So Lai Ha Yvonne v. Ho Tim Tai and Another
Read the full judgment text of DCCJ 5169/2019 on BabelCite. This District Court judgment was delivered on 5 November 2024.
1. This is a trial of an action commenced by the plaintiff against the 1 st and 2 nd defendants based on:-
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DCCJ 5169/2019 [2024] HKDC 1858 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 5169 OF 2019 --------------------------------
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-------------------------------- JUDGMENT -------------------------------- I. INTRODUCTION 1.This is a trial of an action commenced by the plaintiff against the 1st and 2nd defendants based on:-
2.The plaintiff has since March 1994 been the registered owner of the 2nd floor and the main roof of House No.35A built on Lot No.427 in Demarcation District No.281, Shatin, New Territories, Hong Kong (“Lot 427”). The 1st defendant has since 2000 and 2004 respectively been the registered owner of the ground floor and the 2nd floor of the house adjacent to House No.35A, namely, House No.22A (“House No.22A”), built on Lot 426. The 2nd defendant has since 31 July 2017 been the registered owner of the 1st floor of House No.22A. 3.The 2nd defendant filed an acknowledgement of service stating that he does not intend to defend. The trial before me therefore is between the plaintiff and the 1st defendant only. II. PLAINTIFF’S CASE 4.The plaintiff’s case is that:-
III. THE 1ST DEFENDANT’S DEFENCE 5.The 1st defendant’s defence is that House No.35A does not encroach upon Lot 426. 6.The 1st defendant also puts the plaintiff to the strict proof of the plaintiff’s case that it has exclusively possessed and/or used PA1 and PA2 as alleged. IV. THE 1ST DEFENDANT’S BELATED ATTEMPT TO ADDUCE EXPERT EVIDENCE ON PRE-1963 POSITION 7.In the 1st defendant’s opening submissions filed on 23 October 2024 (just a week before the commencement of the trial), Mr Daniel Chan, counsel for the 1st defendant, for the first time, took a position that Lot 426 and Lot 427 are not adjacent to each other but are actually separated by an unassigned area. This position, being a positive position rather than a mere non-admission putting the plaintiff to strict proof of the location of PA1 and PA2 relative to the lot boundaries, is not pleaded, and so should not be permitted. In any event, even if this position should be permitted as support of the 1st defendant’s non-admission to the boundaries of Lot 426 and Lot 427 pleaded by the plaintiff, this position has to be supported by expert evidence. Mr Chan well knew this, and thus, in the opening submissions, he foretold that he would adduce additional oral evidence from the 1st defendant’s expert on this. Upon reading his submissions, I directed on paper that a proper application should be made for additional expert evidence. 8.The 1st defendant made the application by way of summons filed one day before the commencement of the trial, with a draft supplemental expert report and a supporting affirmation made by the 1st defendant. 9.There is no dispute that the delay was inordinate. The explanation for the delay is that shortly before the PTR on 27 August 2024, the 1st defendant realised that the matter had to proceed to trial and thus he finally instructed counsel to review the matter. According to the 1st defendant, counsel advised that certain relevant evidence had not been covered by the expert reports, and thus it is now necessary to have the additional expert evidence. The 1st defendant, however, did not specify when such advice was given, although the documents now covered by the expert reports were already disclosed by a supplemental list of documents filed on 20 August 2024. At the outset of the trial, I asked Mr Chan when the advice was given. Mr Chan told this Court that before the PTR, he had already taken a preliminary view, upon consultation with the 1st defendant’s expert, that the documents, in particular, the A-Sheet, would be useful. However, for no good reason, such view was conveyed to the 1st defendant only after the PTR, and Mr Chan was still unable to specify the time of such conveyance. I do not accept the 1st defendant’s explanation as any good reason for the delay, and there is simply no reason for the explanation why such view was not conveyed to the 1st defendant before the PTR so that the application could be made at the PTR. It is unfortunate that I have to say the obvious that parties cannot wait until the PTR to seek legal advice to see whether their case is in proper shape, and cannot sit on advice until after the PTR to decide whether further evidence is necessary. Such attitude would completely defeat the purpose of all the case managements. Such lack of any good reason for the delay is sufficient for me to dismiss this late application, and so I do. 10.In any event, this expert evidence is substantial. For example, the 1st defendant’s expert opinion that the A Sheet (disclosed in the supplemental list of document) should be the most accurate survey sheet begs the question why this was not considered in the first place by any expert. The 1st defendant’s expert opinion that the area separating Lot 426 and Lot 427 on the A Sheet is unassigned begs the question what such area is, why there is such area, and who owns such area. The plaintiff’s expert would be entitled to consider all these, among others, and give his opinion as well. I do not accept the submissions of Mr Chan (for the 1st defendant) that the documents covered by the draft supplemental expert report had already been disclosed and are public documents, and thus there would be no prejudice caused to the plaintiff. While the documents had been discovered and are public documents, not until Mr Chan’s submissions in the 1st defendant’s written opening submissions, no one could be fairly expected that those disclosed documents would be used to say that there is no common boundary. In this regard, I note that the expert directions, given by consent of the parties, named the issues for the experts with reference to “common” boundary of Lot 426 and Lot 427, clearly suggesting that the parties had in mind that the two lots are adjacent to each other. Also, even the 1st defendant’s expert himself in the filed joint expert report dated 24 August 2022 took the stance that “the partition wall between House 35A and House 22A was the actual common boundary between Lot 426 and Lot 427” and he himself used the term “common boundary” in the other parts of the report. 11.While the 1st defendant had the time from the PTR until Mr Chan’s written opening submissions to consider the matter, it is simply unfair and prejudicial to the plaintiff if the plaintiff would be given a few hours or at most a day or so to consider and respond to this new opinion. To give a sufficient opportunity to the plaintiff fairly to consider the matter would definitely derail the trial. Thus, putting aside the lack of good reason for the delay, I would also dismiss the application on the ground of prejudice. 12.I have not overlooked that this new issue would have a bearing on the boundaries of the lands in question. However, the declaration, if I were to make, would still be liable to be set aside by third parties in appropriate circumstances: see Si Tou Choi Kam v Wealth Credit Ltd [2018] HKCA 250 at §§21-23 per Andrew Cheung CJHC (as Cheung CJ then was) delivering the unanimous of the judgement of the Court of Appeal (the other judges being Cheung JA and G Lam J). Thus, any declaration, if I were to make, would not unduly prejudice any non-parties to the present proceedings. 13.Having considered all the above, at the outset of the trial, I dismissed the 1st defendant’s application with costs to the plaintiff, with certificate for counsel, to be taxed if not agreed. 14.It remains for me to say that the documents in the supplemental list, though disclosed, are not very helpful without any expert explanation, although Mr Chan was still at liberty to use the documents for cross-examination, given that the plaintiff did not raise any issue during the PTR and simply allowed those documents into the trial bundles. However, as will be seen below, putting such documents for cross-examination without any positive evidence explaining those documents is not effective in advancing the 1st defendant’s case at all. V. ISSUES 15.The issues are:-
VI. WHETHER PA1 AND PA2 LIE WITHIN LOT 426 16.Whether PA1 and PA2 lie within Lot 426 is an expert issue for surveyors. The plaintiff’s expert, Messrs Helicon Ma Yung Kong (“Ma”), and the 1st defendant’s expert, Mr Tang Wing Lun (“Tang”) prepared a joint expert report dated 1 September 2022. In determining this issue, I bear in mind the relevant principles expounded by Au-Yeung J in §§41-51 of Siu Chi Tat aka Chi Tat Siu v Land Zone Ltd [2023] HKCFI 610. 17.It is not in dispute between the experts that:-
18.Based on the above, as well as his own surveying carried out on 3 April 2018 based on the Lot Index Plan and the DD Control Sheet, Ma opines that House No.35A encroaches upon Lot 426. 19.However, DD Control Sheet is not 100% precise: see Siu Chi Tat, supra at §50. Logically, the Lot Index Plan, prepared based on the DD Control Sheet, is not 100% precise. Ma said in oral evidence that when the Lot Index Plan was prepared based on the DD Control Sheet, the District Land Office would check the information on the DD Control Sheet and only include the accurate information in the Lot Index Plan. I do not accept such evidence because first, there is no evidence of what the District Land Office checked (if they did at all) when preparing the Lot Index Pan based on the DD Control Sheet; and second, while it is unclear what were checked, the Lot Index Plan has the express disclaimer that the boundary locations are approximate only and subject to revision from time to time. 20.I accept that the registered area on the Schedule of Crown Lessee attached to the Block Crown Lease may have some margin of error: see Siu Chi Tat, supra at §45. It is particularly so in the present case. When asked how to explain the area difference between the registered area recorded on the Schedule of Crown Lessee and the actual area of House No.35A, that is, House No.35A larger than the registered area by approximately 6 sq metres, or 0.0015 acre, or by approximately 25%, his answer was that such small difference would not be recorded, given that the unit used in the Schedule must be 0.01 acre, 0.02 acre and so on. On this issue of area, I also note Mr Chan’s submission that on the Lot Index Plan, the area of Lot 426 is much larger than Lot 427, although the areas on the Schedule were both recorded as 0.01 acre, while Lot 447, which Ma agrees during cross-examination is significantly smaller than Lot 426 (though larger than Lot 427), was recorded to have an area of 0.02 acre. Ma’s explanation is that it is common that the surveyors at the time may not measure the areas accurately and there was a large margin of error. I think the areas, though they may be used as a check (see Siu Chi Tat, supra at §45), may not serve a weighty check in the present case, given that both experts the present case essentially agree that the margin of errors could be so significant. 21.Although he agrees that the Lot Index Plan and the DD Control Sheet, on their own, show that part of House No.35A lie within Lot 426, Tang opines that no part of House No.35A actually does not lie within Lot 426. Tang’s reasons are, in gist, twofold:-
22.As to (1) above, while Ma’s opinion in the joint expert report seems to suggest that there was rebuilding of the houses, during his oral evidence, he clarified that he could not say whether there was any rebuilding. 23.For Tang, despite his opinion that he thought that there was in general not much change in the land development from 1900s to 1963, in cross-examination, he frankly admitted that there was an influx of immigrants to Hong Kong in the 1950s and 1960s, resulting in general in much redevelopment of lands in the New Territories. Thus, his original opinion that there was not much change in the land development is not solid and is subject to the general qualification of his such oral evidence. But all these are in general only. Thus, I do not give much weight to such opinion. 24.In respect of his opinion that the pyramidal roof of the houses on the two Lots were the same in the 1963 aerial photo as before the 1960s, although there is no evidence as to what the roof looked like before 1963, Tang explained in his oral evidence that his such opinion is based on his observations during surveying in the New Territories in his long practice that such pyramidal roofs, made of tiles, would only be used in houses built in the old days well before the 1960s. Such reasoning is not mentioned in any written expert report. There is also no evidence of the extent of observations he has to support his such opinion (even if, which I do not agree, such observations could be counted as part of his expertise), while he has to admit that his observations come not from the village in the present proceedings. Thus, I do not pay much regard to his such opinion. 25.As to (2) above, as a matter of common sense, if there was any rebuilding, the locations of the rebuilt houses would only move significantly if it so happened that both houses were demolished at the same time and one house was rebuilt first on one lot, unattended or agreed to by the owner of the other lot. Absent any evidence of any special events, such happenchance would be unlikely. However, the likelihood enhances in the present case because the first grantee of Lot 426 was the same first grantee of Lot 427 under the Block Crown Lease, namely, one Tse Hing Tang. According to the land searches in respect of Lot 426 and Lot 427, the first registered owners shown there dated back as late as 1991 and 1972 respectively. It would not be surprising at all that Tse Hing Tang, at one point of time, commenced some reconstruction of the houses on his two adjoining lands without much regard to the common boundary of the two lots but only with regard to the outer boundaries of the two lots. 26.Tang also opines that even if there were rebuilding, the villagers would know where their boundaries were and so they would not rebuild the houses outside the respective lot boundaries. However, he had to admit in cross-examination that his such opinion is not applicable in the situation where the two lots were owned by the same person, which is the exact situation here. 27.Even though there is no evidence as to any rebuilding or absence of rebuilding, and howsoever unlikely it would be that any rebuilding would result in change of locations of the houses, this could happen, especially in the light of the common ownership of the two lots back in the old days. So, I still have to consider this with other evidence holistically before I can make a finding. 28.According to both the Lot Index Plan and the DD Control Sheet, the common boundary line between the Lots lie well within House No.35A; it does not lie only marginally within House No.35A I note that in the DD Control Sheet, a dotted line within the firm-line boundary of Lot 426 was drawn, more or less the location of the partition wall of the Houses. Both Tang’s and Ma’s evidence is that the dotted line may represent some object or structure. Thus, this object or structure may have served as a reference point if there was any rebuilding or may even be the rebuilt houses itself when the DD Control Sheet was traced such that with this structure found within Lot 426, the tracer or drawer of the DD Control Sheet found it necessary to draw the dotted line but did not think that the object or the structure there lied at the common boundary. In the circumstances, in all likelihood, this dotted line is approximately the location of the partition wall of the two Houses. While I accept that the Plan and the Sheet are not 100% precise, it is unlikely that that the imprecision would be so significant such that the dotted line was actually not within Lot 426 as indicated. Indeed, Tang’s evidence is that the chance of having the DD Control Sheet so imprecise is not high. 29.In saying so, I bear in mind the principles expounded in Pennock v Hodgson [2010] EWCA Civ 873 at §§7-12 and Winfat Enterprise (HK) Co Ltd v AG of Hong Kong [1988] 1 HKLR 5, to the effect, among others, that the Court should look at “the actual and known physical condition of the relevant land at the date of the conveyance” (emphasis added) and that the leasehold interest in the New Territories was “granted by incorporating them in the schedules to individual block Crown Leases which identified their location and area and described the use to which they were put in July 1898” (emphasis added). However, the applicability of such principles would be weakened if the “actual and physical condition” has changed after “the date of the conveyance” or in the present context “July 1898” or the block Crown lease in the present case in the 1900s. Thus, the question would be whether I would accept that there was change of the locations of the houses between 1900s and 1963. 30.Based on the above:-
31.Lastly:-
32.Having considered the above, in particular the likelihood of rebuilding on the two adjacent lots under common ownership, with greater weight accorded to the Lot Index Plan and the DD Control Sheet, and aware that these documents, though not 100% precise, are still official documents, I find that there was indeed rebuilding of the houses, as a result of which the locations were changed to the location as the Houses are now. This means, and so I find, that part of House No.35A lie within Lot 426. 33.For the sake of completeness, Mr Chan, for the 1st defendant, cross-examined Ma on the A-Sheet. However, Ma’s evidence is that an A-Sheet is not more accurate than Lot Index Plan and the DD Control Sheet. Ma also points out that in the apparently unassigned area separating between Lot 426 and Lot 427 on the A-Sheet, there was a sign of hook suggesting that the so-called unassigned area was linked to Lot 426. Even though “[s]urvey sheets are correct to scale and contain annotations that facilitate interpretation [and] [t]hey are for use by laymen, not professionals”: see Siu Chi Tat, supra at §50(2), there is no evidence at all to explain what this sign of hook on the A-Sheet means, and it is absurd for Mr Chan to ask me to ignore this sign of the hook on the A-Sheet which must carry some meaning. Further, if Mr Chan would like to say that the Court should rely on the A-Sheet to override the admitted expert reports, I do not think that I can do so without any expert evidence. Overall, though Mr Chan used the A-Sheet for cross-examination, without any expert evidence from the 1st defendant to properly explain the A-Sheet, the A-Sheet does not take the 1st defendant any further. VII. WHETHER THE PLAINTIFF HAS EXCLUSIVE POSSESSION OF PA1 AND USED PA2 AS RIGHT OF WAY FOR SUFFICIENT TIME TO ACQUIRE POSSESSORY TITLE OVER PA1 AND RIGHT OF WAY AND EASEMENT OF PA2. 34.The plaintiff’s evidence is that since his purchase in 1994, the plaintiff has been residing and occupying the 2nd floor and the main roof of House No.35A consisting of PA1. There is no positive case to challenge the plaintiff. I accept the plaintiff’s evidence as more than inherently probable. Such use and occupation of PA1, to which only the plaintiff has had access via his own main roof purchased since 1994, amounts to factual exclusive possession with the requisite intention to possess for the purpose of adverse possession: see Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at §7 per Nazareth NPJ delivering the unanimous judgment of the Court of Final Appeal. 35.Naturally, and this is indeed the plaintiff’s evidence, the plaintiff would have to use PA2 for access to the 2nd floor and the main roof to enjoy what he purchased in 1994. I accept such evidence. This amounts to continuous, uninterrupted use of PA2 as right of way: see China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at §§71 and 84 per Lord Millett NPJ delivering the unanimous judgment of the Court of Final Appeal. 36.Mr Chan submits that even so:-
37.I disagree with (1). This position that the 1st defendant only owns the House but not the whole Lot 426 is not pleaded. In any event, it is clear from the quote above that the template conveyance, though referring to House No.22A and deleting the phrase “田 塊”, states that the conveyance of House No.22A was conveyance of Lot 426 (“即第281約第426號地段”), clearly in the mind of the parties to equate House No.22A with Lot 426. The deletion of the phrase “田 塊” can readily be explained by the fact that Lot 426 is not a farmland. Between a house and a farmland in the template conveyance, I do not read much into the deletion of “farmland” to mean that the conveyance was intended to be confined to the house only. 38.As regards the subsequent assignments, it is quite clear from the descriptions of the subject property in the assignments that the property under assignment is not confined only to House No.22A, but is the whole Lot 426. 39.I disagree with (2). The assignments in respect of House No.35A are assignment of rights and interests in Lot 427 only. Thus, given that PA1 and PA2 lie outside Lot 427 but within Lot 426, the assignments could never assign any rights and interests in PA1 and PA2, irrespective of what was stated in the assignments. 40.I disagree with (3). This so-called original grantee’s agreement with himself (if this could be regarded as an agreement) or the boundary agreement, that led to no adverse possession, is not pleaded. In any event, such “agreement” does not bind on any successors-in-title since this agreement is not any covenant to which section 41 of Conveyancing and Property Ordinance (Cap 219), and thus this “agreement” does not run with the land and does not bind any successors-in-title. 41.Therefore, the plaintiff has established his case of adverse possession in respect of PA1 and right of way by easement in respect of PA2. VIII. ADVERSE POSSESSION OF AIRSPACE 42.The plaintiff claims a declaration of possessory title to PA1 and the airspace above PA1 but not below. The starting point is that acquisition by adverse possession of the surface gives title to all above and all below subject to the rights of the owners above and below: see Jourdan et al, Adverse Possession (2nd ed) §§10-04 – 10-05. Therefore, I agree it is necessary to make it clear that the possessory title to PA1 does not include the space below PA1, because what lies below PA1 is PA2, which has not been exclusively possessed by the plaintiff but also been used by occupants of the 1st floor of House No.35A for their access from the 1st floor to the entrance on the ground floor. 43.As regards the space above PA1, the legal position is that the space above a land is subject to various restrictions and limitations, statutory or otherwise. Where a roof is sold, the Court of Appeal in Hong Yip Service Company Ltd v Ng Wai Man, CACV 159/1988, 22 March 1989 at §11 that only a limited portion of air space above is included in the roof to make the roof usable. In typical cases where a claim for adverse possession over open farmlands in the New Territories is made, no such possessory title to the space above has ever been expressly declared. Similarly, no such possessory title to the space above has ever been expressly declared in claims for adverse possession over a roof. In the circumstances, I think the best course to take is not to specify the space above PA1 in the declaration, but make a usual declaration and leave it there. As regards the height of PA1 from the ground which was pleaded only in the re-re-amended statement of claim but not in any previous statements of claim, it was not made an expert issue at all. As such, I also think the best course is not to specify the height of PA1. When dispute would arise over the use of the space above PA1 or the height of PA1, arguments would be made there and then over how far the possessory title to the space above PA1 would go or how high PA1 is. IX. CONCLUSION 44.In the circumstances, I make the following order against both the 1st and 2nd defendants:-
45.I make a costs order nisi that:-
Mr Enoch Fong, instructed by So, Lung & Associates, for the plaintiff Mr Daniel Chan Kai Ming, of Henry Chiu & Partners, for the 1st defendant The 2nd defendant, represented by Tsang & Associates, attendance excused | |||||||||||||||||||||||
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