WONG WAI YING ANITA AND OTHERS v. SO KWAI CHUNG AND ANOTHER

CACV 498/2022, [2024] HKCA 608

On Appeal From [2022] HKCFI 3596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 498 OF 2022

(ON APPEAL FROM HCA NO. 2580 of 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1.  This is an application by the 1^st defendant So Kwai Chung for leave to appeal to the Court of Final Appeal against our judgment of 2 February 2024. We will deal with this application on paper.

2.  In his notice of motion of 1 March 2024 So Kwai Chung identifies three questions said to be of great, general or public importance that ought to be submitted to the Court of Final Appeal for decision :

Question 1:  Whether a co-owner in a tenancy in common can, by his own act and/or representation, unilaterally create an easement that affects the whole property and binds the other co‑owner(s) who was not involved in or otherwise does not agree to such act and/or representation?

Question 2:  Are the rights of the other co-owner(s) in a tenancy in common adversely affected when an easement is purportedly created by a co-owner?

Question 3:  Whether the inaction of a co-owner in a tenancy in common should be a factor to be considered for the creation of an easement or otherwise the deprivation of his right under the property even though the period of such inaction falls short of the period required under the law of prescription and Limitation Ordinance.

3.  We will deal with the three questions in turn.

1)  Question 1

4.  In our view, Question 1 is not reasonably arguable. We have held that the 2^nd defendant Wong Ming Kwong as a tenant in common may encumber his share of the land by granting a right of way to the plaintiffs and So Kwai Chung as the other tenant in common cannot interfere with that right by placing obstructions to the right of way. We adopted the reasoning of this Court in Chin Lan Hong & Ors v Cheung Poh Choo & Ors [2005] 3 HKLRD 811 at [34] to [35]. So Kwai Chung submitted that case was in conflict with two first instance decisions. Quite apart from the fact that these two first instance decisions are not binding on this Court, it was not submitted that Chin Lan Hong & Another is plainly wrong and should not be followed by this Court. In any event, in one of the first instance cases, namely, Cheung Leung Tak v. 張秀雯and Cheung Chi Hung [2018] 5 HKLRD 579 at [50] the Recorder expressly reserved his view and therefore the case cannot be said to be in conflict with Chin Lan Hong & Another. The context of the passage in the other case, Kung Ming Tak Tong Co. Ltd. v. Park Solid Enterprises Ltd. & Info King Limited[1], HCA 1926/2001, unreported (5 May 2005) at [21], relied on by So Kwai Chung is also totally different from the present one.

5.  So Kwai Chung drew a distinction between, on the one hand, granting a lease or licence to others for non‑exclusive possession and, on the other hand, granting an easement and relied on Canadian and United States authorities which were not cited to us. At this stage we are only concerned with the threshold requirement of granting leave. It has not been demonstrated that the issue in this case engages the great general or public importance test. In any event the question is academic because at [54] of our judgment we held that the Deputy Judge whose judgment we affirmed was entitled to take into account So Kwai Chung’s knowledge that the plaintiffs have been using the property for access and his inaction for over ten years in holding against him. As we have explained in respect of Question 3, the issue is not about the creation of the right of way but the long lapse of time before So Kwai Chung took action to block the access.

2)  Question 2

6.  This question is not reasonably arguable as a question of great general or public importance because it is fact‑specific and the question by itself is devoid of any useful meaning. The Partition Ordinance was only briefly referred to in counsel’s written submission before us and was not fully argued. No submission was made on the Basic Law at all.

3)  Question 3

7.  This is plainly a fact‑sensitive issue and cannot be said to be a question of great general or public importance. We are of the view that So Kwai Chung completely missed the point because the focus of our judgment at [54] was about the situation after the right of way was created and not about his lack of involvement in the creation of the right of way. That right was granted by Wong Ming Kwong.

4)  Conclusion

8.  Accordingly the application is dismissed with costs to the plaintiffs.

9.  As we have ordered the costs of the appeal to be taxed if not agreed, we will likewise order the costs of this application to be taxed if not agreed.