Chan Fong Kit v. Sze Ngan Chai Frozen Meat Ltd
Read the full judgment text of DCCJ 607/2019 on BabelCite. This District Court judgment was delivered on 20 April 2026.
1. In DCCJ 607/2019 (the “1 st Case ”), Chan Fong Kit (“ Chan ” or “ P ”) claims against the Defendant (“ SNC ” or “ Defendant ”). Chan alleges that vehicles bearing license plate numbers HZ418, MM418, HS418, and JJ418 (the “ Vehicles ”) were owned or managed or operated by SNC and that the Vehicles since 4 September 2018 had on numerous occasions: (i) stopped or parked within the marked boundary of Lorry Carpark Space No L5 (“ L5 ”); (ii) parked in front of Lorry Carpark Space No L4 (“ L4 ”) of
Cites 3 cases
|
DCCJ 607/2019 & DCCJ 6528/2020 (Heard Together) [2026] HKDC 494 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 607 OF 2019 ------------------------------
------------------------------ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 6528 OF 2020 ------------------------------
------------------------------
--------------------------- JUDGMENT --------------------------- A. INTRODUCTION 1.In DCCJ 607/2019 (the “1st Case”), Chan Fong Kit (“Chan” or “P”) claims against the Defendant (“SNC” or “Defendant”). Chan alleges that vehicles bearing license plate numbers HZ418, MM418, HS418, and JJ418 (the “Vehicles”) were owned or managed or operated by SNC and that the Vehicles since 4 September 2018 had on numerous occasions: (i) stopped or parked within the marked boundary of Lorry Carpark Space No L5 (“L5”); (ii) parked in front of Lorry Carpark Space No L4 (“L4”) of Ground Floor, Kin Wing Industrial Building, No 33 Kin Wing Street, Tuen Mun, New Territories (“Kin Wing” or the “Building”), causing obstruction to the ingress and egress of Chan’s vehicles. P’s case is even though she can use or rent out L4 and L5, it does not mean she did not suffer damages, as she did not have full enjoyment of L4 and L5. 2.In the 1st Case, P claims against SNC at the Prayer of the Amended Statement of Claim for the following:
3.In the DCCJ 6528/2020 (the “2nd Case”), P pleads:
4.In the 2nd Case, there is (i) the delineation disputes as to the boundaries of L4 and L5 (the “Delineation Issues”) and (ii) the allegation that the IO had wrongfully caused or allowed two platforms, being unauthorized building works (“UBW”), to be built upon the rear part of L5, referred to as “Impounding Platforms”. 5.In the 2nd Case, P claims against the IO at the Prayer of the Statement of Claim for the following reliefs:
6.The 2nd Defendant in DCCJ 6528/2020 is an unidentified group of persons, namely “Persons entering or remaining without the consent of the Plaintiff, at Lorry Parking Spaces No L4 and L5 on Ground Floor of Kin Wing Industrial Building, 33 Kin Wing Street, Tuen Mun, New Territories, Hong Kong”. The reliefs P’s claims under both actions have been recited in full so that they can be dealt with fully. 7.For completeness, the two actions were consolidated by the Order of Madam Registrar M Soong dated 14 March 2023 in which the 1st Case and the 2nd Case were ordered to be tried at the same time before the same judge and future hearings of two cases are to be heard together. 8.Further, the Madam Registrar M Soong in her Order of 6 November 2024 further gave effect to the consent of the parties of the 2nd Case as to evidence the area, location and boundaries of L4 and L5 (the “Delineation Issue”), and the location and evidence of the Impounding Platforms marked on Annex 5 of the P’s Statement of Claim by hatched lines (the “alleged UBW”). 9.The alleged UBW, is no longer a live issue, as P acknowledges in her Opening Submissions that these alleged UBW have been removed. 10.As to delineation, it has been ordered by DDJ B Mak dated 14 October 2025 that the Plaintiff’s expert reports dated 20 July 2023 and 7 September 2023 shall be adduced in evidence without calling the makers thereof. Again, in P’s Opening Submissions, the matter of delineation is no longer in dispute. 11.Hence, the remaining issues in dispute as stated in P’s Opening Submissions are:
The Background Facts 12.Background is P’s purchase of L4 and L5 from the Government of the Hong Kong Special Administrative Region (“HKSAR”) on 4 September 2018. By an assignment dated 29 July 1988, Silver Chief Company Limited (“Silver Chief”) became the registered owner of L4 and L5 and upon Silver Chief’s dissolution, on 9 August 2000 L4 and L5 came to be vested in the HKSAR as Bona Vacantia. HKSAR as the vendor then disposed of L4 and L5 to P. 13.P gave evidence in Court that she operated a scaffolding company from the building next to Kin Wing. And before she acquired L4 and L5, she only had a fleeting look at L4 and L5 from outside of the Building. 14.From her evidence, P had disputes with the IO almost from the very start when she attempted to redraw the boundaries of L4 and L5 without the IO’s consent. She also had disputes in an incident with the SNC’s lorry drivers, described by her as 赤膊彪形大漢. 15.The above may be the events that started P’s grievances, that built up over the years led to the present litigation. More on her complaints has been detailed in her evidence. 16.Another important document is the Particulars and Conditions of Sale of Castle Peak Town Lot No 55 by New Grant No 1792 and the Special Conditions of the New Grant (“SCC”). This is a small lot of size 11,010 square feet in area, on which Kin Wing, in 22 stories, was erected. SCC Clause (2)(a) of the New Grant stipulates that the lot shall be used for industrial and/or godown purposes. Further, Clauses (10) and (11) of the SCC stipulates that:
17.The aforesaid required Layout Plan pursuant to SCC Clauses (10) and (11) is registered with the Land Registry on 14 November 1974 (“Layout Plan”) in which it records the locations of 8 Lorry Carpark Spaces Nos L1 to L8, surrounding an elevated Loading and Unloading Platform and further 9 Private Vehicle Parking Spaces Nos P1 to P9. 18.It is readily obvious that the approved Layout for parking, loading & unloading as well as ingress and egress is very congested and any vehicle (whether owned by an owner of an unit at Kin Wing or outside third party) loading or discharging cargo at the common area may interfere with or delay the ingress and egress of any lorry going into or out of the Lorry Carpark Spaces Nos L1 to L8, in particular L5 that is immediately adjacent to the Loading and Unloading Platform. 19.In another Floor Plan produced by the IO (C/327), said to be part of the information for Sales and Purchase of Kin Wing, the common area immediately in front of the Loading and Unloading Platform was marked in Chinese as 公眾卸貨區 (Public Cargo Discharging Area) and the common area preceding it, nearer to the vehicle entry and exit, as 汽車通道 (Vehicular Access). B. THE CONTENTIONS Contentions for SNC 20.In gist, SNC denies it had trespassed into and/or obstructed L4 and/or L5, and if there had been any trespass or obstruction, it was unintentional and in any event de minimis. 21.Further, SNC has since May 2021, rented Lorry Carpark Space No L3 (“L3”), and where its vehicles are not parked at L3, it could be parked at the common area for loading and discharge as directed by the security guard, leaving the driver’s keys behind, if necessary. 22.As the loading/ unloading area is very narrow, it is SNC’s contention that vehicles must accommodate each other by leaving vehicle keys behind with the security guard stationed at the ground floor car park round the clock, for vehicles to be moved immediately, if necessary. 23.As to P’s alleged loss, SNC’s case is that it would be minimal and negligible, as vehicles seeking to ingress or egress had to wait for only a few minutes. Further, L4 and L5 had been rented out, for L4 since 2021 and for L5 since 2024, with no recorded complaint from P’s tenants of L4 and L5. Contentions for IO 24.The Opening for the IO was delivered by a two pages Written Opening Submissions written in Chinese by its representative Mr Poon Wai Yin (潘偉賢). 25.In short, IO denies there had been constantly obstruction of vehicles using L4 and L5. Further since P’s purchase in September 2018, she had been using L4 and L5 until it was leased out by her. 26.IO alleges that P refused and refuses to communicate with the IO directly, even though the channel was open, but instead choose the route of corresponding through her lawyer. C. EVIDENCE Evidence of P 27.P’s evidence was given by 4 statements filed on: (1) 16 August 2023; (2) 9 May 2024; (3) 15 October 2025; and (4) 25 November 2025. These statements constitute her evidence in chief. 28.Her first Statement comprehensively dealt with her allegations as to (i) delineation of L4 and L5 (地界問題); (ii) the unauthorized structures at the hatched location at the back of L5 (違例建築物, UBW); (iii) trespass into L4 and L5 (佔用事件和越界事件); and (iv) use of Common Area Complaint (佔用公用地方問題). Delineation 29.Even though delineation is no longer an issue, it would be useful to set out her complaints. P stated on the date of handover on 4 September 2018, she noticed inconsistent lines drawn on the floor demarking L4 and L5 which, in her view, differ from that of the Layout Plan. The follow-on Delineation incidents were:
30.The above series of incidents cited by P could have been one of the factors that led to the present proceedings. 31.For the present proceedings, P had caused two expert survey reports to be prepared, (i) by Jessica Pui Yee Leung (“Jessica”), Authorized Land Surveyor on delineation of L4 and L5; and (ii) by Ample Surveyor Services Limited (“Ample”) on the suspected unauthorized platform. 32.In Jessica’s Report, at paras 4.1 and 4.3, it is her expert evidence that each lorry according to SCC is to occupy an area of 2.4 m x 7.6 m and the dimensions of boundary of L4 as delineated on the Layout Plan is 2.4 m x 7.5 m and for L5 is 2.6 m x 7.5 m. However, she finds that the dimensions of L4’s existing boundary: (i) in yellow paint is 2.8 m x 5.6 m; and (ii) in white paint is 2.9 m x 7.7 m. And for L5, its dimensions of existing boundary: (i) in yellow paint is 2.6 m x 5.4 m; and (ii) in white paint is 2.6 m x 7.5 m. This shows all the then existing delineations to be incorrect and demonstrates the importance of having an Authorized Land Surveyor to properly mark out the boundary lines. Hence, it is incorrect for P to plead at the Prayer of the Statement of Claim that the 25 September 2018 boundary in yellow paint accurately reflects the proper delineation of the Lorry Parking Spaces in accordance with the Layout Plan and the relief P seeks in respect of the 2nd Case at A/80 para (1) cannot stand, with the consequence that P should re-mark the delineation in accordance with the Jessica’s Report and the follow on relief P seeks at A/80 para (2) for IO to rectify and re-mark the delineation also should fail. Further until proper delineation of L4 and L5 is drawn, delineation would impact on the issue whether there had been trespass in the sense of 過界. UBW 33.The alleged UBW is shown on a Ground Floor Plan marked in red at D2/694 and a photo entitled General View of Platform with Photo No 2 at D2/706. An undated photo of the alleged UBW at D3/940, and another photo of the UBW taken at 29 October 2018 at P’s 2nd List of Documents item 26 shows that the alleged UBW was situated outside of the boundary line of L5. 34.There is no evidence of the IO causing or permitting the alleged UBW to be erected. Burden is on P to prove her case against the IO. 35.A desktop study was conducted by Lee Hoi Tat Nathan of Ample. At para 4.2, it is noted that during the site inspection on 4 July 2023, the suspected issue of UBW had been addressed. 36.Based on Ample’s on-site measurement, the delineation of L5 was 2.597 m x 7.516 m with a width of about 0.2 m wider than that shown on the Layout Plan. 37.It has not been explained why the UBW remained as an issue when it was no longer live and in relation to the alleged UBW and what damages P seeks. Trespass into L4 and L5, obstruction and use of the Common Area 38.Trespass and obstruction are the remaining issues central to P’s case in the 1st Case and 2nd Case. 39.For the allegation of trespass:
40.I have been taken to some of the above photographs when P gave her evidence in chief. She was also shown some of the above photographs when she was cross-examined. 41.In her 2nd witness statement filed on 9 May 2024 (“2nd Statement”), her evidence includes:
42.In her 3rd witness statement filed on 15 October 2025 (“3rd Statement”), she supplemented what she had not disclosed that:
43.In her 4th witness statement filed on 25 November 2025, P made corrections to certain paragraphs references in her 3rd Statement. 44.P was questioned in Court:
Evidence of Ms Li Yee Han 45.Ms Li Yee Han (李綺嫺) gave evidence for SNC by 3 statements dated (1)16 August 2023 (“Li’s 1st Statement”); (2) 9 May 2024 (“Li’s 2nd Statement”); and (3) 28 October 2025 (“Li’s 3rd Statement”). 46.In Li’s 1st Statement, her evidence includes:
47.In Li’s 2nd Statement, Ms Li’s evidence includes:
48.In Li’s 3rd Statement, her evidence includes:
49.She was cross-examined and gave evidence:
Evidence of Mr Poon (潘偉賢) 50.Mr Poon Wai Yin (潘偉賢) Chairman of the IO, gave evidence by two statements dated (1) 13 August 2024; and (2) 11 November 2025. 51.In his statements, Mr Poon’s evidence includes:
52.Mr Poon was cross-examined and gave evidence that:
D. ANALYSIS AND FINDINGS ON THE ISSUES Issue No 1: Whether SNC has committed trespass upon or caused obstruction to L4 and L5; and if yes, what is the quantum of damages? 53.It is noted that the common area at G/F is required by SCC Clause 10 of the New Grant to be used for loading and unloading, and in this case also for entry and exit per the approved Layout Plan. 54.Burden is upon P to prove trespass or obstruction. Given 135 workshops, it is inevitable that in loading and unloading at the common area, temporary inadvertent crossing of the boundary lines of L4 or L5 may have happened. 55.As the information presented for L4 in the form of a Table at D2/808-819, most of the entries are marked with the words “Not Sure” as to whether there was trespass (越界), and more entries are marked with “X” to show vehicles with the identified license plates number parked in front of and not in L4 (泊在公共地方，在L4車位後面). As there is no information as to the duration of the parking, it is impossible to draw any conclusion as to obstruction. Similar information has been presented for L5. 56.In P’s evidence, P drew a distinction between vehicles of SNC and of others. She considers obstruction or trespass by other vehicles to be temporary, to be distinguished from SNC’s vehicles, not temporary but continual. There is no basis for such a distinction from the photo shots and video clips taken at her instruction and directed at SNC’s vehicles. 57.I have reviewed the Ground Floor Layout Plan and instances of targeted photo snap shots of SNC vehicles, alleged by P as having trespassed L4 and L5 or otherwise obstructed P’s vehicles. In the first place, the combined percentage of alleged instances of trespass or obstruction of L4 and L5 had declined over the years: (i) for L4, from 79 instances in 2018; 86 instances in 2019; 25 instances in 2021; and (ii) for L5 from, 64 instances in 2018; 49 instances in 2019; 12 instances in 2020 and 7 instances in 2021. P admits in Court that trespass and obstruction in recent years be slight. 58.I find that the snap-shot instances cannot prove the alleged trespass to be direct and intentional, even if there had been momentary crossing over the marked boundary lines of L4 and L5. There is no evidence of intentional parking or remaining on L4 or L5. 59.In the circumstances of this case, the evidence of Ms Li is accepted that SNC had not directed drivers where to park for loading and unloading, and parking on the common area in front of L4 and L5 as directed by the security guard of IO, was not trespass. The evidence of Mr Poon also confirms that the IO managed parking on the common area by vehicles for loading and unloading as well as for ingress and egress. Shorn of evidence of parking in and remaining on L4 and L5, SNC’s drivers could not have caused the vehicles to trespass L4 and/or L5. Further SNC could not have knowledge of where its drivers were directed by the security guard to park for loading and discharge, that would depend on the situation of the common area at that particular moment on that particular day. Hence, the label of “voluntary” is not available to make SNC liable as the facts of this case differs from the car park in Fan Tony v IO of Kung Lok Building, HCMP 1861/2004, unreported, 17 February 2006 [P’s LoA #9] that was converted into a guardhouse. 60.As for obstruction, even had there been momentary obstruction, the de minimus rule in G & Y Co Ltd v Kwok Kim Leung and Another, HCA 3586/1989, unreported, 2 July 1991 applies. I have taken into account the limited loading/discharge area at the common area of Ground Floor of Kin Wing. I accept had there been any obstruction by vehicles loading or unloading, whether by outside vehicles or SNC’s vehicles, the security guard on duty, when alerted, would have caused such vehicle(s) to be immediately removed. 61.If P was truly concerned about trespass, she could and can place a barrier at the boundary that separates L4 and L5 and the common area. 62.The Court is not aware of the true and complete reasons why P goes so far to take SNC and the IO to Court, whatever the cause for the animosity. 63.I find there is insufficient evidence to justify P’s claims against SNC for trespass and obstruction, and intentional voluntary trespass or obstruction is not proved. 64.Additionally, there is no reported and/or recorded instance of P’s vehicles being prevented entry or exit, nor any evidence as to obstruction nor the duration of any instance of obstruction. 65.As such the reliefs P claims against SNC at the Prayer (1) of the Amended Statement of Claim for a declaration that the Defendant is not entitled to directly or indirectly trespass into L4 and L5 and at Prayer (2) of the Amended Statement of Claim for an injunction restraining the Defendant from occupying or trespassing into L4 and L5 are unnecessary and are rejected. 66.Further, P’s damages claim at Prayer (3) for damages to be assessed also does not arise. For completeness, from P’s evidence, I am of the view that P’s alternate parking spaces for her 3 goods vehicles was for a purpose other than due to obstruction of L4 and/or L5. Issue No 2: Whether IO had breached its duty to properly and adequately manage the Building 67.In considering this issue, regard has to be made as to the IO’s powers and duties under the DMC that required the IO at Section V Part B [D1/519-526]:
68.Hence, the IO has unfettered power and discretion to properly manage Kin Wing, the Building and the common area at Ground Floor in accordance with the DMC for the benefit of all the owners, occupiers and their licensees and in compliance with the SCC of the New Grant (the Land Lease), such as in regulating vehicles entering Kin Wing whether for parking or for unloading of goods of any owner or occupier. It is in the furtherance and not acquiesce that the IO actively discharge its DMC duties at (20) and (21), in managing the Ground Floor Common Area, and balancing the needs of all owners, whether of parking spaces or of workshops operating in Kin Wing. 69.SCC Clauses 10(b) and 11 of the New Grant further stipulated that the space provided in the Layout Plan, that is the Ground Floor Plan, shall only be used for parking, loading and unloading of vehicles. And indeed other than the parking spaces, the rest of Ground Floor, marked as common area, was used only for loading and unloading of vehicles, in particular the area in front of the elevated Loading platform, L3 to L5, and for vehicles to ingress and egress. 70.There is nothing improper for staff of the IO (the security guards) to direct incoming vehicles to park on the common area temporarily for loading or discharge. 71.There is also nothing improper for the IO to require drivers to leave keys behind, so that vehicles temporarily parked on the common area can be removed to facilitate ingress or egress of other vehicles for parking into spaces such as L4 and L5. 72.Given the approved Layout, in which, by design, only a small and narrow common area is provided for both loading/unloading, turn-around and entry and exit of vehicles, it is inevitable some give and take is necessary in the interest of all the owners and occupiers. And the measure to leave vehicle keys is just one such measure necessary to ensure non obstruction so that vehicles are not prevented from entering or exiting the Ground Floor. 73.In the context of Hong Kong, managing vehicle parking in the aforesaid manner is not uncommon whether at older industrial buildings, or at commercial or private car parks and I find there was no breach of the IO’s duties under the DMC. Further, this situation of alleged obstruction may be regarded by the Court to be matters of a trifling and negligible nature, suitable for the de minimis rule as discussed in Shing Yat-Kwong v Li Man Hong, DCMP 3218/2018, unreported, 8 February 2023 [SNC’s LoA #1] at para 58. 74.It was also proper for the IO to require P to produce a report of authorized surveyor for vetting and approval before commencement of her re-delineation, as P’s delineation may wrongly encroach upon the common area. 75.Accordingly, the reliefs P claims against the IO pursuant to its Statement of Claim at Prayers (3) to (8) for injunctions, declarations and orders [A/80] are rejected. The injunctions sought at Prayers (3), (7) and (8) against the IO and the 2nd Defendant are rejected, as the IO was and is mandated to manage the Ground Floor common area for parking as well as loading and unloading for all owners and occupiers, not just about ingress and egress or other conveyances of P to and from L4 and L5. The order sought at para (6) of Prayer to remove all objects erected within L5 has been overtaken by event, as the alleged UBW has been removed. As there is no finding that the IO and the 2nd Defendant had trespassed L4 and L5, there is no need for a declaration sought at Prayer (4) that the IO and the 2nd Defendant are not so entitled. Finally, the order sought at para (5) of Prayer to restrain the IO and 2nd Defendant from trespassing or occupying L4 and L5 is also unnecessary, as there had not been any allegation that the IO had previously done so. 76.I also find there was no evidence in support of P’s Prayer (9) for damages against the IO for obstruction of P’s use and enjoyment of L4 and L5. IO’s operational management of the Ground Floor parking spaces and common area was mandated by the DMC and necessary. 77.I, accordingly, find that the IO has successfully defended against P’s allegations of improper management in breach of the duties imposed by the DMC. E. CONCLUSION 78.For DCCJ 607 of 2019, P’s claims against SNC are dismissed with P to pay SNC’s costs of this action, including all costs previously reserved, based on costs to follow the event, to be taxed if not agreed on party to party basis. 79.For DCCJ 6528 of 2020, P’s claims against the IO are dismissed with P to pay the IO’s costs of the present proceedings, including all costs previously reserved, based on costs to follow the event, to be taxed if not agreed on party to party basis. 80.Lastly, I thank Counsel for their useful assistance.
DCCJ 607/2019 Ms Grace Tam, instructed by KWC & Associates, for the Plaintiff Mr Kevin Leung, instructed by O Tse & Co, for the Defendant DCCJ 6528/2020 Ms Grace Tam, instructed by KWC & Associates, for the Plaintiff The 1st Defendant represented by Mr Poon Wai Yin, appeared in person The 2nd Defendant was not represented and did not appear Appendix
| ||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 607/2019