FONG MAN SANG, THE EXECUTOR OF THE ESTATE OF TSE KAI CHUNG v. T & L CONSTRUCTION LTD

HCA 2500/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2500 OF 2008

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J U D G M E N T

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INTRODUCTION

1.  This action, originally brought by Tse Kai Chung, deceased (“Tse”), on 2 December 2008 against the defendant (“T&L”), is for trespass of his land known as the Remaining Portion of Lot No 646 in DD 249, Kai Ham, Sai Kung (“the Land”), the complaint being that, without his knowledge or consent, the defendant constructed a manhole on the Land.

2.  T&L denies liability, contending that it constructed the manhole with the consent of the third party (“Fong”), the owner of the Land at the time of the construction of the manhole.  For this reason, T&L also commenced third party proceedings against Fong on 31 May 2010.

3.  On 17 February 2012, Tse passed away in Scotland.

4.  On 28 September 2012, probate of the last will of Tse was granted to Fong, being the sole executor named in that will.

5.  On 17 September 2014, Madam Justice Mimmie Chan made an order appointing Fong (in his capacity as the executor of the estate of Tse) to continue the present action against T&L.

6.  T&L was formerly represented by Messrs Raymond Chan, Kenneth Yuen & Co in this action.  This morning, prior to the commencement of the trial of the main action and the third party action, this court granted a declaration that Messrs Raymond Chan, Kenneth Yuen & Co had ceased to act for T&L pursuant to Order 67, rule 6(1) of the Rules of the High Court.

7.  Accordingly, T&L was unrepresented at the trial.  The trial proceeded in the absence of T&L, and Fong gave evidence on behalf of the plaintiff and on his own behalf.

Background facts

8.  Fong was formerly the registered owner of the Land.  On 19 April 2006, he assigned the Land to Tse.

9.  According to Fong:-

(1) In order about 2002 to 2003, he was appointed by the owners of various lots of land in DD 247 (“the Nearby Lots”) to act as their representative to engage contractors to carry out site formation and other construction works on the Nearby Lots and to supervise the works as carried out by the contractors.

(2) He then engaged T&L to carry out site formation works on the Nearby Lots.

(3) In view of the fact that he had to supervise T&L’s works, he visited the Nearby Lots from time to time and, on the occasions when he visited the Nearby Lots, he would also inspect the Land and a neighbouring lot belonging to him, namely, Section A of Lot No 646 in DD 249 (“the Adjacent Lot”).

(4) In or about January 2008, Fong first noticed the existence of the manhole on the Land, and informed Tse (who was not in Hong Kong) of the same.  Tse then appointed Fong to act as his representative to deal with the matters arising from the manhole. Pausing here, there is no dispute that the manhole was constructed by T&L, but there is a dispute as to when it was constructed and whether it was constructed with the consent of Fong.  I shall come back to these matters later in this judgment.

(5) On 29 September 2008, Tse executed a general power of attorney appointing Fong as his attorney under section 7 of the Powers of Attorney Ordinance, pursuant to which Fong engaged Messrs Ng and Fang to act on Tse’s behalf to demand T&L to remove the manhole and take legal action against T&L if necessary.

(6) T&L failed or refused to remove the manhole despite Messrs Ng and Fang’s demands. Eventually, this action was commenced on 2 December 2008.

10.  As earlier mentioned, there is a dispute as to when it was that the manhole was constructed and whether it was constructed with the consent of Fong.  According to Fong, the manhole was not in existence at the time of his assignment of the Land to Tse on 19 April 2006.  Fong is, understandably, unable to tell when exactly the manhole was constructed, save that he first noticed its existence in or about January 2008.  He says that prior to the assignment of the Land to Tse in April 2006, he and Tse carried out an inspection of the Land and the manhole was not in existence at that time.  It is also Fong’s evidence that he was told by Tse that Tse had never permitted T&L or anyone else to construct the manhole on the Land.

11.  On the other hand, T&L’s case, as disclosed in the amended defence, is that the manhole was constructed sometime in 2004 (but before 26 May 2004).  It is alleged in T&L’s amended defence that prior to the construction of the manhole, its project manager (Mr Raymond Ho) had orally informed Fong that it would be erecting a manhole on the Adjacent Lot near the boundary with the Land and a small portion of it might lie within the Land, and Fong “acknowledged and orally consented to the erection of the said manhole”.  Fong denies that this conversation ever took place.  It is further alleged by T&L that the construction of the manhole was completed on or about 25 May 2004.

12.  I accept Fong’s evidence that the manhole was not in existence prior to 19 April 2006, and neither Fong nor Tse ever consented to the construction of the manhole on the Land.  I find as a fact that the manhole was constructed by T&L sometime between 19 April 2006 and January 2008 without any knowledge or consent of the owner of the Land, and that T&L’s conduct amounted to a trespass of the Land.

13.  In passing, I should mention that on the papers before me, there is a dispute as to whether Fong, in his capacity as an agent or representative of the owners of certain lands, namely, Lots 646A, 787 and 788 in DD 249, ever engaged T&L as contractor to carry out site formation works on those lands.  This allegation, raised by T&L, is denied by Fong.  There are some documents which support T&L’s allegation, but Fong says that at the time when he signed those documents, they were blank forms and he thought that the documents he was asked to sign, and did sign, were for the purpose of engaging T&L to carry out site formation works on the Nearby Lots.  I have some reservation on this explanation given by Fong. Nevertheless, those documents do not relate to the Land.  Notwithstanding my reservation on Fong’s evidence on this matter, I am prepared to accept his evidence that he never consented to the construction of the manhole on the Land as alleged by T&L.

Quantum

14.  The agreed evidence of the experts is that it would costs HK$15,400 to remove the manhole and reinstate the Land to its original condition, and it would take 3 days to carry out the removal and reinstatement works.

15.  Mr Chan (for the plaintiff) does not press for a mandatory injunction to compel T&L to carry out the removal and reinstatement works, but asks the court to order T&L to pay damages instead, including the costs of carrying out the removal and reinstatement works, mesne profits and consequential loss.

16.  On behalf of the plaintiff, it is alleged that by reason of the existence of the manhole, Tse’s application to build a small house on the Land was delayed or rejected.  Mr Chan fairly accepts, however, that on the existing materials before the court, there is no or no sufficient evidence that Tse ever made any application to the District Lands Office to build a small house on the Land, or that the application (if made) was delayed or rejected because of the existence of the manhole on the Land. In so far as mesne profits are concerned, there is no evidence that Tse ever attempted to lease the Land, or that Tse was unable to lease the Land because of the existence of the manhole.  In these circumstances, I am not prepared to make any award for mesne profits or damages for consequential loss.

Disposition

17.  In all, I give judgment to the plaintiff against the defendant in the sum of HK$15,400, together with interest thereon at the prime rate minus 1% from the date of the writ to the date of this judgment and thereafter at judgment rate until payment.  I also dismiss the defendant’s counterclaim against the third party.

18.  As for costs, I order the defendant to pay the plaintiff’s costs of the action and the third party’s costs of defending the third party action, all to be taxed on the District Court scale if not agreed.