CHAN FONG KIT v. SZE NGAN CHAI FROZEN MEAT LTD

DCCJ 607/2019 & DCCJ 6528/2020

(Heard Together)

[2026] HKDC 494

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 607 OF 2019

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6528 OF 2020

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JUDGMENT

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A.  INTRODUCTION

1.  In DCCJ 607/2019 (the “1^st Case”), Chan Fong Kit (“Chan” or “P”) claims against the Defendant (“SNC” or “Defendant”). Chan alleges that vehicles bearing license plate numbers HZ418, MM418, HS418, and JJ418 (the “Vehicles”) were owned or managed or operated by SNC and that the Vehicles since 4 September 2018 had on numerous occasions: (i) stopped or parked within the marked boundary of Lorry Carpark Space No L5 (“L5”); (ii) parked in front of Lorry Carpark Space No L4 (“L4”) of Ground Floor, Kin Wing Industrial Building, No 33 Kin Wing Street, Tuen Mun, New Territories (“Kin Wing” or the “Building”), causing obstruction to the ingress and egress of Chan’s vehicles. P’s case is even though she can use or rent out L4 and L5, it does not mean she did not suffer damages, as she did not have full enjoyment of L4 and L5.

2.  In the 1^st Case, P claims against SNC at the Prayer of the Amended Statement of Claim for the following:

(1)  A declaration that the Defendant is not entitled to directly or indirectly cause any vehicle to trespass the marked boundary of L4 and L5, including causing any vehicle to obstruct L4 and L5;

(2)  An injunction restraining the Defendant by itself, or through its agents, directors and employees from occupying or trespassing the marked boundary of L4 and L5;

(3)  Damages, to be assessed;

(4)  Costs;

(5)  Interests; and

(6)  Further and other relief as the Court deems fit.

3.  In the DCCJ 6528/2020 (the “2^nd Case”), P pleads:

(i)  Under the Deed of Mutual Covenant and Management Agreement of Kin Wing dated 31 December 1990 (“DMC”), the Incorporated Owners of Kin Wing Industrial Building (the “IO”) has “the powers and duties to do all necessary acts to ensure compliance with the Government Grant by the owners” and “owes the duties to properly manage the Building which entails taking all necessary steps that is reasonably required of a manager in the circumstances to enforce the terms of the DMC”;

(ii)  Under sections 14(1), 16 and 18(1)(c) of the Building Management Ordinance, Cap 344 (“BMO”), the IO has the statutory right and duty to do all things reasonably necessary for the enforcement of the obligations contained in the DMC for the control, management and administration of common parts of the Building;

(iii)  On various days since 4 September 2018, various vehicles (including the Vehicles): (i) parked inside or within the delineation of L4 and/or L5 which constitutes trespass; and/or (ii) parked in a manner that hindered or obstructed P’s vehicles’ access to or egress from L4 and/or L5 (the “Infringing Incidents”);

(iv)  The IO from time to time directed and gave permission for (or has been negligent in not preventing) the listed vehicles and other individually unidentified vehicles to trespass and park within the boundary of L4 and L5 without P’s consent or authorization;

(v)  P or her agents made verbal complaints to the manager on numerous occasions on site of the Infringing Incidents, but the IO has failed to cause proper steps to be made to remedy the situation.

4.  In the 2^nd Case, there is (i) the delineation disputes as to the boundaries of L4 and L5 (the “Delineation Issues”) and (ii) the allegation that the IO had wrongfully caused or allowed two platforms, being unauthorized building works (“UBW”), to be built upon the rear part of L5, referred to as “Impounding Platforms”.

5.  In the 2^nd Case, P claims against the IO at the Prayer of the Statement of Claim for the following reliefs:

(1)  A declaration that the September 25 Delineation of Lorry Carpark L4 and Lorry Carpark L5 drawn by the Plaintiff’s workman in accordance with the direction of a surveyor on or about 25 September 2018 in yellow paint accurately reflects the proper delineation of the Lorry Parking Spaces in accordance with the Layout Plan;

(2)  An order that the IO do rectify and re-mark the delineation of Lorry Carpark L4 and Lorry Carpark L5 in accordance with the Layout Plan;

(3)  An injunction restraining the IO or its servants or agents or otherwise and the 2^nd Defendant from doing or allowing any act to be done whereby the Plaintiff or her licensee or her agents may be hindered or obstructed or interfered in the access or egress by vehicles or other conveyances to and from Lorry Carpark L4 or Lorry Carpark L5;

(4)  A declaration that the IO and the 2^nd Defendant are not entitled to trespass on Lorry Carpark L4 & L5;

(5)  An order that the IO and the 2^nd Defendant be restrained from occupying or trespassing the Lorry Carpark L4 & L5;

(6)  An order that the IO and the 2^nd Defendant do remove all objects erected within the boundary of Lorry Carpark L5 that would interfere with the reasonable use of the Lorry Carpark L5;

(7)  An injunction to restrain the IO and the 2^nd Defendant from interfering with the Plaintiff’s possession, use and enjoyment of Lorry Carpark L5;

(8)  An injunction to restrain the IO and the 2^nd Defendant from designating the common area adjacent to Lorry Carpark L4 and Lorry Carpark L5 as car parking space(s) or for any purpose other than part of the common area which each owner of the Building has the full right and liberty to go, pass and repass over and along;

(9)  Damages sustained in consequence of the obstruction of the Plaintiff’s use and enjoyment of the Lorry Carpark Spaces caused by the IO’s breach of DMC or the IO’s breach of its duties to enforce the DMC;

(10)  Costs;

(11)  Interests; and

(12)  Further and other relief as the Court deems fit.

6.  The 2^nd Defendant in DCCJ 6528/2020 is an unidentified group of persons, namely “Persons entering or remaining without the consent of the Plaintiff, at Lorry Parking Spaces No L4 and L5 on Ground Floor of Kin Wing Industrial Building, 33 Kin Wing Street, Tuen Mun, New Territories, Hong Kong”. The reliefs P’s claims under both actions have been recited in full so that they can be dealt with fully.

7.  For completeness, the two actions were consolidated by the Order of Madam Registrar M Soong dated 14 March 2023 in which the 1^st Case and the 2^nd Case were ordered to be tried at the same time before the same judge and future hearings of two cases are to be heard together.

8.  Further, the Madam Registrar M Soong in her Order of 6 November 2024 further gave effect to the consent of the parties of the 2^nd Case as to evidence the area, location and boundaries of L4 and L5 (the “Delineation Issue”), and the location and evidence of the Impounding Platforms marked on Annex 5 of the P’s Statement of Claim by hatched lines (the “alleged UBW”).

9.  The alleged UBW, is no longer a live issue, as P acknowledges in her Opening Submissions that these alleged UBW have been removed.

10.  As to delineation, it has been ordered by DDJ B Mak dated 14 October 2025 that the Plaintiff’s expert reports dated 20 July 2023 and 7 September 2023 shall be adduced in evidence without calling the makers thereof. Again, in P’s Opening Submissions, the matter of delineation is no longer in dispute.

11.  Hence, the remaining issues in dispute as stated in P’s Opening Submissions are:

(i)  Whether SNC has committed trespass upon or caused obstruction to L4 and L5; and if yes, what is the quantum of damages?

(ii)  Whether IO had breached its duty to properly and adequately manage the Building by, inter alia:-

(a)  allowing or failing to prevent the trespasses into or causing obstruction of L4 and L5 by SNC and the 2^nd Defendant (of the 2^nd Case); and

(b)  causing or allowing the construction or presence of the Impounding Platforms (unauthorized building works) that trespassed into L5.

(iii)  If the answer to (ii) above is affirmative, whether the IO’s breaches deprived P of the peaceful enjoyment of L4 and L5, and if so, what is the quantum of damages?

The Background Facts

12.  Background is P’s purchase of L4 and L5 from the Government of the Hong Kong Special Administrative Region (“HKSAR”) on 4 September 2018. By an assignment dated 29 July 1988, Silver Chief Company Limited (“Silver Chief”) became the registered owner of L4 and L5 and upon Silver Chief’s dissolution, on 9 August 2000 L4 and L5 came to be vested in the HKSAR as Bona Vacantia. HKSAR as the vendor then disposed of L4 and L5 to P.

13.  P gave evidence in Court that she operated a scaffolding company from the building next to Kin Wing. And before she acquired L4 and L5, she only had a fleeting look at L4 and L5 from outside of the Building.

14.  From her evidence, P had disputes with the IO almost from the very start when she attempted to redraw the boundaries of L4 and L5 without the IO’s consent. She also had disputes in an incident with the SNC’s lorry drivers, described by her as 赤膊彪形大漢.

15.  The above may be the events that started P’s grievances, that built up over the years led to the present litigation. More on her complaints has been detailed in her evidence.

16.  Another important document is the Particulars and Conditions of Sale of Castle Peak Town Lot No 55 by New Grant No 1792 and the Special Conditions of the New Grant (“SCC”). This is a small lot of size 11,010 square feet in area, on which Kin Wing, in 22 stories, was erected. SCC Clause (2)(a) of the New Grant stipulates that the lot shall be used for industrial and/or godown purposes. Further, Clauses (10) and (11) of the SCC stipulates that:

“(10)(a) Space shall be provided within the lot to the satisfaction of the District Commissioner, New Territories for the parking, loading and unloading of vehicles at the rate of not less than one vehicle for each 10,000 square feet or part thereof of gross floor area …;”

(10)(b) The space so provided shall not be used for any purpose other than for parking, loading and unloading of vehicles;”

(11) A lay-out plan indicating the parking, loading and unloading spaces to be provided within the lot in accordance with Special Condition No (10) and approved by the Building Authority, …, shall be registered by the purchaser by memorial in the District Land Office. … The parking, loading and unloading spaces indicated on the said approved plan shall not be used for any purpose other than the purposes set out in Special Condition No (10). The purchaser shall maintain the parking, loading and unloading spaces in accordance with the said approved plan and shall not alter the layout except with the prior written consent of the Director of Public Works.”

17.  The aforesaid required Layout Plan pursuant to SCC Clauses (10) and (11) is registered with the Land Registry on 14 November 1974 (“Layout Plan”) in which it records the locations of 8 Lorry Carpark Spaces Nos L1 to L8, surrounding an elevated Loading and Unloading Platform and further 9 Private Vehicle Parking Spaces Nos P1 to P9.

18.  It is readily obvious that the approved Layout for parking, loading & unloading as well as ingress and egress is very congested and any vehicle (whether owned by an owner of an unit at Kin Wing or outside third party) loading or discharging cargo at the common area may interfere with or delay the ingress and egress of any lorry going into or out of the Lorry Carpark Spaces Nos L1 to L8, in particular L5 that is immediately adjacent to the Loading and Unloading Platform.

19.  In another Floor Plan produced by the IO (C/327), said to be part of the information for Sales and Purchase of Kin Wing, the common area immediately in front of the Loading and Unloading Platform was marked in Chinese as 公眾卸貨區 (Public Cargo Discharging Area) and the common area preceding it, nearer to the vehicle entry and exit, as 汽車通道 (Vehicular Access).

B.  THE CONTENTIONS

Contentions for SNC

20.  In gist, SNC denies it had trespassed into and/or obstructed L4 and/or L5, and if there had been any trespass or obstruction, it was unintentional and in any event de minimis.

21.  Further, SNC has since May 2021, rented Lorry Carpark Space No L3 (“L3”), and where its vehicles are not parked at L3, it could be parked at the common area for loading and discharge as directed by the security guard, leaving the driver’s keys behind, if necessary.

22.  As the loading/ unloading area is very narrow, it is SNC’s contention that vehicles must accommodate each other by leaving vehicle keys behind with the security guard stationed at the ground floor car park round the clock, for vehicles to be moved immediately, if necessary.

23.  As to P’s alleged loss, SNC’s case is that it would be minimal and negligible, as vehicles seeking to ingress or egress had to wait for only a few minutes. Further, L4 and L5 had been rented out, for L4 since 2021 and for L5 since 2024, with no recorded complaint from P’s tenants of L4 and L5.

Contentions for IO

24.  The Opening for the IO was delivered by a two pages Written Opening Submissions written in Chinese by its representative Mr Poon Wai Yin (潘偉賢).

25.  In short, IO denies there had been constantly obstruction of vehicles using L4 and L5. Further since P’s purchase in September 2018, she had been using L4 and L5 until it was leased out by her.

26.  IO alleges that P refused and refuses to communicate with the IO directly, even though the channel was open, but instead choose the route of corresponding through her lawyer.

C.  EVIDENCE

Evidence of P

27.  P’s evidence was given by 4 statements filed on: (1) 16 August 2023; (2) 9 May 2024; (3) 15 October 2025; and (4) 25 November 2025. These statements constitute her evidence in chief.

28.  Her first Statement comprehensively dealt with her allegations as to (i) delineation of L4 and L5 (地界問題); (ii) the unauthorized structures at the hatched location at the back of L5 (違例建築物, UBW); (iii) trespass into L4 and L5 (佔用事件和越界事件); and (iv) use of Common Area Complaint (佔用公用地方問題).

Delineation

29.  Even though delineation is no longer an issue, it would be useful to set out her complaints. P stated on the date of handover on 4 September 2018, she noticed inconsistent lines drawn on the floor demarking L4 and L5 which, in her view, differ from that of the Layout Plan. The follow-on Delineation incidents were:

(i)  The Chairman of the IO required P to give proof of the proper delineation before allowing her to re-mark the boundary lines of L4 and L5;

(ii)  P said she engaged a surveyor (name not disclosed) and had workmen on 25 September 2018 attended carparks to re-mark the boundary in yellow. Her workmen were stopped. IO had not approved the re-mark as no surveyor report was made available to the IO. This is referred to by P as the “925 delineation” and it had resulted in a Police report. A photograph of the 925 delineation in yellow is at D1/579;

(iii)  On 18 October 2018, P says her 925 delineation was marked-over without her consent. A photograph of the delineation on 17 October 2018 is at D1/580;

(iv)  P alleges on 6 March 2019 the surveyor she engaged was stopped by Mr Poon from carrying out a survey;

(v)  On 9 April 2019, P says she engaged an authorized surveyor whose view was that the boundary of L4 and L5 matches P’s 925 delineation and the Layout Plan. But a written report on the surveyor’s view or opinion was not produced to the IO;

(vi)  On 26 August 2019, P says it was discovered a coat of white paint was applied on top of her 925 delineation.

30.  The above series of incidents cited by P could have been one of the factors that led to the present proceedings.

31.  For the present proceedings, P had caused two expert survey reports to be prepared, (i) by Jessica Pui Yee Leung (“Jessica”), Authorized Land Surveyor on delineation of L4 and L5; and (ii) by Ample Surveyor Services Limited (“Ample”) on the suspected unauthorized platform.

32.  In Jessica’s Report, at paras 4.1 and 4.3, it is her expert evidence that each lorry according to SCC is to occupy an area of 2.4 m x 7.6 m and the dimensions of boundary of L4 as delineated on the Layout Plan is 2.4 m x 7.5 m and for L5 is 2.6 m x 7.5 m. However, she finds that the dimensions of L4’s existing boundary: (i) in yellow paint is 2.8 m x 5.6 m; and (ii) in white paint is 2.9 m x 7.7 m. And for L5, its dimensions of existing boundary: (i) in yellow paint is 2.6 m x 5.4 m; and (ii) in white paint is 2.6 m x 7.5 m. This shows all the then existing delineations to be incorrect and demonstrates the importance of having an Authorized Land Surveyor to properly mark out the boundary lines. Hence, it is incorrect for P to plead at the Prayer of the Statement of Claim that the 25 September 2018 boundary in yellow paint accurately reflects the proper delineation of the Lorry Parking Spaces in accordance with the Layout Plan and the relief P seeks in respect of the 2^nd Case at A/80 para (1) cannot stand, with the consequence that P should re-mark the delineation in accordance with the Jessica’s Report and the follow on relief P seeks at A/80 para (2) for IO to rectify and re-mark the delineation also should fail. Further until proper delineation of L4 and L5 is drawn, delineation would impact on the issue whether there had been trespass in the sense of 過界.

UBW

33.  The alleged UBW is shown on a Ground Floor Plan marked in red at D2/694 and a photo entitled General View of Platform with Photo No 2 at D2/706. An undated photo of the alleged UBW at D3/940, and another photo of the UBW taken at 29 October 2018 at P’s 2^nd List of Documents item 26 shows that the alleged UBW was situated outside of the boundary line of L5.

34.  There is no evidence of the IO causing or permitting the alleged UBW to be erected. Burden is on P to prove her case against the IO.

35.  A desktop study was conducted by Lee Hoi Tat Nathan of Ample. At para 4.2, it is noted that during the site inspection on 4 July 2023, the suspected issue of UBW had been addressed.

36.  Based on Ample’s on-site measurement, the delineation of L5 was 2.597 m x 7.516 m with a width of about 0.2 m wider than that shown on the Layout Plan.

37.  It has not been explained why the UBW remained as an issue when it was no longer live and in relation to the alleged UBW and what damages P seeks.

Trespass into L4 and L5, obstruction and use of the Common Area

38.  Trespass and obstruction are the remaining issues central to P’s case in the 1^st Case and 2^nd Case.

39.  For the allegation of trespass:

(i)  P produced a Table record compiled from photographs taken by her staff as to parking by other vehicles: (i) at the common area that in front of L4; or (ii) otherwise crossed the L4 boundary line. The Table runs from D2/583 to D2/614 and it covers a period from 4 September 2018 to 28 June 2023. This is attached as Exhibit CFK 1 to her witness statement filed on 16 August 2023. The staff who took the photographs is not available and has not been called to give evidence at the trial. P says the photographs taken by her staff was compiled by her lawyer Messrs KWC & Associates (“KWC”) into a Table;

(ii)  P also produced a Table, compiled from photographs taken by her staff as to parking by other vehicles: (i) at the common area that in front of L5; or (ii) otherwise crossed the L5 boundary line. The Table runs from D2/615 to D2/646 and it covers a period from 4 September 2018 to 28 June 2023. This is attached as Exhibit CFK 2 to her witness statement filed on 16 August 2023 (the “Statement”). Again, her staff is not available or called to give evidence at the trial;

(iii)  P also produced a CD (D2/650) (1^st CD) that contains snap-shot photographs alleged to have been taken from 4 September 2018 to 28 June 2023;

(iv)  P also produced another Table record (D2/731-734) pertaining to alleged trespass or parking in front of L4 for the period from 4 July 2023 to 22 December 2023;

(v)  P also produced another Table record (D2/735-738) pertaining to alleged trespass or parking in front of L5 for the period from 4 July 2023 to 22 December 2023;

(vi)  P also produced the 2^nd CD (D2/739) that contains photographs and video clips, inclusive of video clips of 12 September 2018; 18 September 2018; 25 September 2018; 2-3 October 2018; 11 October 2018; 5-24 November 2018; and 8-17 December 2018;

(vii)  P also produced the 3^rd CD (D2/740) that contains video clips of 27 December 2018; 2 January 2019; and 26 August 2019;

(viii)  P also produced the 4^th CD (D2/820) that contains photographs inclusive of photographs of L3, L4 and L5 for the periods from (i) 1 January 2024 to 31 December 2024; and (ii) 1 January 2025 to 30 June 2025;

(ix)  A Table prepared by P setting out the locations of photos and video clips is attached as Appendix to this Judgment for ease of reference.

40.  I have been taken to some of the above photographs when P gave her evidence in chief. She was also shown some of the above photographs when she was cross-examined.

41.  In her 2^nd witness statement filed on 9 May 2024 (“2^nd Statement”), her evidence includes:

(i)  Her differentiation at para 9 as to outside vehicles that temporarily obstruct or trespass L4 and L5 verses SNC’s vehicles’ continual and systematic infringement of L4 and L5;

(ii)  She deprecates the IO at para 12 for allowing vehicles to use the common area and/or obstruct L4 and L5, resulting in inconvenience and costs to her;

(iii)  She made the point if SNC’s infringement was upon the instruction of IO staff, then the IO had intentionally caused or directed trespass or obstruction to L4 and L5 without her consent;

(iv)  At para 14, she attacked the IO for failing to properly manage the Carpark and always allowing vehicles to park other than inside the vehicle parking spaces. She observed that there were always goods vehicles parked in front of Lorry Carpark Space Nos L7 and/or L8.

42.  In her 3^rd witness statement filed on 15 October 2025 (“3^rd Statement”), she supplemented what she had not disclosed that:

(i)  She had leased out L4 to Yang Ming Kee Food Trading Limited (“Yang’s Company”) for the period from 19 August 2021 to 19 July 2023 at a monthly rent of HK$3,700;

(ii)  She had leased out L4 to Tang Oi Kee for the period from 1 January 2025 to 31 December 2026 at a monthly rent of HK$3,800;

(iii)  She had leased out L5 to 豆之國際for the period from 1 August 2024 to 31 July 2026 at a monthly rent of HK$3,900;

(iv)  She alleges that Yang’s Company had constantly complained to her for “出唔到車”;

(v)  She further alleges that due to the obstruction, she had to rent other open (not covered) car parking spaces to park her vehicles.

43.  In her 4^th witness statement filed on 25 November 2025, P made corrections to certain paragraphs references in her 3^rd Statement.

44.  P was questioned in Court:

(i)  P said she operates her scaffolding company from an office at Wah Wan Industrial Building (華運工業大廈) (“Wah Wan”) opposite to Kin Wing.

(ii)  She said she owned or had access to 5 parking spaces at her home, 2 parking spaces at her brother’s home and further 2 parking spaces at Wah Wan.

(iii)  P said she owned 3 private vehicles (Nos KL218, LKEN 7, GE6882), her brother owned one vehicle (No HT9799) and 3 goods vehicles (Nos RG387, TD6568, PU9929). She also uses other outside vehicles (Nos DD3828, GX748, GR1688, JB932). These vehicles may park at L4 and L5 from time to time. She reserved her rights to use L4 and L5 for parking of any other vehicles not on the above list. It is undisputable from the photos at item 26 of the Plaintiff’s 2^nd List of Documents (“LoD”) that in 2018, 2019 and 2020, L4 and L5 were generally vacant, save for parking of P’s private car nos LKEN 7, GE6882 and her brother’s private car No HT9799. In 2021, L5 was generally occupied by LKEN 7 or vacant.

(iv)  She admits that of the vehicles listed in her 1^st Statement at para 8 (B/174) as SNC’s, only four belonged to SNC.

(v)  As to the photos, P admits it was not taken by her, but at regular intervals by staff under her instruction. She admits the photos and videos clips were not taken because of obstruction. The photos at item 26 of LoD, instead of evidencing SNC’s trespass, show that lorries generally avoided the boundary of L4 and L5.

(vi)  P alleges she had to find alternate parking spaces for her three goods vehicles. P identified the parking spaces including (i) 彩雲二期 for TD6568 at monthly rent of HK$2,610; (ii) 十八鄉Yuen Long for RG387 at monthly rent of HK$3,300; and (iii) 石圍角Kwai Chung for PU9929 at monthly rent of HK$2,750, P was questioned why these parking spaces were so far away from Kin Wing at Tuen Mun. She admits that the parking spaces were chosen to be close to the drivers’ homes.

(vii)  She was also questioned on renting L4 to Yang’s Company and Tang Oi Kee and L5 to 豆之國際. P says she had handed management power to her brother and that she is not clear whether there exists any rental agreement in writing. Her belated disclosure of renting out L4 and L5 was only made in her 3^rd witness statement filed on 15 October 2025. She is also uncertain whether XA7659, XC2007 and ES1451 that were shown parked at L4 were vehicles of Yang’s Company.

(viii)  She was shown paragraph 4 of her 3^rd Statement (B /216C) in which she alleges renter of L4 frequently complained to her about obstruction. When questioned in Court, she admits that the alleged complaints were not made to her, she says only her secretary was contacted.

(ix)  It was suggested to her that there was no complaint of obstruction to L4 rented out to Tang Oi Kee and L5 rented out to 豆之國際and she agreed.

(x)  As to the alleged incident stated in her 1^st Statement paragraph 11, that she and one staff were surrounded by naked drivers in the employ of SNC, she admits that: (i) she was not prevented from leaving; (ii) she did not report to police; (iii) the alleged incident was not mentioned in her letter to SNC dated 30 October 2018 (“30 October 2018 Letter”); and (iv) further, there is no photograph, video or voice recording of the incident.

(xi)  She was shown photos dated 6 September 2018 (item 26 of LoD) concerning MM418 and HZ418, and she admits she did not contact SNC direct before she had KWC issued its 30 October 2018 Letter to SNC.

(xii)  She admits that obstruction was slight in the later years.

(xiii)  She also admits not having seen the IO’s Notice at C/306, bearing “由於車場落貨區空間狹窄，如果司機大佬離開車輛送貨時，請留車匙，多謝合作！”, requiring drivers to leave their keys.

(xiv)  She also said rental for L4 and L5 could have been HK$100-HK$200 more each month had there been no obstruction.

Evidence of Ms Li Yee Han

45.  Ms Li Yee Han (李綺嫺) gave evidence for SNC by 3 statements dated (1)16 August 2023 (“Li’s 1^st Statement”); (2) 9 May 2024 (“Li’s 2^nd Statement”); and (3) 28 October 2025 (“Li’s 3^rd Statement”).

46.  In Li’s 1^st Statement, her evidence includes:

(i)  Her evidence that SNC was engaged in wholesale of frozen food products and its factory, at Rooms 3-5, Fifth Floor of Kin Wing, was used both for processing as well as for storage. She said before L5 was sold by HKSAR to P in 2018, ownership was unclear.

(ii)  It was only by KWC’s 30 October 2018 Letter that SNC was first notified of the alleged trespass of L5, but without particulars.

(iii)  SNC’s vehicles were parked at locations upon the instruction of IO staff, the security guard.

(iv)  After KWC’s 30 October 2018 Letter, drivers of SNC’s vehicles were instructed not to trespass into L5.

47.  In Li’s 2^nd Statement, Ms Li’s evidence includes:

(i)  SNC had never arranged for its drivers to park vehicles inside L4 or L5.

(ii)  If P notifies the security guard of obstruction, the obstructing vehicle would immediately be removed.

(iii)  P only added the further claims and complaints regarding L4 on 18 October 2023.

48.  In Li’s 3^rd Statement, her evidence includes:

(i)  Any complaint received would be recorded in IO’s Record Book for following up and the IO had not received any complaint against SNC in relation to the alleged obstructions of L4 and/or L5.

(ii)  She noted P does not operate any business from inside Kin Wing. Rather L4 and L5 were used for parking her private cars. Hence, P’s allegation at para 11 of her 2^nd Statement that trespass of L4 and/or L5 seriously affected the work-flow (of her business) is incorrect.

(iii)  She also gave evidence as to what she knows about the tenants of L4 and L5.

49.  She was cross-examined and gave evidence:

(i)  On the photographs that all SNC vehicles bear the license plate numbers containing number 418, such as MM418, HS418 and JJ418.

(ii)  For SNC’s goods vehicles, she says SNC hired its drivers.

(iii)  Goods were delivered by SNC vehicles to restaurants in the morning, then after picking up replenishing goods from public warehouse, the SNC vehicles would return to Kin Wing to discharge.

(iv)  Loading and unloading time (for each load) is about half an hour.

(v)  Drivers were and are directed by the security guard (i) as to where to park; and (ii) to leave car keys.

(vi)  Drivers would and will remove the vehicles as directed by the security guard, even though loading or discharge remained or remains not yet completed.

(vii)  She was taken to D1/584-614 which shows record of obstruction /trespass of L4 in a Table prepared by KWC from photos taken by P’s staff. It was suggested that upon a counting: (1) in 2018, there were 79 obstructions by SNC out of 173; (2) in 2019, 86 times out of 187; and (3) in 2021, 25 times out of 132. It was suggested that trespass by SNC was frequent and not one-off. She disagreed.

(viii)  As for L5, it was similarly suggested to her that: (1) in 2018, 64 out of 95 obstructions; (2) in 2019, 49 out of 104 obstructions; (3) in 2020, 12 out of 58 obstructions; and (4) in 2021, 7 out of 32 obstructions, were related to SNC.

Evidence of Mr Poon (潘偉賢)

50.  Mr Poon Wai Yin (潘偉賢) Chairman of the IO, gave evidence by two statements dated (1) 13 August 2024; and (2) 11 November 2025.

51.  In his statements, Mr Poon’s evidence includes:

(i)  On delineation, P should have provided evidence to IO that the boundary lines drawn by the Lands Department was incorrect; and notify IO before commencement of re-delineation of boundary lines.

(ii)  P was uncooperative from the very start and refused to provide contact information.

(iii)  The so-called UBW at L5 (D3/940) was erected by the previous management company (康益管理有限公司). It has been removed.

(iv)  Due to the narrowness of the Loading and Unloading area at the G/F common area, all users must co-operate by give and take.

(v)  According to IO’s Occurrence Book, the logbook, during the periods in which L4 and L5 had been rented out, there was no obstruction complaint.

(vi)  Photos were produced (B/216W) to show P’s private car numbered LKEN 7 parking right next to the loading platform instead of inside L5.

52.  Mr Poon was cross-examined and gave evidence that:

(i)  The Loading and Discharge Area was right in front of L3 to L5 and goods had to be discharged there before being removed to the loading platform in front of the lifts.

(ii)  The location of the Loading and Discharge Area was marked and shown on the selling brochure at C/327 and the 135 workshops at Kin Wing need to share the ground floor common area for loading and discharge and entry and exit.

(iii)  Mr Poon was taken to the DMC Section V “Management of the Building” which at Part B detailed the Powers and Duties of the Manager with the duties at Part B1 subparagraphs (10), (18), (19), (21), (22), (23) [D1/521, 523-524]. He agreed those duties apply to the IO.

(iv)  He was questioned on the station and rotation of the security guard.

(v)  He was asked whether he had cast his mind on renting L4 and L5 from P to alleviate the congestion problem. Mr Poon’s answer is that he had not thought about it.

D.  ANALYSIS AND FINDINGS ON THE ISSUES

Issue No 1: Whether SNC has committed trespass upon or caused obstruction to L4 and L5; and if yes, what is the quantum of damages?

53.  It is noted that the common area at G/F is required by SCC Clause 10 of the New Grant to be used for loading and unloading, and in this case also for entry and exit per the approved Layout Plan.

54.  Burden is upon P to prove trespass or obstruction. Given 135 workshops, it is inevitable that in loading and unloading at the common area, temporary inadvertent crossing of the boundary lines of L4 or L5 may have happened.

55.  As the information presented for L4 in the form of a Table at D2/808-819, most of the entries are marked with the words “Not Sure” as to whether there was trespass (越界), and more entries are marked with “X” to show vehicles with the identified license plates number parked in front of and not in L4 (泊在公共地方，在L4車位後面). As there is no information as to the duration of the parking, it is impossible to draw any conclusion as to obstruction. Similar information has been presented for L5.

56.  In P’s evidence, P drew a distinction between vehicles of SNC and of others. She considers obstruction or trespass by other vehicles to be temporary, to be distinguished from SNC’s vehicles, not temporary but continual. There is no basis for such a distinction from the photo shots and video clips taken at her instruction and directed at SNC’s vehicles.

57.  I have reviewed the Ground Floor Layout Plan and instances of targeted photo snap shots of SNC vehicles, alleged by P as having trespassed L4 and L5 or otherwise obstructed P’s vehicles. In the first place, the combined percentage of alleged instances of trespass or obstruction of L4 and L5 had declined over the years: (i) for L4, from 79 instances in 2018; 86 instances in 2019; 25 instances in 2021; and (ii) for L5 from, 64 instances in 2018; 49 instances in 2019; 12 instances in 2020 and 7 instances in 2021. P admits in Court that trespass and obstruction in recent years be slight.

58.  I find that the snap-shot instances cannot prove the alleged trespass to be direct and intentional, even if there had been momentary crossing over the marked boundary lines of L4 and L5. There is no evidence of intentional parking or remaining on L4 or L5.

59.  In the circumstances of this case, the evidence of Ms Li is accepted that SNC had not directed drivers where to park for loading and unloading, and parking on the common area in front of L4 and L5 as directed by the security guard of IO, was not trespass. The evidence of Mr Poon also confirms that the IO managed parking on the common area by vehicles for loading and unloading as well as for ingress and egress. Shorn of evidence of parking in and remaining on L4 and L5, SNC’s drivers could not have caused the vehicles to trespass L4 and/or L5. Further SNC could not have knowledge of where its drivers were directed by the security guard to park for loading and discharge, that would depend on the situation of the common area at that particular moment on that particular day. Hence, the label of “voluntary” is not available to make SNC liable as the facts of this case differs from the car park in Fan Tony v IO of Kung Lok Building, HCMP 1861/2004, unreported, 17 February 2006 [P’s LoA #9] that was converted into a guardhouse.

60.  As for obstruction, even had there been momentary obstruction, the de minimus rule in G & Y Co Ltd v Kwok Kim Leung and Another, HCA 3586/1989, unreported, 2 July 1991 applies. I have taken into account the limited loading/discharge area at the common area of Ground Floor of Kin Wing. I accept had there been any obstruction by vehicles loading or unloading, whether by outside vehicles or SNC’s vehicles, the security guard on duty, when alerted, would have caused such vehicle(s) to be immediately removed.

61.  If P was truly concerned about trespass, she could and can place a barrier at the boundary that separates L4 and L5 and the common area.

62.  The Court is not aware of the true and complete reasons why P goes so far to take SNC and the IO to Court, whatever the cause for the animosity.

63.  I find there is insufficient evidence to justify P’s claims against SNC for trespass and obstruction, and intentional voluntary trespass or obstruction is not proved.

64.  Additionally, there is no reported and/or recorded instance of P’s vehicles being prevented entry or exit, nor any evidence as to obstruction nor the duration of any instance of obstruction.

65.  As such the reliefs P claims against SNC at the Prayer (1) of the Amended Statement of Claim for a declaration that the Defendant is not entitled to directly or indirectly trespass into L4 and L5 and at Prayer (2) of the Amended Statement of Claim for an injunction restraining the Defendant from occupying or trespassing into L4 and L5 are unnecessary and are rejected.

66.  Further, P’s damages claim at Prayer (3) for damages to be assessed also does not arise. For completeness, from P’s evidence, I am of the view that P’s alternate parking spaces for her 3 goods vehicles was for a purpose other than due to obstruction of L4 and/or L5.

Issue No 2: Whether IO had breached its duty to properly and adequately manage the Building

67.  In considering this issue, regard has to be made as to the IO’s powers and duties under the DMC that required the IO at Section V Part B [D1/519-526]:

“1. The Manager will manage the Building in a proper manner and in accordance with this Deed of Mutual Covenant and, … the Manager shall be responsible for and shall have full and unrestricted authority to do all such acts and things as may in its opinion be necessary or requisite for the proper management of the Building. Without in any way limiting the generality of the foregoing, the Manager shall have the following duties namely: -

(1) …

(10) to prevent the obstruction of all the Common Areas and to remove any article or thing causing obstruction and to demand and recover from the person by whom such article or thing was placed the cost of such removal and the making good of any damages thereby caused. Provided that the Manager shall incur no liability in the course of removing such article or thing causing obstructed.

(18) to manage and control the loading and unloading of goods within the Building and the flow of vehicular traffic intended for such purposes and in particular to ensure that the loading and unloading areas are used solely for their intended purpose and remain unobstructed and to formulate House Rules regulating the proper and smooth use of the common loading and unloading areas and to collect fees therefor.

(19) to do all things which the Manager shall in his absolute discretion deem necessary or desirable for the purpose of maintaining and improving all facilities and services in or on the Building for the better enjoyment or use of the Building by its Owner occupiers and their licensees.

(20) to appoint solicitors with authority to accept service on behalf of all the Owners of all legal proceedings relating to the Building or any part thereof and, in particular but without limiting the foregoing, in all proceedings in which the Crown or the Government of Hong Kong shall be a party and at all times within 7 days of being requested so to do by the Director of Land and Buildings or other competent office, to appoint a solicitor who shall undertake to accept service on behalf of all such owners for the purpose of Order 10 Rule 1 of the Rules of the Supreme Court (or any provisions amending or the substitution for the same).

(21) to prevent any person from occupying or using otherwise than in accordance with the written permission of the Manager or the provisions of this Deed any of the Common Areas.

(22) to take all steps necessary or expedient for complying with the covenants and conditions contained in the Crown Grant and any statutory or governmental requirements concerning or relating to the Building for which no Owner or occupier of the Building is directly responsible.

(23) to prevent and to take action to remedy any breach by any Owner or other person of any of the covenants and conditions contained in the Crown Grant.” [my emphasis]

68.  Hence, the IO has unfettered power and discretion to properly manage Kin Wing, the Building and the common area at Ground Floor in accordance with the DMC for the benefit of all the owners, occupiers and their licensees and in compliance with the SCC of the New Grant (the Land Lease), such as in regulating vehicles entering Kin Wing whether for parking or for unloading of goods of any owner or occupier. It is in the furtherance and not acquiesce that the IO actively discharge its DMC duties at (20) and (21), in managing the Ground Floor Common Area, and balancing the needs of all owners, whether of parking spaces or of workshops operating in Kin Wing.

69.  SCC Clauses 10(b) and 11 of the New Grant further stipulated that the space provided in the Layout Plan, that is the Ground Floor Plan, shall only be used for parking, loading and unloading of vehicles. And indeed other than the parking spaces, the rest of Ground Floor, marked as common area, was used only for loading and unloading of vehicles, in particular the area in front of the elevated Loading platform, L3 to L5, and for vehicles to ingress and egress.

70.  There is nothing improper for staff of the IO (the security guards) to direct incoming vehicles to park on the common area temporarily for loading or discharge.

71.  There is also nothing improper for the IO to require drivers to leave keys behind, so that vehicles temporarily parked on the common area can be removed to facilitate ingress or egress of other vehicles for parking into spaces such as L4 and L5.

72.  Given the approved Layout, in which, by design, only a small and narrow common area is provided for both loading/unloading, turn-around and entry and exit of vehicles, it is inevitable some give and take is necessary in the interest of all the owners and occupiers. And the measure to leave vehicle keys is just one such measure necessary to ensure non obstruction so that vehicles are not prevented from entering or exiting the Ground Floor.

73.  In the context of Hong Kong, managing vehicle parking in the aforesaid manner is not uncommon whether at older industrial buildings, or at commercial or private car parks and I find there was no breach of the IO’s duties under the DMC. Further, this situation of alleged obstruction may be regarded by the Court to be matters of a trifling and negligible nature, suitable for the de minimis rule as discussed in Shing Yat-Kwong v Li Man Hong, DCMP 3218/2018, unreported, 8 February 2023 [SNC’s LoA #1] at para 58.

74.  It was also proper for the IO to require P to produce a report of authorized surveyor for vetting and approval before commencement of her re-delineation, as P’s delineation may wrongly encroach upon the common area.

75.  Accordingly, the reliefs P claims against the IO pursuant to its Statement of Claim at Prayers (3) to (8) for injunctions, declarations and orders [A/80] are rejected. The injunctions sought at Prayers (3), (7) and (8) against the IO and the 2^nd Defendant are rejected, as the IO was and is mandated to manage the Ground Floor common area for parking as well as loading and unloading for all owners and occupiers, not just about ingress and egress or other conveyances of P to and from L4 and L5. The order sought at para (6) of Prayer to remove all objects erected within L5 has been overtaken by event, as the alleged UBW has been removed. As there is no finding that the IO and the 2^nd Defendant had trespassed L4 and L5, there is no need for a declaration sought at Prayer (4) that the IO and the 2^nd Defendant are not so entitled. Finally, the order sought at para (5) of Prayer to restrain the IO and 2^nd Defendant from trespassing or occupying L4 and L5 is also unnecessary, as there had not been any allegation that the IO had previously done so.

76.  I also find there was no evidence in support of P’s Prayer (9) for damages against the IO for obstruction of P’s use and enjoyment of L4 and L5. IO’s operational management of the Ground Floor parking spaces and common area was mandated by the DMC and necessary.

77.  I, accordingly, find that the IO has successfully defended against P’s allegations of improper management in breach of the duties imposed by the DMC.

E.  CONCLUSION

78.  For DCCJ 607 of 2019, P’s claims against SNC are dismissed with P to pay SNC’s costs of this action, including all costs previously reserved, based on costs to follow the event, to be taxed if not agreed on party to party basis.

79.  For DCCJ 6528 of 2020, P’s claims against the IO are dismissed with P to pay the IO’s costs of the present proceedings, including all costs previously reserved, based on costs to follow the event, to be taxed if not agreed on party to party basis.

80.  Lastly, I thank Counsel for their useful assistance.

DCCJ 607/2019

DCCJ 6528/2020

Appendix