UNI-CREATION INVESTMENTS LTD v. SECRETARY FOR JUSTICE

CACV 73/2017

[2018] HKCA 141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2017

(ON APPEAL FROM HCMP 2166/2015)

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J U D G M E N T

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Hon Cheung CJHC:

1.  This is the defendant’s appeal from the judgment of Deputy High Court Judge Burrell dated 28 February 2017 in a land matter.

The facts

2.  The facts may be briefly stated.  The plaintiff is the registered owner and government lessee, since 2007, of various parcels of land situated in the village of Nim Yuen in Tung Chung, Lantau Island.  In early 2012, the plaintiff applied to the District Lands Office to rebuild their houses on the land as New Territories Exempted Houses for residential use.  Eight such houses (ie three storeys each and approximately 700 sq ft per floor), built in fairly close proximity to each other, were accordingly constructed.  In 2013/2014, it was decided to put the houses to a columbarium use.  The columbarium went into business in 2015.  The houses provided a total of 32,690 niches.  Of those niches, 9,550 had been sold, and 81 niches of those sold were occupied as at 1 June 2015.

3.  The block government lease dated 18 March 1905 under which the land is held contains a rather common “offensive trade clause” which reads as follows:

“ the Lessee or any other person or persons shall not, nor will, during the continuance of this demise, use, exercise or follow, in or upon the said premises, or any part thereof, any noisy, noisome or offensive trade or business whatever ….”

4.  The government took the view that the operation of the columbarium on the land contravened the clause, and by an instrument of re‑entry dated 25 August 2015, the government “re‑entered” upon the land pursuant to sections 3 and 4 of the Government Rights (Re‑Entry and Vesting Remedies) Ordinance (Cap 126).  This led, eventually, to the commencement of the proceedings below by the plaintiff for declaratory relief regarding its use of the land as a columbarium in terms of the offensive trade clause, and other related relief.

5.  As mentioned, the columbarium is situated in Nim Yuen village.  Nim Yuen village used to be very sparsely populated because of its secluded location and remote access to the town at Ma Wan Chung where commercial activities were conducted.  In the early years, the villagers mainly relied on cultivation on their land nearby to make their living.  Gradually, the villagers moved out of the village, and the houses and farmlands there became abandoned.  By about 1980, all of the villagers left Nim Yuen village to move to Ma Wan Chung, other parts of Hong Kong or overseas for work or better living.

6.  By the time of the proceedings, all private lots in Nim Yuen village have been sold to “outsiders”, that is, the plaintiff and some related companies, as well as other companies.  There are no houses or inhabitants in Nim Yuen village apart from the columbarium on the land.

7.  One special feature of Nim Yuen village is that there are burial urns (“kam taps”) at the margin outside the east front of the village boundary.  They are situated at approximately 100 metres from the centre of the columbarium.  There are two clan graves within the village. They are respectively 56 metres and 102 metres from the centre of the columbarium.

8.  As regards the surrounding of Nim Yuen village, there are four villages within 500 metres from the columbarium. But it is common ground that of the four, only Lam Che, which is the nearest inhabited village about 160 metres away, is regarded as relevant for the purpose of these proceedings.  It is not entirely clear how many people live in Lam Che village.  It could be as few as five, as the deputy judge observed in paragraph 9 of his judgment, and “on any view it is a very small number” (ibid).

The judgment below

9.  The deputy judge tried the case on affidavit evidence only.  As mentioned, he found for the plaintiff.  He found that the use of the land as a columbarium did not infringe the offensive trade clause, a matter regarding which, it is common ground, the defendant bore the burden of proof.  The deputy judge focussed his attention on whether the columbarium use was “offensive”.  In that regard, he refused to adopt a narrow construction of the word by restricting it to purely physical sensations – that is, whether the use was offensive to the ear, or the nose or the eye.  He bore in mind that he was dealing with delicate issues surrounded by understandable sensitivities, namely, the treatment of human remains and the worshipping of one’s ancestors.  He quoted the meanings given to the word in various authorities, including this one from Earl of Pembroke and Montgomery v Warren [1896] 1 IR 76, 111:

“ … the word ‘offensive’ was introduced to reach what would be annoying and hurtful, not alone to the physical eye but to the mind’s eye, which would be annoying and hurtful not merely to the eye and the nose, but to the feelings and the mind of the occupiers of the houses in [the locality].”

10.  The deputy judge also cited a passage from Nussey v Provincial Bill Posting Company [1909] 1 Ch 734, 739:

“ Further, the word ‘offensive’ is, I think, to be construed relatively to the person contemplated as enjoying the benefit of the stipulation, that is to say, relative to such a person as would be the purchaser of such a plot upon such an estate as this estate is by the conditions and plan shewn to be”;

and identified, in paragraph 27 of his judgment, the matters that the defendant had to prove to establish a case of contravention of the offensive trade clause:

“There must be relevant credible evidence that given (i) the nature of the business, (ii) the locality of the business, (iii) the nature of its operation and (iv) its effect on the neighbourhood there are people in the locality who find the columbarium offensive. If there is such evidence the offence felt by such people must be genuine and reasonable.”

11.  The deputy judge then reviewed the evidence placed before him, including the fact that no less than eight private columbaria were in operation at various locations in Hong Kong with the government accepting, respectively, that their operations did not contravene similar offensive trade clauses in the relevant government leases, or permitting such use despite similar offensive trade clauses; the fact that columbarium operation was going to be governed and regulated by a Private Columbaria Bill that was expected to be enacted in March 2017 (the Bill has now become the Private Columbaria Ordinance, Cap 630); the supports for the operation of the columbaria on the land in question by various people connected to Nim Yuen village, Shek Lau Po village (another nearby village) or Tung Chung; as well as other evidence relied on by the plaintiff.  He also considered the evidence put forward by the defendant and summarised in Mr Ringo Lam’s affirmation, which the judge extracted in paragraph 41 of his judgment:

“ A number of complaints against the columbarium were received by the Government including (i) two via the 1823 call centre; (ii) one from 各界關注骨灰龕法案大聯盟Alliance for the Concern over Columbarium Policy; (iii) one issued by the village representative of 藍輋Lam Che for and on behalf of 東涌藍輋村發展及管理團體; and (iv) one from 東涌石榴埔村村公所 (enclosing signatures from 85 objectors) …. Moreover, one banner marked with ‘反對東涌稔園在稔園村經營違規骨灰龕場…’”

12.  In paragraph 44, the deputy judge detailed the criticisms that had been made of the defendant’s evidence:

“(i) The calls via the 1823 call centre are wholly without particulars and should attract no weight.

(ii) The ‘Alliance’ letter is unsigned and dated 27 May 2015. It does not constitute a complaint or opposition. It merely asks the District Lands Office and the Lands Department to ‘investigate’ inter alia, whether there is any ‘illegal development’ on the lots.

(iii) This is also an unsigned letter. It comes from the ‘Lam Che Village Development and Management Group’ and the ‘Lam Che Village Representative’. The plaintiff has adduced evidence that the former body does not exist as a legal registered entity and the latter individual is unknown. What is known is that Mr Kwan Wai On is the relevant Indigenous Village Representative and he has always supported the columbarium. Thus, as evidence of opinions from people whom the OTC is intended to benefit it is of little weight. The court accepts that the content of the letter illustrates genuine feelings of some people in Hong Kong. However for the reasons outlined the letter does not advance the defendant’s case.

(iv) This is a letter dated 15 June 2015 written by Mr Law Wai Hung on behalf of The Shek Lau Po Village Committee. The letter complains that the columbarium will ‘destroy our homeland’, ‘disturb our peace’, create ‘anxiety and fear’, ‘create nuisance’ and ‘affect safety’. ‌These are strong heartfelt words. ‌Strangely however, when the plaintiff’s first columbarium plans were being mooted, in 2010, the same Mr Law had given his support.

Taken in isolation the feelings expressed in the letter represent the high water mark of the defendant’s opposition. It is however a bridge too far to categorise it as persuasive evidence upon which the court could find, as a fact, that persons in the relevant location who are person intended to be benefited by the clause find it offensive, as defined above.

As to the form containing 85 signatures, apart from suspicions raised as to the authenticity of some of the signatures, the point is made that the signatories were objecting to an ‘illegal’ columbarium. It may be assumed that their opposition would either fall away or be considerably diluted if the columbarium were ‘legal’ which is the issue at the centre of these proceedings.

(v) The banner. Similar objections are made, with some force, with regard to the banner. First, there is no evidence as to who erected it or when. It is agreed that it is no longer standing. Secondly, it refers to an ‘illegal’ columbarium. Thirdly, it focuses on the issue of ‘feng shui’. ‌The court respects the strength and depth of feelings and belief held by many Hong Kong people over feng shui matters. However, whilst concerns over feng shui matters are anonymously asserted, there is no cogent evidence in support. I agree that feng shui as an issue is relevant but I can make no factual findings which might support the defendant’s case.

(vi) The defendant finally relies on the letter dated 11 February 2016 exhibited to Mr Ringo Lam’s 2^nd affirmation admitted de bene esse at the hearing.  ‌The weight which can properly be attached to it is affected by its lateness.  Moreover its author is unknown and purports to head a non‑existent organization.  It states that the villagers find the columbarium use as ‘offensive’ without saying why.  Most significantly, and in conclusion, none of the authors of any letter exhibited or signatories of petitions have come forward to give formal evidence.”

13.  The deputy judge concluded that the evidence adduced by the defendant was “weak”.  He nonetheless went ahead to deal with the next question, that is, whether the offence felt by those opposing was “reasonable”.  In doing so, he bore firmly in mind the common ground between the parties that the operation of a columbarium in Hong Kong is not offensive per se.  It all depends on the context.  In particular, it depends on various matters which he set out at the outset of his judgment (paragraph 4):

“(i) The specific characteristics of the plaintiff’s columbarium and mode of operation of the plaintiff’s columbarium;

(ii) The location and visibility of the plaintiff’s columbarium vis‑à‑vis the persons intended to be benefited;

(iii) Pre‑existing burial urns, kam taps and graves in and around Nim Yuen village;

(iv) The fact that other private columbaria set out in §§17 – 19 of the Statement of Agreed Facts are permitted to operate within their respective locality notwithstanding the existence of the Offensive Trade Clause in the relevant lease; and

(v) Future regulation of the plaintiff’s columbarium business under the licensing regime in the Private Columbaria Bill to be passed by the Legislative Council.”

14.  In paragraph 47 of his judgment, the deputy judge returned to the same theme that context is all important:

“As to what is ‘reasonable’, in a case of this nature, is likely to vary from one person to another. It must be an objective evaluation. Once again context is all important. The reasonableness or otherwise relates to the way in which this particular business in this particular locality is carried on. A trade could be inoffensive if properly managed but offensive if badly managed. It could be offensive in one location but inoffensive in another.”

15.  He then considered the locality of the columbarium.  He pointed out that it is located in a remote, secluded valley, and that it might only be visible if one stood on the roof of a school 600 metres away and from the upper floors of the flats in Yat Tung Estate 1,250 metres away.  He then bore in mind people’s sensitivities relating to spirits and the dead.  He also mentioned the possible traffic and environment effects brought to the area, as well as resentment, psychological discomfort and annoyance that could reasonably be expected from the villagers and others in the vicinity (as submitted by the defendant’s side).

16.  The deputy judge concluded that the objection, based on the defendant’s evidence that was considered to be “sorely wanting” or “weak”, was not reasonable.  He explained (paragraph 52):

“(i) The evidence of Mr Davison, already outlined, in which he refers, for comparative purposes, to 8 [other] columbaria being operated in Hong Kong.

(ii) From an objective stance it is difficult to understand why a local villager is willing to live near clan graves and kam taps housing exhumed human bones but not near an orderly storage of human ashes. Drawing a distinction between the remains of ancient villagers on the one hand and the remains of outsiders, on the other hand is also, in my judgment, unreasonable.

(iii) There can be no reasonable concern about traffic issues or a deterioration of the environment. ‌In fact, the defendant makes no criticism of the manner of operation of the columbarium. In any event, it will in due course be subject to a Government Licence.

(iv)  There is no evidence relating to the land values being affected.  In any event, all the Lots in Nim Yuen are taken up by the columbarium.  There are no more to be affected.”

17.  Having reached that conclusion, he found in favour of the plaintiff that the use of the land as a columbarium did not contravene the offensive trade clause.  He granted declaratory and other relief accordingly.

The government’s arguments on appeal

18.  Aggrieved by the deputy judge’s judgment, the defendant appealed.  Mr Johnny Mok SC, appearing for the defendant (in this appeal but not below), together with Ms Catrina Lam, did not dispute the deputy judge’s approach to the interpretation of the offensive trade clause.  He agreed that the word “offensive” should be given a wide meaning to include anything which causes reasonable discomfort or disquiet to persons intended to be benefited by the clause.  It is not limited to “smell, noise or sight”.  He accepted that the context is important in defining the word “offensive” and construing the clause as a whole.  He accepted that it is permissible in a case of the present nature to look beyond what might otherwise be regarded as legally admissible evidence, albeit with a measure of caution.  Counsel also agreed in his written submissions that the offensiveness of the trade or business should be construed relative to the person contemplated as enjoying the benefit of the stipulation.

19.  Mr Mok also accepted in his written submissions that in deciding whether an offensive trade or business is being conducted, the court must have regard to the nature of the business; the locality in which it is situated; the manner or nature of its operation; and its effect on the neighbourhood.  He agreed that in the present case, the relevant locality was Nim Yuen and Lam Che villages.  Counsel reminded the court that this is a rural area deeply entrenched in indigenous culture where traditional beliefs and practices continue, including feng shui, clan association and ancestral worship.

20.  But Mr Mok contended that the deputy judge erred in his approach to the assessment of the evidence on the offensive nature and effect of the columbarium and, in particular, wrongly concluded that the evidence on this issue was “sorely wanting” and “weak”.  Counsel submitted that the deputy judge should have concluded that, on the totality of the evidence, there was sufficient evidence to show that persons intended to be benefited by the offensive trade clause reasonably regarded the columbarium as offensive.

21.  In his detailed written submissions, Mr Mok argued that the deputy judge failed to appreciate the offensive effect of the columbarium arising from its scale and commercial nature on the rural village setting on which it is situated.  Counsel contended that it would clearly adversely affect the locality in terms of land value, the character of the relevant locality and the sense of discomfort that would be produced, and the potential disastrous effect on the local traffic condition.

22.  Building on those points, counsel therefore argued, particularly in the written submissions, that the deputy judge ought to have held, on the totality of the evidence, that there was sufficient evidence to show that persons intended to be benefited by the offensive trade clause regarded the columbarium as offensive and that such evidence was reasonable.  At the hearing of the appeal, Mr Mok, in particular, drew the court’s attention to a complaint letter to the District Lands Office, Islands, written by the villagers of Lam Che village dated 29 May 2015 complaining about the columbarium, another letter written by the village representative of Lam Che village as well as the village representative and villagers of the nearby Shek Lau Po village dated 11 February 2016 to the Town Planning Board again objecting to the columbarium as being offensive.  Mr Mok also said that in the letter of 6 February 2017 written by a villager of Lam Che village (Li Kei Lok), it was mentioned that there was a campaign by villagers to oppose the private columbarium although Mr Li himself changed his mind later and supported the columbarium.  Mr Mok submitted there was cogent evidence to support the defendant’s case that the operation of the columbarium was offensive.

23.  In his oral submission, Mr Mok took his argument one step further by submitting that in fact, the court should not only focus its attention on the neighbourhood and locality as they are now, but should look into the future, and particularly, the future potential use and development of the locality, such as New Territories Exempted Houses development.  Mr Mok argued that the offensive trade clause serves a town planning function, and given the long term of the block government lease, it is meant to perform that town planning function on a long term basis.  So, in determining whether a particular use is offensive, counsel argued, one must not restrict oneself to what happens on the ground now and ignore what may happen in future.

24.  As for the strength of the evidence presented before the court, Mr Mok emphasised at the hearing that in the local context, Hong Kong people are generally averse to living next door to the dead.  He referred us to a remark made by Lam VP in Regal Shining Ltd v Secretary for Justice [2016] 3 HKC 291, para 41 that “[t]he adverse impact to the neighbourhood due to the presence of a resting place for dead is beyond dispute”.  In effect, counsel came very close to, but nonetheless stopped short of, suggesting that a columbarium use is per se offensive.

25.  Mr Mok also argued that the deputy judge wrongly ruled that the evidence of offence as a whole was unreasonable and, in particular, erred in admitting or assessing the relevance or weight of the evidence adduced by the plaintiff to show that the columbarium use was a reasonable one.

26.  Mr Mok argued, particularly in his written submissions, that the fact that there are other columbaria operated in Hong Kong is neither here nor there as regards the question of whether the offence felt by people in relation to this columbarium in this location is genuine and reasonable.  The fact that residents in a different location may be unoffended by the operation of another columbarium can in no way negate the reasonableness of the feelings of the villagers within the relevant location who are offended by this particular columbarium.

27.  Counsel also argued that the deputy judge was wrong in not drawing a distinction between the remains of ancient villagers and the remains of outsiders kept in the columbarium.  Counsel argued that the existing kam taps and clan graves within the locality are part of the indigenous tradition of the area and involve only ancestral remains of the village clans; they offer no meaningful comparison to the columbarium, which involves potentially tens of thousands of deceased persons’ remains who were outsiders in relation to the village clans.

28.  Counsel also referred to traffic concerns and land value as being relevant matters in weighing up whether the feelings of those opposing were reasonable or not.  As regards the licensing requirements for the operation of the columbarium under the new Ordinance, counsel argued that the fact that operation of the columbarium required regulation under the Ordinance showed that the business was offensive, and how bad it would be if there were to be no regulation.

Appeals against findings of fact

29.  With respect, I am not with counsel on all his main points.

30.  Before turning to counsel’s arguments in greater detail, it is important to observe that essentially, this is an appeal against the deputy judge’s evaluation of evidence placed before the court and findings of fact.  This court’s approach to appeals against findings of fact is, it is hoped, well‑known to the profession.  In the very recent case by this court (differently constituted) of ZJW v SY, CACV 10/2017, 1 December 2017, Poon JA, giving the judgment of the court, reviewed and summarised the court’s approach to an appeal against findings of fact, including findings of fact based on evaluation of facts.  Relevantly, Poon JA dealt with the situation where the trial judge made findings entirely or almost entirely on undisputed documents, where no question of credibility of witnesses was involved.  In that type of scenario, this court has the same advantages as the judge did in terms of analysing the documents in its context, and therefore, in this respect, this court will be in the same position as the judge.  Nonetheless, there is an important difference between this court and the trial court, namely, the different roles they respectively play in relation to findings of fact.  Poon JA explained in paragraph 32(2) of his judgment:

“… However, it does not mean that on an appeal against such findings, the Court of Appeal would embark on a de novo exercise of fact-finding on its own : cf Biogen Inc v Medeva plc [1997] RPC 1, per Lord Hoffmann at p 45; quoted in Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, at [19]. The appellant still needs to show that the judge’s finding is plainly wrong : cf Pang Ketian Sally v Tam Yuk Hung Annie, CACV 147/2013, supra, per Cheung CJHC at [29] – [30].”

31.  As for an appeal against findings of fact based on an evaluation of facts, Poon JA explained the approach of this court as follows:

“33. In Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, Clarke LJ explained what findings based on evaluation of facts mean and what the corresponding appellate approach to appeals against such findings is, as follows :

‘[16]  Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred.  They involve an assessment of a number of different factors which have to be weighed against each other.  This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.’”

32.  In the following paragraph, Poon JA dealt with appeals against inferences drawn from facts.  He explained that an inference can be made from primary facts or after a process of evaluation.  If the former, this court approaches an inference in the same way as it approaches an appeal against a finding of primary fact.  If the latter, the court adopts the same approach as it adopts in relation to findings of fact based on an evaluation of the primary facts.

33.  In Biogen Inc v Medeva plc [1997] RPC 1, 45, Lord Hoffmann explained that whilst, as opposed to a finding of primary fact, particularly if founded upon an assessment of the credibility of witnesses, which is virtually unassailable on appeal, an appellate court would be more ready to differ from the trial judge’s evaluation of facts by reference to some legal standard such as negligence or obviousness (see Benmax v Austin Motor Co Ltd [1955] AC 370), where the application of such a legal standard involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.

34.  In short, where the appeal is essentially against the trial judge’s evaluation of the evidence placed before him, this court would be most slow to disturb his evaluation of evidence and findings of fact unless the evaluation was tainted by a misapprehension as to the facts; or that he took into account irrelevant matters; or that he failed to take into account relevant matters; or that the conclusion which the judge reached in his evaluation was outside the generous ambit within which a reasonable disagreement is possible.  And where the evaluation of evidence is by reference to a legal standard such as, like here, reasonableness, which involves no question of principle but is a matter of degree, this court would be reluctant and “cautious” in differing from the trial judge’s evaluation.

Present neighbourhood vs future development

35.  Turning now to the present case, so far as the approach to the interpretation of the offensive trade clause is concerned, there is really no dispute that the deputy judge’s approach, as outlined above, was correct.  On the question of whether a certain business or trade is offensive, where it is not suggested that the business or trade is per se offensive, the main focus must be on its effect on the relevant locality and neighbourhood.  In this regard, the neighbourhood as it is must be most relevant, as all the authorities cited to us show.  It does not, of course, mean that any future use of the neighbouring land has to be disregarded.  If, for instance, there is an immediate plan to develop the adjoining land or relevant locality, I do not think any of the authorities require the court to disregard it.  However, every case must turn on its own facts.  Where there is no definite plan of any substantial development of the neighbourhood, in determining the relative question of whether a particular use is offensive, one must focus on the present.  In the instant case, the evidence shows that Nim Yuen village is not inhibited.  All the indigenous villagers have moved out a long time ago.  All land there has been sold to private companies, including the plaintiff and its associated companies, or other “outsiders”.  There is no evidence of any immediate or future redevelopment plan of the village.  At the very least, the government bears the burden of proof and there was no such evidence before the deputy judge.  Rather, the evidence before him was as follows:

“45. The Defendant stated in Paragraph 23(i) of Lam’s Affidavit that the group of indigenous inhabitants can still apply to the Government for construction of their small houses on Government land within the village environs boundary of Nim Yuen Village or on the private land purchased from the outsiders. I crave leave to refer to Paragraph 20(c) of my 1^st Affirmation in this regard. As discussed therein, all of the private lots within the Nim Yuen Village are now owned by outsiders and it is unlikely that the indigenous inhabitants would purchase the land back from the outsiders for the purpose of erecting small houses.

46.  I also crave leave to refer to Paragraph 13 of the Affirmation of Chan Tat Wing filed on 19^th November 2015. As mentioned, the available Government land within the Nim Yuen Village is mostly located on steep slopes overgrown with trees and vegetation. Theoretically the Government can cut down the slope, trees and vegetation to make land available for the village type development.  Such process, however, will be very costly, time consuming and contrary to the government’s policy in preserving the ecology.  In fact, as revealed in the Draft OZP, the Government does not include such areas as the village type development.  Therefore, it is unlikely that the indigenous inhabitants or their descendants will be able to erect any small houses on the Government land within the Nim Yuen Village.”

(2^nd affidavit of Cheng Yung Hing dated 23 March 2016)

“Offensive” as a fluid, relative concept

36.  As regards the town planning element in an offensive trade clause, particularly against the backdrop of block government leases in the New Territories back in 1903 to 1905, there can be no dispute that such a clause does play a certain town planning function, particularly in the early days before the introduction of sophisticated town planning legislation.  However, it does not follow that one can therefore transpose indiscriminately what Anthony Chan J and this court (differently constituted) have said and observed in Regal Shining Ltd v Secretary for Justice [2014] 5 HKLRD 832, paras 60, 61 & 65 (CFI); [2016] 3 HKC 291, paras 40‑42 (CA), regarding a General Condition 15 which provides that “no grave shall be made on, nor shall any human remains be interred in, or deposited on the [land] …” into the present case.  There, the courts were dealing with a very specific restriction on land user in a 1953 government lease in a built‑up area (Kwai Chung).  Here, one is dealing with a much more general, fluid concept which is relative to the locality and neighbourhood.  Whilst the general observations by the courts in Regal Shining regarding people’s aversion to living in the vicinity of the dead are equally applicable to the present case, it does not follow that in relation to an offensive trade clause, one adopts an equally all‑or‑nothing, as opposed to a flexible, relative, approach.  There, the issue was whether human remains included ashes so that operating a columbarium inside a temple infringed the general condition.  Here, one is concerned with whether the operation of the columbarium is offensive to the people in the locality.  There, the issue admitted of only one right answer – right and correct all the time.  Here, the answer could well change with time, depending on first, how the columbarium is and will be operated, and secondly, how the nature or character of the locality is or will become.

37.  As the deputy judge rightly observed, in the present type of situation, a trade could be inoffensive if properly managed but offensive if badly managed.  It could be offensive in one location but inoffensive in another.  By the same token, a business may be inoffensive at one point of time, but when its mode of operation changes, or when the nature or character of the locality changes, or perhaps when the general social conditions and people’s attitude change, the same business may, subject to whatever defence (if any) there may be available under general law, become offensive in future.

38.  In the present case, therefore, given the actual situation on the ground and the lack of any definite plan of development of the locality in question (and the government bears the burden of proof), one must focus on the columbarium as it is currently operated in the context of the locality as it is.

Strength of evidence

39.  As regards the strength of the evidence, it must be borne in mind that first, as was accepted by then counsel appearing for the defendant before the deputy judge and accepted expressly by Mr Mok in this appeal, a columbarium use is not per se offensive.  Secondly, evaluation of evidence, as explained, is essentially a matter for the trial judge, which this court will not lightly interfere with.  Thirdly, the deputy judge did not say there was no evidence at all in support of the defendant’s case.  All he said was that the evidence was “weak” or “sorely wanting”.  In this regard, in particular, he had not forgotten the letters Mr Mok specifically referred us to at the hearing.  Indeed, in paragraphs 41 to 44 of his judgment (I have extracted some of them), he dealt with all the evidence adduced by the defendant, and there is no suggestion that he had missed out any evidence adduced in favour of the defendant.

40.  In fact, he has also considered the evidence adduced by the plaintiff in paragraphs 31 to 38 of his judgment. In particular, he bore in mind the supports for the columbarium that were adduced as evidence before the court.  In this regard, one must remember that the defendant bore the burden of proof, and it did not require, at trial, any of the deponents of the affidavit evidence adduced by the plaintiff to attend court to be cross‑examined.

41.  Given the above, and given in particular this court’s approach to a trial judge’s evaluation of evidence, there is simply no way one can fault the deputy judge’s conclusion that the defendant’s evidence on offence was weak.  The deputy judge bore in mind all the opposition letters adduced by the defendant.  But as was pointed out to us at the hearing, the defendant had singularly failed to procure even one of those objectors to make an affidavit to set out precisely his objection and explain why he objected to the columbarium as being offensive, particularly in light of the fact, which the deputy judge mentioned in his judgment, that there were pre‑existing ancestral clan graves as well as kam taps in the locality.  In this regard, I have not forgotten Hong Kong people’s general aversion to living near the dead.  However, when one looks at the photographs put in evidence in the present case, depicting these clan graves and kam taps, one cannot help getting the impression that with or without the columbarium, people living in the relevant locality are already living very much next door to the dead.  In fact, the presence of these clan graves and kam taps is quite prominent, whereas, as mentioned, the columbarium is highly invisible given the topography of the area and the fact that its external appearance is no different from any ordinary New Territories Exempted Houses.

42.  Again, relevant here is the manner of operation of the columbarium.  As mentioned, there are specific regulations regarding visiting by appointment, no burning of candles, incense etc, visits only by shuttle bus services, and the fact that the sale of niches were to be staggered over several years ahead.  In fact, there was no evidence of complaint regarding the actual operation of the columbarium since 2015, as opposed to the very fact that such a columbarium was to be constructed on the location.

Reasonableness of the offence felt

43.  As regards the reasonableness of the feelings of offence (the evidence on which was regarded as weak), again that is a question of evaluation of the evidence by the trial judge by reference to the standard of reasonableness.  As explained, this court adopts a cautious approach in interfering with the trial judge’s evaluation when the standard in question involves no question of principle but is only a matter of degree.  I have already extracted the reasons given by the deputy judge for concluding that the offence felt by those opposing was unreasonable.  I have outlined Mr Mok’s arguments against the deputy judge’s conclusion.  Given this court’s approach to evaluation of evidence, it is simply not relevant as to whether we agree with Mr Mok that there is a distinction between living next door to the human remains of one’s own ancestors or those who have died more than a century ago, and living next door to the remains of potentially thousands of deceased persons from outside.  But even here, it should be noted that Nim Yuen village has no resident, and that the clan graves and kam taps in the vicinity are not the remains of the ancestors of the villagers at Lam Che. Different people may have different feelings towards this sort of matter.  It was for the trial judge to evaluate the evidence by reference to the yardstick of reasonableness.  He took the view there was not much difference between living next door to the remains in the clan graves and kam taps and those kept in the columbarium.  This was one factor he took into account.  He was entitled to do so and I am not prepared to say that he was wrong, or so wrong that it justifies our intervention.

44.  As regards the other columbaria operated elsewhere, I am of the view that the deputy judge was entitled to take the non‑opposition by others to these other columbaria into account in assessing whether, objectively speaking, the feeling of offence here was reasonable.

45.  As regards what the courts have said in the Regal Shining case, so far as reasonableness is concerned, those observations must be read in the context of that case, that is, that case was concerned with a built up area in Kwai Chung, as opposed to the sparsely populated valley in this part of Lantau Island which we are concerned with.

46.  The deputy judge was quite entitled to take into account the way the columbarium was actually operated in terms of its effect on traffic and other related matters.  In particular, he was entitled to bear in mind that the operation was going to be regulated by legislation (as is now the case).  In this regard, it should be noted that section 18(2) of the Ordinance (Cap 630) empowers the Licensing Board to require the submission of a management plan, covering (as per section 97(2)) a number of matters:

“(a) the holding capacity for visitors and admission control;

(b) the traffic and public transport arrangement or management;

(c) crowd management;

(d) security management;

(e) manpower deployment on peak grave sweeping days or periods and other days or periods;

(f) a contingency plan in the event of fire or other emergency situations; and

(g) measures to ensure compliance with guidelines and codes of practice issued under sections 95 and 96.”

47.  These are highly relevant matters in terms of determining whether it was reasonable to find the operation of this particular columbarium at this particular locality to be offensive in terms of its effect on the locality.  The deputy judge has made his assessment, and I am not prepared to disturb his evaluation and conclusion.

48.  As regards the possible adverse effect on land value, there simply was no evidence adduced by the defendant, despite the fact that he bore the burden of proof.

Disposition

49.  For all these reasons, the deputy judge’s conclusion on both the strength of the evidence on offence as well as the reasonableness of the offence felt by those in the neighbourhood opposing the columbarium cannot be disturbed on appeal.  That being my conclusion, I would dismiss the appeal with costs (together with a certificate for two counsel).

Hon Kwan JA:

50.  I agree with the judgment of the Chief Judge.

Hon Ng J:

51.  I agree with the judgment of Cheung CJHC.

Hon Cheung CJHC:

52.  Accordingly, we dismiss this appeal and make the order as indicated in paragraph 49.