KEE CHAN HING v. LEUNG FUK CHUEN AND OTHERS

DCCJ 4959/2014

[2020] HKDC 382

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4959 OF 2014

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JUDGMENT

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A. INTRODUCTION

1.  This is a land boundary dispute involving the plaintiff (“P”), the Government (“D4”) and the private lot owners of Lot Nos 55, 56 and 57 in Survey District No 9, Sai Kung (hereinafter “Lot 55”, “Lot 56” and “Lot 57” respectively or “Lots 55, 56 & 57 collectively”) adjacent to P’s lot, namely, sub-section 3 of Section D of Lot No 25 in Survey District No 9 (“P’s Lot”).

2.  In essence, P seeks, inter alia, the following reliefs against the defendants (collectively referred to as “Ds” and individually as “D1, D2, D3, D4, D5, D6, D7, D8 and D9”):-

(1)     A declaration that the boundaries between the P’s Lot, Lots 55, 56 & 57 and the Government Land (as defined in §5 of the Re-Amended Statement of Claim filed herein dated 19 October 2017 (“RASOC”) were and still are in accordance with the red line shown as “Boundary 1” and delineated on the plan annexed to the RASOC;

(2)     An order that D1 do reinstate and deliver vacant possession of the Pink Portion to P;

(3)     An order that the D2, D3, D5 and D6 do reinstate and deliver vacant possession to the Yellow Portion to P;

(4)     An order that D7, D8 and D9 (“D7-9”) do reinstate and deliver vacant possession of the Green Portion to P;

(5)     An order that D4 do reinstate the Blue Portion by removing the cement floor thereon; and

(6)     Mesne profits, damages, interest and costs against all Ds.

3.  In a nutshell, D1-3 & D5-6s’ defence is that the Pink Portion and the Yellow Portion do not fall within the boundaries of P’s Lot. Likewise, D4’s defence is that Boundary 1 delineated in RASOC is not the boundary of P’s Lot depicted by various government plans.  D7-9’s defence is similar to that of D1-3 & D5-6 but in addition they also counterclaim a right of way.  Ds’ counterclaim for, inter alia, the following reliefs:-

(1)     A declaration that P has wrongfully registered the Amended Writ of Summons dated 30 December 2014 (“AWOS”) and the Re-Amended Writ of Summons dated 10 March 2015 (“RAWOS”) against each of the properties registered in the respective names of Ds.

(2)     An order that the registration of the AWOS and the RAWOS be vacated forthwith.

(3)     In the case of D7-9, a declaration of right of way.

B.      BACKGROUND

4.  I shall summarize the facts which are not in dispute or indisputable in this case below by adopting those set out by counsel for D1-3 & 5-6 Mr Andrew Mak (“Mr Mak”), leading Ms Prisca Cheung, in his opening submissions.  Where necessary, I have made appropriate changes.

B.1.   The parties

5.  P is and was at all material times since 28 July 1992 the registered owner of P’s Lot held under the Block Government Lease dated 18 March 1905 (“the Government Lease”)[1].

6.  D1 is and was at all material times the registered owner of Lot 55.

7.  D2, D3, D5 and D6 are and were at all material times the registered owner of Lot 56.

8.  D7, D8 and D9 are and were at all material times the registered owner of Lot 57.

9.  D4 was and still is the owner of the government land adjoining P’s Lot (“the Government Land”) and the lessor of the Government Lease.

B.2.   Divisional history of Lot 25 in Survey District No 9

10.  Since P’s Lot has only come into existence on 28 July 1992, it is important to trace back its history in order to understand how this took place.

11.  The detailed divisional history of Lot 25 in Survey District No 9 has been set out in the witness statement of DW1 Kwan Wa Kit (“Mr Kwan”), the senior land executive at the District Lands Office, Sai Kung[2]. They are not controversial and can be summarized up as follows.

12.  P’s Lot was originally carved out from Lot 25D RP (as of 13 November 1975) whose previous owner was one Mr Lee Kam Ling (「李金陵」) (“Lee”). 

13.  Lot 25D RP was developed from Lot 25, the parent lot at the outset.

14.  On 26 September 1912, a portion of 0.02 acre as Section A (ie Lot 25A) from Lot 25 was carved out and surrendered to the Government by M/N 6423[3].

15.  On 27 June 1974, the then sole owner of Lot 25RP, Mr Li Tak, divided his land into Lot 25B, Lot 25C, Lot 25D and the remaining portion, ie Lot 25RP by M/N 87025[4], M/N 87026[5] and M/N 87027[6] respectively.  On the same day, Lot 25D was assigned by way of a Deed of Gift of M/N 87026 to Lee.

16.  On 12 November 1975, Lot 25D ss1 was carved out from Lot 25D and conveyed to Lee’s son, Lee Tai Cheung, with Lee being the sole owner of the then Lot 25D RP (as of 12 November 1975)[7].

17.  On 13 November 1975, Lee executed another Deed of Gift and carved out Lot 25D ss2 from Lot 25D RP (as of 12 November 1975) and conveyed to his another son Lee Sup Cheung (「李拾璋」) with Lee being the sole owner of the then Lot 25D RP (as of 13 November 1975)[8].

18.  On 28 July 1992, Lee carved out Lot 25D ss3 from Lot 25D RP (as of 13 November 1975).  This was done by way of an assignment to P (“the 1992 Assignment”)[9]. Lee retained the then Lot 25D RP (as of 1992) in his sole name.

19.  On 24 February 1993, Lee executed 3 assignments with plans of M/N 200736[10], M/N 200735[11] and M/N 200737[12] respectively to carve out Lot 25D ss4, ss5 and ss6 to Lee Chi Wai, Lee Chi Cheung Kelvin and Lee Yau Wing respectively (collectively referred to as “The Lees”) with Lee being the sole owner of the then Lot 25D RP (as of 1993).

20.  On 15 January 1994, Lot 25D ss4, ss5 and ss6 were assigned back by The Lees to Lee[13]. On the same day, by a Deed Poll with Plan dated 15 January 1994 of M/N 223947 ("the 1994 Deed Poll”)[14], Lot 25D ss4, ss5 and ss6 and Lot 25D RP (as of 1993) were merged and amalgamated to form one single piece of land, which was then further divided into 13 portions respectively designated as the new Lot 25D ss4 to ss15 and the new Lot 25D RP (as of 1994)[15]. The divisional plan annexed to the Deed Poll (“the 1994 Divisional Plan”) indicated that Lot 25D RP (as of 1994) had an area of 0.09 ac – 140m².

21.  On 16 December 1994, by a Deed of Rectification with Plan of M/N 229192 (“1994 Deed of Rectification”)[16], the area and rent of Lot 25D RP (as of 1994) was rectified from “0.09 ac – 140m²” and “15 cents” to “224.2m²” and “18 cents” respectively.  The graphical boundaries of all 13 subdivided lots as shown on the 1994 Divisional Plan were consistent with that as shown on the plan annexed to the 1994 Deed of Rectification (“the 1994 Deed of Rectification Plan”).

B.3.   The 1992 Assignment

22.  Clause 1 of the 1992 Assignment[17] provides as follows:-

“1. In consideration of the sum of DOLLARS ONE HUNDRED NINETY FIVE THOUSAND EIGHT HUNDRED AND THIRTY TWO ONLY (HK$195,832.00) Hong Kong Currency paid by the Purchaser to the Vendor (receipt whereof is hereby acknowledged) the Vendor as Beneficial Owner ASSIGNS to the Purchaser the property described in the Schedule hereto (“the Property”) TO HOLD the same unto the Purchaser for the residue of the term of years created by the Crown Lease referred to in the said Schedule…” (emphasis added)

23.  The Schedule to the 1992 Assignment[18] further provides as follows:-

“1. The Property :-

(a) Lot number, sections, undivided shares, description and address, etc.:-

ALL THAT portion of ALL THAT piece or parcel of ground registered in the District Land Office Sai Kung as LOT NO. 25 SEC.D R.P. in SURVEY DISTRICT NO. 9 intended to be registered in the District Land Office Sai Kung as LOT NO. 25 SEC. D SS. 3 in SURVEY DISTRICT NO. 9 as shown and coloured Pink on the Plan annexed hereto.” (emphasis added)

24.  In the plan annexed to the 1992 Assignment (“the 1992 Assignment Plan”), the boundary and area of the P’s Lot was shown coloured pink.  There is also a textual description at the bottom of the 1992 Assignment Plan, which states “COLOURED PINK AREA 140 SQUARE METRES (ABOUT)”[19].

25.  In short:-

(a)      It is P’s case that his land/lot should be of “about 140 square meters” as textually described in the 1992 Assignment Plan. 

(b)     By contrast, it is Ds’ case that the textual description at the bottom of the 1992 Assignment Plan only states the approximate area of P’s Lot and the textual information is not consistent with the graphical measurement of the area coloured pink.  Ds contend that the graphical measurement of the area coloured pink should prevail over the textual information.

B.4.   New Grants for Lots 55, 56 and 57

B.4.1 Lot 55

26.  In April 1994, Lot 25D s12 was assigned to D1.

27.  On 16 June 2005, the Government issued a New Grant No 20076 (with plans annexed) to D1 (“the Lot 55 New Grant”) for the new Lot No 55 (ie an area of about 65.03 square metres described in the First Schedule thereof and shown coloured pink in the Plan I annexed thereto) in exchange for the surrender of Lot 25D ss12 of area of about 0.02 acre described in the Second Schedule thereof and shown coloured blue on Plan II annexed thereto[20]. At the same time, D1 executed a Deed of Surrender with Plan dated 16 June 2005 of M/N 05062901370034 of Lot 25D ss12[21].

28.  By then D1 has already submitted his application dated 7 February 1994 for construction of a small village house for Lot 25D ss12[22].It is therefore factually incorrect for P to contend in §2 of his opening submissions that Lot 55 was conveyed to the D1’s predecessor in-title and that the land conveyed in 1994 was Lot 55.  

29.  In any event, General Condition 5(a) of Lot 55 New Grant[23] provides as follows:-

“The Director will, at such time as he thinks fit or upon the application of the Grantee, set out the lot on the ground and the Grantee or his authorized representative after such setting out, when called upon by the Director, will attend at the lot to inspect the survey marks delineating the lot on the ground and will be given a plan showing the positions and descriptions of each such mark. The Grantee shall not commence any operations for building on the lot until it shall have been so set out by the Director. The Grantee shall take or cause to be taken all proper care and precautions to safeguard the said survey marks from disturbance or removal…”

30.  After Lot 25D ss12 was surrendered to the Government in exchange for Lot 55, such area outside Lot 55 has since become Government land.

B.4.2 Lot 56

31.  In 1994, Lot 25D s13 was assigned to the predecessor in title of D2, D3, D5 and D6.

32.  By the Deed of Surrender with Plan of M/N 05062901370026[24] executed by the previous owner of Lot 25D ss13, Lot 25D ss13 of 0.03 acre was surrendered to the Government and in exchange for a New Grant (No 20077) of Lot 56 (“Lot 56 New Grant”)[25] of a specified area of about 65.03 square meters executed on 16 June 2005.

33.  General Condition 5(a) of Lot 56 New Grant[26] contains the same General Condition 5(a) mentioned in §29 above.

34.  As a result, after Lot 25D ss13 was surrendered to the Government in exchange for Lot 56, such area outside Lot 56 has become Government land.

B.4.3 Lot 57

35.  On 30 April 1994, Lot 25D RP (as of 1994) was assigned to the predecessor-in-title of D7 to D9[27].

36.  By the Deed of Surrender with Plan of M/N 335565[28] executed by the previous owner of Lot 25D RP (as of 1994), Lot 25D RP (as of 1994) of 0.09 acre less 140 square meters was surrendered to the Government and in exchange for a New Grant (No 9333) of Lot 57 (“the Lot 57 New Grant”)[29] of a specified area of about 65.03 square meters executed on 16 June 1998.

37.  Lot 57 New Grant[30] also contains the same General Condition 5(a) mentioned in §29 above.

38.  As a result, after Lot 25D RP (as of 1994) was surrendered to the Government in exchange for Lot 57, such area outside Lot 57 has become Government land.

B.5    The definition of the boundaries of Lots 55, 56 & 57

39.  In December 2001, the boundaries of Lot 55 and Lot 56 were defined collectively by the District Survey Office, Sai Kung (“the DSO”)[31].  

40.  In October 2009, the boundary of Lot 57 was defined by the DSO[32].

41.  Pursuant to General Condition 5(a) of the respective New Grants, upon the application of the representatives of Lots 55, 56 & 57[33], the DSO arranged to set out the boundaries of Lots 55, 56 & 57 and handed over the boundary marks on the ground to the representatives on 7 August 2009 and 7 April 2011 respectively[34]. The setting out plans for Lots 55, 56 & 57 (collectively referred to as the “the Setting Out Plans”) can be found in the trial bundles at [5/2-3 & 6].

C.    THE PARTIES RESPECTIVE CASE

C.1  The P’s case

42.  In P’s opening submissions, Mr Lawrence Cheung, leading Mr Micky Yip (“Mr Cheung” / “P’s counsel”), summed up P’s case in a single paragraph as follows:-

“P’s case is that D1, D2-3,5-6 and D7-9 wrongfully and without the consent of P, encroached on P’s Land by their respective village houses built and erected on P’s Land. Meanwhile, D4 paved and constructed a walkway on a portion of P’s Land. The alleged encroachment by Lot 55, Lot 56, Lot 57 and the Government Land are respectively shown and coloured pink, yellow, green and blue on the 2017 Plan.”

43.  Details of P’s case can be found in P’s 2 witness statements filed for the present proceedings and the opinions stated in P’s expert Mr Henry Chan’s (“Mr Chan”) 2 expert reports. 

44.  P’s main allegations can be summed up as follows:-

(1)     P’s Lot was originally rented from Lee which “should be of about 140 square metres” as described in the textual description found at the bottom of the 1992 Assignment Plan annexed to the 1992 Assignment;

(2)     P claims that the boundary of his land should be marked with a red line in the plan annexed to the amended statement of claim (“the ASOC Plan”). However, the plan contains two sets of red lines.  It is apparent that P is now claiming “Boundary 1”, rather than “Boundary 2”, shown on that plan as P’s Lot;

(3)     D1 and the predecessors in title of D2, D3, D5 and D6 or their agents and servants, wrongfully entered into P’s Lot and caused part of a village-type house built on Lots 55 & 56 encroaching upon part of the P’s Lot as shown coloured pink (“Pink Portion”) and coloured yellow (“Yellow Portion”) on the ASOC Plan.  By doing so, P says that they have deprived him of the use and enjoyment of the Pink Portion and the Yellow Portion; and

(4)     Similar allegations have been made against D7-D9 in relation to the Green Portion.

C.2    The Ds’ Case

45.  Ds deny all of P’s allegations. 

46.  Their case can be succinctly summarised as follows:-

(1)     D4 had and has at all material times the sole authority of determining the boundaries;

(2)     The Pink Portion and the Yellow Portion are part of the Ds’ land.  The area under the 1992 Assignment Plan is approximate and the textual information is not consistent with the graphical measurement of the area coloured pink in the 1992 Assignment Plan, as well as the relevant title deeds and plans;

(3)     The 1992 Assignment Plan does not confer title.  P simply cannot obtain a better title than his assignor Lee;

(4)     In return for Lots 55, 56 & 57, D1 and the predecessor-in-title of D2, D3, D5 and D6, as well as D7 to D9 had surrendered their old lots.  According to the plans annexed to the New Grants, the Pink Portion and the Yellow Portion form part of the Ds’ land; 

(5)     Pursuant to Condition 5(a) of the New Grants, setting out exercises of Lots 55, 56 & 57 were carried out by the DSO; according to those setting-out exercises, the Pink Portion and the Yellow Portion formed part of Ds’ land; and

(6)     Accordingly, the AWOS and RAWOS have been wrongfully registered in the Lands Registry by P.

D.      MAIN ISSUES IN DISPUTE

47.  The parties have compiled a list of “Agreed Statement of Issues in Dispute”[35] and these are the issues that the court has to resolve in this case:-

(1)     Issue 1: In considering the boundary of P’s Lot, whether the 1992 Assignment Plan is the only basis of determining where the boundary is. If not, what should the proper basis be?

(2)     Issue 2: In considering the boundary of P’s Lot, insofar as the 1992 Assignment is concerned, which of the following factors (or conflicting lot information) should prevail:-

(i)       The textual description of the dimensions and area of P’s Lot as stated in the 1992 Assignment including those on the scaled 1992 Assignment Plan;

(ii)     The graphical measurement of the location, size and shape of P’s Lot as shown on the scaled 1992 Assignment Plan. 

(3)     Issue 3: In light of the rulings on Issues 1 and 2:-

(i)       Whether the land boundaries of the parties’ respective lots are in conflict? and

(ii)     Whether there is any encroachment on P’s Lot. 

(4)     Issue 4: Whether D1 has been encroaching part of P’s Lot, and if so, since when?

(5)     Issue 5: Whether D2, D3, D5 and D6 have been encroaching part of P’s Lot, and if so, since when?

(6)     Issue 6: Whether the Blue Portion (including the paved area) therein is Government Land?

(7)     Issue 7: Whether D7-D9 have been encroaching part of P’s Lot; and if so, since when?

(8)     Issue 8: If P succeeds on Issues (1) and 2(a), what relief(s) should P be entitled to?   

(9)     Issue 9: If P fails on Issues 1 and 2(a), should D1-D3 & D5-D6 succeed on their counterclaim, and if so, what relief(s)?

(10)    Issue 10: If P fails on Issues (1) and (2)(a), should D7-D9 succeed on their counterclaim, and if so, what relief(s)?

E.        ANALYSIS OF THE EVIDENCE

E.1      Witnesses who gave evidence at trial

48.  P gave evidence at the trial and has called Mr Chan as his expert witness.  Mr  Chan’s main report dated 5 June 2017[36] (“Mr Chan’s Main Report”) and his supplemental report dated 8 July 2017[37] can be found in the trial bundles (“Mr Chan’s Supp Report”). 

49.  D1-3 & 5-6 did not call any factual witness.  Instead, they have called their expert witness Dr Ching Siu Tong (“Dr Ching”) to testify at the trial. His main expert report dated 4 May 2015[38] (“Dr Ching’s Main Report”); 1^st supplemental report dated 4 May 2017[39] (“Dr Ching’s 1^st Supp Report”); and 2^nd supplemental report dated 26 January 2018 (“Dr Ching’s 2^nd Supp Report”) [40] can all be found in the trial bundles.

50.  D4 has called 2 experts to give evidence at the trial.  Ms To Ka Yi (“Ms To”) gave evidence on the photogrammetric measurements. Mr Ng Po Fat (“Mr Ng”) gave evidence on the boundaries and areas of P’s Lot, Lots 55, 56 & 57.  Ms To and Mr Ng will be collectively addressed as “D4’s experts”.  Ms To’s reports can be found at [8A/1-7] [8/B/524-530] (“Ms To’s Main Report” and “Ms To’s Supp Report”) while Mr Ng’s reports can be found at [8A/65-112] and [8B/365-442] (“Mr Ng’s Main Report” and “Mr Ng’s Supp Report”).  D4 also called Mr Kwan to give factual evidence at the trial.

51.  D7-9 have called Mr Helicon Ma (“Mr Ma”) as their expert in this case.  His main report dated 6 June 2017 can be found in [9/1-11] of the trial bundles (“Mr Ma’s Main Report”).  His supplemental report dated 26 January 2018 can be found in [9/48-51] of the trial bundles (“Mr Ma’s Supp Report”).  Besides, D7, D8 and D9 who are family members (respectively, father, son and mother) also gave evidence at trial.

E.2      P’s factual evidence

52.  Perhaps it will be convenient for me to firstly deal with P’s evidence here.

53.  P gave a very lengthy witness statement in Chinese dated 3 March 2017 (“P’s WS”).  This was supplemented by P’s shorter supplemental witness statement dated 8 January 2018 (“P’s Supp WS”). These 2 witness statements formed the bulk of P’s evidence as they have been adopted as his evidence-in-chief (with no further questions asked by his counsel) at the beginning of his oral evidence in court. 

54.  In general, I do not find the contents of P’s WS nor P’s Supp WS helpful at all.  Besides rambling on how he thinks he had been “wronged” by various people over the years (they included Ds; his previously appointed lawyers and surveyors whom he had engaged in this case); and how he had taken his “complaints” to the various district board councillors and legislative council councillors over the years (but all to no avail), P’s WS and P’s Supp WS in my view really do not add anything of value to what P’s expert and his lawyers try to argue on his behalf. 

55.  In my judgment, at best, the contents of these two witness statements are self-serving and full of subjective conjectures without much objective evidence in support.  Like his oral evidence, I would treat the contents of P’s two witness statements with extreme caution. Besides, I have no hesitation to reject those parts of his evidence which are inconsistent with the documentary evidence.  I would also reject any part of his evidence which goes against the experts’ opinions, including that of his own expert’s. In some key aspects of his evidence, like whether the area he had rented was larger than what he had purchased, I find his answers directly contradicted with the instructions given to his own counsel.  In relation to some of the direct and simple questions put to him by the court or counsel, I note that P had simply refused to answer them.

56.  I should note here that, as a matter of law, P’s subjective belief shall be disregarded when ascertaining the common intention of the parties as to the parcel of land under conveyance by the 1992 Assignment.  In my judgment, all the extrinsic materials P relied upon in this case, including the Chinese Tenancy Agreement, cannot assist the construction of the Parcel Clause and therefore should be rejected also.  

57.  P has repeatedly stated in his evidence that what he had rented from Lee in 1990 was exactly what he had purchased from him in 1992.  This has become the central theme of his case.  He was also adamant that the piece of land he had rented (and hence later purchased) from Lee was of a rectangular shape and not a pentagon.  Thus, no matter what was put to him during the trial, these two things remained unchanged.  To me, this is almost like P had been given a script to read in court.  It is as if he believed that if he could repeat these two matters sufficient number of times in court, they would somehow become the truth.  This obvious is not the case as they are, in my view, simply inherently improbable when one judged them against the documentary evidence. 

58.  In the course of his evidence, P even declined to look at some of the documents/plans/photographs showed to him by counsel or answered some of the simple and direct questions put to him by the court or Ds’ counsel.  He also gave inconsistent answers including answers that are contrary to the instructions given to his own counsel. To me, this cannot be the evidence of a truthful witness. 

59.  I regret to say that my overall impression of P is that he is a very stubborn and ignorant person, particularly when it comes to technical or legal matters that he has little or no knowledge or understanding.  He clearly does not listen to others’ opinion or advice well and insists that he is always right.  This probably explains why he had changed his lawyers and surveyors so many times before the trial.  In any event, I do not find him to be a reliable or credible witness at all.  I have no hesitation in rejecting most, if not all, of his evidence.

E.3      Ds’ factual witnesses

60.  As said, D1-3 & D5-6 did not call any factual witness at the trial.

61.  D4 has called Mr Kwan who was a senior land executive at the DSO to give evidence.  He gave evidence in relation to the divisional history of Lot 25 in S.D.9; small house applications concerning Lots 55, 56 & 57; land status of the “Blue Portion”; definition of the boundaries of Lots 55, 56 & 57; and other matters relating to P’s dispute over the lot boundaries.  Although Mr Cheung for P has cross-examined Mr Kwan at length, I find him to be an honest and helpful witness who tried his best to assist the court to understand the history of Lot 25 in S.D.9 evolved and how the DSO works when it comes to re-defining Lot 55, 56 & 57.  I accept his evidence.

62.  D9 Madam Chan Suk Chung (「陳淑鍾」) (“D9”) who is the mother of D8 and wife of D7 gave evidence for D7-9. As did her son Li Sze Lok (「李斯樂」) who is D7 in this case (“D7”).  D9’s husband (and father of D7) Li Hok Cheung (「李學章」) (“D8”) also gave evidence.  I find all of these 3 witnesses’ evidence to be credible as they are consistent with the history and contemporaneous records of the case.  In particular, I was impressed with the evidence given by D9 and D7 in this case.  It is clear that they tried their best to tell the court what they knew without any exaggeration or drama.  When it comes to the important issue of right of way (which only concerned their case), their accounts are in my view much more probable than the “possible scenario” put forward by P and P’s expert in his reports.

E.4      P & Ds’s expert evidence

63.  While I shall deal with the evidence of the experts from both sides in greater detail below, I would like to first give my general impression of P’s expert and Ds’ experts here.       

64.  With respect to Mr Chan, I do not find the methodology, namely, “using materials to fit the bill” or put in another way, “reverse engineering”, which has been clearly adopted by P’s expert in his reports and evidence in court, neither convincing nor logical.  In my view, it ignores some fundamental rules of how boundaries between disputed lands should be determined by surveyors.    

65.  Mr Chan’s starting premises was that the stated area of “140 square metres (about)” should prevail over the graphical description or measurements of the Pink Portion.  As will be explained below, this is a totally misconceived approach or methodology.     

66.  In contrast, I find Ds’ expert opinions much more sound, convincing and logical.  They are also consistent with the documentary evidence produced by the parties in this case and the established principles of law found in decided cases.

67.  Hence, where there is any difference in the opinions amongst the experts, I would prefer the evidence of Ds’ experts than that of P’s expert. 

F.        DISCUSSION

68.  In the remaining parts of this judgment, I shall first discuss the relevant principles of law in determining the boundary of P’s Land.  Then I shall analyze the evidence, including the different experts’ evidence, pertinent to the different issues in dispute. Lastly, I shall make my findings on those issues.   

F.1    THE BASIS FOR DETERMINING THE BOUNDARY OF P’S LAND

69.  This is Issue 1 of the “issues in dispute” agreed by the parties.

70.  Mr Mak for D1-3 & D5-6, in his opening submissions has rightly pointed out that in this case P bears the burden to prove that the Pink Portion and the Yellow Portion appear in the RASOC, as indeed for other portions claimed by other Ds, fall within the boundaries of P’s Lot: see Tsang Tsang Keung v Fung Wai Man & Anor (unrep, HCA 11328/1996, 29 September 2000) at §52, per DHCJ Gill.

71.  In determining the boundary of the P’s Lot, Ds do not dispute that the 1992 Assignment and the 1992 Assignment Plan should be taken into account.  However, Mr Mak has reminded the court of the following well known passage by Chan CJHC (as he then was) in Secretary for Justice v Wing Lung Wai Community [1999] 3 HKC 580 at §21 of which I would respectfully agree:-

“… If there is a dispute with regard to what is actually conveyed, that is a matter of construction of the whole conveyance, including the parcel clause and the plan, in the light of other relevant surrounding circumstances. The object is to ascertain what the parties intended to be passed under the document and what is passed. I would respectively agree with what Buckley LJ said in Wigginton v Milner Limited & Winster Engineering Limited at page 1473:

“When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties’ intention the court must of course give effect to that stipulation.”” (emphasis added)

72.  Mr Cheung for P, in his opening submissions, began with the proposition that it is for the court to consider if the 1992 Assignment Plan was adequate in delineating the boundaries of P’s Lot. He submits that it is only if and when the boundaries of the land have not been clearly delineated in the assignment, then the court will have to attempt to identify them: (See Scarfe v Adams [1981] 1 All ER 843 at 951 per Griffiths LJ).  P contends that the exact boundaries to be derived from the 1992 Assignment Plan were not accurate as suggested by P’s expert.  Hence, P says that the court will have to take into consideration of the extrinsic evidence in order to establish the true intent of the parties when land boundaries are inadequately defined.  P says that the extinct evidence in this case may include the subsequent conduct of the user to the conveyance.  In this regard, Mr Cheung relies on the very old English case of Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533 at 537.     

73.  P further contends that when construing the whole agreement of property conveyance, the description by way of the 1992 Assignment Plan should be taken as the operative description prevailing over the verbal description: See Cheung Lin v Director of Lands [2016] HKLdT 127 at §17.

74.  P further relies on the following passage of Bokhary J (as he then was) in Yam Yun Fai v Yip Siu Hung [1992] 1 HKLR 346 at 349 where “different portions of the description of the property in question are inconsistent”:

“In arriving at that conclusion on the facts of the present case, the principles on which I have proceeded are these. Where different portions of the description of the property in question are inconsistent, then the first step is to see if any portion clearly and definitely defines the property. If such clear and definite portion is found, then it is to be taken as the operative description prevailing over the remainder inconsistent with it. But if no such clear and definite portion is found, then it will be necessary to look at other parts of the deed or contract in order to see if they contain a clear expression of the intention of the parties as to what property is to be conveyed or otherwise dealt with thereby. And if such clear expression is found, then it will provide the operative description. But if no such clear expression is found, then extrinsic evidence should - subject to the general principles governing the use thereof - be resorted to in the search for an operative description.”

75.  P also relies on a passage of Lewison J in Chadwick v Abbotswood Properties Ltd [2005] 1 P&CR 10, where the learned judge was asked to determine the discrepancy between two plans of two plots of land (and not the same piece of land as in the present case), when he stated that in order to identify the land of the owners of the two plots and “because the definition of the parcels was not clear”, the court had to have recourse to extrinsic evidence, in particular the physical features on the ground.  He stated “the relevant question was an objective one:  what would the reasonable layman think he was buying?” (at p 150).   

76.  In P’s opening submissions, Mr Cheung submits that the court should take into account matters including, inter alia, the hand-written Chinese tenancy agreement dated 15 May 1990[41](“The Chinese Tenancy Agreement”); that P had rented the subject lot for use of his waste paper recycling business prior to purchasing the land from Lee and; the respective aerial photographs of the P’s Lot from years 1990 to 1998. I should like to add here that P had moved his business in 1997 to the Mainland and the plant was used initially for the storage of the “abandoned” machinery only. Later, it was rented out to others to operate car repair and metal workshops. However, it was left vacant since or about early 2006[42].

77.  I have no hesitation to reject P’s contention on this issue for the following reasons pointed out by Mr Mak:-

(1)     Such “extrinsic” evidence must be distinguished from P’s own subjective intention, belief and assumption that Lee had rented to P the same land in the 1992 Assignment.  Such intention, belief and assumption are irrelevant when determining what was the property passed under a particular conveyance: see Chadwick v Abbotswood Properties Ltd [2005] 1 P & CR 10 at p 150, per Lewison J; and

(2)     the fallacy of such assumption is readily shown by D4’s photogrammetric expert that the 1990 aerial photographs show that the structures erected fall outside both “Boundary 1” and “Boundary 2” as shown on the ASOC Plan[43]. Therefore, the structures are irrelevant and really cannot be considered as prominent boundary like features delineating “Boundary 1” and “Boundary 2”.

78.  Further, I agree with Mr Mak that the maxim of  “nemo dat quod non habet[44]” applies in this case, namely, Lee cannot give title to what he does not have and P can derive no better title than his assignor (See Harbour City Management Ltd v Finstar Ltd (unrep, LDBM 249/1998, 15 July 1999) at §3).  It is therefore necessary to look at the Government Lease to determine the interest obtained by the original lessee of the Government Lease in the first place.  I agree that it will be too over-simplistic to just consider the question of “what was P as a reasonable layman think he was buying” as Mr Cheung has submitted on behalf of P in his opening submissions.

79.  In this regard, the learned authors of Hong Kong Conveyancing Vol 1 said at II [8] as follows:-

“The DD plans and New Grant Plans, together with the Block Crown leases, must, however, be relied upon by the courts in determining boundary disputes, although subsequent surveys undertaken privately may be accorded due weight…” (emphasis added)

80.  See also Liu Ma Cheung & Ors v Lian Yin Fu (unrep, HCA 181/2004, 26 October 2007), where Recorder Kenneth Kwok SC held at §14 that the block Crown Lease and the delineation on the DD sheet should be looked at in resolving the boundary dispute before him.

81.  Moreover, as stated by the learned authors of Hong Kong Conveyancing Vol 1 at II [7]:-

“Surveying of land boundaries (known as ‘cadastral survey’) in Hong Kong has been carried out in piecemeal fashion and, unlike some jurisdictions, there is no system of guaranteed boundaries. Surveying and demarcation of land boundaries can either take place before the land has been occupied or after its occupation. … Even when a grant is made by the Government, the area granted may be defined only by way of a designated acreage without delineation on an accompanying plan or the plan may have been subsequently lost. Alternatively, in some cases, an area may have been simply ‘roughly sketched’ on a plan by a Government officer who was not a qualified surveyor. Further these old surveys should not be relied upon in view of the mapping scale used and a fresh survey should be carried out if boundaries are to be accurately demarcated. Further demarcation has frequently been carried out by the Government lessees and their successors-in-title by way of section and subdivision plans.” (emphasis added)

82.  In addition, in Ali v Lane [2007] 1 P & CR 26 [26, 36] per Carnwath LJ (as he then was), the UK Court of Appeal has clarified the law as to the extent of the evidence that can be relied upon to resolve boundary disputes, that in cases where the conveyancing documentation is ambiguous or unclear, the court can have regard to extraneous evidence and the subsequent conduct of the parties:-

“26…Megarry J. in Neilson v Poole:

“… in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.” (915)

36. … In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.” (emphasis added)

83.  In the present case, I agree with Mr Mak that the subsequent conduct (of the same vendor, Lee) was that further demarcation had been carried out when the 1994 Deed Poll, the 1994 Deed of Rectification and the New Grants were entered into, as well as in 2009 and 2011 when the setting out exercises for Lots 55, 56 & 57 were conducted.  More importantly, I note that the plans annexed to the New Grants and the Setting Out Plans were prepared by the Lands Department, who has the authority to determine the boundaries pursuant to Article 7 of the Basic Law, which provides that the Government shall be responsible for the management, use and development and for the lease or grant of land, as well as Condition 5(a) of the New Grant, which states that the Director of Lands shall set out the lot on the ground and after such setting out, the Grantee shall attend the lot to inspect the survey marks delineating the lot on the ground.  As such, these documents should also be taken into account in determining the boundaries of the P’s Lot. 

84.  In light of the above, I accept that apart from the 1992 Assignment and the 1992 Assignment Plan, the following documents should also be taken into account when determining the boundaries of the P’s Lot as submitted by Mr Mak:-

(1)     The Government Lease;

(2)     The 1994 Deed Poll and the 1994 Divisional Plan;

(3)     The 1994 Deed of Rectification and the 1994 Deed of Rectification Plan;

(4)     Lot 55 New Grant and the plan annexed thereto;

(5)     Lot 56 New Grant and the plan annexed thereto;

(6)     Lot 57 New Grant and the plan annexed to; and

(7)     The setting out plans for Lots 55, 56 & 57.

85.  In addition to the above, I further accept the submissions made by Ms Jess Chan (“Ms Chan”), leading Ms Priscilla Chan, who represents D4 in this case, contained in their written opening on this issue.  Their submissions are consistent with those made by Mr Mak for D1-3 & D5-6.

86.  In particular, I agree with Ms Chan that P’s claim cannot be established by a mere reliance of the area and the dimensions marked on the face of the 1992 Assignment Plan because, looking at it purely from a land surveying point of view, the area and the dimensions cannot define the lot boundary. On the other hand, when the location of the land lot boundary has been defined, the area of the lot can be derived therefrom: See Tam Mo Yin v Attorney-General [1996] 1 HKC 379 at pp 388H – 389F.

87.  The above rule has been well accepted by academics as ably demonstrated by Colin Sara in Boundaries and Easement, Sweet & Maxwell, Sixth Edition, at §1-010:-

“Measurements contained in the parcels or the plan may be either dimensions or areas or even lines drawn between two points of uncertain identity. Either have their pitfalls. To begin with they may simply be wrong. Equally it may be almost impossible to establish a datum point. Area measurements, anyway, can only be used as a check since they cannot establish the shape of the property. Furthermore, there is more than one way of measuring the area of a piece of land and two surveyors will not necessary reach the same result. Nevertheless, it is important not to ignore the measurements and areas, whether shown in the body of the conveyance or the plan.” (emphasis added)

88.  In conclusion, I find the basis of determining the boundary of P’s Lot should be that as set out by Ds’ counsel rather than that of P’s as stated above. 

G.      SHOULD THE TEXTUAL DESCRIPTION OR THE GRAPHICAL MEASUREMENT IN THE 1992 ASSIGNMENT PREVAIL?

89.  This is effectively Issue 2 of the “issues in dispute” agreed by the parties.

G.1    Ds’ case and evidence produced on this issue

90.  I find the following matters have been established by Ds’ experts during the trial:-

(1)     The textual dimension of P’s Lot stated at the bottom of the 1992 Assignment Plan (ie about 140 square metres) does not tally with the graphical measurement of the area coloured pink on the same document, which is about 94 or 97 square metres; and

(2)     The 1992 Assignment Plan was prepared by an architect in 1992 (ie Mr DC Shum) and prior to the enactment of the Land Survey Ordinance (Cap 473), which was enacted in 1995 and implemented in 1996.  Accordingly, it is doubtful as to whether the 1992 Assignment Plan is accurate.

91.  Given that there is a glaring difference between the textual description found at the bottom of the 1992 Assignment Plan and the graphical measurement in the 1992 Assignment, the court will have to decide which one should prevail in this case. 

92.  For reasons explained below, I accept Ds’ submissions and find that the graphical measurement should prevail over the textural description.

93.  In Yam Yun Fai v Yip Siu Hung [1992] 1 HKLR 346, Bokhary J (as he then was) held at 349 the following:-

“In arriving at that conclusion on the facts of the present case, the principles on which I have proceeded are these. Where different portions of the description of the property in question are inconsistent, then the first step is to see if any portion clearly and definitely defines the property. If such clear and definite portion is found, then it is to be taken as the operative description prevailing over the remainder inconsistent with it. But if no such clear and definite portion is found, then it will be necessary to look at other parts of the deed or contract in order to see if they contain a clear expression of the intention of the parties as to what property is to be conveyed or otherwise dealt with thereby. And if such clear expression is found, then it will provide the operative description. But if no such clear expression is found, then extrinsic evidence should – subject to the general principles governing the use thereof – be resorted to in the search for an operative description.” (emphasis added)

94.  The principle referred to above was applied in Cheung Lin v Director of Lands (unrep, LDLR 1/2015, 24 October 2006).  In that case, the 1^st Assignment specified the portion of being “said portion is shown and coloured Pink and marked ‘A’ on the said plan” and not just those portions coloured pink.  The property assigned as Shop A and Cockloft A that were coloured pink and marked “A” on the assignment plan.  The toilet cubicle though coloured pink, did not tally with the verbal description in that no “A” was being marked on the Toilet Cubicle. Accordingly, the Lands Tribunal held that the toilet cubicle did not form part of the property assigned: see §30.

95.  In this regard, it is to be noted that Mr Cheung for P in §25 of his opening submissions referred to §17 of Cheung Lin, supra in support of his proposition that the description by way of the 1992 Assignment Plan should be taken as the operative description prevailing over the verbal description.  However, in my view, it is clear that the tribunal in the above case was only setting out the applicant’s submissions in §17.  In fact, as can be seen from the above paragraph, the Lands Tribunal did not accept the applicant’s submissions since the Lands Tribunal held that the toilet cubicle did not form part of the property assigned because the toilet cubicle on the assignment plan did not tally with the verbal description.

96.  Further, in Harvest Rise Development Ltd v Ling Yau Yung [2002] 2 HKLRD 378, Ma J (as the CJ then was) held at §27(3) as follows:-

“27. Taking into account the factors I have just set out, I have been guided by the following principles of construction relevant to the present case:

…

(3) I have not forgotten that the assignments expressly provide the Property assigned was as “more particularly delineated and described” in the annexed plan. I accept that, generally, where such or similar words are used, if there exists any conflict or uncertainty between words of description and the plan referred to, the latter would prevail : Neilson v Poole (1969) 20 P & CR 909, 915-6. However, this is not to say that where the court is of the view that the wording in an assignment, when seen as a whole, clearly expresses what the parties intended to be assigned (as in the present case), the court is then bound somehow to follow the plan regardless if the words “as more particularly delineated and described” in a plan are used. In my view, cases like Neilson v Poole are not authorities for this proposition at all. Upon analysis, they merely provide useful tools to enable the court to arrive at a correct interpretation. The basic rule is that as expressed by Chan CJHC in Secretary for Justice v Wing Lung Wai Community. Afterall, in Lintock Co. Ltd v Attorney General [1985] 2 HKC 555, Hunter J construed a Crown lease containing those words of reference to a plan contrary to what was represented in that plan.” (emphasis added)

97.  I find the basic rule expressed by Chan CHJC in Wing Lung Wai Community, supra as cited in §71 above, ie to ascertain what the parties intended to be passed under the document and what is passed, should be the correct starting point.

98.  In the present case, while the 1992 Assignment contains no phrases such as “more particularly delineated and described in the annexed plan”, Clause 1 of the 1992 Assignment[45] specifically provides that the property conveyed by Lee to P was “the property described in the Schedule hereto”.  If one were to look at the Schedule to the 1992 Assignment, the property described therein has been clearly described “as shown and coloured Pink on the Plan annexed hereto”.  It did not mention what was the size or dimensions of P’s Lot in the Schedule.  

99.  Ds submit that the description “as shown and coloured Pink on the Plan annexed hereto” is clear and definite.

100.  I agree.   

101.  In my judgment, the intention of Lee and P was clear, ie only the property shown and coloured pink on the 1992 Assignment Plan meant to form part of the land assigned to the plaintiff.  In contrast, the textual description is not clear and definite as it uses the word “about” immediately after stating the size.  

102.  In the aforestated premises, I find the graphical measurement should prevail over the textual description.

H.      WHETHER THE LAND BOUNDARIES OF THE PARTIES’ RESPECTIVE LOTS ARE IN CONFLICT AND WHETHER THERE IS ANY ENCROACHMENT ON THE P’S LAND AND SINCE WHEN?

103.  This is where the main disputes of the parties lie[46].

H.1     P’s case and evidence on the above issue

104.  P has, throughout his evidence, insisted that he had rented 140 sq m (or 1,500 sq ft) of land from Lee in 1990 under the Chinese Tenancy Agreement[47]. He also insisted that what he had rented from Lee in 1990 was exactly what he had purchased from him in 1992.  In fact, the favourite phrase he used throughout his evidence was: “what I had rented was exactly what I bought.” (「我租幾多，就買幾多。」)

105.  But what exactly did P rent from Lee in 1990?

106.  In his evidence, P repeatedly stated that what he had rented from Lee in 1990 was a rectangular shape of land of 1,500 sq feet.

107.  I have no hesitation to reject P’s claim on this for the following reasons.

108.  First, there is simply no documentary evidence to support P’s case that the “140 sq m (about)” stated in the 1992 Assignment Plan is the same as the 1,500 sq ft stated in the Chinese Tenancy Agreement or as allegedly “personally” measured out by P on site (at 46 ft x 33 ft) when he first rented the land from Lee. 

109.  In fact, the evidence is quite the opposite. If one were to read the Chinese Tenancy Agreement, it is immediately clear that there was no plan or drawing attached to the document to show which of the “about 1,500 sq ft land” was rented by Lee to P for his recycle paper business. There was also no information to indicate the precise location, boundary, size and shape of this piece of rented land from Lee to P.  Thus, the Chinese Tenancy Agreement offers no assistance to P’s case.

110.  Second, if one were to look at a Chinese letter written by Lee’s son Lee Sap Cheung (「李拾璋」) (“Lee’s Son”) to the DSO on 6 January 2011[48], the piece of land rented to P was described by him as “included Lot No 25D3, D11, D12, D13 in SD9”. (「上述地段於92年前租借給一商人紀先生已有多年，租借地段包括有Lot No 25D3, D11, D12, D13 in SD9等。」)[49]. This means what P had rented from Lee, at least according to Lee’s Son, was in fact more than what was stated in the Chinese Tenancy Agreement as P’s land was only described as “ss 3 of Lot 25 D” in that document.  According to Lee’s Son, besides Lot 25D3, P had also rented D11, D12, D13 in SD9 from his father.  

111.  Third, the fact that what he had rented from Lee was larger than P’s Lot can also be established from the aerial photographs and the photogrammetric measurements undertaken by the staff of D4: see for example [8B/387] (Exhibit P-2) and [8B/389] where it can be seen from these two aerial photos taken respectively on 12 October 1990 and 16 July 1991 that the land which P had occupied for his recycle paper plant business was in fact larger and had extended beyond both Boundary 1 and Boundary 2 subsequently identified by P’s expert as P’s Lot in his reports. 

112.  Fourth, while Lee might not be alive to tell the tale, there is in my view no reason why P could not have called Lee’s Son to give evidence to support his case.  This is particularly in view of the fact that in his letter to the DSO in January 2011, Lee’s Son has made two very specific points which in my view demand P’s answer.  First, at §2, he mentioned that when his late father sold the land to P in 1992, there was no mention of the dimensions and size of the land (「大約1992年上址上首之業權人李金陵先生將地段25D3 in SD9買給紀先生名下，當時買給紀先生之地段並沒有標明該地之呎吋和大細，紀先生亦在律師樓辦妥一切轉名手續。」).  Second, in the remarks made at the bottom of the letter which referred to §2 of the letter, Lee’s Son specifically mentioned the fact that he himself had informed P that there were small house applications made around P’s Lot and P would be required to remove the covered areas and any sundries items outside of his land.  At that time, P expressed that he understood the request. 

113.  I note that P has simply failed to deal with the above matters in his oral evidence.

114.  I find the fact that P has failed to call Lee’s Son to give evidence at trial or to provide any evidence or explanation to contradict the above version stated by Lee’s Son in the letter is a good indication that he knew well that what he had rented from Lee (or at least occupied) in fact was much larger than the land he had subsequently purchased from him.                

115.  In the aforestated premises, I find P might have agreed to rent 1,500 sq ft (or about 140 sq m) of land from Lee in 1990, the rented piece of land in fact had encompassed more land than ss3 of Lot 25 D, ie P’s Lot.

116.  I further agree with Mr Mak that if one were to closely scrutinize the evidence, it will immediately become clear that there is not much correlation between what P had rented in 1990 and what he had bought in 1992:

(1)     P has throughout his evidence insisted that the land he had rented (and hence later purchased) from Lee was of a “rectangular” shape, yet he agreed with counsel under cross-examination that the shape of the Pink Portion in the 1992 Assignment Plan was different from what he had rented.  While agreeing that the shape of the Pink Portion was that of a pentagon (and I cannot see how he could not agree with such indisputable piece of evidence), yet he still insisted what he had rented (and subsequently purchased) was of a rectangular shape.  

(2)     P paid little respect to the glaring difference between the Pink Portion in the 1992 Assignment Plan and what he considered he had rented from Lee.  In his oral evidence, he stated that he did not care whether it was a “pentagon, octagon or triangle, all he cared about was the 1,500 sq ft area was “his land” (「五角形又好，六角形又好，三角形又好。」).  Such blatant disregard of obvious and indisputable evidence in my view is simply mind-boggling.  

(3)     Nor did P care much about the actual size of the land he had rented from Lee.  What was locked in his mind is that it was 1,500 sq ft.  Hence, no matter what evidence was put to him, P would just stick to his script and say that it was of that size.  When it was put to him by D4’s counsel during cross-examination that the land he had leased from Lee was more than 1,500 sq ft, his answer was “I don’t know and I don’t care” and what size it was should be the other’s business (「呢層我唔知，我唔理，夠用就得嘞。至於幾多呎係佢嘅事。」).  I find this could not be an answer that comes from a fair-minded and honest witness.  I find the truth of the matter is P had never cared much about the actual size, area or shape of the land he had leased from Lee back in 1990.  All he cared about was he was able to make use of a piece of land larger than what he had rented from Lee for his business.  This is confirmed by the aerial photos taken by D4 over the years which clearly show that he had occupied and made use of a much larger area than what he had rented from Lee.

117.  Another peculiar feature about P’s evidence which one does not often find in other cases is that P’s evidence is in direct conflict with his own expert’s opinion.  What makes this worse in this case is that this is on the crucial issue of the exact location / boundary of P’s Lot which lies at the very heart of the dispute in this case.

118.  When P was referred to the aerial photos[50] which clearly show the areas occupied by him between 1990 and 1991 had gone beyond “Boundary 1” as depicted by Mr Chan in his reports, P simply disagreed with such proposition.  Further, when he was given the chance to draw on the 1991 aerial photo the boundary of the land he had rented from Lee in 1990, (ie Exhibit P-1), he managed to draw an entirely different boundary than that of Boundary 1 identified by Mr Chan in his Main Report.  P then went on to insist that this was also the boundary of the Pink Portion he had purchased in 1992.  He went further to say that the boundary drawn by his own expert Mr Chan was “most certainly wrong” (「肯定不正確。」).

119.  It is interesting to see how when P’s counsel Mr Cheung tried to salvage the situation by accepting that P had no dispute that he had been using more land in 1990 than what he had bought in 1992, P flatly disagreed with such suggestion under cross-examination and continued to insist that what he had rented from Lee was a “rectangle” in 1990 and it was exactly the same as which he had bought from him 2 years later (「我租幾多，就買幾多。」).     

120.  In my judgment, the above evidence shows not only P has got the shape of the land completely wrong (as the government survey maps and aerial photos amply demonstrate), it shows P is a totally unreliable witness whose evidence is simply not capable to be believed.  Even when confronted with the clearest and indisputable evidence like survey maps and aerial photos to show otherwise, P would still insist that the shape of his land is of a rectangular shape.  He would go as far as disagreeing with his own expert’s evidence when they do not agree with his own.

121.  Further, in my view, there is simply no evidential basis for P to even suggest that what he bought in 1992 was what he had rented from Lee in 1990.  Not only he had not measured the area or dimensions of the land which he bought in 1992 (compared with his insistence that he had used a measuring tape to map out a 46ft x 33ft when he rented the land from Lee in 1990), but also he only saw the 1992 Assignment Plan in the solicitors’ office a long time after he had signed the sale and purchase of the land.

122.  In my judgment, based on the above analysis, it is clear that what P had rented in 1990 from Lee was not what he bought from him in 1992.  Further, based on the opinions of Ds’ experts and the indisputable survey maps and aerial photos, I find what he had rented from Lee was in fact a much larger piece of land in 1990 than that of a smaller piece of pentagonal shape of land he had subsequently purchased in 1992.  In my opinion, it is clear that either P did not care much about what he was buying from Lee or that he was being cheated into buying something quite different from what he thought.  Under either of those scenarios, I find it has nothing to do with any of Ds in this case.  In my view, the person he should go after, if anyone at all, should be Lee or his estate and not any of the Ds in this case.  Of course, P must have realized that it was well outside the limitation period for him to do so by the time he found out what he had bought was not what he had rented from Lee.  In the circumstances, I find P had barked up the wrong tree and sued the wrong parties all these years.  

123.  Thus, on this issue, I find what P had rented in 1990 is completely irrelevant to the issue of the real boundary of P’s Lot in this case.  In my view, what the court has to examine and rely on are the documentary and experts’ evidence in order to determine the real boundary of P’s Lot.

H.2     P’s expert evidence on this issue  

124.  With respect, I do not find P’s expert Mr Chan’s opinion to be convincing objective for a number of reasons. The following are the main ones.

H.2.1          Wrong starting premises

125.  I find Mr Chan’s starting premises was wrong. 

126.  Throughout his evidence, Mr Chan has adamantly insisted that the stated area of “140 sq m (about)” should prevail over the graphical description or measurements of the Pink Portion in the 1992 Assignment Plan.  As can be seen from the authorities cited under Section F above, this is wrong as a matter of law.   

127.  This approach is not only unconventional in that it is against the normal rules of surveying but in my view this is a classic situation of how an expert tries to perform some “reverse engineering” in order to “fit the bill” of his client.  I shall explain.

128.  First, as discussed and found above, as a matter of law when construing the 1992 Assignment Plan, the correct starting point should be the Parcel Clause and not the textual description. This has been so well established and fundamental that when an expert tries to ignore this and builds his opinion on a completely different foundation, the court should view that with a great deal of skepticism and be slow to accept his evidence.           

129.  In this case, in my view, what is clear is that the Parcel Clause gave P an area depicted in pink, and not a piece of land of “140 sq m (about)”.  In fact, as rightly pointed out by Mr Mak and Ms Chan in their final submissions, “140 sq m (about)” was not mentioned anywhere other than in the textual description in the 1992 Assignment Plan.

130.  As admitted by P’s expert Mr Chan during cross-examination, he believed what his client had told him about the size of the land was true and therefore he did not study the Parcel Clause itself.  While agreeing with the court that an expert’s task is not to confirm his client belief or instructions but to assist the court to independently verify whether his belief or instructions are true or not, yet I find Mr Chan has done exactly the former and not the latter in his reports and evidence.

131.  As has been pointed out by Mr Mak, when one looks at the “area coloured in pink” in the 1992 Assignment Plan, the following matters would become immediately obvious:

(1)     “140 sq m” on the 1992 Assignment Plan has been expressly qualified by the word “about” immediately following.  It therefore flies in the face of common sense to say that “140 sq m” represents an “exact area” simply because the measurements have been shown in acres;

(2)     That “140 sq m” was not an accurate description of the Pink Portion must have been immediately clear to any trained mind, given the fact that it does not agree with the graphical area when directly scale off the Pink Portion, nor do the numerical figures stated around the Pink Portion agree with the direct measurements of the 1992 Assignment Plan;

(3)     It must have been clear to Mr Chan as an experienced surveyor / expert that the measurements and stated areas of the Pink Portion were self-contradictory, inconsistent and therefore unreliable. Thus, it was wrong for him not only to rely on them in forming his opinion, but to use them as his starting premises to determine the boundary of the Pink Portion.

H.2.2          Reverse Engineering

132.  It is important to bear in mind that all the experts, including Mr Chan, have accepted the general rule in surveying that once the lot boundary of a piece of land is determined, its area can be derived therefrom: See Tam Mo Yin v Attorney-General, supra at 388H – 389F; and the passage in Boundaries and Easement, Colin Sara, op. cit.    

133.  Seen in this light, the “reverse engineering” approach, which Mr Chan has adopted both in his reports and in his oral evidence, is in my view not acceptable. 

134.  What Mr Chan did was to define the boundary of P’s Lot by solely based on the textual description ie 140 sq m and the written dimensions and then worked his way backward in order to find the boundary, namely, Boundary 1 in his reports.

135.  In my judgment, such “reverse engineering” approach is flawed for a number of reasons as pointed out by Ms Chan in her final submissions.

136.  First, it was wrong for Mr Chan to assume that the “140 SQUARE METRES (ABOUT)” written on the 1992 Assignment Plan is accurate and reliable.

137.  Second, it was wrong for Mr Chan to assume that the numerical figures written around the Pink Portion on the 1992 Assignment Plan are the dimensions of P’s Lot or that they must be accurate and reliable.

138.  Third, it was wrong for Mr Chan to use the 5 dimensions for independent checking.

139.  Fourth, it was wrong for Mr Chan to selectively write off the top 2 internal angles, but apply iteration method to create a new boundary for P’s Lot until 140 sq m is achieved.    

H.2.3          Wrong methodology

140.  I find Mr Chan’s methodology is flawed right from the start.  In my view, it was wrong for him to assume that the “140 SQUARE METRES (ABOUT)”[51] marked on the face of the 1992 Assignment Plan must be accurate.

141.  Mr Chan’s main reasons are as follows:

(1)     because of the “exactness” of the textual area, ie 140 sq m which was stated on the 1992 Assignment Plan and by using the standard rounding in mathematics (「四捨五入」), he opined that P’s Lot area must be between 139.5 sq m and 140.4 sq m.  To him, therefore the 140 sq m  must be an exact and accurate figure;

(2)     the 5 dimensions can be used as an independent checking of the accuracy of the 140 sq m and if they can be put together and give out an area of 140 sq m, the texture area description must therefore be correct; and

(3)     most important of all, Mr Chan trusted his client’s instructions, namely, if P told him that he had rented 1,500 sq ft from Lee and subsequently purchased the same piece of land from him, it is only logical for him as an expert to believe that must be the case.

142.  I agree with Ms Chan for D4 that one cannot simply take the Pink Portion from the 1992 Assignment Plan in isolation and out of context.  I agree that the Pink Portion (or the “Pink Patch” as Mr Chan would call it) is more than just a “patch”.  First, it is outlined by black dash lines which represent the boundary line of P’s Lot graphically as shown on the 1992 Assignment Plan.  Second, there are information other than the four entitles, namely, there are the scale of 1:1000, the scale bar, grid lines, the North indicator, map base, etc to support the location of the Pink Portion.  Third, there are other useful mapping information, such as the L shaped structures and field bunds identified by NPF on the 1985 survey sheet to allow the experts to work out its exact location.  Last but not the least, all the relevant plans attached to the title deeds recording the conveyance and division history of the Parent Lot 25 in S.D.9[52] from the Block Government Lease Plan in 1905, Division Plan and Rectification Plan in 1994, are all scaled plans with Hong Kong 1980 grid reference and North indicator.  As Ms Chan has pointed out, these plans are graphical depiction of the relevant pieces of land in question, showing graphically their shapes, locations and dimensions. These are all matters which ought to have been taken into account by P’s expert in forming his opinion.  It is clear that P’s expert has failed to do so.

H.2.4          Using Points D1 and E1 as starting points

143.  In his evidence, Mr Chan stated that Points D1 and E1 marked on the Survey Map drawn up by his firm (which is attached to the RASOD[53]) should be the starting points of working out the location of P’s Lot.

144.  With respect, this must be wrong.

145.  First, in my view, it is wrong to assume, as Mr Chan did in his evidence-in-chief, that “all experts have no argument about the location of this Pink Portion, because we understand that [D1 and E1] should be the starting point.”

146.  Under cross-examination by Mr Mak, for D1-D3 & D5-D6, Mr Chan repeated that all the experts do not disagree that D1 at [1/43] is the starting point and that D1 lies close to the retaining wall.      

147.  In fact, with greatest respect, the other experts did not say that.  It was Mr Chan himself who has made that very bold “double negative” assumption.  With respect to Mr Chan, silence on the part of the other experts on a particular issue or matter does not mean that they agree to it.  In my view, keeping silence on a matter, or worse, not having been given an opportunity to comment on or deal with it in their evidence, does not equal to agreeing to it.  I find the bold assumption on the part of Mr Chan in my view has been totally unfounded.

148.  It is clear to me that what Mr Chan tried to do was to adopt two starting points on the map, ie D1 & E1 and tried to work backwards in order to build a case to fit into his lay client’s instructions.

149.  By using the photogrammetric plots to place against the position of Boundaries 1 and 2 on the survey map drawn by Mr Chan himself, Ms Chan for D4 tried to demonstrate to Mr Chan during her cross-examination that in fact Point D1 was quite far away from the retaining wall (or the vertical cutting referred to in the map). Mr Chan at first tried to avoid answering the question directly by using the above double negative answer and said that the location “has not been disagreed” by other experts.  Only when he was pressed by the court to disregard what he considered other experts might think on this issue, Mr Chan then finally agreed with D4’s counsel that he could not use Point D1 as a starting point as it is indeed quite far away from the retaining wall. 

150.  In my judgment, the fallacy of using the retaining wall as a reference point (as Mr Chan did) is that it has totally ignored other important ground features or location markers like field bunds and the L-shaped buildings.  While the retaining wall is close to D1 and E1 (at least according to the survey map prepared by Mr Chan himself), they do not match with other ground features or location markers.  Hence, by hiding behind the purported non-disagreement with D1 and E1 as the starting points, Mr Chan is effectively ignoring all those important ground features when determining the location.  Judging from this alone, I find his use of D1 and E1 as starting point is unreliable.       

H.2.5          Ignoring the shape and form of the Pink Portion

151.  Mr Chan while admitting on one hand that the Pink Portion was in the shape of a pentagon (hence with 5 internal angles by definition), on the other hand decided to use 2 out of the 5 internal angles to determine the proper form this pentagon should take.

152.  Again, this does not make sense at all for a number of reasons. 

153.  First, in his examination-in-chief, Mr Chan stated that he could “angle scale-off”, ie calculate from the grid lines in the 1992 Assignment Plan, all 5 internal angles of the Pink Portion.  It was, as he suggested, perfectly within his ability to find out precisely what degree each of the 5 internal angles were. However, when doing the scaling off exercise, Mr Chan decided to abandon 3 out of the 5 internal angles because according to him, “the length of the southern side is longer than the summation (the sum of the two) of the northern two dimensions by 3 mm…”.  I find this has ignored the inevitable result, as pointed out by Mr Mak, that the 2 internal angles that Points A1, B1, C1, D1 and E1 making up Boundary 1 on his 2017 Plan will take the shape of a rectangle. 

154.  Further, under cross-examination by Mr Mak, Mr Chan has admitted the following:

(1)     the northern dimensions referred to Points A2 to B2 and B2 to C2 on [1/43] and that there is an angle between these 2 lines, meaning that they are not a straight line;

(2)     while an angle is formed by 2 lines crossing each other, an angle is not determined by the length of the 2 crossing lines, ie 2 parallel lines never form an angle; and

(3)     there are 5 internal angles in the Pink Portion and as such Mr Chan is able to scale-off all 5 internal angles and does not have to rely on 2 internal angles to work out the boundary of P’s Lot.

155.  As Mr Mak submits, this begs the question as to why Mr Chan selectively chose to scale off 2 angles (namely D1 and E1) only and ignoring the 3 remaining angles.  Had he done so, there is no doubt that he could and should have able to find the pentagonal shape of the boundary of P’s Lot.  In my judgment, the only reason why Mr Chan insisted on using 2 angles to scale-off the 1992 Assignment Plan is that he could easily fit his opinion into the instructions of his client.  However, this does not make any sense at all as it is clear to anybody who looks at the 1992 Assignment Plan that the Pink Portion bears no resemblance to the rectangular box drawn by him in his 2017 Plan.  In my view, one cannot simply insist on having a rectangular-shaped of land (as Mr Chan did) while the Pink Portion in the 1992 Assignment Plan clearly depicted a pentagonal shape piece of land. The two things are like cheese and chalk.  They simply do not mix.     

156.  In fact, Mr Chan finally admitted under cross-examination that it was indeed the case.  He agreed to Ms Chan’ suggestion that the reason why he had only scaled off 2 angles (ie D1 and E1) was because he wanted to keep the flexibility irrespective of the top part of the Pink Portion so that he could create a new boundary based on the 140 sq m.

157.  I regret to say that an expert’s task in a boundary dispute like our present case is to assist the court in finding a definite boundary by using his experience and expertise, it is not for him to “keep the flexibility” so that he can match his opinion with his client’s case. However, this was exactly what P’s expert had done. 

H.2.6          Boundary 1 or Boundary 2?

158.  One thing I find rather peculiar in this case is that Mr Chan had, at different times, formed 4 different views on the actual location of the boundary of P’s Lot.  They are contained in the survey plans prepared by him in September 2014[54] and in June 2017[55].

159.  The first 2 boundaries, namely Boundary 1 and Boundary 2, were drawn by Mr Chan and contained in a report dated 24 October 2014[56] (“the 2014 Report”) which he had allegedly prepared for P’s “consideration” before P decided whether to take legal action or not. However, despite of that, I note that this survey plan dated 10 September 2014 was certified by him and was filed with the District Land Office.  In other words, it had become an official document unless overridden by another survey plan or map.  Further, it has also found its way into the original statement of claim filed by P’s former solicitors in December 2014 and formed the basis of his original claim[57].  As can be seen, both the shape and size of these 2 boundaries in the 2014 plan are very different from the Boundary 1 and Boundary 2 depicted in the survey plan prepared by Mr Chan in his Main Report[58].  It was the later plan prepared by him in 2017 which formed the basis of P’s present claim under the RASOC.

160.  Although Mr Chan has subsequently disowned the 2 boundaries depicted in the 2014 Report and later come down to only committing himself to Boundary 1 in his Main Report as the actual boundary of P’s Lot. The fact that he had at different times given 4 different views on the possible location and/or shape and size of the boundary of P’s Lot in my view has severely undermined his credibility as an expert witness.

161.  In any event, I do not accept his explanation that the 2014 Report was provided for P for his consideration and to seek legal advice only.  Mr Chan must have meticulously prepared the plan as all the bearings and radiations were carefully marked out in the document.  In my opinion, it is unlikely that he could have made such obvious mistakes as to where he thought P’s boundary was in this plan.  In fact, it is apparent from the conclusion of the 2014 Report that he was not sure whether Boundary 1 (based on the dimension and areas on the 1992 Assignment Plan and the roofed-over structures in the aerial photos from 1992 to 1997) or Boundary 2 (based on the graphical size and shape of the lot on the 1992 Assignment Plan) should be preferred. 

162.  He basically gave 2 choices to his client at the end of the 2014 Report and asked his client to “seek legal advice and resolve the problem with the Government and the previous owner”: (See §11.2 of the 2014 Report at [11/225]).  He further expressly stated in the 2014 Report that if his Boundary 1 is correct, then there was encroachment by Ds.  If Boundary 2 is correct, then there is no encroachment on P’s Land.  He effectively was giving his client a choice between the two without committing himself to either one of them.  To me, this is not satisfactory at all as it was likely to cause more confusion and uncertainties in the mind of his client than the problem he wanted to resolve. It certainly was not what his client expected to get when he instructed Mr Chan to give his opinion to where the true boundary of his land lies. He was not asking him the “possible” boundaries of his land.  In short, his client is asking for his opinion and not his doubts.   

163.  I also note Boundary 1 depicted in the 2014 Plan is slightly different from that of Boundary 1 depicted in the 2017 Plan.   In the 2014 Plan, it is of a slightly pentagonal shape in that the top line was not a straight line but with a raised angle between points A1 and B1 which then slightly tilts downwards from B1 and C1.  On the other hand, in the 2017 Plan, Boundary 1 is of a regular rectangular shape.  Mr Chan has not explained in his evidence what led to such a significant change in the shape of Boundary 1 in his 2 drawings made 3 years apart.  In my view, this is another example of how Mr Chan was trying to work backward to fit his opinion, including the shape of the boundary, into his client’s instructions.   

164.  The same can be said of Mr Chan’s Main Report in 2017 when again Mr Chan gave 2 possible boundaries, ie Boundary 1 and Boundary 2 as the correct boundary of P’s Lot.  He stated under cross-examination that he had prepared 2 sets of conflicting information for the court to rule on.  It was only at the concluding paragraphs of Mr Chan’s Main Report that Mr Chan has committed himself to Boundary 1 as his preferred option. 

165.  With respect, this cannot be a satisfactory way of providing his expert opinion.  Mr Chan was not asked to give what are the possible boundaries under different scenarios in this case. He was specifically asked to give his opinion as to what is the correct boundary of P’s Lot.  In my view, giving an alternative answer for the court or to his client to choose from at the very least is not helpful but worse it would cause confusion in the mind of his client and gives him unrealistic hope.

166.  The above is another good reason why I consider Mr Chan’s opinion cannot be relied on and should be rejected.  

H.2.7          Conclusion on P’s expert evidence

167.  For the above reasons, I would reject Mr Chan’s evidence.

I.         The Proper Approach in determining the boundary of P’s Lot

168.  I am of the opinion that the proper approach in determining the boundary of P’s Land should be that based on the opinions of Ds’ experts rather than P’s.

169.  I shall summarize the basis of their evidence below and explain why their opinions should be preferred.

I.1       The correct starting premises

170.  In my judgment, the correct starting premises, as agreed by all Ds’ experts, should be first to determine the location of the boundary of the Pink Portion in the 1992 Assignment Plan. Once that is done, the size of the Pink Portion can be worked out and the fact that it does not encroach on Lots 55, 56 & 57 or the Government’s land (represented by the “Blue Portion”) can be readily seen.

I.1.1            D1-3 & D4-5’ expert: Dr Ching’s opinion

171.  Dr Ching opines that the graphical measurement of the Pink Portion on the 1992 Assignment Plan should be 97 sq m instead of 140 sq m.

172.  Mr Mak for D1-3 & D4-5 has summarized the methodology adopted by Dr Ching in deciding the boundary of the Pink Portion in his closing submissions of which I would respectfully agree with:-

(1)     Dr. Ching first considered the “absolute position” of the Pink Portion by analysing what had actually been transferred at the time of the land grant/assignment.  In so considering, he is of the opinion that the most important issue was to determine/define the boundary on the ground.  This involved a matter of technical expertise, as it required looking at the ground plan (the 1992 Assignment Plan in this case).  Here, Dr Ching considered that the 1992 Assignment was clear and unambiguous that the pink coloured area on the 1992 Assignment Plan was the boundary of the lot that was to be transferred to P.  

(2)     The second step was then to consider the correct location of the P’s Lot.  In doing so, Dr Ching used a very “simple method”, being as follows:

(i)     Dr. Ching first noted that the 1992 Assignment Plan has a scale of 1:1000, a grid (the cross) located at the centre of the map, and a “North” symbol located at the top left-hand corner. Using these 3 features, he identified that there were a lot of ground features on the 1992 Assignment Plan, such as some houses located at the right and some field bunds located at the left.

(ii)     Dr Ching then compared the 1992 Assignment Plan with the 2014 Lot Index Plan[59]. Upon comparison, Dr Ching immediately recognised that some of the ground features he had identified in the 1992 Assignment Plan still existed in the 2014 Lot Index Plan.  In this regard, Dr Ching had marked out 6 different ground features on the 1992 Assignment Plan in Exhibit D-6 in his evidence.  He then identified the identical 6 ground features on the 2014 Lot Index Plan, and circled the same in Exhibit D-7.

(iii)     Finally, Dr Ching overlaid the 2014 Lot Index Plan on top of the 1992 Assignment Plan using the grid lines shown thereon, and compared once again the physical features that existed in both the 2014 Lot Index Plan and the 1992 Assignment Plan.  Using these ground features that existed in both 1992 and 2014, Dr Ching was able to put the boundary of the Pink Portion in the 1992 Assignment Plan into a contemporary grid system, from which he could then conclude what the boundary of the P’s Lot was, and that more importantly, it did not encroach on Lots 55, 56 & 57.

173.  I accept Mr Mak’s submissions that Dr Ching’s methodology is the correct one to adopt for the reasons stated below.

174.  As a matter of law, one must always begin with a construction of the entirety of the 1992 Assignment and the 1992 Assignment Plan in order to ascertain “what the parties intended to be passed under the document and what is passed”: See Wing Lung Wai Community, supra at §21.

175.  On the facts of this case, Clause 1 of the 1992 Assignment specifically provides that the property conveyed by Lee to P was “the property described in the Schedule hereto”.  If one were to look at the Schedule to the 1992 Assignment, the property described in the Schedule is “as shown and coloured Pink on the Plan annexed hereto.” In my judgment, such description is clear and unambiguous.  It is definite and exact.  It leaves no room for any other interpretation.  As such, I find the intention of Lee and P could easily be worked out by referring to the Pink Portion on the 1992 Assignment Plan.  This is in contrast to the textual description which P’s expert relies on which is not clear or definite. 

176.  Dr Ching’s way of working out the boundary is simple and straightforward.  He says that “once I can establish the lot boundary, the area will come up.”  And after he establishes the boundary, he can then answer the area without hesitation. To me, that must be right and I accept that is the case.     

177.  In the present case, if one were to look at the 1992 Assignment Plan, there are basically 3 set of information one can derive from it.  They are: (i) the stated area of “140 square metres (about)”; (ii) the graphical area of 97 sq m; and (iii) the location and boundary of the Pink Portion (which can be identified by the ground structures, grid lines, mapping information, scale bar, location diagram, loft symbol, etc).

178.  In my view, it does not take a genius or an expert to work out that the first 2 sets of information above are not consistent with each other.  In fact, they are contradictory to each other.  Only one of them could be right.  Thus, to continue to insist that only one of them is correct, as Mr Chan did with the 140 sq m and then tried to work his way backwards to justify it, just flies in the face of common sense. 

179.  I accept Dr Ching’s opinion as stated in D1-3 & D5-6’s Supp Report that “the dimensions and area as stated [on the 1992 Assignment Plan] were of inferior quality and [the] accuracy was in doubt”[60]. Thus, in my view, the only reliable starting point, as opines by Dr Ching, is to make use of the last set of information, namely, the location/boundary of the Pink Portion which is supported by grid lines, coordinates, orientations etc.  Since those elements are constant and not movables, they form a firm foundation to find the actual boundary of P’s Lot.     

180.  In fact, when the experts, including Mr Chan for P, adopted such method to work out the size/area of the Pink Portion, they all came to a similar conclusion that the size/area should be at around 93.9 sq m to 94.5 sq m.  In my judgment, this shows that this is more likely to be closer to the real size/area of P’s Lot than the 140 sq m stated in the 1992 Assignment Plan.

I.1.2 D4’s expert Ms To:  photogrammetric evidence

181.  I was impressed with the evidence given by D4’s photogrammetric expert Ms To.

182.  Ms To explained in her evidence that the methodology used in her report is “stereoscopic viewing of aerial photographs in pairs, which created 3D model to extract information of the ground features captured in the aerial photographs and presented them on the photogrammetric plots: see §§ 9-10 of Ms To’s Report.

183.  I accept that the photogrammetric plots she has produced in her reports are the result of her team’s meticulous and repetitive work that was finally approved by her.  I further accept that outcome is accurate with +/- 0.3 m margin of errors only. 

184.  This is in contrast to the more “crude” method adopted by Mr Chan for P when he directly measured from 2D aerial photographs (overlaid with lot boundaries without common grid reference and scale) with no prior correction to reduce the photographic image distortion or the variation of photo scale for scrutinizing their positional relationship.

185.  While accepting that Mr Chan who is a surveyor in private practice may not have the same resources as the government department which Ms To works for has when extracting the photogrammetric plots, his method of using a single photograph to produce a 2D view of P’s Land inherently in my view cannot be as accurate as the one produced by Ms To by using a pair of aerial photographs to create a 3D model through a highly specialized and expensive software used by her office.  As conceded by Mr Chan in his evidence, in terms of extracting as much information as possible from an aerial photograph, the software that Ms To’s used would be able to produce much more accurate photogrammetric plots than his simple 2D “overlay” method.

186.  As explained by Ms To in her evidence, by using the software in her office, she was able to identify the common ground features by overlying the 2014 Lot Index Plan to the 1992 Assignment Plan, followed by the determination of the Pink Portion’s “absolute position” or location/boundary after plotting the same into a contemporary grid system. Further, with the help of the software, Ms To was able to correct any distortion and able to calculate the orientation, coordinates, parameter, position and height of each pixel in the photographs.  Hence, she was able to identify the ground features in the aerial photographs and pinpoint their exact location and boundary.

187.  I find that the methodology adopted by Mr Chan in P’s Main Report under the heading “Photo interpretation Results”[61] is flawed as pointed out by Ms To.  It is because, as stated by Ms To in her evidence, there was apparently “some distortion” and “no scale” was used in the photographs which Mr Chan had relied on.

188.  In my judgment, Ms To’s very precise photogrammetric plotting has laid a very firm foundation for Mr Ng, D4’s boundary expert, to come up with some definite boundary lines for P’s Lot and Lots 55, 56, & 57.

I.1.3            D4’s expert Mr Ng:  boundary evidence

189.  Mr Ng opines that “(F)or boundary re-establishment, if the surviving ground features such as structures, fences and walls are prominent and well-defined boundary features which can delineate the occupational limit of a lot, the secondary quantities like location, dimensions and area of the lot can be derived from the surveyed boundary features: See Mr Ng’s Main Report at [8B/431/§7.7].

190.  I agree with Mr Ng’s opinion that if one were to compare the findings of the agreed photogrammetric plots nos. 201770501-201770519[62], it is immediate clear that the then prominent and well-defined ground features, ie the then roofed-over structures, were inconsistent with either the Boundary 1 or Boundary 2 in the 2017 Plan drawn by Mr Chan.  No prominent boundary like features could be identified which delineating Boundary 1 and/or Boundary 2, except the south-eastern vertical cutting / retaining wall shown on the photogrammetric plans nos. 201770501 – 201770519. 

191.  In my judgment, Mr Ng’s approach by first identifying the boundary of P’s Lot must be correct.  In his evidence, he stated “the boundary shows the location information and the shape of P’s lot. Based on the shape, we can measure the area and dimensions.”    I consider that it must be right to say that so long as the location can be identified objectively and accurately, then one can work out the area and dimensions. 

192.  In his evidence, Mr Ng stated that apart from the ground features, such as the L-shaped buildings and field bunds dotted around the Pink Portion, he used the coordinates to identify the boundary. Mr Ng opines that once the boundary points are marked on the ground, one can then able to find out the position of the lot and the relationship between the defined boundary and the existing ground features.  In my judgment, that must be correct.   

193.  In line with Dr Ching’s evidence, Mr Ng opines that once the boundary is determined, he can obtain the area of the Pink Portion.  This must be correct and seems to me to be only logical way of finding out the true boundary of P’s Lot.  As Mr Ng has stated in his evidence, the area of the Pink Portion would be the “last piece of puzzle” to find in that it was the “last piece of information that you can have after you find the boundary line, after doing all the steps.”  This is the exact opposite way of how Mr Chan had by using the textural description of the 1992 Assignment Plan in order to find out the location and boundary.  An approach which I have already rejected above. 

194.  I accept Mr Ng’s evidence that “just based on the dimension value and area information,” he cannot work backward to find out the boundary of P’s Lot because “the boundary consisted of the location information and the shape of the lot”.  In my view, that must be right and can only make sense.

195.  I therefore accept the evidence given by Mr Ng in court and the conclusions he has reached in his reports.

I.1.4            D7-9’s Expert: Mr Helicon Ma’s evidence

196.  Like all the other Ds’ experts, Mr Ma who acts as the expert for D7-9, re-established the boundary by graphical measurements. The methodology adopted by Mr Ma is the same those adopted by Dr Ching and Mr Ng.

197.  For the same reasons stated above, in my judgment, it must be right to work out the boundaries first in order to find the area rather than the other way round as Mr Chan had tried to do in his report and in his evidence.

198.  On the encroachment issue, Mr Ma stated under cross-examination that the correct boundaries of P’s Lot and Lots 55, 56 & 57 must be defined from the graphical boundary plan.  I accept this must be the case.  During cross-examination, Mr Cheung for P put to him the proposition that if P had come to him in 1993 that he had bought a piece of land of 140 sq m, and asked him to work out the boundary of the land he bought whether he could do that.  Mr Ma’s candid reply is that he would “check it just for comments, just visual check”.  He said that when he looks at this type of assignment plans, it is “graphical” and he would only be able to tell the exact area until he works it out “step by step”.  The last result would be the area.   By just looking at it, he says one cannot work out the area.  The graphical measurement he arrived at would be at 94 sq m.  In other words, he says he could work from the 1992 Assignment Plan but not the other way round as Mr Chan did.

199.  In my view, Mr Ma was fair to say that he would try to go to the site to find out why there was such a great discrepancy between the described area and the graphical area he was able to work out from the 1992 Assignment Plan.  He could then prepare a rectified plan and would explain to his client how to rectify the plan.   That was back in 1993 and that was what he could do.

200.  However, as of today, Mr Ma says that he could not do that as the remaining portion of the land had been surrendered to the Government and the Government has re-drawn the boundary of the land.  Hence, the other lots and the Government land have now surrounded P’s Lot and he could no longer ask the Government to rectify the same.

201.  I consider Mr Ma’s opinion is fair and objective.  It is consistent with the other experts’ evidence. I accept Mr Ma’s evidence.

J.         Whether there was any encroaching on P’s Lot by Ds? 

202.  Based on the above analysis and findings above, I am of the view that there was no encroachment by any of D1-3 & D5-6 and D7-D9.

203.  I am also of the view that the Blue Portion, including the paved area, is unleased Government land which belongs to D4.  There is no question of any encroachment on the part of D4 on P’s Lot also. 

K.        Was the surrender and re-grant of Lots 55, 56 & 57 properly carried out?

204.  One of the main submissions made by P in this case is that the contents and information in the initial document, namely, the 1992 Assignment Plan, were erroneously made use of and relied upon subsequently by others, including the Government and the owners of Lots 55, 56 & 57.  Hence, P submits that all subsequent land documents following the 1992 Assignment Plan adopting it as the “blue print” would logically and inevitably contain the incorrect depiction of P’s Lot and its correct boundary.  P says that these subsequent “mistakes” would not be made right only because they had been accepted to be accurate and correct by D4 and other Ds.

205.  In this regard, Mr Cheung in his closing submissions has embarked on a detailed analysis of why the 1994 Deed Poll; 1994 Divisional Plan; 1994 Deed of Rectification and the 1994 Deed of Rectification Plan; the Assignment Plans of Lots 25D, subsection 4, subsection 5 and subsection 6; and the Land Status Plans of the Lands Department are all wrong and inaccurate as a result: see §§11–13 (pp 8–18) of P’s closing submissions.

206.  In essence, P alleges that upon discovering the conflicting boundary information of P’s Lot on the 1992 Assignment Plan and the potential overlapping of P’s Lot with the New Grant Lots 55, 56 & 57, D4 should have taken steps to “rectify” the mistake by either informing P that his land was not 140 sq m or to re-grant Lots 55, 56 & 57 by moving it slightly away from P’s Lot so that there will not be “any overlapping or encroachment”.  P’s expert Mr Chan went as far as suggesting that D4 should have contacted Mr DC Shum (now deceased), the architect who was responsible to draw up the 1992 Assignment Plan, to clarify whether it was the 5 “dimensions” or the Pink Portion that does not match with the textual description of “140 sq m (about)”.

207.  The problem I have with Mr Chan’s opinion on this is that he is effectively shifting the burden of checking the boundary and location of P’s Lot to the Government.  P has admitted in his evidence that he had not bothered with appointing his own surveyor to carry out an independent survey as to what he had purchased from Lee in 1992.  He in fact did not see a copy of the 1992 Assignment Plan until much later at his solicitor’s office after he had signed the assignment.  He simply trusted what Lee had told him and what Mr DC Shum had drawn or written on the 1992 Assignment Plan. 

208.  In my view, this could not be the responsible act of a prudent purchaser.  Had he bothered to appoint his own surveyor or architect to check on the 1992 Assignment and 1992 Assignment Plan at the time, he would no doubt been able to find out the obvious inconsistencies between the textual and graphical descriptions contained in those documents.  He could not now blame the Government for not finding this out for him and to inform him.  There was simply no privy of contract or estate between P and the Government. I do not see how he can pass the responsibility to the Government.

209.  But there are other good reasons why P’s submissions above should be rejected.

210.  First, as explained by Mr Kwan in his evidence, the Surrender and Regrant exercise for Lots 55, 56 & 57 are in situ land exchanges, whereby application for the Surrender and Regrant were made by the then owners of Lot 25D ss12, Lot 25D ss13 and Lot 25D RP, together with their respective development layout plans, indicating the proposed locations of their respective small houses within their surrendered lots, subject to a 65.03 sq m area constraint.  I accept D4’s submission that it is neither the Government’s initiative to decide the locations of their small houses nor the Government’s duty to resolve any private boundary disputes between the small house applicants and the adjourning lot owners.

211.  Second, the graphical boundaries of the surrendered areas, namely Lot 25D ss 12., Lot 25D ss 13 and Lot 25D RP (as of 1994) were consistent with that as shown on the 1994 Divisional Plan and the 1994 Rectification Plan.  Mr Ng, D4’s boundary expert, opined that in the Surrender and Regrant exercise, the then DSO must have considered the graphical boundaries of the surrendered lots, ie Lots 25 D ss 12, Lot 25D ss13 and Lot 25D RP (as of 1994) before execution of the grant documents and any recommended adjustment of the locations of the boundaries of the new grant lots is within the original boundaries of the concerned surrendered lots.  This can be cross-checked and confirmed by two things.  The first thing is that the boundary of P’s Lot has been indicated on the Surrender Plans[63]and New Grant Plans[64] of Lots 55, 56 & 57 respectively without overlapping.  The second thing is all the experts, including P’s expert Mr Chan, agreed in their ‘Joint Statement’ that the boundaries of Lots 55, 56 & 57 were defined by the Government within the graphical boundaries of the surrendered lots as shown on the 1994 Rectification Plan and there is no boundary conflict with the Boundary 2 drawn by Mr Chan in his 2017 Survey plan; the boundary depicted by Dr Ching and the boundary depicted by Mr Ma in their reports. 

212.  Third, I agree with Ms Chan that after the surrender of the original Old Schedule agricultural lots on exchange of New Grant Lots 55, 56 & 57, such areas outside of Lots 55, 56 & 57 have since become unleased government land.  I accept Mr Kwan’s evidence that the boundaries of New Grant Lots 55, 56 & 57 were properly defined after the land boundary survey and after definition of the boundary coordinates.                   

213.  Last but not the least, I agree with Ms Chan’s submission that, in this case, the court is not asked to determine the exact location or the size of P’s Lot but which is the likely boundary of P’s Lot for the purpose of determining P’s claim in this action. As Mr Mak submits, this case is not about whether P’s land was 140 sq m or 97 sq m (or 94 sq m according to Mr Ma).  It is about whether Ds have encroached into his land.  To do that P must first have to establish what is the boundary of his land.  At best, 140 sq m was what had been stated by Mr DC Shum in the 1992 Assignment Plan and what P subjectively believed as what he had purchased from Lee.  But that is not the boundary of his land, nor does that tell us anything about the shape and exact location of the boundary of P’s Lot.  It also does not equal to the Pink Portion depicted in the 1992 Assignment Plan.

214.  Hence, as Mr Mak submits, P’s cry for his “missing 46 sq m” of land is nothing but a red herring.  Without first establishing the boundary of what had been transferred to him in 1992, this 140 sq m means very little if anything at all.  As the Pink Portion has been proved to be of a smaller size, the 140 sq m cannot be correct.  What P and his expert cannot do is to insist P’s Lot must be of 140 sq m and then tried to work backward in order to justify his claim.  This is like putting the cart before the horse.              

L.        What reliefs the succeeding party or parties are entitled to?

215.  Given my rulings above, I do not have to deal with Issue 8 which only involves the event if P succeeds on Issues 1 and 2. 

L.1      Reliefs that D1-3 & D5-6 one entitled to under their counterclaim

216.  D1-3 & D5-6 seek the following reliefs under their counterclaim in the present proceedings:-

(1)     A declaration that P has wrongfully registered the AWOS and the RAWOS against each of the properties registered in the respective names of Ds; and

(2)     An order that the registration of the AWOS and RAWOS be vacated forthwith.

217.  Following my findings and rulings above, I find the AWOS and RAWOS have been wrongly registered by P and they should be vacated: See section 19 of the Land Registration Ordinance, Cap 128 and Lee Yun Sang v Li Yun Yau [2018] HKCFI 1549 at §95, per Recorder Winnie Tam SC.

218.  I so order that they should be vacated as stated in §216 above.

L.2      D7-9’s counterclaim and relief

219.  There is an issue of easement / right of way raised by P which I would like to quickly dispose of here.

220.  I reject P’s claim that there was other route or routes which D7-9 could make use of for Lot 57 besides the one shown in the path in the amended defence and counterclaim of D7-9[65].

221.  P’s case that 2 other routes or right of easement were available to D7-9 in my view is flimsy and speculative. For the first alternative route alleged by P in the amended reply and re-amended defence and counterclaim of D7-9, namely a metal staircase at the back of the house which was linked to the roof top to a neighbour’s house, P under cross-examination admitted that it was “a little bit dangerous” and he would not “walk there”.  P also admitted that the metal staircase “no longer existed”. 

222.  D7-D9 all gave evidence and testified that the metal staircase led to was a slope and not a road.  It is not a path which they could make use of.  Since D7-9 live at Lot 57 and P did not, I prefer their evidence to that of P’s.

223.  P’s expert Mr Chan’s evidence on this issue is equally unhelpful.  Most of his answers on this issue are considered of “don’t know” or “cannot remember”, so it does not help P’s case on the right of easement at all.

224.  The 2^nd “alternative” route suggested by P which is located at the back of the house of Lot 57 is equally not viable as it requires a person to squeeze through a small gap of a few inches between the house and the edge of the retaining wall.  I accept D9’s evidence that a person cannot squeeze through such space even by walking sideway.  When asked about this small gap, P simply said he could not remember. 

225.  In short, P does not have a real case on this issue and I would dismiss his allegations that D7-9 have other alternative routes as ingress and egress to their house.

226.  In the circumstances, I consider that D7-9 is entitled to a right of way as pleaded in their counterclaim, being the only access route for ingress and egress from the house built of Lot 57. 

227.  I allow their counterclaim as pleaded.

M.     CONCLUSION

228.  In light of the aforementioned discussions, I find P has failed to prove his case and his claim is hereby dismissed. 

229.  On the other hand, D1-3 & D5-6 and D7-9’s counterclaim should be allowed.

230.  Accordingly, I make the following orders:

(1)     P’s claim against D1 to D9 be dismissed.

(2)     D1-3 & D5-6’s counterclaim as stated in §§(1), (2) & (3) of the prayers in their re-re-amended defence and counterclaim dated 21 August 2019 be allowed.

(3)     D7-9’s counterclaim as stated in §11 of their re-amended defence and counterclaim dated 20 November 2017 and §§(1) & (2) of its prayers be allowed.

(4)     There will be a costs order nisi that the costs of the action be to Ds, such costs to be taxed if not agreed, with certificates for 2 counsel for D1-3 & D5-6 and D4 and certificate for counsel for D7-9.  The above costs order will become absolute in the absence of any application from the parties to vary the same within 14 days after this judgment is handed down.         

231.  Lastly, I would like to thank counsel on both sides for their very helpful assistance throughout the trial.