CHAU TAT WING, suing in his own capacity and as the sole executor of the estate of WONG TIM LUN, deceased v. WONG KWAI WAN AND ANOTHER

CAMP 130/2025, [2026] HKCA 63

On An Intended Appeal From [2024] HKDC 2067,

[2025] HKDC 517 & [2025] HKDC 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 130 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 3244 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Plaintiff’s renewed application for:

(1)  leave to appeal against (i) the judgment of His Honour Judge Harold Leong dated 12 December 2024 in DCCJ 3244/2022 (“the Action”) as amended or varied on 31 March 2025 (“the Judgment”), whereby the Judge, inter alia:

(a)  dismissed the Plaintiff’s claim against the 1^st Defendant in the Action;

(b)  ordered the Plaintiff to deliver up vacant possession of the Area (“the Area”) described in §4(f) of the 1^st Defendant’s Re-Amended Defence and Re-Amended Counterclaim dated 2 October 2019 (“D1 D&C”);

(c)  ordered the Plaintiff to pay (i) the 1^st Defendant’s costs of the Action incurred prior to 11 July 2022 on the High Court scale, (ii) the 1^st Defendant’s costs of the Action on an indemnity basis, and (iii) enhanced interest at the judgment rate plus 5% per annum on the sum of HK$1,000,000 from 20 April 2024, being the date on which the 1^st Defendant paid the said sum to his solicitors as costs on account, to the date of judgment (“the Costs Order”); and

(2)  stay of execution of the Judgment pending appeal.

BRIEF BACKGROUND

2.  The basic facts of this case have been set out in the Judge’s reasoned judgment dated 12 December 2024 (“the Main Judgment”), and will not be repeated here.

3.  In brief terms, this case concerns a boundary dispute between (i) the Plaintiff, being the registered owner of a plot of land in Yuen Long, New Territories, known as Sub-section 2 of Section C of Lot 2457 in DD 129 (“P’s Land”), and (ii) the 1^st Defendant, being the registered owner of a neighbouring plot of land known as the Remaining Portion of Lot 2465 in DD 129 (“D1’s Land”). The dispute can conveniently be explained by reference to a survey plan attached to D1 D&C marked “A” (“the 2012 Survey Plan”), a copy of which is annexed to this judgment:

(1)  The central issue concerns the correct boundary line between the southern portion of D1’s Land and northern portion of P’s Land.

(2)  According to the 1^st Defendant, the correct boundary line runs along the points marked “Q”, “R”, “Z”, “AA”, “AB” and “S” and coloured red on the 2012 Survey Plan (“D1’s Boundary Line”). The 1^st Defendant’s case is supported by the 2012 Survey Plan which Mr Henry Chan, an authorised land surveyor, prepared on behalf of the 1^st Defendant after a land survey carried out by him in September 2012 (“the 2012 Survey”).

(3)  On the other hand, the Plaintiff says that the correct boundary line is a straight line running along the points marked “R” and “S” on the 2012 Survey Plan (“P’s Boundary Line”). The Plaintiff’s case is supported by an earlier survey plan (“the 2006 Survey Plan”) which Mr Henry Chan prepared on behalf of the 1^st Defendant after a conducting a land survey in November 2006 (“the 2006 Survey”) in connection with another boundary dispute between the 1^st Defendant and a neighbouring lot (Sub-section 10 of Section E of Lot 2466 in DD 129).

(4)  The practical difference between the Plaintiff and the 1^st Defendant is that, on the 1^st Defendant’s case, the portion comprising (i) the area coloured yellow hatched black (ie the Area), and (ii) an adjacent area coloured blue on the 2012 Survey Plan (collectively “the Portion”) belongs to the 1^st Defendant, whereas on the Plaintiff’s case, the Portion belongs to the Plaintiff.

(5)  The Plaintiff and the 1^st Defendant’s difference has also an impact on the 1^st Defendant’s access to Lot 2451 in DD 129, a part of which had been resumed by the Government (“the Government Land”) for the purpose of building a road. On the 1^st Defendant case, there would be direct access from D1’s Land to the Government Land through the Portion. On the other hand, on the Plaintiff’s case, there would not be any direct access from D1’s Land to the Government Land, or any boundary line between D1’s Land and the Government Land; instead, 4 pieces of land (“the 4 Lands”), namely, P’s Land, D1’s Land, the Government Land and another plot of land (namely, the Remaining Portion of Lot 2450 in DD 129) belonging to a third party would be joined at a single point, namely, Point “S” on the 2012 Survey Plan[1].

4.  In the Action commenced by the Plaintiff against the 1^st Defendant (originally as HCA 3098/2015 which subsequently became DCCJ 3244/2022) on 29 December 2015, the Plaintiff claimed against the 1^st Defendant for a declaration in respect of what he contended to be the correct boundary line between P’s Land and D1’s Land, and damages for trespass.

5.  The Plaintiff’s claim was disputed by the 1^st Defendant, who brought a counterclaim against the Plaintiff for (i) delivery up of vacant possession of the Area which the Plaintiff had enclosed/partially enclosed by the construction of a low wall along a part of P’s Boundary Line in or about September 2012, and (ii) mesne profits for the period from September 2012 until the date of delivery up of vacant possession of the Area.

6.  The Plaintiff joined the Secretary for Justice (sued for and on behalf of the Director of Lands, “the Director”) as the 2^nd Defendant in the Action in 2017 on the following basis:

(1)  on 10 September 2012, the 1^st Defendant, through Mr Henry Chan, deposited the 2012 Survey Plan with the Lands Department for the purpose of showing that the correct boundary line between P’s Land and D1’s Land was as per D1’s Boundary Line;

(2)  the Director apparently accepted the 2012 Survey Plan submitted on behalf of the 1^st Defendant;

(3)  on 19 October 2012, the Survey and Mapping Office updated the relevant lot index plan which showed the boundary line between P1’s Land and D1’s Land as per the 2012 Survey Plan; and

(4)  in so doing, the Director “wrongfully or negligently caused or allowed a Lot Index Plan dated 21^st June 2016 (‘the 2016 Lot Index Plan’) … to be produced by the Survey and Mapping Office of the Lands Department, thereby alter[ing] the boundary between [P’s Land] and [D1’s Land] to a state similar to that in the [2012 Survey Plan]”[2].

7.  The Plaintiff accordingly claimed against the 2^nd Defendant for (i) a declaration in respect of what he contended to be the true boundary line between P’s Land and D1’s Land, and (ii) orders that the 2012 Survey Plan and 2016 Lot Index Plan be removed from the file(s) of the Lands Department.

THE MAIN JUDGMENT, THE FURTHER DECISION AND THE LEAVE DECISION

8.  The Action was tried by the Judge on divers dates in April and May 2024. On 12 December 2024, the Judge gave the Main Judgment. In that judgment:

(1)  The Judge took the Plaintiff’s case against the 1^st Defendant as being merely that “he [had] wrongfully and without knowledge or consent of P filed the 2012 Survey [Report] with the Lands Department”[3], and held that the Plaintiff’s claim against the 1^st Defendant was misconceived[4] because, amongst other things, (i) the Plaintiff had failed to demonstrate that the filing of a survey report by the 1^st Defendant with the Director was wrongful, or that the filing of a survey report with the Director would require the knowledge or consent of the Plaintiff[5], and (ii) in any event, the 2012 Survey Report was signed and certified by Mr Henry Chan, and it was Mr Henry Chan, not the 1^st Defendant, who was personally responsible for any dispute concerning the accuracy of the 2012 Survey Report and liable for any loss as a result of the 2012 Survey Report[6].

(2)  The Judge took the Plaintiff’s case against the 2^nd Defendant as merely raising a claim of “negligence” against the 2^nd Defendant[7], and held that the Plaintiff had failed to show that the 2^nd Defendant owed to the Plaintiff a duty of care, and further failed to prove any breach of such duty of care on the part of the 2^nd Defendant[8]. The Judge considered that any liability on the part of the 2^nd Defendant would be excluded by s 33(1) of the Land Survey Ordinance, Cap 473[9]. Lastly, the Judge held that the Plaintiff’s claim against the 2^nd Defendant was entirely misconceived[10] because –

“[67] It is no business of the court to provide an ‘alternative forum’ to override a decision made by an appropriate authority, institution or body when such decision or discretion has been exercised properly in accordance with its own procedures within its own power.

[68] P should have followed the proper procedures by producing Tang’s Report to [the District Survey Office] to seek a review. Instead, he chose to bring this dispute to the court dressed up as a negligence claim”.

(3)  Notwithstanding the above conclusions, the Judge went on to consider the evidence in the case concerning the true boundary line between P’s Land and D1’s Land:

(a)  The Judge considered that the evidence of Mr Tang (the Plaintiff’s expert surveyor) as regards the accuracies (or inaccuracies) of the 2006 Survey and 2012 Survey to be unconvincing[11].

(b)  The Judge considered that Mr Tang should not be permitted to advance a “new theory” (“the New Theory”) at the trial some 3½ years after the parties’ experts had prepared a joint statement on 24 November 2020[12]. The New Theory was to the effect that (i) the boundary areas between P’s Land and D1’s Land were actually gullies, (ii) there were natural changes to the boundaries as a result of rainwater flowing down the gradient during heavy rainstorms, (iii) in consequence, there was a change of the boundary of the 4 Lands in the form of a slanting “Double-Y” feature to a more “vertical” junction shaped like a “cross” as shown by a comparison of the 1949 and 1963 aerial photographs, and (iv) applying the “Mid-Line Practice”, an alteration of boundary features should be adopted as long as the changes were natural and not man-made[13].

(c)  The Judge held that, in any event, even if the New Theory was to be entertained, it would fail to support the Plaintiff’s clam that the 2006 Survey Plan was more accurate than the 2012 Survey Plan[14].

(d)  Both the 1^st and 2^nd Defendants’ experts supported the accuracy of the 2012 Survey Plan over the 2006 Survey Plan.

9.  The Judge accordingly dismissed the Plaintiff’s claims against the 1^st and 2^nd Defendants, and the 2^nd Defendant’s counterclaim against the Plaintiff, and made an order nisi in respect of the costs of the Action in favour of the 1^st and 2^nd Defendants (“the Order Nisi”). However, he did not make any adjudication on the 1^st Defendant’s counterclaim against the Plaintiff.

10.  On 23 December 2024, the 1^st Defendant issued a summons seeking (i) judgment on the 1^st Defendant’s counterclaim against the Plaintiff, and (ii) an order to vary the Order Nisi. On 31 March 2025, the Judge gave a written decision (“the Further Decision”) acceding to the 1^st Defendant’s applications. In the Further Decision:

(1)  The Judge considered that the omission to deal with the 1^st Defendant’s counterclaim in the Main Judgment was an obvious mistake which should be corrected under the court’s inherent jurisdiction to rectify mistakes or reconsider a judgment which had not yet been sealed[15].

(2)  Although the court had no jurisdiction to merely adjudicate on which survey plan was “more accurate”, it had jurisdiction to “enforce the boundary according to the survey map currently maintained by the Director under clause 4(a) of the [Land Survey Ordinance]”[16].

(3)  The Judge held that the boundary between P’s Land and D1’s Land was determined by the current records maintained by the Director, ie the 2012 Survey Plan, which showed, inter alia, that the Area was part of D1’s Land. Since it was not in dispute that the Plaintiff had constructed a wall on the Area, it followed that the Court would find for the 1^st Defendant on its counterclaim for trespass against the Plaintiff[17].

(4)  The Judge thus made an order for possession of the Area in favour of the 1^st Defendant against the Plaintiff. However, the Judge was not prepared to make any award in respect of the 1^st Defendant’s claim for mesne profits because (i) the 1^st Defendant had not provided any evidence to support the “market rate” of the Area, and (ii) in any event, the Area was small in size[18].

(5)  The Judge also varied the Order Nisi by the Costs Order.

11.  By a summons dated 9 January 2025 as varied by a further summons dated 23 April 2025, the Plaintiff applied for leave to appeal against the Judgment, and a stay of execution of the Judgment pending appeal. On 30 June 2025, the Judge gave a written decision (“the Leave Decision”) dismissing the Plaintiff’s applications. In the Leave Decision:

(1)  The Judge acknowledged that he was in error in holding that the court had no jurisdiction to determine or make an appropriate declaration concerning the true boundary between P’s Land and D1’s Land, and that he had somehow been distracted from the fact that the Action was an action for a declaration of rights and not an academic dispute on the accuracies of survey maps[19].

(2)  The Judge stated that, despite such error, he had gone on to consider the accuracies of the 2006 Survey and 2012 Survey, and concluded that Mr Tang had failed “to show that the 2006 Survey [was] more accurate than the 2012 Survey”, while both the experts of the 1^st and 2^nd Defendants “supported the accuracy of the 2012 Survey over the 2006 Survey”[20].

(3)  The Judge further stated that -

“… based on the factual findings in the [Main Judgment], even if the court did not err on the Jurisdiction Point, it would still not have made a declaration that the Common Boundary should be as shown in the 2006 Survey and would have, similarly, allowed the 1^st defendant’s counterclaim. And the court would have made the declaration that the Common Boundary should be as shown in the 2012 Survey, which was the remedy sought by the 2^nd defendant (but not the 1^st defendant)”[21].

(4)  The Judge went on to deal with 8 detailed points raised by the Plaintiff to challenge various findings of fact made by the Judge concerning the accuracies/inaccuracies of the 2006 Survey and 2012 Survey. The Judge rejected all 8 points and considered that they were simply regurgitation of arguments and submissions which had previously been advanced by the Plaintiff, and considered by him[22]. The Judge took the view that his conclusion was “supported by 2 experts: the expert of the 1^st defendant, Mr. Ng Jor Choi, and the expert of the 2^nd defendant, Mr. Li Kam Kai, Alan. The plaintiff has raised no argument as to why the expert opinion from both experts are so devoid of merit and rationality that ‘the judge’s conclusion was rationally insupportable’”[23].

(5)  The Judge considered, however, that the Plaintiff had a reasonable prospect of success in his appeal against the Costs Order, and granted leave to the Plaintiff to appeal against it[24].

(6)  Lastly, the Judge refused to grant any stay of execution pending appeal because (i) the Plaintiff had no reasonable prospect of success in his appeal against the Judgment save in relation to the issue of costs, and (ii) the Plaintiff would not suffer any “irreparable damage” even if he had to demolish a wall and remove a fish pond consequent upon enforcement of the order for possession of the Area against him by the 1^st Defendant[25].

THE PRESENT APPLICATION

12.  By a summons dated 14 July 2025 (“Summons”) filed in the Court of Appeal, the Plaintiff renews his applications for leave to appeal, and stay of execution of the Judgment pending appeal.

13.  The draft Notice of Appeal attached to the Summons contains 6 intended grounds of appeal (“Ground 1” to “Ground 6”):

(1)  Ground 1: The Judge erred in holding that the Court has no jurisdiction to determine the location of the true boundary between P’s Land and D1’s Land or which line in the 2006 Survey Plan or the 2012 Survey Plan represents the location of the boundary. Alternatively, the Judge erred in law in finding that the position of the boundary is determined by the current records maintained by the Director, ie the 2012 Survey Plan.

(2)  Ground 2: The Judge erred in law in holding that the Plaintiff’s action against the 1^st Defendant for a declaration and trespass is founded on the negligence (if any) of Mr Henry Chan.

(3)  Ground 3: The Judge erred in law in holding that the Lands Department is the proper forum for seeking a declaration on the position of the true boundary between P’s Land and D1’s Land.

(4)  Ground 4: By failing to consider relevant materials or taking into account irrelevant materials, the Judge erred in law in failing to find that the true boundary between P’s Land and D1’s land is the line as shown on the 2006 Survey Plan. In support of this ground, the Plaintiff relies on 8 points (“Point (a)” to “Point (h)”):

(a)  The Judge failed to consider that it is undisputed amongst the experts of the parties that, in establishing the correct boundary, in the absence of stronger evidence, a line running along the centre of a feature (eg uncultivated land) is to be reasonably taken as the lot boundary.

(b)  The Judge failed to consider the undisputed fact that the midline along the uncultivated area, ie the boundary feature between P’s Land and D1’s Land, is represented by the boundary line drawn on the 2006 Survey Plan, ie a straight line along Line SR and not a deflected line.

(c)  The Judge failed to consider that, according to the relevant DD Sheet (hence the Government Grant), the boundary between P’s Land and D1’s Land is a straight line without deflection, hence the boundary line as shown on the 2012 Survey Plan is incorrect.

(d)  The Judge failed to consider that it is not the intention of the Government Grant that the boundary lies within the cultivated area of P’s Land and the boundary line shown on the 2012 Survey Plan intrudes into the cultivated area of P’s Land, hence it is not the true boundary line.

(e)  The transformation over the years on the common junction between the “4 Lands” from a “Double-Y” to a “cross” is irrelevant to the determination of the true common boundary regardless of whether the transformation was man-made or natural, but the Judge erred in taking into account such transformation.

(f)  The Judge erred in taking into consideration the “Spike”[26] at the north-western boundary of P’s Land as shown on the 2006 Survey Plan and the survey report submitted by the Plaintiff’s surveyor on 10 October 2012[27].

(g)  The Judge failed to consider that the boundary line as shown on the 2006 Survey Plan, being a straight line, is the only form of boundary that is consistent with the DD Sheet, hence the Government Grant, and the old boundary features as shown in the aerial photos. Therefore, the true boundary is as shown on the 2006 Survey Plan.

(h)  The Judge failed to consider that by applying the undisputed opinion of the experts in relation to the general rules in establishing a common boundary as well as the western boundary of P’s Land, the boundary line between P’s Land and D1’s Land is along Line SR on the 2006 Survey Plan, with its west extremity at Point S.

(5)  Ground 5: The Judge erred in law in holding that the Defendants’ experts supported the 2012 Survey Plan. Alternatively, the Judge erred in law in not giving adequate reasons for holding that the Defendants’ experts supported the 2012 Survey Plan.

(6)  Ground 6: The Judge erred in law in ordering the Plaintiff to pay the 1^st Defendant’s costs of the Action on an indemnity basis with enhanced interest thereon at 5% above the judgment rate from 20 April 2024 to the date of judgment.

14.  Having considered the documents before us, we are of the view that it is appropriate to deal with the Summons on paper without an oral hearing pursuant to Order 59, rules 2A(5) and 14A of Rules of High Court, Cap 4A.

DISCUSSION

15.  The relevant principles for granting leave to appeal against a judgment of the District Court and a stay of execution of a judgment pending appeal, and for appeal against a finding of fact made by a trial judge, are well established, and will not be repeated here.

(a)  Grounds 4 and 5

16.  We shall first consider Grounds 4 to 5.

17.  Ground 4 complains that the Judge failed to consider relevant materials or took into account irrelevant materials, which led to an error by the Judge in failing to find that the true boundary between P’s Land and D1’s Land is the boundary line as shown on the 2006 Survey Plan. The 8 matters relied upon by the Plaintiff have all been considered by the Judge in the Leave Decision. In our view, none of them has merits:

(1)  In respect of Point (a), as mentioned by the Judge at §31 of the Leave Decision, he did not find against the Mid-Line Practice referred to by the experts, but considered the “important” issue to be “when it can and cannot be applied”. At §§80-92 of the Main Judgment, the Judge explained in detail why he considered the Mid-Line Practice relied upon by Mr Tang, in conjunction with the New Theory, failed to show that the 2006 Survey was more accurate than the 2012 Survey. In our view, the contention that the Judge failed to consider the Mid-Line Practice is plainly unsustainable.

(2)  In respect of Points (b), (c), (d) and (g), these were essentially arguments advanced by Mr Tang to support his opinion that the 2006 Survey Plan was a “fair determination” of the common boundary but rejected by the Judge. In the Main Judgment, the Judge explained in detail why he did not accept Mr Tang’s opinion (see §§74-93 of the Main Judgment). The Plaintiff has not engaged with the Judge’s reasoning, but merely repeats the matters which he has relied on to contend that the Judge ought to have accepted Mr Tang’s opinion. These are far from sufficient for this Court to interfere with the Judge’s view that Mr Tang’s opinion was unconvincing.

(3)  In respect of Point (e), we do not accept the Plaintiff’s contention that the change of the common junction between the 4 Lands from the historical “Double-Y” as seen on the relevant DD Sheet and subsequent aerial photos to a single “Dot” (or Point “S”) on the 2006 Survey Plan, and whether such “transformation” was man-made or caused naturally, were irrelevant to the determination of the true boundary, and that the Judge erred in taking into account such transformation. The change of the “boundary” between the 4 Lands from the historical “Double-Y” to a single “Dot” was something which Mr Tang plainly had to explain away to justify his opinion that the 2006 Survey Plan correctly depicted the boundary line between P’s Land and D1’s Land. In order to do so, Mr Tang advanced the New Theory, which involved an argument that a natural, as opposed to man-made, change of boundary features should be adopted. There cannot be any complaint that the Judge considered these issues which were necessitated by the New Theory advanced by Mr Tang for the first time at the trial.

(4)  In respect of Point (f), we do not accept the Plaintiff’s contention that the Judge erred in taking into consideration the “Spike”. As mentioned by the Judge, (i) the “Spike” was a feature which appeared on the 2006 Survey Plan but did not appear in the earlier DD Sheet and Block Government Lease in respect of DD 129[28], and (ii) Mr Tang’s opinion that the 2006 Survey Plan was more accurate than the 2012 Survey Plan failed to address the concern raised by the Lands Department about this matter (referred to at §21 of the Main Judgment)[29]. In our view, the Judge was entitled to take into consideration the absence of the “Spike” in the DD Sheet/Block Government Lease in coming to the view that the opinion of Mr Tang was unconvincing.

(5)  Lastly, Point (h) was rejected by the Judge at §47 of the Leave Decision:

“Finally, point [(h)] is rather confusing: the experts did not dispute the principle of the Mid-Line Practice but it is not the undisputed opinion of the experts that the Common Boundary is along Line SR with the west extremity at Point S. Both the 1^st and 2^nd defendants’ experts rejected this. The finding of facts by the court explains why the Mid-Line Practice is not applicable…”

We agree with the Judge’s view on this matter.

18.  Ground 5 can be dealt with briefly. Under this ground, the Plaintiff argues that (i) the Judge erred in holding that the Defendants’ experts supported the 2012 Survey Plan, and (ii) alternatively, the Judge erred in law in not giving adequate reasons for holding that the Defendants’ experts supported the 2012 Survey Plan.

19.  To begin with, it does not appear from the Leave Decision that this intended ground of appeal was advanced before the Judge. If it was not, the Plaintiff has not informed the Court of this fact, and also failed to provide any explanation why it was not argued before the Judge and why it should now be entertained by this Court. This is in apparent breach of §11 of Practice Direction 4.1. In any event, Ground 5 is unmeritorious.

20.  At §93 of the Main Judgment, the Judge stated the following: “I need not spend more time to discuss here the expert opinion of D1 and D2’s experts. Suffice to say that both experts supported the accuracy of the 2012 Survey over the 2006 Survey”. The Judge was correct to take this view:

(1)  The 1^st Defendant’s expert concluded, at §7.2(b) of his report dated 22 November 2019, that “… Under the general principle for adoption of the previously defined boundary if not proved to be wrong, the boundary Q-R-Z-AA-AB-S as defined in [the 2012 Survey Plan] is deemed to be correct.”

(2)  The 2^nd Defendant’s expert also concluded, at §9.3.1 of his report dated 24 July 2019, that “The northeastern boundary of [the Government Land] is running along the boundary line AB-S as delineated on the [2012 Survey Plan]…”.

(3)  It is clear that the Defendants’ experts did not consider the 2006 Survey Plan to be accurate.

21.  We also do not accept the validity of the Plaintiff’s complaint that the Judge failed to give adequate reasons for holding that the Defendants’ experts supported the 2012 Survey Plan. As Lord Hoffmann stated in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372G, the exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed and they should be read on the assumption that, unless he has demonstrated to the contrary, the judge knew how he should perform his functions and which matters he should take into account. That both the 1^st and 2^nd Defendants’ respective experts supported the accuracy of the 2012 Survey Plan over the 2006 Survey Plan was obvious. The Judge plainly had considered their evidence, and was well-aware of the conclusions of the Defendants’ experts. We do not see that any further reason was required to be given by the Judge for the view expressed at §93 of the Main Judgment.

(b)  Grounds 1 to 3

22.  Grounds 1 to 3 may be taken together. Ground 1 concerns the Judge’s views that (i) he had no jurisdiction to adjudicate merely on the accuracy of various survey reports or which survey plan was more accurate, and (ii) the correct boundary between P’s Land and D1’s Land was a matter that should be determined by the current records maintained by the Director. Ground 2 concerns the Judge’s original characterization of the Plaintiff’s claim against the 1^st Defendant, while Ground 3 concerns the Judge’s view that the proper forum for adjudicating the Plaintiff’s boundary dispute with the 1^st Defendant lay in the Lands Department.

23.  We accept that Grounds 1 to 3 are reasonably arguable. It does not, however, follow that leave to appeal should be granted to the Plaintiff in the present case. It is trite that an appeal lies against the order made in the court below and not against the reasons for it. Where the order under appeal was correctly made, even though some of the bases for the making of the order were not accepted, the appeal would be academic. Such appeals are not normally entertained: Lau Yue Kui (劉汝蘧), the administrator of the estate of LAU WAI CHAU (劉維疇), deceased and others v Philip Chan & Co (a firm) (CACV 120/2013, unreported, 19 September 2013), at §9. The court retains a discretion whether to entertain the appeal, but would do so only in rare and exceptional cases: Re CY Foundation Group Ltd (2014) 17 HKCFAR 863, at §§18 and 25-28.

24.  In the present case, the Judge accepted, in the Leave Decision, that his view on the court’s jurisdiction to determine the substantive boundary dispute between the Plaintiff and the 1^st Defendant was in error, and said that Grounds 1 to 3 had reasonable prospect of success[30]. However, as also pointed out by the Judge[31], he did as a matter of fact consider in detail the merits of the parties’ respective contentions, in particular, the accuracies/inaccuracies of the 2006 and 2012 Survey Plans, at §§74-93 of the Main Judgment, and concluded that the Plaintiff’s expert, Mr Tang, had “[failed] to show that the 2006 Survey [was] more accurate than the 2012 Survey”[32] and both the Defendants’ experts “supported the accuracy of the 2012 Survey over the 2006 Survey”. The Judge also stated that “even if the court did not err on the Jurisdiction Point, it would still not have made a declaration that the Common Boundary should be as shown in the 2006 Survey and would have, similarly, allowed the 1^st defendant’s counterclaim. And the court would have made the declaration that the Common Boundary should be as shown in the 2012 Survey, which was the remedy sought by the 2^nd defendant (but not the 1^st defendant)”[33].

25.  Even if leave to appeal under Grounds 1 to 3 is granted, and the Plaintiff should ultimately succeed on those grounds, the Court would still be left with the Judge’s finding that the evidence of Mr Tang was unconvincing, as well as his decision to uphold the 1^st Defendant’s claim of trespass of the Area by the Plaintiff. It is clear from the Main Judgment that the Judge preferred the evidence of the Defendants’ experts to that of the Plaintiff’s expert, and accepted the accuracy of the 2012 Survey Plan. On the evidence and materials before the Judge, it was open to the Judge to come to those views. The Plaintiff has failed to show any arguable basis for this Court to intervene in these findings of fact by the Judge. In the circumstances, the Plaintiff’s appeal (save in relation to the issue of costs) should in any event be dismissed. We are thus not minded to grant leave to appeal under Grounds 1 to 3.

26.  To conclude, we are of the view that Grounds 4 to 5 do not have any reasonable prospect of success, while Grounds 1 to 3 are academic. We do not see any reason why in the interests of justice the appeal in respect of Grounds 1 to 5 should be heard. Leave to appeal under Grounds 1 to 5 is refused.

(c)  Ground 6

27.  As for Ground 6, the Judge has in fact granted the Plaintiff leave to appeal against the Costs Order. The 1^st Defendant has not made any submissions on this ground. Accordingly, leave to appeal under Ground 6 is granted.

(d)  No stay of execution pending appeal

28.  Insofar as stay of execution pending appeal is concerned, the Plaintiff has obtained leave to appeal on the issue of costs only. It is not clear, on the materials before us, whether the assessment of the 1^st Defendant’s costs will be completed prior to the hearing of the Plaintiff’s appeal on the issue of costs. In any event, there is no evidence to show that the 1^st Defendant will be unable to repay any part of the costs which he may recover from the Plaintiff should the Plaintiff ultimately succeed in his appeal on the issue of costs. We see no reason to grant any stay of execution pending appeal. The application for stay of execution pending appeal is dismissed.

DISPOSITION

29.  Save in relation to Ground 6 concerning the Costs Order, the Summons is dismissed. The Plaintiff shall file and serve a notice of appeal limited to Ground 6 only within 14 days from the date of this judgment.

30.  On the issue of the costs of the Summons, other than in relation to the Costs Order, against which the Plaintiff has obtained leave to appeal from the Judge, he has failed in relation to the rest of the Summons, and is in substance the losing party. There is no reason why costs should not follow the event. Accordingly, we make an order that the Plaintiff shall pay the 1^st Defendant the costs of the Summons, to be assessed summarily. The Plaintiff shall have leave to file and serve a statement of objections (limited to 2 pages) to the 1^st Defendant’s statement of costs dated 28 July 2025 within 14 days from the date of this judgment.

31.  The above order in relation to costs is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment. In the event that an application to vary the order nisi is made by any party, the same shall be disposed of on paper, and the Court will give further directions concerning the time for filing of submissions and the length of submissions that may be filed.

32.  Lastly, since the application for leave to appeal in respect of Grounds 1 to 5 is totally without merit, we make a further order under Order 59, rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request the present determination to be reconsidered at an oral hearing inter partes.

Annex