Li Chun Bon and Another v. China Mobile Hong Kong Company Ltd
Read the full judgment text of CACV 405/2024 on BabelCite. This Court of Appeal judgment was delivered on 28 January 2026.
1. This is an appeal by the plaintiffs against the judgment of HH Judge Ko, Chief District Judge, who dismissed their claim against the defendant for trespass and nuisance. This Court (Kwan VP and Chow JA) granted leave to the plaintiffs to appeal on the issue of trespass.
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CACV 405/2024, [2026] HKCA 88 On Appeal From [2023] HKDC 466 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 405 OF 2024 (ON APPEAL FROM DCCJ NO. 617 OF 2017) ________________________
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________________________ JUDGMENT ________________________ Hon Cheung JA (giving the Judgment of the Court) : I. The appeal 1.This is an appeal by the plaintiffs against the judgment of HH Judge Ko, Chief District Judge, who dismissed their claim against the defendant for trespass and nuisance. This Court (Kwan VP and Chow JA) granted leave to the plaintiffs to appeal on the issue of trespass. II. Background 2.The plaintiffs are the registered owners of the ground floor of a three‑storey building at No. 67, Lok Lo Ha Village, Shatin, New Territories (‘the Building’). The first floor and second floor of the Building are owned separately by two other owners. 3.The Assignment to the second floor owner dated 26 October 1981 (‘the 2/F Assignment’) stated that the interest assigned to him has ‘the right to the exclusive use, occupation and enjoyment of ALL THAT the SECOND FLOOR and the MAIN ROOF thereover’ of the Building. 4.The plaintiffs and the other two owners have entered into a Deed of Mutual Covenant dated 26 October 1981 (‘DMC’) in respect of the Building. The Recital and the Schedule 1 stated, amongst other things, the owner of the second floor has ‘the sole and exclusive right and privilege to the use, occupation and enjoyment of the whole of [the Second Floor and the Main Roof of the Building] subject to and with the benefit of the following rights privileges and obligations, namely’,
5.The owner of the second floor allowed the defendant, by way of licences, to install antennas, a large cabinet with ancillary equipment and wires and cables on the roof of the Building. 6.The roof is surrounded by parapet walls and there is a staircase hood on the roof which houses the staircase from the ground floor to the roof. The Judge found that the antennas were attached to the inner side of the parapet walls on the roof, the large cabinet and ancillary equipment were attached to the vertical wall of the staircase hood and some of the wires and cables were attached to the inner side of the parapet walls. 7.The plaintiffs complained that the defendant had installed these items on the common parts of the Building without the consent of all the owners of the Building and the defendant had committed trespass. Accordingly, the plaintiffs, as one of the owners of the Building, are entitled to damages and mesne profits for the defendant’s wrongful occupation by reason of section 34I of the Building Management Ordinance, Cap. 344 (‘BMO’). III. The Judge’s Decision 8.Section 2 of the BMO defines ‘common parts’ to mean
9.The list in Schedule 1 includes ‘walls enclosing passageways, corridors and staircases’ (Item 2) and ‘parapet walls’ (Item 4). 10.The authorities in this area described section 2 as the ‘default position’. 11.The Judge held at [40] that what divided the parties is whether ‘the inner side of the parapet walls’ and ‘the walls enclosing the staircase’ (‘the Disputed Parts’) have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner. 12.The Judge held that a reasonable person reading the 2/F Assignment and the DMC would have understood that the second floor owner has been granted the exclusive use, occupation or enjoyment of the entire Main Roof. The ‘default position’ under section 2 of the BMO is not engaged. 13.The Judge relied on the following reasons : 1) The term ‘Main Roof’ is not defined in the Assignment or DMC. He held that :
2) The title documents were professionally drafted. The drafter was aware of the default position. If the drafter had been minded to apply the default position to the Disputed Parts on the roof, he could have easily qualified the term ‘Main Roof’ to exclude those parts from it for the statutory scheme to kick in. 3) The plaintiffs’ case is contrary to the Court of Final Appeal judgment of Nation Group Development Ltd v. New Pacific Properties Ltd (2000) 3 HKCFAR 427 (‘Nation Group’). 4) The responsibility to pay for the cost of maintenance and upkeep can be a relevant pointer in the iterative process of construction. The provision on contribution for repair and maintenance in Clause 1 of the DMC did not mention ‘the inner side of the parapet walls’ or ‘the walls enclosing the staircase’ on the roof. 14.The Judge expressly excluded from his consideration post‑agreement conducts and the subjective intention of the parties which he held to be inadmissible. IV. Our view 1) Construction: text and context 15.This appeal involves a straightforward construction of the terms of the 2/F Assignment and the DMC by reference to the text and factual context in the light of section 2 of the BMO. The title documents must be read together in order to ascertain the common intention of the parties concerning the extent of the exclusive use of the Main Roof. We are unable to accept the Judge’s construction that the Disputed Parts are within the exclusive use of the second floor owner and are not common parts. The starting point is that under section 2(a) of the BMO, the whole of the building is a common part, except those parts that had been specified or designated to be for the exclusive use, occupation or enjoyment of an owner. Under section 2(b), the common part also means, unless so specified or designated, those parts specified in Schedule 1 which includes ‘parapet walls’ (Item 4) and ‘walls enclosing passageways, corridors and staircases’ (Item 2). The crucial point is that the non‑common parts of the building are only those parts that have been specified or designated for the exclusive use of an owner. It is a wrong approach, as the Judge did, to say that ‘There is nothing to exclude “the inner side of the parapet walls” and “the walls enclosing the staircase” from the [second floor] owner’s enjoyment’. The test is not based on non‑exclusion but rather based on the specification and designation of a part of the building for the exclusive use of an owner. 16.In this case, the Main Roof is surrounded by parapet walls and it has a hood housing the staircase. The Disputed Parts have not been specified or designated for the exclusive use of the owner of the second floor either in the 2/F Assignment or DMC. While under the 2/F Assignment, the Main Roof is assigned exclusively to him, the parapet walls surrounding the roof, are, according to Item 4 of Schedule 1, common parts of the Building. The walls enclosing the staircase to the roof are also, according to Item 2 of Schedule 1, common parts of the Building. Schedule 1 of the BMO is a pointer to what might commonly regarded as common parts of the building. The parapet wall and staircase have been specified in Schedule 1 as common parts and there is no other evidence or stronger indication that despite their inclusion in Schedule 1, they are nonetheless not common parts. What is ‘stronger indication’ depends on the circumstances of the case. Any argument that the exclusive use of the Main Roof would, prima facie, cover the Disputed Parts, is not sustainable in view of their inclusion as common parts in Schedule 1. To do otherwise would mean that these two items in Schedule 1 are being disregarded in the construction exercise. 17.Further, the terms of the DMC clearly show that the staircase is not within the exclusive use of the owner of the rooftop. Recital (a) of the DMC states that the exclusive right of the owner to his designated part is subject to the rights of the owners to go pass the entrances, staircases etc. 18.Clause 1(b) provides that :
19.Clause 9 provides that :
20.Apart from Recital (a), the exclusive right to the Main Roof is also qualified by Recital (d) and Recital (e) in respect of the other owners and agents of the Building to enter the common parts or any part of the Building to carry out repair and maintenance work.
21.Further, the parapet walls are part of the exterior walls of the Building which provide the external framework to the Building and also serve to hold and support the Building and prevent damage to its interior. All the co‑owners or occupiers of the Building have the right to enjoy such use including the peaceful enjoyment of their respective units of the Building : see Kong Wai Hsien and Fung Lai Sheung v Tai Wai Glamour Garden (IO) [2019] 5 HKLRD 672 at [40]. Since both the 2/F Assignment and the DMC must be construed together, to rely solely on the specification and designation of the ‘Main Roof’ in the 2/F Assignment, would mean other relevant terms of the DMC are being ignored. 22.Our construction is in line with what the Court of Final Appeal held in Donora Co Ltd v Tsuen Kam Centre (IO) (荃錦中心業主立案法團) [2024] HKCFA 3 :
23.The Court of Final Appeal also cautioned at [55] that one cannot place too much reliance on cases decided in respect of another DMC designed for another building because in construing a DMC by reference to its text and context, the particular circumstances of a document or documents may vary. 24.Mr Lee for the plaintiffs refers to Special Condition 5(a) of the New Grant of the land upon which the Building is situated, which provides, inter alia, that the Building to be erected on the lot 1) ‘shall not contain more than three storeys’, 2) ‘nor exceed a height of 25 feet’. Special condition (7) then defines ‘height’ as, inter alia, ‘excluding the stairhood…used solely for the purpose of gaining access to the roof of the building and excluding also any parapet…’. He argued that as the 2/F Assignment (being ‘subject to…the terms and conditions in’ the New Grant) and the DMC (those conditions are ‘deemed to have been complied with’) must be read consistently with the New Grant, ‘Main Roof’ can only mean the surface of the Building excluding the stairhood and the parapet, which cover the Disputed Parts. We do not see how Special Condition 7 can assist in a construction in favour of the plaintiffs. Special Condition 5(a) restricts the Building to a height of 25 feet. Special Condition 7 deals with how this 25 feet is to be measured. It excludes from the measurement, staircase hood not exceeding 7 feet in height erected for the sole purpose of gaining access to the roof of the Building. It also excludes from the measurement any parapet not exceeding 4 feet in height. These provisions have nothing to do with the issue of whether the Disputed Parts are common parts. 25.Mr Lee also argued that the word ‘thereover’ in the term ‘Main Roof thereover’ in the 2/F Assignment, shows that it is only the surface of the Main Roof that is within the exclusive use of the second floor owner. In our view, it is not necessary to decide the case on such a narrow basis. 2) Nation Group 26.The Judge and Mr Ng (together with Mr Tam) for the defendant relied heavily on the judgment of the Court of Final Appeal in Nation Group. The case is a vendor and purchaser dispute on whether the vendor had failed to show or give good title to the property. The purchaser there agreed to buy ‘the entire first floor and its canopy’ of a commercial building from the vendor. The canopy was a cantilevered concrete structure at the level of the first floor concrete slab, on three sides of the building, which extended beyond the boundaries of the lot. The purchaser raised a requisition concerning unauthorised structures attached to the underside (soffit) of the canopy. The vendor responded that it had only contracted to sell rights to the top surface; the rest of the canopy constituted common parts of the building; and thus the unauthorized structures were irrelevant. At issue was whether the property contracted to be sold included the soffit. 27.The Court of Final Appeal held that the vendor had contracted to sell the whole canopy and not merely the top surface of the canopy. Ribeiro PJ held, inter alia, at page 434 I that a reading of the title documents supports a construction giving the purchaser exclusive use of the entire canopy. He referred to the Sale and Purchase Agreement and held at page 434 B‑C :
28.He then referred to the DMC and held :
29.Ribeiro PJ, at page 436 G, accepted that the exclusive use of the ‘entire first floor’ which the purchaser contracted to acquire meant that the purchaser was to be given ‘the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them,’ in other words, of the entire volume of the first floor space, but not use of the underside of the concrete slab. However, he held that a grant of exclusive enjoyment of the canopy stands on a very different footing.
30.It is of note that Nation Group did not discuss section 2 of the BMO. The DMC there expressly allotted 10 shares to the ‘first floor and its canopy and flat roof’ for the exclusive use of the owner. The canopy is not included in the part of the DMC dealing with common parts services and facilities. 31.Nation Group is concerned with the discreet issue of whether the conveyancing of the canopy means the canopy as a whole or merely its top part. It is of limited assistance in the construction of the title documents in the present case. The statement there that the reference to canopy in the sale and purchase agreement and DMC is ‘unqualified’ must be properly understood in the context of that case. 32.Mr Ng relied on construction principles and argued that the owner of the Main Roof is given the right to the exclusive use of the entire volume of the Main Roof including the disputed areas, particularly where he is vested with the ‘sole and exclusive right and privilege and occupation and enjoyment of the whole of [the second floor and the Main Roof]’. We disagree, because the Main Roof is not an enclosed space while the space in Nation Group, namely, the entire first floor is enclosed. 3) Other arguments (1) Professional drafting 33.Mr Ng raised other arguments in support of the Judge’s decision. Many of these arguments are elaborations of the reasons given by the Judge. Mr Ng argued that the drafters of the title documents were professionals, they must be aware of the default position and could easily have excluded the Disputed Parts in the title documents if they are not intended for the exclusive use of the owner. 34.We disagree. Under the statutory scheme of section 2 of the BMO, the position is whether a part of the Building (which is a common part), has been specified and designated for the exclusive use of an owner and not whether there is anything to exclude the Disputed Parts from the owner’s entitlement. (2) Parties’ understanding 35.Mr Ng relied on construction principles and argued that the contracting parties are taken to have known the common law which would include the notion that the owner’s rights over the airspace above the land and buildings are up to the height necessary for their ordinary use and enjoyment and the demise of a floor or a room or an office bounded in part by an outside wall, prima facie, includes both sides of that wall, unless there be an exception or a reservation or something in the context to exclude it. He also argued that a reasonable purchaser (in the shoes of the owner of the second floor) would expect to purchase the Disputed Parts as well because staircase hoods and parapet walls are usual features which a consumer reasonably expects would be erected on a flat roof to be sold : Lee Yuk Sum & Anor v Lead Bright Ltd (2 July 2004, HCA 673/1999). 36.We do not see how these matters would assist him having regard to the specific text and factual context of this case. (3) Special Condition 7 37.Mr Ng also argued that the definition of height in the Special Condition 7 of the New Grant of the land upon which the Building is situated supports the idea that the Disputed Parts are understood to form part of the Main Roof. For the same reason that we have rejected Mr Lee’s argument on this point, we will likewise reject this argument. (4) Absence of prescription for maintenance and repair costs 38.Mr Ng further argued that the absence of a prescription in the DMC for maintenance and repair costs of the disputed areas supports the notion that they are not common parts. In Donora, the Court of Final Appeal held that the exterior wall of that building was a common part and referred to provisions in the DMC which imposed a duty on the manager to maintain the exterior walls. In 黎偉雄 v信和物業管理有限公司 [2020] HKCA 448, this Court held that a public pedestrian way is part of the common areas of an estate. At [55], it is stated
39.We disagree that there is no provision to pay costs for the maintenance of the Disputed Parts. They are covered by clause 1(b) in respect of the ‘main walls’, ‘all the external parts of the said building’ and ‘staircases’. (5) Legislative history 40.Mr Ng has referred to the history of legislation of BMO in regard to common parts. Our view is that it does not assist in the construction exercise. (6) Shine Empire Ltd 41.Mr Ng relied on Shine Empire Ltd v The Incorporated Owners of San Po Kong Mansion & Ors (3 December 2004, HCA 3444/2001) where Deputy High Court Judge Mayo held that the parapet wall on the roof was not a common part (despite it not being expressly reserved in the DMC) and that the parapet wall belonged to the owner of the roof for the reason, inter alia, that it did not make sense to reserve the right to the roof without including the parapet walls at the same time since usage of the roof would be unsafe. 42.In our view, the case is distinguishable. It is of note that in Shine Empire Ltd, the building was developed in 1968 and the developer had reserved the roof to itself. The DMC was dated 15 May 1968. The title documents were executed prior to the coming into effect of the Multi‑storey Buildings (Owners Incorporation Ordinance), which was enacted on 19 June 1970. That legislation was the predecessor of the BMO and it already had the equivalent of section 2 and Schedule 1 of the BMO. Hence, the drafters of the DMC and Assignment in Shine Empire Ltd could not possibly have in mind the exclusion of the parapet when the developer acquired the ‘full right and privilege to hold, use, occupy and enjoy all the Main Roof’. The caution by the Court of Final Appeal on over reliance on other cases on the interpretation of a DMC is apposite. (7) Impracticality argument 43.The argument by the defendant that it is impractical for the owner of the second floor to ask other owners for the costs of the repair and maintenance of the disputed parts is irrelevant to the interpretation exercise. As stated, the emphasis is on the specification and designation of an exclusive part and not on commercial reasons, see Sino Channel Holdings Ltd v Vast Faith Investment Ltd [2020] 2 HKLRD 1286 at [27]. (8) Lack of free access 44.Mr Ng further submitted that the plaintiffs’ lack of free access to the Disputed Area is a crucial part of the factual matrix against which the DMC is construed. 45.We disagree. As Mr Lee had submitted, neither the staircase itself nor the door at the end of the staircase giving access to the Main Roof is within the exclusive use, occupation or enjoyment of the owner of the second floor : Recitals (a), clauses 1(b) and 9 of the DMC. The following items in Schedule 1 of the BMO further refute Mr Ng’s argument : Item 2 ‘Walls enclosing passageways, corridors and staircases’ and 8 ‘Passageways, corridors, staircases, landings, light wells, staircase window frames and glazing, hatchways, roofways and outlets to the roofs and doors and gates giving access thereto’ (emphasis added). (9) Unreasonable result 46.We do not accept that our interpretation will lead to an unreasonable result as submitted by Mr Ng. (10) Extrinsic evidence 47.The defendant by its Amended Respondent’s Notice asked for the judgment below to be affirmed on the following grounds : i) The DMC, properly construed, together with the 2/F Assignment, does not clearly define the ‘MAIN ROOF’, the exclusive use, occupation and enjoyment of which was conveyed to 2/F Owner. The term ‘MAIN ROOF’ is undefined in both documents (see Judgment [42]‑[44]). Therefore, the following extrinsic evidence, including subsequent conduct, is admissible in determining what the parties intended the ‘MAIN ROOF’ to mean. This evidence supports the Judge’s finding that the Disputed Parts are not common parts : (a) Where items relating to/of No. 67, Lok Lo Ha Village, Sha Tin (the ‘Building’) required repair, the flat owners of the Building would split the cost between them (Transcript page 22); (b) The cost of repairing the drains had been split amongst the flat owners of the Building, but not the Main Roof nor the parapet walls surrounding the Main Roof (Transcript page 22); (c) The staircase was a common part according to the DMC and the cost of repairing any damage to the staircase would be shared between flat owners (Transcript page 23); (d) The cost of repairing the door at the end of the staircase leading to the Main Roof had never been shared between the flat owners of the Building (Transcript page 23); (e) The purpose of the inner parapet wall of the Main Roof serves a protective function to prevent those on the Main Roof from falling (Transcript page 24); (f) The Main Roof owned by the 2/F Owner cannot be accessed from the Building if the 2/F Owner locked the door leading to the Main Roof (Transcript page 22‑23). The inner parapet walls of the Main Roof cannot be accessed without crossing the horizontal plane of the Main Roof owned by the 2/F Owner (Transcript page 24). 48.In our view, the defendant’s approach is based on a false premise, namely, that DMC and the 2/F Assignment do not clearly define the Main Roof. We have reached a contrary view. In any event, it is trite that extrinsic evidence, including post agreement conduct and statement of the parties, is not generally admissible or relevant to construction: Marble Holding Ltd v Yatin Development Ltd (2008) 11 HKCFAR 222 at [22] per Mortimer NPJ. The defendant is unable to overcome this hurdle. The reliance on extrinsic evidence is misplaced. 49.The parties have advanced other arguments in support of their case. It is not necessary for us to address all of them as they do not advance the construction exercise further. V. Conclusion 50.Accordingly, the appeal is allowed. The judgment below is set aside and the plaintiffs are awarded damages in the amount of $41,867 (which the Judge had assessed in the event that the plaintiffs’ claim is successful) with interest (as agreed by the parties) from the date of the commencement of the action on 9 February 2017 to the date of judgment below on 25 May 2003 at the rate of prime plus one. Thereafter, the interest is at judgment rate until payment. VI. Costs 51.The plaintiffs are to have the costs of appeal. As the parties have indicated that there will be arguments on the costs below, we order the parties to lodge written submissions within 14 days of the handing down of this judgment upon which the Court will address the issue on paper.
Mr Jonathan Lee, instructed by C Y Tsang & Co, for the 1st and 2nd Plaintiffs Mr Ernest CY Ng and Mr Fergus Tam, instructed by Squire Patton Boggs, for the Defendant | ||||||||||||||||||||||||
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