Kee Chan Hing v. Leung Fuk Chuen and Others

CAMP 575/2021, [2023] HKCA 663

On Appeal From [2020] HKDC 382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 575 OF 2021

(ON AN INTENDED APPEAL FROM DCCJ NO 4959 OF 2014)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.By a summons filed on 20 December 2021, the Plaintiff applied to this Court for an extension of time for leave to appeal against the judgment of HH Judge Andrew Li (“the Judge”) given on 29 May 2020 (“the Judgment”) in a boundary dispute. 

2.In the Judgment, the Judge dismissed the Plaintiff’s claims against the various defendants for encroachment on his land, viz. Sub-section 3 of Section D of Lot No. 25 in Survey District No. 9, Sai Kung (“the Plaintiff’s Lot”). The Judge also made some consequential orders.

3.By a summons filed on 26 June 2020, the Plaintiff applied to the Judge for leave to appeal.  The application was heard and refused by the Judge on 28 September 2020.  Reasons for Decision were handed down on 31 December 2020. 

4.The Plaintiff did not apply to this court for leave to appeal until more than 14 months after the Judge’s refusal and nearly 12 months after reasons were given, which was well out of time as a summons to this court should have been issued within 14 days after the date of refusal by the court below.

5.Having considered the parties’ written submissions, we decided that the summons for leave to appeal out of time can be disposed of on paper without an oral hearing pursuant to O.59, r.14A(1) Rules of the High Court (“RHC”).

Background

6.The background of this case may be briefly stated as follows.

7.It was the Plaintiff’s case that in May 1990, pursuant to a tenancy of three years granted to him by Lee Kam Ling (“LKL”), the predecessor-in-title of all the parties in these proceedings, he was leased a piece of property of approximately 1500 square feet which was rectangular in shape, and structures were erected thereon for his paper recycling business.[1]

8.The Plaintiff said that during the term of tenancy, LKL agreed to assign the leased area to him and he instructed an architect D.C. Shum (“Mr Shum”) to carry out a land survey which resulted in a plan to be annexed to the assignment.  However, there was no oral or documentary evidence showing if and how Mr Shum carried out a land survey. 

9.The crucial document in the case is the assignment made by LKL to the Plaintiff on 28 July 1992 (“the 1992 Assignment”), whereby LKL conveyed the Plaintiff’s Lot which had been carved out of Lot 25D RP.  The divisional history of Lot 25 in Survey District No. 9 was set out by the Judge at [10] - [21] of the Judgment, and is undisputed.[2]

10.The issue is what was actually conveyed. According to the parcel clause in the Assignment, what was conveyed was “the property described in the Schedule”.  In the Schedule, the “property” was described “as shown and coloured Pink on the plan annexed” (“the Assignment Plan”).  The Assignment Plan, which bore Mr Shum’s chop and a signature, was to scale and showed surrounding features.  

-  What was coloured pink was an irregular pentagonal shape (“the pink portion”), the graphical area of which (as measured by the defendant’s experts) was 93.9 - 94.5 sq m (Judgment [180]). 

-  However, there were also written on the Assignment Plan (a) the words “Coloured Pink Area 140 Square Metres (About)” and (b) five sets of figures surrounding the pink portion. 

11.In these proceedings, the Plaintiff claimed that the land assigned to him was not the smaller pentagonal area coloured pink, but a larger rectangular shaped area (not shown on the Assignment Plan) of “140 square metres (about)” which dimensions were the five sets of figures written on the Assignment Plan.  On the basis that he owned that larger area, he sued the individual defendants for encroachment.

12.The individual defendants all have land adjoining the Plaintiff’s Lot, granted by new grants made after the 1992 Assignment following the surrender of portions of Lot 25D to the Government.  The defendants’ respective interests are as follows. 

-  D1 is the registered owner of Lot 55,

-  D2, D3, D5 and D6 are the registered owners of Lot 56,

-  D7, D8 and D9 are the registered owners of Lot 57,

-  D4 is the Director of Lands (sued through the Secretary for Justice) as there is some government land adjoining the Plaintiff’s Lot (“the Government Land”).

13.The Plaintiff claimed, as shown on the plan annexed to the Re-Amended Statement of Claim (“RASOC Plan”), that the individual defendants have built on portions of his land, and that the government had paved and constructed a walkway on a part of his land as well.

Expert evidence

14.The Plaintiff engaged Mr Chan Hon Kwan Henry (“Mr Chan”) as his expert on land surveying.  In summary, Mr Chan’s starting premise was based on the accuracy of the text “140 square metres (about)” which he thought should prevail over the graphical measurements of the pink portion.  He said that by applying the five sets of figures arithmetically (i.e. 13.716m, 10.668m, 7.620m, 6.093m and 9.754m in clockwise direction) he could arrive at an area of “140 square metres (about)”. 

15.The defendants engaged a number of different experts, including an expert on photogrammetric measurements who gave expert evidence for D4.  They showed that the textual description of “140 square metres (about)” and the five sets of figures in the Plan were not consistent with the graphical measurement of the pink portion, nor with the title deeds and plans of Lots 55, 56 and 57 which had been defined with reference to the original Grant Plan and Setting-out Plans prepared by the Government. 

The Judge’s Judgment

16.The Judge did not find the Plaintiff a truthful witness. Based on documentary evidence from LKL’s son, the judge found that the Plaintiff knew that what he had leased from LKL was a much larger piece of land than what he had subsequently purchased.[3]

17.In any event, the main issue was what was the real boundary of the Plaintiff’s Lot as he had to prove that in order to claim against the defendants for encroachment.

18.As pointed out by the Judge, there were three sets of information on the area of the Plaintiff’s Lot that can be derived from the Assignment Plan, viz. (i) the text of “140 square metres (about)”; (ii) the graphically measured area of approximately 94 square meters; and (iii) the location and boundary of the pink portion as identified by grid lines, coordinates and orientations, etc appearing on the Assignment Plan.

19.While the first set and the second set of information contradicted each other, the Judge found that the third set of information was a reliable source in order to work out the area and boundary of the Plaintiff’s Lot.

20.The Judge held that as a matter of law, the correct starting point should be the parcel clause, which assigned to the Plaintiff the area coloured pink on the Assignment Plan, and not the textual description of “140 square metres (about)”.   It was noted that “140 square metres” was expressly qualified by the word “about” immediately following, and thus it was not an accurate description of the pink portion on the Plan.[4]

21.The Judge further found that it was wrong for the Plaintiff’s expert to take Point D1 (on the line D1 to E1 marked on the RASOC Plan) as the starting point to work out the location of the Plaintiff’s Lot, as that would effectively ignore important ground features or location markers (e.g. field bunds and neighbouring L-shaped buildings) when determining the location of the Plaintiff’s Lot.[5]

22.The Judge also found that it was wrong for the Plaintiff’s expert to ignore the shape and form of the pink portion by selectively choosing only 2 angles (namely D1 and E1) and ignoring the remaining 3 angles in determining the proper form of the pentagon.  Further, the Plaintiff had asserted (as depicted by the RASOC Plan) that the land assigned to him was rectangular-shaped, which did not bear   resemblance to the pentagonal shape of the pink portion shown on the Assignment Plan.[6] 

23.It would also appear from the Judgment that Mr Chan had, at different times, formed different views on the actual location of the boundary of the Plaintiff’s Lot.  The Judge did not find Mr Chan’s explanation that he offered two possible answers to his client for different purposes convincing or credible [161] - [164].  The Judge concluded that Mr Chan’s opinion could not be relied upon and should be rejected.[7] 

24.On the other hand, the Judge preferred and accepted the evidence of the defendants’ experts. 

25.The Judge was particularly impressed by the evidence of Ms To (D4’s photogrammetric expert) who had employed a method of “stereoscopic viewing of aerial photographs in pairs, which created 3D model to extract information of the ground features captured in the aerial photographs and presented them on the photogrammetric plots”.  The Judge accepted that the outcome is accurate with +/- 0.3 margin of error only, and that it provided a firm foundation for the conclusion of Mr Ng (D4’s boundary expert) on definite boundary lines for the Plaintiff’s Lot and Lots 55, 56 and 57.[8]

26.The Judge further found that Mr Ng’s approach of identification of the ground features and use of coordinates in working out the boundary and position of the Plaintiff’s Lot was accurate and reliable. 

27.Based on the analysis and findings of the defendants’ experts, the Judge found that there was no encroachment of the Plaintiff’s Lot by any of the defendants.

Summons in the District Court for leave to appeal

28.By a summons filed on 26 June 2020, the Plaintiff applied to the Judge for leave to appeal the Judgment.  As mentioned earlier, it was rejected by the Judge at the end of the hearing on 28 September 2020 with Reasons for Decision handed down on 31 December 2020.

Summons in the Court of Appeal for leave to appeal

29.As noted earlier, the renewed application made to this court for leave to appeal was out of time by 14 months. 

30.It is well-established that in considering whether to give leave to appeal out of time, the Court will take into account the following factors in the exercise of its discretion: (a) the length of the delay; (b) the reasons for the delay; (c) the chance of success of the intended appeal; and (d) prejudice to the other party.

The length and reason for the delay

31.The length of delay of some 14 months was egregious.  In the Plaintiff’s affirmation dated 16 December 2021 filed on 20 December 2021^[9] he said in essence, that the delay was caused by his ignorance of legal procedure, and poor advice from, and inaction by, a firm of solicitors he had engaged after the Judge refused leave to appeal.  He engaged his present team in November 2021 by which time he was already out of time by more than 13 months. 

32.In the Plaintiff’s statement in support of the present application, he correctly “accepted that there is no good reason for his delay” [2].  It is well-established that ignorance of legal procedure is not a good explanation for delay, let alone the substantial and inordinate delay in this case when the Plaintiff has had access to legal advice.  If he has been badly served by the firm of solicitors he had engaged from January to November 2021, that is a separate matter for him to pursue if so advised. 

33.It is well-established that in the absence of a cogent explanation for the delay, an extension of time should not be granted unless the Plaintiff has a real prospect of success in the intended appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, 129).

Chance of success in the intended appeal

34.The two proposed grounds of appeal in the draft Notice of Appeal attached to the summons to this Court appear to be different, or at least substantially reformulated, from the grounds in the summons taken out in the District Court. 

35.Pursuant to Practice Direction 4.1 (Civil Appeals to the Court of Appeal) at [11], an applicant in a renewed application for leave should inform this court whether the points argued in connection with the grounds of appeal had been canvassed at the substantive hearing and the application for leave to appeal in the court below. If not, the applicant must explain why it was not argued then and why it should now be entertained by this court (Indah, Veby Mega v OWT Asia Limited [2022] HKCA 1860, [18.2]).

36.Be that as it may, since there is some overlap between the two proposed grounds of appeal and those ventilated before the Judge, we shall consider them.  They are as follows:

Ground 1

37.The Judge erred in law and in principle in holding that the graphical representation of the Plaintiff’s Lot on the 1992 Assignment Plan should prevail over the textual description of the Plaintiff’s Lot on the same plan (the Judgment at [102]).  Specifically:

(1)  The Judge’s finding that the textual description of the Plaintiff’s Lot (i.e. the dimensions of the 5 boundary lines and the lot size) on the 1992 Assignment Plan was of inferior quality and the accuracy was in doubt (the Judgment at [179]) is arbitrary and unsupported by any evidence.

(2)  The cogency of the lot size measurement on the 1992 Assignment Plan (namely about 140 square meters) was fortified by the 1994 Divisional Plan and the 1994 Deed of Rectification, both being prepared on the basis that the size of the Plaintiff’s Lot is 140 square meters (the Judgment at [20] - [21]).

(3)  The dimensions of the five boundary lines of the Plaintiff’s Lot on the 1992 Assignment Plan represent measurements up to the specific millimeter and are inherently likely to be accurate.

(4)  Where the adoption of the graphical representation leads to the lot size being significantly smaller, and the boundary lengths being significantly shorter, than the measurements expressly spelt out on the 1992 Assignment Plan, there is no basis for the Judge not to give effect to the textual measurements of the Plaintiff’s Lot and prefer the graphical representation.

(5)  The Judge ought to have held that in such circumstances, the pink portion on the 1992 Assignment Plan was only intended to indicate the location of the Plaintiff’s Lot and not to define its precise metes and bounds.

Ground 2

38.The Judge erred in law and in principle in rejecting the Plaintiff’s expert evidence in holding that the Plaintiff’s expert: (i) had wrongly used points D1 and E1 on the RASOC Plan as the starting points for Boundary 1 (the Judgment at [145]) and (ii) had ignored the pentagonal shape of the Plaintiff’s Lot on the 1992 Assignment Plan (the Judgment at [155]). Specifically:

(1)  The Judge was wrong in criticizing the Plaintiff’s expert that he had wrongly assumed all the experts had agreed that Point D1 should be the starting point in working out the location of the Plaintiff’s Lot  (the Judgment at [145] - [147]) when all the defendants’ experts accepted that Boundary 2 on the RASOC plan is an acceptable depiction of the Plaintiff’s Lot, and in doing so, they must be taken as accepting at least Point D1 as the correct starting point for the NE boundary line of the Plaintiff’s Lot.

(2)  From a comparison of Boundary 1 and Boundary 2 on the RASOC Plan, it is self-evident that all the experts were also in agreement on (i) the internal angle between NE boundary line and SE boundary line and (ii) the internal angle between the SE boundary line and SW boundary line, of the Plaintiff’s Lot.

(3)  For the aforesaid reasons, the textual dimensions of the boundary lines on the 1992 Assignment Plan should be adopted as the accurate measurements of the lengths of the respective boundary lines.

(4)  The above information combined would lead to the conclusion, as a matter of simple geometry, that there exists only one possible way of reconstructing the boundary of the Plaintiff’s Lot, namely Boundary 1 on the RASOC Plan.

(5)  There is nothing in the Judge’s criticism that Boundary 1 does not appear to be in the shape of a pentagon as shown on the 1992 Assignment Plan (the Judgment at [155]).  It is again simple geometry that where the aggregate length of the A1-B1 line and B1-B2 line differs from the length of D1-E1 line only by 3mm, the internal angle between the A1-B1 and B1-B2 lines becomes hardly noticeable, such that the overall shape of Boundary 1 will appear to be rectangular.

Discussion

Ground 1

39.On Ground 1, the Plaintiff contended that the Judge was in error in holding that the graphical representation of the Plaintiff’s Lot on the Assignment Plan should prevail over the textual description of the Plaintiff’s Lot, and he submitted that the Judge’s finding was “arbitrary” and “unsupported by evidence”.    

40.We do not think this ground enjoys a real prospect of success such as to allow this court to exercise its discretion to give leave in the face of such egregious delay. 

41.The Judge had set out the correct legal basis for determining boundaries of properties by referring to SJ v Wing Lung Wai Community [1999] 3 HKC 580 [21] in which Chan CJHC (as he then was) held that in case of a dispute with regard to what was actually conveyed, it is a matter of construction of the whole conveyance, including the parcel clause and the plan, in the light of other relevant circumstances, in order to ascertain what the parties intended to be passed under the document and what was passed.

42.On the facts of this case, Clause 1 of the 1992 Assignment specifically provided that the property conveyed to the Plaintiff was “the property described in the Schedule hereto” and the property described in the Schedule was (and was only) the portion “as shown and coloured Pink on the Plan annexed hereto”, without any reference to the area of the portion conveyed or to its dimensions.  Notwithstanding the five sets of figures, the text stating “140 square metres (about)” was loose and vague.  No landmarks were specified from which any of the figures could be measured.  The Plaintiff’s expert’s attempt to use a retaining wall as a landmark was rejected by the Judge after considering the defendants’ expert evidence on photogrammetric plots: see [49] below.  

43.The pink portion, on the other hand, was outlined on the Assignment Plan by black dash lines, and further information was provided by means of the specified scale, scale bar, grid lines, north indicator, and map base: Judgment [142]; as well as mapping information such as the L shaped structure and field bunds identified on the 1985 survey sheet [143].  

44.The Judge’s finding was supported by the evidence of the defendants’ experts who used, as a more reliable starting point to determine the location/boundary of the pink portion, information such as the ground structures, grid lines, orientations etc.  The grounds of appeal do not address the Judge’s finding of the reliability of the defendants’ expert evidence.

45.Further, the Plaintiff’s reference to the Divisional Plan and Deed of Rectification made in 1994 do not assist his case, as they do not lead to an inference that the Plaintiff’s Lot was 140 sq m in size or where its boundary was.  In any event, it is clear that the Judge had taken these (as well as other documents) into account [84].  The weight a trial judge gives to various pieces of evidence is a matter for the judge, not for an appellate court.  

Ground 2

46.On Ground 2, the Plaintiff argued that the Judge was wrong in (i) rejecting Mr Chan’s use of points D1 and E1 as the starting point; and (ii) over-emphasizing the pentagonal shape of the Plaintiff’s Lot on the Assignment Plan when rejecting his evidence. 

47.We do not think this ground enjoys a real prospect of success either, such as to allow this court to exercise its discretion to give leave in the face of the abovementioned delay. 

48.The Judge had considered Mr Chan’s evidence including his oral evidence under cross-examination.  He rejected his methodology which was to start off assuming that the Plaintiff’s Lot was indeed 140 sq m, and then work backwards (including using D1 and E1 as starting points) to establish its boundary by way of “reverse engineering”. 

49.Mr Chan had assumed that the defendants’ expert “did not disagree” that Point D1 should be the starting reference point as he considered that point D1 lay close to the retaining wall.  The Judge found however that that assumption was not rightly made.  Mr Chan himself had taken point D1 by reason of what he thought was its proximity to the retaining wall.  However, when considering the photogrammetric plots, D4’s expert had established that point D1 was in fact quite distant from the retaining wall, and thus it could not be used as a starting reference point.  Indeed, under cross-examination, Mr Chan agreed that he could not use point D1 as a starting point as it was “indeed quite far away from the retaining wall”: Judgment [149]. 

50.The Judge further explained at [150] that the fallacy of using the retaining wall as the reference point was that it ignored other important ground features or location markers.

51.Further and in any event, even if the experts agreed on one side of the boundary, in the absence of internal angles, it does not follow that the rest of the boundary were also agreed.

52.As for the shape of the Plaintiff’s Lot, Mr Chan had accepted that the pink portion in the Assignment Plan is in the shape of an irregular  pentagon, but admitted at trial that he had accepted the Plaintiff’s instruction that his lot is in the shape of a rectangle.[10] Whether one may say the pentagonal shape was “hardly noticeable” or not is a matter of perception.  In any event, it was not solely on the basis of this observation that the Judge rejected Mr Chan’s evidence. 

Order

53.In conclusion, as the leave application has no real prospect of success, it would be futile to extend time to appeal.  The Plaintiff’s summons filed on 20 December 2021 is dismissed with an order nisi that he pays the defendants’ costs. Further, as we consider that the application is totally without merit, we would order pursuant to Order 59 rule 2A(8) RHC that no party may request the determination to be reconsidered at an oral hearing inter partes.

Summary assessment on the defendants’ costs

54.As only D4 and D7- D9 have lodged statements of costs for summary assessment, we would give leave to the other defendants to lodge their statements of costs for summary assessment within 14 days from the date of this Judgment.  The Plaintiff may file any objections (limited to 5 pages per statement) within 14 days thereafter.  The Court will then summarily assess the costs of all the defendants on paper.