TANG SHEK KIU v. TANG LIM KWONG

DCCJ 2921/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2921 OF 2012

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JUDGMENT

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INTRODUCTION

1.  This is the trial of an action for trespass.

2.  The alleged trespass took place in February 2012 over a parcel of land in Tseung Kong Wai, Ha Tsuen (廈村祥降圍) in Yuen Long.  The land is known as Lot No 1146 in DD 125 (“Lot 1146”).

3.  The plaintiff and the defendant are both indigenous villagers and members of Tang Ching Ng Tso (鄧靜吾祖) (“the Tso”). The Tso owns a number of lands in the area.

FACTUAL BACKGROUND

Geographical layout

4.  Lot 1146 is an elongated piece of land, which lies in a northwest-southeast direction.  For present purposes, the Lot can be conveniently divided into three portions: the northern portion, the middle portion and the southern portion.  (The dispute does not concern the southern portion.)

5.  The northern portion adjoins, on its southern boundary, the middle portion.  The portions are identified in yellow and pink, respectively, in the plan annexed to the Amended Defence.  It is common ground that the plan shows the state of Lot 1146 since May 2013 to now.

6.  The northern portion is an open area, which is presently used as an access way by villagers and is wide enough for vehicles to pass through.  The middle portion is a field where vegetables are grown.  The northern portion is at an elevated level from the middle portion, roughly 5 feet higher.  Along the boundary of the two portions stands a concrete retaining wall.  The area of land occupied by and near the wall is the area over which the alleged trespass took place and hence forms the subject-matter of the present dispute.

7.  Roughly to the north of Lot 1146 is Lot 1148 Section D.  It is common ground that the latter lot was vacant until around January 2012 (ie, just shortly before the alleged trespass) when a house was constructed there.  Before that, the vacant land, which adjoins the northern portion, formed part of the access way used by villagers referred to above.

8.  To the east of Lot 1146 is Lot 1147, which is further bounded to the east by Lot 1137.  Both Lot 1147 and Lot 1137 are rectangular in shape and run in a northwest-southeast direction, roughly parallel to Lot 1146.

9.  Lot 1137 has been subdivided into Sections A to H and Remaining Portion.  At present, there are seven village-typed houses on the lot.  The houses were built at different times, the first one in late 2009.

10.  There is a main road which is located roughly to the northwest of the lots mentioned above.  Over the years, an access way has been formed which leads from the main road and goes over Lot 1148 Section D. and the northern portion of Lot 1146 and stops at roughly where Lots 1147 and 1137 are located.  In other words, it is an access way which connects the main road and Lot 1137.  I should point out that it is this access way, in particular, the part over the northern portion of Lot 1146, which forms the backdrop to the present dispute.

11.  At trial, two expert reports dated 30 September 2013 and 4 July 2014 made by Mr Chan Tat Wing, a land surveyor, were adduced as evidence.  There is no dispute on the content of the reports.   

12.  Based on his site visit and inspection of aerial photographs taken at different points during the period from July 2007 to September 2012, the expert was able to identify the access way and describe in some details how it has changed over the years. 

13.  The access way comprises two parts, which the expert has referred to as “Track A” and “Track B” in his reports.  Track A starts from the main road in the north and runs to the south and stops at the corner of the house now standing at Lot 1148 Section D.  Track B continues from there and runs from west to east on the southern side of that house.  As mentioned in §§6 and 7 above, Track B continues to go across the northern portion of Lot 1146 and eventually stops at Lot 1137.  The access way has varied in width over the years, but, generally speaking, since late 2009, it has been wide enough for vehicular access and that coincides with the period when construction of the houses on Lot 1137 was under way.

14.  In particular, Track B, whilst varying in width since 2009, has taken up a significant part of the northern portion of Lot 1146 and has been expanding to its southern boundary.

15.  The expert further observed from the aerial photograph taken in June 2012 that on the southern boundary of the northern portion, Track B was expanded by a portion, when compared with the previous aerial photograph taken in 2011.  That portion, in fact, corresponds with (but is slighter larger than) the strip of land where the concrete retaining wall referred to in §6 above now stands. Accordingly, the expert has referred to that area of land as “the extended portion of Track B” in his second report.  This is the area of land on which the alleged trespass took place.

Dramatis personae

16.  The legal owner of Lot 1146 is the Tso.  The Tso acts through its managers pursuant to section 15 of the New Territories Ordinance (Cap 97).  Mr Tang Ka Hi is one of the managers.  At trial, he gave evidence for the defendant.

17.  The plaintiff is over 80 years old. He says that he has, since the 1960’s, been and still is the tenant of the northern and middle portions of Lot 1146. 

18.  Apart from himself, the plaintiff called two witnesses at trial: Madam Tang Yuet Ho and Mr Tang Lin Wah, who are the daughter and son of the plaintiff.  I shall refer to them as “the plaintiff’s son” and “the plaintiff’s daughter” in this judgment.

19.  The defendant is the legal owner of Section H and Remaining Portion of Lot 1137.  He used to be the legal owner of the entire lot but in early 1993 he subdivided the lot into Sections A to H and Remaining Portion and, further, he assigned Sections A to G to seven individuals (all with Tang as last name) respectively.  The seven houses mentioned in §9 above are constructed on these seven plots of land.

THE PLAINTIFF’S CASE

20.  The plaintiff’s case is as follows.

21.  The plaintiff is the tenant of the northern and middle portions of Lot 1146.  The land has been let to him orally by the Tso at a yearly rent of $60 since the 1960’s.  He grew vegetables on the land until 1998, when the plaintiff’s daughter took over from him. 

The 2004 incident

22.  Both the plaintiff and the plaintiff’s daughter gave evidence that the northern portion and the middle portion used to be on the same level and they had been growing vegetables on both parts till 2004.  At that time, site foundation works began on Lot 1137.  The defendant’s workers dumped soil on the northern portion and effectively converted the vegetable field there into an access road to facilitate the transportation of construction materials by vehicles to Lot 1137. 

23.  As a result of the dumping, the northern portion has since been elevated to a higher level than the middle portion.  A slope (“the Slope”) was therefore formed where the two portions adjoin due to their different levels.  It was no longer suitable to grow anything on the northern portion, which has since been used as an access way, with some areas sometimes overgrown by weeds.  The northern portion or part of it has since then become part of Track B – see §§13 and 14 above.  As will be seen below, the Slope effectively occupied the area of land which later forms “the extended portion of Track B”, ie, the subject-matter of the alleged trespass.

24.  At that time, the plaintiff’s daughter complained to the defendant about the dumping.  But the defendant simply retorted saying that there was nothing that she could do about it.  Although feeling aggrieved, the plaintiff or his daughter did not take any further action, given that they still wanted to maintain goodwill with their neighbour and that litigation would be costly.

25.  After the incident, the plaintiff’s daughter continued to grow vegetables on the field in the middle portion of Lot 1146. She gave evidence that while no crop could be grown on the Slope, she had to maintain it to prevent mud or soil from falling from the Slope on to the field and damaging the crop, especially after raining.  She would also cut out weeds grown on the Slope from time to time.  She also said that the vegetable crops would sometimes grow up on to the Slope.  She added that no one else would use or walk on the Slope, save for some children at times seen wandering around, whom she would promptly chase away.

26.  Construction works on Lot 1137 stopped after the completion of the site foundation works.  Workers did not resume work until about 2008 and 2009.  The defendant brought workers to work on Lot 1137 and supervised them, as witnessed by the plaintiff’s daughter.   From time to time, the plaintiff’s daughter would find construction wastes being dumped on the vegetable field in Lot 1146.  She complained to the defendant about it many times but the defendant just kept saying that he would remind the workers to be more careful. 

27.  When transporting construction materials to Lot 1137, the defendant’s workers used Track B as an access road.  Before the construction of the house on Lot 1148 Section D, they were able to use that piece of land which was then vacant for access.  However, following the construction of the house in January 2012, that part of Track B became much narrower.

The 2012 incident

28.  Then, in the early morning on 17 February 2012, when the plaintiff’s daughter went to work on the vegetable field, she discovered that the crops grown along the bottom edge of the Slope (the area measuring about ½ m in width and 25m in length) had been dug up and removed and in its place were affixed a row of 16 metal poles.  The plaintiff’s daughter went back home, grabbed her camera and returned to the scene to take photographs of what she saw.  Copies of these photographs are included in the trial bundle. 

29.  Two days later, she called the defendant by phone and confronted him asking why he did such a thing.  The defendant simply replied that in that case he would arrange to have the metal poles removed and have concrete poured there.

30.  The plaintiff’s daughter then reported the matter to the police.  A police statement was taken and a copy is included in the trial bundle.

31.  On 24 February 2012, the plaintiff’s daughter saw that the Slope had been filled up to the level of the rest of the northern portion and paved in concrete.  The photographs included in the expert reports show that the Slope was effectively filled and converted into a vertical slope and retained by the concrete wall.  The overall effect was that the access road was widened and expanded by that portion where the Slope used to stand.

32.  It is the plaintiff’s case that workers, acting on the defendant’s instruction, filled up the Slope in concrete in order to widen the access road (ie Track B) so that vehicles could pass through to facilitate the construction works on Lot 1137.  Accordingly, the plaintiff claims against the defendant for committing trespass over the Slope.  He seeks damages in the sum of $10,000, which represents the loss of the vegetable crop damaged by the defendant’s workers, and injunction against further trespass by the defendant on Lot 1146.

33.  With a view to demonstrating that the defendant had an interest in the houses built on Lot 1137, even though the legal title to the relevant sections of land had been assigned to others by the defendant, the plaintiff produced as evidence photographs taken by his son showing the defendant working on the construction site and speaking to workers there on a number of days in November 2012, January and February 2013.

Standing to sue

34.  At trial, there was some argument as to whether the plaintiff has the standing to sue for trespass.  The defendant’s position is that in order to acquire standing to sue, the plaintiff needs to demonstrate that he was a tenant of the Slope at the material time, ie, in February 2012.  On the other hand, the plaintiff argues that possession of the Slope alone would confer standing to sue.  In any event, evidence was adduced by both sides on the issue of tenancy.  The plaintiff’s factual case is as follows.

35.  In accordance with past practice, in about March 2012, the plaintiff tendered the rent for the northern and middle portions of Lot 1146 for 2012 to the Tso at an “accounting day” (理數日) meeting. (Accounting day meetings are held once a year, usually close to Ching Ming Festival).  The Tso did not accept the rent.  Mr Tang Tai Tong, one of the Tso managers, told the plaintiff that the rent of $60 was too low and the Tso needed to consider the level of the rent and would revert to the plaintiff. But the Tso never did.

36.  On 21 April 2012, the plaintiff’s son attended a meeting with the managers of the Tso.  The defendant was also present.  In the meeting, the plaintiff’s son complained about the defendant’s trespass over the Slope in February 2012.  Mr Tang Tai Tong replied that since what happened to the northern portion and the Slope had happened, the Tso would rent out the northern portion and the vegetable field separately.  The plaintiff’s son objected asserting that the plaintiff was the rightful tenant of both parts and his rights as tenant should not be violated.  Mr Tang Tai Tong then said in that case the Tso would have to take back the whole Lot.  The defendant remarked that there was no need to pay attention to the plaintiff’s son or talk to him. On that inconclusive note, the plaintiff’s son then left the meeting.

37.  On the accounting day for 2013, the plaintiff again tendered the rent for 2013 but the Tso refused to accept it.  Mr Tang Tai Tong said that the new rent was not yet fixed.

38.  It is the plaintiff’s case that the tenancy in respect of both the northern and middle portions (which area includes the Slope) is still continuing as the Tso has never served on him any notice to quit. In any event, the plaintiff says that even if he was not a tenant in February 2012, he, through his daughter, was in possession of the Slope and the middle portion, by reason of the matters referred to in §25 above, and therefore has the capacity to sue for trespass over the Slope.

THE DEFENDANT’S CASE

Standing to sue

39.  In respect of the issue of standing to sue, the defendant’s case is, in essence, that the plaintiff was not a tenant of the Slope, nor was he in possession of it in February 2012.

40.  The Slope was on the boundary of the northern and middle portions.  It is arguably not clear to which portion the Slope belonged.  The defendant therefore sought to adduce evidence at trial that the plaintiff was not a tenant of either portion in February 2012.

41.  First, the defendant says that the letting has never covered the northern portion.  That portion has been used by villagers as an access way for “decades”.  Since the plaintiff had repeatedly raised issues with regard to the right to use the northern portion (including the 2012 incident), the defendant (and another individual) requested the Tso to let out the northern portion to them with a view to avoiding any further dispute with the plaintiff and so that all villagers could now use the portion for access without any complaint from the plaintiff.  A tenancy agreement dated 2 June 2013 was signed under which the northern portion was let to the defendant and another individual for a term of three years from 1 June 2013.  Mr Benjamin Chain, counsel for the plaintiff, pointed out at trial that the date of the tenancy agreement happened to be just one month before the date of the defendant’s witness statement dated 2 July 2013.  And I note the timing accordingly.

42.  Secondly, the defendant says that the letting, which was in respect of the middle portion only, expired on 31 December 2011 (ie, just shortly before the alleged trespass), the Tso having given an oral notice to quit.   Notably, there has been a change of stance with regard to the defendant’s case on this oral notice.

(a) In the Amended Defence, the defendant averred that the letting “expired or otherwise was terminated on 31^st December 2011 by prior oral notice of few months”.  No particulars were given on the alleged oral notice. 

(b) In these proceedings, the defendant filed a witness statement signed by Mr Tang Tai Tong.  He stated that he gave notice orally to the plaintiff in September 2011 to terminate the tenancy.  In the end, Mr Tang Tai Tong did not turn up to give evidence at trial.

(c) In any event, Mr Roland Lau, counsel for the defendant, accepted that a 6-month notice was required to validly terminate the yearly tenancy (see Foa’s General Law of Landlord and Tenant (8^th edition) at §949) and the alleged oral notice in September 2011, even if proved, would not be a valid notice.

(d) At trial, Mr Lau resorted to rely on an alleged meeting which took place in March 2011.  Mr Tang Ka Hi, who did give evidence for the defendant at trial, said that it was agreed at the meeting, at which the plaintiff was present, that all tenancies granted by the Tso must from then on be in writing.  Mr Lau submitted that that could be construed as a notice by the Tso to the plaintiff to terminate the tenancy of Lot 1146 as from 1 January 2012.

43.  The plaintiff’s reply to this is that no one from the Tso had ever mentioned that the tenancy needed to be in writing. 

44.  As far as the possession of the Slope is concerned, the defendant’s case is that the Slope did not form part of the vegetable field on the middle portion and hence the plaintiff was not in possession.

The 2004 incident

45.  The defendant says that he has no knowledge of the 2004 “dumping” incident as alleged by the plaintiff.  But his case is that the northern portion has, at least since before 2004, been an open area used for access by villagers and at a level higher than the middle portion.

The 2012 incident

46.  Insofar as his interest in the houses built on Lot 1137 is concerned, there is (again) a notable change of position on the defendant’s part:

(a) The plaintiff pleads in the Statement of Claim that the defendant is the registered owner of Lot 1137 (at §3) and states (at §4): “The Defendant has caused a number of village-typed houses to be constructed on Lot 1137”.

(b) The defendant’s response to this is that he is only the registered owner of Section H and Remaining Portion of Lot 1137 “on which no house whatsoever was or is constructed or built, and the Defendant had or has no house there or thereon, whether as alleged or at all” (§5 of the Amended Defence).

(c) It would therefore appear from the pleading that the defendant denies he has any interest in the houses built on Lot 1137.

(d) Yet, during examination-in-chief, the plaintiff revealed for the first time that he has in fact retained beneficial interests in two of the houses now built on Lot 1137.  He had agreed with a developer, whose name is Mr Tang Kim Hung, in about 2010 that the latter would construct the two houses for him (and the rest for other owners).  Mr Tang proceeded with the works following the conclusion of that agreement.

(e) He admitted that as shown in the photographs produced by the plaintiff, he did from time to time work near the houses on Lot 1137.  He said that he was working on a garden which is located in the adjoining lots and is outside the front entrance of his two houses.

47.  As regards the alleged trespass over the Slope in February 2012, the defendant’s case has, similarly, undergone a significant change:

(a) In the Amended Defence, he simply denies that he has anything to do with the alleged trespass. 

(b) In the defendant’s written opening submissions, counsel stated:

“It is D’s case that he was not involved in any works done on the road or Track B so D is not in any position to say further other than what has been pleaded.” (emphasis added) (at footnote 7 to §17)

(c) Notwithstanding the above, during examination-in-chief, the defendant disclosed for the first time that just “several days” before the trial commenced, he went to speak to Mr Tang Kim Hung.  In that conversation, Mr Tang admitted that he had been the one who instructed workers to fill up the Slope and convert it into a concrete retaining wall in February 2012.  He had been told by “someone” to do so after the house on Lot 1148 Section D was built.   The defendant did not know who that “someone” was.

48.  The defendant further denies that there was a telephone conversation between him and the plaintiff’s daughter on 19 February 2012, as claimed by the plaintiff (see §29 above).

ISSUES IN DISPUTE

49.  Having set out the parties’ respective cases, I identify below the main issues which need to be determined in this action:

(a) Does the plaintiff have standing to sue for trespass?  This is a mixed question of law and fact.  First, does the plaintiff have to demonstrate that he was both a tenant and in possession of the Slope in February 2012 (the defendant’s position) or proof of possession of the Slope alone would be sufficient (the plaintiff’s position)?  Secondly, on the evidence before me, was the plaintiff a tenant of the northern and middle portions of Lot 1146 and hence the Slope?  And, thirdly, was he in possession of the Slope?

(b) It being common ground that the Slope was turned into the concrete retaining wall in February 2012, was the defendant responsible for it?

(c) If the defendant was responsible, what is the appropriate relief for the plaintiff?   Should the court order both damages and injunctive relief in favour of the plaintiff?

FINDINGS

50.  The issues in dispute between the parties in this case are mainly factual.   In making findings of facts, I have to evaluate the oral and written testimony of the witnesses as against the backdrop of undisputed and indisputable facts.  Contemporaneous documents do not play an important role in this case.  Resolution of the factual disputes would, to a large degree, rest on my assessment of the credibility of the witnesses. As already remarked above, the defendant’s factual case on some of the key issues has “evolved” quite drastically as these proceedings progressed.  This change has, in my view, cast the defendant in a very bad light, in terms of his credibility and the reliability of his evidence.  I consider that the following two matters are of particular significance.

51.  First, as to whether the defendant has had any interest in the houses in Lot 1137, his “new” evidence at trial clearly contradicts his pleaded case – see §§46(a) to (c) above. 

52.  The undisputed factual background is that the access road, particularly Track B, had been formed and widened for vehicular access during the same period when construction works were under way on the site at Lot 1137 since 2009.  Further, as soon as the house was built on Lot 1148 Section D in January 2012 which has the effect of narrowing a part of Track B, the Slope was filled to widen the track up to the edge of the newly constructed retaining wall.  In my view, the irresistible inference is that the “users” of the access road must have been those working on the site at Lot 1137 and therefore whoever was interested in the houses there had the most incentive to widen the access road to ensure that transportation of construction materials by trucks or other vehicles from the main road to Lot 1137 would not be disrupted.

53.  Therefore, who had an interest in those houses is a key issue in the present dispute.  

54.  Nevertheless, the defendant did not properly disclose his interest in the Amended Defence.  The plea (see §46(b) above) is highly misleading, if not outright wrong, in that it suggests that the defendant has only retained those parts of Lot 1137 on which no house was or would be built.  Putting the case that way, the defendant was clearly indicating that he had had no interest in the construction works that had been carried out there.

55.  Perhaps it was due to the need to explain his presence on the site, as shown in the plaintiff’s photographs, that he felt that he could no longer hide the fact that he indeed has retained interest in two of the houses on that site. 

56.  In his closing submissions, in an attempt to justify the late revelation of the defendant’s interest, Mr Lau submitted, first, that in the Amended Defence, as the defendant was focusing on the registered ownership of the Lot, he did not say anything about his beneficial interest; and, secondly, that the agreement reached between him and Mr Tang Kim Hung, the developer, “involved complex mechanism of title transfers which render it difficult for D to explain clearly his actual beneficial interests over Lot 1137”.  The explanation is far from convincing.

57.  In my view, the very late admission of the defendant of his interest in the houses in Lot 1137 reflects negatively on the defendant’s credibility.

58.  The second matter which I consider seriously undermines the defendant’s credibility is his (again) last minute revelation that Mr Tang Kim Hung was in fact responsible for the filling up of the Slope and the constructing of the retaining wall in its place.

59.  The defendant said during examination-in-chief that he only found out from Mr Tang Kim Hung “several days” before the trial that the latter was in fact responsible for the 2012 incident (cf.  the defendant’s case as stated in his written opening submissions dated eight days before the trial – see §47(b) above).  Not surprisingly, during cross-examination, the defendant was asked to explain why he only cared to make enquiry with Mr Tang at such a late stage.  Mr Chain pointed out that the defendant’s behaviour is inherently incredible since the litigation was commenced in 2012 and between that time and trial, the defendant must have been in contact with Mr Tang, the developer of Lot 1137, from time to time to discuss the development of the lot and could have found out from Mr Tang about the incident well before the trial.  The defendant was not able to give any explanation while under cross-examination except to say that since he was not the one responsible, he did not feel the need to ask, but that since he had to attend the trial, he therefore asked Mr Tang about it.  The explanation is totally unconvincing.  I share with Mr Chain’s observation on this issue. 

60.  I therefore find that the allegation that Mr Tang Kim Hung was responsible for the 2012 incident is a late concoction by the defendant.  Having disclosed that he has still retained interest in two of the houses on Lot 1137, the defendant sought to exonerate himself from being the person responsible for widening the access road by pointing his finger at Mr Tang Kim Hung, who had, up to the point of trial, never featured in these proceedings.  

61.  As far as Mr Tang Ka Hi’s evidence is concerned, I agree with Mr Chain’s submission that his evidence is mostly irrelevant, given his own admission that he has not resided in Ha Tsuen for the last few decades. Furthermore, he did not seem to have been particularly active in the management of the business of the Tso.  Accordingly, I do not consider that much weight can be given to Mr Tang Ka Hi’s evidence. 

62.  On the other hand, the plaintiff’s case has been consistent throughout.  He, his daughter and his son gave evidence at trial in a straightforward manner.  They generally appear to be credible and reliable witnesses.

63.  Accordingly, where there are conflicting versions of events between the parties, I have no hesitation in rejecting the defendant’s version and accepting the plaintiff’s.   Subject to my comments made on individual issues below, I generally accept the plaintiff’s factual case.

Issue 1 – Standing to sue

64.  On the threshold for acquiring the requisite standing to sue for trespass, I agree with Mr Chain that the plaintiff needs only to demonstrate that he was in possession of the Slope in February 2012. Mr Lau was not able to refer to any authority in support of his proposition that in addition to possession, the plaintiff needs also to prove that he was a tenant in respect of the Slope so as to establish standing.  Generally speaking, trespass is actionable at the suit of the person in possession of the land – see, eg, Clerk & Lindsell on Torts (21^st edition, 2014) at §19-10.

65.  Accordingly, the next question is whether on the evidence the plaintiff has established that he was in possession and there is no need to determine the tenancy issue.

66.  For completeness, however, I briefly state my findings on tenancy below.   I accept the evidence of the plaintiff and his daughter that the tenancy has all along been in respect of both the northern and middle portions.  After the 2004 incident in which soil was dumped on the northern portion, the plaintiff or his daughter was no longer able to grow vegetables on it and has effectively been ousted from there ever since.  It was only since then that the northern portion (or a part of it) has been turned into an access way (forming part of Track B) for regular use by villagers.  In this regard, I reject the defendant’s case that such use has been in place for “decades”. I also have serious reservation as to whether the letting of the northern portion by the Tso to the defendant and another individual from 1 June 2013, as alleged by the defendant, is a genuine one.  It is against common sense and inherent probability that the defendant would take up this tenancy (at a rate of $3,000 a year) for a piece of land which has been available for public use for the past decade.

67.  As for the middle portion, I accept the plaintiff’s evidence that the Tso has never served on him any notice to quit. Furthermore, he has never been requested or informed by any one from the Tso that all tenancies should now be in writing.  In his witness statement, he asked rhetorically why he would refuse to sign a tenancy agreement if the rent continued to be a mere $60 a year.  I think there is much force in this argument.

68.  I therefore find that there was, in February 2012, and there remains a subsisting oral tenancy agreement for the letting of both the northern and middle portions of Lot 1146, ie, including the Slope, by the Tso to the plaintiff.

69.  As to the possession of the Slope, I accept the evidence of the plaintiff’s daughter as set out in §25 above.  I also take into account the expert’s observation (at §24 of his report dated 30 September 2013) that due to the height of the Slope, no passer-by would be able to go pass Lot 1146 via the Slope with ease.  In the circumstances, the conduct of the plaintiff’s daughter was sufficient to establish possession.  I therefore find that the plaintiff, through her daughter, was in possession of the Slope in February 2012.

70.  Accordingly, I hold that the plaintiff has standing to sue for trespass in respect of the Slope.

Issue 2 – Was the defendant responsible for the 2012 incident?

71.  Based on the defendant’s own (though belated) admission, as of February 2012, he beneficially owned two of the houses on Lot 1137.  I accept Mr Chain’s submission that he therefore had a lot to benefit from the 2012 incident, in which the access road was widened.  Further, I accept the evidence of the plaintiff’s daughter as set out in §§28 to 30 above as regards how the incident unfolded and her telephone conversation with the defendant.  I find that by what he then said to the plaintiff’s daughter, he indicated that he was responsible for the filling up of the Slope as he suggested that he would then have it paved in concrete, which subsequently was done.

72.  I therefore hold that the defendant committed trespass over the Slope in February 2012 by having workers digging up and damaging the vegetable crop at the bottom of the Slope, filling up the Slope and constructing there the concrete retaining wall – all these being done without the consent of the plaintiff.

Issue 3 – Relief

73.  In his closing submissions, Mr Chain described the defendant’s act as “daylight robbery”.   All these years, submitted Mr Chain, the defendant had acted in blatant disregard of the plaintiff’s land rights and thought he could just get away with it.  Mr Chain said that the plaintiff, an elderly man in his 80’s, has brought this action to “vindicate” his rights.  He is not asking for an order that the retaining wall be pulled down and the Slope be reinstated.  Mr Chain submitted that the appropriate remedy in this case is an injunction against further trespass.  This is a “true” case of trespass and a negative injunction against further trespass would almost always be given by the court.  Mr Chain has also narrowed down the scope of the injunction to cover only “the extended portion of Track B”, rather than the entire Lot 1146, as originally sought in the pleading.

74.  On the other hand, Mr Lau submitted on behalf of the defendant that if liability is established, damages should be awarded in lieu of injunction since any such injunction would be oppressive to the defendant, as in Jaggard v Sawyer [1995] 1 WLR 269 at 282F-283B, 289A-D.

75.  Given that the plaintiff is seeking an injunction which covers only the extended portion of Track B, ie, effectively just the area over and alongside where the concrete retaining wall now stands, I fail to see how such an injunction can operate in an oppressive manner against the defendant, who can, like other villagers, still make use of the rest of the access road on the northern portion. 

76.  In cases where a prohibitory injunction is sought to redress the wrongful trespassing act of a defendant, I accept that generally speaking (or, at least, as a starting point) the court should readily exercise its discretion to issue an injunction – see, eg, Clerk & Lindsell on Torts at §29-05; Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853 at 858E.  In the present case, having considered the wrongful and irresponsible manner in which the defendant trespassed on the Slope in 2012 without any due regard to the plaintiff’s rights over the land, I consider that the circumstances clearly warrant the granting of an injunction of the scope for which the plaintiff now asks.

77.  As mentioned above, Mr Chain made it clear that the plaintiff’s utmost concern is to formally assert his rights against the defendant in these proceedings and said (in his written closing submissions) that the plaintiff “is content with whatever damages the Court is minded to award”.

78.  On damages, I am prepared to accept the evidence of the plaintiff’s daughter that the loss of vegetable crop which arose as a result of the trespass amounted to $10,000 and I hold that the defendant is to compensate the plaintiff for that loss.  However, as there is no evidence before me as to the quantum of any ongoing loss the plaintiff has suffered or will suffer as a result of the trespass over the Slope, I do not consider it appropriate for me to make any further award of damages.

ORDER

79.  For the above reasons, I make the following orders:

(a) The defendant pay to the plaintiff damages in the sum of $10,000; and

(b) The defendant be restrained whether by himself, his servants or agents or otherwise howsoever from entering or crossing that area of land located in Lot 1146 and identified as “the extended portion of Track B” in the supplementary report made by Mr Chan Tat Wing and dated 4 July 2014 (for identification purposes see, in particular, §13 and Appendices 2 to 11).

80.  I also make an order nisi that the defendant pay the plaintiff’s costs of the action, to be taxed if not agreed, with certificate for counsel.