KWOK PING v. KWOK CHAU WING

DCCJ 2000/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2000 OF 2007

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BETWEEN

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JUDGMENT

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1.  The plaintiff, Mr Kwok Ping, is the registered owner of the land known as section E of Lot No 420 in DD 118 (“lot 420E”).  The defendant, Mr Kwok Chau Wing, is the registered owner of the land known as section F of Lot No 420 in DD 118 (“lot 420F”).  Lots 420E and 420F were part of Lot 420 in DD 118 before it was subdivided by deed poll in 1982.

2.  The defendant’s father is the elder brother of the plaintiff’s father, they used to live and cultivate the land together as one family (“the Kwok family”) on Lots 420E and F.

3.  Prior to 1979, Chung Ting Tsoi Tong was the registered owner of lots 416 and 420 in DD 118.  Between 1957 and 1979, it let Lots 416 and 420 to the Kwok family and three other tenants, namely Cheung Chun Chun, Siu Kuk Chan and Kwok Wing Fui (“the other tenants”).  Each tenant occupied and cultivated different portions of Lot 420.

4.  In 1978 when the landlord Chung Ting Tsoi Tong expressed an intention to sell Lots 416 and 420, the Kwok family and the other tenants agreed orally to jointly purchase Lot 420 and each family would retain the portion of Lot 420 occupied by them since 1957 (“the 1^st oral agreement”).  On the aforesaid basis, the Kwok family and the other tenants jointly purchased Lot 420 under an assignment dated 18 March 1979 (p 44-45 of bundle B).

5.  Pursuant to the 1^st oral agreement in 1979, a deed poll was executed on 29 April 1982 to subdivide Lot 420 into subsections A to H and a remaining portion (“the deed poll”).  As the plaintiff’s and the defendant’s father have been occupying Lots 420E and 420F since 1957, it was mutually agreed in 1982 that the plaintiff would be assigned Lot 420E and the defendant’s father would be assigned Lot 420F.

6.  After the execution of assignments of the sub-division by deed poll on 29 April 1982, the Kwok family erected a fence enclosing Lots 420E and 420F from the other sub-lots.  There was no fence separating Lots 420E and 420F as the Kwok family members enjoyed good relationship at the time and the two lots were used in common by the Kwok brothers and their families.

7.  In or around 2004, the relationship between the Kwok family members deteriorated and disputes over the boundaries of Lots 420E and 420F arose.  The defendant erected a boundary by means of a fence, a brick wall and a metal gate in Lots 420E and 420F without the plaintiff’s consent in 2006.  The plaintiff asserted that the boundary fence erected by the defendant failed to delineate the exact boundary between Lots 420E and 420F.

8.  In the present action, the plaintiff claims the defendant has trespassed upon his land, he seeks a declaration that the defendant should dismantle the fence, the brick wall and metal gate and removal of his belongings from Lot 420E and an injunction against the defendant and his servant or agent from trespassing on his land at Lot 420E.  The application is opposed by the defendant who claims that the present land boundary marked by the fence and brick wall correctly delineated Lots 420E and 420F.

9.  It is necessary in these proceedings to find out if the fence and brick wall erected by the defendant correctly delineated the boundary of Lots 420E and 420F.  The plaintiff indicated at the trial he is no longer seeking damages in the present proceedings.  Both the plaintiff’s and the defence counsel agreed the key to the issue is in the construction of the sub-division deed and the sub-division plan attached to it.

The plaintiff’s case

10.  The plaintiff claimed that the outside boundaries of Lots 420E and 420F as a whole have remained the same between 1956 and 2006.  He relied on the plan marking the boundary prepared by his surveyor Mr Eric Tang.  Mr Tang’s findings were reached by applying acetate sheets overlaid onto the aerial photograph taken in 1956, together with the survey sheets showing the occupation in 1967, 1969, 1978, 1985 and 2006 in support.  He claimed that in spite of the inconsistencies and scaling errors of the sub-division plan, the enlarged sub-division plan when superimposed on the aerial photograph of 1981 of the same area, showed the outside boundaries of Lots 420E and 420F were broadly consistent.  The fencing at Lots 420E and 420F together as a whole also matched the dashed lines seen at the plan at p 92 of bundle A (p 93 of bundle A).

11.  Mr Eric Tang further stated that he reached his conclusion on the boundary between Lots 420E and F (p 7 of bundle A) based on the Government District Officer’s survey records and aerial photographs between 1956 and 2008.  At paragraphs 33, 36 and 37 of his report of 13 May 2009 he said:-

“33. The depictions on the aerial photographs/survey sheets of Years 1956, 1963, 1967, 1969, 1977, 1978, 1981, 1982 and 1985 reveal that there is no significant change in the ground occupations of the Subject Lot and its adjoining sub-lots of Lot 420 over these years.

36. The ground situations as obtained in our boundary surveys and site inspection in Years 2006, 2008 and 2009 are found consistent with the previous aerial photographs/survey sheets depictions in general. But free standing wall and fence are found erected since Year 2006, which intend to separate the Subject Lot and its adjoining Lot 420 S.F, with reference to the defined boundary of Lot 420 S.F at the survey record plan no. SRP/YL/002/118/420F-D. After that, the harmonious relationships and occupations among the Subject Lot and its adjoining sub-lots of Lot 420 since Year 1956 are then destroyed.

37. Under our boundary definition of the Subject Lot, the shapes and size of the Subject Lot and its adjoining sub-lots of Lot 420 are generally retained.  Also the peaceful ground occupations since Year 1956 among these lots are also preserved.”

12.  Mr Tang’s plan on the boundary relationship of Lots 420E and F at appendix 23 (see annex A) was based on the survey record filed in the Land Registry at appendix 22 (p 85-87 of bundle A).  The plaintiff’s plan annexed to the statement of claim is also based on this plan (see annex B).

13.  It is the evidence of the plaintiff, Kwok Ping, that since the defendant’s father and his father settled and cultivated the land in Lots 416 and 420 in 1957, the plaintiff’s family lived on Lot 416B while the defendant’s family lived on Lot 416C with their houses facing each other.  The two families were living harmoniously on the land and carrying on farming activities at Lots 416 B and C and 420 E and F until 2004.  When Lots 416 and 420 were sub-divided by the deed poll in 1982, with the consent of his father, the plaintiff and his wife become the registered owners of Lots 420E and 416B respectively.  

14.  The plaintiff, Mr Kwok Ping, claimed that the Kwok family reached an oral agreement with the other tenants namely Kwok Wing Fui, Cheung Chun Chun and Siu Kuk Chan to jointly purchased Lot 420 which would be sub-divided and assigned to each tenant according to the specific portions of land each of them occupied and farmed since 1957 (“the 1^st oral agreement”).  That it was on this basis that the deed poll was executed in 1982.  He further claimed that when the deed poll was executed, his uncle (the defendant’s father Kwok Hon Lam) and his father (Kwok Hon Kin) agreed that the boundary separating Lots 420E and F fell on the pathway leading into the pig shed through the door cutting the shed into two portions, the top portion from the pathway belonged to him and the bottom portion from the pathway belonged to the defendant’s father (“the 2^nd oral agreement”).  Further, he would be named the registered owner of Lot 420E instead of his father.  He also claimed he was consulted by his uncle throughout the period of negotiations on the joint purchase of Lot 420 with the other tenants.

15.  In 2004, negotiations on the boundary of Lots 420E and F took place on a number of occasions between members of the two families.  In June 2006, with the assistance of a fellow villager, the two families reached an agreement on the boundary between Lot 420E and F; they agreed to erect a boundary wall between Lot 420E and F.  Unfortunately, the defendant reneged on the agreement and continuous disputes on the boundary erupted when the defendant unilaterally erected a fence, a brick wall and a gate in August and October 2006.

16.  The plaintiff claimed that as a result of the fence and wall erected by the defendant, the land occupied by the defendant became larger than that occupied by the plaintiff.  He pointed out that the land at Lot 420E according to the deed poll was 0.07 acre (283.5 square meter) while the land at Lot 420F was 0.06 acre (242.8 square meter).  He claimed the defendant’s fenced area of Lot 420F is now bigger than Lot 420F.  According to the surveyor Mr Eric Tang’s survey report, the defendant had erected the fence, brick wall and gate on land belonging to Lot 420E.

The defence case

17.  The defendant is the fifth child of his father, Kwok Hon Lam, the elder brother of the plaintiff’s father Kwok Hon Kin.  The defendant purchased Lot 420F from his father in 2000 and became the registered owner of Lot 420F. 

18.  He agreed that Lots 420E and F were not separated by any boundary wall or fence after Lot 420 was subdivided into A, B, C, D, E, F, G, H and RP by deed poll in 1982.  Both families continued farming and rearing pigs and poultry at Lots 420E and F for a few years after 1982; not long after, the defendant’s mother stopped farming the land and took up a job at a restaurant, his father also stopped farming the land two to three years later.  The same fields were then farmed only by the plaintiff’s father Kwok Hon Kin and the plaintiff erected a small farm shed on Lot 420E in 1992.  The defendant claimed that in or about 2000, the two lots were no longer farmed and the sheds were left in a state of dereliction.

19.  He agreed that between 2003 and 2006, he and the plaintiff’s family had a dispute over the road access at Lots 416B and C and the parties began to negotiate on the division of Lots 420E and F.  They were not able to reach an agreement over the boundary dividing Lots 420E and F.  The defendant then engaged a land surveyor Mr Helicon Ma to conduct a land survey on Lots 420E and F in July 2006.  The fence and brick wall was erected in accordance with Mr Ma’s boundary survey results.

20.  The defendant’s land surveyor Mr Ma expressed the following in his expert report of 28 June 2011:-

“5.6 To repeat my survey in 2006 with more detailed information – The outer boundary of parent Lot 420 was checked against the Government records and boundary on Lot Index Plan. As most of the D.D. boundary lines (shown thick black dashed lines) fallen closely on the existing ground features, there would be no problem to re-establish the parent Lot 420 close to D.D. boundary.

5.7 For division boundary lines within parent Lot 420 on Lot Index Plan (shown thick black dashed lines) were compared and found consistent graphically with those shown on the registered division plan no. YPS 171.

5.8 A check list on areas by scaling from Lot Index Plan comparing with the registered areas was prepared in my survey report (Appendix 8). The total areas of all sections scaled from Lot Index Plan are 0.69 ac. while the registered area of parent Lot 420 recorded in Schedule of Crown Lessees (Appendix 4) is 0.68 ac with 0.01 ac. in excess. This confirms each section could be re-defined to have correct areas within the parent lot boundary.

5.9 A proposed adjusted division lines with correct registered areas for S.E, S.F, S.G and S.H as shown in green coloured lines was prepared at Appendix B in my submitted report at Appendix 8.

5.10 When working starting from southern sections i.e. S.G, S.H and S.F with correct registered areas, the rest sections at the northern bound of S.F and H would reserve sufficient areas for further boundary determination for S.E ….. S.A and R.P.

5.11 Based on my proposal above (Appendix B) and the site measurements, boundary for S.F were defined on survey record plan no. SRP/YL/002/118/420F-D as described in my report (Appendix 8).

5.12 I also explained to my client that the area as shown in red colour on my survey plan at Appendix 8 was the portion of land belonged to S.H on which they have occupied and enjoyed by adverse procession for over twenty five years.”

21.  It is Mr Ma’s survey findings that in fact, the two Kwok families have been occupying 0.02 acre (780 square feet) of Lot 420H on the south west side according to land survey records and they have also been in adverse possession of the land against the owner of Lot 420H (see para 5.12 of the report on p 109 and Appendix B at p 125).

22.  Mr Ma concluded that the surveyed area of Lot 420 F which is 0.06 acre is agreeable with the Land Registry record.  The result of his survey was the boundaries of each sub-lot in 420 varied from the lot index plan and the division plan, he recommended that each section be re-defined to correct the areas within the parent lot boundary.  He further proposed adjusted division lines with corrected registered areas for lots 420E, F and H in the plan at appendix B of his 28 June 2011 report (see annex C).

The issues

23.  In order to determine whether the defendant has trespassed onto the plaintiff’s land and erected the fence and brick wall on the plaintiff’s land, the boundaries of Lots 420E and 420F have to be verified.

24.  The plaintiff asserted that before the deed poll was executed on 29 April 1982, Lot 420 was jointly owned by the Kwok family and the three other tenants after the execution of the assignment of Lot 420 on 18 March 1979, there was an oral agreement between the four joint tenants that each tenant would receive a sub-divided lot in respect of the land each of them have been occupying and farming (“the 1^st oral agreement”).  Consequently, in 1982, the deed poll was executed on 29 April 1982.

25.  The plaintiff further asserted that his father and the defendant’s father also agreed orally when the deed poll was executed the boundary between Lots 420E and F would cut through the pig shed straddling the 2 sub-lots following the footpath that led into and through the pig shed (“the 2^nd oral agreement”).

26.  The assertions are disputed by the defence as the defence submitted the only issue to be determined is the construction of the deed poll on the sub-division plan attached and no extrinsic evidence on any oral agreement prior to the execution of the deed poll should be admitted contrary to the parole evidence rule.

27.  The defence further claimed that in seeking construction by the court of the deed poll the plaintiff is in fact trying to rectify the written contract (the deed poll) without pleading it.  The defence relies on para 5-122 of Chitty on Contract vol 1 13^th ed page 497.

The law

28.  Chitty on Contract vol 1 para 5-122 states:-

“Proof of mistake.  The burden of proof is on the party seeking rectification.  He must produce “convincing proof” not only that the document to be rectified was not in accordance with the parties’ true intentions at the time of its execution, but also that the document in its proposed form does accord with their intentions.  It is essential that the extent of the rectification should be clearly ascertained and defined by evidence contemporaneous with or anterior to the contract.  The denial of one of the parties that the deed as it stands is contrary to his intention ought to have considerable weight, and unless the other party can convince the court that the document does not represent both parties’ intentions at the time of execution, rectification will only exceptionally be ordered.”

29.  In Chitty on Contract vol 1 paras 12-117 to 118 at pp 876 to 878, the author said:-

“12-117   Evidence in aid of interpretation.  Different considerations apply to the admissibility of extrinsic evidence to interpret or explain a written agreement.  Extrinsic evidence of this sort does not usurp the authority of the written document or contradict, vary, add to or subtract from its terms.  It is the writing which operates.  The extrinsic evidence does no more than assist in its operation by assigning a definite meaning to terms capable of such explanation or by pointing out and connecting them with the proper subject matter.  Accordingly, no “parol evidence rule” (in the sense referred to above) will apply to such a situation.  However, the nature of the evidence that may be adduced, and the purposes for which it may be used, are subject to certain restrictions imposed by the law.

12-118  Evidence of surrounding circumstances.  Thewillingness of the courts to admit extrinsic evidence as an aid to the interpretation of a written contract was established as long ago as 1842 by Tindal C.J. in Shore v Wilson, when he said:

“The general rule I take to be, that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that in such case evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument, is utterly inadmissible …… The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party.

……

The more modern view, however, is that the words do not have to be vague, ambiguous or otherwise uncertain before extrinsic evidence will be admitted.  Since the purpose of the inquiry is to ascertain the meaning which the words would convey to a reasonable man against the background of the transaction in question, the court is free (subject to certain exceptions) to look to all the relevant circumstances surrounding the transaction, not merely in order to choose between the possible meanings of words which are ambiguous but even to conclude that the parties must, for whatever reason, have used the wrong words or syntax.  So the court is entitled (and, indeed, bound) to enquire beyond the language of the document and see what the circumstances were with reference to which words were used, and the object appearing from those circumstances which the person using them had in view.  The court must place itself in the same “factual matrix” as that in which the parties were.  In Reardon Smith Line Ltd v Yngvar Hansen Tangen, Lord Wilberforce said:

“No contracts are made in a vacuum; there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as ‘the surrounding circumstances’ but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the geneses of the transaction, the background, the context, the market in which the parties are operating.”

He further stated that, just as the intention of the parties is to be ascertained objectively, so also:

“…… when one is speaking of aim, or object, or commercial purpose, one is speaking objectively of what reasonable persons would have in mind in the situation of the parties.”

30.  The plaintiff did not ask for rectification of the deed poll, therefore, rectification is not relevant or applicable in this case.

31.  I adopt the modern view set out above that admitting extrinsic evidence on the surrounding circumstances in order to interpret or explain a written document may be necessary when the instrument is vague and ambiguous.  The dictum of Tindal CJ in Shore v Wilson (1842) 9 Cl & Fin 355, at p 565 referred to in Chitty on Contract vol 1 para 12-118 above clearly expressed the modern approach to construction of an instrument.  That in order to obtain the true interpretation of an instrument and the parties’ true intention, it has always been an exception to the parole evidence rule where doubt arises upon the true sense and meaning of the words themselves, or when difficulty arises as to their application.  Extrinsic evidence may be admitted when the instrument itself does not make sense or speak the real mind of the parties.  The background, the context, the market in which the parties are operating therefore would be the relevant surrounding circumstances.

32.  Lord Hoffmann made a similar observation in Investors Compensation Scheme Ltd v West Bromwich Building Society & Another [1998] 1 WLR 896 where he laid down the modern approach to interpretation of contractual documents.  He held at p 912 F – 913E:-

“I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed.  I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 W.L.R. 1381, 1384-1386 and Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, is always sufficiently appreciated.  The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life.  Almost all the old intellectual baggage of “legal” interpretation has been discarded.  The principles may be summarized as follows.

(1)  Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)  The background was famously referred to by Lord Wilberforce as the “matrix of fact” but this phrase is, if anything, an understated description of what the background may include.  Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3)  The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent.  They are admissible only in an action for rectification.  The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life.  The boundaries of this exception are in some respects unclear.  But this is not the occasion on which to explore them.

(4)  The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words.  The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] A.C. 749.

(5)  The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents.  On the other hands, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”

33.  This approach was accepted by Hunter J in the Hong Kong case of Lintock Co Ltd v Attorney General [1985] 2 HKC 555.  In that case, the schedule of the block crown lease of Lot 482 in DD 451 in the New Territories described the size of the lot as ‘0.127 ac.’, it further described it as ‘House (in ruins)’, and categorised it as second-class house.  On the plan with the figure 482 marked, when scaled up on a modern plan was about 1.27 acres in extent, a small house was marked on the right hand boundary of the plot.  Hunter J came to the conclusion that the land was only 0.01 ac.  He held at p 557 F-H:-

“So I am faced here with two widely different contentions on the meaning of this demise. The first question that arises is to what documents, to what evidence do I look now in an attempt to resolve this matter. The plaintiffs argue that I should not look beyond the four corners of the Deed. They argue, I think, correctly, that the documents of title here are the Lease, the Schedule and the plan. They say that I should construe this document by reference only to those documents. I cannot agree for two reasons. First, it seems to me that in any event I would be entitled to look at what Lord Wilberforce calls ‘the matrix of surrounding fact, particularly in his opinion in Reardon Smith Line Ltd v Yngvar Hansen Tangen [1976] 1 WLR 989.

Secondly and more particularly, in this case I have got a document which is very far from clear within its four corners.”

34.  He further held at p 559A – E:-

“In those circumstances it seems to me impossible to extract the parties’ intention with any sort of clarity from the four corners of this documents I have got to go outside it. I have got to look at all the surrounding circumstances. But this is a process of construction, not rectification. It is a process of construction even though is leads me to adopt one or other of the parties’ extreme contentions, which I have already indicated, which lead to the rejection of some part or other of the document.

It seems to me that in the context of an argument about the construction of the document, this course is open to parties, and particularly to defendants on pleadings.  There may be a case for saying that this practice should be changed, and that parties who are going to invite the court to look at a surrounding matrix of facts should plead that matrix.  I can see arguments both ways.  But at the present moment I do not think that the practice requires that to be done.”  

35.  In the Court of Appeal case of Secretary for Justice v Wing Lung Wai Community & Ors [1999] 3 HKC 580, where the plan annexed to the block crown lease was no longer legible, Chan CJHC (as he then was) held at p 588 A-G:-

“In my view, different conveyances use different descriptions of the parcel of land to be granted and adopt different formulae with regard to the use to be made of the plan annexed to the conveyance. If there is a dispute with regard to what is actually conveyed, that is a matter of construction of the whole conveyance, including the parcel clause and the plan, in the light of other relevant surrounding circumstances. The object is to ascertain what the parties intended to be passed under the document and what is passed. I would respectfully agree with what Buckley LJ said in Wigginton & Milner Ltd v Winster Engineering Ltd at p 445g (All ER), p 1473 (WLR)):

When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties’ intention the court must of course give effect to that stipulation.

In previous decided cases where phrases such as ‘more particularly delineated’, ‘more particularly described’, or ‘more precisely delineated’ were used in connection with plans annexed to the relevant conveyancing documents, they are cases in which the court held that upon the true construction of the conveyance in question and in the circumstances of these cases, the parties intended to and had agreed to give priority to the plans.  In every case, it is still a matter of construction of the relevant document as a whole in order to ascertain the intention of the parties.  As Hunter J said in the Lintock case, if it is impossible to extract the parties’ intention with any sort of clarity from the four corners of the document, the court had to look at all the surrounding circumstances.”

In the Wing Lung Wai Community case, the Court of Appeal found the clear and unambiguous statement in the schedule on the area to be granted and the crown rent payable were important matters in the construction of the document rather than placing reliance on the illegible plan to reflect the intention of the parties.

36.  Based on the aforementioned authorities, it is clear the issue here is one of construction, not rectification when it is unclear what is the boundary between Lots 420E and F under the deed poll and the plan annexed.  Furthermore, extrinsic evidence and surrounding circumstances that formed the factual matrix of the case should be admitted and considered when the instrument and/or the plan are ambiguous and unclear requiring the court’s construction.  I will therefore admit the evidence of the plaintiff on the background, the surrounding circumstances and the agreement between the four tenants before the execution of the joint assignment in 1979.  I will also take into consideration the plaintiff’s evidence on the 2^nd oral agreement between the plaintiff’s father and the defendant’s father in 1982 when the deed poll was executed.  I have also considered the statements of the defendant’s father made in these proceedings and to the police in 2007 and 2006 respectively produced by the defendant.  I bear in mind he did not give evidence at the trial and was not cross-examined on his evidence.

37.  The ambiguity in the deed poll is in the sub-division plan annexed to the sub-division deed (‘the 1^st deed poll’) when compared to the plan annexed to a second copy of the same instrument kept and produced by the defendant (‘the 2^nd deed poll’).  The two plans are found at p 51 and p 51C of bundle B.  A copy of the enlarged plans at p 51 and p 51C have been produced at the trial for easy reference (see annex D and E). 

38.  Mr Chan, counsel for the plaintiff, submitted that “where there are two documents both fully executed by each party, both are considered primary evidence” citing para 41-11 of Phipson on Evidence 17^th ed.  He urged the court to take both sub-division plans into consideration.

39.  A comparison of the p 51 and p 51C plans and the signatures of the 4 parties to the two copies of deed poll produced showed that the second (p 51C) copy of the plan did not derive from the first (p 51) plan because not only were the shapes and appearances of the sub-divided Lots 420E, 420F and 420G different, the signatures of the four parties signed by the same 4 persons though similar were not identical.  The 1^st deed poll with a memorial number YL 262581 indicated it was a copy of the registered deed poll at the Land Registry, while the 2^nd deed poll is a certified true copy of the Land Registry.  Thus, both the 1^st and 2^nd deed polls are authentic.  They both bore the execution date 29 April 1982.

40.  The evidence of the two deed polls indicated both were signed and executed at the same time.  One of the two was then taken to the Land Registry for registration by the parties’ then solicitors Messrs Wong, Hui and Souza.  However, I cannot accept the defendant’s counsel’s submission that the fact the 1^st deed poll was taken to the Land Registry for registration, indicated a conscious intention to choose the 1^st deed poll over the 2^nd deed poll or that an inference can be drawn that the 1^st deed poll is binding while the 2^nd deed poll was not meant to be binding.

41.  Special attention should be addressed to the ‘Note’ column in the plan and the remarks just above the 4 signatures which stated:-

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

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

42.  As all four parties signed on both the 1^st and 2^nd deed polls and the two annexed plans, indicating their agreement to the 2 sub-division plans annexed to the two deed polls, and when the shapes and boundary lines of Lots 420E, F, G and H appeared to be different in the 2 sub-division plans, there are clear ambiguities in the boundaries of the sub-divided Lots 420E, F, G and H (see annex D and E).

43.  The defendant’s expert Mr Ma admitted in court that he had based his survey report on the plan annexed to the 1^st deed poll, at the time, he was not aware there was a 2^nd sub-division plan annexed to the 2^nd sub-division deed poll.  I believe, had he relied on the 2^nd deed poll plan, Mr Ma’s conclusions and survey results and the plans he prepared in appendix B and appendix 8 of his report would be different, it is possible new boundaries of Lots 420E, F, G and H would appear in his report.

44.  As to the plaintiff’s surveyor Mr Tang’s survey report, he made use of not only the Land Registry lot index plans and survey records, he had also compared them with the aerial photographs of the same area in 1956, 1963, 1967, 1969, 1977, 1978, 1981, 1982 and 1985.  He found there was no significant change in the ground occupations at Lot 420 and its sub-lots throughout that period.  This finding is consistent with the background history related by both the plaintiff and the defendant.

45.  Both Mr Ma and Mr Tang agreed that up to the 1980’s the District Land Office in the New Territories would send land demarcators to the premises and ask the owners of the lots to indicate the boundaries of their respective lots before a sub-division plan of the lot was drawn, the sub-division boundaries would then be marked on the District Land Office’s lot index plan and the sub-division plan of the lot would be created.  Both counsel for the parties agreed the land demarcators were not qualified land surveyors and they would not carry out a survey of the land in question or prepare a survey plan of the sub-divided lots.

46.  In the joint expert report of Mr Ma and Mr Tang, at paras 30 and 31 Mr Tang said:-

“30. These plans shall (sic) be identical. However, while comparing this plan from the one kept in Land Registry, the division lines between the 420 S.D, 420 S.E, and 420 S.H are slightly different. As mentioned, this slight different (sic) may cause a huge error, 1 mm measuring error lead to 4m on ground. This error could not be affordable while the property being subdivided.

31. In facts (sic), the scale of this division plan is too small to reflect and show the actual occupation on ground.  If this division plan is scaled out to determine the boundaries of each carving out lot, it is quite reasonable that it is slightly difference (sic) from the ground occupation.”

47.  According to Mr Ma’s evidence in court, the land survey industry itself recognises the scaling error in the lot-index plans.  Further , it is a general land survey practice in the New Territories to accept 10% + 20 square meters as a tolerable discrepancy.  Given the registered area of Lot 420E is 283.29 square meters (0.07 ac) and Lot 420F is 242.82 square meters (0.06 ac), a scaling discrepancy of 10% + 20 square meters would result in a vast difference in the size of the two lots.  The inadequacy of the plans attached to instruments is recognised by the Hong Kong Government in 1994 when the Land Survey Bill was proposed in the Legislative Council where the then Secretary for Planning, Environment and Lands said at the second reading of the bill:-

“At present, Hong Kong has no statutory regulation of standards of land boundary surveys or how such surveys should be carried out. There is also no requirement for land boundary plans to accompany instruments registered in the Land Registry under the Land Registration ordinance. Although plans are usually attached to the instruments for registration purposes, they are of varying degrees of accuracy and reliability. This has resulted in boundary disputes and could, in some cases, give rise to delays in land development and loss of investment in land. It has also made it impossible for the Government to set up an accurate land record system, thus affecting the effectiveness of land administration.”

48.  On the aforesaid basis, I am satisfied that the discrepancies in the two sub-division plans annexed to the 1^st and 2^nd deed polls and the way the sub-division plans annexed to the deed polls were prepared, whether they be registered at the land office or not, were for the purpose of indication and identification only; as expressed in the ‘Note’ of the plans, the Land Registry made it clear that it is not responsible for the accuracy of the sub-division plans.

Extrinsic evidence to be considered

49.  Both the plaintiff and the defendant agreed the Kwok family members in 1982 were living and working on the land peacefully as one family.  The boundary between Lots 420E and F was not of great importance because the 2 sub-lots were used jointly by them.  Hence, they did not erect any boundary walls in 1982.  Unfortunately, 20 odd years later, the Kwok family members developed a boundary dispute on the two sub-lots which remained undivided until the defendant built a fence and brick wall on the land based on Mr Ma’s 2006 survey.

50.  The defendant’s case is based on his own evidence and the evidence of his sister Kwok Ting Chi.  As to Mr Kwok Hon Lam’s evidence, it was limited as he was not called as a witness at the trial, his statement written in 2007 prepared by the defendant’s sister Kwok Ting Chi was produced as an attachment to her witness statement.  It is said that Mr Kwok senior is now suffering from dementia and cannot give evidence in court.

51.  The plaintiff who is much older than his cousins, the defendant and his elder sister Kwok Ting Chi, was 27 years old and contributed his income earned outside the family farm to the Kwok family when Lot 420 was jointly purchased by the 4 tenants.  He claimed he was present at many of the meetings of the 4 tenants before the purchase in 1979 and he was consulted by his uncle Mr Kwok Hon Lam when the lot was purchased.  He claimed personal knowledge of the oral agreement that led to the execution of the purchase and the 1982 deed poll.  He further claimed there was an agreement between his father and his uncle Mr Kwok Hon Lam that the boundary between Lots 420E and F cut through the pig shed along the pathway, and that the portion on the top of the path belonged to 420E while the bottom portion belonged to 420F.

52.  There was no evidence from the defence to contradict this claim.  On the basis that Mr Ma’s survey report was based solely on the 1^st deed poll sub-division plan, I am not satisfied that the fence, brick wall and gate erected by the defendant accurately reflected the boundaries between Lots 420E and F. Neither does the present fenced boundary of Lots 420E and F reflect the surveyed areas of the two sub-lots according to Mr Ma and Mr Tang.  Both Mr Ma and Mr Tang proposed to redraw the boundaries based on survey records at the Land Registry.

53.  I am satisfied that when the defendant’s father built the pig shed, he intended the two Kwok families to share it, that was why the pig shed straddled Lots 420E and F.  The footpath was a convenient mark for demarcating the boundary of the two sub-lots. On the aforesaid basis, I am satisfied the footpath delineated the boundary between the two sub-lots, therefore, the defendant should remove the fence, the brick wall and the metal gate he erected on the plaintiff’s Lot 420E.

Adverse possession

54.  Whether the two Kwok families have been in adverse possession of a portion of Lot 420H is not an issue in the present action.  It is obvious, if the two experts’ surveys are accepted, that a portion of Lot 420H have been encroached upon by the Kwok family.

55.  For reasons set out above, I allow the plaintiff’s claim and grant the declaration sought by the plaintiff.  I order the defendant to remove the wire fence, brick wall and metal gate and all his chattels on Lot 420E.  I further grant an injunction sought by the plaintiff against the defendant, his servant, agent or contractor from trespassing on to Lot 420E.

56.  Costs to follow the event, the defendant to pay the plaintiff’s costs in these proceedings to be taxed if not agreed with certificate for counsel.