The Secretary for Justice Formerly Known As the Attorney General v. Wing Lung Wai Community and Others

CACV000173/1996

CACV173/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 173 OF 1996

(ON APPEAL FROM HCA NO. 8568 OF 1995)

______________

Coram : Hon Chan CJHC, Mayo and Rogers JJA in Court

Dates of hearing : 20 & 21 July 1999

Date of handing down judgment : 29 July 1999

_______________

J U D G M E N T

_______________

Chan, CJHC :

1. This is an appeal by the 2nd defendants against the decision of Waung J. The present action was commenced by the 1st and 2nd plaintiffs who are contractors involved in the design and construction of a public road. Under that project, it is necessary to relocate a primary school to a site in the Wing Lung Wai Village, Kam Tin. The 1st defendants allege that the site for the proposed new school falls within Lot No.424 in Demarcation District No.109 which was granted by the Crown to and registered in the name of the 2nd defendants under a Block Crown Lease dated 24 January 1905. In their counterclaim, the 2nd defendants claim, among other things, a declaration against the Government (the 3rd plaintiff) that the area of Lot No. 424 is 4.64 acres and that the site of the proposed new school is within the boundary of this lot. The Government seeks a declaration that the defendants do not have any right or interest in that site. At the end of the trial, the judge dismissed the counterclaim with costs and made the declarations sought by the Government.

The issue in this appeal

2. It is not disputed that the 2nd defendants were the registered lessee from the Crown under the Block Crown Lease of Lot No.424 in Demarcation District No.109. The Government says that only 0.15 acre of land was granted and that it does not cover the site where the new primary school is to be relocated. This area of land is represented by 5 small boxes shown on existing plans. On the other hand, the 2nd defendants say that the area of the Lot was and is 4.64 acres and hence covers the site of the proposed new school. This is represented by a much larger area shown on existing plans which include the 5 small boxes. In essence, the question in issue is: what was actually granted under the lease?

3. In the usual case, this question can be resolved by construing the relevant conveyancing document. The size of a parcel of land granted under a conveyance (including a Crown Lease) can be ascertained from the description in the parcel clause contained in the conveyance and sometimes also from any plan which is annexed to the conveyance and specifically referred thereto. How much reliance can be placed on the plan depends on the intention of the parties as can be ascertained from the conveyance. It is usually a matter of construction of the terms contained in the conveyance.

The Block Crown Lease

4. In the present case, it was not an ordinary Crown Lease, but a Block Crown Lease. By this document, the Crown granted to the lessees whose names appear in the Schedule the parcels of land which are set out in the Schedule against the names of the respective lessees by reference to a lot number, the area in that lot, the description of the land, the Crown rent which is payable and the terms of the respective leases. This Block Crown Lease is to be relied upon by all the lessees appearing in the Schedule who were granted the particular parcels of land referred to in the Schedule. The material part of the Block Crown Lease which granted the various leases reads as follows :

"Now, this indenture witnessth that in consideration of the yearly rents and covenants and stipulations hereinafter reserved and contained by and on behalf of each Lessee respectively to be paid, done and performed, His said Majesty KING EDWARD VII doth hereby grant and demise unto each Lessee ALL that piece or parcel of ground situated, lying and being Survey as District No.109 in the New Territories in the Colony of Hong Kong set out and described in the Schedule hereto opposite to the name of such Lessee AND which said piece or parcel of ground is more particularly delineated and described on the plan or plans of Survey District No.109 attached hereto according to the lot number set out in the Schedule hereto opposite to the name of such Lessee and marked on the said plan together with the....."

5. In brief, the Schedule sets out and contains the description of the parcel of land granted which is more particularly delineated and described in a plan annexed to the Block Crown Lease. Unfortunately the plan is no longer legible, at least in that part which relates to Lot No.424.

Two main points

6. Mr Tang SC for the 2nd defendants argues two main points. The first is based on what appears on the plans which were prepared by the Government subsequent to the Block Crown Lease. He purports to demonstrate from these plans and the evidence before the court that the now illegible plan which was annexed to the Block Crown Lease would show that the figure of "424", i.e. the Lot number, would have appeared in the middle of a much larger area which represents 4.64 acres. If he is successful in establishing this, he seeks to argue his second point which is that there is a conflict between the description in the Schedule and the plan regarding the size of the area granted under the lease and that by virtue of the wording in the parcel clause, the plan prevails. Counsel submits that the trial judge was wrong on both points. The judge, it is submitted, should have held that what was granted was the whole of the larger area and that it is 4.64 acres. On the second point, he was also wrong to hold that the text in the Schedule prevails over the plan.

The plan in question and subsequent plans

7. To make good his first point, Mr Tang went through various plans and referred to the evidence of some of the witnesses. A number of plans were relied on by him.

(1) The first is a copy of what was said by PW1, Chong Wai Choi, Principal Land Executive, to be one of quite a number of working plans used to prepare the plan annexed to Block Crown Lease. This was prepared before 1905 and based on a land survey conducted in about 1900 by surveyors brought in from India. It is commonly referred to as a Field Sheet. This shows that the figure of 424 was written in red in the larger area under another figure of 2611 and that there were other figures in the 5 small boxes. The red number was the number assigned to a claim to the land and the other figures would be the original lot numbers.

(2) The second plan is a copy of the DD Control Sheet which also shows the figure of 424 in the larger area. It is not known when this plan was prepared, but it must have been between 1905 (after the Block Crown Lease) and 1955 (when another DD Control Sheet was prepared). The evidence suggests that it would have been before 1939. Mr Tang submits that this Control Sheet must have been based on plans prepared before 1905, including the plan annexed to the Block Crown Lease.

(3) The third is a copy of the 1955 DD Control Sheet. This shows the figure of 424 in the larger area with a line across it while this figure also appears in the smaller boxes. The larger area is not coloured yellow which colour would indicate that it is Crown land. Mr Tang submits that all these demonstrate that the Government did not regard this portion of land to be Crown land but that changes were made to the plan so that only the 5 small boxes became Lot No. 424 but not the larger area.

(4) Finally, there is a copy of the DD Control Sheet which was prepared in 1975. The figure of 424 in the larger area disappears but is written in the small boxes. The larger area has since been coloured yellow to show that it is now Crown land.

8. Mr Tang argues that the result of this exercise is that according to the Field Sheet and the DD Control Sheets, what was designated Lot No. 424 was the larger area shown on these plans. He submits that since these plans were either prepared in connection with the Block Crown Lease or were based on it, the only conclusion one can draw is that the figure of 424 would have appeared in the larger area in the now illegible plan which was annexed to the Block Crown Lease. His argument is that Lot No.424 covers not only the smaller boxes but also the larger area and that the whole area of the Lot is 4.64 acres.

9. Having analysed the evidence including the plans, the trial judge refused to draw the conclusion which Mr Tang asked him to draw. He said at page 9 of the Appeal Bundle :

"Because of what appear on the Field Sheet and Field Area Statement, Mr Tang then asked me to find that on the unreadable Plan, the figure 424 would appear in the middle of the equivalent of Land D in the Plan and that the figure 424 would not appear in any of the equivalent Land A boxes, Land B box or Land C box in the Plan. The significance of his submission is that I must therefore conclude and find that the Plan will show Lot 424 as comprising the whole of Land A, Land B, Land C and Land D. It is this jump from what appears in the Field Sheet to what must appear on the plan which I find difficult to accept. It must not be overlooked that the two documents, Field Sheet and Plan served two very different purposes. Just because in the Field Sheet and in the Field Area Statement, Lot Numbers had been assigned and marked on the Field Sheet, it does not follow that the same numbers will be assigned and marked on the Field Sheet, it does not follow that the same numbers will appear in the Plan which is a land grant document or that the same Lot Number must appear in the same place in the Plan as appeared in the Field Sheet and this is specially so in the case of a particular Lot which is made up of several plots of land. I do not know what intermediate steps had been taken or intermediate documents which might have come into existence between the time of coming into existence of Field Sheet and Field Area Statement on the one hand and the time of coming into existence of the Plan on the other hand. It is really too speculative for me even on the balance of probabilities to come to a view as contended by Mr Tang."

10. I must say that notwithstanding Mr Tang's thorough submissions, I have no reason to disagree with the trial judge. The arguments in connection with this point can be better understood in the light of the history of events leading to the Block Crown Lease. This was set out in a comprehensive way by the trial judge in his judgment. It would appear that in about 1900, a land survey was conducted in the New Territories by some government surveyors brought in from India. The land survey was recorded on Field Sheets showing the various lots of land. Contemporaneous with such Field Sheets, there were the Field Area Statements which set out by each lot number, the area in acre and the description of the nature of land. Following from these Field Sheets and Field Area Statements, claims to these lots were invited and they were determined by the Land Court. Then a Block Crown Lease with a plan annexed was prepared granting various plots of the land to various claimants in each Demarcation District.

11. While the Field Sheet and the Field Area Statement which are relied on by counsel were prepared before and in connection with the Block Crown Lease, it is accepted that they are not identical with the plan annexed to the Block Crown Lease. It would also seem that whatever was shown on the relevant Field Sheet and Field Area Statement is not necessarily the area which was granted under the Block Crown Lease. What was granted under the Block Crown Lease was done consequential upon a determination by the Land Court and subject to the willingness of the lessee in taking such a grant. As PW1 said (at p.99 of the Appeal Bundle) :

"When this ...field sheet is prepared, then ... the claim was presented to the land court. Then the land court might either decide to grant them, or some of them were not taken up by the claimant, then amendment would have been made to this. Some lots might be crossed out, some might be added. Some empty lots, there was an area without a number, without a claim. These changes having been made, then it would be attached to the Block Crown Lease, then it becomes a Block Crown Lease plan. ... It may not be identical."

12. The trial judge was certainly correct when he said that the Field Sheet and the Block Crown Lease plan were prepared for different purposes. The figure of 424 which appeared on the Field Sheet in red (underneath the figure of 2611) was in fact the number of the claim before the Land Court and it was this number which later became the lot number. There could be many reasons for this figure remaining in subsequent and other plans. What were the real reasons is mere speculation.

13. The Control Sheets were prepared at a later stage and were, it is accepted, possibly based on previous plans such as the Field Sheet and also the plan annexed to the Block Crown Lease. However, it was not clear exactly how and when the oldest Control Sheet (at page 63 of the Yellow Bundle) was prepared. Counsel was prepared to accept that it was probably before 1939 but he could not be any more precise. During the 30 years or so, several changes happened to the land shown in the plan. Some portions were auctioned, exchanged and granted new numbers. There were further grants in 1936 and 1957. (See the minutes of a meeting between the representatives of the District Office and the predecessor of the 2nd defendants in 1962.) All these would have affected the outlook of the plans.

14. It is pointed out that the larger area in the Field Sheets and the earlier Control Sheets was not coloured yellow indicating that it is Crown land. It is submitted that this goes to show that the whole of the larger area was conveyed. However, this would, in my view, be inconsistent with the Crown making various grants by auction and exchanges to various people including in particular those who were members of the 2nd defendants community. The minutes of the 1962 meeting show clearly that the representative of the District Office had pointed out that the larger area was Crown land. It was because the larger area had previously been used for community uses that the officer said during the meeting that the Government would not use it for building purposes or other purposes without consulting the community. That probably was the reason why the Control Sheets did not have these larger area coloured yellow. I do not think that there is anything in this argument.

15. Because of these uncertainties, I think the trial judge was right in refusing to make the jump between what appears in the Field Sheet and what appears in the plan annexed to the Block Crown Lease. The gap is simply too wide to bridge. Notwithstanding the ingenious arguments of Mr Tang, I am not persuaded, as the judge was not persuaded, that the conclusion which counsel wants me to draw is the only conclusion which can be drawn from the materials before the court. Furthermore, the trial judge has made a finding on the facts which can be supported by the evidence. I do not think an appellate court should easily interfere with such a finding. (See Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657.)

16. With respect, Mr Tang's first point fails. There is simply no sufficiently clear evidence as to what the plan annexed to the Block Crown Lease would have shown. It is not necessary to make the findings which the trial judge had made (on page 10 of the appeal bundle) in respect of this plan. In my view, if the 2nd defendants cannot establish that the plan annexed to the Block Crown Lease would have shown something different, the description in the Schedule stands. This is sufficient to dispose of the appeal and the 2nd defendants' counterclaim was rightly dismissed.

Construction of the Lease

17. Even if the plan annexed to the Block Crown Lease does in fact show that the figure of 424 appears in the larger area, I do not think that would assist the 2nd defendants' case.

18. Mr Tang's submission on the second point is this. There are two entries in the Field Area Statement in respect of the number 424 on the plan : an area of 0.15 acre of land described as "floor" (which was understood to mean threshing floor) and another area of 4.49 acres of land described as "uncultivated". There are various areas of land that are described as uncultivated which were granted under the Block Crown Lease but described in the Schedule as "waste". The Schedule contains the following description of the lot granted to the 2nd defendants : the area is 0.15 acre; the description of the lot is "threshing floor waste"; and the Crown rent payable is 15 cents. Counsel submits that either the description of "threshing floor waste" or the area 0.15 acre is a mistake. The only reasonable inference is that the Lot granted comprises not just the threshing floor but also the waste. This inference can be supported by the plan annexed to the Block Crown Lease if it could show that the figure of 424 is written in the larger area as this would indicate that what was granted was the whole area and not just the area represented by the 5 small boxes on the plan. Counsel submits that if there is a conflict between the description and the plan, by reason of the reference that the parcel of land is to be "more particularly delineated and described" in the plan, the plan prevails. Counsel relies on Wigginton v. Milner Limited & Winster Engineering Limited [1978] 1 WLR 1462 in which Buckley LJ cited with approval what Megarry J said in Neilson v. Poole (1969) 20 P & CR 909 :

"... phrases such as 'more particularly delineated,' or 'more particularly described,' or 'more precisely delineated,' used in reference to a plan, are words which tend to show that in case of conflict or uncertainty the plan is to prevail over any verbal description: see for example, Eastwood v. Ashton [1915] AC 900; Wallington v. Townsend [1939] 2 All ER 225."

19. Reliance is also placed on the comment made by Lord Wrenbury in Eastwood v. Ashton at page 920:

"I find that the description by plan is couched in the words 'all which said premises are more particularly described.' The words 'more particularly' exclude, I conceive, that they have already been exhaustively described. Those words seem to me to mean that the previous description may be insufficient for exact delimitation, and that the plan is to cover all deficiencies, if any."

20. Counsel also relies on Lintock Company Limited v. Attorney General [1985] 2 HKC 555 which deals with a similar case involving a Block Crown Lease using an identical parcel clause. He submits that that case is distinguishable in that the two matters on which the judge there relied heavily, i.e., the lessee had difficulty in establishing title in the land and was also unable to pay the Crown rent, do not apply in the present case.

21. In my view, different conveyances use different descriptions of the parcel of land to be granted and adopt different formulae with regard to the use to be made of the plan annexed to the conveyance. If there is a dispute with regard to what is actually conveyed, that is a matter of construction of the whole conveyance, including the parcel clause and the plan, in the light of other relevant surrounding circumstances. The object is to ascertain what the parties intended to be passed under the document and what is passed. I would respectfully agree with what Buckley LJ said in Wigginton v. Milner Limited & Winster Engineering Limited at page 1473:

"When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention the court must of course give effect to that stipulation."

22. In previous decided cases where phrases such as "more particularly delineated", "more particularly described", or "more precisely delineated" were used in connection with plans annexed to the relevant conveyancing documents, they are cases in which the court held that upon the true construction of the conveyance in question and in the circumstances of these cases, the parties intended to and had agreed to give priority to the plans. In every case, it is still a matter of construction of the relevant document as a whole in order to ascertain the intention of the parties. As Hunter J said in the Lintock case, if it is impossible to extract the parties' intention with any sort of clarity from the four corners of the document, the court had to look at all the surrounding circumstances.

23. In my view, the most important thing is to ascertain what was intended to be granted under the Block Crown Lease in respect of Lot No.424. In the Schedule, there is a clear statement that what is to be granted is 0.15 acre of land and that the annual Crown rent is to be 15 cents. Although the description of the land was "threshing floor waste", it cannot be said positively, let alone with any degree of certainty, that the description refers to two types of land to be granted under the lease. There can be many reasons why the word "waste" also appears after "threshing floor". This may be due to the different conditions in the land to be granted. It must be remembered that the grant was consequent upon a determination of the Land Court after the land survey in 1900. There may be many reasons (not necessarily the two reason suggested in the Lintock case) for not taking up a grant of an area of 4.49 acres of uncultivated (or waste) land. Even if it can be proved that the plan annexed to the Block Crown Lease might have the Lot No. 424 shown in the middle of the larger area, this is far from establishing that the parties clearly intended that it is the whole of the larger area shown on the plan that was to be granted under the lease. The difference in rent for an area of 0.15 acre and that for an area of 4.69 acres was too much to be overlooked by anyone responsible for paying rent. If it had been intended that the whole of the larger area was to be granted and for only 15 cents, this would have been a reason for suspicion.

24. I note that the facts of the Lintock case are very similar. In that case, the Schedule described the land to be granted as 0.127 acre of a house in ruin. There was a plan annexed to the Block Crown Lease and the Lot No. appeared in the middle of the plan. If the whole space was to be scaled up to a modern plan, that would amount to 1.27 acres. The lessee in that case argued that what was granted was in fact 1.27 acres. The trial judge, having analysed the circumstances of the case including the Block Crown Lease, came to the conclusion that notwithstanding what was shown on the plan (which contained the Lot No. in the middle), what was conveyed under the lease was in fact a house which was only 0.01 acre.

25. In the present case, what is stated in the Schedule about the area to be granted and the Crown rent to be payable are quite clear and unambiguous. These are important matters in the construction of the whole document. In my view, the trial judge was right to rely heavily on them. It would seem that upon the true construction of the Block Crown Lease, even if the now illegible plan could be shown to have the Lot No.424 appearing in the larger area, it cannot be said that the intention of the parties under the Block Crown Lease was to grant a total of 4.64 acres of land.

26. For these reasons, I would dismiss the appeal. I would also make an order nisi for costs against the 2nd defendants.

Mayo, JA :

27. I agree.

Rogers, JA :

28. I agree.

29. I only wish to add a few words of my own since, in my view, the decision in this case is clear but I appreciate the strongly held emotional attachment which the Defendants may feel in respect of land close to their homes which apparently has been used for community purposes for many years.

30. The burden in this appeal is, of course, on the Appellants to show that the Judge below was wrong in not concluding that the Block Crown Lease in respect of Lot 424 in DD 109 was in respect of an area of 4.64 acres.

31. In order to show that the Appellants sought to demonstrate that the Judge was wrong in not concluding that the plan attached to the Block Crown Lease showed Lot 424 as being 4.64 acres. The argument was founded on the basis of a comparison between the Field Sheet and those of the DD Control Sheet which are now available. It was said that the figure of 424 should have appeared in the middle of a large area which represented waste land of some 4.64 acres. As was pointed out in the course of argument, to attempt to reconstruct the plan attached to the Lease by reference to the Field Sheet with or without the Control Sheets was no more than speculation. Indeed, insofar as what remains of the plan attached to the Lease could be deciphered, there appeared to be grounds for suggesting that it was different from those documents. It would have been quite wrong, in my view for the Judge below to have made any such finding as the Appellants suggest he should have done.

32. Even if the plan attached to the Block Crown Lease did show the figure 424 in the middle of the open area, that would not, in my view, conclude the matter. Apart altogether from the question of construing what the plan meant, the important matter remains as to the proper construction of the Block Crown Lease. The Appellants' argument proceeded upon the basis that when the lease was properly construed, it would mean that regard would have to be had almost exclusively to the plan. The basis of the argument stemmed from the use of the words "threshing floor waste" in the schedule to the lease.

33. Whereas in the Field Area Statement, it is clear that the larger area of 4.49 acres was described as "uncultivated" and the smaller areas of 0.15 acres was described as "threshing floor", the fact that a different nomenclature may have been used in respect of the 0.15 acres in the lease from that used in the Field Area Statement, again, in my view could not be taken too far. There are instances of other lots where clearly the description in the schedule of the Block Crown Lease differs from the description in the Field Area Statement. Furthermore, given the likely nature of a "threshing floor" in the New Territories at the turn of the century, I do not consider it surprising at all that the various small portions which are marked as blocks on the Field Sheet and the Control Sheets should be described in the Block Crown Lease as "threshing floor waste". That might well have been an appropriate description of the areas when described collectively.

34. In my view and for the reasons which have already been given, I consider that the judgment below was correct and should not be disturbed.

Chan, CJHC :

35. The appeal is therefore dismissed. We would make an order nisi for costs against the 2nd defendants, with liberty to apply to the parties in relation to the question of costs.

Representation:

Mr Robert Tang SC leading Mr Christopher S H Lam instructed by Messrs Dickie Tsang & Co for appellants

Mr Peter Graham instructed by Messrs Cameron McKenna for respondent