CHAN CHI MING v. BRILLIANT RISE CONTAINER DEPOT LTD t/a 逸昇重櫃場 AND ANOTHER

HCA1110/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1110 OF 2003

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J U D G M E N T

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1.  The plaintiff brought this claim against the defendants for declaratory and injunctive relief and damages in trespass in respect of three lots of land in the New Territories.  This Judgment only deals with the claim against the 1^st defendant. The claim and the trial against the 2^nd defendant cannot be proceeded with as the 2^nd defendant was deregistered on 17 September 2004, a fact which was only made known to the plaintiff a few days before the trial. 

Background

2.  The plaintiff was born in 1956 in Zhongshan.  He had seven brothers and sisters.  In 1967, he came from Macau to Hong Kong together with his parents and most of his siblings. 

3.  The 1^st defendant is a company incorporated in Hong Kong. Mr Yuen Kam Man Terence (“Yuen”) is and was at all material times a shareholder and director of the 1^st defendant.  The company is a container and transportation business and has been in the business of providing transportation and related services.

4.  The 2^nd defendant is also a company incorporated in Hong Kong.  It was controlled and operated by Mr Man Yu Kam (“Man”), who was a shareholder and director. 

5.  The lands in question are lots no. 2870, 2872 and 2879 in DD 102, which are situated in San Tin of Yuen Long (collectively “the Lands”).  According to the land registration records, the registered owner of lot no. 2870 is Man Tip Tsin Tso with Man Tso In as the trustee.  In the case of lot no. 2872, the registered owner is Chui Sze.  The defendants however claim that it had been sold to and is owned by Man Tip Tsin Tso as well.  Nothing turns on this, however.  As for lot no. 2879, the registered owner is Man Tse Shi Tso with Man Cheuk Pui and Man Cheuk On as the managers.

6.  Another lot of land that is relevant to this action, but does not form the subject matter of the claim, is lot no. 2876.  It was granted by Government Lease to Man Wun Kai and Man Kam On. By a deed of gift dated 23 May 1986, the lot became registered in the name of Man Shu Kwan (文樹鈞).   It is common ground that lot no. 2876 had been let to and occupied by the plaintiff’s family. Further in 1996, the plaintiff’s sister, Chan Chi Ying, entered into a tenancy agreement with Man Shu Kwan, under which the lot was let to her for a term of four years commencing from 1 January 1996 and expiring on 31 December 1999, together with a right of renewal.  At the end of the four years term, the plaintiff’s family did not deliver up the Lands.  By a letter dated 28 June 2001, Man Shu Kwan’s solicitors gave notice to terminate the tenancy agreement, which was opposed by the plaintiff’s sister.

7.  The Lands as well as the areas nearby, including lot no. 2876, are agricultural lots.  Lot no. 2870 is to the east of lot no. 2872 with lot no. 2871 standing in between them.  To the north of lot no. 2872 is lot no. 2879.  On the west of lot no. 2872 is lot no. 2876.  There is a common boundary between lot no. 2876 (northern half of the eastern boundary) and lot no. 2879 (southern half of the western boundary).

8.  The plaintiff’s family had erected a house on lot no. 2876 for their residence.  They also erected three pigeon huts on the Lands, one on lot no. 2872 and two on lot nos. 2879.  It is the plaintiff’s case that his family had carried out pigeon farming and other agricultural activities on the Lands.

9.  It is common ground that on 14 May 2002, the plaintiff and his sister met with Yuen and Man in a restaurant in Yuen Long.  During the meeting, the plaintiff’s sister and Man signed a Chinese agreement (頂讓協議書) (“the 14-5-02 agreement”), which was witnessed by Yuen.  Under the agreement, Madam Chan transferred to Man lot no. 2876 together with the structure thereon in consideration of the payment of $100,000

10.  Subsequent to the meeting, the plaintiff’s sister paid to Man Shu Kwan $18,000, being rent of lot no. 2876 for the three years after 31 December 1999.

11.  It is not in dispute that in about June 2002, the structures, vegetation and plants on the Lands as well as lot no. 2876 were removed and cleared.  Surfacing and site formation work was carried out and the area was converted into a container depot.   

12.  On 3 July 2002, the plaintiff’s solicitors wrote to the 2^nd defendant complaining, inter alia, against the removal of and damage to the structures and property on the Lands.   By another letter dated 10 March 2003, the plaintiff’s solicitors raised similar complaint against the 1^st defendant.  Neither defendant responded to the letters.

13.  On 26 March 2003, the plaintiff issued the writ in this action.  The claim was initially only against the 1^st defendant. After the 1^st defendant filed the witness statements of Yuen and Man, in which Man stated that the surfacing and formation works on the Lands was carried out by the 2^nd defendant’s contractor, a letter of demand was sent by the plaintiff’s solicitors to the 2^nd defendant on 7 May 2004.  On 22 May 2004, the plaintiff further applied to join the 2^nd defendant.  The application was granted on 27 May 2004. The writ was amended on 28 May 2004.  On 23 June 2004, the 1^st defendant’s Defence was amended and the 2nd defendant’s Defence was filed. 

14.  This sequence of events is relevant because the 2^nd defendant’s application for deregistration was made on 13 May 2004, within one week after the plaintiff’s letter of demand was sent and the deregistration came into effect on 17 September 2004.  It is also of relevance to note that the two defendants were represented by the same solicitors until the first day of this trial when leave was granted to the solicitors to cease acting for the 2^nd defendant. It would appear that the defendants’ solicitors did not know of the deregistration until a few days before the trial.  Indeed, even after the 2^nd defendant was reregistered, the solicitors had on its behalf taken steps in these proceedings, including filing Man’s third witness statement on 19 May 2005.

The parties’ case

15.  The plaintiff’s case as appeared by his pleadings is that in about 1968, his family rented lot no. 2871 and 2876. At about the same time, he and his parents and siblings entered onto and occupied the Lands and lot no. 2878 as trespassers.  In the 1970s, his family put up pigeon huts on the Lands.  Apart from operating a pigeon farm, the plaintiff’s family also grew vegetables and fruit trees on the Lands for profits.  Sometime in the 1980s, the plaintiff’s family ceased to carry on pigeon farming and the pigeon huts were used for storage purpose. 

16.  In short, the plaintiff claims that his family, and in particular he himself, had remained in continuous occupation until June 2002 when the structures, including the properties inside, and the plants on the Lands were demolished and cleared by the defendants.   The plaintiff says that the defendants’ acts constituted trespass to the Lands and had caused him loss and damages.

17.  The defendants’ pleadings are almost identical.  Their case is that Man is an indigenous villager of San Tin. It is said that in 1968, his family, who used to have the control and management of the Lands, let out lot no. 2876 to the plaintiff’s family and had tolerated the plaintiff’s family to extend their occupation to the adjacent lands, including the Lands.  It is also the defendants’ case that since about July 2000, Man’s family had licensed the Lands to the 2nd defendant.  By a co-operation agreement (合作合约) dated 22 November 2001 (“the 22-11-01 agreement”) made between the two defendants, the 2^nd defendant allowed the 1^st defendant to store containers on the Lands and other nearly lots for a period of three years.  The defendants further plead that the 14-5-02 agreement evidences an oral confirmation by Madam Chan on behalf of the plaintiff’s family that they have no interest or claim in the Lands.

18.  In respect of the plaintiff’s claim, the defence is threefold. The primary defence is that the plaintiff had abandoned the Lands on a date no later than 1994.  The second and fallback defence is that the 1^st defendant was authorized by the 2^nd defendant under the 22-11-01 agreement to enter and use the Lands.  While not disputing the Lands were cleared, paved with cement and converted into a container depot, it is said that the work was done by the 2^nd defendant and not the 1^st defendant.  Thirdly and alternatively, the 1^st defendant challenges the quantum of the plaintiff’s loss and damage.  I should add that the 2^nd defendant had also pleaded that the plaintiff is estopped, by the oral confirmation said to be evidenced by the14-5-02 agreement, from claiming any interest or right in the Lands.  This does not however concern the 1^st defendant and Mr Lee for the 1^st defendant had not sought to rely on this in his closing submission.

The issues

19.  Accordingly, as between the plaintiff and the 1^st defendant, the issues for determination in this trial are:

(1)        Whether the plaintiff was in possession of the Lands in June 2002 when the Lands were cleared to form a container depot.

(2)        Whether the 2^nd defendant and in turn the 1^st defendant was authorized to deal with the Lands.

(3)        Whether the 1^st defendant was responsible or involved in the clearance and formation work done to the Lands in June 2002, including the demolition and removal of the structures thereon.

(4)        If the plaintiff is successful in proving liability against the 1^st defendant, what is the quantum of damages to be awarded.

20.  There was on the pleadings an issue as to whether the plaintiff was at the material time in adverse possession of the Lands.  It is accepted by counsel that the point is irrelevant and needs not be resolved for the purpose of determining the plaintiff’s claim in trespass.  The plaintiff also through counsel indicates that the relief of mense profit is not pursued.

The witnesses and the evidence

21.  There are a total of five witnesses.  The four factual witnesses are the plaintiff and his sister, Yuen and Man.  There is the defendant’s expert witness, Mr Chan Tak Hing. He was called to give expert evidence on the topography and use of the Lands as captured by aerial photographs taken throughout the years.  His expertise and his evidence are not disputed.

22.  Both the plaintiff and his sister are unsophisticated persons.  The plaintiff, in particular, is not an intelligent or articulate person. Their evidence is simple and straightforward. Although there are some differences between their accounts and with their witness statements, their evidence is on the whole consistent and has a ring of truth.  Mr Li had highlighted the fact that the plaintiff stated in his oral evidence that pigeon farming on the Lands ceased in the early 1990s when the time pleaded in the Further and Better Particulars of the Statement of Claim was 1980s.  I do not consider this should affect the plaintiff’s credibility.  Whether it was 1980s or early 1990s, it would not have improved the plaintiff’s case because this was prior to June 2002 when the alleged trespass took place.  There was no reason or need for the plaintiff to lie about this. It is more probably a genuine mistake or failure of memory.  It is also to be observed that the plaintiff’s evidence as to the use of the Lands and lot no. 2876 is by and large consistent with the depictions of the aerial photographs as elaborated by the expert.

23.  By contrast, Yuen and Man are worldly and clever. It is apparent from some of the answers they gave in court that they were shifting their grounds and making up the evidence as they went along.  Mr Ng who appears for the plaintiff had in his closing submissions dealt in details with the inherent improbabilities of their accounts, the various contradictions between Yuen’s and Man’s oral evidence and their witness statements as well as the inconsistencies between their evidence.  I need only highlight some of the more glaring ones.

24.  Firstly, while Man stated in his 1^st witness statement that the $100,000 paid to the plaintiff’s sister under the 14-5-02 agreement was for the purchase and compensation of the interest of the plaintiff’s family in lot no. 2876 and also the Lands, his evidence under cross-examination is that the payment was only for the interest in lot 2876 and did not include any interest in the Lands.  In the 2^nd witness statements of both Yuen and Man, it was said that the plaintiff and his sister had warranted that the $100,000 compensation covered all the lands used by their family, which included not only lot no. 2876 but also the Lands.  Although Man maintained that his oral testimony was the correct version, there was no explanation as to how and why it was that his as well as Yuen’s statements came to be incorrectly stated. 

25.  As a matter of fact, the defence case and Man’s evidence surrounding the 14-5-02 agreement and the oral confirmation that the plaintiff’s family had no interest in the Lands is inherently unreliable.  The 14-5-02 agreement is a typed document and was clearly prepared beforehand and brought to the meeting by Man. There would be no difficulty to insert into it a confirmation in relation to the Lands, if this was thought to be important. It is Man’s oral evidence that he would not have signed the document had it not been for the confirmation. There is, however, no explanation as to why the document had omitted to make any reference to the Lands, let alone a confirmation of no interest in it.  Further, given that the document makes no mention of the Lands at all, it is difficult to see how it is that it evidences an oral confirmation that the plaintiff’s family had no interest or claim in the Lands. 

26.  Secondly, in respect of the container depot that was operated on the Lands, Yuen stated in his 1^st and 2^nd witness statements that the advertising sign bearing the name of “Brilliant Rise Heavy Container Depot” (逸昇重櫃場) erected at the entrance at the end of 2002 and the advertising signs erected at the road junction in early 2003 were not put up by the 1^st defendant, but by another related company.  Man, however, said in cross-examination that the advertisement signs were erected by the 1^st defendant.  Man further explained that the huge advertising sign at the entrance was intended for the container truck drivers of the 1^st defendant’s customers.

27.  Yuen also stated in cross-examination that the 1^st defendant was not responsible for bringing the containers to the container depot that was operated on the Lands. He claimed that the 1^st defendant merely took the orders from its customers and that it was the 2^nd defendant who sent container trucks to collect the containers and bring them to the depot.  This is plainly at odds with Man’s 1^st witness statement, which said it was the 1^st defendant who carried the containers into the depot.  Under cross-examination, however, Man departed from his witness statement and claimed that most of the 1^st defendant’s customers would directly drive their container trucks into the depot. Neither Yuen nor Man had given a satisfactory explanation for the different accounts.  It would appear that both Yuen and Man were trying to play down the 1^st defendant’s involvement with the operation of the container depot.  That Yuen was keen to disassociate the 1^st defendant from the depot is also demonstrated by his evidence that the 1^st and 2^nd defendants had their offices in different containers when it is Man’s evidence that the defendants had their offices in the same container.  Another clear instance of the attempt to disassociate the 1^st defendant from the container depot was Yuen and Man’s evidence that the telephone number that appeared on Yuen’s name card was in fact also used by the 2^nd defendant. This inherently hard to believe.

28.  Thirdly, the evidence on the 22-11-01 agreement is also unsatisfactory.  In the agreement, it was stated that the 2^nd defendant was a lawful tenant (合法租用人) of 19 lots of land on DD 102, including lot no. 2876, 2873 and the Lands.  The agreement provided that the 1^st defendant was permitted to store containers on the said 19 lots of land from 1 December 2001 to 30 November 2004.  As far as the 1^st defendant is concerned, this agreement must be a crucial aspect of its defence to the plaintiff’s claim. Yet, it was not pleaded in the 1^st defendant’s Defence and was only mentioned for the first time in January 2004 in the 1^st witness statements of Yuen and Man. 

29.  This aside, the description of the 2^nd defendant in the 22-11-01 agreement as the lawful tenant of lot nos. 2876 and 2873 is clearly incorrect.  In respect of lot no. 2876, although the tenancy agreement signed by the plaintiff’s sister in 1996 had expired by 2001, it is accepted that the lot had not been delivered up to the landlord, Man Shu Kwan. As late as May 2002, Man was prepared to enter into the 14-5-02 agreement and to pay $100,000 to the plaintiff’s sister for the transfer of the interest in lot no. 2876.  Not only that, out of the $100,000 received, the plaintiff’s sister paid $18,000 to Man Shu Kwan to cover the rent that had been in arrears since 2000.  All these go to show that the plaintiff and his family had remained the tenant of lot no. 2876 until May 2002.  On the other hand, other than asserting an oral agreement with Man Shu Kwan, Man had not adduced any evidence to substantiate that he was a lawful tenant in November 2001.

30.     As for lot no. 2873, the evidence of Man is that he acquired the interest from the tenant of the lot, Tsui Kwok Fai, on 14 May 2002. He therefore could not have been the lawful tenant in November 2001.  Man’s answers under cross-examination that he had in the later 1990s paid for the purchase price of lot no. 2873 is an example of his developing his evidence as he went along.  Plainly, if he had already paid the purchase price and completed the purchase as he claimed, he would not be a mere “lawful tenant”, but would have been the “lawful owner” instead.

31.  Another example of Man developing his evidence as he went along is his claim under cross-examination that in 1968, the plaintiff’s family had orally agreed with and assured his father that they would deliver up the Lands if the Man’s family required it for development purposes.  It was said that this oral promise and assurance was given as the plaintiff’s family wanted to use the Lands for pigeon farming and for growing vegetables.  Had this been true, it would have been an important aspect of the defence case.  There was however no mention of this at all in the three witness statements made by Man, despite that he had talked about the letting of lot no. 2876 to the plaintiff’s family in 1968.        

32.  Before leaving the issue of credibility of the witnesses, it is necessary to mention two matters.  The first is the deregistration of the 2^nd defendant.  In light of the timing of the application and of the failure to reveal it to the plaintiff, there is considerable force in Mr Ng’s submission that the deregistration is a calculated move aiming at defeating the plaintiff’s claim.  It is accepted by Man that the documentation for the deregistration was signed by him. He has however given no satisfactory explanation as to how he could have declared that the 2^nd defendant had no outstanding liabilities when it was just five days ago that the plaintiff’s solicitors issued a letter of demand.  Further, the 2^nd defendant was added  as a defendant in this action in May 2004,  several months before the company was formally deregistered in September 2004,  This apparently was not communicated to the Companies Registry, even though it must be obvious that it would impact on the deregistration application.  Not only this, when Man made his 3^rd witness statement in May 2005, he stated in unambiguous terms that the container depot on the Lands was still controlled by the 2^nd defendant.  This simply cannot be right since the 2^nd defendant was deregistered some eight months ago, quite apart from the fact that the 2^nd defendant was deregistered on he ground that it had ceased to carry on business or had ceased operation for more than three months.  Man had offered no explanation for these matters, which reflect badly on his honesty and credibility.

33.  On the issue of whether the 2^nd defendant was in business or operation, Man has adopted an inconsistent stance.  On the one hand, Man’s (and also Yuen’s) evidence is that the container depot on the Lands was operated by the 2^nd defendant and the 1^st defendant was merely granted permission to store its customers’ containers.  On the other hand, Man had applied for the deregistration of the 2^nd defendant on the ground that it had ceased business and operation.  Further when being cross-examined, Man was unable to say whether the 2^nd defendant had ever obtained business registration certificates or even whether it had registered with the telephone company for a telephone line.  This inconsistency not only casts doubt on Man’s credibility, but also greatly undermines the veracity of the defence case on the 22-11-01 agreement.

34.  The second matter that needs to be mentioned is Man’s claim that he was an indigenous villager of the Man’s clan in San Tin. The plaintiff disputes this and Man was cross-examined as to his links to and his knowledge of the Man’s clan, the Fan Tin Tsuen (蕃田村) to which Man said he belonged and of San Tin as a whole.  It is not necessary for the court in this trial to make finding on whether Man is an indigenous villager.  It is only necessary to observe that admittedly, Man was not born in and did not grow up in San Tin. In fact, he had not lived in San Tin. This is relevant as it renders inherently unreliable his claim that Man Ying Sau (文英壽)’s family entrusted his family with the management of the Lands and the nearby lots and that in July 2000, his family licensed the use of the Lands to the 2^nd defendant.  On the other hand, it lends support to the plaintiff’s case that back in the 1990s, Man was not around and was unknown. 

35.  Probably in view of the plaintiff’s challenge, Man was eager at the trial to show that he was closely involved in the management of the lots near the Lands.  Specifically, he gave evidence that he was present and had witnessed the execution of the 1996 tenancy agreement in respect of lot no. 2876.  This assertion is doubtful when the tenancy agreement had recorded the agent of the owner, the rent collector and the witness, but had not mentioned the presence of Man.  Further, if he was indeed present, he would not have said in his witness statement that Man Shu Kwan directly entered into the tenancy agreement with the plaintiff’s sister, when in fact Man Shu Kwan acted through an agent.  In any case, even if he was present, it would appear that he had no role to play in the execution of the tenancy agreement.

36.  Also as an attempt to show that he was involved in the management, Man stated in his witness statements that he had personally gone to some of the lots, including lot no. 2876, to post up notice to quit.  However, the photographs of the notice show that the notice was issued in the name of a person called Man Fu Wah on behalf of the owner and only related to lot n. 2876.  It did not show Man’s name and there is no apparent connection between Man and the notice.

37.  In short, I do not consider Yuen and Man to be truthful and reliable witnesses or that their evidence to be credible.  Where their evidence is at variance with that of the plaintiff and his sister, I prefer the latter.

38.  I find as a fact that the plaintiff and his family had since 1968 rented lots no. 2871 and 2876. At about the same time, they also occupied the Lands. Over the years, the plaintiff’s family had erected a house on lot no. 2876 as their residence and had further erected three pigeon huts on the Lands.  They carried out pigeon farming and grew vegetables and fruit trees on the Land.  In early 1900s, the plaintiff’s family ceased pigeon farming. Thereafter, none of his siblings lived on the Lands, but the plaintiff continued to live there.  It was only in 2001 that the plaintiff moved to live in a housing estate nearby.  After he had moved, the plaintiff had regularly gone back to the Lands to check the huts and the items kept inside, and also to pick the fruits growing on the Lands.  The doors to the pigeon hut were also locked.  

39.  I also accept the plaintiff’s evidence that sometime in late 2001, he met Yuen for the first time at somewhere near the Lands. During the encounter, Yuen gave the plaintiff a name card and asked the plaintiff whether he was prepared to sell the Lands.  The plaintiff replied he might consider it.  Sometime before 14 May 2002, Man approached the plaintiff and his sister to negotiate the transfer of the interest and rights in lot no. 2876.  Eventually Man and the plaintiff’s sister met on 14 May 2002 signed the 14-5-02 agreement and Man paid $100,000 to the plaintiff’s sister. Within a few says from the making of the agreement, the plaintiff removed the properties on lot no.2876 and put them inside the huts on the Lands.  Some time in June 2002, the plaintiff returned to the Lands and saw that the huts and plants on the lands have been removed and cleared away.  He also saw Yuen there.  Upon being questioned by the plaintiff, Yuen replied that they were expanding their business and required more space, and that what they did had nothing to do with the plaintiff.

40.  In respect of the structures on the Lands, as confirmed by the plaintiff, there was only one pigeon hut on lot no. 2872.  One of the pigeon huts on lot no. 2879 had been demolished in 1993 or 1994 and the other one had collapsed during a typhoon some years later.  There were inside the pigeon hut on lot no. 2872, pumps, shovel, water pipes, wood materials and ventilators.

 Was the plaintiff in possession of the Lands?

41.  For the plaintiff to succeed in the claim of trespass, it must be established that he was in June 2002 in possession of the Lands.  This involves proving physical control over the Lands and an intention to possess.  As to the degree of physical control necessary to constitute possession, it varies from one case to another, for by possession is meant possession of that character of which the thing is capable: see Clerk & Lindsell on Torts (19^th Edition), para.19-13.  In Wuta-Ofei v..Mabel Danquah [1961] 1 WLR 1238 at 1243, Lord Guest held that:

“The type of conduct which indicates possession must vary with the type of land.  In the case of vacant and unenclosed land which is not being cultivated there is little which can be done on the land to indicate possession … Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land.  In these circumstances the slightest amount of possession would be sufficient.”

42.  Although as at June 2002, the plaintiff had moved away from the Lands and there was no farming or agricultural activities on the Lands, it does not automatically lead to the conclusion that the plaintiff had ceased to have physical control or intention to control the Lands.  Considering that the nature of the Lands being agricultural and the fact that the plaintiff’s family had ceased farming activities on the Lands, the mere absence of activities on the Lands cannot be equated with abandonment of the Lands.

43.  On the other hand, on the plaintiff’s evidence, which I accept, he had paid regular visits to the Land.  Even though he was only looking a look at the Lands or picking some of the fruits grown there, there being no specific purpose for the visits, it is demonstrative of his interest in the Lands and in turn of an intention to exercise control over the Lands.  This part of the plaintiff’s case is best borne out by the fact that the plaintiff came to learn of the demolition and formation work on the Lands very shortly after the defendants pulled down the structure and carried out formation work on the Lands as he was on one of his usual visits to the Lands.  Further, he had acted promptly to send letters of compliant about the acts of trespass. These are indicative of the fact that he had intention to and did exercise physical control over the Lands.  As stated in J A Pye (Oxford) ltd. v. Graham [2003] 1 AC 419 at 436D-E, the plaintiff, as the possesser, “has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.” I am satisfied that the plaintiff has made out a case of being in possession of the Lands when the acts of trespass occurred in June 2002.

Defence of jus tertii : The authority of the 2^nd defendant

44.  Given that I have rejected the evidence of Man, there is no evidential basis for the defence that the 2^nd defendant was authorized by the registered owners to take control of and manage the Lands. It will also follow that there is no basis for claiming that the 1^st defendant’s activities on the Lands were done by the authority of the true owner in the sense that it was permitted by the 2^nd defendant to enter and use the Lands.  This fallback defence must fail. 

45.  That aside, the 22-11-01 agreement on which the 1^st defendant relies to sustain this defence is infested with so much inherent difficulties that it is simply unreliable. There is also as Mr Ng points out, no evidence to suggest that the 2^nd defendant was ever in active business such that the suggestion that it was the 2^nd defendant who operated the container depot and allowed the 1^st defendant to put containers there cannot be supported on evidence.  I would additionally observe that even if Man’s account is to be believed, it is unclear what interests or rights in the Lands that he claims had been conferred on the 2^nd defendant by the true owners.  The reference to Man Ying Sau’s family and Man’s family in the pleadings and witness statements are vague averments.  The evidence also does not begin to explain any relationship between the registered owners of the Lands and the Man Ying Sau’s family or Man’s own family that would have indicated that Man and the 2^nd defendant have derived the proper authority to use the Lands. 

Was the 1^st defendant liable for the acts of trespass?

46.  Similarly, given my rejection of the evidence and accounts of Yuen and Man, the suggestion that the demolition of the structure and site clearance and formation work carried out on the Lands was only done at the instance of the 2^nd defendant must be rejected.  There is also the Plaintiff’s evidence, which I accept, that he saw Yuen present on the Lands on the occasion in June 2002 when he found out that the Lands had been cleared. 

47.  It is also evident that the 1^st defendant had the use of the Lands after it was paved with cement and converted into a container depot.  In the 1^st defendant’s original Defence and the 1^st witness statement of Yuen, it was stated in unambiguous terms that the 1^st defendant and its customers had stored containers on the Lands, albeit said to be licensed and permitted by the 2^nd defendant.  Additionally, the huge advertising signs bearing the name of “Brilliant Rise” that were put at the entrance of the depot and at the road junction also show objectively that the 1^st defendant has been involved in the operation of the container depot on the Lands. The defence that the 1^st defendant was not liable for the acts of trespass cannot be sustained.     

The value of the structure and other properties on the Lands

48.  The plaintiff stated clearly in his evidence that the pigeon huts and the shovels, pumps, ventilators and other tools and materials used for pigeon farming were put up and installed by his father and family members.  As Mr Ng fairly accepts in his supplemental closing submission, the best that the plaintiff can say as to their value is that the estimated costs for the construction of the three pigeon huts was HK$50,000 and the estimated value of the items placed inside the remaining pigeon hut was about $20,000.  As the plaintiff was not personally involved in putting up the huts and acquiring the items, and he had not provided an objective basis or confirmation of the costs and value stated by him, the estimations cannot discharge the burden of proving the quantum of actual loss occasioned to the plaintiff by reason of the 1^st defendant’s acts of trespass.

49.  Since the claim of trespass is actionable per se, the failure to prove the quantum of damages would not prevented the plaintiff from succeeding in his claim.  However, the court can only award nominal damages of $100: see Born Chief Co (t/a Beijing Restaurant) v. Tsai George & another [1996] 2 HKC 282.

Injunctive relief

50.  Mr Li submits that there is no evidence to show that the 1^st defendant has continued to use the Lands so as to provide the basis for the injunctive relief.  However, the evidence of Yuen is that since June 2002, new advertising signs also bearing the name of “Brilliant Rise” had been erected at the road junction and near the entrance of the depot.  These signs are depicted in the photographs labelled as CCM-5 attached to the plaintiff’s witness statement.  Yuen also accepted in cross-examination that the signs are still there.  In my view, the inference must be that the 1^st defendant has continued, or to say the least intends, to make use of the Lands for storing containers in connection with its business.  The plaintiff is therefore entitled to a prohibitive injunction.

51.  Mr Li also submits that since it was the 2^nd defendant’s contractor who caused the Lands to be cleared and paved with cement, it would not be appropriate to grant a mandatory injunction against the 1^st defendant, requiring it to reinstate the Lands by removing the cement.  As I have found that the 1^st defendant was involved in the clearance of the Lands and the operation of the container depot on the Lands, this submission cannot be upheld.    

Conclusion

52.  For the reasons above, judgment is entered for the plaintiff as follows:

(1)       A declaration that as against the 1^st defendant, the plaintiff is entitled to possession of the Lands,

(2)       An injunction restraining the 1^st defendant whether by itself, its servants or agents or otherwise howsoever from trespassing the Lands,

(3)       An injunction compelling the 1^st defendant to reinstate the Lands by removing or causing to be removed all the cement paved on the Lands, and

(4)       Nominal damages in the sum of $100.

53.  Applying the normal rule of costs follow event, there is an order nisi that the 1^st defendant pays the plaintiff the costs of this action, to be taxed if not agreed.  There is also an order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.