Yau Yuk Ming v. Chan Yuk Lin and Another
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DCCJ4900/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4900 OF 2006 ------------------------ BETWEEN
------------------------ Coram: H H Judge Marlene Ng in Chambers (Open to the Public) Date of Hearing: 11th April 2007 Date of Handing Down Judgment: 18th April 2007 ------------------------ JUDGMENT ------------------------ I. Introduction 1.The Plaintiff is the owner in possession of (a) the Remaining Portion of Lot No.307 in DD 226 (“Lot 307”), (b) Remaining Portion of Lot No.313 in DD 226 (“Lot 313”), and (c) Section B of Lot No.312 in DD 226 (“Lot 312B”) (collectively, “Plaintiff’s Property”). The Plaintiff acquired Lots 307, 313 and 312B in 1978, 1975 and 1995 respectively. 2.The Defendants are the owners of all that 1 equal undivided 3rd part or share of and in Lot No.903 in DD 226 (“Lot 903”) and enjoy exclusive rights to hold use and occupy the ground floor of the 3-storey village-type house erected thereon (“903 House”) (“Defendants’ Property”). The Defendants acquired the Defendants’ Property in 2001. 3.There is little dispute between the parties as to the respective locations of the Plaintiff’s and Defendants’ Properties and of various other features in the surrounding vicinity. At the hearing before me, Mr Wong, solicitor for the Plaintiff, and Ms Yeung, counsel for the Defendants, referred to inter alia :
and marked by colour the broad locations of the Plaintiff’s and Defendants’ Properties, Government land and the surrounding vicinity in exhibit 1 (enlarged extract of part of the 2006 Plan, “Exhibit 1”) and exhibit 2 (enlarged extract of part of the 2005 Plan, “Exhibit 2”). Both Mr Wong and Ms Yeung agree that for the purpose of the Order 14 application before me, the precise boundaries of the Plaintiff’s and Defendants’ Properties and of the surrounding Government land are not important. (a) Plaintiff’s Property 4.The Plaintiff’s Property is marked in yellow in Exhibits 1 and 2. The Plaintiff has paved a bituminous road on the Plaintiff’s Property (“Paved Road”) to connect his other properties in the area to a public road that branches out from the Sai Kung bound carriageway of Clear Water Bay Road (“Public Road”). In the 2005 Plan, the cluster of houses in the area is described as Man King Terrace. At the mouth of the Paved Road where it joins the Public Road (“Entrance”), there is a metal gate (“Metal Gate”) (coloured pink in Exhibit 2) as well as a remote-controlled self-elevating bar gate (“Bar Gate”). Unless elevated, the Bar Gate blocks vehicular ingress and egress between the Paved Road and Public Road. 5.There is Government land on either side of the Paved Road coloured green in Exhibits 1 and 2. Such Government land is on the same level as the Paved Road. The Photographs depict car parking spaces on either side of the Paved Road with 2 parallel continuous yellow lines thereon marking the carriageway. However, there is no evidence to suggest that the yellow lines delineate the precise boundaries between the Paved Road and Government land on either side. 6.There are lights alongside the Paved Road. If one stands at the Entrance and looks in the direction of Man King Terrace, there is an electricity post on Government land to the right side of the Paved Road (coloured green in Exhibits 1 and 2, “Right Government Land”) near to Lot 877 of DD 226 (“Lot 877”). Such electricity post is identified by notation “E” in the 2005 Plan. 7.Still looking in the same direction, there is Government land to the left of the Paved Road (“Left Government Land”), which is also coloured green in Exhibits 1 and 2. Abutting the other side of Left Government Land are Lot Nos.936-939 of DD 226 (“Lots 936-939”), which are situate on a platform higher in level than Left Government land. There is a staircase from such platform to the Public Road. The bottom of the staircase is close to the Metal Gate. Mr Wong and Ms Yeung are unable to agree whether such staircase is part of Government land or not, but nothing turns on such disagreement. (b) Defendants’ Property 8.According to the Assignment of the Defendants’ Property dated 25th November 2001 executed by the Defendants as purchaser and by Li Siu Cheung and Tai Kin Wai as vendors (“903 Assignment”), the Defendants’ Property is held inter alia (a) subject to the exceptions and reservations more particularly contained described and/or mentioned in the Government Lease (ie the New Grant) and the 903 Assignment, and (b) with the benefit of all easements rights and rights of way (if any) contained described and/or mentioned in the 903 Assignment. 9.Condition 3 of the Special Conditions of the New Grant is a building covenant requiring the grantee Yau Po Choi to develop Lot 903 by erecting a building in all respects complying with the Special Conditions and the provisions of all ordinances, byelaws and regulations relating to building and sanitation which are or may at any time be in force in the New Territories (other than New Kowloon) (“Condition 3”). 10.Condition 25 of the Special Conditions provides inter alia that the Government does not guarantee any right-of-way to Lot 903 and the grantee must accordingly make his own arrangements for acquiring such right-of-way (“Condition 25”). 11.Again, if one stands at the Entrance and looks in the direction of Man King Terrace, on one side of Right Government Land is the Paved Road and on the other side are Lots 903 and 877 with Lot 877 closer to the Public Road and Lot 903 (coloured orange in Exhibits 1 and 2) behind it. Both lots are lower in level than Right Government Land (which is of the same level as the Paved Road) and Lot 877 is even lower in level than Lot 903. 12.A village-type house (“877 House”) has been erected on Lot 877. The 903 House erected on Lot 903 faces the back of the 877 House. Each of Lots 877 and 903 is surrounded on all sides by Government land so that each lot sits on a platform of Government land (“Lot 877 and Lot 903 Platforms”). The 903 Platform are now totally enclosed by fences/ walls/cuttings (except for the Blue Staircase referred to below) at its boundaries. Such fences/walls/cuttings enclose levelled open areas at the front and back of the 903 House (“903 Front and Back Areas”) connected by a narrow strip of open passageway on either side of the 903 House. The strip of passageway closer to Right Government Land is referred to as “903 Right Passageway” below, and the strip of passageway on the other side of the 903 House is referred to as “903 Left Passageway” below. 13.Installed at the boundary of the 903 Front Area is a low concrete wall atop a vertical cutting that drops from the 903 Platform (ie Government land) to the 877 Platform (ie Government land) or to some Government land between the 903 and 877 Platforms. At one corner of the low concrete wall, a short staircase leads up to Right Government Land/Paved Road and is coloured blue in Exhibits 1 and 2 (“Blue Staircase”). For the purpose of the Order 14 application, Mr Wong and Ms Yeung accept that the Blue Staircase is on Government land. The other corner of the low concrete wall is a short concrete pillar with a gouged centre. Ms Wong at first submits it is a drainage hole, but eventually concedes there is no affirmation evidence to such effect. 14.On the right side of the 903 House, the 903 Platform abuts Right Government Land/Paved Road, but Right Government Land/Paved Road are higher in level than the 903 Platform, so this side of the 903 Platform extending from the 903 Front Area to 903 Back Area (and along the 903 Right Passageway) is closed by a vertical cutting that drops from Right Government Land/Paved Road to the 903 Platform below. 15.To the left of the 903 House and 903 Platform are Lot Nos.863-866 of DD 226 (“Lots 863-866”) which are on a lower level. There is a metal fence at the left boundary of the 903 Platform which extends from the 903 Front Area to the 903 Back Area and along the 903 Left Passageway and which is erected atop a vertical cutting that drops from the 903 Platform to a strip of Government land between the 903 Platform and Lots 863-866. The right foreground of the photograph in Exhibit 3 shows there are certain concreted sections on such strip of Government land. Ms Yeung suggests it is a passageway for drainage pipes, but there is no affirmation or clear photographic evidence to such effect. 16.The metal fence at the left side of the 903 Platform continues along part of the boundary of the 903 Back Area until it joins a low concrete/brick wall. Outside such metal fence and concrete/brick wall is an artificial slope which appears also to be Government land. 17.Thus, Lot 903 is presently entirely surrounded by the 903 Platform (ie Government land which has been entirely fenced/walled but for the Blue Staircase that leads to Right Government Land/Paved Road). Further, the 903 Platform itself is surrounded by Government land on all sides. (c) Past and current status 18.The comparative levels of the relevant lots at Man King Terrace are as follows. Lots 836-839 are on the highest level. They drop onto Left Government Land, which is of the same level as the Paved Road and Right Government Land. Lots 877 and 903 on which the 877 and 903 Houses are respectively erected are surrounded by the 877 and 903 Platforms. They are lower in level than Right Government Land/Paved Road with the 877 Platform and Lot 877 even lower in level than the 903 Platform and Lot 903. 19.Currently, as shown in the Photographs, the Blue Staircase leads up from the 903 Platform to Right Government Land/Paved Road. But Ms Yeung concedes that at the time of the New Grant in 1988 and as shown by the 1988 Plan, there was no vertical cutting between the 903 and 877 Platforms so a pedestrian could go from Lot 903 to the Public Road by walking across the 903 and 877 Platforms and/or surrounding Government land and going down a staircase coloured green in Exhibits 1 and 2 (“Green Staircase”). Such route is marked in red in exhibit YMM-2-2 of the Plaintiff’s 2nd affirmation (“Old Route”). The Old Route cannot be used currently inter alia because walls/fences have been erected along the boundaries of the 903 Platform atop vertical cuttings and artificial slope. 20.Presently, the Defendants pass through the Blue Staircase to access Government land and the Plaintiff’s Property for ingress and egress to and from the Public Road, which route is marked in green in exhibit YMM-2-2 of the Plaintiff’s 2nd affirmation (“Present Route”). II. Plaintiff’s pleaded case 21.The Plaintiff claims that the Defendants have trespassed on the Plaintiff’s Property on various days on foot by using the Present Route for ingress/egress to and from the Public Road without the Plaintiff’s permission or grant. There is an alternative route available to the Defendants (ie the Old Route). Despite requests/warnings by the Plaintiff and his solicitors, the Defendants insist they have a right to pass over the Plaintiff’s Property and they will continue such trespass unless restrained by the court. The Plaintiff claims that if the Defendants are not restrained, he will suffer irreparable damage to his enjoyment of the Plaintiff’s Property because the Defendants may claim a prescriptive right over the same after lapse of a period of time prescribed by law. 22.The Plaintiff claims for (a) a declaration that the Defendants have no right to use the Plaintiff’s Property for ingress and egress between the Defendant’s Property and the Public Road, and (b) an injunction to restrain the Defendants by their servants agents licensees from trespassing on the Plaintiff’s Property. III. Defendants’ pleaded case 23.The Defendants claim they are entitled to walk across the Plaintiff’s Property because the Present Route is a way of necessity. The Defendants also pleaded the defences of (a) easement by prescription and/or (b) equitable estoppel amounting to equitable easement. But Ms Yeung informs me that the Defendants will not rely on these arguments for the purpose of the Order 14 application. IV. Order 14 application 24.By a summons dated 2nd December 2006 (“Summons”), the Plaintiff applies for summary judgment against the Defendants. The Plaintiff has filed 2 affirmations in support of the Summons and the 2nd Defendant has filed an affirmation in opposition thereto. 25.A plaintiff may invoke the procedure under Order 14 of the Rules of the District Court (“RDC”) where there is no valid defence to his claim or otherwise a triable issue :
26.In Ng Shou Chun v Hung Chun San [1994] 1 HKC 155, Godfrey J noted it was not appropriate to embark on a mini-trial of the action on affidavit evidence. The court should ask itself the question whether what the defendant says is credible or believable. If so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment. 27.However, Hong Kong Civil Procedure 2007 (supra) para.14/4/9 at pp.177-178 went on to say “[it] is trite law that the mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend, since the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence, i.e. that his evidence is reasonably capable of belief …… there are some cases in which the defendant’s own case, although apparently it raises issues which, if found in his favour, would provide him with a defence, are so incredible or so contradicted by contemporaneous documents or circumstances that it becomes clear that his defence is a sham”: per Mortimer J.A. in Manciple Ltd. v. Chan On Man [1995] 2 H.K.C. 459 at 466. ……” V. Declaration and injunction 28.The Plaintiff does not seek a monetary judgment. Rather he seeks a declaration and an injunction. Order 14 applies to an injunction and there is no reason why Order 14 may not be employed in an action for a declaration where the case is clear (see Hong Kong Civil Procedure 2007 (supra) para.14/1/1 at pp.168-169). 29.The basic rule in trespass is that if a defendant threatens to continue a trespass an injunction will be granted to prevent him, whether or not the claimant suffers any substantial damage as a result of the trespass (Colin Sara, Boundaries and Easements (2002), para.24.37 at p.433). The order is discretionary, but when the trespass is established, then unless there be something special in the circumstances, the wronged party is entitled as of course to an injunction to prevent recurrence of the violation of his rights. This is especially so in the case of a prohibitory injunction “which amounts to no more than ensuring that the defendants respects the claimant’s right in future” (Colin Sara, Boundaries and Easements (supra), para.24.40 at p.435). 30.Order 15 rule 16 of the RDC gives the District Court power to make declaratory judgment even when the party seeking such relief has no cause of action part from such rule. But a claim for declaration not followed by substantive relief will have to be watched carefully. The power to grant declaratory relief is discretionary, and a declaration can only be made after proper argument. 31.It is now realised that declaratory relief is useful in setting out the rights of the parties without making any penal order in the form of an injunction. A declaration may be (and frequently is) made though in particular circumstances an injunction or other relief is refused by the court (Hong Kong Civil Procedure 2007 (supra) para.15/16/3 at p.264). In exercising its discretion, the court will consider whether any useful purpose will be served by granting the declaratory relief (Tsang Yuen Ling v Incorporated Owners of Siu Lung Court LDBM199/2001, H H Judge Lam (as he then was) (unreported, 28th September 2001) cited in Hong Kong Civil Procedure 2007 (supra) para.15/16/2 at p.263). VI. Matters not argued 32.For the purpose of the Order 14 application, the Defendants only rely on 2 defence arguments, ie (a) way of necessity over the Present Route and/or (b) dedication of the Plaintiff’s Property as public right of way. In the circumstances, I need not consider the other defence arguments or other considerations referred to below. (a) Vendor and estate agent 33.The 2nd Defendant in his affirmation claims that in 2001 he and the 1st Defendant were led by the estate agent from the Public Road via the Plaintiff’s Property, Right Government Land and Blue Staircase to the Defendants’ Property (ie the Present Route). At that time, the vendors and estate agent informed the 2nd Defendant that the Present Route was all along the only path between the Defendants’ Property and the Public Road. 34.Such argument is not featured in Ms Yeung’s written or oral submissions. The Plaintiff in his 2nd affirmation says he has no knowledge what the estate agent and vendors told the 2nd Defendant. In any event, there is no suggestion that such vendors and estate agent were the Plaintiff’s agents so that the Plaintiff is liable for their representations. In the circumstances, even if the Defendants rely on such representations, I am of the view that they do not amount to any arguable defence or triable issue. (b) Express grant of rights of way 35.According to the land search records of the Plaintiff’s Property, 6 Deeds of Grant of Right of Way dated between July 1978 and June 1979 were registered against each of Lots 307 and 313 at the Land Registry (although the Deed of Grant of Right of Way dated 15th September 1978 was only registered in July 1985) (“Deeds”). These Deeds are part of the public records in relation to Lots 307 and 313, copies of which can be bespoken upon payment of prescribed fees, yet neither party has produced copies of such documents. Further, the Plaintiff and the 2nd Defendant in their affirmations and Mr Wong and Ms Yeung in their submissions have not referred to the Deeds at all. 36.It is unknown from the land search records which land lots were to benefit from the rights of way provided for in the Deeds. But Ms Yeung in her submissions does not rely on any express or written grant of right of way over the Plaintiff’s Property in favour of Lot 903. Further, it is unlikely the rights of way provided for in the Deeds will be relevant to any way of necessity alleged by the Defendants since (a) they precede the New Grant made in 1988, and (b) Ms Yeung concedes that as late as 1988 an alternative way (ie the Old Route) could still be used by pedestrians to access the Public Road from Lot 903. VII. Way of necessity (a) Defendants’ affirmation evidence 37.The 2nd Defendant in his affirmation claims that he and the 1st Defendant inspected the Defendants’ Property 4-5 times in 2001 before purchasing it. He recalls that the then surrounding vicinity was the same as the present condition. 38.Since (a) the Defendants’ Property is on a different level from the surrounding lots and Government land and (b) the 903 Platform is enclosed by metal fence and concrete wall except for the Blue Staircase leading to Right Government Land, it is landlocked. The Defendants claim that the Present Route is the only pedestrian path between the 903 House and the Public Road, and deny there is any other alternative route (eg the Old Route). They further claim that if they are not allowed to use the Present Route over the Plaintiff’s Property, they will be deprived of their right to reasonable enjoyment of the Defendants’ Property. (b) Plaintiff’s affirmation evidence 39.The Plaintiff denies that the Present Route passing through the Blue Staircase, Right Government Land and Paved Road (ie over the Plaintiff’s Property) is the only pedestrian route between the Defendants’ Property and the Public Road. He claims that pedestrians from the 903 House can take the Old Route to reach the Public Road by stepping onto the 903 Platform, walking across Government land onto the 877 Platform and then going down the Green Staircase to an open space public car park that is immediately accessible to the Public Road. Indeed, during the construction of the 903 House some time after the Plaintiff acquired Lots 307 and 313, he observed that materials were brought and construction workers came and went via the Old Route. 40.The Plaintiff further claims that the 903 Platform was about 4 feet higher than the 877 Platform, but the Blue Staircase was about 8 feet lower than Right Government Land/Paved Road. He cannot understand why it is more convenient for the Defendants to walk 8 feet up the Blue Staircase to trespass on the Plaintiff’s Property rather than use the Old Route that only requires a descent of 4 feet to reach the 877 Platform to access the Public Road. The Plaintiff says that using the Old Route is also more direct and closer to the bus stop at Tseng Lan Shu than using the Present Route. (c) The legal principles 41.A way of necessity arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible is entitled, as of necessity, to a way over the other part (Gale on Easements 17th ed (2002) para.3-109 at p.149). In Nickerson v Barraclough & ors [1981] 2 All ER 369, the English Court of Appeal held that the doctrine of way of necessity is founded upon an implication from the circumstances and not on the basis of public policy. “…… [Whatever] the effect on the land of its becoming land-locked, a way of necessity cannot be implied or imputed if it overrides the clear provisions of the conveyance” (Colin Sara, Boundaries and Easements (supra) para.13.33 at p.264). (d) Grant of land 42.Halsbury’s Laws of Hong Kong Vol.16 para.230.0582 states inter alia that “…… [a] way of necessity is a right of way which the law implies in favour of a grantee of land over the land of the grantor, where there is no other way by which the grantee can get to the land so granted to him, or over the land of the grantee where the land retained by the grantor is land-locked. Such a way cannot exist over the land of a stranger. …… A way of necessity can arise in favour either of the grantee on a disposition of the dominant tenement or of the grantor on a disposition of the servient tenement” (my emphasis). 43.It is evident from the above that a way of necessity only exists in association with a grant of land. Kekewich J in Titchmarsh v Royston Water Company Limited (1899) 81 LT 673, 675 cited Promfret v Ricroft that “[a] way of necessity …… when the nature of it is considered will be found to be nothing else but a way by grant. It derives its origin from a grant.” Further, in Nickerson’s case (supra at p.379) Brightman LJ said as follows :
44.In relation to the alleged way of necessity, the quasi-dominant and quasi-servient tenements are respectively Lot 903 and the Plaintiff’s Property. Mr Wong and Ms Yeung agree that the Government was the former common owner of both tenements until the Plaintiff or the Plaintiff’s predecessor(s)-in-title acquired the leasehold of the Plaintiff’s Property and/or the Government granted the lease of Lot 903 to Yau Po Choi by the New Grant. 45.For the alleged quasi-servient tenement (ie the Plaintiff’s Property), of the 3 lots that comprise the Plaintiff’s Property, Lots 307 and 313 are closest to Lot 903 and were acquired by the Plaintiff by assignment in 1978 and 1975 respectively. So the Government grants for such lots must have been issued in/before 1978 (ie some time before the New Grant in 1988). 46.According to Cheshire and Burn’s Modern Law of Real Property 16th ed (2000) pp.589-590, it is said as follows :
47.Ms Yeung accepts that even as late as in 1988 the Old Route was a viable pedestrian path between Lot 903 and the Public Road. There is no affirmation evidence before me that Lot 903 was inaccessible and/or landlocked prior to 1988 to enable any way of necessity to be implied over the Plaintiff’s Property associated with the grant(s) for Lots 307 and 313 in favour of the Plaintiff or his predecessor(s)-in-title. 48.For the alleged quasi-dominant tenement (ie Lot 903), the relevant grant is the New Grant in 1988. According to Cheshire and Burn’s Modern Law of Real Property (supra) pp.590-591, the law is much more inclined to imply easements in favour of the grantee than in favour of the grantor. However, as explained above, Ms Yeung concedes that in 1998 the Old Route was still available as a pedestrian path between Lot 903 and the Public Road. 49.Although the 903 Platform is now enclosed by fences/walls/ cuttings/slopes except for the Blue Staircase, there is no evidence as to who blocked the Old Route or when it was done, especially as such enclosures were installed not on Lot 903 or the Defendants’ Property but on Government land. There is also no evidence as to who installed other obstructions (if any) on Government land along the Old Route or when such obstructions (if any) were installed. In my view, there is no evidence to show that Lot 903 was landlocked at the time of the New Grant in 1988 or at the time of completion of construction of the 903 House (bearing in mind the building covenant in Condition 3). 50.Ms Yeung submits that all land in New Territories is vested in the Government by virtue of section 8 of the New Territories Ordinance Cap.97. She argues that the special circumstances of Hong Kong where (a) the Government is the sole paternity of all land in the New Territories and (b) private owners hold land from the Government not in fee simple but as leasehold render the requirement of a way of necessity to be associated with a grant otiose. Ms Yeung has not cited any legal authority for such interesting proposition that undermines the long-standing cornerstone requirements of a way of necessity as discussed in paragraphs 42-43 above. 51.I also note that even under English law, the aforesaid requirements also apply to the scenario of a lease. In Gaylord v Moffatt (1868) 4 Ch App 133, a case cited in Gale on Easements (supra at para.3-113 at p.151), a lease was granted of a counting-house and vaults, to which the only means of access was over a courtyard held by the lessor, and the lessor afterwards began to build on part of the courtyard. It was held that the lessee became entitled to a way of necessity over the courtyard, “and that way must be a way suitable to the business to be carried on in the premises demised, namely, the business of a wine and spirit merchant. This is the position in which the tenant stood after the lease was granted, and is the position in which he now stands. The question is therefore reduced to this, whether there remained, after the building was erected, such a way as the plaintiff would have been entitled to the day after the lease was granted”. In the circumstances, I am unable to accept Ms Yeung’s argument. 52.Further, as explained above, a way of necessity cannot be implied or imputed if it overrides the clear provisions of the conveyance. Condition 25 makes it quite clear that the grantor (ie the Government) will not guarantee any rights-of-way and the grantee has to acquire the same. This does not sit well with any suggestion that a way of necessity over the Present Route subsisted at the time of the New Grant. (e) Land of a stranger 53.Here the Defendant’s Property is surrounded on all sides by Government land (ie the 903 Platform). A pedestrian walking from the Defendants’ Property to Lot 307 (ie part of the Plaintiff’s Property closest to the Defendant’s Property) will have to pass through the 903 Platform, Blue Staircase and probably Right Government Land before reaching Lot 307/Paved Road. In short, the Plaintiff’s Property is not directly adjacent to the Defendants’ Property or Lot 903. 54.Since the grantor of the New Grant in respect of Lot 903 is the Government, the question is whether the Defendants can claim a way over a stranger’s land (ie the Plaintiff’s Property). 55.Mr Wong relies on Titchmarsh’s case (supra) to say that the answer is in the negative. In that case, the subject land was blocked on 3 sides by the vendor’s land and on the remaining side by a highway lying in a cutting below, which made connection with the subject land difficult. Kekewich J said at p.675 as follows :
56.On this subject, I have referred Mr Wong and Ms Yeung to Barry v Haseldine [1952] 2 All ER 317 and Adealon International Proprietary Limited v London Borough of Merton [2006] EWHC 1075 (Ch) (Lexis-Nexis electronic transcript) at the hearing. 57.Barry’s case (supra) concerns a parcel of land that was enclosed on all sides either by land of the defendant or land belonging to strangers. Danckwerts J held that the plaintiff was entitled by implication to a way of necessity over the defendant’s land and said at p.319 that “...... there is really no very real and express authority on the point, but it seems to me that, if the grantee has no access to the property which is sold and conveyed to him except over the grantor’s land or over the land of some other person or persons being a person or persons whom he cannot compel to give him any legal right of way, common sense demands that the grant of a way of necessity should be implied, for the purposes for which the land is conveyed, over the land of the grantor. It is no answer to say that at the time of the grant, a permissive method of approach was in fact enjoyed over the land of some other person, because that permissive method of approach may be determined the date after the grant and the grantee may thus be rendered entirely incapable of approaching the land which he has purchased. ……” (my emphasis) 58.Judge Kirkam in Adealon’s case (supra) was presented with a wealth of authority on the issue, including Titchmarsh’s case (supra) and Barry’s case (supra). In para.42 of her judgment, the learned judge noted that counsel for the defendant submitted to the effect that contrary to what Danckwerts J said in Barry’s case (supra) there was authority on the point, ie the judgment of Kekewich J in Titchmarsh’s case (supra). This means that Kekewich J and Danckwerts J each took a different approach, but the judgment of the former was not drawn to the latter’s attention. Judge Kirkham said at para.50 as follows :
The learned judge went on to hold that the decision of Kekewich J in Titchma rsh’s case (supra) was binding and to be preferred. The claimant in Adealon’s case (supra) was therefore unable to demonstrate it was entitled to the grant of a way of necessity. 59.Following Titchmarsh’s case (supra), since the Defendants’ Property on all sides abuts on Government land (eg the 903 Platform and Right Government Land), the doctrine of necessity does not extend to a way of necessity over the Plaintiff’s Property. Even Barry’s case (supra) suggests that even if a way of necessity is to be implied, it can only be implied over the land of the grantor and not that of a stranger. In the circumstances, the Defendants cannot assert a way of necessity over the Plaintiff’s Property instead of over Government land (ie land of the grantor of their predecessors-in-title). (f) Alternative route 60.Mr Wong submits that a way of necessity means a way without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property. There is no dispute that (as evident from the 1988 Plan) at the time of the New Grant the surrounding area was unlike the present condition. Both Mr Wong and Ms Yeung accept that in 1988 (a) there were no barriers/cuttings between the 903 and 877 Platforms, and (b) the Old Route between Lot 903 and the Public Road was accessible. Mr Wong submits there is simply no evidence that Lot 903 was landlocked in 1988 or that the 903 House was landlocked when it was thereafter erected. 61.Mr Wong goes further to argue that not only was there an alternative pedestrian route between Lot 903 and the Public Road by way of the Old Route in 1988, but for the acts of the Defendants and/or other persons (not the Plaintiff), such alternative way would still have been available today. He points out that the fences/walls/cuttings on 3 sides of the 903 Platform (the 4th and last side being the vertical cutting between the 903 Platform and Right Government Land/Paved Road) are artificial barriers that can be removed at any time to enable pedestrians to walk across Government land to the Green Staircase to access the Public Road. There is no evidence on who installed such artificial barriers or when such installation was done. Mr Wong submits it is not right for the Defendants to rely on such artificial barriers to say that the Defendants’ Property is presently landlocked/inaccessible and thereby “create” a necessity for crossing over the Plaintiff’s Property. 62.On the other hand, Ms Yeung argues that the Defendants’ Property is currently landlocked and has been so since 2001 when the Defendants acquired the Defendants’ Property (but there is no evidence when precisely prior to 2001 the 903 Platform was so enclosed). Ms Yeung submits that since the fences/cuttings have been erected/made on Government land and depicted in the 2005 and 2006 Plans prepared by the Government, they must have been made with its consent or acquiescence. She argues that since the Government is the grantor of the New Grant and ultimate paternity of the Plaintiff’s Property, it is possible and indeed necessary to infer a way of necessity for pedestrian traffic along the Present Route for the enjoyment of the Defendants’ Property. 63.I am afraid I cannot accept Ms Yeung’s argument. I agree (and Mr Wong does not dispute) the Government is the ultimate paternity of both the Plaintiff’s and Defendants’ Properties (see section 8 of the New Territories Ordinance Cap.97), but I have explained why such historical common paternity itself is insufficient for implying a way of necessity (see paragraphs 50-51 above). I have also explained why a way of necessity over the Plaintiff’s Property cannot be implied because of (a) Ms Yeung’s concession that as the time of the New Grant the Old Route was still available as an accessible path for reaching the Public Road, and (b) the absence of evidence as to when and the circumstances under which the Old Route was blocked. 64.Further, even if the Defendants’ Property became “landlocked” some time between 1988 and 2001 due to blockage of the Old Route by erection of the fences/walls/cuttings at the perimeter of the 903 Platform and by other obstructions (eg gates) along the Old Route up to the Green Staircase, there is no evidence that the Plaintiff erected such barriers and obstructions and no suggestion of such by the Defendants. There is simply no evidence as to who erected them apart from Ms Yeung’s submission that it was done with the consent/acquiescence of the Government. If that were the case (and I find it unnecessary to form a view on the same), the Defendants’ complaint should have been directed to the Government (ie the grantor of Lot 903 and owner of the surrounding Government land) who condoned blockage of the Old Route, which the Defendants allege was available at least in 1988. I am at a loss to understand how such barriers erected after 1988 by unknown parties justify implying a way of necessity not over the surrounding Government land but over the Plaintiff’s Property, particularly over Lots 307 and 313 which are closest to Lot 903 or the 903 Platform and which the Government has granted to the Plaintiff or the Plaintiff’s predecessor(s)-in-title long before 1988. In this respect, Ms Yeung confirms she does not disagree with the legal principles in Titchmarsh’s case (supra) or Adealon’s case (supra), and further accepts that the doctrine of way of necessity is not fathered upon public policy (see Nickerson’s case (supra at p.379)). ( g) Summary 65.In the circumstances, I do not consider the Defendants’ contention of a way of necessity raises any arguable defence or triable issue. VIII. Dedication of public right of way 66.It is not unfair to say that the defence argument of dedication of public right of way is not featured in the Defendants’ pleadings and not specifically alluded to in the affirmation of the 2nd Defendant. It first surfaced substantively in Ms Yeung’s written submissions. In the circumstances, Ms Yeung’s submissions and indeed Mr Wong’s reply thereto are constrained by the existing affirmation evidence, which is not particularly focused on such defence argument. In this respect, Ms Yeung confirms that for the purpose of the Order 14 application, the Defendants will not be relying on any alleged public user of the Plaintiff’s Property prior to 2001. (a) The law 67.Both Mr Wong and Ms Yeung accept that the relevant legal principles are set out in Kong Sau Ching v Kong Pak Yan & ors [2004] 1 HKC 119 and Chan Tin Yau & ors v Tsang Kwok Kay HCA21228/1998, Chung J (unreported, 6th November 2006). 68.Both Reyes J and Chung J in those cases have referred to the principles on how a public right of way may be created by dedication as explained in Megarry & Wade, The Law of Real Property (6th ed) paras.18-067 – 18-068 at p.1090 :
69.Adopting Reyes J’s guidance in Kong Sau Ching’s case (supra at p.128), the 3 broad issues are as follows :
70.I now turn to the circumstances of the present case. ( b) Defendants’ affirmation evidence 71.Since the Defendants moved into the Defendants’ Property in 2001, they have noticed that residents of the 903 House and of other nearby houses walk across the Plaintiff’s Property and Government land to access the Public Road and that persons who park their vehicles on Government land also do so. In fact, pedestrians have all along “without interruption by [the Plaintiff] since the grant” (ie the New Grant) used the Plaintiff’s Property and Government land as footpath to access the Public Road. Even though the Metal Gate has been installed at the Entrance, it is never closed to prevent pedestrians from using the Plaintiff’s Property. ( c) Plaintiff’s affirmation evidence 72.The Plaintiff says that since 1999 he gave express permission to Mr and Mrs Li Siu Cheung, the Defendants’ predecessors-in-title, to pass through the Plaintiff’s Property to access the Public Road at a monthly fee of HK$1,200.00. On/about 7th August 2001, Mr Li informed the Plaintiff they were planning to move out of Lot 903, so their arrangement came to an end. The Plaintiff set out a list of 25 monthly fee payments by Mr Li of HK$1,200.00 each from 6th July 1999 to 5th July 2001 and 1 partial payment of HK$300.00 for the period from 6th July 2001 to 7th August 2001 with the relevant cheque numbers (“List of Fee Payments”). 73.The Plaintiff also says he has given express permission to the owners of the 2 upper floors of the 903 House to cross the Plaintiff’s Property to access the Public Road under similar arrangements. 74.The Plaintiff says the aforesaid arrangements have long been accepted by various owners of the nearby village houses, but the fees charged vary according to the number of persons who have to use the Plaintiff’s Property to access the Public Road. The Plaintiff has exhibited copies of various cheques issued by such owners and receipts issued by him for the monthly fees paid by (a) the occupier of 3A Man King Terrace for private road fee of Lot 312B for July and August 2006, (b) the owner of the 2nd and 3rd floors of 10 Man King Terrace for private road fee of the Plaintiff’s Property for November and July 2006 respectively, (c) the owner of the 2nd floor of 12 Man King Terrace for private road of the Plaintiff’s Property and parking fee for July to September 2006, and (d) the owner of the top floor of the 903 House for private road fee of the Plaintiff’s Property and parking fee for November and December 2006 and January 2007 (“Fee Cheques and Receipts”). 75.The Plaintiff uses the money collected under the aforesaid arrangements to reimburse himself for the material and labour expenses for the upkeep and maintenance of the Paved Road and the Metal and Bar Gates installed on Lot 312B and for the electricity charges for the lights installed along the Paved Road. 76.Not long after the Defendants acquired the Defendants’ Property (ie in/about late 2001 or early 2002), the Plaintiff met and told them of his previous arrangements with Mr Li. The Plaintiff expects that if the Defendants do not wish to enter into such arrangement with him, they will respect his rights, use an alternative route and not trespass on the Plaintiff’s Property. But in recent years, the Plaintiff has noticed that the Defendants and other persons connected with them frequently pass through the Plaintiff’s Property as if they are entitled to do so as of right, so the Plaintiff on various occasions has told them not to do so. 77.The Plaintiff has been informed by the Defendants’ representative and by letter that the Defendants insist they have a right to pass through the Plaintiff’s Property. The Plaintiff wrote to the Defendants on 3rd July and 17th August 2006 to warn against further trespassing on the Plaintiff’s Property. The Plaintiff believes the Defendants may not have been aware of the Plaintiff’s aforesaid arrangements with other parties, which caused their misunderstanding over the user of and their trespass on the Plaintiff’s Property. 78.The Plaintiff claims that at night the Metal Gate may be closed for security reason to prevent non-residents from entering into the area. He can also control the opening and closing of the Bar Gate by means of a remote switch at his will. The Plaintiff has put up a red sign on the outside of the Metal Gate facing the Public Road with Chinese words “私家重地 閒人免進” meaning “Private Property, No Trespassing” to warn against trespassers, and a blue sign on the Bar Gate with both English and Chinese words “私家路 Private Road” for the same purpose. (d) Intention to dedicate on the part of the Plaintiff 79.There is no dispute that there is no express dedication on the part of the Plaintiff. The question is whether the available facts raise a presumption of dedication. To raise such presumption, it is necessary to show there is open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. 80.There is again no dispute that the Bar Gate at the Entrance blocks vehicular traffic. Vehicular ingress and egress are by permission of the Plaintiff who controls the Bar Gate by remote control. Where user is enjoyed with the permission of the Plaintiff, upon payment of parking fee to the Plaintiff or which the Plaintiff may withdraw at any moment, it cannot be said the Plaintiff has acquiesced in the existence of a public way as of right. To ask permission is to accept that no such right exists. In the circumstances, Ms Yeung only limits her argument to a pedestrian as opposed to vehicular public right of way. 81.But in respect of the pedestrian aspect, there is clear photographic evidence from the Plaintiff’s 2nd affirmation of the existence of the Metal and Bar Gates as well as the red and blue signs at the Entrance that plainly suggests that the property and road within the gates are private and trespassing is prohibited. There is no suggestion that the blue and red signs are limited to vehicular traffic. In my view, even assuming in favour of the Defendants that the Metal Gate is not closed (which is contrary to the Plaintiff’s assertion), it is quite plain from the red and blue signs that the Plaintiff has no intention of dedicating the Plaintiff’s Property to public use. 82.Ms Yeung complains that there is no evidence as to when the red and blue signs were put up. Since it is the Defendants who raise the argument of dedication of public right of way, they carry the evidential burden of proof. In the Order 14 context, it is for the Defendants to at least raise a triable issue or arguable defence in relation to such contention. I note that the 2nd Defendant makes no reference at all to the red and blue signs let alone when they were put up even though they claim to pass through the Entrance every time they have to leave/ return home to/from the Public Road. Further, not having alluded to such defence argument at all in their pleadings and affirmation evidence, it does not lie in the Defendants’ mouths to complain about the absence of evidence from the Plaintiff as to when the red and blue signs were put up. 83.Ms Yeung next argues that the red and blue signs are insufficient to contradict any intention by the Plaintiff to dedicate the Plaintiff’s Property as a public right of way. She refers to Kong Sau Ching’s case (supra) where Reyes J held there was dedication of a public way over the disputed way notwithstanding that one of the defendants caused Chinese notices (which read “Warning: Private Land, No Vehicle Entry Unless Authorised”) to be posted on a wooden board by the disputed way. 84.However, in that case, the plaintiffs led evidence of long public user by vehicles since the 1950s which Reyes J accepted as showing that the owners of the land on which the disputed way passed must have been aware of such traffic but did not seem to do anything to impede or hinder it. Reyes J therefore found that such owners accepted and acknowledged such vehicular passage and it was only shortly before commencement of the litigation (ie on 22nd November 1997) that one of the defendants (after an abortive earlier attempt to build a brick wall to prevent use of the disputed way) put up the Chinese notices. 85.It is clear that the factual matrix in Kong Sau Ching’s case (supra) is far different from that in the present case. Each case must be decided on its own facts. I draw no general principle from Kong Sau Ching’s case (supra) that a notice asserting private rights and warning against trespassing cannot be sufficient evidence to contradict any intention to dedicate a public way. 86.I find the Defendants have not been able to sufficiently show an arguable case of open public user of the Plaintiff’s Property as of right. In coming to such conclusion, I do not just rely on Ms Yeung’s concession made almost at the end of her oral submissions before me that there is no evidence of dedication of the Plaintiff’s Property as public right of way before mid-2006 (by which time the Plaintiff has already written to the Defendants to protest against their trespass on the Plaintiff’s Property). I refer to the discussions above as well as the analysis below. 87.The Defendants claim that from 2001 to 2006 not only have the residents of the 903 House (including themselves) and of other nearby houses used the Plaintiff’s Property and Government land without interruption, and persons who park their vehicles on Government land (presumably including persons who are visitors of the aforesaid residents) have also done so. Although not expressly stated in the 2nd Defendant’s affirmation, Ms Yeung in her written submissions contends that “the workers of various utility providers would use the [Present Route] for ingress and egress of the [Defendants’ Property] to provide respective utility services and maintenances”. 88.Mr Wong argues that it is not sufficient to show dedication of a public way just by user by the neighbours and their visitors because the Plaintiff has explained why the neighbours and their visitors were allowed on the Plaintiff’s Property. 89.I note that insofar as the residents of nearby houses and their visitors (including presumably staff of utility providers) are concerned, the Plaintiff in his Statement of Claim and affirmations state that he has made arrangements to permit them access to the Plaintiff’s Property upon payment of fees. In respect of the 903 House, the Plaintiff claims that the current residents of the upper floors and the Defendants’ predecessors-in-title have also used the Present Route under similar arrangements. 90.I further note that despite the Plaintiff’s averments in the Statement of Claim in this respect, the Defendants do not in their pleadings deny that the Plaintiff has granted licence for the residents of the upper floors of the 903 House to use the Present Route. They simply plead that they have no knowledge of the same and that such permission does not deprive the Defendants from acquiring an easement over the Present Route by way of prescription, necessity or estoppel. Further, the Defendants have not adduced any affirmation evidence to rebut such permission averred in the Statement of Claim as verified by affirmation by the Plaintiff. 91.Since the Defendants do not deny the Plaintiff has granted permission to the residents/visitors of the upper floors of the 903 House to use the Present Route, it is hard to find open public user as of right over the Present Route. In granting such permission, the Plaintiff clearly regards he has a right to do so and to control usage by certain persons over his property. This is contrary to any intention to dedicate a public way. As a corollary, since such residents find it necessary to seek the Plaintiff’s permission to cross the Plaintiff’s Property, it also shows there is no acceptance by the public of any such dedication. 92.Ms Yeung expresses doubt over the Plaintiff’s assertion of grant of permission to other residents and/or their visitors to use the Plaintiff’s Property/Paved Road because (a) the List of Fee Payments is a self-serving document and (b) the Fee Cheques and Receipts only originate from mid-2006. But since the Defendants acknowledge in their Defence they have no knowledge of the Plaintiff’s arrangements with the other residents as to user of the Paved Road and has not adduced any evidence refuting the same in the 2nd Defendant’s affirmation, I am of the view that Ms Yeung’s submissions does not raise any triable issue or arguable defence against the Plaintiff’s factual assertions of licence arrangements averred in his pleadings and deposed in his affirmations. Hong Kong Civil Procedure 2007 Vol.1 para.14/4/3 at p.175 states that ““[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to a sufficient reason for refusing to enter judgment for the plaintiff. You do not get leave to defend by putting forward a case that is all surmise and Micawberism” (per Megarry V.-C. in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] F.S.R. 298)”. 93.There is no need to consider Mr Wong’s further suggestion that the Defendants’ user of the Present Route is merely due to the Plaintiff’s tolerance and indulgence which can be withdrawn since the Defendants are unable to establish any dedication of a public way or any easement by necessity, prescription or estoppel. 94.In the circumstances, the Defendants fail to raise any triable issue or arguable case in respect of any intention on the part of the Plaintiff to dedicate the Plaintiff’s Property as a public way and of any acceptance by the public of such dedication. This is sufficient to dispose of this defence argument. 95.Although I have carefully considered Ms Yeung’s submissions, there is no need to go further to consider whether there is evidence of Government consent. 96.Ms Yeung points out that Kong Sau Ching’s case (supra) and Chan Tin Yau’s case (supra) were determined after trial. But the factual matrix of those cases is entirely different as historical and conflicting facts requiring determination by trial were adduced. Here, no triable or arguable defence arguments have been raised that require investigation and resolution by trial. IX. Conclusion 97.I therefore grant summary judgment and an injunction in favour of the Plaintiff to restrain the 1st and 2nd Defendants, their agents, servants or licensees from trespassing in any way on the Plaintiff’s Property. 98.Since I have granted the aforesaid prohibitory injunction which sufficiently protects the Plaintiff’s rights as owner of the Plaintiff’s Property, I do not consider any useful purpose will be served by granting the declaration sought (see paragraph 31 above). Neither Mr Wong nor Ms Yeung has in the course of their submissions addressed me on the scope and purpose of the declaration sought. In the circumstances, I decline to grant summary judgment of the declaratory relief sought. Since this is an Order 14 application, such relief should not be dismissed but must be left over for trial. I grant unconditional leave to defend in respect of the Plaintiff’s claim for a declaration. However, I should make clear that my decision in this respect does not turn on the underlying merits of the claim (which I have analysed above) but on the exercise of judicial discretion in relation to the granting of declaratory relief. 99.There is no reason why costs should not follow event. I therefore grant a costs order nisi that the 1st and 2nd Defendants do pay the Plaintiff costs of the summary judgment application (including all costs reserved, if any) to be taxed if not agreed. It is inappropriate to deal with costs of the action where summary judgment is granted on part only of the claim (Hong Kong Civil Procedure 2007 (supra) para.14/7/10 at p.197).
Representation: Mr Charles Wong of Messrs Lo, Wong & Tsui for the Plaintiff. Ms Vivian Yeung instructed by Messrs Yaddy Cheung & Co for the 1st and 2nd Defendants |