Siu Chi Tat also known as Chi Tat Siu v. Land Zone Ltd

HCA 1670/2018

[2023] HKCFI 610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1670 OF 2018

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.The Plaintiff is the registered owner of Lot 450 SA (“P’s Lot”) whilst the Defendant is the registered owner of the adjacent Lot 449 SC RP (“D’s Lot”). They have a boundary dispute over an Enclosed Area at the south-eastern corner of P’s Lot and the south-western corner of the D’s Lot. The Enclosed Area is now enclosed by a wall erected by the Defendant. Each party claims that the Enclosed Area is part of his/its lot and seeks a declaration accordingly and damages for trespass.

2.The case turns much on whose expert evidence ought to be accepted. Three boundary plans have been adduced before the Court:

(1) JB’s Plans prepared by the Plaintiff’s expert, Mr John Barrett (“JB”) in 2018, which shows the south-eastern corner to be a square corner and the Enclosed Area to fall within P's Lot;

(2) HM's Plan prepared in 1997, relied on by the Defendant’s expert, Dr Conrad Tang (“CT”) in his expert report in 2019, which shows a curved corner instead, and the Enclosed Area fell within D’s Lot. HM's Plan was prepared by Mr Helicon Ma (“Ma”) in respect of P’s Lot, but the Plaintiff disputes that it was done on his behalf; and

(3) Government’s Plan (ie the 2019 Lot Index Plan) prepared by the Government in October 2019 after commencement of this action. It also shows a curved corner but the arc and hence the Enclosed Area appear to be much smaller. HM's Plan was returned by the Government to Ma after the Government’s Plan was prepared.

3.The Plaintiff invites the Court to accept JB's Plans (being made after a proper survey of land); alternatively, the Government’s Plan. His case is that:

(1) Lot 450 (mother lot of P’s Lot) clearly had a straight-angled corner as shown in the 1905 D.D. Field Sheet. HM's Plan fails to respect and follow the shape and location of the boundary features in the 1950s to 1960s. Had Ma done so, he ought to have, at the very least, defined the common boundary to have the Small Arc as in the Government’s Plan instead of the Bigger Curve in HM's Plan.

(2) Just because the eastern and southern fencing features created by the Plaintiff’s predecessors in title in 1955 to 1969 had a curved corner at the south-east intersecting point does not lead to the conclusion that the common boundary should have a small curve at that corner. The shape of the mother Lot clearly had a straight corner and the shape was to be defined at the time of the grant. The Plaintiff suggests that the south-eastern boundary should be straightened to form an intersecting point to encompass the small triangular area between the sharp corner and the Small Arc.

(3) The whole plank of the Defendant’s case on why HM's Plan is correct is that there ought to be a wedge-shaped piece of land (“Wedge”) separating P’s Lot from a proposed new road as purportedly shown on the 1969 Conveyancing on Sale Plan and the 1990 Resumption Plan. However, the Plaintiff has established in cross-examination that the size, shape and location of the Wedge as shown on the 2 Plans were significantly different. HM's Plan was incorrect.

4.The Defendant disagrees, pointing out that the statement of claim (“SOC”) has not been amended to rely on the Government’s Plan and the Defendant would be prejudiced in that the Director of Lands has neither been joined as a party nor called as a witness. The Defendant invites the Court to accept HM's Plan.

5.Neither side has pleaded any subsequent agreement to fix or change the common boundary. This case is not about adverse possession, easement, estoppel, waiver, election or limitation but about what the true boundary is. The fact that each party had his own perception as to how the disputed part of the land has been used in the past and why P’s Lot became landlocked are of little weight when compared to the expert evidence.

B. UNDISPUTED FACTS

6.Since 16 February 1994, the Plaintiff has been the registered owner of Section A of Lot No. 450 (“Lot 450 SA” or “P’s Lot”). Since 18 June 2007, the Defendant has been the registered owner of the adjacent lot, namely The Remaining Portion of Section C of Lot 449 (“Lot 449 SC RP” or “D’s Lot”). Both Lots are situated in Demarcation District No. 130 in Tuen Mun.

7.Subject to the dispute on the common boundary, the locations of P’s Lot and the D’s Lot are shown on the 2018 Lot Index Plan dated 10 September 2018. The Enclosed Area is shown on this Plan as falling within the D’s Lot.

8.The disputed area is enclosed by a wall (described as “CF Wall”[1] in JB's Plans) erected along the curved boundary of the Enclosed Area, shown coloured pink on the Plan annexed as Schedule B to the SOC. Based on JB’s calculation, which is not disputed, the Enclosed Area is about 19.4 m². On each side of the square corner, the DE Wall measured 8.015 metres, whereas the EF Wall is 8.83 metres.

9.The Block Government Lease is dated 1905. Lot 450 and Lot 449 (ie the respective parent lots of P’s Lot and the D’s Lot) are shown on the D.D. Field Sheet 130 dated 1905 (“1905 D.D. Field Sheet”).

10.On 14 November 1969, there was a Conveyancing on Sale of Lot 449 SC with a plan (“1969 Conveyancing on Sale Plan”), which showed:

(1) The sub-division of Lot 449 into SA, SB, SC;

(2) A Proposed New Road (later built as “San Hing Road”) separating the original Lot 449 into 2 parts;

(3) The area of the Proposed New Road was carved out as Lot 449 RP; and

(4) Lot 449 SC is made up of 2 portions, one on each side of the Proposed New Road.

This Plan is one of the focal points of debate over the Wedge formed at south-east of P’s Lot.

11.On 28 December 1972, Lot 450 was-sub-divided into SA (ie P’s Lot), SB and RP. The Division of Properties had a plan attached to it (“1972 Division Plan”). This Plan is another focal point of debate concerning the Wedge.

12.The Plaintiff’s father acquired P’s Lot on 8 January 1973. In the same year, he caused a 2-storey building (“Old Building”) to be built on the land.

13.By a Notice of Resumption dated 28 June 1990 with a plan attached (“the 1990 Resumption Plan”), the Government resumed, for the purpose of building the Proposed New Road, amongst others: (i) the whole of Lot 449 RP, (ii) a part of Lot 449 SB; and (iii) a part of Lot 449 SC. The resumed part of Lot 449 SC is called Lot 449 SC1, whereas the remaining part became Lot 449 SC RP, ie D’s Lot. The 1990 Resumption Plan is another focal point of debate concerning the Wedge.

14.The Proposed New Road that came to be built in around 1992 was San Hing Road.

15.The Plaintiff became the registered owner of P’s Lot in 1994. In 1996, he applied to rebuild the Old Building.

16.HM's Plan, dated September 1997, was deposited by Ma & Associates at the DSO of Tuen Mun (“DSO”) on about 27 October 1997. It was a setting out or survey plan on P’s Lot. It is heavily relied on by the Defendant to show that the common boundary has a curved corner.

17.Upon the Plaintiff’s request, the District Lands Office of Tuen Mun (“DLO”) suspended his application for rebuilding on about 14 July 1998.

18.It is the Plaintiff’s case that he discovered the existence of HM's Plan in around mid to late 2007. He entered into a series of exchanges with Ma between May 2019 and January 2020. The Plaintiff claimed that he did not commission Ma & Associates for a land survey and repeatedly pressed Ma to clarify who his client was. Ma claimed that he could not ascertain who the client then was in 1997 as all the documents were lost and Ma & Associates had closed down.

19.When the Defendant became registered owner of D's Lot on 18 June 2007, it commissioned Tang Wing Lun (“Tang”), Authorized Land Surveyor (“ALS”) of Leung Shou Chun Land Surveying Consultants Ltd (“LSC Ltd”) to survey D’s Lot and prepare a report to see if that Lot was subject to adverse possession. A survey plan dated August 2007 was prepared by Tang (“Tang’s Plan”).

20.The Defendant subsequently attempted to erect a brick CF wall of about 4 feet to enclose the Enclosed Area.

21.There were then email exchanges between the Plaintiff and his son with the Lands Department (“LandsD”) in November and December 2007 concerning the brick wall and the LandsD referred to HM's Plan and Tang’s Plan. The Plaintiff asked the LandsD who commissioned for Ma’s survey of P’s Lot.

22.Between 2008 and 2010 there had been discussions on the sale of the Enclosed Area by the Defendant to the Plaintiff. A carving out plan had even been prepared by LSC Ltd. However, no sale had taken place.

23.In around 2014, the Plaintiff went ahead with his application for redevelopment of P’s Lot with a plan attached (“2014 Building Licence Plan”) to the Modification Letter dated 9 October 2014 from the DLO/TM to the Plaintiff (“2014 Modification Letter”).

24.By a letter dated 31 March 2015 from the Plaintiff’s then solicitors, Jessica Wong & Co, to the Defendant, the former alleged that the Plaintiff and his father were entitled to a right of way over the Enclosed Area.

25.By a judgment in HCA 10/2008 dated 2 May 2017, the Defendant was held entitled to recover possession of, amongst others, the D’s Lot from trespassers. An appeal against the Judgment was dismissed by consent on 30 July 2018.

26.Before the trial of HCA 10/2008 took place, the Defendant had on 30 April 2013 obtained judgment against the original claimant (trespasser) of Portion 1. After that, the Defendant enclosed Portion 1 with metal sheet hoarding fence along the curved boundary of the Enclosed Area. The Plaintiff became landlocked.

27.In May 2015, the Plaintiff caused the metal sheet hoarding to be cut open to create a door on the western end of the CF Wall. This resulted in a warning from the Defendant to the Plaintiff’s son. The Defendant built a concrete wall (ie part of the CF Wall) within the Enclosed Area to block the Plaintiff’s door.

28.Also in around March to May 2015, there were exchanges between Wong Tim Man (estate agent) and the Defendant on exchange of land between the Plaintiff and the Defendant. The part of the D’s Lot that was suggested to be put up for exchange by the Defendant was the Enclosed Area.

29.It is the Plaintiff’s case that, in September 2015, he had obtained a licence from the owner of the adjacent Lot 450 SB, to use Lot 450 SB for access to P’s Lot and he started demolition of the Old Building and rebuilding a new one. The Certificate of Compliance for the new building on P’s Lot (“New Building”) was issued on 1 December 2017.

30.Upon the Plaintiff’s commissioning, JB did a survey of P’s Lot and produced a report dated 21 February 2018 and 2 dimension plans (respectively “JB’s Plan 1” and “JB’s Plan 2” and collectively “JB’s Plans”). The survey results were given to the District Survey Office (“DSO”) on 16 April 2018.

31.The Plaintiff commenced this action on 18 July 2018.

32.Based on the allegation that P’s Lot had become land-locked, the Plaintiff applied for and obtained an interim injunction order on 30 November 2018 to have an opening made at the CF Wall (“Injunction”).

33.From 4 February 2019 and until 13 June 2019, there was a chain of email exchanges between the Plaintiff and DLO, in which the Plaintiff complained about the “voluntary submission” of HM's Plan to the DSO back in 1997, and the survey by Ma of which the Plaintiff had no knowledge. The Plaintiff sought to rely on JB’s Plans instead.

34.From 30 May 2019 and until 22 January 2020, there was another chain of email exchanges between the Plaintiff and Ma, in which the Plaintiff complained to Ma of the survey done by him in 1997 and the submission of HM's Plan to the DSO. The Plaintiff demanded Ma to remove HM's Plan from the DSO.

35.In around October 2019, the DSO/TM updated the common boundary between P’s Lot and D’s Lot by the Government’s Plan. The CF Wall was no longer located on part of D’s Lot but fell within P’s Lot, as the curved boundary has moved to the east with the result that the Enclosed Area has become much smaller in area. JB was informed by the DSO accordingly by a letter dated 20 December 2019.

36.From 23 January until 27 April 2020, the Plaintiff engaged in another chain of email exchanges with the DLO, in which the Plaintiff stated that according to the survey done by JB, the southern boundary of P’s Lot should be “fully open without a curve”. The Plaintiff complained that HM’s Plan was still being used as a record/reference in DSO.

37.Under cover of a letter dated 20 April 2020, DSO took the initiative to return the original of HM’s Plan together with supporting documents to Ma and the Plaintiff was informed accordingly on 27 April.

C. AGREED ISSUES

38.There is no dispute that the burden is on the Plaintiff to establish that the CF Wall was erected within the boundary of P's Lot. The core issue is where the common boundary is.

39.If the Plaintiff is entitled to the Enclosed Area, the further issues on relief are whether he is entitled to:

(1) additional cost of redevelopment due to the Defendant’s trespass of the Enclosed Area;

(2) loss of rental;

(3) a declaration as to ownership;

(4) an injunction to restrain the Defendant from trespass;

(5) an order compelling the Defendant to demolish the CF wall; and

(6) an order for the Defendant to deliver vacant possession of the Enclosed Area.

40.If the Defendant is entitled to the Enclosed Area, the issue is whether he is entitled to a declaration accordingly and damages for trespass.

D. LEGAL PRINCIPLES FOR DETERMINING BOUNDARY

D1. General principles

41.The starting point for deciding the position of the common boundary between two adjoining pieces of land is the conveyance whereby their ownership was divided, though subsequent conveyances may still be relevant if no original conveyance dividing the properties can be found: Sara and Dovar, Boundary and Easements (7^th Ed) at [1-001].

42.As explained by Mummery LJ in Pennock v Hodgson [2010] EWCA Civ 873 at §9:

“(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land…

(2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.

(3) Precise boundaries must be established by other evidence. That includes inference from evidence of relevant features of the land existing and known at the time of the conveyance.

(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.”

43.In the Hong Kong context, it is the Block Crown Lease and the delineation on the D.D. sheet that should be looked at in resolving the boundary dispute: Liu Ma Cheung & Ors v Lian Yin Fu, HCA 181/2004 (unrep, 26 October 2007), §14, Recorder Kenneth Kwok SC.

44.The relevant part of the conveyance for establishing the boundary is the parcels clause, which will often refer to the plan. It is equally important, however, to consider what other descriptions are contained in the parcels clause, such as the name, description and measurement of the property; and what reference, if any, is made to the plan: Boundary and Easements at §§1-003 to 1-005, 1-010, 1-012 to 1-014.

45.Measurements contained in the parcels, or the plan may be either dimensions or areas or even lines drawn between two points of uncertain identity. Either have their pitfalls. They may simply be wrong. Equally it may be almost impossible to establish a datum point. Area measurements can only be used as a check since they cannot establish the shape of the property. Furthermore, there is more than one way of measuring the area of a piece of land and two surveyors will not necessarily reach the same result. Nevertheless, it is important not to ignore the measurements and areas, whether shown in the body of the conveyance or the plan. See Boundary and Easements at §1-010.

46.Furthermore, measurements in the parcels are often qualified by the words “or thereabouts”, which do not render them useless but do prevent an over-exact extrapolation. If the measurements are on an “identification only” plan, their significance is again reduced, and they become just one element in the extrinsic evidence to be considered by the court: Boundary and Easements at §2-018.

47.The court may take into account extraneous evidence including subsequent conduct of the original parties to the conveyance in accordance with the principles in Ali v Lane [2007] 1 P&CR 26, §§36-38, CA; followed in Murdoch v Amesbury [2016] HKUT 3 (TCC) at §§92-94.

“36. In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.

37. The qualification is crucial. When one speaks of ‘probative value’ it is important to be clear what needs to be proved. In this case the issue concerns the line of a boundary which was fixed not later than 1947. Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related, to physical features which were in existence in 1947. Similarly, evidence of (a successor in title) Mr Attridge Senior’s understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value, even if admissible. Such evidence begs the questions whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, particularly having regard to the disused state of the dispute land during that period.

38. I would add that in principle reference to the intentions of the parties means the parties to the original conveyance. .. In none of the cases reviewed above was account taken of the conduct of subsequent owners. … ”

48.At best subsequent conveyances and other documents can be used to assist in construing what the parties meant by the original conveyance. They cannot unilaterally alter the extent of the land thereby conveyed unless they amount to a boundary agreement or give rise to an estoppel: Boundary and Easements at [2-003], citing Ali v Lane.

49.Similarly:

(1) A person cannot convey land that he does not own. If the governing conveyance, properly construed, does not include the land in dispute, the fact that a subsequent conveyance purported to convey it is irrelevant: Boundary and Easements at §2-006.

(2) Boundary features can change. The basic rule is that once established, the boundary remains the same unless there is something which can be regarded as a boundary agreement or adverse possession: Boundary and Easements at §2-018.

50.In terms of reliability of documentary records pertaining to land boundaries, the Courts have accepted the following guiding principles:

(1) DD sheet is subject to interpretation and does not serve as a conclusive boundary record: see for instance, Ho Man Lap v Ho King Kiu, HCMP 1684/2013 (unrep., 11 October 2013) at §18, CA.

(2) Survey sheets are correct to scale and contain annotations that facilitate interpretation. They are for use by laymen, not professionals, but they aid and supplement the aerial photos. The survey sheets may show features under trees which may not be revealed from the aerial photos. However, they are not as updated or informative as the aerial photos. Survey sheets may contain errors or omissions due to accessibility problem, cartographic generalization requirement and human errors. In an appropriate case, when there are inconsistencies between the aerial photos and the survey sheets, the former should take precedence: Yeung Wai Tong v Srikornvit Pranee [2022] HKCFI 606, at §50, Au-Yeung J.

51.In cases where there are real difficulties in resolving a boundary dispute where the relevant and admissible evidence is sparse, the Court should be very reluctant to see that it cannot be determined or to decide on the burden of proof. It is preferable for the Court to do the best it can, even with limited materials available, to assess where the probabilities lie: Derbyshire County Council v Fallon & Anor [2007] EWHC 1326 at §16.

D2. The Code of Practice and resolution of conflicts in boundary plans

52.The Land Survey Authority has from time to time approved and issued codes of practice for the purpose of providing practical instruction or guidance in respect of land boundary surveys: s.29 of Land Survey Ordinance (Cap. 473) (“LSO”).

53.The code of practice applicable to JB’s land survey of P’s Lot was the Fourth Edition (Revised) dated December 2006 (“2006 Code”).

54.§§1-2 of the 2006 Codes states “the requirements for carrying out all land boundary surveys in Hong Kong under the [LSO]” and that “for the purpose of control of land boundary surveys, every Authorized Land Surveyor (ALS) shall carry out land boundary surveys in compliance with the [LSO] and these regulations”.

55.As to how to resolve the conflicts in boundary information between 2 plans, the Court of Appeal explained in Chan Tat Wing v Disciplinary Board, CACV 22/2011, Reasons for Judgment dated 2 November 2012 at §§4-7:

“(4) The DSO maintains a record of land boundary plans. An ALS who, after conducting a survey, has made land boundary plans, survey record plans and survey reports would deposit duplicates of these documents at the DSO. Boundary information shown on the deposited plans would then be incorporated into the land boundary record of the Cadastral Information System (“CIS”).

(5) From to time, surveys conducted by different ALSs might result in conflicting boundaries which cause problems of incorporation into the CIS.

(6) On 5 May 1998, the Legislation Section of the Survey & Mapping Office of the LandsD issued the ‘Land Survey Authority Circular No.2/98’ [Circular] to all ALSs, setting out the Land Survey Authority’s instructions as follows:

‘When there is conflicting boundary information between two submissions, the survey with plans deposited with … the DSO first will have priority over the second one. Unless there is evidence to suggest that the boundary information of the first one is wrong, the second ALS will be advised to amend his/her boundary definition to accord with that of the first one. It would be up to the second ALS to prove the first one wrong should he/she dispute the amendment request. Even where no overt mistake can be proved in the first survey, the second ALS can always challenge the first ALS’s boundary definition in a court of law if he/she so wished. Boundaries of the second survey will be incorporated into the CIS only when the boundary conflicts have been resolved’. ” (underline added)

56.These rules, guidance and practice illustrated in the Code of Practice and the Circular are relevant to the weight to be given to the various deposited plans of a disputed lot: Ho Man Lap (CA), at §10.

57.Further, §4 of the 2006 Code sets out 5 general principles which all ALSs are required to follow when carrying out work in re-establishing the lot boundary, in order to maintain a standard practice for such work:

“(a) Follow the intention of grant – the re-established boundaries (in terms of position and dimension) and the resultant shape of the lot should not deviate materially from that as shown on the land grant document, save that part of the lot which might have been surrendered to or resumed by the Government;

(b) Adopt original occupation – the re-established boundaries should follow those surviving boundary features that are found or believed to have been in existence when the lot was first granted or when it (in case of a section) was carved out from its parent lot;

(c) Respect existing boundary features – subject to sub-paragraph (b) above, the re-established boundaries should normally follow the existing boundary features (e.g. field bunds, fences, walls, hedges, ditches, channels etc.) if the distance between these features and the relevant boundary line as shown on the grant/ assignment/ division plan is within the graphical accuracy of that boundary line. This notwithstanding, in case the exact dimensions of the subject lot are shown on the relevant grant / assignment/division plans, such dimensions should be respected unless they are proved to be wrong;

(d) Adopt common boundaries previously defined – common land boundaries previously defined by the Government or by an ALS should be adopted unless the previous boundary definition is proved to be wrong;

(e) Provide reasons for discrepancies – it is essential that the dimensions and areas of the adjacent lots be checked against their respective values as shown on the relevant land grant documents and plans or other related documents and plans, and the causes for any significant discrepancies in such dimensions and areas be identified, as this would help avoid creating any unwarranted excess or shortfall in area or undue boundary problems to the adjacent lots. In case the re-established lot boundaries should fall on some existing structures or space being occupied by persons other than the subject lot owner, extra care should be taken to ensure that no undue boundary conflicts would be inflicted as a result.” (emphases added)

58.The Guidance Notes for Land Boundary Survey issued by the Hong Kong Institute of Surveyors, also provide that in defining a land lot boundary, the professional surveyor should take every care to avoid inducing unnecessary boundary conflicts as part of his primary role (§4.2).

59.The positions of all buildings or prominent physical features, on or within 0.5 metre of a boundary line, shall be surveyed, calculated and shown as offsets on the survey record plan. Physical features beyond this and up to 3 metres need only be shown graphically: §40 of the 2006 Code.

60.If a bearing, an angle, a distance or an area is re-measured or re-calculated for verification, re-establishment or whatever reasons, the original values will be adopted if the discrepancies are within the tolerances listed in this paragraph below. If the discrepancies fall outside these tolerances the new values must be conclusively checked for correctness. If confirmed, the original values must be considered as superseded by the new values with reasons clearly recorded. The tolerances with respect to distance measurements are ± (0.015 + 0.0001 x distance in metres) metre, whereas that for area calculations is ±0.1%: §46 of the 2006 Code.

61.Furthermore, areas shall be rounded off to the nearest unit. For an area of lot under 2000 m², such area shall be expressed in m² and rounded off to the nearest 0.1m² All areas shown on plans shall be qualified with the word “about”: §47 of 2006 Code.

62.Finally, pursuant to s.33 (1) LSO:

“No liability rests upon the Government or upon any public officer by reason of the fact that any land boundary survey is carried out in accordance with any code of practice approved under this Ordinance, or that any field note, survey record plan or land boundary plan is prepared in accordance with any such code, or that the plans and records resulting from the survey are deposited with the Authority, nor shall anything in this Ordinance make it obligatory for the Authority to ascertain that the requirements of this Ordinance are complied with or that plans and records deposited with the Authority are accurate or consistent with the results of the relevant land boundary surveys or the land boundary record.” (emphases added)

E. ANALYSES OF FACTUAL EVIDENCE

E1. General principles

63.The Plaintiff and Mr Karry Chow were the only witnesses as to facts for the Plaintiff and the Defendant, respectively. Their conduct and subjective views were not probative to ascertaining the true intentions of their predecessors in title in respect of the common boundary. However, their factual evidence is of some relevance in deciding on the origin of HM's Plan.

64.When assessing credibility, the Court takes into account the inherent plausibility of a witness’ testimony and considers whether any part of it is, in a material way, contradicted by other undisputed or indisputable evidence (such as contemporaneous documents). Where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest. See Hua Tyan Development Ltd. v Zurich Insurance Co. Ltd [2012] 4 HKLRD 827, §27, Chung J.

65.As shall be demonstrated in the rest of this Section, the Plaintiff was not an entirely credible or reliable witness. On the other hand, Mr Karry Chow was frank and not shaken under cross-examination. I prefer the latter’s evidence where it was in conflict with the Plaintiff’s.

E2. Origin of HM's Plan

66.The Plaintiff resided in UK since the age of 12 and returned to Hong Kong only once a year for 10-14 days. He did not have full grasp of the details relating to the dealings of P’s Lot. His affairs in Hong Kong were admittedly entrusted to his mother, Uncle Chan Bing Kwong (“Uncle Chan”), village head or other third parties in Hong Kong. When negotiating with the Defendant, the Plaintiff relied on Wong Tim Man as the “medium in communication”.

67.The Plaintiff denied that he or somebody on his behalf had commissioned for HM's Plan. He corresponded with the government and Ma to query how HM's Plan came to be deposited with the DSO. He considered that it was not right that P’s Lot should be landlocked. He maintained a belief since 2007 that something was wrong with the curved boundary in HM's Plan and that the Enclosed Area belonged to him. And yet, the Plaintiff’s conduct was inconsistent with his case in the preceding paragraph.

68.Firstly, upon discovery of HM’s Plan, the Plaintiff had not contacted Uncle Chan or any other persons to verify if HM’s Plan was caused to be prepared for him.

69.Secondly, there could not be anyone else but the Plaintiff (acting by himself or through his mother or Uncle Chan) who would be interested in commissioning for HM’s Plan at a fee to set out P’s Lot in 1997. The Plaintiff could not suggest anybody else.

70.Thirdly, the timing of HM’s Plan (1997) matched perfectly with the Plaintiff’s application to rebuild the Old Building (1996). HM’s Plan was apparently not further acted upon because the Plaintiff was allowed to suspend his rebuilding application in mid-1998.

71.Fourthly, as evidenced by Ma’ email to the Plaintiff dated 9 July 2019, Ma had done the survey with a team of 3-4 surveyor technicians. As a matter of reality, his team could not have carried out a survey at P’s Lot as trespassers for at least 1-2 hours, without any interference from the Plaintiff’s parents who, according to the Plaintiff, lived either at the Old Building or very nearby. The Plaintiff had no answer to this.

72.The irresistible inference was that HM’s Plan was commissioned by the Plaintiff or a “third party” to whom he had entrusted the rebuilding application.

E3. Plaintiff’s belief that the boundary was curved

73.The Plaintiff asserted that “he was very shocked and surprised by [HM’s Plan] as it did not correspond with [his] understanding of the boundary of [P’s Lot].” However, the contemporaneous documents showed that he believed in the opposite.

74.As early as in the 1973 Building Licence Plan, P’s Lot already showed a curved boundary and the Old Building was built by the Plaintiff’s father on that basis.

75.It was only 34 years later, in 2007 that the Plaintiff first complained to the DSO about a brick wall erected by the Defendant along the curved boundary.

76.Almost immediately, the DSO referred the Plaintiff to HM’s Plan, asked him to seek expert advice from a professional land surveyor and contact Ma directly for clarification. The Plaintiff did none of those.

77.About 10 years later, in December 2017 when the New Building was just completed, the Plaintiff instructed JB to prepare a report for “redevelopment purpose under the instruction given by the owner”.

78.It was only another 1½ years later, on 30 May 2019, after instituting the present action, that the Plaintiff contacted Ma to query his report. The Plaintiff could not explain why it took so long for him to do so.

E4. Plaintiff’s attempts to purchase the Enclosed Area

79.Strangely enough, allegedly after discovery of HM’s Plan, the Plaintiff attempted, in 2008-2010, to purchase (or rent) the few feet in front of his gate, the Enclosed Area or the entire D’s Lot. The Plaintiff even engaged a surveyor for the purpose of preparing carving out plans for his proposed purchase, instead of ascertaining if he owned the Enclosed Area.

80.In early March 2015, a draft contract was prepared by solicitors under which the Plaintiff was to exchange a part of P’s Lot for the Enclosed Area with the Defendant, plus further compensation of $150,000 to be paid by the Plaintiff. Although the Plaintiff claimed to be in UK then and that it was his mother who engaged the solicitors, such engagement would hardly have been done without the Plaintiff’s knowledge and consent.

81.I reject the Plaintiff’s suggestion that the Defendant had agreed to sell the Enclosed Area to him at HK$200, which was below the Defendant’s acquisition cost in 2007.

82.Properly viewed, the facts in Sections E3 and E4 fortified my view that HM's Plan had an origin from the Plaintiff. The Plaintiff’s attempted purchase was more than a gesture of avoiding disputes between neighbours, but was knowledge that the Enclosed Area did not belong to him.

E5. Plaintiff’s conduct on discovery of “trespass”

83.In March 2014, the Plaintiff discovered the metal sheet hoarding fence erected by the Defendant. Despite what was a blatant trespass of the Enclosed Area, the Plaintiff still tried to negotiate with the Defendant instead of issuing a demand letter or taking recovery action.

84.It was only a year later, in late March 2015, that Jessica Wong issued a letter to the Defendant on behalf of the Plaintiff. Instead of asserting ownership of the Enclosed Area, the Plaintiff asserted a “right of way” over an “AB line”, which was a small part of the curved boundary, and demanded removal of the fence over the AB line. The Plaintiff was not able to explain how that letter could have been written that way, other than to say that he did not study it carefully at the time.

85.In early May 2015, the Plaintiff exercised self-help by cutting open the metal hoarding fence erected by the Defendant. The Defendant quickly responded by erecting a concrete wall to seal up that opening on 6 May 2015. Not only had the Plaintiff failed to take legal action but, 2 days later on 8 May 2015, Wong Tim Man contacted Mr Karry Chow, putting forward on behalf of the Plaintiff revised terms for land exchange.

E6. Redevelopment of P’s Lot

86.Eight days after judgment was handed down in favour of the Defendant in HCA 10/2008 on 2 May 2017, the Plaintiff was still trying to negotiate the purchase of the Enclosed Area, as could be seen from WhatsApp messages between Wong Tim Man and the Plaintiff.

E7. Return of HM's Plan

87.JB wrongly asserted in the Supp JS that HM's Plan has been “deleted from the Lot Index of 2019 with his [Ma’s] application to the LandsD”. The truth was that:

(1) The original copy of HM's Plan together with the supporting documents were returned to Ma on the initiative of DLO/TM, due to the “continuous enquires” from the Plaintiff “to remove a survey record plan”, such that the HM's Plan would “no longer be shared by the others”. See DLO’s email to the Plaintiff dated 27 April 2020, disclosed by the Plaintiff on 10 June 2022, 2 months before the trial.

(2) The correspondence between DLO and Ma before DLO’s email to the Plaintiff dated 27 April 2020 showed that Ma had no intention to withdraw HM's Plan although he no longer had records to show on whose behalf that Plan was deposited with DLO in the first place.

(3) JB had to admit that he had no knowledge as to whether Ma had applied to the LandsD or not.

88.In my view, this return of HM's Plan would not undermine the fact that HM's Plan was “a common land boundary previously defined by an ALS” within the meaning of §4(d) of the 2006 Code.

E8. Findings of fact

89.The Plaintiff’s conduct in this Section covered a span of over 10 years. The overwhelming conclusion is that (i) it was the Plaintiff or persons on his behalf who had commissioned for HM's Plan; (ii) the Plaintiff has always known or believed that P’s Lot has a curved south-eastern boundary as shown in HM’s Plan; and (iii) the Plaintiff has always known or believed that the Enclosed Area did not belong to him. HM's Plan is a piece of evidence strongly against the Plaintiff.

90.However, this being a boundary dispute, ultimately, it is the expert evidence which should be afforded more weight in deciding where the common boundary lies.

F. APPROACH TO EXPERT EVIDENCE

F1. Difference in Approach of the Experts

91.JB was the only expert in this case who did a survey of Lot 450 before producing the JB Report and he was keen to repeat this fact in his oral testimony.

92.CT did not carry out a survey. He reviewed deposited plans and relevant documents before relying on HM's Plan. It appeared that the Government did likewise.

93.Ma, Tang and the maker of the Government's Plan were not summoned to court to be cross-examined. This affected the weight to be put on their Plans.

F2. Credibility of JB

94.Without disrespect, JB was not a reliable witness for the following reasons:

(1) He could not explain why he stated the purpose of his 2018 report (pre-action) was for re-development purpose under the instruction given by the owner”, when the Plaintiff had just completed the New Building. He disowned that stated purpose in his oral testimony.

(2) JB could not even tell what items 14 and 15 in the Supplemental Joint Statement of the Experts (“Supp JS”) were but stated that those items “[made] the decision of results giving the Disputed Land to the Plaintiff”. He even claimed that items 14 and 15 were not surveys done by him but by “some (unidentified) person mathematically”.

(3) His 2018 Report did not refer to some relevant documents, such as the 1969 Conveyancing on Sale Plan and 1972 Division Plan.

(4) JB stated that the overlaying work on the 1949 aerial photo in his Report was not done by him but by the government, which could not be true.

(5) JB concluded that P’s Lot was 181.2 m² in area, despite noting that its registered area was only 161.8 m². He did not try to rationalize the difference of 19.4 m².

(6) He would often give an answer without knowing what the question was. It was difficult to know whether he was agreeing to a certain proposition as he seemed to answer “yes” and “no” at random.

(7) His answers were confusing such that the Court had to often express that what he said could not be heard, although it may be due to his age rather than any attempt to mislead.

(8) He kept repeating that he had done a survey whereas other plans were “not accurate” as they were “done on paper, not on the ground” or “not done by survey”, apparently disregarding the principle in §4(d) of the 2006 Code.

(9) He asserted that Ma withdrew HM's Plan without basis when the truth was that it was the Government who returned the HM's Plan to Ma on the Government’s own volition.

95.Ms Law, counsel for the Plaintiff, very fairly, did not press for a finding on credibility in favour of JB.

96.The weight of JB’s Reports must also be seen in the light of the lapse of 10 years between the time when the Plaintiff allegedly discovered HM’s Plan in 2007 and the engagement of JB in about early 2018. The Plaintiff’s explanation of the 10-year gap was that he would try all the options and it would never end until he found a solution. JB was appointed because “something was not right” and hence the Plaintiff needed another survey”.

97.The Plaintiff’s explanation must be viewed in the light of the Plaintiff having consulted 4 surveyors before he appointed JB.

98.In September 2015, the Plaintiff commenced redevelopment by demolishing the Old Building. At that point, all the plans available to him, including HM’s Plan and Exhibit P1, showed a curved boundary.

99.During cross-examination of the Plaintiff, it was revealed, for the first time, that midway through redevelopment, Wong Tim Man had, on behalf of the Plaintiff, engaged 2 surveyors to give advice on the boundary of P’s Lot. Both surveyors took the view that P’s Lot was landlocked. Despite such advice, the Plaintiff proceeded with the redevelopment.

100.All of the Plans / advice showed a curved south-eastern boundary or that P’s Lot was landlocked.

101.Such conduct of the Plaintiff spoke of an intention to shop for an appropriate land surveyor who would define the common boundary in a way that disqualified HM’s Plan. That said, there is no evidence that the independence of JB was compromised.

F3. Credibility of CT

102.CT’s was firm and not shaken in cross-examination. Ms Law takes no issue with his honesty and independence, although she submits that his evidence was in support of much of the Plaintiff’s case. She takes issue with his evidence by reference to the inherent lack of quality of the reasons he has given and by reference to information which may be derived from the historical records.

103.Although CT did not do a survey, he had referred to more public records than JB, eg the survey sheets of 1959, the cadastral survey sheets of the late 1960s and early 1970s (“1960s Cad Sheet”), the 1969 Conveyancing on Sale Plan and the 1972 Division Plan.

104.The fact that he has not done a survey, in itself, would not reduce the weight of his opinion. In any event, the original boundary features, ie the field bunds, could no longer be found at the disputed Lots in 2019 when he was commissioned to produce a report.

105.Where there was conflict, I prefer the evidence of CT to JB.

F4. Cross-examination of experts

106.There can be no objection to counsel cross-examining experts to challenge their credibility. However, care must be exercised so as not to raise new issues that an expert could not answer without investigation. Relying on visual differences between 2 plans may be shaky as the scales may be different; expert interpretation was required.

107.By way of example, Ms Law tried to cross-refer various plans to demonstrate that the Wedge appeared in different shapes and locations in the 1969 Conveyancing on Sale Plan, the 1990 Resumption Plan and HM’s Plan. This was not backed up by JB’s opinions. It involved visual comparison of plans but, as CT pointed out, he required measurements to be able to answer. He had to use a software to scan the map with the scale into the computer to millimetre level and check the coordinates, northings and eastings.

108.Similarly, when it was suggested to CT that, comparing the red line on C/64 and the red curved boundary on C/82, HM’s Plan did not follow the 1950s fence because they were graphically at different locations, CT’s answer was that such graphical difference in overlay did not necessarily mean that the features were not at the same location. This was because the survey sheet was drawn at 1:1200, and HM’s Plan was drawn at 1:1000. When both plans were blown up to 1:300, there were bound to be graphical discrepancies. Professional judgment by the land surveyor was needed to account for that.

G. ANALYSES OF THE EXPERT EVIDENCE

G1. An overview

109.There was no dispute between the experts that the Block Crown Lease and the 1905 D.D. Field Sheet (Double Lot Sheet) were the starting points to ascertain the original boundary. The 1905 D.D. Field Sheet was a historical boundary record showing Lot 450 to have a square corner. The registered area of Lot 450 was approximately 0.01 acre (405 m²).

110.The earliest available evidence of ground occupation (ie survey sheets of 1955, 1959 and 1968) showed the south-eastern boundary to have a curved corner. It was only in 1970 that the curved fence line was demolished and then rebuilt into a right angle (ie survey sheets of 1973, 1975 and 1979).

111.In 1969 and 1972, a Wedge appeared below the south-eastern boundary of the P's Lot as a result of division of property in the parent lots of P’s Lot and D’s Lot.

112.There was a long series of Plans before and after JB’s Report that consistently showed P's Lot to have a curved south-eastern boundary (1960s Cad Sheet, 1990 Resumption Plan, HM’s Plan (1997), Tang’s Plan (2007), 2007 Lot Index Plan, 2014 Building Licence Plan, 2018 Lot Index Plan and the Government's Plan.

113.And since the division of properties in 1969, the Wedge has consistently appeared below the south boundary of P’s Lot.

114.JB placed heavy reliance on the 1905 D.D. Field Sheet for his firm position that the common boundary has a square corner; whereas CT took a more holistic approach to reach the conclusion that the common boundary has a curved corner and the Wedge fell outside P’s Lot.

115.I have considered all the expert reports and plans, survey sheets and other does referred to therein. I only highlight the material ones that have an impact on the boundary inside.

G2. Block Crown Lease and the 1905 D.D. Field Sheet

116.The first principle is to follow the intention of the grant. The Block Crown Lease should be afforded greater weight than the subsequent documents as the latter merely illustrate how the land boundary has changed.

117.Unfortunately, the parcels clause of the Block Crown Lease is not fully legible. There is no plan attached to it except a very rough sketch. Boundaries are shown graphically without any dimension. Even according to JB, “the accuracy of these sheets is relatively low as the D.D. survey is carried out primarily for the purpose of rent assessment and ownership [identification].” The field bunds had disappeared after over 100 years.

118.The manner of drawing the 1905 D.D. Field Sheet was crude, using a scale of 1:3960. The smallest (rounded off) unit of 0.01 acre (equivalent to about 40.47 m²) was adopted for recording purposes in the Block Crown Lease. (This can be contrasted with eg the 1969 Conveyance on Sale Plan at 1:600 (1 inch to 50 feet); the 1973 Building Licence Plan at 1:1200; the 1990 Resumption Plan at 1:1000; the 2018 and 2019 Lot Index Plans at 1:1000.) Boundary was represented by simple lines. JB himself admitted that the 1905 D.D. Field Sheet was only of “mediocre accuracy” (Supp JS/§8.1, §1/C/192).

119.CT explained that the 1905 D.D. Field Sheet had no coordinate reference, which was the reason why it could not show accurate information on the location of the lot on the ground. However, it did show the relevant position of the lots at the time. Moreover, it provided “the primary shape of the lots” and the scale.

120.During cross-examination, Ms Law pointed out to CT various lots having curved corners, eg the south-east corner of Lot 227 (no. 534 in black) and the north-west corner of Lot 442 (no. 709 in black). She submits that, despite the scale of the 1905 D.D. Field Sheet, it was feasible for straight boundary lines and corners on the one part and curved boundary lines and corners on the other to be drawn as such to reflect the true shape of the Lots. There was thus no reason to assume that the square corner of P’s Lot should not be interpreted in that same way. She points out that CT only asserted, without bases, for the first time in cross-examination, that even though the field bunds would align in a square corner, the tip of the turning point would be a round shape.

121.In my view, Ms Law’s approach places too much reliance on visual appearance. If a curve was large enough, of course it would be capable of being shown as a curve. At a scale of 1:3960, 4 m on the ground would only be shown as 1 mm on the 1905 D.D. Field Sheet. Using the measurements in JB’s Plan 1, the EF boundary was 8.8 m whereas the DE boundary was 8 m. This corner, when “zoomed out” to the scale of 1:3960, would only be depicted as 2 mm x 2 mm on the 1905 D.D. Field Sheet, slightly larger than a dot. Obviously, a curved corner would be still shown as a square corner at such scale.

122.I am not satisfied that the 1905 D.D. Field Sheet was conclusive in showing a square corner at the south-eastern boundary of P's Lot.

123.The proposition that a boundary definition (in HM's Plan) was wrong simply because it was different from the boundary shown in the D.D. Sheet was expressly rejected by the Court of Appeal in Ho Lap Man, HCMP 1684/2013, 11 October 2013, at §18:

“We do not agree that the correlation exercises undertaken by the plaintiffs’ surveyors were tantamount to a departure from the Block Crown Lease or the DD Sheet of 1905. What these surveyors did was to re-establish the land boundary with reference to the Block Crown Lease and the DD Sheet. The DD Sheet is subject to interpretation and does not serve as a conclusive boundary record. The judge was entitled to accept the evidence of the plaintiff’s surveyor Mr S C Leung that the DD Sheet had depicted the parent lot, Lot No 198, in a wrong location.” (emphasis added)

G3. 1949 aerial photo

124.I place no weight on this aerial photo which had limited resolution and did not reveal boundary features of P’s Lot.

G4. 1955 and 1959 survey sheets, 1960s Cad Sheet, 1968 survey sheet

125.1955 and 1959 survey sheets were closest in time to the 1905 D.D. Field Sheet. The Supp JS agreed that (i) there was a curved fence corner at the southern boundary and the eastern boundary of Lot 450 (Supp JS/§§6.5.4. 6.5.5/C/185, 186); and (ii) that curved fence line was adopted as the common boundary of Lot 449 and Lot 450 in the 1960s Cad Sheet (Supp JS/§6.5.6/C/186). Whilst CT agreed in his testimony that the corner was close to a right angle, he always added that there was a curve.

126.As Ms Law submits, the relative shape and size of Lot 450 in these survey sheets were well correlated with the 1905 D.D. Field Sheet.

127.However, she also submits that it was objectively clear and consistent with the Plaintiff’s case that:

(1) The resultant shape and size of the curved fence corner were far smaller than the wedged south-eastern corner mapped by Ma in HM’s Plan. No explanation was given as to why Ma’s definition of the bigger curse was correct.

(2) There existed fence lines along or very close to the CDE points in JB Plan 1.

(3) Mr Karry Chow admitted (WS/§8(c)) that even before the Defendant’s survey of D’s Lot in 2007, there was already an existing wall along points C, D and E in JB’s Plan 1. §4(d) of the 2006 Code should be followed in re-establishing lot boundary, ie to adopt the existing boundary features believed to exist at the time of grant.

(4) CT further accepted that if the eastern and southern fence lines were straightened, the intersecting point would be located outside P’s Lot instead of within. It was immediately apparent that much of the “bigger curve” defined by Ma would fall within P’s Lot as shown on the 1905 D.D. Field Sheet. That intersecting point would be close to point E on JB’s Plans.

(5) CT confirms that using the scale of 1:300 of the 1974 aerial photo, one could calculate the size of the Wedge by straightening the eastern and southern fence lines easily. In that regard:

(a) The eastern short straight line connecting to point E would be 12mm (ie 3.6m) whereas the southern short straight line extending from point F would be 15mm (ie 4.5m).

(b) That was gravely different from the 8.015m x 8.83m sides of the Enclosed Area as defined by Ma.

(c) As CT also accepted, by reference to the Government’s Plan, that there was a clear difference between the “bigger curve” and the Small Arc.

(6) When one compared the correlation exercise as seen on the 1974 aerial photo with HM's Plan displayed at the same scale of 1:300 at, it was clear that only the boundary features along points BCD on the eastern boundary were respected in HM's Plan, but the boundary features running along points D to E on the eastern boundary and points E to F on the southern boundary were not. This violated §4(b) of the 2006 Code.

(7) It was more probable than not that HM’s Plan and the entire curved CDF boundary failed to respect the existing boundaries in the 1950s and 1960s but CT still endorsed HM's Plan. That was a plain violation of §4(b) of the 2006 Code and it was fatal to CT’s analyses.

128.I am unable to agree with Ms Law. §16 of the JB Report stated that in 1955 and 1968, fence lines were shown in the vicinity of P’s Lot. By correlating the latest features (ie house corners) as shown on the Lot Index Plan (Exhibit P2), the eastern and southern boundaries were able to correlate well with the fence lines. As Mr CY Li SC (with Mr Jeremy Kwong), counsel for the Defendant, submits, JB did not seem to take issue with the curved fence lines, and it did not support his conclusions that the south-eastern corner was a square corner or that the physical ground occupations were able to demonstrate a square corner until 1975. Ms Law’s submissions are not backed up by JB’s opinion.

129.Further, her analyses, as shall be demonstrated in the next sub-section, overlooks the existence of the Wedge as a result of the 1969 Conveyancing on Sale Plan.

G5. 1969 Conveyancing on Sale Plan

130.The 1969 Conveyancing on Sale Plan (also called the 1969 Division Plan in the Supp JS) (Exhibit D2) was a detailed field survey record which showed, for the first time, the Wedge arising out of the sub-division of Lot 449 into SA, SB, SC and RP (Supp JS/§6.5.7/C/186). The Defendant relies heavily on this Plan in support of its case that HM’s Plan is correct because there ought to be Wedge separating P’s Lot and the Proposed New Road.

131.This Plan was not referred to at all in the JB Report. The Plaintiff’s contentions are as follows:-

(1) According to JB, this Plan was not a survey that he should consider and it was irrelevant (“contention 1”);

(2) According to JB, the “skinny” wedged area “was lost and taken by the boundary” after the 1990 Resumption (2 lines marked in green by JB on Exhibit P3) (“contention 2”);

(3) CT was not up to proof about existence of the Wedge when reference was made to the Factory (in chopper shape) on the 1969 Conveyancing on Sale Plan (“contention 3”).

132.With regard to contention (1), CT’s testimony, which I accept to be more probably true, was that the 1969 Conveyancing on Sale Plan involved an actual survey due to the following reasons:

(1) The scale of the 1969 Conveyancing on Sale Plan was 1:600. At that time, the largest survey maps available from the Government was only 1:1200. This larger scale of 1:600 indicated that the 1969 Conveyancing on Sale was prepared by an architectural firm at a level of detail obtained after actual field survey and not by simply adopting some pre-existing plan.

(2) By comparing the features in this Plan with those in the 1968 survey sheet, it could be seen that some features had been updated. There were also site measurements marked on the Plan. These could only have been recorded on site in 1969 by way of field measurement.

(3) The Plan was done for sub-division purpose. The Factory was located at Lot 449 SC. It would be worthwhile to hire an architect to provide technical site measurement, to reflect the intention of the owner to sub-divide the Lot.

133.Ms Law points out that: (i) the 1969 Conveyancing on Sale Plan was obtained from the Land Registry but not the Survey and Mapping office; and (ii) as admitted by CT, the practice in the 1960s was that the architectural firm would have no knowledge of where the boundary was. An architect might, upon instructions of the owner go to the site to do measurement and portray the common boundary by reference to the occupation line.

134.With respect, there was nothing to show that the architect did not exercise his independent professional judgment to do the job properly but just listened to the owner. After the subdivision, the Lot would be owned by or sold to different persons. They and the architect would have wanted correct boundary definition. Therefore, the 1969 Conveyancing on Sale Plan was a relevant and weighty piece of evidence.

135.With regard to contention (2), Mr CY Li has demonstrated by the 2 parallel green lines on this Plan that if the skinny Wedge “was lost and taken by the boundary” after the 1990 Resumption, a lot more land above the upper green line parallel to San Hing Road would have been resumed, but that was not borne out by any plans or reality.

136.More importantly, JB himself has attached an “enlarged D.D. Sheet” to App 1.3 to the JB Report. That document showed the corner of Lot 450 SA not to be curved, but the southern boundary did not abut the Proposed New Road. Rather, Lot 450 SA and Lot 449C RP were clearly separated by the Wedge, which was part of Lot 449C. JB has never pointed this out in the JB Report.

137.Further, with reference to JB’s Plan 2, one could see that JB has treated the southern side of the sharp corner as completely abutting the Government land on the south. There was no explanation from JB as to why that was so, or how that could be deduced from the 1905 D.D. Field Sheet, given that the Government land (which was resumed in 1990) did not exist in 1905.

138.With regard to contention (3), Ms Law compared the Wedge to the location of the Factory which stood on Lot 449 in 1969. She points out that:

(1) The size, shape and location of the Wedge shown on the 1969 Conveyancing on Sale Plan were significantly different from those shown on the 1990 Resumption Plan (which HM's Plan resembled); and

(2) The intersecting point of the eastern and southern boundaries of P’s Lot (ie the tip of the Wedge opposite the straight right-angled corner) should be at a location parallel to the southern wall of the Factory.

(3) That point – which has been marked with a cross (‘X’) in red on Exhibit D1 – could hardly justify Point C on HM’s Plan (ie the tip of the Wedge opposite to the straight right-angled corner), which was 8 metres away from the southern wall of the Factory. If that was the intention and true position of the tip of the wedged area, point ‘X’ would have been plotted on the 1969 Conveyancing on Sale Plan at least 13.3 mm above the current position (at a scale of 1:600). The fact that it was not so done could not be explained away as purely a drawing error, and CT has not so contended anyway.

(4) On the other hand, the location of the intersecting point of the eastern and southern boundaries of P’s Lot as indicated in the 1969 Conveyancing on Sale Plan would coincide with Point E on JB’s Plans, ie the tip of the south-eastern straight right-angle corner.

(5) The 1984 Survey Sheet showed that the southern wall of the Factory touched the track to the south of P's Lot and D's Lot, which CT accepted in the witness box. It showed that San Hing Road was laid out at a different location touching the southern wall of the Factory and point X of the Wedge, such that there would no longer be any Wedge between P's Lot and the San Hing Road.

(6) Judging objectively at the location of the southern wall of the Factory on D’s Lot relative to the road, which was paved out in reality since 1970s, it was more likely than not that the actual road was wider than originally intended and covered the area where the Wedge shown in the 1969 Conveyancing on Sale Plan was. It was erroneous and artificial to insist that a part of P’s Lot should still be carved out now at the south-eastern corner to be regarded as part of D’s Lot.

139.For all these reasons, Ms Law submits that HM's Plan has been proven to be wrong, and JB’s Plans should be preferred.

140.I am unable to agree with Ms Law. JB never commented that the 1969 Conveyancing on Sale Plan was wrong, or explained why and how the Wedge has disappeared. All of these suggestions of Ms Law only first appeared in cross-examination of CT.

141.CT’s evidence, which I accept, was that he would not use a secondary feature such as the Factory to define the boundary. If he had to guess, he would suggest that the “red cross” marked on HM's Plan (C81) was the green cross on Exhibit D2 (1972 Division of Property). That was not point C in JB's Plan. The reason was that it abutted the track. His guess was supported by the 1990 Resumption Plan.

142.CT testified that the original intention might have been for the Proposed New Road and the Factory to be 12 feet apart (Exhibit D1) but later the track could have been changed by the land use. CT agreed that in that alignment, as Law pointed out, the southern edge of the Factory touched the track.

143.CT gave two reasons for disagreeing Ms Law’s points (3) and (4) in respect of contention (3).

(1) The Factory may have been moved and one could not assume that the Factory as shown in the 1984 Survey Sheet was the same Factory existing at the time of the 1969 Conveyancing on Sale Plan.

(2) One could not assume that the track in 1984 was exactly the same as or intended on the 1969 Conveyancing on Sale Plan. The track might have been extended.

144.These illustrated the need for investigation before CT could give a meaningful opinion. I am not satisfied that the Wedge had ceased to exist.

145.I hold that the Wedge as created by the 1969 Conveyancing on Sale Plan was not part of the land resumed by the Government nor stood on P’s Lot.

G6. 1972 Division Plan and 1972 Survey Sheet, 1973 Survey Sheet, Aerial photo of 1974

146.The Plaintiff’s evidence was that between 1970s and 1990, there was a common road to the south of P's Lot. Since the 1970s, he and his predecessors in title obtained access to and from P’s Lot via the footpath / San Hing Road (after 1990) adjacent to P’s Lot on its southern side. For security purpose, a concrete fencing wall with a locked metal gate was erected along the EF Boundary at a similar time by the same builder who built the Old Building.

147.Even before the land resumption by the Government in 1990, there was already a track or a road to the south of P’s Lot running across D’s Lot. This could be seen from the 1960s Cadastral Survey Sheet, the 1972, 1974, 1981 and 1997 aerial photos and the 1989 Survey Sheet.

148.The 1972 Division Plan divided Lot 450 into SA, SB and RP. The registered area of Lot 450 SA was 0.04 acre (162 m²), rounded off to 0.01 acre, equivalent to about 40.5 m². The corner between Lot 449 and Lot 450 was in a straight form.

149.Both experts agreed that the division of Lot 450 was based on the D.D. Field Sheet pattern; and was a division on paper only. The conversion area expressed as 161.8 m² was also taken from the rounded off figure of 0.04 acre only. The actual area could have been as big as 0.044 acre but still expressed as 0.04 acre, as accepted by CT.

150.The 1972 and 1973 survey sheets were not of significance.

151.The aerial photo of 1974 was not referred to by JB. CT noted that vegetation was cleared and a new house (ie the Old Building) was built on Lot 450 SA by the Plaintiff’s father. It was then that the previous curved fence line (seen in 1955, 1959 and 1968) at the south-eastern tip of Lot 450 SA was rebuilt into a straight corner.

152.CT accepted that the 1973 Building Licence Plan had no real significance to the re-establishment of the boundary exercise as the focus of a building licence plan was the location of the house, not the location or shape of the lot boundary.

G7. 1975 to 2014

153.In the 1975 survey sheet, new fence lines appeared in the form of a square corner, indicating that the previous curved corner fence was demolished. By 1979, the eastern and southern fence features of P’s Lot were in straight line form (Supp JS/§6.5.10/C/187) and, according to CT, had “further extended to the east”. That remained the position up until 2014. These were relied on in the JB Report as supporting a square corner [JB’s Report/§§25, 32/C/7, 8].

154.The Wedge continued to appear in the 1979 D. D. Control Sheet although P’s Lot still correlated well with the square corner of Lot 450 as illustrated on the 1905 D. D. Field Sheet.

G8. 1990 Resumption Plan

155.This Plan was the product of correlation by the Government. Whilst the fence was in straight line form, the south-eastern corner of Lot 450 SA was in a curved line form (Supp JS/§6.5.12/C/187). The Wedge was still there, though in a different shape.

156.Ms Law submits that it is unclear on what basis the boundary of P’s Lot was re-defined as it was in the 1990 Resumption Plan. It was not for the Government to redefine it. The curved corner of P’s Lot was not seen in the previous (and subsequent) survey sheets. The evidence of D’s expert, CT was also that:

(1) There was no significant change on the occupation pattern in the vicinity of P’s Lot between 1974 to 1995 as seen from the pattern shown in the aerial photos in 1974 to 1995. (CT Report/§§25, 27, 32, 34, 37, 38 [C/63, 65, 71, 73, 78-79]).

(2) There was no significant amendment made in the 1989 Survey Sheet as compared to 1984 survey sheet (CT Report/§35 [C/74]).

157.CT testified that the Wedge appeared to be “thinner” in the 1969 conveyancing on Sale Plan because that was the occupation pattern recorded by the architect on site. At that time there was significant change from previous agricultural land to a Factory and building structures.

158.CT agreed that the top point of the Wedge in the 1990 Resumption Plan was far above the south of the Factory. It did not meet 100% of the ground features in the 1969 Conveyancing on Sale Plan. However, the correct boundary of P's Lot was a curve. It was “more curved” in the 1990 Resumption Plan as it represented that Government’s understanding of the curve of the original field bunds. It was the decision of the Government, plainly for the resumption. The 1990 Resumption Plan followed the intention of the grant and did not follow the occupation feature as represented by the square corner.

159.CT said that he relied on the Government’s professional judgment that it followed the bunds when they came up with the 1990 Resumption Plan. He could not guess what the government had based its judgment on; maybe it had photos etc.

G9. HM's Plan in 1997

160.It was agreed that in HM’s Plan, the curved boundary corner in the 1990 Resumption Plan was adopted (Supp JS/§6.5.13/C/187).

161.The area of P’s Lot “by survey” in HM’s Plan was 161.8m², which tallied with the registered area of P’s Lot (CT’s Report/§39/C/80). The curved boundary in HM’s Plan also correlated with the curved boundary in the 1990 Resumption Plan (CT’s Report/§40/C/81).

162.CT has further done a correlation between the boundary in HM’s Plan and the boundary in the 1905 D.D. Field Sheet. It could be seen from such correlation that the deviation between them was not just a matter of whether the corner should be curved or straight, but that the southern boundary of Lot 450 on the 1905 D.D. Field Sheet would be further to the north (due to the government’s understanding of the turning point of the bund), and would not abut the public track at all (CT’s Report/§41/C/82).

163.As confirmed by CT, he had not seen any survey report accompanying HM's Plan. He did not know as a fact what correlation exercise was done by Ma to verify any findings he got from a field survey. He did not know what documents had been considered by Ma as the basis of his conclusion of where the common boundary lay. He only assumed that Ma made reference to some or all of the documents which CT himself reviewed when preparing the CT Report. What CT did was to perform his own correlation exercise with regards to HM’s Plan to the 1905 D.D. Field Sheet and other documents. He also overlayed the 1905 D.D. Field Sheet on JB’s Plan 2.

164.CT admitted under cross-examination that the alignment between the southern boundary of Lot 450 and the southern part of the Factory were roughly the same graphically. One could see occupation features on the south of Lot 450 was almost a straight line extending to the east. The shape of the Factory in 1979 was similar to that in 1969.

165.Ms Law submits that:

(1) The correlation on C82 shows that JB’s boundary definition followed the intention of the grant in terms of the shape of the lot but Ma’s definition fails to do so. The curved CDF boundary cut across the 1905 D.D. Field Sheet at the south-eastern corner for no good reason

(2) HM's Plan respected part of the eastern common boundary along points BCD as depicted in JB Plan 1, but disrespected the rest of the same wall as well as the EF Wall and metal gate parallel to San Hing Road.

(3) Ma mapped only part of the Wedge as falling within P’s Lot, thereby reducing the area of P’s Lot and took away the frontage of P's Lot for the benefit of D's Lot.

(4) Ma has failed to follow the intention of the Block Grown Lease in terms of the location and resultant shape of P’s Lot. The Wedge deviated materially from the square corner as shown on the 1905 D.D. Field Sheet and the earlier survey sheets. CT’s evidence that Ma’s “larger curve” referred to the “agricultural boundary” was not borne out by the aerial photos at all.

(5) It could be inferred that the square corner of P’s Lot was artificially adjusted to the curved boundary of the Enclosed Area in order for the size of P’s Lot to perfectly “match” the paper record of 0.04 acres (161.8 m²) as recorded in the 1972 Division Plan. This was unprincipled and unnecessary. The tension between HM’s Plan and JB’s Plans could not be resolved by a mere reliance on the seemingly “correct” measurement of P’s Lot in the HM’s Plan, especially when the area of 0.04 acre was an approximate and rounded-off figure only: Tam Mo Yin v AG [1996] 1 HKC 379, Yam J. In the words of CT, almost 1/3 of the registered areas of the lots covered by the Block Crown Lease was incorrect. The coincidence between the perfect 161.8 sq. m figure calculated by Ma and the registered area of 0.04 acres shown on the 1972 Division Plan was too good to be true.

(6) It was more probable than not that Ma reverse-engineered the curved CDF boundary (which did not follow any surviving boundary features) by reference to the registered area of P’s Lot.

(7) Ma’s re-establishment of the boundary unreasonably and unnecessarily reduced the actual area occupied by P and caused P’s Lot to be landlocked “on paper”. That was, a violation of the Guidance Notes for Land Boundary Survey, as Ma failed to take care to ensure that no undue boundary conflicts would be inflicted because of his boundary survey.

166.With respect, points (3) and (7) much water down Ms Law’s submission because, even accepting JB’s Plans, the Wedge had not disappeared with the building of San Hing Road or any extension of the track. The Plaintiff has failed to prove on balance of probabilities why even a part of the Wedge ought to be included in P's Lot to the detriment of the Defendant. Once again, P's Lot being landlocked was not the result of Ma’s re-establishment of the boundary but the earlier division of properties in 1969 and 1972.

167.I have found that HM's Plan was most probably commissioned by or on behalf of the Plaintiff. Ma had had the opportunity to query the accuracy of the 1990 Resumption Plan and the Wedge area, and yet HM's Plan largely adopted the 1990 Resumption Plan. The latter has stood for 21 years before this action was commenced.

168.Ma has respected the fence features of 1950s to 1960s along the BCD Wall (which JB did not dispute). Part of the eastern boundary deviated from the 1905 D. D. Field Sheet but JB took no issue with it. It reflected the original intention of the Government. The curve cutting beyond the southern boundary into Lot 449 RP would have reflected actual occupation as well. The resultant size of 0.04 acre of P's Lot was a relevant consideration and could not just be a coincidence.

169.Ms Law further submits that Ma was not keen to defend his survey or the curved boundary of P’s Lot asserted in HM’s Plan either. When approached by the Plaintiff, Ma stated that he would not object to P sending a boundary plan conducted by an ALS in re-defining the boundary to the LandsD for record. When approached by the Defendant, Ma similarly expressed no objection for amendment of his boundary plan under the advice of the LandsD.

170.Again, with respect, I am unable to see how this would assist the Plaintiff’s case. Ma had no interest in P's Lot. As a professional, he had no right to withdraw the Plan without consent of his client or prevent a land owner from seeking to have his boundary redefined.

171.I find that HM's Plan has set out the correct curved boundary and should be given full weight. The Wedge has not disappeared.

G10. 2006 Survey Sheet

172.In the 2006 survey sheet, compared with the gate and fence marked on HM’s Plan and in the 1989 survey sheet, the gate and fence had been further extended and encroached into Lot 449 [CT’s Report/§42/C/83]. I do not find this survey sheet to be helpful.

G11. 2007 Tang’s Plan

173.It was agreed by the experts that in 2007, the curved boundary in the 1990 Resumption Plan and HM’s Plan was adopted in Tang’s Plan. (Supp JS/§6.5.14/C/188).

174.D's Lot was divided into Portion 1 and Portion 2 as separated by San Hing Road and the Wedge was at Portion 1, between P’s Lot and San Hing Road.

175.It is pertinent to note that the scope of Tang’s instruction (which Karry Chow acknowledged to be correct) was to prepare a survey report of the occupation situation of amongst others D’s Lot with a view to confirming if it could have been subjected to adverse possession by others. However, it was unclear if Tang had conducted any actual field survey on P’s Lot or correlation exercises to compare Ma’s definition with the 1905 D.D. Field Sheet and other land boundary survey records.

G12. 2013 Survey Sheet

176.In the 2013 survey sheet, the gate and fence at the south of P’s Lot were removed (CT’s Report/§46/C/87; Supp JS/§6.5.15/C/188). The removal of the gate and fence coincided with the Plaintiff’s letter to the LandsD dated 3 January 2012 acknowledging that the garden wall and gate of P’s Lot was built on public footpath, and stating that he would demolish them and rebuild the same within the boundary of P’s Lot.

G13. 2014 Survey Sheet and 2014 Building Licence Plan and Setting Out Plan

177.It was agreed by both experts that the 2014 Building Licence Plan adopted the boundary of P's Lot in HM’s Plan (Supp JS/§6.5.16/C/188). The 2014 survey sheet also showed that the new fence at the south of P’s Lot had been moved northwards, to align with the south-western corner of P’s Lot (CT’s Report/§48/C/89).

178.During his cross-examination, the Plaintiff pulled out a draft Setting Out Plan (Exhibit P1) which he claimed to have been submitted to the Government pursuant to the 2014 Modification Letter before construction of the new building. It showed a curved south-eastern boundary, with no frontage to San Hing Road. As CT accepted, the surveyor would typically call it a setting out plan, instead of survey record plan because the surveyor was not asked to determine the boundary. He was only asked to set out the 4 corners of the Lot on the ground to let the builder know the boundary. It was not a survey record as such. I place no weight on this Exhibit.

G14. 2016 and 2017 Aerial Photos

179.It was agreed that in the 2016 and 2017 Aerial Photos, a new curved line wall in the south-eastern corner of Lot 450A, consistent with the boundary definition in the 1990 Resumption Plan, HM’s Plan, Tang’s Plan and the 2014 Building Licence, was seen (Supp JS/§6.5.17/C/188). This should be the CF Wall.

G15. 2018 JB’s Plan 2

180.In 2018, JB’s Plan 2 adopted all the boundaries in HM’s Plan and Tang’s Plan except the curved boundary at the south-east, which was straightened by JB into a straight corner to follow the 1905 D.D. Field Sheet. The BCD Wall respected the fence features in 1955-1960s although it actually deviated from the 1905 D. D. Field Sheet.

181.As noted by CT, by such new definition, the area of P’s Lot was increased to 181.2 m², being 12% larger than the registered area of 161.8 m². Ms Law reminds the Court not to be troubled by the difference in size. This is because the area of 0.04 acre was rounded off to the smallest unit of 0.01 acre. The range of “real value” by reason of the rounding off, was as high as +/- 20.2 m². She submits that JB’s views, supported by a survey, should prevail over CT’s.

182.However, I agree with CT that, more importantly, the deviation between the two was not just a matter of whether the corner should be curved or straight, but that the eastern and southern boundaries of P’s Lot would be entirely different from that defined by JB, and notably the straight corner would not abut the government land to the south at all (CT’s Report/§52/C/93).

183.JB’s new definition was not adopted by the Government:

(1) The subsequent 2018 Lot Index Plan continued to adopt the boundary in HM’s Plan (CT’s Report/§54/C/95); and

(2) As at June 2019 (date of CT’s Report), the Hong Kong Map Service Archives, whilst recording the submission of JB’s survey plan, still adopted the shape of P’s Lot in HM’s Plan (CT’s Report/§55/C/96).

G16. Government's Plan (2019 Lot Index Plan)

184.The Lot Index Plan would be updated when better or new boundary evidence became available to the Government. The Government’s Plan was independently prepared by DSO in view of the relentless enquiries of the Plaintiff over the correct common boundary.

185.In this Plan, DSO continued to maintain a curved but smaller corner. CT testified that on the southern boundary, the Small Arc was closer to Point E than F in JB’s Plan 1. The distance between that point of the Small Arc to Point F was about 2/3 of 8.83 metres. On the eastern boundary the Small Arc curved in at around 3 metres from Point E. CT has not been able to identify any error in the Government’s approach. He accepted that the documents mentioned in paragraph 2 of the DSO’s letter were documents which should be given significant weight to re-establish the boundary.

186.By a letter to JB dated 20 December 2019, DSO explained that it updated the Lot Index Plan by:

“[conducting] thorough investigation by examination of all available boundary evidences (sic), including but not limited to D.D. Sheet, old aerial photos, old survey sheets, different types of land boundary/correlation records in our office and land documents acquired from the Land Registry …

This office updated the common boundary of [P's Lot] and the adjoining Lot on LIP by adopting the then existing boundary features (i.e. the long lasting fence identified on the survey sheet … from 1955 to 1968). This adoption was based on the principles that the re-established boundaries and the resultant shape of the Lot did not deviate materially from that as shown on D.D. Sheet, while the then existing boundary features in 1955 and 1968 were respected.” (underline added)

H. FINDINGS ON COMMON BOUNDARY BETWEEN THE PLAINTIFF AND DEFENDANT’S LOTS

H1. Whether the Plaintiff has proved that the HM's Plan was wrong

187.After 1990, all ALSs, including Ma, adopted the curved boundary as set out in the 1990 Resumption Plan without query or explanation. HM's Plan matched all the previous government records. By the operation of §4(d) of the 2006 Code, HM's Plan, being earlier than JB's Plans and the Government's Plan, is deemed to be correct unless “proved to be wrong”. The purpose of this principle is to achieve consistency in boundary survey results: Chan Tat Wing v Disciplinary Board, CACV 22/2011, Reasons for Judgment dated 2 November 2012, §§6-8.

188.Hence, the first question to ask is whether the Plaintiff (by JB’s Plans) has managed to prove that the earlier HM’s Plan was wrong. I have taken into account the following factors.

189.Firstly, JB’s evidence was not reliable. He placed too much emphases on the Block Crown Lease and 1905 D.D. Field Sheet and did not consider the subsequent Plans holistically. JB's Plans were not adopted by the Government.

190.Secondly, whilst CT had accepted that the south-eastern boundary had a square corner in the Supp JS and under cross-examination, he has always added that it was almost a right angle with a curve, a reasonable answer given that the original Lots were fields and tallied with the Government’s understanding.

191.Thirdly, at the time of the 1905 D.D. Field Sheet, Lot 450 was completely surrounded by Lot 449 on its south. Access to Lot 450 was via the road on its west only. Therefore, whether the south-eastern boundary of P's Lot had a square corner or curved corner, the Wedge has stood on D’s Lot and was never resumed by the Government.

192.Fourthly, the Wedge first appeared in the 1969 Conveyancing on Sale Plan. The respective boundaries of Lot 449SC and Lot 449RP were entirely a matter of internal sub-division of Lot 449 and not something over which the owner of the adjacent P's Lot could do to change. Whilst Lot 449 RP was resumed, the Wedge was preserved as part of Lot 449 SC and was mapped between Lot 450 and the Proposed New Road. That was how the Plaintiff’s lack of frontage to the track or San Hing Road arose. The fact that the Plaintiff had in the past enjoyed free access to and from P's Lot from the south did not undermine that clear position.

193.Fifthly, the Plaintiff has not explained how the Wedge could have disappeared or somehow formed part of P's Lot. That it had formed part of the track or San Hing Road was not supported by JB’s or other objective evidence either.

194.Sixthly, removal of the “legal frontage” to P's Lot was irrelevant. In any case, CT has done the overlay (which JB has failed to do) between JB’s Plan 2 and the 1905 D.D. Field Sheet. It showed that the square corner of Lot 450, even if adopted, would not result in P’s Lot abutting the government land to the south (CT’s Report/§52/C/93).

195.Seventhly, the subsequent sub-division of Lot 450 in 1972 deprived P’s Lot of its only access on the west boundary, whilst Lot 450A continued to be surrounded on the south by Lot 449.

196.Eighthly, HM's Plan respected part of the ground features dating back to the 1950s with regard to the eastern boundary of P’s Lot, followed the intention of the grant and respected the registered area of P's Lot. Its conclusion on boundary was open to Ma.

197.Based on a series of consistent evidence, HM's Plan could not be faulted for showing the Enclosed Area as part of D’s Lot. On such analyses, whether one resorts to the principle in §4(d) of the 2006 Code or consider HM's Plan on its own merits, HM's Plan was not proved to be wrong.

198.JB's Plans followed the shape of P’s Lot in the grant, respected the eastern boundary and occupation features but could not explain why the Wedge could even from part of P’s Lot. JB's Plans formed the bases of the Plaintiff’s claim in this action and an interlocutory injunction was obtained on JB’s plans. My finding in the preceding paragraph is sufficient to dismiss the Plaintiff’s claim.

H2. Whether the Government's Plan has proved that HM’s Plan was wrong

199.It is strictly not necessary to consider the Government's Plan given that I have found HM's Plan to be correct. I only mention a few points for the sake of completeness.

200.Ms Law relies on a series of English authorities (§§188-215 of her submission) to support her proposition that the Court is not confined to ruling on the correctness of plans submitted by the parties but can consider all available boundary evidence to come to a conclusion on the correct common boundary. She gave several options to the Court, amongst which was (raised for the first time in closing submission) that the Government's Plan be adopted with §4 of DSO’s letter dated 20 December 2019 to the Defendant’s solicitors, that the curve should follow the curve of the fences in 1950s. These would enable the experts to come up with the measurements to delineate the location and bearings: Bean v Katz [2016] UKUT 168 (TCC). The Court can directly consider the Government's Plan even if JB’s Plan is rejected.

201.Ms Law submits that the Government’s view on the length of the sides of the small triangular area (ie 3m x 2.94m) would be much closer to the length of the sides of the small triangular area formed by straightening the fence features in 1950s to 1960s (ie 3.5m x 4.5m).

202.Mr CY Li does not dispute the jurisdiction of the Court to determine the case on the Government’s Plan but only if the case is properly formulated. Here, the Plaintiff runs a case in closing submission different from his pleaded case. If a party seeks to run an unpleaded case on lot boundary, the relevant consideration is whether the other party has had a full opportunity to address the unpleaded case: Cheng Lai Yin v Liu Yee Mui [2022] HKCFI 940, §27(7), Recorder Sit SC, applying Poon Hau Kei v Hsin Chong Construction Co Ltd (2004) 7 HKCFAR 148, pp156G-157B.

203.As Ms Law points out, Cheng Lai Yin is a case on admission and the facts are distinguishable from the present one. Ms Law further submits that on the basis that the parties have already fully litigated on the common boundary issue beyond considering only the correctness of HM’s Plan and JB’s Plans, the Defendant is estopped from taking a pleading point relating to the Government's Plan as a piece of evidence: Handley on Estoppel by Conduct and Election (2^nd Ed) at §15-045.

204.With respect, that is not the correct approach. That passage in Handley relies on cases dating back to 1897 to 1995, and is not in line with the CFA authority of Kwok Chin Wing v 21 Holdings Limited (2013) 16 HKCFAR 663, §21, which hold that it is the pleaded issues that define the scope of the evidence and not the other way round. The Plaintiff ought to have pleaded an alternative case based on the Government’s Plan, especially since the Government Plan only emerged after issue of the writ.

205.If I am wrong about the requirement of pleading, I am of the view that CT has had sufficient opportunity to address the unpleaded case. He was in as good a position as the DSO as both of them reviewed the historical documents instead of doing an actual survey on site. One did not need an expert to see that it was the difference between the “bigger curve” in HM's Plan and the Small Arc in the Government's Plan that had to be addressed.

206.The Government was aware of the present action but remained steadfast in updating the Lot Index Plan post-writ. The reasons for the update set out in its letter has not identified what different documents from those that CT had been investigated. The Defendant has never been given the chance to make representation. It was not clear from DSO’s letter why it considered the bigger curve in HM's Plan to be incorrect, and why DSO departed from the Government’s own view in the 1990 Resumption Plan. DSO also failed to explain what happened to the Wedge and why it should (in part) become P’s Lot. Without disrespect, the Government’s Plan raised some material but unanswered issues. The maker of this Plan has not been summoned for cross-examination.

207.I note that:

(1) JB himself did not endorse the Government's Plan, quoting the disclaimer on this Plan, “information on this plan MUST be verified by field survey…” (Supp JS/C/192-3, §§8-9).

(2) The LandsD has always treated a boundary issue concerning private properties to be a matter to be resolved between private owners. The LandsD was obviously aware of the present litigation but had not invited representation from the Defendant before the Government's Plan was issued, thereby reducing the area of D’s Lot to the prejudice of the Defendant.

(3) The Government's Plan could equally be interpreted as rejecting JB’s Plan.

208.For the reasons given in this Sub-section and without disrespect, I am not satisfied that the Government's Plan has proved HM's Plan to be wrong.

I. RELIEFS

I1. Reliefs to the Defendant

209.In view of the analyses above, the party who had committed trespass was the Plaintiff. He had cut open the metal sheet hoarding to install a door and lifted building machinery and materials over the CF Wall.

210.The Defendant is thus entitled to a declaration that the correct common boundary was and is the one shown in HM’s Plan.

211.The Injunction granted on 30 November 2018 is discharged.

212.The Defendant only seeks nominal damages and I award the amount of $1,000.

213.The Defendant has reserved the right to seek enforcement of the undertaking as to damages given by the Plaintiff in obtaining the Injunction. That shall be left to another appropriate occasion should the need arise.

I2. Reliefs to the Plaintiff

214.The Plaintiff is not entitled to any reliefs. I only deal with reliefs for the sake of completeness, on the assumption that liability is established against the Defendant. The Defendant disputes causation.

215.With regard to loss of rental income, it is the Plaintiff’s case that as the P’s Lot was landlocked by the Defendant’s wrongful conduct, and there was no car parking space due to the Enclosed Area, the New Building has remained unoccupied ever since its completion in around December 2017. The Plaintiff has always wanted to lease out the ground and second floors whilst the first floor would be occupied by his mother. The mother only passed away in 2019. (See witness statement, §§37 and 56.) The Plaintiff could not find any willing tenants until after the opening on the CF Wall by the Defendant in January 2019 pursuant to the Injunction. A chaser letter from the Plaintiff’s solicitors had to be sent on 28 December 2018 to bring about the present status quo. Even so, the rents have been significantly lower than the market rent.

216.I am satisfied that causation of loss was established. The parties have agreed that the quantum of damages would be HK$ 611,800.

217.With regard to the loss of use and enjoyment of the Enclosed Area, this would have been established, in itself, by the Defendant’s erection of the CF Wall over the P’s Lot. The parties have agreed that the quantum of damages would be HK$17,760.

218.With regard to the additional costs of the redevelopment, the quantum was agreed to be HK$350,000. However,

(1) No particulars of the additional costs have been given in the SOC.

(2) In the Plaintiff’s witness statement, it was alleged that because of the existence of the CF Wall, the Plaintiff’s builders were forced to use a crane at the cost of HK$350,000 to lift the building machinery and materials over the CF Wall to reach the Plaintiff's Lot. There was delay in redevelopment resulting in increase of costs and expenses by 15-20%.

219.It appears that the Plaintiff has limited his claim to the costs of a crane. The only evidence produced was:

(1) an undated quotation by a Will Development Limited stating a lump sum of HK$1,980,000 for the construction works; Will Development claimed that the costs of the redevelopment were at least 15-20% higher than the usual and the time used was double the usual; and

(2) a hand-written statement dated 25 February 2019 stating that 4 years ago in 2015 the construction costs of HK$1,980,000 included “wasted transportation cost” (消耗運輸費) of HK$350,000 which were incurred in relation to the crane.

220.On the Plaintiff’s own evidence under cross-examination:

(1) The Plaintiff had obtained a licence from the land owner of the adjacent Lot 450 SB to use the opening at the south-western corner to transport construction materials to the site of the New Building.

(2) The Plaintiff accepted that the photos only showed one operation of the crane, which was to lift the excavator onto the roof of the Old Building. This would have been necessary with or without the CF Wall. According to the Plaintiff’s photos, the building materials were not lifted over the CF Wall by a crane but by a grapple truck.

(3) The quotation of HK$1,980,000 was on a per house basis, with no indication of any crane expenses. This was accepted by the Plaintiff in cross-examination. There was no breakdown for the quotation. The figure of HK$350,000 just for the crane appeared arbitrary.

(4) The handwritten statement was written 4 years after the event for this litigation, as admitted by the Plaintiff. It contained a wrong fact – that there was no entrance to P’s Lot. Mr Cheng, who prepared this statement could still be found but he was not called as a witness. It was not clear if the money had been paid to the crane company. The handwritten statement was inadequate as proof.

I am not satisfied that causation of this limb of loss was established.

221.Accordingly, if the Plaintiff could establish liability against the Defendant, the damages would be $611,800 + $17,760.

J. ORDERS AND COSTS

222.I order as follows:

(1) The claim is dismissed.

(2) There be a declaration that the boundary of Lot 450 SA and Lot 449 SC is as set out in HM’s Plan.

(3) There be nominal damages to the Defendant of $1,000 for trespass.

(4) The interim injunction granted on 30 November 2018 is discharged.

223.Costs should follow the event and be to the Defendant with certificate 2 counsel. I make an order nisi accordingly.

224.I thank counsel for their able assistance.

Ms Jacqueline Law, instructed by Kwok, Ng & Chan, for the Plaintiff

Mr CY Li SC and Mr Jeremy Kwong, instructed by Au Yeung, Lo & Chung, for the Defendant