的電力公司人員等。在1990或1991年，該五塊地段上的舊雞舍曾發生火警，消防車也是經由該道路前來滅火。村內許多年事已高的鄰居，也常有需要召喚救護車入村協助。”

46.I further note the following specific evidence of Carson Lee at §§18 to 23 of CL/WS1[26], which I also accept, that:

“18. 自第一及第二原告人購人該五塊地段以來，他們和家人、親友及訪客等都是公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步、駕駛或乘坐車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返該五塊地段和青山公路（即現在的新潭路），從來不須付費或是徵得任何人同意或允許。

19. 自1993年左右，第三原告人（中華鋼具）的董事、員工、供應商、運輸人員及訪客也一直有公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步、駕駛或乘坐車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返該廠房地段和青山公路（即現在的新潭路），從來不須付費或是徵得任何人同意或允許。

20. 從我觀察所知，新圍村的村民（包括第一及第二原告人和他們的家人）或是外間公眾人士多年來也都是公開、持續及不受干擾地自由及隨意在任何時候為任何目的徒步、駕駛或乘坐車輛使用或通過該道路，在村裏往來或從村裏經清攸路及竹攸路往返青山公路（即現在的新潭路），而不論他們是步行還是駕駛汽車，使用該道路均從來不須付費或是徵得任何人同意或允許。

21. 該道路也經常有政府或公職人員使用，例如郵 差、往新圍村各住戶抄電錶紀錄的電力公司人員等。我也曾多次見過消防車或救護車入村內協助村民。已故村長黃國祺在2014年左右病危時，也是召救護車送院的。

22. 我留意到最近十多年來，每逢夏季會有政府外判公司的員工到村內滅蚊蟲。我駕車到元朗廠房時，不時都會與他們的小型貨車迎頭相遇及看見他們在噴曬殺蟲劑。

23.  據我觀察，以上這些有關政府或公共事務的員工來新圍村，不論是步行還是駕駛汽車，都是隨意使用該道路進出新圍村，我從未見過有任何人向該些政府或公共事務員工收取費用或要求他們取得前者同意或允許才可使用該道路。”

G.3.   Conclusions on Issue 1 and Issue 2

47.Based on the factual findings which I have made, I answer Issue 2 in the negative.

48.Based on the factual findings which I have made, my conclusion on Issue 2, and applying the law discussed above, I answer Issue 1 in the affirmative.  I find that Ps have acquired pedestrian and vehicular right of way over the Suit Access Road as delineated in pink in the Right of Way Plan, and in particular over those lots set out in the Table in §11(d)  above.

G.4.   Some unpleaded points

49.As part of his endeavours to prove Ps’ case, Mr Mak has fairly raised and discussed a number of points even though the defendants have neither raised nor pleaded them.  Those points include (1)  the subdivision of some of the Suit Land over the years, (2)  the possibility of intervening lots along the Suit Access Road, (3) the possible co-existence of public and private right of way, and (4) the corporate status of D6.  I have considered the law and the related facts which Mr Mak has cited and referred to, which include, relevant to point (1)  Wheeldon v Burrows (1879)  12 Ch D 31 at 49, relevant to point (2)  Gale on Easements (21^st ed), §1-45, and Wong Pui Wan v Wong Wing Kwong & Ors [2018] HKDC 160 (and the cases cited therein at §§104-107, in particular Todrick v Western National Omnibus Co Ltd (1934) 1 Ch D 561), relevant to point (3)  and by way of illustration of Hau Cho Shing v Hau Chi Wing & Ors[2018] HKCFI 686, and relevant to point (4)  those matters referred to in §14(h)  above and Section L below.  I accept Mr Mak’s submissions that none of those points would affect the conclusions which I have reached above.

H.  Issues 3

H.1.   The law

50.The relevant legal principles have been explained in Megarry & Wade, The Law of Real Property (9^th ed)  at §28-013, that:

“(b)  Effect of excessive user. It has been suggested that if the burden of the easement is substantially increased, the right may thereupon be extinguished altogether, but it is thought that this is only the case where continuous easements, such as rights of light or support, are concerned. Excessive use of an easement will render the dominant owner liable in nuisance. The servient owner is then entitled to an injunction to restrain the excessive use. The grant of an injunction does not extinguish or suspend the easement itself, and once the dominant owner reverts to a lawful use, the prior excessive use will become irrelevant. The servient owner may obstruct the exercise of an easement where it is being used excessively, and where ‘it is impossible to sever the good user from the excessive user.’ An increase in the intensity of use of the dominant land, even if it is substantial, resulting in a concomitant increase in the use of the easement, does not in itself render the use excessive. Nor does the mere change of use from domestic to commercial necessarily amount to use in excess of the right granted. Nor will a change in the use of, or the erection of new buildings upon, the dominant land affect the dominant owner’s right to use the easement unless it affects the nature or extent of the use of the easement to the prejudice of the servient owner.”

51.In McAdams Homes Ltd v Robinson [2005] 1 P & CR 30:

(a)  The issue before the UK Court of Appeal was: where an easement is granted by implication on the sale of a property which is used for a particular purpose at the time of the conveyance, what are the principles governing the extent to which the easement can still be enjoyed by the owner of that property if he changes its use and/or constructs buildings on it?

(b)  Relevant to that issue, Lord Neuberger LJ derived from the authorities, in so far as they being relevant to our present case, the following 3 principles:

“24. First, where the dominant land (i.e., the property benefiting from the easement)  is used for a particular purpose at the time an easement is created, an increase, even if substantial, in the intensity of that use, resulting in a concomitant increase in the use of the easement, cannot of itself be objected to by the servient owner (i.e., the owner of the property subject to the easement)  …

…

27. Secondly, excessive use of an easement by the dominant land will render the dominant owner liable in nuisance …

…

29. Thirdly, where there is a change in the use of, or the erection of new buildings on, the dominant land, without having any effect on the nature or extent of the use of the easement, the change, however, radical, will not affect the right of the dominant owner to use the easement ...

[His Lordship then discussed a number of cases.]

33.  These cases appear to me to rest on the proposition that the servient owner is ultimately more concerned with an alteration in the nature or extent of the enjoyment of the easement over his land, rather than with a change in the nature or extent of the use of the dominant land.  The use of the dominant land will determine the character and extent of the enjoyment of the easement, and a change in the use may obviously lead to an alteration in that enjoyment.  However, where the change in the use of the dominant land does not lead to such an alteration, there is no basis for concluding that the easement cannot continue to be enjoyed in connection with the dominant land.”

(c)  At §§50 and 51, Lord Neuberger concluded that:

“50. The authorities discussed above appear to me to indicate that that issue should have been determined by answering two questions. Those questions are:

i)  whether the development of the dominant land, ie the site, represented a ‘radical change in the character’ or a ‘change in the identity’ of the site … as opposed to a mere change or intensification in the use of the site …;

ii)  whether the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land …

51.  In my opinion, the effect of the authorities in relation to the present case is that it would only be if the redevelopment of the site represented a radical change in its character and it would lead to a substantial increase in the burden, that the dominant owner’s right to enjoy the easement … would be suspended or lost.”

(d)  As to the meaning of “a radical change” and “a substantial increase”, His Lordship explained further at §55 that:

“before a change of use or redevelopment can be sufficiently substantial for the servient owner to succeed on the first question, it really must involve something ‘radical’. Similarly, before the servient owner can succeed on the second question, the cases show that the court must be satisfied that there has not merely been an increase (or change)  in the enjoyment of the easement as a result of the changed character of the dominant land, but that there has been a real increase (or change)  in the burden on the servient land.”

(e)  That two-fold test was accepted and applied by Recorder Anthony Chan SC (as his Lordship then was)  in Wan Yuk Wing v Wong Kwok Hing Patrick [2009] 5 HKLRD 143 at §§50 and 51 (and see in particular the useful passage cited there in from Gale on Easements (18^th ed, 2008)pp.382 – 384).

H.2.   Findings of facts

52.On the evidence before me, I make the following factual findings.

53.Prior to 1989 when Ps acquired the Five Lots, they were owned by Kwan. He and his family, which included his wife, 5 children and a helper, had been living at Lot 1992, in a structure built with bricks and granite. 

54.Between about 1997 and 1998, P1 and P2 demolished the structure on Lot 1992, rebuilt a village house thereon, and have been residing there since.

55.P1 and P2 have only 3 children.  They have one helper.

56.Kwan also had operated a farm on those lots.  He mainly reared chicken.  Many chicken sheds had been built there.

57.The scale of Kwan’s farm was relatively large, rearing on average 10,000 to 20,000 chicken at any time.  As described by Chau at §§14 to 16 of Chau/WS[27], which I accept:

“14. 我從出生起便跟家人住在新圍村45F號，家裏自1970年代一直經營農場飼養雞隻。當時新圍村多戶人家都有飼養家禽畜牲，飼料都是供應商的貨車運送來村裡各戶人家的農場，買家亦用貨車來取貨，他們的貨車都需要經過該道路，當時供應商和家禽商販用的通常是大貨車（尺寸與現時的3.3噸或5.5噸貨車相若）。我特別記得來我家買雞的商販通常是半夜或凌晨來我家農場取貨，以便一清早運到屠房或家禽市場。我家裡經營農場飼養雞隻至大約1995年，我父親離世後便逐漸停運。

15. 同住在新圍村的關煥(肥關)當年也是經營農場，主要飼養雞隻，農場名為「健康園」，位於現時村內李國治夫婦擁有的地段（即地段第1992、1993、1994、2184及2185號），關煥一家也居住於健康園，他們的房子位於地段第1992號上，居住於該處的包括關煥夫婦、他們的五名子女、及一名家務助理。

16.  我和關煥的孻子關建庭是開明小學的同班好友，小時候我經常到他家裡探訪所以也熟悉健康園，他們家的農場是村裡比較大型的，飼養的雞隻平均維持在一萬多至兩萬隻，往來健康園的人和車都比較多和頻密。關建庭於1983離開香港移民到美國生活，我跟他至今還保持聯繫，我每有到美國的話也會抽空探望他。”

58.Having obtained permissions from the Planning Department and District Land Office Yuen Long, P1 and P2 demolished the chicken sheds on the Workshop Lots and constructed the factory buildings there for P3’s operation, which started in 1993.

59.P3’s operation has not been on a large scale.  Its main production has remained at Dongguan.  As described by Carson Lee in CL/WS1[28] which I accept:

“25. 第三原告人的鋼具產品主要是商業或工業用途的鋼具傢俬，產品系列包括辦公及會議桌、文件架及組合櫃、儲物櫃丶工業貨架、數據儀器櫃、控制台、不銹鋼工具架及工作台等，客人可以訂購標準或自定所需尺寸的產品 …

26. 第三原告人的產品一直主要在東莞工廠生產，然後經由中港貨車運到香港，而在元朗工廠地段的廠房只作少量生產，主要負責產品潤色或修改，以及發貨予顧客前作短暫貯存之用。這運作模式自1993年元朗廠房開始運作後便一直如是。

27. 由於這種運作模式，元朗廠房的員工人數一直不多，在1993年至1997年有約10名員工恆常於元朗廠房工作，從1997年至今大約只有6名。

28. 由於已完成組裝的傢俱產品體積大及沉重，自1993年元朗廠房開始運作後，第三原告人一直都是用中港貨車16噸貨車把產品及半成品從東莞工廠運至香港元朗廠房，其中比較大型的貨品會用16噸大型貨車（包括兩邊左右後視鏡的闊度大約是3米）從元朗廠房運送至本地的客戶，亦有部分貨品會用本地中型（5.5噸）貨車運送。

…

30.   縱使第三原告人的生意額自1993年來曾經歷起伏，但第三原告人的董事、員工、供應商、運輸人員及訪客一直有持續地使用該道路，包括徒步、駕駛或乘坐私家車、大型16噸貨車及中型5.5噸貨車從該閘口通過該道路往返廠房地段。因此第三原告人一直有就該道路行使其行人及車輛通道權。”

60.From the above factual findings, I find further that:

(a)  In terms of Lot 1992, there has not been any change of character, not to mention any radical change.  The use has always been residential.  Nor has there been any concomitant increase in the use of the Suit Access Road;

(b)  Whilst the use of the Workshop Lots has been changed from that of a farm to a workshop, the use remains non-residential and business-related.  I find that the change has not been a radical one as explained by Lord Neuberger;

(c)  I bear in mind the relatively large scale of the chicken farm operated by Kwan, and the other pre-existent traffic along the Suit Access Road.  Lorries had always been used.  I have considered the use by P3 of 16-tonne lorries.  In that regard I have considered the evidence of Horace Mak and Tang, and in particular that of Tang, that with road users’ sensible behavior, there would be no safety issue.  I find that overall, there has been no substantial increase or alteration in the burden of the Suit Land as a result of Ps’ use and occupation of the Five Lots;

(d)  Even if the use and occupation of the Five Lots by Ps and the concomitant use of 16-tonne lorries have resulted in some increase in the intensity of use of the Suit Land, I am of the view and would find that:

(i)  such increase of intensity (the 2^nd issue identified by Lord Neuberger in McAdams Homes)  was not the result of any radical change in the character of the Five Lots; and

(ii)  such increase first took place more than 20 years ago, and Ps had been using the Suit Access Road as such and in such manner without interruption for upwards of 20 years.

H.3.   Conclusion on Issue 3

61.For the reasons set out above, I answer Issue 3 in the negative.

I.  Issue 4

62.D3 to D8 have not adduced any evidence on any alleged breach.

63.In any event, Carson Lee has in CL/WS2 denies and refutes any alleged breach or illegality.

64.I find that there is no evidence of any of the illegalities pleaded and alleged in the D&CC/D3-D8.

65.In any event, on the authority of inter alia Tinsley v Milligan [1994] 1 AC 340, Loyal Luck Trading Ltd v Tam Chun Wah [2008] 4 HKLRD 681 and Asian Well Technologies Limited v Lee Yee Man [2020] HKCA 65 which Mr Mak has cited to this Court, I am satisfied that, Ps’ exercise of the easement over the Suit Access Road not being illegal, and there being no need for Ps to plead any illegal use of the Workshop Lots in support of their case, any of the alleged illegalities would not have defeated Ps’ claim herein.

66.I answer Issue 4 in the negative.

67.I note for record that the alleged illegality was pleaded as Particulars (p)  and (q)  under §22 of the D&CC/D3-D8.  §22 of the D&CC/D3-D8 relates to D3 to D8’s allegation of radical change in character of the Five Lots[29].  This Court has not had the benefit of any submissions from D3 to D8.  But on the evidence before me, I fail to see how those points are relevant to the allegation of change of character.  I have nonetheless considered them.  On the analysis above, even with them taken into account, my conclusion on Issues 3 (and 4)  will remain the same.

J.  Issue 5

J.1.   The law

68.I have considered the authorities Mr Mak has cited to me and his submissions arising.  In the absence of any submission to the contrary, I accept Mr Mak’s submissions in those regards.  I summarise the applicable law as follows.

69.In Megarry & Wade, it is explained at §26-035 that:

“To establish a highway at common law by dedication and acceptance it must be shown:

(i)  that the owner of the land dedicated the way to the public, and

(ii)  that the public accepted that dedication, the acceptance normally being shown by user by the public.

Dedication may be formal, although this is comparatively infrequent.  It is usually inferred from long user by the public, so that user is thus effective to prove both dedication and acceptance.  But in order to raise a presumption of dedication there must have been open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. ... The user must also have been without interruption by the owner. …”  

and at §26-036, that:

“The length of the enjoyment to be shown depends on the circumstances of the case. Where the circumstances have pointed to an intention to dedicate, 18 months has been held to be enough; but where the circumstances are against dedication, a substantially greater period may be insufficient, especially if in recent years there has been no occupier capable of dedicating a highway in perpetuity.”

70.In Kong Sau Ching v Kong Pak Yan & Ors [2004] 1 HKC 119, having considered inter alia the passages from Megarry & Wade cited above, Reyes J identified at §19 the three relevant issues as follows:

“(1)  Is there evidence from which an intention to dedicate on the part of the owners [of the servient land] can be inferred?

(2)  Is there evidence of an acceptance by the public of any such dedication?

(3)  Is there evidence of Government consent to a dedication by the owners of [the servient land]?”

71.Government consent can be inferred from the facts – see by way of illustration Kong Sau Ching §56.

J.2.   The factual findings

72.I repeat the factual findings I have made above.

73.On the evidence before me, given the very long (since latest 1963), uninterrupted and open use over the Suit Access Road, the contents of the old survey sheets, the use of the Suit Access Road by public officers, and the absence of any evidence of overt acts by D3 to D8 to take steps to disabuse the public of their belief that there was a public right on the Suit Access Road, I am of the view that all the necessary elements for the establishment of a highway at common law by dedication and acceptance can be inferred.  I find the evidence in support cogent and substantial.

74.Mr Mak has fairly cited to me Ko Shun v Royal Mortgage Ltd[2019] HKDC 85 at §45 and Kan Sui Yau & Ors v Wong Tin Lung & Ors [2020] HKCFI 94 at §27.  In both cases, interlocutory injunctions were sought.  His Honour Judge MK Liu (in the former)  and when sitting as a Deputy High Court Judge (in the latter)  (the “Learned Judge”)  were invited to draw the inferences in favour of the existence of dedication and acceptance.  In both cases, the Learned Judge referred to the Canadian Court of Appeal decisions in Reed v Lincoln (Town) (1974)  6 OR (2d) 391 (followed in Cook’s Road Maintenance Association v Crowhill Estates [2001] OJ No. 360)  and on the evidence before him refused to draw those inferences, upon the concerns that the subject ways were situated in rural areas “where no systematic network of roads has been planned and developed”, and that “a long user of the Subject Way by the villagers … may well be due to the permission of the owner … given to the villagers in a neighbourly spirit without any intention of dedicating the Subject Way to the public”[30].

75.I have the benefit of reading Gage on Highways, Parks and the Public Trust Doctrine (2007)  18 J Env L & Prac 1 which Mr Mak has cited to me (but was not cited in Ko Shun and Kan Sui Yau), wherein the differences between the English and Canadian approaches are explained.  However, in the present case, bearing in mind that I do not have any adversarial assistance from D3 to D8, I do not find it appropriate to go into any in-depth analysis of those differences.  Whilst I have reservations about the applicability and approach adopted in Canada, which legal and geographic landscapes are very different from those in Hong Kong, I am content to observe only this.  In deciding whether any inference in favour of the existence of dedication and acceptance may be drawn, the Court’s assessment of the evidence before it is engaged.  Whilst the Learned Judge in 2 interlocutory applications on the evidence before him was not prepared to do so, on the evidence before this Court, I am prepared to draw them.  As I have mentioned above, I find the evidence cogent and substantial.

J.3.   Conclusion on Issue 5

76.For the reasons set out above, I answer Issue 5 in the affirmative.

K.  Issue 6

77.Issue 6 was framed by Mr Mak before Ps received the said letter from D1’s legal advisers of 3 February 2023[31].  D1 has chosen not to make any application to appear and to make any submissions which it says may arise from the Ps/D1 Tomlin Order.  In any event, on the face of the same, there is nothing which prevents Ps from proceeding with the action against D3 to D8.  Nor are there anything in the pleadings which require the effects of the Ps/D1 Tomlin Order to be considered.  The bottom line is that the Ps/D1 Tomlin Order embodies a separate agreement between Ps and D1, which is not the subject matter of this action. 

78.In my view, Issue 6 is hardly engaged.  That being the case, it will have to be answered in the negative.

79.I record that Mr Mak has further informed this Court that a mortgage dated 27 October 2022 between D1 (as borrower)  and Flying Mortgage Limited (as lender, of which Leung Chi Yan (梁熾仁)  has been the sole director and shareholder)  (“FML Mortgage”)  has been executed, under which, inter alia, certain of the Suit Land have been mortgaged in favour of Flying Mortgage Limited for all monies.  Again, the FML Mortgage is not a subject matter of this action, and I express no view on the question of priority between that instrument and any judgment that Ps may obtain under this action, which Mr Mak has raised in his written submissions.  The issue is again not engaged in this trial, and does not prevent Ps from proving their case.

L.  Back to D6

80.I have set out above the current status of D6.

81.As set out in the table at Section B above, D6 is the registered owner of Lots 2121RP and 2079.

82.Relevant to D6, Mr Mak makes the following submissions.

83.He starts off with the proposition that if a right of way extends from Point A to Point B and then to Point C, it matters not that there is intervening land between Point B and Point C, including government land (the “Contiguity-Not-Necessary Principle”).

84.I have considered the authorities which Mr Mak has cited to me (some of which mentioned in Section G.4 above).  The relevant law has been summarised as follows:

(a)  Sara and Dova on Boundaries and Easements (7^th ed, 2019)  at §18-003, that:

“It is sometimes said that a right of way must have a terminus a quo and a terminus ad quem, i.e. it must lead from one fixed point to another. Usually one of these fixed points will be a public highway and the other will be the dominant tenement. There is no requirement, however, that the way must lead directly to the dominant land. There is nothing to stop a person obtaining a right of way over one parcel of land for the purpose of gaining access to his own land over intervening land.”

(b)  Gale on Easement (21^st ed)  at §1-45, that:

“If land to which a right purports to be annexed is in fact accommodated by the use of the right, the right qualifies as an easement whether the dominant and servient tenements are contiguous or not.”

85.On the authorities, I accept the Contiguity-Not-Necessary Principle submitted by Mr Mak.

86.Mr Mak further submits:

(a)  principally on the authorities of Dicey, Morris & Collins on Conflict of Laws (16^th ed), Vol. 2 [30-060] and Re Banque Industrielle de Moscou [1952] Ch 919, and the effects of the relevant UK law and Hong Kong law being similar (having compared s.296 of the Companies Act 1929, s.354 of the Companies Act 1948, s.1012 of the Companies Act 2006, s.292 of the former Companies Ordinance Cap 32, and s.752, of the current Companies Ordinance Cap 622), that where a company incorporated outside the UK has been dissolved, its English assets vest in the Crown as bona vacantia, which right of the Crown or the Hong Kong government (as the case may be)  can only be defeated by a restoration of foreign company;   

(b)  but on the strength of the Contiguity-Not-Necessary Principle, whether the 2 lots of land registered in D6’s name land remains so registered and owned despite D6’s resolution, or whether they are, as contended by Ps, now government land under bona vacantia, does not affect Ps’ claim.

87.I have considered the authorities cited by Mr Mak.  There is clear force in his submissions on bona vacantia.  However, given Ps’ application to have their claim against D6 stayed (as I have recorded above), I am of the view that I should not make any what may be regarded as sweeping ruling arising from D6’s corporate status.  In any event, given my acceptance of the Contiguity-Not-Necessary Principle, it is not necessary for me to make any positive ruling on the bona vacantia point.

88.In relation to Ps’ application for a stay of their claim against D6, I have considered the relevant BVI laws placed before this court.  There is the legal possibility of D6 being revived.  I cannot foresee and pre-empt fully what may happen in that eventuality.  To be fair to both Ps and D6, I accede to Ps’ application and order that Ps claim against D6 be permanently stayed, with liberty to restore, on the basis of D6’s dissolution in the BVI, and also on the legal possibility of any eventual restoration or winding up of D6 having any bearing upon Ps’ claim against D6.

89.Having considered the matter in the round, this Court:

(a)  accepts the Contiguity-Not-Necessary Principle submitted by Mr Mak; and

(b)  orders that Ps’ claim against D6 be permanently stayed, with liberty to restore.

M.    Issue 7

90.Given the Ps/D1 Tomlin Order, all the relief which Ps are seeking against D1 can no longer be pursued.  Hence, the entirety of Prayer (2)  and (3)[32], and those part of Prayer (1)  against D1 are all out.

91.As recorded above, Ps has also settled their case with D2.  D2 is also out.

92.I have dealt with the position of D6 above.

93.In respect of the balance of Ps’ claims, I am satisfied, given their nature, declaratory relief is both appropriate and required in the interests of justice.  For the reasons set out above, I am also satisfied that Ps have proved their case for the Orders and Declarations which I shall proceed to set out.

N.  The Counterclaim of D5 and D7

94.Their Counterclaim is in effect the reverse of Ps’ claims. They seek Declarations that Ps are not entitled to or to exercise any right of way over the Suit Access Road or Suit Land, and injunctions restraining them from so doing.

95.This Court has previously expressed concern as to whether the Court has any discretion not provisionally striking out the Counterclaims of D5 and D7 pursuant to Order 25 rule 1C(1)  for their failure to attend Case Management Conferences and Pre-trial Reviews, noting the word “shall” there.  Nonetheless, for the reasons set out in the Judgment, I now dismiss their Counterclaims. 

O.  Conclusions and disposition

96.For the reasons set out above, and basing on the proposed relief set out at §200 of Mr Mak’s closing written submissions, this Court make the following Order and Declarations:

(a)  A declaration that the 1^st and 2^nd Plaintiffs by virtue of their rights acquired as owner of the dominant tenements, that is the land known as Lot Nos. 1992, 1993, 1994, 2184 and 2185 in D.D. 104, Yuen Long, New Territories (“Five Lots”), as against the 3^rd, 4^th, 5^th, 7^th and 8^th Defendants, are entitled, together with their successors-in-title, tenants (including the 3^rd Plaintiff)  and licensees from time to time of the said Five Lots, to a pedestrian and vehicular right of way for themselves, their family, staff, servants, agents and other visitors at all times and for all purposes through, over and along the whole of the road (“Suit Access Road”)  as delineated in pink colour in the Plan No. LSC/YL/4973/An1/ROW1 prepared by Mr Tang Wing Lun and dated 12 January 2023 (“Right of Way Plan”)  which right of way along the Suit Access Road for the avoidance of doubt is within the following servient tenements or intervening land lots, namely, Lot Nos. 2123, 4160 S.F, 4160 S.G, 4160 S.H, 4160 S.I, 4160 S.J ss.1, 4160 S.J RP, 4160 S.A, 4160 RP, 4160 S.E, 4160 S.D, 2122, 2121 RP, 2077 S.A, 2079, 2080, 2078, 2054, 2082 RP, 2082 S.C, 2082 S.D and 2082 S.E in D.D. 104, Yuen Long, New Territories, a copy of which is annexed at Annex A hereto;

(b)  A declaration as against the 3^rd, 4^th, 5^th, 7^th and 8^th Defendants, that their respective predecessors-in-title and the predecessors-in-title of the 6^th Defendants of those of the Suit Land currently registered in their respective names, have dedicated the respective Suit Land as a public highway for pedestrian and vehicular use, and (i)  members of the public have accepted such dedication (ii)  the Government has consented to such dedication;

(c)  The Plaintiffs’ claim against the 6^th Defendant be permanently stayed, with liberty to restore;

(d)  Without prejudice to (c), the Plaintiffs be at liberty to tax their costs against the 6^th Defendant in respect of any previous costs order(s)  that has been made against the 6^th Defendant;

(e)  Costs of this Action as against the 3^rd, 4^th, 5^th, 7^th and 8^th Defendants be to the Plaintiffs, to be taxed if not agreed, with certificate for two counsel;

(f)  No order or judgment of this Action shall be enforced against the estate of the 5^th Defendant or 7^th Defendant without leave of the Court;

(g)  The Counterclaims of the 5^th Defendant and 7^th Defendant be dismissed, with costs to the Plaintiffs, to be taxed if not agreed, with certificate for two counsel.

97.I thank Mr Mak for his assistance.

Mr Andrew Mak and Ms Vivian Chan instructed by Y K Lau & Chu, for the 1^st to 3^rd Plaintiffs (by original action) and the 1^st to 3^rd Defendants (by counterclaim)

The 3^rd to 8^th Defendants (by original action)  and the 1^st to 6^th Plaintiffs (by counterclaim), were not represented and did not appear

Annex A

Right of Way Plan (Not to scale)