China Merchants Kin Swiss Transportation Co Ltd and Another v. Treasure Wise Ltd and Others

HCA 344/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 344 OF 2007

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BETWEEN

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Before : Hon Chung J in Court

Date of Hearing : 23 November 2007

Date of Handing Down Ruling : 11 January 2008

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RULING ON ADMISSIBILITY

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Introduction

1.This is the plaintiffs’ application to exclude certain parts of the expert evidence which the first defendant (“D1”) seeks to adduce at the trial of this action.  Unless otherwise stated, the evidence objected to will be called “the disputed expert evidence” below for convenience.  The plaintiffs have helpfully set out the disputed expert evidence in Appendix A which is attached to their written submissions for this application.

2.This application is made in the context of an action which is based on a right of way by express grant.  It is the plaintiffs’ case a right of way, which is binding on the parties herein, has been so granted in 1988 (see para. 10 and 11 below).

3.The first line of defence is that, as a matter of law, the purported grant of a right of way is invalid.

4.The other main line of defence appears in para. 8 of the Defence:-

“

… having regard to the relevant circumstances, including the matters pleaded in … [para. 6] above, the physical characteristics of the Fourth Property and the surrounding land at the time of and since the Deed of Partition, the physical extent and mode of user of the Fourth Property, the Fourth Property … is not catered for container-lorry traffic.  Therefore, even if … the Plaintiffs were entitled to a right of way over the Fourth Property, the scope and extent of such right of way does not include container lorry traffic” (emphasis supplied).

5.The facts relied upon in support of the defence can be summarised as follows:-

(a)	the express grant is denied.  As at the date of the deed of partition (see para. 8 to 10 below), the physical condition of the land was such that it could not be used for access (or at least vehicular access) to Castle Peak Road;
(b)	further changes took place after the date of the deed of partition.  In particular, a slope was formed rendering access (or at least vehicular access) to Castle Peak Road impossible;
(c)	after D1 became an owner of a piece of land near the plaintiffs’ piece of land:-
	(1)	D1 assigned parts of its land to other owners for the purpose of developing the same into small residential houses;
	(2)	D1 undertook to give those owners and occupants access to those houses;
	(3)	in mid-2006, D1 constructed a new access, which was not designed or built for use by lorries or long or heavy vehicles;
	(4)	in late-2006, D1 introduced reasonable traffic control and management measures at the Fourth Property;
(d)	the plaintiffs have been using other routes of access between their land and Castle Peak Road;
(e)	container-lorry traffic constitutes improper and/or excessive user and results in interference and/or nuisance and/or hazard to D1 and residents and occupants in the neighbourhood;
(f)	the plaintiffs behaved oppressively.

The new access referred to in para. 5(c)(3) above has been called “the New Access” by the parties.  I shall use the same abbreviation herein.

6.D1 also counterclaims (among other relief) for declarations that:-

(1)	the plaintiffs do not have any right of way;
(2)	the plaintiffs’ right of way (if any) does not extend to access by vehicles heavier than 5.5 metric tons or longer than 7 metres (or 11 metres), except by special arrangement with, and under the supervision of, D1.

Background

7.The background leading to this action (and hence this application) can be stated shortly as follows.

8.In 1988, a relatively large piece of land was purchased by 3 companies.  It was located generally to the west of, and quite close to, Castle Peak Road (which in those days was a major trunk road linking the areas in the West New Territories to Hong Kong’s border with the mainland and to the urban areas in Hong Kong).

9.It is undisputed that that piece of land consisted principally of farmland and fish ponds in around 1988.

10.On the same date as the date of purchase, the 3 new co-owners partitioned the piece of land among themselves, but leaving a strip of land still co-owned (the last-mentioned land was called the “Fourth Property” in the deed of partition).

11.A covenant in the deed of partition, which concerns the Fourth Property, reads:-

“

… the parties hereto … GRANT unto each others a full uninterrupted right of way for each others and the owners and occupiers for the time being of ALL THAT the Fourth Property his or their tenants visitors workmen and other persons authorized … in connection with the proper use and enjoyment of the [partitioned portions of land] … at all times to go pass and repass with or without vehicles over along and upon the Fourth Property … ”.

This covenant naturally forms the backbone of the plaintiffs’ case.

12.A portion of the partitioned land was sold to the first plaintiff (“P1”) by one of the 3 co-owners shortly after the said purchase.

13.There is no dispute from about 1989 onwards, the said piece of land (including the portion purchased by P1) was used as a container or container truck yard.  In relation to P1’s land (which was transferred to the second plaintiff (“P2”) in 1997), that remains the case up to today.

14.D1 purchased a portion of the said piece of land from the same co-owner as P1’s in 1997.  It is accepted D1’s land was intended to be developed into small residential houses.

15.Further, by reason of the conveyancing history, the plaintiffs and D1 share the same predecessor-in-title.

16.The plaintiffs considered D1’s conduct since about 2006 to have created obstacles/obstructions to their right of access by container trucks between their land and Castle Peak Road.  They commenced this action in February 2007.

Parties’ Case in this Application

17.Voluminous expert evidence has been filed by the parties (and included in the trial bundles). 

18.The plaintiffs’ case in this application is that the disputed expert evidence is irrelevant and therefore inadmissible.  D1 contends otherwise and submits that it is relevant to the following:-

(1)	the suitability of the road at the time of (and immediately before) the date of the deed of partition;
(2)	the suitability of the road since then up to today.

Suitability was assessed by the experts from the right of way’s dimensions, routing (or layout) as well as the physical construction (and strength) of the road surface.

19.The plaintiffs do not seek to challenge the admissibility of the expert evidence relating to para. 18(1) above.  They only argue that the expert evidence relating to para. 18(2) is irrelevant.

20.The above stance of the plaintiffs results from their acceptance that the scope of the right of way is a matter of construction of the covenant.  As was stated in Gale on Easements (2002) 17^th Ed.:-

“

In the case of an express grant the language of the instrument must be referred to. … It is for the court to construe that language in the light of the circumstances.  These may include … the physical characteristics of the land at the date of the grant which may help determine both the physical extent of the servient land and the mode of user intended.  It has been said that the question of construction must always be approached by reading the text of the grant in a practical way, looking at the geographical and commercial realities … ” (emphasis supplied) (para. 9-14);

“

It seems that, subject to any qualifying words … the authorized mode or quality of user … is as general as the physical capacity of the locus in quo at the time of the grant will admit, unless in any particular case (which must be rare) some limitation on mode of user can be gathered from the surrounding circumstances … ” (emphasis supplied) (para. 9-15).

Test for Determining “Relevance”

21.It is trite law irrelevant evidence is inadmissible.  Thus, the learned authors of Cross & Tapper on Evidence (2004) 10^th Ed. said:-

“	The main general rule governing the entire subject is that all evidence which is sufficiently relevant to an issue before the court is admissible and all that is irrelevant, or insufficiently relevant, should be excluded” (p. 70).

The rule is necessary if only for the efficient administration of justice; lest the magnitude of legal proceedings may become unmanageable.

22.The parties have not expressly stated what the test for determining the relevance of evidence should be.  For present purpose, I consider the word “relevance” to mean that there is:-

“	… a logical relationship between a piece of information and a proposition which requires proof or disproof”: Hodgkinson: Expert Evidence Law and Practice (1990) p. 4.

There is no need for a piece of evidence to have a direct link to or impact on an issue but it must:-

“	… tend, either directly or indirectly, to prove or disprove a fact in issue”: Phipson on Evidence (2005) 16th Ed., para. 7-03.

Relevance of “Post-Grant” Expert Evidence

23.D1 argues that the disputed expert evidence concerning the post-1988 physical conditions of the right of way is relevant to the following issues:-

(a)	it must have been the reasonably contemplation of the parties to the deed of partition that the authorized user must be proper and lawful and accords with the requisite standards applicable from time to time.  Expert evidence is relevant to this aspect;
(b)	whether there has been excessive user which results in nuisance to and interference with the plaintiffs’ neighbours;
(c)	the injunction sought by the plaintiffs is a discretionary relief.  Expert evidence is also relevant to this aspect.

24.With respect to D1, the proposition summarized in para. 23(a) above is unfounded.  The correct legal principles have rather been set out in the passages in Gale on Easement which have been quoted in para. 20 above.  The proposition put forth by D1 may be worthy of consideration in some other factual context, but it does not arise in the factual context of this action (see para. 8 to 13 above).

25.The proposition set out in para. 23(b) above has a superficial attractiveness.  But it cannot withstand further analysis.

26.If as a matter of construction the express grant relied upon by the plaintiffs permits vehicular access including heavy and long vehicles of exceeding 5.5 metric tons and 7 metres (or even 11 metres) long, logically there cannot be any excessive user.  On the other hand, if the express grant does not permit such use as a matter of construction, there is no need to consider what in essence is the same matter but under the label of excessive user: see, for example, Jelbert v. Davis [1968] 1 WLR 589, 595E.

27.Further, it must be remembered that D1 has accepted that it is bound by the covenant quoted in para. 11 above.  In law it may be possible for third part(ies) not so bound (such as neighbours) to complain about nuisance, trespass or other wrongful acts.  But I do not think that kind of complaint can be made by someone in the position of D1.

28.That leaves the argument set out in para. 23(c) above.  D1 does not seek to argue that, if the court should conclude in the plaintiffs’ favour on liability, the plaintiffs should somehow be denied the injunctive relief sought herein altogether.  The argument is that, even if the court should grant the relief, it should be subject to various conditions.

29.D1 claims that para. 6(8) to (10) and 24(3)(b) of the Defence and para. (2)(c) of the prayer for relief permit such argument to be raised.  But para. 6(8) to (10) merely set out the facts in support of the main line of defence (see para. 5(c)(3) and (4) above for a summary).  For the reasons given in para. 24 and 26 above and 30 below, para. 24(3)(b) and (2)(c) are difficult to comprehend.  In any event, no sufficient factual basis has been pleaded in support of these.

30.As stated above, the main line of defence has been quoted in para. 4 above.  It is simply that container-lorry traffic “is not catered for” and the scope and extent of the right of way “does not include” such traffic.  The argument is therefore not open to D1 on its pleaded case.

31.In any event, as the plaintiffs correctly point out, the portion of the land originally conveyed to D1 is not yet put to actual residential use.  There is simply no information regarding the extent to which the Fourth Property (or, more precisely, the route which the plaintiffs have been using since about 1988) may also be used by D1 and/or its successors-in-title.  The expert reports do not contain any such facts.  The reasonableness of D1’s traffic control measures cannot be assessed from such perspective.

32.D1 also relies on the Court of Appeal’s decision in Prosperous Tone Ltd. v. Pearl Fame Development Ltd., CACV 1128/2001, unrep. (6 March 2002) in support of its argument that, even if the user is within the scope of the right of way, it is still necessary to consider whether the user is excessive (see para. 25 to 29 of the judgment).

33.That argument is misconceived.  The facts in Prosperous Tone involved an access ramp (which is a structure constructed over, and resting on, a caisson and retaining wall), rather than a right of way which rested purely on the ground itself.  Hence, it was necessary to consider if there was excessive loading on the ramp.  That decision therefore cannot advance D1’s argument here because the route the plaintiffs have been using rests on the ground itself.

34.I agree with the plaintiffs that neither the New Access, nor the ramp constructed by D1 over a portion of the route used by the plaintiffs, can assist D1’s arguments either.

35.Finally, because this action is yet to be tried, it is undesirable to further comment on the counterclaim (or the relief sought thereby).  Suffice it to say I have considered it (see, for example, para. 6 and 29 to 31 above) before arriving at the conclusion herein.

Additional Expert Evidence

36.D1 seeks to adduce additional expert evidence.  This suffers from the same type of irrelevance set out above.

Conclusion

37.As stated above, the plaintiffs have helpfully set out the parts of the expert evidence which should be ruled inadmissible in Appendix A.

38.D1 has not disputed the accuracy of that document.

39.By virtue of the matters set out above, I rule that only those parts of the expert evidence to which the plaintiffs has raised no objection should be admitted.  D1’s application for leave to adduce additional expert evidence is permitted only insofar as it accords with the above conclusion.

Mr Patrick Fung, SC leading Mr Johnny Ma, instructed by Messrs Wilkinson & Grist, for the Plaintiffs

Mr Denis Chang, SC leading Ms Jessica Ng, instructed by Messrs Kao, Lee & Yip, for the 1^st Defendant