LIU MA CHEUNG AND OTHERS v. LIAU YIN FU

HCA181/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 181 OF 2004

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JUDGMENT

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The parties and their claims

1. The plaintiffs are the registered owners of Lot No. 329 (“Lot 329”) in Survey or Demarcation District No. 206 (“DD 206”) in the New Territories.

2. The defendant is the registered owners of Lot No. 325 (“Lot 325”) in DD 206.  He also owns Lot No. 326 in DD206.

3. The 2^nd third party is an authorised land surveyor under the Land Survey Ordinance, Cap. 473, and a director of the 1^st third party which is a company carrying on the business of surveying.

4. In about 2002, the defendant built a house (“the defendant’s house”) on a piece of land delineated by the third parties as Lot 325.

5. On 31 January 2004, the plaintiffs issued the writ in this action against the defendant alleging that part of the defendant’s house trespassed on their land, Lot 329.

6. The defendant puts the plaintiffs to proof.  There is no counterclaim.  The defendant joined the 1^st and 2^nd third parties as third parties, alleging negligence against both and breach of statutory duties under section 28 of the Land Survey Ordinance against the 2^nd third party.

7. Both third parties deny liability.

Plaintiffs’ root of title for Lot 329 – the block Crown lease

8. The block Crown lease is the plaintiffs’ root of title for Lot 329.  The copy block Crown lease in the trial bundles prepared by solicitors for the plaintiff is hardly legible.  I asked for a legible enlarged copy or an agreed typed transcript of the block Crown lease and was supplied with enlarged copies of copies of the block Crown lease.

9. Based on what I can make of the enlarged copies of copies, the block Crown lease dated 27 March 1905 provides, so far as relevant, as follows :

“

His Majesty … hereby grant and demise unto each Lessee All that piece or parcel of ground situate, lying and being in Survey District No. 206 [illegible] in the New Territories in the Colony of Hongkong set out and described in the Schedule hereto opposite to the name of such lessee And which said piece or parcel of ground is more particularly delineated and described on the plan or plans of Survey District No. 206 [illegible] attached hereto according to the lot number set out in the Schedule hereto opposite to the name of such Lessee and marked on the said plan”.

The relevant description in the Schedule is :

Lot No.	Term of lease in years	Area	Description of Lot	Name of Owner		Address	Crown Rent
				Chinese	Transliteration		Class	$	¢
325	[75]	.01	Latrine	張定清 張定礼 張定標	Cheung Ting Tsing Cheung Ting Lai Cheung Ting Pui	[烏溪沙]	" [Note : item above Lot 325 not legible]		50
329	[75]	.01	[Latrine]	廖己發	Liu Ki Fat	[烏溪沙]	"		50

Delineating on the ground the land granted as Lot 329

10. Under the block Crown lease, what was granted and demised as Lot 329 was “more particularly delineated and described on the plan or plans of Survey District No. 206 [illegible] attached hereto”.  The location and boundary of Lot 329 was defined in the Survey District plan (“DD sheet”).

11. The original DD sheet was prepared with a scale of 1 :1980.  With such a scale, delineating on the ground what was granted under the block Crown lease and delineated on the DD sheet as Lot 329 is a difficult job.  To illustrate this point, an error of 1 mm in projecting the DD sheet onto the ground would result in an error of 1980 mm, or 1.98 metres, on the ground.  An error of 1.42 mm in projecting the DD sheet onto the ground would result in an error of 2.81 metres (the significance of which will appear below) on the ground.

12. In addition to this general difficulty, Lot 329 is an isolated lot.  According to Dr Conrad Tang, an expert witness called by the third parties, whose evidence on this point I accept :

(a)	the DD sheet shows there was a cluster of seven independent or isolated lots, with sizes relatively smaller than the village houses, on the north-eastern corner of the village;
(b)	four of those lots were claimed and were granted as Lots 325, 326, 327 and 329 under the block Crown lease, all described as “latrine” with a recorded area of 0.01 acre each (that is to say, 435.6 sq. ft) at a rental of $0.50; and
(c)	Lots 328, 330 and 331 were not claimed and were not granted under the block Crown lease.

13. The District Survey Office, Shatin, has no record of any survey of Lot 325 or Lot 329 carried out before 1998.  By 1998, there was no definitive reference point on the ground.  While there was at that time a ruin at about the location where the defendant later built his house, it begs the question whether the house which was there before it became a ruin stood on Lot 325 (or part thereof) or Lot 329 (or part thereof) or any other land.

The DD sheet

14. In my judgment, one must start by looking at the block Crown lease and the delineation of Lot 329 on the DD sheet in resolving this location and boundary dispute.

15. The following (not to scale) is a reproduction of the relevant part of page C269 in the trial bundles to show the positions of Lots 325, 326 and 329 as delineated on the relevant part of the DD sheet :

DD Sheet

2^nd third party’s delineation

16. In 1998, the 2^nd third party was instructed by the defendant to delineate Lots 325 and 326.  The following (not to scale) is a reproduction of the relevant part of the plan dated 9 December 1998 showing the 2^nd third party’s delineation of Lots 325 and 326 :

2^nd third party’s plan

17. On this plan, Lot 325 overlapped what was described as a “Ruin”.  “TS” is an abbreviation for “temporary structure”.  On the evidence, some “temporary” structure or structures lasted longer than some structures described as “brick house”, “latrine” or “pigsty”.

Mr Henry Chan’s delineation

18. On about 25 November 2002, Mr Henry Chan Hon Kwan (“Mr Henry Chan”), an authorised land surveyor, delineated Lots 325 and 329 on the instructions of the plaintiffs through Essential Surveyors Co.  The following (not to scale) is a reproduction of the relevant part of the plan showing Mr Henry Chan’s delineation (see also the plan in the paragraph below) of Lots 325 (2, 3, 4 and 5) and 329 (A, B, C and D) :

Mr Henry Chan’s plan

19. On Mr Henry Chan’s delineation, a “temporary structure” (6, 7, 8, 9, 21, 22, 23 and 24) overlapped Lot 329 (A, B, C and D) as delineated by him.  The following (not to scale) shows the overlap according to Mr Henry Chan :

Mr Henry Chan’s plan

Instructions to Mr Ted Chan and his delineation

20. By fax dated 22 July 2003, Ms Jasmine S.M. Yu, counsel, wrote on behalf of the plaintiffs to Ted Chan & Associates Ltd as follows (written exactly as in the original) :

“	Re : Lot 329, DD 206 Wu Kai Sha
	I am writing to furnish with details from my clients, owners of the captioned lot, for your reference.
	It is my instruction that a brick house of their ancestors in the above lot was there already as shown from the aerial photos even when the British took over the New Territories in 1898 and before the DD sheet was drawn in 1905.  The house was later assigned the above lot number by the British government so that the clients cannot be wrong that the above lot where the brick house was situated belongs to them and the boundary must be the boundary of the then brick house which is now occupied by a Small House of the owner of Lot 325.  The client may later supply evidence on this point by necessary documents.  Besides, all neighbours know and could testify to the fact that the clients’ land in Lot 329 has been occupied by someone else now.
	The Lot 325 was situated on the road where was circled.  [See attached]  The owner of the lot 325 was probably duped into believing that Lot 329 was Lot 325 which they have bought.
	Please let me know your quotation to the above report soon.”

There was no indication on the face of the fax that it was copied to any solicitor, lay client or any body else.

21. By an undated fax said to be transmitted on 18 August 2003, Ms Jasmine S.M. Yu, counsel, wrote again to Mr Eric Wong of Ted Chan & Associates Ltd.  Counsel’s hand-written fax reads as follows (written exactly as in the original) :

“	Dear Mr. Wong,
	Re DD169 Lot 329
	It’s our case that Lot 329 (the Client’s property) falls beyond the line drawn.  The ruin overlapping the alleged lot 325 in the Lot Index Plan is precisely the location of 329 as delineated in the DD Sheet.
	I have ample old maps, survey sheet from Shatin DLO and aerial photoes for your inspection.  Please call me at [telephone number omitted here].  I look forward to your report soon
		Jasmine Yu
		Counsel for Liu Zi Sang
	cc    Ms C Cheng, Kevin Li & Co”

22. The following (not to scale) is a reproduction of the relevant part of the plan dated 17 October 2003 by Mr Chan Tat Wing (“Mr Ted Chan”), an authorised land surveyor, showing his delineation of Lots 325 (A, B, C and D) and 329 (E, F, G and H) and the defendant’s house (see plan in paragraph below) :

Mr Ted Chan’s plan

23. The following shows how, according to Mr Ted Chan, the defendant’s house (23, 22, 42 and 16) overlaps Lot 329 (E, F, G and H) as delineated by him.

Mr Ted Chan’s plan

24. According to Mr Ted Chan, the distance on the ground between E and the interception point of the two lines, E to H and 16 to 42, is approximately 2.8 metres.  Thus, if the correct location of Lot 329 is to move the delineation shown above (i.e. E, F, G and H) by 2.8 metres in the direction of the line EH, the whole of the defendant’s house is outside Lot 329 and there is no trespass.

Documentary evidence on plaintiffs’ conduct leading to and after Mr Henry Chan’s delineation

25. The plaintiffs made no attempt to explain why Mr Henry Chan delineated the “temporary structure” (6, 7, 8, 9, 21, 22, 23 and 24) on his plan.

26. Mr Liu Se Sang testified that he immediately rejected Mr Henry Chan’s delineation and told a Mr Wong of Essential Surveyors Co. of the plaintiffs’ rejection.  The plaintiffs insisted that they had known all along that Lot 329 was situated at the brick house.

27. The documentary evidence, some of which was not disclosed by the plaintiffs until after request or under compulsion in the course of the trial, tells a different story.  I should add that the plaintiffs have still not made proper discovery even by the time the trial ended.  They restricted their discovery to (some of) the documents then in their possession.  It is trite law that discovery is not restricted to a selection of documents then in a party’s possession.

28. By letter dated 11 November 2002, Mr Liu Ma Cheung wrote to the District Lands Office, Shatin, complaining about the commencement of building work on what he claimed was Lot 329.

29. By letter dated 20 November 2002, the District Lands Office, Shatin, replied stating that Government had not determined the boundary of Lot 329 and that he should instruct professional surveyors himself to delineate his own land.

30. As noted above, Mr Henry Chan’s plan is dated 25 November 2002.

31. By letter dated 26  November 2002, Mr Liu Ma Cheung responded to the letter dated 20 November 2002 from the District Lands Office, Shatin, stating that he had no means of knowing if there was any error with land boundary (“有關地界或其他有無出錯，我不得而知”).

32. By letter dated 10 December 2002, the District Lands Office, Shatin, wrote to Mr Liu Ma Cheung informing him that the Lands Officer had received the report from the surveyors of the owner of Lots 325 and 326 confirming that the building works were being carried out within the boundaries of those two lots.

33. On about 20 February 2003, the plaintiffs paid Essential Surveyors Co. the sum of $7,000 as surveying fees.  An invoice and a receipt both dated 20 February 2003 were issued by Essential Surveyors Co to the plaintiffs.  The receipt stated that $7,000 was “surveying and delineating fee” (“測量定位費”) in respect of “DD 206 Lot 329 houselet” (“DD206 約地段 329 號屋仔”).

34. By an application dated 20 February 2003 and signed by all the plaintiffs (copy produced at trial) to the District Lands Office, Shatin, the plaintiffs enclosed a copy of Mr Henry Chan’s plan, acknowledged that there was a “temporary house” (“臨時屋宇”) on their lot, Lot 329, applied to build a village house on their lot, and added that if their application was approved, they hoped to have Mr Henry Chan to determine the boundary of the lot.

35. By letter dated 19 March 2003 (copy produced at trial) signed by Mr Liu Ma Cheung and Mr Liu Se Sang, the plaintiffs wrote to the District Lands Office, Shatin, informing the District Lands Officer that :

(a)	they had instructed a surveyor to delineate Lot 329;
(b)	there was a squat on Lot 329;
(c)	the squatter had confirmed that it was her/his structure;
(d)	the Squatter Control unit had painted in yellow a number on the squat; and
(e)	they did not rule out the possibility that the Squatter Control unit did not know that it was Lot 329, mistakenly thinking that it was Government land and requested the District Lands Officer to investigate the matter and return that piece of Lot 329 to them (“本人不排除可能當年寮仔部並不知那幅329地段而錯當是政府土地錯批他人作建築土地之用。希望貴署從速派員前往查明真相、歸還我們該幅329地段”).

36. By letter dated 28 March 2003 (copy produced at trial), Messrs Kevin Li & Co., solicitors, wrote on behalf of the plaintiffs to one Madam Yeung in respect of Lot 329 as follows (written exactly as in the original and emphasis added) :

“	Re : Lot No. 329 in D.D. 206 of Shatin, New Territories
	…
	We are instructed that our clients note that a house is erected by you on portion of above land without our clients’ consent.  Accordingly, our client has instructed a surveyor to conduct a survey over the land.  Pursuant to the Plan prepared by our clients’ surveyor (a copy of which is enclosed herewith for your reference), it reveals that the house (as shown and outlined in red) was proved to be erected on our clients’ land (as shown and colored yellow).
	In the circumstances, we are instructed to demand, which we hereby do, that unless you take immediate action to demolish the building and all fixtures and fittings erected thereon within 14 days from the date hereof, we have standing instructions to take legal action against you on behalf of our clients without further notice.
	In the meantime, all our clients’ rights are reserved herein.”

A copy of Mr Henry Chan’s plan was enclosed.  The “house” is the “Temporary Structure” (6, 7, 8, 9, 21, 22, 23 and 24) on Mr Henry Chan’s plan.

37. By an application dated 7 April 2003 and signed by all the plaintiffs (copy produced at trial) to the District Lands Office, Shatin, the plaintiffs enclosed a copy of Mr Henry Chan’s plan, acknowledged that there was an existing house (“現有屋宇”) on their lot, Lot 329, and applied to build a village house at their lot.  The plaintiffs also enclosed a plan (copy not included by the plaintiffs in the copy documents produced at trial) of their proposed new house.

38. By letter dated 11 April 2003 (copy produced at trial), the District Lands Office, Shatin, replied to the plaintiffs’ letter dated 19 March 2003 stating that land owners had a duty to protect their own land and that they should discuss with their own solicitors and contact the Squatter Control unit about squatter matters.

39. By letter dated 1 September 2003, Mr Liu Se Sang wrote to the District Lands Office, Shatin, stating that the location of Lot 329 was not clear and that there were numerous doubts (“有關我的屋地Lot No. 329 在那一方位置還沒有弄清楚是屬於誰的，因廖云富Lot No. 325 與Lot No. 329上下商 [原文照錄] 差，位置不同而且疑點多多。”).

Mr Ted Chan’s report dated 20 October 2003 (“Mr Ted Chan’s report”)

40. Paragraph 1 refers to the two surveys by the 2^nd third party and Mr Henry Chan and the instructions given by Mr Liu Se Sang to Mr Ted Chan in these terms (written exactly as in the original) :

“	The results of the two surveys showed that Lot 325 was enclosing the northwestern portion of a ruined house (hereinafter referred to as ‘the said house’) (Appendix 4 refers) whilst Lot 329 was located at the southeastern side of Lot 325 and was enclosing the northwestern portion of a temporary structure (hereinafter referred to as ‘the said TS’) (Appendix 5 refers).
	In about 2002, the registered owner of Lot 325 instructed to remove the said house and a new house was constructed later within the limit of Lot 325 as defined by Mr. Leung Shou Chun.
	The client, Mr. Liu Se Sang, one of the registered owners of Lot 329, claims that he is the owner of the said house and the location of Lot 329 shall be where the said house is.  The said house was originally a brick house, which had existed before the British took over the New Territories in 1898, and was then renovated as a pigsty.  Mr. Liu claims that it is also impossible for Lot 329 enclosing any part of the said TS because the said house was previously existing concurrently with the said TS side by side before its demolition.  Besides, Lot 325 shall be at the northwestern side of the said house.”

41. Although reference was made to the DD sheet, Mr Ted Chan used a retrace of the Control DD sheet instead of the DD sheet which as I said defines the location and boundary of Lot 329.  The Control DD sheet was retraced from the DD sheet.  The Control DD sheet’s scale was 32 inches to 1 mile (or 32 inches to 1,760 x 3 x 12 inches, i.e. 1 :1980), i.e. the same scale as the DD sheet.  The Control DD sheet was retraced and enlarged to an appropriate scale of 1 :1000 on tracing paper.  Two retracing exercises were involved — the first in preparing the Control DD sheet and the second by Mr Ted Chan’s office in preparing the transparencies.

42. The tracing paper was then superimposed on two Lot Index Plans of 1997 and 2003.  Mr Ted Chan acknowledged that there was “no reference point of co-ordinates on the Control DD Sheet” and stated that the superimposition could “only be done by reconciling with the positions of the surrounding house blocks”.

43. Mr Ted Chan went on to consider seven aerial photographs taken from 1972 onwards.  Transparencies prepared from the Control DD sheet were used for superimposing them on the aerial photographs.  Mr Ted Chan concluded in paragraph 4.5 that :

“	Lot 325 is at the northwestern side of the said house and no occupation can be found in the relevant location in all the subject aerial photographs.”

44. Mr Ted Chan went on to superimpose transparencies prepared from the DD Control sheet on 15 survey sheets based on surveys carried out from 1976 onwards.  In paragraph 5.4, Mr Ted Chan concluded that :

“	No factual occupation can be found in the relevant location on all subject survey sheets for Lot 325.”

45. By paragraph 6, Mr Ted Chan concluded by defining the location of Lot 329 “based on the position of the said house” and showed it on his plan referred to above.  Paragraph 6 reads as follows (written exactly as in the original) :

“	6.1	Upon our physical survey and the above interpretations, the boundaries of Lot 325 and Lot 329 are defined.  The result is shown on the Dimension Plan No. SRP/ST/007/4121-01/D1 annexed to Appendix 28.
	6.2	It is noted from the above interpretations that both the said house and the said TS had existed concurrently side by side since or before 1972.  The said house became ruined in the period from 1993 to 1995 and was completely demolished in 2002.  Unlikely, the said TS has existed up to the date of our physical survey although there were significant changes in its shape and scale throughout the period from 1972 to the date of our survey.
	6.3	No hints about the associations between Lot 325 and the said house and between Lot 329 and the said TS, other than neighbourhood, can be identified in the above interpretations.
	6.4	The positions of Lot 325 and Lot 329 with respect to the neighbouring blocks of house lot as shown on the Lot Index Plan ref. LIP/ST6/97 and the Control DD 206 Sheet are not consistent, but the relative position between the two lots given on the two plans are highly agreeable with each other (Appendix 1A refers).  That is, both lots were mis-positioned in the same manner.  Based on the information given on the Lot Index Plan, the boundaries of Lot 325 and Lot 329 were then redefined in problematic locations in the two surveys mentioned in paragraph 1 and are exhibited in Appendices 4 and 5.
	6.5	From the above interpretations, it can be realized that there are differences in the position, orientation and size between the said house and the delineation of Lot 329 obtained from the Control DD 206 Sheet.  Yet, the location of Lot 329 is defined based on the position of the said house due to the following  :
		6.5.1	All DD Sheets were prepared by primitive survey method in early 20th century and were then plotted in a small scale.  Enlargement of the DD Sheet delineation for correlation assuredly causes an exaggeration of errors at the same time.  Hence, such magnitude of differences is usual and acceptable.
		6.5.2	With reference to the series of aerial photographs and survey sheets interpreted in paragraphs 4 and 5 above, the said house had long existed for over 30 years before the two surveys mentioned in paragraph 1 above.  Such a long and peaceful occupation shall be regarded as an important boundary evidence.
		6.5.3	Our interpretations show that Lot 329 shall have a closer relation with the said house than with the said TS.  Being pointed out by Mr. Liu (one of the registered owner of Lot 329) and subsequently affirmed by our interpretations, such judgement is made.
	6.6	Since the said house was demolished before the date of our physical survey, the position of the said house is determined by reconciling the outlines of the said house as shown on the survey sheets interpreted in paragraph 5 above.  The dimensions of Lot 329 is determined by measuring the graphical outline as shown on the Lot Index Plan ref. LIP/ST6/97 (Appendix 1A refers) and rounding off to the nearest 0.1m.
	6.7	In our redefinition, the relative position is not adopted for the reason that the position of Lot 329 has been adjusted slightly in order to fit to the then position of the said house.  Instead, it is defined by referencing the corresponding location indicated by the DD delineation of Lot 325 as shown in Appendix 1A and 1B.
	6.8	For verification, the dimensions of Lot 325 given in Appendix 4 is compared with those obtained by measuring the Control DD 206 Sheet.  As only slight differences are found, those given in Appendix 4 is adopted in our redefinition”.

Summary of Mr Ted Chan’s report

46. It is not easy to follow Mr Ted Chan’s report.  I hope my summary below is accurate.

47. Instead of delineating Lot 329 by plotting on the ground what was delineated on the DD sheet as Lot 329, Mr Ted Chan delineated Lot 329 by reference to “the said house”, said to be a brick house which existed side by side with “the said TS” “since or before 1972”.

48. He dismissed differences in the “position, orientation and size” between the said house and the delineation of Lot 329 obtained from the Control DD sheet on the grounds that all DD sheets were prepared by using primitive survey method which meant that enlargement of the [Control] DD sheet for correlation exaggerated the errors and that the existence of “the said house” for over 30 years before 1998 was “important boundary evidence”.

Analysis of Mr Ted Chan’s delineation

49. The DD sheet might have been prepared in or before 1905 using primitive surveying tools.  But, what was granted under the block Crown lease to the plaintiffs’ predecessor-in-title was the piece or parcel of ground more particularly delineated and described on the DD sheet.  The location and boundary of Lot 329 was defined in the DD sheet.

50. There is no claim for rectification of the block Crown lease in relation to Lot 329 and the Government is not a party to these proceedings.

Legal basis for departing from DD sheet

51. The first question for consideration is whether there is any legal basis to move the location of Lot 329 as delineated on the DD sheet.

52. The defendant and the third parties submitted there is none.

53. Ms Jasmine Yu relied on the Code of Practice under the Land Survey Ordinance.  This raises the question of the legal basis for the Code of Practice to change or move land boundary, assuming that it does so.  Ms Jasmine Yu asserted that the Code of Practice was subsidiary legislation.  I invited her to make good her proposition.  I asked Mr Louie Chan to look up the Ordinance and he told me at a later stage that section 29(8) made it clear that it was not subsidiary legislation.

54. In my judgment, there is no legal basis.

55. Mr Ted Chan’s approach is flawed.  He has not delineated Lot 329 by reference to the DD sheet.  There is no evidence that any part of the defendant’s house stood on any part of Lot 329 as delineated on the DD sheet.  This is fatal to the plaintiffs’ claim for trespass.

Unreliability in this case of delineation by superimposing transparencies retraced from Control DD sheet

56. As noted above, if one moves the delineation of Lot 329 by Mr Ted Chan on his plan by about 2.8 metres on the ground in the direction of the line EH, there is no trespass.  The margin in this case is small.

57. Mr Ted Chan prepared transparencies for his correlation exercise.  The location of Lot 329 on a retrace of the Control DD sheet was shown on the transparencies.  The Control DD sheet was retraced from the DD sheet.  With a scale of 1:1980, an error of 1 mm in the retracing exercise would result in an error of 1.98 metres on the ground.  An error of 1.42 mm in the direction of the line EH in the retracing exercise would bring about the opposite result on the question of trespass.

58. The second retracing exercise was to retrace from the Control DD sheet and then to enlarge it to produce transparencies.  According to Mr Ted Chan, any error in this exercise “assuredly causes an exaggeration of errors”, see paragraph 6.5.1 of his Report.

59. The overlaying of transparencies on lot index plans, aerial photographs and survey sheets carried out by Mr Ted Chan depended on precise and correct superimposition of the transparencies on these documents.  The problem is that there was no definitive reference point and he acknowledged this in his report.  According to him, what he did was to “reconcile” with the position of “the surrounding house blocks”.  The “house blocks” were much further away and there were many houses and many “house blocks”.  I asked him to identify his precise reference points but his answers were vague and general, if not evasive.  What it boiled down to was his impression of the so-called best fit.  With respect, such approach is neither scientific nor precise.

60. In my judgment, Mr Ted Chan’s delineation by superimposing transparencies retraced from the Control DD sheet which was a retrace of the DD sheet is unreliable in the circumstances of this case.

Reliance on the existence and location of the “brick house”

61. After doing all the correlation exercises, Mr Ted Chan disregarded all the delineation according to the transparent overlay, relied on what he called occupational evidence and delineated or “moved” Lot 329 by reference to the brick house.

62. At the risk of repeating myself, what I am concerned with is the location of Lot 329 or what was referred to at times during the trial as “the 329 latrine”.  For the brick house to constitute occupational evidence, there must be evidence linking the brick house with Lot 329 as granted in 1905 and delineated on the DD sheet.

63. I asked the parties whether there was any evidence of the location of Lot 329 or the 329 latrine.  The defendant and the third parties submitted that, apart from the DD sheet, there was none.  Ms Jasmine Yu argued that there was the evidence of the first three witnesses called by the plaintiffs.  I reject their evidence and shall deal with this below.

64. There was no dispute that the 1963 aerial photographs is the earliest evidence of the brick house.  As I said, unless there is evidence to link the brick house seen in recent decades with Lot 329, the brick house does not constitute occupational evidence.

65. Not only is there no such evidence, Mr Ted Chan testified during cross-examination by Mr Chan Chi Hung SC that the brick house was “probably not” the original latrine in 1905 and that the brick house was built at a “location not the original granted”, probably shifting away.  His testimony on these points, starting with a question on his plan and the overlay at page C25 of the hearing bundles, is as follows :

“	A:	So what I am available is the 1950s onwards survey sheets and aerial photos and the brick house over there – now it’s gone, but from these photos and survey sheets they are much much bigger than the original grant.  So what I can say from after the Indian survey up to 1950 the brick house has changed something, has been at least the size of the brick house is bigger than the original grant – so its location may be moved a little bit upward – but there is no proof.  But anyway it stand there for half a century.  So still have to respect the occupation and to move it to that location.  And I moved it to this location it doesn’t mean the Indian survey has did something wrong.  I cannot make this hypothesis.  Move there is my intention to move there.
	Q:	Now, the original latrine that the Indian surveyors saw as 329 probably is was only about 100 something sq. foot, right?
	A:	Square feet.
	Q:	Yes.  And that was something you worked out from this rectangle drawn on the DD sheet.  Right?
	A:	Yes.
	Q:	Whilst the ruin for the brick house was about something like 400 sq. ft.? [Mr Chan Chi Hung SC told me at a later stage that the area he gave here was incorrect]
	A:	Yes.
	Q:	So most probably it was not the original latrine that was standing there in ... 1905, probably not, right?
	A:	Yes, probably not.
	Q:	Probably not?
	A:	Yes.
	Q:	You mean correct?
	A:	Yes, your speculation is correct.
	Q:	So it had been rebuilt?
	A:	Based on the size, yes.
	Q:	When it rebuilt, it shifted away from the location, are you saying that?
	A:	Probably, yes.
	Q:	So, which is which they shifted from the Indian surveyors drew on the DD sheet to the present ruin or the other way round?
	A:	The first what you said.
		…
	Ct:	Am I correct in interpreting your evidence as saying that when the 329 latrine was rebuilt, they rebuilt on a different location?
	A:	Sorry, in the ...
	Ct:	They rebuilt on a different location?
	A:	In the location not the original granted.  So we shifted a little bit.
	Ct:	So you would take this as a case of shifting when rebuilding rather than incorrect drawing at the time of grant?
	A:	Yes.”

66. The audio recording of the above testimony was played back in the course of the submission of Ms Jasmine Yu.  She submitted that the witness probably misunderstood.  I disagree.  His testimony started with a long answer in his own words.  He was questioned on the point about the building of the brick house at a location different from the Lot 329 location by questions couched differently and he gave the same reply.  There was no attempt during re-examination to clarify any possible or alleged misunderstanding.

67. On Mr Ted Chan’s own testimony, the brick house does not constitute occupational evidence and he erred in treating it as such.  If anything, his testimony suggests that the location of Lot 329 should be moved away from, not to, the location of the brick house.

Reliance on the plaintiffs’ instructions

68. Instead of delineating on the basis of his professional survey and correlation with the result that Lot 329 was “in the middle” of the temporary structure and the brick house, “mostly closer to the brick house”, Mr Ted Chan chose to rely solely on his clients’ instructions that Lot 329 was at the brick house.  In answer to a question by Mr Chan Chi Hung SC on the 329 latrine, he testified as follows :

“	A:	I think you misunderstand my definition.  I made the 329 to the ruined house, the brick house, because I don’t have other evidence of, this means air photos or survey sheets before 1950s.  But I have to respect the position of the original grant – this means the 329 as shown in the lot index plan.  But I also have to respect the existing occupation that I can see only – this is all the available information after the 1950s. So I have to shift this 329 to the brick house.
	Q:	Because it was closest.
	A:	Because it’s closest.  It doesn’t mean ...
	Q:	Not because it was occupied by the owner of 329.
	A:	I have to define the position of 329.
	Q:	We put aside your instruction that it belonged to the grandfather, was used by the grandfather, we put aside that, right
	A:	You can put inside, doesn’t matter.
	Q:	Now we put aside ...
	A:	No, I considered that in my correlation, I also considered whether 329 is in the TS or not when I am doing this project.  I am advised so you can take this into consideration. I know that the client said the brick house should be belonged to him. So when I am doing this project, I also considered where the 329 actually is in the TS or in the brick house.  So under my correlation, I find it is in the middle.  But mostly closer to the brick house.  So according to golden rule, I finalised the position of 329 is in the brick house.
		…
	Q:	Now, so, despite all your explanation as to the balancing between the two, at the end of the day, you put aside the DD delineation according to the transparent overlay fixed to a position by reference to the position of the village blocks and say lot 329 should be where the brick house ruin should be rather than the square drawn on the DD sheet as shown by the plastic overlay.
	A:	Yes.
	Q:	So, it’s not a balance.  You preferred the alleged occupation evidence to the DD sheet at the end of the day.  Right?
	A:	Yes.
	Q:	You don’t put it in between the square on the DD sheet and the brick house.
	A:	Yes.
	Q:	Right?
	A:	But this is not wrong.
		…
	Q:	So, if you take away that instruction by your plaintiffs that that was 329 the brick house, then what is there to support to delineate 329 as entirely on brick house rather than on the overlay rectangle 329?
	A:	No more.”

69. With respect, I am not impressed by a professional man who disregarded his own investigations and professional opinion and put forward his clients’ instructions as his own conclusion.  I reject his delineation as shown on his plan.

The evidence of Mr Liu Ma Cheung, Mr Liu Kan Chung and Mr Liu Se Sang

70. Mr Liu Kan Chung was the 2^nd witness called by the plaintiffs.  He was born in 1958 and it was not until 1980 that he started living in a lot said to be within walking distance of Lot 329.  While he might be able to testify about the location of the brick house, the first available evidence of which was in 1963, plainly, he did not have any personal knowledge about the location of Lot 329 or the location of any structure thereon before he was born.  He tried to improve his evidence as he went along and claimed to know more than what he possibly could.  I am not satisfied that he is a credible witness.

71. Mr Liu Ma Cheung was the 1^st witness called.  He was born in 1925 and emigrated to the United Kingdom in 1958.  In-chief, he confirmed the truth of his witness statement written in English and repeated paragraphs 3, 4, 5, 6, 7 and 12 of the witness statements of Mr Liu Se Sang, also written in English.  Under cross-examination, he said that he did not understand English, that he did not understand his witness statement and the witness statement of Mr Liu Se Sang and that nobody had explained the witness statements to him.  I am also not satisfied that he is a credible witness.

72. Mr Liu Se Sang was the 3^rd witness called.  He was born in 1931 and emigrated to the United Kingdom in 1955.  Under cross-examination, he started with an affirmative (or negative, as the case may be) answer, then gave a negative (or affirmative, as the case may be) answer and went around in circles.  He said what he thought at the time was favourable to the plaintiffs’ case, irrespective of what he had said earlier and written before.  I am not satisfied that he is a credible witness.

73. Further and importantly, the insistence by the plaintiffs in general, and Mr Liu Se Sang in particular, that they had known all along that Lot 329 was situated at the brick house and that they immediately rejected Mr Henry Chan’s delineation and told a Mr Wong of Essential Surveyors Co. of the plaintiffs’ rejection is contradicted by the plaintiffs’ own documents, many of which were produced on request or under compulsion at the trial.

74. By their letters to the District Lands Office, Shatin, dated 26 November 2002, 19 March 2003 and 1 September 2003, the plaintiffs told the District Lands Office, Shatin that they had no means of knowing the location of Lot 329; that they did not rule out the possibility that Madam Yeung’s squat was on Lot 329 and that there were numerous doubts.

75. By their applications dated 20 February 2003 and 7 April 2003, the plaintiffs applied to build a village house at Lot 329 as delineated by Mr Henry Chan and indicated their desire to have the boundary determined by Mr Henry Chan in the event of their application being successful.

76. By their solicitors’ letter dated 28 March 2003, the plaintiffs sought to evict Madam Yeung on the strength of Mr Henry Chan’s delineation, obtained to establish their case then that she was trespassing on their land.  Mr Liu Se Sang admitted that this letter was written with his consent and authority and on his instructions and that he knew its contents before it was sent.

77. The plaintiffs’ case was that the brick house had been built and was there before they were born and that it remained there until the roof and walls eventually collapsed.  Mr Liu Ma Cheung testified that there was no rebuilding of a house like structure between 2 June 1949 and 1962. Mr Liu Se Sang testified that there was no rebuilding of the house from scratch and that only the roof was put on after its collapse in about 1988/89.  No attempt has been made to reconcile such testimony with Mr Ted Chan’s evidence that the brick house referred to in his report was much bigger than the house at the time of the grant and that its location and orientation had changed.

78. I reject the evidence of these three witnesses.

Reasons for ruling that there was waiver of privilege

79. At the trial, I ruled that the advice referred to in paragraph 12 of the witness statement of Mr Liu Se Sang had been waived and said that reasons for my ruling would be given in my Judgment.  This I now do.

80. Mr Liu Se Sang referred to his instructions to Essential Surveyors Co. and the survey by Mr Henry Chan.  He continued as follows in paragraph 12 (written exactly as in the original) :

“

Although I was doubtful of the result of the survey plan prepared by Henry Chan Surveyors Limited, I once thought that I have no alternatives but to rely on the said plan because it was prepared by a land expert.  According to the said plan, it shows that the temporary structures of Madam Yeung was built on the subject lot and possessed by her.  Therefore I have taken action accordingly.  Nevertheless, I am advised otherwise by my legal advisers and I further instructed another land expert Ted Chan & Associates Limited in September 2003 and obtained its expert report which has an opinion quite different from the earlier report and confirms the Plaintiffs’ common belief as to where the subject lot lies all along.”

81. As the English Court of Appeal decision in Great Atlantic Insurance Co. v. Home Assurance Co. [1981] 1 WLR 529 shows, waiver is an objective, not subjective principle.  It matters not whether a party intends to waive privilege in a particular document.  What matters is an objective analysis of what the party has done, see paragraphs 26-11 to 26-13, Phipson on Evidence 16^th edition.

82. In Goldlion Properties Ltd & others v. Regent National Enterprises Ltd [2006] 1 HKLRD 793, Woo VP stated the proper test to be applied in considering waiver as follows :

“	36.	As for the proper test to be applied for considering whether there is waiver, para.10-17 of Matthews and Malek, Disclosure (2nd ed., 2000), adopted by the Judge is repeated below :
		The key word here is ‘deploying’. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote thecontents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege. (Emphasis added.)
	37.	This test is borne out in a number of cases.
		...
	44.	The test whether there is waiver in its practical application can be found in Hollander, Documentary Evidence (8th ed., 2003) para.17-14, which reads :
		There is a distinction to be drawn between a reference to the fact of legal advice and to its contents. Referring to the fact that legal advice has been taken will not normally give rise to a waiver of privilege. Similarly, reference to the existence of a privileged document will not be sufficient : there must be reference to or reliance on its contents. Thus to state that before attending interview with the police I had taken legal advice is not a waiver of privilege. But to say that I did not tell the police where I was on Tuesday because my solicitor advised me not to, does rely on the contents of the legal advice : here the point of the reliance on the privileged advice is to provide an explanation or justification for the failure to provide an answer to the police. What is important here is not whether legal advice was taken, but what was the content.
	45.	To this practical application must be added the effect of Marubeni Corp v Alafouzos [1988] CLY 2841 and Government Trading Corp v Tate & Lyle Industries Ltd (unrep., 24 October 1984) referred to above.”

83. The plaintiffs’ case was contradicted by their previous inconsistent conduct.  In paragraph 12, Mr Liu Se Sang was relying on the contents of the legal advice to explain the plaintiffs’ previous inconsistent conduct.  He was deploying such legal advice and the plaintiffs should not be allowed to cherrypick.  A party may not waive privilege in such a partial and selective manner because unfairness and misunderstanding may result.

84. For these reasons, I held that the advice referred to in paragraph 12 of the witness statement of Mr Liu Se Sang had been waived and permitted cross-examination on the contents of such advice.  In the event, nothing came out of the cross-examination.

Conclusion on the plaintiffs’ claim

85. In my judgment, the plaintiffs have not proved on the balance of probabilities that the defendant’s house was built on any part of Lot 329 and the plaintiffs’ action must be dismissed.

The third party negligence claims

86. The third party claims fall away in view of my conclusion that the plaintiffs’ action against the defendant is to be dismissed.

87. I shall nevertheless deal briefly with the third party claims in the event of my being held to be wrong in dismissing the main action.

88. Mr Gordon Andreassend, an expert witness called by third parties, opined that the third parties’ approach was “thorough and most comprehensive” and the third parties’ methodology “to be sound in all respects, and to have been carried out in confirmation to a well-tried and well-proven system” and concluded that in his opinion :

“	... the definition of Lot 325, as carried out by [the third parties] was performed in a professional manner, and observed all the caution and care that is required to make an intelligent assumption of the lot being surveyed.”

89. Dr Conrad Tang, another expert witness called by third parties, opined that :

“	[The 2nd third party] has considered the DD correlation in its accuracy range, preserved the relative shape of the subject lots position, and made references to all available occupation evidence of plans and air-photos.  His redefinition is comprehensive and with due care.
	... I am of the opinion that the redefinition of [the second third party] is correct and reasonable, and more professionally competent ...”

90. The evidence of these two witnesses was not challenged by the defendant, whether by cross-examination or otherwise.  In view of such unchallenged expert opinion, the claim in negligence fails and the defendant’s claim against the 1^st third party must be dismissed and the defendant’s claim against the 2^nd third party in negligence must also be dismissed.

Statutory duty under section 28 of Land Survey Ordinance

91. I turn now to the claim for breach of statutory duties under section 28 of the Land Survey Ordinance.  The Ordinance was enacted in 1995.  Section 28 provides as follows :

“	(1)	An authorized land surveyor shall ensure that every land boundary survey or any part thereof undertaken by him is carried out, whether by himself or by other persons under his supervision or direction, in accordance with the requirements of any codes of practice approved under this Ordinance.
	(2)	An authorized land surveyor shall ensure that any field note, survey record plan or land boundary plan prepared by him or by other persons under his supervision or direction complies with the requirements of any codes of practice approved under this Ordinance, whether the land boundary survey from which such note or plan is produced is carried out-
		(a)	by him personally;
		(b)	by other persons under his supervision or direction; or
		(c)	partly by or under the supervision or direction of another authorized land surveyor.
	(3)	An authorized land surveyor shall sign and certify in the specified form all field notes, survey record plans and land boundary plans prepared by him or by other persons under his supervision or direction.
	(4)	An authorized land surveyor shall be personally responsible for the accuracy and completeness of every land boundary plan signed and certified by him and produced from a land boundary survey carried out by him personally or by other persons under his supervision or direction, or partly by or under the supervision or direction of another authorized land surveyor, and he shall be liable for any loss or damage suffered by any person as a result of any inaccuracy or incompleteness of any land boundary plan so signed and certified.”

92. Mr Chan Chi Hung SC cited the Hansard, New Zealand’s Cadastral Survey Act 2002, Singapore’s Land Survey Act, Hong Kong’s Land Survey Ordinance and a number of other Hong Kong Ordinances and authorities and argued that section 28 does not exclude a defence that the plan was of a reasonable standard of skill and care.

93. With respect, I disagree.

94. The duty under the second limb of section 28(4) is not merely to exercise such skill and care which is ordinarily exercised by reasonably competent members of the profession who have the same rank and profess the same specialisation (if any), but to be “accurate” and “complete” in every land boundary plan signed or certified by the authorised land surveyor.  In short, the duty is not just to be competent but to be correct.

95. Further, if the second limb does not go beyond negligence, there is little or no need for its enactment.

96. The duty is onerous.  But it is a matter of choice for a surveyor whether or not to register under the Ordinance, whether or not to undertake survey work under the Ordinance and whether or not to sign or certify plans.  A surveyor is perfectly at liberty to perform other professional work which was available before the enactment of the Ordinance.

97. If I had found for the plaintiffs, the 2^nd third party’s plan would have been “incorrect” and the defendant would have suffered loss or damage as a result of judgment being entered in favour of the plaintiffs against the defendant.  The 2^nd third party would be held liable for such loss and damage.

98. There was no real dispute on quantum and I would have assessed it as particularised in paragraph 10 of the witness statement of the defendant dated 13 July 2005, after deleting items (e) and (f) and replacing item (g) by $30,000 [$6,000 x 5 (i.e. 15 months less the period from November 2007 to August 2008)].

Wasted costs in the course of the trial

99. After Mr Liu Ma Cheung had adopted his witness statement of about 1½ pages with double spacing, Ms Jasmine Yu wished to ask supplementary questions estimated to take an hour or two.  I referred the parties to Ng Kam Chun (t/a Chun Mou Estate Agency Co.) v. Chan Wai Hing and others unreported, HCA3036/1992, 9 February 1994, Keith J.  After a hearing lasting about an hour, I ruled against the plaintiffs and disallowed any supplementary question.  Mr Chan Chi Hung SC asked for costs of that hearing.  I deferred ruling on his application until giving the judgment in this case.

100. As the plaintiffs’ action is to be dismissed, the application has become academic.

101. Had I found in favour of the plaintiffs, I would have been minded to make a costs order nisi disallowing a fraction of the plaintiffs’ costs, not just an hour’s costs.  There were numerous adjournments in the course of the trial caused by the inadequate preparation on the part of the Plaintiffs’ legal team.  I see no reason why the defendant or the third parties should pay such wasted costs.  The plaintiff should pay for such wasted costs.

Orders

102. For reasons given above, I make the following orders :

(a)	The plaintiffs’ action against the defendant is dismissed.
(b)	The defendant’s claims against the third parties are dismissed.

103. I make the following orders nisi on costs under Order 42 rule 5B(6) of The Rules of the High Court, Cap. 4 :

(a)	The plaintiffs do pay the defendant his costs of this action, including all costs reserved and all costs which the defendant is ordered in (b) below to pay to the third parties, to be taxed if not agreed.
(b)	The defendant do pay the third parties their costs of this action, including all costs reserved, to be taxed if not agreed.