HO MAN LAP v. HO KING KIU AND OTHERS

HCMP 1684/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1684 OF 2013

(ON AN INTENDED APPEAL FROM DCMP NO. 377 OF 2010)

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D E C I S I O N

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Hon Kwan JA (giving the decision of the Court):

1. This is an application for leave to appeal to the Court of Appeal against the judgment of HH Judge Chow given on 19 April 2013 after a five-day trial in an action of trespass of land. The judge refused leave to appeal on 28 June 2013 but did not give a written judgment with detailed reasons. The defendants sought an oral hearing estimated to last for one day for this court to deal with their leave application. Having reviewed the papers with care, and notwithstanding the additional time we spent because we did not have the benefit of the judge’s reasoning in refusing leave, we think it appropriate to determine this application on the basis of the documents and submissions lodged in court without an oral hearing.

2. The plaintiff, who is the registered owner of a piece of land known as Lot No 198 RP in DD No 74 in the New Territories, claimed that the rear part of a two-storey building known as Chan Fung Kee Store (“the Store”) encroached upon his land.  The defendants denied trespass and put the plaintiff to proof as to the proper locations of Lot No 198 RP and the Store.

3. Three Authorised Land Surveyors were called on both sides to give evidence.  The judge accepted the evidence of the plaintiff’s surveyors (Mr T H Chan and Mr S C Leung) on the proper locations of Lot No 198 RP and the Store and declined to accept the evidence of the defendants’ surveyor (Mr Henry Chan).  The intended appeal is an appeal against a finding of fact of the court below.

4. Leave to appeal shall not be granted unless this court is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard, see section 63A(2) of the District Court Ordinance, Cap 336.  The threshold requirements are well established. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 at §17).

5. As this intended appeal is against a finding of fact based on expert evidence, the following observations of the Court of Appeal in Hui Ling Ling v Sky Field Development Ltd, CACV 122/2012, 22 March 2013 at §43 are pertinent:

“Secondly, findings which are based on expert evidence are to be treated on appeal as findings of fact. To overturn such findings, it has to be shown that the trial judge went seriously wrong, for example, by overlooking critical evidence, misunderstanding the evidence, or making a finding that was wholly unsupported by any evidence (Au Yeung Miu Sim v Tsang Kwong Wai & Anr [2004] 2 HKLRD 187 at para 16). The high threshold to succeed on challenges to findings of fact as stated by the Court of Final Appeal in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 applies to this situation (Ansar Mohammad v Global Legend Transportation Ltd [2011] 2 HKLRD 985 at para 22(1)). When dealing with an expert witness, a trial judge still has a significant advantage over an appeal court in assessing the value, the reliability and the impressiveness of the evidence given by the expert, although the advantage of the trial judge is not so great as in the case where the witness is a witness of fact (Joyce v Yeomans [1981] 1 WLR 549 at 556E to H).”

6. The background of this case was related in the judgment below at §§1 to 14.  We do not propose to repeat the narrative here.  In a nutshell, the plaintiff’s case is that the proper locations of Lot No 198 RP and the Store are as shown in the 2^nd Survey Record Plan, which was prepared by Mr T H Chan on 31 August 2009 and was kept by the District Survey Office for reference by others since November 2009.  The 2^nd Survey Record Plan was accepted by the government and the corresponding boundary information has been incorporated into the Cadastral Information System (“CIS”) which resulted in the amendment of the Lot Index Plan in April 2010[1].  According to the 2^nd Survey Record Plan and the Lot Index Plan in 2010, a part of the Store, which is House No 1, was built on Lot No 198 RP.  Mr Henry Chan did not receive instructions from the defendants to conduct a land survey with the view to producing a land record plan, and merely sought to cast doubt on the correctness of the 2^nd Survey Record Plan.  The judge found nothing wrong with the 2^nd Survey Record Plan and gave judgment for the plaintiff.

7. We turn to grounds (i) to (iv) in the draft notice of appeal, which are subsumed under two heads in the submission lodged by the defendants’ counsel, Mr Wallace Cheung.

1^st complaint – if wrong approach was adopted for determining boundary

dispute

8. The complaint here was that the judge had adopted a wrong approach in that he was alleged to have used administrative policy and procedures for determining boundary disputes in court proceedings.  The arguments ran as follows:

  (1)  The judge determined the boundary dispute based on the practice in the Land Survey Authority Circular No 2/98 dated 5 May 1998 headed “Priority of Deposited Plans” (“the Circular”) and the Code of Practice under the Land Survey Ordinance, Cap 473 (the gist of which was set out in Chan Tat Wing v Disciplinary Board, CACV 22/2011, 2 November 2012, §§4 to 8).  The Circular did not state that “strong evidence” or the submission of a land survey record plan was required to challenge a prior deposited plan, such as the 2^nd Survey Record Plan.  To the contrary, it was stated in the Circular that the Land Survey Authority is not empowered to adjudicate on boundary matters.

  (2)  The judge was wrong to hold that the 2^nd Survey Record Plan is deemed to be correct.  The burden was not on the defendants to prove that the 2^nd Survey Record Plan was wrong.  The burden was on the plaintiff to prove there was trespass by the defendants.

  (3)  The judge had wrongly disregarded the plan dated 25 January 1983 (“the STT Plan”) prepared by the District Lands Officer, North and which was attached to Short Term Tenancy No 456 issued by the District Lands Officer to the 1^st defendant for her occupation of the Store[2].  According to the STT Plan, the Store was on government land and not on Lot No 198 RP.  It was the evidence of Mr Henry Chan that his correlation exercise using the STT Plan[3] is his “preferred” correlation.  The STT Plan was earlier than the 2^nd Survey Record Plan.  By §4(d) of the Code of Practice, “common land boundaries previously defined by Government or by an Authorised Land Surveyor should be adopted unless the previous boundary definition is proved to be wrong”.

9. In our judgment, the above arguments are of no substance.

10. The judge referred to the practice in the Circular and the Code of Practice relating to the priority of deposited plans[4] as this is relevant to the weight to be given to the 2^nd Survey Record Plan, which was submitted to the District Survey Office for checking, was accepted for deposit as a reference by others, and resulted in the amendment of the Lot Index Plan in April 2010.  The judge was plainly entitled to take this into account.  He was not determining the boundary dispute based on the current administrative policy and procedures.

11. The judge had also rightly taken into account that: (1) the defendants had first instructed an Authorised Land Surveyor, Mr George Leung, to carry out a land survey in 2010 and the latter had produced a survey record plan similar to the 2^nd Survey Record Plan, which was not disclosed to the court hearing the defendants’ application to set aside the default judgment against them; and (2) in seeking to challenge the 2^nd Survey Record Plan, the defendants limited the instructions to Mr Henry Chan to providing evidence on the reliability of the locations and boundaries of Lot No 198 RP and the Store, he was not to carry out a land survey and produce a survey record plan.  In stressing these points, the judge was not saying that a survey record plan must first be produced before the defendants could seek to challenge the 2^nd Survey Record Plan in court.

12. Nor did the judge place the legal burden on the defendants to establish that there was no trespass. In saying that the 2^nd Survey Record Plan was “deemed to be correct” “until there is strong evidence to suggest that the boundary information of the first one is wrong”, what the judge did was merely to place an evidential burden on the defendants to show that the 2^nd Survey Record Plan was wrong.  And there is no error in law that “strong evidence” to the contrary was required to challenge the 2^nd Survey Record Plan in the present circumstances.  On the evidence, the judge came to the conclusion in §17 that the defendants had failed to discharge that evidential burden, as Mr Henry Chan “cannot reach a conclusion that the 2^nd Survey Record Plan is wrong.  It is neither here nor there to say that the re-correlation exercise in 2001[5] is doubtful.  So there is no evidence the 2^nd Survey Record Plan is wrong.”

13. As for the STT Plan, the judge was entitled to disregard it and reject Mr Henry Chan’s evidence that it should be preferred.  The STT Plan was not a government survey plan as alleged by the defendants.  It was marked “subject to survey”.  We note that the reference points adopted by Mr Henry Chan in his correlation exercise based on the STT Plan[6] were similar to those adopted by Mr T H Chan in the 1^st Survey Record Plan in 2004, which was not accepted by the District Survey Office and Mr T H Chan was asked to re-examine his approach.  Accordingly, Mr T H Chan reviewed his survey and adopted the positions of reference points closer to the subject lot for graphical correlation and this exercise resulted in the revised position of Lot No 198 RP in the 2^nd Survey Record Plan[7].

14. §4(d) of the Code of Practice does not assist the defendants’ arguments.  To the contrary, this provision assists the plaintiff’s case, in that common land boundaries have been previously defined by government in the April 2010 Lot Index Plan and by an Authorised Land Surveyor in the 2^nd Survey Record Plan, and should be adopted unless the previous boundary definition is proved to be wrong.

2^nd complaint – if the reference points for the correlation exercises by the

plaintiff’s surveyors are plainly wrong

15. The plaintiffs’ surveyors Mr T H Chan and Mr S C Leung used the former latrine Lot No 466 and the former latrine Lot No 469 as reference points in their correlation exercises, and came to the view that the existing House No 2 represents the original position of Lot No 466 and the existing House No 3 represents the original position of Lot No 469.  Mr Cheung contended that these reference points were plainly wrong and made the following points in support of his contention:

  (1)  The Block Crown Lease in 1905 contained the expression “more particularly delineated and described on the plan or plans of Survey District No 74 attached hereto …”.  The location and boundary of all relevant lots must be delineated by reference to the DD Sheet of 1905 and there is no legal basis to depart from it.

  (2)  Lot No 466 was surrendered to the government in 1959 and merged with other government land since then.  There was no government lease or licence to show that House No 2 was located on government land or that it had been in existence on the former latrine Lot No 466 since 1905 despite the resumption in 1959.  There was contrary evidence from the plaintiff that House No 2 is on the plaintiff’s own land, not on government land.

  (3)  House No 3 was not in existence in the 1967 government survey plan.  It was in the form of a temporary structure in the 1973 survey plan.  Hence, it was rebuilt after 1905 and its boundary feature on the ground cannot represent the location and boundary of the former latrine Lot No 469 in the DD Sheet of 1905.

  (4)  Mr Henry Chan gave evidence that the Store or House No 1 is located mainly on the surrendered former latrine Lot No 466, and that House No 2 is located on the former latrine Lot No 467, as shown in the STT Plan.

16. The above points taken by Mr Cheung in the intended appeal had all been made in his closing submission before the judge[8].  His submission did not find favour with the judge, who accepted the evidence, explanation and analysis of the plaintiffs’ surveyors.  It cannot be said that the judge had overlooked his arguments or the evidence of Mr Henry Chan, as all these points to be taken on appeal featured prominently in his submissions below.  To successfully overturn the judge’s findings of fact based on expert evidence, it is not sufficient for the defendants to repeat their previous submissions and assert that the plaintiffs’ experts were plainly wrong.  It has to be demonstrated to the appeal court why the judge went seriously wrong in accepting the evidence of the plaintiffs’ surveyors, bearing in mind that the trial judge enjoyed a significant advantage over the appeal court in assessing the value, reliability and impressiveness of the evidence given by the expert witnesses.

17. We are not persuaded that the defendants have demonstrated reasonable prospects of meeting the high threshold to succeed on challenges to findings of fact.

18. We do not agree that the correlation exercises undertaken by the plaintiffs’ surveyors were tantamount to a departure from the Block Crown Lease or the DD Sheet of 1905.  What these surveyors did was to re-establish the land boundary with reference to the Block Crown Lease and the DD Sheet.  The DD Sheet is subject to interpretation and does not serve as a conclusive boundary record.  The judge was entitled to accept the evidence of the plaintiff’s surveyor Mr S C Leung that the DD Sheet had depicted the parent lot, Lot No 198, in a wrong location.

19. There is nothing in the contention in the draft notice of appeal that the judge had failed to determine whether the reference points for the correlation exercises adopted by the plaintiffs’ surveyors were correct.  The judge had clearly preferred their evidence in this respect, he set out their evidence at §§5, 6 and 12 of the judgment, and came to the view there is nothing wrong with the 2^nd Survey Record Plan.  We have reviewed the evidence of Mr T H Chan[9] and Mr S C Leung[10] that House No 2 and House No 3 appeared to be the surviving boundary evidence of the former latrine Lot No 466 and the former latrine Lot No 469, as well as the survey of the District Survey Office in 2001 that established the existing toilet on the south of House No 2 was erected on the former latrine Lot No 467[11].  It cannot be said that the plaintiffs’ surveyors were plainly wrong in using the closer existing ground features as reference points.

20. As for the ownership of the land on which House No 2 is located, this has no direct relevance to the issue in dispute in the present proceedings.

21. There is also nothing in the contention in ground (iv) of the draft notice of appeal that the 2^nd Survey Record Plan was inconsistent with the plans produced by Mr S C Leung in appendices 14 and 15 of his report.  The apparent difference relates to the extent of the eastern boundary of Lot No 198 RP and it is not strictly necessary to resolve this for the purpose of the present dispute.

Damages

22. Ground (v) in the draft notice of appeal dealt with the damages awarded by the judge.  This was not addressed in the submission of Mr Cheung.  In short, it was contended that it was wrong in principle to award damages to the plaintiff for the costs of removing the structures that encroached on his land.

23. The plaintiff made a claim for the costs of removing all structures within the trespassed land.  He obtained a quotation for the work to be done shortly before the trial and this was disclosed to the defendants.  The defendants chose not to adduce evidence in this respect.  Damages were dealt with in the written closing submission of the plaintiff dated 11 January 2013[12].  The defendants did not respond to this when their counsel made oral closing submissions on 6 February 2013.  There is no merit in their contention raised for the first time that the judge should have given them an opportunity to remove the structures on the trespassed land before awarding damages against them.

Conclusion and orders

24. For the reasons given above, we do not consider there is any reasonable prospect of success in the appeal proposed to be brought by the defendants.  The threshold requirement for granting leave to appeal is not met, nor is there any other reason in the interests of justice why the appeal should be heard.  We therefore dismiss the application for leave to appeal.

25. As the application is wholly without merit, we make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

26. We make an order nisi that the defendants are to pay the plaintiff’s costs of this application, which we assess summarily on a gross sum basis at $40,000.  Any party who seeks to vary the order nisi shall lodge a written submission within 7 days hereof, failing which such order shall become absolute.

[1] Judgment §21

[2] The defendants were notified by the government on 30 June 2010 that the Short Term Tenancy would be terminated on 30 September 2010. On 30 September 2010, the government turned down the defendants’ application for an extension of the Short Term Tenancy for three months, although they were not required to demolish the structures erected on the Short Term Tenancy area.

[3] Appendix M to his expert report

[4] Judgment §20

[5] The re-correlation exercise was carried out by the government, the result was that the locations of Lot Nos 467, 468 and 469 were re-established as “the existing toilet to the south of House No 2”, “the Ruin” and “House No 3” respectively.

[6] Being the village house block Lot Nos 471 to 476 to the south-east, Lot No 271 to the north-west and Lot No 278 to the north. See also witness statement of Mr T H Chan §2.

[7] Witness statement of Mr T H Chan §§4 and 5

[8] Closing Skeleton Submission of Defendants §§3, 4, 10, 28, 30, 45 to 47, 48 to 51, 74, 77, 82 to 84, 93, 121

[9] Revised report on boundary redefinition of Lot 198 RP dated 31 August 2009, p 2; witness statement of Mr T H Chan §5; Transcript p 60E to 63R, 67I to 69H, 89B to 92H

[10] Land boundary survey report of Lot 198 RP dated 18 October 2011, §§8 to 9, 11, 12, 15, 17; Transcript p 114P to 115C, 116L to Q, 117A to 119H, 120H to 123P, 125E to 129R, 132K to T

[11] Computation Folder DN5406 of the District Survey Office

[12] Plaintiff’s closing submissions §§79 to 81