CHAN LOI SUN AND OTHERS v. CHAN YUET（OR YUT）WO TSO with CHAN KAM WAI as Manager AND ANOTHER

DCCJ 1699/2023

[2025] HKDC 263

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1699 OF 2023

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DECISION

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1.  This is an application by the 1^st to 3^rd plaintiffs (“Ps” / “P1” to “P3”, respectively) by way of Summons dated 13 May 2024 for an interlocutory mandatory injunction against the 1^st and 2^nd defendants (“Ds” / “D1” and “D2”, respectively) for an order (1) to remove an electronic gate (“Gate”) and/or any obstructions along an access road which enters from Sha Tau Kok Road (Ma Mei Ha) and passes through Ds’ Lots and also known as a pedestrian route named as Nam Chung Country Trail (“Access Road”), and (2) to restrain Ds and any person from hindering the use of and access to the Access Road (“Summons”).

2.  The Summons was first heard by HHJ Harold Leong on 24 May 2024 where the D2 undertook to allow vehicle access for first, emergency purposes, and secondly, repair and maintenance of the Ps’ properties in San Uk Tsai Village (“Village”) with one day prior notice by Ps to D2 (“the Undertakings”).

Background

3.  Members of a Chan’s clan, a Wan’s clan and a clan known as the Chan Yuet Wo Tso (“Tso”) own various lots in the Village. It is not in dispute that the Access Road encompasses the Remaining Portion of Lot No 91 in Demarcation District 76 (Lot 91RP), which is one of the private lands owned by the Tso, and dwellers of the Village have to pass by the Access Road for access to their homes.

4.  Ps are inhabitants of the Village where D2 is the current appointed manager of the Tso and D1 is his predecessor. It is not disputed that the Tso has started placing blockages on the Access Road from around mid 2022 to block unauthorised vehicle access on their private lands, which included concrete blocks, metal chains, water barriers, poles and the Gate. It is not in dispute that these blockages are erected to obstruct vehicle access only, but pedestrian access to the Village is and was allowed.

5.  It is Ps’ case that vehicle access through the Access Road has been used by villagers of the Village since the 1990s and the Gate has blocked the only vehicle access to Ps’ properties. As such, Ps averred that they have acquired an easement by prescription under the doctrine of lost of modern grant and/or easement by necessity over the Access Road.

6.  At this juncture, it is worth noting that both P1 and P3 are not the registered owners of the respective properties pleaded in the Amended Statement of Claim, ie House No 33 San Uk Tsai Village, Sub-section 2 of Section B of Lot No 133 in DD 76 (“House No 33”) and House No 24 San Uk Tsai Village, Section D of Lot No 105 in DD 76 (“House No 24”) or House No 20F San Uk Tsai Village, Section A of Lot No 107 in DD 76 (“House No 20F”) according to the Land Registry.

7.  The Summons is opposed by Counsel for D2, Ms Wong, who submitted that an interlocutory injunction should not be granted by reason of the followings:

(i)  P1 and P3 do not have any locus standi to claim any right of way serving their respective properties, as they are not the registered owners of House No 33, House No 24 and House No 20F;

(ii)  D1 should not be sued as he has resigned as manager of the Tso prior to the issue of the Writ;

(iii)  The Interim Injunction sought is too wide and not permissible;

(iv)  There is prolonged and unexplained delay of almost 2 years in Ps’ application, and thus no urgency in granting any mandatory injunction;

(v)  The right of way is not of necessity as the obstacles only intend to obstruct vehicle access of unauthorised vehicles but not pedestrians;

(vi)  Ps have failed to show a strong prima facie case on lost modern grant; and

(vii)  Damages is an adequate remedy for Ps as they can pay an annual licence fee of HK$2,500 (“Annual Licence Fees”) pending trial as an interim measure, and could recoup such fees if they succeed at the trial.

Legal Principles

8.  The legal principles of interlocutory injunctions is trite and need not be repeated in detail here: the tests are, firstly, that there is a serious question to be tried and secondly, that the balance of convenience lies in favour of granting an injunction (MBM Metal Works Hong Kong Ltd v Jonathan Derek Nichols, HCA 2936/2018, [2019] HKCFI 52 at para 11).

9.  As for the first test, the overreaching principle is whether the Ps have prospects of success which, in substance and reality, exist. The hurdle is thus not very steep. However, since the substance of the remedy sought by Ps, namely to have all obstructions removed gives the injunction a mandatory nature, the party seeking the injunction has to demonstrate a high degree of assurance that it will succeed at trial Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 (CFI) per Ma J (as he then was) at para 12, and the Court should take whichever course that appears to carry the lower risk of injustice if it should turn out that the injunction was wrongly granted.

10.  Ms Wong advanced many arguments to rebut Ps’ presumption of validity of a lost modern grant by referring to contested evidence such as an alleged apology letter issued by P1 and P2 to the Tso for their previous trespass to the Tso’s Lots (“Apology Letter”) and another licence agreement that was signed between the Tso and the villagers of San Uk Tsai Village in 1997 (“Licence Agreement for Vehicle Access”). However, the Court takes the view that it is inappropriate to embark on a mini-trial on the affidavits and should not be making any determination on the validity and enforceability of these issues at this stage. On the same token, experts’ evidence as to whether alternative routes could access to Ps’ Lots would be better studied at trial.

11.  There are, however, other convincing arguments put forward by Ms Wong, as explained below, which led me to dismiss the Ps’ application.

Locus standi of P1 and P3

12.  Despite P1 claiming to be one of the registered owners of House No 33, it later transpired that he had transferred his title to his children in around late 2022. P3, on another hand, claimed to have beneficial ownership over House No 24 as it was registered under the name of his deceased mother. Even taking the Ps’ evidence on this point at the highest, as a matter of law, P1 and P3, being merely an occupier and/or a beneficial owner, do not entitle them to bring a claim to a right of way by relying upon the doctrine of lost modern grant. This question of law has been considered in various cases, notably the Court of Appeal’s decision in Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building [2011] 4 HKLRD 623 (CA). It is trite that the easement is a proprietary interest granted to the dominant tenement, and the person claiming an easement would have to be the owner of the dominant tenement, not just any person claiming to have an incidental interest over the material property.

13.  Mr Lau, Counsel for Ps submitted that such defects in title could always be rectified by Ps swiftly at any stage of these proceedings, assuming P1 and P3 could convince the current registered owners and/or estates of the deceased mother to transfer the titles to their respective names. I beg to differ on this point, given all of the obvious practical considerations and potential hurdles in transferring proprietary interests, not to mention the lack of evidence on the willingness of the registered owners and/or estates to so transfer the titles and the time involved.

14.  I should therefore be able to determine conclusively at this stage that P1 and P3’s cause of action is fundamentally defective and unsustainable in law. Thus, the interlocutory injunction sought by P1 and P3 must be refused. In any event, if I were wrong in dismissing P1 and P3’s application based on their locus standi, their injunction applications must still fail based on other reasons listed below.

Easement of Necessity

15.  According to Gale on Easements (21^st edn), p 171:

“A way of necessity, strictly so called, may arise where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible may be entitled, as of necessity, to a way over the other part. The principle no doubt applies where both parts are disposed of simultaneously, either by grant inter vivos, or by will.”

16.  Mr Lau for the Ps submitted that the Access Road is the only road for vehicle access to Ps’ Lots, and any blockage would hinder emergency and/ or government access. He relied on Ps’ affidavits of incidents where ambulance and fire brigade services were hindered, thus causing health and safety hazards to all villagers in the Village. There were also examples of refuse trucks from Food and Environmental Hygiene Department and septic tank cleaning trucks being denied access. Ds denied such allegations and insisted that government vehicles and vehicles for emergency purposes could always access the Passage Way. While such prospects can only be investigated to a limited extent as the court is not to embark on a mini-trial on those affidavits, there is a fundamental problem with this part of Ps’ case that was bound to fail. While Mr Lau’s submissions deserve the greatest respect, as rightly pointed out by Ms Wong, a right of way of necessity can only exist where there will be no other means of reaching the land without the easement. If there is any other means of access to the land so granted, no matter how inconvenient, no way of necessity can arise as the mere inconvenience of an alternative way will not of itself give rise to a way of necessity: London Corpn v Riggs (1880) 13 Ch D 798 (Ch D) at 807.

17.  While Mr Lau fairly conceded that pedestrian access from the Gate to any of the Ps’ houses is allowed and not completely hindered, he nonetheless tried to argue the necessity of removing the obstructions by emphasizing the health and safety hazard aspects that could potentially suffered by the villagers. With respect, according to the Ps’ pleaded case, each of Ps is suing on behalf of himself but not on behalf of the residents in the Village or the general public, and thus the degree of inconvenience allegedly suffered by other villagers bear no direct relevance in this application. With regards to the allegation of P3’s pregnant daughter-in-law who had to walk 20 minutes to the Gate while her water broke, despite this Court having sympathy for this unfortunate incident, P3 did not adduce any objective evidence corroborating his bare assertion that Ds had refused to let the ambulance to gain access to the Access Road. In fact, the Gate could be unguarded at the material times but I also borne in mind that first, a contact number regarding access of the Village was printed on a sizeable poster in a very close proximity to the Gate, secondly, there are good numbers of villagers who paid the Annual Licence Fees and were given a remote control to open the Gate. Bearing in mind the years Ps have lived in the Village, I found it factually improbable that not a single villager who has the remote control would assist opening the Gate should emergency access is required.

18.  In light of the aforesaid, and in the absence of any cogent contrary argument from Mr Lau, I am content to apply the rules in London Corpn (supra) and the premise for invoking the doctrine of necessity therefore does not exist.

Lost Modern Grant

19.  As explained in paragraph 10, the court should not be conducting a mini-trial on affidavit evidence to assess the validity of the “Apology Letter” or the “Licence Agreement for Vehicle Assess”, and to make any inference whether the presumption of lost modern grant could be rebutted. In such premise, the Court’s priority is to consider ‘whichever course seems likely to cause the least irremediable prejudice to one party or the other’: see Lord Hoffmann in National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] 1 WLR 1405 at para 19. What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be.

20.  The underlying principle is therefore to put less weight on the demarcation of the nature of the injunction, whether mandatory or prohibitive, but to carefully assess the practical consequences of the actual injunction are likely to bring upon the parties.

21.  For these reasons, it suffices to say that if there is any advantage to be gained by the Ds over the Ps, it would be the HK$2,500 Annual Licence Fees that can be readily compensated by damages and other remedies at the trial.

22.  On the other hand, if the court is to grant an interlocutory mandatory injunction, this would not only require Ds to incur costs in dismantling the installed Gate but may also require Ds to return the subscribed fees to those villagers who paid the Annual Licence Fees.

23.  Either way, the injunction would likely cause greater hardship to the Ds than a modest amount of Annual Licence Fees which I have no doubt Ps would be in a financial position to pay them. In light of this, even assuming that Ps have demonstrated a serious question to be tried and a high degree of assurance that they would succeed in trial, as damages would be an adequate remedy to Ps (and Ds would certainly be in a financial position to compensate Ps the modicum amount of damages), no interlocutory injunction should normally be granted notwithstanding how strong the plaintiff’s claim appeared to be at the interlocutory stage.

DISPOSITION

24.  For the reasons above, I dismiss the Summons and discharge the Undertakings.

25.  There will be an order nisi that the costs of the Summons be to Ds in any event, to be taxed or summarily assessed as the court deems fit after the conclusion of the trial herein.

26.  Finally, the background of this case shares striking similarities to Kan Sui Yau & Ors v Wong Tin Lung & Ors [2020] HKCFI 94, which is an authority relied by the Ds. In my view, what was said by the learned Deputy High Court Judge MK Liu has clearly brought out the weaknesses of Ps’ present application, and such judgment is, as a rule, binding upon me. I find it useful to recite the last paragraph of the said judgment as a reminder to parties:

“Finally, I remind the parties that any unmeritorious application would only waste time and costs. If Ps are anxious to get the reliefs pleaded in the Amended Statement of Claim or any other reliefs, Ps must take active steps to expeditiously bring these proceedings to trial. Similarly, if Ds would like to get rid of these proceedings as soon as possible, Ds have to take active steps to bring the matter to trial.”