HO MAN LAP v. HO KING KIU AND OTHERS

DCMP 377/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 377 OF 2010

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JUDGMENT

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1.  The plaintiff is the owner of the land known as the Remaining Portion of Lot No 198 in DD No 74, New Territories (“the Trespassed Land”), which is identified by red edging along the line A-B-C-D-E-F-A on the plan on (“the Plan”) attached to the Statement of Claim as Appendix A.  The defendants are now occupying a 2-storey building at the square area edged blue along the line 1-2-3-4-1 on the Plan.  They are operating a store known as Chan Fung Kee Store (陳鳯記士多) (“the Store”).  It is the plaintiff’s case that the rear part of the Store encroaches upon the plaintiff’s land.  By this action, he seeks to evict the defendants from occupying the Trespassed Land.

2.  Initially, the defendants pleaded that they occupied the Store pursuant to a Short Term Tenancy granted by the government in 1983.  They disputed the accuracy of the boundary survey done by the plaintiff, stating that the Store did not encroach upon the plaintiff’s land.  After the Short Term Tenancy had been terminated by the government on 30.9.2010, the defendants raised a new defence of limitation.  They alleged that the Trespassed Land has been in adverse possession by the government for over 20 years.  The government has acquired possessory title of the Trespassed Land since January, 1972 and therefore the plaintiff’s title has been extinguished.  But the government has not made any claim relating to adverse possession of the Trespassed Land against the plaintiff.  Therefore, this defence can never succeed.

The survey done by Mr. TH Chan

3.  On 14.8.1981, the plaintiff acquired the Trespassed Land.  In 1999, the plaintiff and Chan Nam Kiu entered into a tenancy agreement in respect of the Trespassed Land for a period of 3 years at a monthly rent of $100.  The tenancy expired on 30.10.2002, and was not renewed.  Subsequently, the plaintiff commenced legal proceedings to regain possession of the Trespassed Land.  Judgment in default was entered in respect of the Trespassed Land on 24.4.2003.  A writ of possession was issued on 20.6.2003.  When it was executed by the bailiff, Chan Nam Kiu came out and resisted the enforcement action on the ground that no plan showing the location of Lot 198 RP was attached to the court order.  The plaintiff therefore engaged an authorized land surveyor, Mr T H Chan, to establish the boundary of Lot 198 RP.  On 4.3.2004, Mr T H Chan produced his 1^st survey plan, which showed that Lot 198 RP comprised of 2 parts.  He submitted his survey report, together with this 1^st survey plan to the government for its acceptance.  This 1^st survey plan was based on correlation by using the group of village houses (Lots 473 to 476) at a far distance to the south of Lot 198 as anchor points.  The survey report was not accepted by the government.  In its letter of rejection dated 23.7.2004, the government requested him to re-examine his approach of the boundary re-establishment of the subject lot.  In February, 2009, the government further advised that according to the DD Control Sheet, Lot 198 RP should be one parcel of land instead of two, and that according to the 1^st survey, a large portion of Lot 198 RP would fall on the hillside, and this is in conflict with the description of Lot 198 RP, namely, threshing floor in the DD Sheet in the schedule of the Block Government Lease.

4.  On 31.8.2009, Mr T H Chan produced his 2^nd survey plan (“the 2^nd Survey Record Plan”).  He took into account the comments of the government and used the adjacent lots, namely lots 466, 468 and 469, as the anchor points for correlation.  This survey plan showed that a large portion of the Store and its associated facilities (such as toilet, kitchen and storage) encroach upon Lot 198 RP.  The survey report for this 2^nd Survey Record Plan was submitted to the government on 18.9.2009 for the governments’ checking and record.  

5.  The correlation done by Mr T H Chan in the 2^nd Survey Record Plan was recorded as follows :-

“A re-correlation of the boundary of Lot 198 RP was conducted by matching the house lot no 466, 468 and 469 on the D.D. Control Sheet (App. D) with the houses mapped on the old survey sheet no. 61-NE-C. By such correlation, the boundaries of the resumed Lots 196 and 197 and the alignment on the DD Control Sheet (App. D) would match with the mapped road alignment and embankment. …”

6.  It was concluded by Mr T H Chan that:

“The boundary of Lot 198 RP was re-correlated by some abutting house lots and its whereabouts fit with the BCL description. It was found that part of the existing house no 1 was built on Lot 198 RP with a roof-over area of 20.3 m2 and the annex or temporary structure at the back occupied an area of 3.7m2 of the lot.”

7.  By a letter dated 13.11.2009, the 2^nd Survey Record Plan was accepted by the government.  In the letter the District Survey Office stated :-

“…your plan will be kept in our office for reference by others.”

On 30.4.2010, the District Survey Office subsequently revised its own Lot Index Plan No: 3-NE-22B,D.

8.  The plaintiff used the land boundary of Lot 198 RP in this 2^nd Survey Record Plan as the basis of his claim for trespass to his land. 

The survey done by Mr. George Leung

9.  On 5.3.2010, the plaintiff obtained a default judgment against the 1^st and the 2^nd defendant for possession of Lot 198 RP.  Then the defendants sought to set it aside.  The defendants engaged an authorized land surveyor, Mr George Leung, to re-establish the boundary of Lot 198 RP.  But the defendants never disclosed his report to the court dealing with the application of setting aside.  On 15.11.2010, the default judgment was set aside.

10.  Mr George Leung did carry out an independent site survey in arriving at his conclusion.  In the title of the plan, he declared :

“… I…hereby certify that … this plan correctly represents that survey completed on the 25^th day of June 2010.”

The corresponding co-ordinates of the various boundary points of Lot 198 RP, namely A-B-C-D-E-F-A, in Mr George Leung’s survey record plan are identical to those of the 2^nd Survey Record Plan of Mr T H Chan.  Hence, his independent survey supports the plaintiff’s case.

The survey done by Mr. S C Leung

11.  For the purpose of these proceedings, the plaintiff engaged Mr S C Leung, an authorized land surveyor, as his expert, to re-establish the boundary of Lot 198 RP.  Mr S C Leung carried out his own site survey and his own correlation exercise.  In his report, he states :-

“Our work approach is therefore to establish the boundary evidences of the nearby DD lots so as to use them as the reference for determining the position of the Parent Lot.

…We therefore carried out our work in stages as could be broadly described as following :-

- Firstly, site survey of the existing ground features including Chan Fung Kee Store and to identify those features of boundary significance.

- Secondly, verify the reliability of the contents of the DD sheet by comparing them with the above site survey findings, the old aerial photographs, and the survey sheets.

- Lastly, based on reliable evidences found from the above verification exercise, establish the boundaries of the Parent Lot, then the Subject Lot with particular attention to their positional relationship with Chan Fung Kee Store.”

12.  He made a check on two previous independent surveys, one by Mr T H Chan, and one performed by the District Survey office in 2001.  He confirmed that those surveys are complete and accurate, and that they are agreeable with one another, and both consistently showed that the Store exists on the site as House No 1.  He further carried out a site survey to verify the accuracy of the surviving boundary evidence of Lots 466, 468 and 469, namely, House No 2, the Ruin, and House No 3 respectively.

13.  He then performed his own correlation exercise and concluded that the western, northern and southern boundaries of Lot 198 RP coincide with those on the 2^nd Survey Record Plan of Mr T H Chan. Regarding the eastern boundary, he opined that it should be further to the east, thus covering a greater portion of the Store.  However, given the latest position of the government, the eastern boundary of Lot 198 RP should be taken as the one established by Mr T H Chan in his 2^nd Survey Record Plan.

14.  On 30.9.2010, the government terminated the Short Term Tenancy granted to the 1^st defendant in 1983.  Hence, the defendants no longer have any right to occupy the Store.

The defence

15.  The defendants’ defence is a complete denial of the plaintiff’s title over Lot 198 RP, the location of Lot 198 RP and the Store.  But they have not put forward a positive case as to where the plaintiff’s land, the Store and other adjoining facilities are located.

The comments made by Mr. Henry Chan

16.  The defendants engaged an authorized land surveyor Mr. Henry Chan to criticize the work of Mr T H Chan and cast doubt on the reliability of the survey result done by him.  They did not instruct Mr Henry Chan to perform his own survey or to re-establish the boundary of Lot 198 RP.    Mr Henry Chan did not re-establish the boundary of Lot 198 RP.  In his report, he stated :-

“This report is prepared on the request of CHOI & LIU Solicitors to provide evidence on reliability in relation to the following issues :

(a) the location and boundary of the Remaining Portion of Lot No 198 (Lot No 198 RP) in Demarcation District No 74; and

(b) the location and boundary of Chan Fung Kee Store (“CFKS”).”

17.  Mr Henry Chan recognized that the 2nd Survey Record Plan of Mr T H Chan was done by correlation with reference to Lots 466 (House No 2), 468 (Ruin to the south of House No 2) and 469 (House No 3).  His comments were set out at paragraph 5.5 of his report.  He made a general comment in his report: ‘Over the years, when they [Lot 466, 467, 468 and 469] were rebuilt for dwelling, the size might change (e.g. House No 3) and the location might shift from hillside to flatter terrain.  As House No 2, the toilet behind House No 2, the ruin further south to House No 2 and House No 3 on the plan at Appendix “L1” may not reflect the original locations of Lot 466, 467, 468 and 469, the reliability of the re-correlation exercise in 2001 that resulted in portion of STT 456 falling on Lot 198 RP is doubtful.’  He cannot reach a conclusion that the 2^nd Survey Record Plan is wrong.  It is neither here or there to say that the re-correlation exercise in 2001 is doubtful.  So there is no evidence the 2^nd Survey Record Plain is wrong. 

18.  If the defendants genuinely disputes the accuracy of the 2^nd Survey Record Plan and/or that of Mr George Leung, the proper way was to engage an authorized land surveyor to produce a proper survey record plan showing a different result and submit the same to the District Survey Office for checking.  The defendants have simply failed to do this.  The present dispute on the accuracy of the 2^nd Survey Record Plan regarding the boundary of Lot 198 RP raised by the defendants in these proceedings cannot be genuine and cannot be sustainable.

Code of Practice under Land Survey Ordinance

19.  Pursuant to section 43 of the Code of Practice under the Land Survey Ordinance, once a land survey is performed by an authorized land surveyor, the corresponding survey results and details have to be submitted to the Land Survey Authority.  Under the guidance note for Land Boundary Survey issued by the Hong Kong Institute of Surveyors, Mr Henry Chan’s survey (if carried out) would have to be released to the plaintiff’s expert. But the defendants did not take this risk.  They did not instruct Mr Henry Chan to do any survey work.

20.  Under the current practice, the survey plan deposited with and accepted by the District Survey Office first is deemed to be correct until there is strong evidence to suggest that the boundary information of the first one is wrong.  The aforesaid practice was formalized in the Land Survey Authority Circular No 2/98 dated 5 May 1998 issued to all Authorized Land Surveyors in Hong Kong.  It is given effect in the Code of Practice issued under Section 29 of the Land Survey Ordinance, Cap 473.  The aforesaid practice was approved by the Court of Appeal in Chan Tat Wing v Disciplinary Board (CACV 22/2011):-

‘Deposit of land boundary plans with DSO

4.  The District Survey Office (“DSO”) maintains a record of land boundary plans.  An ALS who, after conducting a survey, has made land boundary plans, survey record plans and survey reports would deposit duplicates of these documents at the DSO.  Boundary information shown on the deposited plans would then be incorporated into the land boundary record of the Cadastral Information System (“CIS”).

5.  From to time, surveys conducted by different ALSs might result in conflicting boundaries which caused problems of incorporation into the CIS.

Circular on conflicting surveys

6.  On 5 May 1998 the Legislation Section of the Survey & Mapping Office of the Lands Department issued “Land Survey Authority Circular No.2/98" to all ALSs, setting out the Land Survey Authority’s instructions as follows:

“When there is conflicting boundary information between two submissions, the survey with plans deposited with ... the DSO first will have priority over the second one. Unless there is evidence to suggest that the boundary information of the first one is wrong, the second ALS will be advised to amend his/her boundary definition to accord with that of the first one. It would be up to the second ALS to prove the first one wrong should he/she dispute the amendment request. Even where no overt mistake can be proved in the first survey, the second ALS can always challenge the first ALS’s boundary definition in a court of law if he/she so wished. Boundaries of the second survey will be incorporated into the CIS only when the boundary conflicts have been resolved”. (Emphasis added).

Guidance Notes for Land Boundary Survey

7.  The surveyors’ professional body, the Hong Kong Institute of Surveyors, issued the following Guidance Notes for Land Boundary Survey:

“A Professional Land Surveyor must release his/her boundary data and control data as far as possible to the other Professional Land Surveyors ... to enable people to enjoy secured land ownership and settlement in respect of land boundary aspect”. (Emphasis added).

8.  In other words, with the purpose of achieving consistency in boundary survey results, ALSs are under an obligation to release information to one another to enable settlement of boundaries.  The good sense of this obligation is easily perceived.” (per Hon Yuen JA at paras 4 to 8.)’

21.  The 2^nd Survey Record Plan of Mr T H Chan was accepted by the government, and the corresponding boundary information has been incorporated into the CIS which resulted in the amendment of the Lot Index Plan in April 2010.  It is deemed to be correct.

22.  In 2010, the defendants engaged Mr George Leung to re-establish the boundary of Lot 198 RP in support of their setting aside application.  Upon his survey Mr George Leung came to the same conclusion as Mr T H Chan in his 2^nd Survey Record Plan.  He produced a land boundary plan similar to the 2^nd Survey Record Plan.  If the defendants honestly believed that the 2^nd Survey Record Plan of Mr T H Chan was wrong, they should have instructed Mr Henry Chan to perform a land survey and produce a formal land record plan, in order to challenge the 2^nd Survey Record Plan in court.  I find that there is nothing wrong with the 2^nd Survey Record Plan.  As a result, the defendants has been trespassing on the Trespassed Land.  Hence I enter judgment in favour of the Plaintiff.

Damages

23.  The defendants have rented out the Store since 2005.  After the Short Term Tenancy had been terminated by the government in September 2010, they refused to leave.  The plaintiff is entitled to damages for trespass of the Trespassed Land since 13.12.2003.  The parties jointly appointed Mr Chris Tang to produce a valuation report on the fair market rental value of the Trespassed Land.  He made an assessment on the fair monthly letting values of the Trespassed Land for the period from December 2003 up to October 2011.  Both parties agreed to his assessment.  Applying the monthly rental values over the relevant period, the total loss of rental income is assessed at HK$98,387.40.

24.  The 3^rd defendant and Chan Nam Kiu admitted that the 2-storey concrete structure of the Store and the further toilet/kitchen/storage facilities were erected by them and/or their family members.  According to the quotations issued by Building Demolition Engineering Co Ltd dated 17.11.2012, if the plaintiff has to maintain the stability of the remaining structure of the Store outside Lot 198 RP, the costs of removal of the infringing parts are HK$665,000.  If the whole of the 2-storey concrete structure is to be removed, the corresponding cost will be HK223,000.

25.  The plaintiff has no right to remove the existing installations outside Lot 198 RP.  The position of the government was made clear in its letter to Messr Choi & Liu, Solicitors dated 30 September 2010 to the effect that the structures erected on STT area do not have to be cleared.  The plaintiff is not under any legal obligation to remove the existing installations outside Lot 198 RP.  In the circumstances, the special precautions stated in the quotation of Building Demolition Engineering Co Ltd at D/911 have to be taken by the plaintiff.  Thus, the cost of removal to be incurred to the plaintiff will be HK$665,000. 

26.  I make the following orders :-

(1)   The plaintiff do recover possession of the Remaining Portion of Lot No 198 in Demarcation District No 74, New Territories, Hong Kong, ie Lot 198 RP as defined in the Survey Record Plan No SRP/DN/74/198RP-D2 dated 31 August 2009;

(2)   The defendants shall within 60 days from today vacant part of the Store and the toilet/kitchen/storage facilities within Lot 198 RP, being areas coloured yellow in the plan attached in Appendix A to the Statement of Claim;

(3)   The defendants, whether by themselves, their servants or agents or otherwise howsoever be restrained from entering or using the areas defined in Order (2) above or any part(s) of Lot 198 RP as defined in Order (1) above;

(4)   The defendants are jointly liable to damages for trespass in the sum of HK$98,387.40 for the period from 13.12.2003 to 6.2.2013 and thereafter at a rate of HK$995 per month until possession is delivered up;

(5)   The defendants do pay, within 14 days from today, the sum of $98,387.40 at 50% judgment rate from 13.12.2003 up to 18.4.2013, and thereafter at judgment rate until satisfaction; and

(6)   The defendants do pay to the plaintiff, jointly and severally, within 14 days from today, costs of removal of the infringing installation in the sum of HK$665,000;

(7)   Interest on costs of removal from 4.5.2013 at judgment rate until satisfaction.

Costs

27.  The defendants do pay the costs of this action to the plaintiff, to be taxed, if not agreed, with certificate for counsel.