CHAU KA CHIK TSO AND OTHERS v. SECRETARY FOR JUSTICE

HCA 10670/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10670 OF 2000

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D E C I S I O N

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1.  This is an application for leave to adduce expert evidence in a boundary dispute.

Background

2.  The land is Lot No. 1212 in DD 115 in Yuen Long (“the Lot”).  It is just off Shan Pui River where a little crocodile was found several years ago.  The Lot was granted by public auction on 6 July 1916.  It has since been divided into sections running generally from north to south.  The plaintiffs are the present owners of these sections. 

3.  The plaintiffs say that the northern boundary of the Lot is a smooth curvilinear line part of which shares the southern boundary of Lot 1347 which is situated in the north.

4.  The defendant, however, says that the northern boundary should be drawn at some distance to the south from where the plaintiffs say it should be.  This distance, according to the plaintiffs’ surveyor, ranges from 49 metres to 100 metres.

5.  Both sides have already adduced expert survey reports to back up their respective cases.  The surveyors on both sides have gone into various survey plans prepared by the Government at different times in the last century.

6.  The registered area of the Lot, which was used for the purpose of the auction, was 18 acres. 

7.  If the defendant’s boundary should be adopted, the actual area of the Lot would be the same as the registered area of 18 acres. 

8.  However, if the plaintiffs’ boundary should be adopted, the actual area of the Lot would include a plot of adjacent land situated in the north.  It is bounded by the northern boundary of the Lot as claimed by the plaintiffs and the northern boundary of the Lot as claimed by the defendant.  As can be inferred from I have said above, the width of this plot, according to the plaintiffs’ surveyor, ranges from 48 metres to 100 metres.  The plaintiffs claim that this plot is part of the Lot and has also been divided into several parcels with each parcel constituting the northern part of one of the sections.

9.  The total area of these parcels (“the discrepant parts”) is 6.7 acres.  If the Lot should include the discrepant parts, its area would be 24.7 acres.  That is 37% larger than the registered area.

The additional expert report

10.  The plaintiffs now seek leave to adduce a further expert report.  This report was prepared by Drs Bruce King and Janet Nichol of the Department of Land Surveying and Geo Informatics of the Hong Kong Polytechnic University.  Dr King is a photogrammetric expert/consultant.  Dr Nichol is a biogeographer and ecologist.  One of her expertise is aerial photographic interpretation of ecosystems and land cover types.  Two aerial photographs taken in November 1924 which show an area in Yuen Long that includes the Lot were studied by them.  Dr King used a photogrammetric system to carry out an analytical study of the Lot.  Dr Nichol used a stereoscope to carry out an interpretative study of the Lot.

11.  From their studies, Drs King and Nichol concluded that at the time when the photographs were taken, the northern halves of the discrepant parts were covered by mangrove.  They also found some hollow depressions inside some of the sections of the Lot (which were divided by bunds).  The hollows were suggestive of soil excavation.  Dr Nichol further concluded that the Lot including the discrepant parts must have been covered by a mangrove canopy at one time before the photos were taken.  Since bunds had been built around the sections (which enclosed the discrepant parts as well), seawater was excluded from the enclosed areas.  The mangrove trees were therefore replaced by other types of vegetation leaving behind the “remnants” in the north at the time when the photos were taken.

Arguments in reliance of this report

12.  The plaintiffs want to reply on this report to make two points.  The 1^st point relates to the accuracy of the survey and the intention of the grant of the Lot.  The 2^nd point relates to the plea of proprietary estoppel. 

Irrelevant report not to be admitted

13.  The admissibility of expert evidence is a matter of discretion of the court.  If it is clear that the expert evidence sought to be adduced is irrelevant to the issues in a case, discretion should be exercised against it before trial so as to save time and costs.

14.  I refer to the decision of Chung J in Ko Chi Keung v Lee Ping Yan [2001] 1 HKLRD 829 at 833D to E:

“When it is clear and obvious that the expert evidence is relevant (or irrelevant), the discretion should normally be exercised in not deferring the determination on admissibility until trial so as to save time and costs and to promote certainty in litigation.  On the other hand, if the relevance (or irrelevance) of the expert evidence is not clear and obvious, the discretion should usually be exercised to defer that issue for it to be raised at trial.”

Accuracy of survey and the intention of the grant of the Lot

15.  For the 1^st point, the plaintiffs plead in a draft re-amended statement of claim that the intent of the grant of the Lot was for the discrepant parts to be included.  Their expert surveyor, Mr Wootten, has also prepared a proposed supplemental expert statement.  In this statement, he adopted the King/Nichol conclusion that the Lot including the discrepant parts was all covered by a mangrove canopy.  He said the bunds enclosing the fishponds were built at the limits of the mangrove canopy which were at the riverbanks.  He further said that such physical limits of the mangrove canopy would seem to be the boundary of the grant of the Lot as intended by both the grantor and the grantee at the time of the grant (which was before the fish ponds were dug and the bunds were built).

16.  He then referred to his own experience of running survey lines through mangroves in Australia before the advent of electronic equipments for distance measurement.  He said access to areas covered by mangrove was very difficult due to the uneven ground of varying stability and consistency ranging from mud, to roots of mangrove, to pools of water.  He further postulated that with the not-so-sophisticated surveying equipments available in 1916, the survey of the Lot would have been extremely difficult.  He thus concluded that because of all these difficulties, the length of the Lot from south to north was not accurately measured.

17.  This conclusion is based on the King/Nichol conclusion that the area was covered by a mangrove canopy and Mr Wootten’s own two speculations.  The 1^st speculation is that the intended boundary was to coincide with the limits of the mangrove canopy at the riverbank.  The 2^nd speculation is that the survey of the Lot as covered with mangrove with the not-so-sophisticated equipments back in 1916 was extremely difficult.  Hence, the surveyor responsible for the task made errors of under measurements in the length of the Lot from north to south.  The under measurements ranges from 48 metres to 100 metres.  By reason of these errors, the surveyor failed to come up with the actual area of 24.7 acres, but under reported the area at 18 acres only.  Apart from Mr Wootten’s assertions, there is nothing else to support these speculations.

18.  The Lot and the discrepant parts might have been covered by a mangrove canopy.  But I am of the view that it is too speculative to say that the intended boundary of the Lot was to coincide with the limits of the canopy or that the result of the 1916 survey contained a very sizeable error in size caused by survey difficulties.  I will not allow the plaintiffs to rely on such speculation upon speculation.  I therefore will not allow the plaintiffs to reply on the King/Nichol Report to make this point. 

Proprietary estoppel

19.  For the 2^nd point, the plaintiffs say that the report shows that fish ponds were dug not only inside the different sections, but also inside the discrepant parts lying to the north of these sections.  They say that this is evidence of human efforts in converting and improving the discrepant parts from mangrove to fishpond.

20.  The defendant says that the plaintiffs do not need the expert report to make this point.  The defendant has not disputed that the discrepant parts had been dug up and used as part of the fishponds for decades.  Human efforts were of course required in converting the discrepant parts into parts of the various ponds.  But it does not matter whether the discrepant parts were originally covered by mangrove or herbaceous trees or sand and stones before the digging. 

21.  If it does not matter whether the discrepant parts were covered by mangrove for otherwise, the plaintiffs do not need to rely on this report.  It does not assist the resolution of an issue in dispute because there is no issue of whether the discrepant parts were originally covered by mangrove or otherwise.  Even if the Lot including the discrepant parts were covered by mangrove at the time of the grant in July 1916, the plaintiffs’ case and the defendant’s opposition will remain the same.  I therefore agree with the defendant’s argument and will not allow the plaintiffs to rely on this report in order to prove the issue of proprietary estoppel.

Decision

22.  Apart from these two points, the King/Nichol Report is not relevant to any other issue in this action.  I therefore refuse leave for this report to be adduced by the plaintiffs.  I also make a costs order nisi that the plaintiffs do pay the defendant the costs of this application.