Wong Kwan Yee v. The Incorporated Owners of Diamond Mansion (Nos. 466 468, Lockhart Road) and Another

HCA2576/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2576 OF 2007

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Before : Deputy High Court Judge Burrell in Court

Dates of Hearing : 7-10 and 14 February 2011

Date of Judgment : 4 March 2011

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J U D G M E N T

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1.This case is about a door. The plaintiff is on one side of the door space, the 1^st defendant is on the other side. The plaintiff wants the door, the 1^st defendant doesn’t. Unfortunately, it has not been an open and shut case.

2.The door was situated at the mezzanine floor of Diamond Mansions, 468 Lockhart Road.  The ground floor and mezzanine floors of No. 468 are commercial premises, the floors above are residential.  The residents lifts come down to a small lift lobby at the mezzanine floor.  The residents would normally emerge from the lifts, turn left and then go down a staircase to get out of the building.  If, instead of turning left a resident turned right, they would be facing a marble wall.  That marble wall is the site of the door in question.  The 1^st defendant erected the marble wall in 2007, as part of a renovation programme, in front of the door.  Before the marble wall was erected the door could provide access to an office/store room above a jewelers shop at the ground floor of No. 468 Lockhart Road.  

3.The owner of the shop premises and the room above is the plaintiff.  The tenant of both the shop and the room above is Mr Chan Kin Shu (a witness for the plaintiff).  There is an internal staircase providing access between the shop and the room above.  The case against the 2^nd defendant has been discontinued.  The 1^st defendant will hereafter be referred to as “the defendant”.

4.It is the plaintiff’s primary case that the door has existed since the building was built in the mid‑1960s and that the defendant has wrongly blocked up the door space by the erection of the marble wall.

5.It was the defendant’s primary case that the door was only built in 1994 and that the plaintiff’s tenant had blocked it up, in about 2004, over two years before the defendant’s renovation of the lift lobby at the mezzanine floor had commenced. The defendant refuses to reinstate the door on the basis that the plaintiff had abandoned her rights to it by bricking it up and furthermore that there is no legal requirement for a door at that location.

6.All attempts to reach a compromise have failed.  The plaintiff wants her door back.  The defendant refuses. 

7.Given that there is one key finding of fact to be made in this case namely, when did the door opening first exist, the case has become surprisingly complex both legally and factually and the parties have become more and more entrenched in their respective positions.  Mr Benjamin Chain, counsel for the plaintiff, described the pleadings as ‘somewhat convoluted’.  I agree.  The re-re-re-re-re-re-amended statement of claim and the re-re-re-re-amended defence together with a reply and particulars run to about 50 pages of pleadings (in a case where the plaintiff claims an injunction to reinstate a door).  Nine witness statements from five witnesses were filed by the plaintiff.  One of the plaintiff’s witnesses who had made a one‑page statement was flown to Hong Kong from California for the trial.  Another nine witness statements from five defence witnesses were also filed.  Both parties have engaged the services of experts, three in total, who have all prepared reports.

8.Being an old building, over 45 years old, a variety of plans and assignments have been produced, some of which are inconsistent with each other.  To further add to the complications an issue over fire safety has emerged which has necessitated consideration of, inter alia, the Fire Safety Codes of Practice dating back to 1959.  Fire safety was never an issue when the parties blocked their respective sides of the door space in 2004/2006.  The issue arising from the parties’ actions in 2004/2006 was who blocked it up first and why.  Fire safety has, however, played a large part in the legal submissions but had played virtually no part in the factual dispute.

A BRIEF CHRONOLOGY OF KEY EVENTS

9.The uncompromising attitude of both sides has resulted in both legal and factual distractions.  Should some of the disputes between the parties as to the true facts or some of the disputes between the lawyers as to the correct law not feature in this judgment, it is due to the court’s desire to focus only on issues which will properly resolve this litigation.

10.Before I briefly set out some key dates, it is helpful to record a change in the defendant’s position which has been of assistance.  The defendant, represented by Mr Kelvin Leung, originally maintained that there was no evidence that the door existed prior to 1994.  In his final submissions however he conceded that the “most probable” version of events was that the door existed “in or about” 1966.  I agree that this is a sensible starting point based on the evidence.  It is still necessary to consider when in the mid 1960s that the door probably first appeared.  I shall address this issue after the following brief chronology :

(1) The sale and purchase agreement between the developers and the plaintiff’s predecessor in title is dated 10 September 1964.  The plan annexed to the agreement shows a gap in the wall where the door space is.

(2) The occupation permit is dated 5 January 1965.  The plan approved for the occupation permit does not show a door space at the site in issue.  It does however show a gap in the same wall but at a different site, about 4 metres closer to the front wall of the building.

(3) The assignment from the developer to the first owner is dated 16 March 1965.

(4) In 1966 the plaintiff commenced her first tenancy of the premises.  She says there was always a door at the site in question.  The defendant does not now seriously dispute that.

(5) The plaintiff purchased the premises in 1978 and began to let it out to other tenants in 1980.  She was therefore “on site” herself from 1966 to 1980.

(6) Between 1994 and 2004 the premises operated as a restaurant.  This necessitated the conversion of the door into a “fire door” or an “approved fire exit”.  The conversion was duly carried out and approved by the Building Authority.

(7) In 2004 the present tenant, Mr Chan, moved in and the premises were changed into a jewelry shop with offices and storage space at the mezzanine level above the shop.

(8) It is the plaintiff’s case that Mr Chan bricked up the door space from his side and covered it with plasterboard or plywood as a temporary security measure after the defendant’s renovation works had commenced in the lift lobby in 2006.  Mr Chan’s works also included the removal of a smoke lobby on his side of the door which had been built as part of the 1994 alterations.

(9) The defendant’s case is that the door space had been bricked up when Mr Chan moved in, in 2004 and presumably the smoke lobby had been removed at the same time.

(10) In any event, the door space was finally sealed by a marble wall on the lift lobby side in March 2007.

(11) The plaintiff issued her writ in December 2007.

(12) After the writ was issued, maybe in 2009, Mr Chan removed the plasterboard on his side of the door thus revealing the door, now covered by a steel plate over the brick wall.  It must be obvious that the removal of the painted plasterboard, which had looked like a smooth wall, was done for reasons connected with this litigation.

(13) A “view” of both premises was made by the court and interested parties on the first day of the trial.

FACTUAL FINDINGS

11.I confine my findings to three periods, mid 1960s, 1994 and 2004/7.

(a) Mid-1960s

12.At the outset I reject the defendant’s original contention that the opening only existed from 1994.  In effect, this has been conceded.  It was a sensible concession to make.  There was sufficient reliable evidence that 1994 was not the date when the door first appeared.  Four other possibilities remain :

(i) the door was a door prior to the sale and purchase agreement in September 1964;

(ii) the door was not a door at the time of the Occupation Permit in January 1965 but was a door before the first assignment in March 1965;

(iii) the door first appeared between the first assignment and the commencement of the plaintiff’s tenancy in 1966; and

(iv) the door was made by the plaintiff when she was a tenant between 1966 and 1980.

13.In any event it had been a door for nearly 40 years by 2004.  

14.The first question to be addressed is why does the sale and purchase plan show a door but the later Occupation Permit plan does not (albeit it does in a different place)?  Is it more likely that a mistake was made in inserting a door that did not exist or in omitting a door that did exist?

15.At every floor above the mezzanine floor there has always been a door at the same location which was part of the original building and appears on the original building plans.

16.There is force in the argument that it is more likely that a door did exist in 1964 because it did appear on the sale and purchase plan.  A draughtsman drawing a door on a plan which wasn’t there is difficult to imagine.  Moreover, every floor above did have a door.

17.However, the exact date only matters insofar as it is relevant to the issue of the door’s legality.  If it was part of the original development it can safety be deemed to have been legal.  If on the other hand it was opened up by a tenant or an owner after the issuance of the Occupation Permit it may not be legal.

18.Whether or not the door was built by the developer is not possible to say.  However the available evidence does enable me to proceed on the basis that, and I do so find, the opening existed at the time of the first assignment in March 1965.  Further, that it remained a door until 2004 (the events of 2004-2007 I shall deal with later).  I also accept the evidence that since the mid 1960s the door was used.  It may not have been a busy access but it was in regular use by the occupants of the plaintiff’s premises both during her tenancy and by her tenants during her ownership.

19.The defence case depends on a finding that, whenever it first appeared, the door was an illegal structure. The burden of proof on this issue rests on the defendant.  Reliance is placed on section 17(6) of the 1976 Fire Escape Code of Practice (similar provisions appears in the 1959 and 1996 Codes) :

“(6) The exit route from any room, flat or storey to any part of a staircase which serves a storey more than 30m above the level of the ground shall be through a lobby. Such lobby shall be either

(a) a protected lobby, or

(b) a lobby open to the external air on at least two sides.

Provided that this paragraph shall not apply to a staircase to which access is from a balcony approach.”

20.The defence submit that prior to 1994 there was no “such lobby”.  The door was therefore illegal.

21.I do not think that the defendant is able to discharge the burden of proof on it on this issue.  Given the confusing and conflicting plans the court is not able to determine the legality of a door as it was 17 years ago.  Two matters are relevant to this conclusion.

22.Firstly, prior to 1994 the door was never required as an ‘exit route’.  Prior to 1994 if an authorized person from the Building Authority had been asked – “is that a fire door?” the answer would probably have been in the negative.  It was only in 1994 when the premises were turned into a restaurant that a fire exit was “required”.  It was always capable of being a fire door but only required as one after 1994.  Thus it was not an “exit route” for the purpose of the 1976 Code of Practice.

23.Secondly, the building works that took place in 1994 support the plaintiff’s position, infra.

(b) 1994

24.In 1994 an application for a restaurant licence was made.  Building alterations to convert the door into a fire exit were submitted and approved.  The work was done and approved and the licence was granted.

25.I accept the argument that if the 1994 application had been, in effect, an application to alter an illegal structure into a fire exit it would not have been approved without requiring reinstatement.  An order under section 24 of the Buildings Ordinance requiring such removal or reinstatement would have been made. 

26.Thus, as from 1994, but not before, it can be said with certainty that the opening was an approved fire exit as recorded on the structural plans.

27.Whether the exit remains as a fire door, regardless of the nature of the user of the premises thereafter, is difficult to answer.  Mr Rembert Lai Kin Sin, the expert called by the defence says not.  He says :

“Thus, if Shop A and the mezzanine floor therein were occupied and used as a restaurant with that particular layout, the Opening could be a fire exit. If Shop A and the mezzanine floor was used as a jewelry and watch shop, the Opening does not constitute a fire exit.

Section 18(2A) of the Building Management Ordinance: It is pleaded in the Re-re-re-re-amended Statement of Claim that the 1^st Defendant was in contravention of paragraph 3.2 of the Code of Practice on Building Management and Maintenance in that the works carried out by the 1^st Defendant blocked and/or obstructed the fire exit of the mezzanine floor.

Paragrpah 3.2 of the Code concerns abatement of fire hazards.  I have given my opinion above that the Opening does not constitute a fire exit when Shop A is used as a jewelry and watch shop.  In the premises, the works done by the 1^st Defendant is not in contravention of paragraph 3.2 of the Code.”

As will be seen later, however, I have determined that it is more likely than not that the defendant was not the first person to block up the space. 

28.On the balance of probabilities “illegality” of the opening has not been established.

(c) 2004-2007

29.After 10 years as a restaurant (1994-2004) Mr Chan King Shu, the jeweler, moved in.  The defendant’s case is that he blocked up the door in 2004.  Accordingly whatever rights may have been acquired by the plaintiff by 2004 had been abandoned by the act of sealing up.

30.The plaintiff’s case is that Mr Chan’s sealing up was only done as a temporary measure for reasons of security after the defendant’s renovations had commenced in 2006.

31.On issues of fact I prefer the defendant’s version but on matters of law I do not.

32.Mr Chan commenced his jewelry business in 2004.  The door to the lift lobby from his mezzanine floor office/storeroom was locked by an iron bar on his side. Any security issues that may have been voiced by his insurers would have been voiced when he commenced his business not when renovation work started in the lobby two years later.

33.He produced a letter from his insurers.  The letter was a standard undated letter of advice about security measures.  It made no specific recommendations about the door.  It is more likely that he received it when he commenced his business in 2004 when first taking out insurance rather than out of the blue when renovations were going on next door.

34.His evidence was that the works he had carried out were to be temporary whilst the renovation works were going on.  The evidence suggested that a period of a few months was anticipated.  The “temporary” measures he took were to built a brick wall from floor to ceiling, build a false beam at the top of the wall (much wider than the door), box in surrounding pipe work with plywood or plasterboard and repaint the newly created surface so that the finished product looked like a smooth wall with no hint of there being a door behind it.  He made the point that he had not re-plastered the material covering the door (presumably in support of his contention that the works were temporary).  However, as seen during the court’s view on 7 February 2011, there was evidence of broken plaster around the door when it was removed between 2009-10.

35.The work done by Mr Chan had all the hallmarks of a permanent rather than temporary measure.  His “security” concerns would have stemmed from 2004 and also would be permanent concerns rather than temporary concerns.  An upstairs door into a lift lobby might cause concern to a jewelry store owner regardless of whether the lift lobby next door was being renovated or not.  It is also more likely than not that renovation works concerning the conversion of the premises from a restaurant to an office would have been done in 2004 and that the works at the door space would have been done at the same time.

36.Up to the time he gave oral evidence Mr Chan was able to produce no documents in support of the work being done in late 2006/7 rather than early 2004; no invoices, no quotations, no receipts, no correspondence, no bank statements, no insurance details.  It is surprising that a business man, running a jewelry shop, would have no documents at all concerning the renovation of his business premises.  As a result of being requested to look for such evidence he produced, the next day, a single receipt from a decoration company dated September 2006.  Unusually, the receipt contained a summary of both the work that had been done and work that had not been done (e.g. “plastering not included”).  It also included the address of the premises.  In short, it included details one might expect to see on a quotation but not on a simple receipt for money paid.  Those details moreover, had been the subject of the previous days evidence.

37.I concluded that the receipt lacked the degree of authenticity needed for any weight to be attached to it.

38.A defence witness Madam Chow Kwai Lan, the chairperson of the I.O, testified that before the renovation work started in the lift lobby in 2006 she had looked through the glass window in the upper part of the door and seen a brick wall on the other side.  This had been the situation for some time.  I found her to be a credible witness and I accepted this testimony.

39.I reject the proposition that Mr Chan erected a temporary wall in late 2006. It is probable that he put the wall up without the plaintiff’s knowledge.  It is equally probable that he took it down again in 2009/10 at the plaintiff’s request in connection with this case. 

40.In any event the plaintiff was not slow to raise complaints about the marble wall.  She complained in late 2007 and has steadfastly maintained her objection since.  Her failure to object to Mr Chan’s sealing of the door space is likely to have been as a result of lack of knowledge.

41.Thus, I do not think that the plaintiff has lost the easement she had acquired.  Even if the ‘abandonment’ was prompted by her own tenant’s conduct it does not affect her rights, in the context of the facts of this case.  I have accepted that there was sufficient use from 1965 to 2004 to establish the right.  In any event, in context, the period from 2004 to 2006 is relatively short compared to the 40 years prior thereto.  Gale on Easements (18^th Edition) states :

“…A presumption of abandonment will arise where there are circumstances adverse to the user and sufficient to explain the non‑user, combined with a substantial length of time during which the dominant owner has acquiesced in that state of affairs or where the dominant owner does some act clearly indicating the firm intention that neither he nor any successor in title of his should thereafter make use of the easement. It has been said that abandonment is not to be lightly inferred: owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use of it. Further, if the dominant owner does not have any present need to exercise his right and does not object to conduct of the servient owner which temporarily renders the exercise of those rights difficult or impossible, it would be undesirable if such general and good neighbourly conduct could not be indulged in for fear of losing those rights for all time.” [Emphasis added]

42.I consider the plaintiff to be more desirous of claiming her rights than she is of claiming her door back.  They are not the same thing.  She regards the installation of the marble wall as a breach of her rights.  She is primarily asking the court to declare that she is in the right.  The lack of a door for the last 6-7 years has been disadvantageous to no one.  Since 2009 Mr Chan has removed the plasterboard/plywood and has reinforced his brick wall with a steel plate.  The plaintiff is happy with her tenant for the time being and said in evidence that she would be willing to renew the tenancy in 2012/13 if a reasonable rent was agreed.  There are no current plans for it to become a restaurant again.

43.There are three final matters which require mention.

1) The caretaker issue

44.Sitting at a desk in front of the marble wall covering the door is the I.O’s caretaker.  He and his predecessors have been there or nearby since the 1970s. When it was an ordinary door he sat in front of it; when it was a fire door he sat in front of it; when it was a marble wall he sat in front of it.

45.Whether he was on duty when the Building Authority approved the fire door in 1994 we do not know.  In any event the door space has been there for about 45 years and the caretaker has sat in the lobby for over 30 years.

46.The defence submit that he cannot sit anywhere else and he should not sit in front of a fire door.

47.I regard the caretaker issue as a red herring.  The available space in this lift lobby is undoubtedly tight.  It is a very small lobby.  However it is possible to walk passed him, he is a partial obstruction not a barrier.  He does not have to sit with his back flush against the wall and he could have a smaller desk.  Moreover, the door was there before he was.  Finally, the “caretaker” issue was not pleaded.  The presence of the caretaker is not a relevant consideration in this case.

2) Defence final submission partially misconceived

48.Much of Mr Leung’s final submission was on the basis that the plaintiff claims the right to use the door as a fire exit.  This is not the plaintiff’s case.  The plaintiff seeks a declaration that she has acquired a right of way through the door and a mandatory injunction to reinstate it.  It could be a fire door in the future but would have to be reinstated as such in compliance with all requirements and conditions as laid down by the Building Authority and the Fire Department.  If the user of the plaintiff’s premises changes to a restaurant again it will have to be a fire door.  It is also likely (see below) that any reinstatement, whether for a restaurant or not, will require a fire door. 

3) The Building Authority’s position

49.The plaintiff received the following letter from the Building Authority in June 2009 :

“ It has been brought to my attention that the following works have been carried out in or at the above premises :

(i) Blocking up of one exit door of protected lobby at M/F.

2. For the said building works :

(a) As a result of the building works at item (i) above, Regulation 41(1) of the Building (Planning) Regulations, which requires the building to be provided with such means of escape in case of emergency as required by the intended use of the building, has been contravened.

3. In exercise of the powers vested in me under section 24(1) of the Building Ordinance, I hereby order you to :-

(a) demolish the said building works described under item (i) above; and

(b) reinstate the parts of the building so affected by the building works under item (i) above in accordance with the plans approved by the Building Authority.

Adequate precautionary measures to ensure public safety should be provided prior to and during the course of works.

4. You are required to commence the works ordered by me in paragraph 3 above within thirty days and complete such works within sixty days of the date of this order, all to the satisfaction of the Building Authority.

…”

50.In November 2009 the Fire Services wrote as follows :

“ An officer of this Department carried out an inspection to the premises on 20.10.2009. At the time of inspection, the following irregularities were noted :-

i) One exit door of protected lobby at M/F, 468 was blocked up. As the case involved structural alteration of the building, it is under the jurisdiction of the Building Department (BD). An enquiry made of the BD revealed that an ‘Order by the Building Authority under section 24(1)’ had been issued to the responsible person on 4.6.2009 for demolition of the unauthorized building works and reinstatement of the parts of the building so affected according to the approved building plans.

…”

51.I understand that no follow-up action has been taken pending the outcome of the litigation.  It seems therefore that the re-instatement has not been regarded as urgent by the Building Authority.

52.As will be seen below under “Relief” the Building Authority may now enforce its section 24(1) notice.

CONCLUSION

53.My primary finding is that the door existed and was used, perhaps sparingly but sufficiently for legal purposes, from 1965 to 2004.  It has not been proved to have been an illegal structure and the plaintiff has established an easement by virtue of nearly 40 years use as a door.  She did not abandon her right to the easement in 2004 when the door was probably first bricked up.  Her complaint about the defendant’s actions was sufficiently soon after she became aware of either side’s acts of blocking up.

54.“Do I have a right to have a door in that location?”  This is the simple question which sparked off this litigation.  It is now answered in the affirmative.

RELIEF

55.The plaintiff seeks three forms of relief; a declaration that the easement exists, a mandatory injunction to reinstate the door and damages.  In reverse order :

(a) Damages

56.This head of claim is based on the plaintiff’s evidence that she has not charged Mr Chan his management fee of $1,146 a month since 2007 because he had lost the use of the door.

57.In my judgment this head of claim has been contrived.  If the arrangement was truly made it was probably done to provide the plaintiff with evidence of financial loss.

58.Documents including cheques and receipts were produced in support but I do not accept that this was a genuine loss flowing from the defendant’s wrongdoing.  In any event Mr Chan’s loss of the use of the door arose from his own conduct.

(b) Mandatory injunction

59.The plaintiff has succeeded in establishing her right.  Since 2009 the enforcement of that right has been in the hands of the Building Authority and Fire Services.  In my judgment that is where it should remain (now that this court has confirmed her right).  I do not consider it merited to force the defendant to re-instate the door at its expense.  In view of my finding I think it better for the Building Authority to ensure the plaintiff’s compliance with the section 24 notice.

(c) Declaration

60.A declaration that the plaintiff has acquired a right of way from the mezzanine floor to the lift lobby at the disputed site is granted.  The court’s determination is confined to the confirmation that she had acquired a right of way.  I am not satisfied that it was the conduct of the defendant which initially blocked that right.  For the avoidance of doubt I further declare that no legal grounds exist for either party to oppose the section 24 notice under the Buildings Ordinance, Cap. 123.

COSTS

61.The plaintiff has succeeded in persuading the court to grant a declaration.  Her damages claim has failed and the court has declined the plea for mandatory reinstatement.  The declaration confirms the plaintiff’s rights but the evidence has not enabled me to conclude on a balance of probabilities that it was the defendant who took away that right.  It would not be right for the plaintiff to be awarded all of her costs.  It is a case where the conduct of both sides should be considered.

62.There are also aspects of the defence which merit adverse criticism.  It was hopeless to argue that there was no door at all until 1994.  Also relying on the presence of the caretaker in support of the argument that the door should not be re-instated was misplaced.

63.The defendant also stated in support of its case that it had sent out a questionnaire to 58 tenants under I.O.  15 were returned of which only three said they wanted a door.  In truth all that demonstrated was a remarkable lack of interest in the door.  Moreover about half of the tenants to whom the questionnaire was sent lived in the adjoining block and thus had no real interest in the outcome of the dispute.

64.Having considered all such matters I make a costs order nisi that the defendants pay one-third of the plaintiff’s costs.

Mr Benjamin Chain, Ms Karen Cheung, instructed by  Messrs P.H. Chin & Co., for the Plaintiff

Mr Kelvin Leung, instructed by Messrs Pansy Leung Tang & Chua,  for the 1^st Defendant

Please refer to CACV59/2011 for the relevant appeal(s) to the Court of Appeal.