SHING WAI ON AND ANOTHER v. WONG YUEN CHI AND ANOTHER

HCA13518/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.13518 OF 1999

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J U D G M E N T

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1. This is the trial of an action between the plaintiffs who are the owners of the Remaining Portion of Lot No.3255 in Demarcation District 120 Tai Tong, Yuen Long in the New Territories against the defendants, the two Mr Wong, who are the owners of Section A of Lot No.4765 in Demarcation District 116.

2. The dispute revolves around a wall and a gate that the plaintiffs alleged had been erected and put up by the defendants in trespass of the plaintiffs' land. In 1993, the plaintiffs acquired their land in the Remaining Portion of Lot No.3255. The land was vacant land, not occupied by any building. The plaintiffs had caused the surveyor of Sam Mak & Associates Surveyors Limited to survey the land and a plan was produced at page 134 of the bundle which shows the northern boundary of the plaintiffs' land being marked as A, B, C, D, H and J. In 1994, the plaintiffs, Mr Shing, caused a wall enclosing the boundary of the plaintiffs' land to be erected. As a concession to the access of the neighbouring land, a wall that gave up a very small part of the plaintiffs' land was erected so as to fit in with the gate that was standing there at that time and that gate was a three to four foot wide gate, rather rusted and in poor condition.

3. The evidence of Mr Shing given at the trial was that the neighbouring land is the defendants' land, Lot No.4765. Although it has a structure on it at the time in 1994, it was covered with wild flowers and had all the signs of not being habitated. Because the plaintiffs' land was enclosed by a wall, it was not necessary for Mr Shing to go and visit his property.

4. The story then carried to early 1996 when Mr Shing had an occasion to visit his property because of some problem with anti-flooding, piping and drains and he noticed there had been no change to his wall or to that gate. The defendants came to the picture in July 1996 when Mr Wong first went to see the property. The acquisition was completed in October 1996 and it would seem that he moved into his property in November 1996.

5. In 1999, Mr Shing discovered that the wall that he had erected had been moved in such a way as to enable a much larger gate of something like three meters to be put up. The position of the gate had also been moved. A complaint was made and proceedings therefore ensued.

6. At the trial of this action, two issues were identified. The first issue is whether there had been a moving of the wall that had been originally erected by the plaintiffs in early 1994. The second issue is whether the defendants had been responsible for moving the wall because if so, then the defendants should be responsible for the costs of dismantling the present wall that they have erected and also paying for the new wall that has to be rebuilt to follow the line of the original wall built in 1994.

7. Four witnesses altogether gave evidence before me : Mr Shing, for the plaintiffs and his surveyor, Mr Tull, and on the defendants' side Mr Wong, the first name of the defendants and his friend, Mr Yan. The evidence of all witnesses had been subjected to cross-examination and so far as credibility is concerned, I have no doubt that I prefer the evidence of the plaintiffs' witnesses over and above the evidence of the witnesses for the defendants. In fact, I can say very positively that I reject everything said by Mr Wong and Mr Yan in so far as they may be in conflict with the evidence given by the plaintiffs' witnesses.

8. The case, however, of the plaintiffs does not rest merely on the oral evidence of the witnesses. I think the pictures and photographs that had been produced also powerfully support the plaintiffs' case. But before I come to that, I think the first question is where was the wall that was built in 1994? Was the wall built in 1994 as shown on the pictures at pages 140 and 141; or was the wall that was built which tends to show that it had a shape which was, according to the evidence of the plaintiffs, on the side of line AA to B, a few feet longer, i.e. from A to AA and beyond in a straight line, and then on the hypotenuse side, a line which is much closer to the point B on page 137 and in the shape of a wall which is really following the contours as marked out in black colour in Exhibit P1? Which of the two versions do I believe? I think, as a matter of nature human probabilities, it is inconceivable, when the plaintiffs had caused the contractor to build a wall to protect their land and having regard to the findings of the surveyor laying out all the boundary points, that he would be giving away so much of his land as would have been the case if he had built the wall as shown in page 140. My view of the shape of the wall in 1994 is reinforced by not just the oral evidence given at the trial but by the pictures taken in 1999 which do not tell a lie and these pictures show, even on the admission of the defendants' witness Mr Wong, clearly a difference in colour between the two neighbouring walls, which suggest that the lighter colour wall closer to the gate had been more newly built. That is also borne out by the much lighter colouring of the concrete paving next to that alleged new wall. It shows that there must have been a paving over as a result of the movement of the wall. I think all the documents and the evidence powerfully point to the plaintiffs' case of the wall having been moved. I have therefore very little doubt that that must have been the case.

9. When one turns to the second issue as to who moved the wall, the question is why was the wall moved. The wall was moved in order to have a larger gate. That was the primary purpose as far as I can see for the moving of the wall. The original gate was something like three or four feet. The new gate, I think, as clearly established by the surveyor's evidence, is three metres, that is nine or ten feet. So that larger gate would give far greater ease of access whether by vehicle or otherwise to the premises of the defendants' land.

10. It may or may not be the case that the defendants continued to operate his farming business from his new premises after he moved from his farm some distance away. But the point is that there is a reason for the defendants to move the gate and to move the wall, and do this by taking advantage of the absence of the plaintiffs from his land.

11. The suggestion was made, I can only think more in jest than in seriousness, by counsel for the defendants that it was the previous owner who (as he was going to leave his land and sell the property) had caused such work to be done, namely to change a wall, took down the old gate and put in a new gate. I think, if I may say so, there is really, firstly, little reliable evidence to support this conjecture and secondly, it just goes against basic commonsense or human nature for someone who is departing to be lavishing that kind of work whereas for the defendant there are plenty of reasons for him to do it. I therefore reject the case of the defendants that they did not do it. In fact, the defendants, in their desire to fight every corner, had in the Order 14 application, referred to work being done by the defendants in November 1996 and also referred to it in their pleadings at paragraph 3C. I think the defendants to a certain extent could be said to be hoisted with their own petard. I therefore have no hesitation in also finding for the plaintiffs on the second issue as to whether the defendants had caused the wall to be moved. The judgment of the court therefore must be that the wall in question had to be demolished. The gate had to be removed.

12. I think it is in the interest of the parties that the proper order of the court should be the defendants be restrained by injunction from anyway interfering with the plaintiffs undertaking the demolition of the wall, erecting of a new wall and the removal of the present gate. The defendants should be responsible for the costs of such work which has been agreed at the sum of $13,500. So the plaintiffs are to have judgment in the amount of damages for $13,500 plus an injunction. The detailed terms of which shall be set out in a minute of the order which the plaintiffs would submit to the court and to the defendants for final approval.

13. So far as costs are concerned, having regard to my findings on both issues in favour of the plaintiffs, I do not believe the defendants can seriously resist an order of the court that the plaintiffs shall be entitled to have the costs of the action, to be paid and to be taxed if not agreed.