Winsome Investment Co Ltd v. Attorney General
Read the full judgment text of HCMP 714/1980 on BabelCite. This High Court CFI judgment was delivered on 23 June 1982.
1. In this matter, Her late Majesty Queen Victoria made a grant of land in Shaukiwan, which is evidenced by an indenture signed on Her behalf by Sir Hercules Robinson and his officers. Of that Grant of land at Shaukiwan the habendum reads thus:
Cited by 1 case
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HCMP000714/1980 Highway: Presumption of continuance. Street: Presumption against cesser of existence. Street: Lawful redevelopment blocking part of, whether equivalent to stopping-up order. Street: Stopping up, presumption against lawful stopping up in absence of evidence.
BETWEEN:-
__________________ Coram: The Honourable Mr. Justice Jackson-Lipkin in Court. Date: 23 June 1982 ___________ JUDGMENT ___________ 1. In this matter, Her late Majesty Queen Victoria made a grant of land in Shaukiwan, which is evidenced by an indenture signed on Her behalf by Sir Hercules Robinson and his officers. Of that Grant of land at Shaukiwan the habendum reads thus:
2. No writ of ad quod damnum has been put before me, nor any evidence of the existence of such a writ. As Hong Kong appears not to have had any ordinance Prior to August, 1910, giving statutory power to stop up streets, the only power that the Government would have had to stop up either of the public streets referred to in that indenture would have been by way of a writ ad quod damnum addressed to the Sheriff of Hong Kong. In those happier days, Hong Kong had a Sheriff. 3. After 1910, the provisions of section 2 of the Highways Ordinance gave statutory power to narrow, stop up, divert or turn any street on Crown Land any portion of such street either entirely or reserving a bridle way or footway along the whole or any part or parts thereof, but in order to do that, a Notification would have to be published in three successive numbers of the Gazette. It is conceded by the Crown that no such Notification appears in the Gazette between 1910 and 1923. 4. On the 5th October, 1923, there was passed the Street (Alterations) Ordinance, section 12 of which repealed the 1910 ordinance. Section 3 of that Ordinance provided for the Governor in Council to be able to close, narrow, divert or alter the level of any street or any portion thereof either permanently for any indefinite period; but, once again, a Notice, in the form in a schedule to that Ordinance, would have to be published in three successive issues in the Gazette. It is conceded by the Crown that no such Notice appeared between 1923 and 1957, which is the date that I have to consider; and it is conceded, although it is not necessary for the purposes of this decision to refer to it, that there was no such Notice from 1957 to 31st July, 1980, when the Originating Summons was issued in this Mattes. 5. In 1957, two adjoining pieces of land - and I say pieces of land advisedly, because the Lots had been subdivided in the years between 1861 and 1957 - were surrendered by the then owners, and re-granted in a manner which I shall describe later in more detail; but for the historical purpose, I should add that they were re-granted with the effect and for the purpose of extending forward in a seawards direction, and obliging the owners to "form" parts which would not be part of a building, but which were planned to he part of a proposed street; namely, Nam On Street. 6. On 31st of July, 1980, the plaintiffs issued an an Originating Summons claiming four declarations and further and other relief. That Originating Summons was amended by Order of Master Wilson made on 15th October and was re-issued on 23rd October,1981. The Matter came before me on 2nd and 3rd December, 1981. and on 2nd December, I granted leave to the plaintiffs to re-amend paragraph (bb) of the Originating Summons, which paragraph bad been added to thy Originating Summons under the Order of Master Wilson. 7. When the Matter was last before me, at the request, of both parties, and accompanied by counsel for both parties, I visited not merely the locus in quo, but also the surrounding area. This Matter was then adjourned to await the decision of the Court of Appeal in Mightystream Ltd. v. The Attorney-General(1). That appeal was decided against the Crown on 21st January, 1982, and the Matter was restored before me yesterday, 21st June. 8. I have been asked not to make any declaration under paragraphs (a), (b), (c) or (d), but to deal with this Matter only on the re-amended Originating Summons under paragraph (bb). And, in so far as may be necessary, under (e). That is the background and history of this Matter. 9. Paragraph (bb) reads as follows:-
10. Regulation 19 reads as follows:-
11. That leads me to the definition of "street". Fortunately, at this stage, I do not have to go into that deeply because of the decision of the Court of Appeal in the Mightystream case (1). And, although I know, I have been told, that that is going to the Lords of the Council on appeal, I am bound by it for the purposes of this hearing. 12. In the Regulation, "street" is defined thus:-
13. The definition in the Ordinance, to which those six words were added by the Regulation definition, is as follows:-
It is to be noted that that is not a definition in the ordinary sense that it excludes anything else. It merely says that that is what the word "street" includes; A. street, therefore, can be something additional to that. 14. Mr. Swaine puts his case thus, "There is an indenture from the Crown to a Subject, which recites that, on the north and east of the locus in quo, there is a public street", and, says Mr. Swaine, "You cannot go behind that, nor can the Crown he heard to go behind that. It recites a grant and recites that that was a public street. There is no evidence to the contrary, and therefore, You", he says, "must take as a starting point the existence of a public street to the north and east of the locus in quo". And further, says Mr. Swaine, "There is no evidence whatever to show that there was any lawful closure of that street, either by way of writ ad quod damnum or by natural causes or by the exercise of statutory powers. There arises, therefore, a presumption continuity, unless the Crown can adduce some evidence to the contrary". 15. "Not so", says Mr. Strawbridge, and he puts his case in a number of ways. First of all, he says that the area must have been constructed as a street, and the onus is on the plaintiffs to prove that the street was actually formed; and there is no evidence of that public street ever coming into existence. Secondly, he says, If it did come into existence, the 1957 construction, to which I have referred and which in the exhibits are shewn as 131 and 133, brought the nature of that public street to an end. Further says Mr. Strawbridge, "There is no evidence whatever of the measurements of that public street, if it did exist". 16. So he has in fact three answers. He adds that, from an evidential point of view, there is an inference to be drawn from the Plans attached to the 1957 regrants, that there could not have been a street on the seaward side of these properties, because otherwise it would not have been necessary "or the Crown to provide that access be constructed by the new frontagers in 131 and 133, which is shown on all the plans as a spur leading off Sun Shing Street to No. 42, on the exhibit incorrectly marked "KL1", which ought to be "KL2". It is from the white area of Sun Shing Street to the yellow area of 42. And, in the uncoloured plan incorrectly marked "KL2", it run, from the "St.", in "street" in " Sun Shing Street" to the left up to 47 And, in addition, he relies on the maxim omnia praesumuntur rite et solemniter esse acts. He applies that to what happened in 1957. 17. Mr. Swaine replies, "Not so. There is a grant of Crown land and there is a description of a public street. A private contractual arrangement between the "owners" of section 2 and of the Remaining Portion of Shaukiwan Inland Lot 135 for them to surrender and to be granted new Lots 625 and 628 respectively cannot alter the position. 18. That says Mr. Swaine, is a private arrangement, a contractual arrangement between the owners, the Director of Public Works and possibly, the Superintendent of Crown Lands and Survey. And he says, that cannot override the presumption of continuity that relates to all highways. "Once a highway, always a highway", says Mr. Swaine, and, in fact, he says it in the context of every single textbook and authority on the subject. It is set out in very clear terms in paragraph 143 on page 100 of volume 21 of the 4th edition of Halsbury's Laws of England. 19. What I saw when I visited the site cannot take the place of evidence, but I was invited by both Parties to go, as Mr. Swaine says, "to get the feel of the place", and to see more clearly that which was shewn on the plans. It is to be observed that, when the Crown conceived the idea or a new street, Nam On Street, they swung the layout of the new buildings, 131 and 133, slightly towards the south east; and, as a result, there is a strange wedge-like area lying between 133 and 42. I have seen it, and the Crown very properly concedes that that should not be considered to be an access way of any kind; but I was able to walk from the suit premises by passing in front of 131 and 133 down past Man Hong Apartment, past Metro Mansion, past No. 20, past the protruding buildings 82 to 91, past the latrine, and onwards to where the new road appears in its finished form from 77 to 61, Nam On Street. 20. When I inspected the area, the measurements of which in front of 42 and 44, 1 will mention in a moment, I found that the whole of it was paved, albeit with modern materials now; but it was undoubtedly paved. 21. In the affirmation of Mr. Kailun LEE, which was affirmed in this matter on 21st of October - I do not know whether that date was chosen deliberately, Mr. LEE said this, and this has not been challenged or traversed by the crown, "I have also conducted a visit to Nam On Street or West Praya Street, and have noticed that these two names are in fact still being used quite interchangeably. Having spoken to a few of the frontagers, I gather that old buildings have retained the use of West Prays Street". Counsel and I observed, in red paint, on some of the door posts, the use of the words "West Prava Street", and also on some of the old woolen letter boxes that were affixed to those premises, and it does appear that "West Praya Street" was the old name for whatever ran along that area in the past. 22. I now return to the questions of measurement, which I have mentioned before. It is accepted by the Crown that the measurements I was asked to put on the larger plan, which is marked as "KL2", are indeed the present measurements. From the southern end of A2 to the fence separating the area in question from the reclamation is 40.234 feet. From the southern end of 44 to the fence is 88.162. And on the left hand side from a line continued from 42, 43, and 44 up to the fence is 20.12 feet. Those, tin revoluntionary measures, are respectively 12.192 metres, 8.534 metres and 6.096 metres. 23. Mr. Strawbridge says to me, "Even if there was a street on that site, there is no evidence as to its then measurements". Mr. Swaine says, "You have the present measurements, there is nothing to shew that those were not the original measurements". He says to me, "Look at it now, and, unless you have evidence to the contrary, you must assume or presume that it was the same in the past". He says that because he says the presumptions that I have mentioned go both ways, and be says it as a matter of evidence. 24. It was open to the crown, of course, to adduce evidence that the fence was never the seaward line of whatever was laid in front of 42, 43, 44, and possibly to adduce evidence of what did lie in front of them; but no such evidence has been adduced before me. 25. I must approach this matter in two ways, notwithstanding the wording of paragraph (bb), because, first of all, I must consider, "Was it a street? Was the area in front of 42,43, 44 a street in the ordinary sense of the word, or was it a street in the particular sense of the word within the definitions in the Buildings Ordinance and the Building (Planning) Regulations?" I will deal with it first of all as a street in the ordinary accepted sense of the word and not in the statutory sense of the word. 26. In the ordinary sense of the word, I hold that it is a street for these reasons. The crown cannot be heard to say in these proceedings that there was no street on the north and east of the site granted by Queen Victoria on the 8th of Feburary, 1861, and, in the absence of any evidence of a lawful stopping up or closure, I must accept that it continues to be a street. It was undoubtedly a highway or lane of some kind originally, and the fact that it is not thoroughfare is irrelevant, and, for that proposition, I merely refer back to the definition in the Buildings Ordinance. 27. By so holding, I am not holding that the Director of Public Works, as he then was, did anything unlawful in the 1957 grant; but he did not, by what he did, lawfully "stop up" the street for the purposes of this Matter. If he did attempt to stop up the street, I accept the submission of Mr. Swaine that that would be a derogation from grant; but I do not feel that it is incumbent upon me to decide that interesting, but, in the circumstances, esoteric, proposition. 28. In the absence of any evidence to the contrary, that is a street exceeding 4.5 metres in width, because I apprehend that "width" would cover "depth" although, in the course of these proceedings, we have constantly looked at this piece of land running from east to west as if that were depth; but for the purposes of Regulation 19, that would be "width". 29. If I am wrong in holding that it is a street, then I have to consider what else it could be. It certainly is not in the English sense a square, or a court, or an alley; but in my judgment, it can be considered a lane or a passage or a footpath. The whole of the party that accompanied me was able to gain access to it by passing in front of 131 and 133. Indeed, unless we trespassed on Crown Land and claimed over chain-link fences and hoarding, Mr. Strawbridge, Mr. Swaine and I would not otherwise have been able to gain access to the front of 42,43 and 44. It is quite clear that people can go to and from 42,43 and 44 by means or the passage that I have mentioned, (and "passage" I use in the ordinary sense and not in the statutory sense); and that the inhabitants of 42, 43 and 44 can go from and to the premises by passing in front of 131 and 133. 30. The measurements being what I have held them to be, this then falls within the definition in the ordinance and according1y, the site abuts on a street - and does not abut on a street which is less than 4.5 metres in width. 31. I have, in the course of this matter, been taken through a number of authorities. I have considered them carefully, there is no need for me to deal with them in extenso in this judgment, but I will annex to the judgment a list of the authorities and textbooks to which I have looked. But I think it is right that I should refer to Stockwell v. Southgate Corporation(2) and say that I find the passages on pages 1352 and 1353 of assistance to me in reaching the conclusion that I cannot hold that there must be a presumption that a stopping up order or a writ ad quod damnum (to which a return by the sheriff of ad quod nullus was made existed, and, therefore, justified the Crown's submission that the West Praya had ceased to exist before the Originating Summons was issued. I will therefore make the declaration as prayed in paragraph (bb) of the re-amended Originating Summons. 32. Before I deal with the question of costs, I should just mention for the purposes of the Record, that there was put before me yesterday afternoon a Gazette Notice No. 1847 in The Gazette dated the 11th June, 1982 which shews that these Lots will be resumed on 11th July; and I am told that is for the purpose of the Mass Transit Railway construction.
(1) Civil Appeal 122 of 1981 (2) [1936] 2 All E.R. 1343 Representation: Solicitors: W. I. Cheung Co. for the Plaintiff. The Crown Solicitor for the Defendant. |
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