Tang Kwok Pong and Others v. Lau Kin Shun Freeman, The Administrator of the Estate of Lau Leung Chun (or Tsun) and Others
Read the full judgment text of DCCJ 1014/2022 on BabelCite. This District Court judgment was delivered on 20 July 2026.
1. In this action, the 2 nd and 3 rd Plaintiffs claim a right of way over the Defendants’ land by prescription under the doctrine of lost modern grant, whilst the 1 st and 2 nd Plaintiffs sue the 2 nd Defendant for nuisance.
Cites 17 cases
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DCCJ 1014/2022 [2026] HKDC 1279 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1014 OF 2022 —————————— BETWEEN
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—————————— JUDGMENT —————————— I. Introduction 1.In this action, the 2nd and 3rd Plaintiffs claim a right of way over the Defendants’ land by prescription under the doctrine of lost modern grant, whilst the 1st and 2nd Plaintiffs sue the 2nd Defendant for nuisance. II. Plaintiff’s Claim 2.The 3rd Plaintiff is the current registered owner of Lot 757 s A (“Lot 757A”), Lot 757 s B subsection 1 (“Lot 757B1”), the Remaining Portion of Lot 757 s C (“Lot 757CRP”), Lot 757 s D (“Lot 757D”) and Lot 757 s E (“Lot 757E”) all in Demarcation District No 115. 3.The 2nd Plaintiff is the current registered owner of the Remaining Portion of Lot 757 s B (“Lot 757BRP”), Lot 757 s C subsection 1 (“Lot 757C1”) and the Remaining Portion of Lot 757 (“Lot 757RP”). 4.The acquisition of the ownership of various plots of land requires explanation, and the same is set out in paragraphs 5 to 11 below. 5.By a Deed Poll dated 13 July 2015, Lot No 757 in Demarcation District No 115, Yuen Long, New Territories (“Lot 757”) was sub-divided into Lot 757A, Lot 757B, Lot 757C, Lot 757D, Lot 757E and Lot 757RP. 6.By a Deed Poll dated 11 March 2025, Lot 757B was sub-divided into Lot 757B1 and Lot 757BRP. 7.By another Deed Poll dated 11 March 2025, Lot 757C was sub-divided into Lot 757C1 and Lot 757CRP. 8.The 3rd Plaintiff became the current registered owner of Lot 757A in the following manner:-
9.The 2nd Plaintiff and the 3rd Plaintiff became the current registered owner of Lot 757BRP and Lot 757B1 respectively in the following way:-
10.The 2nd Plaintiff and the 3rd Plaintiff became the current registered owner of Lot 757C1 and Lot 757CRP respectively in the following manner:-
11.The 2nd Plaintiff became the current registered owner of Lot 757RP, and the 3rd Plaintiff became the current registered owner of Lot 757D and Lot 757E, in the following manner:-
12.The 2nd Plaintiff is the father of the 1st Plaintiff. 13.Meanwhile, the proprietary interest of Lot 758 in Demarcation District No 115 (“Lot 758”) is divided into the North-Western Portion and the South-Eastern Portion. 14.In relation to the North-Western Portion of Lot 758, proprietary interest passed to the 1st Defendant in the following manner:-
15.In relation to the South-Eastern Portion of Lot 758, the proprietary interest passed to the 1st Defendant and the 3rd Defendant in the following manner:-
16.Lot 757 abuts/adjoins to the government land at its northern side (“Government Land”) whilst the remaining sides adjoin to four other private lands, namely Lots 744, 756 and 762 in Demarcation District No 115 and Lot 758 in clockwise direction. The northern boundary of Lot 757 is fenced off by a mesh wired fence erected on the Government Land, where there is a signage stating that no trespass, possession and cultivation is allowed on the Government Land, and all contraveners will be prosecuted. The western boundary of Lot 757A and Lot 757B has always been adjacent to and alongside Tung Shing Lei Road (東成里路) (“Access Road”). The Access Road connects Castle Peak Road – Yuen Long Section to Lot 757 and to other areas in the vicinity of Lot 757. The part of the Access Road that runs alongside and adjacent to the western boundary of Lot 757A and Lot 757B situates on Lot 758 (“Subject Way”). The Access Road situates on private lands and connects and provides ingress and egress to all those lands within the vicinity of Tung Shing Lei Road. The Access Road can be accessed openly by public without hindrance or obstruction. There is no gate or toll at the entrance of the Access Road at its junction with Castle Peak Road. Neither is there any road sign stating that the Access Road is a private road and the use is subject to permission. 17.The Plaintiffs plead that by virtue of the events and matters in paragraphs 18 to 34 below, the predecessors-in-title of Lot 757 and/or the 2nd Plaintiff and the 3rd Plaintiff have acquired a vehicular and pedestrian right of way and/or easement from Lot 757 to the Subject Way. 18.On 19 February 1947, Chan Yun Chi Tso (“Tso”) became the registered owner of Lot 757. Since around 1950s, CYK and his family had been residing in the building on Lot 757 (“Building”). On 28 March 1996, CYK became the registered owner of Lot 757. 19.Since around 1960s, there has been a vehicular and pedestrian entrance (measured about 4 metres in width) located on the western boundary of Lot 757B (“Lot 757 Entrance”), being adjacent to and located alongside the Access Road at the Subject Way. There was a gate located at the southern side of Lot 757D (“Lot 757D Gate”) abutting directly to Lot 758 with no access to any roads or paths, and such a gate had been blocked by the owners of Lot 758 since around 1960s. The only means of access to Lot 757 has been via the Lot 757 Entrance. 20.Since around 1960s to 2015, the predecessors-in-title of Lot 757, CYK and/or his family had been using the Lot 757 Entrance to access the Access Road via the Subject Way by vehicle and/or by foot as ingress and egress to Lot 757 (“Right of Way”) openly. The predecessors-in title of Lot 757, CYK and/or his family had never asked for permissions from the owners of Lot 758 and/or from anyone else for the usage of the Right of Way. The Right of Way is illustrated on the plan annexed to the Amended Statement of Claim and reproduced at the Annex to this Judgment, with the Lot 757 Entrance coloured yellow and the Subject Way coloured pink. 21.The Building situates on Lot 757 and is currently in a dilapidated condition. A tree (“Tree”) grows inside the main living area of the Building with its roots grown into the main walls, and its tree crown grown through the roof. 22.The Plaintiffs purchased Lot 757 in 2015. From 2015 to 2019, the 1st and 2nd Plaintiffs had regularly used the Right of Way by vehicle and/or by foot as ingress and egress to Lot 757 openly and without asking for permissions from the owners of Lot 758 and/or from anyone else, and had also regularly instructed workers (who had used the Right of Way as ingress and egress to Lot 757 by construction vehicles and/or by foot) to carry out maintenance works to the Building and the Tree. 23.On 7 August 2019, the 1st and 2nd Plaintiffs discovered that mesh wired fence (“Mesh Wired Fence”) was erected by unknown individuals and the entire boundary of Lot 757 was surrounded, preventing all access from the Access Road to Lot 757 (“1st Incident”). Upon enquiry, the said unknown individuals informed the 1st and 2nd Plaintiffs that the owner of Lot 758 instructed them to do so, and so the Plaintiffs reported the incident to the police. 24.By letter dated 18 September 2019, the 1st and 2nd Plaintiffs’ former solicitors Howell & Co (“H&C”) informed the 1st Defendant about the 1st Incident and that the 1st and 2nd Plaintiffs as the then owners of Lot 757A and Lot 757B had the right of way to gain access to their lots via the Subject Way. By letter dated 2 October 2019, the 1st Defendant’s then solicitors Philip Chan & Co (“PC&C”) stated that the 1st Defendant’s predecessor-in-title was only entitled to a portion of Lot 758 on the opposite side the Access Road from Lot 757 by virtue of a vesting order, and further denied the 1st Defendant’s involvement in the erection of the Mesh Wired Fence. 25.By letter dated 18 November 2019 to PC&C, H&C inquired whether the 1st Defendant had erected the Mesh Wired Fence blocking the ingress and egress to Lot 757, and requested the 1st Defendant to remove the same. By another letter dated 20 December 2019, H&C inquired with PC&C about the ownership of Lot 758 on the location where the Mesh Wired Fence was erected. By letter dated 3 January 2020, PC&C stated that the 1st Defendant disputed the 1st and 2nd Plaintiffs’ right to his land. 26.By letter dated 10 February 2020, H&C informed the 1st Defendant that the 1st and 2nd Plaintiffs intended to enforce their right of way on the Access Road including the Subject Way. H&C also asked the 1st Defendant to provide information on the identity of the person(s) who erected the Mesh Wired Fence. 27.By letter dated 10 February 2020, H&C informed 東成里村民福利會 (“Welfare Association”) about the 1st Incident and that the 1st and 2nd Plaintiffs had the right to use the Right of Way, and requested the latter to remove the Mesh Wired Fence within 14 days. By letter dated 25 February 2020, the Welfare Association replied to H&C that throughout the past 30 years, there had always been fences erected on the location where the Mesh Wired Fence was and that there had never been vehicular traffic to and from Lot 757, and also that throughout the past few decades there had never been any complaint from the predecessors of Lot 757 of their inability of accessing Lot 757. The Welfare Association further stated that the Access Road was a private road and not every person had the right to use the same. 28.In May 2020, the 1st and 2nd Plaintiffs engaged workers to remove the Mesh Wired Fence in order to regain access to Lot 757. Thereafter, the 1st and 2nd Plaintiffs engaged workers to remove excessive vegetation, construct a concrete wall of around 4 feet tall at the perimeter of and surrounding most part of Lot 757 (“Concrete Wall”) and construct other entrances on the western boundary of Lot 757C (“Lot 757C West Entrance”), the eastern boundary of Lot 757C (“Lot 757C East Entrance”) and the northern boundary of Lot 757A (“Lot 757A Entrance”). These 3 entrances are collectively referred to as the “Additional Entrances”. At all material times, the Lot 757C East Entrance and/or the Lot 757A Entrance cannot be used as an entrance or exit, nor do they provide access to Lot 757 as they both abut and adjoin to other private land lots and the Government Land. Moreover, the Lot 757C West Entrance could be used as ingress and egress from Lot 757 to the Access Road via the Subject Way. 29.On 28 May 2020, the 1st and 2nd Plaintiffs discovered that several large concrete blocks connected with metal chains (“Concrete Blocks”) were placed on the western boundaries of Lot 757A, Lot 757B and Lot 757C, completely blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance, the Lot 757C West Entrance and/or the Additional Entrances. Notices stating “私人物存，請勿移動，如有違者，送官究治。劉克述堂示” and undersigned by the 2nd Defendant were hung on the said metal chains. CCTV cameras were installed on Lot 758 pointing directly towards Lot 757. These events on 28 May 2020 are collectively referred to as the “2nd Incident”. Upon discovery of the 2nd Incident, the 1st and 2nd Plaintiffs reported to the police. 30.The 1st and 2nd Plaintiffs had hired an excavator (“Excavator”) on a daily basis to carry out the works on Lot 757 stated in paragraph 28 above. By reason of the 2nd Incident, the Executor was trapped inside Lot 757, and the 1st and 2nd Plaintiffs had to hire a crane to lift the Excavator out in order to return the same to the hiring company. However, during the lifting process, one of the Concrete Blocks was knocked over. Shortly afterwards, the police informed the 1st and 2nd Plaintiffs that the 1st Defendant had filed a complaint that they had caused criminal damage to his Concrete Blocks, and so the police arrested one of the 1st and 2nd Plaintiffs’ employees who was responsible for removing the trapped Excavator (“Employee”). 31.In or about end of June 2020, the 1st and 2nd Plaintiffs instructed workers to move one of the Concrete Blocks to the side to free up just enough space for the Excavator to be driven away. Shortly afterwards, more concrete blocks were placed on the western boundaries of Lot 757A, Lot 757B and Lot 757C, again completely blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance, the Lot 757C West Entrance and/or the Additional Entrances. As the Employee was still under police investigation, the 1st and 2nd Plaintiffs did not attempt to regain access to Lot 757. 32.In around late 2021, the 1st and 2nd Plaintiffs discovered that the growth of the Tree had visually caused damage to the Building, and so instructed an authorised person cum building surveyor (“AP”) to give an opinion on the safety of the Building. The AP advised in a report that the structural integrity of the Building had been damaged by the growth of the Tree and that the Building was subject to imminent danger of collapse. In around early December 2021, the 1st and 2nd Plaintiffs had no choice but to move away the Concrete Blocks to gain access to Lot 757 in order to carry out emergency repair of the Building. 33.On 16 December 2021, the 1st and 2nd Plaintiffs discovered that metal panels (“Metal Panels”) were placed at the western boundary of Lot 757, completely blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance and/or the Additional Entrances (“3rd Incident”). Upon discovery of the 3rd Incident, the 1st and 2nd Plaintiffs removed part of the Metal Panels that was blocking Lot 757C West Entrance. The 1st and 2nd Plaintiffs also erected a metal gate (“Metal Gate”) at the Lot 757C West Entrance with a warning note posted on it stating that obstruction of the entrance is strictly prohibited. 34.On 31 December 2021, the 1st and 2nd Plaintiffs discovered that a large metal block (“Metal Block”) was drilled onto the Subject Way at Lot 758 near the western boundary of Lot 757B and Lot 757C, completely blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance and/or the Additional Entrances (“4th Incident”). A note posted by Lau Hak Sut Tong (劉克述堂) dated 21 December 2021 on the Metal Block alleged that Lot 758 was private land, that the boundary of Lot 758 was incorrectly defined and was now perfected, and that the occupants of Lot 757 had no right of ingress and egress over Lot 758. 35.On 14 April 2022, the 1st and 2nd Plaintiffs issued a writ of summons and an interlocutory injunction application against the 1st and 2nd Defendants (“Interlocutory Injunction Application”). By an order date 12 May 2022, the Court granted an interim interlocutory injunction by which the 1st and the 2nd Defendants were enjoined from obstructing or hindering the access of vehicles authorised by the 1st and 2nd Plaintiffs until the conclusion of the Interlocutory Injunction Application. 36.The Plaintiffs plead that the predecessors-in-title of Lot 757A, Lot 757B1 and Lot 757BRP and/or the 1st to 3rd Plaintiffs, having enjoyed the Right of Way for over 50 years, have acquired the vehicular and pedestrian right of way and easement in relation to Lot 757A, Lot 757B1 and Lot 757BRP by prescription over the Lot 757 Entrance to the Access Road via the Subject Way (the Right of Way). The use of the Right of Way has been done openly, continuously, apparently and in the absence of secrecy and without the permission by the Defendants. 37.By causing the 1st, 2nd, 3rd and 4th Incidents, the 2nd Defendant has created nuisance by obstructing or impeding the 1st and 2nd Plaintiffs from having proper access to Lot 757A, Lot 757B and/or Lot 757. 38.In the circumstances:-
III. Defendants’ Defence 39.Since 11 December 2015, the 1st Defendant became the administrator of the estate of Lau Leung Chun and the registered owner of Lot 758 in the capacity of the administrator of the estate of Lau Leung Chun. 40.Since 6 July 2018, the 3rd Defendant became the administrator of the estate of Lau Leung Sheung entitled to a portion of the property interest in Lot 758 since 20 March 1946. 41.The Defendants aver that Lot 758 originally belonged to the estate of Lau Wai Chau, Deceased (“Ancestor”) alias Lau Hak Sut Tong (劉克述堂). Lau Leung Sheung and Lau Leung Chun were the 2nd and 4th sons of the Ancestor respectively. On 18 August 1933, the Ancestor died, leaving behind large portions of land in Tung Shing Lei in his estate including Lot 758 to his 9 male descendants. 42.The Defendants do not dispute with the ownership, subdivisions and assignments of the various plots of subsections of Lot 757. However, they aver that the locus and ambit of the Plaintiffs’ claim is confined to be based on ownership of Lot 757A and Lot 757B only as set out in the Re-Amended Writ of Summons, which was confirmed by the Plaintiff’s Counsel at the 2nd Pre-Trial Review on 30 October 2025. The Plaintiffs’ claim asserted the purported use and acquisition of the Right of Way at the position of the Lot 757 Entrance situated between the boundaries of Lot 757B and Lot 758. Therefore, save from matters concerning the Right of Way or Lot 757 Entrance, the Defendants deny and object against the Plaintiffs’ claim based on (a) the alleged events or affairs located in Lot 757C or its immediate boundaries where the Plaintiffs were not the registered owners thereto, including but not limited to any alleged access rights at Lot 757C West Entrance, (b) matters or events that took place at locations other than the alleged obstruction or interference of the Lot 757 Entrance or Right of Way, and (c) the alleged incidents of blockage of Lot 757C West Entrance or the parts of the Mesh Wired Fence or Concrete Blocks in Lot 758 which were not located at Lot 757 Entrance or the Right of Way. 43.Next, the Defendants aver that the 1st Defendant was wrongly joined as a party and should be disjoined. The Defendants’ primary position is that the Plaintiffs did not plead clearly or identify with plans how the North-Western Portion and the South-Eastern Portion are defined. Without prejudice to such primary position, the Defendants aver that pursuant to the Deed of Family Arrangement entered on 20 March 1946 (“1946 DFA”), which was confirmed under Court Order dated 24 January 1998 in HCMP 3924/1995 and HCMP 3209/1996 (“1998 Court Order”) and eventually and ultimately confirmed in FACV 15/1999, the North-Western Portion of Lot 758 as marked green (“Green Portion”) was agreed to be distributed and vested in favour of Lau Leung Chun, whose estate is now represented by the 1st Defendant. It was for such reason that the 1st Defendant appears to be the registered owner of Lot 758 while in fact he was only vested with the legal and beneficial interest of the Green Portion under the 1946 DFA and the 1998 Court Order. The 1998 Court Order was registered with Memorial No YL834407 and the Plaintiff had knowledge (actual or constructive) of the same. After severance of the Green Portion from Lot 758, the remainder of Lot 758 was and still is held by Lau Kin Shun Freeman acting as the administrator de bonis non of the estate of the Ancestor and held in trust as to the road to set up a tso and as to the remainder of Lot 758 in trust for the estate of the 3rd Defendant under the 1946 DFA and pursuant to the 1998 Court Order. The Green Portion does not abut Lot 757 or any of its subdivisions, and it does not demarcate upon the position of Lot 757 Entrance or the Right of Way. The 1st Defendant, being the legal and beneficial owner of the Green Portion only, has no interest in the outcome of the present proceedings which concerns the remainder of Lot 758 that is beneficially owned by the 3rd Defendant. The 1st Defendant has no title or authority to represent the interest of the 3rd Defendant in these proceedings. 44.The Defendants aver that the Subject Way has always been under, up to and subject to consent of its owner, ie the estate of the Ancestor and the 3rd Defendant, to all lawful occupants and visitors of Tung Shing Lei at their absolute right and discretion. Without any dedication or grant of easement in favour of any particular dominant land in question, the fact that the Subject Way was openly used by the public does not alter its nature that it was still a privately owned property and/or a privately owned road. Legally, the estate of the Ancestor and/or the 3rd Defendant retain the absolute right to refuse entry to any party into all parts of Lot 758 as its landowner. 45.The Defendants further aver that they have never obstructed or disallowed anyone, including the Plaintiffs, from using the Subject Way for pedestrian or vehicular access purposes, and so no cause of action shall arise for the Subject Way as the matter is academic. Accordingly, the subject matter of dispute on Right of Way shall be confined to Lot 757 Entrance. 46.In respect of the Government Land, the Defendants plead that the owners/occupiers of Lot 757A had created an opening of the surrounding walls sometime in 2019 or 2020 at the northern boundary of the lot to enable ingress and egress over the Government Land. 47.According to the Defendants, in the 1960s, the entire Lot 757 was fully enclosed by a steel fence and the occupiers of Lot 757 used the Lot 757D Gate, which was about 1-metre wide, to gain pedestrian access to the Access Road. 48.In early 1970s, the Lot 757 Entrance, being a hinged door of about 1-metre wide (or about 2 to 2.5 metres wide according to Dr Tang’s Surveyor’s Report as defined below) made in metal with steel meshes, came into existence as an alternative access. The Lot 757 Entrance was located right outside the arched entrance of the Building on Lot 757 and was only capable of giving pedestrian access by one person into the Access Road. Given its narrow width, Lot 757 Entrance did not and could not admit vehicular access, and the occupiers of the lot mostly gained access through Lot 757D Gate. In the 1970s and 1980s, Lot 757 Entrance appeared to be closed or locked most of the time and was only rarely used. 49.From 1990s, the Building became totally abandoned and the entire land was blockaded and became overgrown by shrubs, bushes, trees and other dense vegetation. Since then, the Building was nicknamed as ‘Ghost House’ (鬼屋) by the villagers of Tung Shing Lei due to its lack of habitation, severe dilapidation and state of dereliction for many years. 50.In about late 2010s, the metal door at Lot 757 Entrance became replaced by a continuous steel fence which completely blocked the pedestrian access to the Access road through Lot 757 Entrance. In about 2020, the steel fence was removed and was replaced by a concrete wall which again completely blocked the pedestrian access to the Access Road through the Lot 757 Entrance. 51.In particular, the Defendants rely on the Surveyor’s Report prepared by Dr Tang Hong Wai (“Dr Tang”) filed on 22 July 2022 and made the following averments:-
52.Therefore, the Defendants’ case is that from 1960 to 1990 the occupier(s) of Lot 757 had use the Lot 757D Gate as their main pedestrian access and from the year 1970 to 1980 had sometimes used the Lot 757 Entrance as an alternative means for pedestrian access only. In late 2010s, parts of the wired fence surrounding Lot 757 (especially the parts as between Lot 757 and the Subject Way) became repaired or re-erected by other fellow villagers or members of the Welfare Association to prevent unauthorised entry into the abandoned Building by strangers due to crime and security concerns which might affect the village nearby, in particular during evenings. 53.The Defendants argue that even assuming that there has been pedestrian access over Lot 757 Entrance to the Subject Way as alleged to give rise to a right of way by way of prescription under the doctrine of lost modern grant, such right of way could be constituted and used as pedestrian access only. The Defendants go one step further and plead that even if the Plaintiffs or their predecessors had acquired the Right of Way over the position of Lot 757 Entrance within Lot 758 by way of easement of prescription, the same has been abandoned and become extinguished by the Plaintiffs and/or his predecessors by leaving Lot 757 in a vacant, uninhabited and deserted state and totally ceased to use the Lot 757 Entrance for pedestrian access since the 1990s. 54.The Defendants aver that the 1st and 2nd Plaintiffs engaged workers to enter into Lot 758 to remove the Mesh Wired Fence without the consent of the 3rd Defendant being the beneficial landowner of Lot 758 and/or the Welfare Association (being the body who maintained / re-constructed the fences over the years). The construction of the Concrete Wall was without the approval of the Buildings Department, and such wall has completely blocked and obstructed the position of the Lot 757 Entrance and/or the Right of Way up to present so that no pedestrian and/or vehicular access can be made through such position any further. 55.The Defendants plead that the Lot 757D Gate was long abandoned as a pedestrian access into Lot 757 since 1990s. Moreover, Lot 757C West Entrance is situated within the boundaries of Lot 758, and the Plaintiffs did not acquire any right of way to use Lot 757C West Entrance. In relation to the Concrete Blocks, the same were only placed within the position of Lot 757 Entrance where it was already fully blocked with the Concrete Wall at that time. The Concrete Blocks and Metal Panels even if placed by the 2nd Defendant (which is denied), do not pose any further obstruction to the access to and from Lot 757. The Defendants deny involvement in the erection of the Mesh Wired Fence, the Concrete Blocks or the Metal Panels. 56.In relation to the Interlocutory Injunction Application, the interlocutory injunction was only interim-interim in nature, and while it provided that every time before accessing Lot 757, the 1st and 2nd Plaintiffs should inform the solicitors for the 1st and 2nd Defendants of the licence number of the vehicles that will be using the Access Road / Subject Way. Notwithstanding the said order, the 1st and 2nd Plaintiffs have only written to the 1st and 2nd Defendants’ then solicitors once on 16 May 2022. 57.The Defendants further plead that whilst the Plaintiff’s claim for prescriptive easement is based upon their purported ownership in Lot 757A and Lot 757B only and no other portions of Lot 757, in reality entrants using the lot 757 Entrance would practically and inevitably gain access into and from other portions of Lot 757, whether or not via Lot 757A or Lot 757B. It is inequitable, impracticable, inconvenient and unduly burdensome for the court and/or the 2nd and 3rd Defendants to declare, refrain or otherwise confine ingress and egress of intended users of Lot 757 Entrance just for these two sub-lots as the purported dominant lands. The performance of any declaratory or injunctive relief would require constant ongoing supervision of the Court and would cause disproportionate hardship to the Defendants. For such reason, the relief sought shall be refused. 58.In relation to the loss and damage claimed by the Plaintiffs, the Defendants aver that the 1st and 2nd Plaintiffs had no right to remove the Mesh Wired Fence, the Concrete Blocks or the Metal Panels as they were situated within Lot 758 and were placed at positions where the 2nd and 3rd Plaintiffs enjoyed no right of way in the first place and had no right to remove such objects as abatement or otherwise. IV. Plaintiff’s Reply 59.In relation to the joinder of the 1st Defendant, the Plaintiffs plead that the 1st Defendant is entitled to the North-Western Portion of Lot 758 by virtue of the 1998 Court Order. Both the 1st and the 3rd Defendants are entitled to the South-Eastern Portion of Lot 758 under the 1946 DFA, which provided Lot 758 as marked by the existing bounds (ie the South-Eastern Portion) shall be conveyed to the second and fourth beneficiaries (ie the 3rd Defendant and the 1st Defendant respectively). 60.The Plaintiffs also rely on the observations of their Surveyor’s Report prepared by Sr Dr Ching Siu Tong (“Dr Ching”) dated 2 August 2021 for the Interlocutory Injunction Application:-
61.The Plaintiffs also plead in paragraph 11(3) that the Right of Way concerns only the Lot 757 Entrance to the Subject Way that situates on Lot 758. V. Issues 62.According to the pleadings and parties’ respective formulations, the triable issues are as follows:-
VI. Interim-Interim Injunctive Relief 63.As pleaded by the parties, on 12 May 2022, HHJ KC Chan, upon the 1st and 2nd Plaintiffs’ undertaking to indemnify the 1st and 2nd Defendants against any lawful liability they might be incurred by allowing vehicles to pass through Lot 758 for access into Lot 757A and Lot 757B and the usual undertaking as to damages, granted the following interim-interim injunctive relief in favour of the 1st and 2nd Plaintiffs:-
VII. Trial 64.The trial took place on 10 – 12, 15 – 17 December 2025 and 20 January 2026. (A) Interlocutory Applications (1) Striking-out of Defendants’ Amended Defence 65.Right at the start of the trial, on Day 1 (10 December 2025), by summons filed on 4 December 2025, the Plaintiffs took issue with paragraphs 4(e) and 26(i) of the Amended Defence. At the 2nd Pre-Trial Review hearing on 30 October 2025, DDJ Alfred Cheng granted leave to the Plaintiffs to amend their Statement of Claim by adding the 3rd Plaintiff as a party because of the sub-division of the then Lot 757B into Lot 757B1 and Lot 757BRP and the changes in ownership. Pursuant to the order of the learned judge, the Defendants were granted consequential leave to amend their Defence, but, submitted the Plaintiffs, paragraphs 4(e) and 26(i) of the Amended Defence were new matters which did not arise from the Plaintiffs’ amendment of the Statement of Claim. 66.Having heard parties’ submissions, this Court allowed the amended paragraph 26(i) but rejected the amended paragraph 4(e). 67.By the proposed paragraph 4(e), the Defendants sought to argue that “for the avoidance of doubt, the 2nd Defendant (ie ‘Lau Hak Sut Tong’) objects to the description of ‘who erected obstacles and objects on Lot 758 in Demarcation District 115 blocking access from and to [Lot 757A] and [Lot 757B]’ as used in the Indorsement of Claim”. Nonetheless, such description of the 2nd Defendant has been used ever since the issuance of the Writ of Summons on 14 April 2022, and plainly did not arise from the amendments to the Statement of Claim. 68.In relation to the proposed paragraph 26(i), the Defendants pleaded that:-
69.In my judgment, plainly, the proposed paragraph 26(i) was a response to the new paragraph 10 of the Amended Statement of Claim which sought to restrict (a) the user from which the right of way by prescription was acquired from that of the predecessors-in-title of Lot 757 generally to that of the predecessors-in-title of Lot 757A, Lot 757B1 and Lot 757BRP only, and (b) the persons entitled to enjoy the right of way from those in Lot 757 generally to those in Lot 757A, Lot 757B1 and Lot 757BRP only. The proposed paragraph 26(i) also responded to the scope of the declaratory relief of the right of way in the new prayer for relief (1) which sought to restrict the 2nd and 3rd Plaintiffs’ enjoyment of the right of way for accessing Lot 757 generally to accessing Lot 757A, Lot 757B1 and Lot 757BRP only. The Defendants therefore relied on the difficulty and inconvenience of policing the declaratory relief in order to ensure that the right of way would be used by those accessing Lot 757A, Lot 757B1 and Lot 757BRP only but not Lot 757 generally, and plead that such a relief, which would otherwise be inequitable, impracticable, inconvenient and unduly burdensome, should be refused. 70.Having considered all circumstances, since the Plaintiffs were successful in opposing only one paragraph of the Amended Defence, the appropriate costs order nisi should be no order as to costs for that one hour spent at trial, which I so order. (2) Defendants’ Late Discovery 71.Then, at the start of Day 2 (11 December 2025), the Defendants applied for leave to rely on 3 photographs taken in 2014 which were retrieved online using the Baidu search engine. The first photograph showed the junction of Tung Shing Lei Road and Castle Peak Road, and the focus was the red banner which prohibited heavy vehicles and the lower part with the blurred words ‘Tung Shing Villagers’. The second photograph depicted a banner with warning ‘private lane, consent, slow driving’, while the third photograph showed Ching Pui Yuen which was the enclosure where the Building was situated. No doubt, it was a very late application for discovery. According to the Defendants, the 3 photographs, which could only be found the night before, were relevant to the issues of the user of Tung Shing Lei Road and traffic control. The Defendants admitted that the necessity of disclosing the 3 photographs did not arise by reason of the amendments of the Statement of Claim, and further that there were other photographs found on the Baidu search engine which had been adduced at this trial but their focus had been on the vicinity of Lot 757 and Lot 758 as well as the Subject Way. 72.I dismissed the application. To start with, there was no summons or supporting affidavit explaining the lateness and relevance of the application. While I agreed that the photographs had probative value as they seemed to be relevant to the issue whether vehicular access of heavy duty vehicles had ever been permitted and hence the issue whether there was prescription of right of way for vehicular access to Lot 757, nonetheless, the 3 photographs, if admitted, would bring real prejudice to the Plaintiffs, in that not only would the Plaintiffs be unable to conduct inquiry regarding the 3 photographs and respond adequately by discovery of documents and/or filing of supplemental witness statements, but also that the Defendants would further apply for leave to top up the evidence-in-chief of Cheung Chun Yu (“Cheung”) who would testify additionally that it was him who had put up the banners with warnings. The need for topping up the evidence of Cheung in conjunction with the late discovery would be particularly prejudicial to the Plaintiffs whose case would have been closed by the time of the evidence-in-chief of Cheung. Having considered the court’s approach to late discovery summarised in Kinetics Medical Health Group Company Limited & Others v Dr Tse Ivan Cheong Yau HCA 1115/2010, unreported, 8 May 2013, per DHCJ Marlene Ng (as she then was), at paragraph 36 thereof and the aforesaid matters, I exercised my discretion against the Defendants. 73.I make a costs order nisi that the Defendants do pay the Plaintiffs’ costs in respect of the Defendants’ late discovery application, with Certificate for one Counsel, being 45 minutes of the trial, to be taxed if not agreed. (3) Plaintiffs’ Late Discovery 74.At the start of Day 3 of the trial (12 December 2025), when the cross-examination of the 1st Plaintiff was expected to continue from where it was left off at the conclusion of Day 2, the Plaintiffs applied for leave to disclose 2 documents, namely (1) the land search records of a property known as Flat B on 2/F of Block 2 Osmanthus Garden, No 80 Tan Kwai Tsuen Road, Hung Shui Kiu, Yuen Long (“Osmanthus Garden Property”), and an extract from “Names of Building, Volume 2, The New Territories, April 2015” from the Rating and Valuation Department (“Names of Buildings”). The Names of Buildings showed that Osmanthus Garden was built in 1990, while the land search records of Osmanthus Garden Property showed that the occupation permit was granted in 1990 and CYK and his wife Shek Chung Fong became joint tenants of the Osmanthus Garden Property on 28 July 1993 for the consideration of $1,500,000.00. 75.It is necessary to explain the background to the application. In his examination-in-chief, CYK testified that he had lived at the building “until late 1990” (quoting verbatim from paragraph 7 of his witness statement). Under cross-examination, CYK at first testified that he moved away in late 1990, but later he testified that he moved from the Building to Osmanthus Garden Property, and yet subsequently he testified that he had not lived at the Building anymore since his marriage but could not remember when the marriage was. Upon the suggestion of Mr Adrian But, Counsel for the Defendants, whether the marriage was in the 1990s or 1980s, CYK testified that it should be in the late 1970s, and yet subsequently upon Mr But’s suggestion of 1975 or 1976, CYK answered that it should be around 1976. In re-examination, CYK testified that he moved to the Osmanthus Garden Property in 1992 or 1993. 76.This Court took time to consider the application and eventually, right at the resumption of the trial in the afternoon on the same day, allowed the late discovery of the said 2 documents but ordered CYK to be recalled for cross-examination. In my judgment, one of the sub-issues of this case is whether the predecessors of Lot 757 had been using the Right of Way since 1960s, and the Plaintiffs bear the burden of proof. The date when CYK moved out of the Building and whether CYK moved from the Building directly to the Osmanthus Garden Property are certainly relevant to this sub-issue. I therefore rejected the Plaintiffs’ explanation for late discovery that matters concerning the date of completion of construction of Osmanthus Garden and the date of CYK’s purchase of Osmanthus Garden Property only arose out of cross-examination. That said, the land search records and the Names of Buildings showing that the Osmanthus Garden was only completed in 1990 and that CYK became a registered owner only in 1993 were objective and credible evidence which could not be ignored. These 2 documents objectively showed that CYK could not have left the Building to move to reside at the Osmanthus Garden Property in 1976, and therefore the cross-examination of CYK was proceeded on entirely wrong factual assumptions. However, the Defendants would suffer prejudice if the said 2 documents were admitted without the Defendants being offered a chance to cross-examine CYK on the same sub-issue and the said 2 documents including whether CYK had lived at other places since moving out of the Building but before residing at Osmanthus Garden Property. Having balanced all the relevant factors, this Court granted leave to the Plaintiffs to adduce the said 2 documents on condition that the Plaintiffs do recall CYK for cross-examination on matters arising from the said 2 documents. 77.Turning to costs, notwithstanding that the application (the arguments for which took 45 minutes) was allowed, it was very late with no satisfactory explanation for lateness. CYK had to be recalled for cross-examination and re-examination again in the morning of Day 4 (15 December 2025) for 30 minutes, thereby interposing with the cross-examination Hui Siu Kwong (“Hui”, DW1). Should the Plaintiffs have properly discharged their duty on discovery, the application, the cross-examination on wrong factual assumption and the recall of CYK should have been avoided. In my judgment, the proper costs order is that the Plaintiffs do pay the Defendants’ costs of and occasioned by the Plaintiffs’ late discovery application, with Certificate for one Counsel, being 75 minutes of the trial, to be taxed if not agreed. I make an order nisi accordingly. (B) Defendants’ Admissions in Open Court 78.At the start of Day 3 of this trial (ie 12 December 2025), Mr But, Counsel for the Defendants, made the following admissions in open court for the Defendants (collectively “the Open Court Admissions”):-
79.The Admissions substitute the relevant pleaded case of the Defendants in their Amended Defence. (C) Factual Witnesses 80.The Plaintiffs called two factual witnesses, namely CYK (PW1) and the 1st Plaintiff Tang Kwok Pong (PW2). 81.The Defendants called three factual witnesses, namely Hui (DW1), Cheung (DW2) and Lau Cho Wing Joseph (DW3). 82.Born in 1946, CYK had been residing at the Building with his family since early 1950s until he moved out in around 1980. He became the registered owner of Lot 757 in 1996, and eventually in 2015 he sold Lot 757 to the Plaintiffs. 83.Tang Kwok Pong, ie the 1st Plaintiff, adopted his witness statement filed on 13 March 2024. He only came into picture in 2015 when he purchased Lot 757A from CYK. 84.Hui (DW1) is one of the grandsons of the late Lau Leung Sheung of the 2nd fong of the Ancestor. Born in 1955, he lived at Tung Shing Lei Village until about 1971 or 1972 when he moved out with his family. After 1986, he returned to Tung Shing Lei Village about once a month. 85.Cheung (DW2) had been the Chairman of the Welfare Association since 2012. Born in 1977, Cheung moved out of Tung Shing Lei Village and returned to help his paternal uncle for his poultry business when he was studying Form 3 as a 15-year-old. 86.Lau Cho Wing Joseph (“Joseph”, DW3), belonging to the 4th fong of the Ancestor, was a representative of the 2nd Defendant and was also authorised to testify by the 1st Defendant. Born in 1950, Joseph moved out of Tung Shing Lei Village to theology school in 1966, moved back to Tung Shing Lei Village again in 1977 and then moved out again in 1984. Still, he returned for 10 odd times every year to visit his late mother and sweep ancestral tombs until around 1990s to 2000. He was a retired Christian priest, and due to his preaching and teaching responsibilities he had not paid much attention to matters relating to Tung Shing Lei Village until September 2021 when his younger brother Lau Kin Shun Freeman was on holiday trip and so he started to handle matters relating to the village as an agent. (D) Expert Witness 87.By Order by Consent dated 23 August 2023, Master B Mak gave the following expert directions:-
88.Pursuant to expert directions, the Plaintiffs appointed Dr Ching (PW3) and the Defendants appointed Dr Tang (DW4). Dr Ching prepared his first report on 3 November 2023 and Dr Tang prepared his on 21 July 2022. Dr Ching and Dr Tang prepared their joint report dated 16 January 2024. 89.Dr Ching became a member of the Royal Institution of Chartered Surveyors (RICS) and the Hong Kong Institute of Surveyors (HKIS) in 2002. He was elected as Fellow member of both HKIS and RICS in 2020, and also became an Authorised Land Surveyor in 2007. He had previously acted as an expert witness in respect of boundary cases and adverse possession. 90.Dr Tang became a Registered Professional Surveyor (Land Survey Division) in 1999 and a Fellow of HKIS in 2020. He had testified as an expert witness for land boundary dispute cases in Hong Kong. VIII. Assessment of Factual Evidence and Credibility 91.The principles applicable to fact-finding and assessment of credibility are well-established:-
92.Specifically, discrepancies could sometimes be expected in a witness’s recollection of events that occurred decades ago. See for example Chang Shun Tak otherwise known as Cheung Shun Tak & Another v Leung Sun Fat & Others HCA 13809/1997, unreported, 18 August 2010, per A Cheung J (as he then was), at paragraphs 71 to 73. 93.It is also trite that people lie for many reasons, and a lie does not necessarily render the entirety of the witness’ evidence to be rejected, and the actual case may remain good irrespective of the lie. 94.As apparent from my reasoning below, this Court is able to make factual findings, draw inferences and come to conclusions mostly based on undisputed or objective evidence such as aerial photographs, survey sheets and contemporaneous documents. In the premises, I do not find it necessary to make a ruling on the overall credibility and reliability of the factual witnesses, save and except that:-
IX. Issue 1 – Whether the 1st Defendant is wrongly sued 95.Lot 758 was originally owned by the Ancestor. In 1933, the Ancestor died with a will. It can be seen from the will that the Ancestor was also known as ‘Lau Hak Sut Tong’ (劉克述堂). In 1946, all the descendants of the Ancestor executed the 1946 DFA for distribution of the interest of the estate into 8 different parts for each fong plus an additional part for ancestral worship purposes (ie the ‘Nineth Part’). Insofar as the Defendants are concerned:-
96.The validity and effect of 1946 DFA became the subject matter of a series of hostile litigation among various fongs in many sets of proceedings (including HCMP 3924/1995 and HCMP 3209/1996) together with its appeals. For example, in HCMP 3924/1995, Cheung J (as he then was) ordered and declared on 7 January 1998 that the division and distribution of properties under the 1946 DFA were and are valid. The Court of Final Appeal confirmed that the 1946 DFA was valid. 97.By the 1998 Court Order, in accordance with the 1946 DFA especially the Fourth Part therein, Cheung J (as he then was) vested a portion of Lot 758 in favour of the 1st Defendant. In particular, by paragraph 1(i)(e) of the 1998 Court Order, the relevant portion of Lot 758 and all other lots identified therein (ie portions of lots Nos 633, 681, 734, 739, 740, 743, 758 and 760 in DD 115) as vested in the 1st Defendant was delineated and coloured green in the ‘Lot Identification Plan for the 4th Fong’ as annexed thereto. This Court observes from the said lot identification plan that the relevant portion of Lot 758 in the 1998 Court Order was the North-Western Portion. 98.Insofar as the 3rd Defendant is concerned, the remainder of Lot 758 was retained by the 2nd Defendant (ie the estate of the Ancestor) as trustee, pending formal vesting and registration of the same for the 3rd Defendant pursuant to the “Second Part” under the 1946 DFA. This court accepts the Defendants’ submission that the description of the ‘Second Part’ lands as distributed to the 3rd Defendant (ie Estate of Lau Leung Sheung) corresponds and exactly coincides with the various lands within the same cluster of lots with lot numbers identified in the plan, all marked in pale green colour (colour code “G”). That part of Lot 758 which was related to the Plaintiffs’ present claim for right of way by prescription is the remainder of Lot 758 that was distributed by the 1946 DFA to the 3rd Defendant. 99.In my judgment, it is clear that the 1st Defendant only owns the North-Western Portion of Lot 758 which is located at the opposite side of Tung Shing Lei Road and is unconnected with Lot 757 or the Lot 757 Entrance whatsoever. 100.As submitted by the Defendants, the 1998 Court Order and its plans was registered in Lot 758 at the Land Registry, and therefore the Plaintiffs must have had knowledge of the 1998 Court Order which was in the public domain. The relevant land search expressly qualified the 1st Defendant’s interest in Lot 758 as “RE PORTION”, and the schedule to the Letters of Administration with Will Annexed De Bonis Non referred to “portions of Lots Nos…758 … in D.D. 115” which, in my judgment, must have meant the green portion (or the North-Western Portion) delineated in the plan annexed to the 1998 Court Order. 101.I am further of the view that the joinder of the 3rd Defendant suggested that the Plaintiffs were aware of the 1946 DFA and understood its legal effect of distributing that remainder of Lot 758 to the 3rd Defendant which is related to the Plaintiffs’ claim for right of way. By the same token, the Plaintiffs must also have realised the vesting of the North-Western Portion of Lot 758 in the 1st Defendant by the 1946 DFA and subsequently as ordered by the 1998 Court Order. 102.I reject the Plaintiffs’ submission made at oral opening that they had ‘found’ Lau Leung Chun to be the ‘last surviving trustee’ (out of 3 trustees) of the estate of the Ancestor, and therefore they could join him as a result to represent the estate of the Ancestor. I accept the Defendants’ submission that first, Lau Leung Chun had already passed away and there is no basis to say that the estate of Lau Leung Chun must have taken up trusteeship of the estate of the Ancestor, and secondly that regardless of whether the chain of trusteeship can be established, the land search of Lot 758 clearly showed that the estate of the Ancestor had been represented by Lau Yu Kui since 8 June 1995 but not by Lau Leung Chun or his estate (ie the 1st Defendant). 103.I also reject the Plaintiffs’ argument that on the records the 1st Defendant is nonetheless still one of the registered owners of Lot 758, that there has been no division of Lot 758 into separate portions, and that if the Plaintiffs obtain an Order or Judgment in this action after trial, the entire Lot 758 would be affected as a whole. As set out above, the land search of Lot 758 clearly states that the 1st Defendant is the owner for portion of Lot 758 only, which in fact is the North-Western Portion. Moreover, the North-Western Portion was not just distributed to the 1st Defendant by the 1946 DFA, but such interest was also vested by the 1998 Court Order in the 1st Defendant. Whilst section 4(1) of the Conveyancing and Property Ordinance (Cap 219) provides that a legal estate in land may be created, extinguished or disposed of only by deed, section 4(2)(g) provides that the section does not apply to a vesting order or vesting declaration by a court or other competent authority. In addition, the 1998 Court Order was confirmed by the Court of Appeal and the Court of Final Appeal. Hence the argument that the vesting of the North-Western Portion in the 1st Defendant was invalid for want of deed poll dividing Lot 758 into separate portions must be rejected. 104.I accept that despite their knowledge acquired from the Defendants’ explanation through PC&C’s letters dated 2 October 2019 and 3 January 2020 and the plea at paragraph 7 of the Defence, the Plaintiffs wrongly joined the 1st Defendant and wrongly continued the action against the 1st Defendant. 105.The Plaintiffs further relied on Hui’s evidence under cross-examination, documents adduce at trial and the Open Court Admissions to justify their joinder of the 1st Defendant. In my judgment, Hui’s evidence under cross-examination that paragraph 20 of his affirmation dated 4 May 2022 for the Interlocutory Injunction Application, namely that both the 1st and 2nd Defendants insisted on strict compliance with all legal and technical requirement of the relevant authorities before any interim access could be permitted over Lot 758, does not assist the Plaintiffs, because what the 1st Defendant perceived should be done does not give rise to the necessary capacity or status to be sued, which is a matter of land title as ruled above. Moreover, Hui’s evidence under cross-examination that (a) Lau Kin Shun Freeman (劉堅信) wore two hats for the estate of Lau Leung Chun (ie the 1st Defendant) and the estate of the Ancestor (ie the 2nd Defendant) (“同一個人，兩頂帽”), and that (b) Lau Kin Shun Freeman was the person who informed Hui to demand for the Plaintiffs’ strict compliance with all legal and technical requirements of the relevant authorities, add nothing to the question of land title either. I further disagree with the Plaintiffs that Hui’s involvement in PC&C’s emails dated December 2021 and January 2022 with Dr Tang on expert instructions or the Open Court Admissions throws any light on the question of land title. 106.In my judgment, the 1st Defendant is wrongly sued. X. Issues 2 and 3 – Whether Plaintiffs Have Established Right of Way for Both Pedestrian and Vehicular Access or Pedestrian Access Only (A) Legal Principles on the Doctrine of Lost Modern Grant 107.It is common ground of the parties that the leading case on the doctrine of lost modern grant in Hong Kong is China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342, where, the Court of Final Appeal explained (at paragraph 46) that the doctrine of lost modern grant is based on a legal fiction, a presumption of “a grant made in modern times, that is to say after 1189 but before the period of enjoyment relied on, and which had since been lost”. 108.Lost modern grant is the only method by which rights of way and other easements may be acquired in Hong Kong in the absence of an actual grant, express or implied. There must be user of the right by the dominant tenement for a continuous period of at least 20 years, and such user must be as of right, without force, secrecy or the owner’s licence. See China Field Ltd (supra), at paragraphs 41, 48, 71 and 84. 109.Moreover, there is no dispute that the burden of proving acquisition of right of way by the doctrine of lost modern grant rests on the plaintiff. In contrast, the defendant, being servient owner, can rely on his title, and if the alleged user is ambiguous to give rise to two or more possible explanations, no prescriptive easements can be established. See Gale on Easements (21st Edition), at paragraphs 4-119 to 4-120. 110.The law does not require the enjoyment of an easement must be incessant, but casual, sporadic or infrequent use is insufficient. The degree of continuity must be shown to have been of such a character, nature and frequency as to indicate an assertion by the claimant of a continuous right and of a right of the measure of the right claimed. See Megarry & Wade on Law of Property, paragraph 27-058; Gale on Easements paragraph 4-169; Yik Wai Pong v Yip Pak Kin [2019] HKCFI 22, at paragraph 75(1). 111.Where an easement of way is acquired by long user, the right acquired must be measured by the extent of the user which is proved. There is no presumption that by establishing a particular right one necessarily becomes entitled to the lesser rights on the principle that the greater includes the lesser, so for example a right to drive vehicles does not necessarily include the right to drive cattle. Bearing in mind every easement is a restriction of the rights of property of the party over whose lands it is exercised, the real question is whether, on the particular facts of each case, proof has been given of a right coextensive with that amount of inconvenience sought to be imposed by the right claimed. See Megarry & Wade, paragraph 29-006; Gale on Easements, paragraph 9-03; Tai Sang Feeds Company Limited & Others v Sharply Development Limited [2021] HKCFI 163, at paragraph 25. 112.Insofar as the threshold of evidence required in establishing vehicular access is concerned, real supporting evidence specifically in relation to the user is required, and evidential lacuna of actual user would be fatal to a claim of vehicular access, and scant evidence, bare assertions and suppositions are not sufficient at all. See Fantastic State v Tien’s Organic Farm & Ors [2019] 3 HKLRD 438 (CA), at paragraphs 49 to 60. (B) Subject Matter(s) of Dispute? 113.In paragraph 9(4) of the Amended Statement of Claim, the Plaintiffs plead that “since around 1960s to 2015, the predecessors in title of Lot 757, CYK and/or his family had been using the Lot 757 Entrance to access the Access Road via the Subject Way by vehicle and/or or by foot as ingress and egress to Lot 757 (“the Right of Way”)”. It is further pleaded that “the Right of Way is illustrated on the plan annexed hereto as Annex 1 with the Lot 757 Entrance coloured yellow and the Subject Way coloured pink”. On Annex 1, the Lot 757 Entrance appears to be non-contiguous with the Access Road, and there could be suggestion that the Right of Way includes any open space extending easternly from the Access Road up to Lot 757 Entrance. However, this Court bears in mind the caution on Annex 1 that the plan shows only the approximate location of Lot 757 Entrance as a gate identified in the old survey sheet of 1972 to 2008, and the express plea in paragraph 9(3)(i) of the Amended Statement of Claim that Lot 757 Entrance was adjacent to and located alongside the Access Road at the Subject Way. In any event, there is no plea that the Right of Way includes any open space or pathway extended from the Access Road up to Lot 757 Entrance. In other words, this Court is satisfied that the Right of Way as pleaded by the Plaintiffs is the vehicular and pedestrian access for ingress and egress from Lot 757 to the Subject Way as coloured pink. 114.The Defendants submitted in paragraphs 31 to 34 of their written opening submissions that as pleaded in paragraph 8(d) of the Amended Defence, the Plaintiffs were always able to use and freely pass through the Access Road for both pedestrian and vehicular purposes, and the Defendants did not disallow them to use the same despite the same being a private road, and no cause of action shall arise for the Subject Way as the matter is academic. Instead, according to the Defendants, as a matter of fact, Lot 757 Entrance stands on a strip of land being part of Lot 758 but which does not form part of Tung Shing Lei Road. The Defendants call this intervening strip of land “a roadside verge” or simply “a verge” (“Verge”) or the “Disputed Portion”. Thus, the Defendants’ objection is narrowed down to the Plaintiff’s claim of right of way of the Verge which is next to but not part of Tung Shing Lei Road and which the Plaintiffs seek to drive vehicles into and out of Lot 757. The real scope of dispute is thus the Verge or the Disputed Portion. 115.I disagree with the Defendants. First, I disagree with the Defendants that no cause of action shall arise for the Subject Way as the matter is academic. It is one thing that the Defendants did not disallow anyone including the Plaintiffs and their predecessors to use the Access Road for both pedestrian and vehicular access over the Subject Way, but it is another thing whether the Plaintiffs can discharge their burden of proving user of the Subject Way for the ingress and egress to Lot 757 for pedestrian and vehicular access for a continuous period of 20 years. That part of the Access Road on Lot 758 is a private road, and the 2nd and 3rd Defendants as landowners are entitled to ban the use of the same by the public unless the Plaintiffs can establish the Right of Way. 116.Secondly, while there are evidence such as photographs, aerial photographs, survey sheets and viva voce evidence including that of Dr Ching proving the existence of the Verge on the ground, it is clear from the Plaintiffs’ Amended Statement of Claim that they are claiming just the Subject Way but not the Verge as the Right of Way. In other words, whether there is any right of way over the Verge established under the doctrine of lost modern grant is not an issue at trial. 117.Thirdly, there is no legal requirement that in order that there should be a right of way the dominant land which is to enjoy the right of way must be contiguous to the land over which the right of way is to be enjoyed. In Todrick v Western National Omnibus Company, Limited [1934] 1 Ch 561, the plaintiff was the owner of a house in St Ives, Cornwall, and of a private roadway to the south of the house leading from a highway to the west to garages at the eastern end, which also belonged to the plaintiff. Property which included the roadway and garages had been conveyed to his predecessor in title by one Dr Nicholls by a conveyance dated 15 October 1921 which contained a reservation to Nicholls and his successors of a perpetual right of way along the roadway with power to extend it some yards to land further east belonging to Nicholls, which was shown on a plan attached to the conveyance and coloured blue. Subsequently, Nicholls bought some land north of the blue land and by a deed dated 22 March 1926, a right to extend the roadway to this land was substituted for the right to extend it directly on to the blue land. The result of this was that when the roadway was so extended it could substantially only obtain access to the blue land over an intervening strip of the land to the north of it. The defendant company having purchased the blue land and the land to the north of it built a garage for motor omnibuses on the blue land and proceeded to extend the roadway to the intervening strip and carry it over the strip to the blue land. As the part of the blue land where the garage stood was much higher than the roadway the defendant company, in order to obtain a gradual slope, continued the roadway on the plaintiff’s land by means of a concrete ramp, which by the time it reached the five foot wall between the plaintiff’s land the intervening strip was almost the height of the wall. The plaintiff objected strongly to the making of this ramp, which made access to his garages more difficult, and brought an action claiming that the defendants had no right of way over the roadway for the reason that the right alleged to have been given pertained only to the blue land to which there was no direct access from the roadway, or alternatively that there had been excessive user of the right by reason of the building of the ramp and the user of the roadway for motor buses. At first instance, Farwell J held that there was no right of way over the roadway established because there was no physical contiguity between the way and the blue land, and in any event there had been excessive user in regard both to the building of the ramp and to the use of the roadway for motor omnibuses. 118.The Court of Appeal overturned Farwell J’s decision on the requirement of physical contiguity but affirmed that part on excessive user. Lord Hanworth MR held, at 572, that “…it is not suggested that there is any authority which lays down the proposition that in order that there should be a right of way the dominant land which is to enjoy the right of way must be contiguous to the land over which the right of way is to be enjoyed”. 119.At 573, Lord Hanworth MR stated:-
120.Lord Hanworth went on, at 574:-
121.Todrick (supra) was applied by DDJ B Mak in Wong Pui Wan v Wong Wing Kwong & Others [2018] HKDC 160:-
122.It is therefore clear from Todrick (supra) as applied in Wong Pui Wan (supra) that even if that the Access Road and Lot 757 Entrance were not contiguous with each other in that there was the Verge standing between them, the Right of Way along the Subject Way can still be established if the Plaintiffs prove that the Right of Way is beneficial to the ownership of Lot 757A, Lot 757B1 and Lot 757BRP and has been used by such landowners and their predecessors-in-title for ingress and egress to Lot 757 for a continuous period of 20 years. Moreover, Wimbledon & Putney Commons Conservators v Dixon [1875] 1 Ch D 362, as approved in Wong Pui Wan (supra), supports the proposition that the Plaintiffs need not show that a particular route or gate (for example Lot 757 Entrance) had been used for establishing the user of the Subject Way as ingress and egress to Lot 757 by pedestrian or vehicular access. The Defendants did not appear to dispute the correctness of Todrick (supra), Wong Pui Wan (supra) and Wimbledon (supra). 123.That said, the Defendants submitted that based on the Plaintiffs’ own pleaded case that Lot 757 Entrance was the only means of access to Lot 757 since around 1960s, the Plaintiffs are not entitled to choose their own access over any point along the Access Road, citing Mills v Blackwell [1999] EWCA Civ 1852 at pp 3 and Page v Convoy [2015] EWCA Civ 1061, at paragraphs 6, 36-39. 124.In Mills v Blackwell (supra), the Defendants owned a piece of land (“the green land”) that benefited from an express right of way reserved in a 1981 conveyance over a concrete access lane (“the yellow strip”) owned by the Mills. The 1981 reservation allowed a right of way “at all times and for all purposes... with or without motor and other vehicles of every respective description” to gain access to the green land. At the time of the 1981 deed, the boundary between the right of way and the green land was a dry stone wall containing a narrow wicket gate only 4 feet 6 inches wide. The 1981 deed had also explicitly declared this boundary wall to be a “party wall” to be maintained and repaired as such. In 1997, the defendants demolished a length of the wall to widen their access point from 4 feet 6 inches to over 11 feet to allow for larger vehicular access. The plaintiffs objected and commenced proceedings. The Court of Appeal did not allow the argument that the defendants were entitled to choose an access point anywhere that might reasonably select for the reason that the access point was at and through the gate 4 feet 6 inches wide, and therefore the specific point of access and egress must be ascertained from the physical circumstances prevailing at the time (see page 6 last paragraph). In other words, the Court of Appeal based its ruling on the contractual terms which were peculiar to that case. 125.Similarly, in Page v Convoy (supra), the plaintiff bought two plots of land pursuant to a land contract with right of way over a neighbouring land (clause 13.2 thereof), but also subject to an express exception and reservation (clause 13.4 thereof). That was why Sir Timothy Lloyd held, at paragraph 37 thereof, that “… Mr Sissons argued, and the judge accepted, that clause 13.2 gave Mr Page the right of access to lot 1 at any point along the roadway. That cannot stand with the construction of clause 13.4 which I consider to be correct. It could not be right that Mr Page could legitimately take down part of the existing fence which Convoy could immediately put back under the terms of that clause…” The ruling in Page v Convoy (supra) was again based on the contractual terms in the case. 126.In other words, neither Mills v Blackwell (supra) nor Page v Convoy (supra) established a general principle that the dominant landowner is not entitled to choose its own access over any point along the whole boundary strip. These cases are distinguishable from the present case. 127.Thus understood, the evidence on the character, nature and frequency of use of particular gates such as the Lot 757 Entrance is irrelevant in respect of showing the acquisition of the Right of Way under the principle of lost modern grant unless such evidence sheds light on the user of the Subject Way for ingress and egress to Lot 757 by pedestrian and vehicular access for a continuous period of 20 years. (C) Right of Way by Pedestrian Access Established? 128.According to Dr Ching, the Access Road is situated at the western side of Lot 757 but is falling within Lot 758. It traverses Lot 758 in an approximate northeastern-southwestern orientation and is the unique vehicular road connecting Castle Peak Road-Yuen Long and the village houses of Tung Shing Lei. Two-way traffic on the Access Road is not possible as the width is insufficient for two vehicles existed simultaneously in the same position. Such evidence is not disputed by Dr Tang. 129.The Plaintiffs’ case is that CYK and his family had been residing at the Building on Lot 757 which was an enclosure called Ching Pui Yuen (貞佩園, “CPY”) and since around 1960s to 2015, the predecessors-in-title of Lot 757, CYK and/or his family had been using the Lot 757 Entrance to access the Access Road via the Subject Way by vehicle and/or by foot as ingress to and egress from Lot 757 openly and without secrecy. 130.Aerial photographs show that the Building has been standing on Lot 757 since no later than 6 November 1945. 131.According to CYK, he was born in 1945 in Hong Kong, and had been residing at the Building with his family since early 1950s until 1990s. At all material time, his family consisted of his father, his mother, his sister, his brother and myself. Under cross-examination, CYK testified that his elder brother Chan Yiu Ping lived at the Building until his marriage in the 1970s. His elder and younger sisters left the Building after their marriage. His mother lived at the Building until her passing in 1997. CYK’s father moved to reside at elderly home in the 1990s, but the Building was not left vacant because his father would still return to the Building from time to time until his death in 2005. 132.In relation to CYK himself, I repeat his evidence before my order allowing the Plaintiffs’ late application for discovery of the land search records of Osmanthus Garden Property and the Names of Building in paragraph 75 above. Upon the late discovery of the said 2 documents, which showed that the construction of Osmanthus Garden was completed only in 1990 and CYK became one of the joint tenants of Osmanthus Garden Property in 1993, CYK was recalled for cross-examination and he testified that upon his marriage in 1977, he had lived at the Building for a while longer before moving out with his wife in early 1980 to a rented place the name of which he could not recall, and subsequently he moved to Lucky Mansion in Yuen Long which he bought. 133.CYK further testified in-chief that since around late 1990, he would still visit Lot 757, using the Lot 757 Entrance to enter or exit from the Access by car or on foot, occasionally to check on Lot 757 and engage workman to carry out works such as clearing overgrown vegetations. 134.According to the aerial photograph dated 16 December 1964, an open area or path appeared among vegetation in the southern side the Building which led to approximate location of the Lot 757D Gate. Further, by comparing the aerial photographs of 16 December 1964 and 8 May 1967, it is clear that an open area at the western side of the Building, ie where Lot 757 Entrance is located, could be identified in the latter. From the aerial photographs of 1969 and 1972, the open area became larger in size, and I accept that it became an entrance (ie the Lot 757 Entrance) for ingress and egress to Lot 757 from the Access Road at least insofar as pedestrian access is concerned. A gate was erected there by 1972 and has been existing at the same position since then. 135.CYK testified in-chief that since the 1960s, CYK’s family had been using the Access Road through the Subject Way and the Lot 757 Entrance to enter or exit Lot 757. CYK and his parents had always entered Lot 757 through the Lot 757 Entrance from the Access Road and exited Lot 757 through the same Lot 757 Entrance on to the Access Road. He and his family had never used the Lot 757D Gate to gain access to the Access Road or as an alternative access for ingress and egress between Lot 757 and Access Road because one had to cross certain parts of Lot 758 which were surrounded completely by fences with a locked gate. Under cross-examination, CYK testified that the gate at Lot 757 Entrance was built by his father, his elder brother and him. The gate was around 2 metres wide which was locked from outside. When there were people inside CPY the gate was not locked. The lock was kept by CYK’s father. In the 1970s, the father did not work and often stayed at home. 136.On the other hand, Hui testified under cross-examination that before moving out of Tung Shing Lei Village in around 1970 and 1971, he loved squatting outside the gate at the Lot 757 Entrance to see heavy vehicles passing by, and at that time there were fences in the form of concrete posts with barbed wires (勒線) between Lot 757 and the Access Road. While squatting in front of the gate at the Lot 757 Entrance, he had never seen anyone entering or exiting from Lot 757 Entrance. It was also Hui’s evidence in his 2nd Affirmation for the Interlocutory Injunction Application (adopted as his evidence-in-chief) that in the 1960s, he could see that the occupiers of the Ghost House (ie the Building) mainly gained pedestrian access into and from Lot 757 towards the Access Road by walking through parts of Lot 758 (as indicated by blue double-ended arrows on a survey map sheet at [B1/254]) and the Lot 757D Gate of about 1 metre wide. 137.As ruled above, the Plaintiffs need not show that a particular route or gate (for example Lot 757 Entrance) had been used for establishing the user of the Subject Way as ingress and egress for Lot 757. The said evidence of CYK and Hui suggest that CPY was occupied with occupiers using the Access Road for pedestrian access to and from Lot 757. Having considered CYK’s evidence and the aerial photographs, and the inherent probabilities and improbabilities, I accept that CYK and his family members, ie his father, mother, brother Chan Yiu Ping and 2 sisters, were residing at CPY and using the Access Road for ingress and egress to Lot 757 on foot. In particular, I am satisfied that by no later than 8 May 1967, when the Lot 757 Entrance was first depicted in aerial photographs, CYK and his family members had been using the Access Road for pedestrian access to and from Lot 757. 138.However, that is not the end of the matter. The Defendants argued that from 23 December 1964 to 28 March 1996, Chan Cheuk Yu and Chan Yiu Ping as the registered managers of Chan Chi Yu Tso pursuant to section 15 of the New Territories Ordinance (Cap 97) owned Lot 757, but CYK admitted under cross-examination that he was residing at Lot 757 under the permission of his father, and so CYK’s purported user of access was in the capacity of a licensee or mere occupant/resident having no interest in the land, and after his moving out his capacity further diminished as a mere visitor coming back on an occasional basis. The Defendants submitted that at law, a mere licensee/visitor/family member of the owner/occupant exercising possession/control over a premises (cf not the ‘owner’ himself having interest in the dominant land) cannot assert easement by way of lost modern grant, citing Kan Sui Yau & Others v Wong Tin Lung & Another [2020] HKCFI 94, per DHCJ MK Liu, at paragraphs 25 to 26, following Ko Shun v Royal Mortgage Ltd and Another [2019] HKDC 85 (at paragraphs 27 to 34) and Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building [2011] 4 HKLRD 623 (CA). 139.I reject this argument. CYK testified under cross-examination that the ‘family members’ in his evidence-in-chief that his family ‘had been using the Access Road through the Subject Way and the Lot 757 Entrance to enter or exit Lot 757’ included his father Chan Cheuk Yu and his brother Chan Yiu Ping. While CYK testified under cross-examination that his father had not quite worked but had often stayed at CPY, given (1) CPY was the residence of his father and his brother, (2) the inherent probabilities that his father and his brother would have to go out of CPY for whatever purposes from time to time even though his father might have often stayed at home, and (3) occupants of CPY had to gain access to the Access Road when ingressing into or egressing from Lot 757 no matter whether they used the Lot 757 Entrance (on CYK’s evidence) or the Lot 757D Gate (on Hui’s evidence), I accept that by no later than 8 May 1967, CYK’s father and brother had been exercising the pedestrian access for ingress and egress to Lot 757 from the Access Road in the capacity as owner of Lot 757. 140.I can observe from aerial photographs from 8 May 1967 to 10 June 1987 that there was no significant change to the Building, the Lot 757 Entrance and the gate there. The old survey sheets show that from October 1972 the latest to December 1988 at least, Lot 757 was completely fenced off which could only be accessed through the gate at the Lot 757 Entrance and the Lot 757D Gate. Meanwhile, CYK’s evidence under cross-examination that his father had been living at CPY until 1990s when he moved to the elderly home was not seriously challenged by the Defendants. On the other hand, the Defendants have clearly pleaded in paragraphs 9(a), (b), (c) and (i) of the Amended Defence that Lot 757 was occupied from 1960s to 1990s. In addition, Hui’s evidence-in-chief by way of his 2nd Affirmation and his supplemental witness statement was that there were occupiers on Lot 757 from the 1960s until the 1990s, and the Building became abandoned for good only since 1990s. On balance, having considered all the evidence as well as inherent probabilities and improbabilities, I accept CYK’s evidence that he and his family members as a whole were residing at CPY and using the Access Road as pedestrian access for ingress and egress to Lot 757 without force or secrecy or the owner’s licence since 8 May 1967 the latest for a continuous period of 20 years. More specifically, CYK, his brother and his father had been residing at CPY and using the Access Road for pedestrian access to Lot 757 until early 1980, the 1970s and the 1990s respectively when they moved out. 141.I further hold that from 8 May 1967 to 7 May 1987, CYK and his family members mainly used the Lot 757 Entrance for ingress and egress between Lot 757 and the Access Road on foot. In coming to this conclusion, I reject Hui’s evidence that in around 1970 and 1971 he was often squatting right outside the gate of the Lot 757 Entrance, while he saw occupants of CPY using the Lot 757D Gate only but not the Lot 757 Entrance, and that he had known, without being told, at that time that the fence of concrete posts and barbed wires encircling CPY and the gate at Lot 757 Entrance stood right on the land boundary of Lot 757 and Lot 758. The squatting part and the knowledge of land boundary were not stated in his affirmations or witness statements, and I find his assertion of knowing the land boundary of Lot 757 and Lot 758 when he was just 15 or 16 years old, without any objective evidence in support such as professional knowledge in land boundary surveys back then, wholly incredible. Given the increase in size of Lot 757 Entrance as shown by the 1969 and 1972 aerial photographs, given the Lot 757 Entrance generally remained to be seen from the 1967 aerial photograph to the 1987 aerial photograph, and having considered inherent probabilities and improbabilities, I accept CYK’s evidence that the Lot 757 Entrance was mainly used as pedestrian access. 142.The Defendants submitted that in a Chinese rural society like Tung Shing Lei where fellow villagers are tightly knitted with one another and exercised self-regulation over management of passageways and traffic affairs for many decades as delegated to the Welfare Association, it is highly likely that that any alleged pedestrian use by CYK or his family on the Verge into and from the CPY Gate must have been tolerated and permitted out of ‘good neighborliness’ and ‘mutual respect’ as mere pedestrian user did not cause much hazard or safety concern to others. In the overall scheme of things and in the context of a Chinese village society of this kind, it was certainly not in the minds of CYK or his family that they were exercising a permanent right over others’ lands but had simply relied upon communal convention or understanding that they were allowed to step onto the Verge for the very moment they used it. Like others, they were in fact purportedly using Tung Shing Lei Road and the Verge out of others’ implied consent and was subject to self-regulatory control. 143.Nonetheless, Mr But confirmed with this Court at oral closing submission that it was not the Defendants’ pleaded case that any access, even if established, was permitted or tolerated by the Defendants due to express or implied licence or consent arising from ‘good neighborliness’ or ‘mutual respect’. This Court therefore declines to make a ruling on the argument. 144.In my judgment, the Plaintiffs have established a right of way for pedestrian access for ingress into and egress from Lot 757 through the Access Road under the doctrine of lost modern grant by no later than 8 May 1987. I shall consider whether such right of way established has been abandoned below. 145.At this juncture, I also rule that the affirmations of 黎遠綿, 陸順成 and 陳樹全inadmissible at this trial. Those 3 affirmations were filed by the Defendants to resist the Interlocutory Injunction Applications. In short, their evidence are relevant to the issue of pedestrian and vehicular access between the Access Road and Lot 757 and the state and condition of CPY from the 1960s to the 1980s. No doubt, the Defendants intended to rely on these affirmations to support their case that there was no continuous user of pedestrian or vehicular right of way for 20 years or, alternatively, such right of way if established had been abandoned. The Plaintiffs objected to their admissibility. In my judgment, there was no explanation provided as to why these 3 deponents could not testify viva voce and subject to cross-examination at trial in relation to these live and crucial issues. I agree with the Plaintiffs that the Defendants had not filed any hearsay notice in relation to these affirmations, that there was no court order for the admission of these affirmations at trial and that the Plaintiffs had not indicated for these deponents to be tendered for cross-examination. I am satisfied that the exclusion of the 3 affirmations is not prejudicial to the interests of justice. (D) Right of Way by Vehicular Access Established? 146.In his evidence-in-chief, CYK testified that in around 1970, he obtained the driving permit and purchased his first car. Since then, he had always used the Lot 757 Entrance to gain vehicular access to the Access Road for ingress and egress. 147.However, under cross-examination, CYK testified contrary to his evidence-in-chief, in that he testified not being able to drive in or out CPY through the Lot 757 Entrance. Instead, he gained access through an opening covered by mesh wire fence to the north of the Lot 757 Entrance. Whenever he drove from Castle Peak Road and up Tung Shing Lei Road, he had to park his car somewhere along Tung Shing Lei Road and then went ahead to remove the mesh wire fence at the opening so that his car could drive through. He parked his car at the open area situated to the north-west of the Building, and then closed the mesh wire fence again. After moving out of CPY, he would sometimes drive to visit his parents until 1995, and since 1996 he would take bus. 148.Moreover, as admitted by CYK himself, driving his car into CPY by lifting the mesh wire fence at the opening was troublesome. Indeed, I find such evidence so absurd and illogical that it is hardly believable. I also notice that in the aerial photographs from 1972 to 1996, the location where the said opening is alleged to be had always been covered by dense vegetation or shrubs, and the area in the north-western direction of the Building, where CYK’s car was allegedly parked, had always been covered by dense vegetation, shrubs or trees. I do not believe that CYK could drive into CPY and park at the said area. 149.In my judgment, I reject CYK’s entire evidence about driving his car along Tung Shing Lei Road for ingress and egress to CPY from 1970 to 1996. I do not believe that CYK has ever used Tung Shing Lei Road for vehicular access to and from CPY. 150.There is no other evidence showing vehicular access for ingress and egress to Lot 757 from the Access Road for a continuous period of 20 years from 1960s to 2015, apart from CYK’s evidence-in-chief that prior to the sale of Lot 757 to the Plaintiffs, he had informed the Plaintiffs of his family’s use of the Access Road and the Lot 757 Entrance to enter and exit Lot 757 for vehicular and pedestrian access. Nonetheless, there is no particulars (such as who, when, where and how the alleged vehicular access was exercised) provided as to the use of the Access Road for vehicular access to and from Lot 757 by CYK’s family members. In the premises, I do not accept that CYK and his family members had used the Lot 757 Entrance for vehicular access. 151.Factual and expert evidence on the width of the Lot 757 Entrance and the gate thereat throughout the years cannot give rise to any inference of vehicular access, particularly in light of CYK’s evidence (which has been rejected above) that vehicular access was exercised through an opening covered by mesh wire fence to the north of the Lot 757 Entrance. 152.Even if (but without ruling) from 2015, the 1st and 2nd Plaintiffs had regularly used the Subject Way by vehicle as ingress and egress to Lot 757 openly and without asking for permissions from the owners of Lot 758 and/or from anyone else, and had also regularly instructed workers (who had used the Right of Way as ingress and egress to Lot 757 by construction vehicles and/or by foot) to carry out maintenance works to the Building and the Tree, any such access had not been continued for 20 years. 153.In any event, evidence such as (1) trucks coming and passing the Access Road every day to transport chicken and subsequently metalware since 1993, (2) trucks and private cars being allowed to pass through the Access Road freely and openly, and (3) rubbish trucks of the Food and Environmental Hygiene Department travelling to the northern part of the Access Road to collect rubbish once every day at most show free vehicular access along the Access Road by the general public, but do not establish the user of vehicular access for ingress and egress to Lot 757 from the Access Road for a continuous period of 20 years. 154.In my judgment, the Plaintiffs have failed to establish a right of way for vehicular access for ingress and egress to Lot 757 through the Access Road under the doctrine of lost modern grant. XI. Issue 4 – Any Abandonment of Pedestrian Right of Way? (A) Legal Principles 155.The legal principles in relation to abandonment of easements have been explained in Gale on Easements (22nd ed.) at paragraph 12-72:-
156.Megarry and Wade (10th ed) at paragraphs 28-009 to 28-010 states:-
157.Evidence of non-user is not enough to show abandonment of a right of way. It is one thing not to assert an intention to use a way, and another thing to assert an intention to abandon it. See TLC Trade Land Co Ltd v Samuel N & Co Ltd [2005] 2 HKLRD 756, per Reyes J, at paragraph 64. 158.In Dwyer v Westminster City Council [2014] 2 P&CR 7 129, a right of way had been permanently obstructed since at least from the end of the 1960s to 2010. The Court held that it was a straightforward case of very long non-user of the passageway as a right of way, during a period when neither the freehold owner of the dominant land, nor anyone else using any part of that land with the freeholder’s consent had any use for the Passageway as a right of way (see paragraph 25). This principle applies even if the obstruction is erected by the owner or occupier of the dominant tenement, see Cook v Mayor and Corporation of Bath [1868] LR 6 Eq 177, at 180. 159.Where the period of non-user of the right of way is coupled with a substituted or an alternative means of access, the reasonable inference to be drawn is that there had simply been no need for the disputed right of way to be used for the time being. See Wan Kin Shing v The Incorporated Owners of City Centre Building & Ors [2023] HKCFI 815, at §88; Benn v Hardinge [1993] 66 P&CR 246 (Eng CA), at 261. (B) Any Abandonment? 160.At first glance, there was evidence of prolonged non-user of the pedestrian right of way. Under cross-examination, CYK admitted that CPY was not quite maintained since 1990s. A tree protruded through the roof of the Building, whilst most part of the roof had collapsed and was non-existent, roots of the tree could be found along the walls of the Building. Cheung also testified under cross-examination that in 2019, the fences between the Building and the Access Road disappeared and so the Welfare Association enclosed the same at its own costs, and according to Joseph, the enclosure was to prevent trespassers from breaking into CPY for illegal activities. Further, according to the Condition Survey Report dated 15 July 2021, in respect of the exterior of the Building, trees and vegetation grew undesirably and uncontrollably at particular locations of the external walls and the roof the Building. The roots of the trees extended from the roof level to the ground level along the external walls. Some roots also penetrated and damaged the structure of the brick walls and the roof. Extensive cracks and delamination of bricks could be observed. Signs of structural distress of the brick wall system and the roof system could be observed. Regarding the interior of the Building, signs of structural distress were noted at certain walls, the roof supporting system and a portion of floor system at the cockloft. The timber staircase leading to the cockloft was found defective and considered not safe to use. The dilapidated state of CPY may suggest that the CPY had been abandoned for a long period of time, and so had the pedestrian right of way. 161.That said, there are abundant evidence showing that CYK or the Plaintiffs had no intention of abandoning CPY or the pedestrian right of way. 162.First, the aerial photograph dated 25 October 1997 shows a new paved area on Lot 757 adjoining to the Access Road. Aerial photographs dated 10 July 1998, 5 November 1999 and 10 August 2000 show a small structure on the new paved area on Lot 757. These ground features prove that CPY was still in use and certainly not abandoned, and any suggestion that the pedestrian right of way from the Access Road for ingress and egress to Lot 757 had been abandoned must be rejected. 163.Secondly, according to Cheung in his affirmation for the Interlocutory Injunction Application (which was adopted as his evidence-in-chief herein), CYK made 14 attempts between 2005 and 2015 to apply, review and appeal with the Town Planning Board in relation to permission to redevelop the Building on Lot 757. CYK’s plans to redevelop Lot 757 was widely known in Tung Shing Lei Village, as Cheung made objections against CYK’s applications to the Town Planning Board in the name of the Welfare Association on behalf of the villagers. CYK also engaged land surveyors to conduct surveys in 2005 and 2008. Further, upon their acquisition of Lot 757A and Lot 757B in 2015, the Plaintiffs had made plans and taken action to preserve and restore the Building. Neither the Building nor the pedestrian right of way was abandoned. 164.Thirdly, I agree with the Plaintiffs that while they erected the Concrete Wall surrounding Lot 757 in around May/June 2020, they had an alternative access, namely Lot 757C Entrance so that they could still use the Access Road, bearing in mind my ruling above that the Plaintiffs need not show that a particular route or gate (for example Lot 757 Entrance) had been used for establishing the user of the Subject Way as ingress and egress to Lot 757 on foot. 165.In my judgment, there is insufficient evidence for a factual finding that CYK or his family or the Plaintiffs has/have abandoned the pedestrian right of way established by lost modern grant. XII. Issue 5 – Whether Plaintiffs Have Established Actionable Nuisance (A) Legal Principles 166.In the case of pedestrian right of way, only substantial interference is actionable, and so long as the right of way can be substantially and practically exercised as conveniently after as before the alleged obstruction, there could be no nuisance. See King Lucky Development Limited & Another v Niceway Consultants Limited & Another [2020] HKCFI 524, at paragraph 42. 167.As stated above, the Defendants made the Open Court Admissions on Day 3. 168.In respect of the 1st Incident, the Mesh Wired Fence was erected with the consent of the 2nd Defendant surrounding the entire boundary of Lot 757, thereby preventing all access from the Access Road to Lot 757. In other words, the pedestrian right of way could not be exercised at all. The Defendants submitted that Cheung had already explained under cross-examination that he verbally told the 1st Plaintiff at the site, upon consultation of the owner, pedestrian access could be permissible by the landowners but not vehicular access, and Hui repeated the same, but it was the Plaintiffs who failed to specify the removal of that part of the Mesh Wired Fence at the location of the Lot 757 Entrance but instead wrongly demanded complete removal of the Mesh Wired Fence. In my judgment, the Defendants’ stance was that the negotiation with the Plaintiffs was premised on there being no right of way, pedestrian or vehicular, acquired and enjoyed by the Plaintiffs or their predecessors-in-title. Nonetheless, as held above, the Plaintiffs and their predecessors-in-title have been entitled to enjoy pedestrian right of way to access Lot 757 from the Access Road. It was not up to the Defendants to impose the condition of no vehicular access before opening up the part where Lot 757 Entrance was for pedestrian access. In my judgment, the 1st Incident constituted actionable nuisance by the 2nd Defendant against the Plaintiffs. 169.In respect of the 2nd Incident, the Concrete Blocks were placed with the consent of the 2nd Defendant on the western boundaries of Lot 757A, 757B and 757C, allegedly blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance, the Lot 757C West Entrance and/or the Additional Entrances. Under cross-examination, the 1st Plaintiff admitted that not all concrete blocks were linked by metal chains, like the 3rd and 4th from the bottom (excluding the very bottom one) shown in the sketch of survey results on 4 November 2010 in Dr Ching’s first report dated 2 August 2021, and pedestrians could still walk through the gap between the concrete blocks. In my judgment, inconvenient it might be, pedestrians could still walk between the gap of the concrete blocks with the metal chains from the Access Road to ingress into or egress from the various plots of Lot 757 through the Additional Entrances, and the exercise of the pedestrian right of way was not substantially or practically interfered with. I hold that the 2nd Incident did not constitute actionable nuisance. 170.In relation to the 3rd Incident, it was the 1st Plaintiff’s evidence under cross-examination that it was one ‘Lau Yu Shing’ who placed the Metal Panels at the western boundary of Lot 757, allegedly completely blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance and/or the Additional Entrances. Nonetheless, there is simply no evidence showing that the Metal Panels were so placed at the instruction, with the consent or with the acquiescence of any of the Defendants. I hold that the Plaintiffs’ claim against the 2nd Defendant in respect of the 3rd Incident must fail. 171.Finally, in respect of the 4th Incident, a large metal block was drilled with the consent of the 2nd Defendant onto the Subject Way near the western boundary of Lot 757B and Lot 757C, allegedly completely blocking all access from Lot 757 to the Access Road via the Lot 757 Entrance and/or the Additional Entrances. The short answer to this is that even putting aside Lot 757 Entrance, it is clear from the photographs at [D1/910-911] that the red metal block did not block the entire Lot 757C Entrance, as pedestrians could walk past on the two sides of the red metal block possibly without inconvenience, let alone substantial or practical interference. In my judgment, the exercise of the pedestrian right of way was not substantially or practically interfered, and I hold that the Plaintiffs’ claim against the 2nd Defendant in respect of the 4th Incident must fail. XIII. Issue 6 – Relief 172.The 2nd and 3rd Plaintiffs have succeeded in establishing a pedestrian right of way for ingress and egress to Lot 757A, Lot 757B1 and Lot 757BRP from Access Road by relying on 20 years of continuous user of the predecessors-in-title of Lot 757 (before subdivisions of the same in 2015) by prescription under the doctrine of lost modern grant. 173.The Defendants submitted that the Plaintiffs only seek declaratory relief for Lot 757A and Lot 757B as the dominant land given how their claim was tactically chosen to be framed under a confined basis so that the owners of Lot 757C, Lot 757D, Lot 757E and Lot 757RP need not be joined, exposed to liability or bound by unfavorable rulings. Therefore, the declaration to be made cannot be extended to be granted to incidentally benefit other portions of Lot 757. Otherwise, it will easily and practically be prone to abuse by those owners/occupants of other portions of Lot 757 to make use of the right of way as a springboard to gain access to their lands via Lot 757A and Lot 757B. Such approach, submitted the Defendants, clearly infringes the rule in Harris v Flower and Sons [1904] 91 LT 816 as set out in Charter National International Ltd v Kwok Tak Sun HCA 3628/2002, unreported, 28 October 2005, at paragraph 19, namely that a dominant owner having a right of way over a servient land cannot incidentally use and extend the easement in substance for the purpose of passing over to an adjoining land that he/she also owns. As a result, a declaratory relief on the said confined basis would require constant ongoing supervision of the Court and would cause disproportionate hardship to the Defendants. 174.In my judgment, the Defendants’ submission was based on the false premise that the Plaintiffs’ claim for right of way was in respect of the Verge only. As ruled above, the right of way established by the Plaintiffs at trial is the use of the Access Road (but not the Verge) for pedestrian access to ingress into and egress from Lot 757A, Lot 757B1 and Lot 757BRP. It is common ground of the parties that the Access Road could be openly used by the general public for gaining access between Tung Shing Lei and Castle Peak Road on foot. It is also not disputed that there is no gate or toll at the entrance of the Access Road at its junction with Castle Peak Road. In other words, no issue of constant ongoing supervision of the Court or disproportionate hardship to the Defendants would arise if declaratory relief for the pedestrian right of way is granted for the benefit of Lot 757A, Lot 757B1 and Lot 757BRP only. 175.Moreover, as ruled above, by no later than 8 May 1987, the pedestrian right of way from the Access Road for ingress and egress to Lot 757 has been established under the doctrine of lost modern grant. An easement once acquired or created becomes appurtenant to the land. I do not understand the Defendants to have submitted, or cited any authority, that the subdivided portions of Lot 757 cannot enjoy the pedestrian right of way. Hence, I see no reason why the 3rd Plaintiff, being the successor-in-title to Lot 757A from the 2nd Plaintiff and in turn from the 1st Plaintiff in only 2025, is not entitled to relief. 176.In any event, Charter National International Ltd (supra), which was about the owner of a dominant land with a right of way over the servient land seeking to enjoy the same right of way by his adjoining land which was not part of the dominant land, is distinguishable from the present case. 177.In the premises, I declare against the 3rd Defendant that the 2nd and 3rd Plaintiffs have acquired the right of way in the form of a pedestrian access only over the Subject Way for the benefit of Lot 757A, Lot 757B1 and Lot 757BRP. 178.Turning to injunctive relief prohibiting the blockage and obstruction of the ingress and egress of Lot 757A, Lot 757B1 and Lot 757BRP from the Access Road, I agree with the Defendants that no injunction should be granted, for the reason that all obstruction has been cleared off in 2022, that no blockage or obstruction has taken place from 2022, and so there is no risk of future nuisance in the event if a declaration is made. 179.Finally, in relation to nuisance, the 1st and 2nd Plaintiffs succeed against the 2nd Defendant in respect of the 1st Incident only. I allow the costs and expenses to remove the Mesh Wired Fence. Nevertheless, the 1st and 2nd Plaintiffs did not adduce any evidence substantiating the amount of such costs and expenses. Mr Siu informed this Court that the Plaintiffs were content to accept HK$2,000 as damages for the 4 incidents. In the circumstances, I order nominal damages of HK$100. XIV. Disposition and Costs Order 180.I make the following orders:-
181.The 2nd and 3rd Plaintiffs succeeded in establishing pedestrian right of way but not vehicular right of way against the 3rd Defendant. Moreover, the interim-interim injunction against the 1st and 2nd Defendants was in respect of vehicular access only which ought not to have been granted to the 1st and 2nd Plaintiffs. The interim-interim injunction is discharged. 182.Also, the 2nd and 3rd Plaintiffs wrongly sued the 1st Defendant. 183.In the premises, I consider it fair that the 1st and 2nd Plaintiffs should be responsible for the 1st and 2nd Defendants’ costs in defending against the interim-interim injunction, and apart from that (a) the 2nd and 3rd Plaintiffs should be responsible for the costs of the 1st Defendant, while the 3rd Defendant should be responsible for 50% of the costs of the 2nd and 3rd Plaintiffs for prosecuting the right of way cause of action. 184.Meanwhile, the 1st and 2nd Plaintiffs succeeded in establishing 1 incident of actionable nuisance but failed in respect of 3 other incidents against the 2nd Defendant. The 2nd Defendant should be responsible for 25% of the 1st and 2nd Plaintiffs’ costs. 185.Taking into account that more substantial time and costs have been spent on the right of way issue, and considering all factors in the round, I make the following costs order nisi:-
186.I thank Mr Siu and Mr But for their assistance.
Mr Stanley CK Siu and Ms Vivian Chan, instructed by KWC & Associates, for the 1st and 2nd Plaintiffs Mr Adrian But, instructed by Tsang Chan & Woo Solicitors & Notaries, for the 1st, 2nd and 3rd Defendants |
Cases cited in this judgment