HANG TAT SING INVESTMENT COMPANY LTD v. CHI WO TAN LTD AND ANOTHER

HCA 2989/2016

[2026] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2989 OF 2016

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JUDGMENT

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INTRODUCTION

1.  The subject matter of this action and counterclaim is the title and ownership of an area of land located in the northern corner of the land known as Section B of Lot No 472 in Demarcation District No 131, Tuen Mun, New Territories (“Lot 472B”). 

2.  Annex 1 of this judgment is a survey plan showing the land in question, which comprises the yellow area, the pink area, the green area and the blue area, and its location within Lot 472B (the latter, according to the plaintiff’s case). 

3.  According to the plaintiff’s expert evidence, the area of Lot 472B is about 3,116 sq m whereas, according to the 1^st defendant’s expert evidence, the four coloured areas (excluding the pink portion not bounded by the orange pecked lines) together measure about 185 sq m.  The relative sizes and locations of Lot 472B and the four coloured areas are worth highlighting at the outset as they are relevant to a number of issues, including the 1^st defendant’s alleged use of the four areas over the years, the plaintiff’s knowledge of what activities have been taking place there, and the proportionality of the injunctive relief sought by the plaintiff.

A brief introduction of the plaintiff’s case

4.  The plaintiff is a subsidiary of 中信泰富有限公司.  It acquired Lot 472B in 1978 and remains its registered owner.

5.  In November 2016, the plaintiff commenced the present action against the 1^st and 2^nd defendants alleging trespass since about 2006 and seeking vacant possession, mandatory injunction to remove structures erected on the lot, and damages.  The trespass claim covers the yellow area, the pink area and the green area only.  The plaintiff alleges that the defendants, without its consent, erected a number of structures in those areas, namely a retaining wall and raised ground (partly in the yellow area), temporary structures (in the pink area), and a pumping equipment (partly in the green area).  The blue area does not form part of the claim and no order is sought in respect of that piece of land as it is the plaintiff’s position that the area has never been occupied by anyone.

A brief introduction of the 1^st defendant’s case

6.  The 1^st defendant is a Hong Kong company, incorporated in November 1981.  It was set up to operate, and it still operates, a monastery now known as “Chi Wo Tan” (“至和壇”).  It is the registered owner of four lots of land which are very close to Lot 472B.  Their lot numbers are 485, 486, 848 and 867.  I shall call them “the four adjoining lots” below. Annex 2 of the judgment is a lot index plan showing the location of the four lots.  (The markings in red are added to show legibly the four lots in question.) Annex 3 of the judgment is a plan produced by the 1^st defendant showing the approximate area occupied by the monastery, which comprises the first area, the second area, the third area and the fourth area as marked. 

7.  The plans in Annex 2 and Annex 3 are not of the same scale.  One way to reconcile them is to take the location of the graves as a reference point.  The graves appear on the left hand side of both plans and immediately above Lot 472B, and are marked by the circled letter “G” in Annex 2 and by the word “Grave” in Annex 3.  One can immediately see that the area said to be occupied by the monastery does not fully coincide with the four adjoining lots.  The areas surrounding the two smaller lots, ie Lot 848 and 867, are also taken up.  The other thing to note about the monastery is that the land on which it stands slopes downward from north to south.

8.  The 1^st defendant resists the action on a number of grounds. 

9.  First, it puts the plaintiff to proof that the yellow area, the pink area and the green area are within the boundaries of Lot 472B. 

10.  Second, if that is the case, it says that it is in adverse possession of the area of land bounded by the orange pecked lines in Annex 1.  That comprises the yellow area, part of the pink area, the green area and the blue area.  The area within the orange pecked lines is defined in the pleadings as “the Occupied Areas”.  The same term has been used throughout the trial and will be adopted in this judgment.  The 1^st defendant admits building the various structures in the yellow area, the pink area and the green area.  In fact, it had also built a cement surface and steps in the blue area.  I shall use the term “the Structures” to denote the structures erected by the 1^st defendant in the four coloured areas.

11.  Third, the 1^st defendant claims proprietary estoppel, asserting the “standing by” type.  It contends that the plaintiff is estopped from asserting its proprietary right over the yellow area, the pink area, the green area and the blue area. 

12.  Fourth, even if the court upholds the trespass claim, it should not grant a mandatory injunction and should award damages in lieu as it would be oppressive and disproportionate to order the 1^st defendant to demolish the Structures, as the plaintiff fails to show that they are unsafe and the demolition works may be prohibitively expensive and tedious. 

13.  The 1^st defendant accordingly counterclaims for declaratory and injunctive reliefs based on adverse possession or, alternatively, proprietary estoppel.  It should however be clear from the above narrative that the land forming the subject matter of the action and that forming the subject matter of the counterclaim are substantially the same but not identical.

14.  The two causes of action put forward by the 1^st defendant is based broadly on the same factual case.  The monastery was founded by four individuals in 1956.  I shall call them by their last names – To, Law, Lo and Tong.  (To and Law were mother and son.)  The four adjoining lots were originally acquired (variously) by the four founders in 1955 and 1956.  They then established the monastery in around August 1956.  The monastery was built on the first to fourth areas as marked in Annex 3, which includes the Occupied Areas.  More specifically, the yellow area and the pink area (within the orange pecked lines) are situated at the western end of the third area whereas the green area and the blue area are situated at the western end of the fourth area. 

15.  It is common ground that the monastery is built on a natural slope.  To the west is a graveyard which had existed long before. To the south is a natural stream.  It is the 1^st defendant’s case that the founders had made use of these ground features as the natural boundaries of the monastery.  As part of a succession plan in light of the old age of the founders, in 1981, the 1^st defendant was incorporated to take over the legal ownership of the four adjoining lots and to continue the operation of the monastery.  The 1^st defendant therefore continued to occupy the Occupied Areas.  In the summer of 2005, the 1^st defendant started extensive construction works at the monastery.  The works were completed in 2006.  New structures were erected in the Occupied Areas.  I shall adopt the term “the 2006 construction works” used in the pleadings to refer to such works.

16.  I would pause here to make a point about the relative sizes of the Occupied Areas and the monastery.  As remarked above, in the plaintiff’s action, the land in question is a relatively small portion within Lot 472B.  Similarly, in the 1^st defendant’s counterclaim, while I do not have any figure on the size of the area occupied by the monastery, it would be apparent from Annex 3 that the Occupied Areas comprise also a relatively small area within the land on which the monastery stands.  

The issues 

17.  The parties have agreed that four issues fall to be resolved in this trial.  Broadly:

(1)     Issue 1 – are the Occupied Areas within the boundary of Lot 472B?

(2)     Issue 2 – is the 1^st defendant in adverse possession of the Occupied Areas?

(3)     Issue 3 – is the plaintiff estopped from asserting its right as owner against the 1^st defendant in respect of the Occupied Areas?

(4)     Issue 4 – if the plaintiff’s trespass claim is upheld, should the court grant mandatory injunction to demolish and reinstate? Or should it award damages in lieu and, if so, how much?

18.  I should record here that no one has appeared to oppose the plaintiff’s action in the capacity of the 2^nd defendant.

An overview of the evidence

19.  At the trial, the plaintiff called Mr Lo Wing Tak as its sole factual witness.  He is an employee of the plaintiff’s parent company.  He joined the company in March 2012 and began to manage its agricultural lands, including Lot 472B, in 2014.  He testified about what he saw in the lot and the surrounding area during his regular visits.

20.  The 1^st defendant called two factual witnesses – Mr Tong Wai Lop and Ms Law Wai Mui.  They are the next generation of two of the founders of the monastery.  I shall call these two founders “Tong Snr” and “Law Snr”, respectively.  Tong Wai Lop has been the Supervisor (a religious position) of the monastery since 2005.  He testified about the establishment of the monastery and its operation, and how the Occupied Areas have been used as part of the monastery since 1956 up to now.  Law Wai Mui also testified about how the Occupied Areas have been used as part of the monastery over the years.

21.  There are two sets of expert evidence.  The first set is the survey evidence concerning the boundaries of Lot 472B (Issue 1) and the historical land use of the four coloured areas (Issues 2 and 3). The parties’ land survey experts are Ms Jessica Leung (for the plaintiff) and Mr Ng Jor Choi (for the 1^st defendant).  Their joint expert report dated 5 August 2019 was admitted into evidence without oral testimony.  The second set is geotechnical engineering evidence on the structural stability and safety of the Structures and the impact of their demolition on the stability of the monastery and the slope (Issue 4).  The parties’ experts are Ir Dr James Lau (for the plaintiff) and Ir Dr Albert Yeung (for the 1^st defendant).  Dr Lau and Dr Yeung were tendered for cross-examination.

22.  Lastly, a site visit was conducted on the second day of the trial. 

23.  The plaintiff is represented by Mr Erik Shum and Ms Evelyn Cheng.  The 1^st defendant is represented by Mr CY Li, SC and Mr Albert Chan.

THE PLAINTIFF’S CASE

24.  The plaintiff alleges trespass by the 1^st defendant on the yellow area, the pink area and the green area, which are all within Lot 472B, since 2006.  Its factual case is straightforward.

25.  As regards the yellow area, the 1^st defendant built a concrete retaining wall, a portion of which runs along the western and southern edge of the yellow area.  The ground elevation of the yellow area was raised to the same level of the adjoining land occupied by the 1^st defendant.  Further, a fence was built along the top of the retaining wall.  The raised ground within the yellow portion, as bounded by the retaining wall, together with the building and structure erected on the adjoining land thus form a single architectural complex.

26.  As regards the pink area, a temporary structure was erected there.  It is a single-storey structure composed primarily of sloping corrugated metal sheet roofs supported by steel purlins, steel beams and steel columns and enclosed by corrugated metal sheets.

27.  As regards the green area, a pumping equipment was installed, a portion of which is situated within the green area.

28.  Lo Wing Tak gave evidence on what he observed about the landscape of Lot 472B and the Occupied Areas during his regular visits. In cross-examination, he also spoke about the company’s records concerning the Structures.

29.  Since he started managing the agricultural land of the company in 2014, he would conduct regular site inspections, including in Lot 472B.  Before his time, the responsible staff would also do the same, about once a year.  If there was any sign of unauthorised or illegal occupation, the staff would report to the company and make a record.  Otherwise no record would be kept.  According to his witness statement, upon taking up the job, based on the company records, he knew that the 1^st defendant had been occupying part of Lot 472B without authorisation.  In cross-examination, he said that the records kept by the company was a letter sent by the plaintiff to the 1^st defendant in 2012 concerning the occupation.  The letter in turn referred to another letter issued by the plaintiff in November 2011 about the occupation.

30.  As disputes were anticipated, Lo Wing Tak inspected the lot more often, once every quarter, and was able to observe the lot in different seasons, including at sunny times and during rainy times.

31.  Based on his observations, at the southern boundary of the blue area, which the 1^st defendant has described as a natural stream, is a shallow gully of about 1m wide and 0.5m deep.  It is about 5m away from the retaining wall.  He himself would not call it a natural stream, as there were only one or two occasions during the rainy seasons that he observed water running through it and even then there was not much water. At other times, there was no water at all.  In fact, during his inspection of Lot 472B, he would very often walk across the gully in order to gain access to the blue area.  In his witness statement, he produced a photograph dated 2 November 2018 showing himself standing in the gully where no water could be seen.

32.  Lo Wing Tak said that originally there were three routes to access the blue area.  One route was through the monastery from the north.  The other two were from the south side.  One of these two routes was blocked in a typhoon in 2018.  The remaining one is still accessible.  Photographs dated 4 December 2018 showing the route have been produced at the trial.  Lo therefore concluded that the blue area is freely accessible by others from the south and the 1^st defendant would not be able to prevent that.

33.  In cross-examination, it was suggested to Lo that if one was to inspect Lot 472B diligently and with the help of the lot index plan, one would discover the 1^st defendant’s trespass.  Lo’s reply was that he did not want to speculate.  However, he emphasised that the lot is agricultural land and is over 30,000 sq ft, the area is dense with vegetation, bushes and trees, and one would need to walk all over the 30,000 sq ft of land and check the ground situation against the lot index plan before one could discover any area which was being trespassed. 

THE 1^ST DEFENDANT’S CASE

34.  The 1^st defendant’s case is as follows.

The monastery was established in 1956

35.  The four founders shared a common religious faith in Confucianism, Buddhism and Taoism.  In around 1950, one of the founders received the Order of God and was mandated to establish the monastery in Hong Kong.  In 1955 and 1956, they acquired the four adjoining lots, which are located very close to Lot 472B, for that purpose.  In August 1956, the four of them established the monastery.  The monastery was earlier known as “Dai Yun Cheng (Confucianism, Taoism)” (“大仁祥 (儒釋道)”), and then “Dai Yun Cheng” (“大仁祥”), and later “Chi Wo Tan” (“至和壇”).

36.  In support of the above, included in the 1^st defendant’s evidence are:

(1)     a photograph showing the wall signs containing the name of 大仁祥, which are said to have been hung at the main entrance;

(2)     photographs showing the graves of To, To’s husband and a relative of To, which are all located within the monastery area; and

(3)     a survey sheet dated 1958 showing the name “Tai Yan Cheung”.

The monastery was built on the first to fourth areas

37.  The monastery was built on a steep natural slope, which goes downwards from north to south.  The construction works were undertaken by the firm owned by Law Snr.  Due to the gradient, levelling work was done and, as a result, the area was divided into four levels, namely the first to fourth areas as marked in Annex 3.  In this action, we are concerned with the third and fourth areas only.

38.  It is a material part of the 1^st defendant’s case that the founders had made use of the natural features on the land as the natural boundaries of the monastery, and they had been in occupation of the area within such boundaries to the exclusion of outsiders.

39.  As the Occupied Areas are alleged to be in the south-western corner of the monastery, the relevant boundaries with which we are concerned are the western boundary and the southern boundary of the monastery.  The 1^st defendant contends that:

(1)     On the south, there is the natural stream and the area was overgrown with vegetation, bushes and trees.  One therefore could not access the monastery from the south.  That therefore formed the natural boundary on the south side of the monastery.

(2)     On the west, a graveyard had long existed long before 1961.  The graves are marked in Annex 3.  Furthermore, to the south of the graveyard and to the west of the third area and cutting across the natural stream is a steep cliff or verge.  This landscape makes the monastery inaccessible from the west.

40.  Furthermore, the 1^st defendant contends that the area in which the monastery was built has always been remote, with hardly any outsider present.  In the old days, transport to this area was extremely limited.  There was only a road which allowed for access to the monastery from the north. 

41.  In cross-examination, Tong Wai Lop said that all along, the indication which he had received from the founders was that they could use the land from north to south, up to the natural stream and the well. In fact, this is the area which the founders, and later the 1^st defendant, have all along been using for the monastery.  He put it this way in his oral testimony:

“答: 我地响壇上，一路承接我地founder做嘅嘢，我地做好我地founder俾我地嘅direction。

問: 你係講緊religious?

答:     係喇。同埋亦都我地個地方，佢地一路俾我嘅indication，我地由北一路落去到南嘅時間，水溝、同埋我地嘅井，一路去到化糞池，都係我地使用嘅地方。”

42.  The first to fourth areas, which were on a descending gradient, had existed from about the 1960s to 2005 (when the 2006 construction works were undertaken).  During this period, there had not been any big changes, such as the levels and the areas used.  Only small changes such as repair works were undertaken.

43.  In support of the above alleged use of the land, the 1^st defendant has produced documentary evidence, including:

(1)     a copy of the Crown Land Permit in relation to the use of a piece of government land numbered Y4476, which appears in a little box in the top right-hand corner of the plan in Annex 2.  The permit was issued to a Chow Ho-chi “on behalf of Tai Yan Cheung” and the commencement date was in January 1962.  It is the 1^st defendant’s case that that small piece of land was and is still used as a garage.  One passes this garage when one approaches the main entrance of the monastery from the north;

(2)     receipts for payment of crown land licence fee in relation to Y4476 for various years from 1962 to 1989;

(3)     demand notes for property tax or rates in relation to Y4476 from 1978 to 1988, 2006 and 2020; and

(4)     demand notes for property tax or rates for Lots 485 and 486 (two of the four adjoining lots) for various years from 1979 to 1988.

44.  By the 1980s, the founders were reaching an elderly age.  The 1^st defendant was incorporated in November 1981 to hold the four adjoining lots and to take over the operation of the monastery. The 1^st defendant has continued to occupy the monastery area, including the Occupied Areas, up to now.

The yellow area

45.  The yellow area is near the western corner of the third area.

46.  By not later than the 1960s, the founders had levelled the third area (ie including the yellow area), which became a large raised open-air platform in the monastery.  It had an elevation of about 6 ft from the fourth area.  It was used as a level grass field and a garden, with a retaining wall bounding it.  Metal wire fencing was erected on the outer edge of the platform. 

47.  The level grass field was used as a place of worship, resting and other leisure activities by various licensees of the monastery, including teachers, staff, volunteers, members, worshippers, attendees, friends and family.  At times, the grass field was also used as a football pitch.

48.  The 1^st defendant contends that this type of use, namely the levelling of the natural slope into a land platform bounded by a retaining wall, must be a clear act of possession, and would show to all (including the legal owner) that the land was being used to the exclusion of others.

49.  In support of the use of the third area, the 1^st defendant has adduced documentary evidence, including:

(1)     photographs of the grass field said to be taken in or around 1968.  According to Law Wai Mui, they were taken by Law Snr on a day which was shortly after the 1967 riots.  They show members of the Law family and their relatives and friends playing football.  One can see metal fencing in the photographs.  The 1^st defendant also points to the top of the trees outside of the fence and says that they are trees grown in the fourth area.  The fact that only the top can be seen from the third area shows that the third area was of a higher gradient than the fourth;

(2)     an invoice from “Yun Che Iron & Steel Works” dated 1 February 1977 addressed to 羅公館青山別墅;

(3)     an invoice from “Yun Chee Ho Iron & Steel Works” dated 13 July 1978 and also addressed to 羅公館青山別墅.  One of the invoiced items was “加圍球場铁網壹幅”, with a charge of $800; and

(4)     an invoice from 區耀 dated 5 November 1978 addressed to 大仁祥.

50.  This had remained to be the situation on the ground until the monastery underwent extensive refurbishment and structural reinforcement and improvement works in 2005 and 2006, ie the 2006 construction works.  The works were of a massive scale.  It lasted from the summer of 2005 to March 2006. 

51.  As far as the third area is concerned, the grass field was turned into an open concrete platform which is fenced and made higher in elevation.

(1)     The ground was raised significantly to roughly the same elevation where the second area once was.  And the raised ground was paved with cement and formed part of the monastery.

(2)     A concrete retaining wall was built along the southern edge of the third area.  Due to the natural slope, without the retaining wall, the land on which the raised ground was built would have slipped.

(3)     A fence was built along the edge of the top of the retaining wall.

The pink area

52.  The pink area is at the western end of the third area.

53.  By not later than the mid-1960s (and up to 2005), it had been used as part of the monastery as a small garden area where fruit trees were grown.  This small garden was part of the grass field and garden in the third area.  Children could play in the small garden and pick fruits there.

54.  In respect of the use of the pink area as a garden prior to 2005, the 1^st defendant has not adduced any documentary evidence in support.

55.  As part of the 2006 construction works, the 1^st defendant erected temporary structures in the pink area.  They were used as a dog shed and for storage of miscellaneous items and equipment.

The green area

56.  The green area is a very small area located within the fourth area, along its southern edge.

57.  By not later than the early 1960s, the founders had drilled into the land and built a well in the green area.  It became the source of water supply for the monastery.

58.  Some time in the early 1980s, the 1^st defendant installed a pump at the well to extract water. 

59.  In support of the above, the 1^st defendant has produced the following documentary evidence.

60.  First, the minutes of the 1^st defendant’s meeting held on 30 September 1982.  The relevant part read:

“(1) 申請自來水事，趙副主席認為沒有必要且不合經濟原則。

另建議在原有水井改裝較大馬力水泵及擴大儲水池容量。待估價後，詳情容下次會議再行研究。

楊漢斌先生則認為安裝自來事先行估價，作一比較，下次開會再行決定。” (underline added)

61.  Second, the minutes of the 1^st defendant’s meeting held on 18 December of the same year.  The relevant part read:

“〈甲〉自來水案，	英汝聰先生答允送出三匹馬力水泵壹部供大仁祥水井用。
	吳景星發現自來水供水已延展至大仁祥附近之“安養”及停車場隣近石屋，故依理接駁費用可能不大，技術當無問題。
	結論：自來水問題交由總務負責，   下次會議討論。”

62.  The well has continued to be used. 

63.  As part of the 2006 construction works, the water pump was replaced by a new one.  To this day, the water extracted from the well would be used by the monastery for flushing water supply, washing and cleaning, watering plants, and storing water in the pond for emergency fire-fighting.

The blue area

64.  The blue area is located at the western end of the fourth area.

65.  The founders and members of the monastery had made use of the blue area for access to the well, and also the area to the east of the blue area, including the septic tank at the other end of the blue area (which was installed by the 1970s and is marked in Annex 3). Later on, the area had been used to carry out maintenance or reinforcement works to the retaining wall which ran round the level grass field and garden in the third area. 

66.  To facilitate access, the founders had built steps latest by the mid-1960s from the yellow area to the blue area.  In addition, by the mid-1960s, the blue portion had been levelled and reinforced with cement.  If a ball should be kicked from the grass field in the third area down to the fourth area, one could retrieve it by accessing the fourth area through a small entrance to the west end of the grass field and down the steps.

67.  As part of the 2006 construction works, the fourth area was again reinforced and paved with cement.  This was for the purpose of reinforcing the new retaining wall and for creating a better pathway to the well and the pump and the septic tank.  A flight of steps was built in the same place as before from the raised ground in the third area down to the fourth area.

The 2006 construction works

68.  I have set out the 1^st defendant’s case in respect of the use of the four coloured areas since 1956 and the changes in such use after 2005.  At the trial, it was stressed that the 2006 construction works were extensive and executed at or very close to the Occupied Areas.

69.  The 1^st defendant has produced a quotation issued by Lee Yeung Engineering Co., Ltd (which appears to be undated) for the works.  The project was described as “Construction of retaining wall” and “Re-construction of village house”, for which the quotation was just over $1.3 million and about $630,000, respectively.

The evidence of Tong Wai Lop and Law Wai Mui

70.  The 1^st defendant’s factual case is supported by the testimony of Tong Wai Lop and Law Wai Mui.

71.  Tong Wai Lop was born in 1956.  He is the son of Tong Snr, one of the four founders of Chi Wo Tan.  He was brought up in Hong Kong and, after his secondary education, attended college in the US.  He returned to Hong Kong in 1978.  He had already started to take part in matters relating to the monastery long before the incorporation of the 1^st defendant.  Since its incorporation in 1981, he has been involved in its management.  From 2005 onwards, he has been appointed as its Supervisor.

72.  According to Tong Wai Lop, the establishment of Chi Wo Tan had all along been led by his father.  It was his life’s work.  As a result, all members of the Tong family was heavily immersed in it.  Tong Wai Lop himself had taken part in learning the religious practices, practising it and participating in the religious ceremonies held at the monastery since as early as he could remember, and as early as he was 8 at the latest, ie around 1964. He began to actively take part in matters pertaining to the monastery as a member since 1969 when he was in Form 1. 

73.  One of the largest ceremonies held at the monastery is called “利幽法會” which is an annual worshipping event lasting seven consecutive days, and is still being carried out to this day.  Members would stay at the monastery during the entire period residing in the monastery at night.  In cross-examination, Tong Wai Lop recalled that he himself participated in this annual event while he was in secondary school, from Form 1 to Form 5. 

74.  In addition, in cross-examination, he recalled that he had played in the grass field with his siblings and the children of the Law family since the mid-1960s.

75.  As he became older, he became more involved and gradually took up more of the management responsibilities under the guidance of his father.

76.  Tong Snr was a director of the 1^st defendant since its incorporation.  In cross-examination, he was described as the one who decided things.  Tong Snr passed away in late 2004.  Tong Wai Lop succeeded his father in taking up the management of the monastery.  In his lifetime, Tong Snr had been grooming him for taking up this role. 

77.  In his witness statement, as to his knowledge about the monastery, Tong Wai Lop said this:

“My knowledge of and information relating to Chi Wo Tan and the Monastery, apart from what I have been able to pick up over the many years of my involvement with Chi Wo Tan/the Monastery, were imparted to me by Mr. Tong as part of a long-term plan of succession.”

78.  Law Wai Mui is the daughter of Law Snr and the granddaughter of To.  She was born in 1945.  She was brought up in Hong Kong and graduated from the Hong Kong Baptist College (now the Hong Kong Baptist University) in 1966.

79.  She said that around the time when she was about 11 to 15 years old (ie around 1956 to 1960), her family began visiting the monastery regularly and those were her earliest memories of the monastery.  She recalled that it was situated on a natural slope.  Her witness statement contains the following recollection of the landscape at the time:

“The Land was in general unoccupied land besides those parts thereof eventually occupied by the Monastery. This included what the Plaintiff now claims to be the northern part of Lot 472B. At the time, that part did not appear to be occupied at all. It was just unoccupied land overgrown with wild grass here and there.”

80.  From the late 1950s to the early 2000s, she and her family would visit the monastery about five times or more every year. 

81.  She understood that her father’s firm carried out construction works on the slope to level the land.  She could tell from her memory of her regular visits that the works had been fully completed by around early to mid-1960s.  She was then around 18 to 20 years old.  There was no substantive change to the size of the four areas and in particular there was no substantive change in the size or location of the grass field since she first visited (that is, until the 2006 construction works).

Adverse possession

82.  Based on the above (and the survey evidence to which I will set out below) and without prejudice to its position under Issue 1, the 1^st defendant contends that since 1956, the founders had exercised a sufficient degree of exclusive physical control over the Occupied Areas and evinced an intention to possess the land, and the 1^st defendant has done the same since its incorporation in 1981 up to the present day.  As a matter of law, the 1^st defendant can rely on the period of possession by the founders in addition to its own period of possession for the purpose of making out its case of adverse possession. 

83.  As the adverse possession started before 1 July 1991, the applicable limitation period is 20 years: Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556, [2019] HKCA 1102, para 34.  In this case, the limitation period had long expired before the issue of the present writ. That is the primary case of the 1^st defendant.

84.  As a fallback position, if the court finds that the 1^st defendant had only been in adverse possession of the Occupied Areas on or after 1 July 1991, the applicable limitation period is 12 years.  Here, the 1^st defendant has shown that it was in adverse possession before November 2004.

Proprietary estoppel

85.  Without prejudice to its position under Issue 1, the 1^st defendant puts forward proprietary estoppel as an additional defence.  Its case is as follows.

86.  Tong Snr held the mistaken belief that the founders were entitled to use the Occupied Areas, having regard to (1) their acquisition of the four adjoining lots in 1955 and 1956, and (2) their continuous occupation for more than two decades, and that mistaken belief was imputed to the 1^st defendant upon it taking over the operation of the monastery in 1981, with Tong Snr being a director.

87.  The plaintiff acquired Lot 472B in 1978.  But, as confirmed by Lo Wing Tak in cross-examination, it has never put the lot to any use.  Lo also confirmed that the location of the lot was clear from the transaction documents.

88.  The plaintiff made no complaint about the 1^st defendant’s use of the Occupied Areas and the structures erected there from 1978 to 2004.

89.  The Structures were built on the Occupied Areas in 2006.  The construction works lasted for about nine months and were of a large scale.  The plaintiff was well aware of the works.  It was therefore aware or must have been aware of the 1^st defendant’s mistaken belief.  But it did not object to the construction works.  (It only complained of them for the first time in around 2011.)

90.  The plaintiff had stood by without taking any action to assert its property right.  It amounted to a representation to the 1^st defendant that it would not object to the Structures.

91.  The 1^st defendant acted to its detriment in reliance on that representation and expended significant sums on building and, later on, maintaining the Structures.

92.  It would be unconscionable to permit the plaintiff to now seek reliefs against the 1^st defendant for trespass.

93.  The plaintiff should be estopped from asserting its proprietary right over Lot 472B and the Structures there against the 1^st defendant.

THE SURVEY EVIDENCE

94.  I shall now set out the survey evidence.

95.  The question under Issue 1 is whether the four coloured areas are within the boundary of Lot 472B.  By order dated 14 November 2018, master granted leave to parties to adduce survey evidence on this issue, which leave was set out in para 1 under sub-paras (a) to (d) of the order.  In sub-para (e), master granted leave to adduce survey evidence on the historical use of the Occupied Areas between 1954 and 2016.

96.  Ms Leung (the plaintiff’s expert) confirmed that the four coloured areas are located within Lot 472 and their positions are as marked in the plan in Annex 1.

97.  On the other hand, Mr Ng (the 1^st defendant’s expert) did not state his opinion on Issue 1 but only addressed sub-para (e) of the above order in his report dated 22 May 2019.  He stated:

“Out of the Questions (a) – (e) above, Messrs. Allen Chan & Co. have instructed us to provide our expert opinion solely on Question (e)”

98.  Up to now, it has not been explained to the court why the 1^st defendant gave that instruction to its survey expert.

99.  As to the historical use of the four areas, I shall first set out the agreed observations of the experts set out in the joint report, based on their review of aerial photographs, survey sheets and other relevant land records, to be followed by the disagreed views, in respect of each area.  For the disagreed items, I shall focus on the period prior to 2006.

100.  The experts agree on the following in respect of the yellow area:

(1)     In 1956, it was identified as natural ground covered with scattered trees.

(2)     In 1963, it was identified as a land platform, which formed part of a larger land platform to its east.  The verge of the larger platform can be seen in the aerial photograph.

(3)     In 1964, it was identified as a patch of bare ground.

(4)     From 1969 to 2003, it was largely covered in vegetation.  The experts were only able to identify some patches of bare ground in the northern part of the yellow area in the aerial photograph taken in 1969.

(5)     For the period from 1976 to 2003, according to the survey sheet in 1976, the northern and eastern parts were shown as part of the larger platform (to its east) erected with a section of fence at the south-eastern corner.  A fence was seen to enclose the eastern part of the yellow area in the survey sheets from 1978 to 2006.

(6)     In 2004, it was identified as patches of bare ground on areas not covered by trees.  A large platform which was with works in progress was seen outside the north of the yellow area.

(7)     From 2006 to 2016, it was identified as a raised platform.

101.  Ms Leung comments that from 1954 to 2005, there was no sign showing that the yellow area was occupied, either from the survey sheet or aerial photograph.  She observes that the area was found covered with “wildly growing vegetation” almost the entire period. 

102.  On the other hand, Mr Ng takes the view that the yellow area was in occupation and/or use since 1963 (or earlier).  He relies on the aerial photograph taken in that year.  He sets out his reasoning as to why the platform had remained in place since then:

“Noting that there is a land platform (a structure) constructed in the Yellow Area which forms part of the larger land platform. Unless there are other positive indications to the contrary, it can be assumed that this land platform has remained in place in the Yellow Area notwithstanding that it may not be visible from subsequent aerial photographs because they have been obscured by overhanging trees and/or vegetation.”

103.  He also relies on the aerial photographs taken in 1980, 1992, 1996, 1998 and 2000 to 2003, which, according to him, show that the central part of the larger land platform was maintained with a patch of bare ground and/or grass land.  He says that there is no suggestion that there were any structural changes to the land platform, including in the yellow area, which differs from what had existed since 1963.

104.  The experts agree on the following in respect of the pink area:

(1)     Between 1956 and 2005, the area was covered in trees or vegetation.  No structures could be identified.

(2)     Between 2006 and 2016, the majority of the area was covered with trees/vegetation.  Within that period, between 2009 and 2012, the area was partially covered by structure.

105.  Ms Leung comments that from 1954 to 2005, there was no sign showing that the pink area was occupied, either from the survey sheet or aerial photograph.  The area was found covered with “wildly growing vegetation” almost the entire period.

106.  Mr Ng has nothing to add.

107.  The experts agree on the following in respect of the green area:

(1)     From 1956 to 1978, it was covered in trees/vegetation.  No structure or activity could be identified.

(2)     In 1980, a structure was identified in the aerial photograph.

(3)     From 1981 to 2003, it was largely covered by vegetation, except that a structure was identified in the aerial photograph taken in 1998.

(4)     From 2004 to 2016, a structure was identified.

108.  Ms Leung observes that from 1954 to 2008, there was no sign showing that the green area was occupied, either from the survey sheet or aerial photograph.  The area was found covered with “wildly growing vegetation” almost the entire period.

109.  Mr Ng takes the view that the structure found in the green area in 1980 has been in existence since then.  His reasoning is as follows:

“The structure in the Green Area was first identified in the aerial photograph of 1980 … which was then obscured by vegetation between 1981 and 2003, of which it could only be seen intermittently (i.e. in 1998 …). The structure was identified again in the Green Area in the aerial photographs between 2004 and 2016 and in the joint inspection of 7 March 2019. As such, it could be inferred that the structure as found on the Green Area has been in existence since 1980.”

110.  The experts agree on the following in respect of the blue area:

(1)     From 1956 to 2005, it was covered with vegetation.  No structure was identified.

(2)     From 2006 to 2016, it was occasionally found with patches of bare ground.

(3)     During their site visit in March 2019, it was observed that the area was paved with cement and built with ancillary works, such as steps, drainage channels and catchpits.

111.  Ms Leung comments that from 1954 to 2005, there was no sign showing that the blue area was occupied, either from the survey sheet or aerial photograph.  The area was found covered with “wildly growing vegetation” almost the entire period.  No natural stream was seen throughout from 1954 to 2016.

112.  On the other hand, Mr Ng takes the view that the blue area had been used as an access point from the yellow area to the green area and the natural stream since 1980 or earlier.  His reasoning is as follows:

“Considering the development of the Yellow Area and the structure on the Green Area, it suggests that the Blue Area had been used as an access point from the platform area of the Yellow Area (and the larger platform to its East) to the structure in the Green Area and the Natural Stream since 1980 or earlier.”

DISCUSSION OF THE FACTUAL EVIDENCE

113.  In this case, there are two main factual issues.

114.  First, the historical use of the Occupied Areas from 1956 to 2006.  The 2006 construction works transformed the use of a large part of the Occupied Areas.  However, the transformed use took place less than 12 years prior to the issue of the writ.  Hence, even if the 1^st defendant succeeds in making out the requisite elements of adverse possession based on such post-2006 use, its defence and counterclaim would not succeed as the limitation period had not yet expired by the time the plaintiff commenced the action.  Therefore, in the following discussion, I shall focus on the use of the Occupied Areas during the period commencing from 1956 and up to 2004.  The applicable limitation period is 20 years.

115.  Second, as alleged by the 1^st defendant, the mistaken belief held by it and the four founders over their right to use the Occupied Areas, and the plaintiff’s knowledge of that mistaken belief.  This relates to the defence and counterclaim of proprietary estoppel.

116.  As regards the first issue, both factual evidence and survey evidence has been adduced.  Insofar as the factual evidence is concerned, this is not a case where the two sides’ witnesses are putting forward rival versions of the same events.  The evidence of Lo Wing Tak covers only the period after 2014.  He was not in a position to speak to the use of the land prior to that and he did not refer to any company documents recording the same.  The critical factual evidence is therefore the evidence of Tong Wai Lop and Law Wai Mui on the use of the Occupied Areas from 1956 to 2004. 

117.  The credibility and reliability of the factual evidence is to be measured by the well-known evidential yardstick of inherent plausibility, consistency with contemporaneous documents, internal consistency and (to a lesser extent) the demeanour of the witnesses.

118.  In the present case, the most reliable objective evidence would be the contemporaneous documents in the form of aerial photographs and survey sheets, which have been reviewed and interpreted by the parties’ survey experts.  It is against such contemporaneous evidence that the 1^st defendant’s factual narrative can be properly tested.

The evidence of Lo Wing Tak

119.  Lo Wing Tak was not in a position to speak to the physical state or use of the Occupied Areas prior to 2014 and he did not attempt to do so in his testimony.  I find his account of his regular site inspections and what he observed since 2014 to be inherently plausible and hence inherently credible.  His description about the gully and the access route to the blue area from the south is supported by photographs.  He generally took care to answer his questions.  His testimony was on the whole coherent and consistent.  When asked whether, with the help of the lot index plan, the plaintiff could have reasonably discovered the 1^st defendant’s trespass, Lo pointed out that the lot was of substantial size and the area was dense with vegetation and all these would make it difficult to discover any trespassing activity.  In my view, the answer accords with common sense and is sound in logic. 

120.  On the whole, I find Lo Wing Tak’s evidence to be reliable and credible.  Accordingly, I accept his evidence in full, including his evidence about the gully and the existence of alternative routes to the blue area from the south.

The evidence of Tong Wai Lop and Law Wai Mui

121.  The evidence of Tong Wai Lop and Law Wai Mui covers events which go back to the 1950s.  Their evidence is based on two sources – first, their own recollection and, second, in the case of Tong, what Tong Snr told him before he passed away.  This immediately raises a question over the reliability of their evidence. 

122.  What is crucial in this case is the use of the Occupied Areas from 1956 to 2004, as opposed to the use of the slope on which the monastery stands.  As remarked at the beginning of this judgment, the Occupied Areas, on the 1^st defendant’s case, only takes up a relatively small part of the overall monastery area. 

123.  It can be said that the key dates in the 1^st defendant’s narrative are the mid-1950s (when the monastery was established) and the mid-1960s (the latest time by which the four coloured areas had been made use of).  Tong was just born in the mid-1950s and was a child in the mid-1960s.  Law is older than Tong.  But still, she was only about 10 years old in the mid-1950s.  By the mid-1960s, she was about 20 years old.  I am prepared to accept that they paid visits to the monastery as described in their testimony.  However, these visits were not frequent.  They were either leisure trips made by the family or attendance of religious events at the monastery. 

124.  Tong and Law would have their own impression of the monastery based on their childhood memory.  They may now remember what the monastery looked like in the 1950s and 1960s and roughly where the different parts of the monastery were located.  However, the four coloured areas are allegedly located in a small corner at the very south-western end of the monastery.  This is apparent from the plan in Annex 3.  There does not appear to be any plausible reason for Tong and Law to take particular notice of that small corner of land during their infrequent visits to the monastery.  It would be unrealistic to expect them, as young children or teenagers or even later as adults, to pay much attention to the area now known as the Occupied Areas in this litigation and how they were then being used.  Their testimony on the use of the Occupied Areas (as opposed to that on the monastery as a whole) from 1956 onwards (up to 2004) insofar as it is based on their personal recollection therefore, in my view, does not carry too much weight.

125.  Insofar as Tong related in this trial what his late father told him about the physical state and the operation of the monastery, that is hearsay evidence.  One needs to approach such evidence with care.

126.  In this case, therefore, the much more reliable evidence on the historical use of the Occupied Areas is the survey evidence. Insofar as Tong and Law’s evidence is not corroborated by the survey evidence, the former amounts to only bare assertions and are liable to be rejected.

127.  If one takes a step back and examine the 1^st defendant’s evidence as a whole, it has said a lot about the monastery itself, including its establishment and the fact that it was built on a slope on a large scale.  These allegations are supported by documentary evidence.  See paras 35 to 37 and 43 above.  I accept such evidence as facts.  I also consider that it is inherently plausible, and I therefore accept, that the founders of the monastery had gone beyond the four adjoining lots and made use of the surrounding land.  The material issue here, however, is the extent to which they had done so. 

128.  It is worth reiterating once again that this case is not about the monastery and how it occupied the slope on which it was built, but about the Occupied Areas, which allegedly sit in a small corner of land at the south-western end of the monastery.  The 1^st defendant has tried to show the activities which had taken place from 1956 in the third and fourth areas of the monastery.  But, in order to succeed, they must in addition show that these activities also took place in the Occupied Areas.  Put in another way, the 1^st defendant needs to establish that the four coloured areas are located within the third and fourth areas.

129.  In this regard, I first note that in the witness statements of Tong and Law, when they referred to the first to fourth areas in the plan in Annex 3, they both said that the plan only denotes “the approximate location” of the four areas, which are “roughly” marked.  The significance is that both Tong and Law are not (and cannot be) sure about the boundaries of the third and fourth areas.  Their evidence is therefore of limited value when the court considers the issue of whether the coloured areas were indeed located within the third and fourth areas.

130.  Secondly, it is the 1^st defendant’s case that the founders had made use of the natural features on the land as the boundaries of the monastery.  In fact, according to Tong, he was always given to understand from his late father that they could use the land from north to south, and all the way up to the natural stream and the well.  He said in his witness statement that “[t]here was no reason why this whole area of the Land (in particular, the Occupied Area) would not be utilized by the Core Members as part of the Monastery”.  In submissions, Mr Li highlighted that two of the four adjoining lots are mere footsteps away from the yellow area, and contended that it is inherently plausible that the founders had made use of the coloured areas. 

131.  As said above, I agree that it is inherently plausible that the founders would make use of land beyond their own lots.  On the other hand, I am unable to proceed to make the finding that the founders had in fact made use of the coloured areas solely based on this inherent plausibility.  Even if his father had indeed at some point given Tong Wai Lop the indication that they could use the land all the way up to the natural stream and the well, it is not in itself sufficient evidence for the court to find that such land was in fact so used.

132.  Lastly, I should address the submission made by Mr Shum on Law Wai Mui’s witness statement.  He submits that the court should give no weight to that statement.  This is because Law, in cross-examination, confirmed that she met the 1^st defendant’s solicitors for the first time when she signed her statement and she had not given any instructions to the solicitors prior to that meeting.  Yet, when she arrived at the office, her statement had already been prepared and the plans annexed to it (including the one now reproduced in Annex 3) marked with colours.  This means, Mr Shum submits, that her statement was not prepared according to her instructions, but either by Tong or the 1^st defendant’s solicitors.  Her evidence was prepared by others and presented to her just for her to say “Yes” and sign. 

133.  It is submitted that this is a flagrant breach of the principles governing the preparation of witness statements.  The purpose of a witness statement is for the witness to “tell his story” to the court.  The solicitors should ensure that words are not put in a witness’ mouth and that the witness should express himself in his own words.  It is not for a solicitor to choose the words, phrases, or expressions in a witness statement.  These are all matters for the witness: Ho Sing Yin v Chan Yiu Ling the Administratrix of the estate of Tsang Kwong Lik Deceased HCA 90/2010, 13 July 2012, paras 60 to 65.

134.  In cross-examination, after ascertaining the above from Law Wai Mui, Mr Shum did not proceed to cross-examine her on the substantive contents of her statement.

135.  Mr Li disagrees with the submission.  He emphasises that Law Wai Mui confirmed that she had read the witness statement and the annexures and had confirmed its accuracy before signing.  There is no reason why the evidence should be rejected solely because it had been prepared in advance for her.  The correct approach is that counsel should still cross-examine her on the core issues so that the court will have an opportunity to assess the evidence and decide for itself its credibility, notwithstanding that the statement was prepared for the witness in advance: Shum Wing Lok v Shum Man [2022] HKCFI 2622, paras 54 to 74.

136.  What weight to be given to a witness statement prepared in such circumstances must depend on the circumstances of each case. 

137.  In this case, the fact that the entire witness statement and annexures were prepared in full, without any prior input of Law Wai Mui, must cast some doubt on the reliability and accuracy of the contents.  Given particularly that the events covered by the statement go back to many decades ago, one naturally wonders whether Law would have recalled these events in the same way, if at all, had she been asked to simply “tell her story” independently in the proper way.

138.  That said, I do not agree with the submission that just because the witness statement was prepared in advance for her, it should be disregarded altogether.  I cannot simply dismiss out of hand her confirmation that she had indeed read the statement before signing it.  She received tertiary education in Hong Kong in the 1960s.  It is not a case where one would have doubt over her ability to understand the contents of the statement.  I therefore decline to follow Mr Shum’s suggestion to afford no weight at all to her statement.  But the way in which her statement was prepared is a factor which I should take into account. 

139.  In any event, for the reasons already given in paras 121 to 124 above, I consider that her evidence insofar as it contains her personal recollection of the historical physical state and use of the Occupied Areas does not carry much weight.

ISSUE 1 – ARE THE COLOURED AREAS WITHIN LOT 472B?

140.  In the plaintiff’s claim, the burden lies on it to show that the yellow area, the pink area and the green area are located within Lot 472B.  Ms Leung has confirmed that to be the case, based on a survey record plan deposited with the District Survey Office.  As mentioned above, Mr Ng was (specifically) not instructed to comment on this issue, despite leave had been granted for that.

141.  Mr Li challenges Ms Leung’s conclusion.  He points out that there is no evidence adduced to prove the status of the plan relied on by Ms Leung, which is whether there is any other survey plan on the lot as deposited or registered with the District Survey Office which is in conflict with the plan and, if so, the reason why that plan should prevail.

142.  I accept Ms Leung’s evidence.  There is no apparent reason why she cannot rely on the survey record plan as she has done to determine the proper location of the coloured areas.  The 1^st defendant has, by choice, mounted no proper challenge to her reliance.

143.  I therefore answer Issue 1 in the affirmative – the Occupied Areas are within the boundary of Lot 472B. 

ISSUE 2 – ADVERSE POSSESSION

144.  The legal principles on adverse possession are well established.

Legal principles

145.  If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession and the requisite intention to possess.  To establish factual possession, there must be a sufficient degree of exclusive physical control and whether that is the case depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed.  What must be shown is that the squatter has been dealing with the land as an occupying owner might expect to deal with it.  The requisite intention is to exclude the world at large, including the legal owner, from the land so far as is reasonably practicable and so far as the law allows.  The squatter bears the burden of proof.  Although the standard of proof is still the normal civil standard of balance of probabilities, commensurate with the serious consequences of finding that the legal owner has been dispossessed, the evidence of factual possession and the intention to possess must be compelling.  See, eg, Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527, para 22.

146.  Where the land in question is open land, it has been said that the classic way of establishing exclusive occupation is to have the land fenced off.  However, this is not essential in every case.  In the absence of any physical barriers set up to exclude others from entering the land (which would include natural barriers having the same effect), the squatter must show that steps were taken to exclude others from entering the land in order to establish factual possession.  The exclusion of other persons is also directly relevant to the requisite intention to possess.  The objective act of possession should be clear and unequivocal so as to constitute a sufficient manifestation of the intention.  See Gotland Enterprises Ltd v Kwok Chi Yau CACV 260/2014, 19 January 2016, paras 32, 36 to 41; Winpo Development Ltd v Wong Kar Fu HCA 3541/1993, 26 May 2017, paras 9 to 10 (on natural barriers).

The yellow area

147.  The documentary evidence in support of the use of the yellow area comprise the photographs allegedly taken of the grass field (in the third area) in 1968 and invoices apparently relating to some construction works in 1977 and 1978.  Mr Shum points out that the photographs were undated and there are no distinctive features to show where the photographs were taken and whether the location was even within the monastery.  As to the invoices, Mr Shum points out that they were dated 1977 and 1978 and do not go to support the 1^st defendant’s case that the third area was constructed latest by the mid-1960s.

148.  There is force in Mr Shum’s submissions.  In my view, the above documentary evidence at best provides only tenuous support to the 1^st defendant’s case that the third area was used as a playing field and garden latest by the mid-1960s.

149.  On the other hand, there is agreed survey evidence showing that there was a land platform extending to the edge of the yellow area in 1963.  I find that as fact.  That is consistent with the 1^st defendant’s factual case.  However, the burden is on the 1^st defendant to show that there had been continuous occupation for at least 20 years.  The issue is whether this piece of survey evidence provides a sufficient evidential basis for the court to conclude, as suggested by Mr Ng, that the land platform had remained in place in the yellow area since 1963 (and up to about 2004). 

150.  It is well established that at law there is no presumption of continued possession in favour of the squatter.  Whether possession, once begun, continued unbroken for 20 years is a question of fact to be established by evidence: On Yip Property Development Co Ltd v Kwok Tai Kuen Alan HCMP 3192/2013, 15 April 2014, paras 8 to 9.

151.  Mr Ng’s reasoning is set out in para 102 above. His view is that unless there are other positive indications to the contrary, it can be assumed that the land platform had remained in place in the yellow area.  In a similar vein, Mr Li submits that there is no suggestion that the land platform identified in 1963 had been destroyed or otherwise ceased to exist.  Mr Ng’s assumption and Mr Li’s submission both seem to go contrary to the principle that there is no presumption of continued possession in the context of adverse possession.

152.  The evidence before the court is that the land platform was seen in 1963 but was not seen again in the 40 years which followed (ie up to 2003).  Is this because the land platform had ceased to exist at some point and that is why it was never seen again after 1963?  Or is it the case that the land platform had remained there all along but had been obscured by overhanging trees and vegetation in those 40 years?

153.  Mr Shum submits that given that it cannot be identified in the 40 years after 1963, it is more probable that the land platform became non-existent after that year.  Furthermore, had it continued to be in existence in the yellow area, there should have been some signs of human activity.  But for most part of the 40 years, the area was largely covered in vegetation. 

154.  I agree with Mr Shum’s submission.  40 years is a long time.  The burden is on the 1^st defendant to show continued occupation (for at least 20 years).  In light of the fact that the land platform cannot be seen in the yellow area in the 40 years after 1963, the 1^st defendant has failed to discharge the evidential burden. 

155.  The 1^st defendant relies on the continued existence of (part of) the land platform in the yellow area to establish factual possession.  It has failed to make out that factual case.  It follows that factual possession is not made out.  The adverse possession claim in respect of the yellow area fails for that reason.  It is therefore unnecessary to consider the issue of whether the land platform amounted to factual possession and whether there was an intention to possess.

The pink area

156.  As regards the pink area, there is simply no documentary evidence to show that at any time during the period from 1956 to 2004, it was a small garden where fruit trees were grown.  No photographs have been produced.  The agreed survey evidence is that the area was covered in trees or vegetation between 1956 and 2005.  Having reviewed the aerial photographs myself, I share the observation of Ms Leung that the area was covered with wild vegetation during that period.  Hence the allegation that fruit trees were grown in the pink area is a bare allegation with no documentary evidence in support.  And I reject that allegation.

157.  The 1^st defendant relies on the growing of fruit trees in the pink area to establish factual possession.  It has failed to make out that factual case.  It follows that factual possession is not made out.  The adverse possession claim in respect of the pink area fails for that reason.  It is therefore unnecessary to consider the issue of whether the act of growing fruit trees was sufficient to establish exclusive occupation and whether there was an intention to possess. 

The green area

158.  The agreed survey evidence is that from 1956 to 1978, the green area was covered in trees or vegetation and no structure or activity could be identified.  Accordingly, the 1^st defendant’s case that not later than the mid-1960s, a well was drilled into the land in the green area is not supported by the survey evidence and remains to be a bare assertion. 

159.  There is documentary evidence showing that there was a well at some point before 1982: see the minutes of meetings held in that year making a reference to an existing well (“原有水井”).  These minutes also support the allegation that a pump was later installed for the well. 

160.  Furthermore, the agreed survey evidence is that a structure was identified in 1980 and also in 1998 in the green area. 

161.  Based on the above evidence, the 1^st defendant has failed to make out its case that the well existed in the green area since the mid-1960s.  However, I find that the alleged well existed at least from 1980 to 1982, and also in 1998.  The next issue is whether such documentary evidence provides a sufficient evidential basis for the court to further conclude, as suggested by Mr Ng, that the well has remained in existence since 1980. 

162.  Same as the analysis in respect of the yellow area, there is no presumption of continued possession in favour of the 1^st defendant in respect of the well.

163.  Mr Ng’s reasoning is set out in para 109 above. He states that after 1980, the structure in the green area was obscured by vegetation between 1981 and 2003, save that it could be intermittently seen in 1998.  In a similar vein, Mr Li submits that there is no suggestion that the well or the pump was destroyed during the years when no structure could be seen in the aerial photographs.  Mr Ng seems to have made an assumption that the structure was obscured by vegetation but that is the very question which he should answer, with sound reasons and not with an assumption.  Like the yellow area, I find Mr Li’s submission to be contrary to the principle that there is no presumption of continued possession.

164.  The evidence before the court is that the structure was seen in 1980 and was next seen in 1998.  There was an intervening period of 18 years during which it could not be seen again.  Is this because the structure had ceased to exist at some point? Or is it the case that it had remained there all along but had been obscured by vegetation in those 18 years?

165.  Mr Shum submits that it is illogical to infer from one single observation of a structure in 1998 in the approximate location that the same structure had remained for 18 years since 1980.  He further says that it is more probable that the structure observed in 1980 was removed or demolished and did not exist for 18 years. 

166.  I agree with Mr Shum’s submission.  It is true that the green area is a small area.  Hence, the chance of any structure there being obscured by vegetation in aerial photographs is more likely than in the case of the yellow area.  Nevertheless, 18 years is still a long period of time.  There is plainly a likelihood that the structure was not seen because it was not there.  The burden is on the 1^st defendant to show continued occupation (for at least 20 years).  It has failed to discharge that burden on the strength of the evidence now before the court. 

167.  The 1^st defendant relies on the continued existence of the well (and later, the pump) in the green area to establish factual possession.  It has failed to make out that factual case.  It follows that factual possession is not made out.  The adverse possession claim in respect of the green area fails for that reason.  It is therefore unnecessary to consider the issue of whether the well and the pump amounted to factual possession and whether there was an intention to possess.

The blue area

168.  There is no documentary evidence to corroborate the 1^st defendant’s case that the blue area was used for access from the yellow area to the green area and the septic tank located further to the east for the period prior to the 2006 construction works.  For instance, there is no photograph showing that the alleged steps were built or the area was paved with cement.

169.  The agreed survey evidence is that the blue area was covered with vegetation from 1956 to 2005 and no structure was identified during the same period.  It means that there is no objective evidence of any activity being carried out at all in the blue area during that long period of time. Accordingly, the 1^st defendant’s case that not later than the mid-1960s, the blue area was levelled and reinforced with cement is not supported by the survey evidence and remains to be a bare assertion.  All that Mr Li can say is that it is only natural and inherently plausible that Law Snr would also level the fourth area as part of the extensive levelling works carried out on the slope after the monastery was established.  This is speculative and the argument does not amount to any clear or cogent evidence in support of the alleged use of the blue area.

170.  Furthermore, as found above, the 1^st defendant has failed to establish the continued occupation of the yellow area and the green area.  (Only intermittent occupation is found to have taken place.)  This must seriously undermine its factual case on the blue area, which is that it was used for access between the yellow area and the green area.

171.  Accordingly, the 1^st defendant has failed to come up to proof as regards the use of the blue area.  It follows that factual possession is not made out.  The adverse possession claim in respect of the blue area fails for that reason.  It is therefore unnecessary to consider the issue of whether the levelling and paving of the blue area, if proved, amounted to factual possession, and whether there was an intention to possess.

Answer to Issue 2

172.  I therefore answer Issue 2 in the negative – the 1^st defendant has failed to establish adverse possession in respect of the four coloured areas.  This is because, in each case, it has failed to prove the structures or the activities which it alleges to have been in existence or have been taking place prior to the 2006 construction works had in fact existed or had in fact taken place.

ISSUE 3 – PROPRIETARY ESTOPPEL

173.  The legal principles governing proprietary estoppel are not in dispute.

Legal principles

174.  The requirements of equity to recognise and give relief based on proprietary estoppel are: (1) a representation or assurance made to the claimant, (2) reliance on the representation or assurance by the claimant, and (3) detriment to the claimant in the consequence of that reliance.  The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the doctrine.  In the end, the court must look at the matter in the round.  There is a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances: Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116, [2021] HKCFA 19, paras 23 to 24.

175.  The “standing by” type of proprietary estoppel arises where a reasonable man would expect the person against whom the estoppel is raised, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations.  A duty to speak, such as to found an estoppel on silence, will arise in circumstances where a person, having a title or right to property of any kind, perceives that another person is innocently, and ignorant, conducting himself with reference to the property in a manner inconsistent with such right: see, eg, Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985, para 8.2.

176.  It is for the 1^st defendant to make out the alleged mistaken belief and the alleged knowledge of the plaintiff of such mistaken belief.  In my view, the 1^st defendant has failed to make out both elements.

The 1^st defendant’s mistaken belief

177.  On the 1^st defendant’s case, its mistaken belief that it was entitled to use the Occupied Areas is “inherited” from the same mistaken belief held by Tong Snr.  As pleaded, Tong Snr held that belief, “having regard to” the founders’ acquisition of the four adjoining lots and their continuous occupation of the Occupied Areas for a significant period of time after that. 

178.  Whether Tong Snr held the mistaken belief or not depends on his state of mind.  And the question is whether an inference to that effect can be drawn based on the two pleaded matters.  I have difficulty in drawing that inference.  The founders might have used the Occupied Areas because they thought they were entitled to do so.  But at the same time it is equally possible that they had done so without addressing their minds as to whether they had such a right.  It is also possible that they did not care at all whether they had the right or not.

179.  It is for the 1^st defendant to make out the case of mistaken belief.  The two pleaded matters are simply equivocal as to Tong Snr’s state of mind.  In any event, the second pleaded matter is not made out evidentially, as I have found above that the founders had made use of the yellow area and the green area only and had done so merely intermittently prior to the 2006 construction works. 

180.  In oral evidence, Tong Wai Lop said that Tong Snr had given indication to him that they could use the land from the north and all the way up to the natural stream: see para 41 above.  I am of the view that this piece of evidence is not of much probative value when it comes to determining the state of mind of Tong Snr.  There is no elaboration on the circumstances in which the indication was made, eg, when and why Tong Snr would say this to his son.  Assuming that Tong Snr had indeed said so, his meaning is equivocal as to whether he had said so by reason of his mistaken belief or otherwise.

181.  I therefore find that the 1^st defendant has failed to make out the mistaken belief, as alleged.  The proprietary estoppel claim fails for that reason.

The plaintiff’s knowledge

182.  In addition, I also find that the 1^st defendant has failed to make out its case that the plaintiff had knowledge of the mistaken belief (even if proved), whether actual or constructive.

183.  The timeframe to consider is from 1978 (when the plaintiff acquired Lot 472B) to about 2011 (when the plaintiff complained to the 1^st defendant about the trespass in writing).

184.  As to actual knowledge, Lo Wing Tak’s evidence, which I have accepted, is to the effect that the plaintiff complained about the trespass in 2011, according to the company records.  There is no evidence that the plaintiff knew about it before that time.  Hence, I find that there was no actual knowledge on the part of the plaintiff of any mistaken belief held by the 1^st defendant from 1978 to about 2011.

185.  As to constructive knowledge, as to the period from 1978 to 2004, I have found that there were only structures erected in the yellow area and the green area intermittently.  As such, this does not give rise to any constructive knowledge of the works on the plaintiff’s part.

186.  As regards the 2006 construction works, Mr Li emphasises that the plaintiff has all along known the correct location of Lot 472B since the acquisition, as confirmed by Lo Wing Tak in his cross-examination.  The 2006 construction works took place over a time span of about nine months and the scale of the works was massive.  Hence, with reasonable diligence, the plaintiff must be taken to have been aware of the works.  Yet, it stood by without making any complaint.  It has been said that a legal owner is expected to keep an eye on his land and cannot turn a blind eye to the obvious.  He cannot ignore open, exclusive, obvious and long-term occupation, and on appropriate facts, it can be inferred that the owner is aware of, or ought to have been aware of, the occupation by the squatter: Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Ltd [2020] HKCFI 1501, paras 40 to 41.

187.  When considering whether to fix a legal owner with constructive knowledge of what is going on in his land and the squatter’s state of mind, I bear in mind that the court’s ultimate task is to determine whether the overall conduct of the legal owner can be said to be unconscionable.

188.  In the present case, as said a number of times above, the Occupied Areas are located at a corner of Lot 472B and form only a small part of the lot.  The 2006 construction works were undertaken in that corner.  It is true that the works were of a large scale.  But they were carried out mainly in the adjoining lands not owned by the plaintiff.  They were not carried out in a large part of Lot 472B.  Lo Wing Tak’s evidence is that due to the sheer size of Lot 472B and the presence of dense vegetation and trees in the lot, it would be difficult to find out the 1^st defendant’s trespassing activity.  I have found what Lo said to be reasonable.  The works carried out in the Occupied Areas cannot be said to be obvious to the plaintiff as legal owner.  In the circumstances, I decline to fix the plaintiff with constructive knowledge of the works.

189.  I therefore find that the 1^st defendant has failed to make out the plaintiff’s knowledge, as alleged.  The proprietary estoppel claim fails also for that reason.

Answer to Issue 3

190.  I therefore answer Issue 3 in the negative – the plaintiff is not estopped from asserting its right as owner against the 1^st defendant in respect of the Occupied Areas. 

191.  Furthermore, as both defences of the 1^st defendant fail, I hold that it should be held liable for trespassing the yellow area, the pink area and the green area since about 2006.  I now turn to consider the appropriate reliefs to be granted.

ISSUE 4 – RELIEFS

192.  The main dispute regarding reliefs concerns the mandatory injunction to demolish the Structures and reinstate the Occupied Areas.

193.  The legal principles governing how the court should exercise its discretion whether to grant an injunction in a trespass claim is not in dispute.

Legal principles

194.  As legal owner of the land, the plaintiff is prima facie entitled to an injunction to restrain trespass.  The relief will be denied only if special circumstances exist, which may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to the land is small and the grant of an injunction would cause disproportionate hardship to the defendant.  However, damage suffered is not a prerequisite to the grant of an injunction in such a case, nor is the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions.  In case concerning trespass to land, the court is concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished: Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85, para 38, citing Shelfer v City of London Electric Lighting Co (No 1) [1895] 1 Ch 287. 

195.  In the present case, the burden is therefore on the 1^st defendant to show that special circumstances exist such that no mandatory injunction should be granted, notwithstanding that it has been trespassing the land of the plaintiff by the erection of the Structures there.

The 1^st defendant’s contention

196.  The 1^st defendant contends that it would be oppressive and disproportionate to require it to demolish the Structures and reinstate the Occupied Areas.

197.  First, the demolition and reinstatement works would potentially affect the stability of the natural slope and the monastery. Second, it would disrupt the 1^st defendant’s use of its own land and the continuing operation of the monastery.  Third, it is most unlikely that any use could be made of the Occupied Areas, as they comprise a relatively small area of only about 185 sq m and the area is situated on a steep slope with a graveyard to its north-west.  Further its proximity to the monastery would obstruct it from being utilised.  Fourth, the demolition and reinstatement works is estimated to cost over $4 million, and that is disproportionate to the very limited value of the Occupied Areas.

198.  In reply, the plaintiff says that the retaining wall is a massive structure.  It is about 4.1m high.  It runs around the outer boundary of the monastery and part of it is within the yellow area.  It was built to enable the slope behind it to be turned into a platform (ie the raised ground) by filling soil in the space between the retaining wall and the slope. It is common ground that the retaining wall is an unauthorised building work (“UBW”).  No approval had been obtained for the construction plans from the Building Authority.  As such, the plaintiff contends that without any certification on its safety, the retaining wall poses threats to the lives and safety of users of the land and creates potential personal injury and other legal liabilities to the plaintiff as land owner.  It should therefore be demolished.

199.  The 1^st defendant’s contention applies to all the Structures, namely the retaining wall and the raised ground in the yellow area, the temporary structures in the pink area and the well partly located in the green area.  The latter two structures are much smaller in size and scale than the former structure.  As a matter of common sense, it is plain that demolishing them would not affect the stability of the slope or affect the operation of the monastery and the works involved would not be costly.  Hence, the 1^st defendant’s argument mainly concerns the retaining wall and the raised ground in the yellow area.  I shall therefore focus on this in the following discussion.

200.  Two issues arise.  First, are the retaining wall and the raised ground safe?  Second, would demolition of these structures affect the structural stability of the monastery and the slope?  In my view, the answers would materially weigh on how the court should exercise its discretion on the issue of injunction.

Structural stability and safety

201.  There is a dispute between the parties as to who bears the burden of proof on the issue of safety of the retaining wall.  It is clear to me that the burden is on the 1^st defendant to show that the retaining wall is safe.  The burden is not on the plaintiff to show that it is unsafe.

202.  The 1^st defendant has been found liable for trespassing the plaintiff’s land by erecting, among other things, the retaining wall in the yellow area.  It seems to me to run counter to the notion of justice if the plaintiff needs to further show that the structure is unsafe before it can seek injunctive relief to remove the trespass. 

203.  Furthermore, in this case, the retaining wall is an UBW.  While that does not in itself mean that it is unsafe, there is plainly a legitimate concern that it may not be safe.  In other words, it is simply not known whether it is safe or not.  There is no evidence at all on who carried out the works, how they were carried out, whether the building requirements were complied with, and whether maintenance has been properly done since.  No records whatsoever have been produced by the 1^st defendant to shed light on these issues.  No construction drawings or plans or design calculations have been disclosed by the 1^st defendant in this action.  The retaining wall is a massive structure.  In the circumstances, the plaintiff is justified in saying that it poses safety risks.  It is incumbent on the 1^st defendant to show that the structure is safe if it maintains the position that the structure should not be demolished.

204.  There are two rounds of expert reports filed on the safety issue.

The first round of expert evidence

205.  I have to say that I am not impressed by the first report of Dr Yeung. 

206.  In that report, Dr Yeung concluded that the retaining wall is “safe and stable according to professional engineering/geotechnical standard”.  In reaching his conclusion, however, he had not conducted any investigation to ascertain the size and dimension of the retaining wall.  Nor had he done any calculations to determine the level of safety of the wall, which is expressed in numerical figures known as “the factors of safety”.  Instead, his opinions were based solely on (1) observations and (2) engineering performance.

207.  In his first report, Dr Yeung said:

“As part of my technical assessment, I visited the Site twice. I consider the actual engineering performance of the Works as observed on site is far more important than that indicated by theoretical analyses and design calculations.”

208.  In essence, he was satisfied with the safety of the retaining wall without the need to do any test because (1) he did not observe any apparent defects on the wall (eg, significant cracks, deflection, deformation, or damage) during his site visits, and (2) the wall had endured numerous bad weather situations, including tropical cyclones, “red” and “black” rainstorms and landslip warnings which affected Hong Kong for a period of 13 years, ie from 2006 (when the wall was constructed) to 2019 (the date of Dr Yeung’s first report) and had remained intact.

209.  In his first report, as regards the retaining wall, he acknowledged that he did not have the design calculations but he could “perform [his] technical analyses on the safety and stability of the Retaining Wall on the basis of [his] site observations and [his] geotechnical engineering experience”.  He concluded:

“In summary, all the field observations on the condition of the Retaining Wall reveal that the Retaining Wall is structurally sound and performing its intended functions satisfactorily. Therefore, I consider the Retaining Wall structurally safe and stable.”

210.  As regards the raised ground, he reached the same conclusion by applying the same reasoning, notwithstanding the lack of any construction records.  He said:

“125. The delivery records of the fill materials and compaction records of the Raised Ground are not available for my scrutiny at this stage.

126. However, the safety and stability of the Raised Ground can be assessed by its engineering performance throughout its service life so far.

127. It can be observed that the Raised Ground is paved by granite tiles arranged in regular patterns. No localized depression or cracking of granite tiles was observed after the Raised Ground has been used for some thirteen (13) years, indicating that the fill materials underneath were well compacted, and that there are no voids developed in the subsurface or excessive localized surface depressions.

  [Paras 128 to 131 are not reproduced here.  They refer to the numerous tropical cyclones, “red” and “black” rainstorms and landslips which affected Hong Kong from 2006 to 2013.]

132.   I consider the Raised Ground structurally safe and stable.”

211.  In the first joint report, Dr Yeung reiterated the reliance he placed on his observations and the actual engineering performance.  He stated:

“3. The Works have been in existence for more than a decade. It can be observed that they are still performing their intended engineering functions very well …

4.     The observational method that I adopted to evaluate the engineering performance of the Retaining Wall is a well-established method in geotechnical engineering to evaluate the performance of geotechnical engineering facilities during and after construction …”

212.  By contrast, Dr Lau stressed in his first report that the only way to ascertain the safety and stability of the retaining wall is to check the design calculations and drawings that are kept at the record office of the Buildings Department.

213.  However, Dr Lau was unable to retrieve any records from the record office.  It means that it was built without the prior approval of the Building Authority.  Furthermore, because of the geotechnical nature, the data relating to the retaining wall should have been sent to the Geotechnical Engineering Office (“GEO”) for checking.  But no records could be retrieved from the GEO.  In Hong Kong, the construction of retaining wall is under strict scrutiny by the Building Authority and the GEO at both the design stage and the construction stage.

214.  In the absence of any design calculations and drawings and without a proper geotechnical investigation, Dr Lau opined that no professional engineers should certify the retaining wall as safe.

215.  In the joint report, Dr Lau outlined the investigation which should be done in this case in order to calculate the factors of safety.

“The acceptable method of investigation is to carry out geotechnical investigation to find out the type of soils behind the retaining wall, their soil strengths, the geometry and thickness of the retaining wall using methods stated in Geoguide 2, Guide to Site Investigation and the Geotechnical Manual for Slopes. The acceptable method of computation is to calculate the factors of safety in the retaining wall using methods stated in Geoguide 1, Guide to Retaining Wall Design and the Code of Practice for Structural Use of Concrete. These are official documents published by the Geotechnical Engineering Office and the Buildings Department to guide the professionals in investigation and design of retaining walls.”

216.  If the retaining wall is a cantilever retaining wall, the most important information on its stability are (1) the types and strengths of soils behind the retaining wall, (2) the groundwater levels behind the retaining wall, (3) the width and thickness of the base of the retaining wall, and (4) the thickness of the stem of the retaining wall.  To gather these information, the retaining wall would have to be opened up.  Otherwise one could not calculate the factors of safety.  Dr Lau pointed out that Dr Yeung had not obtained any of the above information in arriving at his opinion.

217.  In my view, it is plain that in the first round of expert evidence, Dr Lau’s opinion should be preferred to Dr Yeung’s.

218.  Dr Lau dealt with the issue of how the stability of the retaining wall should be determined in a clear, coherent and methodical manner.  He concluded that without opening up the retaining wall and doing the investigations as outlined by him, the factors of safety could not be determined, and hence the retaining wall could not be certified as safe.  The reasoning is logical and sound.

219.  On the other hand, Dr Yeung solely relied on observations and actual performance to determine the structural safety of the retaining wall.  This approach does not appear to me to be scientifically robust at all.  While I am prepared to accept that outward appearances and actual performance are factors that should be taken into account, I find it difficult to accept that these factors alone can definitively resolve the safety issue.  But that is exactly how Dr Yeung tackled the issue in his first report.  He seemed to have ignored the entire regulatory regime in Hong Kong governing geotechnical structures.  It cannot be the right approach.

220.  For these reasons, I find that given that there was no prior approval for the construction of the retaining wall by the Building Authority, one could only properly opine on its structural safety by carrying out the investigations outlined by Dr Lau and calculating the factors of safety based on the results of such investigations.  In the first round of expert evidence, Dr Yeung had not done any investigation.  Nor had he calculated the factors of safety.  His conclusion that the retaining wall is safe and stable, drawn solely on the basis of his observations and the historical performance of the wall, should be rejected.

The second round of expert evidence

221.  In the second round of expert evidence, Dr Yeung carried out some tests on the retaining wall in order to obtain its construction details.  Based on the results of these tests, he conducted a stability analysis and calculated the factors of safety.  His calculations indicated that the factors of safety against sliding, overturning, and bearing capacity failure are 1.72, 3.18 and 3.04, respectively.  He then compared these figures with the corresponding recommended figures in the Geotechnical Manual for Slopes (GEO 1984) published by the GEO.  He concluded that the requirements on factors of safety of the retaining wall met the requirements. 

222.  His conclusion read:

“The results of my stability analysis of the Retaining Wall demonstrate that the Retaining Wall can meet the requirements on factors of safety against sliding, overturning and bearing capacity failure for new retaining walls as stipulated by the GEO of the CEDD of the HKSAR Government, not to mention the more lenient requirements for existing walls.”

223.  In response, Dr Lau considered that the investigation done by Dr Yeung was unsatisfactory and his design calculations incorrect.  According to Dr Lau, some of the important construction details of the retaining wall were not measured by Dr Yeung.  Dr Lau referred to these missing details or data as the “missing parameters”.  Because of the missing parameters, the subsequent calculations done by Dr Yeung was inconclusive in proving the stability of the retaining wall.

224.  I accept Dr Lau’s opinion.  It is apparent to me that there were indeed missing parameters in Dr Yeung’s calculations.  Some of these missing parameters were crucial in the calculation of the factors of safety.  As a result, I cannot regard Dr Yeung’s calculations as reliable.  In this judgment, I do not propose to discuss all the missing parameters listed out by Dr Lau in his report.  It would be sufficient for me to highlight two of them, which I consider to be material in the calculations.  To put the two parameters into proper context, I would first give a very brief introduction of the structure of a retaining wall in general, which should be common ground.

225.  An L-shaped cantilever reinforced concrete retaining wall comprises a stem (the vertical part) and a base slab (the horizontal part).  The stem has two faces, which are the front and the back of the wall.  The front of the wall is the side facing outwards whereas the back of the wall faces the soil which was filled into the space between the wall and the slope.  The back of the wall is also called the tension side as it is this side of the wall, as opposed to the front, which resists the bending stresses exerted by the soil on the retaining wall.  Inside the stem, there should be two layers of steel reinforcement bars, located at both the front and the back of the wall.

226.  The first missing parameter which I wish to discuss is the dimension of the base of the retaining wall.

227.  While Dr Yeung was able to take measurement of the wall stem, he did not conduct test to measure the width and thickness of the base slab.  He explained that that was “for safety reasons”.  Instead, he came up with the figure for what he considered to be the minimum width and thickness of the base based on assumptions and deductions.  I quote the relevant parts in his report:

“[47(4)] The minimum width of the base slab of the Retaining Wall is 2 m from the exposed face of the stem of the Retaining Wall. It was not possible to perform more probe tests farther from the stem of the Retaining Wall for safety reasons. Therefore, the existence of any further width of the base slab of the Retaining Wall, which I consider very likely, cannot be confirmed by field measurement.

…

68. The bending moment induced by the forces exerted on the stem of the Retaining Wall by the retained soil and/or groundwater is transmitted to the base slab to maintain equilibrium of the Retaining wall. The bending moment in the stem is the largest at the toe, resulting in the maximum thickness of the stem at the toe, i.e. 500 mm. For structural equilibrium, the thickness of the base slab cannot be less than that of the stem. In the design of cantilever retaining wall, the thickness of the base slab is always equal to the maximum thickness of the stem at the toe to optimize the use of construction materials.” (underline added)

228.  In response to that, Dr Lau’s opinion was that without knowing the width and thickness of the base, Dr Yeung could not carry out any meaningful stability checks for the retaining wall.

229.  The dimension of the base is plainly an important parameter in the calculations and in determining the safety of the retaining wall.  This is Dr Lau’s opinion.  And, in my view, it must be right as a matter of common sense.  In fact, Dr Yeung accepted in cross-examination that the base is an important component of the retaining wall. 

230.  Nevertheless, Dr Yeung had come up with the dimension of the base not based on measurement, but by deduction.  It is clear from the above extract that he was assuming that the persons who designed and constructed the retaining wall would do so in accordance with industry standards: see the underlined words in para 227.  However, in cross-examination, Dr Yeung accepted that he had no information on whether the person who designed the wall was qualified and whether the person who constructed the wall executed the plans faithfully.  When queried on this, Dr Yeung reiterated the point which he made in his first report, namely that it is important to look at the actual performance of the wall when considering whether it is safe or not.

231.  The very question before the court is whether the retaining wall was designed and constructed in accordance with proper safety standards and the question is asked against the backdrop that no prior approval had been obtained from the Building Authority for the works.  This question cannot logically be answered by Dr Yeung assuming that to be the case.

232.  The second missing parameter which I wish to discuss is the reinforcement details at the tension face of the stem of the retaining wall.

233.  While Dr Yeung was able to ascertain the reinforcement details at the front of the retaining wall, he did not conduct any test to find out whether there was any reinforcement at the back of the wall.  Instead, he inferred that there was and that the configurations of the reinforcement at the back should be the same as those at the front.

234.  This is what he said in his report, at para 64:

“From the data obtained and the field observations made, it is reasonable to infer that the steel reinforcement bars at the buried face of the stem of the Retaining Wall are no less than those detected at the exposed face for the following reasons:

(1) As the Retaining Wall is a cantilever wall withstanding the force exerted upon it by the retained soil and/or groundwater, the exposed side of the wall is always under compression, and no steel reinforcement is required theoretically as concrete is an excellent material in resisting compression. However, even then, from the non-destructive and destructive testing conducted on the exposed face of the Retaining Wall, steel reinforcement was found.

(2) On the other hand, the buried side of the stem is constantly under tension as the Retained Wall is resisting the forces exerted on it by the retained soil and/or groundwater by cantilever action. As concrete is relatively weak in tension, steel reinforcement is always required.

(3) There is no technical reason to support an inference that the placement of steel reinforcement bars on the buried side (under tension) is less than that on the exposed side (under compression) of the stem of the Retaining Wall. In most constructions of cantilever retaining walls, the configurations of steel reinforcement bars on both faces of the wall are the same for simplicity of construction and quality control and assurance.” (underline added)

235.  In response, Dr Lau pointed out that Dr Yeung did not find out the reinforcement details at the back of the wall and that was needed for conducting the design checks:

“24. Likewise, since open-up inspections were carried out to inspect and measure the diameters and spacing of steel reinforcement bars inside the stem of the retaining wall, I agree to the diameters and spacing of reinforcement bars predicted by Mr. Chan’s non-destructive tests. I must point out that the results were restricted only to the reinforcement details at the front of the retaining wall stem. These reinforcements would not be used in the design check of the retaining walls. For the design check, Dr. Yeung needed the reinforcement details at the tension face or the back of the retaining wall. He did not have such information. In his design checks in Appendix II, he did not have any checks on the flexural bending of the retaining wall. This flexural bending check is requirement by BD/GEO for the approval of the design of the retaining wall.

…

28. (C) Not knowing the reinforcement details at the tension face (or back) of the stem of the retaining wall: - Mr. Chan and Dr. Yeung wrote extensively about the way they used the non-destructive tests to find the reinforcement details (diameters and spacing) inside the stem of the retaining wall. However, the reinforcement details were those located at the front (or wrong side) of the retaining wall. All engineers with some knowledge of retaining wall design knew that reinforcement at the front of the stem served no useful purpose in resisting bending stresses from the soil behind the retaining wall. It was only reinforcements at the back (the tension side) of the stem that were relied on to resist the earth pressures.

29. Dr. Yeung and Mr. Chan knew absolutely nothing about the reinforcement details at the back of the retaining wall. In fact, Dr. Yeung could not do any meaningful design calculations for the retaining wall without knowledge of the reinforcement details at the back face of the retaining wall. The fact was, Dr. Yeung did not do any design checks of the retaining wall against bending forces arising from earth and water pressures. This design check for bending is a standard design check for retaining wall submissions to the Buildings Department. Without these design checks, Dr. Yeung’s retaining wall submission would never be approved by BD/GEO.” (underline added)

236.  The existence of reinforcement at the back of the base is plainly an important parameter in the calculations as the reinforcement located at the back side is relied on to resist the earth pressures.  This is Dr Lau’s opinion.  That was accepted by Dr Yeung as well in his cross-examination. 

237.  Nevertheless, Dr Yeung had effectively inferred that there must be reinforcement at the back because there is no technical reason why it should not be the case.  Once again, he was assuming that the reinforcements of the retaining wall in question should have been done in the same way in which most constructions of retaining wall are done in the industry: see the underlined words in para 234 above.  When his assumption was challenged in cross-examination, he fell back on the opinion expressed in his first report that the actual performance of the retaining wall supported his view. 

238.  I repeat my observation made in respect of the first missing parameter in para 231 here.  There is no proper room for Dr Yeung to draw the inference as he did in his second report.

239.  In light of these missing parameters, I find that Dr Yeung has failed to come up with a proper stability analysis and the factors of safety which he arrived at cannot therefore be relied on to determine the safety of the retaining wall.

240.  In other words, the 1^st defendant has failed to show that the retaining wall in the yellow area is safe.

241.  As regards the issue of whether to demolish the Structures would affect the structural stability of the monastery and the slope, the experts have now agreed that the answer is no, provided that the demolition works are properly designed by qualified professionals, the plans are submitted to the Building Authority for approval, the approval is granted, and the demolition and remedial works are carried out and supervised by qualified professionals.

Discretion

242.  It is for the 1^st defendant to demonstrate that special circumstances exist such that the court should not compel it to remove the trespassing structures. 

243.  What we have here is a massive UBW standing on the plaintiff’s land.  Its structural safety is an unknown, as no construction plans and drawings have ever been made available by the 1^st defendant for checking and no prior approval had been obtained from the Building Authority.  The structure has not been demonstrated to be safe using acceptable standards and methods.  In my view, this is plainly a prominent factor which weighs heavily in favour of demolition.  The other factors relied on by the 1^st defendant, eg the costs involved, the relatively small size of the reinstated area and the alleged small economic value, simply pale into insignificance.  Damages are not an adequate remedy.  The 1^st defendant has failed to make out any special circumstance.

244.  In any event, Mr Shum submits, and I agree, that it is grossly inequitable to effectively order the plaintiff to be stuck with the 1^st defendant’s UBW with years to come, which would also have the effect of allowing the 1^st defendant to keep any benefit deriving from the trespassing structures.  I should also add that the erection of UBWs is in violation of the requirements under the Buildings Ordinance and is a serious matter.  In this action, the 1^st defendant had had a chance to demonstrate the safety of the wall in this trial, but had failed to do so despite that two rounds of expert evidence were allowed to be filed.  If the 1^st defendant is going to suffer any hardship by reason of having to demolish the Structures, it really is the author of its own misfortune.

Answer to Issue 4

245.  I therefore answer Issue 4 as follows – the court should exercise its discretion to grant a mandatory injunction to compel the 1^st defendant to demolish the Structures and reinstate the Occupied Areas.

246.  In addition, the plaintiff asks for nominal damages of $1,000 per year for six years before the issue of the writ and until judgment with interest.  I would so award.

ORDERS

247.  I make the following orders:

(1)     The 1^st defendant do deliver up vacant possession of the yellow area, the pink area and the green area to the plaintiff.

(2)     The 1^st defendant do forthwith demolish and/or remove the structures built or erected in those areas, including the retaining wall and the raised ground within the yellow area, the temporary structures in the pink area and the pumping equipment within the green area, and to reinstate those areas to the state and condition as they were immediately before the structures were built or erected.

(3)     There be liberty to apply.

(4)     The 1^st defendant do pay damages to the plaintiff at the rate of $1,000 per year from the date on which the writ was issued to the date of this judgment with interest at the rate of 1% above prime rate accruing on a yearly basis.

(5)     The counterclaim be dismissed.

248.  I make an order nisi that the 1^st defendant do pay the plaintiff’s costs of the action and the counterclaim, including all reserved costs, such costs to be taxed if not agreed, with a certificate for two counsel. 

Annex 1

Annex 2

Annex 3