WONG WAI YING ANITA AND OTHERS v. SO KWAI CHUNG AND ANOTHER

CACV 498/2022 & CACV 1/2023

(Heard Together) [2024] HKCA 140

On Appeal From [2022] HKCFI 3596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 498 OF 2022

(ON APPEAL FROM HCA NO. 2580 OF 2018)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1 OF 2023

(ON APPEAL FROM HCA NO. 2580 OF 2018)

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(Heard Together)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

I.  The appeal

1.  The case highlights the problem of pedestrian and vehicular access by occupants of indigenous village or Ting houses in the New Territories by reason of the unregulated development of such houses in terms of road access.

2.  The plaintiffs are the registered owners of a three‑storey indigenous village house (‘House 456’) situated on Section E, Lot No. 2221 in Demarcation District 120 in Yuen Long, New Territories (‘Lot 2221 SE in DD 120’). They are members of the same family. The mother Tang Choi Woon (the 2^nd plaintiff) (‘Tang’) and her younger daughter Wong Wai Ying Anita (the 1^st plaintiff) (‘Anita Wong’) own the ground floor, the garden on the ground floor and the first floor of the house. Tang’s elder daughter Wong Wai Shan (the 3^rd plaintiff) (‘Wong Wai Shan’) owns the second floor and the roof of the house. The plaintiffs have two cars and since acquiring House 456 in July 2008, they have been using an adjacent vacant land (‘Lot 2230 RP in DD 120’) owned by the 1^st defendant (‘So Kwai Chung’) and 2^nd defendant (‘Wong Ming Kwong’) as a right of way (‘the claimed right of way’) for access to the Shap Pat Heung Road which is the main public road in the area. This use continued until 15 October 2018, when So Kwai Chung placed six concrete blocks right in front of the plaintiffs’ House 456. These six concrete blocks obstructed the paved porch area of House 456 where the vehicles were parked and seriously hampered the vehicular access to and from the plaintiffs’ house. So Kwai Chung also posted a sign to the concrete blocks, stating :

「此乃私人地如有問題請聯絡......蘇生」

(Translation: This is private land. Please contact Mr. So if there is any problem)

3.  The plaintiffs’ access to the claimed right of way at that stage was, however, not completely blocked because of the position where one of the plaintiffs’ vehicles was parked. The situation changed on 30 October 2018 when So Kwai Chung placed three additional concrete blocks in front of the plaintiffs’ house, narrowing the access to and from House 456 further. As a result, that vehicle was trapped and could not be driven out.

4.  On 1 November 2018, the plaintiffs obtained an interlocutory injunction from Linda Chan J, who ordered So Kwai Chung to forthwith remove his blockade and restrained him 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 him from interfering with the plaintiffs’ use and enjoyment of the claimed right of way. So Kwai Chung agreed to have the injunction continued until trial.

5.  Deputy High Court Judge Kenneth Wong (‘the Judge’) tried the plaintiffs’ action and granted a declaration that the plaintiffs’ property is entitled to an easement of right of way over the defendants’ property for access by vehicle and people. He further granted a permanent injunction against So Kwai Chung from interfering with the plaintiffs’ use of the easement of right of way.

6.  The defendants now appeal. So Kwai Chung’s appeal is CACV 498/2022 and Wong Ming Kwong’s appeal is CACV 1/2023. The appeals were heard together.

II.  Background

7.  The plaintiffs acquired Lot 2221 SE from Wong Kwok Ho who is the son of Wong Ming Kwong. Originally, Wong Ming Kwong was the registered owner of a larger lot known as Lot 2221 in DD 120 (‘Lot 2221’). Later in 1992, he divided Lot 2221 into Sections A, B, C, D, E, F and the Remaining Portion (‘RP’). He then assigned Sections A to E to his sons and Section F to an indigenous villager. In 1997, he assigned Lot 2221 SE to his son Wong Kwok Ho. Wong Ming Kwong remains as the registered owner of Lot 2221 RP.

8.  In 2006, Tang came to know that Lot 2221 SE was for sale. At that time, the lot was a construction site and House 456 was in the process of being built. She was met by Wong Ming Kwong who explained to her the perimeters of the house and what the house would look like after completion. He also explained to her that Wong Kwok Ho is his son and he could discuss the sale on behalf of his son. Tang told him that her family had cars and Wong Ming Kwong assured her that there would be a paved porch area for car parking. He further pointed out to her the location of Lot 2230 RP which was adjacent to Lot 2221 SE and said that it was the only way for ingress and egress from Lot 2221 SE to Shap Pat Heung Road. He explained that Lot 2230 RP belonged to him and Tang could freely use it for vehicle access to and from Shap Pat Heung Road without obstruction (‘the promise’). Thereafter, Anita Wong also went to view Lot 2221 SE with Tang. She was received by Wong Ming Kwong and he also made the same promise to her.

9.  At that time, Lot 2230 RP was not partitioned into separate lots. The evidence showed that on 3 February 2006, the 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, the defendants divided the Beginning Lot 2230 RP into Sections A, B, C and the Remaining Portion (the ‘Old Lot 2230 RP’). On 13 November 2013, 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).

10.  In reliance of the promise, Tang and her two daughters decided to purchase Lot 2221 SE. Tang stated that they would not have made the purchase but for this promise made by Wong Ming Kwong. An agreement was reached between Tang and Wong Ming Kwong on the sale. On 8 September 2006, a document in Chinese known as the Pre‑Sale Agreement was entered into between Wong Kwok Ho and Tang. Wong Ming Kwong accompanied his son Wong Kwok Ho to the signing of that agreement in the solicitor’s office. It was witnessed by a clerk to John Chan & Co., Solicitors. The Pre‑Sale Agreement provided that an indigenous village house was being constructed and had been topped out on Lot 2221 SE, and Wong Kwok Ho agreed to sell Lot 2221 SE together with the house to be completed thereon to Tang.

11.  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。」

(Translation:

Right of Way

Party A promises that on completion, there will certainly be an access through which one could pass from the property to the public road.)

12.  Tang made various partial payments to Wong Ming Kwong directly at his requests to finance the construction of House 456. The sale of House 456 was completed in July 2008. The two formal agreements for sale and purchase and the assignments were executed by Wong Ming Kwong as an attorney for his son. After the completion of the purchase in July 2008, on the strength of the promise, the plaintiffs had parked their two vehicles in the front porch of House 456 and routinely used Lot 2230 RP as a right of way to pass and repass with and without vehicle to and from their property. It served as the main and only access from the plaintiffs’ property to Shap Pat Heung Road and vice versa. This use continued until the obstruction in 2018 as described earlier.

13.  On 31 October 2018, Wong Ming Kwong issued a letter through his solicitors to So Kwai Chung stating that the concrete blocks did not belong to him and So Kwai Chung had failed to seek his authorization to place the concrete blocks on Lot 2230 RP. He demanded So Kwai Chung to remove the concrete blocks.

14.  So Kwai Chung was not involved in the sale of Lot 2221 SE and the negotiation between Tang and Wong Ming Kwong. He had no knowledge of the discussion and dealings between them.

III.  The Judge’s finding

15.  The Judge found that despite his denial, Wong Ming Kwong had made the promise to Tang and Anita Wong about the right of way. This promise was confirmed by the Pre‑Sale Agreement between Tang and Wong Kwok Ho. Without the assistance of Wong Ming Kwong, it was simply impossible for Wong Kwok Ho to promise the availability of any access to Tang so as to enable Tang to drive or walk from Lot 2221 SE to Shap Pat Heung Road. The Judge held that the plaintiffs had established proprietary estoppel against Wong Ming Kwong in that 1) Wong Ming Kwong made a promise and assurance to Tang that should she purchase the 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 promise and assurance, she bought the property as her and her family’s residence; 3) The plaintiffs had used the claimed right of way from 2008 for more than ten years; and 4) There is no alternative vehicle access for the plaintiffs to drive in and out of their property.

16.  The Judge rejected Wong Ming Kwong’s case that there was an alternative route of access from the plaintiffs’ property to the public road. The Judge had conducted a site visit and found 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 the plaintiffs could walk or drive to Shap Pat Heung Road. The Judge found that it was proportionate and appropriate to grant the declaration of the claimed right of way.

17.  In respect of So Kwai Chung, the Judge held that there was no evidence suggesting that So Kwai Chung’s right to possession of Lot 2230 RP and his other rights with respect to Lot 2230 RP have been adversely affected or interfered with. According to So Kwai Chung, he had known for many years that Lot 2230 RP was used by the occupants of various houses in the vicinity including House 456 as access to and from Shap Pat Heung Road. The Judge also found that it was appropriate and proportionate to grant the declaration.

IV.  Wong Ming Kwong’s appeal

18.  It is logical to deal with Wong Ming Kwong’s appeal first because one should identify in the first place whether he had created a right of way in favour of the plaintiffs. His appeal consists of eight grounds. They are mainly concerned with challenges to the factual findings by the Judge despite many of the complaints were dressed up as errors of law by the Judge.

1)  Grounds of appeal

(1)  Ground 1

19.  In respect of the Judge’s finding on proprietary estoppel, Wong Ming Kwong stated that the Judge had erred in law on the following matters : i) The plaintiffs’ pleaded case was that representation was made by Wong Ming Kwong in 2008 but the Judge relied on the Pre‑Sale Agreement dated 9 September 2006 which effectively destroyed their pleaded case; ii) The Judge failed to identify the capacity of Wong Ming Kwong when he made the representation to the plaintiffs in the light of the Judge’s finding that Wong Ming Kwong was not the beneficial owner of Lot 2221 SE and his son was not a trustee of that Lot. There was no express finding that Wong Ming Kwong made the representation on behalf of the landowner; and iii) Accordingly, the Judge wrongly extended the law of proprietary estoppel since the judgment was premised upon a binding representation made by Wong Ming Kwong who was not an interested party who received the benefits from the plaintiffs’ sale and purchase agreement.

(2)  Ground 2

20.  The judgment was based on an unpleaded case of the plaintiffs : i) The 2006 representation was unpleaded and inconsistent with the witness statements of the plaintiffs. The Pre‑Sale Agreement was deliberately ignored or excluded by the plaintiffs in their pleadings and witness statements; ii) According to the plaintiffs’ pleaded case, Wong Wai Shan was not present when Wong Ming Kwong made the representation; iii) The plaintiffs’ oral evidence on how many times they met Wong Ming Kwong differed from their witness statements; iv and v) Wong Wai Shan could not rely on Wong Ming Kwong’s representation since she was not present and she did not give evidence; and vi) Wong Ming Kwong was forced to meet an unpleaded case.

(3)  Ground 3

21.  The Judge misunderstood and misconstrued the facts : i) The Judge did not accord appropriate weight to the change of the plaintiffs’ pleaded case and the deliberate non‑disclosure by the plaintiffs of the Pre‑Sale Agreement; ii) The Pre‑Sale Agreement was only discovered during the cross‑examination by Wong Ming Kwong’s counsel. The Judge wrongly identified him to be So Kwai Chung’s counsel; iii) The Judge failed to give proper weight to the credibility of the witnesses and reversed the burden of proof by not believing Wong Ming Kwong; and iv) The Judge did not consider Clause 13(2) of the Pre‑Sale Agreement which expressly ruled out any prior unwritten agreement including the alleged proprietary estoppel that was advanced.

(4)  Ground 4

22.  The Judge erred in law in failing to reconcile the inconsistency between the Pre‑Sale Agreement and the Formal Sale and Purchase Agreement which did not incorporate any express easement. According to the doctrine of merger, the terms of the Formal Sale and Purchase Agreement ought to dictate.

(5)  Ground 5

23.  The plaintiffs by deliberately hiding the Pre‑Sale Agreement did not come to court in clean hands and ought not be granted equitable relief.

(6)  Ground 6

24.  Proprietary estoppel is distinctly different from easement by prescription. The lack of vehicular access for the plaintiffs is not something that ought to bear weight.

(7)  Ground 7

25.  The ten year period relied on by the plaintiffs is clearly insufficient to find prescriptive rights of easement.

(8)  Ground 8

26.  The Judge ought to have held that the plaintiffs failed to establish proprietary estoppel.

2)  Discussion

27.  It is well established that finding of fact is within the province of the trial judge who has the benefit of hearing and seeing at first hand how the witnesses gave evidence. The trial judge also has the benefit of having an overall view of how the evidence unfold and develop. These are benefits that are not readily available to the appellate court. Accordingly, it is only in those rare situations where it is shown that the findings of fact by the trial judge are plainly wrong that the appellate court will overturn the findings and substitute them by findings of its own. Examples of how a finding of fact is plainly wrong includes but not limited to situations where the evidence does not support the finding, important and relevant evidence have not been taken into consideration or irrelevant or insignificant evidence had been taken into account. The threshold of showing that a finding of fact is plainly wrong is a high one.

28.  The Judge was clearly entitled as a finder of fact to accept the evidence of the plaintiffs that Wong Ming Kwong had indeed made the promise and rejected his denial. The complaint that the Judge’s decision is based on an unpleaded case of the plaintiffs is unmeritorious. The Judge addressed this point as follows :

‘ In the Statement of Claim, paragraph 4, it was pleaded that the 2^nd Defendant made this promise to the Plaintiffs in 2008 and the Defendants are stopped from denying the Claimed Right of Way. The 1^st 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 [be] discovered earlier) at the trial during cross-examination of Madam Tang, it has now become incontrovertible that the relevant negotiation between the 2^nd 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.’ (Footnote 21 at [35])

29.  In respect of the complaint of late discovery of the Pre‑Sale Agreement by Tang, the Judge held :

‘ This agreement was produced by Madam Tang when she was cross-examined by the 1^st 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 2^nd Defendant admitted that the agreement was signed at the office of Messrs John Chan & Co. (Footnote 17 at [34(5)])

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).’ (Footnote 18 at [34(5)])

30.  In respect of the promise made by Wong Ming Kwong and his capacity, the Judge held :

‘ During cross-examination, when the Plaintiffs’ case was put to the 2^nd Defendant, he denied barely the existence of the [the 2^nd defendant]’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.’ (Footnote 23 [41])

31.  Earlier, the Judge held :

‘ During cross-examination, the 2^nd 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.’ (Footnote 22 [39])

32.  The Judge had clearly taken all relevant matters into consideration when he found there was the promise made by Wong Ming Kwong. We would only add that it would be more appropriate to have these findings expressed in the main body of the judgment instead of being expressed in the footnotes. Generally speaking, footnotes in a judgment should only consist of citation of authorities and short comments. It would make easier reading of the judgment itself if the footnotes are kept to the minimum. After all, judgment is not an academic research paper where the writer may have to identify the extent and the views of his research.

33.  In respect of the issue of proprietary estoppel, the law is restated recently by the Court of Final Appeal in Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116 per Ribeiro PJ and Gummow NPJ :

‘ 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.’

34.  At [26], they further referred to the observation of Arden LJ in Suggitt v Suggitt [2012] WTLR 1607 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?’

35.  The Judge was satisfied as stated in [15] above that the four requirements for proprietary estoppel are fulfilled in the present case. As to Wong Ming Kwong’s argument that the Judge had erroneously extended the ambit of proprietary estoppel, it is important to bear in mind his role in the transactions relating to the sale of Lot 2221 SE and the representation he made in respect of the use of Lot 2230 RP. He was (and still is) a co‑owner of Lot 2230 RP. At the same time, the Judge held that he was an attorney on behalf of his son in the sale of Lot 2221 SE to the plaintiffs. He had expressly represented to the plaintiffs that they could use his own property for ingress and egress from Lot 2221 SE to the public road. The Judge found that in reliance of this representation, the plaintiffs bought House 456. Ribeiro PJ and Gummow NPJ quoted the statement by Robert Walker LJ in Gillet v Holt [2001] Ch 210 at [24] that ‘the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the [proprietary estoppel] doctrine’. It is clearly unconscionable for Wong Ming Kwong to deny that he had ever promised the plaintiffs the use of Lot 2230 RP after the use of the claimed right of way for ten years. In the context of this case, we do not see how it could be reasonably argued that the Judge had erroneously extended the ambit of proprietary estoppel.

36.  The difference between the Pre‑Sale Agreement and Formal Sale and Purchase Agreement was not raised below. We will not allow this to be raised. In any event, all that the Judge was saying is that the easement clause in the Pre‑Sale Agreement supported the plaintiffs’ evidence that Wong Ming Kwong had made the representation. As to the issue of clean hands, Mr. Chu for Wong Ming Kwong relied on the late disclosure of the Pre‑Sale Agreement by Tang. The Judge had already addressed the issue of late disclosure. Clearly, this was not a matter that the Judge considered relevant or significant enough to affect the granting of equitable relief. Likewise, Mr. Chu’s submission that the representation by Wong Ming Kwong was merely a misrepresentation by him in the nature of sale or promotional bluff was not argued below or included in his notice of appeal and we had disallowed this point from being taken at the appeal.

37.  Many of the other grounds of appeal are repetitions of the same theme which we have addressed or are irrelevant. We do not need to deal with them separately.

38.  In our view, the Judge was correct to find against Wong Ming Kwong. Mr. Chu has not been able to demonstrate the finding that Wong Ming Kwong had made the promise was plainly wrong. The Judge had also correctly applied the law on proprietary estoppel to the facts of this case.

V.  So Kwai Chung’s appeal

1)  The Judge’s reasons

39.  Before we address So Kwai Chung’s grounds of appeal, we will outline the reasons given by the Judge for holding against him.

40.  The Judge referred to Gale on Easement 21^st Ed. by Gaunt and Morgan at footnote 28 to [3-04] :

‘ ...... 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.’

41.  The Judge further referred to the judgment of Deputy High Court Judge Stewart Wong in Cheung Leung Tak v 張秀雯 and Cheung Chi Hung [2018] 5 HKLRD 579, which considered Hedley v Roberts and the comments of the editors of Gale on Easements :

‘ 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 co-owner to possession of the land and his other rights with respect to the land.’

42.  The Judge then considered the judgment of Deputy High Court Judge Jerome Chan (as the late Jerome Chan J 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.’

43.  The Judge then held :

‘ 58(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 1^st 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 1^st 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.

(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, 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 1^st Defendant’s right and enjoyment of the land has not been adversely affected. In any event, the 1^st 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 1^st Defendant’s, right to possession would be affected.’

2)  Grounds of appeal

(1)  Ground 1

44.  So Kwai Chung’s first ground of appeal is that the representation by a co‑owner cannot bind the other co‑owner. Mr. Yan for So Kwai Chung argued that the co‑owners hold separate and distinct rights in respect of the co‑owned property. It follows that there shall be no basis for one co‑owner, by way of any act or representation, to act against the rights of the other co‑owners and Wong Ming Kwong’s representation shall not bind his client and no issue of estoppel would arise. He relied on the passage in Gale on Easement and Cheung Leung Tak as cited above. He further relied on Yeung Yu Chung and another v. Base Keen Investment Limited and others, CACV 204/2008, unreported (3 December 2008), where this Court held :

‘ 18. In so far as the second plaintiff seeks to rely on any representation made by the first defendant, even on the assumption that it had been made, estoppel could not arise because the first defendant is only one of several owners of land forming the Second Road. It is therefore clear that there is no serious issue to be tried in this matter. The injunction must be discharged and the order granting the injunction set aside.’

45.  He recognized that there are some authorities like Chin Lan Hong & Others v. Cheung Poh Choo & Others [2005] 3 HKLRD 811 which suggested that the acts of one co‑owner may bind other co‑owner(s). However, he submitted that those cases concerned the co‑owners’ right of possession, instead of the right of easement.

46.  He criticised the Judge as having misread the case of Incorporated Owners of Chungking Mansions ‘to have the effect beyond the boundary of “unity of possession” ’. He argued that it was wrong for the Judge to say whether the right of a co‑owner to possession of the land and his other rights with respect to the land would be adversely affected is a question of fact. While the ‘right of possession of the land’ may include a question of fact and law, the creation of easement is, as a matter of law, a matter adversely affected the right and interest of a co‑owner.

47.  Mr. Yan argued that an easement is a right over the land of another (‘the servient land’). It is a proprietary, not a personal, right and will therefore bind successors to the servient land and enure for the benefit of successors to the dominant land (Gale on Easements [1-01]). He argued that if an easement can be created by a co-owner, the other co-owner(s) would be liable for an action for interference with the easement. The other co-owner(s) also cannot get rid of the easement by exercising their rights under the Partition Ordinance, Cap. 352.

(2)  Ground 2

48.  The second ground of appeal is that proprietary estoppel does not apply in the present case. Mr. Yan relied on the pleaded case of the plaintiffs that the representations occurred in 2008. He argued that ‘to have the effect beyond the boundary of “unity of possession” ’. He further argued that the plaintiffs did not come with clean hands to seek equitable relief because the plaintiffs have constructive notice that Lot 2230 RP is owned by both defendants, yet nevertheless, the plaintiffs still elected to turn a blind eye without seeking So Kwai Chung’s confirmation and/or consent and simply rely on Wong Ming Kwong’s representation in entering into the transaction of Lot 2221 SE in 2008.

49.  Mr. Yan argued that the Judge had also considered irrelevant factors in granting the relief based on proprietary estoppel, namely the plaintiffs had used the claimed right of way from 2008 for more than 10 years and So Kwai Chung’s right of possession had not been interfered with. The Judge ought not to have considered matters that happened after the alleged creation of the easement, i.e. in 2008. So Kwai Chung could lawfully tolerate the usage of his land by others without creating any right or interest over his land up to 20 years under the law of prescription. He argued that there is no basis to say it is proportionate and appropriate to grant the declaration of the claimed easement in favour of the plaintiffs in relation to their transaction in 2008 because subject to the limitation period on adverse possession and the law of prescription, So Kwai Chung has no duty to look after his land and evict trespasser either on a daily or continuous basis. On the other hand, the principle of ‘buyer be aware’ should apply to the plaintiffs for them to look after their transaction in 2008. By making the declaration, So Kwai Chung’s private property right over his own land would be seriously infringed though he had done nothing wrong in this regard.

3)  Discussion

50.  In our view, there is a short answer to Mr. Yan’s arguments : Wong Ming Kwong as a tenant‑in‑common was entitled to deal with his interest in Lot 2230 RP by granting a right of way to the plaintiffs and So Kwai Chung as the other tenant‑in‑common cannot interfere with that right by placing obstructions on the right of way. The principle is well established by this Court in Chin Lan Hong & Others. In that case, a property was held by tenants‑in‑common. One of the co‑owners granted to a defendant a non‑exclusive licence to occupy the property. The other co‑owners sued the defendant for trespass. Le Pichon JA at [32] referred to Incorporated Owners of Chungking Mansions and discussed the status of tenants‑in‑common in Hong Kong whose position is similar to that in Australia and New Zealand and in the United Kingdom prior to the 1925 Law of Property Act. She held :

‘ A tenant-in-common is entitled to deal, in whatever way he desires, with his own undivided share: he may lease it or dispose of his right to possession to a stranger as he likes without the concurrence of the other tenants in common.’

51.  At [31], she referred to U-Needa Laundry Ltd v Hill [2000] 2 NZLR 308 which explained the difference between joint tenants on the one hand and tenants‑in‑common on the other hand in respect of their dealings with the property :

‘ [24] … Because a tenant-in-common has an undivided share, that tenant is free to deal with his or her share as he or she sees fit. On the other hand, joint tenants do not have undivided shares. In the case of joint tenants, as the property or rights are held jointly, a transfer or lease must be by or under the authority of all interested. Because of the unity of title, it is not possible for one co-owner to deal with the property without the authority of others. That is not the position with tenancy-in-common as the co-owner is only dealing with his or her particular interest in the title. It is the interest of the co-owner which is being leased and which entitles the lessee to possession to be shared with the other co-owners.

[25] For the above reasons I am of the view that the statements in the English authority are not relevant to the legal rights of tenants-in-common in New Zealand. The position in New Zealand is as it was in the United Kingdom before the passing of the Law of Property Act 1925 (UK). That position was stated in Woodfall: Landlord and Tenant in para.2.102 as follows:

Tenants-in-common needed to have only unity of possession; they might have unequal shares, and there was no right of survivorship. Each tenant‑in-common could at common law make a lease in respect of his own share alone, the interest of each being separate and distinct, and if tenants-in-common all joined in one lease it operated as a lease by each of his respective share, and a confirmation by each as to the shares of the others.’

52.  Le Pichon JA recognized that there may well be practical inconvenience concerning the right of the other co‑owner in granting a lease to others but as she explained :

‘ 34. As succinctly explained in the U-Needa Laundry Ltd v Hill [2000] 2 NZLR 308 case, a lease by a tenant-in-common of his interest in the land operates differently: the lessee of that interest has to share possession with the other co-owners which could lead to practical inconveniences. In the U-Needa Laundry Ltd v Hill case at para.26, Paterson J cited the following passage from Re Marcellos (1940) 41 SR (NSW) 154 at p.155 :

The rarity of a lease by one of two tenants‑in‑common is explained by the inconvenience to which it may lead, as illustrated in Woodfall on Landlord & Tenant (17^th ed.) 15. But if one tenant‑in‑common is willing to submit to or to create this inconvenience and can find a lessee, there appears to me to be no objection in law to his granting a lease.

35. In my view, the Judge’s statement of the law, in particular at paras.77–79, which Mr Shieh sought to impugn is correct. The second and third defendants as representatives of the estate of CCC [i.e. one of tenants‑in‑common] had the power to grant the first defendant a licence to occupy the Property on a non‑exclusive basis. That licence could not be determined by the other tenants in common without the consent of the second and third defendants. Accordingly, the plaintiffs cannot maintain a claim in trespass in respect of the first defendant’s occupation of the Property as from 11 October 2000.’ (emphasis added)

53.  Chin Lan Hong & Others was applied in Turbo Top Ltd v. Lee Cheuk Yan [2013] 3 HKLRD 41 by Godfrey Lam J (now Godfrey Lam JA) at [27].

54.  The present case is concerned with an easement which is a right over the land of another. We do not see any difference in principle in respect of the right of a tenant‑in‑common granting a right of way to a third party. Applying the principle in Chin Lan Hong & Others, So Kwai Chung clearly was not entitled to interfere with the right of way granted by his co‑owner Wong Ming Kwong to the plaintiffs, particularly when he knew that the plaintiffs had been enjoying the use of the easement for over ten years and his own admission that there is no other access in the area to the main public road apart from the use of Lot 2230 RP and he had also allowed the tenants of the houses he built in the same area to use Lot 2230 RP for access. We disagree with Mr. Yan’s submission that because So Kwai Chung had no knowledge of the representation by Wong Ming Kwong, therefore he should not be held liable. In our view, it is irrelevant that he had no actual knowledge of the promise by Wong Ming Kwong. The Judge was clearly entitled to take into account his knowledge of the fact that the plaintiffs have been using Lot 2230 RP for access and his inaction during this long period in holding against him.

55.  The reliance by Mr. Yan on Yeung Yu Chung is misconceived. That case was dealing with an appeal of an order granting an interlocutory injunction and the issue was simply whether there was a serious question to be tried and the judgment must be properly understood in that context.

56.  As to the lack of clean hands argument, it was not relied upon by So Kwai Chung before the Judge. This clearly required evidence to fully address the issue. In any event, the clean hands argument was not even included in his notice of appeal. We will not allow this matter to be raised now.

57.  It is not necessary to discuss whether Hedley v. Roberts was correctly decided. We would only observe that the creation of an easement of right of way does not deprive the owner of the servient dominant land of the right of possession. Gale on Easement at [13‑01] stated ：

‘ Because the owner of an easement is not in any sense in possession of the servient tenement, his action for interference with his easement cannot be in trespass, since that is a cause of action which can only be maintained by a person in possession.’

58.  The Judge had also in [58(7)] of his judgment which was repeated in [43] above, explained why the transient nature of the plaintiffs’ use of Lot 2230 RP does not interfere with So Kwai Chung’s right and enjoyment of the land.

59.  The Judge was again correct in holding against So Kwai Chung.

VI.  Conclusion

60.  Accordingly, the appeals by the 1^st and 2^nd defendants are dismissed.

VII.  Costs

61.  There will be an order nisi that the 1^st and 2^nd defendants are to pay the plaintiffs the costs of the respective appeal to be taxed if not agreed.

62.  As to the costs below, the costs relating to the application for injunction was reserved by Linda Chan J. The Judge ordered such reserved costs to be borne by both defendants. This is incorrect as the plaintiffs had only sought the injunction against the 1^st defendant.

63.  Accordingly, we will vary the costs order below by ordering costs of and occasioned by the plaintiffs’ injunction to be paid solely by the 1^st defendant to the plaintiffs to be taxed if not agreed.