HCA 2580/2018
[2022] HKCFI 3596
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2580 OF 2018
________________________
BETWEEN
WONG WAI YING ANITA
1st Plaintiff
TANG CHOI WOON
2nd Plaintiff
WONG WAI SHAN
3rd Plaintiff
and
SO KWAI CHUNG
1st Defendant
WONG MING KWONG
2nd Defendant
________________
Before: Deputy High Court Judge Kenneth Wong in Court
Dates of Hearing: 6 to 10, 13 and 16 June 2022
Date of Judgment: 5 December 2022
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JUDGMENT
_________________
A. THE ISSUE AND BACKGROUND
1. The issue in this action is whether the Plaintiffs’ property is entitled to an easement of a right of way for passing and repassing over the Defendants’ property by vehicle or on foot.
2. The Plaintiffs are the co-owners of Section E of Lot No 2221 in Demarcation District 120 in Yuen Long, New Territories (“Lot 2221 SE ”), on which a 3-storey house is erected (“the Plaintiffs’ Property ”). It is located at Ma Tin Tsuen, Shap Pat Heung, Yuen Long. Ma Tin Tsuen is a village in Shap Pat Heung. The Plaintiffs’ Property is known as No. 456 Ma Tin Tsuen (“House 456 ”).
3. The 2nd Plaintiff, Madam Tang Choi Woon (“Madam Tang ”) and 1st Plaintiff, Miss Wong Wai Ying Anita (“Miss Anita Wong ”) are the registered owners in joint tenancy of the Ground Floor, the Garden appurtenant to the Ground Floor and First Floor of the Plaintiffs’ Property. The 3rd Plaintiff, Miss Wong Wai Shan (“Miss W S Wong ”) is the registered owner of Second Floor and the Roof of the Plaintiffs’ Property.
4. The Plaintiffs are family members. The 2nd Plaintiff, Madam Tang is the mother of Miss Anita Wong and Miss W S Wong. They use the Plaintiffs’ Property as family home.
5. The Defendants are the registered owners as tenants in common of the Remaining Portion of Lot No. 2230 in Demarcation District 120 (“the Defendants’ Property ” or “Lot 2230 RP ”). It is a vacant lot with no building ever built thereon, and the Defendants have not made any use of it.
6. It is necessary to describe the locality of the Plaintiffs’ Property. A copy of the Lot Index Plan (No. LIP106670P) by the Survey and Mapping Office of the Lands Department attached to the Statement of Claim is annexed here (the “Plan ”). The Court and the parties conducted a site visit in the afternoon of the second day of the trial. From what I saw, and as can be seen from the Lot Index Plan:
(1) The front (southern boundary) of Lot 2221 SE abuts partly Lot 2230 RP (which is coloured pink in the Lot Index Plan) and partly Section E of Lot No. 2230 in Demarcation District 120 (“Lot 2230 SE ”). Like Lot 2230 RP, Lot 2230 SE is also a vacant lot owned by the Defendants.
(2) The back (northern boundary) of Lot 2221 SE abuts the Remaining Portion of Lot No. 2221 in Demarcation District 120 in Yuen Long, New Territories (“Lot 2221 RP ”). Lot 2221 RP[1] is a narrow strip of land straddling the back of Lot 2221 SE and the other 4 sections of Lot No. 2221 in Demarcation District 120, namely Sections D, C, B and A (respectively “Lot 2221 SD ”, “Lot 2221 SC ”, “Lot 2221 SB ”, “Lot 2221 SA ”).
(3) The eastern boundary of Lot 2221 SE abuts Lot 2221 SD. There is a wall separating the two lots. According to the 2nd Defendant, the wall extends beyond the common boundary of Lot 2221 SE and Lot 2221 SD into Lot 2221 RP.
(4) The western boundary of Lot 2221 SE abuts Section F of Lot No. 2221 in Demarcation District 120 (“Lot 2221 SF ”). Like Lot 2221 SE, the front (southern boundary) of Lot 2221 SF also abuts Lot 2230 RP.
7. The Defendants’ Property lies immediately between the Plaintiffs’ Property and Shap Pat Heung Road. As was apparent during the site visit, if one wishes to drive from the Plaintiffs’ Property to the highway of Shap Pat Heung Road, the vehicle must pass through the Defendants’ Property.
B. THE PLAINTIFFS’ CASE
8. The Plaintiffs purchased Lot 2221 SE from Mr Wong Kwok Ho as the vendor[2] . The purchase was completed on 18 July 2008.
9. Madam Tang first viewed Lot 2221 SE in 2006, when she was introduced to Mr Wong Ming Kwong, the 2nd Defendant. The 2nd Defendant showed her around Lot 2221 SE. At that time, Lot 2221 SE was a construction site where House 456 was being built. Mr Wong explained to her what the house would look like after completion. He also explained to her the perimeters of the house.
10. The 2nd Defendant told her that Mr Wong Kwok Ho was his son and he (i.e. Mr Wong Ming Kwong) was the beneficial owner of Lot 2221 SE[3] and could discuss the sales matter on behalf of his son.
11. Madam Tang told the 2nd Defendant that she liked Lot 2221 SE because it was convenient, close to the main road (i.e. Shap Pat Heung Road) and had room for parking cars of her family.
12. The 2nd Defendant assured Madam Tang that there would be a paved porch area for car parking. He pointed out the location of Lot 2230 RP to her and told her that it was the only ingress and egress from Lot 2221 SE to Shap Pat Heung Road, that it belonged to him and Madam Tang could freely use it for vehicle access to and from Shap Pat Heung Road without obstruction (the “D2’s Promise ”). Thereafter, Miss Anita Wong also went to view Lot 2221 SE with Madam Tang. She was received by the 2nd Defendant and he also made the same promise to her.
13. In reliance of the D2’s Promise, Madam Tang and her two daughters decided to purchase the Plaintiffs’ Property. But for this promise, they would not have made the purchase.
14. Since completion of the purchase in July 2008, on the strength of the D2’s Promise, the Plaintiffs had parked their 2 vehicles in the front porch of House 456 and routinely used Lot 2230 RP as an easement of right of way to pass and repass with and without vehicle to and from the Plaintiffs’ Property (the “Claimed Right of Way ”). It served as the main and only access from the Plaintiffs’ Property to Shap Pat Heung Road and vice versa .
15. The Plaintiffs’ use of the Claimed Right of Way met with no obstruction from anyone including the Defendants.
16. The use continued until 15 October 2018, when the 1st Defendant placed 6 concrete blocks right in front of the Plaintiffs’ Property. These concrete blocks blocked the paved porch area of House 456 and seriously hampered vehicle access to and from the Plaintiffs’ Property. The Claimed Right of Way was not completely blocked because of the position which the Plaintiffs parked one vehicle there.
17. The 1st Defendant posted a sign attached to the concrete blocks, stating thereon:
“此乃私人地如有問題請聯絡 •••••• 蘇生[4] ”
18. On 30 October 2018, the 1st Defendant placed 3 additional concrete blocks in front of the Plaintiffs’ Property, narrowing the access to and from House 456 further. As a result, one of the Plaintiffs’ vehicles which was parked in the Plaintiffs’ Property was trapped and could not be driven out.
19. I shall refer to the said two occasions of blockade by the 1st Defendant collectively as “D1’s Blockade ”.
20. On 1 November 2018, the Plaintiffs obtained an interlocutory injunction from L. Chan J, which ordered the 1st Defendant to forthwith remove the D1’s Blockade and restrained the 1st Defendant from doing any acts which might hinder the Plaintiffs’ reasonable access through the Claimed Right of Way to the public road, failing which the Plaintiffs should have the liberty to remove the concrete blocks. The order also restrained the 1st Defendant from interfering with the Plaintiffs’ use and enjoyment of the Claimed Right of Way as marked in red on the Plan until trial or further order. This Court should note that this injunction continues and no application has been made to set it aside.
21. The Plaintiffs claim that in the above circumstances, the Defendants are estopped from denying that the Claimed Right of Way had been granted to the Plaintiffs since 2008.
22. The Plaintiffs say, further or alternatively, the Claimed Right of Way was and is an easement by necessity by reason that the Plaintiffs’ Property would otherwise be landlocked.
23. At the trial, the Plaintiffs through their counsel expressly dropped the claims for damages and exemplary damages, as well as their reliance on the doctrine in Wheeldon v Burrows as pleaded in paragraph 4(a) of their Reply to the Defence of the 1st Defendant. They only asked for a declaration in respect of the Claimed Right of Way and an injunction restraining the Defendants from interference of their use and enjoyment of the Claimed Right of Way.
C. THE DEFENDANTS’ CASE
C1. The 1st Defendant’s Case
24. The 1st Defendant denies the Plaintiffs’ entitlement to the Claimed Right of Way.
25. The 1st Defendant did not admit the D2’s Promise. Even if the 2nd Defendant did tell the Plaintiffs that they could use any part of Lot 2230 RP as an access road[5] for their vehicles to and from the Plaintiffs’ Property, this could only amount to a license or permission given by the 2nd Defendant to the Plaintiffs personally and not amounting to accommodating the Plaintiffs’ Property as a dominant tenement of any easement including the Claimed Right of Way[6] .
26. The D2’s Promise, if amounting to a grant of any interests, rights, permission and/or license to the Plaintiffs to do anything over or at Lot 2230 RP for any indefinite period, is not binding on the 1st Defendant[7] .
27. The D1’s Blockade or the 1st Defendant’s Defence had already revoked or revokes any grant of any such interests, rights, permission and/or license to the Plaintiffs by the 2nd Defendant which were not for any indefinite period[8] .
28. The Claimed Right of Way is not an easement of necessity because it is not the only ingress and egress to and from the Plaintiffs’ Property[9] .
29. The 1st Defendant admitted that he placed the D1’s Blockade. He nevertheless averred that it did not amount to any blockade of the Plaintiffs’ Property because there was no complete blockade[10] .
C2. The 2nd Defendant’s Case
30. Mr Wong Kwok Ho, the vendor of Lot 2221 SE, was the registered and beneficial owner of Lot 2221 SE. He was not a trustee of the 2nd Defendant[11] .
31. The 2nd Defendant denied that in 2008, he told the Plaintiffs that the Plaintiffs could freely use the Defendants’ Property as an access road[12] for their vehicles to and from the Plaintiffs’ Property[13] .
32. The Plaintiffs have access to and egress from the Plaintiffs’ Property through Lot 2221 RP[14] . At all material times, the Plaintiffs could make use of Lot 2221 RP situate at the front door of the Plaintiffs’ Property to access to the main road. The Plaintiffs do not require to pass on the Defendants’ Property to have access. The implied easement claim fails for want of necessity[15] .
33. The 2nd Defendant also pleaded a flurry of other arguments in his Amended Defence[16] but they were not run (and indeed not mentioned at all) by his counsel at the trial. Therefore, they are taken to have been abandoned.
D. UNDISPUTED FACTS
34. The following salient facts are not disputed:
(1) Since 1973, the 2nd Defendant had been the registered owner of Lot 2221 in Demarcation District No. 120, Yuen Long (“Lot 2221 ”).
(2) In 1992, the 2nd Defendant divided Lot 2221 into Sections A, B, C, D, E, F and the Remaining Portion. He then assigned Sections A to E to his sons and Section F to an indigenous villager. In particular, in 1997, he assigned Lot 2221 SE to Mr Wong Kwok Ho. He still remains as the registered owner of Lot 2221 RP.
(3) On 3 February 2006, the 1st and 2nd Defendants acquired as tenants in common in equal shares the Remaining Portion of Lot No.2230 in Demarcation District 120 (the “Beginning Lot 2230 RP ”). On 2 June 2006, by a Deed Poll, the Defendants divided the Beginning Lot 2230 RP into Sections A, B, C and the Remaining Portion (the “Old Lot 2230 RP ”). It was only until 13 November 2013 when the Defendants further divided the Old Lot 2230 RP into Sections D and E and the Remaining Portion (i.e. the current Lot 2230 RP or the Defendants’ Property).
(4) Therefore, in 2006 when Madam Tang and Miss Anita Wong visited and viewed Lot 2221 SE, the Old Lot 2230 RP had not yet been further divided. It was a larger area comprising the current Lot 2230 RP (i.e. the Defendants’ Property) as well as the current Sections D and E of Lot 2230.
(5) A預售合約 (Pre-Sale Agreement) in Chinese dated 8 September 2006 (“Pre-sale Agreement ”) was signed between Mr Wong Kwok Ho and Madam Tang, which was witnessed by a Clerk to John Chan & Co., Solicitors[17] . It provided that on Lot 2221 SE, an indigenous village house was being constructed and had been topped out[18] , and Mr Wong Kwok Ho agreed to sell Lot 2221 SE together with the house to be completed thereon to Madam Tang.
(6) Clause 3 of the Pre-Sale Agreement stated as follows:
“路權
甲方保證在成交時，定會有通道由該物業通出政府馬路。”
(the “Easement Clause ”)
(7) When Madam Tang first visited Lot 2221 SE, the 2nd Defendant was the only person who met with Madam Tang and showed her around the site. He was responsible for negotiating with Madam Tang on the sale of the land and the house to be constructed thereon. They met more than once. The negotiation took place in 2006 before the Pre-Sale Agreement was signed. Madam Tang did not meet with Mr Wong Kwok Ho during the negotiation.
(8) Shap Pat Heung Road was recently completed in or around 2006. It was (and is) the main public road connected to Lot 2230 RP[19] . The section of Shap Pat Heung Road outside the entrance into Lot 2230 RP comprises foot pavement and vehicle highway.
(9) The 1st Defendant was not involved in the sale of Lot 2221 SE and the negotiation between Madam Tang and the 2nd Defendant. He has no knowledge of the discussions and dealings between them.
(10) Madam Tang made various partial payments to the 2nd Defendant directly at the 2nd Defendant’s requests to finance the construction of House 456.
(11) It was the 2nd Defendant who instructed the contractor of Lot 2221 SE to extend the wall between Lot 2221 SD, who was owned by another son Mr Wong Kwok Wai, and Lot 2221 SE beyond their common boundary into Lot 2221 RP to separate Section D and Section E[20] (the “Extended Wall ”).
(12) Since completion of the purchase (i.e. execution of the assignments) of House 456 on 18 July 2008, the Plaintiffs enjoyed unrestricted access through Lot 2230 RP with and without vehicle, until the D1’s Blockade in October 2018.
(13) On 31 October 2018, the 2nd Defendant issued a letter through his solicitors to the 1st Defendant stating that the concrete blocks did not belong to him and the 1st Defendant had failed to seek his authorization to place the concrete block on Lot 2230 RP and demanding the 1st Defendant to remove the concrete blocks.
E. D2’S PROMISE
35. In my judgment, for the reasons below, I find it to be more likely than not that the 2nd Defendant had made the D2’s Promise (as described in paragraph 12 above) to Madam Tang. In essence, before the Plaintiffs purchased the Plaintiffs’ Property, and before the Pre-Sale Agreement dated 8 September 2006, the 2nd Defendant orally assured and promised Madam Tang[21] that should she purchase the house then being constructed on Lot 2221 SE (now House 456), she could freely use the land in front of Lot 2221 SE (i.e. Lot 2230 RP) for vehicle access to and from Shap Pat Heung Road. I also find it to be likely that the 2nd Defendant also repeated the same promise to Miss Anita Wong who also went to view Lot 2221 SE with Madam Tang. She was received by the 2nd Defendant and he also made the same promise to her.
36. The Easement Clause in the Pre-Sale Agreement is telling. The title of this clause is “easement” or “right of way” (“路權”). It indicates that this clause concerns easement or right of way, which is not a licence which is terminable at will, and there is no indication from this title or in the clause itself that such easement or right of way is subject to limitation, e.g. time limit. In the clause, Mr Wong Kwok Ho as vendor promised (“保證”) to Madam Tang as purchaser that at the time of completion (“在成交時”), i.e. when the sale and purchase of the Plaintiffs’ Property is completed, there will certainly be (“定會有”) an access through which (“通道”) one could pass from (“由”) the property (i.e. the Plaintiffs’ Property) to (“通出”) public road (“政府馬路”) (the “Access ”).
37. In the context of the Pre-Sale Agreement, it would be most extraordinary to say that such Access is limited to a walkway for people to walk on foot and excludes vehicle ingress and egress. Looking at the vicinity of Lot 2221 SE, the only nearby main public road was Shap Pat Heung Road. As mentioned in paragraph 34(8) above, it was expected to be completed in or around 2006, and the section of the Road immediately outside Lot 2230 RP comprises both pavement for walking and highway for vehicles. Therefore, in my view, the Access should include both walkway and driveway.
38. During the site visit, it is noticed that use of private cars is commonplace in the vicinity of the Plaintiffs’ Property, and private cars were parked around many houses as well as on the vacant sites of Section D of Lot 2230 and Lot 2230 SE as well as the subject Lot 2230 RP.
39. So on written record Mr Wong Kwok Ho had indeed made a promise to Madam Tang in the Easement Clause of the Pre-Sale Agreement. However, as mentioned in paragraph 34(7) above, there is no dispute on the fact that Madam Tang did not meet with Mr Wong Kwok Ho during the negotiation of the purchase of Lot 2221 SE and it was the 2nd Defendant who was responsible for this[22] . As such, the likelihood has to be that it was the 2nd Defendant who agreed with Madam Tang and promised to Madam Tang that there would certainly be a right of way through which she could pass from the Plaintiffs’ Property to the public road as in the Easement Clause.
40. As mentioned in paragraphs 34(8) and 37 above, the only public road nearby is Shap Pat Heung Road, which is connected to Lot 2230 RP at the entrance. There is no other way through which Madam Tang could walk or drive to Shap Pat Heung Road.
41. The problem for Mr Wong Kwok Ho as vendor was that he owned no other lot in the vicinity. Without the assistance of his father the 2nd Defendant, it was simply impossible for him to promise the availability of any access to Madam Tang so as to enable Madam Tang to drive or walk from Lot 2221 SE to Shap Pat Heung Road. In other words, it was simply not possible for Mr Tang Kwok Ho to have agreed to insert the Easement Clause into the Pre-sale Agreement, unless the 2nd Defendant also promised to give a right of way to Madam Tang, allowing her to walk or drive through his own lot, i.e. Lot 2230 RP to Shap Pat Heung Road. It was likely that in order to induce Madam Tang to buy the Plaintiffs’ Property, the 2nd Defendant made such a promise[23] .
42. Therefore, in my judgment, the 2nd Defendant did make the D2’s Promise, or otherwise his son Mr Wong Kwok Ho would have breached the Easement Clause.
43. This also explained why the 2nd Defendant saw fit to instruct[24] the contractor of Lot 2221 SE to build the Extended Wall as mentioned in paragraph 34(11) above. Given the D2’s Promise, which made Lot 2230 RP the right of way for Lot 2221 SE, there became no need for the 2nd Defendant to consider and provide other right of way to Madam Tang.
44. I do not consider it to be the case that at all material times, the 2nd Defendant and Madam Tang had ever had in mind to utilize Lot 2221 RP to serve as the right of way for Lot 2221 SE. This is because:
(1) When the sale and purchase of the Plaintiffs’ Property was completed and the possession of House 456 was delivered to the Plaintiffs, the Extended Wall was already there, separating Lot 2221 RP into two enclosed parts. No party disputes that the Extended Wall remains there until now[25] . As such, no person can pass through the Extended Wall and it has not been and still cannot be a thoroughfare to and from Lot 2221 SE.
(2) Assuming, according to the 2nd Defendant, Mr Wong Kwok Wai, the registered owner of Lot 2221 SD agrees to remove the Extended Wall, Lot 2221 RP is at best a footpath. There is no dispute that it cannot be used for vehicles to pass and repass.
(3) It is clear from the site visit and indeed from the Plan that Lot 2221 RP ends at Lot 2221 SA. If one walks from Lot 2221 SE across Lot 2221 RP, he will end up at Lot 2223, and then Lot 2224, both of which are not owned by the 2nd Defendant[26] . In addition, during the site visit, it is noted, apart from the Extended Wall, there were two gates installed at Lot 2221 RP, one outside Lot 2221 SA and the other one outside Lot 2221 SD. Shortly put, Lot 2221 RP was and is blocked. It could and cannot serve as an access to and from Lot 2221 SE[27] . There is no documentary evidence showing otherwise.
(4) If the 2nd Defendant reached an agreement with Madam Tang that Lot 2221 RP, instead of Lot 2230 RP, would be used as the access for Madam Tang to get in an out of Lot 2221 SE, it would be quite impossible for the 2nd Defendant to instruct his contractor to build the Extended Wall to block Lot 2221 RP, and then said the Extended Wall could be removed “whenever necessary” [28] .
(5) The 2nd Defendant’s recent conducts appear to be not consistent with his own case. On 20 February 2019, the 2nd Defendant through his solicitors sent a letter to Madam Tang alleging, among other things, that she has occupied Lot 2221 RP without authorization and demanding her, among other things, to cease occupation of it. Leaving aside whether the alleged unauthorized occupation was true or not, the letter did not mention anything that Lot 2221 RP serves as a right of way for the Plaintiffs’ Property, and Madam Tang may pass and repass Lot 2221 RP. Further, a few months before this trial, on 31 March 2022, the 2nd Defendant, as the registered owner of Lot 2221 RP, executed a Deed Poll, dividing Lot 2221 RP into two pieces. One piece is the part outside and adjacent to Lot 2221 SE and enclosed by the Extended Wall. The 2nd Defendant named this part Lot 2221 SG. It looks to me the letter issued in February 2019 and the Deed Poll executed on March this year do not sit well with the 2nd Defendant’s assertion at paragraph 5C of his Amended Defence which was filed together with the Statement of Truth signed by himself on 13 May 2020, that at all material times, the Plaintiffs have a right to use Lot 2221 RP as an access to the main road[29] .
45. In paragraphs 6 and 11 of his witness statement, the 2nd Defendant states as follows:
“6 At that time, the house on Section E was still under construction. After an agreement of sale and purchase had been reached between the 2nd Plaintiff and me, I instructed the contractor of Section E to extend the wall between Section D, which was owned by my another son Wong Kwok Wai, and Section E beyond their common boundary to Lot 2221 RP to separate Section D and Section E for privacy purpose and believed that the Plaintiffs could have access to Section E through the route mentioned in paragraph 11 below. I also thought that the extended portion of the wall could be removed for access purpose whenever necessary.
11. At the time when the Plaintiffs purchased Section E, the 1st Defendant and I did not have any specific use on the old Lot 2230RP. Only under good faith and for the Plaintiffs’ convenience, I let the Plaintiffs pass through a portion of the old Lot 2230 RP. Save as aforesaid, no right of way or otherwise was granted by me to the 1st , 2nd and 3rd Plaintiffs.”
46. I agree with Mr Sunny Chan for the Plaintiffs that the agreement for sale and purchase reached between the 2nd Defendant and Madam Tang, referred to in paragraph 6 of his witness statement cited above, is in fact the Pre-Sale Agreement (the one which includes the Easement Clause), instead of the two formal agreements for sale and purchase that the 2nd Defendant (as Mr Wong Kwok Ho’s attorney) signed with Miss W S Wong (on 29 May 2008) and Madam Tang and Miss Anita Wong (on 18 July 2008) respectively.
47. As such, in light of the Easement Clause, it would be very much the fact that the 2nd Defendant had promised Madam Tang that the Plaintiffs could use Lot 2230 RP as the access to the Plaintiffs’ Property. As Madam Tang purchased House 456 as residence of her family, the purchase is on a permanent basis, i.e. lasting for the remaining term of the Government lease, and (on the above analysis) Lot 2221 RP was not and there was no other alternative access, in my judgment, the 2nd Defendant must have made the D2’s Promise. Lot 2230 RP must have been promised by him to serve as a right of way for Lot 2221 SE.
48. Therefore, the last sentence in paragraph 11 of his witness statement cited above (which says no right of way or otherwise was granted by me to the Plaintiffs) is nothing but a clunky denial which is inconsistent with what he said in the rest of paragraph 11 and paragraph 6 and cannot withstand the scrutiny as analysed above.
49. In conclusion, based on the above analysis, I do accept the evidence of Madam Tang and Miss Anita Wong on the making of the D2’s Promise. I find it to be likely that when the 2nd Defendant respectively showed Madam Tang and Miss Anita Wong around Lot 2221 SE in 2006, Madam Tang and Miss Anita Wong had emphasised to him the importance for Lot 2221 SE to have vehicle access to and from the public road and in response, he represented to Madam Tang and Miss Anita Wong by pointing out to them the old Lot 2230 RP (then comprising the current Sections D and E, Lot 2230 and Lot 2230 RP) and stating that he was the owner and assured them respectively that if they purchased Lot 2221 SE, Lot 2230 RP will serve as the access. I make the finding as set out in paragraph 35 above.
50. I therefore also accept the evidence of Madam Tang and Miss Anita Wong that if the 2nd Defendant did not make the D2’s Promise as to the Claimed Right of Way, Madam Tang would not have bought the Plaintiffs’ Property. This is also supported by the fact that since completion of the purchase in 2008, the Plaintiffs have continuously driven their cars in and out of the Plaintiffs’ Property through Lot 2230 RP without any interruption for more than 10 years. If before the Pre-Sale Agreement Madam Tang was told that she would not be allowed to drive in and out through Lot 2230 RP, and that there would be no other alternative access for driving to and from the public road, it would be very likely that she would not have purchased the Plaintiffs’ Property.
51. If Madam Tang was told before signing the Pre-Sale Agreement that although she could drive through Lot 2230 RP for now, this is a temporary measure only and one day the Defendants would have the power to terminate the arrangement and stop her and her family to drive through the Defendants’ Property again. Bearing in mind there was no other access that she could drive through to the public road, it is likely that that she would also not have bought the Plaintiffs’ Property.
52. I shall now deal with the legal question, namely, given the above findings of fact, whether an easement or right of way in a proprietary nature has been established by the Plaintiffs, so that the Defendants are estopped from denying the Plaintiffs’ right to go pass and repass Lot 2230 RP for access to and from the Plaintiffs’ Property e.g. by erecting a blockade.
F. PROPRIETARY ESTOPPEL
53. The Court of Final Appeal in Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116 has summarized the principles as follows:
“23. Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are: (a) a representation or assurance made to the claimant; (b) reliance thereon by the claimant; and (c) detriment to the claimant in the consequence of that reliance.
24. More specifically, in Gillett v Holt [2001] Ch 210, 225, 232, Robert Walker LJ (as Lord Walker then was) emphasised that (i) “the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments”, (ii) “the quality of the relevant assurances may influence the issue of reliance”, (iii) “reliance and detriment are often intertwined”, (iv) “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the [proprietary estoppel] doctrine” and (v) detriment is “not a narrow or technical concept”; it need not consist of expenditure of money or other quantifiable financial detriment and may consist of manual labour. His Lordship added “In the end the Court must look at the matter in the round”; there is “a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.”
25. With respect to (v) in Clarke v Meadus [2013] WTLR 199 (Ch), [86], Warren J emphasised that “where promises are made over a period of years, it is necessary to stand back and look at the claim in the round.”
26. With respect to (iii), and to later statements by Robert Walker LJ in Jennings v Rice [2003] 1 P & CR 8, [50], Lady Arden (then Arden LJ) in Suggitt v Sugitt [2012] WTLR 1607, [44], observed that there need not be “a relationship of proportionality between the level of detriment and the relief awarded”; the question on an appeal is whether the relief granted was “out of all proportion to the detriment which the claimant has suffered?”
27. It may be confusing to use the term “cause of action” in this context. Rather there are two steps involved. First, once the elements of the proprietary estoppel are established an equity arises; secondly the court then must decide the most appropriate form of relief, and may have regard to the circumstances as they then exist.”
54. Based on the facts as found above, in my judgment, an equity arises in favour of the Plaintiffs because the elements of proprietary estoppel has been established:
(1) The 2nd Defendant made a promise and assurance to Madam Tang that should she purchase the Plaintiffs’ Property, she could freely use Lot 2230 RP which he owned for access to and from the public road, i.e. Shap Pat Heung Road.
(2) In reliance of the 2nd Defendant’s promise and assurance, she bought the Plaintiffs’ Property as her and her family’s residence.
(3) The Plaintiffs had used the Claimed Right of Way from 2008 for more than 10 years.
(4) There is no alternative vehicle access for the Plaintiffs to drive in and out of the Plaintiffs’ Property.
55. In all the circumstances of this matter as described above, including also that Lot 2230 RP is vacant and serves as the only access to Shap Pat Heung Road for cars from the Plaintiffs’ Property, I consider that it is proportionate and appropriate to grant the declaration of the Claimed Right of Way.
56. Mr Yan Kwok Wing, counsel for the 1st Defendant, submitted that since the 2nd Defendant is only a co-owner of Lot 2230 RP, his promise to Madam Tang should not be held binding on his client. Hence the remedy of estoppel should not be made available to the Plaintiffs. First he relied on a footnote in Gale on Easement by Jonathan Gaunt QC and the Honourable Mr Justice Morgan, 21st ed.:
“…… It has been held in Australia that, provided that he did not interfere with his co-owner's rights in, and enjoyment of, the land, a tenant in common or joint tenant could incumber the land so as to bind both the co-owners and their successors in title: Hedley v Roberts [1977] V.R. 282. It is, however, thought that an incumbrance in the nature of an easement would usually interfere with such rights and enjoyment.” (Footnote 28, paragraph 3-04)
57. Second he relied on Deputy High Court Judge Stewart Wong’s judgment in Cheung Leung Tak v 張秀雯 and Cheung Chi Hung [2018] 5 HKLRD 579, which I shall quote from paragraph 44 to paragraph 54:
“44. For an easement to arise by an implied grant by necessity, as explained by Lord Oliver of Aylmerton (giving the advice of the Judicial Committee of the Privy Council) in Manjang v Drammeh :
“There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtained only over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v Barraclough ) to imply the reservation of an easement of necessity.
45. As Lord Oliver explained, one of the conditions for an implied grant is that there is a common owner of the two plots of land. Where A owns both plots of land in issue, the implication of a grant of a right of way by him over the plot he retains in favour of the landlocked plot he sells to B causes no difficulties if other conditions are satisfied. However, a problem arises when the retained plot is not owned by A solely, but is co-owned by him and C. Can a grant of a right of way over the co-owned plot be implied from a sale of the landlocked plot by A to B and which is binding on C? This is the actual situation here, when Parts (i) and (ii) of the Road were and are not solely owned by Keung. In particular, as the plaintiff accepts, the 2nd defendant was and is a co-owner of Part (ii) of the Road.
46. Since the easement of necessity arises as a matter of implication from the grant, and not as a matter of public policy, it is clear that no such easement can arise when the grantor is not competent to grant the easement expressly. This was in fact the situation in Manjang v Drammeh .
47. Thus, in my judgment, to answer the question posed at [45] above, one will have to consider whether A is competent to grant, expressly, an easement being a right of way over the plot he co-owned with C in favour of B, and which is binding on C.
48. It would appear to me that, on first principles, A cannot so bind C without asking him to join in the grant. As stated in Megarry's Manual of the Law of Real Property:
“An express grant naturally requires for its validity that all necessary grantors join in, as with land in joint ownership where all the join owners must be party to the Deed.”
49. In Hedley v Roberts , which was an application for an interlocutory injunction, one of the co-owners of a plot of land granted to owners of the adjoining land permission to erect a water closet on part of the co-owned land. Harris J of the Supreme Court of Victoria considered various authorities and said:
“… a joint tenant, or a tenant in common, can encumber his interest in the land so as to compel his co-owner to submit to the encumbrance if the encumbrance does not interfere with the right of that co-owner to his right to possession of the land and his other rights with respect to the land.”
50. Since the defendants are not represented, and the matter has not been argued, it is not appropriate for me to express any view on the correctness of what Harris J said. However, on the basis that what was said is correct, in my judgment that does not assist the plaintiff.
51. As observed by the learned editors of Gale on Easements, after referring to Hedley v Roberts :
“It is, however, thought that an incumbrance in the nature of an easement would usually interfere with such rights and enjoyment.”
52. I agree with this observation. It would, in my judgment, be highly unusual for an easement not to interfere with the right of a co-owner to possession of the land and his other rights with respect to the land.
53. Hedley v Roberts was such a case, where the facts were rather unusual. In that case, the water closet was erected on the part of the land that was already subject to easements of carriageway, drainage and sewerage, so that Harris J took the view that the co-owner might not have been subject to any undue interference by the easement with respect to the closet. In any event, no concluded view on the question of undue interference was expressed as it was an application for interlocutory injunction.
54. In this case, in my judgment it is difficult to say that a recognition of a right of way over Parts (i) and (ii) of the Road by way of implied grant binding on the other co-owners would not interfere with their rights and enjoyment. The complaint against the 2nd defendant is in fact quite telling. The complaint (which I note the 2nd defendant denies) is that he parked his own car on the Road in such a way so as to interfere with access by heavy vehicles to Section D. So in effect the 2nd defendant, as a co-owner of Part (ii) of the Road, is said to be not allowed to park his car on his own land in any way he likes, but he has to do so in a way which would allow heavy vehicles, which may well cause damage to the Road by their usage, to pass through. The same applies to other co-owners of Parts (i) and (ii). Even assuming that Hedley v Roberts is good law, I do not see how Keung could have purported to grant expressly a right of way over Parts (i) and (ii) binding on the other co-owners in favour of Section D. If he cannot do so expressly, he cannot do so by implication.”
58. I have the following observations:
(1) The said passage in Gale on Easement concerns what is competent grantor in an express grant of easement. The said passage in Cheung Leung Tak deals with the topic of implied grant of easement of necessity and express grant of easement by a co-owner. Both do not refer to the doctrine of proprietary estoppel.
(2) When expressing the thought that an incumbrance in the nature of an easement would usually interfere with the rights and enjoyment of the servient land, the said footnote in Gale on Easement does not refer to an authority or the basis of that thought.
(3) In Cheung Leung Tak , the learned judge expressed the view that it would be highly unusual for an easement not to interfere with the right of a co-owner to possession of the land and his other rights with respect to the land. On the other hand, Harris J said in the Australian judgment in Hedley v Roberts that a joint tenant, or a tenant in common can encumber his interest in the land so as to compel his co-owner to submit to the encumbrance if the encumbrance does not interfere with the right of that co-owner to his right to possession of the land and his other rights with respect to the land. The learned judge in Cheung Leung Tak expressly reserved his view, because at the hearing before him the defendants were not represented, and the matter has not been argued.
(4) Mr Sunny Chan for the Plaintiffs referred me to the judgment of Deputy High Court Judge Jerome Chan (as the late Mr Justice Jerome Chan then was) in Incorporated Owners of Chungking Mansions v Shamdasani [1991] 2 HKC 342 where the right of a co-owner to deal with his land interest is explained:
“Firstly, one essential feature of a tenancy in common is that apart from the unity of possession, the interest of each is separate and distinct. It is generally open to a tenant in common to deal in whatever way he desires with his own undivided share. He can lease his share or dispose of his right to possession to a stranger as he likes. ‘And if tenants in common all joined in one lease, it operated as a lease by each of his respective shares and a confirmation by each as to the shares of the others' (see Woodfall on Landlord & Tenant Vol 1 p 58, para 1-0134). Likewise, each tenant in common is entitled to enforce his interest in the land on his own without joining the other co-tenants.”
(5) I do not see necessary conflict arising from the above cases. It seems to me that there should be no controversy to say as follows: A co-owner is free to dispose of or encumber his shares, interests or rights in land in any way he/she wants, as this is his property right. However, one thing he cannot do in disposing of or encumbering his shares, interests or rights in land is that in doing so he would interfere with the right of his co-owner to possession of the land and his other rights with respect to the land. As to whether the right of his co-owner to possession of the land and his other rights with respect to the land would be adversely affected, this is a question of fact which has to be considered in the circumstance of each individual case.
(6) In the present case, there is no evidence suggesting that the 1st Defendant’s right to possession of Lot 2230 RP and his other rights with respect to Lot 2230 RP has been adversely affected or interfered. According to the evidence of the 1st Defendant, he has known for many years that Lot 2230 RP was used by various houses including House 456 as access to and from Shap Pat Heung Road[30] .
(7) Further, the context of the present case is unlike Cheung Leung Tak . In Cheung Leung Tak , for constructing a small house in his own land, the plaintiff wishes to deploy heavy vehicles passing through the subject road to access the construction site. In paragraph 54 of the judgment, the learned judge remarked that allowing heavy vehicles to pass through “may well cause damage to the Road”. This seems to me explain why he said in the same paragraph that it was difficult to say that a recognition of a right of way over the subject road binding on the other co-owners would not interfere with those co-owners’ rights and enjoyment. In the present case, where (a) the Plaintiffs are asking for a domestic right of way by foot and private car, (b) the passage through Lot 2230 RP by car is transient – takes only a few seconds[31] , and (d) damage to Lot 2230RP (which surface is by itself undulating and uneven) caused by such transient passage is, in my view, unlikely, I am prepared to find that the 1st Defendant’s right and enjoyment of the land has not been adversely affected. In any event, the 1st Defendant has not adduced any evidence to say otherwise. In fact, as submitted by Mr Chan for the Plaintiffs, no suggestion has been made that the Defendants’, particularly the 1st Defendant’s, right to possession would be affected.
(8) Nonetheless, in considering whether relief based on proprietary estoppel, the Court should still go back to the principles summarized in Cheung Lai Mui above.
59. Taking into account the 1st Defendant was not a party involved in the sale and purchase of House 456, his awareness of the use by the Plaintiffs of Lot 2230 RP as vehicle access for many years, and other matters mentioned in paragraphs 54, 55, 57 and 58 above, I remain of the view that it is appropriate and proportionate to grant the declaration of the Claimed Right of Way. Because of the D1’s Blockade, which would become unlawful in light of declaration that I am minded to grant, I consider just and appropriate to grant the injunction as sought in the Statement of Claim.
G. IMPLIED GRANT OF NECESSITY
60. This topic can be disposed of quickly. As set out in paragraph 44 of Cheung Leung Tak , following the English Privy Council’s judgment in Manjang v Drammeh (1991) 61 P. & C.R. 194, the threshold requirement for an easement to arise by an implied grant by necessity is that there has to be found a “common owner” of a legal estate in two plots of land. The two plots of land in the present case, Lot 2221 SE and Lot 2230 RP, do not have a common owner. At the material time in 2006 when the D2’s Promise was made, Lot 2221 SE was owned by Mr Wong Kwok Ho and Lot 2230 RP was owned by the 1st Defendant and the 2nd Defendant as tenants in common. The two plots have no common owner. Therefore, no easement may come into place by implied grant of necessity, despite there is no doubt that apart from Lot 2230 RP, there is no other access to serve Lot 2221 SE.
H. DISPOSAL
61. For the above reasons, judgment shall be entered in favour of the Plaintiffs against the Defendants, and I make the following order:
(1) A declaration that the Plaintiffs’ Property is entitled to an easement of a right of way over the Defendants’ Property for the exercise of the easement of right of way by the Plaintiffs, their servants or agents, successors and assigns by passing, repassing whether by vehicular or human traffic or otherwise, over and upon the road more particularly identified and coloured pink on the Plan attached hereto for the purpose connected with the Plaintiffs’ reasonable and lawful enjoyment of the Plaintiffs’ Property.
(2) An injunction to restrain the 1st Defendant, whether by himself, servants or agents, from doing the following acts or any of them that is to say, preventing, prohibiting, stopping, hindering or otherwise interfering with, either directly or indirectly, the exercise of the easement of right of way by the Plaintiffs, their servants or agents, successors or assigns by passing, repassing whether by vehicular or human traffic or otherwise, over and upon the road for the purpose of connected with the Plaintiffs’ reasonable and lawful enjoyment of the Plaintiffs’ Property.
62. I further make an order nisi on that costs of the action (including those costs reserved) be paid by the Defendants to the Plaintiffs, to be taxed if not agreed. The order shall become absolute unless a party applies for variation within 14 days from the date of this Judgment.
63. I thank the parties’ counsel for their assistance.
( Kenneth Wong )
Deputy High Court Judge
Mr. Sunny Chan instructed by Messrs K.C. Ho & Fong for the 1st to 3rd Plaintiffs
Mr. Yan Kwok Wing instructed by Messrs. Ho & Partners for the 1st Defendant
Mr. George Chu instructed by Messrs. Leung Kin & Co. for the 2nd Defendant
[1] Recently, by a Deed Poll dated 31 March 2022, the 2nd Defendant divided Lot 2221 RP into 2 pieces and named the piece abutting Lot 2221 SE Lot 2221 SG. See paragraph 44(5) below.
[2] Precisely, as mentioned in paragraph 3 above, Madam Tang and Miss Anita Wong purchased from Mr Wong Kwok Ho Ground Floor, the Garden appurtenant to the Ground Floor and First Floor of House 456, and Miss W S Wong purchased from Mr Wong Kwok Ho Second Floor and the Roof of House 456.
[3] This assertion is denied by the 2nd Defendant. The analysis, as will become clear in the sequel, does not require me to determine the veracity of this assertion.
[4] There was no certified or agreed translation adduced.
[5] In my view, it is apparent from the site visit that the description of Lot 2230 RP for the Claimed Right of Way as “access road” in paragraph 7(b)(i) of the 1st Defendant’s Defence is inaccurate. Lot 2230 RP is small and its surface is by itself undulating and uneven. It is not at a road and cannot be as such. Although to get into the Plaintiffs’ Property from Shap Pat Heung Road, or vice versa , one must get through Lot 2230 RP, it only takes, as I would reckon, a few seconds for a vehicle do so.
[6] paragraph 7(b)(i) of the 1st Defendant’s Defence
[7] paragraph 7(b)(ii) of the 1st Defendant’s Defence
[8] paragraph 7(b)(iii) of the 1st Defendant’s Defence
[9] paragraph 7(d) of the 1st Defendant’s Defence
[10] In my view, this argument (effectively saying, “an incomplete blockade is not a blockade”, like “half an orange is not an orange”) is vexatious, frivolous and futile. In any event, this plea is not relevant to the main issue as to whether the Claimed Right of Way exists. If the Claimed Right of Way is established, there is no doubt that the D1’s Blockade constitutes unlawful interference of the right of way.
[11] paragraph 4(b) of the Amended Defence of the 2nd Defendant
[12] See Footnote 5 above.
[13] paragraph 5 of the Amended Defence of the 2nd Defendant
[14] paragraph 5 of the Amended Defence of the 2nd Defendant
[15] paragraph 5C of the Amended Defence of the 2nd Defendant
[16] They include (a) want of particularity in paragraph 5A of the Amended Defence, (b) no sufficient period of accrual at common law in creating any claim on prescription in paragraph 5B of the Amended Defence (Nonetheless this Court did not notice that the Plaintiffs have pleaded or relied on prescription.), (c) Article 6 of the Basic Law in paragraph 6B of the Amended Defence, (d) sections 3(1) and 3(2) of the Conveyancing and Property Ordinance, Cap. 219 and the rule under Walsh v Lonsdale in paragraphs 6C and 6D of the Amended Defence.
[17] This agreement was produced by Madam Tang when she was cross-examined by the 1st Defendant’s counsel. This appears to me not too much of a surprise to the Defendants. Firstly, at page 222 of the Trial Bundle B there was a bill dated 7 September 2006 (one day before this agreement) from Messrs John Chan & Co., Solicitors to Madam Tang, in respect of Lot 2221 SE. Works done by the solicitors in that bill include “2. preparing the pre-sale and purchase agreement in Chinese” and “3. attending signing of document” “(items 2 & 3), 1/2 share”. This probably means Messrs John Chan & Co were instructed to prepare this pre-sale agreement and attend its signing, and “1/2 share means the legal costs were to be shared between Mr Wong Kwok Ho as vendor and Madam Tang as purchaser. The signing was witnessed by a clerk of the firm. Secondly, during cross-examination, the 2nd Defendant admitted that the agreement was signed at the office of Messrs John Chan & Co.
[18] Therefore, the recital of the agreement described the manner of this sale as “預售樓花” (pre-sale of residential property). Probably it was also for this reason that the agreement was called “預售合約” (Pre-Sale Agreement).
[19] The 2nd Defendant recalled in his evidence that heavy construction vehicle utilized the entrance at Lot 2230 RP for transportation of construction material.
[20] Paragraph 6 of Witness Statement of the 2nd Defendant
[21] In the Statement of Claim, paragraph 4, it was pleaded that the 2nd Defendant made this promise to the Plaintiffs in 2008 and the Defendants are stopped from denying the Claimed Right of Way. The 1st Defendant’s counsel took a pleading point and submitted that the Plaintiffs cannot now say the promise was made in 2006. I reject this argument. Firstly, all the material facts have been pleaded in the Statement of Claim. Secondly, with the production of the Pre-Sale Agreement (which all parties have failed to discovered earlier) at the trial during cross-examination of Madam Tang, it has now become incontrovertible that the relevant negotiation between the 2nd Defendant and Madam Tang took place before the signing of the Pre-Sale Agreement in 2006. No party expressed surprise. No party suggested that further investigation was necessary.
[22] During cross-examination, the 2nd Defendant accepted that he was the only person who negotiated with Madam Tang. He said he attended the office of Messrs. John Chan & Co. with his son Mr Wong Kwok Ho for signing of the Pre-Sale Agreement. He said he brought his son to the solicitors’ office because Mr Wong Kwok Ho did not know the place.
[23] During cross-examination, when the Plaintiffs’ case was put to the 2nd Defendant, he denied barely the existence of the D2’s Promise. However, he could not explain how the Easement Clause came into the Pre-Sale Agreement. He only said he was not a party to the Pre-Sale Agreement. In my judgment, this is plainly unbelievable, given that he was responsible for the negotiation of the sale to Madam Tang and the construction of House 456, accompanied his son to sign the Pre-Sale Agreement, and even signed the two formal agreements for sale and purchase and executed the Assignments on completion as his son’s attorney.
[24] See paragraphs 45 to 46 below. It can be inferred that after the Pre-Sale Agreement, the 2nd Defendant gave instruction to extend the wall into Lot 2221 RP to separate the two houses at Lot 2221 SE and Lot 2221 SD.
[25] The 2nd Defendant states at paragraph 6 of his witness statement that, “I also thought the extended portion of the wall [i.e. the Extended Wall] could be removed for access purpose whenever necessary.” He did not say this was an agreement that he reached with Madam Tang. This was only his “thought”. Therefore, this statement is really neither here nor there. The fact that the Extended Wall has never been removed since its erection in 2008, which means that it remains as a block for access for the last 14 years, speaks for itself. Moreover, even if the Extended Wall were removed, as mentioned in paragraph 44(3) below, two gates still stand in the way. Lot 2221 RP always remains blocked and not accessible.
[26] During cross-examination, the 1st Defendant, rightly in my view, accepted that there can be no access to the main road without committing trespass against Lot 2223 and Lot 2224.
[27] During cross-examination, the 2nd Defendant, also rightly in my view, accepted that Lot 2221 RP does not provide an egress.
[28] The last sentence of paragraph 6 of the 2nd Defendant’s witness statement. See Footnote 25 above.
[29] This is not to mention that Lot 2221 RP (before it was divided) could not serve the Plaintiffs as an access from Lot 2221 SE to the main road, i.e. Shap Pat Heung Road.
[30] Paragraph 13 of the 1st Defendant’s witness statement
[31] See Footnote 5 above.