CHENG LAI YIN as the Personal Representative of the estate of CHENG TSO NING (deceased) v. LIU YEE MUI

HCMP 1296/2015

[2022] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1296 OF 2015

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JUDGMENT

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1.  The late Plaintiff and the Defendant are uncle and niece and hold adjoining lands in Sai Kung. In 2014 the Defendant renovated the house on her land, and her renovation works led to complaints by the Plaintiff over fluids discharged into and items said to have protruded into or left on his land, which he used for self-cultivation purpose. The Plaintiff claims that following the Defendant’s renovation, he could no longer cultivate on his land.

2.  As a result, the Plaintiff commenced this litigation in May 2015 claiming trespass and nuisance. In response, the Defendant denies trespass and nuisance, and counterclaims for adverse possession.

3.  Notwithstanding the nature of the complaints, this action progressed slowly, so much so that by the time it comes on for trial, the Plaintiff has already passed away. His son, Cheng Lai Yin (“Cheng Jr”), obtained an order to carry on and continues to pursue this action.

4.  It is regrettable that these proceedings have progressed to this stage. Given the nature and extent of the matters complained and the personal relationship between the parties, this dispute ought to have been resolved at an early stage through mediation or other forms of alternative dispute resolution. Instead, these proceedings were allowed to drift on for 7 years. I will return to this later in this Judgment.

THE FACTS

5.  The lands in question are in Demarcation District No.222 in Pak Kong Village in Sai Kung. The Plaintiff’s land and the Defendant’s land were originally a single piece of land, Lot 525, registered in the Plaintiff’s name. In 1972, Section B of Lot 525 (“D’s Land”) was carved out and sold to the Defendant’s father, and the remainder of the lot, re-designated Remaining Portion of Lot 525 (“P’s Land”), was retained by the Plaintiff. For a general depiction of P’s Land and D’s Land, see Annex A. P’s Land is much bigger in size, about 7 times that of D’s Land.

6.  D’s Land is on the north-east corner of Lot 525. It is to the immediate north of the portion of P’s Land that is affected; that portion of P’s Land is rectangular in shape and is the west-most end of P’s Land. To the immediate south and west of that rectangular portion of P’s Land are government land. A fence is erected to the south of that rectangular portion of P’s Land, separating it from the government land to the south, but enclosing the government land to the west. A locked gate can be found on the western side of the fence with the key held by the Plaintiff.

7.  Topographically, D’s Land is higher than P’s Land, with a level difference of 1 to 1.5 meters. According to the Defendant’s expert, since the area was previously used for terraced farming, it is believed that D’s Land is situated on top of the remnants of the disused field bunds, at the edge, which explains the elevation from P’s Land, situated on a lower “step” of the terrace.

8.  It is not in dispute that even before the carving out in 1972, an L-shape stone house had already been built on D’s Land, and the southern boundary of the built-up area abutted the edge of the elevated land. The edge was not gentle sloping but near vertical, as depicted by a “vertical cutting”[1] symbol in survey sheet No.7-SE-15D dated November 1971 prepared by the Survey and Mapping Office of the Lands Department.

9.  The vertical cutting in this case comprises of (or at least is reinforced by) boulders, and at various places it is further reinforced by a layer of concrete outside the boulders. The Plaintiff’s expert describes it as a “retaining wall”. Indeed, the photographs adduced by the parties show that the structures on D’s Land rest on this retaining wall, which serves as foundation for support.

10.  Before 2014 the structures on D’s Land included the L-shape house (sits on the north, south-facing, with a wing on the east extending all the way along the eastern boundary to the vertical cutting), a concrete yard on the south abutting the vertical cutting and ending at the eastern wing of the house, and a driveway behind the house (which is not in dispute in this case). The yard was enclosed, along the vertical cutting, by a floor-height wire fence (“Old Fence”). The Old Fence was made of loose wire hoops; one had full visibility through it, and it is clear that water would also have flowed through it freely.

11.  It is not disputed that the house on D’s Land had been used by the Defendant and her family since at least 1965 as a residence.

12.  P’s Land, on the other hand, is farmland. It is the Plaintiff’s case that he had always used P’s Land for self-cultivation. Based on the old aerial photographs between 1977 and 2009, it appears that there was some cultivation on P’s Land near D’s Land, although the extent of cultivation differed at different times. However, as mentioned above, P’s Land is much bigger in size; there is no evidence as to whether there was cultivation on the rest of P’s Land, though the Plaintiff’s expert confirms that the remainder also comprises of farmland.

13.  In mid 2014, the Defendant carried out major renovations to the house on D’s Land, which had become quite dilapidated.

14.  During the renovation, a shallow ditch was dug across part of P’s Land, leading from D’s Land to the government land on the south-west of P’s Land, and some PVC pipes were put into that ditch which drain fluids from the construction site on D’s Land to the government land (“Ditch”). The Ditch was dug through the fence enclosing P’s Land and across a concrete foot path outside the fence, destroying part of it. The contemporaneous photographs show that the water thus drained from D’s Land was white and foamy.

15.  The creation of the Ditch and its use to drain fluids caused complaints from the Plaintiff’s side. It is said that the Plaintiff’s daughter had lodged complaints to the workers on site, and when those complaints were not heeded, she reported the matter to the police, who attended D’s Land on 21 October 2014. The Plaintiff says that upon the police’s intervention, the workers on site removed the PVC pipes placed inside the Ditch, but did not reinstate the Ditch. It appears that Ditch continued to be used by the workers to drain fluids from the site on D’s Land, at least until completion of the works.

16.  It is not disputed that upon completion of the renovation works in late 2014, the footprint of the built-up area on D’s Land – at least that which abuts the vertical cutting – remained unchanged. The only difference relevant for present purpose is that the Old Fence was replaced by a concrete wall (“Wall”) enclosing the concrete yard. The substitution of the Old Fence by the Wall is not part of the complaint now advanced by the Plaintiff.

17.  A total of 14 pipes can be found on this newly constructed Wall, including horizontal and down pipes affixed to the external side of the Wall, and open-ended pipes that are inserted through the Wall with one end opening towards the side of P’s Land. They are identified in the manner set out in Annex B. In this trial, the Plaintiff only takes issue with open-ended pipes “OP1” to “OP5”, and down pipe “DP5”.

18.  The Defendant moved into the renovated house in December 2014. She found that OP4 and OP5 had been forcibly blocked from the side of P’s Land, with bamboo shoots and small pieces of rocks.

19.  According to the Plaintiff, he had instructed solicitors (the same solicitors who represented the Plaintiff’s estate at trial) to write to the Defendant on 21 January 2015 and 7 May 2015 to make complaints. Those letters are not included in the trial bundles, so their contents are unknown to me.

THE PLEADED ISSUES

20.  On 27 May 2015, the Plaintiff commenced these proceedings by issuing an originating summons seeking possession of P’s Land. It is wholly unclear why the Plaintiff would have sought possession or why the originating summons procedure was considered appropriate, given the nature of his complaints identified above. By December 2015 those representing the Plaintiff recognized that this matter could not proceed under the originating summons procedure and applied to convert it into a writ action.

21.  By 5 April 2016 the Plaintiff filed his original Statement of Claim. In his original pleading the Plaintiff complained of 3 items of unauthorized structures allegedly built by the Defendant on P’s Land, as depicted in a plan prepared by Ma Yung-kong, Helicon attached to the same (“1^st Plan”), namely (i) OP4; (ii) OP5 and (iii) the Wall, and (iv) debris left by the Defendant’s workers. According to the 1^st Plan, the boundary of P’s Land was not aligned with the Old Fence / Wall, but was diagonal from it (meaning the Old Fence / Wall was wholly within D’s Land and there was still a small triangular strip of D’s Land between the Old Fence / Wall and the lot boundary).

22.  The Statement of Claim was amended twice, on 9 December 2016 and 5 December 2017 respectively.

(1)  By the amendments, the items of complaint became (i) one water pipe and (ii) 2 PVC pipes (it is wholly unclear what those amendments refer to since they were not matched by corresponding items in the 1^st Plan and there was no description in the pleading for identification); (iii) the Wall, part of which was said to have been built on P’s Land, and a rectangular structure at the bottom of the Wall of about 1.4m² in size (“Concrete Slab”); (iv) the Ditch; (v) debris and the PVC pipes placed in the Ditch (see §14 above); and (iv) alleged continuous discharge of sewage water from the pipes in (i) and (ii) into P’s Land.

(2)  By the re-amendments, the 1^st Plan was abandoned and replaced by a plan from the Plaintiff’s expert, Tang Sze-kin, Eric (“2^nd Plan”), and the items of complaint became (i) OP1 to OP3; (ii) OP4, OP5 and DP5; (iii) the Concrete Slab; (iv) the Ditch; (v) eaves of the Defendant’s renovated house said to have protruded into the air space over P’s Land; (vi) debris and the PVC pipes placed in the Ditch (see §14 above); and (vii) alleged continuous discharge of sewage water from OP1 to OP5 and DP5 into P’s Land.

23.  With respect to the above items, the Plaintiff claims against the Defendant for:-

(1)  trespass, for §22(2)(i)-(vi) above; and

(2)  nuisance, for §22(2)(vii), in that the alleged sewage water was said to have (a) caused annoyance and discomfort to the Plaintiff when using P’s Land; and (b) harmed the growth of plants and polluted P’s Land rendering it no longer suitable for growing plants or vegetables,

and seeks (i) prohibitory and mandatory injunctions to restrain the erection of structures and continuation of nuisance on P’s Land and to demolish the structures and reinstate P’s Land; and (ii) damages to be assessed.

24.  The Defendant’s case, as set out in her Re-amended Defence and Counterclaim, is that:-

(1)  The Wall merely replaced the Old Fence, and all the works undertaken in the 2014 renovation took place inside (ie to the north of) the Old Fence. Accordingly she denies the items in §22(2)(i)-(vi) above either existed, or had encroached on P’s Land.

(2)  She also denies there was any discharge of sewage water into P’s Land or that P’s Land was rendered un-usable for planting.

(3)  She then mounts a counterclaim, alleging adverse possession over a “Disputed Area” coloured pink in Annex-1 attached to the Defence and Counterclaim. Previously when the Plaintiff relied on the 1^st Plan, the Defendant also adopted it and identified 3 areas in pink on the 1^st Plan. Following the re-amendments and the adoption of the 2^nd Plan by the Plaintiff, the Defendant also expressly adopted the 2^nd Plan as her Annex-1. The only item in pink there is the Concrete Slab.

25.  Thus, the issues gleaned from the pleadings are:-

(1)  alleged trespass by items in §22(2)(i)-(vi) above, on P’s Land or protruding into the air space above P’s Land;

(2)  alleged nuisance by the discharge of sewage water from the Defendant’s pipes into P’s Land; and

(3)  presumably alternative to (1) above, adverse possession by the Defendant.

26.  There are 2 issues arising from the parties’ pleaded cases which I will first address.

27.  The first is that in the Re-amended Defence and Counterclaim, the Defendant merely denies that the items in §22(2)(i)-(vi) above had encroached on P’s Land without providing any particulars. It only became clear after the exchange of expert reports that the Defendant is advancing an argument that the lot boundary is not the same as the Old Fence / Wall, but is slightly outside it (towards the south), although the difference is very small, ranging between 10cm to 40cm from the Wall.

(1)  Mr Chan, counsel for the Defendant who signed the pleadings, accepts that there is no averment in the Re-amended Defence and Counterclaim as to where the Defendant says the lot boundary should be.

(2)  Indeed, I note that in her pleadings, the Defendant only disputes the boundary of the house (not D’s Land)[2], and avers, at Re-amended Defence and Counterclaim §6(c), that “… the renovation does not add any structure beyond the original boundary of [D’s Land] as demarcated by the [Old Fence] and the new free standing [Wall]”. (emphasis added)

(3)  The averment in §6(c) pleads to Re-amended Statement of Claim §6, which is the main paragraph alleging trespass. Although the opening parts of §6 pleads a general denial to Re-amended Statement of Claim §6, §6(c) is a positive, clear and unambiguous plea as to the location of the boundary of D’s Land, namely where the Old Fence / Wall is. There is nothing in §6 to qualify or otherwise undermine this plea.

(4)  The location of the boundary is of course a material factual plank to the case of trespass as pleaded, since where the boundary is would dictate whether the alleged trespassing object is on the side of P’s Land or D’s Land.

(5)  In the premises I find that by §6(c) the Defendant has made an admission of fact. I reject Mr Chan’s argument[3] that it is not an admission of fact because §6(c) only deals with trespass (specifically the Concrete Slab) and not boundary. As explained in (3) and (4) above, not only is the plea a clear and unambiguous statement that the boundary as where the Old Fence / Wall is, the location of the boundary is a material fact underlying the issue of trespass and the Defendant’s case on the same.

(6)  Mr Chan further argues that, even if §6(c) is an admission, in the circumstances of this case this should not prevent the Defendant from relying on evidence showing and advancing the argument that the lot boundary is at a location other than that contended for by the Plaintiff, because (i) the issue on whether the Defendant has committed trespass on P’s Land is joined on the pleadings and the Plaintiff bears the onus of proving his case, which necessarily entails him proving where the lot boundary is; (ii) the court is entitled to have regard to the Defendant’s expert evidence and find that the Plaintiff has not discharged his burden of proof; and (iii) both parties agreed on the expert directions given which include the question of the location of the boundary.

(7)  I do not consider these submissions avail the Defendant. An admission of fact is different from the situation where the plaintiff has pleaded a factual case and the defendant puts the plaintiff to proof. In the latter scenario, I would have agreed with the Defendant that she would have been entitled to adduce and rely on her expert evidence to undermine that of the Plaintiff and show that the lot boundary is at a location other than that contended for by the Plaintiff. Considerations as to whether the Plaintiff has had a full opportunity to address the Defendant’s case on the lot boundary even though is not pleaded (Poon Hau Kai v Hsin Chong Construction Co Ltd (2004) 7 HKCFAR 148, 156G-157H) would have been relevant in such a scenario. Had it been such a case, I would have found that the Plaintiff is fully aware of the Defendant’s case that the lot boundary is at a location other than that contended by the Plaintiff, since expert reports have been exchanged which address this issue in detail, and thereafter the issue was fully ventilated between the experts in their without prejudice meeting and joint report on agreed and disagreed issues.

(8)  However, the effect of an admission of fact is different. The effect of an admission in a pleading is that by the admission, the opposite party admits the truth of the whole or any part of the averment in question, and there is no issue between the parties on that part of the case which is concerned with those matters of fact and therefore no evidence is admissible in reference to those facts: Hong Kong Civil Procedure 2022: 18/13/2 (last para.); 27/2/1.

(9)  In other words, in the absence of an application to withdraw the admission of fact (which none has been made), no evidence is admissible with respect to the fact of the location of boundary, whether by the Plaintiff or the Defendant.

28.  The second is the scope of the Defendant’s counterclaim on adverse possession.

(1)  I have set out in §24(3) above the Defendant’s pleas with reference to the “Disputed Area” and Annex-1 in the Re-amended Defence and Counterclaim, which only identifies the Concrete Slab.

(2)  However, in closing, Mr Chan says that the Defendant is also claiming adverse possession over the small strip between the Wall and where the Defendant’s expert says the lot boundary should be (the strip ranging 10cm to 40cm referred to in §27 above). He claims that that strip has also been coloured in pink in Annex-1.

(3)  The problem with this submission is that one simply cannot see from Annex-1 any identification of any strip immediately next to the Wall. Moreover, the legend on Annex-1 specifically identifies an area coloured pink as “Disputed Area”, marked “concrete structure on ground” with an area of around 1.4m². As such, on any objective reading of Annex-1 one would have concluded that the “Disputed Area” marked in pink refers only to the Concrete Slab.

(4)  This is also how the Plaintiff understands Annex-1, as evidenced by the Re-amended Reply and Defence to Counterclaim which specifically and only pleads to the Concrete Slab.

(5)  In the premises, I hold that the Defendant’s counterclaim on adverse possession is limited to what she has pleaded, namely the Concrete Slab. As will be explained below, Mr Chan accepts that if the counterclaim is limited to the Concrete Slab, the Defendant has no factual case to support the same and it must be dismissed.

THE EVIDENCE

29.  It is common ground that the Plaintiff bears the burden of proof with respect to the trespass and nuisance claims.

30.  Since the Plaintiff’s case is that the trespass and nuisance on P’s Land were committed following the Defendant’s renovation works in late 2014, the focus of the inquiry is on the evidence depicting the situation on the ground in late 2014, and where it is said that these wrongs are continuing, evidence showing that they continue to exist to date. In this regard, the contemporaneous documentary evidence (including photographs and plans attached to old title documents and from old survey sheets) and expert evidence are most relevant.

31.  As to the expert evidence:-

(1)  The parties’ experts, Tang Sez-kin Eric for the Plaintiff and Joseph Wong Yiu-cho for the Defendant, are both Authorized Land Surveyors registered under the Land Survey Ordinance (Cap.473) (“Cap.473”).

(2)  I should mention that at the pre-trial review, the parties were apparently content to simply admit the expert reports without calling the experts at trial. That was surprising, given the experts’ primary disagreement concerns the practice of surveyors in seeking to re-establish lot boundaries which is not something that judicial notice can readily be assumed, and the quality of the photographic evidence is such that counsel cannot fully comprehend them and explanations from the experts are required to understand what they capture. Accordingly, on the first day of trial I directed the experts should attend court to give oral evidence.

(3)  Before I deal with the evidence of the respective experts I should mention a point taken by the Plaintiff that I should wholly disregard the Defendant’s expert report, on the basis that it did not comply with the requirements of the Code of Practice (fourth edition (rev.) – December 2006) promulgated under Cap.473 (“Code”).

(a)  The argument runs thus – Cap.473 s.28(1) requires all authorized land surveyors shall ensure that every “land boundary survey” or any part thereof undertaken by him is carried out in accordance with the requirements of any codes of practice approved thereunder, including the Code; “land boundary survey” is defined to mean “any survey which is required in connection with defining land boundaries and includes the preparation of field notes, survey record plans and land boundary plans”; and as the Defendant’s expert report does not contain a copy of the land boundary plan required to be submitted as part of the survey under Code §43, the Defendant’s expert report is “in breach of legal requirements” and should be disregarded.

(b)  This argument is wholly misconceived and I reject it. The Plaintiff simply fastens onto the definition of land boundary survey and says that it is wide enough to include any survey connected with defining land boundaries, including the expert reports directed to be prepared for civil court proceedings. This completely ignores the purpose of Cap.473, which land boundary survey has to be construed in light of: Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144.

(c)  The long title of Cap.473 states that it is to provide for the registration and discipline of land surveyors engaged in land boundary surveys, for the control of the standards of land boundary surveys, for the establishment of land boundary records and for related matters. “Land boundary record” is defined as the records kept by the Director of Lands of all measurements, computations and survey data used in connection with defining the land boundary of the parcel of land and includes the survey record plan, the land boundary plan and other documents used in connection with defining such land boundary. Thus, it is clear that the land boundary survey provided for in Cap.473 and the Code is for the purpose of generating a standardized set of records for lodgment with the Director of Lands, which both experts confirm there is a mechanism for authorized land surveyors to make voluntary submissions, for the latter to maintain a set of public “land boundary records”.

(d)  The preparation of expert reports for court proceedings falls outside the ambit of Cap.473, and as Mr Lok, counsel for the Plaintiff, confirms, there is no provision in Cap.473 that ties the land boundary survey to court proceedings. There is thus no basis for the Plaintiff to suggest that just because no land boundary plan has been done by the Defendant’s expert under Cap.473, that without more would disentitle his expert report from being relevant evidence that the court can take into account.

(e)  As the Defendant’s expert explains, he adopted the same methodology in the Code and used the techniques commonly used in the trade to prepare his expert report, which the Plaintiff’s expert would have a full opportunity to discuss with him during their without prejudice meeting and address in the joint report. I also note that the plans presented in the Defendant’s expert report are similar in layout, use of grid lines and lot index as those presented in the Plaintiff’s expert report, and the evidence of the Plaintiff’s expert is that he does not agree with the Defendant’s expert on the lot boundary, not that he did not understand what the latter was presenting. As such, the Plaintiff’s expert has the opportunity to and is able to understand the evidence presented by the Defendant’s expert, and there is no question of prejudice even if the Defendant’s expert report is not itself a land boundary plan under Cap.473.

(4)  Although the Plaintiff’s expert gave evidence in a fairly straight-forward manner, he was behaving in a more partisan manner than was appropriate, in that he actively fed questions to the Plaintiff’s counsel for the former’s cross-examination of the Defendant’s expert (predominantly along the lines in (3) above, notwithstanding he has said nothing about it during his own oral evidence, see also (3)(e) above), and tried to change the evidence he gave and also add new evidence by asking Plaintiff’s counsel to insert that in his written closing (in §75), which is wholly inappropriate. I also note the submission by counsel for the Plaintiff that the Plaintiff’s expert was engaged to prepare the 2^nd Plan because the Plaintiff was dissatisfied with the 1^st Plan. I will return to this below.

(5)  The Defendant’s expert, on the other hand, answered questions in a direct, clear and measured manner, making concessions where appropriate. Overall I prefer the evidence of the Defendant’s expert.

32.  As to oral evidence, it is much less relevant for the reasons in §30 above.

(1)  The Plaintiff had filed a witness statement, and after he passed away, the same was adduced as hearsay evidence at trial. His witness statement says very little, as he said he left everything to Cheng Jr to handle.

(2)  Cheng Jr gave evidence on behalf of the Plaintiff. He is educated and sophisticated, having received diploma education and is the owner of a construction business. Although he answered questions directly, he has a tendency to exaggerate some of his answers or emotions, and when faced with questions to which he did not have an answer, he would invariably say that he left it to his lawyers as he has never take legal proceedings before. I do not find those answers to be credible, taking into account also the information provided by counsel for the Plaintiff that the Plaintiff decided to switch expert as he was not happy with the 1^st Plan (see §31(4) above), and someone from the Plaintiff’s side told the Plaintiff’s solicitors that the rateable value of P’s Land exceeded the limit for District Court so that this action was then commenced in the High Court (which I will address below). Plainly the person giving these instructions would have been Cheng Jr, in light of (1) above. Accordingly, I do not consider Cheng Jr to be a reliable witness.

(3)  As for the Defendant, who is the only witness for her side, she was forthright in her answers, she made concessions where appropriate, and she was restrained in her answers even when dealing with the blockage of the pipes (see §18 above) and did not point fingers. I consider her to be a credible witness and will accept her evidence where anything turns on that.

TRESPASS

33.  There is no dispute between the parties on the applicable principles.

(1)  A person in possession of the land can bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both: Billion Star Development Ltd v Wong Tak Chun [2012] 2 HKLRD 85, §38(1).

(2)  Intrusion into the air space above land is not automatically wrongful, but it would be a wrong where such air space is necessary for the full use of the land below: Clerk & Lindsell on Torts, 23^rd ed, §18-03.

(3)  Where the person in possession has established his proprietary right and proved an infringement of that right in the form of trespass, prima facie he is entitled to an injunction (permanent or interlocutory), and the injunction will be denied only if special circumstances exist. Special circumstances 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: Billion Star §38(3).

(4)  Damage suffered is not a pre-requisite to the grant of an injunction, nor is the triviality of the interference a sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right which, if not protected by an adequate remedy, becomes diminished: Billion Star §38(4).

34.  To recap, the Plaintiff claims that the Defendant has since late 2014 committed trespass on P’s Land by the following:-

(1)  OP1 to OP5 and DP5, which are said to have protruded into the air space over P’s Land;

(2)  the Concrete Slab;

(3)  the Ditch;

(4)  eaves of the Defendant’s renovated house, said to have protruded into the air space over P’s Land; and

(5)  debris and the PVC pipes placed in the Ditch.

35.  The items in §34(4) and (5) above are no longer in issue, for the Defendant has, on a no-admission-of-liability basis, caused the eaves to be removed before August 2019, and on the Plaintiff’s own case, the debris and the PVC pipes in the Ditch had already been removed in late 2014, before completion of the renovation works. I will return to these when I consider the question of relief.

A.  OP1 to OP5 and DP5

36.  It is not in dispute that (i) OP1 to OP5, which are horizontal pipes embedded in the Wall, protrude out of the external side of the Wall at points of elevation of at least half a meter above the land below by no more than 17cm; and (ii) DP5 is affixed vertically on the external side of the Wall, ending again at a point of elevation of about half a meter above the land below. The physical location (and protrusion) of these pipes remains the same since completion of the works in late 2014.

37.  The parties draw their battle lines on where the lot boundary between P’s Land and D’s Land should be; in other words, whether there is trespass depends on whether the boundary is at the Wall (as contended by the Plaintiff), or at a line 10cm to 40cm south of the Wall (as contended by the Defendant). However, for the reasons in §27 above, there is in fact no issue as to the location of the boundary, given the admission made by the Defendant.

38.  Nevertheless, this is not the end of the matter, because the principle in §33(2) above remains relevant and applicable, namely the trespass complained of being intrusion into the air space only, has the Plaintiff demonstrated that the use of P's Land under such air space has been affected such that he is deprived of the full use of the same?

(1)  There is simply no evidence or suggestion by the Plaintiff that the minor protrusions from these pipes have in any way affected the use of that portion of P’s Land immediately under it.

(2)  Based on the photographs and evidence from the Defendant’s expert, no use has been made of the areas immediately under these pipes, which form part the foot of the “retaining wall” and are covered with loose soil, rock pieces or weeds.

(3)  As Cheng Jr accepts in oral evidence, the gravamen of the Plaintiff’s complaint is not on the protrusion of these pipes, but the alleged sewage water flowing out of them.

(4)  Accordingly, given the nature of these complaints being intrusions into the air space, I am not satisfied that the Plaintiff has discharged his burden to demonstrate that the protrusions by OP1 to OP5 and DP5 amount to trespass over P’s Land.

39.  In any event, in case I am wrong on my conclusions in §27 above and the lot boundary remains a live issue, I find that the Plaintiff has failed to prove that the lot boundary should be at the Wall; instead, the lot boundary should be located at the foot of the “retaining wall” 10cm to 40cm south of the Wall, as identified by the Defendant’s expert in Annex 1 of his expert report (attached as Annex C hereto).

(1)  The starting point is that there is no official record setting out the precise location of the lot boundary between P’s Land and D’s Land, because (i) previously they were part of the same Lot 525 and it was only in 1972 that D’s Land was carved out to form 2 separate lots; and (ii) the plan attached to the conveyance on sale dated 15 December 1972 is of a scale that makes it impossible to extrapolate the line on the plan (which has thickness and translates to 2.5 meters to scale) to locate the boundary, when the difference between the parties’ experts is no more than 40cm apart.

(2)  Both experts agree that in seeking to re-establish the lot boundary in question, a surveyor should be guided by the following principles in Code §4:-

“In order to maintain a standard practice for re-establishment of lot boundaries, all Authorized Land Surveyors are required to follow the general principles set out below in performing their lot boundary re-establishment work:-

(a) Follow the intention of grant – the re-established boundaries (in terms of position and dimension) and the resultant shape of the lot should not deviate from that as shown on the land grant document, save that part of the lot which might have been surrendered to or resumed by the Government;

(b) Adopt original occupation – the re-established boundaries should follow those surviving boundary features that are found or believed to have been in existence when the lot was first granted or when it (in case of a section) was carved out from its parent lot;

(c) Respect existing boundary features – subject to sub-paragraph (b) above, the re-established boundaries should normally follow the existing boundary features (eg field bunds, fences, walls, hedges, ditches, channels etc) if the distance between these features and the relevant boundary line as shown on the grant / assignment / division plan is within the graphical accuracy of that boundary line. This notwithstanding, in case the exact dimensions of the subject lot are shown on the relevant grant / assignment / division plans, such dimensions should be respected unless they are proved to be wrong;

(d) Adopt common boundaries previously defined – common land boundaries previously defined by the Government or Authorized Land Surveyor should be adopted unless the previous boundary definition is proved to be wrong;

(e) Provide reasons for discrepancies – it is essential that the dimensions and areas of the adjacent lots be checked against their respective values as shown on the relevant land grant documents and plans or other related documents and plans, and the causes for any significant discrepancies in such dimensions and areas be identified, as this would help avoid creating any unwarranted excess or shortfall in area of undue boundary problems to the adjacent lots. In case the re-established lot boundaries should fall on some existing structures or space being occupied by persons other than the subject lot owner, extra care should be taken to ensure that no undue boundary conflicts would be inflicted as a result.”

(3)  Both experts also agree that the most important consideration is the intention of where the boundary should be as set out in the grant. However they differ as to how they infer such intention.

(a)  According to the Plaintiff’s expert, the intention of the carving out should be to separate the house from the farmland, and as the Old Fence was pre-existing and enclosed the house, he infers that the boundary should be where the Old Fence (now the Wall) is.

(b)  The Defendant’s expert agrees that the intention was probably to separate the house from the farmland, but he opines that since the pre-existing house already rested on the “retaining wall” as foundation for support, it would be surprising if the intention was to separate ownership of the house from the “retaining wall” under it, not least because the owner of the house would likely have an ongoing need to maintain the “retaining wall” to ensure the house remains structurally safe, and if the “retaining wall” is under the ownership of the neighbouring lot whose owner would have no interest in maintaining the structural safety of the house that would only complicate matters unnecessarily, and as such it was unlikely to be the intention of the grant to draw the boundary in a way as to separate the house from the “retaining wall” underneath. He therefore locates the bottom of the “retaining wall” where the boulders end, disregarding extended areas made up of loose soil or debris (so that the strip is narrower instead of wider)

(c)  I find the reasoning of the Defendant’s expert to be compelling, and the Plaintiff has not been able to suggest any answer to it.

(d)  Indeed, the reasoning of the Defendant’s expert is wholly consistent with principles (a), (b) and (c) in Code §4. As for principle (d), although as the Plaintiff points out the Defendant’s boundary is inconsistent with that in the 2^nd Plan (for which the Plaintiff’s expert has undertaken a lot boundary survey made a voluntary submission to the District Land Office), the Defendant’s expert explains that there was another earlier plan – the 1^st Plan – which depicts yet another boundary, and effectively neutralizes the 2^nd Plan and allows him to conduct his own independent survey.

40.  Accordingly, I find that the Plaintiff has failed to discharge his burden that OP1 to OP5 and DP5 constitute trespass on P’s Land.

B.  The Concrete Slab

41.  The location of the lot boundary has no impact on the Concrete Slab, for wherever the lot boundary may be, the Concrete Slab clearly situates in P’s Land.

42.  The question is whether the Plaintiff has discharged his burden of showing that the Concrete Slab was placed there by the Defendant, as a result of her 2014 renovations. In my view, the Plaintiff has failed to discharge that burden.

(1)  There is no contemporaneous photographic evidence of the Concrete Slab, in late 2014 or early 2015, even though the Plaintiff’s side has plainly taken photographs of other items complained about in September and October 2014. The relevance of such contemporaneous photographs is that they would have shown the condition of the Concrete Slab at the time, ie whether it was newly made or had been in situ for some time.

(2)  The only evidence the Plaintiff relies on to show that the Concrete Slab did not exist prior to 2014 is a series of aerial photographs between 2005 and 2017 exhibited to the Plaintiff’s expert report. The Plaintiff says they show a white object was first observed inside vegetation in May 2015.

(3)  However, the quality of these aerial photographs vary, and while some are clearer than others, it is by no means clear from the earlier ones (for instance those in 2009 and 2010) that there was nothing at the corresponding location then. On the contrary, a shadowing patch can be observed around the same area, although one is unable to say what it was.

(4)  Nor was there any other contemporaneous evidence that could shed light on the same. I refer to 2 demand letters that were sent by the Plaintiff’s solicitors on 21 January and 7 May 2015, which could have revealed whether the Concrete Slab was a matter complained of at the time, but these letters were not placed in evidence before me (see §19 above). I also note that the original Statement of Claim filed in April 2016 made no reference at all to the Concrete Slab, which only surfaced in the amendments introduced in December 2016.

(5)  The Defendant’s unchallenged evidence is that she only arranged for renovation works to be undertaken inside the area enclosed by the Wall. The only photograph of the Concrete Slab available (taken in August 2018) shows that it was square in shape and made of sharp, straight lines, indicating it was unlikely to have been created by cement accidentally dropping onto the ground but was deliberately built.

(6)  In the premises, I do not consider that the Plaintiff has discharged his burden, on a balance of probabilities, that the Concrete Slab was placed on P’s Land by the Defendant as the time of her 2014 renovations.

C.  The Ditch

43.  As explained in §14 above, the photographs in September and October 2014 show that the Ditch was dug on P’s Land, with PVC pipes placed in some parts of it.

44.  However, by the time the expert reports came to be prepared, in 2018:-

(1)  Although the Plaintiff’s expert noted a “ditch” in his report, his evidence was that such ditch was not man-made; rather it was formed by reason of water flowing across land.

(2)  The Defendant’s expert could not observe any ditch or open channel on P’s Land at all.

45.  As such, I find that while the Defendant (through her contractor) did create the Ditch on P’s Land at the time of the renovation works which was an act of trespass, the Ditch no longer existed at the latest by October 2018.

D.  Relief

46.  In light of my findings above, as well as the matters in §35 above, I now consider the question of relief for the trespass claim.

47.  To summarize:-

(1)  I found that the Plaintiff has failed to discharge his burden of proof with respect to OP1 to OP5 and DP5, as well as the Concrete Slab.

(2)  I found that the Defendant had created the Ditch, placed PVC pipes in it, and left debris on P’s Land, in late 2014 when the renovation works on D’s Land were underway, but those items have since been removed or ceased to exist.

(3)  As to the eaves, they had been voluntarily scaled back by the Defendant in 2019 such that there is no longer any issue about trespass.

48.  In the premises, given the only acts of trespass I find are historical ones and have ceased to exist, and there being no suggestion or evidence that the Defendant threatens to or is otherwise likely to repeat those acts, there is no basis to grant any prohibitory injunction for those past infractions.

49.  As to the mandatory injunction for reinstatement, the only live issue is the concrete foot path part of which was destroyed when the Ditch was dug through (as evidenced by contemporaneous photographs) (see §14 above). However, as can be seen from the dimension plan prepared by the Plaintiff’s expert and the photographs, the concrete foot path is located outside the fence, ie on government land instead of P’s Land. As such, it is not property belonging to the Plaintiff and the Plaintiff has no standing to complain about damage or seek reinstatement of the same.

50.  The Plaintiff has also claimed damages to be assessed, which is in principle available for the items in §47(2)-(3) above. However, the Plaintiff has adduced no evidence on what loss (if any) he has suffered by reason of those past acts of trespass, or the quantum of such loss. Accordingly the Plaintiff has failed to discharge his burden and no damages will be awarded for these past acts of trespass.

NUISANCE

51.  Again, the parties have no dispute over the applicable law:-

(1)  A private nuisance is committed by a person doing, on his own land, something which he is lawfully entitled to do, but the consequences of which extend to the land of his neighbour by (i) causing an encroachment on his neighbour’s land; (ii) causing physical damage to his neighbour’s land; or (iii) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land: Clerk & Lindsell §19-06. This case is concerned with nuisance of types (ii) and (iii) (see §23(2) above).

(2)  For nuisance of type (ii) (damage), liability is established by proving damage to the land, or “material injury to the property”, which includes visible physical deterioration: Clerk & Lindsell §19-08.

(3)  For nuisance of type (iii) (interference with enjoyment), it must be a real interference with the comfort / convenience of living according to standards of the average man, and the discomfort must be substantial to any person occupying the plaintiff’s premises. All the circumstances, including the time of the commission of the act complained of, the place of its commission, the manner of committing it, and the effect of its commission (whether the effects are transitory or permanent, occasional or continuous) have to be taken into account in determining whether the matter complained of is or is not productive of sensible personal discomfort such as to be regarded as nuisance: Clerk & Lindsell §§19-08, 19-10, 19-11. No financial or physical damage needs to be proved: §19-27 op.cit.

(4)  Whether proof of negligence of a defendant is required depends on the nature of his conduct – if he deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour and such harm is considered unreasonable infringement of his neighbour’s interest in the latter’s property by the court, he is liable for foreseeable consequences of his unreasonable user; if he knew or ought to have known that in consequence of his conduct harm to his neighbour is reasonably foreseeable, he is under a duty to prevent such consequences as are reasonably foreseeable; if the defendant is said to be continuing a nuisance, proof of negligence is essential: Clerk & Lindsell §§19-39, 19-40, 19-42.

(5)  In nuisance cases the plaintiff is prima facie entitled to an injunction if the court finds that there has been an unlawful interference with his use and enjoyment of the land that may be continued or repeated in the future, and will be denied only if special circumstances exist: Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] 1 Ch 149 at 181 & 194.

(6)  As to damages:-

(a)  Where damage to property has been caused, the general rule is that the measure of damages is the difference between the money value of the owner’s interest in property before and after the damage was done and not the cost of repair.

(b)  Where the nuisance involves interference with amenity and enjoyment of property the court must place a value on an intangible loss which cannot be assessed mathematically, by assessing the notional reduction in the rental value of the afflicted property, or assessing damages generally referring as appropriate to decided cases insofar as they are helpful, or a mixture of the approaches above.

See Loke Yuen Jean Tak Alice v Wong Kit Ying [2019] HKCFI 1895; HCA 495/2012 (unrep., 1 August 2019) §68.

52.  The conduct complained of in this case is the alleged discharge of sewage or filthy water from D’s Land onto P’s Land. It is said that the alleged nuisance falls within types (ii) and (iii) (ie causes actual damage to P’s Land and personal discomfort and inconvenience). The Plaintiff asserts that the alleged nuisance is continuing, and seeks injunctive relief as well as damages.

53.  Having regard to the evidence available, I find that the Plaintiff has established that non-natural fluid discharge was made from D’s Land in late 2014 (probably as a result of the renovation works thereon), but there is no evidence that such non-natural discharge continued after 2014.

(1)  The photographs taken on behalf of the Plaintiff in October 2014 clearly showed that white, foamy discharge was made from D’s Land and channeled through the Ditch into the government land surrounding P’s Land. Given the colour of the discharge, it was plainly not natural. From the location of the Ditch, such discharge would have originated from OP1 to OP3.

(2)  However, there is no documentary evidence that the non-natural discharge continued after 2014. For this period the Plaintiff relies on 2 matters – a number of photographs taken on 27 May and 27 June 2016, and some correspondence exchanged between a Sai Kung district counsellor and the Environmental Protection Department (“EPD”) between April and July 2016.

(a)  The 2016 photographs were taken by Cheng Jr, who claims that he has seen filthy water being discharged from OP1 to OP3 in 2016. However, none of those photographs show any discharge (least to say coloured ones) from OP1 to OP3. Instead, they show a water puddle at a location near a fence which, according to the description in the EPD letter referred to below, should be on the government land outside P’s Land. More importantly, the water puddle captured in the photographs shows clear water (unlike the 2014 photographs in (1) above).

(b)  In cross-examination, Cheng Jr insisted that he saw filthy water being discharged, and he claimed that he knew it was filthy because he had touched it and the water felt “smooth”. I am unable to accept such contention. Given Cheng Jr was present on P’s Land on that occasion and had taken the trouble to take photographs of various parts of P’s Land, it is inconceivable that if he had observed filthy water discharged from OP1 to OP3 he would not have taken photographs of the same. Instead, the photographs he has taken (which must reflect what he considered to best capture the wrongs allegedly done by the Defendant) do not in any way support the Plaintiff’s allegation.

(c)  As to the correspondence, the only relevant ones are the letters from a Sai Kung district counsellor dated 8 April 2016 and the EPD’s response on 24 June 2016. In the district counsellor’s letter, he referred to the Plaintiff having made a complaint to the EPD and the District Lands Office in December 2015 that there was unlawful sewage discharge into P’s Land (which is not in evidence) which was not heeded, and that the district counsellor had inspected an unidentified part of P’s Land at which he saw sugar canes and fruit trees being grown.

(d)  The more instructive letter is that from the EPD, where the EPD stated that it had carried out a number site visits (including one with Cheng Jr and the district counsellor), where no discharge of sewage water was observed from D’s Land or the pipes on the Wall; the puddle complained of – which was located on another lot – did not originate from D’s Land; and thereafter the EPD had carried out tests on D’s Land and the sewage tanks and toilets thereon and did not find any discharge from the pipes on the Wall. The letter went on to say that notwithstanding the above, the EPD would monitor the discharge from D’s Land and arrange for regular site inspection, and if any illegal discharge is found it would take enforcement action. There is no evidence that the EPD has ever taken any enforcement action against D’s Land.

(3)  The EPD’s letter is consistent with the Defendant’s evidence and the photographic evidence adduced by the Plaintiff that OP1 to OP3 are rain water pipes – as can be seen from the photographs taken from the concrete yard on D’s Land, the openings of OP1 to OP3 are at the edge of the concrete yard, they are not connected to anything and are clearly for the purpose of draining rain water falling onto the concrete yard (which previously was drained through the open Old Fence).

(4)  Finally, the Plaintiff’s expert also says in evidence that when he attended the site visit in 2017, he observed there was some water on the ground which was milky white, but that was on the side of HP1 and HP2 (as opposed to OP1 to OP3); he also saw some water droplets dripping from OP4 and OP5 but they were not white in colour. That, however, does not in any way substantiate the Plaintiff’s pleaded case.

54.  Given my finding that there was discharge of non-natural fluids from D’s Land in late 2014 (but not beyond), I go on to consider whether the Plaintiff can establish his case on nuisance.

(1)  With respect to nuisance under type (ii), physical damage to P’s Land is a prerequisite for the cause of action. I do not consider the Plaintiff has discharged his burden of showing physical damage in the form of damage to existing crops or plantation.

(a)  As explained in §12 above, the old aerial photographs showed that up to 2009, there was some cultivation on P’s Land near D’s Land, with clearly defined vegetable patches in the early days and more sporadic growths along the dirt footpath (inside P’s Land, parallel to the concrete footpath on the government land to its south) at a later stage. However, since 2012 there did not appear to be any cultivation on that part of P’s Land, and the dirt footpath became covered by overgrown and blurred.

(b)  The conditions on-the-ground of that part of P’s Land are consistent with the photographs taken by the Plaintiff’s side in late 2014, showing no evidence of cultivation but only weeds on the ground (especially the parts immediately next to the “retaining wall”). Further, there is no photographic evidence suggesting that the growth on P’s Land was damaged by the non-natural discharge – the photograph captions inserted by the Plaintiff stated that the growth was damaged by the digging of the Ditch.

(c)  I note that the Plaintiff did assert in his witness statement that the non-natural fluids had damaged the vegetables he grew, and that was consistent with the complaints he made to the district counsellor in §53(2)(c) above. However, there is no other evidence as to the allegedly damaged crops, which could readily have been captured by photographs and, given the matters in (a) above, plainly more than the bare assertion of the Plaintiff or Cheng Jr is required for the Plaintiff to discharge his burden.

(2)  As so nuisance of type (iii), the personal discomfort of the Plaintiff as pleaded was based entirely on there being damage to his crops to the extent that cultivation on P’s Land was said to have become impossible. I am also not satisfied that the Plaintiff has discharge his burden under this head:-

(a)  First, since his case is based entirely on damage to crops and I have already found that there was no evidence of such damage, the Plaintiff’s case necessarily fails.

(b)  In any event, as explained above P’s Land is a much larger piece of land and even if the rectangular portion immediately adjacent to D’s Land is rendered uncultivatable, there is no evidence that the rest of P’s Land has likewise been rendered uncultivatable. On the contrary, the letter from the district counsellor suggests that by June 2016, sugar canes and fruit trees were still observed in other parts of P’s Land.

55.  Accordingly, notwithstanding my finding that there was some non-natural discharge from D’s Land in late 2014, I hold that the Plaintiff has failed to discharge his claim in nuisance.

56.  As such, no question of relief arises. I should mention that even though the Plaintiff is seeking damages, he has adduced no evidence on the alleged physical damage. As to the loss of amenity, again the Plaintiff adduces no evidence on any notional reduction in rental value, and the authorities Mr Lok referred me to as the basis for his inviting me to grant general damages for loss of amenity all concern water leakage in multi-storey buildings which cause the affected premises to lose part if not all of the use of the premises during the affected period, which I do not consider to be in any way analogous or comparable to the present case.

ADVERSE POSSESSION

57.  As indicated in §28(5) above, Mr Chan accepts that if the Defendant’s pleaded counterclaim is confined to the Concrete Slab, he has no factual basis to support that. Accordingly the counterclaim must be dismissed.

CONCLUSION

58.  In light of my findings above:-

(1)  I will dismiss the Plaintiff’s claims in trespass and nuisance against the Defendant.

(2)  I will also dismiss the Defendant’s counterclaim.

59.  As to costs, which I have invited the parties to address me on at closing:-

(1)  I see no reason why costs should not follow the event. That applies to both the main claim and the counterclaim.

(2)  I have asked the parties to address me on whether costs should be on the High Court scale or District Court scale, since it is not obvious to me that the rateable value of P’s Land would necessarily have exceeded HK$240,000 (being the limit applicable at the time of commencement of these proceedings). However, neither party is able to provide any information or evidence on the rateable value of P’s Land, save that Mr Lok indicated those instructing him received instructions from the Plaintiff’s side that the rateable value should exceed HK$240,000 (which the solicitors have not verified). Mr Chan, on the other hand, explained that the Defendant has not attempted to transfer the matter down to District Court because the Plaintiff has claimed damages but did not particularize the amount claimed, and it only became clear after the exchange of witness statements that the Plaintiff puts forward no evidence on any alleged damage or notional loss of rental value, by which time the matter was too far progressed to be transferred to the District Court. As both parties are content for me to adopt the High Court scale, I will do so in the circumstances of this case.

(3)  Finally, I consider whether costs should be assessed on party-and-party or some other basis. This concerns the main claim, since it is clear that the counterclaim is wholly responsive to the main claim, and in any event there is no dispute between the parties the costs of the counterclaim would be insubstantial (both with respect to preparation of documents and evidence and the time used in trial).

(a)  It is well established that the court may award indemnity costs where the proceedings are scandalous or vexatious, or have been conducted maliciously, or for an ulterior motive, or in an oppressive or disproportionate manner, or involved an obviously unsustainable or fabricated claim, though the court’s discretion is a broad one and is not limited to the above circumstances: Choy Yee Chun v Bond Star Development Ltd [1997] HKLRD 1327, 1333I-1334H, 1335C-F, 1336G-I, 1337C, 1337F-J.

(b)  The parties’ conduct is a relevant consideration to the court’s exercise of discretion: RHC O.62, rr.5(1)(e). RHC O.62 r.5(2) provides that the conduct of the parties includes (i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (ii) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (iii) conduct before, as well as during, the proceedings.

(c)  I take into account the following matters in this case.

(d)  First, the nature of the Plaintiff’s complaints is – save for the allegation of discharge of sewage fluids causing damage to P’s Land – not serious or substantial.

(e)  Second, as for the nuisance allegation, the Plaintiff has not been able to adduce any evidence showing that it remained unabated after 2014.

(f)  Third, given (d) and (e) above and that the Plaintiff seeks permanent injunction, one would have thought that the Plaintiff should have progressed the case expeditiously. However, the case was moving very slowly in the first 2.5 years, and this lack of activity was wholly attributed to the Plaintiff, who amended his case twice because, as Mr Lok informed me, he was not satisfied with the 1^st Plan (which showed a different lot boundary to the one now claimed) and hence changed his expert to Mr Tang who then prepared the 2^nd Plan. This was a blatant attempt to expert-shop.

(g)  Fourth, it is clear from my findings above that there is a paucity of evidence on both liability and quantum aspects of the Plaintiff’s claims, which must have been obvious to the Plaintiff by the time he completed discovery and exchanged witness statements in early 2019. Nevertheless (and even after the Plaintiff’s demise) the main claim continues, cumulating in a 5-day trial.

(h)  In light of the above, I consider that it is appropriate that the Plaintiff should pay the costs of the main claim to the Defendant on an indemnity basis.

(4)  Accordingly I will order that:-

(a)  The Plaintiff do pay the Defendant costs of the main claim on an indemnity basis, to be taxed if not agreed.

(b)  The Defendant do pay the Plaintiff costs of the counterclaim on party-and-party basis, to be taxed if not agreed.

(c)  Costs in (a) and (b) be assessed on the High Court scale.

Annex A

Annex B

Annex C