CHAU TAT WING, suing in his own capacity and as the sole executor of the estate of WONG TIM LUN, deceased v. WONG KWAI WAN AND ANOTHER

DCCJ 3244/2022

[2025] HKDC 1044

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3244 OF 2022

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DECISION

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1.  This is the plaintiff’s application to seek leave to appeal.

History of the proceedings

2.  This court handed down a judgment on 12 December 2024 (“The Judgment”) which dismissed the plaintiff’s claim with a cost order nisi for the costs of the action to the 1^st defendant to be taxed if not agreed.

3.  On 9 January 2025, the plaintiff filed a summons to seek leave to appeal against the Judgment (“the Leave to Appeal Summons”) which attaches a draft Notice of Appeal which raised 7 grounds of appeal.

4.  On 31 March 2025, this court handed down a decision (“the Decision”) to allow the counterclaim of the 1^st defendant and to vary the costs order nisi in the Judgment.

5.  On 23 April 2025, the plaintiff took out a summons (“the Summons to Amend”) to amend the Leave to Appeal Summons. In the amendments, the plaintiff:

i)    Seeks leave to appeal against the Judgment as amended by the Decision;

ii)   Seeks a stay of execution of the Judgment pending final disposal of the appeal;

iii)  Attaches a revised draft Notice of Appeal which now contains 5 grounds of appeal.

Legal Principles

6.  The legal principles concerning granting of leave to appeal are stated under section 63A(2) of  the District Court Ordinance, Cap 336:

“Leave to appeal shall not be granted unless the judge…hearing the application for leave is satisfied that –

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

7.  Further, a reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”. It was sufficient to show that the appeal was “merely arguable” and “not fanciful” for the court to be satisfied that it had a reasonable prospect of success (KNM v HTF (HCMP 288/2011, [2011] HKEC 1210).

The plaintiff’s grounds of appeal

8.  The 1^st defendant does not object to the Summons to Amend (paragraph 3 of the Skeleton Arguments for the 1^st defendant) so the court will consider the 5 grounds of appeal in the revised draft Notice of Appeal.

Grounds 1-3

9.  The first 3 grounds can be summarised into this: that this court has erred in law in holding that the court has no jurisdiction in determining (and thus making a declaration of such) the common boundary between the plaintiff’s land and the 1^st defendant’s land (“the Common Boundary”) and that the cause of action only lies in an negligence action against the relevant surveyor or a judicial review action against the Lands Department.

10.  It is clear that this is an error in law in that the court was somehow distracted from the fact that this was an action for a declaration of rights and not an academic dispute on accuracies of survey maps. I also note that the 1^st defendant also accepts that Grounds 1-3 have reasonable prospect of success.

11.  These 3 grounds will be referred to as “the Jurisdiction Point”.

12.  However, despite this error, the court went on at very long lengths to consider the accuracies of the 2006 Survey and 2012 Survey on the assumption that it has jurisdiction (paragraphs 74-93 of the Judgement).

13.  The court’s considerations can be summarised as below.

14.  It was not in dispute amongst all the experts that the common junction between the 4 pieces of lands was in shape of a “Double-Y” all through the years. This means that there has always been a shared border (and thus access) between the 1^st defendant’s Land and Government Land.

15.  Mr. Tang’s argument that the 2006 Survey “gave a fair determination” of the Common Boundary was that this showed a straight line and “matches well with boundary features” but the 2012 Survey “does not follow the original pattern shown in the DD Sheet nor the long-lasting field occupation pattern” (paragraph 55 of the Judgment).

16.  However, Mr. Tang also agreed that the 2006 Survey has “adopted the centre point of the Double-Y shape boundary as the common boundary” which means, in short, that this common junction has now been turned into a “Dot”. In doing so, he failed to address why the common junction should suddenly change shape (paragraphs 75–76 of the Judgment).

17.  Further, Mr. Tang failed to address the concerns raised by the Land Department for this change of shape of the common junction (paragraphs 21 and 79 of the Judgment):

i)    Creating an acute corner on the plaintiff’s land (the “Spike”) which is “not reflected in old aerial photographs and DD Sheets”;

ii)   There is a lack of a shared border between the 1^st defendant’s Land and the Government Land.

18.  Importantly, the abolishment of this historical shared border would mean that there would be no longer any access from the 1^st defendant’s Land to the Government Land. This does not “respect” “the boundary relationship…previously shown on the DD Sheet and other old records” (paragraph 21(c) of the Judgment). It is therefore clearly against the intention of the grant according to the Code of Practice

19.  To explain such a change, Mr. Tang proposed a new theory by comparing the 1949 and 1963 aerial photographs and, by using the “Mid-Line Practice”, he suggested that, due to rainstorms and water running down the boundaries (which he claimed were actually gullies), the “Double-Y” shape has, during these times, changed to a more vertical “cross”. Thus, the common junction was now in shape of a “Dot” placed in the centre of this “cross” (the “New Theory”, paragraphs 80, 81, 83 of the Judgment).

20.  However, Mr. Tang also stated that in the Mid-Line practice, “the alteration of the boundary features should be adopted as long as the changes were natural and not man-made” (paragraph 82 of the Judgment).

21.  Firstly, the court found that Mr. Tang only advanced this New Theory at the trial despite having prepared a Joint Statement between the experts some 3 ½ years ago. On this alone, the court should not consider the New Theory (paragraphs 84-86 of the Judgment).

22.  However, even if the court went on to consider the New Theory, the court found that the changes of the boundaries in the 1963 aerial photograph was, on balance of probability, man-made and not natural. The court has explained its reasoning at some length (paragraphs 87-91 of the Judgment).

23.  The court concluded that the plaintiff’s expert, Mr. Tang, “fails to show that the 2006 Survey is more accurate than the 2012 Survey” and that both the experts of the 1^st and 2^nd defendants “supported the accuracy of the 2012 Survey over the 2006 Survey” (paragraphs 92 and 93 of the Judgment).

24.  The crux of the appeal is that the plaintiff is seeking an order for a declaration that the Common Boundary should be as shown on the 2006 Survey as well as an order to dismiss the 1^st defendant’s counterclaim (Hearing Bundle p. 58).

25.  However, based on the factual findings in the Judgment, even if the court did not err on the Jurisdiction Point, it would still not have made a declaration that the Common Boundary should be as shown in the 2006 Survey and would have, similarly, allowed the 1^st defendant’s counterclaim. And the court would have made the declaration that the Common Boundary should be as shown in the 2012 Survey, which was the remedy sought by the 2^nd defendant (but not the 1^st defendant).

Ground 4

26.  Although Ground 4 states that “the Judge has erred in law…”, this ground is clearly disputing the court’s finding of fact: it states that the court has “failed to consider relevant materials” or “taken into account of irrelevant materials” (which the plaintiff has particularised into 8 paragraphs, all of which concern with the court’s factual findings).

27.  The legal principles on appeals challenging the court’s findings of facts are trite (Volpi v Volpi [2022] 4 WLR 48) :

i)    An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong;

ii)   The adverb “plainly” does not refer to the degree of confidence felt by the appeal court unless it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under the appeal is one that no reasonable judge could have reached;

iii)  An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. There mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it;

iv)  The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him;

v)   An appeal can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable; and

vi)  Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

28.  Further, an appeal should not be merely a regurgitation of arguments run at trial and a rehashing of the evidence and factual aspects that the appellant considers to lie in his favour in hope that the appellate judge may come to a different view. The focus should be on the identification of palpable errors in the judgment of such nature as to warrant intervention from this court. A mere assertion that the finding of the judge is against the weight of the evidence or that the judge may have reached another conclusion because of the points advanced will not serve the purpose (Mak Rachel Wing Nam v Ching Kai Chung [2024] 5 HKLRD 17).

29.  The 8 points particularised by the plaintiff under this ground are as follows, that the court:

i)      Failed to consider that “Mid-line practice” is undisputed between all the experts;

ii)     Failed to consider the application of the “Mid-line practice” that the Common Boundary should be a straight line (along line “SR” on the 2006 Survey) not a deflected line;

iii)    Failed to consider that according to the DD Sheet and the Crown Rent, the Common Boundary was a straight line without deflection, as shown in the 2006 Survey but not in the 2012 Survey, thus incorrect;

iv)    Failed to consider it is not the intention of the Crown Grant that the Common Boundary lies within the cultivated area of the plaintiff’s land as shown in the 2012 Survey;

v)     Erred in taking into considering of the transformation of the common junction between all 4 lands from a “Double-Y” junction to a “cross” junction: this transformation was irrelevant  regardless of whether man-made or natural;

vi)    Erred into taking into consideration the “Spike”;

vii)   Failed to consider the Common Boundary as shown in the 2006 Survey was a straight line and consistent with DD Sheet, Crown Grant, aerial photographs; and

viii)  Failed to consider that by applying the undisputed opinion of the experts (i.e. “Mid-Line Practice”) to the Common Boundary and the west boundary of the Plaintiff’s Land, the Common Boundary is along the Line SR and west extremity at Point S.

30.  I will address the plaintiff’s points as follows.

Point i)

31.  Concerning point i), there is no dispute between the experts as to the Mid-Line Practice and, importantly, also the circumstances when it can and cannot be applied. There is no finding of the court against this general practice so this point on its own cannot support any ground for appeal.

Points ii), iii), iv) and vii)

32.  Points ii), iii), iv), vii) (last of which is essentially a repeat of points ii) and iii) combined) are the arguments that Mr. Tang has advanced as to support his opinion the 2006 Survey was a “fair determination” of the Common Boundary.

Point vi)

33.  Point vi) is one of the concerns raised concerning why the 2006 Survey should not be not more accurate than the 2012 Survey.

34.  As stated above in paragraphs 17 and 18, the other (arguably more important) concern was the abolishment of the historical access between the 1^st defendant’s Land and Government Land. This is clearly against the intention of grant.

Point v)

35.  Point v) concerns the “New Theory”.

36.  As stated above, Mr. Tang used the New Theory to explain why the common junction of the 4 pieced of land has changed from the historical “Double-Y” to a single “Dot” (or Point “S” on the 2006 Survey). Thus, the Common Boundary should end at Point “S” as its west-most point, which is the plaintiff’s case.

37.  Putting this in another way, if the “Double-Y” common junction was preserved, the west-most point of the Common Boundary would be the centre of the lower “Y” of the “Double-Y”. This is reflected in Point “S1” of the 2012 Survey.

38.  However, changing the “Double-Y” into a “Dot” located along the limb between the two “Ys” (in the “Double-Y”) would necessarily mean that the west-most point of the Common Boundary was moved westwards.

39.  Mr. Tang attempted to explain this westward shift by applying the Mid-Line Practice to the 1963 aerial photograph (and comparing it to the older 1949 aerial photograph). He argued that there was a shift of the boundary between the plaintiff’s Land and the Government Land (i.e. “the 6 o’clock arm”) made by rainwater running down the gullies. The westerly shift of this “6 o’clock arm” has made the common junction changed from the slanted “Double-Y” into the shape of a more vertical “cross”. Thus, the “Dot” (or point “S”) at the centre of this “cross” would now be a fair determination of the common junction.

40.  Thus, Mr. Tang’s New Theory was essential to explain why the 2006 Survey should be more accurate due to this alleged “natural” change of the shape of the common junction.

41.  As stated above, the court gave a lengthy explanation why the New Theory should be rejected.

42.  Indeed, according to the Code of Practice, common land boundaries previously defined by the Government or by an Authorised Land Surveyor should be adopted unless the previous boundary definition is proved to be wrong.

43.  The court has found that Mr. Tang failed to show that the 2012 Survey (defined by an Authorised Land Surveyor, Mr. Henry Chan and adopted by the Lands Department since) was less accurate than the 2006 Survey, let alone proving that the 2012 Survey was wrong.

44.  Incidentally, the plaintiff (P’s Submission paragraph 52(1)) argued that the court has “erred in taking into consideration” about “the transformation” of “the shifting of the “9 o’clock” arm of the “Double-Y” southwards” but this “does not affect the determination of the Common Boundary”.

45.  Indeed, the shifting of the “9 o’clock arm” southwards does not much concern the Common Boundary. However, as explained above, the Judgment only concerned with the New Theory: the alleged westward shift of the “6 o’clock arm” (and thus the westward shift of the common junction into a “Dot” or Point “S”). This westward shift and its alleged cause were discussed at length during the trial. It is self-evident that any westward shift of the 6 o’clock arm would make the common junction look more like a “vertical cross”.

46.  Thus, this argument raised by the plaintiff is clearly wrong.

Point viii)

47.  Finally, point viii) is rather confusing: the experts did not dispute the principle of the Mid-Line Practice but it is not the undisputed opinion of the experts that the Common Boundary is along Line SR with the west extremity at Point S. Both the 1^st and 2^nd defendants’ experts rejected this. The finding of facts by the court explains why the Mid-Line Practice is not applicable. I note that is no appeal against this finding of facts.

48.  In conclusion, all the 8 points are simply regurgitation of arguments and submissions before this court at the trial. All these have been considered by the court. What the plaintiff is arguing now is what he think the weight that the court should have placed on various pieces of evidence and arguments.

49.  At the end of the day, the court’s conclusion is supported by 2 experts: the expert of the 1^st defendant, Mr. Ng Jor Choi, and the expert of the 2^nd defendant, M. Li Kam Kai, Alan. The plaintiff has raised no argument as to why the expert opinion from both experts are so devoid of merit and rationality that “the judge’s conclusion was rationally insupportable”.

50.  In my view, this is an unsurmountable hurdle for the plaintiff to overcome in an appeal against the factual finding of the court.

Ground 5

51.  The plaintiff argued seeks to appeal against the Decision and argued that the judge has erred in law in ordering the plaintiff to pay the costs of the action to the 1^st defendant on an indemnity basis with enhanced interest thereon at 5% above judgment rate from 20 April 2024 to the date of the Judgment.

52.  The starting point is that the award of costs is very much a matter of discretion of the court and the court of appeal “will only interfere when it is satisfied that the decision of the judge was wrong in principle or plainly wrong” (CHAN SHUN KEI T/A CHAN SHUN KEI CONSTRUCTION WORKS v HONG KONG CONSTRUCTION (HONG KONG) LTD CACV 192/2014).

53.  Firstly, it cannot be disputed that the 1^st defendant has made a Sanctioned Payment on 22 March 2024 for a sum of HK$5,000 and given that the plaintiff failed to beat the Sanctioned Payment, the 1^st defendant, at the very least, should be entitled to costs on an indemnity basis after 19 April 2024 (paragraph 17 of the Decision).

54.  The appeal on costs can be broken down into two period:

i)    Costs on indemnity basis before 19 April 2024; and

ii)   Costs on indemnity basis with enhanced interest on costs from 20 April 2024 to 12 December 2024.

Costs before 19 April 2024

55.  The court’s decision was based on:

i)    Mr. Tang’s excessive long expert report, and that he only raised the New Theory at the trial and therefore the plaintiff’s conduct at trial was unreasonable;

ii)   Misconceived allegations against the 1^st defendant / baseless and misconceived action (paragraphs 32-40 of the Judgment)

56.  I am of the view that i) above is clearly justifiable and cannot be challenged that it was “plainly wrong”.

57.  However, ii) was based upon 2 considerations that the plaintiff’s allegations were unfounded.

58.  The first consideration was in regard to the allegation that the 1^st defendant was wrongful in filing a survey report without the “knowledge or consent of the plaintiff” (paragraphs 35 and 36 of the Judgment). This consideration is clearly correct and cannot be challenged that it was “plainly wrong”.

59.  However, the second consideration concerned the Jurisdiction Point. The court has held that the whole action was misconceived right from the beginning (paragraph 70 of the Judgment).

60.  As stated above, this consideration is “plainly wrong”.

61.  Given that this must form part of all the considerations regarding costs, I am of the view that there is a reasonable prospect of success in this aspect.

Costs from 20 April to 12 December 2024

62.  The plaintiff claimed that the 1^st defendant only made a sanctioned payment to settle the plaintiff’s claim only. However, the 1^st defendant has disclosed an sanctioned offer letter dated 22 March 2024 addressed to the plaintiff’s solicitors which stated:

“We are instructed by our client to make a sanctioned offer…on the term that your client do deliver vacant possession on the Area as defined in…the Re-Amended Defence and Re-Amended Counterclaim refiled on 3 October 2019…

The Sanctioned Offer relates to the whole Re-Amended Counterclaim as contained in the RAD&RAC. It does not take into account your client’s claim. The Sanctioned Offer is open for acceptance for 28 days from today…

…

…if the Sanctioned Offer is not accepted by the latest day on which the Sanctioned Offer could have been accepted without leave of court and your client ultimately fails to do better than the Sanctioned Offer, our client would seek costs on an indemnity basis and enhanced interest (up to 10% above the judgment rate).

…”

63.  Thus, the plaintiff’s claim is not true.

64.  The Sanctioned Offer was not accepted and the counterclaim was awarded in the Decision.

65.  As stated above, the 1^st defendant, at the very least, should be entitled to costs on an indemnity basis after 19 April 2024.

66.  Indeed, the Sanctioned Offer already threatened to seek not only indemnity costs, but enhanced interest. However, to be fair to the plaintiff, when awarding enhanced interested at 5% above the judgment rate, the court would have, at least partly, taken into account the Jurisdiction Point and, again, this consideration is plainly wrong.

67.  As such, I find that there is reasonable prospect of success on an appeal on this aspect as well.

Stay of execution

68.  In view of the court’s view regarding Grounds 1-4 above, the application for stay of execution should be refused because there is no reasonable prospect of success in appealing against the Judgment. The court would only allow leave to appeal against the cost order in the Decision.

69.  In any case, the plaintiff’s argument for stay of execution was that delivery of vacant possession would necessitate the demolition of a wall and removal of a fish pond. I cannot see how that would be considered “irreparable damage” since there is no evidence that the wall and fish pond cannot be rebuilt with compensation in terms of damages. The submission that the files on the wall may need to be replaced by different ones is hardly an issue when compared with the prejudice against the 1^st defendant for a stay of execution: the plaintiff’s wall has been blocking 1^st defendant’s access gate all these time.

Order

70.  The court will therefore give the following orders:

i)    The plaintiff’s application for leave to appeal in the Summons to Amend (and the enclosing draft Notice of Appeal) be dismissed except for leave be granted for an appeal against the cost order in the Decision that the plaintiff shall pay the 1^st defendant’s costs of the action on indemnity basis, and from 20 April 2024 to the date of judgment, with enhanced interest rate at 5% above judgment rate (as stated under Ground 5 of the draft Notice of Appeal); and

ii)   Costs of the Leave to Appeal Summons and the Summons to Amend be in the cause of the appeal.