TAI SANG FEEDS CO LTD AND OTHERS v. SHARPLY DEVELOPMENT LTD

HCA 1314/2020

[2021] HKCFI 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1314 OF 2020

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D E C I S I O N

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A. Introduction

1.  The defendant (“D”) is the owner of Lot 3250 RP SA subsection 23 SA (“Subject Land”), having purchased it by assignment on 15 February 2018, registered at the Land Registry on 14 March 2018.

2.  The plaintiffs (“Ps” or “P1-P6” respectively) are the owners/tenants of various land lots (together “Ps’ Land Lots”) which are near to – but not all contiguous to – the Subject Land.  At Annex 1 to this Decision is a copy of a location plan, showing the location of Ps’ Land Lots, and their points of entrance, and the Subject Land.

3.  By summons dated 6 August 2020, P1-P6 apply for an interlocutory injunction against D, arising from what they say is substantial interference with their rights of way over the Subject Land.

4.  The precise terms of the injunctive relief sought are as follows:

That, until judgment or further order, the Defendant, whether by its directors, officers, servants or agents, or otherwise howsoever, be restrained from doing the following acts, or any of them, that is to say, interfering with the Plaintiffs’ rights of way over the area shed orange as identified in the Lot Index Plan annexed to this Summons (hereinafter called ‘the Orange Area’) by stopping, preventing, hindering or otherwise interfering with the free and uninterrupted passage and flow of vehicular traffic on and along the Orange Area and, in so far as it is necessary to enable the 1^st-6^th Plaintiffs’ right of way to be exercised under this Order, the removal of the gate supported by a system of fence (or any other means of interference) on the Orange Area within 24 hours of the service of the Order hearing upon the Defendant’s registered office.

5.  The Order sought, therefore, contains both prohibitory and mandatory components.

6.  The matter first came before Anthony Chan J on 14 August 2020, when P1-P6 each sought an ‘interim-interim’ injunction, which was declined (see further below).  Instead, the Judge gave directions for the filing of evidence, and for the substantive argument to be adjourned.

7.  As well as the affirmation evidence and expert opinion evidence filed, the case has since been pleaded out in the Statement of Claim (endorsed on the Writ), the Defence and the Reply.

8.  I also gave leave to D to rely on a further affirmation, attached to D’s summons dated 18 December 2020.

9.  At the hearing, Ps were represented by Mr KM Chong and Ms Vivian Li; and D was represented by Mr Victor Luk and Mr Wa Shing Chan.

10.  This is my Decision on the application.

B.  The Shape of the Arguments

11.  The interests of P1-P6, which have been admitted by D in its pleading, have been identified in the pleading as follows:

(1)  P1 is the owner of Lot 3250 RP SB subsection 31 and Lot 4609 SA (“P1’s Land Lots”) since 11 March 1978 and 28 February 1977 respectively.

(2)  P2 is P1’s tenant of P1’s Land Lots carrying on business in the letting of equipment for the construction industry.

(3)  P3 is the owner of:

(a)  Lot 3250 RP SA subsection 2 SA (“1^st Part of P3’s Land Lot”) since 29 April 1987, carrying on business of plantation and garden in the name of King Fat Gardens (a firm); and

(b)  Lot 3250 RP SB subsection 32 (“2^nd Part of P3’s Land Lot”) since 14 May 1986, carrying on business as a workshop for car repair and letting of construction equipment in the name of Fan Keung Kee Transport Co (a firm).

(4)  P4 is the co-owner of Lot 3250 SA subsection 4B (“P4’s Land Lot”) since 1 November 1978 (and upon obtaining assignment from his co-owner on 4 November 2006).

(5)  P5 is the tenant of P4’s Land Lot, carrying on business for the repair of trucks and lorries under the name of Ming Kee (a firm) and a Fu Motors.

(6)  P6 is the owner of Lot 3250 RP subsection 2A (“P6’s Land Lot”) since 29 April 1987, carrying on business there of construction and housing development.

12.  On their behalf, Mr Chong emphasises that P1 derived its interest from Tai Sang Ralston Purina Feeds Ltd (“TSR”), the owner of Lot 3250 RP SA and Lot 3250 RP SB (before their further subdivision).  TSR was the grantee of the Deed of Right of Way of 1969 (“1969 Deed”).  Although the plan attached to the 1969 Deed is not as clear as one might hope, it sufficiently shows a right of way (“ROW”) giving access to and from P1’s Land Lot to the Fairview Park Boulevard (“FP Blvd”) – albeit that ownership of the lot itself was only take by P1 later.

13.  Mr Chong also says the use of the land lots of P1, P3, P4 and P6 in the course of the business of P1, P2, P3 and P5 require daily/regular vehicular access to them, so that substantial interference with the means of ingress to and egress from the land lots of P1, P3, P4 and P6 would be detrimental to their business, which could not be adequately compensated by a monetary award.

14.  Further, Mr Chong says it is noteworthy that the assignments by which P1, P3 and P4 obtained their respective land lots included assignments of all existing or subsisting rights of way and easements.  As for P6, though no copy assignment is available, Mr Chong says there is a statutory deeming provision that any right of way or easement existing as at 12 January 1987 would have been deemed assigned to him.

15.  Further, D obtained the assignment of the Subject Land including by way of a specific proviso (“Proviso”) that provided:

… Subject to … all subsisting rights, rights of way, privileges, easements … (if any) …

16.  Mr Chong does not include his quotation of the Proviso the words “if any”, but it seems to me that those words may be of real importance and must not be overlooked.

17.  P1-P6’s pleaded case relates to the allegation of substantial interference with (a) rights of way and (b) easement by prescription:

(1)  First, it is pleaded that by the 1969 Deed, the owners of Lot 3250 granted a right of way (“ROW”) to P1’s predecessor in title for, amongst other things, vehicular passage over Lot 3250 RP SA and Lot 3250 RP SB.

(2)  Further or alternatively, it is pleaded that immediately preceding 15 February 2018 the ROW had been exercised as the means of access to and egress from the land lots owned by P1, P3, P4 and P6 for a period of not less than 20 years (“Easement by Prescription”).

(3)  So, it is pleaded that by installing a system of fence enclosing the Subject Land and by closing/locking the gate on it since at the latest 20 July 2020, D has been in substantial interference with the ROW and the Easement by Prescription.

18.  In the Defence, it is pleaded that:

(1)  D has fenced off part of the Subject Land for is exclusive use (“Fenced Area”), which is located on the southern portion of the Subject Land.

(2)  D denies that its assignment was expressly subject to the Proviso.

(3)  D asserts the 1969 Deed was a registrable instrument, but was not registered under the Land Registration Ordinance (“LRO”), and that D was a bona fide purchaser without notice of either the ROW or the Easement by Prescription, so that the 1969 Deed was absolutely null and void against it in accordance with section 3(2) of the LRR.

(4)  Even if the ROW exists for the benefit of the land lots owned by P1, P3, P4 and P6, it would still be necessary for them and their occupiers to use the ROW.

(5)  There was and is an alternative vehicular access to and egress from the land lots of P1, P3, P4 and P6.

19.  It is also relevant to note now, though it is necessary to consider the point in more detail later, that Mr Luk emphasises that the various affirmations filed by P1-P6 since the first return date hearing are completely contrary to the original allegations made.

20.  It may also be important to note that D does not say that P1-P6’s rights (if any) are either extinguished or precluded.  Rather, it is D’s case that P1-P6 have no such subsisting rights, and that even if they do there is no substantial interference.  Further, for the purposes of this application, D says there can be no irreparable damages as might warrant the grant of any interlocutory injunctive relief.

C.  Applicable Principles

C.1  Interlocutory Injunction

21.  The principles applicable on an application for an interlocutory injunction are well-established; the American Cyanamid principles apply.  Therefore, a plaintiff has to show (a) a serious issue to be tried on his claim, (b) that damages would not be an adequate remedy, (c) that the defendant would be adequately protected by the plaintiff’s cross undertaking in damages should it later be found that the plaintiff should not have been granted an interlocutory injunction; and (d) that the balance of convenience is in favour of the grant of the injunction.

22.  At the interlocutory injunction stage, the principal concern of the court is that it might take a wrong decision in the sense that after trial the party to whom an interlocutory injunction has been granted may lose, or the party who has been refused one may win.  The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong.

23.  Sometimes, the importance attaching to the requirement to demonstrate the damages would not be an adequate remedy is overlooked.  However, it is paramount.  At the stage of an application for an interlocutory injunction, the Court is concerned with whether irreparable damage will occur before a trial can take place.  If there is no such irreparable damage demonstrated, then the need for an interlocutory injunction has not been shown.

24.  In the context of applications for mandatory injunctions, the usual principles are applied but modified to require a higher standard of proof; the plaintiff should identify a strong prima facie case such that the Court feels a high degree of assurance that at trial it will appear that the injunction was rightly granted.

C.2  Rights of Way / Easements

25.  It is trite that the extent of an easement in respect of a right of way depends upon the manner of its acquisition.  If the right is acquired by express/implied grant, the extent of it is a matter of construction in light of the circumstances.  If the right is acquired by way of prescription, the extent of the right must be measured by the extent of the enjoyment which is proved: see Megarry & Wade on The Law of Real Property 9^th Ed §§29-001 to 29-006.

26.  In Hong Kong, prescription based on the fiction of lost modern grant is the only method by which a right of way can be acquired by long use (at least after 1997) and the relevant period is 20 years: see China Field Ltd v Appeal Tribunal (Buildings) (No 2) [2009] 5 HKLRD 662 at §41.  Common law prescription is not applicable in Hong Kong.  But, at §84, was pointed out that people who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.

27.  If a plaintiff relies on such a right acquired by prescription, necessary particulars must be pleaded and proved to show the alleged use for the continuous period of not less than 20 years, which must be uninterrupted: see Cheung Leung Tak v Cheung Chi Hung [2018] 5 HKLRD 579 at §38.  The requirement for the alleged use for the continuous period of not less than 20 years does not require the claimant to establish that he himself has used the land for that period, so long as he and any predecessors in title I have used the land for that period.

28.  If the owner of the dominant tenement can establish a right of way has been acquired, it does not follow that he has an absolute right to use each and every portion of the right of way, but is only entitled to complain of substantial interference with that right by the owner of the servant tenement: see Lee Tai Property Development Ltd v Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193 at 198B-D.

29.  When considering whether a right of way has been substantially interfered with, the court looks at the position of the relevant land, over which the right of way is claimed, before and after the defendant’s activity of which the complaint is made.  It might also be said that the question is whether the right of way could be used substantially as conveniently as when it was granted.  What constitutes substantial interference may include curtailing the normal use and exercise of the right of way.  Hence, fencing or gating is capable of constituting a substantial interference.

C.3  Non-registration of Deed

30.  The non-registration of a registrable document/instrument does not render that document/instrument void and of no legal effect for all purposes.  It would only be void and of no legal effect as against a bone fide purchaser without notice: see section 3(2) of the LRO.

D.  First Hearing

31.  In the affirmation evidence originally leading the application for the ‘interim-interim’ injunction sought before Anthony Chan J on the first return date (“First Hearing”), P1-P6 alleged that the fencing off of part of the Subject Land caused the “absence of vehicular access” and so “a complete standstill” to their businesses since July 2020.

32.  Two days before the First Hearing, D filed a surveyor’s report showing that, notwithstanding the Fenced Area, all of P1-P6’s Land Lots could in fact be accessed by vehicles along alternative routes (“Alternative Routes”).  The Alternative Routes involved the use of Ha San Wai Road (“HSW Road”).

33.  At the First Hearing, Mr Chong suggested that evidence was misleading.  But Anthony Chan J pointed out that how that was so was not clear, when the evidence was supported by photographs and plans.  The Judge also rejected the submission that the HSW Road was “merely a dirt path over which vehicles could not pass”, as being not only unsupported by evidence but contradicted by the evidence, including that induced by P1-P6 themselves.  That evidence includes photographs clearly identifying the HSW Road as a properly constructed concrete road built by the Government.

34.  In addition, the Judge made the following points (which Mr Luk describes as “findings”, relevant to the present application):

(1)  If the evidence in D’s surveyor’s report, showing alternative routes open to P1-P6 enabling vehicular traffic from their land to reach the main road is accepted, it would falsify P1-P6’s allegation that their businesses have come to a standstill and undermine their case on irreparable damage, as well as urgency.

(2)  P1-P6’s complaint that the Alternative Routes would entail “considerable and lengthy travel” is exaggerated and “can hardly constitute proper support for an interlocutory injunction”.

(3)  In any event, D has agreed to pay into court a sum of HK$100,000 on account of additional fuel costs, if the court holds in favour of P1-P6 in the substantive hearing.  (D has since paid that sum into court.)

35.  Though I do not think those points amount to “findings” as such, they are clearly points relevant to the proper consideration as to whether or not to grant any interlocutory injunctive relief.  But, as will be seen below, it does seem that those points made by Anthony Chan J have led to a change of tack by P1-P6 in their evidence filed, and their approach taken, since the First Hearing.

E.  Submissions

E.1  P1-P6 Submissions

36.  Mr Chong submits that, on the pleadings of the parties, including D’s admissions, P1-P6 have established more than a good and arguable case against D for substantial interference with their rights under both the 1969 Deed and the Easement by Prescription over The Subject Land.

37.  As to the defence raised by D of being a bona fide purchaser without notice, Mr Chong broadly submits as follows:

(1)  D cannot take the benefit of section 3(2) of the LRO, because D cannot say it purchased without notice. Rather, D acquired the Subject Land in 2018 expressly subject to the Proviso.

(2)  Further the Proviso was wide enough to cover both the 1969 Deed and the Easement by Prescription.  P1-P6 rely on the analysis of aerial photographs taken by the Hong Kong Flying Service between 27 May 1997 and 12 May 2020 which identified the Subject Land was part of a hard paved road for access to and egress from the land lots owned by P1, P3, P4 and P6 for a continuous period of not less than 20 years immediately preceding 15 February 2018, when D acquired the Subject Land.

(3)  D’s expert report does not challenge the findings from the aerial photographs made in P1-P6’s expert report.  Rather, D’s own expert takes the view that the Subject Land mainly served as a road, whilst the Fenced Area with metal locked gate is situated at the southern side.

(4)  Hence, the defect or liability of the land was obvious, as a patent defect which cannot be thrust upon the purchaser as one arising either to the eye or by necessary implication from something which is patent to the eye: see Yandle & Sons v Sutton [1922] 2 Ch 199 at 210.  So, even in the absence of the Proviso in its assignment, D would have been aware of the fact that its land was used as part of the road for vehicular access, creating the Easement by Prescription by operation of law.

38.  When pressed about the pleading that P1-P6’s rights had been created under the common law of prescription, Mr Chong confirmed that, whilst the pleading does not specifically refer to any particular aspect of the common law, the pleading is intended to be a reference (only) to obtaining a common law right of way by prescription through the doctrine of lost modern grant.

39.  As to the D’s defence denying the assignment was subject to all existing easements including the ROW, Mr Chong submits the pleading is unclear but in any event irrelevant. However, on the assumption that the denial covers both the 1969 Deed and the Easement by Prescription, the denial would constitute a defence of non est factum and be contrary to established legal principle.

40.  Further, Mr Chong submits that as a matter of construction the wording of the Proviso is clear. The reference to all subsisting rights of way and easements covers every kind, and all kinds, of those rights in any event, Mr Chong submits, the operation of easement by prescription as a matter of law, which does not depend on the Proviso, and the evidence demonstrates more than 20 years use by P1, P3, P4 and P6 and their predecessors in title.

41.  As to the assertion by D that it is necessary for the owners and occupiers to use the right of way across the Subject Land, Mr Chong submits that P1, P3, P4 and P6 took their assignments with the benefit of all existing rights of way and easements, and D took its assignment expressly subject to the Proviso.

42.  As to the point of the Alternative Route, as a substitute for the 1969 Deed and/or the Easement by Prescription, Mr Chong submits that taking the Alternative Route would necessitate P1-P6 going through a remote and indirect route which would be inconvenient, and that the Alternative Route is difficult for heavy lorries to manoeuvre through various corners due to the road conditions, when compared with the more direct and easy ROW.

43.  Further, and in any event, the existence of the Alternative Route would not extinguish other rights or preclude the exercise of those rights, and there is no other evidence of extinguishment.  Mr Chong submitted it is irrelevant that there may be another way, or even many other ways, of access to Ps’ Land Lots when considering whether or not the ROW exists.

44.  As to the form of the injunction sought, Mr Chong submitted that it was not really a mandatory injunction.  Rather, P1-P6 were seeking a prohibitory injunction, albeit one which required D to take some steps to give effect to and so as to comply with the prohibitory injunction.

E.2  D’s Submissions

45.  Mr Luk submits that it cannot be in dispute – or, at least should not any longer be in dispute – that all of P1-P6 (and their visitors etc) can gain access to and egress from their respective land lots by vehicles via the Alternative Routes.  By way of summary:

(1)  P1 (and P2)’s Land Lot, and the Northern Part of P3’s Land Lot do not adjoin the Subject Land at all, and it is not necessary for P1, P2 or P3 to pass through the Subject Land for access to and egress from their lots.

(2)  Indeed, the main entrance of the Northern Part of P3’s Land Lot is located directly on the HSW Road, and another two entrances as well as the entrances of P1 (and P2)’s Land Lot are located on an unnamed track (“Unnamed Track”) connecting the eastern end of the HSW Road and the northern end of the Subject Land.  Therefore, all entrances do not adjoin the Subject Land, and it is not necessary for P1 and P2 to pass through the Subject Land for their access and egress.

(3)  The entrance of the Southern Part of P3’s Land Lot, P4 (and P5)’s and P6’s Land Lots are adjoining to the unfenced northern portion of the Subject Land (“Unfenced Portion”) and it is not necessary for P3 to P6 to pass through the Fenced Area for the access and egress of their respective land lots.

(4)  P3 to P6 have been and still are using the Unfenced Portion for access to and egress from their respective land lots (whether or not they have a right of way over it).

46.  Further evidence filed by D in a second surveyor’s report also shows that the Alternative Routes, by the HSW Road and Kam Pok Road, are capable of providing proper access to and from all of P1-P6’s lands.  The HSW Road is a 7-metre two-lane and two-way road completed in around 2008, built and maintained by the Highways Department of the Government. Original construction of those roads can be seen in 2003 and 2005 aerial photographs, and subsequent road realignment and widening was completed between November 2008 and November 2009.

47.  D has also filed video evidence showing that, since at least the day after the first return date hearing, heavy vehicles such as lorries and/or articulated vehicles have constantly gained access to the entrances to P1-P6’s Land Lots via the Alternative Routes without hindrance, and that there have been ongoing business activities on those lots without disturbance.  I will return to the video evidence below.

48.  In response to that various evidence, as well as the points made by Anthony Chan J at the First Hearing, P1-P6 have filed further affirmations which Mr Luk submits contain materials completely contrary to their original allegations.  In particular Ps’ surveyor’s report expressly acknowledges the existence and usage of the Alternative Routes, and that those routes are capable for large long container vehicles to drive through.  It is for that reason, Mr Luk says, that P1-P6 put forward their new case by saying (1) the Alternative Routes are “substantially inconvenient”, (2) passing through the Subject Land (even in the case of P1, P2 and P3) is “the only feasible means”, and (3) illegal parking in the HSW Road renders it too narrow.

49.  Mr Luk complains that these points are inconsistent with the original allegations, and that the failure earlier to have drawn the court’s attention to them was a misleading approach to the original basis of the application.  The references about the Alternative Routes, and the offered explanation as to why they are not suitable, only emphasises the previous non-disclosure.  Further, Mr Luk points out that it is incorrect for it now to be suggested that the Alternative Routes were “proposed” by D, when they have clearly existed since no later than 2008, and P1-P6 must have been aware of that fact from the very nature of the businesses operated by them and the proximity of the Alternative Routes to their various land lots.

50.  By reference to the legal principles (set out above), Mr Luk submits that P1-P6’s allegation as to the existence of any common law right of way acquired by prescription must fail.  Further, P1-P6 cannot satisfy the burden on them to show to the court with the necessary high degree of assurance either (1) that they all could prove at trial that their respective lands are the dominant land is having a right over the Subject Land as the Serbian land, either by the express grants or by way of common law prescription as alleged, or (2) the subsequent inconsistent complaints amount to substantial interference with their alleged rights, causing irreparable damage that cannot be compensated by an award of damages as might warrant a mandatory interlocutory injunction.

51.  Mr Luk submits that, because the 1969 Deed was never registered – a fact neither brought to the attention of the court at the return date hearing, nor pleaded in the statement of claim – there is no reason why D would have notice or knowledge (whether actual or constructive) of the existence of the deed and its content.  In so far as P1-P6 now seek to raise a new allegation of bad faith against D, Mr Luk seeks leave to file a further affirmation showing the circumstances of the conveyance of the Subject Land in bundle with other land lots.  That affirmation rebuts the allegation that D was not a bona fide purchaser for valuable consideration without notice.

52.  Mr Luk also submits that there is no reference in the respective assignments of P3, P4 and P6 showing the Subject Land is subject to the alleged ROW.  Nor, he says, is there the necessary particularisation as to the alleged use by vehicles (and particularly heavy vehicles) for a continuous period of not less than 20 years which might support any claim to the Easement by Prescription.  Historical features of the Subject Land have little, if any, evidential value to substantiate what are in essence bare allegations.  Aerial photographs by their nature provide scant evidence of the nature and extent of vehicular traffic on the Subject Land, and in particular as to any continuous use: see, for example King Lucky Development Ltd v Niceway Consultants Ltd [2020] HKCFI 524 at §§ 33, 34, 37, 38 and 41.

53.  Mr Luk also submits that there is no real evidence of substantial interference.  The original complaint has been completely falsified, as P1-P6 are using the Alternative Routes to gain access to and egress from their respective land lots and their business operations are ongoing.  Further, P3 to P6 can use, and are still using, the Unfenced Portion as an access way.  Also, the comparison of distance between the original route and the Alternative Routers misleading and of little practical value, and even on their own evidence, P3’s main entrance situate at around the middle of the HSW Road has been used by heavy vehicles from many years.  Even parked vehicles does not provide much of a hindrance to passing traffic, and there is no suggestion that P1-P6 have tried properly to resolve any illegal parking issues by complaining to the relevant authorities.

54.  So, Mr Luk submits that the fencing of of part of the Subject Land cannot have rendered any of P1-P6’s Land Lots inaccessible, the Alternative Routes are being used and business operations are ongoing.  Hence, there is nothing to show that any irreparable damage would be caused which cannot be compensated by an award of damages, nor is there any urgency in seeking an interlocutory mandatory injunction.

55.  As to the form of the injunction, Mr Luk submitted that what was sought was a mandatory injunction.  It sought the demolition of the fencing and gates put up to create the Fenced Area.

F.  Analysis

56.  It might be convenient if I deal firstly with the form of the injunction sought.  It seems to me that Mr Luk is plainly correct when he describes the injunction as being, at least in part, a mandatory injunction.  The relief sought by P1-P6 includes the removal of physical fencing and gating structures.  That triggers the necessary scrutiny of the merits which I have described above.

57.  Further, though the position of P1-P6 has been put forward in a monolithic fashion, it seems to me that the position of each of the plaintiffs will ultimately fall to be considered individually.  Further, even for the purposes of the current application, I do not lose sight of the fact that different considerations may apply in relation to each of P1-P6, both as to the merits of their individual claims and to the other aspects relevant to the grant or refusal of interim interlocutory relief.

58.  I acknowledge that the 1969 Deed appears to deal with the grant of rights over a track or road providing access to and from a road which later when extended became the FB Blvd.  This can be seen from the plan attached to the 1969 Deed.  At the time, there was no other access, for example in the form of what was later constructed as the HSW Road.  Nor was the FB Blvd present, either at all or in the form which is now the case.  The 1969 Deed was made apparently before the various subdivisions of land – in particular the subdivisions of Lot 3250 BRP – which have created (amongst other things) the various Ps’ Land Lots.

59.  It does seem likely, therefore, that for a time until around 2005 the only access or egress point to P1’s Land Lot would have required passing over the Subject Land.  It may also be the case that when the land was subdivided to create, amongst other parcels, the various other of Ps’ Land Lots, the Subject Land became an obvious point or route for access and egress to those lots.  That is perhaps most obviously the case in relation to P4’s Land Lot and P6’s Land Lot, and perhaps also P3’s Land Lot.  As regards the position of P4 and P6, that likely remained the case even after the construction of the HSW Road, as those lots are closer to the FB Blvd.

60.  However, from the time of the construction of the HSW Road, access to and egress from P1’s Land Lot and P3’s Land Lot did not necessarily require passage over the Subject Land.  It was the construction of the HSW Road which created the division between the Northern Part and the Southern Part of P3’s Land Lot.  Indeed, following its construction, and depending on the direction of approach, it may well have been just as convenient or even preferable to have used access via the HSW Road.  At least from the aerial photographs, the main entrance to the Northern Part of P3’s Land Lot appears clearly shown to be on the HSW Road.  That all may be something which requires further exploration at any trial.

61.  It might also be noted that the track or road shown on the plan attached to the 1969 Deed is somewhat narrower than the width of the Subject Land.  However, the aerial photographs and accompanying plans show that part of the track or road across the Subject Land later became wider towards its junction with the FB Blvd (on the southern and eastern side). Nevertheless, the aerial photographs for the period from 1997 to 2018 identify the Subject Land was used for access connecting to the FB Blvd, albeit that the photographs do not themselves identify who was actually using the access from time to time or over what period.

62.  Turning to the individual complaints, I agree with Mr Luk that P1-P6 have not dealt appropriately, if at all, with the mutually exclusive inconsistencies between their original case and the altered case subsequently put forward.  Though I do not need to decide whether there was any conscious attempt to mislead, the fact is that the originally framed case has shifted, and has done so against Anthony Chan J’s comments and the evidence from D.  That shift adversely impacts the weight to be given to P1-P6’s evidence.

63.  Essentially, D’s evidence has disproved the original grounds of the application because: (1) only part of the Subject Land is enclosed by the Fenced Area; (2) the various land lots are accessible via the HSW Road, which is clearly not a dirt path; (3) their businesses were and are ongoing, and have not been put to a complete standstill; and (4) P1-P6 knew of and have been using the Alternative Routes.

64.  Some of the video evidence was shown to me in court, backed by a schedule prepared by Mr Luk (or his team) broadly describing what is shown in the videos.  By way of summary only, I think the videos demonstrate absolutely clearly that all of Ps’ Land Lots are readily accessible using the Alternative Route, and in particular via the HSW Road. Whilst it is correct that in some of the videos there appear to be some large vehicles parked along the HSW Road, so that occasionally traffic would have to give way to traffic coming from the other direction, the speed at which the vehicles were being driven to the various Ps’ Land Lots did not seem to me to demonstrate any real concern or hesitation.

65.  Importantly, some of the videos were taken in the few days in advance of the First Hearing.  It is, therefore, perfectly clear that by the date of the First Hearing Ps knew that they had, and had been exercising, ready access to Ps Land Lots notwithstanding their complaints about the interference with the rights they claim over the Subject Land.  They also knew that there had not been a cessation of their businesses, and that no cessation of business was really necessary because of the availability of the Alternative Routes.

66.  Further, in so far as access was being obtained to the northern part of P3’s Land Lot (other than the entrance which opened directly onto the HSW Road) and to P1’s Land Lot, that always apparently necessitated using the Unnamed Track.  Indeed, the Unnamed Track is essentially the northern part of the ROW apparently granted by the 1969 Deed.  The videos show a significant number of parked vehicles along the Unnamed Track – which vehicles are not suggested to have anything at all to do with D, and which are some distance from the Subject Land – yet access to and egress from those particular land lots is either not seriously hindered or any hindrance is irrelevant to the current claims.

67.  The aerial videos shown to me also seem to demonstrate that the Northern Part of P3’s Land Lot was internally demarcated or divided.  Therefore, if access is intended to the southern part of that area, access would be effected only through the entrance (Entrance 1 shown on Annex 1) which opens directly onto the HSW Road.  If access is intended to the northern part of that area, access would be along the HSW Road to its eastern end, then by turning left/north onto the Unnamed Track to go to either entrance on the track (Entrances 2 or 3).

68.  Access to the Southern Part of P3’s Land Lot is effected via Entrance 4 as shown on Annex 1, which requires passing over the Subject Land, and which remains possible because that is the Unfenced Portion.  Access to P4’s Land Lot and P6’s Land Lot is also effected over the Unfenced Portion of the Subject Land.

69.  I agree that there is no basis in the evidence to suggest, or at least to support an assumption, that P3 to P6 have derived any interest in or through P1’s Land Lot.  There is nothing in any of the relevant assignments showing the Subject Land is subject to the alleged rights of way in their favour, other than general language referring to various rights “if any”.  There is also some force in Mr Luk’s submission that the lack of a copy of the assignment under which P6 makes a claim may be fatal (and it is at least unhelpful to P6 at the interlocutory stage).

70.  I agree that any claim based upon the common law – unless limited to a claim on the doctrine of lost modern grant – must fail. Further, the case based on the Proviso is, to say the least, not very strong when the Proviso was never registered and it is improbable that D can be imputed to have notice or knowledge of unproved and unwritten rights, the extent to which they might go, and to whom they might belong.  This is not a matter of interpretation, but rather a matter of giving effect to section 3(2) of the LO.  One of the reasons why registration is required of a registrable instrument is to give notice to the world at large, and to relevant conveyancing parties, of matters with sufficient certainty to identify what is contracted for and what and whose interests are protected.

71.  I acknowledge that the Subject Land was, or included, a road at the time D acquired it.  But that does not of itself necessarily mean that D is to be treated as having notice of the length of any previous use, or of a particular right having arisen, or, if so, to whom that right had enured.  In other words, it does not mean that there is necessarily the reasonable imputation of notice of a legal right acquired by a specific land owner (and/or his predecessor in title) by 20 years of uninterrupted use.

72.  For example, it does not seem to me to be obvious that any person whose land was not contiguous to the Subject Land would have a right to pass over it.  That would seem to me to be all the moreso, if that person’s land is not only not contiguous but is the other side of a 7-metre wide, two-lane road built and maintained by the Highways Department. That is of significance in relation to P1’s claim (and probably P3’s claim), and also of significance to the other claims if they are said somehow to depend upon the interests of P1.

73.  In the absence of proof of long-term usage, the claim to the Easement by Prescription would be flawed.  In any event, as Mr Luk says, D has not enclosed the whole of the Subject Land for its exclusive use, and it has not done so because it sees some need for access and has reserved the Unfenced Portion to permit P3, P4/P5 and P6’s access and egress (whether or not they actually have a right over the Subject Land).

74.  But even if there were sufficient merits in the claim – and I do not think that there are for at least most of Ps – I do not see in the present circumstances why damages would not be an adequate remedy. The evidence filed by P1-P6 as to the detrimental effect of the substantial interference with the rights they claim over the Subject Land is rather vague and unconvincing.  It is also difficult to reconcile with the clear video evidence which I have described above.

75.  That point seems to me to be fatal to the application.  But, in any event, I think the balance of convenience is in favour of refusing the injunction.  To put it another way, the risk of injustice seems to me to be lower if the injunction is refused.  All of P1-P6 currently have proper access to and egress from their various land lots, even if some element of inconvenience (or less convenience) is put forward.  As to the potential monetary claim, D has paid into court the $100,000 required, and that money will stay in court pending the determination of the substantive claim at trial.

G.  Result

76.  Therefore, the application is dismissed.

77.  At present, I see no reason why the costs should not follow the event.  Therefore, I order P1-P6 to pay D’s costs of the application, to be taxed if not agreed.  However, I shall do so first on a nisi basis.  The order will become absolute after 14 days, unless in that time any party applies for variation of the nisi order.  Any variation application will be dealt with on paper submissions.  The applicant shall identify the proposed variation, and brief submissions as to why it says the variation as appropriate.  The respondent to any application for variation shall then have 14 days to respond.  Any costs submissions filed by any party are limited to 10 pages.

78.  At the hearing, I also noted that much of the evidence as would be necessary for a trial appeared to have been produced already.  Therefore, it would be in the interests of the parties to bring this matter to trial as quickly as possible.  However, I do not see any particular reason why this case should be ordered to have a speedy trial.  Rather, the parties should simply seek the case to be set down for trial.

Annex 1