TAM YU MAN AND OTHERS v. CHEUNG SUET FONG, the executrix of the last Will of CHAN YUK, deceased

DCCJ 1990/2022

[2023] HKDC 1124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1990 OF 2022

——————————

——————————

——————————

DECISION

——————————

BACKGROUND

1.  This is the decision of the substantive hearing of the plaintiffs’ summons filed on 7 March 2023 for continuation of the order for injunction against the defendant granted on 6 March 2023 which ordered the defendant the following:

(1)  to remove the blockade placed on a small portion of Lot No 380 in Demarcation No 89 between the plaintiffs’ land and the public road, Fai King Road, which the plaintiffs referred as “the access road”; and

(2)  to restrain the defendant from obstructing or interfering the plaintiffs from using “the access road”.

2.  The plaintiffs have set out the following undisputed facts in the plaintiffs’ skeleton submission:

(1)  The current registered owner of Lot 380 is the defendant, the executrix of Chan Yuk who passed away on 16 July 2000. Chan Yuk purchased Lot 380 in 1972.

(2)  The defendant, through her representatives Jacky Chan and others, have placed the blockade at the entrance to the plaintiffs’ land on the small plot of land which the plaintiffs are now claiming to have a right of way.

(3)  An ex-parte injunction was granted on 6 March 2023 and it was continued until further order at the return date hearing on 10 March 2023.

3.  The plaintiffs’ case is mainly based on two grounds:

(1)  that they have obtained a right of way over “the access road” as a result of long use or necessity; and

(2)  a claim of possessory title over Lot 380 as a result of adverse possession.

4.  The defendant is opposing the plaintiffs’ summons on the following grounds:

(1)  The burden of the alleged easement has been substantially increased by the plaintiffs’ tenants through the operation of a large-scale factory on Lot 380.

(2)  The plaintiffs have failed to disclose:

(i)  the plaintiffs’ land is described in the schedule of crown leases as “uncultivated land” and zoned as “green belt land” by the Town Planning Department;

(ii)  there exists another entrance to Lot 380, ie, the so‑called the northern entrance;

(iii)  the operation of the factory and the heavy use of large lorries on Lot 380 expose the defendant to significant legal liabilities, resulting in irreparable damages;

(iv)  the balance of convenience lies in favour of the defendant because the usage of the defendant’s land by large lorries poses a substantial safety risk and frequent operation of large lorries leads to significant wear and tear on the nearby narrow roads, resulting in damages to the local infrastructure;

(v)  further, the operation of the factory causes considerable disruption to the local community such as pollution and traffic congestion and such problem could also lead to significant environmental problems;

(vi)  finally, the on-going industrial activity and the lorries lead to significant decrease in the land value.

ANY MATERIAL NON-DISCLOSURE

5.  The defendant’s complaint is two-fold. Firstly, the plaintiffs have failed to disclose that Lot 380 has been zoned as “green belt land” and “uncultivated land”. Secondly, the plaintiffs have failed to disclose the existence of the north entrance which the defendant alleged that it is clearly visible in the aerial photo.

6.  It is the defendant’s submission that the plaintiffs’ non‑disclosure is deliberate and it is the plaintiffs’ attempt to withhold such material information, indicating the plaintiffs are not acting in good faith. In light of such failure, the defendant invited the court not to continue the injunction order.

7.  In the third affirmation of Tam Yu Hong, that is the 2^nd plaintiff, he replied to the complaint of non‑disclosure in paragraph 5 of the said affirmation. Mr Tam affirmed that he had no knowledge as to the actual zoning of the plaintiffs’ land and he is advised by his legal representative that there is a statutory defence of “existing use” available to him, according to Town Planning Ordinance, Cap 131, if the alleged unauthorised development is an existing use.

8.  The relevant draft outline zoning plan (“OZP”) was gazetted in 2010. The plaintiffs’ father’s operation of the sodium bicarbonate processing business predated the gazette of the draft OZP, that is why the plaintiffs are relying on the “existing use” defence.

9.  The question of whether the plaintiffs could succeed in relying on the statutory defence is not a matter to be decided in this application. I accept that the plaintiffs have no knowledge of the OZP before it was raised by the defendant. Therefore, I do not accept that the plaintiffs were deliberately withholding such information. But in any event, the zoning of Lot 380 and whether the statutory defence could succeed is not material in this present hearing.

10.  Regarding the north gate or northern entrance, it has never been mentioned by any parties. In the plaintiffs’ Statement of Claim, paragraph 4(4) it is pleaded that “entrance for vehicles and persons is located at western boundary of the occupied area facing Fai King Road”.

11.  In the Defence and Counterclaim paragraph 3(3), 4(3)(4) of the Statement of Claim is admitted. The defendant did not make any averment to the effect that apart from the western entrance, there is another entrance at the north. Therefore, the admission is unconditional.

12.  Since the Defence and Counterclaim has not been amended or the date of filing such amended Defence and Counterclaim has not been due, so at the present moment the defendant is still bound by the pleaded case.

13.  There is an admission of the entrance at west of the occupied area facing Fai King Road as the only entrance. Therefore, I do not see the plaintiffs have withheld another entrance in the north of the land.

IRREPARABLE DAMAGES

14.  The defendant submitted that the granting of the injunction order would lead to irreparable damages to the defendant because the operation of the factory and the heavy use of large vehicles on the land would expose the defendant to significant legal liabilities, including occupier’s liabilities and potential road safety liabilities.

15.  However, according to the defence case, Lot 380 has been rented to the Haus since early 80’s until the tenancy was ended in about 2007. According to the affirmation of the defendant’s representative, Mr Jacky Chan, he discovered that the land was occupied by Chan Chong King in 2016. Then in 2018, Mr Jacky Chan affirmed that he allowed Chan Chong King to occupy Lot 380 temporarily as a licensee and such occupation continued up to present. That is not in dispute.

16.  As such, the defendant is not an occupier of Lot 380. As a result, I do not see there should be any risk of occupier’s liabilities exposed to the defendant. I do not accept there would be irreparable damages caused to the defendant if the injunction order is to be continued.

ANY SUBSTANTIAL CHANGE IN THE BURDEN OF THE SERVIENT LAND

17.  It is the defendant’s submission that even if the plaintiffs have acquired easement over the relevant part of Lot 380, the business operated by Chan Chong King on Lot 380 would constitute a radical change in the character or a change in the identity of Lot 380.

18.  The defendant submitted that the operation involves many employees, and thus the intensity and volume of operations from processing sodium bicarbonate has been increased.

19.  The defendant is relying on Chan Chong King’s own admission that the daily production was over a hundred packs each day (50 kg per pack). The products were then loaded onto trucks at the loading bay inside the warehouse and then delivered to Chan’s customers. On average there would be two to three loadings per day.

20.  The defendant submitted that such scale of operation has created infrastructure and environmental problems. In light of such substantial increase in the burden on the servient land, any easement enjoyed by the plaintiffs shall be extinguished.

21.  According to the case Wan Yuk Wing v Wong Kwok Hing Patrick and Another [2010] 4 HKC 151:

“23. Whether a real or substantial increase (or change) in the burden on the servient land had occurred will be a question of fact in each case: It was a question to which reasonableness and common sense needed to be applied.”

22.  Besides, I also consider the case Lee Kok Che v Royal Mortgage Limited [2023] 2 HKLRD 292.

23.  According to the plaintiffs, the sodium bicarbonate processing business was commenced by the plaintiffs’ father. According to paragraph 4(5) of the Statement of Claim, during the plaintiffs’ father’s operation, in the name of Ping Kee at the occupied area, the operation involved processing sodium bicarbonate, storage of machinery, raw material and finished products, loading and unloading products from delivery lorries, and parking of delivery lorries.

24.  In paragraph 4(6), it was pleaded that Ping Kee was already well established well before 1990. The major structure together with loading and unloading area, storage structures were used or built well before 1990.

25.  The defendant has pleaded in paragraph 3(4) of her Defence and Counterclaim as follows:

“The Defendant has no knowledge of matters pleaded in paragraph 4(5) of the Statement of Claim and denies Tam Chan Ping used the said Property before 2014...”

26.  Accordingly, the defendant has no knowledge of the matters as to the operation of the business which also means that the defendant has no knowledge of the scale of the business back in the 1990s.

27.  Then in paragraph 4(12) of the Statement of Claim, the transfer of business of Ping Kee to Mr Chan Chong King and thereafter operated as Chong Kee Company was pleaded. It was also pleaded that Mr Chan’s Chong Kee Company continued to employ the existing staff of Ping Kee and rented the occupied area together with the sodium bicarbonate processing workshop thereon from the plaintiffs and Man Kin Tai.

28.  In response to paragraph 4(12) of the Statement of Claim, the defendant has pleaded in paragraph 3(10) of the Defence and Counterclaim that the defendant has no knowledge of matters pleaded in paragraph 4(12) and also the other subparagraphs of the Statement of Claim and put the plaintiffs to strict proof.

29.  Then the plaintiffs pleaded in paragraph 5 of the Statement of Claim:

“At all material times, the said Tam Chan Ping, Man Kin Tai nor the Plaintiffs has or had never been disturbed by the Defendant, his predecessor‑in‑title, agent, servant and/or anyone in respect of the exclusive occupation, use and enjoyment of the said Property. Further, none of the Defendant, his predecessor‑in‑titled, agent, servant and/or anyone has ever demanded their payment and/or claimed any interest/right in the said Property.”

30.  In response to the above pleadings, the defendant in paragraph 4 of her Defence and Counterclaim, pleaded that “Paragraphs 5, 6 and 7 of Statement of Claim are admitted”.

31.  From the pleadings, we can see that the defendant has no knowledge of the scale of the plaintiffs’ father’s sodium bicarbonate processing business nor the scale of business after the transfer to Mr Chan Chong King. Therefore, there is no knowledge from the defendant as to such processing business from the 90s to the early 2000 or since 2006 when Mr Chan took over the business.

32.  The alleged large-scale of operation like a factory was mentioned by Mr Jacky Chan in his affirmation, at paragraph 21, when he talked about the events in 2023. He affirmed that in early May 2023 when he visited the subject Lot 380, he discovered Mr Chan Chong King appeared to operate a large-scale chemical plant on that land and he also saw several large lorries parked on the lot. But there is no mention of the scale in the past.

33.  When Mr Chan Chong King mentioned how he operated the business in paragraphs 4 and 5 of his affirmation, the time as stated was around 2006. At that time, Mr Chan and his employees were packing over 100 packs of products and handling two to three loadings per day.

34.  As the defendant has no evidence or knowledge of the scale of operation back in 1990s and 2006 apart from the admission by Mr Chan, therefore, the observation made by Mr Jacky Chan of the defendant in May 2003 does not support a radical change in the nature of use of Lot 380.

35.  First of all, it has been used all along as sodium bicarbonate processing business. In light of the above analysis, there is lack of evidence to indicate any radical change or increase in the character of the dominant tenement, ie, the portion of Lot 380 being occupied by the plaintiffs and their tenants, that costs substantial increase or alteration in the burden of the servient land.

36.  As we can see from the Statement of Claim, loading and unloading products from lorries has been going on since the commencement of Ping Kee back in the 90s and Mr Chan of Chong Kee just continued the business after its transfer. Therefore, I do not accept the plaintiffs’ claim of right of way, if any, has been extinguished by those reasons submitted by the defendant.

BALANCE OF CONVENIENCE

37.  As the purpose of the present injunction order is for preserving the status quo, I think the balance of convenience shall lie in favour of the plaintiffs.

CONCLUSION

38.  I have also considered other submissions made by the plaintiffs. In short, I accept the plaintiffs’ submission and I reject the defendant’s submission entirely. I am satisfied that the plaintiffs have shown serious issues to be tried and a strong prima facie case and the plaintiffs are likely to succeed at trial.

39.  In the circumstances, I herein order to continue the injunction in terms of the summons with the exception that the plan A should be replaced by the amended plan A submitted by the plaintiffs today. The injunction order shall continue until the conclusion of the trial and delivery of judgment or until further order of the court.

COSTS

40.  Having considered counsel submissions, I reject the defendant’s submission that the costs be in the cause because plan A has been amended to the effect that the area coloured in red in the plan has been reduced, indicating the extent of right of way enjoyed by the plaintiffs have been reduced.

41.  The amendment is only a minor challenge taken by the defendant. The plaintiffs have agreed to amend the plan A without proceeding to substantive argument. The main grounds of discharge of the injunction raised by the defendant have been rejected by this court entirely.

42.  Upon considering the plaintiffs’ Statement of Costs for Summary Assessment, the authority cited by the plaintiffs: China Medical Technologies INC (In Liquidation) v Tsang Tak Yung Samson [2022] 2 HKLRD 517 and the defendant’s submission in reply, I order the defendant to pay forthwith plaintiffs’ costs of and occasioned by the continuation of injunction application summarily assessed at HK$186,751. That is a deduction of HK$83,000 from the total amount claimed.