KO KWOK KUE AND ANOTHER v. CHING TAT LOONG AND OTHERS

1987, No. A4586

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The 1st Plaintiff was the owner of a piece of land in Sai Kung known as Lot 67, DD 253. The 2nd Plaintiff entered into a Sale and Purchase Agreement with the 1st Plaintiff dated 27th October 1986 in respect of that land, and on that day was let into possession. On 27th December 1986 the 2nd Plaintiff attempted to erect a fence to prevent people crossing the land, but met with resistance from certain people. Those people were the residents of 8 residential buildings erected on 8 pieces of land known as Lot 5 Nos. 1201 to 1208 which adjoined Lot 67. Each building comprised a ground floor and 2 storeys above it, with a flat on each floor i.e. 24 flats.

2. The 2nd Plaintiff's attempt to fence the land, as I said was met with resistance, and on 31st July 1987, the Plaintiff issued a writ against the Defendants who are the occupants of 17 specified flats. The Plaintiff alleges that the 12th Defendant who the builder of the flats wrongfully entered upon the Plaintiff's and removed soil from and constructed a road which give access from a public road to the 8 buildings. I will refer to that as the access road. The plaintiff also alleges that the 1st to the 8th Defendants and the 12th to the 17th Defendants and their servants and agents have since about November 1986 and each of the 9th to 11dth Defendants and their servants and agents have since about April 1987 been and are still wrongfully entering and crossing the Plaintiff's land by way of the said access road; and that on the 27th & 28 December 1986 when the 2nd Plaintiff was in the course of erecting a fence along the boundary of the Plaintiff's land to prevent persons from wrongfully entering and crossing the Plaintiff's land by way of the said access road. The 1st to the 8th, the 12th to 17th Defendants and their servants prevented the 2nd Plaintiff from erecting a fence and also threatened to demolish the fence. The Plaintiffs say that by reason of the foregoing, they suffered damages and they claim

(1) a declaration that the 1st to the 17th Defendants and their servants and agents are not entitled to enter or cross the Plaintiffs' land;

(2) a declaration and the 2nd Plaintiff is entitled to erect a fence along the boundary to prevent the 1st to the 17th Defendants and their servants or agents from entering the land or crossing it;

(3) an injunction to restrain the 1st to the 17th Defendants and their servants or agents from entering or crossing the Plaintiffs' land or any part thereof;

(4) damages; and

(5) costs.

3. Five of the Defendants did not file acknowledgments of service or defences i.e. the 5th, 6th, 7th, 8th and 14th Defendants. The 2nd and 12th Defendants were represented by Amelia Cheung & Co., Solicitors.

4. The 1st, 3rd, 4th, 9th, 11th, 13th, 15th and 16th Defendants were represented by Robert Wang & Co., solicitors. Robert Want & Co. originally also represented the 10th Defendant. However, subsequently they ceased to act for him.

5. The Defendants represented by the two firms of solicitors i.e. the 1st, 2nd, 3rd, 4th, ,9th, 11th, 12th, 13eth, 15th & 16th Defendants have come to terms with the Plaintiffs, and upon a consent summons, judgment has been entered in the terms agreed and set out in the summons.

6. As I have said the 5th, 6th, 7th, 8th, & 14th Defendants failed to file any defence and upon the Plaintiffs' motion, judgment was entered against them as prayed.

7. The 17 Defendants put in a home-made defence saying that they had moved out on the 15th July 1987, that they had never prevented the 2nd Plaintiff from erecting a fence along the boundary of Lot 67 and that they would not enter or cross the Plaintiffs' land.

8. On the 31st January 1989, that is on the eve of this hearing, the Plaintiffs' solicitors received a faxed letter from Chan, Lau & Wai, Solicitors acting for the 17th defendants confirming an agreement made earlier that their clients would pay $5,000.00 in full and final settlement of the action against them. Mr. Walter Lau for the Plaintiffs accordingly applied for and was granted leave to discontinue the action against the 17th Defendants. That leaves the action unresolved only in respect of the 10thDefendant to whom I now finally turn.

9. The 10th Defendant through his Solicitors, Robert Wang & Co. filed a defence denying the Plaintiffs' material averments and alleging in fact that a right of way for access to lot 1201 to 1208 had been exercised for upwards of 30d years. He also made a counterclaim for:

(1) a declaration that he and his servants and agents were entitled to a right of way over Lot 67;

(2) a declaration that the access road on Lot 67 had been dedicated to the public as a highway;

(3) an injunction to restrain the Plaintiffs and their servants and agents from blocking the access road or in any way preventing him or his servants or agents from exercising their right over the access road or Lot 67; and

(4) Damages.

He did not appear at the trial and his counterclaim was dismissed. In support of the Plaintiffs', claim, Mr. Yau Kut, a Director of the 2nd Plaintiff gave evidence which I accept in substance Mr. Yau also produced the title deeds of the 1st Plaintiff and the Sale & Purchase Agreement. In addition certain other documents were exhibited in pursuance of Hearsay Notice which were not opposed by any of the Defendants. Upon all that evidence in my findings and judgment, the 2nd Plaintiff is entitled to possession of Lot 67 and the 10th Defendant is not entitled to enter or cross that land. The 2nd Plaintiff is entitled to erect a fence along the boundary of Lot 67 and to prevent the entry thereto or crossing thereof by the 10th Defendant himself, of by his servants or agents or howsoever; and that he is likewise entitled to declarations to that effect.

10. It is probable from the 10th Defendant's claim that he is entitled to a right of way over Lot 67, and his apparently continuing residence in one of the 8 buildings and the fact that the route across Lot 67 provides the only practicable vehicular access to his residence, that the entry into and crossing of lot 67 by him will be repeated and that accordingly an injunction to restrain that should issue.

11. Finally as to the claim for damages, again I am satisfied on the probabilities that the 2nd Plaintiff was denied the use of at least 2,100 sq.ft. of his land that formed the surface of the access road wrongly constructed. Such denial resulted from the wrongful use of that means of access by the 10th Defendant along with the other occupants of the 24 flats. In my judgment the 10th Defendant is therefore liable in damages. The Plaintiffs have chosen to measure their damages by reference to the rental value of the land involved. In my judgement they are entitled to do so (see the judgment of Megaw L.J. at para. 1421 of the 3rd Edition of McGregor on Damages). But in practical terms that has not proved to be a simple matter. The Plaintiffs have not been able to procure evidence of the general rental value of vacant, non-residential land in the New Territories, and certainty not land used as a road or means of access. However, Mr. Yau testified that as the 2nd Plaintiff was not able to enclose Lot 67 because of its use for access by the Defendants. The 2nd Plaintiff had therefore to rent other similar land in the vicinity for storage of its construction material. It was in the business of buying land and building houses. It rented some 1,300 sq.ft. of land at $9,500.00 per month from January 1987 to the present time for storing its construction materials. That works out at $7.30 per sq.ft. The area of the access road used by the Defendants was about 2,100 sq.ft. (i:e. 150 ft. x 15 ft.) which would workout at $15,330 per month and divided between the 24 flats at $638.75 each. That seems to me to be substantial but not excessive. I see no reason for not accepting it as a basis for arriving at an acceptable rental value. The land rented by the 2nd Plaintiff was in fact some 10 mins. driving time further away from the main Clearwater Bay Road and therefore could only have commanded a lesser rent. Upon the forgoing for the 22 months the 10th Defendant probably used the access road i.e. from April 1987 to January 1989 inclusive, I assess the damages due to the Plaintiffs at $14,052.50. There will accordingly be Judgment for the Plaintiff for the 2 declarations, an injunction and the damages, as I assess above.

12. The Plaintiffs ask for interests and costs. Upon the basis of the damages assessed the Plaintiffs would have received the rental monthly and there is no reason why they should be denied interest upon the money of which they have been denied the use. The rate of interest in my view would ordinarily have been at the non-commercial rate, that is at prime plus 2%. However, the Plaintiffs through their counsel have only sought interest at the lesser judgment rate. I accordingly give them interest at ½ the judgment rate for 22 months i.e. from April 1987 to January 1989 inclusive, and at the judgment rate from today until payment.

13. As to costs, I do not consider it right particularly in the circumstances of this case to order the 10th Defendant to pay more than the proportion of the costs that can be attributed to him. I accordingly order that he pay to the Plaintiffs 1/17 of their costs incurred before his acknowledgment of service i.e. the 22nd August 1987, ½ of their costs incurred between that day and 3.40 p.m. on 1st February 1989, when the proceedings terminated in respect of all the other Defendants, and the whole of the Plaintiffs' costs thereafter.