TANG WANG KEI KEITH v. TANG CHUN WAH AND OTHERS

DCCJ1673/2017

[2018] HKDC 714

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1673 OF 2017

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DECISION

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1.  This is the 1^st to 4^th defendants’ application to strike out the Amended Statement of Claim under Order 18 rule 19 of RDC on the ground that:-

(a)   it discloses no reasonable cause of action; and/or

(b)   it is scandalous, vexatious or frivolous; and/or

(c)   it is an abuse of process of the Court.

BACKGROUND

2.  The background of this case can be summarized as follows:-

(a)   The plaintiff was and is the owner of Lot 2999 in Demarcation District No 111 (“Lot 2999”) since 29 May 2010;

(b)   The plaintiff and the 1^st to 5^th defendants were and are members of Tang Ming Kwong Tso which was and is the owner of Lot 2998 in Demarcation District No 111 (“Lot 2998”);

(c)   Tang Tin Yin was and is the manager of Tang Ming Kwong Tso, and is the father of the plaintiff;

(d)   Tang Teng Yi Tso was and is the owner of Lot 2997RP in Demarcation District No 111 (“Lot 2997RP”).  The 7^th defendant, namely, Tang Sui Keung, Tang Wan Kau, Tang Che Yin and Tang Ying Bun were and are the managers of Tang Teng Yi Tso;

(e)   The 5^th defendant was and is the owner of Lot 2953 in Demarcation District No 111 (“Lot 2953”), which had been owned by Tang Ming Kwong Tso until it was gifted to the 5^th defendant on 2 June 1998;

(f)   As an owner of Lot 2999, and as a member of Tang Ming Kwong Tso and Tang Teng Yi Tso, the plaintiff all along entered and passed through parts of Lot 2953, 2997RP and 2998 as shown in the coloured plan annexed to the Amended Statement of Claim.  As shown on the plan, for the plaintiff to access Kam Tin Road from Lot 2999, he would go southward and pass through these Lots in the following sequence, namely, Lot 2998, Lot 2997RP, Lot 2953 and then Lot 2997RP (the “Path”).  It is the plaintiff’s case that the Path represents the only right of way and access between Lot 2999 and Kam Tin Road.  In particular, since both the north-east and north-west boundaries of Lot 2999 were and are fenced off, the plaintiff has and had no access through the adjoining land at Lot 2952RP, Lot 2952SA and Lot 3000.  It is also the plaintiff’s case that, until recently, he has never been obstructed from accessing Lot 2999 through the Path by any members of Tang Ming Kwong Tso and Tang Teng Yi Tso since his purchase of the land in 2010;

(g)   The Path has been in place for at least 25 years from 1945 onwards;

(h)   On or about 1 May 2016, Tang Ming Kwong Tso passed a resolution to surround Lot 2998 with iron wire, except the portion that has been leased out.  This has the effect of obstructing the plaintiff from accessing Lot 2999 to and from Kam Tin Road through the Path;

(i)   In or about mid October 2016, the 1^st to 4^th defendants caused iron wire fence to be erected within Lot 2953, Lot 2998 and Lot 2999, obstructing his use of the Path and interfering his use of Lot 2999.  The iron wire fence in Lot 2953 and Lot 2999 was later removed by the plaintiff;

(j)   On or about 4 December 2016, the 1^st to 3^rd defendants caused iron wire fence to be erected within Lot 2999 and Lot 2953.  The iron wire fence was later removed by the plaintiff; and

(k)   In or about early March 2017, the 2^nd and 3^rd defendants again erected iron fence within Lot 2999 and Lot 2953, and changed the lock on the gate erected on Lot 2997RP to cause obstruction to the plaintiff.

3.  The plaintiff relies on the doctrine of lost modern grant to ask for a declaration that he is entitled to a right of way over the Path.  The plaintiff also asks for injunction to be granted to restrain the 1^st to 5^th defendants from obstructing the plaintiff’s right of way over the Path.

APPLICABLE PRINCIPLES

4.  For a strike out application made under Order 18 rule 19 of RDC, it is trite that:-

(a)   It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under the rule;

(b)   There should be no trial upon affidavit.  Disputed facts were to be taken in favour of the party sought to be struck out;

(c)   The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out; and

(d)   If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out.  One must be careful not to drive the plaintiff from the judgment seat nor should the court decide difficult points of law: Hong Kong Civil Procedure 2018, 18/19/4.

5.  To strike out pleadings based on no reasonable cause of action or defence has been disclosed, no evidence shall be admissible, and only the allegations in the pleadings are considered: Order 18 rule 2 of RDC; Hong Kong Civil Procedure 2018, 18/19/5.

6.  As to the doctrine of lost modern grant, the plaintiff must show that he or his predecessors-in-title had had uninterrupted use and enjoyment of the right of way in question for at least 20 years: Wan Yuk Wing v Wong Kwok Hing Patrick [2009] 5 HKLRD 143 at §42.

DISCUSSION

Pleadings

7.  The defendant submitted that the plaintiff only took possession of Lot 2999 in 2010, and there ‘was no pleadings nor evidence of right of way asserted by any of his predecessors-in-title’.  This argument is not borne out by the pleadings. Paragraphs 5A-5C of the Amended Statement of Claim pleaded that the Path has been in use at least from 1945 onwards.

8.  The plaintiff pleaded that, at all material times, the Path was and is the ‘only right of way … between Lot 2999 and Kam Tin Road for at least 25 years.’ The Path has been in use from 1945, and no objection has been recorded.  This part of the plaintiff’s pleaded case also provides a direct response to the 1^st to 4^th defendants’ argument that the plaintiff is ‘bound to fail for lack of “continuous and apparent” usage of the right of way.’

Decision for Interlocutory Injunction Application

9.  The defendant relied on paragraph 7 of the Decision of HH Judge Edmond Lee on 14 July 2017 concerning an interlocutory injunction application (the “Decision”) to mount the argument that the Path neither existed nor has been used continuously, and there was an alternative route allowing access between Lot 2999 and Kam Tin Road.

10.  However, the Decision only noted that the Path is ‘not visible’.  There is no finding of facts as to the existence of the Path or its continuous use.  Whilst the Decision also stated that an alternative right of way can be ‘clearly seen on the aerial photo’ taken in 2004, the Court was then dealing with an earlier version of the pleadings. The 1^st to 4^th defendants suggest that the Path allows the plaintiff to first go northward from Lot 2999 to enter the alternative path, and then follow this path southward to reach Kam Tin Road. However, in the Amended Statement of Claim, the plaintiff has clearly stated that both the north-east and north-west of Lot 2999 are and were fenced at the material times.  As such, the alternative path (if exists) would not provide the necessary access between Lot 2999 and Kam Tin Road.

11.  In any event, these findings were made based on the limited evidence placed before the court for the purpose of considering the question of serious question to be tried in the interlocutory injunction application.  I fail to see how they may be treated as final and conclusive.  As such, I do not accept the 1^st to 4^th defendants’ submission that by putting forward the new facts in the Amended Statement of Claim, the plaintiff was in effect achieving an ulterior objective by challenging the findings in the Decision through the backdoor without any proper appeal.  The plaintiff is plainly entitled to amend his case and set out his case properly, even if it may strengthen his case.  I therefore reject the 1^st to 4^th defendants’ submission that the amendment of the Statement of Claim on the part of the plaintiff is ‘plainly abusive and vexatious’.

Cause of Action against the 1^st to 4^th defendants

12.  The 1^st to 4^th defendants submitted that the plaintiff’s case against them neither concerns any interest in land, nor is there any cause of action pleaded against them.

13.  The plaintiff’s case against the 1^st to 4^th defendants obviously concerns his alleged right of way over the Path and the repeated trespassing and intrusion caused by the 1^st to 4^th defendants.  Whilst it does not concern any interest owned by the 1^st to 4^th defendants, it does concern the alleged interest owned by the plaintiff in the form of a right of way.

14.  As to the cause of action against the 1^st to 4^th defendants, the material facts on how the right of way over the Path has been repeatedly obstructed by them have been pleaded at paragraphs 7-9A of the Amended Statement of Claim.  The case of the plaintiff is clearly pleaded, and the 1^st to 4^th defendants should have no difficulties in understanding the case to meet.

15.  The 1^st to 4^th defendants also submitted that as the alleged obstruction had been removed, all ‘possible cause of actions are gone’.  I am unable to agree to it.  In light of the repeated interference and the re-erecting of fences, the plaintiff is perfectly entitled to seek for relief to restrain the 1^st to 4^th defendants from causing further interference to his right of way claimed.

16.  The 1^st to 4^th defendants further contended that the plaintiff is only relying on his capacity as a member of the Tso to claim against them.  As can be seen at paragraph 5 of the Amended Statement of Claim, the plaintiff also relies on his capacity as the owner of Lot 2999 in claiming for his right of way over the Path, which in turn gives rise to his right to claim against the 1^st to 4^th defendants. 

DISPOSITION

17.  By reason of the above, the 1^st to 4^th defendants’ summons is dismissed.

18.  With the dismissal, it would not be necessary for the Court to deal with the oral application to file further affirmation(s) made by the plaintiff in the course of the hearing.

19.  The 1^st to 4^th defendants’ alternative claim that paragraphs 5A-C & 9B-E of the Amended Statement of Claim should be struck out is not contained in their Amended Summons filed on 6 June 2018.  There is no application to further amend the Amended Summons.  Hence, the alternative claim is not before the Court.  Even if they were, they would be dismissed by the reasons stated above.

20.  The 1^st to 4^th defendants accept that there is no reason why costs should not follow the event in this application.  I therefore order the 1^st to 4^th defendants to pay the plaintiff’s costs, to be taxed if not agreed.