SKYLARK LTD AND ANOTHER v. KUNG SUI WING AND ANOTHER

HCA 2607/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2607 OF 2006

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D E C I S I O N

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Introduction

1.  This is the application by the Plaintiffs for summary judgment against the 1^st Defendant and for striking out his counterclaim on the ground of its being an abuse of process, frivolous or vexatious and/or disclosing no cause of action, pursuant to Order 14 rule 1 and rule 3; and

Order 18 rule 19 of the Rules of the High Court respectively.  However, due to the 1^st Defendant’s change of his pleaded case, the application proceeded principally as an application for summary judgment.

The background

2.  This litigation arose out of a dispute about the Plaintiffs’ right of way over a piece of land known as Lot No 695 in Demarcation District 247 (hereinafter referred to as “Lot 695”) in Sai Kung which the 1^st Defendant claims to have authority to manage from its owner.  The parties are landowners and/or residents of different lots of land in Demarcation District 247 which includes Ngau Pui Wo and Tai Lam Wu.

3.  The Plaintiffs are new comers to Ngau Pui Wo.  The 1^st Plaintiff is a company incorporated under the Companies Ordinance, Cap 32.  It acquired Lot No 841 with a house (hereinafter referred to as “Lot 841”) from Professor Wong on 30 March 2006.  The 2^nd Plaintiff is the registered owner of Lot No 590 with a house (hereinafter referred to as “Lot 590”) since 31 December 2005.  There are only three families living in a hamlet in Ngau Pui Wo, namely the 2^nd Plaintiff, the 1^st Defendant and another old man Chan Cho who was the predecessor-in-title of Lot 590.  The 1^st Defendant is the village representative of Tai Lam Wu and Ngau Pui Wo.  He is an indigenous villager and has been residing in Ngau Pui Wo for well over thirty years. 

4.  Prior to 1993, Lai Yuk Kee (hereinafter referred to as “Lai”) and three others were the registered owners of seven lots of land in Demarcation District 247 including Lot 695.  On 7 January 1993, they assigned the seven lots of land to the 2^nd Defendant, who is Lai’s step-daughter for a consideration of $1,224,907.20.  The 2^nd Defendant divided Lot 695 into ten sections and assigned them to ten different purchasers for a consideration of $76,230 each on 30 November 1993.  Then between August and October 1997, eight of the ten sections of Lot 695 were assigned to Lai for the same consideration.  Sections C and F of Lot 695 (hereinafter referred to as “Lot 695C” and “Lot 695F” respectively) remain under the ownership of the purchasers.  Lai is the registered owner of the other eight sections including the remaining portion of Lot 695 (hereinafter referred to as “Lot 695 RP”).  All the conveyancing transactions from sale of the seven lots of land to the 2^nd Defendant to the ultimate assignments of eight sections of Lot 695 by the indigenous villagers to Lai were handled by Lai Wing Kwan of Messrs K B Chau & Co (hereinafter referred to as “KBC”).

5.  The only vehicular access to Ngau Pui Wo is via a side-road (hereinafter referred to as the “Suit Road”) from Wilson Trail in the neighbouring Tai Lam Wu Village.  The Suit Road runs over part of Lot 695C, Lot 695F and Lot 695RP, but the substantial part of the Suit Road is built on Government land.  After passing through Lot 695, the Suit Road forks out into two limbs.  The left limb (hereinafter referred to as the “Left Limb Road”) continues to the hamlet where the 1^st Defendant’s, Chan Cho’s and the 2^nd Plaintiff’s houses are situated.  The right limb (hereinafter referred to as the “Right Limb Road”) serves to provide access to Lot 841.  It is beyond dispute that the Suit Road existed in 1974 and was marked as a track on the official survey map and that by 1978, it was marked as a road of about ten feet wide on the official survey map.  The aerial photographs taken on 2 November 1993 and 19 May 1994 conclusively proved the existence of the Right Limb Road and its width well before the present dispute began.

6.  In October 2005, the 2^ndPlaintiff’s husband (hereinafter referred to as “Lam”) began renovating the house on Lot 590.  The 1^st Defendant tried to block up the Left Limb Road with boulders.  As the road was built on Government land, Lam successfully restrained the 1^st Defendant through police intervention.

7.  In April 2006, the 1^st Plaintiff started to renovate its house on Lot 841.  On 24 September 2006, the 1^st Defendant used boulders and chain to lock up part of the Suit Road within Lot 695 to prevent vehicular access, leaving a small passage as a pedestrian walkway.  Lam sought the assistance of the police, but the police declined to assist as the blockade was erected on private land.  The 1^st Defendant refused to disclose whether he had any legal interest over the land where he set up the blockade.  He only allowed those who bowed to him to pass through.  On 29 September 2006, the 1^st Plaintiff’s contractor could not drive his vehicle out of the blockade and had to wait for two hours for the 1^st Defendant to arrive and to beg the 1^st Defendant to unlock the chain for him to drive through. 

8.  In October 2006, Lam attempted to negotiate with the 1^st Defendant and offered him a box of moon-cake as a friendly gesture.  The 1^st Defendant refused.  On 31 October 2006, the 1^st Defendant replaced the chain by a thicker one with a notice warning against trespassing posted on the blockade.  On 22 November 2006, the Plaintiffs issued the present writ of summons and then the inter-parte summons seeking an injunction to compel the 1^st Defendant to remove the blockade.  Upon receipt of the inter-parte summons, the 1^st Defendant told Lam that he would also lock up the pedestrian walkway, which he did later that evening.  The 2^nd Plaintiff had to climb over the chain and to walk home that night.

9.  On 29 November 2006, the 1^st Plaintiff’s contractor’s workers went through the unlocked blockade to work in Lot 841, but were unable to leave after work when the 1^st Defendant locked up the blockade later that day.  Again, they had to wait for the 1^st Defendant to arrive and to beg him to unlock the chain. 

10.  On 13 December 2006, the 1^st Defendant took out a summons seeking an injunction to prohibit the Plaintiffs from passing through Lot 695.  He was legally represented by KBC.  In his affirmation in support of the application, he exhibited for the first time an authorisation letter dated 8 December 1993 purportedly signed by the 2^nd Defendant as registered owner of Lot 695 authorising him to manage Lot 695 (hereinafter referred to as the “1993 Authorisation”).  On 15 December 2006, Mr Recorder Jat SC refused the 1^st Defendant’s application and granted the Plaintiffs’ application for interim injunction.  He ordered the 1^st Defendant to forthwith remove the whole of the blockade.

11.  Following the order of Mr Recorder Jat SC, the 1^st Defendant removed the chain of the blockade only.  It was not until about seven to ten days later, that he caused the boulder to be removed to one side of the Suit Road, creating yet another obstruction at the same location preventing large vehicles from passing through.  The boulder was only removed after about two months. 

12.  Between March 2007 and May 2008, the Plaintiffs sought leave to join the 2^nd Defendant as a party and for substituted service of the writ of summons on the 2^nd Defendant by service on the 1^st Defendant and KBC.  Despite that KBC had written to PCCW in early 2007 claiming that they represent the owner of Lot 695 and that the 1^st Defendant claimed to be acting on behalf of the 2^nd Defendant, they both claimed to have no knowledge of the 2^nd Defendant’s address and resisted the application for joinder and substituted service on them.  It took fourteen months for the Court to ultimately order the joinder and substituted service.

13.  Suspecting the 1993 Authorisation was a forgery, the Plaintiffs sought opinion from a handwriting expert as to the authenticity of the purported signature of the 2^nd Defendant on the 1993 Authorisation.  During the course of that investigation, the 1^st Defendant refused to discover the original deeds for the expert’s examination alleging that he did not have control of the deeds.  On 27 November 2008, the expert confirmed through the use of the 2^nd Defendant’s signatures on documents registered in the Land Registry that the signature on the 1993 Authorisation was a forgery.  This evidence is not disputed by the 2^nd Defendant who even admitted that she had not signed the 1993 Authorisation but would have so signed if she was asked to.  The Plaintiffs also discovered that the 2^nd Defendant was not the registered owner of Lot 695C, Lot 695F and Lot 695RP over which the Suit Road runs.

14.  On 18 December 2008, the Plaintiffs took out the present summons to strike out the 1^st Defendant’s counterclaim and to seek summary judgment for an injunction against the 1^st Defendant prohibiting him from setting up the blockade and for damages to be assessed.  They discontinued the action against the 2^nd Defendant as she was not the registered owner of the land on which the Suit Road runs.  Then on 11 March 2009, the 1^st Defendant filed his 5^th affirmation contending a new case that he was authorised to manage the Suit Road by Lai.

The parties’ case

15.  The Plaintiffs’ case is that through their predecessors-in-title, they had acquired a right of way over Lot 695C, Lot 695F and Lot 695RP over which the Suit Road runs.  The 1^st Defendant had no authority from the owners of those lots of land to interfere with his right of way by setting up the blockade.  As a result of the 1^st Defendant’s wrongful act, the 1^st Plaintiff suffered substantial loss through delays in renovating its house and the 2^nd Plaintiff suffered serious inconvenience.

16.  Until 11 March 2009, the 1^st Defendant’s pleaded case was that the 2^nd Defendant was the registered owner of Lot 695 and he had the written 1993 Authorisation from her to manage the land.  When it was discovered that since the end of 1997 the 2^nd Defendant was no longer the registered owner of Lot 695 or any of the sub-divided sections in the lot, the basis of his defence is completely destroyed.  His new case is that his authority to manage Lot 695RP is derived from Lai who is the registered owner of the said lot.

The issues

17.  Mrs Chan, counsel for the Plaintiffs, submits that as a result of the change of the 1^st Defendant’s case, the issue is no longer whether the Plaintiffs have acquired any easement or right of way over Lot 695 but whether the 1^st Defendant has authority from Lai to defend the action pursuant to the 1993 Authorisation authorising him to manage Lot 695 which the 2^nd Defendant now seeks to ratify.  Mr Chang, counsel for the 1^st Defendant, concedes that the 1^st Defendant’s authority is in issue and that if he fails to prove authority, the Plaintiffs are entitled to the injunction.  However, he argues that the Plaintiffs have to prove that they have acquired some legal interest in Lot 695, namely the right of way, which has been interfered with by the 1^st Defendant, before they are entitled to damages.  He further argues that whether the Plaintiffs have acquired the right of way cannot be resolved on the basis of conflicting affirmations but by trial.

18.  Mrs Chan submits that everybody enjoys the same right passing over Government land and no one can block him unless that other one has a better right.  She submits that the mere use of the land is sufficient and there is no need to prove easement.  With respect, I think that submission is convoluted.  The land in question is not Government land.  Without proper authorisation from Lai, the 1^st Defendant is as much a trespasser as the Plaintiffs when using or blocking the use of Lot 695.  In order to maintain an action against a wrongdoer, the Plaintiffs have to show that some legitimate interest of theirs have been interfered with by the wrongdoer. 

19.  Mrs Chan argues that as the Plaintiffs have been using the Suit Road, the 1^st Defendant is liable in damages for interfering with the Plaintiffs’ use.  She submits that land title is relative.  In support of her argument on relativity of title, she quoted Megarry and Wade, The Law of Real Property 7^th edn, paragraph 4-008:

“(a)    Relativity of titles.

“At common law … there is no such concept as an ‘absolute’ title.  Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants.  If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land.”

Some examples will illustrate this fundamental doctrine and the right and wrong occasions for the plea of jus tertii.  If last year S dispossessed O of land which had hitherto belonged to O, and O is taking no action, there are now two incompatible titles to the land.  As between O and S, O is the owner, because he can recover the land by bringing an action.  However, as between S and the rest of the world (except O and persons claiming through him) S is owner, for he is in possession and that is equivalent to ownership as against all persons who have no better right.  Thus S can sue strangers for trespass or nuisance, just as O could before.  Furthermore, S can convey the land, or make any other disposition which an owner can make.  If S dies, the land will pass under his will or intestacy.  But all such rights derived through S are subject to O’s (or his successor in title’s) paramount right to recover the land.  S’s possession at once gives him all the rights and powers of ownership, at least for the purpose of the civil law.  S has, in fact, a legal estate, a fee simple absolute in possession.  But so also has O, until such time as his title is extinguished by limitation.”

20.  With respect, I think Mrs Chan’s reliance on the above passage is misplaced.  The learned author was referring to a competition between two titles.  As between the owner and the squatter, the owner has a better title, whereas as between the squatter and a trespasser, the squatter has a better title which is good against the whole world except the owner insofar as the owner’s right has not been statute barred.  The learned author was referring to titles, legal estate and possessory title.  A squatter may not evict a trespasser unless he can establish his possessory title which is an interest in land.  In the instant case, the Plaintiffs are not relying on their adverse possession of Lot 695C, Lot 695F or Lot 695RP, but on their right of way over those lots.  This is not a title dispute.  I agree with Mr Chang that proof of authority by the 1^st Defendant is necessary to resist the Plaintiffs’ application for injunction but proof of right of way by the Plaintiffs is necessary to maintain a claim for damages against the 1^st Defendant.  Insofar as Mrs Chan’s argument that proof of use by the Plaintiffs is a sufficient interest to support a claim for damages, that argument is clearly premised on a right of way.  Accordingly, the Plaintiffs must prove they have acquired a right of way.

21.  The 1^st Defendant does not dispute that he interfered with the Plaintiffs’ use of that part of the Suit Road which runs over Lot 695.  Hence, the issues are: (1) whether the 1^st Defendant’s allegation that he has authority from Lai to manage Lot 695C, Lot 695F or Lot 695RP is capable of belief; and (2) whether the Plaintiffs’ claim of a right of way is beyond dispute.

Whether the 1^st Defendant has authority to act on behalf of Lai

22.  The 1^st Defendant’s case that he was properly authorised by the owner of Lot 695RP is full of difficulties.  He is tied down by his earlier affirmations and the 1993 Authorisation which he produced.  He now pleads a new case by relying on the authority of Lai as evidenced not by any affirmation or written authority coming from Lai but by the 1993 Authorisation which the 2^nd Defendant is willing to ratify, but the 2^nd Defendant has no interest in any of the sections in Lot 695.  The 2^nd Defendant said that she is Lai’s step-daughter.  Lai wanted to develop Lot 695 and the other six lots of land owned by him and his business associates as village houses for indigenous villagers under the New Territories small house scheme, commonly known as ding houses.  Lai did not want his associates to know that he wanted to develop the land alone and asked the 2^nd Defendant to be his nominee to buy the seven lots of land from him and his business associates.  The 2^nd Defendant agreed and bought the land with the purchase price fully financed by Lai.  Then pursuant to Lai’s instruction, she divided Lot 695 into ten sections for the purpose of building ding houses and assigned them to ten indigenous villagers under sham transactions in which no payment was made by any of the indigenous villagers who agreed to transfer the respective sections to Lai free if the development plan did not materialise.  Lai prepared the 1993 Authorisation just in case anything happened to the ten sections and the 1^st Defendant would need proof that he had authority to take care of the land.  The development plan did not materialise and eight of the indigenous villagers transferred their respective sections of Lot 695 to Lai free towards the end of 1997.  For some reason, the indigenous villagers holding Lot 695C and Lot 695F did not.  Hence, Lai is the beneficial owner of Lot 695 and has sufficient legal interest in land to authorise the 1^st Defendant to act on his behalf.

23.  Mr Chang ably submits that the transactions in respect of the sale of the seven lots of land to the 2^nd Defendant, her sub-division of Lot 695 into ten sections and assignment to ten indigenous villagers and the further assignment by eight of the ten indigenous villagers to Lai supports the existence of a scheme to develop ding houses.  Then in respect of Lot 695C and Lot 695F which have not been assigned to Lai, Mr Chang argues that the legal owners held them on a resulting trust for Lai as the beneficial owner who provided the purchase price for the 2^nd Defendant to purchase Lot 695.  I accept that for the purpose of resisting an Order 14 application against Lai, he may have passed the test of showing a triable issue.  Actually, Lai needs not rely on the beneficial interest in Lot 695C and Lot 695F or the ding house scheme to show a triable issue.  He can simply rely on his legal interest in Lot 695RP alone.  But the burden of the 1^st Defendant, as distinct from Lai’s, does not end there.  The 1^st Defendant has to show, in addition, that Lai has duly authorised him to act on Lai’s behalf in respect of Lot 695RP.

24.  The 1^st Defendant’s allegations in respect of his authority are simply incredible and incapable of belief.  There is a question mark to each of his allegations.  And none of the questions has been answered.  In his first affirmation, he impliedly suggested that the 2^nd Defendant had given him the 1993 Authorisation and that authorisation was signed by the 2^nd Defendant.  The 2^nd Defendant denied having seen or having signed the 1993 Authorisation, though she said that she would have signed it if she was asked to.  Putting that at the highest, she was saying that she would ratify the 1993 Authorisation.  But that authorisation even if ratified is now worthless as the 2^nd Defendant has neither beneficial nor legal interest to any of the sections in Lot 695.

25.  Now the 1^st Defendant says that the 1993 Authorisation was given to him by Lai, the beneficial owner of Lot 695 while it was still being held by the 2^nd Defendant, in case it would become necessary for the 1^st Defendant to take action in protecting the land on behalf of the 2^nd Defendant.  He also said that he did not know who signed the authorisation.  But he is now relying on that authorisation signed by someone unknown as evidence of an oral authorisation given to him by the now owner of Lot 695RP.  Pausing here, if one tests the validity of that allegation against the indisputable factual matrix, one finds such assertion incapable of belief.

26.  First and foremost, for three years since this action commenced, the 1^st Defendant has been saying that Lai gave him the authorisation purportedly signed by the 2^nd Defendant, in case the 1^st Defendant might have to use it to protect the 2^nd Defendant’s interest in Lot 695.  He never said that Lai authorised him to protect the interest of Lai’s land.  He has all along been legally represented, not by other solicitors, but by the same Lai Wing Kwan of KBC, who handled all the conveyancing transactions in relation to Lot 695 since 1993 through to 1997.  Not until the Plaintiffs proved three years later that what purported to be the 2^nd Defendant’s signature on the 1993 Authorisation was a forgery and that the 2^nd Defendant has no legal interest over any of the sections in Lot 695, did the 1^st Defendant claim he had authority from Lai to protect Lai’s interest in Lot 695.  Against that background, how credible could his new allegation be?  His new case bears all hallmarks of moonshine.

27.  When the 1993 Authorisation is examined critically, some interesting facts are revealed.  The 1993 Authorisation was dated 8 December 1993, eight days after Lot 695 was sub-divided into ten sections and assigned to the ten indigenous villagers.  By that day, both Lai and the 2^nd Defendant have divested their legal interest in Lot 695.  On the basis of the 1^st Defendant’s allegation, Lai would have known the authorisation was worthless as the 2^nd Defendant was no longer the owner of any of the sections in Lot 695 on the date of the 1993 Authorisation.  On 8 December 1993, if Lai was really minded to give the 1^st Defendant an authorisation in case it would be needed, he would have given him one which he signed and with which he could properly assert his beneficial interest in all the ten sections in Lot 695.  By no probability would Lai have given him the 1993 Authorisation.  Besides, why would Lai have authorised the 1^st Defendant to look after his land?  There is nothing to suggest that Lai would not be in Hong Kong or would otherwise be prevented from looking after Lot 695.  But, no reason had been advanced by the 1^st Defendant.  His case is simply incapable of belief.

28.  More fatal to the 1^st Defendant’s allegations is his failure to call Lai, who is the owner of Lot 695RP, to come forward to say that he authorised the 1^st Defendant to manage the land on his behalf.  Lai is resident in Hong Kong.  In fact, much of the information contained in the 1^st and 2^nd Defendants’ affirmations were derived from Lai.  On the 1^st Defendant’s account, it was Lai who gave him the 1993 Authorisation, who sought his help in protecting Lai’s interest in Lot 695.  Quite apart from the improbability of Lai giving the 1^st Defendant the worthless 1993 Authorisation, there is no reason why Lai would not himself take steps to protect his interest in Lot 695 in his own name.  The 1^st and 2^nd Defendants must have consulted Lai and informed him of the present litigation.  Lai must have known that the Plaintiffs are claiming an interest which is adverse to his interest in Lot 695.  He could have and should have been the one to apply for the injunction restraining the Plaintiffs from trespassing Lot 695, instead of the 1^st Defendant.  At least he could have filed an affirmation in support of the 1^st Defendant’s case by confirming his authority given to the 1^st Defendant; averring to the material facts and producing requisite exhibits.  But Lai did not.  Given the background from which this new defence is raised, Lai and the 1^st Defendant have to condescend to particulars than making a bare assertion that the 1^st Defendant now has the authorisation from Lai.  He has to provide credible explanation why he proceeded on the basis of the 1993 Authorisation and how he came to be authorised by Lai.  The explanation he gave for the former is wholly incredible.  The particulars as to the latter are wholly absent.  The question why Lai has not filed any affirmation in support of the 1^st Defendant remains unanswered.  The reasonable inferences to be drawn in the total lack of explanation are that Lai knew the Plaintiffs have acquired a right of way over his land; that he would not mind people exercising a right of way over his land or that he never authorised the 1^st Defendant to do anything in respect of his land.  Any of these inferences is fatal to the 1^st Defendant’s case of due authority.

29.  Mrs Chan referred to the total lack of documentary evidence to corroborate the 2^nd Defendant’s allegation that she was a nominee owner as she provided no consideration for the purchase of Lot 695 and received no consideration for the assignment of the ten sections from the indigenous villagers.  The 2^nd Defendant could have, at least, provided evidence of the source of funds from Lai, but she did not.  Mrs Chan also draws my attention to the fact that all the transactions, including the purchase of the seven lots of land by the 2^nd Defendant, her sub-division of Lot 695 and assignment to the ten indigenous villagers and the assignment of eight of the ten sections to Lai were handled by Lai Wing Kwan of KBC.  Lai Wing Kwan was involved in witnessing the execution of the assignments and explaining the assignments to the parties.  Apparently he is also the same solicitor responsible for the conduct of this litigation for the Defendants as his initial appears on all the correspondence relating to this litigation.  He could have produced documents from the record of KBC to support the 2^nd Defendant’s nominal ownership of Lot 695, if such documents exist.  Having said that, I note also that according to the assignments, the payments were all acknowledged on the assignments.  Those payments were in the sums of $1,224,907.20 and $76,230.  Those amounts were not round sums which would be indicative of the nominal nature of the payments.  Surely, Lai Wing Kwan would have difficulties explaining why such acknowledgements on assignments prepared and witnessed by him were untrue and that the transactions were all sham transactions.  Similarly, the 2^nd Defendant would have a great hurdle to overcome to convince the Court why her evidence is contradicted by those legal documents, which were intended to be true and correct.  Mr Chang argues that there is a ring of truth in the 1^st Defendant’s assertion about the scheme to build ding houses.  While all these controversies can be conveniently swept under the carpet for the purposes of the present application as being questions of credibility which should be left to be resolved at trial, both Mrs Chan and Mr Chang just miss the focal point, which is whether the 1^st Defendant’s new case of due authority from Lai is credible.  The ding house scheme is wholly besides the point as it is accepted that Lai has at least sufficient legal interest in Lot 695RP to contest the Plaintiffs’ claim of right of way.

30.  Looking at the totality of the evidence on this issue, the 1^st Defendant’s case is not capable of belief.  He sought an injunction by relying on the 1993 Authorisation which he believed was signed by the 2^nd Defendant as the owner of Lot 695.  When the Plaintiffs’ handwriting experts proved that the 1993 Authorisation was not signed by the 2^nd Defendant and that in any event the 2^nd Defendant was not the owner of any of the sections in Lot 695, he changed his case by asserting an oral authorisation from Lai.  He did not file any affirmation by Lai to confirm the authorisation and offered no explanation for his failure to do so.  Those circumstances are already sufficient for me to hold that the 1^st Defendant’s defence is not credible and not capable of belief.  For further reasons which I shall give when analysing the second issue, I find this is obviously a case of the 1^st Defendant wanting to exert his supremacy as the village head over new comers in Ngau Pui Wo.  The only vehicular access to the Plaintiffs’ houses is the long established rural road which runs over Lot 695.  He was bullying the Plaintiffs by setting up a blockade making them and their workers bow to him and call him “Mr Kung, the village head”.  He is on a lone battle fighting for his own cause which is not duly authorised by the owner of Lot 695.  He has no authority to act for the owner of Lot 695C, Lot 695F and Lot 695RP.  He has no defence to the injunction sought against him.

Whether the Plaintiffs have acquired a right of way over Lot 695

31.  The Plaintiffs’ case of right of way is based on presumed grant.  The evidence in support is overwhelming and indisputable.  As shown in the official survey maps, the Suit Road existed as early as 1974 as a track and by 1978 was identified as a road of about ten feet wide.  This is supported by the aerial photographs taken in 1993 and 1994.  The aerial photographs show the three houses on Lot 841 and its access road, i.e. the Right Limb Road.  Such evidence is incontrovertible. 

32.  Next, the Plaintiffs produced an affirmation made by Yeung Koon Sung (hereinafter referred to as “Yeung”).  Yeung is now 62 years old.  Since 1984, he undertook construction work in Tai Lam Wu and Ngau Pui Wo areas building ding houses and rural roads.  He was the contractor who built the houses on Lot 589 and Lot 590 in Ngau Pui Wo, which are respectively the Chan Cho’s and 2^nd Plaintiff’s houses.  In 1992, he was engaged by the then owner of Lot 841, Ng King Chee (hereinafter referred to as “Ng”) to build a vehicular access by extending the Suit Road which was already in existence eastwards to Lot 841, i.e. the Right Limb Road.  Ng paid him $100,000.  Yeung cleared the bushes and built the Right Limb Road leading to Ng’s house in Lot 841.  He also improved the Suit Road by removing bumps, levelling the road and straightening the winding parts so that large construction trucks could conveniently pass through.  He then surfaced the Suit Road and the Right Limb Road with cement and concrete.  In 1993, Yeung built the three houses now standing on Lot 841.  During those two years when the houses and road were built, no one questioned him about his right to improve the Suit Road or to pass through Lot 695.  But being a new comer, Ng had to pay the villagers of Tai Lam Wu and Ngau Pui Wo $30,000 for village community facilities or benefits.  Ng occupied the houses on Lot 841.  Lot 841 was sold to successive owners and then to Professor Wong who sold it to the 1^st Plaintiff.  The houses on Lot 841 were always occupied.  Ng and the other subsequent owners of Lot 841 had no objection or complaints from anyone for using the Suit Road.  Yeung’s evidence is supported by the aerial photographs taken in 1993 and 1994.  The aerial photographs were taken about a year after Yeung had constructed the Right Limb Road and then the houses on Lot 841.  They show Lot 841 and its access road, which must be the Right Limb Road.  They do not show the part of the Suit Road in dispute.  But, if the aerial photographs support Yeung’s evidence about his construction of the Right Limb Road, Yeung’s evidence that the Suit Road was in existence before he started the construction work and that he improved the Suit Road must also be credible.  Yeung’s affirmation was filed on 21 February 2007.  The 1^st Defendant filed his third affirmation on 7 March 2007 in response but he did not dispute the above evidence.  In the circumstances, I consider Yeung’s evidence beyond dispute.

33.  The 1^st Defendant denied that the Suit Road existed as early as 1974.  In his third affirmation, he deposed to the fact that the Suit Road was only built by the Government in 2005.  He produced a letter from the Sai Kung District Office.  The letter said that part of the Suit Road starting from Wilson Trail in Tai Lam Wu Village up to some point before reaching Lot 695 was constructed by the Government in 2005.  However, the letter went on to say that the remaining part of the Suit Road beyond that point highlighted in yellow in the plan attached to the letter was probably constructed illegally.  The letter was dated 9 February 2007.  The fact that the Government constructed a proper road at the location in 2005 does not negate the existence of that road as a ten-foot wide rural road back in 1978 as depicted in the official survey maps and the aerial photographs taken in 1993 and 1994.  The letter and the enclosed plan also acknowledged the existence of the illegal section which runs all the way from the end of the section constructed by the Government, through Lot 695 to part of the Right Limb Road.  This corroborated what Yeung said in his affirmation that he improved part of the Suit Road and built the Right Limb Road to Lot 841 in 1992.  Taken in the totality of the evidence, not only does this letter not support the 1^st Defendant’s case, it corroborates the evidence of Yeung.  The 1^st Defendant is trying to mislead the Court.  

34.  Mrs Chan referred to a document titled “The fourth affirmation of Lam dated 12 March 2007” in which Lam averred that he was told by Chan Cho’s niece, Ah Kam, that the 1^st Defendant was the prime user of the Suit Road.  Ah Kam also said that the 1^st Defendant was a professional driver engaged in the transportation business and used to drive a large dump truck and later a large goods truck along the Suit Road almost everyday until he changed to his four wheel drive vehicle a few years ago.  Lam also produced a photograph of the 1^st Defendant’s four-wheel-drive vehicle parked in a double car ports built by the 1^st Defendant on Government land near his house.  That would have been strong evidence which negates the 1^st Defendant’s evidence that there was no vehicular traffic on the Suit Road and the Left Limb Road and shows that he, too, has been exercising a right of way over Lot 695.  However, that document was only attached to a summons dated 13 March 2007 applying for leave to file that document as an affirmation.  From the Court’s record, it appears that the summons has not been heard and the document has not been properly filed.  I give no weight to that document.  But, even without this document, there is sufficient evidence to enable me to reach a conclusion on this issue.

35.  The evidence that the Suit Road has been used by the public is overwhelming.  The Plaintiffs’ and their predecessors-in-title’s right of way over Lot 695C, Lot 695F and Lot 695RP is beyond dispute.  I do not agree with Mr Chang’s submission that this dispute could not be resolved on affirmations.  The 1^st Defendant’s allegations are not to be taken in isolation.  When considered together with the incontrovertible evidence, it is amply clear that his allegations are simply incredible.  When this is coupled with a total lack of explanation for his failure to produce an affirmation in support from Lai, I am only too sure that his allegations are a pack of lies.  The 1^st Defendant’s allegations are moonshine.  I am satisfied that the Plaintiffs have proved that they have acquired, through their predecessors-in-title, a right of way over Lot 695C, Lot 695F and Lot 695RP.

Conclusion

36.  For the above reasons, I find that the 1^st Defendant has failed to prove that he has authority from the owner of Lot 695C, Lot 695F and Lot 695RP over which the Suit Road runs to manage the land.  The Suit Road has been in existence since at least 1978 and open to vehicular traffic by the public.  I am satisfied that the Plaintiffs have acquired, through their predecessors-in-title, a right of way over Lot 695C, Lot 695F and Lot 695RP over which the Suit Road runs.  The 1^st Defendant’s allegations are moonshine and utterly incredible.  To allow this action to run its full course is an abuse of legal proceedings.  Accordingly, the Plaintiffs are entitled to summary judgment against the 1^st Defendant and the 1^st Defendant’s counterclaim must be dismissed. 

37.  The 1^st Defendant has no justifiable reason for setting up the blockade on the Suit Road.  That was done for the purpose of asserting his supremacy as village head of Tai Lam Wu and Ngau Pui Wo and abusing new comers to the area.  He was arrogant.  He put the Plaintiffs in great inconvenience and even danger.  In particular, he put the 2^nd Plaintiff in real and serious danger, having to walk part of her way home at night over an area which is frequented by wild boars, wild dogs, cobras and illegal immigrants.  His conduct in the events leading to this litigation is extremely malicious and uncivilised.  In the conduct of this litigation, he made allegations in his affirmations which he knew were false.  He did so for the purpose of maintaining his supremacy over the area.  He tried to mislead the Court.  He put the Plaintiffs into great expenses in proving his lies.  His conduct of this litigation is reprehensible.  I do feel a strong sense of indignation at his conduct in the events leading to and in the conduct of this litigation.  He should pay the Plaintiffs’ costs on solicitor and own client basis.

38.  Accordingly, I make the following order:

(1) judgment is entered against the 1^st Defendant with damages to be assessed;

(2) the 1^st Defendant, whether by himself or his agents or servants, is restrained from causing any obstruction to the free passage and/or access of the road as coloured orange on the lot index plan annexed in the Plaintiffs’ summons dated 18 December 2008;

(3) the counterclaim of the 1^st Defendant is struck out; and

(4) an order nisi that the 1^st Defendant shall pay the Plaintiffs’ costs of the action including the costs of this application and all costs hitherto reserved, such costs are to be taxed on solicitor and own client basis.