Chan Tin Yau and Others v. Tsang Kwok Kay
Read the full judgment text of HCA 21228/1998 on BabelCite. This High Court CFI judgment was delivered on 6 November 2006.
1. The plaintiffs commenced this action against the defendant claiming entitlement to a right of way over the defendant’s land.
Cites 5 cases
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HCA 21228/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 21228 OF 1998 ____________ BETWEEN
______________________ Before: Hon Chung J in Court Date(s) of Hearing: 1, 4 to 8, 12 to 14 and 18 September 2006 Date of Handing Down Judgment: 6 November 2006 ______________ J U D G M E N T ______________ Introduction 1.The plaintiffs commenced this action against the defendant claiming entitlement to a right of way over the defendant’s land. 2.The locality in question is a village called Shui Tsan Tin Tsuen (水盞田村), Pat Heung, Yuen Long (“the Village”). The defendant’s land is registered as Lot No. 1363 Remaining Portion in Demarcation District No. 112 (“the suit property”). The disputed right of way is a strip of land running along the north and north-western edge of the suit property (“the alleged right of way”). Its present width is sufficient for vehicular traffic. 3.The claim is premised on:-
Apart from the alleged right of way, the plaintiffs also allege that the defendant has wrongfully raised the level of the suit property adjoining the alleged right of way, thereby rendering it liable to flooding when there is rain. 4.The claim is denied. In the amended defence and counterclaim, the defendant also asserts that there are alternative means of access. 5.Further, the defence adduced evidence to the effect that the alleged right of way was built by the defendant’s father for his own use and that other villagers (including the plaintiffs) were informed that they were only allowed temporary use of the alleged right of way. Background Facts 6.The following background facts are undisputed. 7.The main trunk road nearest to the Village is Kam Sheung Road (錦上路), which lies somewhat to the north of the Village. 8.Access to the Village is mainly through a road running off from Kam Sheung Road towards the south, or south-east (this road in fact goes beyond the Village). The part of this road relevant to this action starts from a place called “Kwong Wah Tong gate” (光華堂閘口) and ends at “Lee Uk” (李屋). During trial, the plaintiffs preferred to call it “the upper road” (上路) whereas the defence called it “the main road” (主幹路). It will be called “the main road” below. 9.When the main road reaches a place called “Sam Cha Lo Hau” (三义路口) (which can be translated as “the road junction”), another road branches off towards the south-western direction. This is the alleged right of way, which is the subject-matter of this action. 10.The alleged right of way leads to an area of the Village known as “village bottom” (村底) (“the village bottom area”). On the other hand, the area near “Lee Uk” is known as “village top” (村頂) (“the village top area”). Access to the village top area is through the main road (there is no need to use the alleged right of way for such purpose). The part of the Village in-between is understandably known as “mid-village” (村中間) (“the mid-village area”). 11.The number of villagers living in the village bottom area has at all times been far less than that living in the village top area. 12.The plaintiffs and their families live in the village bottom area. The defendant and his witnesses all live in the village top area or the mid-village area. 13.The second plaintiff (“P2”) passed away before trial. The outcome of his claim defends on the basis on which this action is decided in this judgment. Witnesses’ Testimony 14.The following witnesses testified for the plaintiffs at trial:-
P1 is in his sixties while the other plaintiffs are in their fifties at the time of trial. Hence, they were in their twenties or thirties in the early 1970’s. 15.The following witnesses testified for the defence:-
D’s brother is in his forties, having been born in 1962; D’s father is in his eighties. The other defence witnesses who are also villagers of the Village are in their sixties or seventies. 16.Before turning to the credibility and reliability of the above witnesses, some words need to be spent on the background against which their testimony should be looked at. 17.There is a common trait among the witnesses. Back in the 1970’s, those from the older generation (namely, those who are now in their fifties, sixties, seventies or even eighties) did not stay in the Village; they stayed in the city apparently to seek education or employment there. They went to the Village to visit their families once in a while and only became more involved in the affairs of the Village from about the 1980’s (particularly in the mid- or late-1980’s) onwards. In fact, one witness, Lee, even left Hong Kong and resided in England for a long period of time since the 1960’s. 18.This ties in with the general economic environment of Hong Kong at the time. In the decade between 1954 and 1964, Hong Kong’s economy has become:-
The economic change was described in The Economist Intelligence Unit: Hong Kong to 1994 (1990) as follows:-
19.In assessing credibility for the purpose of making a finding of fact, the tests adopted for such assessment are as those stated in the judgment of Star Glory Investment Ltd. v. Kai Tuo (H.K.) Technologies Co. Ltd. and Others, HCA 3523/2002:-
20.On the other hand, the reliability of the witness is concerned with his ability to accurately observe, recall and recount the relevant events. 21.The background set out in para. 17 to 18 above has bearing on the reliability of the witnesses. This is because, having been away from the Village for lengthy periods of time during the 1970’s (and most part of the 1980’s), quite possibly their memory of the condition of the Village during that period may not be as accurate as they subjectively believed when they testified. (a) Overall Assessment 22.The events of crucial importance of the issues raised in this action took placed mostly in the 1970’s and hence were about 30 years prior to trial. There is a paucity of contemporaneous documents (those produced during trial are of oblique assistance at best). 23.It is widely accepted that human memory very often fades with the passage of time. Hence, even leaving aside the question of credibility, the reliability of the witnesses clearly needs to be taken into consideration when deciding whether their testimony should be accepted. Unfortunately, having seen and heard the witnesses, I find that none of them is entirely reliable. Their testimony has been shown to be unreliable to different extents and in relation to different matters. This is even more so with regard to witnesses who clearly has an interest in the outcome of this action (that is, the plaintiffs, D’s brother and D’s father). (1) Was there an Express Grant ? 24.The witnesses who claim to have knowledge about this are the plaintiffs, D’s brother, D’s father and Cheung. The gist of the parties’ respective case about this aspect can be summarised as follows. 25.Before the 1970’s, a lot of the land lying between the Village and Kam Sheung Road (and on which part of the main road was later built) belonged to two brothers, Tsang Lam-chiu (曾林昭) (“Tsang”) and Tsang Shum-chiu (曾森昭). Those lands were usually referred to by the villagers as “Kwong Wah Tong” (光華堂) because a building bearing that name has been built by them in that area. 26.In 1972, it became apparent that the Village needed a road for access to Kam Sheung Road. By then, Tsang has emigrated to Australia. The villagers caused a letter to be sent to him to seek his donation of parts of his land for building such a road. Tsang wrote back in 1973 indicating his agreement for parts of the land to be put to such use. This road is now part of the main road. Because the main road runs for some length, there was also the need for other pieces of land to be donated. However, this is irrelevant for present purposes. 27.Funding for the construction of the main road came from the villagers’ donations. Two books of donation records are included in the trial bundles. 28.What is in dispute is whether the letter sent to Tsang also sought his donation of parts of the suit property (which also belonged to him then), and whether he also agreed to such a request. The plaintiffs contend he did whereas the defence contends otherwise. 29.As was stated above, I do not find any of the witness entirely reliable. In fact, as will be set out in more detail below, I do not find D’s brother or D’s father to be credible witnesses. 30.Faced with such a high degree of potential unreliability, I find it a better approach to examine some other matters in order to determine whose account is to be preferred. Three such matters are mentioned in more details below. 31.The first matter concerns the two cars placed by D’s brother next to the alleged right of way in late 1992 or early 1993. According to him, they were put there under the following circumstances. 32.The alleged right of way was built by D’s father in 1974 to enable access to his home. It was a cul-de-sac for parking his car. Problem with regard to the alleged right of way began to appear in 1980 or 1981. Various parties including P2 and his family, and Cheung Kiu (P4’s father) started to use the alleged right of way for access. D’s father repeatedly reminded them it was a private road which he built, and it had to be surrendered when the lease of the suit property was terminated. 33.D’s father purchased the suit property in 1988. He divided it up into portions and distributed them among his sons in 1992 for them to build their own homes. 34.D’s brother then caused two cars to be placed next to the alleged right of way at the end of 1992 or early 1993. During examination-in-chief, his attention was specifically drawn to this matter (and to the photos in trial bundle C, p. 114 which show the position of one of the two cars). He was given more than one chance to speak on the matter and he confirmed the car was placed about half feet away from the alleged right of way. 35.The reason given in his witness statement for doing so was to prevent heavy vehicles going to the construction site (for building the house for P2’s son) from using the alleged right of way as a means of access. 36.I do not accept the above to be the real reason why the cars were put next to the alleged right of way. 37.The fact that the alleged right of way was never blocked or fenced is already surprising if in fact other villagers never enjoyed a right to use it (the defendant’s claim of the need for access for his family’s access cannot be a satisfactory reason for not doing so). By around 1992 or 1993, when the building of houses for the defendant and his sibling must have already been in the mind of D’s father (see para. 33 above), the need to stop other villagers from continuing to use the alleged right of way (which by then fell within the divided portion owned by the defendant) became even greater than before. 38.Under these circumstances, one will expect D’s brother to completely block off the alleged right of way, rather than to place two cars next to it (as if to imply that other villagers could still use it other than for heavy vehicles). The reason set out in para. 35 and 37 above (even if true) cannot satisfactorily explain why that was never done. 39.Despite having been asked to explain why he did not block the alleged right of way (during both cross-examination and re-examination), D’s father failed to give any valid reason for not doing so. 40.The other matter relates to the letter sent to Tsang (then residing in Australia) in 1973. This is expressly referred to in the statement of claim (served on the defendant in December 1998). The defendant merely denies it in his pleading (filed in February 1999). 41.Further, affidavit evidence was filed and served by the parties in around April 1999 in connection with the plaintiffs’ application for interlocutory injunction. The plaintiffs yet again referred to the letter sent to Tsang. D’s father deposed in his affirmation he had never heard of the letter before. This is very different from the case put forth in the witness statements (D’s father’s witness statement was served in March 2005) and testified to at trial, which is in gist that the letter was not written or signed by the individuals referred to by the plaintiffs (but by someone else), and its contents were only about the construction of the main road. 42.Finally, the first court document where the defence states that a letter has been sent to Tsang in 1973 is the witness statement of D’s father (served in March 2005, some 6 years after the commencement of this action). 43.The defence case regarding how documents relating to the construction of the main road allegedly became lost is also unconvincing. This part of the defence case is based on the testimony of D’s father and Cheung. 44.According to the defence, D’s father handed over those documents to Cheung in 1994. The documents included the two books of donation records; it is unclear what the other documents were but they appear to include a map depicting the main road and a record showing the written consent of land owners for the main road to be built, and the letter written by Tsang. In relation to the last-mentioned document, Cheung in fact claims that he has read its contents. 45.I agree with the plaintiffs that the above is unbelievable:-
46.I disagree with the defence contention that because D’s father was a tenant of the suit property in the 1970’s, it is inherently implausible that Tsang would grant a portion of the suit property for use as the alleged right of way. I consider the lease of the suit property to D’s father in the 1970’s to be a neutral fact. (2) How the Alleged Right of Way was Built ? 47.Quite some time was spent in examining the witnesses regarding the precise width of the main road and the alleged right of way during the period commencing from the 1970’s. Both parties claim they were the ones who paved/widened the alleged right of way. 48.In view of the matters set out in para. 17 to 18 and 22 to 23 above, I do not find the exercise to be helpful. 49.Insofar as it is suggested that back in the 1970’s the alleged right of way must have been a narrow footpath which could not admit any vehicular traffic, exhibit “D1” (an aerial photograph taken in February 1973) does not show that it was definitely so. 50.First, the width of the main road and the alleged right of way at that time appear to be similar. Secondly, several vehicles can be found parked near the top left corner of “D1”. A comparison of the width of those vehicles and that of the alleged right of way suggests that it may not be entirely impossible to drive a vehicle along the alleged right of way. 51.In fact, if one also compares “D1” to exhibit “D2” (an aerial photograph agreed by the parties to have been taken in November 1978), the alleged right of way did not appear to have undergone substantial change from around February 1973 to November 1978. The footpath parallel to the alleged right of way (that is, the one with a nullah to its right, and where a truck was parked at one of its ends) shown in “D2” cannot be found in “D1”. On the other hand, the main road would appear to have been widened and paved sometime between February 1973 and November 1978 (which is consistent with the witnesses’ testimony). 52.Having said that, for the avoidance of doubt, I have taken into account the fact that vehicular traffic in the New Territories was uncommon in the 1970’s and such traffic only became more common later. (3) Events in the Subsequent Years 53.The defence also argues that various matters which took place since about 1973 can assist the determination of this action. I shall set out the more important ones below. 54.First, the sequence in which the main road and the alleged right of way were constructed. The plaintiffs claim that the latter was constructed first whereas the defence contends otherwise. I do not find this to have any real significance in the resolution of this action. Insofar as the defence relies on the width of the alleged right of way before and after it was paved, this has already been discussed above. 55.Second, the maintenance of the alleged right of way. The plaintiffs claim that they (and other villagers who need to use the alleged right of way, especially those living in the village bottom area) have undertaken the work. D’s brother testified (during examination-in-chief) to the effect that the defendant (or his family) had never maintained it because it was unnecessary to do so (due to the restriction to traffic imposed by D’s father). 56.That the alleged right of way was never maintained by funds from the Village is also emphasised by the defence as evidence against its dedication by Tsang. I do not find this to be necessarily the case. Afterall, the alleged right of way is practically only of use to those living in the village bottom area. It is only natural that it would be maintained by them. In fact, even according to the defence case, some villagers appeared to be unclear whether it was their task to maintain the alleged right of way (see, for example, para. 25, witness statement of D’s father, para. 3, TL Cheung’s witness statement and the re-examination of Chan). 57.Other matters relied on by the defence include:-
58.In relation to para. 57(a) and (c) above, as will be discussed below, I do not accept D’s father to be a truthful witness. For this reason, there is no evidence regarding such matters. 59.In relation to para. 57(b) above, I agree with the plaintiffs that the witness statement of D’s father shows that the rattan factory was in operation before 1986. I therefore do not accept Chan’s testimony regarding this matter. 60.In relation to para. 57(d) above, this is at best a self-serving statement of D’s brother and should be given no weight. 61.Para. 57(e) and (f) above concern matters of peripheral importance only and should not be given any weight. (b) Individual Witnesses (1) Plaintiffs’ Witnesses 62.I do not find P1 to be a reliable witness. During cross-examination, he has repeatedly corrected his earlier testimony. He has also exaggerated some of the matters he testified to. I do not accept those parts of his testimony which are unsupported by the testimony of P3 or P4. 63.On the other hand, I prefer the testimony of P3 and P4 to that of the defence witnesses. Save regards P1’s reliability (see para. 62 above), I do not agree with the criticisms made against them by the defence. (2) Defence Witnesses 64.I do not find D’s brother or D’s father to be credible witnesses. It is (at least implicitly) accepted that there are discrepancies between parts of the defence pleadings, their affirmations (filed in April 1999) and their witness statements (filed in March and September 2005). The discrepancies allegedly resulted from the fault of the solicitor formerly employed by the solicitors acting for the defence. I do not accept that to be the real reason. 65.The said discrepancies include:-
66.The defence claim the discrepancies might also have been caused by the lack of time to properly prepare the affirmations (for use in resisting the plaintiffs’ application for interlocutory injunction in April 1999). I do not accept the claim. For example, the gist of the contents of affirmations set out in para. 65(a) above also appeared in the defence and counterclaim (which was served in February 1999). It is not alleged there was insufficient time to prepare the defence pleadings either. 67.The witness statement of D’s father also states that P4’s taxi was allowed (by him) to use the alleged right of way in around 1975. However, D’s father testifies that it was a mistake and P4 only did so in about 1985. I do not accept his claim of an error, but find this to be an attempt to weaken the plaintiffs’ case by untruthful evidence. 68.Kan was essentially a builder/developer and, according to his witness statement, became involved in property development in the Village since the 1990’s. His knowledge about the alleged right of way naturally came from hearsay sources. I do not find his testimony to be of help to the determination of this action. 69.I do not find Cheung to be a truthful or reliable witness. His testimony regarding D’s father handing over to him documents relating to the construction of the main road, and the claim that some of them were later misplaced (by him), appears to me to be contrived. 70.I agree with the plaintiffs that no valid reason has been given for the hand-over of the documents in 1994 when the village hall was damaged much earlier in 1988. 71.Further, this part of the defence case should also be looked at in the light of D’s father having purchased the suit property in 1988. By 1992, he has divided it up into portions and divided them among his sons, with the intention of building houses for them. According to the defence, D’s father consistently took the view his permission for others to use the alleged right of way was only temporary. With these in mind, the handing over of the documents in 1994, and the failure to ask for their return, are unbelievable. 72.There are other criticisms levied against Cheung’s testimony in the plaintiffs’ closing submissions. I do not propose to repeat them save to say I agree with them. 73.I do not accept Chan to be a truthful or reliable witness either. His testimony about having conversations with the truck drivers from the rattan factory is not mentioned in his witness statement. The witness statement of D’s father was drafted in a manner which suggests the operation of the rattan factory was prior to 1986. Chan’s claim that D’s father has attended a village meeting is also not supported by the contemporaneous documents. 74.Lee left the Village in the 1960’s. His knowledge of matters related to the alleged right of way came essentially from (and must have been coloured by) D’s brother. I do not place any weight on his testimony. 75.TL Cheung’s testimony relates to incident dating back to the 1980’s or even earlier. For the reasons given in para. 17 to 18 and 22 to 23 above, I regard his testimony lacking in reliability. Findings of Fact : Dedication of Land 76.The legal principles relating to this has been set out in Kong Sau Ching v. Kong Pak Yan [2004] 1 HKC 119. The relevant parts read:-
77.By virtue of the evidence (especially the witnesses’ testimony) accepted by me, I find that the plaintiffs have successful established this aspect of their case. 78.I am satisfied that the letter written by Tsang in 1973 amounted to his dedication of parts of the main road the alleged right of way. There is also evidence various government services, such as water pipes, have made use of the alleged right of way. Findings of Fact : Prescriptive Right of Way 79.I agree with the conclusion regarding this aspect reached in Kong Sau Ching at para. 104 to 106, namely:-
80.By reason of the matters set out above, I am not satisfied the plaintiffs have made out this aspect. Findings of Fact : Right of Way by Necessity 81.It is undisputed that the plaintiffs’ properties are land-locked by other lots of land. 82.The defence argues that there are other means of access to their properties. 83.The first argument of the defence is as follows. It is the plaintiffs’ own case there was an alternative route of access through Kwong Wah Tong at the time when the writ herein was issued. But, as the plaintiffs explained, this was only a temporary arrangement reached with the owner of that property, and for the limited purpose of allowing heavy vehicles carrying to take construction materials to the construction site during that period. 84.Second, it is argued that vehicular access is not a necessity; the plaintiffs can access their properties on foot using the footpath: Tang Tim Fat and Another v. Chan Fok Kei and Others [1992] 2 HKC 623, 634-5. Because of the conclusion reached as regards the other aspects of the plaintiffs’ claim, it is unnecessary to make any definitive decision on this argument. I will therefore only observe that I see some strength in it. 85.Finally, the defence contends the plaintiffs could have built a new road using the footpath and the surface of the nullah. I agree with the plaintiffs that the contention is not feasible because it will involve intruding into parts of land belonging to other owners. Findings of Fact : Prescription by Lost Modern Grant 86.The relevant law has been correctly stated in Kong Sau Ching:-
87.By reason of the matters aforesaid, I also find the plaintiffs have established this part of their case. Findings of Fact : Implied Reservation of Right of Way 88.Gale on Easements (2002) 17th Ed. has the following to say:-
89.Hence, this aspect of the plaintiffs’ case very probably faces the same difficulty as their case regarding right of way by necessity. However, I refrain from determining this aspect because it is unnecessary to do so. Findings of Fact : Estoppel 90.Kong Sau Ching observed that:-
91.Similar to Kong Sau Ching, on the evidence adduced at trial, I do not consider the plaintiffs in this action to have successfully established this aspect. Conclusion 92.I enter judgment in the plaintiffs’ favour (the plaintiffs’ claim that the defendant caused flooding to the alleged right of way by raising the ground beside it is not disputed in evidence, and not dealt with in closing submission) and dismiss the counterclaim. 93.I leave it to the parties to agree on the precise terms of the order(s) to be made. In default of agreement, there is liberty to apply for such purpose. Other Matters 94.Some time has been spent (both in cross-examination and in submissions) on alleged improprieties in the plaintiffs’ application for interlocutory injunction. I do not find any substance in the complaint. The costs of that application should be made costs in the cause of this action. 95.Although not expressly set out herein, I have considered all the evidence adduced at trial, and the points put forth in the parties’ respective submissions (written and verbal). 96.Some of the matters dealt with in the cross-examination of the plaintiffs’ witness are at best of peripheral importance. Yet relatively lengthy periods of time were spent on them. More importantly, defence counsel has made an admission in open court regarding improper conduct on the part of a solicitor who has left the firm acting for the defendant (namely, the failure to follow (or at least to verify) client’s instructions). There is no evidence that the solicitor concerned has been consulted about this. Further, strangely enough, the same firm saw fit to continue to act for the defendant despite the said professional misconduct on the part of its former employee. Costs Order 97.The parties agree on the applicability of the usual rule that costs should follow the event. There will accordingly be a costs order that the costs of this action are to be paid by the defendant to the plaintiffs to be taxed if not agreed.
Mr Paul K N Wu and Mr Victor C F Cheung, instructed by Messrs Simon C W Yung & Co., for the Plaintiffs Mrs Dora Chan, instructed by Messrs Tsang Chan & Woo, for the Defendant Appeal dismissed: see CACV72/2007 dated 6 June 2008 |
Cases cited in this judgment
Further hearings and rulings under HCA 21228/1998