Lam Pak Kau v. Yu Yuet Fat

HCA002020/1996

1996, No. A2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Coram: The Hon Mr Justice Findlay, in Court

Date of hearing: 17 May 1999

Date of handing down of judgment: 20 May 1999

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JUDGMENT

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1. This case concerns a boundary dispute. The plaintiff says that the defendant, sometime after April 1992, built a wall on his land. According to a plan annexed to the amended statement of claim, it is alleged that the encroachment is about 700 mm, with a total area of 28 square metres. However, Madam Lau Choi Kiu, the plaintiff's mother, who knows the land well, gave evidence that the encroachment was less than this. Initially, Madam Lau said the encroachment was only the width of the wall - about 100 mm - but she later amended this to say it was about 250 mm. Mr Henry Chan, the land surveyor called by the plaintiff, did not disagree with Madam Lau's approximation, although the plan I have mentioned is his.

2. Mr Chan surveyed the properties of the plaintiff (lot 970) and the defendant (lot 991) on 19 April 1994. He says that the physical position of the earth bund between the two properties was surveyed. Mr Chan says that the bund "is undoubtedly the best means of separating adjoining ownerships" so the location of the bund "was adopted to be the boundary line between lots 970 and 991.". This was before there was any dispute between the parties so Mr Chan had no reason to think that the precise position of the bund would later be a matter of considerable importance. For this reason, he did not take any photographs to show the position of the bund. After the dispute arose, he returned in February 1995, but by then he says the bund "was covered by a concrete slab and a 3-storey building.". At this time, Mr Chan took photographs. Mr Chan says that some of these photographs show other parts of the bund in question. I must say that the bund is very ill-defined.

3. Mr John Chinchen, the land surveyor called by the defendant, says that the defendant's wall "closely follows the boundary of Lot 991, and there is no encroachment upon the adjoining Lot 970." Mr Chinchen points out that Mr Chan's delineation of the boundaries of lot 970 results in expanding its area by .02 of an acre more than the registered area; an expansion of some 15%. Mr Chan's delineation also includes part of a public footpath into lot 970.

4. A land surveyor in Hong Kong has a difficult job when he is asked to do what Messrs Chan and Chinchen were asked to do. The tools available to them are not precision instruments. All that they can do is to look at the DD sheet of the land concerned. This is on a scale of 1:1980 so the location of physical objects on the ground cannot be depicted with any great accuracy. They can also look at the Land Record plan. This is on a scale of 1:1000, so, again, not an accurate representation of what exists on the ground. The surveyors must then compare what they see on the plans with what appears on the ground, attempting to reconcile the two as much as possible. It is a pretty rough and ready system. I accept what Mr Chinchen says; that it is simply not possible, using the tools available, to place a boundary with more accuracy than within about 1 metre.

5. Mr Chan says that he fixes the boundary between lots 970 and 991 by taking it as the mid-line of the bund. That, of course, involves being able to fix the positions of each side of the bund. This bund is old. As I could see from the photographs, it has been subject to the normal wear and tear from erosion and human and animal activity that one would expect with what is simply a ditch excavated from the soil. I do not accept that a land surveyor, no matter how proficient, is able to say that this or that point fixes the outer limits of the bund with any great degree of accuracy. Nor, of course, is any land surveyor able to say that the bund was placed precisely on the boundary of two pieces of land. All he can do is say that it follows approximately the line in plans, which are themselves incapable of providing great accuracy. There is no evidence that this placement was done with any anxiety to ensure that it was accurate to within one metre. History, common-sense and the experience of the courts in dealing with this kind of case tells us otherwise. When these old bunds were erected, land in Hong Kong was cheap; no-one would have been much concerned to ensure that the bunds were precisely placed. The fact that bunds were used at all as boundary markers, instead of some means of demarcation that was more precise, tells us this; by their very nature, they are imprecise instruments to mark a line.

6. In the result, I accept that one can say no more about the wall erected by the defendant than that it "closely follows the boundary of Lot 991". It is not possible to say that there has been any encroachment over that boundary. Nor is it possible to say that there is no encroachment at all. There may be some encroachment, but it is minimal, and one that should not be of concern to any reasonable person. It follows that the plaintiff's action must fail, and it is dismissed. The defendant has a counterclaim by which he asks for a declaration that the wall does not encroach. That claim cannot succeed either for the reasons I have given. Accordingly, the counterclaim is also dismissed.

7. The matter of costs has not been argued, but it seems to me that the defendant has been substantially successful. The counterclaim involved very little additional costs. Accordingly, I make a order nisi that the plaintiff pay the defendant's costs.

Representation:

Mr Matthew CS Chong, instructed by Messrs Rene Hout & Co, for the plaintiff.

Mr Stanley Siu, instructed by Messrs Laurence Pang & Co, for the defendant.

Remarks:
On appeal by the Plaintiff to the Court of Appeal: Appeal dismissed. Please refer to judgment CACV000205/1999.