Wong Lim and Another v. The Incorporated Owners of Cambria Court

LDBM 39/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 39 OF 2013

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BETWEEN

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J U D G M E N T

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1.This is a trial to determine whether the car parking space boundary drawn and/or asserted by the incorporated owners or the space delineated on the car park floor which the applicants said to have been there since date of its first occupation complied with the approved plan.  The issue falls to be determined is where the front of the car parking space in question ends. There is no dispute that the back of this car parking space is correctly position.

Brief background

2.The car parking space at issue is Car Parking Space No 27 situated on the 1^st car parking floor of a residential building known as Cambria Court, No. 81 Kung Lok Road, Kwun Tong (“CP 27”). The applicants became its registered joint owners together with a residential unit in Block B of Cambria Court by an assignment dated 22^nd June 1977 (“1977 Assignment”).  They have been the first owner of the said unit and CP 27 since 1977 until now.

3.All car parking spaces of the said car park are defined by white lines painted on the floors. It is the applicants’ case that CP 27 has all along been so defined since its purchase and is rectangular in shape having a measurement of 174 inches by 84 inches. According to the approved plan exhibited[1], CP 27 to CP 34 are arranged in the same row parallel to each other with CP 27 situated at the far left end at the bend of the car park driveway. These 8 car parking spaces are all located perpendicular to the driveway each with one of its shorter end facing the driveway. Although there is serious dispute on whether all the ends fronting the driveway fall on one straight line, there appears to be no dispute that the front ends of CP 27 and CP 28, which are next to each other and separated only by a structural column, (“C3”) are on a straight line. Vehicles coming in the car park need to make a right angle turn at the bend of the driveway round CP 27.

4.Located at the back of CP 27 and CP 28 is CP 26 which is at right angle to the said 2 car parks with one of its longer edge abutting the backs of CP 27 and CP 28. Both parties agreed for the purpose of this Application that the current layout and size of CP 26 are in compliance of the approved plan.

5.The applicants’ case was that on a number of occasions the vehicle parked at CP 27 suffered slight damages to its bumper caused by other vehicles when making a turn round the said car parking space. In or about 1985, with a view to protect his vehicle, he planted a metal post at the corner of CP 27 closed to the bend by boring a hole into the ground. The metal post was removable and was fixed in position with a padlock.

6.It is the applicants’ case that on 25^th December 2012, the metal post was removed without their consent. Further, the front line of CP 27 facing the driveway was unilaterally set back by about 20 inches by another re-painted white line, resulting in the length of CP 27 being cut short to only 154 inches. Representative of the respondent said to the son of the applicants, one Mr Dennis Wong, that the original box defining CP 27 had encroached on common area of the building and therefore needed be remarked. The applicants disagreed and reported the matters to the Police. 

7.On 9^th February 2013 the applicants re-painted the white lines to their original position and replanted the metal post. This time the respondent reported the matters to the Police complaining that the applicants had trespassed upon common part of the Building to the extent of the area reinstated by them.

8.On 26^th February 2013, the applicants lodged an Application to this Tribunal for a declaration that CP 27 had a dimension of 84 inches x 174 inches and was located in the car park at its original position before the set back.

9.The respondent’s position appeared shifting. I must say the respondent asserted a case at trial which was somewhat different from what had been pleaded in its Notice of Opposition and was not supported by evidence already filed. It is fair to summarize the respondent’s position from its Notice of Opposition and Counterclaim as follows :

i) The applicants were required to strictly prove the dimension of CP 27. The approved floor plan of the car park only showed the dimension of CP 32 and CP 37, and that for CP 27 was not shown;

ii) The front lines of CP 27 and CP 28 should align with each other as well as those of CP 29 to CP 34 in accordance with the approved plan;

iii) The front line of CP 27 fell on position A marked on Photo No.1 annexed to the respondent’s Notice of Opposition. A metal post was erected at the corner position A1 marked thereon;

iv) In or about 2007, the respondent carried out a major renovation to the car park of Cambria Court. Tiles were laid on the driveway. The front line at position marked A was about 1 to 2 inches away from and parallel to the edge of the tiled driveway;

v) Sometime around 25^th December 2012 the respondent re-painted and pushed back the front boundaries of CP 27 and CP 28 to a position marked B on the said Photo No. 1 in purported compliance with the approved plan. It also brought the front lines of CP 27 and CP 28 in line with those of CP 29 to CP 34.

vi) On 9^th February 2013, the applicants repainted and moved the front line boundary of CP 27 to a new position marked C. It fell on the first row of the tiled driveway. A metal post was planted at the corner at C1, which pierced through the tiles of driveway; and

vii) The said metal post was therefore erected in the common part of the building and unreasonably interfered with the use and enjoyment by other owners and/or occupiers of the common part of the Building.

10.From Photo No. 1, position C in fact falls on the first row of square tiles each of 4 inches x 4 inches[2] covering the driveway. Further away from the driveway is position A, and then B. According to Mr Leung of counsel for the respondent, Position A is about 8 inches from C. Position B is about 12 inches from A and 20 inches from C.

11.The respondent’s pleaded case is therefore this. The front line of CP 27 was originally at A. However, it should be pushed back by 12 inches to B in order to comply with the approved building plan. The applicants refused to accept the push-back. Instead of restoring the front line to its original position, the applicants even pushed the front line further to C, which is about 8 inches away from its original position towards the driveway.

12.Without stating any ground but for reasons which is apparent at trial, the respondent does not claim position B being the correct position. It now says CP 27’s front line should be at A. In the pleadings its asked for the following orders:

i)   The applicants do repaint the front line of CP 27 to its original position marked A and remove any paint they have put on the common area; and

ii)   They do remove the metal post and re-instate the common area affected by such erection.

13.According to the respondent’s pleaded case, necessarily there would be a hole at A1 originally, and it was subsequently filled up. A new one was bored at C1. This is a factual matter and is not difficult to be resolved by objective means prior to trial. However neither party were willing to send their respective experts to break up the ground around A1 to find out whether there was evidence of hole drilled and subsequently filled up.

14.As will be apparent on the discussion of factual evidence below, the respondent’s evidence did not support the aforesaid pleaded case. Mr Lee Wai Ho, the current treasurer of the Respondent, confirmed the metal post had never been re-positioned as alleged.

15.Since Mr Lee gave evidence at the last day of trial, in light of the departure from its pleaded case, Mr Leung of counsel for the respondent was asked what the respondent’s position was in light of the evidence. He said that the respondent’s case was this. Somehow the applicants had extended the front line of CP 27 from its original position to a line which marked the driveway boundary on that side. This brought CP 27’s front line to Position C, and the metal post at C1. This is a “self-marking” theory according to the respondent. As can be distilled from the submission and line of examination of Mr Leung for the respondent, there is a further or alternative ground, namely, the correct position according to the approved plan should be at Position A, not C.

16.That was why this Tribunal comments that the respondent’s case is shifting. In fact it is also ambivalent.

17.It is now the respondent’s case that by reference to one of  the structural pillars situated in the car parking floor, namely P10, the front line of CP 27 should be at position A, not C as asserted by the applicants.

The Issues

18.According to the 1977 Assignment from which the applicants derived their estate right and title to CP 27, the applicants hold the said car parking space subject to and with the benefit of, inter alia, the Conditions of Sale No. 10489 and the Deed of Mutual Covenant and Grant registered in the Land Office by Memorial No. 1393814; and subject to their due performance and observance of the terms and conditions in the said Conditions of Sale in so far as they relate to CP 27[3]. There is a plan showing the position of CP 27 in 1^st Car Park Floor of the Cambria Court annexed to the 1977 Assignment. However, it is not in dispute that the plan is for identification purpose only and serves little purpose for the Application.

19.Special Conditions 10 and 13 of the aforesaid Conditions of Sales respectively stipulates that:

“10. Space shall be provided within the lot to the satisfaction of the Director of Public Works for the parking of motor vehicles at the rate of not less than 1.5 cars per flat. … .

…

13. A lay-out plan indicating the parking spaces or the car ports to be provided within the lot in accordance with Special Condition No (10) and approved by the Building Authority or a copy of such plan certified by an authorized architect shall be registered by the purchaser by memorial in the Land Office… The purchaser shall maintain the parking spaces or car ports or all or any of them in accordance with the said approved plan and shall not alter the layout except with the prior written consent of the Director of Public Works.”

20.According to the Land Registry record, in purported compliance of the aforesaid Special Condition No. 13, a lay-out plan certified by one Mr H C Leung, Authorized Architect, to be the true copy approved by the Building Authority was registered with the Land Registry on 23^rd September 1976 by Memorial No. UB1302955. Legal representatives of the parties agreed that the plan entitled “1^st Car Park Floor Plan” at page 306 of the hearing bundle was substantially the same as the plan registered pursuant to Special Condition 13 and should be the plan which the parties should refer to for the present Application.  

21.The “Permit to occupy a new building”, i.e. the occupation permit in respect of Cambria Court including the 1^st car park floor on which CP 27 was situated was issued by the Building Authority on 15^th March 1977.

22.A Letter of Compliance was issued by the Director of Public Works on 17^th May 1977 and registered in the Land Registry by memorial no. UB2733635. However, no one sees fit to produce this document for reference of the Tribunal. A memo dated 10^th June 1977 signed by the Chief Estate Surveyor of the Government to the Registrar General was issued certifying, inter alia, that the land on which Cambria Court stood was inspected by him on 22^nd March 1977; and that all the general and special conditions have been complied with[4]. It is parties’ common ground that this is evidence of compliance of the conditions of the land grant that the parties should refer to.

23.From the above uncontroversial title documents, it is therefore logical and reasonable to presume that when the applicants were assigned CP 27 in July 1977, the layout of all the car parking spaces including CP 27 had already been marked on-site and found to have been in compliance with the approved layout plan by the relevant Government Department after inspection, otherwise the Letter of Compliance and the said memo would not have been issued.

24.Mr Chan, solicitor for the applicants however, adopted a rather strange position. In his oral opening and written closing submission, he emphasized that the applicants only wanted:

“to get back what they are [sic] assigned” and not “what should have been assigned to them in accordance with the various plans.”

25.His submission is difficult to understand. Having heard him for several days the best that can be discerned from his argument is this. He was asking this Tribunal to grant the applicants the particular parking space physical possession of which was delivered to them in 1977 when they executed the 1977 Assignment.

26.The applicants obtained the exclusive right to use occupy and enjoy CP 27 by virtue of the 1977 Assignment. As the plan on which CP 27 was marked pink attached to the assignment is only for identification purpose, its exact location could only be ascertained by reference to the approved plan. It is a plan approved by the Buildings Authority and deposited with the Land Registry according to the Conditions of Sales to which the 1977 Assignment was expressly subjected. Accordingly, Mr Chan’s submission is right only when the original parking space physically delivered to the applicants was marked in accordance with the approved plan.

27.In the present case the position of CP 27 was not denoted by any fixture or permanent marker affixed to the floor when possession was delivered in 1977. It was only marked by lines painted on the floor. If the box delineating the boundary of CP 27 was then not marked in accordance with the approved plan, the applicants would have occupied the parking space or part thereof as a trespasser, for an assignee has no right to occupy any space he has never been assigned. The applicants are only entitled to what should have been assigned in accordance with approved plan, just opposite to what Mr Chan has submitted.

28.In my judgment, the issues to be decided at this trial are:

i)   Whether the boundary of CP 27 now asserted by the applicants, i.e. with front line falls on Mark C, is the boundary marked on the 1^st floor car park since the date of the 1977 Assignment;

ii)   Whether the aforesaid boundary was marked in accordance with the approved plan; and

iii)   If the answer to (ii) is in the negative, whether the boundary with front line marked A now asserted by the respondent is in accordance with the approved plan.   

The Witnesses and Evidence

29.Each party called one factual witness and one expert, leave of which was granted on 2^nd September 2013 by H.H. Judge Ko. Their statements and expert reports have been filed prior to trial. They are:

Factual Witnesses:

i)    Mr Wong Chi Hung, Dennis, the applicants’ son gave evidence on behalf of the applicants. He made two statements respectively dated 4^th May and 6^th July 2013;

ii)   Mr Lee Wai Ho gave evidence on behalf of the respondent. At the time of the trial he was the treasurer of the respondent and owner of CP 28. He made a statement dated 22^nd May 2013;

Experts:

iii)   Mr Denys Kwan, a Chartered Surveyors, appointed by the applicants. He made a report and a supplemental one respectively dated 25^th June and 9^th September 2013; and

iv)   Mr Ngai Hok Yan, a registered structural engineer and Authorized Person appointed by the respondent. He prepared a report dated 22^nd July 2013.

30.The determination of the aforesaid issues, particularly the actual boundary of CP 27 prior to the 2007 renovation, hinges to a certain extent on the credibility of factual witnesses. It will not be necessary for this Tribunal to resolve each and every piece of evidence in dispute as some may be immaterial to the core issues. However, if it is necessary for this Tribunal to make a finding of facts, and what have been stated in this decision (including the facts stated in the preceding paragraphs) are different from those advanced by a party, it is because, after taking into consideration of undisputed or unchallenged facts or contemporaneous documents, witness statements filed prior to the trial and weighing the witnesses’ evidence, this Court has chosen to believe the version of one witness in preference to the other.

31.As regards expert evidence, this Tribunal will deal with it when coming to it.   

Factual Evidence

Mr Lee Wai Ho’s Evidence

32.There is no dispute that Mr Lee became the registered owner of CP 28, which is next to CP 27 and separated by column C3, on 27^th July 2006. He had the use of CP 28 about two months before its assignment to him. His statement basically repeated the respondent’s pleaded case and Photo No. 1 was annexed.

33.The gist of his written statement is this. The front and back lines of both CP 27 and CP 28 were of the same position when he purchased his car parking space. Their frontage was at Position A and with metal post at A1. He said in the 2007 renovation, tiles were laid on the driveway up to and just next to the car parks’ fronts. The metal post was therefore outside the tiled driveway. Some time before 25^th December 2012, with a view to align the front line of CP 27 and CP 28 to that of CP 29 to CP 32 so as to comply with the approved plan, the respondent set back the front line of CP 27 and CP 28 to Position B. The metal post was also removed. The applicants, however, instead of restoring the front line to its original position, push it further toward the driveway to C. The applicants cored another hole and inserted a metal post at C1. It pierced through the tiled driveway.

34.At trial Mr Lee said before the 2007 renovation, the front lines of CP 27 and CP 28 were extended to form one line on the floor, though the two boxes were still separated by a column[5]. Mr Lee, however, now said he had made a mistake. He now realized the metal post had never been moved. He now said that the pre-renovation front line of the 2 car parking spaces was buried under the first row of tiles. After the 2007 renovation, a white line was painted by workmen on the floor alongside the tiled driveway at position marked A.    

35.He admitted the positions of car parking space re-drawn by the respondent in December 2012 were incorrect as the respondent then failed to take into account the cutting-back by about 22 inches[6] of the lift hall platforms which took place more than a decade before the 2007 renovation.  

36.There was dispute as to whether the front line of CP 27 and CP 28 had ever merged to form one continuing line. Mr Dennis Wong for the applicants asserted that they had never. Mr Lee disagreed. Mr Lee was referred to photo 28 at page 279AL of bundle taken for the purpose of the litigation. He said the black paint was used to cover the white paint between the two car parking spaces, such paint could be seen on photo at B-279AL.    

Mr Wong Chi Hung Dennis’s Evidence

37.In his two written statements, Mr Dennis Wong said he moved to Cambria Court with his parents in 1977 when he was a boy (should be aged about 11 then). Since then he was always a passenger in vehicles parked at CP 27. In mid 2012, the management committee of the respondent proposed to him to move CP 27 back by as much as 41 inches into CP 26[7]. He said he was told by members of the management committee that the incorporated owners would cover him if owner of CP 26 took action against him. The applicants refused to accede to such request. On 25^th December 2012, he discovered the metal post at CP 27 removed and front line pushed back. Apart from making a report to the Police, he reported the matter to the Buildings Department which confirmed the metal post not an illegal structure.

38.Of the photos he exhibited to his second statement, he elaborated as follows:

i)   He confirmed tiles of 4 inches x 4 inches were paved along the driveway in the 2007 renovation. In a photo taken after December 2012 it was shown the position of the metal post being at the first row of the tiled driveway. He said it was shown in the photo that the tiles surrounding the metal post were all with sharp cut edges.  This was, he said, evident of the tiles being cut to fit a pre-existing hole rather than the other way round[8].

ii)   He exhibited another photo taken just outside the lobby of Block B at the same car park floor, showing his sister as bride with her groom. He confirmed it was taken in December 1993. He said the front line of the car park space next to the Block B lobby (presumably CP 31) had almost the same frontage as the lobby platform. From the photo, it can be seen that the lobby platform had already been set back. The front of CP 27 should be the same as this car parking space. It showed that the current front line of CP 27 asserted by him was reasonable, as it more or less aligned with the raised platform edge of the 2 lift halls[9]. He confirmed during cross-examination the cut-back was done in the major renovation in 1986 or 1987[10].

39.At trial he referred to another photo (at page 279A1) taken by him in 2004 with his Mitsubishi Lancer parked at CP 27 which he said was purchased brand new. The front line of CP 27 with the metal post was shown. He said the front line position remained unchanged until 2007. Rust could be seen at the lock at the base as it was a metal structure erected in 1985.

40.He also exhibited 6 photos taken by the Police when he reported the matter in December 2012. From these photos, the car parking no. “27” originally painted within CP 27 was covered by greyish-black cement paint when its front line was set back by 20 inches in the December 2012 incident. The cover-up was done by the respondent. On 9^th February 2013, with the help of his elder brother, he inserted a new metal post at its original position, re-painted the front line according to photo at page 279A1 of bundle and to the best of his memory, and re-wrote “27” on the floor near the metal post using white paint. 

41.His evidence at trial also included the following:

i) Despite the various renovations to the car park in the past, the floor of the car park had never been re-made, save and except in 2007 when the driveway was tiled. He reiterated in cross-examination that since 1977 the boundary defining CP 27 on the floor had never been changed, though it had been re-painted several times.

ii) By reference to photo at page 279AO of bundle, he said the exact position of CP 27 front line should be under the first row of the tiled driveway and was at a position about 20 mm from the rim of the hole on the floor.

iii) Counsel Mr Leung suggested that before the driveway was tiled, there were two white lines on the 1^st floor of the car park defining the driveway boundary. They had been there since 1987 when the car park underwent a major renovation. Mr Wong disagreed because it was not shown in photo taken in December 1993 when her sister got married[11].

iv) He disagreed with the suggestion of Mr Leung that since the driveway defining line and the original front line of CP 27 were so close, the applicants took advantage of the situation by pushing out CP 27’s front line to overlap with the driveway boundary. He also disagreed that the metal post was planted after the moving out of the front line of CP 27.

v) He said in 1985 he bought for the first time his own vehicle after obtaining his driving licence. The registration plate number was DH 2082. Since there were 3 to 4 hit and run incidents occurred in early half of 1985, causing scratches to the right bumper of his vehicle parked at CP 27, he hired a company to core a hole into floor at the corner of CP 27 near the bend and inserted the iron post.

vi) He disagreed that the car park number on the floor shown in photo B-279A1[12] was painted by him though he agreed in some photos of car parking spaces shown to him the floor numbers were printed with aid of stencil.

vii) He disagreed with Mr Leung’s suggestion that when CP 27 was handed over to the applicants in 1977, the front line of CP 27 was at position A of Photo No.1.

Discussion of the Factual Evidence

42.Mr Leung of counsel levied heavy attacks on the credibility of Mr Dennis Wong in his written submission. With due respect this Tribunal does not find his submission attractive. After reading his submissions, I find them either not of real substance, irrelevant or unjustified. I do not find there being material inconsistencies in Mr Wong’s evidence.

43.Mr Dennis Wong was observed to be a straight forward and unsophisticated witness. He has a clear mind and could always support his evidence by reference to objective and/or uncontroversial evidence. He answered the questions direct and was not evasive. When queried as to how he could recall dates and particulars of events which took place long ago, he could always give a convincing explanation or link the same to events the happening of which were uncontroversial, e.g. the time when he got his driving licence, the first time he bought a brand new car, the purchase of a new cell phone with camera function, switching to a new job, the marriage of his sister, etc. He moved to Cambria Court in 1977 and had the frequent use of the car park since then. He is unshaken despite cross examination and his evidence was basically unequivocal and firm. I find him a truthful, reliable and honest witness.  

44.The respondent only called Mr Lee to testify. His oral evidence contradicted his written statement almost in all material respects, and in fact supported the applicants’ case that the metal post had not been re-positioned as pleaded by the respondent. He also admitted that the incorporated owners had failed to realise the set-back of the lift hall platforms in the car park long ago. As a result, the respondent had mis-read the approved plan and accordingly had painted the car park boundaries wrong, at least in respect of CP 27, resulting in its front line being cut short by about 20 inches. Although he is not dishonest, his evidence is unreliable. This Tribunal will not accept his evidence in so far as it is inconsistent with that of Mr Wong.

45.The applicants’ evidence met with no rebutting evidence. On a balance, unless otherwise stated I accept the evidence of Mr Dennis Wong in preference to that of Mr Lee or that asserted by the respondent.

46.Mr Lee agreed that the front lines of his car park and CP 27 immediately prior to the 2007 renovation had now been buried under the first row of the tiled driveway. Consistent with the applicants’ case, his case now was that since he had the use of CP 28, the metal post in CP 27 was there and had never been re-positioned. His evidence contradicted the respondent’s own pleaded case that the hole had been moved. In fact, the photos such as those at pages 279B, 279F, 279K, 279AO clearly showed the 2 tiles surrounding the holes were cut to “L” shape to embrace the hole. If it were the other way round, it was more likely than not that the tiles affected would be with curved or broken edges.   

47.Accordingly, at least as at 2007, there is no dispute that front boundary of CP 27 was at Position C.

48.The next question is whether the applicants had moved out of their original position to C from A some time before 2007, as alleged by the respondent, and if so when.

49.In my judgment, there is simply no evidence from the respondent to support its assertion that the applicants had moved the front line from A to C to merge with the driveway boundary. This is only a version put to the witness by Mr Leung. It was neither in the respondent’s pleadings, nor any witness statement nor the evidence of Mr Lee. In fact on the last day of trial during the cross-examination of Mr Wong, this Tribunal asked Mr Leung as to when the applicants had moved the car park boundary according to the respondent’s case. His reply was that the respondent simply did not know.  

50.I cannot accept the respondent’s assertion through counsel and during cross-examination that the applicants had moved the front boundary of CP 27 to meet the driveway boundary. As said above, it is unsupported by any evidence. Further, I accept Mr Wong’s evidence that he planted the metal post into the floor in 1985 after several hit and run incidents. In addition, from the photo taken of his sister in the car park when she married in 1993[13], it is clear no boundary was marked on the driveway. Although it was suggested by Mr Leung the driveway boundaries were marked on the floor in 1987, I do not accept this as fact because the respondent adduced no evidence to substantiate such allegation. Counsel cannot give evidence from the bar table.

51.The above establishes that the metal post[14], which was planted in 1985, pre-existed any marked boundary[15] of the driveway.

52.On a balance, this Tribunal accepted Mr Dennis Wong’s evidence that the marked boundary of CP 27 on the first car parking floor had remained unchanged since 1977 when the applicants purchased it. The front boundary was at C marked by the metal post inserted in a hole cored into the floor in 1985 at Position C1.

53.The next question is whether the said boundary was marked in accordance with the approved plans.

54.Before moving on, I would like to deal with two factual points which were repeatedly hammered by Mr Leung and took up a lot of hearing time.

55.The first is this. It was suggested by the respondent that the respective front lines of CP 27 and CP 28 had once merged to form one single front line. It was used to substantiate the respondent’s allegation that the applicants had unilaterally moved the front line to overlap with the driveway boundary, which was allegedly a continuing line marked on the then untiled floor in 1987. As discussed above, this Tribunal considered that there was no evidence from the respondent at all to suggest this. Further, the respondent’s case necessarily implies the front line of CP 28 was also pushed out otherwise the two front lines would not have met. Again no evidence in this respect had ever been adduced by the respondent.

56.Although this Tribunal formed the view that some time after the 2007 renovation, the front lines of CP 27 and CP 28 might have merged as can be observed from the 3 photos at pages 279AB, 279AJ and 279AL where black paint or cement can be seen painted on the floor between the two front lines, this can be explained by Mr Lee’s evidence that it was the workmen who painted a white line alongside the tiles to mark the driveway boundary: see last part of §34 above. In my judgment, this matter is immaterial to the issues in question.

57.The second matter is, according to Mr Leung, the front lines of CP 27 and CP 28 should align with that formed by at least CP 29 to 34 with the raised platform of Block A lobby standing between the two groups.

58.The following facts are not in dispute:

i) The 2 lift hall platforms have been cut short. The platforms now only protruded a bit onto the tiled driveway with their respective ends sitting on the first row of tiles. Since the rows of tiles run in a straight line, accordingly the continuity of the first row of tiles was broken when they meet the lift lobby platforms. They emerge at the other end of the platform and continue; and

ii) The second row of tiles was yellow in colour. They run on the driveway in a straight line uninterrupted.

59.Mr Leung referred Mr Wong to photo at page 279X taken of the space between the first row of tiled driveway and CP 30 to CP 32. It was shown that grey paint was put on the floor between the first row of tiles and the front lines of these car parking spaces. In fact, in other photos such as those at pages 279V, B-279W and B-279Y, the grey zone between the first row of tiles and the car park front lines is apparent, and was suggested to be about 20 inches by Mr Leung. It was Mr Leung’s case the repainting of this part took place after the 2007 renovation. It was also suggested to Mr Wong by Mr Leung that when CP 27 was purchased in 1977 its front line should align with those fronts of CP 30 to CP 32 and in particular CP 35 which positions were as shown in the photos taken for the purpose of litigation. What he suggested was that the correct position of CP 27 should be about 20 inches from the edge of the tiled driveway at position B.

60.I must say the respondent’s assertion and line of questions are most unfair and unreasonable. Firstly, the respondent’s case is that CP 27 frontage falls on Position A, not B. By asserting a case that all fronts fall on the same line as that of CP 29 to CP 37, the respondent is either saying the front of CP 27 falls on Position B, which is now not the respondent’s case, or alternatively, front lines of CP 29 to CP 37 should be extended to meet the tiled driveway, which is also not what the respondent is asserting.

61.As set out in the early part of the decision, occupation permits and Letter of Compliance had been issued and registered with the Land Registry when construction of the Building was completed. It has been stated in the memo issued by the Chief Government Surveyor that the Government had inspected the completed Building, and found all special conditions of the land grant having been complied with. It will therefore reasonable and logical to infer that the car parks layout in the car parking floors had been marked to the satisfaction of the Government and in accordance with approved plan when the building was ready for occupation in 1977, otherwise such Letter of Compliance/memo would not have been issued. Accordingly, the starting off position is that the position and boundary of CP 27 in Cambria Court complied with the approved plan when the applicants took possession of it by virtue of the 1977 Assignment, unless evidence to the contrary can be shown.

62.It is also this Court’s conclusion that the boundary of CP 27 has remained unaltered throughout the years since 1977 with its front line now at Position C and marked by an iron post at its corner at Position C1. Unless and until evidence, such as that from experts, shows that the 1977 boundary of CP 27 was wrongly marked, the Tribunal should uphold the front line of CP 27 being at position C.

Expert Witnesses

The applicants’ Expert – Mr Denys Kwan

63.The applicants engaged Mr Denys Kwan, who is and has been for the past 6 years a Director of C S Surveyors Limited. He is a Fellow of the Royal Institute of Chartered Surveyors, a member of the Hong Kong Institution of Surveyors and a Registered Professional Surveyors (General Practice Division).  He is also a Fellow of the Institute of Land Administration and had been its vice president for 3 years. He has been in the land surveying profession for 38 years. According to his resume, he worked for the Government for about 10 years during the period 1975 to 1985 as Land Assistant, and later Senior Land Executive in the New Territories Administration Department (now Lands Department). His then duties included, for the purpose of issue of the letter of compliance, inspection and taking measurement on-site the car parking spaces in newly completed buildings to see if they were in order with reference to the registered car park layout plan[16].

64.On the face of his qualifications and experience, he appears to possess the requisite expertise to assist the Tribunal. He prepared a total of 2 reports, the first dated 25^th June 2013 and the second 9^th September 2013. In his first report, he was requested by the applicants to answer, inter alia, the following two questions:

i)   What is the dimension of CP 27 according to the approved plan? And

ii)   With respect to the line common with CP 26, is CP 27 positioned rightly with respect to the approved plan?

65.He took the view that the car park lay-out plan registered with the Land Registry by memorial no. UB1302955 was basically the same as the approved general building plans (Drawing No.2/14, approved by the Building Authority on 15^th February 1976). This is the plan at page 306. Before he prepared the report he carried out a site inspection on 3^rd June 2013. With a view to ascertain whether the size of the car parks was marked according to the approved plan, he measured the size of CP 26, CP 27 and CP 28 direct from plan and came to their respective sizes using the plan scale of ⅛ inch to 1 foot. He then compared them with his on-site measurements. From the photos annexed to his first report, it was understood that Mr Kwan measured the boundaries of CP 26 and CP 28 marked by the respondent while CP 27 as marked by the applicants. His findings were set out on page 3 of his report and summarized as follows[17]:

	Car Parking Space	Size as scaled from the lay-out plan (inches)	On-site measurements (inches)
i)	CP 27	173 x 84	173 (the width of the 3-inch white line in front included, but the common white marking line with CP26 at the back excluded) x 87  (the width of the two 3-inch white marking line on both sides included)
ii)	CP 26	171 x 81	178 (the 3-inch white marking line in front included) x 87.5 (the 3-inch white marking line common with CP 27 included)
iii)	CP 28	173 x 84	153.5 (the 3-inch white marking line in front included, but the common white marking line with CP 26 at the back excluded) x 103 (the 3-inch white marking lines on both sides included)

66.As can be seen from photos exhibited in the hearing bundle, for instance those at pages 279J, 279M, 279AB, the whole width of the 3-inch white boundary line for CP 27 next to column C3 meets the said column. As such the space of CP 27 was only 84 instead of 87 inches wide. The on-site measurement of rectangular box delineating CP 27 as asserted by the applicants is therefore 183 inches x 84 inches. From the above on-site measurements, at least the following two questions arise:

i)   Whether the size and layout of CP 27 complies with the approved plan? and

ii)   Since CP 27 shares a common boundary with CP 26, if CP 26 was not correctly position according to the approved plan, what is its impact on the final positioning of CP 27, and in particular its frontage? 

67.Frankly speaking, I do not think Mr Kwan’s report useful in answering these questions. For the first one, he simply asserted the on-site measurements to be correct. However, the tracing method, which he said he had used, was not even mentioned in his report. Nothing was said about the methodology commonly employed by professionals in approaching problems of this sort. Further, the meaning of the indicated size of 14 feet 6 inches x 7 feet marked on the approved plan was not explained. Neither was the discrepancy between the indicated[18] and actual[19] measurements explained. It was not until trial that he elaborated he used a tracing paper to aid measurements of the car park size from the plan. The tracer was exhibited as Exhibit A1.

68.Concerning the second issue, he set out his opinion as follows:

“5.5 With respect to the line common with car park no.26, car park no. 27 is positioned rightly with respect to the plan.”

69.Except providing the on-site measurements of the three car parking spaces, his report, with respect, is unhelpful.

70.At trial, he confirmed that according to his experience, before issuing the certificate of compliance, staffs of the department he was then working would normally inspect the premise, including the car parks. Though equipped with tape metre, they would not normally take actual measurement of the size and relative positions of the car parking spaces marked on the floor, unless it appeared to them that the on-site condition was substantially different (差好遠) from the plan or there were good reasons to do so. They would only do the so-called visual inspection (目測) and compared the on-site condition with the plans.

71.In respect of the approved plan at page 306 of bundle, he said the architect had marked on the plan the size of a typical car park on CP 32 and CP 37 as 7 feet x 14 feet 6 in., i.e. 84 inches x 174 inches. For non-typical car parks which were apparent from plan, he said the size had to be ascertained by measuring the actual size of the box from the plan and came to its actual size using the plan scale. He produced Exhibit A-1 and confirmed the 3 car parking spaces CP 26, CP 27 and C 28 were typical car parks on the plan. He agreed since the plan scale was ⅛ inch to 1 foot (1:96), an error of 1mm in the plan measurement would cause an error of about ±96 mm in the actual size, which was more than 3 inches but less than 4 inches. Further, after the marking artisan had marked the lines on the floor, the painting of them to 3-inch think using white paint would be left to other workmen. Mistakes might occur when the workers completed the painting. Some minor discrepancies might therefore be regarded acceptable.

72.He believed in 1977, before the certificate of compliance in respect of Cambria Court was issued, his then Government colleagues would use visual inspection to judge whether the size and position of car parks marked on-site complied with the plan at page 306.

73.At trial, he commented on the following three plans relied on by the respondent’s expert Mr Ngai:

i)   Plan at page 316: car parking layout plan similar to page 306 except that the car parking spaces had been re-numbered. He said for the purpose of issuing the certificate of compliance the registered plan substantially the same as page 306 should be used.

ii)   Plan at page 317: framing plan of the 1^st floor car park showing position of structural frame including columns and beams. He said this was not the plan referred to in Special Condition 13 and has nothing to do for ascertaining the various car parks layout for the purpose of Special Condition 13.

iii)   Plan at page 318: one of the structural plans of the 1^st floor car park. He said it was the first time he saw this kind of plan. This was not the kind of plan for the purpose of Special Condition 13.

74.The followings were views expressed by Mr Kwan during cross-examination, which in the Tribunal’s views, were relevant to the issues in question:

i)   He agreed the building of structural frame would receive strict supervision from relevant Government authorities and therefore the dimensions and relative position of structural elements such as columns and pillars normally followed closely those specified in approved plans;

ii)   From reading of the approved plan, the front line of CP 27 should align with those of CP 29 to CP 38;

iii)   The turning radius around CP 27 was slightly less than 18 ft proposed for the turn at CP 23. However he added the fact that a minimum turning radius of 18 ft not marked at the bend around CP 27 suggested that the authorized person did not consider it feasible to have such turning radius there.

iv)   As regards the width of the driveway being 16 ft which was said to facilitate parking and/or driving out of the vehicles at CP 38/39 (car parking spaces opposite CP 27) easy, he said when issuing certificate of compliance at that time, he would not take into account whether it would be easy or not for vehicle at a particular space to move in or out.

v)   Generally, a surveyor might be consulted if there was any problem in marking the lines on the floor. The surveyor might then mark certain reference points based on which the marking artisan would complete his markings on the floor. However, he admitted he was not conversant with how they chose the reference points and/or finally translated the plan onto the floor. 

vi)   He was repeatedly asked that the front line of CP 27 was fixed by drawing a parallel line 16 ft from the line formed by aligning front lines of CP 38 to CP 52. The overall answers that could be discerned from his various replies were that this would be one of the many possible ways the marking artisan chose to fix such front line.    

The respondent’s Expert – Mr Ngai Hok Yan

75.Mr Ngai is the director of Troika Engineering Limited. He is a civil and structural engineer and is member of several professional bodies including Hong Kong, New Zealand and Australia. He is also a Registered Geotechnical Engineer, Registered Structural Engineer and Registered Person in Hong Kong. According to his resume, in his 32 years’ professional life as engineer, he was mainly involved in aspects of works relating to construction of buildings, engineering structures and geotechnical project as well as project management.

76.It appears his concerns in his report are more on the metal post. In his only report of 22^nd July 2013, he stated he was instructed to basically:

i)  Review the available record plans from the Buildings Department in order to verify the initial design concept and the dimensions of CP 27;

ii)  Review and confirm whether the steel post inserted at the corner of CP 27 an illegal structure;

iii) Carry out a visual inspection and measurement on site in order to appraise the existing condition of the car park on whether there are any adverse effects and/or inconvenience to the vehicle drivers due to the erection of the metal post in CP 27; and

iv) Make comments on whether the metal post in CP 27 should be removed and the marking line of CP 27 should be revised, based on the findings from record plans and site inspection.

77.His findings and conclusions can fairly be summarized as follows:

i) According to the current Practice Notes for Authorized Persons, Registered Structural Engineers and Registered Geotechnical Engineers PNAP APP-111 issued in March 2000 and annexed to the said report (“PNAP 111”), the guideline dimension of car parking space for private car which can provide an acceptable standard of convenience and safety to users of car parks is 2.5 m x 5.0 m (common ground equivalent to 97.5 inches x 195 inches). He admitted that there was no specific guideline dimensions prior to March 2000, but the authorized person might be required to demonstrate that the size of the car parking space provided being reasonable[20];

ii) The size of 174 inches x 84 inches for car parking space marked on the approved plan was, in his view, more for indication only as there were no guidelines issued by the relevant authorities in 1977 when Cambria Court was constructed. Some tolerance would be allowed to suit the actual on-site situation.

iii) He took measurements of 18 car parking spaces now marked on the floor by the respondent. The length of these spaces ranges from 154 inches (only CP 27 and CP 28) to 175 inches (e.g. CP 29 and CP 30 next to CP 27 and CP 28 but separated by a lift hall) while the width ranged from 79 inches (CP 24) to 102 inches (e.g. CP 28 and CP 29). The dimension of CP 26, CP 27 and CP 28 were as follows:

CP 26 :	161 inches x 87 inches
CP 27 :	154 inches x 87 inches
CP 28 :	154 inches x 102 inches

iv) His conclusion was that CP 27 and CP 28 were the car parking spaces with the shortest length of 154 inches (i.e. 3.9 m) but CP 27 has a width wider than the specified dimension of 84 inches (2.13m) by 3 inches.

v) He observed the current driveway was marked by 2 yellow lines each was about 0.5m, i.e. 19.5 inches next to car parks frontage on their respective sides.  The width of the driveway so marked was 3.9 m[21], i.e. 12 feet 8 inches or about 152 inches. For one-way driveway like the present one, the guideline minimum width according to PNAP 111was 4m (i.e. 156 inches) with an absolute minimum being 3m (i.e. 117 inches) for private car.

vi) He stated the general length of a small to medium-size private cars varied between 152 inches to 184 inches (i.e. 3.9 m to 4.7 m according to his report[22]). According to his observation, though there were about 19.5 inches (0.5 m) between the car parks frontage (including CP 27) and the driveway boundary, many of the vehicles parked there had already occupied the said space because the car parking spaces were too short, though the vehicles had not gone beyond the yellow line into the driveway. He therefore of the view that the front white line of each car parking space not a boundary line, but rather, an indication for the drivers to keep the driveway clear;

vii) The steel bar, which was 1.06 m high erected by coring a hole into the floor slab was considered an exempted works under section 41 of the Buildings Ordinance;

viii) He considered that from the approved plan the so-called “swing width” of 10 ft (i.e. 3.05m) was adopted. This could not be achieved at the bend at CP 27, though the difference was small. Medium size car could still make a turn at the said bend with care;

ix) The metal post was located at the left hand side of a vehicle driver making a left turn at CP 27. Since the post was higher than the side mirror of usual private cars, and it would normally be more difficult for driver to ensure sufficient room for his left side when making a left turn, the “potential” for the metal post causing damages to the turning vehicle was considered high;

x) The vehicle at CP 27 was now enjoying a parking length of 4.4 m (3.9 m + 0.5 m), i.e.  171.6 inches (152 inches + 19.5 inches), which was considered reasonable for a medium-sized vehicle and closed to the indicated size of the approved plan.  He formed the view that:

“… the white lines around [CP 27] are only an indication and have no statutory meaning on the limitation of the usage and function of [CP 27]. Modification of the original white lines is therefore considered unnecessary. The additional white line on floor [i.e. presumably referred to the line drawn by the applicants] has no particular meaning to [CP 27] but causes a visual discomfort and inconsistence to the other car park spaces lines and should be subject to the decision of estate management whether to remove or not” [23].

xi) Though the metal post was an exempted work, it caused inconvenience and adverse impact to drivers, removal of the metal post was recommended; and

xii) Reflective mirror was recommended with a view to assist driver making the turn around CP 27, and CCTV be installed to alleviate the applicant’s concern of  catching the hit and run drivers.

78.Mr Ngai supplemented his evidence at trial. In so far as it was relevant the evidence was:

i)   Whether the car parks dimension and layout were in compliance with building plan were to be verified by building surveyors, not engineers;

ii)   He agreed to the suggestion of the respondent’s counsel Mr Leung that the front lines of car parking spaces CP 27 to CP 37 should align to form a straight line. Likewise, that for CP 38 to CP 52 (i.e. the row of car parking spaces opposition to CP 27 to CP 37) should form another straight line. The 2 straight lines were parallel and should be 16 feet apart, as indicated in the approved plan;

iii)   It was not in dispute that the total width of CP 23, 24 and 25 was 20 feet with CP 23 located at a bend. As such each was with a width of only 6 feet 8 inches, i.e. a total of 80 inches, which was less than the indicated width of 84 inches. Further, as indicated on the plan, there was an obvious setback in the length of CP 23 in order not to obstruct the bend and accommodate a turning radius of 18 feet (i.e. swing width of 10 feet). He agreed to his own counsel’s suggestion that the dimension of 14 feet 6 inches x 7 feet indicated in the plan was not an absolute standard but was for general reference. There would be variation according to on-site situation.

iv)   Speaking from the point of view of an Authorized Person, he was of the view that when the space was insufficient to accommodate a driveway of 16 feet wide and the full indicated car park length of 14 feet 6 inches at the position of CP 27, which was at a driveway bend, the length of the car park should be compromised. It was because according to Table 1 of PNAP 111, the width of aisle with a parking angle of 90° (which was the situation at CP 27) should have an absolute minimum of 5m, i.e. 16 feet 3 inches or 195 inches. It was the minimum width for the vehicles parked opposite to CP 27 to move out/in with one distinct manoeuvre[24].

v)   He was of the view that the car park marking artisan would mark the front line of CP 27 by:

a) First of all marked the front line of CP 39 which was directly opposite to CP 27. It would be 14 feet 6 inches from the back wall. The front line of CP 38 to CP 52 could then be fixed. This line shares the same frontage of pillar P10. P10 was a convenient and reliable marker as pillars and column were usually accurately constructed; and 

b) Secondly, a further 16 feet (the width of the intended driveway) would be added. It formed the front lines of CP 27/28 and those of CP 29 to CP 37.

vi)   During cross-examination he said:

(a)   The narrowest part of the driveway of Cambria Court car park had a width of only about 9.5 feet. He also agreed the driveway along the long side of CP 27 had a width of about 11 feet 7 inches, not 16 feet.

(b)   According to his evidence the front line of CP 40, which was also located next to P10, should not protrude beyond the front of P10. However he admitted that as shown in photos, e.g. photo E on page 279D, the front line of CP 40 was painted beyond P10 by a few inches. His explanation was that the approved plan was for indication only.

(c)   For the row of car parking spaces opposite to CP 27, the respective length of 14 feet 6 inches for each car park according to plan should be measured from the outer surface of the building shell, not from inner surface. Accordingly if the plan was to be strictly followed, the length of the car parking spaces on that row should be shortened by the thickness of the building shell, which according to his estimate, was, about 8 to 9 inches and in any event less than 1 foot.

(d)   He was of the view that since CP 23/24/25, which were all with length of 161 inches (c.f. the indicated length according to plan was 174 inches i.e. 14 feet 6 inches) could be used for parking, he saw no reason why CP 27 should not be set back to accommodate as far as possible a driveway of 16 feet.

(e)   He agreed that normally, visual inspection would be deployed by staffs of relevant authorities for the checking of car park layout for the purpose of issuing the certificate of compliance.

79.Mr Kwan prepared a report dated 9^th September 2013 in rebuttal. In view of my comments on Mr Ngai’s report in the following paragraphs, it will not necessary for this Tribunal to refer to it.

80.Mr Ngai and Mr Kwan did a joint inspection of the car park after the hearing on 17^th February. The followings were reported to this Tribunal after the joint inspection and were undisputed:

i)   CP23/24/25 have the same frontage apparently not in accordance with the approved plan.

ii)   16 feet from pillar P10 would mean a frontage for CP 27 at position A.

iii)   The front line of CP 39 (the car park directly opposite to CP 27 and next to CP 40) extended further away from P10 by 9 inches;

iv)   The length of CP 39 was 174 inches instead of 173 inches measured by Mr Ngai and set out in his report. Mr Ngai explained on the next day of trial that when taking measurement for his report he used a hand-held laser instrument instead of a tape metre. He accepted the tape-measured length was to be preferred as the accuracy of hand-held laser instrument would be affected by orientation of or how the laser beam was held.

Discussion

81.With no disrespect to Mr Ngai, apart from the information concerning his on-site measurements of some car parking spaces and his views on PNAP 111 which may be of some assistance to this Court, his report was not helpful.

i)  Firstly, he is not qualified to say whether or not the white lines delineated the car parking spaces on the floor has “statutory effect”. It is a legal question and a matter for this Tribunal. He obviously got it wrong.

ii)   Secondly, like Mr Kwan, he failed to address in his report the key issue of how the car park layout in the approved plan was effectively translated to the first floor of Cambria Court. The usual professional ways were not discussed. Not even a single word was said on it. As such he was in no position to say CP 27, whether represented by the boundary drawn by the respondent or applicants, is marked in accordance with the approved plan. Although he agreed to his counsel’s suggestion that the front line of CP 27 could be marked by drawing a line 16 feet from the line formed by the front lines of CP 38 to CP 52, it is not right for expert not to spell out his methodology in his report and merely agreeing to counsel’s suggestion. Counsel is not witness and cannot give evidence or suggest any methodology without support of evidence. Further, Mr Ngai has no expertise in on-site car park layout marking, as he has agreed - it was a matter for surveyors, not engineers.

iii)   Thirdly, the primary concern of this case is not whether the metal post inserted at position marked C1 an illegal structure. The key issue is whether the boundary of CP 27 now asserted by the applicants (with frontage at position C) or by the respondent (with frontage position A) complies with the approved plan. If the metal post is located within a space which the applicants have exclusive use and enjoyment, it would be quite difficult, if not impossible, to ask for its removal, even if other car park users may benefit from its removal, unless the relevant Government authority takes the view it is an illegal structure and enforce any removal order.

iv)   Fourthly, the fact that he commented only on a car park boundary (position B), which was no longer relied on by the respondent, is not understood. It is beyond imagination that he said nothing in his report whether the frontage at A, a position asserted by the respondent, was marked in accordance with the approved plan.  Neither had he said anything whether position marked C in compliance with the approved plan.

82.After hearing Mr Kwan and Mr Ngai’s evidence, this Tribunal accepts that:

i)   The verification of whether the layout and dimension of car parking spaces on-site complies with the approved plan is a matter for surveyors, not structural engineers.

ii)   Visual inspection is the usual way to verify whether the layout and dimension marked on the floor were in fact marked according to approved plan. Only the approved car park layout plan would be referred to. No structural or framing plans would normally be relied on.

iii)   The choosing of pillar P10 as a starter reference point is only one of the many ways in which the marking artisan started his marking. Neither Mr Kwan nor Mr Ngai is in any position to assist the Tribunal as to how surveyors/marking artisan translates the layout and dimension of the car parking space from plan to site.  

iv)   The dimension of a car parking space would be of 7 feet x 14 feet 6 inches as indicated in the approved plan unless otherwise indicated in the plan, such as in the case of CP 23/24/25 or CP 41/42/43, or the on-site situation renders it impossible. Slight discrepancy in size because of human errors is acceptable.

v)   The PNAP 111 was only in force in March 2000. Prior to that and in particular in 1976 when the relevant plan was approved, the size of a car parking space, the width of driveway and aisle were not subject to the restrictions therein mentioned or any other restrictions

83.Mr Ngai appeared to take the view that the size of CP 27 has to give way in order to keep the width of the driveway to 16 feet. I am unable to accept his views.

i)   Firstly, as apparent from the approved plan, the driveway is narrowed by quite a number of structural columns e.g. those standing next to CP 40, 43, 50, and the raised platform of the two lift halls which protrude into the driveway. It was undisputed evidence that the two raised platforms had been cut, according to the respondent, by as much as 3 feet[25]. After the setting back, they still obstructed the driveway by about 2 feet. According to evidence at trial, some part of the driveway was about 9 feet wide. Accordingly, it would be quite meaningless for any reasonable surveyor who was required to mark the car parks boundaries to follow strictly the 16 feet indication and cut CP 27/28 to the shortest of only 154 inches as alleged by him.

ii)   Secondly, from the available evidence, I have serious doubts that when the car park was designed some 40 years ago[26] and the plan approved around the same time[27], the professionals would bear in mind guidelines similar to PNAP 111, though I believe they should have in mind practical considerations for a car park. On a balance it would be quite unlikely that the car park layout marking professionals would squeeze the dimension of CP 27/28 with a view to strictly observe the 16 feet plan requirement. It is because a compromise of a few inches of a 16 feet driveway on which private cars of about 7 feet[28] travel, would be more likely than reducing the length of a parking space of 14.5 feet, at which a medium-sized car of as long as 15.3 feet would be parked[29]. 

84.Although it is apparent that the front lines of CP 27/28 and those of CP 29 to CP 37 should form one straight line, it does not mean that those of CP 27/28 should be pushed backed to position B with a view to achieve such alignment. It may be the other way round as there is no evidence to suggest that the back of CP 29 to CP 37 have been correctly fixed. In any event position B is now considered by the respondent to be incorrect. It would therefore be quite wrong for the respondent to suggest to Mr Kwan during cross examination that the front line of CP 27 should align with the current front lines of CP 29 to CP 37. Alternatively by suggesting CP 27 having a correct position at A, the respondent is saying that the current front lines of CP 29 to CP 37 have been wrongly marked. 

85.The width of CP 26 (situated at back of CP 27 sharing a common line) was measured to be 87.5 inches by Mr Kwan and 87 by Mr Ngai. In light of the mistake admitted by Mr Ngai in measuring the length of CP 39[30] I accept its width to be 87.5 inches. It is apparently wider than the indicated width of 84 inches in the approved plan.

86.However, it is the parties’ common ground that CP 26 should be taken as correctly positioned and sized for the purpose of this Application. On this basis, if the marking artisan or the surveyor in charge of marking the car park was to translate the plan to the floor in 1976, it will be quite unlikely that with a view to preserve a aisle width of 16 feet for one-manoeuvre parking (the guidelines in these respect were simply non-existent then), he would reduce the length of CP 27 (and CP 28 as well) by as much as 8 inches[31] so that their fronts fell on position C, resulting in CP 27/28 having a length of only 13 feet 10 inches (166 inches).  It would mean the car parking spaces could only accommodate small size vehicles only[32]. The suggestion that CP 27’s frontage should fall on position A requires the marking surveyor/artisan to consider the 16 feet requirement a compelling circumstance and took drastic steps to cut short CP 27. I am afraid it will be very unlikely to be the case here.  

87.Quite the contrary, it would be more sensible for the then marking artisan or surveyor to fix the front lines of CP 27/28 by simply extending 14 feet 6 inches from the long side of CP 26 towards the driveway. The measured length of CP 27 now being 14 feet 5 inches, i.e. 173 inches with a frontage at position C instead of 174 inches as marked on the approved plan is, in my view, an acceptable human error in fixing the boundary.    

88.By reasons of the above I reject the respondent’s suggestion that the front line of CP 27 should be at position A.  The respondent has failed as a matter of evidence, factual and expert, to demonstrate that the boundary of CP 27 now asserted by the applicants and found by this Tribunal to have existed since its occupation in 1977 was wrongly marked or otherwise not in accordance with the approved plan.

Conclusion and Orders

89.This Tribunal accepted that the boundary of CP 27 now asserted by the applicants with front line at position marked C in Photo No. 1 annexed to the respondent’s Notice of Opposition and Counterclaim had remained unchanged since 1977 when the applicants obtained possession of it then. Its position, size and boundary were accepted by the Government to have complied with, inter alia, Special Conditions Nos. 10 and 13 and accordingly a Letter of Compliance was issued. The expert evidence adduced by the respondent has failed to demonstrate that CP 27’s boundary is not marked in accordance with the Government approved plan.

90.Since the size asserted by the applicants and accepted by this Tribunal is 173 inches by 84 inches instead of 174 inches x 84 inches, no declaration as requested by the applicants will be made, though the minor discrepancy is within acceptable limit of error.

91.By reasons of the above, this Tribunal make the following orders:

i)    CP 27 has a front line at position marked C as shown in Photo No. 1 annexed to the Notice of Opposition and Counterclaim of the respondent dated 23^rd May 2013;

ii)   The current position, size and boundary of CP 27 asserted by the applicants were marked in accordance with the car park layout plan maintained pursuant to Special Conditions No. 10 and 13; and

iii)   The respondent’s counterclaims are dismissed.

92.The present Application was entirely caused by the unilateral re-marking by the respondent of the car parking spaces of the Cambria Court, which as seen from above, has failed to comply with the approved plan, at least in some respects. Further I must say that the respondent’s evidence, factual and expert, has totally failed to support its case. A lot of time has been wasted in dealing with evidence which was only disclosed for the first time at trial. This Tribunal fails to see why it should not be liable for the applicants’ costs of the Application. Further, as costs normally are to follow the event, this Tribunal now makes an order nisi that the respondent do pay the applicants’ costs of the Application, such order be made absolute if no application is made to have it varied within 14 days.

Mr Siu Chung CHAN of S.C. Chan & Co for the applicants

Mr Kelvin LEUNG instructed by Pansy Leung Tang & Chua, for the respondent