Tang Wai Tak v. Wong Hung Sun

HCA012599/1994

1994, No. A12599

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Coram: The Hon Mr Justice Findlay, in Court

Dates of hearing: 27, 28 and 29 November 1996

Date of handing down judgment: 4 December 1996

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J U D G M E N T

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1. The plaintiff is the owner of Lot 2019C in Demarcation District 124 in the New Territories. The defendant is the owner of Lot 2019A. The plaintiff says that the defendant has trespassed on Lot 2019C by erecting a structure on it. The defendant denies this.

2. The dispute is best illustrated by the plan set out below.

3. The plaintiff says that the boundaries of Lots 2019 and 2020 are marked by the points, from the north-west corner and proceeding clock-wise, J, JJ, H and F, the boundary between Lot 2019A/B and C is marked by the points A and D, and the boundary between Lots 2019C and Lot 2019RP is marked by the points B and C. The defendant, on the other hand, says that the overall boundaries of Lots 2019 and 2020 are marked by the points II, JJ, DD, EE, GG and HH. The boundary between Lots 2019A/B and C are marked with the points BB and GG, and the boundary between Lots 2019C and 2019RP are marked by the points CC and FF. The house on, at any rate mostly, Lot 2019A/B has been there for many years. I will refer to this as "the old house". The building to the east of it is new; I will refer to this as "the new house".

[There is a sketch in between these paragraphs, please see the original .Doc document.]

4. The parties have taken up their positions on the advice of their expert surveyors; Mr Helicon Ma for the plaintiff and Mr Raymond King for the defendant. There is no other relevant evidence. It is difficult for a lay judge to determine which of the experts is right, but I must do my best.

5. Both experts start from the same point - what is known as the DD Sheet. This reflects the results of the labours of the surveyors between the years 1904 and 1908. Both experts extracted the location of the relevant lots from the DD Sheet. They then sought correlate the positions of the lots from the DD Sheet with the existing land features on a relatively modern survey plans.

6. For Mr Ma, this involved enlarging the extract from the DD Sheet, which was on a scale of 1/3960, to a scale of 1/1000, and reducing the scale of a 1974 survey plan, which was on a scale of 1/1200, to the same scale of 1/1000. Mr Ma then traced the extract from the DD Sheet onto transparent paper so that he could lay it over the survey plan. He was then, he says, able to attempt to match the details of the plots of the DD Sheet with the features on the survey plan.

7. Mr King, on the other hand, used more up-to-date survey plans already on a scale of 1/1000 with which to correlate the extract from the DD Sheet, which he took, not by tracing, by with a transparency.

8. The results of these two independent exercises are much the same, although it might be said, to the layman's eye, perhaps because of the use by Mr King of a 1/1000 survey plan and a transparency, rather than a tracing, Mr King's effort reveals a slightly better match with features on the ground. Both, to my eye, look pretty hit and miss; some features match, but many others do not.

9. Mr Ma then proceeded to attempt to fix boundaries of Lots 2019 and 2020 as a whole. I need not concern myself with the northern and southern boundaries. The experts agree on these. They differ only on the eastern, western and dividing boundaries. Mr Ma fixes the eastern boundary as the new wall to the east of the new house. He says - "The boundary should include the new wall without affecting the lots 2017 and 2018". This may be true as to Lot 2017, but it may be generous as to Lot 2018. As to the western boundary, Mr Ma says - "as the land area available in the west was checked sufficient area reserved for Lot 2022, the western boundary could be computed with correct areas allotted". I say that the fixing of the boundary to the east as the new wall may be generous to Lot 2018 because the survey plans, and building licence diagrams, are consistent in showing some encroachment from Lot 2018 by a fence on Lot 2019 as compared with a match of the DD Sheet.

10. Moving on to fix the boundaries between the sub-lots, Mr Ma says this in his report -

"As the existing new house standing on the Building Licence of Lot 2019RP granted by the Government. Deposited in the Land Registry, has been built on site, the co-ordinates of its corners were surveyed and checked correct by overlaying them onto Plan No. YLBL 4213 . . . Therefore, the boundary on the eastern side between 2019C and 2019RP should be considered to adjust to match with the area and occupation of Lot 2019RP."

11. This procedure, the validity of which Mr Ma maintained in evidence, is the linchpin of his argument. Once Mr Ma is able to position the new house squarely on Lot 2019RP, without trespassing, all else falls into place, and he is able to say that part of the old house has been built on Lot 2019C. If, however, he was wrong to rely on the positioning of the new house on Plan YLBL 4213, the positioning of all else on which this relies is thrown into doubt.

12. Plan YLBL 4213 appears on a building licence for the new house dated 11 July 1994. This is marked "For Identification Purposes Only", but Mr Ma says that it is, in his view, reasonably accurate. A warning that a plan is for identification purposes only is a warning that it does not purport to be a record of the precise position of the land concerned. The plan has upon it grid-lines. He was able to map the co-ordinates of the corners of the new house on the plan, and these coincided with the actual co-ordinates of the new house on site.

13. The problem with this approach is the assumption that Plan YLBL 4213 is correct in identifying the precise location of Lot 2019RP on the ground. I accept that the plan places the house in a certain position, and the new house has been built in that position. But, even assuming that the drawer of the plan was, in spite of the fact that he says, in essence, that he was not, purporting to position the house so that it would be built entirely within the correct boundaries of Lot 2019RP, how he know that the boundaries of Lot 2019RP were where he has put them? The plan was not God Given; it was drawn by some person, without any magical gifts, who had available to him no more than the same tools available to Mr Ma and Mr King. So, as I see it, even if I ignore the warning that Plan YLBL is "For Identification Purposes Only", Mr Ma, Mr King and the drawer of the plan started from the same position, with the same tools at their disposal, and there is no legitimacy in assuming that the drawer of the plan had some special insight that enabled him to place the boundaries of Lot 2019RP precisely, whereas Mr Ma and Mr King do not have this ability. If Mr Ma is right, of course, there was no need for him, or Mr King, to refer to the DD Sheet at all. Exploiting the assumed divine inspiration given to the maker of Plan YLBL 4213 was all that was required. On this analysis, Mr Ma's argument becomes circular.

14. Mr King says that the correlation exercise clearly shows encroachment onto Lot 2019 from the east by the occupiers of Lot 2018. He says this is confirmed by the survey sheets, including the one used by Mr Ma. Indeed, this encroachment is also indicated by the 1991 Division Plan, the building licence plan for Lot 2019RP of 1991, the 1991 building licence plan for Lot 2019C, the 1994 building licence plans for Lot 2019C and 2019RP and a lot identification plan dated October 1994 drawn by Sam Mak & Associates Surveyors Ltd.. If, indeed, there was this encroachment, it is probable that the builders of the new house were misled by it because the wall to the east of the new house was built along the line of the encroachment, and this had the effect of "pushing" the rest of apparent area of Lot 2019 to the west. Mr Ma says that, on his analysis, the "land area available in the west was checked sufficient area reserved for Lot 2022" by which I take him to mean that, with his positioning of the boundaries of Lot 2019, Lot 2020 to the west "fitted in". But this is so, as Mr Ma concedes, only if one takes it that Lot 2020 has been encroached on its western boundary, and I do not find sufficient evidence to justify this assumption. Mr King also says that his approach is consistent with an irregular subdivision of the lot that was, he says, and I agree, probably intended to fit around existing structures that are still there.

15. My conclusion is that I am inclined to prefer the analysis used by Mr King is reaching his view that the old house is built entirely on Lot 2019A/B and it is the new house that encroaches onto Lot 2019C over that of Mr Ma, which, as I have sought to explain, is, I believe, based on a false premiss. For the defendant's purposes, it is not necessary to go this far. Even ignoring Mr King's evidence, I am not satisfied that the plaintiff has proved its case that the defendant has trespassed on his land.

16. I have, naturally, considerable sympathy for the plaintiff who, apparently through no fault of his own, finds himself squeezed between two structures so that he has insufficient room to build his own house. But that sympathy cannot be allowed to prejudice the defendant when it cannot be said, as a matter of probability, that he has trespassed on the plaintiff's land.

17. Nothing I have said in this judgment should be taken as any criticism of the expert surveyors involved. I have no doubt that they have both done their best sincerely to come to a conclusion using the only tools, primitive and inadequate as they may be, available to them.

18. In the result, the plaintiff's claim is dismissed. There seems to be no reason why costs should not follow the event. I make an order nisi that the plaintiff pay the defendant's costs.

Representation:

Mr TM Lee, instructed by Messrs Leung Kin & Co, for the plaintiff.

Mr Patrick Lim, instructed by Messrs Ho & Chan, for the defendant.