Chau Tat Wing, Suing in His Own Capacity and As the Sole Executor of the Estate of Wong Tim Lun, Deceased v. Wong Kwai Wan and Another
Read the full judgment text of DCCJ 3244/2022 on BabelCite. This District Court judgment was delivered on 12 December 2024.
1. This is a case regarding a dispute of the boundaries between 4 adjoining plots of land in Yuen Long, New Territories (collectively, the “4 Lands”).
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DCCJ 3244/2022 [2024] HKDC 2067 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3244 OF 2022 ________________ BETWEEN
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___________________ JUDGMENT ___________________ 1.This is a case regarding a dispute of the boundaries between 4 adjoining plots of land in Yuen Long, New Territories (collectively, the “4 Lands”). 2.In a clockwise direction, the plot located on the North-East (Lot No. 2465 of DD129) is owned by the 1st Defendant (“D1’s Land”). 3.The plaintiff is the sole executor of the estate of Wong Tim Lun and became the registered owner of the plot located in the South-East (Lot No. 2457 of DD 129, “P’s Land”). 4.The plot in the South-West was Government land (part of Lot 2451 of DD 129 which the Government resumed in around 1961 for the purpose of building a road passing through part of the plot, “Government Land”). 5.Finally, the plot in the North-West belonged to a non-party to this action (Lot 2450 RP of DD129, “Non-party’s Land”). Background 6.There is no dispute that the earliest evidence of the boundaries between the 4 Lands (the “Common Boundary”) was recorded in the DD Sheet as a result of a cadastral survey performed around 1899 and 1904 (Trial Bundle B2, p.293, enlargements of which are at Trial Bundle B1, page 127 and 128). 7.The Common Boundary on this DD Sheet shows that there is a shared boundary in form of a line between D1’s Land and Government Land, whilst the relevant corners of P’s Land and Non-party’s Land does not touch each other. Thus, the Common Boundary is in form of a “Double-Y” along a slanting axis from the North-West to the South-East. 8.The Block Government Lease (“BGL”) of DD129 was granted after the DD survey (Hearing Bundle B2, p. 405, enlargement of which is at Trial Bundle B2, page 406). The BGL was based on the DD Sheet so it also showed the same “Double-Y” feature of the Common Boundary. 9.The subsequent aerial photographs (taken in 1945, 1949, 1956 and 1961) also showed a consistent pattern of this feature of the Common Boundary. 10.The first relevant survey record was prepared by Mr. Henry Chan in 2006 (“the 2006 Survey”, Trial Bundle D1, p. 786) on instructions of D1 because of a boundary dispute between D1’s Land and a neighbouring plot of land north of D1’s Land (paragraph 1 of “Findings and Results” of the Report of the 2006 Survey, Trial Bundle D2, page 968). 11.The Common Boundary was south of D1’s Land and thus not the focus of the 2006 Survey. Indeed, P’s Land was vacant at the time and there was no boundary dispute between P and D1 then. 12.With regard to the Common Boundary, the 2006 Survey showed the following features :
13.As for the determination of Point S, Mr. Henry Chan has taken the line R-S (i.e. the line between point R and Point S) by following “the graphical position of the Lot Index Plan…” (paragraph 6(g) of “Findings and Results” of the Report of the 2006 Survey, Trial Bundle D2, page 969). 14.The Lot Index Plan was produced by the Land’s Department on 12 September 2006 (the “2006 Lot Index Plan”, Hearing Bundle D, p. 967) and, indeed, it showed the same features regarding the Common Boundary. This shows that Mr. Henry Chan has, indeed, simply followed the features of the Common Boundary in the 2006 Lot Index Plan. 15.In 19 August 2012, D1 wrote to the District Survey Office Yuen Long of the Lands Department (the “DSO”) regarding his concern about the Common Boundary. 16.In the reply letter dated 24 August 2012 (Hearing Bundle D2, page 975), the DSO stated that they found no surveyor’s report on the boundary of P’s Land in their file and record, and that (as I translate):
17.D1 therefore instructed Mr. Henry Chan to conduct an updated survey of D1’s Land including the Common Boundary and produced another survey report dated 10 September 2012 (“the 2012 Survey”). 18.The 2012 Survey now has the following features:
19.After Mr. Henry Chan submitted the 2012 Survey to the DSO, P’s surveyor, Mr. Lam Kai Wing of EGS (Asia) Ltd. (“EGS”), submitted his own survey report (“the EGS Survey”) on 10 October 2012 (Hearing Bundle D2, page 1079-1080). 20.The EGS Survey essentially shows the same features of Common Boundary as the 2006 Survey, i.e. all 4 Lands joining in a single point with no “Double-Y” feature, and the Spike on P’s Land (Trial Bundle D2, page 1080). 21.The DSO accepted the 2012 Survey and rejected the EGS Survey. DSO wrote a reply to EGS on 29 November 2012 (Hearing Bundle D2, page 1098) which stated:
22.EGS (Asia) Ltd. replied on 27 February 2013 (Hearing Bundle D2, page 1114) that:
23.Separately, P has written several letters of complaint to various government departments and bodies (e.g. Trial Bundle D2, page 1011-1052). The DSO has replied to P on behalf of all such in a letter dated 12 April 2013 (Hearing Bundle D2, page 1057-1060). 24.In the letter, DSO has explained how the mistake in the 2006 Lot Index Plan (which Mr. Henry Chan followed in the 2006 Survey) came about:
25.Thus, it was clear from this letter that:
26.During all these times, P and D1 were disputing over the Common Boundary. D1 has built a gate for access to the Government Land but P has in various times built a low wall or deposited building materials right in front of and thus blocking this gate. As of now, P has built a wall which partially blocked the gate. 27.However, much of these incidents of disputes are of minor relevance in this action. The crux of the dispute raised by P is whether the DSO should adopt the 2006 Survey (and the similar EGS Survey) or the 2012 Survey. 28.P commenced the current action against D1 and then joined D2 (which counterclaimed against P). P’s causes of action 29.According to the Re-amended Statement of Claim, the relevant allegation against D1 was:
30.Paragraph 6 of the Re-amended Statement of Claim were allegations against D1 (and D1’s wife) for “wrongly” obstructing the building of the P’s wall outside the gate and “trespassing” into P’s Land. As discussed above, much of these disputes very much depends the crux of the dispute regarding the boundary. 31.The relevant allegation against D2 was:
Action against D1 32.The allegation against the D1 was that he has wrongfully and without knowledge or consent of P filed the 2012 Survey with the Lands Department. 33.According to the Land Survey Ordinance, Cap 473 (the “LSO”), the function of Director of Lands (or the Land Survey Authority) includes “to maintain land boundary records” (clause 4(a) of the LSO). 34.Thus, the DSO in its letter to D1 dated 24 August 2012 simply invited D1 to submit another survey report if there was concern with the Common Boundary. 35.P has all along failed to provide any evidence (including any relevant law, code of practice or procedure guidelines etc.) why this procedure was “wrongful” and that filing a survey report must require “knowledge or consent” of P. 36.Indeed, Mr. Leung, counsel for plaintiff, did not cross-examined the witnesses of D1 or D2 on any survey report filing procedures at all. 37.Furthermore, according to clause 28 of the LSO:
38.The 2012 Survey was signed and certified by Mr. Henry Chan. 39.Therefore, it is Mr. Henry Chan, and not D1, who is personally responsible for any dispute in the accuracy of the survey report and who is liable for any loss as a result. 40.As such, the action against D1 is clearly misconceived. Action against D2 41.First of all, it is important to note that P is not seeking a judicial review against D2’s decision to adopt the 2012 Survey and not the EGS Survey (or the 2006 Survey) (“the Decision”), and, as a result, produce the 2016 Lot Index Plan which followed the 2012 Survey. 42.Therefore, P is not claiming that D2 has acted ultra virus by, for example, not following proper procedures nor any established code of practice in making the Decision. 43.Instead, P is raising a claim of negligence against D2 which essentially alleged that the Decision was made negligently. 44.It would be obvious to even a law student that the law of negligence requires P to prove the following: that a duty of care existed between D2 and P; that D2 in making the Decision fell below the duty or standard of care; that such has caused foreseeable loss and damage. 45.In this case, P’s claim against D2 falls at the very first hurdle. 46.P has not produced any evidence to show that there existed a duty of care. Quite on the contrary, Clause 33 of LSO stipulated:
47.P did not raise any allegation nor produce evidence that D2 has not acted in good faith in the performance or purported performance of his functions under this Ordinance. 48.Thus, I find that no duty of care and liability ever arose under the circumstances of this case. 49.Furthermore, P’s claim also falls at the second hurdle. 50.First of all, P has only produced an expert survey report (“Tang’s Report”) by Mr. Tang Hong Wai, Conrad (“Mr. Tang”) in support of this “negligence” claim. 51.Mr. Tang is a Land Surveyor and he was instructed to “investigate and differentiate the lot boundary re-establishment” between P’s Land and D1’s Land in the 2006 Survey and 2012 Survey, and “give an opinion on the common boundary” of the 4 Lands (paragraph A “Scope of Work”, Trial Bundle B1, page 120). 52.So here is the big problem: Mr. Tang was not instructed to review the Decision and to give an opinion that this was made in breach of the duty or standard of care as required of the DSO and / or D2. 53.There is no dispute in Mr. Tang’s expertise as a surveyor in private practice and thus can comment on the standard of care as expected of a surveyor. However, one may raise a question of Mr. Tang’s expertise regarding the duty or standard of care expected of a government officer (or officers) in charge of making decisions (such as the Decision) in the DSO. 54.Tang’s Report ran rather excessively to almost 200 pages. However, his opinion can be summarised in merely 4 paragraphs (paragraph 117 to 120, Trial Bundle B1, page 244-245). 55.In short, Mr. Tang “found that” the 2006 Survey “matched well with the boundary features and gave a fair determination of the common boundary with” P’s Land, and that the 2012 Survey “does not follow the original pattern shown in the DD Field Sheet nor the long-lasting field occupation in the vicinity of the Common Junction” and therefore this updated Common Boundary is “baseless”. 56.As such, even taken to the highest, Mr. Tang’s opinion is that the 2006 Survey is more accurate than the 2012 Survey. 57.Mr. Tang has not provided any opinion on the duty or standard of care required, and that the Decision has breached such a duty or fallen below such a standard, for example, along the lines of:
58.As for any liability or breach arising out of the accuracy in any lot index plan (as opposed to survey reports certified by authorised land surveyors), Mr. Tang also did not give any opinion to dispute DSO’s position that “地段索引圖上的地界資料，只是展示地段界線的大約位置。所有在地段索引圖上的資料，必須要經過實地測量的核證才能作準。” He therefore failed to establish that there existed a duty of care, let alone a breach, regarding the accuracy of the 2006 Lot Index Plan owed by D2 to P. 59.Such expert opinion is plainly essential for the court to establish a breach in negligence. 60.Moreover, the issue of accuracies of the survey reports are irrelevant in establishing liability of D2. Clause 33(i) of the LSO (paragraph 46 above) specifically stipulated that no liability rest upon D2:
61.Instead (see paragraph 37 above), the LSO provides that any liability regarding the accuracy of land boundaries and any loss caused by any inaccuracies lies with the authorised land surveyor who signed and certified the survey report. 62.In this case, it lies with Mr. Henry Chan, who is not named as a defendant in this action. 63.It is of note that after rejecting the EGS Survey and adopting the 2012 Survey, D2 has invited EGS to submit for further review for boundary definition. Instead of the following the procedure, EGS stated that it would not take further action after receiving opinion from P’s legal advisers (paragraphs 21 and 22 above). 64.As such, P, as appeared to be so advised by his legal advisers, chose not to follow D2’s procedures (despite raising no dispute on the properness of such procedures), but instead decided to use this court as an “alternative forum” to settle the question of which survey report to be adopted. 65.Indeed, P confirmed this view when he told the court at trial that (as I paraphrase):
66.This is entirely misconceived. 67.It is no business of the court to provide an “alternative forum” to override a decision made by an appropriate authority, institution or body when such decision or discretion has been exercised properly in accordance with its own procedures within its own power. 68.P should have followed the proper procedures by producing Tang’s Report to DSO to seek a review. Instead, he chose to bring this dispute to the court dressed up as a negligence claim, 69.Of course, even as a negligence claim, this action is groundless. 70.I would question whether P’s legal advisers have drawn their client’s attention to clauses 28 and 33 of the LSO. If they have, I wonder how P would see that he should embark on this totally misconceived action in the wrong forum against the wrong defendants. In my view, this entire action against both defendants may amount to an abuse of court process. Expert evidence 71.Having come to the above conclusion, there is no need for the court to proceed further. However, even assuming that P has commenced a negligence claim against the correct defendant, that is, Mr. Henry Chan, Mr. Tang’s opinion fell far short in establishing a breach. 72.Firstly, again, Mr. Tang only argued about the accuracies of the 2006 Survey and 2012 Survey. He did not opine that the 2012 Survey was so unreasonably inaccurate that Mr. Henry Chan has fallen below the standard of care as required of a surveyor under the circumstances. 73.Indeed, drawing an example of a doctor’s duty of care, it is not enough to establish breach of duty by an expert simply giving an opinion that there exists another treatment option which is better than the one recommended by the doctor. The test is that the option offered is so unreasonable that the doctor has fallen below the standard of care as required. 74.Secondly, even just on the issue of “accuracy”, I find Mr. Tang’s opinion unconvincing. 75.Mr. Tang has agreed that there was a “Double-Y” junction between the 4 Lands all through the years. But then he also agreed that the 2006 Survey has “adopted the centre point of the “Double-Y” shape boundary features as the common boundary …” (paragraph 115 of Tang’s Report, Trial Bundle B1, page 243) 76.In doing so, Mr. Tang has completely ignored the central issue: why is it proper and reasonably justifiable (e.g. according to which principle in the code of practice etc.) that a “centre point” should suddenly be adopted as the Common Boundary when all through the years, this was in shape of a “Double-Y”? 77.Rather than addressing this issue, Mr. Tang merely conducted an extensive exercise repeatedly superimposing this “centre point” upon various aerial photographs etc. and then concluded that these matches well and therefore gave a fair determination of the common boundary. 78.Of course, there is no reason why one cannot fit a dot inside a line (the line between the “Double-Y”). So I fail to see the logic that if one can “match” a dot inside a line, it would be a “fair determination of the common boundary”. 79.More importantly, in opining that this to be a “fair determination of the common boundary”, Mr. Tang has completely failed to address the concerns raised by the DSO if this was done: the Spike and the lack of common boundary between D1’s Land and Government Land as shown in DD Sheets and BGL. 80.Then, at trial, Mr. Tang advanced a new theory. 81.In short, Mr. Tang now suggested that, by comparing the 1949 and the 1963 aerial photograph and using a “Mid-line practice” (by drawing a mid-line between the edges of the field bunds of the 4 Lands as seen from the 1963 aerial photograph), the slanting “Double-Y” feature had now changed to a more “vertical” junction. The Common Boundary was now shaped like a cross. 82.Mr. Tang also claimed that in the Mid-line practice, the alteration of the boundary features should be adopted as long as the changes were natural not man-made. 83.He then advanced a theory that the boundary areas were actually gullies. He claimed that rainwater during big rainstorms would have flowed down the gradient (from east to west as shown in the maps) in these gullies and this had caused erosions of certain boundaries of the 4 Lands. Such changes in the boundaries were therefore natural and should be adopted. As such, the Common Boundary was now a more of a vertical “Double-Y” (Exhibit P7). 84.Firstly, this was new evidence from an expert first presented at trial. 85.Mr. Tang and the two experts (instructed by D1 and D2) has prepared a Joint Statement as long ago as 24 November 2020. Mr. Tang never sought to submit this new theory in some 3 ½ years since. 86.On this alone, the court should not consider Mr. Tang’s new opinion. 87.However, even if the court would entertain this new theory as an academic exercise, it plainly fails to support the claim that the 2006 Survey is more accurate. 88.My first comment is that even if the “Double-Y” junction now appeared more “vertical”, it should still not be adopted as a point junction in its centre. 89.Moreover, I find that the changes were not natural but man-made:
90.The fact that all the experts agreed to use the 1963 aerial photograph as the basis of assessment was because of its quality (i.e. clarity). However, it cannot be used as the basis to apply Mr. Tang’s “Mid-Line practice” because of the obviously man-made changes to the boundaries of the re-planted field in the Government Land. 91.In conclusion, on my analysis, there is insufficient evidence to support Mr. Tang’s theory that the “Double-Y” Common Boundary became more “vertical” in 1963 because of natural erosion by rainwater. On balance of probability, the apparent visual changes in the boundaries and the shape of the Common Boundary were caused by changes in field bund positions, which must be man-made by the person(s) re-planting on the Government Land. 92.As such, even if one considers Mr. Tang’s new theory, it fails to show that the 2006 Survey is more accurate than the 2012 Survey. 93.I need not spend more time to discuss here the expert opinion of D1 and D2’s experts. Suffice to say that both experts supported the accuracy of the 2012 Survey over the 2006 Survey. 94.In any case, this is a pure academic exercise. 95.As stated above, this is neither a judicial review action against the Decision made by D2 nor a negligence claim against the relevant authorised land surveyor. In the circumstances, the court was asked to perform purely as an adjudicator on the accuracy of various survey reports. The court has no jurisdiction to do so. D2’s counterclaim 96.D2 counterclaims for a declaration that certain line marked by certain points represents the Common Boundary (paragraph 16 of the Re-amended Defence and Counterclaim of D2, Trial Bundle A, page 41). In effect, this amounts to seeking a declaration from the court declaring the accuracy of the 2012 Survey. I would similarly dismiss this. Order 97.I would order that P’s claim against D1 and D2 be dismissed. D2’s counterclaim is also dismissed. 98.There be a cost order nisi that P shall pay the costs of this action to D1 and D2 to be taxed if not agreed. I will also grant certificates for one counsel each to D1 and D2.
Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff Mr Leon Ho, instructed by Messrs Leung & Lien, for the 1st defendant Miss Tessa Chan and Mr Jonathan Kwok, instructed by Department of Justice, for the 2nd defendant |
Cases cited in this judgment
Further hearings and rulings under DCCJ 3244/2022