LAM PAK KAU v. YU YUET FAT

CACV 205/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 1999

(ON APPEAL FROM HCA 2020 OF 1996)

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J U D G M E N T

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Mayo, J.A.:

1. This is an appeal from a judgment of Findlay, J. He dismissed the Plaintiff's claim for trespass in relation to land at Tai Po in the New Territories and also dismissed the Defendant's counterclaim. The Plaintiff is the owner of land known as Lot 970 in Demarcation District 29 (the Plaintiff's land) and the Defendant is the owner of adjoining land known as Lot 991 in Demarcation District 29 (the Defendant's land).

2. The Defendant constructed a boundary wall which the Plaintiff alleged encroached upon his land. According to the Amended Statement of Claim the total area of the land allegedly encroached was 28 square metres. However the Plaintiff's mother who claimed to have knowledge of the situation gave evidence to the effect that the total area encroached was only the width of the wall which was about 100 millimetres. Later she changed her evidence and said the width was 250 millimetres.

3. It will be appreciated from this that the alleged encroachment extended for some considerable length and that even on the Plaintiff's case it was a very narrow strip of land.

4. Understandably for the most part the hearing centred around the evidence given by the respective expert surveyors who were called by the parties to testify for them.

5. Put very shortly the Judge preferred the evidence of the Defendant's expert Mr. John Chinchen to that of the Plaintiff's expert, Mr. Henry Chan.

6. Both experts had attended at the site and prepared reports.

7. Most significantly the Judge accepted the evidence of Mr. Chinchen that it was simply not possible on the available information to ascertain the position of the boundary between the two Lots with the precision required to bring it within a margin of error of 1 metre.

8. In this connection it has to be borne in mind that it was common ground that there were no survey markers which could be used as points of reference for any survey which was to be undertaken.

9. The Judge had this to say on the problems encountered by anyone attempting to undertake a survey of land in the New Territories:

"A land surveyor in Hong Kong has a difficult job when he is asked to do what Messrs Chan and Chinchen were asked to do. The tools available to them are not precision instruments. All that they can do is to look at the DD sheet of the land concerned. This is on a scale of 1:1980 so the location of physical objects on the ground cannot be depicted with any great accuracy. They can also look at the Land Record plan. This is on a scale of 1:1000, so, again, not an accurate representation of what exists on the ground. The surveyors must then compare what they see on the plans with what appears on the ground, attempting to reconcile the two as much as possible. It is a pretty rough and ready system. I accept what Mr. Chinchen says; that it is simply not possible, using the tools available, to place a boundary with more accuracy than within about 1 metre.

Mr. Chan says that he fixes the boundary between lots 970 and 991 by taking it as the mid-line of the bund. That, of course, involves being able to fix the positions of each side of the bund. This bund is old. As I could see from the photographs, it has been subject to the normal wear and tear from erosion and human and animal activity that one would expect with what is simply a ditch excavated from the soil. I do not accept that a land surveyor, no matter how proficient, is able to say that this or that point fixes the outer limits of the bund with any great degree of accuracy. Nor, of course, is any land surveyor able to say that the bund was placed precisely on the boundary of two pieces of land. All he can do is say that it follows approximately the line in plans, which are themselves incapable of providing great accuracy. There is no evidence that this placement was done with any anxiety to ensure that it was accurate to within one metre. History, common-sense and the experience of the courts in dealing with this kind of case tells us otherwise. When these old bunds were erected, land in Hong Kong was cheap; no-one would have been much concerned to ensure that the bunds were precisely placed. The fact that bunds were used at all as boundary markers, instead of some means of demarcation that was more precise, tells us this; by their very nature, they are imprecise instruments to mark a line."

10. The first complaint made by the Plaintiff is that the Judge erred in taking the boundary drawn on the Demarcation District sheet as the true boundary and then attempting to reconcile the plan with the physical features on the ground and more particularly the bund which was referred to. In this connection reliance was placed upon the fact that it is clearly the case that the relevant plans were prepared for the purposes of identification only. If the Judge's reasons are carefully considered he does not fall into this error. He mainly concerned himself with the physical features on the ground. The reference to the plan describes what any surveyor would have to do to reconcile some features with the plan.

11. Whatever else may be said the Judge did have before him the evidence of Mr. Chinchen who expressed the expert view that on the available material it was impossible for any surveyor to be accurate within the precision of 1 metre which was all that was involved at most in the instant case.

12. The second complaint is that the Judge did not satisfactorily resolve the differences between the experts called by both sides. The answer to this is that he did.

13. In truth there was very little difference between the evidence of the experts.

14. The main difference was that Mr. Henry Chan insisted that the bunds did accurately constitute the boundary between the two Lots. However when he was pressed on how this could be having regard to the history of the manner in which surveys had been conducted in the past he was unable to provide any convincing reason supporting his contention.

15. He was also unable to provide any plausible explanation as to why the physical integrity of the features on the ground should be immutable. As was pointed out by the Judge it was inevitable with the passage of time that physical features would change. This was particularly relevant if it was necessary to establish accuracy of the type claimed for by Mr. Henry Chan.

16. The third complaint is that the Judge erred in accepting Mr. Chinchen's expert evidence that the wall which had been constructed on the boundary closely followed and adhered to the boundary. I can see no reason why the Judge should not have accepted this testimony.

17. The fact that the bund was no longer at the site does not detract from his evidence. At the end of the day it was incumbent on the Plaintiff to prove that there was trespass on the balance of probabilities. The Judge was not satisfied that this burden had been discharged.

18. There is no merit in any of these grounds of appeal. The Judge was fully justified in reaching the conclusion he did.

19. In the counterclaim the Defendant sought a declaration that the wall did not encroach on the Plaintiff's land. Clearly for the reasons given for being unable to establish the exact boundary with precision it was inevitable that the counterclaim would fail. No complaint is made about this.

20. In my view this appeal should be dismissed.

Keith, J.A.:

21. I agree that this appeal should be dismissed, and I add a few words of my own out of deference to the valiant attempts made by Mr. Louis Chan for the Plaintiff to have the judgment set aside.

22. The issue in the case was whether the wall which was built round the Defendant's lot encroached onto the Plaintiff's lot. That depended on precisely where the boundary between the two lots was. As I read their reports, both parties' surveyors were agreed that the boundary between the two lots should be treated as being any particular geographical feature which defined the contours of the land and which was used for the survey of the New Territories carried out in 1898 to distinguish between individual lots of land.

23. There is, or at any rate was until recently, an earth bund running on, or close to, the boundary between the two lots. The bund is a man-made mound. The factual premise on which the Plaintiff's case proceeds is that this bund represented the boundary between the two lots, because it was the geographical feature which was used in the survey to delineate the dividing line between the two lots. Since the evidence of the Plaintiff's surveyor was that the wall was built over the bund and encroached over the middle of it, it follows that the wall encroached over the boundary.

24. In my view, the difficulty with this argument is that there was no evidence that the bund existed at the time of the survey. There was no evidence at all before the judge as to when the bund was built. There is, therefore, no evidential basis for saying that the bund was the geographical feature which was used in the survey. It is entirely possible that the bund was built many years later, and that it simply represented what the person who built it thought was where the dividing line between the two lots was. On that basis, the bund would not represent the boundary between the two lots, and the fact that the evidence of the Plaintiff's surveyor was that the wall encroached on the bund would not mean that the wall encroached over the boundary between the two lots.

25. But even if the bund had been in existence at the time of the survey, so that the middle of the bund did indeed represent the boundary between the two lots, it has to be borne in mind that the degree of encroachment alleged was very small - 700 mm. at the most, but possibly as little as 250 mm. And as the judge himself said:

".... fixing the middle of the bund involves being able to fix the positions of each side of the bund. This bund is old. As I could see from the photographs, it has been subject to the normal wear and tear from erosion and human and animal activity that one would expect with what is simply a ditch excavated from the soil."

In other words, with a bund whose precise configuration may change in the course of time, and bearing in mind the small degree of encroachment, it is simply not possible to say that the wall encroached over where the middle of the bund was when the bund was first treated as delineating the dividing line between the two lots.

26. Mr. Chan has argued that the judge fell into error in that he took the boundary to be where it was drawn in the 1898 survey (which the judge understandably regarded as imprecise) rather than the middle of the bund. For my part, I see the force of that argument, but I need not express a concluded view on it because, even if the judge had taken the middle of the bund as it was in 1898 as the boundary line, it would not have been possible to say whether a wall built over 90 years later encroached over where the middle of the bund had been over 90 years earlier, especially when one remembers that the degree of encroachment alleged is so small.

27. I was for a time troubled by the fact that the Defendant's surveyor conceded in his report that at one point the wall did indeed encroach onto the Plaintiff's lot by 56 mm. Should the judge not have made at least a declaration to that effect? In my view, the judge was entitled not to. Although the Defendant's surveyor's plans show where the encroachment of 56 mm. was, there was, so far as I can tell, no evidence as to how the Defendant's surveyor had come to that conclusion. In the event, the judge was not prepared to accept the concession of the Defendant's surveyor that there had been this minor encroachment. That is apparent from the judge's conclusion that it was simply not possible to say that there had been any encroachment at all. For the reasons which I have given, I regard that conclusion as unchallengeable.

Chan, C.J.H.C.:

28. I agree that the appeal should be dismissed.

29. It is clear that the judge was not satisifed from the evidence adduced before him that the plaintiff had discharged the burden of showing that the defendant had encroached on his land. The judge was well aware of the difficulties which a surveyor would face in trying to fix the boundary with any degree of precision, particularly in the present case. The plaintiff's case was based mainly on the evidence of the expert Mr Henry Chan. Mr Chan's evidence relied very heavily on certain assumptions, such as that the bund existed as a boundary between the two lots, that the middle of the bund could be regarded as the precise boundary between the two lots and that the bund had not changed over the years. The judge apparently did not accept these assumptions. He found it difficult to rely on the bund which he described as very ill-defined and old. He referred to the uncertainty in relying on the bund at pages 2 and 3 of his judgment which has been extensively quoted by my Lords. I have no reason to disagree with the trial judge. It is accepted that there is no evidence as to when the bund was placed on the ground, the purpose why the bund was placed there and how the bund was placed there. There is also no evidence as to whether the bund represented in any reliable or precise way the boundary between the two lots and how much change, if any, there was in the position and condition of the bund.

30. Finally, I do not think there is any question of applying the de minimus rule in the present case. Nor is it necessary to decide whether such rule can apply to an action in trespass. This is because the trial judge did not expressly make a finding that there was an encroachment. He said at page 3 of his judgment :

"It is not possible to say that there has been any encroachment over that boundary. Nor is it possible to say that there is no encroachment at all. There may be some encroachment, but it is minimal, and one that should not be of concern to any reasonable person." (emphasis added)

31. For these reasons, I agree that the appeal should be dismissed.