CHAU TAT WING, suing in his own capacity and as the sole executor of the estate of WONG TIM LUN, deceased v. WONG KWAI WAN AND ANOTHER

DCCJ 3244/2022

[2025] HKDC 2087

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

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DECISION

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1.  This is the plaintiff’s application for leave to appeal against this court’s order regarding costs between the plaintiff and the 2^nd defendant.

Background

2.  On 12 December 2024, this court handed down a judgment (“the Judgment”) dismissing the plaintiff’s claim against both the 1^st and 2^nd defendant as well as the 2^nd defendant’s counterclaim, with an order nisi that the plaintiff shall pay the costs of the action to both the 1^st and 2^nd defendant (“the Cost Order Nisi”).

3.  On 27 December 2024, the plaintiff took out a Summons seeking to vary the Costs Order Nisi (the “Variation Summons”) to either there be no order as to costs between the plaintiff and the 2^nd defendant, or that the costs of the plaintiff’s claim be to the 2^nd defendant and costs of the 2^nd defendant’s counterclaim be to the plaintiff.

4.  The court handed down a decision on 6 June 2025 (the “Costs Decision”) dismissing the Variation Summons with costs be to the 2^nd defendant.

5.  The plaintiff now applied to seek leave to appeal against the Costs Decision.

Legal Principles

6.  The general principles for leave to appeal to the court of appeal is stated in s63A(2) of the District Court Ordinance, Cap 336:

“Leave to appeal shall not be granted unless the judge…hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

7.  It was held that “reasonable prospect of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.” (SMSE v KL [2009] 4 HKLRD 125)

8.  For an application for leave to appeal specifically against a costs order, it was held that:

“A costs order is quintessentially an exercise of discretion by a judge. An applicant for leave to appeal against such an order face a very high hurdle. The Court of Appeal will not interfere with a judge’s decision on costs unless it is wrong in principle or the exercise of discretion by the judge is plainly wrong…Further, unless it can be shown that a judge has committed a palpable error in the exercise of the discretion on costs, the mere fact that the Court of Appeal would not have exercised the discretion in the same manner as the judge is not a sufficient ground to warrant interference with the decision of the judge…” (Wong Pui Yin Georgeanna (As The Administratrix Of The Estate Of Wong Cecilia Pui Luen, Deceased) v Cheer Creation Limited And Another[2025] HKCA 716 (CAMP 51 & 52/2025, 11 August 2025)

9.  Further, with regard to cases where both the claim and counterclaim were dismissed, the legal principles were trite and not disputed: SKYTEX INTERNATIONAL LIMITED (天富達國際有限公司) v EASTOP COMPUTER CONSULTANTS LIMITED (東昇電腦顧問有限公司) [2024] HKDC 1822 (see paragraph 5 of the Costs Decision).

Grounds of appeal

Ground 1

10.  The plaintiff argued that the 2^nd defendant’s counterclaim is for a declaration that “the area bounded by points “S. A”, “S1” and “S2” as identified in Appendix A of the Amended Defence and Counterclaim belongs to the Government and does not form part of Lot No. 2457 S.C. and not an adaptation of the 2012 Survey.” Thus, the Costs Decision was made under a miscomprehension of fact. (paragraphs 25 and 26 of the plaintiff’s submission).

11.  Firstly, the plaintiff is wrong when he referred to the 2^nd defendant’s Amended Defence and Counterclaim because the 2^nd defendant has replaced this with its Re-Amended Defence and Counterclaim and that was what the court considered.

12.  More importantly, Appendix A annexed to the Re-Amended Defence and Counterclaim did not show that the counterclaim was based upon any random new plan produced “out of thin air”. Instead, it was referring to and based upon the 2012 Survey, and specifically the boundary as defined between the plaintiff’s land and the Government land (e.g. the line between points “S,A” and “AB”, the “Boundary Line”).

13.  According to the 2012 Survey, the entire area to the southwest of the Boundary Line should be Government land. The fact that the 2^nd defendant only counterclaimed for part of this area (as defined by the line “S1” and “S2”) was, in effect, a gift in favour of the plaintiff. The plaintiff should have no complaint.

14.  Indeed, there is no question on the absolute reliance of the 2^nd defendant’s counterclaim upon the accuracy of the 2012 Survey: the 2^nd defendant placed the point “S1” on the Boundary Line in order to define the counterclaim (and allowed this “gift”).

15.  In other words, the 2^nd defendant was defending the 2012 Survey regarding to the line marked by points “S,A” and “S1” only, beyond which was a matter of dispute between the plaintiff and the 1^st defendant.

16.  It is therefore clear that the 2^nd defendant’s counterclaim was based upon the accuracy of the 2012 Survey with regard to the portion that concerned the 2^nd defendant’s counterclaim. The court stated as such in paragraph 96 of the Judgment so there is clearly no misapprehension of facts as argued by the plaintiff.

17.  There is no reasonable prospect of success for Ground 1.

Ground 2

18.  The plaintiff argued that the court:

“has erred in law in taking into consideration…the failure of the plaintiff in proving his claim against the 1^st defendant in determining whether the plaintiff should be deprived of his costs in defending the 2^nd defendant’s counterclaim, or whether the 2^nd defendant should have his costs of the unsuccessful counterclaim.” (paragraph 28 of the plaintiff’s submission)

19.  The plaintiff referred to paragraph 11 of the Costs Decision, where this court stated that:

“much of the court’s time was spent on hearing the experts’ opinion on the accuracy of various Survey records, and even then the plaintiff’s expert failed to show that the 2006 Survey was more accurate than the 2012 Survey”.

20.  The plaintiff argued that:

“…even if the plaintiff failed against D1, it has nothing to do with D2’s unsuccessful counterclaim…” (paragraph 29 of the plaintiff’s submission).

“confused P’s claim against D1 with D2’s counterclaim against P…” (paragraph 30 of the plaintiff’s submission)

21.  This argument is clearly misconceived: the 1^st defendant and the 2^nd defendant were defending the accuracy of 2012 Survey to the extent (and in the boundaries) that their interests (including the 2^nd defendant’s counterclaim) were concerned. Both were arguing in favour of the accuracy of the 2012 Survey over the 2006 Survey. The plaintiff argued otherwise.

22.  The following paragraph (paragraph 12) in the Costs Decision, which the plaintiff seemed to have ignored, made this clear:

“…the plaintiff was disputing the accuracy of the 2012 Survey, and the 2^nd defendant counterclaimed seeking a declaration that the 2012 Survey was accurate…”

23.  As such, it cannot be disputed that both the plaintiff’s claim and the 2^nd defendant’s counterclaim:

“arise out of one transaction and in effect rise from the same issue, i.e. the accuracy of the 2012 Survey. Thus, the issues concerning both the claim and counterclaim were essentially intertwined” (paragraph 13 of the Costs Decision).

24.  In essence, Ground 2 is a rehash and extension of Ground 1:

a.  that the 2^nd defendant’s counterclaim was not based on the 2012 Survey and its accuracy (Ground 1); and

b.  so it must follow that the plaintiff’s claim against the 1^st defendant (disputing on the accuracy of the 2012 Survey) has nothing to do with the 2^nd defendant’s counterclaim (Ground 2).

25.  I have already rejected Ground 1, so Ground 2 cannot stand.

26.  I also find it confusing logic that the plaintiff also argued that :

“…P has conceded that he has to pay D2 the costs of his claim against D2”.

27.  The plaintiff did not make such “concession” at trial but only at the Variation Summons. It was when the plaintiff was seeking either no order as to costs between the plaintiff and the 2^nd defendant, or that the plaintiff’s claim be to the 2^nd defendant and the 2^nd defendant’s counterclaim be to the plaintiff (see paragraph 3 of the Costs Decision).

28.  Thus, the plaintiff is simply repeating one of the options that he was asking for at the Variation Summons as if this should support a ground for appeal.

29.  Further, the plaintiff argued that:

“D2 has chosen to maintain his counterclaim notwithstanding that P has dropped his claim against D2.”

30.  I have found no court record (either before, during or after the trial), that the plaintiff has ever applied to discontinue or withdraw any part of his claim against the 2^nd defendant. The plaintiff has also never sought to amend his pleadings to remove any claim or relief sought specifically against the 2^nd defendant, let alone removing the 2^nd defendant as a party in this action.

31.  Indeed, if there was such applications, one wonders why the plaintiff did not raise this in the first instance at the Variation Summons.

32.  If I am wrong about this rather serious matter (which may amount to an attempt to mislead the court), I would invite the plaintiff’s counsel to show evidence of such applications within 28 days of this Decision so the court may re-consider.

33.  Otherwise, I see no reasonable prospect of success on this ground.

Ground 3

34.  Confusingly, this is a rehash of the claim that the plaintiff has abandoned the claim against the 2^nd defendant. I have already dealt with this argument in paragraphs 29-33 above.

35.  Further, I cannot see the relevance of the plaintiff’s citations of precedents concerning the general principle that “costs follow the event” (e.g. Jiang Zhong (姜忠) v Yeung Chun Leung & ORS [2018] HKCA 48).

36.  The applicable legal principles for the current case (i.e. when both the claim and counterclaim fails) are also cited and not disputed by either party (see paragraph 9 above).

37.  Similarly, I see no reasonable prospect of success on this ground.

Ground 4

38.  The plaintiff argued that the court has erred in law in:

“failing to deal, or adequately deal, with P’s submission, particulars have been set out in the draft Notice of Appeal”; and that

“the court did not give any reason on why P’s submission should not be accepted” and without which, “P does not know why he lost” (paragraphs 34 and 35 of the plaintiff’s submission).

39.  It is trite that:

“…in the case of discretionary exercise, as in other decisions on facts or law, the judge should set out his reasons, but the particularity with which he is required to set them must depend on the circumstances of the case before him and the nature of the decision he is giving…They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case…if it be that the judge has not dealt with some particular arguments but it can be seen that there are grounds on which he would have been entitled to reject it, this court should assume that he acted on those grounds…” (Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119)

40.  Further, for an appeal against a cost order on the ground of lack of reasons:

“Where no express explanation is given for a costs order, an appellate court will approach the material facts on the assumption that the judge will have had good reasons for the award made…Where it is apparent that there is a perfectly rational explanation for the order made, the court is likely to draw the inference that this is what motivated the judge in making that order…Thus, in practice, it is only in those cases where an order for costs is made with neither reasons nor any obvious explanation for the order that it is likely to be appropriate to give permission to appeal on the ground of lack of reasons against an order that relates only to costs.” (English v Emery Reimbold & Stick Ltd [2002] 1 WLR 2409)

41.  The Costs Decision was far from having made with “neither reasons nor obvious explanation for the order”: it has cited the legal principles (paragraphs 4 and 5), how the plaintiff’s claim and the 2^nd defendant’s counterclaim were intertwined (paragraphs 12-14), why the plaintiff’s claim was misconceived (paragraph 10), the time spent on the plaintiff’s failed argument (paragraph 11) and the plaintiff’s conduct (paragraph 14).

42.  I find it totally unconvincing that, under the circumstances, the plaintiff could claim that he “does not know why he lost”. Indeed, it is illogical that, after advancing three grounds of appeal to argue the reasoning in the Costs Decision, the plaintiff then added a 4^th ground claiming that he did not know the reasons why he lost.

43.  Thus, this ground also has no reasonable prospect for success.

Other considerations

44.  The plaintiff mentioned the error in the Judgment concerning the lack of jurisdiction (the “Jurisdiction Point”) which this court has conceded in the Decision dated 30 June 2025 (regarding the application for leave to appeal by the plaintiff against the 1^st defendant) (paragraph 11 of the plaintiff’s submission).

45.  It is of note that if the court takes this into consideration, it would be clear that the 2^nd defendant’s counterclaim would have succeeded but for this error on the Jurisdiction Point. Therefore, the 2^nd defendant would have been the “true winner” and be awarded costs of the action, the same result as with the Costs Decision.

Conclusion

46.  In conclusion, none of the plaintiff’s proposed grounds of appeal has a reasonable prospect of success.

47.  I would therefore dismiss the plaintiff’s application and award the costs of the application to the 2^nd defendant. The 2^nd defendant shall lodge and serve a summary bill of costs within 28 days of this Decision, and the plaintiff shall lodge and serve a summary list of objections 28 days thereafter. The court shall summarily assess the costs by way of paper disposal.

Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff

Miss Tessa Chan, instructed by Department of Justice, for the 2^nd defendant

DCCJ 3244/2022

[2025] HKDC 1044

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

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DECISION

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1.  This is the plaintiff’s application to seek leave to appeal.

History of the proceedings

2.  This court handed down a judgment on 12 December 2024 (“The Judgment”) which dismissed the plaintiff’s claim with a cost order nisi for the costs of the action to the 1^st defendant to be taxed if not agreed.

3.  On 9 January 2025, the plaintiff filed a summons to seek leave to appeal against the Judgment (“the Leave to Appeal Summons”) which attaches a draft Notice of Appeal which raised 7 grounds of appeal.

4.  On 31 March 2025, this court handed down a decision (“the Decision”) to allow the counterclaim of the 1^st defendant and to vary the costs order nisi in the Judgment.

5.  On 23 April 2025, the plaintiff took out a summons (“the Summons to Amend”) to amend the Leave to Appeal Summons. In the amendments, the plaintiff:

i)    Seeks leave to appeal against the Judgment as amended by the Decision;

ii)   Seeks a stay of execution of the Judgment pending final disposal of the appeal;

iii)  Attaches a revised draft Notice of Appeal which now contains 5 grounds of appeal.

Legal Principles

6.  The legal principles concerning granting of leave to appeal are stated under section 63A(2) of  the District Court Ordinance, Cap 336:

“Leave to appeal shall not be granted unless the judge…hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

7.  Further, a reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”. It was sufficient to show that the appeal was “merely arguable” and “not fanciful” for the court to be satisfied that it had a reasonable prospect of success (KNM v HTF (HCMP 288/2011, [2011] HKEC 1210).

The plaintiff’s grounds of appeal

8.  The 1^st defendant does not object to the Summons to Amend (paragraph 3 of the Skeleton Arguments for the 1^st defendant) so the court will consider the 5 grounds of appeal in the revised draft Notice of Appeal.

Grounds 1-3

9.  The first 3 grounds can be summarised into this: that this court has erred in law in holding that the court has no jurisdiction in determining (and thus making a declaration of such) the common boundary between the plaintiff’s land and the 1^st defendant’s land (“the Common Boundary”) and that the cause of action only lies in an negligence action against the relevant surveyor or a judicial review action against the Lands Department.

10.  It is clear that this is an error in law in that the court was somehow distracted from the fact that this was an action for a declaration of rights and not an academic dispute on accuracies of survey maps. I also note that the 1^st defendant also accepts that Grounds 1-3 have reasonable prospect of success.

11.  These 3 grounds will be referred to as “the Jurisdiction Point”.

12.  However, despite this error, the court went on at very long lengths to consider the accuracies of the 2006 Survey and 2012 Survey on the assumption that it has jurisdiction (paragraphs 74-93 of the Judgement).

13.  The court’s considerations can be summarised as below.

14.  It was not in dispute amongst all the experts that the common junction between the 4 pieces of lands was in shape of a “Double-Y” all through the years. This means that there has always been a shared border (and thus access) between the 1^st defendant’s Land and Government Land.

15.  Mr. Tang’s argument that the 2006 Survey “gave a fair determination” of the Common Boundary was that this showed a straight line and “matches well with boundary features” but the 2012 Survey “does not follow the original pattern shown in the DD Sheet nor the long-lasting field occupation pattern” (paragraph 55 of the Judgment).

16.  However, Mr. Tang also agreed that the 2006 Survey has “adopted the centre point of the Double-Y shape boundary as the common boundary” which means, in short, that this common junction has now been turned into a “Dot”. In doing so, he failed to address why the common junction should suddenly change shape (paragraphs 75–76 of the Judgment).

17.  Further, Mr. Tang failed to address the concerns raised by the Land Department for this change of shape of the common junction (paragraphs 21 and 79 of the Judgment):

i)    Creating an acute corner on the plaintiff’s land (the “Spike”) which is “not reflected in old aerial photographs and DD Sheets”;

ii)   There is a lack of a shared border between the 1^st defendant’s Land and the Government Land.

18.  Importantly, the abolishment of this historical shared border would mean that there would be no longer any access from the 1^st defendant’s Land to the Government Land. This does not “respect” “the boundary relationship…previously shown on the DD Sheet and other old records” (paragraph 21(c) of the Judgment). It is therefore clearly against the intention of the grant according to the Code of Practice

19.  To explain such a change, Mr. Tang proposed a new theory by comparing the 1949 and 1963 aerial photographs and, by using the “Mid-Line Practice”, he suggested that, due to rainstorms and water running down the boundaries (which he claimed were actually gullies), the “Double-Y” shape has, during these times, changed to a more vertical “cross”. Thus, the common junction was now in shape of a “Dot” placed in the centre of this “cross” (the “New Theory”, paragraphs 80, 81, 83 of the Judgment).

20.  However, Mr. Tang also stated that in the Mid-Line practice, “the alteration of the boundary features should be adopted as long as the changes were natural and not man-made” (paragraph 82 of the Judgment).

21.  Firstly, the court found that Mr. Tang only advanced this New Theory at the trial despite having prepared a Joint Statement between the experts some 3 ½ years ago. On this alone, the court should not consider the New Theory (paragraphs 84-86 of the Judgment).

22.  However, even if the court went on to consider the New Theory, the court found that the changes of the boundaries in the 1963 aerial photograph was, on balance of probability, man-made and not natural. The court has explained its reasoning at some length (paragraphs 87-91 of the Judgment).

23.  The court concluded that the plaintiff’s expert, Mr. Tang, “fails to show that the 2006 Survey is more accurate than the 2012 Survey” and that both the experts of the 1^st and 2^nd defendants “supported the accuracy of the 2012 Survey over the 2006 Survey” (paragraphs 92 and 93 of the Judgment).

24.  The crux of the appeal is that the plaintiff is seeking an order for a declaration that the Common Boundary should be as shown on the 2006 Survey as well as an order to dismiss the 1^st defendant’s counterclaim (Hearing Bundle p. 58).

25.  However, based on the factual findings in the Judgment, even if the court did not err on the Jurisdiction Point, it would still not have made a declaration that the Common Boundary should be as shown in the 2006 Survey and would have, similarly, allowed the 1^st defendant’s counterclaim. And the court would have made the declaration that the Common Boundary should be as shown in the 2012 Survey, which was the remedy sought by the 2^nd defendant (but not the 1^st defendant).

Ground 4

26.  Although Ground 4 states that “the Judge has erred in law…”, this ground is clearly disputing the court’s finding of fact: it states that the court has “failed to consider relevant materials” or “taken into account of irrelevant materials” (which the plaintiff has particularised into 8 paragraphs, all of which concern with the court’s factual findings).

27.  The legal principles on appeals challenging the court’s findings of facts are trite (Volpi v Volpi [2022] 4 WLR 48) :

i)    An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong;

ii)   The adverb “plainly” does not refer to the degree of confidence felt by the appeal court unless it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under the appeal is one that no reasonable judge could have reached;

iii)  An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. There mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it;

iv)  The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him;

v)   An appeal can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable; and

vi)  Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

28.  Further, an appeal should not be merely a regurgitation of arguments run at trial and a rehashing of the evidence and factual aspects that the appellant considers to lie in his favour in hope that the appellate judge may come to a different view. The focus should be on the identification of palpable errors in the judgment of such nature as to warrant intervention from this court. A mere assertion that the finding of the judge is against the weight of the evidence or that the judge may have reached another conclusion because of the points advanced will not serve the purpose (Mak Rachel Wing Nam v Ching Kai Chung [2024] 5 HKLRD 17).

29.  The 8 points particularised by the plaintiff under this ground are as follows, that the court:

i)      Failed to consider that “Mid-line practice” is undisputed between all the experts;

ii)     Failed to consider the application of the “Mid-line practice” that the Common Boundary should be a straight line (along line “SR” on the 2006 Survey) not a deflected line;

iii)    Failed to consider that according to the DD Sheet and the Crown Rent, the Common Boundary was a straight line without deflection, as shown in the 2006 Survey but not in the 2012 Survey, thus incorrect;

iv)    Failed to consider it is not the intention of the Crown Grant that the Common Boundary lies within the cultivated area of the plaintiff’s land as shown in the 2012 Survey;

v)     Erred in taking into considering of the transformation of the common junction between all 4 lands from a “Double-Y” junction to a “cross” junction: this transformation was irrelevant  regardless of whether man-made or natural;

vi)    Erred into taking into consideration the “Spike”;

vii)   Failed to consider the Common Boundary as shown in the 2006 Survey was a straight line and consistent with DD Sheet, Crown Grant, aerial photographs; and

viii)  Failed to consider that by applying the undisputed opinion of the experts (i.e. “Mid-Line Practice”) to the Common Boundary and the west boundary of the Plaintiff’s Land, the Common Boundary is along the Line SR and west extremity at Point S.

30.  I will address the plaintiff’s points as follows.

Point i)

31.  Concerning point i), there is no dispute between the experts as to the Mid-Line Practice and, importantly, also the circumstances when it can and cannot be applied. There is no finding of the court against this general practice so this point on its own cannot support any ground for appeal.

Points ii), iii), iv) and vii)

32.  Points ii), iii), iv), vii) (last of which is essentially a repeat of points ii) and iii) combined) are the arguments that Mr. Tang has advanced as to support his opinion the 2006 Survey was a “fair determination” of the Common Boundary.

Point vi)

33.  Point vi) is one of the concerns raised concerning why the 2006 Survey should not be not more accurate than the 2012 Survey.

34.  As stated above in paragraphs 17 and 18, the other (arguably more important) concern was the abolishment of the historical access between the 1^st defendant’s Land and Government Land. This is clearly against the intention of grant.

Point v)

35.  Point v) concerns the “New Theory”.

36.  As stated above, Mr. Tang used the New Theory to explain why the common junction of the 4 pieced of land has changed from the historical “Double-Y” to a single “Dot” (or Point “S” on the 2006 Survey). Thus, the Common Boundary should end at Point “S” as its west-most point, which is the plaintiff’s case.

37.  Putting this in another way, if the “Double-Y” common junction was preserved, the west-most point of the Common Boundary would be the centre of the lower “Y” of the “Double-Y”. This is reflected in Point “S1” of the 2012 Survey.

38.  However, changing the “Double-Y” into a “Dot” located along the limb between the two “Ys” (in the “Double-Y”) would necessarily mean that the west-most point of the Common Boundary was moved westwards.

39.  Mr. Tang attempted to explain this westward shift by applying the Mid-Line Practice to the 1963 aerial photograph (and comparing it to the older 1949 aerial photograph). He argued that there was a shift of the boundary between the plaintiff’s Land and the Government Land (i.e. “the 6 o’clock arm”) made by rainwater running down the gullies. The westerly shift of this “6 o’clock arm” has made the common junction changed from the slanted “Double-Y” into the shape of a more vertical “cross”. Thus, the “Dot” (or point “S”) at the centre of this “cross” would now be a fair determination of the common junction.

40.  Thus, Mr. Tang’s New Theory was essential to explain why the 2006 Survey should be more accurate due to this alleged “natural” change of the shape of the common junction.

41.  As stated above, the court gave a lengthy explanation why the New Theory should be rejected.

42.  Indeed, according to the Code of Practice, common land boundaries previously defined by the Government or by an Authorised Land Surveyor should be adopted unless the previous boundary definition is proved to be wrong.

43.  The court has found that Mr. Tang failed to show that the 2012 Survey (defined by an Authorised Land Surveyor, Mr. Henry Chan and adopted by the Lands Department since) was less accurate than the 2006 Survey, let alone proving that the 2012 Survey was wrong.

44.  Incidentally, the plaintiff (P’s Submission paragraph 52(1)) argued that the court has “erred in taking into consideration” about “the transformation” of “the shifting of the “9 o’clock” arm of the “Double-Y” southwards” but this “does not affect the determination of the Common Boundary”.

45.  Indeed, the shifting of the “9 o’clock arm” southwards does not much concern the Common Boundary. However, as explained above, the Judgment only concerned with the New Theory: the alleged westward shift of the “6 o’clock arm” (and thus the westward shift of the common junction into a “Dot” or Point “S”). This westward shift and its alleged cause were discussed at length during the trial. It is self-evident that any westward shift of the 6 o’clock arm would make the common junction look more like a “vertical cross”.

46.  Thus, this argument raised by the plaintiff is clearly wrong.

Point viii)

47.  Finally, point viii) is rather confusing: the experts did not dispute the principle of the Mid-Line Practice but it is not the undisputed opinion of the experts that the Common Boundary is along Line SR with the west extremity at Point S. Both the 1^st and 2^nd defendants’ experts rejected this. The finding of facts by the court explains why the Mid-Line Practice is not applicable. I note that is no appeal against this finding of facts.

48.  In conclusion, all the 8 points are simply regurgitation of arguments and submissions before this court at the trial. All these have been considered by the court. What the plaintiff is arguing now is what he think the weight that the court should have placed on various pieces of evidence and arguments.

49.  At the end of the day, the court’s conclusion is supported by 2 experts: the expert of the 1^st defendant, Mr. Ng Jor Choi, and the expert of the 2^nd defendant, M. Li Kam Kai, Alan. The plaintiff has raised no argument as to why the expert opinion from both experts are so devoid of merit and rationality that “the judge’s conclusion was rationally insupportable”.

50.  In my view, this is an unsurmountable hurdle for the plaintiff to overcome in an appeal against the factual finding of the court.

Ground 5

51.  The plaintiff argued seeks to appeal against the Decision and argued that the judge has erred in law in ordering the plaintiff to pay the costs of the action to the 1^st defendant on an indemnity basis with enhanced interest thereon at 5% above judgment rate from 20 April 2024 to the date of the Judgment.

52.  The starting point is that the award of costs is very much a matter of discretion of the court and the court of appeal “will only interfere when it is satisfied that the decision of the judge was wrong in principle or plainly wrong” (CHAN SHUN KEI T/A CHAN SHUN KEI CONSTRUCTION WORKS v HONG KONG CONSTRUCTION (HONG KONG) LTD CACV 192/2014).

53.  Firstly, it cannot be disputed that the 1^st defendant has made a Sanctioned Payment on 22 March 2024 for a sum of HK$5,000 and given that the plaintiff failed to beat the Sanctioned Payment, the 1^st defendant, at the very least, should be entitled to costs on an indemnity basis after 19 April 2024 (paragraph 17 of the Decision).

54.  The appeal on costs can be broken down into two period:

i)    Costs on indemnity basis before 19 April 2024; and

ii)   Costs on indemnity basis with enhanced interest on costs from 20 April 2024 to 12 December 2024.

Costs before 19 April 2024

55.  The court’s decision was based on:

i)    Mr. Tang’s excessive long expert report, and that he only raised the New Theory at the trial and therefore the plaintiff’s conduct at trial was unreasonable;

ii)   Misconceived allegations against the 1^st defendant / baseless and misconceived action (paragraphs 32-40 of the Judgment)

56.  I am of the view that i) above is clearly justifiable and cannot be challenged that it was “plainly wrong”.

57.  However, ii) was based upon 2 considerations that the plaintiff’s allegations were unfounded.

58.  The first consideration was in regard to the allegation that the 1^st defendant was wrongful in filing a survey report without the “knowledge or consent of the plaintiff” (paragraphs 35 and 36 of the Judgment). This consideration is clearly correct and cannot be challenged that it was “plainly wrong”.

59.  However, the second consideration concerned the Jurisdiction Point. The court has held that the whole action was misconceived right from the beginning (paragraph 70 of the Judgment).

60.  As stated above, this consideration is “plainly wrong”.

61.  Given that this must form part of all the considerations regarding costs, I am of the view that there is a reasonable prospect of success in this aspect.

Costs from 20 April to 12 December 2024

62.  The plaintiff claimed that the 1^st defendant only made a sanctioned payment to settle the plaintiff’s claim only. However, the 1^st defendant has disclosed an sanctioned offer letter dated 22 March 2024 addressed to the plaintiff’s solicitors which stated:

“We are instructed by our client to make a sanctioned offer…on the term that your client do deliver vacant possession on the Area as defined in…the Re-Amended Defence and Re-Amended Counterclaim refiled on 3 October 2019…

The Sanctioned Offer relates to the whole Re-Amended Counterclaim as contained in the RAD&RAC. It does not take into account your client’s claim. The Sanctioned Offer is open for acceptance for 28 days from today…

…

…if the Sanctioned Offer is not accepted by the latest day on which the Sanctioned Offer could have been accepted without leave of court and your client ultimately fails to do better than the Sanctioned Offer, our client would seek costs on an indemnity basis and enhanced interest (up to 10% above the judgment rate).

…”

63.  Thus, the plaintiff’s claim is not true.

64.  The Sanctioned Offer was not accepted and the counterclaim was awarded in the Decision.

65.  As stated above, the 1^st defendant, at the very least, should be entitled to costs on an indemnity basis after 19 April 2024.

66.  Indeed, the Sanctioned Offer already threatened to seek not only indemnity costs, but enhanced interest. However, to be fair to the plaintiff, when awarding enhanced interested at 5% above the judgment rate, the court would have, at least partly, taken into account the Jurisdiction Point and, again, this consideration is plainly wrong.

67.  As such, I find that there is reasonable prospect of success on an appeal on this aspect as well.

Stay of execution

68.  In view of the court’s view regarding Grounds 1-4 above, the application for stay of execution should be refused because there is no reasonable prospect of success in appealing against the Judgment. The court would only allow leave to appeal against the cost order in the Decision.

69.  In any case, the plaintiff’s argument for stay of execution was that delivery of vacant possession would necessitate the demolition of a wall and removal of a fish pond. I cannot see how that would be considered “irreparable damage” since there is no evidence that the wall and fish pond cannot be rebuilt with compensation in terms of damages. The submission that the files on the wall may need to be replaced by different ones is hardly an issue when compared with the prejudice against the 1^st defendant for a stay of execution: the plaintiff’s wall has been blocking 1^st defendant’s access gate all these time.

Order

70.  The court will therefore give the following orders:

i)    The plaintiff’s application for leave to appeal in the Summons to Amend (and the enclosing draft Notice of Appeal) be dismissed except for leave be granted for an appeal against the cost order in the Decision that the plaintiff shall pay the 1^st defendant’s costs of the action on indemnity basis, and from 20 April 2024 to the date of judgment, with enhanced interest rate at 5% above judgment rate (as stated under Ground 5 of the draft Notice of Appeal); and

ii)   Costs of the Leave to Appeal Summons and the Summons to Amend be in the cause of the appeal.

DCCJ 3244/2022

[2025] HKDC 517

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

________________

________________

___________________

DECISION

___________________

1.  This court has handed down the judgment on 12 December 2024 (“the Judgement”) to dismiss the plaintiff’s claim and the 2^nd defendant’s counterclaim. The court further made a cost order nisi that the plaintiff shall pay the costs of this action to the 1^st and 2^nd defendants to be taxed if not agreed with certificates granted for one counsel each to the 1^st and 2^nd defendants.

2.  The 1^st defendant took out a Summons on 23 December 2024 (“the Summons”) for, inter alia, the following:

a.  An order to vary paragraph 97 of the Judgement (“the Judgment Variation Order”);

b.  An order to vary the cost order nisi in paragraph 98 of the Judgment (“the Costs Variation Order”); and

c.  An order for the sanctioned payment by the 1^st defendant be paid out (“the Payment-out Order”).

The Judgment Variation Order

3.  In the current action, the 1^st defendant has made a counterclaim against the plaintiff (pages 54 - 55 of the Hearing Bundle):

“(1) Delivery of vacant possession of the Area to the 1^st defendant;

(2) Mesne profits in respect of the Area at market rate for the period from September 2012 until the date of delivery of vacant possession of the Area to the 1^st defendant;

(3) Interest at such rate and for such period as the court deems fit…”

4.  The Judgment, under paragraph 97, has ordered that the plaintiff’s claim against the 1^st and 2^nd defendant be dismissed and that the 2^nd defendant’s counterclaim be also dismissed, but there is no order regarding the 1^st defendant’s counterclaim. The Judgment has not been drawn up as yet.

5.  There is no dispute that this omission in the Judgment is an obvious mistake. The legal principle for such situation is that:

“Beyond correcting any “slips or omission”, before an order for the judgment has been drawn up or perfected, the court has a wider power to rectify mistakes in the judgment…” (Ng Cheuk Hang v Wams Design Ltd [2022] 1 HKLRD 587)

“The court court’s jurisdiction to reconsider its judgment before its order had been perfected could only be exercised in a case which raised considerations, in the interest of justice, which were…exceptional. An exceptional case did not have to be uniquely special, and “strong reasons” was perhaps an acceptable alternative to “exceptional circumstances”…There were, of course, cases where an error of fact or law might be too plain for argument, and it was better that the error was corrected without imposing on the parties the need for an appeal…” (per Woo JA in the court of Appeal case of Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533)

6.  Indeed, this court has already considered the 1^st defendant’s counterclaim when drafting the Judgment. The crux of the Judgment was that the 2^nd defendant (the Director of Lands) has already rejected the EGS Survey and adopted the 2012 Survey as the boundary records it would maintain under clause 4(a) of the Land Survey Ordinance, Cap 473 (“the LSO”). As such, it is no business of the court to provide an “alternative forum” to override such the decision when this was not in form of a Judicial Review action challenging any procedural defects. Further, under clause 28 of the LSO, the responsibility for the accuracy of the boundaries lies with the authorized land surveyor, who is not a defendant in this action. Thus, the claims against both the 1^st and 2^nd defendants were entirely misconceived. (paragraphs 32-42, 63-67 of the Judgment)

7.  The Judgment, in dismissing the 2^nd defendant’s counterclaim, also repeats the same position: it is no business of the court to declare the accuracy of a survey map. Any dispute in such should lie in a claim of negligence (amongst any other causes of action) against the authorized land surveyor who produced the disputed survey map (paragraph 96 of the Judgment).

8.  Given this decision, I find it strange that Mr. Kelvin Leung, counsel for the plaintiff, sought to argue that the 1^st defendant’s counterclaim for vacant possession was somehow unenforceable because the court has not determined “where the true common boundary lies”.

9.  Further, Mr. Leung argued that, since the Judgment stated that the court has no jurisdiction as an adjudicator of the accuracy of various survey reports, the court has not decided whether the 2006 or the 2012 Survey Plan is more accurate. As such, neither Survey Plan has any legal effect.

10.  I would explain, as I have already done so during the hearing, that it is no business of the court to, figuratively, invite the parties to attend the site and draw the boundary on the ground with a chalk pen. In my view, whilst the court has no jurisdiction to adjudicate which survey plan is “more accurate”, it, of course, has the jurisdiction to enforce the boundary according to the survey map currently maintained by the Director of Lands under clause 4(a) of the LSO.

11.  Accordingly, the court finds that the boundary between the plaintiff’s and the 1^st defendant’s land (amongst other boundaries) is determined by the current records maintained by the Director of Lands, i.e. the 2012 Survey Plan. This showed that the Area as defined in the 1^st defendant’s Re-Amended Defence is within the 1^st defendant’s land. It is not disputed that the plaintiff has constructed a wall on the Area so it must follow that the court finds for the 1^st defendant’s counterclaim for trespassing.

12.  As for the counterclaim for the mesne profit, the 1^st defendant has not provided any evidence to support any “market rate” during the trial. It is a small area in any case so I would not make any award.

13.  Accordingly, the court will give the order to amend paragraph 97 of the Judgment to read:

I would order that P’s claim against D1 and D2 be dismissed. D2’s counterclaim is also dismissed. I would further order that P shall, within 28 days of this Judgment, deliver vacant possession of the Area as described under paragraph 4(f) of D1’s Re-Amended Defence and as shown accordingly in the copy plan annexed in the same.

The Costs Variation Order

14.  Under paragraph 2 of the Summons, the 1^st defendant applied for:

(1)  The plaintiff do pay the 1^st defendant’s cost of the action before 11 July 2022 at High Court scale;

(2)  The plaintiff do pay the 1^st defendant’s costs of the action, including all costs reserved, on indemnity basis with certificate for counsel, to be taxed if not agreed; and

(3)  The plaintiff do pay the 1^st defendant’s enhanced interest on costs at the rate of judgment rate plus 5% p.a. until the date of Judgment to be taxed if not agreed.

15.  This action was commenced in the High Court and was transferred to the District Court on 12 July 2022 by the order of Madam Justice Au Yeung.

16.  The 1^st defendant sought that the costs to be on High Court scale prior to the date of transfer and this is not disputed by the plaintiff.

17.  As for application for costs on indemnity basis, firstly, it is noted that the 1^st defendant has made a Sanctioned Payment on 22 March 2024 for a sum of HK$5,000 (Hearing Bundle p.206-209). The plaintiff lost his claim so clearly failed to beat the Sanctioned Payment. The 1^st defendant, at the very least, should be entitled to costs on indemnity basis after 19 April 2024 under O.22 r.23(4)(a).

18.  Mr. Leung argued that “without prejudice” cover letter for the Sanctioned Payment somehow has “override and invalidated” the Sanctioned Payment.

19.  This letter (Hearing Bundle p.210) stated, inter alia:

“Please take notice that if your client accepts the Sanctioned Payment, we would apply to the Court for a costs order that your client shall pay our client’s costs of the proceedings by invoking the otherwise proviso under Order 22 Rule 20(1)…on the ground that by accepting the Sanctioned Payment, your client accepts that his case on the land boundary is doomed to fail and he should not have commenced the present proceedings in the first place.”

20.  It is trite law that when sanctioned payment is accepted, the prima facie rule is that the plaintiff should be entitled to costs of the action up to the time when he may accept the sanctioned payment without leave of Court unless:

a.  the defendant discharges the burden of showing exceptional circumstances that justify a departure; and

b.  he has given a prior warning to the plaintiff that he would invoke the otherwise proviso.

(per Poon J (as he then was) Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184)

21.  Thus, Mr. Leung’s argument was again mystifying: this “without prejudice” letter was the usual and accepted practice of giving a “prior warning” to the plaintiff that the 1^st defendant would apply to court to invoke the otherwise proviso under Order 22 Rule 20(1). This notice clearly would not “override or invalidate” the Sanctioned Payment in any way.

22.  Mr. Leung also argued that the Sanctioned Payment only covered the plaintiff’s claim and not the 1^st defendant’s counterclaim. Thus even if the plaintiff accepted, there would still be a trial on the counterclaim. I do not agree: the claim and counterclaim were essentially linked: if the claim is dropped, there can be no defence to the counterclaim in any case because there is no dispute that the plaintiff has been trespassing according to the 2012 Survey Report.

23.  As such, if the Sanctioned Payment was accepted, and if the 1^st defendant would then apply to invoke the otherwise proviso, there would only be arguments on costs. Much costs and time would have been saved instead of having to embark on a 9-day trial.

24.  In the Summons, the 1^st defendant took matters further in seeking that the court should order costs on an indemnity basis for the entire proceedings.

25.  The principles governing indemnity costs orders are not in dispute.

26.  In particular, the burden is on the party seeking it to show “special or unusual feature” which need not be confined to “conduct lacking in moral probity” etc. but can be conduct that was “unreasonable to a high degree”. “Unreasonable” here does not mean “merely wrong or misguided in hindsight” or conducts “in pursuit of a weak claim” (see Law Yin Pok Bosco, a minor by Lam Po Yee, his mother and next friend v Dr. Chan Yee Shing also known as Dr. Chan Yee Shing Alvin[2022] HKCFI 345).

27.  Mr. Tang, the surveyor expert instructed by the plaintiff, produced an excessively long report running to almost 200 pages when his opinion can be summarised in merely 4 paragraphs in simply declaring that the 2006 Survey was a “fair determination of the common boundary” whilst failing to address the central issue of dispute (paragraphs 54-56, 75-79 of the Judgment). This is clearly inadequate. Even worst, on the 4^th day of the trial, Mr. Tang advanced a totally new theory sidestepping his earlier opinion and the joint statement. The court did not approve of this conduct. Even if this theory was examined as an academic exercise, it failed (paragraphs 83-92).

28.  The plaintiff’s conduct at trial is clearly unreasonable.

29.  More importantly, the court finds that the allegations raised against the 1^st defendant were entirely misconceived (paragraphs 32 to 40 of the Judgment):

a.  the allegations were unfounded and not supported by any evidence; and

b.  clause 28 of the LSO clearly showed that the 1^st defendant was the wrong party to sue for any dispute in the accuracy of a survey report.

30.  Thus, the entire cause of action against the 1^st defendant was totally baseless.

31.  I note that the 2^nd defendant has indicated that it is taking a neutral position regarding this Summons. However, as stated in paragraph 6 above, the allegations against the 2^nd defendant was also entirely misconceived.

32.  The whole action can be summarised as the plaintiff’s attempt to bypass the procedure of the 2^nd defendant by requesting the court to act as an “alternative forum” to adjudicate on the accuracies of various survey reports. In doing so, the plaintiff completely failed to acknowledged clause 28 (4) of the LSO in taking action against the proper defendant, i.e. “the authorised land surveyor personally responsible for the accuracy and completeness of the land boundary plan signed and certified by him”.

33.  The question is: does such conduct amount to a “special or unusual feature” and “conduct to a high degree of unreasonableness”?

34.  Paragraph 70 of the Judgment states as much:

“I would question whether P’s legal advisers have drawn their client’s attention to clauses 28 and 33 of the LSO. If they have, I wonder how P would see that he should embark on this totally misconceived action in the wrong forum against the wrong defendants. In my view, this entire action against both defendants may amount to an abuse of court process.”

35.  Arguably, there cannot be a more ill-conceived or unreasonable action than the current one. It was not a merely weak case. It was a hopeless case doomed to fail right from the beginning. The plaintiff’s legal advisers should be aware of such.

36.  Against this, Mr. Leung’s argument appeared to be that if the plaintiff’s claim was so misconceived, the defendants should have applied to strike out the action. This is not a valid defence: the defendants may have their own considerations and reasons for not taking out such applications and it would be unfair and unreasonable to hold that against them.

37.  As such, the court should allow the 1^st defendant to recover the costs of the entire action on an indemnity basis.

38.  In addition, the 1^st defendant also applied for an enhanced interest on costs.

39.  I accept that the court has discretion to include non-compensatory element to the interest award but that the level must be proportionate to the circumstances of the case (Wong Giles v Donowho Simon Christopher & Anor[2020] HKCFI 1053 and So Sin Ying v JV Fitness Ltd [2024] 2HKC 596).

40.  Given the above considerations, I am of the view that this case calls for the exercising of such discretion.

41.  In the 1^st Defendant’s skeleton argument, Mr. Leon Ho wishes to seek enhanced interests from the date that the 1^st defendant pays his solicitors a costs on account for a sum of HK$1,000,000 (which was on 20 April 2024, 2 days before the trial commenced) to the date of judgment (receipt enclosed at p.221-222 of the Hearing Bundle).

42.  This is adopting the “traditional approach” of making the calculation of interest for the item of costs from the actual date of payment to the date of judgment (Cheung Hon Kin v Chubb Life Insurance Company Ltd (formerly known as NEW YORK LIFE INSURANCE WORLDWIDE LTD and ACE LIFE INSURANCE COMPANY LTD respectively[2024] HKCFI 3623). This is appropriate given that we are only dealing one item of payment of costs.

43.  I have considered the precedents regarding the appropriate enhanced interest (the Cheung Hon Kin case and the So Sin Ying case) and I agree with Mr. Ho’s proposal that the interest rate of judgment rate plus 5% should be appropriate for the circumstances of this case.

The Payment-out Order

44.  Given that the court found for the 1^st defendant in the Judgment, it must follow that the sum of HK$5,000 of the sanctioned payment made by the 1^st defendant on 22 March together with the interest accrued thereon (if any) be paid out of Court to the 1^st defendant forthwith through his solicitors Messrs. Leung & Lien Solicitors.

Order

45.  In conclusion, I will give an order to amend paragraph 97 of the Judgment as stated in paragraph 13 above and I will also give an order in terms of paragraphs 2(1), 2(2), 2(3) and 3 of the Summons.

46.  As for costs, I would order that the costs of and occasioned by the Summon be paid by the plaintiff to the 1^st defendant forthwith on an indemnity basis to be assessed summarily by way of paper disposal. The 1^st defendant has already submitted a statement of costs for Summary Assessment. Accordingly, the plaintiff shall have 14 days from the date of this Decision to lodge and serve a summary list of objections.

Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff

Mr Leon Ho, instructed by Messrs Leung & Lien, for the 1^st defendant

DCCJ 3244/2022

[2024] HKDC 2067

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

________________

BETWEEN

________________

___________________

JUDGMENT

___________________

1.  This is a case regarding a dispute of the boundaries between 4 adjoining plots of land in Yuen Long, New Territories (collectively, the “4 Lands”).

2.  In a clockwise direction, the plot located on the North-East (Lot No. 2465 of DD129) is owned by the 1^st Defendant (“D1’s Land”).

3.  The plaintiff is the sole executor of the estate of Wong Tim Lun and became the registered owner of the plot located in the South-East (Lot No. 2457 of DD 129, “P’s Land”).

4.  The plot in the South-West was Government land (part of Lot 2451 of DD 129 which the Government resumed in around 1961 for the purpose of building a road passing through part of the plot, “Government Land”).

5.  Finally, the plot in the North-West belonged to a non-party to this action (Lot 2450 RP of DD129, “Non-party’s Land”).

Background

6.  There is no dispute that the earliest evidence of the boundaries between the 4 Lands (the “Common Boundary”) was recorded in the DD Sheet as a result of a cadastral survey performed around 1899 and 1904 (Trial Bundle B2, p.293, enlargements of which are at Trial Bundle B1, page 127 and 128).

7.  The Common Boundary on this DD Sheet shows that there is a shared boundary in form of a line between D1’s Land and Government Land, whilst the relevant corners of P’s Land and Non-party’s Land does not touch each other. Thus, the Common Boundary is in form of a “Double-Y” along a slanting axis from the North-West to the South-East.

8.  The Block Government Lease (“BGL”) of DD129 was granted after the DD survey (Hearing Bundle B2, p. 405, enlargement of which is at Trial Bundle B2, page 406). The BGL was based on the DD Sheet so it also showed the same “Double-Y” feature of the Common Boundary.

9.  The subsequent aerial photographs (taken in 1945, 1949, 1956 and 1961) also showed a consistent pattern of this feature of the Common Boundary.

10.  The first relevant survey record was prepared by Mr. Henry Chan in 2006 (“the 2006 Survey”, Trial Bundle D1, p. 786) on instructions of D1 because of a boundary dispute between D1’s Land and a neighbouring plot of land north of D1’s Land (paragraph 1 of “Findings and Results” of the Report of the 2006 Survey, Trial Bundle D2, page 968).

11.  The Common Boundary was south of D1’s Land and thus not the focus of the 2006 Survey. Indeed, P’s Land was vacant at the time and there was no boundary dispute between P and D1 then.

12.  With regard to the Common Boundary, the 2006 Survey showed the following features :

a. No “Double-Y” feature but that the relevant corners of all 4 pieces of land joined at one single point (designated as “Point S” on the map) which effectively means that there is no shared boundary in form of a line between D1’s Land and Government Land.

b. There is a triangular area which extends from P’s Land to Point S, forming a spike on the western boundary of P’s Land (“the Spike”). The Spike is clearly inconsistent with the feature of Common Boundary shown on both the DD Sheet and BGL.

13.  As for the determination of Point S, Mr. Henry Chan has taken the line R-S (i.e. the line between point R and Point S) by following “the graphical position of the Lot Index Plan…” (paragraph 6(g) of “Findings and Results” of the Report of the 2006 Survey, Trial Bundle D2, page 969).

14.  The Lot Index Plan was produced by the Land’s Department on 12 September 2006 (the “2006 Lot Index Plan”, Hearing Bundle D, p. 967) and, indeed, it showed the same features regarding the Common Boundary. This shows that Mr. Henry Chan has, indeed, simply followed the features of the Common Boundary in the 2006 Lot Index Plan.

15.  In 19 August 2012, D1 wrote to the District Survey Office Yuen Long of the Lands Department (the “DSO”) regarding his concern about the Common Boundary.

16.  In the reply letter dated 24 August 2012 (Hearing Bundle D2, page 975), the DSO stated that they found no surveyor’s report on the boundary of P’s Land in their file and record, and that (as I translate):

“If you have reservations regarding the boundary surveyed in (the 2006 Survey), you can directly raise the reasons to that surveyor for amendments, and then voluntarily submit the amended survey report to us for reference.”

17.  D1 therefore instructed Mr. Henry Chan to conduct an updated survey of D1’s Land including the Common Boundary and produced another survey report dated 10 September 2012 (“the 2012 Survey”).

18.  The 2012 Survey now has the following features:

a. Points Q, R and S remain unchanged from the 2006 Survey;

b. A shared boundary is now restored between D1’s Land and the Government Land (designated as “the Line S-AB”) and therefore the Common Boundary again shows a “Double-Y” feature; and

c. There is no longer the Spike and the North-West Corner of P’s Land now has a re-drawn boundary (designated as “the Line AA-AB”)

19.  After Mr. Henry Chan submitted the 2012 Survey to the DSO, P’s surveyor, Mr. Lam Kai Wing of EGS (Asia) Ltd. (“EGS”), submitted his own survey report (“the EGS Survey”) on 10 October 2012 (Hearing Bundle D2, page 1079-1080).

20.  The EGS Survey essentially shows the same features of Common Boundary as the 2006 Survey, i.e. all 4 Lands joining in a single point with no “Double-Y” feature, and the Spike on P’s Land (Trial Bundle D2, page 1080).

21.  The DSO accepted the 2012 Survey and rejected the EGS Survey. DSO wrote a reply to EGS on 29 November 2012 (Hearing Bundle D2, page 1098) which stated:

“…Please be informed that our office holds a different view on your boundary definition for the following reasons:

a. Your boundary definition is in conflict with … (the 2012 Survey)

b. There is no evidence to prove that (P’s Land) has an acute corner at Point A (i.e. the Spike) referring to the old aerial photos and DD Sheets.

c. The boundary relationship of … (D1’s Land) and the adjoining … (Government Land) which was Lot 2451 previously shown on the DD Sheet and other old records should be respected.

If you would like to review your boundary definition, your reply by 29 January 2013 is much appreciated.”

22.  EGS (Asia) Ltd. replied on 27 February 2013 (Hearing Bundle D2, page 1114) that:

“…Please be informed that in accordance with the opinion we received from the legal advisor of the subject lot own (our client), we are not going to take further action in response to your view on the boundary definition.”

23.  Separately, P has written several letters of complaint to various government departments and bodies (e.g. Trial Bundle D2, page 1011-1052). The DSO has replied to P on behalf of all such in a letter dated 12 April 2013 (Hearing Bundle D2, page 1057-1060).

24.  In the letter, DSO has explained how the mistake in the 2006 Lot Index Plan (which Mr. Henry Chan followed in the 2006 Survey) came about:

“(1) 土地界線事宜

根據元朗測量處記錄…在60年代開始，測量處開始將丈量約份圖上的地界資料，轉移到大比例地圖上。但由於資料轉移時有一些偏差，所以只有地段2465號和地段第2457號的共同界線向北修正配合田界位置，而並沒有同時修正地段第2457號（西面）和政府土地的共同線，因而形成了一個三角形的角落顯示於地段索引途中，這亦是本個案的事涉政府土地。然而，地段索引圖上的地界資料，只是展示地段界線的大約位置。所有在地段索引圖上的資料，必須要經過實地測量的核證才能作準。當測量處在2012年9月和10月分別收到地段第2465號餘段和地段第2457 C分段2小分段的測量報告和圖則時，發現了地段索引圖上所顯示的三角形角落並不存在。認為應該根據舊航空照片上所顯示的田界，將地段第2457號C分段2小分段的西面界線適量向西伸展，並刪除三角形的角落。”

25.  Thus, it was clear from this letter that:

a. the Spike and the lack of shared boundary between D1’s Land and Government Land (i.e. the 4 lands joining at a single point) as shown on the Lot Index Plan were mistakes made in the 1960s’ when the DSO attempted to transfer the DD Sheets to a large scale map;

b. the Lot Index Plan would only show the approximate boundary and all the features on such must be verified by actual on-site survey to be certain; and

c. DSO noticed this discrepancy when receiving the 2012 Survey and opined that the western boundary of P’s Land needed to be moved for a certain distance towards the west and that the Spike should be deleted.

26.  During all these times, P and D1 were disputing over the Common Boundary. D1 has built a gate for access to the Government Land but P has in various times built a low wall or deposited building materials right in front of and thus blocking this gate. As of now, P has built a wall which partially blocked the gate.

27.  However, much of these incidents of disputes are of minor relevance in this action. The crux of the dispute raised by P is whether the DSO should adopt the 2006 Survey (and the similar EGS Survey) or the 2012 Survey.

28.  P commenced the current action against D1 and then joined D2 (which counterclaimed against P).

P’s causes of action

29.  According to the Re-amended Statement of Claim, the relevant allegation against D1 was:

“Wrongfully and without knowledge and consent of the Deceased or his predecessor in title (i.e. P), in or about September 2012…(D1) caused to file with the Lands Department another survey plan (i.e 2012 Survey), thereby altering the boundary between (P’s Land) and (D1’s Land), the effect of which is having (D1’s Land) enlarged and (P’s Land) diminished.” (Paragraph 5 of the Re-Amended Statement of Claim, Trial Bundle A, page 10)

30.  Paragraph 6 of the Re-amended Statement of Claim were allegations against D1 (and D1’s wife) for “wrongly” obstructing the building of the P’s wall outside the gate and “trespassing” into P’s Land. As discussed above, much of these disputes very much depends the crux of the dispute regarding the boundary.

31.  The relevant allegation against D2 was:

“The Director (of Lands) heads the Lands Department. Amongst others, he is responsible for the production and/or publication of Lot Index Plans…The Director owed a duty to ensure that the Lot Index Plans were produced with care, and not to cause loss and damages to the landowners whose rights may be affected by the information of the Lot Index Plans. The Director shall not cause or allow the information in the Lot Index Plans to be altered without proper and/or sufficient evidence and/or proper justification.” (Paragraph 3B of the Re-amended Statement of Claim, Trial Bundle A, page 9)

“After the Plaintiff commenced action, the Director wrongfully or negligently caused or allow a Lot Index Plan dated 21 June 2016…to be produced by…the Lands Department, thereby altered the boundary between (P’s Land) and (D1’s Land) similar to (2012 Survey). No or no proper field survey was done in verifying the 2012 Lot Index Plan. The Director knew or should have known that such alteration was without proper or sufficient evidence and/or proper justification. It was reasonably foreseeable that the alteration with the 2016 Lot Index Plan would cause loss and damage to the Plaintiff.” (Paragraph 6A of the Re-amended Statement of Claim, Trial Bundle page 11)

Action against D1

32.  The allegation against the D1 was that he has wrongfully and without knowledge or consent of P filed the 2012 Survey with the Lands Department.

33.  According to the Land Survey Ordinance, Cap 473 (the “LSO”), the function of Director of Lands (or the Land Survey Authority) includes “to maintain land boundary records” (clause 4(a) of the LSO).

34.  Thus, the DSO in its letter to D1 dated 24 August 2012 simply invited D1 to submit another survey report if there was concern with the Common Boundary.

35.  P has all along failed to provide any evidence (including any relevant law, code of practice or procedure guidelines etc.) why this procedure was “wrongful” and that filing a survey report must require “knowledge or consent” of P.

36.  Indeed, Mr. Leung, counsel for plaintiff, did not cross-examined the witnesses of D1 or D2 on any survey report filing procedures at all.

37.  Furthermore, according to clause 28 of the LSO:

“28. Responsibilities of an authorized land surveyor

(1) An authorized land surveyor shall ensure that every land boundary survey…undertaken by him is carried out…in accordance with the requirements of any code of practice approved under this Ordinance.

…

(4) An authorized land surveyor shall be personally responsible for the accuracy and completeness of every land boundary plan signed and certified by him…and he shall be liable for any loss or damage suffered by any person as a result of any inaccuracy or incompleteness of any land boundary plan so signed and certified.”

38.  The 2012 Survey was signed and certified by Mr. Henry Chan.

39.  Therefore, it is Mr. Henry Chan, and not D1, who is personally responsible for any dispute in the accuracy of the survey report and who is liable for any loss as a result.

40.  As such, the action against D1 is clearly misconceived.

Action against D2

41.  First of all, it is important to note that P is not seeking a judicial review against D2’s decision to adopt the 2012 Survey and not the EGS Survey (or the 2006 Survey) (“the Decision”), and, as a result, produce the 2016 Lot Index Plan which followed the 2012 Survey.

42.  Therefore, P is not claiming that D2 has acted ultra virus by, for example, not following proper procedures nor any established code of practice in making the Decision.

43.  Instead, P is raising a claim of negligence against D2 which essentially alleged that the Decision was made negligently.

44.  It would be obvious to even a law student that the law of negligence requires P to prove the following: that a duty of care existed between D2 and P; that D2 in making the Decision fell below the duty or standard of care; that such has caused foreseeable loss and damage.

45.  In this case, P’s claim against D2 falls at the very first hurdle.

46.  P has not produced any evidence to show that there existed a duty of care. Quite on the contrary, Clause 33 of LSO stipulated:

“33. Limitation of public liability

(1) No liability rests upon the Government or upon any public officer by reason of the fact that any land boundary survey is carried out in accordance with any code of practice approved under this Ordinance, or that any field note, survey record plan or land boundary plan is prepared in accordance with any such code, or that the plans and records resulting from the survey are deposited with the Authority, nor shall anything in this Ordinance make it obligatory for the Authority to ascertain that the requirements of this Ordinance are complied with or that plans and records deposited with the Authority are accurate or consistent with the results of the relevant land boundary surveys or the land boundary record.

(2) No act or omission by the Authority or by any public officer acting under his direction, if it were done or made in good faith in the performance or purported performance of his functions under this Ordinance or for the purpose of enforcing this Ordinance, subjects the Authority or such public officer personally to any action, liability, claim or demand whatsoever.

(3) Without prejudice to the generality of subsection (1), neither the Government nor the Authority, nor any public officer acting on the Authority’s behalf is subject to any action, liability, claim or demand by reason of or in relation to—

(a) the supply of any plan or record or any copy thereof or of any information under this Ordinance; or

(b) the Authority’s allowing an authorized land surveyor or his employee authorized for the purpose to inspect any plan or record kept by the Authority.

….”

47.  P did not raise any allegation nor produce evidence that D2 has not acted in good faithin the performance or purported performance of his functions under this Ordinance.

48.  Thus, I find that no duty of care and liability ever arose under the circumstances of this case.

49.  Furthermore, P’s claim also falls at the second hurdle.

50.  First of all, P has only produced an expert survey report (“Tang’s Report”) by Mr. Tang Hong Wai, Conrad (“Mr. Tang”) in support of this “negligence” claim.

51.  Mr. Tang is a Land Surveyor and he was instructed to “investigate and differentiate the lot boundary re-establishment” between P’s Land and D1’s Land in the 2006 Survey and 2012 Survey, and “give an opinion on the common boundary” of the 4 Lands (paragraph A “Scope of Work”, Trial Bundle B1, page 120).

52.  So here is the big problem: Mr. Tang was not instructed to review the Decision and to give an opinion that this was made in breach of the duty or standard of care as required of the DSO and / or D2.

53.  There is no dispute in Mr. Tang’s expertise as a surveyor in private practice and thus can comment on the standard of care as expected of a surveyor. However, one may raise a question of Mr. Tang’s expertise regarding the duty or standard of care expected of a government officer (or officers) in charge of making decisions (such as the Decision) in the DSO.

54.  Tang’s Report ran rather excessively to almost 200 pages. However, his opinion can be summarised in merely 4 paragraphs (paragraph 117 to 120, Trial Bundle B1, page 244-245).

55.  In short, Mr. Tang “found that” the 2006 Survey “matched well with the boundary features and gave a fair determination of the common boundary with” P’s Land, and that the 2012 Survey “does not follow the original pattern shown in the DD Field Sheet nor the long-lasting field occupation in the vicinity of the Common Junction” and therefore this updated Common Boundary is “baseless”.

56.  As such, even taken to the highest, Mr. Tang’s opinion is that the 2006 Survey is more accurate than the 2012 Survey.

57.  Mr. Tang has not provided any opinion on the duty or standard of care required, and that the Decision has breached such a duty or fallen below such a standard, for example, along the lines of:

a. the Decision is so unreasonable that the DSO / Director of Lands has breached the standard of care required; and

b. no reasonable government officer of the DSO in that position, when given those survey reports and when proper procedures were followed, would have made the Decision.

58.  As for any liability or breach arising out of the accuracy in any lot index plan (as opposed to survey reports certified by authorised land surveyors), Mr. Tang also did not give any opinion to dispute DSO’s position that “地段索引圖上的地界資料，只是展示地段界線的大約位置。所有在地段索引圖上的資料，必須要經過實地測量的核證才能作準。” He therefore failed to establish that there existed a duty of care, let alone a breach, regarding the accuracy of the 2006 Lot Index Plan owed by D2 to P.

59.  Such expert opinion is plainly essential for the court to establish a breach in negligence.

60.  Moreover, the issue of accuracies of the survey reports are irrelevant in establishing liability of D2. Clause 33(i) of the LSO (paragraph 46 above) specifically stipulated that no liability rest upon D2:

“to ascertain that the requirements of this Ordinance are complied with or that plans and records deposited with the Authority are accurate…”.

61.  Instead (see paragraph 37 above), the LSO provides that any liability regarding the accuracy of land boundaries and any loss caused by any inaccuracies lies with the authorised land surveyor who signed and certified the survey report.

62.  In this case, it lies with Mr. Henry Chan, who is not named as a defendant in this action.

63.  It is of note that after rejecting the EGS Survey and adopting the 2012 Survey, D2 has invited EGS to submit for further review for boundary definition. Instead of the following the procedure, EGS stated that it would not take further action after receiving opinion from P’s legal advisers (paragraphs 21 and 22 above).

64.  As such, P, as appeared to be so advised by his legal advisers, chose not to follow D2’s procedures (despite raising no dispute on the properness of such procedures), but instead decided to use this court as an “alternative forum” to settle the question of which survey report to be adopted.

65.  Indeed, P confirmed this view when he told the court at trial that (as I paraphrase):

“Instead of instructing EGS to submit more evidence to dispute further, I instruct lawyers to commence legal action because I think the court procedure is fairer.”

66.  This is entirely misconceived.

67.  It is no business of the court to provide an “alternative forum” to override a decision made by an appropriate authority, institution or body when such decision or discretion has been exercised properly in accordance with its own procedures within its own power.

68.  P should have followed the proper procedures by producing Tang’s Report to DSO to seek a review. Instead, he chose to bring this dispute to the court dressed up as a negligence claim,

69.  Of course, even as a negligence claim, this action is groundless.

70.  I would question whether P’s legal advisers have drawn their client’s attention to clauses 28 and 33 of the LSO. If they have, I wonder how P would see that he should embark on this totally misconceived action in the wrong forum against the wrong defendants. In my view, this entire action against both defendants may amount to an abuse of court process.

Expert evidence

71.  Having come to the above conclusion, there is no need for the court to proceed further. However, even assuming that P has commenced a negligence claim against the correct defendant, that is, Mr. Henry Chan, Mr. Tang’s opinion fell far short in establishing a breach.

72.  Firstly, again, Mr. Tang only argued about the accuracies of the 2006 Survey and 2012 Survey. He did not opine that the 2012 Survey was so unreasonably inaccurate that Mr. Henry Chan has fallen below the standard of care as required of a surveyor under the circumstances.

73.  Indeed, drawing an example of a doctor’s duty of care, it is not enough to establish breach of duty by an expert simply giving an opinion that there exists another treatment option which is better than the one recommended by the doctor. The test is that the option offered is so unreasonable that the doctor has fallen below the standard of care as required.

74.  Secondly, even just on the issue of “accuracy”, I find Mr. Tang’s opinion unconvincing.

75.  Mr. Tang has agreed that there was a “Double-Y” junction between the 4 Lands all through the years. But then he also agreed that the 2006 Survey has “adopted the centre point of the “Double-Y” shape boundary features as the common boundary …” (paragraph 115 of Tang’s Report, Trial Bundle B1, page 243)

76.  In doing so, Mr. Tang has completely ignored the central issue: why is it proper and reasonably justifiable (e.g. according to which principle in the code of practice etc.) that a “centre point” should suddenly be adopted as the Common Boundary when all through the years, this was in shape of a “Double-Y”?

77.  Rather than addressing this issue, Mr. Tang merely conducted an extensive exercise repeatedly superimposing this “centre point” upon various aerial photographs etc. and then concluded that these matches well and therefore gave afair determination of the common boundary.

78.  Of course, there is no reason why one cannot fit a dot inside a line (the line between the “Double-Y”). So I fail to see the logic that if one can “match” a dot inside a line, it would be a “fair determination of the common boundary”.

79.  More importantly, in opining that this to be a “fair determination of the common boundary”, Mr. Tang has completely failed to address the concerns raised by the DSO if this was done: the Spike and the lack of common boundary between D1’s Land and Government Land as shown in DD Sheets and BGL.

80.  Then, at trial, Mr. Tang advanced a new theory.

81.  In short, Mr. Tang now suggested that, by comparing the 1949 and the 1963 aerial photograph and using a “Mid-line practice” (by drawing a mid-line between the edges of the field bunds of the 4 Lands as seen from the 1963 aerial photograph), the slanting “Double-Y” feature had now changed to a more “vertical” junction. The Common Boundary was now shaped like a cross.

82.  Mr. Tang also claimed that in the Mid-line practice, the alteration of the boundary features should be adopted as long as the changes were natural not man-made.

83.  He then advanced a theory that the boundary areas were actually gullies. He claimed that rainwater during big rainstorms would have flowed down the gradient (from east to west as shown in the maps) in these gullies and this had caused erosions of certain boundaries of the 4 Lands. Such changes in the boundaries were therefore natural and should be adopted. As such, the Common Boundary was now a more of a vertical “Double-Y” (Exhibit P7).

84.  Firstly, this was new evidence from an expert first presented at trial.

85.  Mr. Tang and the two experts (instructed by D1 and D2) has prepared a Joint Statement as long ago as 24 November 2020. Mr. Tang never sought to submit this new theory in some 3 ½ years since.

86.  On this alone, the court should not consider Mr. Tang’s new opinion.

87.  However, even if the court would entertain this new theory as an academic exercise, it plainly fails to support the claim that the 2006 Survey is more accurate.

88.  My first comment is that even if the “Double-Y” junction now appeared more “vertical”, it should still not be adopted as a point junction in its centre.

89.  Moreover, I find that the changes were not natural but man-made:

a. It is not in dispute that the Government has resumed the Government Land in around 1961. The aerial photographs before the resumption clearly showed that the land has been farmed previously and the rows of vegetation were planted along a north-south axis.

b. After the resumption, the building of Lau Fau Shan Road reduced the Government Land into a triangular shape.

c. The 1963 aerial photograph shows that there was replanting on this triangular-shaped Government Land. One may speculate that this probably done without permission from the Government since there was no evidence of any granting of lease of this land.

d. It is clear from the photograph that the rows of vegetation was now replanted in an orientation parallel to Lau Fau Shan Road (along a north-west to south-east axis) instead of along a north-south axis as shown in previous aerial photographs.

e. Importantly, when 1963 aerial photograph is superimposed on the 1949 aerial photograph, the boundary of this re-planted field (as determined by the field bunds now seen) has shrunk away from the boundaries with P’s Land and the Non-party’s Land. On the other hand, the positions of the field bunds and thus the boundaries of P’s Land and the Non-party’s Land remained largely unchanged.

f. As such, if one takes the 1963 field bunds of the re-planted field as the boundary of the Government Land and apply the Mid-Line practice, the boundary between the Government Land and P’s Land would be moved westward. Similarly, the boundary between the Government Land and Non-party’s Land would be moved southwards.

g. These “shifts” were simply because the person(s) sneaking back to re-plant on what was left of the Government Land had decided not to plant all the way to the old boundaries as seen in 1949 and previous aerial photographs. Therefore, there was a visual change in shape the Common Boundary in the 1963 aerial photograph which now appeared more “vertical” in shape of a cross.

90.  The fact that all the experts agreed to use the 1963 aerial photograph as the basis of assessment was because of its quality (i.e. clarity). However, it cannot be used as the basis to apply Mr. Tang’s “Mid-Line practice” because of the obviously man-made changes to the boundaries of the re-planted field in the Government Land.

91.  In conclusion, on my analysis, there is insufficient evidence to support Mr. Tang’s theory that the “Double-Y” Common Boundary became more “vertical” in 1963 because of natural erosion by rainwater. On balance of probability, the apparent visual changes in the boundaries and the shape of the Common Boundary were caused by changes in field bund positions, which must be man-made by the person(s) re-planting on the Government Land.

92.  As such, even if one considers Mr. Tang’s new theory, it fails to show that the 2006 Survey is more accurate than the 2012 Survey.

93.  I need not spend more time to discuss here the expert opinion of D1 and D2’s experts. Suffice to say that both experts supported the accuracy of the 2012 Survey over the 2006 Survey.

94.  In any case, this is a pure academic exercise.

95.  As stated above, this is neither a judicial review action against the Decision made by D2 nor a negligence claim against the relevant authorised land surveyor. In the circumstances, the court was asked to perform purely as an adjudicator on the accuracy of various survey reports. The court has no jurisdiction to do so.

D2’s counterclaim

96.  D2 counterclaims for a declaration that certain line marked by certain points represents the Common Boundary (paragraph 16 of the Re-amended Defence and Counterclaim of D2, Trial Bundle A, page 41). In effect, this amounts to seeking a declaration from the court declaring the accuracy of the 2012 Survey. I would similarly dismiss this.

Order

97.  I would order that P’s claim against D1 and D2 be dismissed. D2’s counterclaim is also dismissed.

98.  There be a cost order nisi that P shall pay the costs of this action to D1 and D2 to be taxed if not agreed. I will also grant certificates for one counsel each to D1 and D2.

Mr Kelvin Leung, instructed by Messrs Li, Kwok & Law, for the plaintiff

Mr Leon Ho, instructed by Messrs Leung & Lien, for the 1^st defendant

Miss Tessa Chan and Mr Jonathan Kwok, instructed by Department of Justice, for the 2^nd defendant