Graceful Mark Ltd v. Lam Sau Wah t/a Regent Aquarium

DCCJ 3222/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3222 OF 2005

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BETWEEN

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Coram:  H.H. Judge Chow in Chamber

Hearing date:  25^th July and 2^nd December 2005

Date of handing down Decision:  20^th February 2006

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Decision

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1.This is an application by the Plaintiff to seek an order from this court to recover possession of the strip of land approximately 3 feet in depth (“the Strip”) along the south-eastern boundary of the forecourt (“Forecourt”) of the building known as Nos. 23-25 Sai Kung Street (“Building”) situate at the land registered in the Land Registry as The Remaining Portion of Lot No. 500 in Demarcation District No. 215 (the “Land”), that the Defendant be restrained from entering or occupying the Strip, that the Defendant do remove the shelves, aquarium and other goods, chattels or debris along the Strip from the Land, that the Defendant do remove the temporary screen along the Strip from the Land, and that the Defendant do remove the canopy together with all other temporary or illegal structures erected on the wall of the ground floor of the Building fronting Sai Kung Yee Kuk Street protruding into the air space of the said street from the Building and make good any damage caused thereby until after the trial of this action or until further order.

2.In 1994 the Plaintiff acquired the ownership of the Building.  There is a forecourt in front of the Building, which is for access to and enjoyment of the Building.  The Defendant has been a monthly tenant of the 1^st floor of No. 23 of the Building.  It is the Plaintiff’s allegation that in or about February, 2005, the Defendant wrongfully and took possession of the Strip along the south-eastern boundary of the Forecourt of the Building, and has since then remained in possession thereof.  The Defendant also put up shelves for displaying goods for sale.  She has also put up shelves and an aquarium on the Strip for exhibiting goods and tropical fish for sale, thereby causing or permitting excessive noise to come from the Strip and affecting the environmental hygiene of the area.  Such activities have also obstructed and interfered with the access to the Building.

3.The Defendant alleged that in or about 1972 she set up a hawker stall on the Strip.  In her affirmation she produced a copy of Hawker Survey and Registration Form dated 16^th September 1982, stating that the commodity she sold was “toy/cloth”, and the description of the “Location of trade” is “as 4’ s G/F”.  The address provided on the form was “西貢醫局街23號2樓”.  She alleged that she has been running the stall on the Strip since about 1972, save for a short period of time in which she closed the stall but continued to occupy the Strip for storage purpose.  She was advised that a land owner will lose his rights in a piece of land if he does not take action to evict the squatter within 20 years after the latter’s occupation.

4.In her affirmation dated 19^th August, 2005, Madam Tsang Mak Fung King (a director of the Plaintiff) produced a copy of 2 photographs (“TMFK-6”) to show the condition of the stairway for access to the first floor of No. 23 of the Building.  She said that the said photographs clearly show that the Forecourt of the Building was not in any way blocked or occupied.  This is incorrect.  The 2 photographs only show unclear pictures.  There is no evidence to show when these 2 photographs were taken and by whom.  Furthermore, there is nothing on the photographs to indicate that they are connected with No. 23 of the Building.  The evidence of Madam Tsang has to be accepted in order for this piece of fact to be established.  But this can only be achieved by testing her evidence at trial.

5.Madam Tsang said that “As to the alleged usages of the small area around the entrance to the stairway by the Defendant in the 1980, it was known and permitted by my late husband as license.”  This is nothing more than a mere allegation, which has to be proved at trial.

6.Madam Tsang produced a copy of 2 photographs (TMFK-7).  She alleged that “At the bottom left hand corner of the photo where a man in white garment stood was Sai Kung Yee Kuk Street which marked the boundary of the Land.  It can be seen that the Defendant did not enclose any part of the Land and the activities of the Defendant was confined of a small area in front of the Building where most of the Forecourt of the Land was left unoccupied.  …….. No disturbance was caused to the neighbourhood and no complaints were made by the neighbours.  As such, my late husband allowed the Defendant to use the entrance of the staircase.”  The allegation that her late husband allowed the Defendant to use the entrance of the staircase has to be proved at trial.  I cannot tell whether TMFK-7 show Yee Kuk Street.  I simply fail to find any similarity between TMFK-7 and TMFK-2 (11 photographs allegedly showing the unlawful and occupying of the Strip and the unlawful activities carried thereon by the Defendant) exhibited by Madam Tsang in her affirmation dated 6^th July 2005.

7.Madam Tsang produced a copy of 4 photographs (TMFK-8) taken in or around 1996 to show some baskets (lying on the Forecourt) which belonged to the occupier Tung Yuen for the purpose of keeping dirty dishes where the dish-washing was done inside the shop premises at Nos. 23 and 25 on the Ground Floor.  She alleged that after the dishes were cleaned, they were transferred to the restaurant by trolley.  Thus, the Forecourt has been providing easement right of way between the two pieces of land during the operation of Tung Yuen.  It can be clearly seen from these photos that the Defendant did not occupy or have any activities on the Strip as claimed.  Madam Tsang relied on the paper pocket to show that the photos were taken in 1996.  There were other handwritten figures on the paper pocket.  All these other handwritten figures were in blue colour whereas the handwritten figure of “1996” was in black colour.  This difference requires explanation.  Madam Tsang put in some information to describe the photos.  Such information has not been tested and should be proved at trial.

8.Madam Tsang said that in or around May to August 2003 the Plaintiff caused substantial renovation work to be done to the Building.  Repainting of the external wall on the frontage of the Building was done, and a canopy across the frontage of the Building was erected.  When the renovation work was done, the Defendant fully cooperated with the Plaintiff.  No obstruction or complaint was caused by the Defendant.  Apparently, the Plaintiff has full unlimited/unrestricted access, control and possession to the Forecourt, including the entrance to the stairway (i.e. the Strip in issue) when the renovation work was done in 2003.  Therefore the Plaintiff has not dispossessed the Strip at all material times.  It is not clear what Madam Tsang meant by saying “the Defendant had fully cooperated with the Plaintiff”.  This sentence is ambiguous.  It seems to suggest that the Defendant impliedly gave her consent.  If that is the case, how can Madam Tsang conclude that the Plaintiff has unrestricted access and control to the Forecourt?  If the consent was withdrawn, then there could be no access and control.  If the Plaintiff had proceeded to do the work, and yet no obstruction or complaint had been caused by the Defendant, then the Plaintiff would have been entitled to reach the above conclusion.

9.The Plaintiff submitted that the Hawker Survey and Registration Form is neither here nor there and does not show possession, and thus, the earliest available evidential document provided by the Defendant was her photos of 1996.  But this Hawker Survey and Registration Form cannot be viewed in isolation.  It has to be considered together along with other evidence of the Defendant.  The Defendant’s affirmation, if accepted, shows some evidence of adverse possession.  The Plaintiff attempts to rebut her evidence by her second affirmation but as said before, some of the essential evidence disclosed in the second affirmation, particularly the evidence relating to the consent of the late Mr. Kwok, has not been tested.  Since Mr. Kwok died some years ago, how could Madam Tsang know that he had given his consent?  Madam Tsang must be cross-examined on this point.  Such evidence has to be tested.  It is inappropriate for the Plaintiff to have taken out the present summons.  I therefore dismiss it.

10.I make an order nisi, to be made distribution in 14 days’ time, that the Plaintiff is to pay costs of this application to the Defendant, to be taxed, if not agreed, with certificate for Counsel.

The Plaintiff : represented by Miss Vickie Ling instructed by Messrs. Yung, Yu, Yuen & Co., Solicitors.

The Defendant : represented by Mr. Damian Wong, instructed by Messrs. AuYeung, Cheng, Ho & Tin, Solicitors.