IP SHANG v. LI KUEN PO AND OTHERS

1991, No. MP 2520

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The plaintiff is and has been the owner of Lots 392A and 393A in D.D.94 at Peas River in the New Territories. The 1st defendants are personal representatives of the estate of the late Li Sz Fung, deceased. It is alleged that part of the said deceased's property has been and is still encroaching upon the northern portion of Lots 392A and 393A. It is further alleged that the 2nd defendants have trespassed and are trespassing the eastern portion of Lot 392A. The Court was given to understand that the time elements at least as alleged and the extent of actual users of the said estate and the divers 2nd defendants were agreed subject to the contention of these defendants that the plaintiff's said two lots lay outside their respective user and occupation. Hence there has been and is no encroachment as alleged or at all. In another word, except for the alleged trespasses, the fine details of users as from, at least, the dates alleged were not in dispute.

2. The plaintiff's case is that there have been and still are encroachments as depicted in his survey plan in Doc.98 in the bundle. But both the 1st defendants and the 2nd defendants maintained that never had there ever been any encroachment and that their survey plan, Doc.117 in the bundle correctly showed what the situation was. The only question to be determined was liability. Assessment of damages, if need be, had been agreed to be deferred. Shortly put: if this Court accepts the survey plan in Doc.98, then encroachments as alleged are proved. On the other hand, if the Court accepts the survey plan in Doc.117, the plaintiff fails.

3. The plaintiff's survey plan, Doc.98 was prepared by Mr King and the defendants' survey plan, Doc.117 by Mr Mak. Both these gentlemen are qualified surveyors, having had practical experience in Hong Kong. I accept them both as experts. Thus, the question of liability is to be resolved by the Court's preference of the expert evidence as adduced. The dimensions as given in Doc.98 or Exh.P2 were not openly disputed and, in any case, I find proved. The remaining drawn portions on the eastern side of Lot 392A in the plaintiff's survey plan were further calculated as 15.4 sq.m. and 2.6 sq.m. respectively, which I also accept as established.

4. The first-named 1st defendant testified that his ancestral home and other structures lay outside, as confirmed by the defendants' surveyor Mr Mak, the northern boundary of the plaintiff's Lots 392A and 393A. The existing wall adjoining the southern end of the garden of his ancestral home was erected when he was about 7 or 8. Being born in 1950, the wall, according to his evidence, must have been built in or about 1958. The concrete kitchen of his ancestral home replaced an earlier wooden kitchen at the same site about 30 odd years ago. The ancestral home of his had been erected much earlier. The 1963 aerial photograph, Exh.P3, was said to show no sign of such an existing wall. I find that this existing wall of the 1st defendants is probably of a more recent origin, built after 1963, although it really matters not whether in truth it was erected in 1958 or 1963. But I accept that the kitchen of the 1st defendants' ancestral home in wooden or concrete form must have been on the site for at least 30 odd years in the 1960's or late 1950's. I make at least the same finding as to time in respect to the 1st defendant's ancestral home.

5. The kitchen of the first-named 2nd defendant on the eastern side of Lot 392A was, I accept, built in 1975.

6. The plaintiff's Lots 392A and 393A were acquired by his family in 1926. The tenor of Mr King's evidence was, as I take it, that structures not existing in or near 1926 would not be features for proper correlation. Structures, the age of which could not be taken beyond the 1950's, were thus disregarded. The exercise of Mr King, the plaintiff's surveyor, was to enlarge or blow up the D.D. Sheet in relation to the plaintiff's lots and their immediate neighbouring areas to match the Government scale plan of 1:1,000. In addition, he used also the plan annexed to the Memorials for the purchases of these two lots in 1926 for what were described as the "registered areas" in terms of 0.04 acre for Lot 392A and 0.02 acre for Lot 393A. Mr King also resorted to features existing or reasonably believed to be existing in or about 1926, which he called hard details on the ground, e.g. fences, field or lot boundaries, pathway and others. He superimposed the blown up D.D. Sheet onto the Government 1:1,000 scale plan and a photostat copy of this combination is Doc.46 or Exh.P4. He detected close correlations in a number of points. There were at least 10 good points of correlation and he marked on Exh.P.4 some ten (in fact possibly eleven) lines by way of illustrations. One of the good examples of close correlation was said to be the two fence lines of Lot 457. He placed emphasis on the pathway along the northern portion of the row of houses on Lot 388 in all the plans available to him. He took into consideration the registered areas as well. He postulated other possibilities, and he concluded that as a whole Doc.60 tended to be the best fit. His conclusion was supported by the findings in his exercise. There were no other material features standing, in his words, "a long way out". The registered areas presented, then or at the later time, no significant contradictions. Inaccuracies of the D.D. Sheet were duly taken into account. There appeared to him nothing significantly disagreeable with the conclusion he had reached. He presented his then survey plan Doc.60 to the plaintiff.

7. Later in time, after Mr King had come to be aware of the measured dimensions of these two lots as 42' x 50' and after he had been given the additional information of the old foundation of the plaintiff's house exposed by excavation in 1990, he reconsidered his survey and produced his final version as in Doc.98. His final version reduced the area of the plaintiff's two lots by 47 sq.m. and the site was shifted half a meter to the west. The reduction in area was the difference between 195 sq.m. derived from 42' x 50' as shown in Doc.38, a plan attached to the 1926 Memorials and 242 sq.m. derived from 0.04 acre plus 0.02 acre (242 sq.m. - 195 sq.m. = 47 sq.m.). The slight shifting to the left was basically caused by the new information of the old foundation exposed by the 1990 excavation in conjunction with the re-affirmed points of correlation, culminating in the best fit, after adjustment, as a whole with no material inconsistencies. The reduction resulted in less encroachments for all, including that for the tilted cartilage and structures of the 1st defendants in the North.

8. Mr King's survey was methodically taken and logically explained, much in line also with common sense, to this Court.

9. It was agreed by the plaintiff and the defendants through their counsel:

"In an internal discussion paper dated 25th February 1985, Mr S.C. Leung (Chief Land Surveyor/ N.T.) suggested that in general the re-establishment of the D.D. Lot boundary should depend on the original occupation (if evidence survives), the D.D. Sheet definition and registered area, in that order."

10. If original occupation were to be understood as features existing in or around 1926, the D.D. Sheet definitions as areas that could be extracted fro m the D.D. Sheet drawing and registered areas as the dimensions shown in the sketch or plan attached to the memorial, then Mr King had taken into consideration all these proposed factors. In the survey of Mr King, he had encountered no material inconsistent features. Even if the suggestion of Mr S.C. Leung had any authoritative force, the order of priority as proposed by Mr S.C. Leung could play no significant role and would have no adverse effect on the final version survey plan as prepared by Mr King.

11. Mr Mak did claim that Mr S.C. Leung's view had been universally acknowledged in Hong Kong for general application, but his claim must be somewhat diluted by the agreed fact, after much debate, as to the implicit nature of Mr S.C. Leung's "suggestion" in "an internal discussion paper".

12. I need hardly refer to the findings made in the decision of Wu Muk-fung v. Vocation Estates Ltd., H.C. Action No. 902 of 1986 (the judgment of which was delivered on 12th March 1987), particularly when Mr Mak who gave expert evidence in that case, also visually conceded before me that he would be able to produce survey plans with site location and dimensions, that might be safely relied upon for land sales in the New Territories.

13. Next I turn to the evidence of Mr Mak, surveyor for the defendant. I was less than impressed by the manner in which and the rationale with which he sought to explain his modus operandi and deductions. His basic exercise was similar, but the features he selected were different. He ignored the path, so distinct in all the plans. His survey plan produced the two lots of the plaintiff in a ratio visibly incongruous with the given measurements. The known dimensions are 0.04 acre for Lot 392A and 0.02 acre for Lot 393A. In another word, the size of Lot 392A should be twice as large as that for 393A. Mr Mak indicated no dimensions in his survey plan. Mr Mak almost conceded that his approach was primarily motivated by a desire to avoid any encroachment. Probably on account of his blinkered mission, he began by placing the defendants' structures outside the plaintiff's lots. He also seemed to derive much comfort from the belief that encroachments up to plus or minus 3 meters, sometimes more, were not susceptible of proof. However, despite the D.D. Sheet inaccuracies, he was confident in his own ability to produce a reliable survey plan. He failed to provide a satisfactory definition for the suggestion made by Mr S.C. Leung as to "original occupation". The suggestion of Mr S.C. Leung was adhered to as a doctrinal guideline. In cross-examination, he would be prepared to assume any structures erected, even just the day before, as original. Mr Mak seemed to equate "existing" with "original". That cannot be convincing. He never enquired about what the vintage of the space described by Mr King as footpath was. However, he maintained that the space identified by Mr King as footpath in all the accessible plans for the survey was no more than a product of inexactitude of the Indian surveyors. Mr Mak was unaware of the foundation of the plaintiff's old house excavated in 1990. He made no effort to apply the dimensions of 42'x50'. In addition to his less than satisfactory performance as a witness, he obviously had no justification for overlooking these aspects. I find it quite unnecessary to descend into the other areas of his flawed survey-making process as highlighted by Mr Swaine.

14. An expert's opinion is to be founded on his training and experience. He must furnish the Court with the necessary criteria for testing the reliability and accuracy of his conclusions so as to enable the Court to form its own independent judgment. For all the critical observations I have made of Mr Mak's efforts, his conclusions must necessarily yield to those of Mr King.

15. There is no doubt in my mind that as between the evidence of these two experts, giving their conclusions on matters of mixed fact and opinion, I have no hesitation in preferring and accepting that of Mr King, to that of Mr Mak. I therefore rely on the final version of Mr King, prepared on behalf of the plaintiff as in Doc. 98. Liability has therefore been established as alleged by the plaintiff against all the defendants. I make an order nisi as to costs in favour of the plaintiff against the defendants.