PANG KWAN LUNG AND ANOTHER v. MA CHOI HOP AND OTHERS

[It is arguable that, in Hong Kong, one Crown Lessee may prescribe for an easement against another Crown Lessee]

1989, No. A2091

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. This is the plaintiffs' application for an interlocutory injunction.

2. The defendants are owners of some land in the New Terrorities adjoining Kam Tin Road, and the plaintiffs are the owners of a plot of land to the north of the defendants' Land. (The references I have made to the plaintiffs and the defendants as "owners" of their lands are references to their respective rights under Crown Leases; no one otherwise owns any land in Hong Kong other than the Crown and possibly St. John's Cathedral.) The convenient way from Kam Tin Road to the plaintiffs' land lies over a way, originally a dyke, but, in 1966, made up with the assistance of money and materials from the District Office and incorporating utility services (I shall call this "the disputed way").

3. The plaintiffs claim a right of way over the disputed way which they use as a cartway. They say they have a private right of way, which they have acquired by prescription. Alternatively, they say the public have a right of way, acquired by (presumed) dedication. In the further alternative, they say they have a right of way because they are villagers of Pang Ka Tsuen; and in the New Territories, they say, there is a custom under which villagers may acquire rights of way to their land from a public road. Lastly, the plaintiffs say that the owners of the defendants' land consented, in 1966, to the works to which I have referred and must, therefore, be taken to have acquisesced in and recognised the rights of way subsisting over the dyke then made up; in other words they are entitled to rights of way under a proprietary estoppel.

4. The plaintiffs complain that the defendants have erected a fence at the junction of the disputed way and Kam Tin Road which obstructs their rights of way. (In fact, the fence was erected by a sub-tenant of the defendants who wishes to use the land for the storage of containers and, understandably, wishes to ensure that the facilities offered are secure. The fence has now been taken down. As matters stand at present, there is in place an interim injunction which precludes the defendants from re-erecting it.)

5. What is before me now is the substantive hearing of the plaintiffs' application for an interlocutory injunction. I emphasize that, because this is not the trial of the action. It is not for me at this stage finally to determine the rights and wrongs of the matter. I do, however, have to determine whether or not the plaintiffs have an arguable case. The first limb of the defendants' argument is that the plaintiffs have not such an arguable case, and if the defendants are right, there are no grounds on which I can grant interlocutory relief to the plaintiffs. The defendants say, secondly, that even if the plaintiffs have shown an arguable case, the balance of convenience lies with allowing the defendants (or their sub-tenant) to re-erect the fence so that the defendants' land may remain secure for the use of the defendants' sub-tenant until after judgment in the action.

6. I shall return to the point on balance of convenience later in this judgment. I deal first with the argument that the plaintiffs have not shown an arguable case.

7. The first way in which the plaintiffs put their case, as I have said, is that they have a private right of way. The defendants point, correctly, to the fact that the plaintiffs can produce no grant of any such right of way in their favour. But it is, I think, accepted that for many years, the disputed way has been used for the purpose of obtaining access from the road to the plaintiffs' land. So there is the factual basis for a claim for an easement by prescription, if not from time immemorial, then under the doctrine of a lost modern grant, or (so far as applicable), under the Prescription Act, 1832. But, say the defendants, no matter what the factual basis, the plaintiffs cannot establish a prescriptive right of way of any sort at all. The reason why the plaintiffs cannot establish any such prescriptive right is, the defendants say, because all land in Hong Kong is held by the Crown and on any footing, the plaintiffs and the defendants are only Crown lessees. As the defendants say, again correctly, as between lessees no prescriptive right can in English law arise. The rule is that only an owner of the estate in fee simple can prescribe for a right. There must be a separate dominant tenement and servient tenement; and where there is unity, that is to say where the estates in fee simple in both are in common ownership, tenants cannot prescribe one against the other for easements under any circumstances whatever.

8. In support of that argument, the defendants cite Kilgour v. Gaddes [1904] 1 K.B. 457. This case shows that this argument would undoubtedly succeed as between two lessees in dispute with each other in England and Wales. The question is whether the same rule applies in Hong Kong. Under the Application of English Law Ordinance, Chapter 88, it is provided, among other things, that the common law shall be in force in Hong Kong subject to such modifications as the circumstances of Hong Kong may require; see section 3(1)(b) of the Ordinance. As appears from section 4(l) of the Ordinance and from the Schedule to the Ordinance, those responsible for the Ordinance clearly thought that the Prescription Act, 1832 would have some effect in Hong Kong; see in particular Item No. 60 in the Schedule.

9. The plaintiffs' answer to the defendants' argument is that as between Crown lessees, the Prescription Act, 1832 must apply in Hong Kong (and, I would add, all the common law principles relating to prescription) between Crown Lessees as they would apply between the owners of estates in fee simple in England and Wales. This, as it seems to me, is a point both of difficulty and of importance and I am not prepared, on this interlocutory application, to decide that it is unarguable. I express no further or other view about it, and I pass to the second claim made by the plaintiffs, for a public right of way.

10. The plaintiffs say that the villagers of Pang Ka Tsuen have been using the disputed way for as long as anybody can remember. It was, as I have said, originally an dyke, but, under a special village project scheme, was made up in 1966. Since then, the villagers have continued to use the path. This, the plaintiffs say, is evidence from which the court will presume a dedication of the disputed way as a public right of way. The defendants answer that it is not good enough for the plaintiffs to show user by the inhabitants of one or even more villages. What is required is evidence from which it can be presumed that the owners intended to dedicate the way to the public, not just a limited section of it. The defendants cite Poole v. Huskinson [1843) 11 M & W 827, and Bermondsey Vestry v. Brown (1865) L.R. 1 Eq. 204. (The latter case is reported also at 35 Beav 226).

11. The cases cited do indeed show that there can be no dedication to a limited section of the public, such as the inhabitants of a village. But I am not satisfied that, at this stage, I ought to assume that on the evidence the plaintiffs and others were using the disputed way simply in the capacity of villagers. There is, as it seems to me, at least a possibility (and a reasonable one on the evidence) that the disputed way might, at the trial, be held to have been one over which it should be presumed the owners had dedicated the right to use it to the public.

12. The defendants say that there is no evidence of dedication by the Crown; and that a mere tenant cannot dedicate in perpetuity because of the limited nature of his own interest. There can be no dedication for a limited time; see Dawes v. Hawkins (1860)8 CBN 847,858. And, say the defendants, there is no such thing as a dedication of a way for a term; Corsellis v. London County Council (1907)1 Ch 704, 713.

13. However, it does not seem to me to be beyond the bounds of possibility that the defendants will prove, at the trial, that a dedication by the Crown is to be presumed.

14. The defendants say that the use made of the way by the plaintiffs is at least as equally referable to the licence or consent of the owners of the defendants' land as it is to a dedication of a way to the public. The defendants point out that, in those circumstances a dedication ought not to be presumed; Stoney v. Eastbourne Rural District Council [1926]90 JP 57. Here, the defendants say, the owners were asked to consent to the making up of the disputed way, as I have mentioned; and, in those circumstances, the trial judge could not presume a dedication. But what the owners consented to was the making up of a way which had already been in use for some considerable time, and I am not satisfied that there is any substance in this point. For these reasons, I cannot hold that the plaintiffs' case for a public right of way is unarguable

15. Lastly, there is the point based on proprietary estoppel (which was advanced in argument but which finds no place in the statement of claim, either in its original or amended form). The plaintiffs say that they were encouraged to believe that the owners were granting a right of way when they consented to the works in 1966; and that the plaintiffs, among others, acting to their detriment, relied on the implied promise thereby made by the defendants that the plaintiffs and others would be entitled, once the work was concluded, to use the disputed way.

16. There seems to me on this ground too at least a possible argument open to the plaintiffs. No doubt the statement of claim will require further amendment in order to raise it; but I am, at this stage, concerned only with the question whether the plaintiffs have or have not got an arguable case.

17. For the reasons I have endeavoured to state, I come to the conclusion that the plaintiffs do have an arguable case, and that accordingly I ought not to dismiss their application for an interlocutory injunction upon the ground that there is no serious question to be tried. The plaintiffs and their predecessors, and others, have used the disputed way for a very long time. They have demonstrated to me that despite the formidable arguments raised by the defendants, they have at least an arguable case to continue to do so.

18. That being the position, I have to consider whether on the balance of convenience, I ought to grant the interlocutory injunction which the plaintiffs claim. The plaintiffs say that they need the disputed way in order to push vegetable carts up and down it. The defendants do not deny this, but they say that an alternative made-up road is available for the use of the plaintiffs and, that being so, it would be wrong to grant an injunction which would mean that the defendants could not allow their sub-tenant the security he wants for the containers he intends to park on the defendants' land. The road is, however, one over which the plaintiffs' right would be precarious. It is not on the defendants' land and the defendants are not prepared, quite understandably, to guarantee that the plaintiffs would be able to use it if the owners of the land objected (it is fair to add that, so far, they have not done so).

19. It would be open to me to refuse the plaintiffs an injunction, compelling them to use the alternative road, but giving them liberty to apply to the court again if objection was in fact taken to their use of it. I have considered this possibility but in the end I reject it. The status quo, until the defendants' sub-tenant sought to fence off the disputed way, was that for many years the plaintiffs and others had used it for the purposes I have mentioned. In my judgment, the justice of the case, and the balance of convenience, lies with continuing the injunction presently in place until after judgement in the action. If, at the trial, the defendants succeed, they will have the benefit (for what it is worth) of the cross-undertaking in damages which I shall impose as a term of granting the interlocutory injunction (this is, of course, in any case the usual and proper practice). If, then, I am offered the usual cross-undertaking in damages on behalf of the plaintiffs, I will continue the injunction; but I will invite the parties by their counsel now to ask me if they want to do so for directions for an early trial of the action, so that the parties' rights may be finally adjudicated upon as soon as possible. I should, again, stress that I have not, at this stage, decided whether the plaintiffs or the defendants are right. I have decided merely that, pending the trial of the action, the status quo, as I have defined it, ought to be preserved.