Kippford Enterprises Ltd and Another v. Man Fu Wan and Others

HCA001614/2003

HCA 1614/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1614 OF 2003

Coram: Recorder J Leong, SC in Chambers

Date of Hearing: 18 August 2003

Date of Handing Down Judgment: 11 September 2003

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J U D G M E N T

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1.The 1st Plaintiff is the grantee under New Grant No.4599 by which the government granted a piece of land in the New Territories ("the Land") to the 1st Plaintiff on 22 June 2001 in exchange for certain old lots of land.

2.The Land is situated between a public road (Hung Fa Hom Road "the Public Road") and government land which includes a hill, part of which is the officially permitted site for numerous private graves of the indigenous villagers ("the Grave Sites") as recognised by the District Office. Prior to the grant, access to the Grave Sites was by means of an established track leading from the Public Road ("the Track") which had been in usage for pedestrian and vehicle access since the 19th century.

3.The 1st Plaintiff is developing private housing on the Land. The 2nd Plaintiff is undertaking the construction work on the Land on behalf of the 1st Plaintiff.

4.The Defendants are members and representatives of the indigenous villages located in the area of the Land. The 1st Defendant is the chairman of the San Tin Rural Committee.

5.The Particulars and Conditions of Exchange of the grant ("the Conditions") set out the terms and conditions of the grant. The following clauses are to be noted:-

General Conditions
Clause 4 - Indemnity by Grantee
Clause 8 - Private streets, road and lanes
Clause 9(b) - Breach of lease conditions
Clause 10 - Re-entry

Special Conditions
Clause (12) - Master Layout Plans
12(a)
12(a)(i)
12(b)
12(c)
12(d)
12(e)
Clause (45)(a) - Private streets
Clause (45)(c)(d) - Right-of-way over private streets
Clause (53)- Indemnity to the Government

6.Counsel for the Plaintiffs and Defendants have referred to Exhibit "WCK-2" to the affirmation of Wong Chok Kai Laurie affirmed on 6 May 2003 and informed me that it is agreed between the parties that:-

(a) The route marked in blue colour represents the new road constructed by the Plaintiffs in purported compliance with the terms of the General Conditions and Special Conditions aforesaid;

(b) The route marked in orange colour represents "the existing van tracks" referred to in Clause (45) of the Special Conditions aforesaid which in turn equates to the Track;

(c) The route marked in yellow colour represents another path which the 1st Plaintiff claims to have been used by visitors to the Grave Sites in addition to and/or in substitution for "the existing van tracks" aforesaid. The Defendants deny this and say that the path has been only recently created by villagers visiting the Grave Sites since the denial of access to "the existing van tracks" referred to in (f) below.

(d) The 10 areas marked in purple colour represent the Grave Sites proximate to the Land.

(e) The new road marked in blue aforesaid does not join any part of "the existing van tracks" marked in orange.

(f) Public access through the Land to "the existing van tracks" was denied by the Plaintiffs at some time shortly before April 2003.

(g) The Ching Ming Festival 2003 fell on 5 April 2003.

7.On 7 April 2003 the 1st Defendant accompanied by a party of other indigenous villagers came to the site.

(a) In his first affirmation, Mr Chim Hoi Sing, the construction site manager of the 2nd Plaintiff, exhibits what he affirms was his contemporaneous record of events at the site that day, and the same is exhibited to his affirmation as Exhibit CHS-1. His record discloses that:-

(i) The 1st Defendant, as chairman of San Tin Rural Committee, accompanied by a party of other village representatives came to the site at about 3.00 pm complaining that worshipping of their ancestors had been affected and requesting that work at the site should stop.

(ii) Various police officers, officers of the District Land Office and of the Yuen Long District Office and representatives of the 1st Plaintiff were also present.

(iii) The 1st Defendant

"requested to the District Land Office for assistance together with the representative of the Developer for solving the problem".

(iv) Arrangements were made for a meeting the following day (8 April) between the 1st Defendant and representatives of the District Land Office and the District Office. A representative of the 1st Plaintiff "was also requested to attend".

(v) The 2nd Defendant, a village representative, suggested that:

(A) there should be permanent access to the Grave Sites;

(B) the new buildings on the site were affecting the fung shui of the Grave Sites

(b) On 17 July 2003 a letter from the Lok Ma Chau Police station to the Defendants' solicitors (Exhibit WCW-2) confirmed that there were three entries in the police registers concerning a dispute over land use at the site on 7, 16 and 17 April 2003 and providing copies of those entries. It is significant that the letter reports that

"Police played the role thereat as to maintaining the public peace and order. Officers at scene had reported that there was no untoward incident spotted within the mentioned periods of time".

(c) In the attached Police Case Background Report dated 7 April 2003:

(i) At about 2.30 pm on 7 April 2003 a report had been made to the police by the San Tin Rural Committee that:

(A) The 2nd Defendant, a village representative, had discovered on the Ching Ming Festival on 5 April that access to the Grave Sites had been blocked.

(B) The Grave Sites behind the building site had been fenced off by a property development.

The report would therefore have been made about half an hour before Mr Chim says the 1st Defendant arrived at the site.

(ii) The police arrived at the site at about 3.15 pm. The 1st Defendant and some villagers were discussing with representatives of the 1st Plaintiff "the improper blockage of the access to the graves of indigenous villagers."

(iii) A meeting was arranged for the next day between the San Tin Rural Committee and representatives of the District Office, the Lands Department and the developer.

(iv) The police, who left the site at 4.40 pm reported that the "talk was peaceful and there was no untoward incident".

8.On 8 April 2003 a meeting was held at the site between the 1st Defendant and other representatives of San Tin Rural Committee and other villages, officers from the District Office, District Lands Office and the police, and representatives of the 1st Plaintiff.

(a) Mr Chim's contemporaneous record of the occasion is attached to Exhibit CHS-1 aforesaid and discloses that:

(i) All those at the meeting carried out a site inspection followed by a discussion.

(ii) "No understanding between the village representatives and the district land office could be reached".

(iii) The village representatives considered that the district land office "had no sincerity to solve the matter" and left the meeting.

(iv) The police persuaded the village representatives to re-join the meeting where they demanded:

(A) that the original path should be maintained for the villagers to worship their ancestors;

(B) that there should not be any building within a reasonable distance in front of the graves to block the fung shui;

(C) that a fire escape path for the public should be constructed.

(v) The village representatives pointed out that the unnecessary trouble caused by the construction site being too close to the Grave Sites resulted from the government's failure to consult the village representatives at the time the lot was granted.

(vi) The meeting ended "without any clear confirmation from the district land office" but their representative "suggested to give them 1 week's time to solve the problem" (i.e. by 15 April 2003).

(b) By a letter dated 6 August 2003 to the Defendants' solicitors, the District Lands Office supplied a copy of their minute of the meeting on 8 April 2003 which confirmed Mr Chim's record i.e.

(i) The villagers expressed their grievance that:

(A) The boundary wall of the site is very near to the graves, thus affecting their fung shui.

(B) The Lands Department had extinguished their previous access to the graves by the grant to the 1st Plaintiff.

(C) The village representatives had not been consulted by the government before the land was granted to the 1st Plaintiff.

(ii) The representative of the District Land Office advised the village representatives that the boundary of the lot could not be changed but that

"villagers could put forward their proposals to the developer for his consideration but Government could not force the developer to do anything that he didn't want to".

(iii) The officers from the police and the District Office than promised the village representatives that the District Lands Office would revert to the villagers "within one week".

(iv) The 1st Plaintiff's architect informed the village representatives that "as regards the extinguishment of the old access, a new road had already been constructed along the northern boundary".

(v) The villagers were not satisfied and, at the urging of the police officers present, said that:

(A) They wanted to use the old access roads instead of the new one.

(B) They wanted the boundary wall of the lot facing the graves set back by 30 metres.

9.On 11 April 2003 the San Tin Rural Committee wrote to both the District Lands Office, Yuen Long and the Town Planning Board (with copies to the Yuen Long District Office and the police):

(a) Complaining about the destruction of the original access path to the graves and the adverse effect on the fung shui by the construction.

(b) Pointing out the difficulty of access for visitors to the graves and the possible fire hazard caused by the construction.

(c) Asking for a resolution of the problem and stating that the San Tin Rural Committee was not consulted prior to the development and does not consent to or support the removal of the original access path by the developer.

10.There appears to have been no action taken by the District Office or the District Lands Office on 15 April 2003 notwithstanding the undertakings referred to in paragraph 8(a)(vi) and 8(b)(iii) above.

11.On 16 April 2003 separate incidents occurred:-

(a) From the Police Case Background Report attached to the letter from Lok Ma Chau Police Station to the Defendants' solicitors dated 17 July 2003 aforesaid:

(i) The 2nd Defendant and a group of villagers went to the site requesting the 2nd Plaintiff to postpone work at the site pending solution of the problem.

(ii) The police were summoned to monitor events and keep the police. They recorded that "No untoward incident was occurred so far".

(b) An officer of the District Lands Office contacted Mr Laurie Wong of the 1st Plaintiff and their minute of that discussion is attached to the letter dated 6 August 2003 to the Defendants' solicitors referred to above.

(i) The officer told Mr Wong that the 1st Defendant had made 4 requests to the District Office:

(A) That access to the graves be improved.

(B) That a new access road to serve the graves be provided along or outside the boundary of the site.

(C) That ceremonies be performed to improve the fung shui "(e.g. relocation of the graves)".

(D) That the boundary wall of the site be set back.

(ii) Mr Wong responded that:

(A) Clarification of (A) and (D) above was requested.

(B) It was impossible to accede to (B).

(C) The 1st Plaintiff would not pay for (C).

(D) The 1st Plaintiff would not contact the villagers direct.

12.On 17 April 2003 the village representatives initiated 2 courses of action:

(a) The 1st Defendant wrote to the Rural Planning and Development Committee of the Yuen Long District Board asking for its assistance in solving the problem over the grant and seeking its support in asking the District Office to hold consultations with the Yuen Long District Board, the San Tin Rural Committee and the Fire Services Department.

(i) The objective was expressed to be "To demand the developer to dismantle the existing fence meshes, restore the original path so that the villagers can go there to pay worship, and at the same time, to guarantee that no wall will be built to besiege the graveyard. If there is a fire, the consequence will be serious".

(ii) The matters complained of were that "Whilst the construction site situate at Hung Fa Hom Road, San Tin (DD 105 Lot 2094) is in progress, villagers ancestors' graves are besieged, destroying the original path that connects the graves on the hill, and the fungshui of the ancestors' graves is affected seriously".

(b) A party of villagers went to the site, parking their cars at the entrance, to negotiate with the Plaintiffs. The Police Case Background Report says that the villagers behaved "peacefully" but that their cars obstructed the entry of construction vehicles into the site. After a warning by the police "both parties reacted peacefully" and later "all villagers left the scene peacefully".

13.It appears not to be in dispute that between 7-17 April 2003 various of the Defendants and other villagers visited the site and held daily silent sit-in protests. On a number of occasions they drove their cars to the site and parked them at or near the site entrance. It is the Plaintiffs' case that the vehicles were parked in such a way as to block access to the site by construction vehicles of the 2nd Plaintiff. It is the Defendants' case that no obstruction was caused. The police report of 17 April 2003 discloses that a warning was issued to the villagers not to cause an obstruction by blocking access to the site but no action was apparently deemed necessary or taken.

14.On 23 April 2003 a meeting was held at the District Lands Office between the District Lands Officer (Chris Mills) and his team, the District Officer and the 1st, 2nd, 4th and 6th Defendants and other village representatives which the Plaintiffs declined to attend. A summary of the points covered at the meeting was provided by the District Lands Officer to the Defendants' solicitors.

(a) The District Lands Officers reported that:

(i) The 4 requests to the District Officer by the villagers on 16 April had been conveyed to the developer.

(ii) The developer was prepared to do some improvement work to the area including setting back the boundary fence and lowering the boundary wall but considered it impossible to reinstate the original van track.

(b) The 1st Defendant repeated his suggestion to the District Officer at the meeting on 16 April that due to the loss of the van tracks to service the Grave Sites and the impaired fung shui due to the proximity of the boundary fence either:

(i) The affected graves (thought to be probably less than 10) could be relocated - he suggested that the cost might be about $200,000 per grave given that the cost 3 years ago had been about $120,000 each; or

(ii) Ceremonies to improve the fung shui could be conducted.

(c) The 1st Defendant requested the District Officer to have a road constructed behind the development to serve the Grave Sites.

(d) The Duty Officer asked the San Tin Rural Committee to ascertain the wishes of the owners of the affected graves so that a proper assessment of their needs and requirements could be conveyed to the developer.

(e) Another village representative, Chow Hing Wah requested that the Government provide a footpath along the site boundary to be used as a fire escape if required.

(f) The District Officer agreed to work with the District Lands Officer to settle the matter with the developer.

(g) The District Lands Officer promised to take steps to ensure that the developer kept the new road open and accessible at all times.

(h) The District Officer explained that he could only act as a mediator because "it is up to the developer to decide whether (the villagers) requests could be accepted because the developer has the contractual and legal right to develop the site according to the lease".

(i) The villagers appear to have been appeased by the District Officer and the District Lands Officer since they agreed to postpone a planned petition on 25 April.

15.On 30 April 2003 a meeting was held between representatives of the District Lands Office (including Chris Mills), the District Office and the 1st Plaintiff. The Defendants and the village representatives were not invited to the meeting. No minute or record of that meeting by either the District Lands Office or the District Office has been produced. The 1st Plaintiff has produced a letter which it says was written by it to the District Lands Officer dated 30 April 2003 recording events at the meeting that day. No reply or acknowledgment from the District Lands Office is available. The letter reports that:

(a) Chris Mills reported on the meeting held on 23 April aforesaid.

(b) Chris Mills said that the villagers had asked for:

(i) an alternative means of escape from the grave-yard in case of fire;

(ii) an amount of HK$200,000.00 per grave as compensation and/or expenses for ancestor-worship ceremonies. It is estimated that there are altogether some 20 odd graves.

16.Counsel for the Defendants points out that there are substantial differences between paragraph 14(b)(c)(d)(e) and (f) and paragraph 15(b) above. As Mr Chong rightly points out, that could only have arisen from a mistake or misrepresentation by either Chris Mills or the 1st Plaintiff.

17.I turn now to the obligations of the 1st Plaintiff under the terms of the grant of the Land and to the specific preservation of specified rights of way for members of the public as provided for in the Conditions.

18.The Plaintiffs are required to obtain the prior written approval of the Director of Lands to the Master Layout Plans in respect of the Land before any development, re-development, building, landscaping or any other works can be commenced on the Land under Special Condition 12(a), (b)(d) and (e). In particular, 12(a)(i) requires the grantee within 6 months to submit to the Director for approval the position, widths and levels of the existing van tracks and roads referred to in Special Conditions No.(34), No.(45)(c) and No.(45)(d).

19.There is no independent evidence that the Master Layout Plan referred to in the 2 affirmations of Wong Chok Kai Laurie has been submitted to and approved by the Director or that the Plaintiffs have complied with the terms of Special Condition 12(a), (b), (d) or (e) or Special Condition 45(a). In particular, there is no independent evidence that the Master Layout Plan referred to in the first affirmation of Wong Chok Kai Laurie affirmed on 6 May 2003 and attached as Exhibit WCK-2 has been submitted to and approved by the Director. This is an important omission and the reason for it is unclear.

20.Special Conditions (45)(c) and (d) are fundamental to the issues in this application and provide as follows:-

(45)(c)

"The Grantee acknowledges that prior to this Agreement the existing van tracks within the lot, the Green Area and the Green Hatched Black Area, being partly Government land and partly private land, shall be at all times open to, inter alia, members of the public. The Grantee shall designate such part or parts of the Roads as the Director may approve in writing (hereinafter referred to as "the New Roads") to replace the existing van tracks within the lot, the Green Area and the Green Hatched Black Area. The Grantee shall permit the Government, its officers, its licensees, any persons authorized by the Government and members of the public (hereinafter collectively referred to as "the Users") with or without motor vehicles at all times and for all purposes without let or hindrance, freely to pass and repass, on, along, over or through the New Roads free of any charges." (emphasis provided)

(45)(d)

"The existing van tracks within the lot, the Green Area and the Green Hatched Black Area shall not be interfered with until the alternative road or other form of vehicular access (hereinafter referred to as "the said road") are provided by the Grantee at his own expense and to the satisfaction of the Director. The Grantee shall allow the Users at all times and for all purposes without let or hindrance, freely to pass or repass on foot or by vehicle along, to, from, through, over, up and down the said roads free of any charges until completion of the New Roads". (emphasis provided)

21.The obligation of the Plaintiffs was therefore to provide a New Road for both pedestrian and vehicular traffic to replace that part of the orange route in Exhibit WCK-2 which it sought to extinguish by reason of its building development i.e. to provide a new road to link access from the public road to the remainder of the orange route leading to the Grave Sites outside the Plaintiff's development.

22.Until the Plaintiffs were able to provide the New Road to all users, "the existing van tracks" and their usage was not to be interfered with and users were to have free access to the van tracks as before.

23.The intention of the grantor was clearly to monitor the New Road and approval of it by the Director was to be a prerequisite to the extinguishments of the public usage of the whole of the original van tracks.

24.The Plaintiffs constructed a road shown marked in blue on Exhibit WCK-2 in purported compliance with its obligations under Special Condition (45). It is clear from Exhibit WCK-2 that the road does not connect to, nor is it even in close proximity to, the existing van tracks on the southern part of the lot proximate to the Grave Sites.

25.The 1st Plaintiff assets that the road it has built terminates at a point close to the yellow path shown in Exhibit WCK-2 and that this is sufficient to meet its obligations under Special Condition (45). The 1st Plaintiff acknowledges that the yellow path is not the same as the existing van tracks, but says that since the yellow path is used by some villagers that this in some way equates to or may be treated as being in substitution for the existing van tracks.

26.The Plaintiffs have been unable to adduce any evidence to show that the Director has approved the road marked in blue on Exhibit WCK-2 as being in satisfaction of the 1st Plaintiff's compliance with Special Condition (45). The reason given is set on in paragraph 15 of the second affirmation of Wong Chok Kai Laurie who says:

"..... I understand that it is the practice of the Government that the Government will only grant the Letter of Compliance for the whole Site after all the construction works concerning the New Grant have been fully completed. The Government will not grant or separate Letter of Compliance for each and every clause inside the New Grant individually".

This explanation has to be seen against the background of the explanations offered to the Defendants by the District Lands Officer and the District Officer that once the grant had been made the developer was free to do what it wished with the site and that the government could act only as a mediator. It may be significant that neither of them at any time appears to have said that the Director had approved the new road as being in compliance with Special Condition (45).

27.The 1st Plaintiff maintains that the New Road pursuant to Special Condition (45) was completed in March 2003. In the first affirmation of Wong Chok Kai Laurie he says in paragraph 7 that the New Road marked blue on Exhibit WCK-2 was completed in early March 2003 and that "the other end connects to footpaths leading to the Graveyard". In his second affirmation he says in paragraphs 10 and 11 that the New Road was completed at the end of March 2003 and that after it was finished the Plaintiffs enclosed the site with a mesh fence.

28.The Plaintiffs' ex parte application came before Seagroatt J on 6 May 2003. The only evidence before the Court on that application were the affirmations of Wong Chok Kai Laurie and Chim Hoi Sing both also affirmed on 6 May 2003.

29.In Mr Wong's first affirmation he put the Plaintiffs' case on the terms of the Grant thus:

(a) The Master Layout Plan (Exhibit WCK-2) had been approved by the Government in September 2002.

(b) A portion of track within the lot would be replaced by a new road to be constructed by the 1st Plaintiff pursuant to Special Conditions (45)(c) and (d).

(c) The new road was completed in early March 2003 and is marked blue on Exhibit WCK-2.

(d) The new road connects the public road to "footpaths leading to the Graveyard".

30.It does not appear from either Mr Wong's said affirmation or counsel's Skeleton Argument put before the Court that the attention of Seagroatt J was drawn to the following salient matters:-

(a) The grant of the Land was subject to the existing right of way for pedestrians and vehicles along the track marked in orange on Exhibit WCK-2 known as "the van tracks".

(b) The said right of way was to remain and continue in full usage until the Plaintiffs provided, to the satisfaction of the Director, a new road for pedestrian and vehicular usage in substitution for "the existing van tracks" within the lot.

(c) In paragraph 7 of Mr Wong's said affirmation the New Road that was completed in March 2003 and marked blue on Exhibit WCK-2 was connected only to "footpaths leading to the Graveyard".

(d) It should have been at least questionable whether the New Road was capable of being in compliance with the terms of Special Condition (45) given that it connected only to a "footpath" when the requirement was that it should provide ongoing pedestrian and vehicle access to sites beyond the 1st Plaintiff's land.

31.In Mr Wong's said first affirmation he says that prior to 30 April 2003 the Plaintiffs believed that the objections of the Defendants were directed not to the Plaintiffs but to the Government. He further affirms that the Plaintiffs understood the Defendants' case was that the Government had failed to properly consult the village representatives resulting in the loss of their access road to traditional burial sites, adverse effects upon the fung shui of the burial sites and a fire hazard caused by inadequate escape routes from the burial sites.

32.In his said affirmation, Mr Wong says that the Plaintiffs realized for the first time on 30 April 2003 that their previous understanding was erroneous and that for the first time the Plaintiffs realised that the Defendants intended only to extract money from the Plaintiffs. That realisation was derived from information conveyed to him at a meeting that day by Chris Mills, the District Lands Officer, that the villagers were demanding from the 1st Plaintiff:

(a) An alternative means of escape from the burial area in case of fire; and

(b) An amount of HK$200,000.00 as compensation and/or expenses for ancestor-worship ceremonies and that it was estimated that there altogether over 20 affected graves.

33.It does not appear from either Mr Wong's said affirmation or counsel's Skeleton Argument put before the Court that the attention of Seagroatt J was drawn to the following salient matters:-

(a) On 16 April 2003 an officer of the District Lands Office had spoken to Mr Wong (see Exhibit WCW-4 to Mr Wong's second affirmation) and conveyed to him the requests made to the District Officer by the 1st Defendant, namely:

(i) that access to the graves be improved;

(ii) that a new access road be opened to serve the graves along or outside the SW boundary of the lot;

(iii) that ceremonies be performed to improve the fung shui of the affected graves or alternatively that the affected graves be relocated;

(iv) that the boundary wall be set back.

(b) Mr Wong responded that clarification of (i) and (iv) was sought including the extent to which the boundary wall should be set back, it would not e possible to have an additional access under (ii), and that the 1st Plaintiff would not pay for (iii).

(c) Mr Wong had told the District Lands Officer that the Plaintiffs were not prepared to meet directly with the villagers.

(d) A meeting had been held at the site on 23 April 2003 between the 1st Plaintiff's representative and officers of the District Lands Office at which the 1st Plaintiff had:

(i) agreed to improve the area between the end of the new track and the graves;

(ii) agreed to consider setting back the boundary fence by 1 metre;

(iii) agreed to lower the concrete boundary wall from 2 metres to 1.1 metres with see-through fencing above;

(iv) advised that the original track could not be reinstated.

(e) A meeting had been held at the District Lands Office later on 23 April 2003 between the District Lands Officer (Chris Mills) and his officers, the District Officer, and various village representatives including the 1st, 2nd, 4th and 6th Defendants referred to in paragraph 14 above.

(f) There were material differences between what had occurred at the meeting on 23 April and what the 1st Plaintiff asserts in paragraph 27 and Exhibit WCK-4 of Mr Wong's first affirmation. In particular:

(i) The request concerning the fire escape had been made by Chow Hing Wah at the meeting on 23 April when he had asked the Government to provide the footpath for a fire escape.

(ii) At the meeting on 23 April (see paragraph 14 above) the 1st Defendant had proposed 2 alternatives:

(A) Ceremonies be conducted to improve the fung shui for the 10 or fewer graves involved; or

(B) The 10 or fewer graves involved be relocated. He suggested that the cost of relocation might be about $200,000 per grave given that the cost 3 years ago had been about $120,000 each (including the cost of land, re-building and relocation).

(g) There was no evidence to explain the inconsistency which could only have arisen from a misunderstanding or a misrepresentation by Chris Mills or Mr Wong.

34.It appears from counsel's Skeleton Argument for the ex parte application before Seagroatt J that the Plaintiffs were alleging that they were entitled to the Order sought because the Defendants had committed Public Nuisance, Intimidation, Trespass and Conspiracy.

35.The evidence before the Court on the ex parte application was woefully inadequate and failed to address most of the important fundamental issues required to found the Plaintiffs' case.

(a) The Plaintiffs failed to disclose to the Court whether the plan exhibited as WCK-2 to the first affirmation of Mr Wong was the Master Layout Plan approved by the Director pursuant to Special Condition (12). It is noteworthy that there is a marked difference between Exhibit WCK-2 and the plan attached to the Agreement dated 22 June 2001.

(b) The Plaintiffs failed to disclose whether the road constructed and marked in blue on Exhibit WCK-2 was a road in accordance with Special Condition (45)(a).

(c) The Plaintiffs failed to disclose whether the road constructed and marked in blue on Exhibit WCK-2 was:-

(i) a New Road approved by the Director in accordance with Special Condition (45)(c);

(ii) a New Road capable of replacing "the existing van tracks" within its land;

(iii) available to all users with or without motor vehicles at all times and for all purposes.

(d) The Plaintiffs failed to disclose whether "the existing van tracks" within its land had and continued to be available for use by all users at all times and for all purposes until the alternative road or other form of vehicular access had been provided to the satisfaction of the Director in accordance with Special Condition (45)(d).

(e) The Plaintiffs failed to disclose that the road constructed and marked in blue on WCK-2 lay within the boundaries of the land granted to the 1st Plaintiff under the Agreement dated 22 June 2001 and that any user of that road would thereby have to enter and be upon the 1st Plaintiff's land.

(f) The Plaintiffs failed to disclose that the "footpaths leading to the Graveyard" referred to in paragraph 7 of Mr Wong's first affirmation are not "the existing van tracks" referred to in Special Condition (45)(c) and (d).

(g) The Plaintiffs failed to disclose that the road constructed and marked in blue on WCK-2 does not connect to "the existing van tracks" on the southern side of the land granted to the 1st Plaintiff.

(h) The Plaintiffs failed to disclose that the path marked in blue on WCK-2 is only approximately 18 inches wide and is therefore unlikely to be able to accommodate vehicles pursuant to Special Condition (45)(d).

(i) The Plaintiffs failed to disclose that various Defendants and other village representatives, assisted by the police and officers of the District Office and the District Lands Office, had been conducting ongoing discussions with the 1st Plaintiff on several occasions since 7 April 2003 without any allegations of public nuisance, intimidation, blackmail or conspiracy by the Plaintiffs.

(j) The Plaintiffs failed to disclose whether the letter from the 1st Plaintiff to the District Lands Officer dated 30 April 2003 had been sent or whether any acknowledgment or reply had been received.

(k) The Plaintiffs failed to disclose that the requests conveyed by the District Officer in terms of the letter dated 30 April was substantially different from the last request made by the Defendants on 23 April which request had already been conveyed to the 1st Plaintiff.

36.The Plaintiffs' ex parte application was founded upon 4 separate and distinct allegations of serious misconduct. The Skeleton Submission of counsel for the Plaintiffs before Seagroatt J put it thus:

(a)	Public Nuisance
	The Plaintiffs say that the Defendants blocked access to and from the site and obstructed the Plaintiffs from continuing work on the site.
	The Defendants admit that some of them carried out sit-in protests between 7-14 April but deny that this obstructed the Plaintiffs.
	The Defendants admit that some of them drove to the site for the protests but deny that their vehicles obstructed access by the Plaintiffs and their workers.
(b)	Trespass
	The Plaintiffs say that the Defendants were not entitled to enter Lot 2094 and that by entering and remaining there during the various protests and sit-ins they committed trespass. The Defendants say that they were entitled to be upon the site both to access the new road constructed by the Plaintiffs upon part of the site (the route marked in blue in Exhibit WCK-2) and to exercise their right of access to "the existing van tracks" in the absence of the provision of a New Road by the Plaintiffs in accordance with Special Condition (45).
(c)	Intimidation
	The Plaintiffs allege that the Defendants' course of contact with them has been part of a scheme to blackmail them by making an unwarranted demand for $4 million with menaces. The Defendants say that their requests were as set out in the minute of the District Lands Office of 23 April and that they never made any demand as set out in the 1st Plaintiff's letter of 30 April.
(d)	Conspiracy
	The Plaintiffs allege that the Defendants all acted in concert to commit public nuisance, trespass and intimidation.
	The Defendants maintain that mere ownership of the vehicles that were parked on the site does not amount to conspiracy and that although several of their number attended the site and some of the meetings with the District Officer and the District Lands Officer, they did so as village representatives.

37.On an ex parte application the applicant must make full and frank disclosure of all facts that are known to him or which he should have known had he made all reasonable and proper inquiries. The facts are all matters relevant to the issues in the application which should be taken into account in considering the matter. Failure to do so and/or material non-disclosure means that the ex parte order should be set aside Brink's Mat Ltd. v. Elcombe and Others 1988 1 WLR 1350.

38.The Plaintiffs made no apparent attempt to discover the full background to the issues raised by the Defendants.

(a) The District Lands Officer's note of his telephone conversation with Mr Laurie Wong of the 1st Plaintiff records that the Plaintiffs wanted no direct contact with the Defendants.

(b) The Plaintiffs took no steps to obtain the minutes of meetings held with the District Lands Officer and/or District Officer.

(c) The Plaintiffs took no steps to obtain extracts from the police report files covering the period in question, a fortiori when allegations were going to be made ex parte of the commission of a criminal offence of blackmail.

(d) The Defendants were able to obtain the records under (b) and (c) above which substantially corroborate their version of events.

39.The Plaintiffs' case on the ex parte application was essentially that the Defendants had been engaged in a course of conduct to intimidate the Plaintiffs and to extort money from them by what bordered on criminal means e.g. the complaint repeated both ex parte and inter partes of blackmail. There is no evidence at all to support this argument. Indeed the weight of evidence shows a protracted course of discussions involving not only the parties but also the government in an effort to resolve a difficult situation.

40.On the material that the Plaintiffs have themselves put before the court, the Defendants appear to have at least a prima facie case in support of the matters of which they complain. The failure of the Plaintiffs to disclose this to the court together with the non-disclosure that I have chronicled above gave the ex parte judge a distorted view of the situation. The way in which the Plaintiffs put before the ex parte judge the background and circumstances of the various conditions of the grant and the 1st Plaintiff's purported compliance with them left much to be desired and may well amount to misrepresentation. That combined with the material non-disclosure referred to is in my view fatal to the Plaintiffs' case.

41.I am satisfied that this is a proper case for discharging the Order made ex parte on 6 May 2003 and I hereby do so. That deals with the Defendants' application.

42.The Plaintiffs also apply inter partes for an order in the terms of the ex parte Order. It is not in dispute that on a number of occasions some of the Defendants and other village representatives staged sit-in protests inside the building site lasting from a few minutes up to several hours. This could in no way be said to be part of whatever right they may have to pass and re-pass through the site pending resolution of the question of compliance with the Conditions by the Plaintiffs. I am therefore prepared to grant an order in terms of paragraph 1(i) and (ii) of the Summons issued on 10 May 2003. Paragraphs 1(iii) and (iv) relate to the question of the right of members of the public including the Defendants to be upon the Land which in turn relates to the issue of the 1st Plaintiff's compliance with the terms of the grant. I am not satisfied that this issue has been sufficiently clarified at this stage and so Paragraph (iii) and (iv) of the Summons issued on 10 May are dismissed.

43.In the light of my findings of material non-disclosure and misrepresentation above, I consider that the Defendants should have their costs both of the ex parte and the inter partes applications and I make an order nisi for costs in those terms.

Representation:

Mr Daniel S H Tang, instructed by Messrs Eric Lai, Jason Cheung & Co., for the Plaintiffs

Mr K M Chong, instructed by Messrs Christine M Koo & Ip, for the Defendants