KONG SAU CHING v. KONG PAK YAN AND OTHERS

HCA 13429/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13429 OF 1997

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(Consolidated pursuant to the Order made by Registrar Betts of the High Court on 24 July 1998)

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J U D G M E N T

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I. Background

A. Preliminary

1. There is a road ("the Hang Tau Road"), west of Sheung Shui, that runs south from Castle Peak Road to the village of Hang Tau in Demarcation District ("DD") 94. As the Hang Tau Road enters DD 94 and the northern end of Hang Tau, it becomes a way ("the Way") formed from the aggregation of parts of various lots in DD 94. Moving from the northern edge of Hang Tau southwards, the Way passes through Lots 399B, 399C, 399D, 399F, 399RP, 399G, 399E; runs along Lot 395 RP; passes through a part of Lots 361A RP and Lot 394B ss. 5; and then reaches Lot 364A. At Lot 364A the Way forks. One fork heads east through Lot 364 RP towards Lots 362A, 362B, 362C and 362 RP, before looping around towards the southwest in the direction of Lots 370 and 371. The other fork proceeds south through parts of other lots in the direction of Lots 369, 370 and 371.

2. Part of the Way ("the Disputed Way") consists of an L-shaped portion situated on land belonging to the owners of Lot 364A and House 99 on that lot. The Plaintiffs in HCA No. 1342 of 1997 and the Defendants in HCMP No. 4363 of 1997 (collectively, "the Plaintiffs") claim that they have a right to drive vehicles through the Disputed Way. On the other hand, the Defendants in HCA No. 1342 of 1997 and the Plaintiffs in HCMP No. 4363 of 1997 (collectively, "the Defendants") contend that the Plaintiffs only have a right to pass over the Disputed Way on foot. The Defendants deny that the Plaintiffs are entitled to drive their vehicles through the Disputed Way without the Defendants' permission.

3. In Section II.F of this Judgment I identify where in Hang Tau the Plaintiffs and Defendants live or have lived. In essence, at about the time when the 2 actions comprising these proceedings were commenced, the Plaintiffs mostly lived in lots situated to the south or southeast of the Disputed Way, while the Defendants were co-owners of Lot 364A. In this Judgment, for convenience, I shall refer collectively to the Defendants and their predecessors in title on Lot 364A as "the owners of Lot 364A".

4. Annexed to this Judgment is a copy of a Lot Index Plan ("the Plan") dated 16 August 2003 (produced as Exhibit P1 at trial) which gives a general idea of the course of Hang Tau Road and at least some of the Way which I have just described. The Plan also shows the location of the various lots and houses comprising Hang Tau village. The Plan is reproduced here solely for identification purposes. It is not put forward as evidence in support of the contentions of one or other faction in this case.

5. Kong Sau Ching, Kong Yuen Hing, Kong Hoi Sun, Kong Hoi Yuen and Kong Fong of the Plaintiffs are related not just to each other, but also to the Defendants. The 5 persons just named and the Defendants are indigenous villagers of Hang Tau. The Defendants primarily reside (and have for a long time resided) in England. Of the 3 Defendants, only Kong Sik Yau gave evidence at trial.

B. Immediate events triggering these proceedings

6. On 16 October 1993 Trade Advisers bought Lot 362. It partitioned the property into Lots 362A, 362B, 362C, 362D and 362 RP. It retained Lot 362 RP to itself and between 1994 and 1995 respectively sold sections A, B, C and D of Lot 362 to Lee Tin Fuk, Li Ka Shing, Lee Shu Fai and Li Kwai. The latter 4 persons, who are all indigenous villagers of Hang Tau, in turn engaged Trade Advisers to build small houses for them on their individual properties. Building permits were issued at the end of 1996 and work started on a building development called "Grand View" shortly thereafter.

7. Some time during the 1st half of 1997, a woman who lived at House 85 on Lot 391 RP demanded "a licence fee" from Liu Tai Chuen, the Managing Director of Trade Advisers, for use of the Disputed Way. Liu Tai Chuen having refused to pay anything, the woman told Liu Tai Chuen to meet her on the following day. On the next day, the woman introduced Liu Tai Chuen to Kong Pak Yan. Liu Tai Chuen explained to Kong Pak Yan that Trade Advisers were carrying out construction at Lot 362. In the course of such construction, heavy lorries and other vehicles would have to pass over the Disputed Way in order to reach Lot 362. At that time the Disputed Way was a partly concrete and partly dirt road. Liu Tai Chuen said that Trade Advisers would repair any damage, including any drainage problem, caused by the passage of its vehicles over the Disputed Way. Kong Pak Yan told the woman from House 85 that no unlawful money should be collected. As far as Kong Pak Yan was concerned, the most important point was that Trade Advisers' vehicles should not damage the wall to House 99 on Lot 364A. If Trade Advisers' drivers damaged the wall, Trade Advisers would have to restore the same. Liu Tai Chuen assured Kong Pak Yan that Trade Advisers would definitely repair whatever damage resulted from the passage of its vehicles.

8. In June and July 1997 heavy rains damaged the Disputed Way. Kong Sau Ching and other villagers asked Wong Chau Ming, then employed by Trade Advisers as supervisor of the construction site at Lot 362, to repair the Disputed Way and concrete over the same. Wong Chau Ming so informed Liu Tai Chuen who agreed that Trade Advisers would do the repair and concreting work free of charge. The work was carried out on 22 July 1997. Thereafter, the Disputed Way consisted of an entirely concrete road.

9. Between 13 and 18 November 1997 workers, acting on the instructions of Kong Sik Yau, tried to build a brick wall on Lot 364A in such a way as to prevent vehicles from using the Disputed Way. But the attempt was abortive. A number of villagers, including Kong Sau Ching, objected strongly. This caused so much dispute and commotion that workers were unable to put up any wall.

10. On 22 November 1997 Kong Sik Yau caused Chinese notices to be posted on a wooden board by the Disputed Way. The notices read (in translation): "Warning: Private Land, No Vehicle Entry Unless Authorised." Thereafter, on 1 December 1997, on Kong Sik Yau's instruction, large rocks were placed in the middle of the Disputed Way to block cars and other vehicles from passing. Still later, on 9 December, Kong Sik Yau caused 5 poles to be placed on the Disputed Way to prevent the passage of vehicles.

11. Kong Sau Ching responded by commencing HCA No. 13429 of 1997 ("the 1st Action") on 10 December 1997. The Defendants in turn took out an Originating Summons in HCMP No. 4363 of 1997 on 15 December 1997 against Wong Chau Ming and Trade Advisers. On 19 December 1997 the Court granted an interlocutory injunction in the 1st Action restraining the Defendants from blocking access through the Disputed Way. Subsequently, Lee Tin Fuk, Li Ka Shing, Lee Shu Fai and Li Kwai applied to be joined as defendant parties to the 2nd Action.

II. Discussion

A. Preliminary

12. Mr Peter Graham (appearing for the Plaintiffs) submitted that the Way (including the Disputed Way) has long been used for vehicular traffic. He said that the weight of the evidence showed that all manner of traffic used the Way freely without need for anyone's permission. The Way probably started out as a walking track. In the 1940s and 1950s, when cars were not as common in Hong Kong as today, traffic on the Way may have been slight and intermittent. But by the 1960s, Mr Graham suggested, the Way (including the Disputed Way) had become fairly well-worn from relatively frequent vehicle passage and such use has continued to the present.

13. Given evidence of vehicle passage for 40 or (possibly) more years, Mr Graham put his case in 2 ways. First, he asked the Court to infer from long user of the Disputed Way without hindrance that, at some time in the past, the owners of Lot 364A must have dedicated a right of passage over the Disputed Way to the public. Second, if the Court were against him on public dedication, Mr Graham submitted that the Plaintiffs or some of them acquired easements by prescription over the Disputed Way.

B. Dedication of a public way

14. Megarry & Wade, The Law of Real Property (6th ed.), p. 1090 (§§18-067 to 18-068) explains how a public right of way may be created by dedication:-

"To establish a highway at common law by dedication and acceptance it must be shown--

(i)	that the owner of the land dedicated the way to the public, and
(ii)	that the public accepted that dedication, the acceptance normally being shown by user by the public.

Dedication may be formal, although this is comparatively infrequent. It is usually inferred from long user by the public, so that user is thus effective to prove both dedication and acceptance. But in order to raise a presumption of dedication there must have been open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. User with the landowner's permission or tolerance is no user as of right, and the court is slow to find a claim of right where the user is attributable to the landowner's indulgence. The user must also have been without interruption by the owner. A practice frequently adopted to disprove any intention to dedicate is to close the way for one day in each year, for this asserts the landowner's right to exclude the public at will.

The length of the enjoyment to be shown depends on the circumstances of the case. Where the circumstances have pointed to an intention to dedicate, 18 months has been held to be enough; where the circumstances are against dedication, a substantially greater period may be insufficient, especially if in recent years there has been no occupier capable of dedicating a highway in perpetuity."

15. Mr Kenny Chan (appearing for the Defendants) argues that there could never have been a dedication in this case. That is because the owners of Lot 364A are only Government lessees, most land in Hong Kong being held on leasehold. A lessee (Mr Chan submits) can never dedicate a way to public use in perpetuity. He cites in support the following dictum of Deputy High Court Judge Jerome Chan in Tang Tim Fat v. Chan Fok Kei [1993] 2 HKLR 373, at 382 (l.39)-383 (l.12):-

"However, as held by Blackburn, J in Greenwich Board of Wales v. Mandslay [(1870) 5 LR QB 397], the inferred consent [to a public dedication of a right of way] must come from the owner of the fee simple. In Corsellis v. London County Council [1907] 1 Ch 704, it was also held that there had been no dedication to the public for under the circumstances of the case, the consent of the freeholder, as distinct from the leaseholder, could not be presumed. Neville, J said at p. 713:-

'I have come to the conclusion that there is no such thing known to the law as a dedication of a way for a term. I do not think such an idea was ever heard of prior to the year 1879, the date of the decision in Attorney General v. Biphosphated Guano Co. (11 Ch D 327). There seems to me to be very good reasons why the public cannot take a right of way for a term.'

The obvious practical reasons against having a right of way presumed by law for a term only against a lessee, be it by prescription, presumption of a lost modern grant or dedication to public, is that it would serve no useful purpose. All it will require to destroy such a right of way is for the grantor and the lessee to terminate th existing term thereby bringing an immediate end to the right of way, and to enter into a new term immediately thereafter free from such an encumbrance. To be effective, it must be perpetual and against the fee simple.

As the defendants did not (and probably could not) claim a dedication by the owner of the fee simple of the plaintiff's land, their claim for such a public right of way against the plaintiff only is bad in law."

16. In answer to Mr Chan, Mr Graham observes that it is plain from statute that dedication of a highway to public use is possible in Hong Kong. He gives as an example Building (Planning) Regulations (Cap. 123 sub. leg.), r. 22(1) which provides:-

"Where, between ground level and a height of not less than 5.5 m or, where the Building Authority is satisfied that there will be no obstruction to vehicular traffic using the street, 3.3 m above ground level, a building on a class A, B or C sire is set back from a boundary of the lot on which it is erected, being a boundary that abuts on a street, and, with the consent of the Government, the part of the lot that is thereby not built upon is dedicated to the public for the purposes of passage:-

(a)	the site coverage for the building or for any one part of the building may exceed the permitted percentage site cover...; and
(b)	the plot ratio for the building, or if the building is a composite building, for the domestic part of the building may exceed the permitted plot ratio..."

17. Mr Graham accepts that to establish public dedication it may be necessary to show that the Government as reversioner under the relevant Government Lease¹ has consented to a dedication. But he contends that Government's consent to the public dedication of the Disputed Way can be inferred here from the evidence.

18. I agree with Mr Graham on the law. Although Judge Chan thought that the defendants "probably" could not show consent by the owner of the fee simple to a dedication of part of the relevant land in Tang Tim Fat, the tentativeness inherent in the word "probably" suggests that Judge Chan did not preclude the possibility of establishing in an appropriate case that the Government, as reversioner, had consented to a public dedication by a lessee. If the requisite consent can be established by cogent evidence, it seems to me from the dictum just quoted that Judge Chan might well have accepted that there had been a dedication.

19. I turn to consider the evidence in light of the legal principles discussed above. There are 3 broad issues to canvass:-

(1)	Is there evidence from which an intention to dedicate on the part of the owners of Lot 364A can be inferred?
(2)	Is there evidence of an acceptance by the public of any such dedication?
(3)	Is there evidence of Government consent to a dedication by the owners of Lot 364A?

B.1 Evidence of dedication by the owners of Lot 364A

20. As Megarry & Wade comments, dedication is normally to be inferred from long user by the public.

21. In the present case the best evidence of long user of the Way by motor vehicles is to be found in aerial photos of Hang Tau village taken by the Government's Survey & Mapping Office on 31 December 1964, 22 March 1973, 27 November 1981, 22 April 1985, 29 May 1993, 7 November 1994, 31 July 1996, 15 May 1997 and 23 July 1997.

22. Even by the time of the 1964 photo, it is already apparent that the Way (including the Disputed Way) had become well-worn through prior vehicular use. The Way appears to be wide enough for cars to proceed in opposite directions. I infer from this that vehicles had already been passing through the Way (including the Disputed Way) with some frequency long before 31 December 1964. It is significant that the 1964 photo shows Lot 364A as fenced off from the Disputed Way. This is evidence in my view that the owners of Lot 364A consented to the running of the Way through Lot 364A and were content to fence off (and keep the public away from) only that part of Lot 364A used as a dwelling area.

23. The 1973 photo shows that vehicular traffic up to the corner of Lot 364A (that is, the area just to the north of Houses 90 and 91) had increased considerably between end 1964 and early 1973. Around the corner and beyond Lot 364A, increased traffic has led to the Way becoming noticeably more worn and extended in a south-easterly direction. Immediately to the west of the fence around House 99 in Lot 364A, a broken strip of grass is visible in the middle of the Disputed Way. That grassy area became known at the trial as the "chop-stick" area, since from the aerial photo the strips look much like chopsticks. On the ground, the chop-sticks comprise 2 wheel tracks separated by a grassy middle. This is further evidence of vehicular use.

24. About the area where the Way enters Lot 364A from the north, the 1973 photo shows a faint white line ("the line") running perpendicular to the Way and cutting across the chopstick area. The Defendants alleged that the line was the image of a "drop bar" which Kong Sik Yau's wife had caused to be put up around 1970 to prevent cars from using the Disputed Way.

25. Kong Sik Yau said in evidence that the drop bar was a swinging arm which fell across the Disputed Way. Although Kong Sik Yau left for England in 1970, his son remained at Hang Tau. Kong Sik Yau said that he was concerned about his son's safety while he was in England. The drop bar was erected to obviate the danger posed by passing vehicles to children (including Kong Sik Yau's son) playing on the Disputed Way. Li Hon Wai, Kong Sik Yau's nephew, claimed that the drop bar had an iron chain attached to it and was already situated on the Disputed Way by the time of his birth in 1967. He said that the bar remained in place until the 1980s.

26. The difficulty with the evidence of Kong Sik Yau and Li Hon Wai is that none of the aerial photos shown any sign of the alleged drop bar. The line in the 1973 photo appears to be nothing more than a footpath or track corresponding with the northern boundaries of Lots 394B RP, 394B ss. 6, 391B RP, 391B ss. 3 and 394. If anything, the aerial photos show that between December 1964 and July 1997 there was no drop bar on the Disputed Way to stop vehicular traffic.

27. Further, had such a prominent feature as the drop bar existed between the 1960s and 1980s to restrict vehicular access through the Disputed Way, one would have expected Kong Sik Yau to have mentioned the matter from the outset of these proceedings either as part of his affidavit evidence filed in December 1997 in the 1st and 2nd Action or in his 2 witness statements for the present trial. No mention was made of the drop by anyone until Kong Sik Yau and Li Hon Wai gave evidence in Court. No document (including the Defendants' pleadings) mentions the drop bar.

28. I accordingly reject the evidence of Kong Sik Yau and Li Hon Wai as to the existence of a drop bar.

29. In the 1993 photo, lorries are seen on the Way in a wide area immediately south of Lot 364A and in front of Houses 90 and 91. That part of the Way which was previously seen to head in a south-easterly direction after rounding the southern corner of Lot 364A is now seen to have become further extended by a looping to the southwest ("the southwest looping") in the direction of Lots 371 and 372. This southern part of the Way appears to consist of 2 lanes, separated initially by an oval-shaped grassy traffic island in the vicinity of Lot 362 and latterly by a slender strip of grass. There are signs of construction work occurring in areas along the Way, possibly explaining the parked lorries here and there.

30. The November 1994 photo appears to show a wall in place of what had formerly been a fence around House 99. The presence of the new wall is more obvious in the July 1996 photo. Just as the original fence around House 99 was set back from the Disputed Way and the actual western and southern boundaries of Lot 364A, so is the new wall. Again, in my view, this fact evinces the recognition and acceptance by the owners of Lot 364A that by 1996 the Disputed Way was a public highway where motor cars passed to and fro without need to seek permission from the owners of Lot 364A. I note that, as a pointer to the existence of vehicle use of the Disputed Way, the 1996 photo in fact shows a red car parked at the end of the southwest looping in the vicinity of Lot 372.

31. There are two 1997 aerial photos. The 15 May 1997 photo shows the Disputed Way before it was concreted on 22 July 1997. Interestingly, there is also a red car parked at the end of the southwest looping in this photo. By coincidence the 23 July 1997 photo shows the Disputed Way on the day immediately after it was concreted. Both photos suggest that by 1997 vehicular use of the Way (including the Disputed Way) and construction of small houses in Hang Tau had intensified greatly from even the early 1990s.

32. In his witness statement, Kong Sik Yau contends that the concreting of the Disputed Way by Trade Advisers on 22 July 1997 deprived the Defendant of the enjoyment of a melon and squash field cultivated on a substantial part of the land comprising the Disputed Way. Trade Advisers, it is claimed, poured cement on top of the melon and squash field, which was consequently lost to the Defendants.

33. Both 1997 aerial photos show that there is no basis for the allegation as to the destruction of melon and squash fields. Plainly from the photos there were no melons or squash plants growing on the Disputed Way either immediately before or after 22 July 1997. It is telling that, when confronted at trial with the 1997 photos, Li Hon Wai (who had maintained the same story about the melon and squash fields) clarified that he was referring to a small area of land where melon and squash were growing beside House 98 and not House 99. Pressed by Mr Graham in cross-examination, Li Hon Wai said that the melon and squash plants were growing to the immediate west of the free-standing wall to House 98. One can actually see a small patch of unpaved land just west of the wall of House 98 in both 1997 aerial photos. This suggests that any concreting work carried out on 22 July 1997 did not disturb any melon or squash plants that may have been growing in such area. Certainly, the allegation that the owners of House 99 and Lot 364A were deprived of a thriving melon and squash field is unsubstantiated.

34. The Plaintiffs called expert evidence from Mr Leung Shou Chun, a land surveyor, to assist the court in the reading and interpretation of the Hang Tau aerial photos. Mr Leung joined the Government as Assistant Land Surveyor III in 1956 and retired as Principal Government Land Surveyor (that is, Head of the Survey & Mapping Office) in 1996. He has since become managing director of his own consultancy. The Defendants called Mr John Barrett, a Registered Surveyor in New Zealand, as expert. Mr Barrett worked with the Hong Kong Government for 12 years, dealing mainly with boundary matters. For 3 years, he was Surveyor in charge of the Tuen Mun and Yuen Long Survey Offices with responsibility for rural boundaries. He has since practised on his own account in work involving New Territories boundary definition.

35. There was much agreement between Mr Leung and Mr Barrett as to how the Court should read the aerial photos. The only real difference between them was the degree to which it could be inferred from the photos that, prior to the 1990s, the Way (including the Disputed Way) was used by traffic. Mr Leung thought that the photos showed significant use by vehicles from the early 1960s on, Mr Barrett that the early aerial pictures only showed negligible use. On the basis of my own visual inspection of the photos and guided by the commentary of both experts on particular features found in the photos, I favour Mr Leung's assessment of the photos. Of course, in the 1960s use of the Way would not have been as great as in 1997. For one thing, motorised transport was not as common in the New Territories at the time. But, relative to the number of vehicles in use at the time in the 1960s and 1970s, the early aerial photos already show a well-worn road that has been regularly travelled over by motor transport.

36. To counter the photographic evidence, Mr Chan pointed to 2 contrasting Lot Identification Plans in the trial bundle (respectively, "the 1st plan" and "the 2nd plan"). The 1st plan was dated 1 June 1992, drawn to a scale 1:1000 and said to be based on a Survey Sheet No. 2-SE-15A ("2-SE-15A"). The 1st plan was prepared to identify the boundaries of Lots 364, 371 and 391 A, B1, B RP and C in a previous, unrelated dispute between Kong Sau Ching and Kong Sik Yau in 1993. The 2nd plan was a 1:1000 scale Lot Index Plan dated 25 September 1997 also said to be based on 2-SE-15A. The difference between the 1st and 2nd plans was that the 1st plan did not show any footpath (much less any roadway) along the route of the Disputed Way, while the 2nd plan appeared to do so. The inference to be drawn from this, Mr Chan suggested, was that the Disputed Way did not come into existence until after 1992, much too recently to substantiate any long user by vehicles.

37. Mr Chan cross-examined Mr Leung on the absence of the Disputed Way in the 1st Plan. Mr Leung said that Government survey sheets of New Territories districts tended to be revised every couple of years. His evidence was to the effect that the 1st Plan being for the purpose of settling the boundaries of certain lots, it was more convenient for surveyors to superimpose the original DD sheet showing lot boundaries on earlier versions of Government survey sheets. This was because the original DD sheet had been drawn up some 100 years ago and it was easier to match features on the DD sheet with features on earlier versions of Government survey sheets. The later the date or version of a survey sheet, the more likely that early features on the land would have disappeared. Mr Leung suspected that, even though the 1st plan may have been prepared about 1992, the latest available Government survey sheet had not been used in its preparation and most probably the 1960 survey sheet version had been employed. Mr Chan observed that, since metrification did not come to Hong Kong until 1976, the 1st plan with its metric scale of 1:1000 (as opposed to the earlier 1:1200 used for Government survey sheets) could not have been based on a pre-1977 survey. Mr Leung disagreed. He thought that any plan could easily be converted to 1:1000 scale.

38. To bolster his case based on the 1st and 2nd plans, Mr Chan also adduced evidence from Mr Tong Yau Chuen, a Government Surveyor with responsibility for North District in the New Territories. Although employed as a civil servant, Mr Tong gave evidence in a purely personal capacity, pointing out that he was not authorised to speak for the Government. Mr Tong produced a plan which identified itself as "Sheet Number 2-SE-15A, Series HP1C, 1980 Grid, Partial revision Date: Nov.1990". That too showed neither footpath nor roadway where the Disputed Way ought to have been.

39. Nonetheless, I think that the thrust of Mr Tong's evidence was against Mr Chan's contentions. During cross-examination by Mr Graham as to whether (in accordance with Mr Leung's suggestion) a Government surveyor might for convenience have used a 1960s base sheet when working out the boundaries of a New Territories lot, Mr Tong said: "Chances are that the base sheet in 1990 may be the same as in 1960." Mr Tong thought that a 1990 survey sheet such as that produced by him would not necessarily record all the changes that have occurred on the land since the time of a previous survey sheet. A new version of a survey sheet did not necessarily revise all details (as found in a previous version survey sheet) which have been superseded by actual changes on the ground. What was or was not revised at any given time depended on what a particular survey team decided to focus its attention on when compiling information for a new version survey sheet. Thus, for example, the survey sheet produced by Mr Tong expressly stated that it was only a "partial" (as opposed to "complete") revision of an earlier survey sheet. If so, it seems to me that, as a guide to the coming into existence and of the Disputed Way at a particular time, the 1st plan is unreliable and a straight comparison between the 1st and 2nd plan misleading. Consequently, I reject the 1st and 2nd plans (and the base survey sheets on which they were based) as any evidence that the Disputed way did not come into existence as a road until the 1990s. The details in the 1st plan are contradicted by the aerial photos and it would be risky to rely on the 1st plan as showing the state of land at any time.

40. Not content with the aerial photos as evidence of long user by motor vehicles, Mr Graham also adduced oral testimony from long-time inhabitants of Hang Tau Village. I now summarise some of that evidence and the weight which I attach to the same.

41. Yip Yum Sang (who has lived in Hang Tau all his life and who is now over 70 years old) stated that the Way (including the Disputed Way) had existed since his childhood. In cross-examination he was adamant that "although not that good looking, all along there had been road".

42. Kong Sau Ching mentioned in Court that when he was young, just before he moved to the Mainland in 1949, vehicles would drive up to a ceremonial hall beside House 99. Although I accept that such happened, I do not think that the memory shows more than that cars used the Way from its northern end down to House 99 in the south during the 1950s. It is not apparent from Kong Sau Ching's recollection that vehicles used the Disputed Way to pass through Lot 364A and travel south or southeast beyond House 99.

43. Witnesses (Kong Sau Ching, Yip Yum Sang and Kong Fong) remembered that Mo Kwun Fat, who lived with his parents in the 1970s and 1980s in Lot 362, carried on an unlicensed taxi service in Hang Tau village driving villagers to and fro over the Disputed Way in his taxi. Although no one doubted that Mo Kwun Fat ran a taxi service, there was a dispute whether he did so in the 1970s or 1980s. I do not think that it matters for the purposes of this case, precisely when Mo Kwun Fat operated. The recollection only reinforces the impression given by the aerial photos of relatively frequent use of the Disputed Way by motor vehicles over the years.

44. Witnesses (Yip Yum Sang and Kong Fong) recalled that there was a pig farm around Lot 359 and that, until the business ceased (probably in 1976), pigs were driven in lorries from the farm over the Disputed Way to points outside Hang Tau.

45. Kong Sik Yau agreed that there was a pig farm but suggested that it went out of business because the villagers were against pigs being bred in the vicinity of a well. Kong Sik Yau suggested that, acting upon villagers' antipathy towards the pig farmers, he prohibited their vehicles from using the Disputed Way. From that time onwards, Kong Sik Yau said that the pig farmers drove through a grassy area populated with lychee trees at the rear of Lot 359 in order to transport their pigs from Hang Tau. Kong Sik Yau's version of events in relation to the pig farm was denied by Yip Yum Sang and Kong Fong. Given that I find Kong Sik Yau's accounts of the existence of a drop bar and of the destruction of melon and squash fields to be unreliable, I regard his evidence on the demise of the pig-farming business as a result of his prohibition of passage as suspect. This is especially since from 1970 onwards Kong Sik Yau was mainly residing outside of Hang Tau in England and would only visit Hang Tau for usually 1 to 2 months every year or so. Insofar as Kong Sik Yau's history of events is contradicted by Yip Yum Sang and Kong Fong, I prefer their account to that of Kong Sik Yau.

46. Indeed, I did not find Kong Sik Yau's evidence credible overall. The gist of his evidence was that, vehicles have only recently been using the Disputed Way and only then either with his permission or (if his permission was not sought) clandestinely.

47. When Mr Graham referred to the wall around House 99 being deliberately set back from the boundaries of Lot 364A in order to allow for the Disputed Way to run through and vehicles to pass over it, Kong Sik Yau replied:-

"In fact, this had never been a road as it was purposely made as open space so that my descendants might be able to build another house in the future."

If that had truly ben case, why was a house never built on the alleged reserve open space and instead over the years a roadway allowed to develop?

48. There were (Mr Graham suggested) motor vehicles passing over the Disputed Way even before Kong Sik Yau left for England in the 1970s. If there had been vehicles using the Way (Kong Sik Yau responded), they would have been prohibited from passing through the Disputed Way. When Yip Yum Sang's evidence of the existence of the Way in the 1940s and 1950s was put to Kong Sik Yau, he said:-

"It is up for Yip Yum Sang to say so. Indeed that place was abandoned land or agricultural land. There was no footpath or passage."

49. In a later exchange between counsel and Kong Sik Yau, Mr Graham suggested that for several decades people had been using the Way (including the Disputed Way) as a means of access to Hang Tau. Kong Sik Yau replied that such was only done with his permission. But then Kong Sik Yau accepted that pedestrians were allowed to pass to and fro over the Disputed Way without having to ask permission and the dispute was solely about motor vehicles. Mr Graham asked whether Kong Sik Yau agreed that from 1981 vehicular traffic had been using the Disputed Way. Kong Sik Yau said that he believed so. Mr Graham questioned whether Kong Sik Yau went so far as to claim that he had never seen a single vehicle use the Disputed Way. Kong Sik Yau said that he had seen a vehicle passing through the Disputed Way. When asked when, Kong Sik Yau answered: "Recently." Mr Graham asked whether Kong Sik Yau had seen any vehicle in the period before June 1997. Kong Sik Yau answered evasively: "I do not know when you mean by before that." Mr Graham asked whether in 1964, before Kong Sik Yau went to England, Kong Sik Yau had been aware of traffic using the Disputed Way. Kong Sik Yau answered: "I agree to the extent that this happened when the school was built, 1953." The reference to "school" was to a school formerly run on Lot 374, southeast of Lots 371 and 372. Mr Graham asked if it was right then that from 1953 vehicles had been using the road. Kong Sik Yau denied this, suddenly repeating his evidence about the pig farm and warning the persons running the farm not to use the Disputed Way. Mr Graham repeated his question. After some evasiveness, Kong Sik Yau responded that vehicles were "very, very rare". Mr Graham put it that, if so, the passage of vehicles over the Disputed Way could not have been a problem, as far as Kong Sik Yau was concerned. To this Kong Sik Yau replied: "It would not be a problem with my permission had I known."

50. Kong Sik Yau's evidence struck me as extreme. He was denying what was patent from the photographic record. Confronted with the photos, Kong Sik Yau made irrelevant responses which failed to deal squarely with the point put to him. He must have been aware that vehicles passed through the Disputed Way. He claimed to have given permission for such passage. But it was never clear in what manner such permission was conveyed. When it was suggested that, from the aerial photos, during the period 1964 to 1997, many more vehicles than Kong Sik Yau was prepared to acknowledge, must have regularly used the Disputed Way, Kong Sik Yau dismissed the matter unconvincingly by saying cryptically that he could not help it if, when he was not around or checking, people drove their vehicles through the Disputed Way.

51. In summary, I find that the Way (including the Disputed Way) has been used by vehicles since the 1950s. The flow of traffic through the Disputed Way would have been sporadic during the 1950s when motor vehicles were a comparatively rare sight in Hong Kong. By the 1960s, passage of motor vehicles through the Disputed Way would have been more common.

52. The owners of Lot 364A must have been aware of this traffic, but did not seem to do anything to impede or hinder it. I reject Kong Sik Yau's evidence that vehicles only passed through the Disputed Way with his permission. From the fact that the fence and (later) the wall around House 99 on Lot 364A was set back from the boundaries of Lot 364A, thereby accommodating and demarcating the Disputed Way through Lot 364A, I infer that, for from objecting to the passage of motor vehicles through the Disputed Way, the owners of Lot 364A accepted and acknowledged such passage.

53. I note here that Mr Chan argued that, since the southwest looping of the Way ended in a cul-de-sac, I should be slow to infer a dedication. I do not see how the southwest looping not being a through road is pertinent to the question of whether there has been a dedication.

54. In my judgment there is abundant evidence of a public dedication of the Disputed Way by the owners of Lot 364A.

B.2 Evidence of acceptance by the public of a dedication

55. This can be dealt with shortly. From the evidence discussed above of long user for vehicular traffic, I am entitled to infer that the public accepted the dedication of the Disputed Way by the owners of Lot 364A.

B.3 Evidence of Government consent to the dedication

56. I think that there is ample evidence from which Government consent to the dedication can be inferred. I review that evidence in this section.

57. Various Government services have made use of the Disputed Way to travel to and from the northern and southern parts of Hang Tau. For example, Lot 362 was originally agricultural land with huts made out of iron sheets erected for farming and residential purposes. It was occupied by squatters and allotted "red numbers" by the squatter section of the Housing Department. Personnel from the Housing Department would visit Lot 362 from time to time by passing through the Way (including the Disputed Way) on motor transport.

58. From time to time, Government has sent Surveyors to record new features (including the development of the Disputed Way) in survey sheets made available to the public. The 2nd plan is an example of a survey sheet recording the existence of the Disputed Way as a road. Clearly, Government is aware of the use of the Disputed Way as a road, but has not objected to such phenomenon.

59. Lamp posts, telephone poles, and fire hydrants are situated along the Way and Disputed Way. These would not have been placed without Government awareness or approval. These features appear on Government survey sheets. Had the Government not approved of the creation of a public highway over the Disputed Way, it is hard to see how the Government could have tolerated the installation of various utilities on the Disputed Way.

60. The owners of Lot 364 RP applied in around March 1999 for a small house to be built on the lot. The initial plan for the proposed building was rejected by the District Lands Office, as the proposed wall of the house would have only left a clearance of 4.140 m at the narrowest point of the Way adjacent to the house. A revised plan providing a minimum clearance of 5 m at the narrowest point of the Way was later approved in 2001. House 99A which now stands on Lot 364 RP was built in accordance with this revised plan. The District Land Office's action shows that Government must be aware of the Way and takes the view that the same must be wide enough for vehicular traffic to pass through safely. It is noteworthy in this connection that 4.5 m is the minimum width required by the Fire Services for emergency vehicular access. Had Government not regarded the Disputed Way as dedicated to the public, it would be hard to explain the District Land Office's handling of the Lot 364 RP application. That handling presupposes a public road running through Hang Tau to Lot 364 RP.

61. All land in the New Territories is vested in the Government by New Territories Ordinance (Cap. 97) ("NTO") s. 8. A series of statutes regulating land rights in the New Territories suggests that, far from wishing to extinguish rights of way (including public rights of access) established over New Territories land, Government is desirous to preserve the same.

62. For example, New Territories (Renewable Government Leases) Ordinance (Cap. 152) ("NTRGLOZ") s. 4 provides as follows:-

"	(1)	In the case of an existing Government lease of a lot which has not been divided into sections before the 1st day of July 1973, the right of renewal contained in the lease shall be deemed to have been exercised by the person entitled to that right and on that date there shall be deemed to be granted to such person a new Government lease of the land held by him immediately before that date under the existing Government lease.
	(2)	In the case of an existing Government lease of a lot which has been divided into sections before the 1st day of July 1973, the right of renewal contained in th lease shall be deemed to have been exercised by the persons entitled to that right and on that date there shall be deemed to be granted to such persons separate new Government leases of the land respectively held by them immediately before that date under the existing Government lease.
	(3)	...
	(4)	Every new Government lease and the land thereby deemed to be demised shall be deemed to be subject to such of the following encumbrances and interests as the land and the existing Government lease relating thereto were subject to immediately before the 1st day of July 1973:-
		(a) ...
		(b) any public rights; and,
		(c) any other rights, easements, tenancies or other burdens or encumbrances of whatsoever kind or nature, except such as were created by an instrument and were not thereby expressed to continue after the 30th day of June 1973."

63. New Territories Leases (Extension) Ordinance (Cap. 150) ("NTLEO") is in similar terms:-

"	2.	This Ordinance applies to every New Territories lease that exists at the commencement of this section and that, but for this Ordinance, would expire before 30 June 1997, not being:-
		(a)	a short-term tenancy;
		(b)	a lease for special purposes; or
		(c)	a lease in respect of which the lessee registers a memorandum under section 5.
	...
	6.	The term of a lase to which this Ordinance applies is extended, from the date on which it would, apart from this Ordinance, expire, until the expiry of 30 June 2047, without payment of any additional premium.
	7.	During the period of the extension of a lease under section 6, the lease and any interest therein created by or under an instrument registered in the Land Registry shall, unless the contrary intention appears from the instrument, be subject to:-
		(a)	the same encumbrances and interests as applied immediately before the period of extension, including:-
			(i) ...
			(ii) any public rights;
			(iii) any mutual covenants, rights, easements, tenancies or other burdens of whatsoever kind or nature;
	..."

64. For the above reasons, I find that Government has likely been aware of the evolution of the Way over time. It has not objected to use of the Way (including the Disputed Way) as a public right of way by vehicles, but has in fact itself made use of the same. Its consent to the public dedication of the Disputed Way may therefore be deduced. The inference of consent is reinforced by the provisions of the NTRGLO and NTLEO set out above.

B.4 Conclusion on public dedication

65. Given my findings on the 3 issues mentioned earlier, I conclude that there has been a public dedication of the Disputed Way for use by motor vehicles.

66. I should make explicit the ambit of my conclusion. All that I have done is to infer from the evidence adduced in this case that, as a matter of fact, the Government has consented to a public dedication of the Disputed Way. In Pang Kwan Lung v. Ma Choi Hop [1989] 2 HKC 449 Godfrey J stated:-

"The defendants say that there is no evidence of dedication by the Crown; and that a mere tenant cannot dedicate in perpetuity because or the limited nature of his own interest. There can be no dedication for a limited time; see Dawes v. Hawkins 1860 8 CBNS 848, 858. And, say the defendants, there is no such thing as a dedication of a way for a term: Corsellis v. London County Council [1907] 1 Ch 704, 713.

However, it does not seem to me to be beyond the bounds of possibility that the defendants will prove, at the trial, that a dedication by the Crown is to be presumed."

My conclusion should not be construed as establishing any general principle whereby Government may be presumed (using Godfrey J's word) as a matter of law to have consented to a dedication. Nor should my conclusion be understood as necessarily accepting the applicability in Hong Kong of the English common law rule that a leaseholder cannot of his own make a public dedication (whether in perpetuity or for a term). It is unnecessary to deal with those matters in light of my finding of Government consent.

C. Easement

67. By way of fall-back position, Mr Graham argued that the Plaintiffs had individually acquired rights of vehicular passage over the Disputed Way by prescription. Given my conclusion on dedication, it is strictly also unnecessary for me to go into the issue of easement, which in the Hong Kong context involves difficult questions of law. But, in deference to both counsel who addressed argument to me on the nature of easements in Hong Kong, I propose to consider the law of easement in Hong Kong and sketch out how I would have dealt with the evidence in light of my observations.

68. Mr Graham acknowledged that his major difficulty was the English rule that a leaseholder cannot obtain an easement of prescription over land occupied by another leaseholder. I shall refer to the rule as "the English restriction".

69. Megarry & Wade, p. 1122 (§18-128) describes the English restriction as follows:-

"The user [said to give rise to prescriptive rights] must be by or on behalf of a fee simple owner against a fee simple owner. 'The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with anyone except an owner in fee.' [Wheaton v. Maple & Co. [1893] 3 Ch 48, at 63, per Lindley LJ] An easement or profit for life or for years, for example, may be expressly granted but cannot be acquired by prescription, for the theory of prescription presumes that a permanent right has been duly created at some unspecified time in the past. A claim by prescription must therefore fail if user can be proved only during a time when the servient land was occupied by a tenant for life or for years, for then the fee simple owner may never have been in a position to contest the user. But if it can be shown that user as of right began against the fee simple owner, it will not be less effective because the land was later settled or let; and user against the fee simple will be presumed, unless the servient owner can show the contrary.

It will be seen, accordingly, that the theory of prescription does not deal properly with cases where the servient land is in the hands of a limited owner. It seems irrational to allow prescription against land if occupied by an owner in fee simple but not if occupied under a 999-year lease, for example. The law in Ireland, where prescription against limited owners is allowed, seems more satisfactory."

70. Two Hong Kong cases (Foo Kam Shing and Tang Tim Fat) appear at first impression to have decided that the English restriction applies to Hong Kong. Two other cases (Pang Kwan Lung and Chung Yeung Hung), have held that it is arguable that the English restriction does not apply to Hong Kong.

71. Foo Kam Shing and others v. The Local Printing Press Ltd (1953) 37 HKLR 201 involved 2 plots of land on Duddell Street. Both were subject to Crown Leases for 999 years. The plaintiffs had erected a building (No. 4 Queen's Road Central ("No. 4")) in 1921, the defendants another building (No. 1 Duddell Street ("No. 1")) in 1900. The defendants wanted to replace No. 1 with a new structure. The plaintiffs said that the new building would interfere with a right to light (in relation to No. 4) acquired by prescription since 1921.

72. Counsel for the plaintiffs conceded that the a right to light could not be acquired against the Crown under the Prescription Act 1832 ("the 1832 Act"). But, they contended that, since the Crown's reversionary interest in the defendants' land would not fall into possession for some 900 years, "it could not be said that the easement acquired by the Prescription Act materially affected the Crown" (p. 206). The Full Court (Howe CJ and Reece J) rejected this argument (at p. 207):-

"We see no merit in the argument that because we are dealing with estates of over 900 years' duration, they should be deemed freehold estates. It appears to us to be immaterial what the length of the term may be, for an estate for a term of years can never, no matter how long it is to last, be a freehold interest and the easement of light, when established, is an absolute and indefeasible right and cannot be acquired for a term of years by prescription."

73. In 1966 the Application of English Law Ordinance (No. 2 of 1966) ("AELO") (later Cap. 88²) was passed. AELO s. 3 provided as follows:-

"The common law and the rules of equity shall be in force in Hong Kong, so far as they may be applicable to the circumstances of Hong Kong or its inhabitants and subject to such modifications thereto as such circumstances may require, save to the extent that such common law or any such rule of equity may from time to time be modified or excluded by:-

(a) any Order in Council which applies to Hong Kong;

(b) any Act which applies to Hong Kong, whether by express provision or by necessary implication; or

(c) any Ordinance."

AELO s. 4 stipulated that specified English Acts (including the 1832 Act³) shall be in force in Hong Kong "subject to such modifications thereto as the circumstances of Hong Kong may require" and "subject to such amendment as may have been or may hereafter be made thereto by: (a) Order in Council which applies to Hong Kong; or (b) any Act which applies to Hong Kong; or (c) any Ordinance."

74. In 1989 Godfrey J in Pang Kwan Lung (an application for an interlocutory injunction) thought that it was arguable that the English restriction did not apply to Hong Kong. However, he did not have to decide the issue in advance of trial.

75. Tang Tim Fat in 1992 involved the trial of a claim in trespass against defendants purporting to exercise a right of vehicular passage over the plaintiffs' Yuen Long land. A pedestrian right of access over the land was conceded. Deputy Judge Chan there considered the Irish case law on easements by prescription. He concluded (at 380 (l.45)-381 (l.32)):-

"However, upon a careful examination of those irish cases, I am not convinced of the reasons nor the necessity for the divergence. The importance of restricting the operation of the presumption as between owners of fee simple only as expounded by Lindley, LJ in Wheaton v. Maples & Co., supra, must be upheld. The mere fact that as a matter of history only one piece of land in Hong Kong was granted by the Crown in fee simple is not sufficient to justify such a drastic departure from the common law under the disguise of modification permissible by s. 3(1)(b) of the [AELO]. In any event, I do nto see the necessity to rewrite the English common law to enable the Prescription Act to apply between leaseholders in Hong Kong. It is always open to leaseholders in Hong Kong to take advantage of the rule in Wheeldon v. Burrows (1879) 12 Ch D 31. It laid down that upon the grant of part of a tenement, there would pass to the grantee as easements all quasi-easements over the land retained which (i) were continuous and apparent, or (ii) were necessary to the reasonable enjoyment of the land granted; and (in either case) (iii) had been and were at the time of the grant, used by the grantor for the benefit of the part granted. This rule for an implied grant applies also to cases where the grantor, instead of retaining any land himself, makes simultaneous grants to two or more lessees. Each lessee obtains the same easement over the land of the other as he would have obtained if the grantor had retained it... All leaseholders in Hong Kong held their tenement from one common landlord, the Crown, under Crown leases. In the New Territories, all land is declared to be vested in the Crown as from 23rd July 1900 by virtue of s. 8 of the [NTO]. The tenements granted to leaseholders in the New Territories are subject to express provisions as to user. As the New territories modernize with the passage of time, temporary permits or waivers are issued by the Crown, on payment of premiums, relaxing the restriction over the user. All such Crown leases, which expired on 30th June 1973, were automatically renewed at the same time by the New Territories (Renewable Crown Leases) Ordinance Cap. 152⁴. Thus on 1st July 1973, there was a simultaneous grant of a new demise for all land in the New Territories by virtue of Cap. 152. It is thus arguable that any new easement or right of way granted expressly or impliedly to any dominant tenement by virtue of any temporary waiver/ permit issued prior to that time would bind the servient tenement by operation of the doctrine of an implied grant. However, this doctrine cannot come to the assistance of the defendants in the present case as they have via their counsel expressly abandoned any reliance on any right stemming from the fact of a common landlord."

76. In June 1997 the Court of Appeal (Mortimer and Godfrey JJA, Keith J) in Chung Yeung Hung v. Law Man Nga [1997] HKLRD 1022 held that it was "at least arguable" that under Hong Kong law there may be prescription by one tenant against another tenant of the same landlord. Chung Yeung Hung concerned a claim by the plaintiffs that they had acquired a right to use an access road running over the defendants' Ku Tung land. The Court of Appeal thought that the overwhelming predominance of leasehold land in Hong Kong meant that, if prescription here only applied between fee simple owners, the concept of prescription would be to all intents and purposes meaningless. This outcome would run counter to the AELO which stipulated that the 1832 Act was to be in force in Hong Kong. There must have been a reason for such provision in the AELO. Foo Kam Shing was distinguished on the ground that the AELO had not been enacted at the time of the Full Court's decision. The Court of Appeal referred to Tang Tim Fat but noted that, being a decision at first instance, Tang Tim Fat was not binding on it.

77. The decision in Chung Yeung Hung was premised on the need to give effect to the AELO. Following the return of Hong Kong to the Mainland on 1 July 1997 the AELO ceased to be law, having been repealed as being in contravention of the Basic Law by Annex 1 of the "Decision of the Standing Committee of the National People's Congress on Treatment of the Laws Previously in Force in Hong Kong in Accordance with Article 160 of the Basic Law" (adopted on 23 February 1997).

78. What then is the present state of the law on the acquisition of easements of prescription in Hong Kong? I propose to deal with the question by considering the following topics:-

(1) The ratio of Foo Kam Shing.

(2) The ratio of Tang Tim Fat.

(3) The validity of Chung Yeung Hung following repeal of the AELO on 1 July 1997.

(4) The reception of common law prescription in Hong Kong.

(5) The applicability of the English restriction in Hong Kong.

C.1 Foo Kam Shing

79. I doubt that the way in which the Court of Appeal in Chung Yeung Hung distinguished the Full Court's decision in Foo Kam Shing was valid.

80. While it is true that the AELO had not been enacted at the time of Foo Kam Shing, a provision similar to AELO s. 3 was in force. The Supreme Court Ordinance ("SCO") then provided as follows:-

"5.

Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April 1843, shall be in force in the Colony, except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by laws passed by the said legislature."

AELO s. 7(1) repealed SCO s. 5 and so AELO s. 3 in effect replaced SCO s. 5. Accordingly, at the time of Foo Kam Shing, except to the extent rendered inappropriate by local circumstances or modified by local statute, the 1832 Act applied in Hong Kong as part of the law in force in England on 5 April 1843⁵.

81. A reading of Foo Kam Shing confirms this. The Full Court appears to have taken it for granted that the 1832 Act formed part of Hong Kong law. As far as the Full Court seems to have been concerned, the only question on prescription was whether a holder for a term years could claim a right to light under the 1832 Act. However, the Full Court failed to assess whether circumstances in Hong Kong, in particular the predominance of leasehold interests here, justified the application of the English restriction in Hong Kong. Nowhere in its judgment does the Full Court engage in the exercise required by SCO s. 5 of considering the extent to which a facet of a relevant English law has been modified by local circumstances⁶.

82. Given this omission, I do not think that the Full Court's decision can be read as putting forward any definitive view on the general applicability of the English restriction in Hong Kong. Foo Kam Sing should probably be read narrowly as confined to its facts. At most, the case would be authority for the proposition that, in the urban area (as opposed to the New Territories or Hong Kong generally), a limited owner cannot obtain a right to light (as opposed to other types of easement) by prescription against another limited owner.

C.2 Tang Tim Fat

83. In contrast to the Full Court, Deputy Judge Chan considered (as required by AELO s. 3) whether it was appropriate to modify the English restriction in Hong Kong. He thought that modification of the English rule was unwarranted. But he so concluded on the ground that the rule in Wheeldon v. Burrows rendered it unnecessary to modify the English restriction. In my view, this conclusion raises difficulties.

84. First, it is doubtful that mere consideration of the rule in Wheeldon v. Burrows (an institution of English land law) constitutes sufficient examination of whether Hong Kong (as opposed to English) circumstances call for modification of the English restriction. A wider array of relevant local factors would need to be canvassed as part of the requisite exercise.

85. Second, prima facie, the rule in Wheeldon v. Burrows (whereby quasi-easements enjoyed by an owner of land are transformed into full-blown easements when parcels of that land are conveyed to others) covers different ground from the law of prescription. It is unclear to me how the existence of Wheeldon v. Burrows renders a law of prescription superfluous in Hong Kong.

86. Judge Chan suggests (obiter) in Tang Tim Fat that, upon the deemed renewal of leases on 1 July 1973 under the NTRGLO, all quasi-easements enjoyed by the Government (as reversioner) during the notional brief moment between the falling into possession and deemed re-grant of New Territories land on 1 July 1973, would have been elevated into easements by operation of Wheeldon v. Burrows. But I doubt that the suggested mechanism works. It seems to me that it can only work if fiction is added to fiction, the very sin that Judge Chan decries in Tang Tim Fat. The proposal assumes that in the split-second between termination and renewal of a lease at midnight on 30 June 1973 the Government engaged in a "continuous and apparent user" of all quasi-rights of way (however identified) which might reasonably be thought necessary for the enjoyment of New Territories land. If a right of way was already established on 30 June 1973 it would be unnecessary to rely on Wheeldon v. Burrows. NTRGLO s. 4(4)(c) expressly preserves such right. If an alleged right of way had not yet crystallised on 30 June 1973, I do not see how the combined application of Wheeldon v. Burrows and the NTRGLO can convert the alleged right into a full-blown easement on 1 July 1973.

87. Third, assume that the combination of the NTRGLO and Wheeldon v. Burrows does provide a practical alternative to prescription in the Hong Kong context. The NTRGLO was enacted in 1969. What would have been the situation before 1969? I have already suggested that Wheeldon v. Burrows by itself could not have obviated recourse to prescription in Hong Kong. Before 1969, would local circumstances have justified modification of the strict English restriction in Hong Kong?

88. If the answer to the question is yes, it would be strange if the enactment of the NTRGLO had the tacit effect of rendering modification of the English restriction unnecessary and altering pre-1969 Hong Kong law on prescription. Nothing in the NTRGLO suggests that the legislature had such a drastic change in mind. One would have expected an important change in the law to have been expressly flagged in a statute, rather than left to subtle inference.

89. If the answer to the question is no, one must articulate the reasons why modification of the English restriction is unwarranted. It would be those reasons, and not the NTRGLO, which would equally render modification of the English restriction unnecessary at the time of the decision in Tang Tim Fat and thereafter.

90. In other words, I do not think that it is correct to determine whether the English restriction has been modified in its application to Hong Kong by reference to the NTRGLO, which was enacted after AELO s. 3 or (if relevant) SCO s. 5 (the predecessor to AELO s. 3). The starting point for assessing the effect of local circumstances on English law must be a date (such as (say) 5 April 1843 insofar as SCO s. 5 is concerned) from which reception of English law is reckoned. One cannot look at an event X occurring in 1969 and reason that, because of X, some English rule could not have been received (whether in modified or unmodified form) into Hong Kong law at a reception date before 1969. X may have the effect of amending or repealing an English rule as incorporated into Hong Kong law on a relevant reception date such as 5 April 1843. But evaluating the effect of the happening of X in 1969 on a received English rule is a different exercise from ascertaining whether an English rule was received into Hong Kong law on an earlier date in the first place.

91. Given the problem identified above, I believe that Judge Chan's analysis of the effect of local circumstances on the English restriction might have gone further. Had it done so, fuller argument would likely have shown that Wheeldon v. Burrows did not offer the ready alternative to prescription in Hong Kong which Judge Chan thought it could. Had the question of prescription and the application of the English restriction in Hong Kong arisen in a later case, it is possible then that Judge Chan would have been persuaded that there was a case for saying that local circumstances in the New Territories had modified the English restriction.

92. A consequence of the foregoing discussion is that I do not think that Foo Kam Shing or Tang Tim Fat constrain a 1st instance judge from holding that under local circumstances a limited owner in Hong Kong may acquire a right of way by prescription against another limited owner.

C.3 Chung Yeung Hung and the repeal of the AELO

93. The AELO is no longer part of Hong Kong law. But the Court of Appeal in Chung Yeung Hung relied heavily on the enactment of the AELO in deciding that it was arguable that the English restriction did not extend to Hong Kong. What effect does the repeal of the AELO have on the decision in Chung Yeung Hung? Can Chung Yeung Hung now be ignored on the ground that the AELO's repeal has fatally undermined the Court of Appeal's logic so it is now unarguable that a limited owner can acquire prescriptive rights here? Unfortunately, the answers to these questions are not straightforward.

94. First, Article 8 of the Basic Law provides:-

"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravenes this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region."

95. In England prescriptive rights can be acquired at common law as well as under the 1832 Act. The English restriction is itself an English common law rule that judges applied when construing the parameters of the 1832 Act. If the common law doctrines of prescription by lost modern grant and prescription from time immemorial were part of Hong Kong common law before 1 July 1997 (see further below), such doctrines would still apply after 1 July 1997 by Article 8. Repeal of the AELO (which only concerned prescription under the 1832 Act) would not by itself render otiose the debate over the reception and application of the English restriction in Hong Kong at least as far as any received common law prescription doctrines were concerned.

96. Second, on the application of the 1832 Act in post-handover Hong Kong, the question may be tackled by analysing the effect of the repeal on 2 categories of claims straddling either side of 1 July 1997:-

(1)	prescriptive claims which were capable of enforcement under the 1832 Act before 1 July 1997, but which are only brought in the High Court after 1 July 1997; and,
(2)	post 1 July 1997 prescriptive claims which would not have been enforceable under the 1832 Act before 1 July 1997, but would have become so if the Act had continued in force beyond 1 July 1997.

The 1st category of straddle claim is pertinent here. The 2nd is not. I therefore focus on the 1st category.

97. Megarry & Wade, pp. 1128-30 (§§18-140 to 18-143) describes the 1832 Act as follows:-

"The Act of 1832 is notorious as 'one of the worst drafted Acts on the Statute Book'. It is perhaps best explained by giving a summary of the effects of he principal sections and annotating the sections in groups. The elements of the Act are as follows.

1. Easements (other than) light and profits

(a) The statutory periods

SECTIONS 1 AND 2:

(i)	An easement enjoyed for 20 years as of right and without interruption cannot be defeated by proof that user began after 1189.
(ii)	An easement enjoyed for 40 years as of right and without interruption is deemed 'absolute and indefeasible' unless enjoyed by written consent.
(iii)	The same rules apply to profits, except that the periods are 30 and 60 years respectively.

SECTION 3: This section, which lays down special rules for the easement of light, is dealt with below.

SECTION 4:

(i)	All periods of enjoyment under the Act are those periods next before some suit or action in which the claim is brought into question.
(ii)	No act is to be deemed an interruption until it has been submitted or acquiesced in for one year after the party interrupted had notice both of the interruption and of the person making it.
(b)	Shorter and longer periods. The shorter periods (20 and 30 years for easements and profits respectively) operate negatively, i.e. they assist prescription at common law by prohibiting one kind of defence. The longer periods operate positively, for then the Act declares the right to be 'absolute and indefeasible'. This important distinction is further discussed below, in light of the other provisions of the Act.
(c)	"Next before some suit or action". The Act does not say that an easement or profit comes into existence after 20, 30, 40 or 60 years' user in the abstract; all periods under the Act are those next before some action in which the right is questioned. Thus until some action is brought, there is no right to any easement or profit under the Act, however long the user. It is sometimes said that the right remains merely inchoate until action is brought. The important point is that the fruits of the Act can be reaped only by a litigant. Any person who wishes to consolidate an inchoate right under the Act can issue a writ against the servient owner claiming a declaration that he is entitled to an easement or profit. He need not wait for some interference with it by the servient owner.
	Even if there has been user for longer than the statutory periods, the vital period remains the period next before action. Thus if user commenced 50 years ago but ceased five years ago, a claim to an easement will fail if the action is commenced today, for during the 20 or 40 years next before the action, there has not been continuous user. Similarly a claim under the Act will fail if there has been unity of possession for a substantial time during the period before the action, for then there has not been user as an easement during the whole of the period."

98. Articles 6, 105 and 120 of the Basic Law provide as follows:-

"	6.	The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law."
"	105.	The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.
		Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay. ..."
"	120.	All leases of land granted, decided upon or renewed before the establishment of the Hong Kong Special Administrative Region which extend beyond 30 June 1997, and all rights in relation to such leases, shall continue to be recognised and protected under the law of the Region."

99. Assume that it was possible for a limited owner in Hong Kong to acquire rights by prescription against another limited owner under the 1832 Act as extended by the AELO. It would appear contrary to the spirit of Articles 6, 105 and 120 if repeal of the AELO meant that an inchoate right of easement which a person could have enforced by way of an action for a declaration brought on or before 30 June 1997, suddenly disappeared on 1 July 1997 simply because the person had not in fact brought an action by that date. The more probable effect of the AELO's repeal on 1 July 1997 was that an inchoate right which could have been enforced under the 1832 Act by an action brought as at 30 June 1997, was preserved by Articles 6, 105 and 120 of the Basic Law. The result is that such inchoate right would continue even after 1 July 1997 and repeal of the AELO. The 1832 Act remains a relevant factor for the Court to consider even after 1 July 1997.

100. I appreciate that there can be many variations to the simple situation considered in the previous paragraph. For example, what is the position where an inchoate right under the 1832 Act accrues before 1 July 1997, but before suit is brought in the post-1 July 1997 period there is a long interruption of user? The many permutations of possible events are best left to be considered as and when they actually arise.

101. The present proceedings are more akin to the situation discussed in §99 above. Until Kong Sik Yau attempted to block passage through the Disputed Way in November 1997, the villagers of Hang Tau (including most of the Plaintiffs) freely enjoyed rights of passage over the Disputed Way. As soon as Kong Sik Yau closed the Disputed Way to vehicle access, the Plaintiffs took out the 1st Action in December 1997. In such situation it is difficult to see how, given Articles 6, 105 and 120 of the Basic Law and given that the Plaintiffs or one or more of them had an inchoate property right under the 1832 Act capable of enforcement by action on 30 June 1997, such inchoate right should be lost a few months later.

102. Accordingly, in the present case before me, I cannot ignore the implications of the 1832 Act as applied by the AELO in considering whether the English restriction was received in Hong Kong. The decision in Chung Yeung Hung remains pertinent to my deliberations. I note that before me, with characteristic fairness, Mr Graham did not push a case based on the 1832 Act. Nonetheless, I believe there is something in the case.

103. By way of completeness, I briefly comment on the 2nd category of straddle claim which I have identified above. The person who is only able to show (say) 18 years of user of a neighbour's footpath as at 30 June 1997 may not be able to point to an inchoate property right which attracts protection under the 1832 Act and the Basic Law. In the post-handover period, that person may conceivably be limited to reliance on common law prescription insofar as possible in Hong Kong. But it might be argued to the contrary that the repeal of the AELO had the effect of reviving the law in force in Hong Kong prior to enactment of the AELO. I do not rule out the possibility of other arguments. It is unnecessary on the facts of this case for me to go further. I merely signal that, to me at least, the answer to the question whether, despite the AELO's repeal, the 1832 Act may still apply to the 2nd category of straddle claim is not self-evident.

C.4 Common law prescription in Hong Kong

104. To what extent do the common law doctrines of prescription since time immemorial and prescription by lost modern grant apply to Hong Kong today?

105. As far as time immemorial was concerned, Judge Chan had no doubt. He said in Tang Tim Fat at 377 (ll.32-43):-

"At common law such a grant would only be presumed if the user as of right had continued from time immemorial, i.e. 'from time whereof the memory of men runneth not to the contrary' (see Littleton p. 1031). The year 1189 has been fixed as the limit of legal memory (see Bryant v. Foot (1867) LR 2 QB 161 per Cockburn LJ at pp. 180-81). As it is clearly impossible in most cases to establish continuous user as of right since 1189, a period of 20 years' user has been accepted by the courts as sufficient to give rise to a presumption of such user since 1189 (see Darling v. Clue (1864) 4 F&F 329, at p. 334). However, if it can be demonstrated that the user could not have existed in 1189, e.g. when a building was only erected after 1189, the easement cannot be claimed. In the premises, there is no question that prescription by user since time immemorial can ever apply to lands in Hong Kong in view of the history of the territory, and also the fact that British rule only commenced less than 100 years ago."

106. I agree with Judge Chan that, for the reasons given by him, the doctrine of time immemorial would seem to have little practical application in Hong Kong, whether or not it was part of the English common law actually received here in 1843. Mr Graham frankly conceded that in the Hong Kong context it was "impossible to apply the concept of user as of right since time immemorial".

107. On prescription by lost modern grant, Judge Chan was equally robust. He said in Tang Tim Fat at 381 (l.33)-382 (l.9):-

"I am not convinced that it would be appropriate to modify the English common law to allow the presumption of a lost modern grant to arise between lessees of a common landlord. Such an extended presumption violates the very foundation of the doctrine itself, i.e. the fiction of a servient owner making a grant to a dominant owner. As between lessees of a common grantor, the rule in Wheeldon v. Burrows of an implied reservation/grant is capable of providing a ready solution to a situation where such a right of way is necessary for the enjoyment of the land. There is no logical need to add fiction to fiction. In reality it is difficult to see how such a matter can ever become a real problem. All Crown leases in the New Territories are for agricultural use and can only be used profitably for other uses with the special permission from the Crown. Thus, it is difficult to see how a 'servient lessee' would not be readily agreeable to consent to a modification of the right of way for agricultural use over his land to that of more profitable uses if he himself is seeking special waiver from the Crown for similar profitable uses of his own land. In any event, the Crown also has ultimate weapon of a right of re-enter under the Crown Land resumption Ordinance (Cap. 124). I am not satisfied that the circumstances justify a modification of the well-established English common law in manner urged upon me by the defendants. The justice of the situation does not warrant such a drastic departure from the well-founded basis for the presumption. I hold that the presumption of a lost modern grant can only be claimed by one owner of fee simple against another, and cannot be made available to a lessee of a term unless he claims it also on behalf of his grantor who holds the fee simple. And, as a result of historical fact, such presumption has no de facto application in Hong Kong."

108. I think that the difficulties which I identified in the course of analysing Tang Tim Fat above apply equally to Judge Chan's comments on the application of the doctrine of lost modern grant to Hong Kong. I will not repeat the observations which I have made. I simply add that I do not follow Judge Chan's reasoning based on New Territories leases being for agricultural purposes and on the Crown Land Resumption Ordinance (first enacted in November 1900). Nor am I clear as to what "historical fact" Judge Chan alludes.

109. Again my difficulties with Tang Tim Fat lead me to think that Judge Chan's consideration of local circumstances in determining the extent (if at all) to which the common law doctrine of lost modern grant was received in Hong Kong did not go as far as it might have. At first impression, clumsy though the doctrine of lost grant may be as a fiction, it was part of the common law in force in England in 1843 and would have been received in Hong Kong at that time, possibly in modified form as circumstances warranted. The question whether the English restriction applies in Hong Kong to limit prescription by lost modern grant here to fee simple holders is a different question to that of reception of the lost grant doctrine in the first place.

110. I accordingly agree with Mr Graham's argument that the doctrine of lost modern grant formed part of the common law received by Hong Kong in 1843 and such doctrine has been preserved post-1 July 1997 by Article 8 of the Basic Law.

C.5 The English restriction and Hong Kong circumstances

111. I now face the stark question whether the English restriction constrains the acquisition of prescriptive rights in Hong Kong. Perhaps wisely, neither counsel thought it necessary to take me through the Irish line of cases in which the English restriction has been held not to apply to Ireland (for example, Timmons v. Heuitt (1888) 12 Ir CLR 627, Hanna v. Pollock [1900] 2 IR 664, Dawson v. McGroggan [1903] 1 IR 98, Macnaghten v. Baird [1903] 2 IR 734, Flynn v. Harte [1913] 2 IR 322 and Tallon v. Envis [1937] IR 549).

112. Mr Graham was content to urge me to follow through on the Court of Appeal's approach in Chung Yeung Hung. He submitted that, if the English restriction applied in Hong Kong, that would effectively mean that there is no (and never has been any) practical prospect of acquiring a prescriptive easement in Hong Kong. Mr Graham argued that "this would leave a gaping lacuna in the Land Law of Hong Kong". Such a result would run counter to ordinary expectation. Although the debate is couched in the language of land law whereby it seems dry and technical, Mr Graham was at pains to impress on me that the consequences of a decision one way or the other would have a significant effect on the daily lives of numerous villagers in the New Territories. For historical reasons, many roads used by the public in the New Territories commonly run through plots of land held under Government lease. Typically these roads are the only means of access to village houses. If the English restriction applied in Hong Kong, then however long previous user by a villager for motor transport, his vehicular passage along a road could be denied at any time by the owner of the land over which the road passed. See also Judge Chan's remarks in Tang Tim Fat at 375 (l.4)-376 (l.2).

113. Mr Chan, on the other hand, argued that the AELO's repeal rendered the decision in Chung Yeung Hung irrelevant and pressed me to follow Judge Chan in Tang Tim Fat.

114. In an ideal world, I would have preferred to have heard argument on the Irish cases in order to understand the rationale for rejecting the English restriction there. For instance, do the reasons or circumstances for rejecting the English restriction in Ireland also exist in Hong Kong? Given the ready availability of cases from other countries on the internet, I would also have welcomed a brief survey of other common law jurisdictions to see whether, Ireland apart, any other country has modified the English restriction and (if so) why.

115. On the basis of the material made available to me by both counsel, I agree with Mr Graham. Where from the start of British government in Hong Kong it was envisaged that Hong Kong land would predominantly be held on a leasehold basis, it would be odd if prescription of rights of way under the doctrine of lost modern grant or under the provisions of the 1832 Act had been received here subject to the English restriction. It would have been more commensurate with ordinary expectation for a law of prescription capable of practical application to have been received in Hong Kong generally.

116. Further, given (as discussed above) that Chung Yeung Hung and the 1832 Act as enacted by the AELO remain relevant to the present proceedings, Chung Yeung Hung compels a conclusion that in Hong Kong a limited owner can obtain a right of way by prescription against another limited owner. The Court of Appeal must have felt there that it was more than arguable that the English restriction did not apply to Hong Kong. Otherwise, there was little point in holding that the plaintiff's case was "arguable" in the face of Judge Chan's first instance decision (reached after trial and examination of case authority) to the contrary. Since property rights were concerned, the Court of Appeal would have carefully considered the consequences to New Territories landowners of re-opening the question of the application of the English restriction before delivering any judgment.

C.6 Application of the law to the facts

117. On the basis of the evidence mentioned in Section II.B above, I am of the view that such of the Plaintiffs as hold leasehold interests in land (that is, dominant tenements) lying to the south and southeast of Lot 364A would have a right of easement over the Disputed Way. I identify the particular Plaintiffs ("the particular Plaintiffs") whom I have in mind in §128 of this Judgment.

118. There is ample evidence that, for more than 20 years (at least) prior to the commencement of these proceedings and indeed more than 20 years (at least) prior to 30 June 1997, the particular Plaintiffs and their predecessors-in-title enjoyed rights of vehicular passage over the Disputed Way. I do not agree with Mr Chan that over the relevant period vehicle use of the Disputed Way was only intermittent or sporadic until the early 1990s. There is no evidence that the passage was obtained by force or engaged in secretly. Kong Sik Yau (for example) was fully aware of the regular user of the Disputed Way by motor vehicles. The owners of Lot 364A acquiesced in the passage as evidenced by their building a fence and (later) a wall which demarcated the boundaries between their dwelling area and the Disputed Way within Lot 364A. Before November 1997, there is no evidence of there ever having been a drop bar or other impediment to the free passage of vehicles over the Disputed Way. I reject Kong Sik Yau's evidence that permission was routinely required or sought from the owners of Lot 364A.

119. The easements would have arisen by reason of the common law doctrine of lost modern grant and through operation of the 1832 Act as applied to Hong Kong by the AELO. Insofar as the 1832 Act is concerned, notwithstanding repeal of the AELO on 1 July 1997, the particular Plaintiffs' inchoate rights would have been preserved by reference to Articles 6, 105 and 120 of the Basic Law.

C.7 Conclusion on easement

120. Had I not found in the Plaintiffs' favour on public dedication, I would have been prepared to find for the particular Plaintiffs in respect of the acquisition of an easement by prescription over the Disputed Way.

D. Estoppel

121. Mr Graham suggested estoppel as a basis for the Plaintiffs' claim in the course of his opening. He did not pursue estoppel vigorously in his closing. I therefore do not deal with this ground at any length. I merely state that I would not have found in Mr Graham's favour on estoppel.

122. Proprietary estoppel essentially requires evidence of a representation by the Defendants, reliance on the representation by the Plaintiffs and (possibly) detriment as a result of such reliance. Assume that allowing individuals to pass over the Disputed Way by motor vehicle without hindrance constituted a representation by the Defendants that the particular Plaintiffs had a right of vehicular passage. It is not clear to me from the evidence adduced how individual Plaintiffs claim to have relied on such representation such that it would now be inequitable to allow the Defendants to resile from their representation. Nor is it clear precisely what detriment (if any) each of the Plaintiffs says he suffered as a result of reliance on the Defendants' representation.

E. Trespass

123. Having a right to pass over the Disputed Way in a vehicle, does not mean that one can pave the Disputed Way without the owners' permission. In the 2nd Action the Defendants claim against Wong Chau Ming and Trade Advisers in trespass for concreting the Disputed Way in July 1997.

124. There is no evidence that Wong Chau Ming actually went on the Disputed Way in the course of the paving work done by Trade Advisers on 22 July 1997. Nothing to this effect was put to Wong Chau Ming in the course of his cross-examination. Accordingly, I reject the Defendants' claim against Wong Chau Ming.

125. I also reject the claim in trespass against Trade Advisers. Although Trade Advisers may have paved the Disputed Way after the heavy rains of June and July 1997 at the request of Kong Sau Ching and other villagers, Trade Advisers acting through Liu Tai Chuen had promised Kong Pak Yan that it would repair any damage caused to the Disputed Way by its lorries and other vehicles. In paving the Disputed Way, Trade Advisers was simply making good on Liu Tai Chuen's promise to Kong Pak Yan. Kong Pak Yan had by implication given Trade Advisers permission to carry out the repair on the Disputed Way. The fact that Trade Advisers had also been requested by Hang Tau villagers to repair the Disputed Way does not transform what Trade Advisers did into an act of trespass.

F. Locus

126. Mr Graham and Mr Chan both suggested that various of the Plaintiffs and Defendants had no locus to make a claim in these proceedings. I briefly consider the standing of each of the parties to this action.

127. The Plaintiffs own property in Hang Tau as follows:-

(1)	Kong Sau Ching lives in House 88 on Lot 370. He is also the administrator of the estate of his father, Kong Sang (who is also known as Kong Chap Leung and appears to have traded as Wing Wo Company). Part of Kong Sang's estate consists of the leasehold title to Lots 366, 367, 369 and 370.
(2)	Kong Yuen Hing lives in House 97A on Lot 366. No evidence was adduced as to ownership of property in Hang Tau.
(3)	Kong Hoi Sun, Kong Sau Ching's elder son, lives with his wife in House 88 on Lot 370. No evidence was adduced as to his ownership of property in Hang Tau.
(4)	Kong Hoi Yuen lives in House 88B on Lot 367. No evidence was adduced as to ownership of property in Hang Tau.
(5)	Tin Li Ling lives in House 40 on Lot 388J ss. 1. No evidence was adduced as to ownership of property in Hang Tau.
(6)	Kong Fong lives in House 95 part of which is on Lot 365A and part on 365B RP. Kong Fong is the registered owner of both lots.
(7)	Yip Yum Sang lives in House 41 on Lot 388C RP. Yip Yum Sang is the owner of Lot 388C RP.
(8)	Trade Advisers is the owner of Lot 362 RP.
(9)	Of the parties sued in the 2nd action, Wong Chau Ming does not appear to live or own land in Hang Tau. Lee Tin Fuk, Li Ka Shing, Lee Shu Fai and Li Kwai owned property in Hang Tau as stated in §6 above. They sold their interests to various purchasers in 1998.

128. As members of the public previously or currently associated with Hang Tau, all of the Plaintiffs seem to me to have locus to claim a public dedication of the Disputed Way. Insofar as easement is concerned, on the evidence adduced at trial, Kong Sau Ching, Kong Fong, Yip Yum Sang and Trade Advisers would have been entitled to claim a right of easement by prescription. Contrary to Mr Chan's submission, that Trade Advisers' Lot may still be agricultural land does not affect matters. Trade Advisers would still be entitled to access by motor vehicle to Lot 362 RP. Mr Chan argued that Lee Tin Fuk, Li Ka Shing, Lee Shu Fai and Li Kwai, having sold their Hang Tau properties in 1998, are not entitled to seek a declaration. But I think that Lee Tin Fuk, Li Ka Shing, Lee Shu Fai and Li Kwai have locus to seek a declaration that, when they held their respective properties, they enjoyed rights of easement over the Disputed Way, even if they no longer do so now.

129. The Defendants were registered as co-owners of Lot 364A in January 1967. By a Deed of Partition dated 29 January 2002, Kong Wing Tak (also known as Kong Ha Tsai) became the owner of Lot 364A. It follows that at the time the 2nd Action was brought all of the Defendants had locus to bring the 2nd Action. Although Kong Sik Yau and Kong Pak Yan ceased to have any interest in Lot 364A in 2002, they would still have locus to seek a declaration that in 1997, when the 2nd Action was commenced, they had a right to block vehicle access over the Disputed Way.

130. Accordingly, I do not dismiss any party's claim by reason only of a lack of locus.

G Miscellaneous

131. Mr Chan submitted that usage of the Disputed Way had become so excessive as to constitute a nuisance to the owners of Lot 364A. He said that this was the result of Kong Sau Ching allowing cars to park around Lots 366, 367, 369 and 370 on payment of a fee. That meant (Mr Chan contended) that I should hold against the Plaintiffs. It seems to me that whether or not there is or has been nuisance caused since 2000 by Kong Sau Ching allowing cars to park on his land is outside the scope of the present proceedings. Such specific allegation has not been pleaded by the Defendants at all. I do not make any finding on the matter.

III. Conclusion

132. The claim in the 1st Action and the counterclaims in the 2nd Action succeed.

133. I make a Declaration that the public have a right of pedestrian and vehicular passage along the Disputed Way at all times and for all purposes.

134. In light of that Declaration, I make an Order restraining Kong Wing Tak (the present owner of Lot 364A), whether acting by himself, his servants or agents (including Kong Pak Yan and Kong Sik Yau) or howsoever otherwise, from obstructing or blocking vehicular traffic along the Disputed Way.

135. I dismiss the claim of Kong Sik Yau, Kong Pak Yan and Kong Wing Tak in the 2nd Action and their counterclaim in the 1st Action.

136. The parties have liberty to apply in relation to the wording of the above declaration and injunction.

137. I make an Order Nisi that the Plaintiffs in the 1st Action are to have their costs of that action against Kong Pak Yan, Kong Sik Yau and Kong Wing Tak, such costs to be taxed if not agreed.

138. I make an Order Nisi that Wong Chau Ming, Trade Advisers, Lee Tin Fuk, Li Ka Shing, Lee Siu Fai and Li Kwai are to have their costs of the claim and counterclaim in the 2nd Action against Kong Pak Yan, Kong Sik Yau and Kong Wing Tak, such costs to be taxed if not agreed.