Fine Hill Holdings Ltd v. Chung Kwok Kee Jenssion and Others

DCCJ 6745/2024

[2025] HKDC 1651

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6745 OF 2024

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JUDGMENT

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A.  Introduction

1.This action involves the plaintiff’s right of way over a path of about 1.2 metre width leading from the plaintiff’s land through the 1^st, 2^nd and 3^rd Defendants’ plots of land onto the government land (“the Public Road”) to the north (“the Disputed Path”). All the land involved is situated in Demarcation District 19, Tai Po in the New Territories (“DD19”).

2.The plaintiff (“P”) purchased the Remaining Portion of Lot 334 (“the P’s Lot”) with house 241A therein (“P’s House”) in May 2011. Madam Woo Ching Na (“Woo”) is the director and the only witness of P.

3.The 1^st defendant (“D1”) and 2^nd defendant (“D2”) are brothers. Their ownership over their respective lands traced back to their late father (“the Father”) who inherited Lot 333 in DD19 (“Lot 333”) back in 1958 and built a house there as the family’s residence (“Chung’s House”). In 1986, D2 acquired the neighbouring lot, which is the Section A of Lot 334 in DD19 (“D2’s Lot”) with House 241 therein (“D2’s House”), thus all lands in Lot 333 and D2’s Lot were owned by the Chung family (“the Family Lots”). In 1995, the Father divided Lot 333 and D1 inherited the Remaining Portion of Section B of Lot 333 in DD19 (“D1’s Lot”). In 2006, D2 further divided D2’s Lot into 3 parts with the Remaining Portion of Section A of Lot 334 (“D2’s Sectioned Lot”) being the land adjacent to P’s Lot. D1’s Lot and D2’s Lot (collectively called the “D1&D2s’ Lots”) are situated north-west of P’s Lot.

4.The 3^rd defendants (“D3s”) are at all material times the owners of adjacent land to the north-east of the P’s Lot at the Remaining Portion of Section C of Lot 348 (“D3s’ 348 Lot”) and Section B of Lot 336 (“D3s’ 336 Lot”) in DD19 (collectively called the “D3s’ Lots”).

5.Annexed to this judgment as Annexure A is a copy of an Identification Plan dated July 2020 (“the Plan”) which gives a general idea of the course of the Disputed Path and its locality. The Plan shows the location of the various lots which I have just described and is annexed hereto solely for identification purpose, with D1’s Lot coloured yellow, the D2’s Sectioned Lot coloured green, and D3s’ Lots coloured indigo and brown respectively. Also shown on the Plan in pink is the Public Road leading to the Lam Kam Road.

6.Due to the localities of D1 & D2s’ Lots and D3s’ Lots as described above, the ownerships of the Disputed Path are divided into four parts with D3s’ 348 Lot comprising the whole length of the northern part of the Disputed Path adjoining the Public Road. The middle part of the Disputed Path consists of D3s’ 336 Lot on the east side and D1’s Lot on the west side, and the southern tip of the Disputed Path is D2’s Sectioned Lot, that is adjacent to the northwest corner of P’s Lot where a board fence with a door was built (“P’s Board Fence”). The P’s Board Fence is also used as the only entrance to P’s Lot.

B.  The pleaded case of respective parties

7.P’s witness Woo claimed that before the purchase of P’s Lot in May 2011, she was told by the estate agent and the previous landlord that the Disputed Path had been used by the occupiers since 1975 as the only access to the Public Road. Indeed, P’s tenants had uninterrupted access through the Disputed Path at all material times even after a gate was installed at the entrance of the Family Lots in around December 2013. Such gate was situated at the northern exit of the Disputed Path adjoining the Public Road in December 2013 (“the Gate”) and passcode was given to P’s tenants/agents/servants allowing them continuous uninterrupted access until March 2017 where D1 and D2 refused to give out the new passcode and thus obstructed P’s use of the Disputed Path (“the Obstruction”). Since P’s Lot was landlocked and the Disputed Path was the only access way to public roads, P was denied access to its own land. P is now seeking a Court declaration that it has a right of way or easement over the Disputed Path by prescription under the doctrine of lost modern grant or of necessity; and an injunction ordering D1 and D2 to remove the Gate or to provide access thereto, and not to further the Obstruction, with damages to be assessed for not being able to use P’s Lot as a result of the Obstruction.

8.D1 and D2 denied that P has acquired easement by prescription and/or of necessity over the Disputed Path. D1 and D2 disagreed that the Disputed Path was used by occupiers from P’s Lot for 20 years or more. It was in their evidence that P’s predecessors and their occupiers would use a path known as “Ginger Lily Road” to the south-east of P’s Lot through the land at the Remaining Portion of Section A of Lot 336 (“RPSA Lot 336”), sitting along the southern side of the wall surrounding D3s’ 336 Lot (“Ginger Lily Road”) which can lead to Government land.

9.D1 and D2 admitted that passcodes of the Gate were given to P’s tenants and construction workers but only with their express permission that can be revoked at anytime. Due to the nuisance caused by the workers during the renovation of P’s Lot in late December 2016 to March 2017, notice was given to P and its agents/servants that their enjoyment of the right of way be revoked.

10.Further, D1 & D2 disagreed that P’s Lot being landlocked after the Obstruction because despite the Ginger Lily Road does not exist after the redevelopment of RPSA Lot 336 and its surrounding lots, there is still an alternative path adjoining P’s Lot to the south-east through RPSA Lot 336 and the Remaining Portion of sub-section 5 of Section A of Lot 336 (“RPSS5SA Lot 336”) that can lead to Lam Kam Road, which is a Government road (“Alternative Access”).

11.D3s filed their Acknowledgement of Service on 25 August 2020 indicated their intentions of not contesting the current proceedings, and a further notice dated 26 April 2021 signed by all D3s confirmed their understandings as to the possible legal consequences of their uncontested stance.

C.  Undisputed and Indisputable Facts

12.Before analysing the evidence, it is necessary to understand the historical context of the parties’ lots and their respective developments. Unless otherwise stated, the following facts are not in dispute or indisputable.

13.D1 and D2 resided at the Chung’s House since 1966 when they were at the age of 8 and 6 respectively. P’s House was there since they moved in. D1 left Hong Kong for the UK in 1976 and lived in Tai Po upon his return in 1987. Unlike his brother, D2 remained in Hong Kong and lived in the Chung’s House until he acquired D2’s Lot in 1986, where he moved to live in D2’s House therein.

14.After moving into D2’s House, D2 built a doorway through the fence of Lot 333 so that he and his tenants could access the Public Road via Lot 333. D2 moved out in or around 2000 and there was a redevelopment of the Family Lots in 2012 (“the Redevelopment”) where D2’s House and the Chung’s House were demolished with new houses 243A, 243B, 243C and 243D erected.

15.There were more units created after the Redevelopment of the Family Lots. D2 moved back in 2015 and resided in House 243C until 2019 and is now living in House 243A. Mr Anthony Chun Boon Chung (“Anthony”), nephew of D1 and D2 and his mother Chan Ka Ling (“Chan”) also moved to the Family Lots in 2014 and 2015 respectively, while other units were leased out to tenants. Anthony, who is a full-time accountant, was put in charge of managing the compound of the redeveloped Family Lots after he moved in.

16.The Disputed Path was widened and paved in the Redevelopment enabling vehicular access, and the Gate at the entrance of the Family Lots was installed in mid-2013 with passcode reset every 6-9 months by Anthony. Both D2 and Anthony admitted that new passcode was given to P’s staff every time it was reset, but they did not know who from the family did so.

17.Woo gave evidence that she had uninterrupted access over the Disputed Path when she made her visit to P’s Lot before the purchase. P’s House underwent some simple renovation before leasing to a Mr Cheung from August 2011 to August 2013, then to the second tenant Mr Wong and his family from December 2013 to sometime in 2016 when the lease was terminated.

18.Around the same time of the Redevelopment, the land adjacent to P’s Lot at RPSA Lot 336 and RPSS5SA Lot 336, where the Ginger Lily Road situated, was under redevelopment with houses erected therein from 2012 (“the Adjacent Redevelopment”). A wall was built along the back of these houses and the portion that sits behind House 241D on RPSA Lot 336 (“House 241D”) and House 241C on RPSS5SA Lot 336 (“House 241C”) at the boundary of P’s Lot blocks the alleged Alternative Access connecting P’s Lot to Lam Kam Road (“New Wall”).

19.A major refurbishment of P’s House commenced after P’s second tenant moved out in around late 2016 (“P’s Refurbishment”), and the workers used the Disputed Path to access P’s Lot and the Public Road with the passcode given by someone from D2’s family. However, as averred by Chan, P’s workers had caused various nuisances to the residents of the Family Lots and attempted to install pipes on the Disputed Path along D1&D2s’ Lots. D1 and D2 therefore decided to revoke P’s right of way over the Disputed Path with a notice served on P dated 10 March 2017, giving P a 14-day grace period.

20.On 24 March 2017, Anthony changed the passcode and denied P’s workers/agents/staff access to the Disputed Path, which caused P’s Refurbishment to be halted.

21.Subsequent to the Obstruction, there were discussions amongst D1, D2 and P to buy out P’s Lot but the negotiations fell through because the parties could not agree on the price. P’s Lot was therefore left vacant with unfinished renovation, as the Obstruction and the New Wall rendered P’s Lot landlocked and inaccessible.

D.  Issues to be tried

22.As agreed between parties, the issues the Court needs to decide are as follows:

(i)  Whether the Disputed Path was an easement by prescription under the doctrine of lost modern grant;

(ii)  Whether P has acquired any right of way over the Disputed Path under the easement of necessity;

(iii)  P’s claim against D1 & D2 vis-à-vis D3s’ uncontested stance; and

(iv)  If so, whether P is entitled to any relief against D1 and D2.

E.  Analysis of evidence

23.The only witness giving evidence for P was Woo, whose evidence consisted mostly of hearsay evidence from her estate agent as to the historical uses of the Disputed Path. There were no particulars given in support, save the assertion that P’s predecessors-in-title had used the Disputed Path as a means of access to and from P’s Lot for more than 20 years before P became the landowner.

24.On another hand, the Court heard evidence from D1, D2, Anthony and Chan. It transpired in the trial that D1 only resided at Lot 333 between the age of 6 and 16 that was almost 50 years ago, and his recollection of the usage of the Disputed Path must be assessed with great caution. Whereas Anthony and Chan only started to reside in the Family Lots after the Redevelopment, and thus unable to give evidence as to the history of the Disputed Path. The main protagonist of D1 and D2’s case therefore reduced to D2, who has spent most of his life living in the Family Lots and was able to recite the development of geographical features and usage of the Disputed Path and its surrounding areas.

25.Both D1 and D2 said that the area of the Disputed Path which belonged to Lot 333 was used by their family members to clean and maintain drainage ditch, and D2 recalled there were fences set up along the Family Lots in around 1980 when his family converted the drain into ditch.

26.As far as D1 and D2 aware of, they never saw any stranger using or allowed to use the Disputed Path between 1966 to 2010. While D2 agreed seeing people going in and out from P’s House, he recalled access of P’s Lot to public road had always been through the Ginger Lily Road.

27.In my judgment, D2’s evidence must be scrutinised carefully as he has a strong self-interest in his claim. This may unconsciously colour his recollection of events that happened dacades ago, affecting the objectivity of his factual evidence. At the same time, I do not find it fair to dismiss P’s claim in its entirety simply because of her inability to narrate the historical usage of the Disputed Path from a first-person perspective, because more often than not, disputes of such nature are between new owners (P) and indigenous people (D2) where the former will have comparatively limited knowledge as to the historical use of the disputed land. The court is therefore presented with a one-sided story from the indigenous community, sometimes their second generation, of historical events without independent sources of verification. Reliance on evidence given without perspective may result in unfairness, and I therefore find it difficult to make factual findings by reason of the general credibility or demeanour of the witnesses.

28.Instead, I bear in mind the approach in assessing witness’s credibility summarized by Hon Coleman J in paragraphs 53 to 62 of Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923 especially where the incident happened long before the giving of evidence, in particular:

“57. These matters do not mean that human memory is simply unreliable. Often, memory is reliable. However, it is also fallible, and so when assessing reliability, it is important to have in mind what causes that fallibility.

58. Therefore, in a case such as the present case, it seems to me that a sensible approach may be to limit (or at least be cautious about) the reliance placed on the witnesses’ individual recollections of what was said in conversations, and to give more weight and make factual findings on inferences drawn from any documentary evidence as well as known or probable facts, in particular objective facts.

59. Documents which are likely to be helpful are those contemporaneous documents which may describe not only what was going on, but also the motivation and state of mind of those concerned…

60. In most cases, the credit of a witness on matters not germane to the litigation is unlikely to be helpful, and the demeanor of witnesses is not a reliable pointer to honesty or accuracy. Witness evidence, written and oral, is obviously not without purpose; but, its principal uses are to allow scrutiny of any documentary record and to evaluate the witness’s motivations, personality, and working practices.

61. Evaluation of witness’s evidence may, depending on the particular circumstances, also include having regard to factors such as: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleadings, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure: see Painter v Hutchison [2007] EWHC 758 (Ch) at paragraph 3…

62. An examination of the consistency of conduct and documents and motives will, therefore, likely be helpful. As long as it is recognized that there is also a risk of potential (perhaps unconscious) bias in the identification of them, it is the inherent probabilities and likelihoods which will be of greater assistance in deciding what, on the balance of probabilities, actually happened.”

(Emphasis added)

29.In light of the above, the evidence given by witnesses in this action must be evaluated against other undisputed or indisputable evidence, and the Court should make factual findings on inferences drawn from documentary evidence as well as known or probable facts, in particular objective facts. In this regard, I found it helpful to refer to the expert reports adduced by parties, and am able to rule on each of the main issues by way of undisputed or agreed facts with the assistance of the impartial views offered by both experts.

F.  Findings of experts

30.P instructed surveyor Mr Leung Chi Yan George (“GL”) and D1 and D2 instructed Mr Chan Hon Kwan Henry (“HC”) as their respective experts providing their surveying reports together with a joint statement (“the Joint Expert Statement”). Lot Index Plan, Survey Sheets and Aerial Photos from Survey and Mapping Office and Lands Department were available between the years 1998-2019. The records of the current owners and their predecessors were also obtained from Land Registry. The followings are the salient points of their findings:

From the Land Registry/ Lands Department

(i)  According to the Schedule of Block Crown Lease that was granted in year 1905, Lots 333, 334, 336 and 348 in DD 19 were granted to the first lessees. P’s Lot and D2’s Lot originally belonged to one Parent Lot 334 (“the Parent Lot 334”) which was described as “Padi”;

(ii)  The Parent Lot 334 was divided into P’s Lot and D2’s Lot in 1964, registered in Memorial No TP151902;

(iii)  D2 subdivided his D2’s Lot into Lot Nos 334 SA ss1, 334 SA ss2 and D2’s Sectioned Lot with Registration No 06061500340080 and Survey Record Plan No SRP/TP/008/0320/D1;

From the Aerial Photos (“AP”) and Survey Sheets (the following points are adopted with slight modifications from paragraph 23 of the closing submissions of P’s Counsel Mr Tsui, who has succinctly and fairly presented the agreed findings of the Joint Expert Statement)

(i)  A footpath of about 1.2 metre wide was seen since 1998 as an accessway connecting the Public Road and the north, through the D1 & D2s’ Lots and D3s’ Lots and the northern part of P’s Lot, onto the open land in the south-east;

(ii)  A fence on the western side of the Disputed Path in D1 & D2s’ Lots was seen since 1998, but the section on D2’s Lot disappeared in 2011;

(iii)  Fences FX4/FX5 surrounding P’s Lot was seen since 1998; the portion of FX4 along the north-western boundary of P’s Lot was changed into P’s Board Fence in 2017, extending to meet the wall on D3s’ Lots;

(iv)  A gate on the northern part of P’s Lot and D2’s SA Lot was seen from 1998 until 2011, then it was reduced to be seen only on P’s Lot;

(v)  A linear feature was observed in 2004 crossing RPSA Lot 336 and RPSS5SA Lot 336, and for that year only;

(vi)  Trails on RPSA Lot 336 and RPSS5SA Lot 336 observed in 2009, but not in other years;

(vii)  The New Wall was seen since 2012 in connection with the Adjacent Redevelopment and reconstructed passageway between the houses was observed after 2014.

31.The main disagreement between the experts is that whether P has the right of ways over the Alternative Access which is now currently blocked by the New Wall. Both experts studied the Deeds of Mutual Covenant in relation to Houses 241C and 241D (“the DMC”) and agreed that the Alternative Access is a path between these two houses which was defined as an area “granted to the public for the purpose of passage”.

32.GL took the view that not only the New Wall constructed by and for Houses 241C and 241D is physically blocking the Alternative Access to P’s Lot, the alleged right of ways was not to be enjoyed by P but only designated to the registered owners under the relevant DMC. Thus the Disputed Path is the only access way from any public road to P’s Lot.

33.HC however opined that the word ‘public’ gives rise to an issue for the court to determine if such clause in the DMC was drafted with an intention to include the world at large, which entitled P, as a member of the public, to enjoy a right of way over the Alternative Access.

Issue 1: Whether the Disputed Path was an easement by prescription under the doctrine of lost modern grant?

34.The law on prescription by lost modern grant has been set out in the case of China Field Limited v Appeal Tribunal (Buildings) [2009] 5 HKLRD 662 (CFA), in which Lord Millett NPJ stated that:

“[…] People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.” (at paragraph 84)

(Emphasis added)

35.It would also be useful to refer to the case of Yik Wai Pong v Yick Pak Kin [2019] HKCFI 21, in which Hon Wilson Chan J held that:

“73. The relevant principles concerning the acquisition of an easement by prescription or loss of modern grant can be summarised as follows: –

(1) If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land.

(2) Whether the use is “as of right” depends on the claimant showing that it had been nec vi (without force), nec clam (without stealth) and nec precario (without permission from the owner).” (at paragraph 73)

(Emphasis added)

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

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

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

(Emphasis added)

37.The burden is on P to show that the use of the Disputed Path has been more than 20 years, and such use was uninterrupted and nec precario. Mr Tsui contended that sufficient objective evidence allowed the Court to infer user as of right of the Disputed Path from 1975 where the existence of P’s House was first recorded, or from 1980 where the Chung Family set up fences along the Disputed Path until the Obstruction in March 2017. Mr Chiu, counsel for D1 and D2, argued that there was simply no evidence from P to show that that was the case apart from some bare assertion from Woo. In my view, a fair reading of documentary evidence coupled with the comments from respective expert allowed me to answer this issue in the positive.

38.A home-made assignment of the predecessor-in-title of P’s Lot dated 27 August 1975 showed that a stone house in P’s Lot was assigned to one Kwan Wing Hong[1]. Documentary evidence further showed that such stone house was later approved by the District Land Office to remain by way of a Modification of Tenancy in 1976 (“the MOT”) for dwelling purposes, and was registered by the Lands Department during the squatter registration in 1978 (“the Squatter License”). With reference to the Joint Expert Statement together with D1/D2’s confirmation that a house was found existing at the time in P’s Lot when they started residing in the Chung’s House, an irresistible inference can be drawn that this stone house is P’s House.

39.Should P’s House has existed and was occupied since 1975 (if not earlier), logic dictates that occupiers would require access to some open road for commute. I accept D1 and D2’s evidence that they saw people using the Ginger Lily Road, but bearing in mind that the entire area of these lands in question were not developed back in the 70s, inhabitants would likely be using different embankments between paddies and agricultural lands casually as accessway, thus the Ginger Lily Road would unlikely be the only public accessway to the occupiers of P’s Lot. On the contrary, I find the geographical location of the Disputed Path poses a more direct accessway to the Public Road, comparing to the suggested Ginger Lily Road which would require longer walking distance to the closest government road. In my view, this also explained why a doorway was set up in D2’s Lot allowing his tenants to gain access to the Public Road via D1’s Lot.

40.D1 and D2 gave evidence that the Disputed Path was historically a field bund with drains but their family cleared and paved it in the 80s with drainage ditch built and fences set up along the Family Lots. Some part of the fences were set within the Family Lots so to leave sufficient space for the drainage and footpath. I must agree with Mr Tsui that such explanation was not sound since the fence could not prevent flooding, and there was no reasonable explanation why part of the Family Lots was left outside the fence. I am of the view that the Disputed Path must been used regularly by other people and the fence served the purpose to limit persons who traversed the Disputed Path from trespassing on the Family Lots.

41.These inferences are supported by the APs from Year 1998 to 2020, which serves as strong objective evidence showing how the Ginger Lily Road could not be a passageway for occupiers of P’s Lot. Both experts agreed that the entire Lot 336 in DD19 (“Lot 336”) was an open land covered in dense vegetation at all material times except ‘a linear feature’ and ‘trails’ were observed in 2004 and 2009 respectively. HC in his expert report did not suggest the Ginger Lily Road ‘was used’ as a passageway but ‘could be used’ as a passageway because that strip of road was ‘cleared of vegetation’. Neither did he interpret the appearance of the linear feature and trails as evidence of usage. Such comments did not present to me as strong evidence suggesting usage.

42.Although D2 said he did not see strangers using the Disputed Path, I paid particular attention to the fact that he had moved out from the Family Lots between the year 2000 and 2015, thus the alleged observation of those 15 years must render unreliable. Bearing in mind no clear sign of footpath was found over Lot 336 over a period of 20 years (between the years 1998 – 2020) and in the absence of any other objective evidence, I found it more likely than not P’s predecessors and their occupiers must have used the Disputed Path as the accessway to the Public Road at all material times. This also fortified the evidence of Woo that she and the estate agent were able to access the P’s Lot uninterrupted via the Disputed Path before the purchase. I also noticed P’s House underwent a simple renovation before leasing out in 2011, and I believed workers must have used the Disputed Path as their accessway to P’s Lot without any interruption. Bearing in mind the construction of the Adjacent Development started around 2010/2011, I also found P’s first tenant Mr Cheung had been using the Disputed Path as the only accessway to the Public Road from P’s Lot during his occupation from 2011 to 2013 without the need of seeking D1-D3’s permission.

43.It is also noteworthy that at all material times, in particularly after the fence was set up by the Chung Family in the 80s and the Redevelopment in 2012, there was no evidence suggesting signs were ever erected along the Disputed Path making clear to the public that it was a private road. D2 in his witness statement stated that their family started the planning of the Redevelopment in 2006 was ‘to revitalise and improve the security of the Family Lots’. Such Redevelopment turned the Family Lots into a small-scale compound which consisted of four houses with tenants moving in from July 2012. In such circumstances, it stands to reason that signs of ownership of the Disputed Path would be desirable to limit unauthorized access, but to the contrary, it appeared that P’s first tenant could still use the Disputed Path as of right between 2011 and 2013. And with regard to P’s second tenant Mr and Mrs Wong, D2 in his statement explained the passcode of the Gate was given to them in 2013 because Mrs Wong said ‘it would be more direct and convenient for her to use the (Pedestrian) Gate’ instead of walking pass the southern side of P’s Lot. I rejected this evidence because both experts agreed that the New Wall was erected in 2012 and P’s Lot was therefore landlocked. The Disputed Path could not be a more direct and convenient footpath but rather, the only possible footpath for occupiers of P’s Lot to gain access to the Public Road. In the absence of any other evidence, I am of the view that the giving-out of passcodes of the Gate to P was not an express grant, but there must have been open user of the Disputed Path as of right for such a long time that the D1 and D2’s family evinced acceptance even after the Redevelopment.

44.For the reasons set out in the foregoing paragraphs, I am satisfied that P has proved, on a balance of probabilities, that it and its predecessors-in-title had continuous and uninterrupted use of the Disputed Path from P’s Lot to the Public Road over 20 years before the Obstruction in 2017.

Issue 2: Whether P has acquired any right of way over the Disputed Path under the easement of necessity

45.Mr Chiu argued that P must fail in its argument on easement by necessity because it failed to prove its Lot was landlocked back in 1905 when the Crown was the common owner. And even if P succeeds in proving P’s Lot and the other relating Lots were once owned by a common owner, D1 and D2 contended that P’s Lot is not landlocked but the Alternative Access must be seen as a public right of way established by dedication, which is supported by way of the DMC of Houses 241C and 241D. He further suggested that P could claim its right of way from those owners.

46.There was no disagreement as to the legal principle of easement by necessity between parties and Mr Tsui accepted a common owner of a legal estate in two plots of land must be first established, which was explained by Lord Oliver of Aylmerton (giving the advice of the Judicial Committee of the Privy Council) in Manjang v Drammeh[2] :

“There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtained only over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v Barraclough) to imply the reservation of an easement of necessity.”

47.The argument put forward by Mr Chiu as to ‘common owner’ could be quickly disposed of. As explained in paragraph 30(i), both experts agreed that Lots 333, 334, 336 and 348 of DD 19 were granted to the first lessees under the Schedule of Block Crown Lease in year 1905. The Schedule of Crown Lease, which was issued for each Demarcation District in 1905 was appended to HC’s Expert Report and it showed Lot 334, with an area of 0.14 acre was first granted by the Crown to one 林辛發. These documentary records irrefutably reflected the Crown was the common owner of these lands in question back in 1905 before granting the lease.

48.The earliest survey record of the Lots in questions was the “Division of Property” of Lot 336 in 1950[3] which contained a map showing Lot 334 was landlocked. The D.D. Control Sheet No 19[4] and another instrument from the Land Registry bearing Memorial No. TP151902[5] showed the division of Lot 334 into P’s Lot and D’s Lots in year 1964, each measured 0.07 acre. These documentary records demonstrated Lot 334 has always been surrounded by D1’s Lot, D3s’ Lots, Lot 336A and Lot 335, both before and after the division in 1964. It is hardly arguable that P’s Lot was not landlocked back in 1905.

49.Survey Sheets of year 1998 to 2021 showed no obvious footpath that could connect P’s Lot to any government land without trespassing on other neighbouring lots. As explained in paragraph 41 above, I disagree that the linear feature and the trails found on the APs indicated accessway from P’s Lot to Government land. All these objective evidence pointed to one fact that P’s Lot has always been landlocked and access to Public Road and other Government land must require trespassing on other Lots.

50.In relation to D1 and D2’s argument of public dedication over the Alternative Access, with much respect, the approach advocated by Mr Chiu is overly simplistic and for the reasons set out below, D1 & D2 have failed to establish the requirements identified in paragraph 14 at Kong Sau Ching v Kong Pak Yan & Ors [2004] 1 HKC 119:

“Dedication may be formal, although this is comparatively infrequent. It is usually inferred from long user by the public, so that user is thus effective to prove both dedication and acceptance. But in order to raise a presumption of dedication there must have been open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. User with the landowner's permission or tolerance is no user as of right, and the court is slow to find a claim of right where the user is attributable to the landowner's indulgence. The user must also have been without interruption by the owner. A practice frequently adopted to disprove any intention to dedicate is to close the way for one day in each year, for this asserts the landowner's right to exclude the public at will.

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

(Emphasis Added)

51.In gist, to establish a road at common law by dedication and acceptance, it must be shown (a) that the owner of the land dedicated the way to the public and (b) that the public accepted that dedication, the acceptance normally being shown by user by the public. Further, it is (c) necessary to show that the Government as reversioner under the relevant Government Lease has consented to a dedication, which consent may be inferred: Kong Sau Ching §17.

52.Mr Chiu’s argument appeared to be premised on the DMC of Houses 241C and 241D, whose owners are not parties to the current proceedings. It is foremost impossible for the Court to interpret the DMC and decide on an issue which goes to the root of those owners’ interests in their absence. In my view, those parties must be afforded the opportunity to give evidence as to their intention to dedicate the Alternative Access as a public way.

53.Since the landowners of Houses 241C and 241D are not parties to this proceedings, and the matter has not been argued, it is not appropriate for me to express any view on the interpretation of the DMC and therefore not necessary for me to consider further the question of whether the Alternative Access is in fact available for P’s usage. And on the basis of Mr Chiu’s submissions, it is in my judgment that D1 and D2 have failed to consider first, deeds of mutual covenant is merely an instrument binding the owners of the building in question, which does not equate to Government consent, and secondly, an effective dedication would also require evidence of an acceptance by the public. In the premises, the argument on Alternative Access being for public use must end here and I shall say no more.

Issue 3: P’s claim against D1 & D2 vis-à-vis D3s’ uncontested stance

54.Mr Chiu submitted that despite D3s have indicated that they do not intend to contest this action, it does not follow that P has automatically acquired any right of way over D3’s Lots as the Court should not grant a declaratory relief without a trial.

55.The concerns put forward by Mr Chiu is dispensable as the Court has already considered P’s claim against D1 and D2 based on all available evidence adduced in this trial, and those determinations also applied against D3s’ Lots in favor of P’s claim. In any event, the position of the court in making declaratory relief without trial could be found in Hong Kong Civil Procedure 2025, Vol 1, §15/16/2 where it stated the right course for the court is not to make a declaration but to state on what footing the relief is to be granted. On the other hand, the rule of the court that a declaration will not be granted when giving judgment by consent without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to a party to which he is entitled. If the plaintiff has a genuine need for such relief and the court could properly grant it based on the merits of the case, declarations can be granted without trial.

56.Based on the thorough examination of all adduced evidence, I am satisfied that P has proved its case against D1, D2 and D3s and has established easement over their respective lots.

Issue 4: Whether P is entitled to any relief against D1 and D2

57.P pleaded for damages against D1 and D2 in the Re-Amended Statement of Claim. Considering the merits of P’s case herein itself I take the view that P has suffered damages from the Obstruction, that was denying P and its servants, agents, tenants and licensees to go, pass and trespass over and along and use the Disputed Path for the purpose of gaining access to P’s Lot from March 2017, which thereby causes P’s loss of proper use and enjoyment of its own lot.

58.Mr Tsui in his closing submissions suggested the court to adopt a broad-brush approach by using the rent receivable from P’s last tenant at HK$9,000 per month as the baseline, adjusted according to the index of Private Domestic – Average Rents by Class (from 1982) published by the Rating and Valuation Department for B Class in the New Territories, up to February 2025. The total figure of loss of rent assessed by Mr Tsui was at HK$886,225.00.

59.Mr Chiu did not address the issue on damages in his written opening and closing submissions but objected so in his oral closing submissions. He contended that the index suggested by P should be submitted by way of evidence instead of slipping into Mr Tsui’s written closing submissions when there was no order for a split trial or order where damages would be separately assessed.

60.As with breaches of contract, so with tort, the general principle regarding assessment of damages is that they are compensatory for loss or injury. It is trite that the measure of damages is to be, as far as possible, that amount of money which will put the injured party in the same position he would have been in had he not sustained the wrong: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, §39.

61.I am of the view that P is entitled to mesne profits as claimed. Pursuant to McGregor on Damages, 19^th Ed., §37-043: “Where the defendant wrongfully deprives the claimant of his land, the claimant will generally wish to recover not the value of the land but the land itself. The principal action is therefore an action for the recovery of the land, historically better known as the action of ejectment. Damages will thus generally be limited to loss arising from the period of wrongful occupation by the defendant. Such damages are recoverable in the action for mesne profits, in origin an action of trespass. As mesne profits do represent the price a reasonable person would pay for the use of a property, it is the right damages that P is entitled to recover from wrongdoers (see also Clerk & Lindsell on Torts (20^th Ed), paras 19-73).

62.Having said that, I take the view that the government publication of rent index was submitted at a very late stage that could not afford D1 and D2 reasonable time to argue against. To assess the loss of usage based on rent receivable for the entire period from the Obstruction to February 2025 has not only failed to address those months that P’s House would have left vacant for the renovation just after the Obstruction but also underestimated the periods between new tenancies with no receivable rent.

63.I do not feel sufficiently confident in making an assessment of the damages based on Mr Tsui’s proposition, and in the absence of any evidence, I do not think P could blame the Court in taking a broad brush yet conservative approach by assessing only 70% of the time between Obstruction and February 2025 would be rent receivable at a rate of HK$9,000 per month. As such, the total damages suffered by P would be:

April 2017 — February 2025: 94 months

70% of 94 months be rent receivable: 65.8 months

Monthly Rent: HK$9,000.00

Damages therefore assessed at HK$9,000 x 65.8 months = HK$592,200.00

64.No pre-judgment interest will be awarded as an award of interest on mesne profits would overcompensate P. See Whitwham v Westminster Brymbo Coal and Coke Company [1896] 1 Ch 894 per Chitty J at 899.

E.  Disposition

65.For the reasons set out above, this Court make the following Order and Declarations:

(a)  A declaration that P by virtue of its rights acquired as owner of the dominant tenement, that is the land known as the Remaining Portion of Lot No 334 in DD 19, Tai Po, New Territories (“P’s Lot”), as against the 1^st, 2^nd and 3^rd Defendants, is entitled, together with its successors-in-title, tenants and licensees of the P’s Lot to a right of way or easement over the footpath for itself, staff, servants, agents and other visitors at all times and for all purposes through, over and along the whole of the road (“RP334 Access Footpath”) as delineated in green, yellow, indigo and brown colour in the Plan No GL2001/ID/02 prepared by GLand Surveying, Planning & GIS Co. Ltd dated July 2020 (“Right of Way Plan”) which right of way along the RP334 Access Footpath for the avoidance of doubt is within the following servient tenements or intervening land lots, namely, the Remaining Portion of Section B of Lot No 333, the Remaining Portion of Section A of Lot No 334, the Remaining Portion of Section C of Lot 348 and Section B of Lot No 336, New Territories, a copy of which is annexed at Annexure A hereto;

(b)  An injunction against D1 and D2 be restrained from doing anything, whether by themselves or by their servants or agents, or otherwise howsoever obstructing P and its staff, servants, agents and other visitors at all times and for all purposes through, over and along the whole of the road exercising a right of way on foot to and from P’s Lot along the RP334 Access Footpath;

(c)  An injunction ordering D1 and D2 to remove the gate situated at the northern exit of the RP334 Access Footpath adjoining the government land (“the Gate”) or to provide the key/passcode/digital device for accessing the Gate, and should the passcode be changed from time to time, D1 and D2 are to ensure that the new passcode of the Gate be given to P at least 48 hours prior to the effective time;

(d)  D1 and D2 do pay P damages in the sum of HK$592,200.00 together with judgment interest thereon from the date of this Order until the date of payment;

(e)  Costs of this Action as against D1 and D2 (including all costs reserved) be to P, to be taxed if not agreed, with certificate for counsel;

(f)  No order as to costs against D3s;

(g)  The above order nisi shall become absolute in the absence of application to vary within 14 days of the date of this Judgment.

66.Finally, it remains for me to thank Mr Tsui and Mr Chiu for the helpful assistance provided to the court.

Mr Wilfred Tsui, instructed by Messrs Chow Wong & Lawyers, for the plaintiff

Mr Peter Chiu, instructed by Messrs Lam, Lee & Lai, for the 1^st and 2^nd defendants

The 3^rd defendants were not represented and did not appear

Annexure A