WAN YUK WING v. WONG KWOK HING PATRICK AND ANOTHER

HCA 1713/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1713 OF 2007

_________________________

BETWEEN

	WAN YUK WING	Plaintiff
	And
	WONG KWOK HING PATRICK	1st Defendant
	WONG PAUL KWOK JONE	2nd Defendant

_________________________

Coram : Before Master K. Lo in Chambers

Date of Hearing : 16 March 2011

Date of written submission on costs: 25 March 2011and 29 March 2011

Date of Handing Down Decision : 4 August 2011

_______________

D E C I S I O N

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Background

1.  Plaintiff is and was at all material times registered owner of a property known as all those pieces or parcels of land registered in the Tai Po New Territories Land Registry as subsection 1 of Section A of Lot No. 1323 in Demarcation District No. 8, Tai Po, New Territories (“the Plaintiff’s Lot”), also known as No. 89, San Tong Village, Kam Tsuen, Tai Po, New Territories, Hong Kong. (“Plaintiff’s Property”)

2.  Defendants are and were at all material times the registered owner of all that piece or parcel of land registered in the Land Registry as Subsection 3 of Section A of Lot No. 1322 in Demarcation District No. 8, Tai Po, New Territories (“the Defendants’ Lot”) which is adjacent to the Plaintiff’s Lot.

3.  According to the Plaintiff, there is a footpath leading from the Plaintiff’s Lot running over and across the Defendants’ Lot to the Lam Kam Road (“the Disputed Way”).

4.  It is Plaintiff’s case that he and his predecessors in title of the Plaintiff’s Lot have continuously for the period of about 60 years or more before commencement of this action enjoyed and use the Disputed Way as of right and without interruption for the purpose of passing and repassing by himself, his licencees, servants at all times and for all purposes. The Plaintiff claimed the right to use the Disputed Way by prescription. Plaintiff said further that the Disputed Way was the only access to Lam Kam Road from the Plaintiff’s Lot and the Plaintiff claimed the right to use the Disputed Way at all times and for all purposes as a way of necessity.

5.  On 11 May 2007, the Defendants stopped the Plaintiff from using the Disputed Way.  They did so by erecting a fence around their land thus denying the Plaintiff access to the Disputed Way which was then a concrete path of 1 metre wide and running across the Defendants’ Lot.  They also removed the concrete layer from the path.

6.  On 10 August 2007, by way of inter partes summons, the Plaintiff applied for interlocutory injunction to compel the Defendants to remove the fence obstructing access to the concrete path and an injunction to compel the Defendants to reinstate the concrete path over the land.

7.  By consent order dated 31 August 2007, the Defendants agreed before trial, to reinstate the concrete path and to allow Plaintiff access to the Disputed Way over the concrete path by demolishing the wire fence.

8.  It was said the concrete path over the Disputed Way was completed by 7 September 2007 but the Plaintiff complained that said the same was not of the same dimension as before.  The Defendants therefore, at request of the Plaintiff, again reinstated the concrete path in manner prescribed by the Plaintiff.  Plaintiff made use of the concrete path in about November 2007.

9.  The case was later tried before Recorder A. Chan who ruled on 21 August 2009 that the Plaintiff was not entitled to use the Disputed Way for residential purposes.  The Plaintiff said his licences, servants and agents was further restrained from entering or using the Disputed Way without the Defendants’ permission.  There was also a mandatory injunction against the Plaintiff to remove the concrete surface over the Disputed Way.

10.  Plaintiff appealed and the same was allowed on 17 August 2010.  An injunction to restrain the Plaintiff from using the Disputed Way otherwise than for pedestrian access was granted.

11.  The Court of Appeal also issued a declaration that the Plaintiff, his licensee or servants are entitled to use the Disputed Way for pedestrian access and that the Plaintiff was entitled to an easement over the Disputed Way in the form of 1-2 feet wide soil, mud path only.  They confirmed the learned Recorder’s reasoning that the Plaintiff was never entitled to a concrete pathway over the Disputed Way.

12.  The Court of Appeal also ordered an enquiry as to what loss and damages, if any, has been suffered by the Plaintiff as a result of the denial of pedestrian access over the Disputed Way.

13.  They also held that there be an enquiry as to what loss and damages, if any, has been suffered by the Defendants, as a result of their compliance with the Consent Order dated 31 August 2007.  They also granted an order for payment of any sums found due on the taking of the enquiry.

14.  Costs of the appeal were awarded to the Plaintiff.

15.  Parties through their solicitors agree by way of Consent Summons that the respective enquiry as to loss and damages be conducted by filing and serving affirmation verifying the account on loss and damages with copies of relevant documents exhibited followed by the other parties also filing and serving their affirmation setting out their contention/objections on the said account in form of a Scott Schedule.  They same was endorsed by an order of this Court on 14 September 2010.

Enquiry as to loss and damages, if any, suffered by the Plaintiffas a result of denial of pedestrian access over the Disputed Way

16.  We first deal with the enquiry as to loss and damages, if any, suffered by the Plaintiff as a result of the denial of pedestrian access over the Disputed Way.

17.  It is undisputed that as from 11 May 2007, the fence erected by the Defendants denied Plaintiff access to the Disputed Way.

18.  It is a fact that as from early September 2007, as found by Recorder A. Chan, the Defendants had already removed the fence and the Plaintiff was not denied access to the Disputed Way.

19.  The Defendants argued that Plaintiff had always insisted on only using the Disputed Way in the same concreted way as before 11 May 2007.  In fact, Plaintiff told the Court the same when the case was heard before Recorder A. Chan.  They, therefore, should not be entitled to any loss and damages even though the Defendants had erected the wired fence as the Plaintiff would, in any event, not used the Disputed Way (then a muddy path as the concrete layer was removed by the Defendants).

20.  I am not persuaded by this argument.  Once the wired fence is erected, the Plaintiff was deprived of the chance to use the Disputed Way.

21.  According to the evidence of the Plaintiff, the Defendants had broken the concrete layer of the Disputed Way on 16 May 2011.  Had they also removed the wired fence at that stage, then this Court agrees that the Plaintiff is not entitled to any loss and damages since 16 May 2011.  This however is not the case here.

22.  This Court will therefore conduct the enquiry on the basis that the Plaintiff was denied access from 11 May 2007 to early September 2007 i.e. the time when according to the finding of Recorder A. Chan, the wired fence was removed.

23.  In the affirmation of the Plaintiff filed on 27 October 2010 the Plaintiff claimed: -

Cost for purchase of documents/plans

24.  When the case was heard before Recorder A. Chan, Plaintiff had not pursued this claim.  This Court takes the view therefore the claim is not alive anymore.

25.  In any event, Plaintiff said after he was denied access to the Disputed Way, he bought land registry documents, maps and plans, records, etc. and had incurred costs. 

26.  In support of this claim, he exhibited receipts as “AW-6” (page 39 to page 55 of Bundle of Exhibits). 

27.  This Court examined these receipts and found some were in fact expenses paid for plans/photos from Land Registry, expenses for purchasing photocopying papers, receipts issued by bookstore without any description, cash payment receipts without even the name of the issuing company or description of goods/service purchased, receipts from Wellcome Supermarket for purchase of toilet rolls, etc.  There were even receipts issued by bookstore for purchase of Economic books, stationery, receipts from computer shop for purchase of a transformer, certificate of purchase issued by Hong Kong Post for purchase of stamp.  Further, a number of these receipts are produced more than once.

28.  This Court does not find any of these expenses to be loss suffered by the Plaintiff resulting from denial of access to the Disputed Way. At most, one can argue source of these expenses may be counted as costs of the action.  That is a matter for taxation, not for the present enquiry.

29.  Accordingly, no award is made under this head.

Claim for daily necessities (such as food, clothing, spectacles, computer and items for schooling)

30.  Plaintiff said they used $22,500 to purchase clothing and personal items as Plaintiff and his wife, 3 children and his mother had access to their necessities denied.

31.  Receipts were exhibited as “AW-7” (page 56 to page 107 of Bundle of Exhibits) to his affirmation.

32.  Again, much of these receipts were duplicated, such as those on P. 60, P.63, P. 66, P. 69, P. 72, P. 75, P. 78, P. 84, P. 87, P. 90, P. 93, P. 96, P. 99, P. 102, P. 112, P. 115, P. 118 and P.121 of bundle of exhibit.

33.  Though the Plaintiff was denied access since 11 May 2007, only 1 receipt disclosed was dated May 2007 and 4 receipts dated June 2007. One could not therefore see how these expenses, supported the allegation that they were used to purchase daily necessities as a result of denial of access.

34.  This Court is of the view that in the absence of good reasons, any expenses incurred after early July, i.e. 2 months after the denial of access could not be for the aforesaid purpose.

35.  Accordingly, I have disallowed all claimed expenses not proved to be expended before early July 2007 and related to the denial of access event.

36.  The following are my decision: -

Page no in exhibit bundle	Date expenses incurred	Amount claimed ($)	Amount allowed ($)	Reason
57	Unknown	299	0	Receipt illegible and item disallowed
57	12/5/2007	20	20	Purchase of shoe, necessity and allowed
57	26/6/2007	130	130	Men’s shirts, necessity and related and allowed
58	3/7/2007	179	179	Sportswear necessity and allowed
58	2/7/2007	715	0	Nature of expenses unknown and disallowed
58	3/7/2007	137	0	Nature of expenses unknown and disallowed
59	Unknown	593.45	0	Nature of expenses unknown and disallowed
59	3/7/2007	439	439	Shirt, expenses proved to be related, necessity and allowed
60 (duplicate of p. 59)
61	6/7/2007	79	79	Shoes company receipt, presumably for purchase of shoe, proved to be related, necessity and allowed
62	7/7/2007	2,320	0	Nature of expenses unknown and disallowed
62	7/7/2007	395	0	Good described as “bag” and “ball”, no explanation given as to why they need be purchased, not proved to be related to incident and/or necessity and disallowed
63 (duplicate of p. 62)
64	23/7/2007	1,024	0	Women clothing purchased, too long after denial of access, not proved to be related to incident and/or necessity and disallowed
64	20/7/2007	190	0	Women clothing purchased, too long after denial of access, not proved to be related to incident and/or necessity and disallowed
65	23/7/2007	1,041.7	0	3 blouses purchased, too long after denial of access, not proved to be related to incident or necessity and disallowed
65	26/7/2007	470	0	Clothing expenses, too long after denial of access, not proved to be related to incident and/or necessity and disallowed
66 (duplicate of p. 65)
67	26/7/2007	532	0	No explanation as to why cash memo issued in favour of “nature direction” and disallowed
68	26/7/2007	408	0	Nature of expenses unknown and disallowed
69 (duplicate of p. 68)
70	28/7/2007	481.4	0	Receipt illegible, nature of expenses unknown and disallowed
71	7/8/2007	250	0	Spectacles ordered nearly 3 months after access denied, expenses not proved to be related to incident and/or not necessary and disallowed
71	30/7/2007	165	0	Swim caps ordered nearly 3 months after access denied, expenses not proved to be related to the denial of access and/or not necessary and disallowed
72 (duplicate of p. 71)
73	17/8/2007	390	0	Expenses incurred nearly 3 months later, nature of expenses unknown and disallowed
73	8/8/2007	813	0	Expenses incurred nearly 3 months later, nature of expenses unknown and disallowed
74	14/8/2007	45	0	Expenses incurred nearly 3 months later, nature of expenses unknown and disallowed
74	8/8/2007	2,191	0	Clothing brought nearly 3 months later, not proved to be related to incident and/or necessity for daily living and disallowed
75 (duplicate of p. 74)
76	17/8/2007	628	0	Clothing and shoulder bag brought more than 3 months later, not proved to be related to  incident and/or necessity and disallowed
77	18/8/2007	1,208	0	Clothing brought more than 3 months later, not proved to be related to incident and/or necessity and disallowed
78 (duplicate of p. 77)
79	18/8/2007	380	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
79	18/8/2007	620	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
80 & 81	Not receipts
82	20/8/2007	160	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
82	20/8/2007	664	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	27/8/2007	260	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	25/8/2007	60	60	Sunglasses purchased more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	25/8/2007	260	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	24/8/2007	160	0	Nature of expenses unknown and disallowed
84 (duplicate of p. 83)
85	Date illegible on receipt	358	0	Nature of expenses unknown and disallowed
85	28/8/2007	200	0	Bags purchased 3 months later, not proved to be related to incident and/or necessity and disallowed
85	28/8/2007	209.3	0	Wear purchased 3 months later, not proved to be related to incident and/or necessity and disallowed
86	Date illegible on receipt	38	0	Nature of expenses unknown and disallowed
87 (duplicate of p. 86)
88	27/8/2007	160	0	Nature of expenses unknown and disallowed
89	Date illegible on receipt	70	0	Not proved why expenses for DVD is related to incident and/or necessary and disallowed
90 (duplicate of p. 89)
91	5/6/2007	46.4	46.4	Purchase of Goggles necessary and reasonable for swim and allowed
92	5/6/2007	10	10	Purchase of CD box shell and CD box reasonable and allowed
93 (duplicate of p. 92)
94	16/6/2007	15	0	No explanation why purchase of 沙咀 necessary or reasonable, disallowed
95	Receipt illegible			Claim disallowed
96 (duplicate of p. 95)
97	27/8/2007	18	0	Electric socket purchased 3½ months later, reason not explained, in any event, not proved to be related to incident and disallowed
98	9/7/2007	89	0	Nature of expenses unknown and disallowed
99 (duplicate of 98)
100	22/7/2007	545.4	0	Receipts partly legible, they appear to be receipts for literary works.  Expenses not proved to be related to the incident or reasonable and disallowed
101	22/7/2007	249	0	They are expenses for literary works and are not proved to be related to the incident, expenses not necessary or reasonable and disallowed
102 (duplicate of p. 101)
103	Receipt illegible			Claim disallowed
104	5/8/2007	95	0	Nature of expenses unknown and disallowed
105 (duplicate of p. 104)
106	Date unknown	279	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
106	Date unknown	285	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
106	Date unknown	135	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
106	Date unknown	279	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
107	5/8/2007	87	0	Receipt partly illegible. Nature of expenses unknown and disallowed

37.  The total amount allowed under this head is $963.4.

38.  Plaintiff also exhibited receipts “AW-8” (page 108 to page 121 of Bundle of Exhibits), allegedly relating to payment for purchasing books, computer, computer accessories and household items replaced due to denial of access of the Disputed Way.

Page no in exhibit bundle	Date expenses incurred	Amount claimed ($)	Amount allowed ($)	Reason
108	Not receipts
109	5/8/2007	87	0	Nature of goods purchased unknown as description of goods illegible and disallowed
110	5/8/2007	670	0	Computer accessories purchased 2½ months later, not proved to be related to the incident and/or necessity and disallowed
111	20/8/2007	2,780	0	Computer accessories purchased 2½ months later, not proved to be related to the incident and/or necessity and disallowed
112 (duplicate of p. 111)
113	Date in July 2007	Amount illegible		Receipt illegible and nature of goods unknown and disallowed
114	5/8/2007	11,880	0	No invoice or receipt produced (only credit card signing chit), nature of goods bought unknown, item disallowed
115 (duplicate of p. 114)
116	23/8/2007	1,602	0	Nature of goods purchased described as Phone Package.  Reason why this good is related to the event and/or necessary or reasonable replacement in this case is not given, item disallowed
117	11/8/2007	89.90	89.90	This household item purchased 3 months after the event, not proved to be related to the event and disallowed
118 (duplicate of p. 117)
119	22/10/2007	613.10	0	Expenses incurred after access to Disputed Way restored and disallowed
120	6/11/2007	228	0	Expenses incurred after access to Disputed Way restored and disallowed
121 (duplicate of p. 120)
275	5/11/2007	2660	0	Fridge allegedly bought as replacement for want of repair during denial of access period not accepted and disallowed
275	5/11/2007	348	0	Rice cooker allegedly bought as replacement for want of repair during denial of access period not accepted and disallowed

39.  The total amount allowed under this head is therefore $89.9.

Claim for loss of business

40.  In paragraph 18 of the affirmation of the Plaintiff, Plaintiff said he spent a lot of time looking after his mother who was not feeling well after access to the Plaintiff’s Property was denied.  He also had to spend time dealing with the denial of Disputed Way matter.

41.  He also said as he was the managing director and major shareholder of Infomaster Holdings Ltd. (“IHL”), he derived his income mainly from the company.  He said he kept a lot of confidential data and software and numbered lock “key” to the computer system of the company at the Plaintiff’s Property.  He said also that during that time, IHL lost a lot of business opportunities and therefore suffered substantial loss.

42.  In support of this contention, he set out the profits figure of IHL for the year starting from 2003/2004, 2004/2005, 2005/2006, 2006/2007 and 2007/2008. 

43.  One can see clearly that there was a sharp drop of profits between year 2004/2005 and year 2005/2006, i.e. from $1,533,527 to $504,716, a reduction of approximately $1 million or 60% of the profit and similarly from year 2005/2006 to year 2006/2007, there is drop in profits from $504,716 to $31,502, a reduction of 90% profits, another drop of $0.5 million profit.  I take the view therefore that when profit further drop to ($388,413), i.e. loss of $0.41 million in the year 2007/2008, it just accords with the trend.  This Court does not find it proved that the denial of access has anything to do with the drop in profits.  In any event, the Plaintiff did not disclose how the drop in profits of IHL will affect him personally, albeit that he is a major shareholder of IHL.

44.  The claim under this head clearly must fail.  No award is made under this head.

Medical fees

45.  Again, the Plaintiff has chosen not to pursue this claim before Recorder A. Chan, it is therefore not open for the Plaintiff now to claim this item.

46.  Even if the claim is alive, which this Court does not agree, for the Plaintiff to say the medical fees spent on his mother actually result from her fall occurring after inspecting the Plaintiff’s Property after access to Disputed Way was denied is very remote.

47.  In my view, the Plaintiff has clearly failed to prove any casual link between the denial of access incident and the medical fee. It is noted that the date of incident was 3 June 2007, i.e. 23 days after access to the Disputed Way was denied and that at time of the slip/fall, the mother was already in her eighties.

48.  This claim is far too remote to be related to the incident.  No award is made for this claim.

Claim for loss due to failure to inspect and maintain the Plaintiff’s Property during denial of access

49.  Plaintiff said during May to November 2007, he and his family were denied access and as it was then the typhoon season.  He said when he returned to the Plaintiff’s Property, the drainage of the roof was blocked by leaves and rubbish and some of the tiling on the flooring on the roof were raised exposing the concrete.  There was also water seepage/leakage to the floor underneath. 

50.  He said in his affirmation dated 27 October 2010 that the computer, clothes, rice cooker, water heater and telephone were damaged as a result of this want of repair/maintenance. 

51.  Later, in a further affirmation dated 30 November 2010, he claimed also that the refrigerator was damaged and need to be and was replaced as a result.

52.  The photos appearing in exhibit AW-3 to the affirmation of the Plaintiff dated 27 October 2010 showed the state of the Plaintiff’s Property when they reentered on 20 October 2007. There were dead cockroaches and insects in the house.  It does not show how the alleged items in the house were damaged. 

53.  It also showed some of the floor tiles of the roof was in need of repair as some were raised.  The photos also show signs of water seepage on ceiling within the Plaintiff’s Property.

54.  Plaintiff said he spent $98,000 to repair and refurnish the Plaintiff’s Property.  He exhibited a document described in his affirmation as a receipt but this Court notes actually that the same was only an unsigned quotation from Sky Field Construction Ltd bearing the sum of $98,000 and exhibited as “AW-11” (page 217 to page 220 of Bundle of Exhibits).

55.  This Court agrees as said by the Defendants, that there is no receipt produced and there is no evidence of payment.

56.  There are also no photos produced showing the state of Plaintiff’s Property after repair.

57.  More importantly, apart from evidence of the Plaintiff, there is no further evidence as to how the roof condition or the alleged signs of water seepage came about.

58.  Further, according to the findings of Recorder A. Chan, the Defendants had removed the wired fence in early September 2007 and therefore it is the Defendants who chose not to enter their property then and waited till 20 October 2007.

59.  It is also interesting to note that the unsigned quotation was dated 20 July 2009, i.e. nearly 2 years after access to the Disputed Way was restored.  Is the need of repair related wholly/partly to the denial of access which was less than 4 months?

60.  It is noted by this Court that the Plaintiff’s Property was a house built in 1996.

61.  I do not find it proved in the circumstances that the alleged repair to the Plaintiff’s Property was due to the denial of access. 

62.  The claim of $98,000 is not proved.

63.  Plaintiff also claimed replacement cost for refrigerator and cooker.  This Court could not see how staying away for few months from the property could lead to the alleged loss/damages to the electrical appliances and other items as the Plaintiff suggested.

64.  No award is made under this head.

Claim for loss of rental income and loss of enjoyment of the Plaintiff’s Property

65.  In the affidavit filed for the present enquiry, Plaintiff said the ground floor of the Plaintiff’s Property is sufficient for the use of his family and he had prior to the denial of access intended to rent the 1/F, 2/F and roof and garden of the Plaintiff’s Property to others to derive rental income.  He said he needed some income particularly when access to the property was denied and he had to incur further rental for accommodation of his family.

66.  He said because of the condition of the muddy soil path of the Disputed Way and the proceedings, no one was interested to rent his house until the issue of the judgment of the Court of Appeal.

67.  He claimed in his Affirmation dated 27 October 2010 total loss of rental from 11 May 2007 to 21 April 2010 at $810,400.  This sum, he said has included loss of rental for the whole of the Plaintiff’s Property from 11 May 2007 to 10 November 2007 (when he had to rent alternate accommodation) and loss of rental for the Plaintiff’s Property (less the ground floor) for the period from 11 November 2007 to 21 April 2010.

68.  Plaintiff however did not produce any supporting evidence that he had the intention to rent out his property at or prior to 11 May 2007, i.e. before access to the Disputed Way was denied or indeed at any time prior to the issue of the Court of Appeal judgment.

69.  In fact, when the Plaintiff filed the Statement of Claim on 28 September2007, he claimed loss of enjoyment of his property for period from May to November 2007.  He also claimed loss and damages as a result of having to rent another house from May to November 2007 at $15,000 per month.  There was no mention of loss of rental income.

70.  It is noted by this Court that in his witness statement dated 31 July 2009, the Plaintiff again claimed rental of $105,000 i.e. 7 months rental at $15,000 incurred during the said period from May to November 2007 and also for another $60,000 for loss of enjoyment of his property. There was never any mention of his intention to rent out Plaintiff’s Property.  In this witness statement, however, the Plaintiff has not included his claim of $60,000 in the claim summary of loss appearing at the end of the witness statement.  In this claim summary, Plaintiff also claimed hotel room fee for 11 May 2007 in sum of $960.50.

71.  This Court does not accept, therefore, as a fact, that the Plaintiff had, prior to issue of Court of Appeal judgment, intention to rent out any part of the Plaintiff’s Property.  In fact, he only rented out a floor of the Plaintiff’s Property as late as 21 August 2010. 

72.  I made no award under loss of rental income for the period 11 May 2007 to 21 April 2010 as claimed or at all.

73.  Although the Plaintiff in this Affirmation claimed “claim for loss of rental income and enjoyment over my House 89”, he did not actually make any claim for loss of enjoyment in all the paragraphs under this heading (paragraph 27, 28, 29 and 30 of the Affirmation). Further, under paragraph 31 “summary of loss and damages claim’, item 6 “claim for loss of rental incurred enjoyment over my House 89 (paragraph 27-30)”, the Plaintiff only claimed $810,400, his alleged loss of rental income.  He did not claim anything towards loss of enjoyment.

74.  It is strange that all along Plaintiff says he suffered loss as he has to rent alternate accommodation between May to November 2007, yet in the present affirmation (filed for the purpose of the enquiry), he did not make this claim.

75.  In fact, during trial, the learned Recorder has accepted the Defendants’ evidence that the fence was removed in early September 2007 (paragraph 65 of Judgment).  I consider it unjustifiable for the Plaintiff to claim for rental expenses for alternate accommodation/loss of enjoyment after early September 2007.

76.  As the Plaintiff no longer makes such claim now, there is no award under this head.  Had he made his claims for rental expenses for alternate accommodation for period from 11 May 2007 to early September 2007, this Court would have awarded him 4 months rental i.e. from 11 May 2007 to early September 2007 at $15,000 per month, totalling $60,000.

77.  I would also have awarded him the hotel charges for the 11 May 2007 had that been claimed.

78.  Plaintiff in this affirmation also did not make any claim for loss of enjoyment of the Plaintiff’s Property, accordingly, no award is made under this head.  If he had, I would probably have made an award in his favor for period 11 May 2007 to early September 2007.

79.  Accordingly, the loss and damages of the Plaintiff proved as a result of the denial of access to the Disputed Way is $963.4 + $89.9 = $1,053.3.

Enquiry as to loss and damages, if any, suffered by the Defendants as a result of their compliance with the Consent Order dated 31^st August 2007

80.  2^nd Defendant in his affirmation dated 26^th October 2010 said that pursuant to the Consent Order dated 31^st August 2007, they had reinstated the concrete layer over the Disputed Way on or about 7^th September 2007.  The contractor Mr Liu charged him $5,000 costs.  He produced the receipt at exhibit “WPK-1”.

81.  He said further that on 14^th September 2007, his former solicitors Messrs. Chan & Associates received a letter from the former solicitors of the Plaintiff Messrs. Lawrence K. Y. Lo & Co. alleging the Defendants had failed to comply with the undertakings given to the Court under the Consent Order as the concrete layer over the Disputed Way was not of the same thickness nor in the same width as before.  The Plaintiff requested the Defendants to perform remedial works.

82.  2^nd Defendant said as a result, the Defendants through the said contractor Liu demolished the existing concrete layer over the Disputed Way and constructed another concrete layers over the Disputed Way.  They defrayed an extra $6,500 costs.  2^nd Defendant again exhibited the receipt as “WPK-2” to the said Affirmation.

83.  Defendants now claim total sum of $11,500.

84.  Plaintiff objected to any claim for loss and damages as a result of the concreting of the Disputed Way.  They said the same existed way back since year 1997 to 1998 and there was no complaint from the Defendants or their predecessor.

85.  He said the concrete layer over the Disputed Way was destroyed in May 2007 and that the Defendants entered into Consent Order relaying the concrete.  They should not be entitled to damages.  He said also that had the Defendants given correct instructions to the contractor, there would be no need to lay the concrete again.

86.  Plaintiff also claimed that on the receipts, the contractor’s full name and address were not shown.  He criticized that the amount of concrete used or working hours used in doing the work was not described by the Defendants.

87.  Plaintiff also said the sum of $11,500 was excessive and unreasonable.  He did not suggest any figure as being reasonable fee for such works.

88.  He asked the claim of the Defendants be dismissed.

89.  It is settled both by the Court of First Instance and confirmed by the Court of Appeal that the Plaintiff is not entitled to concreting the Disputed Way.  Hon Rogers VP in paragraph 13 of his judgment (P. 23 of the Trial Bundle) says:-

“13. In my view, in this case, the recorder was justified in regarding the concreting of the Disputed Way as going beyond any right appurtenant to the easement.”

90.  He said the Plaintiff was entitled to a soil path with a width of 1 to 2 feet.

91.  Later, he granted an injunction restraining the Plaintiff from using the Disputed Way otherwise than for pedestrian access.

92.  The view of Rogers VP was shared by all justices of appeal hearing the case.

93.  It follows therefore that once the Defendants had chosen to exercise their right and remove the concrete layer over the Disputed Way, the Plaintiff is not entitled to insist on concrete over the Disputed Way.

94.  In any event, the order of the Court of Appeal directed that there be an enquiry as to loss and damages suffered by the Defendants as a result of their compliance with the Consent Order dated 31 August 2007.

95.  It is not disputed that the concreting and reconcreting of the Disputed Way were done by the Defendants pursuant to the Consent Order.

96.  There was the need to concrete and reconcrete the Disputed Way only because the Plaintiff unreasonably insisted on the concreting and the dimension and thickness of the concreting before 11 May 2007.

97.  The receipts exhibited by the Defendants showed the full name, though not the address of the contractor.  It is unnecessary and unusual that, there is description of the amount of concrete used or the number of working hours deployed in such simple job involving such a modest sum.

98.  Moreover, the Plaintiff knew exactly the nature and description of work done by the contractor anyway, otherwise, why would they lodge the complaint as to the dimension and thickness of the concreting. The criticism is without merit.

99.  Although the Plaintiff objected to the sum of $11,500, they did not offer any “reasonable” figure for the same.  The claim of $11,500 as loss is proved by the Defendants.

Conclusion

100.  Accordingly, I order that the Plaintiff shall pay the Defendants

a)  a sum of $11,500 - $1,053.3 = $10,446.7;

b)  Interests thereon from date of writ to date of judgment at 8% per annum and thereafter until date of payment at judgment rate;

Costs

101.  The Plaintiff in the present enquiry claimed a total sum of $1,565,069 and is awarded only the sum of $1,053.3.  Most of costs of enquiry hearing is spent on considering Plaintiff’s claim in the enquiry.

102.  On the other hand, Defendants claimed $11,500 and is awarded in full.

103.  In the circumstances, it is only fair that 90% costs of the entire enquiry hearing be paid by the Plaintiff to the Defendants.

104.  Accordingly, I make an order nisi that the Plaintiff shall pay 90% of the costs of the entire enquiry hearing to the Defendants, the same is summarily assessed at $57,563.1.  This order nisi is to be made absolute on the expiration of 14 days.

(K. Lo) Master of the High Court

Plaintiff: WAN YUK WING , in person, present

Mr Andrew C.H.Y. Leung, instructed by Messrs Dickman L.T. Chan & Co., for the 1^st and 2^nd Defendants

   HCA1713/2007

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   ACTION NO. 1713 OF 2007

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BETWEEN

	WAN YUK WING	Plaintiff
	and
	WONG KWOK HING PATRICK	1st Defendant
	WONG PAUL KWOK JONE	2nd Defendant

----------------------

Before : Mr Recorder A. Chan, SC in Court

Dates of Hearing : 3–6 and 10 August 2009

Date of Judgment : 21 August 2009

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J U D G M E N T

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Introduction

1.  There is a San Tong Village in Tai Po, New Territories and it has been the home of a group of clansmen surnamed Wan for a long time. The plaintiff is one of the clansmen and in 1992 he inherited a piece of land from his family which is known as Subsection 1 of Section A of Lot No.1323 in Demarcation District No.8, Tai Po, New Territories (“Land A”). Land A is about 3,000 sq. ft. in size. In 1997, the plaintiff had a house built on Land A, known as No.89 San Tong Village, Lam Tsuen, Tai Po, New Territories (“the House”). After the House was built, the plaintiff and his family, including his mother, started to live there.

2.  To the north of Land A and abutting it is the defendants’ land known as Subsection 3 of Section A of Lot No.1322 in Demarcation District No.8, Tai Po, New Territories (“Land B”). Land B is roughly half the size of Land A, i.e., about 1,500 sq. ft. The defendants, who are brothers, became owners of Land B in 2007 (more about the history of the ownership below). This action concerns a dispute over a right of way which the plaintiff says he and the users of Land A enjoy over Land B (“the Disputed Way”).

3.  It appears from the sketches produced in this trial that the main road that connects San Tong Village is Lam Kam Road (“the Road”), which lies to the North of San Tong Village. Land A is land-locked in the sense that it is surrounded by other pieces of land and in order to reach the Road, it is inevitable that the users of Land A will have to walk over the neighbouring land. In 1998, the plaintiff had the Disputed Way concreted to enhance the access to the House. He did not obtain any permission from his neighbour before doing so. The Disputed Way runs across more or less the middle of Land B and is connected with a footpath which leads to the Road. The location of the Disputed Way inhibits the defendants from building a house on Land B.

4.  The plaintiff says that he and his predecessors in title had acquired the right of way under the principle of prescription by lost modern grant. In simple language, this means that the plaintiff and his predecessors in title had used the Disputed Way for a very long time such that the right to use it had become recognised by law. Alternatively, the plaintiff claims that he has a right of way by necessity over the Disputed Way.

Evidence

5.  The foregoing matters (except paragraph 4) are not controversial. In order to resolve this dispute, one needs to look into the history of the area in question — the land lying between San Tong Village (“STV”) and another village called Lam Tsuen Sun Tsuen (“LTST”). Where the evidence is disputed, I shall indicate so below and resolve it where appropriate. To enable this Judgment to be properly understood, there is attached hereto a copy of a sketch which has been exhibited as “D3”.

6.  In the old days, the land situated between STV and LTST (“the Area”)was used for farming. Land A and Land B were part of that farming area. There are many aerial photographs of the Area and for obvious reasons they are the most reliable evidence on what was happening in the Area. The earliest photograph is dated 1945 and it shows that the Area was used for farming.

7.  One can see from the photographs that there were many pieces of cultivated land separated by field bunds, which were small dykes made of earth. The position of those bunds corresponded with the boundary of the various lots of land in Demarcation District No.8. In other words, the bunds served, inter alia, as the boundary of the lots of land.

8.  I have already said that STV is occupied by the Wan clan (some of the villagers are surnamed Lau). If one walks from STV towards the Northeast over the cultivated fields for about 7 to 8 minutes, one will arrive at LTST. It is occupied by a few clans. The clansmen are surnamed Chung, Chan or Cheung. The defendants’ mother belongs to the Chung clan. The defendants themselves belong to another village not far away called Tai Mong Che Village.

9.  According to one of the witnesses called by the defendants, Ms Chung Wai Tai (“DW2”), who is 59 years old and has been living at LTST all her life with the exception of a few years, the villagers of STV and LTST belonging to her father’s generation were good friends. They enjoyed good communication and socialised with one another. For her generation, there is less socialising and people are more preoccupied with their own business. As a result, communication has suffered and the relationship is not what it used to be. Further, DW2 said that building of Ding houses during the last few decades had caused disputes amongst the villagers due to objections to some of the building proposals.

10.  As mentioned above, Land A was owned by the plaintiff’s family before it was transferred to him in 1992. Land B was originally part of a larger piece of land known as Section A of Lot No.1322 in D.D. 8 (“1322A”). 1322A was acquired by the defendants’ maternal grandmother in 1951 from one Mr Wan who belonged to yet another village. It was transferred to the defendants’ mother (“DW4”) in 1981. In 1996, 1322A was subdivided by DW4 into five subsections of which Land B was one. Land B was assigned to one of the defendants (Mr Wong Paul Kwok Jone (“DW3”)) at the time of subdivision and he held that land until 1999 when it was transferred to one Mr Chan Hing. However, Land B was transferred by Mr Chan back to the defendants in 2007. The reason for the transfer of Land B to Mr Chan had something to do with DW3’s application to build a Ding house which was unsuccessful.

11.  As mentioned above, the Disputed Way was concreted in 1998 by the plaintiff. There is no issue that the Disputed Way existed in the old days as a field bund (“B Bund”). Although B Bund is not shown in the1945 aerial photograph (which is of comparatively poor quality), I accept the evidence of the plaintiff’s surveyor (“PW3”), which was not challenged, that with the benefit of later photographs in which B Bund could be clearly seen he could make use of the position and size of that bund as guides to assist him in identifying the same object in the 1945 photograph. The earliest photograph in which B Bund can be seen clearly is onedated 1956. I accept PW3’s evidence that a trace of a track in the same position of B Bund can be seen in the 1945 photograph and I infer that B Bund existed in 1945. This is consistent with the evidence of DW4 that somebody in the old days had built that bund. It is the evidence of both the plaintiff and his brother (“PW2”) that prior to the concreting, the Disputed Way was just a muddy pathway.

12.  It is common ground that the villagers would make use of the bunds as passageways. That is consistent with the old photographs from which one can see that there were no passageways as such but field bunds in the Area. Plainly, the bunds were used as passageways to move from one place to another. However, with the passage of time, one can see from the photographs that more houses were built in the Area. Correspondingly, the cultivated area became smaller and some of the bunds were concreted, no doubt to improve their quality as passageways.

13.  There is dispute as to the width of B Bund. The point is raised by the defence to suggest that it was unlikely to be used by other villagers. DW4 said that it was only about 10 inches wide, whereas the plaintiff said that it was about 1 meter wide (the same width as the Disputed Way in its concreted form). Based on his analysis of the aerial photographs, PW3 said that it was about 2/3 of the width of the concreted Disputed Way. On the other hand, the defendants’ surveyor (“DW1”) said that it was about 1 ft. wide. I prefer the evidence of the experts and believe that the width of B Bund was likely to be between 1 to 2 ft. However, I do not see this as a critical issue. DW4 accepted that she was able to walk on the bund and I see no reason why the other villagers had difficulty doing so.

14.  It is the defendants’ case that B Bund was not used by the plaintiff or his predecessors in title. The reason given is that they were using another route (walking over other bunds) to the south of Land A to access it from their home.

15.  I am unimpressed by this part of the defendants’ case. First of all, it was said by PW2 and DW2 that there was no restriction over the use of the bunds as passageways by the villagers. Even DW4, who was at pains to maintain that the plaintiff and his predecessors in title never used B Bund, had to admit eventually that she, like everyone else, could use all the field bunds as she pleased. In the context of a small rural community where the villagers had a harmonious relationship, I would be very surprised if it was otherwise.

16.  There is a strong reason to reject this part of the defendants’ case. It is undisputed that the plaintiff’s family also owned a piece of land close to Land A — Lot No.1320 S.B. It can be seen from the photographs that there were bunds running along the boundary of Lot No.1320 S.B into Lot No.1318 and then connected with B Bund before reaching Land A (This route is referred to as the G-C-H route on C101 of the Trial Bundles.). I have no difficulty in accepting the plaintiff’s case that this route was used by him and his predecessors in title when they moved from Lot No.1320 S.B to Land A.

17.  It is contended by the defence that the plaintiff and his predecessors in title did not go from Land A to the Road (if they did so it was almost inevitable that they would have walked over the Disputed Way). Detailed evidence has been given as to the type of crops farmed on the fields owned by the plaintiff’s family to seek to demonstrate to this court that the harvest would have to be taken home by the plaintiff’s family for washing before it could be taken to the Tai Po market for sale, and the route from their home to Tai Po market did not involve the Disputed Way. With respect, I do not find this evidence, which is contested, helpful. Even if the defendants’ case is right, I find it unrealistic to suggest that the plaintiff and his predecessors in title never accessed the Road from Land A (via the Disputed Way), or vice versa, over all these years. Even if they did not do so during harvest time, given that the Road was the main access in and out of the Area, there must have been many reasons for the plaintiff and his predecessors in title to go to and from the Road and Land A.

18.  For completeness, I have taken into account the evidence of PW3 that the bunds to the south of Land A were likely to have been used more heavily than, say B Bund. The reason being that the former are shown in the photographs to be more prominent. However, I do not believe that it changes the picture that B Bund was used freely by the plaintiff and his predecessors in title.

19.  As will be seen below, one of issues in this case concerns the continuous use of the Disputed Way and for that I need to consider the history of the use of the land in question.

20.  According to DW4, she started to help her family to farm 1322A when she was 10 years old in about 1948 until 1967 when she got married and emigrated to the United Kingdom. She did not come back to Hong Kong on any regular basis since her emigration. Her mother continued to farm 1322A until about 1984 or 1985 when she was 76 years old. Since 1986, the farming stopped and the land became idle. Although she was unable to say if anyone was attending the land for maintenance, her mother lived only 10 minutes from 1322A. Her mother passed away in 2005. It was in 2007 that she became aware of the Disputed Way having been concreted.

21.  At the risk of side-tracking, it is also the evidence of DW3 that he only knew about the existence of a concreted footpath on his land in 2007. DW3 was born and raised in the United Kingdom. Although he came back to Hong Kong in 2004 to live here permanently, he did not visit Land B until 2007 and was indeed told by DW4 about the concreted footpath. The plaintiff contends that the defendants and DW4 must have known about the concreting of the Disputed Way before 2007. I do not believe that there is any satisfactory evidence to support such contention and I have no reason to doubt DW3 and DW4 on this point.

22.  As I understand from the evidence of the surveyors and the aerial photographs, those which were taken in 1945, 1954, 1956, 1976, 1984, and 1988 all show that both Land A and Land B were cultivated. The next photograph is dated 1996. It shows that Land A and Land B, as well as 1320 S.B, were covered with overgrown vegetation and that the farming had been abandoned. B Bund can no longer be seen and indeed the bunds around Land A and Land B cannot be seen anymore.

23.  The 1997 photographs (dated 15 May 1997) show that 1320 S.B and Land B remained uncultivated, but that farming had resumed on Land A. No bunds can be seen running through 1320 S.B or Land B. However, PW3 said that he could see bunds or tracks leading to a place close to Land A from the south. I believe that the weight of the evidence is such that it is more likely than not that during the time as depicted in the 1997 photographs the users of Land A were accessing it from the south given that the bunds to the north, including the Disputed Way, were covered with vegetation.

24.  There are two 1998 photographs, one dated 7 May 1998 (“E7-1”) and the other dated 31 October 1998 (“D52”). E7-1 is the first photograph showing that the House had been built. In fact, two newly erected structures can be seen in this photograph — there was another newly built house next to the House and to the west of it. PW3 agreed that it appears from E7-1 that most of Land B was concreted. Indeed, one can see from E7-1 that there was a route connecting the Road and Land A and it is quite apparent that Land B was used for part of that route. PW3 said that it appeared that most of that route was concreted. One can see that there were vehicles on that route. The overwhelming inference is that the route was there to facilitate the building of the House and possibly the one next to it. I must note here that when the plaintiff was cross-examined about this route and whether he had the defendants’ permission[1] to use Land B for his own purpose, he was highly evasive, tried to deny the obvious that Land B was being used and had to eventually admit that he did not have the defendants’ permission. I shall say a little more about the plaintiff’s credibility below.

25.  The second of the 1998 photographs (D52) shows that a boundary wall had been erected around the House and the G-C-H route (see paragraph 16 above) had been restored and concreted.

26.  The subsequent photographs, dated 1999, 2000, 2001, 2004, and 2006, do not show any material changes save that the area in question became more and more developed and more concreted footpaths appeared. On D62 (the 2006 photograph) no less than 6 footpaths, including the Disputed Way, have been identified. They are all connected as a network of footpaths.

27.  The evidence of the plaintiff is that Land A was used mainly for farming prior to the building of the House. He said that bricks were made on Land A as building material and that there was a “high voltage lamp post” on Land A. I do not believe the making of bricks, in respect of which the evidence is sketchy, and the existence of the “lamp post” change the picture that Land A was a piece of agricultural land. That fact is well supported by the aerial photographs.

28.  For completeness, the plaintiff said that the House only occupies one third of Land A and that plants are grown over the reminder of the land. I can see from the available photographs (E84 and E91) that part of Land A was covered with vegetation but they are consistent with the fact that Land A has been used for residential purpose after the House was built.

29.  One of the issues in this case is whether there is any alternative access between Land A and the Road (apart from the Disputed Way). As will be seen below, there is a legal problem with this part of the plaintiff’s case and therefore the existence or otherwise of any alternative access is strictly irrelevant. In the premises, I shall deal with this part of the evidence a little more succinctly.

30.  The defendants say that there is such a way to the south of Land A and that route has been identified on A28 (“Alternative Route”). There are two parts to that route, coloured respectively orange and yellow. There is no dispute over the orange part (“Orange Route”). It corresponds to Footpath ‘A’ identified on D62 and Exhibit “D1”. It is concreted and appears to be the main footpath leading to the Road and with which a number of other footpaths are connected. The yellow part (“Yellow Route”) is disputed. By comparing A28 with “D1”, one can see that only part of the yellow route is concreted —the part running along 1321 S.B ss.2 and 1321 S.B R.P. Another feature of the Yellow Route is that from the boundary wall to the south of the House, the route spreads out into two branches going south along the east and west side of 1323 S.A ss.2 before merging at 1321 S.B R.P.

31.  PW3’s evidence, based on two site photographs, is that there is no access to the south of Land A from which one can reach the Road. He had of course made site visits and taken those photographs. The plaintiff denies that there is any “road” leading from the House to the Yellow Route. I should say a few words about the quality of the plaintiff’s evidence.

32.  I have a poor impression of the plaintiff as a witness. The plaintiff is 57 years old and a sophisticated person. He obtained his university degree in Canada and is studying for a doctorate degree in business administration at the City University of Hong Kong. It is quite clear from his evidence that he came to this trial well-prepared in terms of knowing the evidence and the arguments. In the course of cross-examination, he made use of every opportunity to advance arguments for his case and had to be repeatedly reminded of his duty to answer questions. When difficult questions were put to him, he was evasive.

33.  I believe that the plaintiff has embellished his evidence and is not a reliable witness. As an example, on a subject of considerable importance, the state of the Disputed Way before it was concreted in 1998, the plaintiff was extensively cross-examined and he accepted that the Disputed Way was a muddy path which could not be distinguished from a field bund. In re-examination, he changed his evidence and said that it was a purposely built pathway.

34.  Going back to the Yellow Path, I prefer the evidence of DW1 and DW3. According to DW1, he had walked on part of the Yellow Route during a site visit. In particular, from the paved path at 1321 S.B R.P., he took the branch at the eastern side of 1323 S.A ss.2 to reach the boundary wall of the House. He said that the unpaved path looked like a field bund and was elevated at about 1 to 2 ft. from the ground. However, the route between 1321 S.B R.P. and the boundary wall was covered with overgrown vegetation and DW1 (a young looking man) had difficulty walking on it. He said that the covered bund could be used by anyone after site clearance.

35.  There is, however, a complication in that DW1 did not take the Yellow Route to the south of 1321 S.B ss.2, i.e., the part which runs along 1321 S.B ss.1 and 1321 S.E before merging with the Orange Route (the Southern Tip). This part of the Yellow Route is also unpaved and there is no dispute that it is a field bund. Instead of walking on this part of the Yellow Route, DW1 said that he walked along Footpath “A” and then Footpath “E” as shown on “D1”.

36.  DW3 had also walked on part of the Yellow Route. He took the western branch of the route at 1323 S.A ss.2 and walked all the way towards Land A until he saw the back gate to the House. He said that the grass was a bit long (up to his calf) but he managed to “get through it”. He is of course a fit looking young man. In respect of the Southern Tip, DW3 was unsure whether the path he walked along was or was not paved. I believe that it is more likely than not that he took the same route as DW1.

37.  I take into account the fact that PW3 was not cross-examined on the Alternative Route. However, I left the door open to the plaintiff to apply to recall PW3 at the costs of the defendants but no application was made in that regard. I therefore see no reason not to give full weight to the aforesaid evidence of DW1 and DW3.

38.  I am satisfied on the evidence that the Alternative Route exists, can be safely used after the clearance of overgrown vegetation and with which the users of Land A can access the Road.

39.  Further, I accept that evidence of DW1 that in addition to the Alternative Route, the users of Land A can make use of Track “C” as shown on “D1” to access the Road. I prefer the evidence of DW1 over that of PW3 because DW1 was quite specific about how that route can be used.

Law and the Arguments

40.  The law on prescription by lost modern grant is discussed in The Law of Real Property by Megarry and Wade, 7^th ed., pp.1267-8 :

“The weakness of common law prescription was the inevitable failure of a claim if it was shown that user had begun after 1189. The doctrine of lost modern grant avoided this by presuming from long user that an easement or profit had been actually granted after 1189 but prior to the user supporting the claim, and that the deed of grant had been lost. The doctrine was an entirely judge-made fiction. It is therefore really a variety of prescription at common law, but was a fairly late and distinct development and is always classified separately. It has been described as ‘in the nature of an estoppel by conduct’”.

41.  The learned authors then referred to Bryant v Foot (1867) L.R. 2 Q.B. 161 at 181, per Cockburn C.J.:

“Juries were first told that from user, during living memory, or even during 20 years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor anyone else, had the shadow of belief that any such instrument had ever really existed.”

42.  The lost modern grant doctrine is applicable in Hong Kong, see Chan Tin Yauv Tsang Kwok Kay [2008] 5 HKLRD 26.

43.  In simple terms, in order to rely upon this doctrine the plaintiff must show that he or his predecessors in title had had uninterrupted use and enjoyment of the right of way in question for at least 20 years.

44.  Mr Leung, who appears for the defendants, challenges the plaintiff’s case on two grounds. Firstly, it is said that the evidence given by the plaintiff and PW2 only covers the period from 1960 to 1975 during which they assisted their family in the farming activities. There is no first hand evidence of the use of the Disputed Way during any other period. Consequently, the plaintiff has not established the use of the Disputed Way for a continuous period of 20 years.

45.  I am not attracted by this argument. The evidence that Land A was cultivated goes back to at least 1945. I have already referred to the evidence concerning the Area, the farming community which occupied the Area and the use of the field bunds as passageways by the farmers. There is a compelling inference to be drawn on the evidence that the plaintiff’s predecessors in title had been using the Disputed Way for at least 20 years since 1945 and therefore the right of way under the doctrine of lost modern grant has been established.

46.  Secondly, it is submitted by Mr Leung that the defendants or their predecessors in title had no knowledge of the use of the Disputed Way by the plaintiff or his predecessors in title. Mr Leung relies on Sturges v Bridgman (1879) 11 Ch.D 852 at 863:

“Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant…for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses.”

47.  I accept the principles relied upon by Mr Leung. However, I believe that the requisite knowledge has been proved by inference. The predecessors in title of the two sides were neighbours of adjacent farmland. I have already dealt with the evidence concerning the use of the Disputed Way by the plaintiff or his predecessors in title. It is quite inconceivable that such use of the Disputed Way was unknown to the people at Land B. I do not accept DW4’s evidence in this regard. She is an interested party and I find this part of her evidence inherently implausible.

48.  However, even where an easement by lost modern grant has been established, Mr Leung has another, and a more forceful, challenge. It is submitted that the easement is restricted to agricultural purpose and does not extend to residential purpose.

49.  I have been referred to a number of authorities on this point. It is sufficient for me to quote one of them —Williams v James (1867) L.R. 2 C.P. 577 at pp.580 and 582 :

“When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen.”

“… where a way has to be proved by user, you cannot extend the purposes for which the way may be used, or for which it might be reasonably inferred that parties would have intended it to be used. The land in this case was a field in the country, and apparently only used for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nine acre field, and not colourably for other closes. I quite agree also with the argument that the right of way can only be used for the field in its ordinary used as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place.”

50.  Ms Yung, who appears for the plaintiff, does not quarrel with those principles. The contest is in the application of the principles. Ms Yung referred me to Gale on Easements, 18^th ed., pp. 382-384 :

“The extent of an easement acquired by user was considered in detail by the Court of Appeal in the important case of McAdams Homes Limited v Robinson [2004] EWCA Civ 214. This case concerned a right acquired by an implied grant rather than by prescription but it was said that, at least in the great majority of cases, there should be little difference in the principles applicable to the two types of case.

…

The first judgment in McAdams Homes was given by Neuberger L.J. He held that the cases established the following propositions :

(1) where the dominant land is used for a particular purpose at the time an easement is created, an increase, even if substantial, in the intensity of that use, resulting in a concomitant increase in the use of the easement, cannot of itself be objected to by the servient owner;

…

(5) the issue as to extent of an easement acquired by implied grant or by prescription should be determined by answering two questions;

(6) the first question was: whether the development of the dominant land represented a ‘radical change in the character’ or a ‘change in the identity’ of the dominant land as opposed to a mere change or intensification in the use of the dominant land;

(7) thesecond question was:whether the use of the dominant land as redeveloped would result in a substantial increase or alteration in the burden on the servient land;

(8) it is only if the redevelopment of the dominant land resulted in a radical change in its character and would lead to a substantial increase in the burden that the dominant owner’s right to enjoy the easement would be suspended or lost;

(9) where both requirement are satisfied, the dominant owner’s right to enjoy the easement will be ended, or at least suspended, so long as the radical change of character and substantial increase in burden are maintained;

(10) although not all the cases were entirely consistent and clear, the above approach was principled, consistent and coherent;

…”

51.  With respect, in the absence of any contrary argument from Mr Leung, I am content to apply the two-fold test adumbrated by Neuberger LJ. In respect of the first question, Ms Yung has very fairly, and rightly, conceded that the change of use for Land A from agricultural to residential did constitute a “radical change in the character” of that piece of land.

52.  As regards the second question, Ms Yung accepts that it is a question of fact for this court. I have no hesitation in coming to the view that the change of use has resulted in a substantial increase in the burden on Land B. To some extent, the fact that the Disputed Way was concreted reflects the increase in burden. Since 1997, Land A is no longer a place of work for farmers. Instead, it has been the home for a family of six (increased to seven recently with the arrival of a domestic helper). Naturally, the Disputed Way has been used more frequently and, on average at least, by more people (including visitors to the House). The plaintiff has mentioned bicycle traffic on the Disputed Way (there are several bicycles used by his family). If there was any bicycle traffic on the Disputed Way before it was concreted, such occasions must have been rare. From time to time there would be movement of, e.g., furniture and electrical appliances on the Disputed Way. According to the plaintiff, when Land A was used for farming, it would only be visited every one or two days during the quiet season. Indeed, the nature and width of B Bund would dictate the traffic that could be accommodated. Finally, Mr Leung has made the point that the access over B Bund was subject to the interruption by weather — poor weather making the muddy path inaccessible.

53.  In the premises, I am driven to the conclusion that the easement over the Disputed Way has, at least, been suspended since 1997.

54.  I do not believe that I have all the relevant authorities before me for the purpose of determining whether the easement has been extinguished or simply suspended. However, I see no real prospect, certainly not in the foreseeable future, that the use of Land A will revert back to agricultural and therefore there is no real need to answer that question.

55.  For completeness, Mr Leung has argued that in assessing the increase in burden on Land B, I should take into account the potential increase of use of Land A as a piece of residential land. He submitted that the House (a three storey building) may be let to three families and that another house may be built on the land. Although I see some logic in the point, Mr Leung has not provided me with any relevant authority and I respectfully decline to go into that area without any guidance given that it is unnecessary to do so in light of the above conclusion.

56.  Before I deal with easement by necessity, I should mention that I disagree with Ms Yung that the plaintiff was entitled to have the Disputed Way concreted. Ms Yung has referred me to Galeon Easements, pp. 412 and 53 :

“The dominant owner is entitled to enter the servient land to effect repairs or to alter the surface of the servient land to accommodate the right granted.”

“Repair for this purpose can include making alterations to and improving the subject of the easement, alteration to meet altered conditions; also replacement. A person can alter the surface of the servient land to accommodate the right granted, as by building a made road or spreading gravel on it, so long as there is not undue interference with the rights of the owner of the servient land…The extent of the ancillary right has to be determined in the light of the particular circumstances of the grant; it is not limited to the minimum standard to make the grant effective. Nor is it limited to the width of the track existing at the date of grant.”

57.  Relying on these passages, Ms Yung argues that the concreting of the Disputed Way was the exercise of an ancillary right which the plaintiff enjoyed. With respect, I disagree. As I understand the law, any ancillary right has to be consistent with the grant. I am unable to see how it can be legitimate for the plaintiff to have the Disputed Way concreted to enhance the use of his land for a purpose which the defendants and their predecessors in title had never agreed to (see also Mills v Silver [1991] Ch. 271 where it was held that the laying of a stone road constituted an improvement which had increased the burden on the servient land and such action constituted a trespass).

58.  On easement of necessity, I have been referred to Galeon Easements, p.171 :

“A way of necessity, strictly so called, may arise where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible may be entitled, as of necessity, to a way over the other part. The principle no doubt applies where both parts are disposed of simultaneously, either by grant inter vivos, or by will.”

59.  There is a fundamental problem with this part of the plaintiff’s case. In this case, the implied grant based on this doctrine of necessity must be traced to the Crown lease for Land A. I have before me the land search record for Lot No. 1323 in D.D. 8. This piece of land was subsequently subdivided and from which Land A came. It is shown on that record that the land was held under a Government lease for 75 years renewable for 24 years with a commencement date of 1 July 1898.

60.  Ms Yung has fairly and rightly conceded that she is in no position to say that in1898 there was no access from Land A to any main road except via the Disputed Way. In other words, the premise for invoking the doctrine of necessity does not exist.

61.  There is no evidence as to any other lease or grant concerning Land A from which one may argue an easement of necessity.

62.  In Tang Tim Fat v Chan Fok Kei [1992] 2 HKC 623 (one of the plaintiff’s authorities), which concerned a disputed easement over a piece of land in the New Territories, the court alluded to the possibility that an easement of necessity might be implied from the automatic statutory renewal of Government leases in 1973 under the New Territories (Renewable Crown Leases) Ordinance, Cap.152. However, when I raised that point with Ms Yung, she rightly accepted that it is of no assistance to her case, because in 1973 Land A was accessible via the field bunds in many directions.

63.  In the premises, I also reject this part of the plaintiff’s case.

Plaintiff’s Loss and Damage

64.  For obvious reasons, I shall deal briefly with the plaintiff’s claims for loss and damage. First of all, items (4) and (5) as per the summary on F4-5 are not pursued.

65.  In respect of item (1) (rental expenses), it arose because the Disputed Way was fenced off by the defendants in May 2007. I accept the defendants’ case that the fence was removed in early September 2007. I am of the view that the rental expenses after the end of September 2007 cannot be justified. There is a claim for loss of enjoyment of the House at HK$60,000 which does not appear in the summary. I would disallow this claim.

66.  As regards item (6) (loss of business), I reject this claim in any event as being too remote. Also, given my finding on the Alternative Route, the plaintiff could have returned to the House despite the fencing of the Disputed Way. Having lived in the Area all his life (except the time when he was studying in Canada), the plaintiff would have found a way to the House had he wanted to. There is therefore no basis for the claim.

67.  In respect of items (2), (3) and (7) (replacement of personal items for family members; replacement of books, household items and computers; and replacement costs for several electrical appliances), I am very surprised that Mr Leung has not tested the evidence in cross-examination save for the replacement of the refrigerator. In light of my finding on the Alternative Route, much of these claims are unsustainable. Doing the best I can in the circumstances, had I upheld the plaintiff’s action I would allow a sum of HK$20,000 under items (2) and (3)and reject any claim under item (7).

Conclusions

68.  For the reasons given above, I dismiss the plaintiff’s action. It is conceded by Ms Yung that if the easement has been suspended, the use of the Disputed Way by the plaintiff without the defendants’ permission would constitute a trespass. The defendants’ Counterclaim based on trespass must succeed.

69.  In respect of the appropriate relief under the Counterclaim. Mr Leung is not seeking any damages. I grant a declaration in favour of the defendants that the plaintiff, his licensees or servants are not entitled to use the Disputed Way for residential purposes.

70.  Further, I grant an injunction restraining the plaintiff whether by himself, his licensees or servants or agents or otherwise howsoever from trespassing, entering or using Land B without the defendants’ permission. I believe that this injunction is required to put an end to the dispute between the neighbours.

71.  Furthermore, it is not disputed that this court is entitled to grant a mandatory injunction against the plaintiff for the removal of the concrete surface over the Disputed Way and I do so accordingly. The removal should be completed within 21 days from the sealing of my order.

72.  Finally, I make an order nisi that the costs of this action and the Counterclaim are to be borne by the plaintiff to be taxed if not agreed.

(Anthony K.K. Chan, SC) Recorder of the Court of First Instance High Court

Ms Eunice H.Y. Yung, instructed by Messrs S.W. Wong & Associates, for the Plaintiff

Mr Andrew C.H.Y. Leung, instructed by Messrs Dickman L.T. Chan & Co., for the 1^st and 2^nd Defendants

 

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