KWOK PING v. KWOK CHAU WING

HCMP 982/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 982 OF 2013

(on an intended appeal from DCCJ NO. 2000 OF 2007)

------------------------

________________________

J U D G M E N T

________________________

Hon Yuen JA (giving the judgment of the Court):

1. This is the defendant’s application for leave to appeal from a judgment of H.C. Wong, DJ in a boundary dispute. The learned judge refused leave to appeal as well as a stay of execution. The defendant has also applied to this court for a stay of execution pending leave to appeal.

Background

2. The plaintiff and the defendant are cousins, their fathers being brothers. 

3. The properties in question are Sections E and F of Lot 420 in DD118.  Section E belongs to the plaintiff and Section F belongs to the defendant. 

Purchase of Lot 420

4. More than 35 years ago, these sections were part of a single piece of land (Lot 420) owned by a landlord and farmed by 4 tenant farmers, one being the Kwok Family to which the plaintiff and the defendant belong.  When the landlord decided to sell the land in 1979, the 4 tenant farmers bought it on the basis that each was to take the land he (or his family) was then farming (“the 1^st oral agreement”).

Division of Lot 420

5. Three years later (1982), the 4 tenant farmers decided to formalize the division of Lot 420.  The Lot was divided into 9 sections, viz. Sections A to H and the Remaining Portion.  A deed poll was drafted by solicitors.  However it emerged during these proceedings that the 4 tenant farmers had in fact signed 2 original Deed Polls with different plans.

Two Deed Polls

6. One original Deed Poll was registered at the Land Office (“the 1^st Deed Poll”).  The other was kept by the defendant, presumably passed to him by his father Kwok Hon Lam (“KHL”) who was the representative of the Kwok Family and who later sold Section F to the defendant (“the 2^nd Deed Poll”).

7. The wording of the 2 deed polls was identical.  It stated that “the sections with their respective abuttals and dimensions are more particularly delineated and described on the plan annexed hereto and thereon shown in the respective colours as set forth against them respectively under the second column” of the Schedule.  The Deed Polls stated that the area of Section E was 0.07 acre and that of Section F, 0.06 acre, but did not “describe” where their boundaries were. 

8. Under the plans attached to both Deed Polls, the 4 tenant farmers had signed under these words:

“This plan is copied from the original DD plan dated 1905 and there has been some subsequent revision of detail on the DD Sheet. The District Office is not responsible for the accuracy of any division of the original lot.

We mutually agree to the division of the property as indicated on this plan”.

9. Section E was coloured purple and Section F, pink on both plans.  However the two plans showed different shapes for some of the sections including Section E.  In any event both expert surveyors at trial agreed that “the scale of this division plan is too small to reflect and show the actual occupation on the ground”.

Post-division events

10. Coming back to the events after the 1982 division, the Kwok family acquired Sections E and F.  The land was farmed by members of the family without differentiating between the two sections as they had a harmonious relationship. 

11. The plaintiff, who was 27 years old at the time of the 1982 division, said his father and KHL had orally agreed that the boundary between Sections E and F would run through the pig shed along the pathway, with the portion on the top of the pathway being Section E, and the bottom, Section F (“the 2^nd oral agreement”). The plaintiff’s father has died but KHL is still alive.  He made a witness statement in these proceedings on behalf of the defendant but was suffering from dementia at the time of the trial and did not give evidence.      

12. There were no markers of the boundary between Sections E and F until the families of the plaintiff and the defendant began to fall out over some other matters in 2004.

13. In 2006, the defendant consulted a Mr Ma, who is a surveyor, with a view to setting down the boundary on the ground.  Mr Ma consulted the plan attached to the 1^st Deed Poll but was not aware of the 2^nd Deed Poll.  Subsequently the defendant built a fence, and a brick wall and metal gate, on what he considered to be the boundary between Sections E and F.

Proceedings

14. The plaintiff considered that to be a trespass on his land and started proceedings for an injunction.

Judgment of HC Wong DJ

15. The judge heard evidence from the plaintiff who gave first hand evidence of the 2^nd oral agreement.  She also heard from the expert surveyors.

16. Put in a nutshell, she held that since there were 2 Deed Polls signed on the same day but with different plans, which in any event were on too small a scale to be accurate, it was open to the court to admit the plaintiff’s evidence of the 2^nd oral agreement.  Although KHL had made a witness statement to the contrary, he was not available to be cross-examined on it. 

Application for leave to appeal

17. The defendant applied for leave to appeal, advancing essentially 7 grounds discussed below.  We have considered his statement as well as the plaintiff’s statement filed in opposition.

18. First, the defendant objects to the admissibility of evidence of the oral agreements.  We do not consider there to be any merit in this ground.  The fact is that the wording of the Deed Poll did not provide any verbal description of the boundary between Sections E and F.  And the plans were unreliable because:

(1) the two plans, both signed by the same persons and on the same date, contained different shapes for some sections including Section E, and

(2) as agreed by both surveyors, the scale of the division plan was too small to be accurate in any event.

We consider the judge was clearly right in admitting the evidence of the plaintiff to describe the location of the boundary which was not set out in the Deed Poll and was ambiguous in the plans.

19. Pausing there, the defendant also argued that the evidence of the 2^nd oral agreement should not have been allowed as part of the factual matrix because there was no evidence that the other 3 tenant farmers were aware of it.  We do not think there is any merit in this ground.  It is unreal to suggest that the other 3 tenant farmers were concerned to know the location of the boundary between Sections E and F, which was a matter for the Kwok family only.  The setting of the boundary between the two brothers did not impact on the total area of the two sections.  As for the effect on the area of Section H, the evidence was that the plans in the New Territories were not prepared by qualified persons and suffered from large scaling errors, and that a margin of error of 10% + 20 sq m was accepted in the land surveying industry.  Even if the boundary as asserted by the plaintiff does have an impact on the area of Section H, the resulting effect is still within this margin.

20. The defendant also sought to rely on s.26A Land Registration Ordinance to argue that the plan attached to the registered 1^st Deed Poll should take precedence over that attached to the unregistered 2^nd Deed Poll.  However s.26A governs only documents purporting to be a “copy, print or extract” of original documents.  The plan attached to the 1^st Deed Poll is an original. Section 26A is therefore not engaged and there is no merit in this ground either.

21. The defendant also complained that the 2^nd oral agreement had not been pleaded.  The plaintiff relied on Lintock Co Ltd v Attorney General [1985] 2 HKC 555. In our view civil procedure rules have advanced since that case was decided and it is somewhat surprising that the 2^nd oral agreement had not been pleaded by the plaintiff and was alluded to only peripherally in the plaintiff’s witness statement.  However it is a matter of discretion for the trial judge whether to permit evidence to be called to support an unpleaded allegation.  If the defendant had been taken by surprise, he could have asked for an adjournment to regroup and re-consider what evidence to call in opposition.  He did not do so and we do not think there is any merit in taking a pleading point on appeal.   

22. Further, as regards the evidence of the 2^nd oral agreement, the defendant complains that the judge failed to give any weight to KHL’s statement.  The judge was aware of the statement but noted that he was not cross-examined as he was suffering from dementia.  There is no merit in this ground of appeal as it is well-established that an appellate court would not usually interfere with a judge’s decision on the weight to be accorded to any specific piece of evidence.

23. Similarly, expert evidence is a matter of fact and an appellate court would not usually interfere with a trial judge’s finding of fact.  There is nothing in the present case that renders it an exception.  

24. Nor is there any substance in the ground of appeal that the judge had failed to find as a fact that there was a pathway.  The plaintiff points out that his expert had referred to the pathway in oral testimony without challenge from the defendant.  

Order 

25. By reason of the matters above, we take the view that there is no merit in the application for leave to appeal. 

26. The application for leave to appeal is dismissed, and pursuant to Order 59 rule 2A(8) RHC, it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes. 

27. It follows that the application for stay of execution should also be dismissed.

28. We make an order nisi that the defendant is to pay the costs of the applications to the plaintiff.  If there is no application to vary the costs order nisi within 14 days after the date appearing on this Judgment, the following directions shall apply:

(1) the parties should seek to agree the quantum of costs;

(2) if the parties are unable to agree the quantum of costs within 21 days after the date appearing on this Judgment,

(a) the plaintiff may lodge within 7 days thereafter a skeleton bill of costs for the purpose of a summary assessment of costs;

(b) the defendant may within 7 days thereafter lodge written submissions in opposition to the skeleton bill;

(c) the court will then make a summary assessment of costs.