Cheung Yuk Ying v. The Personal Representative of Lo Koon Fuk As Manager of Loa Tsit (or Tsip) Heung Tso and Another

HCA 1127/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1127 OF 2006

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J U D G M E N T

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THE PARTIES

1.The plaintiff, Cheung Yuk Ying, is the owner of the 1^st floor of a 3-storey village house at Section A of Lot 2951 of DD 111 (“The Plaintiff’s Land”) having acquired the 1^st floor thereof in 1999.  Her brother and sister, Cheung Ka Wah Danny and Cheung Suk Ying (respectively D2 and D3 by counterclaim) has since acquired the other two stories thereof.  All three of them will be referred to collectively as “the Cheungs”.

2.The 1^st defendant is the personal representative of the Manager of Loa Tsit (or Tsip) Heung Tso (“the Tso”) and the 2^nd defendant is sued in his capacity as someone who held himself out as being the representative of the Tso.

3.Basically, the plaintiff’s claim is against the Tso.  The plaintiff’s claim is essentially for a declaration that the plaintiff is entitled to a right of way on a footpath across the land belonging to the Tso and an injunction to restrain the Tso from hindering or obstructing the free use by the plaintiff of that right of way.

4.There is also a counterclaim by the Tso against the Cheungs essentially for damages for trespassing on the land and property of the Tso with related declarations and injunctions.

BACKGROUND TO THE DISPUTE

5.To better understand the dispute between the parties, a Lot Index Plan which was annexed to the Statement of Claim herein is annexed hereto for ease of reference.

6.The Plaintiff’s Land which is triangular in shape is shown on the Lot Index Plan coloured pink.

7.At all material times the Tso was the registered owner of Section A of Lot No 2172 in DD 111(“the Defendants’ Land”) which is comprised of the village of Wang Toi Shan Lo Uk Tsuen.  The Defendant’s Land is adjacent to the Plaintiff’s Land being on the northwest side of the Plaintiff’s Land.

8.It can be seen on the Lot Index Plan that the Plaintiff’s Land is entirely landlocked.

9.On the northeast side of the Plaintiff’s Land is Section C of Lot 2951 in DD 111 which is coloured green on the Lot Index Plan.

10.On the southeast side of the Plaintiff’s Land is Section A of Lot 2957 in DD 111 which is coloured purple on the Lot Index Plan.

11.On the entire northwest side of the Plaintiff’s Land is the Defendant’s Land which is coloured yellow on the Lot Index Plan.

12.After acquiring the 1^st floor of the village house on the Plaintiff’s Land, the plaintiff has been making use of a footpath (“the Way”) which connects the gate of the village house on the Plaintiff’s Land with a public footpath (“The Public Footpath”).  The Public Footpath runs along the side of the Defendant’s Land and then on public land and leads all the way out to the Kam Tin Highway to the south and to Lo Uk Tsuen to the north.

13.The dispute in this case relates only to the Way which is a footpath of some 20 metres in length.

14.On the Lot Index Plan, the Way is marked between point ‘C’ and point ‘D’, point C being the point at which the Way joins up with the Public Footpath and point D being the entrance gate to the Plaintiff’s Land.

15.Point B on the Lot Index Plan marks the point where the Public Footpath reaches the southern end of the Defendant’s Land and point A where the public footpath adjoins Kam Tin Highway.  Between points A and B the Public Footpath runs on public land.

16.It is the plaintiff’s case that well before she acquired the 1^st floor of the village house on the Plaintiff’s land, her predecessors in title had been using the Way as an access and egress from the Plaintiff’s Land to and from the Public Footpath which adjoins Kam Tin Highway.  It is by using the Way and the Public Footpath that the plaintiff gains pedestrian access to Kam Tin Highway.

17.Since she acquired the 1^st floor of the village house on the Plaintiff’s Land in 1999 until about January 2004, she had no difficulty using the Way as a means of access and egress from the Plaintiff’s Land onto Kam Tin Highway.

18.In about January 2004, Law Kwong Man (“Law”) together with some 10 villagers from Lo Uk Tsuen went to the Plaintiff’s Land and demanded from the plaintiff an annual fee of HK$2,500 for using the Way saying words to the effect that people not being members of the Tso would have to pay such fees.

19.In a further phone conversation with the plaintiff’s sister-in-law a few days later, Law again demanded payment of such fees for using the Way.

20.On or about 6 March 2004, Law, on behalf of the Tso, posted a notice outside the entrance gate to the Plaintiff’s Land to the effect that wire fencing would be erected outside the entrance gate to the Plaintiff’s Land.

21.Some time at the end of March or early April 2004, a wire fence of some 6 feet was erected by the defendants on the land belonging to the Tso just outside the entrance gate of the Plaintiff’s Land and which had the effect of hindering or obstructing access from the Plaintiff’s Land to the Way.

22.On or about 12 April 2004, a complaint was made to the police in respect of the erection of the fence outside the entrance gate to the Plaintiff’s Land, and under the supervision of the police, part of the wire fence immediately outside the entrance gate to the Plaintiff’s Land was cut away to enable access from the entrance gate to the Way.

23.In early November 2004, the defendants reconstructed the wire fence which had been cut away thus again hindering or obstructing access or egress to or from the entrance gate of the Plaintiff’s Land to the Way.

24.The plaintiff issued the present proceedings and at the same time applied for an interlocutory injunction against the defendants. On 22 September 2006, Deputy High Court Judge Carlson granted the interlocutory injunction sought by the plaintiff upon various undertakings given by the plaintiff enjoining the defendants to remove all those parts of the fencing which restricted or prevented or otherwise interfered with the reasonable enjoyment by the plaintiff of the Way.

PLAINTIFF’S CASE

25.The plaintiff’s case is that the Way is an easement enjoyed by the Plaintiff’s Land over the Defendant’s Land and was created by:

(1)   Implication of law in that from years long before and at the time of (a) the Block Crown Lease, or alternatively (b) the grant of the New Government Lease on 1 July 1973 by virtue of s 4 of the New Territories (Renewable Government Leases) Ordinance, or alternatively (c) the extension of the Government Lease on 27 June 1997 by virtue of sections 6 and 7 of the New Territories Leases (Extension) Ordinance, the Plaintiff’s Land had continuously and apparently enjoyed and used the accommodation afforded by the Way for access to and egress from the public highway now known as Kam Tin Highway;

(2)   Implication of law because at the time of the assignment of the 1^st floor of the village house on the Plaintiff’s land to the plaintiff on 15 June 1999, the Way was used as of right as accommodating the Plaintiff’s Land and was appertaining to or reputed to be appertaining to the Plaintiff’s Land, so that by virtue of section 16 of the Conveyancing and Property Ordinance, the assignment to the plaintiff had operated to assign to the plaintiff with the Plaintiff’s Land an easement or the right to use the Way;

(3)   The principles of prescription in that the plaintiff’s predecessor in title had from time to time immemorial or for over 40 years, alternatively for over 20 years, enjoyed the Way openly and as of right;

(4)   Estoppel because the construction of the village house on the Plaintiff’s Land with the positioning of the entrance gate being accommodated by the Way was allowed by the defendants or had never met with any objection from the defendants; and

(5)   As a matter of necessity.

THE DEFENCE

26.By way of defence, the defendants say that apart from the Way, there was a track road (“the Track Road”) to the east of the Plaintiff’s Land and an alternate track road (“the Alternate Track Road”) located between the Plaintiff’s Land and the Track Road.  Between 1995 until late 1999, the then owners and occupiers of the Plaintiff’s Land had all used the Track Road and Alternate Track Road for access from and egress to Kam Tin Road from the Plaintiff’s Land.

27.It is the defence case that the plaintiff could use these routes for access and egress to Kam Tin Road.

28.Instead, it is said by the defendants, in late 1999 the plaintiff erected a low wall on the west side of the Plaintiff’s land along the boundary of the Defendants’ Land and that an iron gate was installed in the middle of the low wall as an opening from the Plaintiff’s Land to the Defendants’ Land.  All this was done by the plaintiff without any consent of the defendants or the Tso or any of its members to use any part of the Defendnats’ Land as a right of way and when the plaintiff knew or ought to have known that they would be trespassing on the Defendants’ Land.

29.The defendants further deny that any easement or right of way had ever been created over the Way in favour of the Plaintiff’s Land and that the positioning of the entrance gate in the Plaintiff’s Land and their discontinuation in using the Track Road and Alternate Track Road was the plaintiff’s own choice.

30.The defendants further deny that the Plaintiff’s Land was land-locked and also deny that the Way had ever existed at all.

31.While admitting that the Cheungs each hold a one third interest in the Plaintiff’s Land and the village house erected thereon having acquired same from the previous owner, Law Pui Chun Janet, the defendants say they have no knowledge as to the contents of the assignments thereto.

32.As for the events which took place in 2004, it is the defendants’ case that at a meeting held outside the Plaintiff’s Land between the plaintiff and the Cheungs on the one part and certain of the Tso members from the Lo clan, the Tso members informed the plaintiff and the Cheungs that if they wanted to pave and use a pathway on the Defendants’ Land, they should enter a licence agreement with the Tso and pay a nominal rent of $2,500 per annum.

DEFENDANTS’ COUNTERCLAIM

33.By way of counterclaim, the defendants say that on a day unknown to the defendants, the plaintiff and/or the Cheungs have, without the consent of the Tso or its members laid two water pipes and a sewage pipe underneath the Defendants’ Land and connected the sewage pipe to a nearby nullah which is on the west side of the Defendants’ Land which constitute a trespass to the Defendants’ Land thereby causing the Tso and its members to suffer loss and damage.

34.Despite a demand to remove the water pipes and sewage pipe by letter dated 22 December 2004 from the defendants’ solicitors to the solicitors acting for the plaintiff and/or the Cheungs, the plaintiff and/or the Cheungs have failed to remove the water pipes and sewage pipe.

35.The defendants ask for an injunction as well as damages for such trespass to the Defendants’ Land.

DEFENCE TO THE COUNTERCLAIM

36.By way of defence to the counterclaim, the Cheungs:

(1)   Deny that the defendants have suffered any loss or damage;

(2)   Say that the water pipes and sewage pipe were already in existence when the plaintiff and/or the Cheungs acquired the Plaintiffs’ Land and were not installed by them;

(3)   The water pipes were either installed by the developer of the village house or by the Water Supplies Department with the consent/acquiescence of the defendants;

(4)   The water pipes being connected to the meters of the Water Supplies Department which have been serving other lots in the area and not just the Plaintiff’s Land, are not the properties of the plaintiff and/or the Cheungs but the properties of the Water Supplies Department;

(5)   The sewage pipe was not installed by the plaintiff and/or the Cheungs but by one Madam Tang from Lot 2956 RP as a result of waste water flooding coming from Lot 2956 RP.  The then existing sewage pipe which caused the flooding was disconnected and a new sewage pipe was installed in early 2003 with the consent of Law and the plaintiff since the new sewage pipe had to run underneath the Plaintiff’s Land as well as the Defendants’ Land to reach the nullah.  That work also involved the disconnection of the sewage pipe serving the Plaintiff’s Land resulting in the sewage pipe serving the Plaintiff’s Land having to be re‑connected to the new sewage pipe installed by Madam Tang;

(6)   The new sewage pipe is not the property of the plaintiff and/or the Cheungs;

(7)   By reason that the defendants have acquiesced in and consented to the existence of the water pipes and new sewage pipe, the defendants are estopped from asserting otherwise or of their removal;

(8)   That part of the Defendants’ Land under which the water pipes, the new sewage pipe as well as the remains of the original sewage pipe, run is idle land left only with debris and grass, thereby no loss or damage is caused to the defendants or to any of the members of the Tso.

FACTUAL EVIDENCE

37.Factual evidence were adduced by the parties from the plaintiff herself and from Law, the witness called by the defendants.

38.Both witnesses adopted their witness statements and supplemental witness statements as well as, in the case of the plaintiff, two affirmations of the plaintiff herein, as their evidence in chief respectively.

(A)   Summary of the Plaintiff’s factual evidence

39.The plaintiff herself had purchased the 1^st floor of the village house on the Plaintiff’s Land from one Law Pui Chun Janet in 1999 and since then has used it as her own residence.

40.The plaintiff gave detailed background as to her family including her brother and sister, the owners of the Ground floor and 3^rd floor thereof respectively, and who had  also lived there as their respective residences after they had purchased same also in 1999.

41.Therefore each of the plaintiff, her brother and her sister each had a one third share of the Plaintiff’s Land with the sole and exclusive right to hold use and enjoy the 1^st floor, the Ground floor and the 3^rd floor respectively.

42.The Plaintiff’s Land is given the address of No 4A, Lo Uk Tsuen, Wang Toi Shan, Yuen Long New Territories which address is confirmed by the land search records.  They therefore believe that the Plaintiff’s Land forms part of the village of Lo Uk Tsuen.

43.In the assignment by which the plaintiff acquired her one third share in the Plaintiff’s Land, it is stated that a ‘right of way’ was identified as to the Way.

44.Although the plaintiff, her brother and sister are not indigenous villagers, their predecessor in title in respect of the Plaintiff’s Land, including Law Pui Chun Janet were indigenous villagers all bearing the surname of Law or Lo or Loa (in Chinese “羅”).

45.The plaintiff confirmed that the Plaintiff’s Land is surrounded by other lots belonging to others including the defendants and/or the Tso as can be seen on the Lot Index Plan.

46.The Tso is in the nature of a Chinese ancestral trust comprised in the village of Lo Uk Tsuen meaning the village of the house of Law (or Lo or Loa) and that all the members of the Tso has that same surname in Chinese.

47.The 1^st defendant is the personal representative of the manager of the Tso and the 2^nd defendant is the village representative and a member of the Tso.

48.Section C of Lot 2951 which is immediately to the east and northeast of the Plaintiff’s Land is owned by Nam Hing Finance Co Ltd.

49.Before the plaintiff purchased the 1^st floor, she had an inspection of the Plaintiff’s Land with an estate agent and it was made clear to her during that inspection by both the estate agent and the vendor that the Plaintiff’s Land was served by the Way which was connected to the Public Footpath being a paved footpath which led out to Kam Tin Highway.

50.The plaintiff decided to purchase the 1^st floor of the village house on the Plaintiff’s Land because she was told and could see clearly that it was served by the Way.  Else she would not have made that purchase.

51.After the plaintiff, her brother and sister had acquired the Plaintiff’s Land, there was no interruption to their using the Way to reach the public footpath and thus as a means of access to Kam Tin Highway from the Plaintiff’s Land and vice versa.

52.The plaintiff also gave evidence that the northeast portion of Section C of Lot 2951 (being the Track Road and Alternate Track Road suggested by the defendants) was an open area, unpaved and unbuilt on and which was rugged, ridden by dogs and snakes, parked with vehicles and containers and loaded with rubbish.  In rainy days it would become muddy.  It was also unlit apart from some lighting coming from an adjacent warehouse.  The plaintiff also noticed that this area served motor vehicles rather than pedestrians and it would be dangerous to walk through this area at night or on rainy days.  It would also take 8 to 10 minutes more using this route to reach Kam Tin Highway.  In any event, it also involved passing through other people’s land.

53.Some time after the Cheungs had moved into the village house on the Plaintiff’s Land, the Cheungs decided to build a wall enclosing the Plaintiff’s Land for security.  They had planned for a brick wall of 4 feet high with steel bars on top of the brick wall for a further 4 feet thus totaling 8 feet from the ground and a gate was planned to open onto the Way.  But due to shortage of funds, only the brick wall of 4 feet could be put up first leaving the steel bars for later.

54.Initially in late 1999 or early 2000, the Tso had complained of the brick wall on their misapprehension that the wall was built on the land of the Tso.  However, when this problem was sorted out with the Tso in mid-2000, after the surveyor engaged by the Tso had confirmed that the wall was not on the land of the Tso, members of the Tso no longer objected to the wall.

55.In August 2000, the plaintiff’s sister purchased a car and since vehicular access to the Plaintiff’s Land could only be reached by the Track Road or Alternate Track Road, her sister’s car had to be parked at Section C of Lot 2951 and a monthly parking fee of $400 paid to a neighbor.

56.In about 2004, when the plaintiff’s sister sold her car, they no longer needed to park the car nor to use the Track Road or Alternate Track Road.

57.The plaintiff also gave evidence that in January 2004 the 2^nd defendant and some 10 odd villagers from Lo Uk Tsuen demanded from the plaintiff and her brother and sister HK$2,500 annual fee for using the Way when previously there had been no objection to their using the Way.  The villagers said that such payment had to be made by people not being members of the Tso and not having the surname of Law or Lo or Loa.

58.In a telephone conversation some days later, the 2^nd defendant reiterated such demand for payment for using the Way which was on the land of the Tso.

59.Some time in early April 2004, the defendants erected a wire netting fence of some 6 feet high along the boundary of the Defendants’ Land and the Plaintiffs’ Land where the brick all stands leaving only a small gap in between the fence and the brick wall thus blocking off access from the gate in the brick wall to the Way unless one were to climb over the fence.

60.On 12 April 2004, the plaintiff’s brother made a complaint to the police and with the supervision of the police, a part of the fence was cut away where the gate was so as to give access to the Way from the Plaintiff’s Land through the gate.

61.In November 2004, the defendants reconstructed the fence again blocking access to the Way from the Plaintiff’s Land.

62.As a result, the plaintiff instituted the present action and obtained an injunction granted by Deputy High Court Judge Carlson on 22 September 2006 effectively ordering the defendants to remove the fence.  On 6 February 2007, that injunction order was continued by Deputy Judge Carlson until further order of the court.

63.As for the sewage pipe and the 2 water pipes, the subject of the counterclaim, the plaintiff produced 17 photographs (attached to her supplemental witness statement) taken by her on 28 July 2009.  The 2 water pipes (shown in photo nos 3, 4, 7, 8, 11, 16 and 17) were already there when the Plaintiff’s Land was purchased by them and the 2 water pipes served other lots apart from the Plaintiff’s Land.  Both pipes are connected to meters of the Water Supplies Department (as shown in photo nos 14 to 17) and were either installed by the developer when the village house was built or by the Water Supplies Department and must have been with the consent of the defendants.  The 2 pipes should be the properties of the Water Supplies Department.

64.The defendants have never raised the issue of the water pipes before the present dispute started.

65.The pipes were laid on waste land of the defendants and do not cause the defendants any damage.

66.As for the sewage pipe, in 2003 there was serious flooding of waste water coming from the house of a neighbor, Madam Tang and the Food, Environmental and Hygiene Department threatened prosecution against Tang.  Tang therefore asked permission from the plaintiff and also from Law as the village representative to install a sewage pipe going through the Plaintiff’s Land as well as the Defendants’ Land to the nullah nearby.  That remedial work would involve disconnecting the existing sewage pipe serving the Plaintiff’s Land which would then be re-connected to the new sewage pipe installed by Tang and the pipe would run underneath the various lands.  Both the plaintiff and Law gave their consent for that work and which had been carried out.

67.The original sewage pipe was already there when the plaintiff and/or the Cheungs acquired the Plaintiff’s Land.

68.Again the defendants had never raised the issue of the sewage pipe before this present dispute between them arose.

69.The defendants had therefore acquiesced in the existence of the water pipes and sewage pipe and are estopped from asserting otherwise.

70.Since about August 2010, they could no longer use the Track Road and Alternate Track Road as access to them from the Plaintiff’s Land have been completely blocked off by iron bars and wire netting leaving only the Way as the only access to the plaintiff and her family members. This can be shown by photo nos 18 to 24 taken by the plaintiff on 20 October 2010 and attached to the plaintiff’s Third Witness Statement.

(B)   Summary of Law Kwong Man’s factual evidence

71.Of the allegation that he had told the plaintiff’s sister where to park her car and had used a yellow container to block her way, Law denies such allegation saying that he had never told the plaintiff’s sister where to park, but that it was the plaintiff’s sister who told him that she could not find a parking space and he told the plaintiff’s sister that there were space available in their car park which she could rent.  As for the yellow container, his evidence was that he had loaded the container on the Defendants’ Land to prevent other people from dumping debris on the Defendants Land, but not to block the plaintiff or her sister’s way.

72.Law further gave evidence that the consent he had given in respect of the sewage pipe related to use by two other villagers, but not the plaintiff and that sewage pipe to which he had consented was not connected to the Plaintiff’s Land.

73.He had never consented to the plaintiff to have any water pipe or sewage pipe run underneath the Defendants’ Land and that as far as he is aware no such consent has ever been given by the manager or any member of the Tso to either the developer or the Water Supplies Department.

74.He recalled that in 2003, the son of Madam Tang approached him to request consent of the Tso for the Tangs to install a sewage pipe from the Tang’s house running under the Defendant’s Land to the nullah.  It was not necessary for that sewage pipe to pass through the Plaintiff’s Land and he has never agreed to the plaintiff or the occupiers of the Plaintiff’s Land to be able to take advantage of the permission given to the Tangs for the sewage pipe.

75.Replies from the District Land Office to enquiries made by the defendants’ solicitors were that the District Land Office has never issued approval letter for redevelopment or “no objection to occupy” letter in respect of the Plaintiff’s Land nor was there any building licence or certificate of compliance being issued.

76.Only after the dispute arose between the plaintiff and the Tso that it came to the notice of the Tso’s members that the plaintiff and other occupiers on the Plaintiff’s Land had trespassed on the Defendant’s Land by laying the water pipes and sewage pipes there without their consent.

THE EXPERT EVIDENCE

77.Two experts (land surveyors) were called by the parties respectively to give expert evidence in this matter.  John Barrett was the expert called by the plaintiff while Eric Tang Sze Kin was called by the defendants.

78.Expertise was not in issue in respect of both experts and their expert evidence as contained in their respective reports and the joint reports can be summarized as follows.

(A)   Plaintiff’s expert

79.In his first report dated 18 June 2008, Mr Barrett having reviewed mapping sheets for the years 1960, 1973, 1980 and 1999 and having relied on:

(i)   The aerial photograph 9198 dated 2 August 1974 which showed unambiguously a well-used path from the Plaintiff’s Land passing through the Defendant’s Land to provide further access to Lot 2949 with no indication from that photo that any other access was used that could duplicate the purpose of this path;

(ii)   The same path is visible on photo 27659 dated 5 October 1979 but partly obscured by trees growing alongside;

(iii)   The same path is also shown on photo 57474 dated 23 November 1984, although largely obscured by trees, its outline in places is still visible.

came to the conclusion that pedestrian access to the Plaintiff’s Land has always been via the public footpath from KamTin Road and over a short portion of the Defendant’s Land (being points C to D on the Lot Index Plan).

(B)   Defendant’s expert

80.In his first report dated 10 October 2008, Mr Tang states that the report given by him are focused on whether there is a footpath near to the Plaintiff’s Land:

(i)   Leading from Kam Tin Road to the village of Lo Uk Tsuen and if so, when such footpath (termed by Mr Tang as “the Footpath”) was first found in existence;

(ii)   Leading from Kam Tin Road to the Plaintiff’s Land, and if so, when such sub-footpath (termed by Mr Tang as “the Said Way”) was first found in existence.  Therefore the Said Way as used by Mr Tang effectively refers to points ABCD.

81.Mr Tang was also asked for his opinion on the existence of the Track Road and Alternate Track Road.

82.It was also stated by Mr Tang that at the time of this report, aerial photographs were not available and a supplementary report will be given when they are available.

83.That report given by Mr Tang is based on copies of survey sheets from the Lands Department for the years 1960, 1967, 1973, 1975, 1980, 1982, 1985, 1988, 1999, 2004, and 2006-2008.

84.Mr Tang also carried out a site inspection himself in September 2008.

85.Mr Tang concludes that the Said Way was not delineated on the survey sheets over these years, but it can be identified on the ground during the site inspection in September 2008.

86.As for the Track Road, Mr Tang says it was observed on the survey sheets initially as a “footpath” and then changed to “track” in 1973 and finally paved as “road” in 1985.  It runs from Kam Tin Road in a northerly direction to land parcels on the east side of the Plaintiff’s Land but in 1982, a fence with gate was erected between the Plaintiff’s Land and the Track Road.  Since 2004, these land parcels east of the Plaintiff’s Land have been blocked off by fences and gates.

87.As for the Alternate Track Road it was first identified on the survey sheets in 1999 and is still accessible up to the present and leads from Kam Tin Road in a northerly direction to east of the Plaintiff’s Land.

88.In his supplemental report (which was undated) but said to be given supplemental to his first report of 10 October 2008 and to be read with it, aerial photographs for 1945, 1956, 1963, 1972, 1982, 1991, 1993 and 1995-2008 had been made available to Mr Tang.

89.From the aerial photographs, Mr Tang comes to the following conclusions:

(i) A house is identified on the Plaintiff’s Land in the photo for 1945 and a path is found beside the house leading to the cultivation fields at the east of the Plaintiff’s Land;

(ii) The Plaintiff’s Land becomes vacant land from 1956 onwards.  The path is still seen in the photo for 1956 but disappears in the years following;

(iii) A new house is being built on the Plaintiff’s Land in 1996 and construction is completed in 1996.  In the photo for 2000 a low wall is erected at the south and west sides of the house.  In 2001 the house is surrounded with a low wall with a gate at the middle of its west side;

(iv) The Said Way is first seen in 1972 but cannot be seen on the photo for 1982.  It is again identified on the aerial photos for 1991-2008 except those images taken in 2002-2004 and 2007;

(v) The Public Footpath leading from Kam Tin Road to Wang Toi Shan Lo Uk Tsuen is shown in the aerial photos over these years and is the major portion of the Said Way.

(vi) The Track Road is observed since 1956 as a “footpath” and changed to a “track” in 1982 when a fence with gate is found between the Plaintiff’s Land and the Track Road.  Since 2002, different portions have been blocked by fences, gates or miscellaneous objects.

(vii) The Alternate Track Road is first seen in 1991 but is found to be blocked by fences or miscellaneous objects in the lands between the Plaintiff’s Land and the Track Road.  Since 1996 the blockages have been cleared and replaced by a vehicular track from the Alternate Track Road in an easterly direction to a temporary structure at the north-eastern side of the Plaintiff’s Land.

(viii) Vehicle is found parked on the open area at the north of the Plaintiff’s Land as shown in the photos of 2001 and 2002.

(ix) The 2008 photo shows a container at the north-eastern side of the Plaintiff’s Land without blocking its access to the lands on the east.

(C)   Joint Reports of the Experts

90.Two joint reports of both experts, the first one dated 18 January 2011 and the second dated 15 February 2012 were also produced in evidence.

91.In their first joint report, both experts agreed (in paragraph 6 thereof) that aerial photographs taken in 1972 and 1974 clearly showed a path to the Plaintiff’s Land over the Defendant’s Land (being points C to D in the Lot Index Plan) and there is no evidence of alternate access.

92.This is further elaborated upon in their second joint report in which it is stated that both experts are agreed as follows:

(i) Since about 1905, access through the Defendant’s Land using the Public Footpath has been enjoyed by numerous village properties and agricultural lots as being their only physical access.  The Plaintiff’s Land abuts the Defendants’ Land and access logically is through it.

(ii) The Plaintiff’s Land was created by Deed Poll in 1935 and a house can be identified from photo records in 1945.  There are no formed roads at this time and access can only be by the Public Footpath.  The house disappears from the public records in 1956.  Access to the cultivated fields to the east of the Plaintiff’s Land can be seen into the 1960’s but vegetation obscures evidence of a pathway (ie points C to D) over the Defendants’ Land.  The vegetation cover varies yearly from photo to photo but the position of the pathway C-D remains constant when visible indicating stability in its existence.  A photo dated 1972 clearly shows access to the Plaintiff’s Land that is later obscured by tree cover, there is no alternative access at his time.

(iii) From 1972 the former agricultural land to the east of the Plaintiff’s Land has become largely urbanized and access to the Plaintiff’s Land became possible by passing through truck parking areas and factory allotments.

(iv) A photo dated 1996 shows the construction of a house on the Plaintiff’s Land with access to the now industrial area to the east for delivery of building materials.  At the same time the original access over the Defendants’ Land can be seen.

(v) From 1996 onwards access to the Plaintiff’s Land was possible through the industrial area but hardly desirable considering the nature of the traffic and general land use.

(vi) From the data consisting of old survey records and aerial photographs dating from 1905 to the present the experts concluded that the Plaintiff’s Land has enjoyed access by the Public Footpath and over the Defendants’ Land on a reasonably regular basis.  Changes in tree cover in some years that obscure details make it impossible to say continuous use.  The Plaintiff’s Land has also had since 1972 proximity to industrial vehicle tracks over private land, but regular use of this access cannot be verified.

(vii) Interpretation of detail from aerial photos can be difficult as variations such as time of year, time of day, height and angle of camera to object have to be considered.

(viii) In general, the two experts are in agreement with what has been stated in the second joint report which was arrived at after considering evidence collected by both parties.

THE LAW

93.The law relating to acquisition of easements in Hong Kong after 1 July 1997 was dealt with by the Court of Final Appeal in the case of China Field Ltd [2009] 5 HKLRD 662.

94.The relevant part of that judgment appears in paragraph 41 where the Court of Final Appeal had this to say:

“41. In England, rights of way and other easements may be acquired by (a) express grant; (b) implied grant (which covers, inter alia, ways of necessity); or (c) prescription. Prescription is of three kinds: (a) common law prescription, which is based on user since time immemorial, that is to say since the accession of Richard I to the throne of England in 1189; (b) prescription under the Prescription Act 1832, which is based on user for at least 20 years next before action brought; and (c) prescription based on the fiction of lost modern grant. Common law prescription is for obvious reasons not applicable in Hong Kong. The Prescription Act 1832 does not (if it ever did) apply to Hong Kong after 1 July 1997. That leaves lost modern grant as the only method by which rights of way and other easements may be acquired in Hong Kong in the absence of an actual grant, express or implied.”

95.From that short passage it must be clear that lost modern grant is the only method by which rights of way and other easements may be acquired in Hong Kong in the absence of an actual grant, express or implied.

DEFENDANTS’ CONTENTION

96.Dealing firstly with the plaintiff’s claim of an easement or right of way over The Way.

97.Relying on what has been cited above from the judgment in China Field, Mr Hung who appeared for the defendants submitted that the fiction of Lost Modern Grant is the only legal basis for the plaintiff’s claim of a right of way or easement over The Way since an implied grant (which covers necessity) has no application here nor does the rule in Wheeldon v Burrow apply.

98.Moreover, Mr Hung submits that Proprietary Estoppel also has no application since there is not one scintilla of evidence to show that the defendants had made any representation to the plaintiff nor any evidence to show any reliance by the plaintiff or any detriment suffered as a result of such reliance.

99.As for the New Territories (Renewable Government Leases) Ordinance 1997 and the New Territories Leases (Extension) Ordinance, it was submitted by Mr Hung that these ordinances would only come into play when the plaintiff can establish that prior to these two ordinances, that the right of way alleged by the plaintiff already appertained to the Plaintiff’s Land.  Therefore this must depend on the issue of the Lost Modern Grant.

100.In respect of section 16 of the Conveyancing and Property Ordinance, Mr Hung says that section 62 of the UK Act is equivalent to our section 16 and has the effect of creating new easements by way of express grant out of all kinds of quasi-easement.  However, since there was no conveyance by the Tso to the plaintiff, and no express grant by the Tso to the plaintiff, there can be no question of creating easements out of any quasi-easement.

101.Coming back therefore to the basis of Lost Modern Grant as being the only possible basis for the plaintiff’s claim, Mr Hung says that since the burden is on the plaintiff to prove the claimed right of way over the Defendants’ Land, and that no direct evidence have been adduced as to  what had happened before the plaintiff and/or the Cheungs acquired the Plaintiff’s Land, the crux of the issue is whether the plaintiff’s predecessors had by uninterrupted use and enjoyment of at least 20 years acquired the claimed right of way over the Way.

102.The starting point says Mr Hung must be the undisputed evidence that:

(a)    In 1935 Lot 2951 was partitioned into Section A of Lot 2951 (ie the Plaintiff’s Land) and Section C of Lot 2951;

(b)   A house was erected on the Plaintiff’s Land some time in about 1945;

(c)   The house had disappeared from the aerial photos as from 1956;

(d)   Some 40 years later, in about 1996 the present village house was built on the Plaintiff’s Land;

(e)   Both experts agreed that the building material for this village house were transported to the site via the Alternate Track.

103.On the basis of that undisputed evidence, Mr Hung argues that it can be inferred that:

(i)   The first house, later in ruins, must have been built some time between 1935 and 1945 but had vanished by 1956;

(ii)   Even if the occupiers of that first house had used any part of the Tso’s land in the vicinity of Points C – D between 1945 and 1956, that use was less than 12 years;

(iii)   In any event, the use of the Points C – D must have been abandoned or ceased from 1956 to 1996

104.Therefore the statement by the two experts in their second joint report to the effect that from 1905 to the present, the Plaintiff’s Land has enjoyed the access of the Way (ie Points C – D) “on a reasonably regular basis” must be viewed against the above incontrovertible objective facts as well as the inference put forward on those facts.

105.It is also said that the experts only had the aerial photos from 1945 to assist them and that there is no evidence for the time before 1945.  Moreover, their interpretation of the photos was handicapped by factors such as the angle of the camera and the height to the land and the vegetation.

106.It was also contended by Mr Hung that the aerial photos of 1972 and 1974 are extremely important evidence and from which both experts agreed that chicken sheds could be found sporadically erected around Lot 2949.  When coupled with the Survey Sheets for 1973, 1975, 1980, 1982 and 1985, they show that Lot 2949 were used as a chicken farm between 1972 and 1985.

107.The plaintiff’s expert also agreed in cross examination that the first house on the Plaintiff’s Land was shown to be in ruins by that period of time and that the use of the Way could be by the occupiers of Section C of Lot 2951.

108.On that basis, it was submitted by the defendants that the Way starting from the Public Footpath at Point C on the Lot Index Plan and passing though part of the Defendants’ Land in a northeasterly direction was leading to Lot 2949 ie the chicken farm.

109.It was also said that as a matter of logic, if in the 1970’s there were only ruins on the Plaintiff’s Land which had been there some 15 or 16 years, and that a path led from the Public Footpath at Point C on the Lot Index Plan to the chicken farm, that path must be serving the people travelling between the Public Footpath and the chicken farm and has no connection with the use and enjoyment of the Plaintiff’s Land.

110.That says the defendant is a reasonable inference of the objective evidence.

111.The defendants further say that as a matter of law, if the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established.

112.On that footing the defendants submit that there is no basis to say that the track or path in the vicinity of Points C – D on the Lot Index Plan was connected to the use and enjoyment of the Plaintiff’s Land.

113.At the most, the plaintiff only succeeded in showing that since 1996 (after the plaintiff had acquired the 1^st floor of the village house on the Plaintiff’s Land) the plaintiff had used the Way for access to Kam Tin Highway.  Thus no long use for over 20 years has been proved and the plaintiff has failed to discharge her burden.

114.It was also submitted by the defendants that up until 2010, plaintiff did have the use of the Alternate Track Road and it was only in 2010 that the occupiers of Section C of Lot 2951 blocked off the access to the Alternate Track Road from the Plaintiff’s Land.  On that basis it was said by the defendants that the Plaintiff’s Land was not landlocked until 2010.

115.It was also said that the present situation relating to the Plaintiff’s Land was created largely by the plaintiff’s own doing when the plaintiff built the low wall on the north east of the village house, declined the reasonable suggestion of the Tso to grant a right of way by payment of a modest license fee of $2,500 per annum and failed to take the necessary steps or reason with the owners of Section C of Lot 2951.

116.Lastly, it was submitted that the defendants were not guilty of any acquiescence since as early as 2000 when the dispute first started, there had been complaints by members of the Tso as to the plaintiff’s building the low wall and warning was given to the plaintiff not to trespass on the Defendants’ Land.

DECISIONS

117.Dealing first with the plaintiff’s claim for an easement or right of way over the Way.

118.The starting point would have to be the experts’ evidence on this issue.

119.The first report by the defendant’s expert, Eric Tang, is of little assistance since it is based in its entirety on Survey Sheets.  Given that the Way is no more than a well-trodden 20 metres unpaved trail over grass (as seen during the Site visit) and which is discernable only due to the fact that the grass has been trodden on, it is hardly surprising that the Way is not shown on any of the Survey Sheets.  The fact that it was not delineated on any of the Survey Sheets does not mean that the Way, as a path, did not exist.

120.What is pertinent from the experts is what is stated and agreed by them as contained in paragraphs 4, 5 and 9 of their second report as follows:

“4. Access through [the Defendants’ Land] is enjoyed by numerous village properties and agricultural lots as being their only physical access and was recorded in 1905 in D.D. 111. [The Plaintiff’s Land] abuts [the Defendants’ Land] and access logically is through this Lot.

5. [The Plaintiff’s Land] under its present legal description was created by Deed Poll in 1935 and a house can be identified from photo records in the position of the Lot in 1945. There are no formed roads at this time and access can only be by [the Public Footpath]. The house disappears from the records in 1956. Access to the cultivated fields to the east from [the Plaintiff’s Land] can be seen into the 1960’s but vegetation obscures evidence of a pathway [i.e. Point C to D on the Lot Index Plan] over [the Defendants’ Land]. The vegetation cover varies yearly from photo to photo but the position of the pathway [i.e. Point C to D] remains constant when visible, indicating stability in its existence. A photo dated 1972 clearly shows access to [the Plaintiff’s Land] that is later obscured by tree cover, there is no alternative access at this time.

……

9.    From the data consisting of old survey records and aerial photographs dating from 1905 to the present we can conclude that [the Plaintiff’s Land] has enjoyed access by [the Public Footpath] and over [the Defendants’ Land] on a reasonably regular basis.  Changes in the tree cover in some years that obscures details make it impossible to say continuous use. [The Plaintiff’s Land] has also had since 1972 proximity to industrial vehicle tracks over private land, but regular use of this access cannot be verified.”

121.Bearing in mind that what is stated in the above cited passages were agreed between both experts as well as their views and the opinion of both of them after viewing all the relevant evidence from survey records and aerial photographs, what the experts are effectively saying is that since the Plaintiff’s Land was carved out from Lot 2951 and created by Deed Poll in 1935 and a house built thereon some time between 1935 and 1945, the Way, crossing over the Defendants’ Land, has served as an access to and from the Plaintiff’s Land by adjoining the Plaintiff’s Land to the Public Footpath from that time to the present on a reasonably regular basis.  The experts cannot be certain that it was on a continuous basis only because details on some of the aerial photographs have been obscured by tree covers.

122.Indeed, that conclusion come to by the experts as to the Way being used on a reasonably regular basis from at least the mid 40’s (if not earlier) to the present is supported by the evidence given by Law, when he said towards the end of his testimony in the witness box that Points ABCD on the Lot Index Plan has been in use since the late 1940’s when he was a teenager.

123.On the above evidence, it would not be difficult to conclude that the Way was there used as access to adjoin the Plaintiff’s Land to the Public Footpath as early as the mid-forties, or, according to Law, since the late forties.  As such the Way was serving only the Plaintiff’s Land.

124.The defendants made the point that because the first house disappeared from the aerial photographs from about 1956 and there were either no house there or only ruins between that time and the village house constructed at about 1996, therefore for some 40 years, the Way had either not been used or was abandoned since nobody would have occupied the Plaintiff’s Land during that time.

125.That does not fit into the experts evidence since from the aerial photographs, the Way can still be seen during the sixties (Exhibit D8 referred to by the Plaintiff’s expert) and also the seventies as well as the early nineties before the present village house was built, although on occasions it would be obscured by tree covers.

126.The fact that the Way can still be seen during those times must attest to the fact that it must have been used during the sixties and seventies and early nineties due to the fact that it is by actual usage trodding on the grass that a visible trail can be left on the grass (and therefore seen in the aerial photographs) thereat since all along there is no evidence of any kind of paving on the Way.

127.That the Way cannot be seen in the eighties is not surprising considering that there is only one aerial photograph (taken on 27 July 1982) used for the entire eighties.  The fact that the Way cannot be seen in that one photographs relating to the eighties does not mean that the Way was not there for the reasons given by the experts in their joint reports (ie tree covers obscuring it).

128.More important is the fact that the Way can be seen in the sixties, the seventies and early nineties.

129.That would suggest that the Way has throughout those times been used and been trodden on by people with some regularity during those 40 years when the first house was no longer on the Plaintiff’s Land between 1956 and 1996.

130.This can be the only reason why both experts are agreed that the Way has been shown to be used “with reasonably regularity” between the forties and the present.  Nor did the two experts qualify their opinion in their second joint report in the way suggested by the defendants in submission – that the Way has been disused or abandoned between 1956 and 1996.  In fact their joint opinion was to the contrary.

131.Indeed, the Plaintiff’s expert, when asked in cross examination as to why the Way would still be used during the time between 1956 and 1996 when there was no house or possibly only ruins on the Plaintiff’s Land, said in answer that during those years, the Way was still the only access by foot to the Plaintiff’s Land and the owner would have to reach the Plaintiff’s Land in order to access the cultivation fields to the east of the Plaintiff’s Land.

132.The totality of all the above evidence would further support the views of the experts stated above that the Plaintiff’s Land has enjoyed access by the Public Footpath and the Way on a reasonably regular basis since the forties up to the present which necessarily include those 40 years between 1956 and 1996.

133.A further point taken by the defendants was that between 1972 and 1985, Lot 2949 was used as a chicken farm and some of the aerial photos taken in the seventies show that at that time, there was a trail from Point C on the Lot Index Plan which traverses three quarters of the Way between Point C and Point D and then veer northwards towards the chicken farm.  This the defendant submitted showed that such a trail served the people using the chicken farm and had no connection with the Plaintiff’s Land.

134.It was also submitted by the defendants that as a matter of law if the enjoyment were equally consistent with two reasonable inferences, enjoyment as of right has not been established.

135.In so submitting, the defendants sought to rely on a passage of Lord Lindley in the case of Gardner v Hogson’s Kingston Brewery Co Ltd [1903] AC 229 at 239 in which Lord Lindley said:

“A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established the enjoyment must be inconsistent with any other reasonable inference than that it has been as of right in the sense explained above. This, I think, is the proper inference to be drawn from the authorities discussed in the Court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established.”

136.The facts in Gardner’s case was that for more than 40 years without interruption, the plaintiff used a cart away from his stables the cross the yard of the defendant’s adjoining inn to reach the public road, paying each year 15s. to the defendant. There was no agreement in writing, and no conclusive evidence as to the origin of or the consideration for the payment.  The plaintiff claimed for a right of way over the defendant’s yard.

137.The House of Lords held that the inference of fact from the evidence was that the payment was made for leave to use the way; that there had therefore been no enjoyment of right within the Prescription Act, 1832 and that there was no ground for presuming a lost grant.

138.The words from Lord Lindley cited above, was therefore said in that context, and can be further seen in the following words from the judgment of Lord Davey at page 238 when he said:

“To put the case most favourably for the appellant, the payment is of an ambiguous character, and capable of either explanation, but one explanation is inconsistent with an enjoyment as or right, while the other is not so, and it is for the appellant to make out that she and her predecessors in title have enjoyed “as of right”, and for that purpose to shew which is the true explanation of the annual payment, and this she has not done.  To quote the well-known formula, an enjoyment as of right must be nec vi, nec clam, nec precario.  The appellant shews that the enjoyment has not been either vi or clam, but she fails to prove that it has not been precario.”

139.Once Gardner’s case is properly understood, in the context that it was decided, the words of Lord Lindley relied on by the defendants and cited above can be seen to be referring to the reason for the enjoyment, whether it was as of right or whether it was due to some other reason, such as by permission.

140.In other words, if the plaintiff can show a right of way over the Way, then it matters not that some time during the seventies, others have branched off another trail from the Way leading to the chicken farm bearing in mind that the Way has been in existence from the forties onwards up to the present, but the branching off to the chicken farm was only during the time when the chicken farm was there on Lot 2949 between 1972 and 1985.

141.I am therefore not persuaded by this point of the chicken farm to come to a finding that the Way did not serve the Plaintiff’s Land but only the chicken farm on Lot 2949 as suggested by the defendants.

142.I have no difficulty accepting the plaintiff’s evidence that prior to her purchasing the 1^st floor of the village house on the Plaintiff’s Land from Janet Law, she had been told (whether by Janet Law or by the estate agent as the agent of the vendor) that it was served by the Way and which the plaintiff could see for herself during the inspection.

143.That the plaintiff had been told of the Way being an access to the Public Footpath is further confirmed by what has been stated in the assignment.  Although the contents of the assignment does not bind the Tso or the defendants for obvious reasons, nevertheless it is a good indication not only of what the plaintiff has been told but also the fact that her predecessor in title well knew or believed that a right of way existed over the Way and no doubt had been using the Way with no interruption or hindrance throughout.

144.I also accept the evidence of the plaintiff that ever since she had acquired the 1^st floor of the village house on the Plaintiff’s Land in 1999, she had been using the Way with no hindrance or obstruction until the present dispute with the defendants and/or other members of the Tso started in early 2004 over the Way.

145.In this respect, I cannot accept the evidence of Law that he and the other members of the Tso had no knowledge of the plaintiff and her siblings using the Way as a means of access and egress between the Plaintiff’s Land and the Public Footpath during that time for the simply reason that their access over the Way was done openly and would probably have been done mostly during the daytime when it would be clear to any of the Tso members using the Public Footpath.

146.For the above reasons, I find that the Way, which crosses the Defendants’ Land for some 20 metres has been serving as an access way between the Plaintiff’s Land and the Public Footpath ever since at the very least from the mid-forties, possibly earlier, up to the present and on a “reasonably regular” basis.  As such I find that the enjoyment over the Way has been continuous and uninterrupted and the enjoyment has been without duress, without secrecy and without the need to obtain permission (nec vi, nec clam, nec precario).

147.On that basis, the plaintiff has succeeded in showing a right of way or easement over the Way on the basis of a lost modern grant.

148.I also find the Plaintiff’s Land to be landlocked as can clearly be seen from the Lot Index Plan.

149.The submission by Mr Hung for the defendants that the Plaintiff’s Land was not landlocked until 2010 on the basis that it was or could have been served by the Track Road and Alternate Track Road until up to 2010 is wholly misconceived.  The fact that the Track Road and Alternate Track Road is on other people’s land, if anything, underlines the fact that the Plaintiff’s Land is landlocked.

150.The evidence from the plaintiff that when her sister had a car and had to use the Alternate Track Road for access and for parking for which she had to pay $400 per month further shows that the plaintiff and the Cheungs had no right and can claim no right to use the Alternate Track Road and which would equally apply to the Track Road as well.

151.The Plaintiff’s Land being landlocked and there having been a right of way or easement over the Way (which may well have been due to necessity), as found above when there was a re-grant of all existing Government leases under section 4 of the New Territories (Renewable Government Leases) Ordinance Cap 152 on 1 July 1973, it would have been implied in such re-grant to both the Plaintiff’s Land and the Defendants’ Land that the re‑grant was made with the burdens on the one hand and the rights and quasi-easements serving the Plaintiff’s Land on the other, thus continuing the right or easement over the Way which served the Plaintiff’s land as a matter of necessity.  Similarly when all Government Leases in the New Territories were extended on 27 June 1997 by sections 6 and 7 of the New Territories Leases (Extension) Ordinance.

152.In this respect, it is pertinent to note the words of Deputy Judge Jerome Chan (as he then was) in the case of Tang Tim Fat and Another v Chan Fok Kei and Others (HCA 7338/1989) where he said at paragraph 18 of the judgment:

“It is always open to leaseholders in Hong Kong to take advantage of the rule in Wheeldon v. Burrows (1879) 12 Ch. D.31. It laid down that upon the grant of part of a tenement, there would pass to the grantee as easements all quasi-easements over the land retained which (i) were continuous and apparent, or (ii) were necessary to the reasonable enjoyment of the land granted; and (in either case) (iii) had been, and were at the time of the grant, used by the grantor for the benefit of the part granted. This rule for an implied grant applies also to cases where the grantor, instead of retaining any land himself, makes simultaneous grants to two or more lessees. Each lessee obtains the same easement over the land of the other as he would have obtained if the grantor had retained it (see Swansborough v. Laventry (1832) 2 Mov & Sc 362 and Broomfield v. Williams [1897] 1 Ch. 602 at p.616). All leaseholders in Hong Kong hold their tenement from one common landlord, the Crown, under Crown leases. In the New Territories, all land is declared to be vested in the Crown as from 23rd July 1900 by virtue of s.8 of the New Territories Ordinance, Cap.97. The tenements granted to leaseholders in the New Territories are subject to express provisions as to user. As the New Territories modernize with passage of time, temporary permits or waivers are issued by the Crown, on payment of premiums, relaxing the restriction over the user. All such Crown leases, which expired on 30th June 1973, were automatically renewed at the same time by the New Territories (Renewable Crown Leases) Ordinance Cap.152. Thus on 1st‑July 1973, there was a simultaneous grant of a new demise for all land in the New Territories by virtue of Cap.152. It is thus arguable that any easement or right of way granted expressly or impliedly to any dominant tenement by virtue of any temporary waiver/permit issued prior to that time would bind the servient tenement by operation of the doctrine of an implied grant.”

153.When the plaintiff came to acquire the 1^st floor of the village house on the Plaintiff’s Land in 1999, by operation of section 16 of the Conveyancing and Property Ordinance Cap 219, the assignment operated to assign to the plaintiff not just the 1^st floor of the village house on the Plaintiff’s Land, but also “all rights, interests, privileges, easements or appurtenances in, over, belonging or appertaining to [the Plaintiff’s Land] or at the time of the assignment, used, held occupied or enjoyed with [the Plaintiff’s Land]”.

154.In this respect, on the plaintiff’s evidence in so far as the members of the Tso had said to her that the Way across the land of the Tso can only be used by members of the Tso or those with the surname of Lo or Lao or Law (in Chinese “羅”) what was said by the members of the Tso cannot and does not represent the law and is wholly misconceived.

155.It would appear that the likely scenario historically was that all the predecessors in title of the plaintiff in relation to the Plaintiff’s Land, including Law Pui Chun Janet, were people surnamed “羅” and were from Lo Uk Tsuen and/or members of the Tso.  That being the case they were allowed to and did use the Way without any hindrance or obstruction from the Tso since the forties.  Only when the plaintiff and/or the Cheungs being ‘outsiders’ acquired the Plaintiff’s Land from Law Pui Chun Janet that such dispute over the Way arose between them and the Tso.

156.On the plaintiff’s claim therefore, and for the reasons above, I find that the plaintiff has acquired the right of way or easement over the Way and there will be judgment for the plaintiff against the defendants for a declaration in terms of the declaration sought by the plaintiff in Prayer 1 of the Statement of Claim and that the injunction granted as an interlocutory injunction be continued and made permanent against the defendants.

157.I turn now to deal with the counterclaim by the defendants.

158.I am satisfied from the evidence that the defendants must have known of the water pipe of the plaintiff running below the Defendants’ Land since that water pipe must have been there for quite a long time and is connected to the meter of the Water Supplies Department.

159.While the water pipe must be the property of the plaintiff and her siblings, being the owners of the Plaintiff’s Land rather than the property of the Water Supplies Department for the simple reason that it has to be maintained by the owners and or occupiers of the Plaintiff’s Land and not by the Water Works Department, the defendants’ knowledge of same means that the defendants have acquiesced for some time the existence of the water pipe and this was only raised by them when the dispute and the plaintiff’s claim herein commenced.

160.By the same token, I do not accept the evidence of Law that the defendants only came to know of the water pipe after the dispute between the Tso and the plaintiff arose.  The photographs showing the water pipe being connected to meters of the Water Supplies Department makes it very clear that such can clearly and openly be seen by the naked eye with no indication of any attempt to do anything related to the water pipe covertly or in secret.  It is therefore not possible that the presence of the water pipe running beneath the Defendants’ Land was not known to the defendants before their dispute with the plaintiff arose.

161.The same goes for the sewage pipe.  On the evidence of Law, the Tso had given its consent to Madam Tang to lay a new sewage pipe beneath the Defendants’ Land in 2003.  That being the case, it is again impossible that Law or the other members of the Tso would not have known that the new sewage pipe of Madam Tang was not connected to the sewage pipe serving the Plaintiff’s Land, since I accept the plaintiff’s evidence that that was the same with the old sewage pipe which had to be disconnected.

162.I can only conclude that the water pipe and the sewage pipe were brought up by the defendants only as a wedge to be used against the plaintiff’s claim when the plaintiff commenced this action against them.

163.I find absolutely no merit in the counterclaim and the same is dismissed.

COST

164.There will be a cost order nisi that the defendants by original action pay to the plaintiff by original action the plaintiff’s costs of this action to be taxed if not agreed.

165.In respect of the Counterclaim, there will be a further cost order nisi that the 1^st and 2^nd plaintiffs by counterclaim do pay to the 1^st, 2^nd and 3^rd defendants by counterclaim their costs of defending the counterclaim to be taxed if not agreed.

Mr Anthony P W Cheung, instructed by K M Cheung & Co, for the plaintiff (By Original Action) and for the 1^st to 3^rd defendants (By Counterclaim)

Mr Andy Hung and Mr Colin Leung, instructed by T K Tsui & Co, for the 1^st and 2^nd defendants (By Original Action) and for the 1^st and 2^nd plaintiffs (By Counterclaim)

Annex

LOT INDEX PLAN