WONG WAI LIN LANA v. HEUNG WAH WING and Others

1993, No. A8731 & 1996, No. 11746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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The Action

1. This action concerns a piece of land and a mooring at Marina Cove. The plaintiff complains that the defendants occupied the piece of land by trespass. The defendants say that the plaintiff sold the piece of land to the third defendant, and they are entitled to have it assigned to the first and second defendants. The defendants also say that, as against the plaintiff, they are entitled to the exclusive use of the mooring.

The Plaintiff's Pleaded Case

2. The plaintiff first commenced action on 28 September 1993 against the third defendant alone. The plaintiff had been the owner of two adjoining pieces of land, each with a house and garden, at Marina Cove. These pieces of land have been referred to in this trial as E2 and E3. She sold and assigned E2 to the third defendant.

3. After some largely irrelevant pleading about the details of the deed of mutual covenant, the plaintiff alleges that on "a date or dates unknown to the plaintiff, the [third defendant] wrongfully demolished removed or caused to demolish remove the wall partitioning the garden . . . without the written consent of the management company for the development and/or the plaintiff and in contravention and breach of the [deed of mutual covenant]." The plaintiff goes on to allege that, after demolishing this wall, the third defendant wrongfully entered and took possession of the garden forming part of E3, and deprived the plaintiff of the use and enjoyment of that part of the garden of E3 and the adjoining mooring. Thus, the plaintiff says, the third defendant has trespassed on her land.

4. The plaintiff alleges that she demanded, on 22 and 29 June 1993, that the third defendant rebuild the wall and refrain from trespassing. She asks for a declaration, injunctions, an order for possession, mesne profits and damages.

5. In May 1994, the plaintiff amended her statement of claim to add the first defendant. The allegations against him were that he had possession of E2 and trespassed on E3.

6. On 15 October 1996, the plaintiff commenced action against the first and second defendants. They became the owners of E2 by an assignment dated 27 May 1994. The allegations made here are much the same as in the action against the third defendant, save that the demolished wall is more specifically identified as a "concrete wall" dividing the gardens of E2 and E3.

The Defendants' Pleaded Case

7. In their defence in the first action, the first and third defendants deny that they demolished the partition wall. They allege that, while discussing the sale of E2 on a site visit, the plaintiff represented to the first defendant that "the gardens and moorings of [E2] were particularly large when compared with those of neighbouring houses and that moorings were for the exclusive use of the owner of" E2, and that the "garden and the said moorings of [E2] at the time of the site visit were in exactly the same locations and of the same dimensions as they are [now]". In reliance on this representation, the third defendant, through its agent the first defendant, orally agreed to buy E2 "which includes the garden which is at the same location and of the same dimensions as the existing garden . . . and the right to use and occupy the whole of" the mooring. The defendants further allege that, at the time of the site visit, there was no access from E3 to the mooring.

8. The defendants say that the written agreement and the assignment by the plaintiff to the third defendant were "intended to comprise a garden which should be of the same dimensions and at the same location as" the existing garden "together with the right to the exclusive use and occupation of" the mooring. The agreement and the assignment, it is said, "contained an error" in this respect. The plaintiff and the third defendant executed the documents without perceiving this error, and the documents should be rectified.

9. If the wall was demolished and rebuilt, say the defendants, this was done by the plaintiff.

10. The defendants say that the plaintiff is estopped from denying that she sold the garden as seen and the exclusive right to the mooring. It is also alleged that the plaintiff was fraudulent or negligent in that she knew, or ought to have known, that the garden was smaller that it appeared, and that the owner of E2 did not have exclusive use of the mooring.

11. The defendants counterclaim for rectification of the agreement and the assignment, and various orders.

12. In their defence in the second action, the first and second defendants raise much the same allegations.

The Plaintiff's Reply

13. In her reply and defence to the counterclaim, she essentially denies the allegations in the defendants' pleaded case.

The Evidence

14. Because it was apparent that there would be contradictory evidence presented by the parties, and issues of credibility would arise, I directed that the witnesses should give their evidence in chief orally, without reference to earlier written statements. This was done.

15. Although, for reasons that remained unexplained, the plaintiff's pleaded case made no mention of a substantial concrete wall allegedly built by the defendants to enclose the piece of land in dispute as part of the garden of E2, it appeared from the evidence that this was the plaintiff's main cause of complaint. I will refer to this wall as the "high wall". The wall to which the plaintiff refers in her pleadings was a wall that had originally divided the gardens of E2 and E3, but, at the relevant time, this wall was, by all accounts, in ruins. It was variously described, but the impression given was that, when it was seen by the first defendant, it was little more than rubble. Mr Albert Poon, the plaintiff's husband and a witness for the plaintiff, indicated to me that it was difficult to see without standing on it. I will refer to this as the "low wall".

16. In this context, it is difficult to understand why the plaintiff pleads that the defendants demolished and removed this low wall, but makes no reference at all to the high wall. The defendants specifically refers to the high wall built by the plaintiff in their pleadings. The plaintiff originally replied to this as if she has no idea what they are talking about. She amended her reply later to say, in essence, that she did not build the high wall.

17. Because it appeared that the plaintiff had made out a prima facie case of trespass, Mr Chan accepted that the onus was on the defendants to justify this. Accordingly, the defendants presented their case in the first instance.

The Defendants' Evidence

18. The main witness for the defendants was the first defendant, Mr Heung Wah Wing.

19. Mr Heung deposed that there was only one significant meeting with the plaintiff. This was at the site visit in February 1992, before the written documents were executed.

20. Mr Heung said that the plaintiff showed him the garden of E2. She told him that the garden was large, and he should look at the garden opposite, which was much smaller. He saw the high wall separating the garden of E2 from that of E3. He could not see the garden of E3 because the wall blocked his view. This was then where it is now, and is unchanged.

21. The plaintiff told him that not only was the garden large but there was a mooring place for his use; an independent mooring, the mooring for E3 was on the other side. She said that each house had a mooring, but he could not see the mooring for E3 because it was on the other side. There was an access to the mooring from the garden of E2. After seeing the site, and talking to the plaintiff, his understanding was that the high wall was the boundary of the garden of E2, and that the garden of E2 had access to the mooring he was shown for the exclusive use of the owner of E2.

22. Mr Heung took Mr Saeki Ko, of the third defendant, to see E2. He pointed out to him the garden as he understood it to be. He advised Mr Ko of the right of the owner of E2 to use the mooring.

23. Mr Heung said that did not meet Mr Albert Poon, the plaintiff's husband, until after the documents relating to the purchase of E2 were signed.

24. Under cross-examination by the plaintiff herself, Mr Heung said that he and the plaintiff went to the site with only a Filipino driver and a Filipino maid in a van marked "How Wai Flower Shop". Mr Poon was not there on that occasion.

25. He denied that the high wall was not there at the time of the inspection, only a wooden partition.

26. Under cross-examination by Mr Lee, Mr Heung denied that he had driven the plaintiff to the site on the first occasion with the plaintiff's Filipino maid. He agreed he did not tell the plaintiff he was acting as an agent. He did not go to the site with Mr Poon until after the documents were signed. On that occasion, Poon did not mention the garden, the mooring and the demarcation.

27. Mr Heung's evidence regarding the high wall was supported by that of Mr Leung Chat Wai.

28. Mr Leung lived opposite E2. He had a clear view of the gardens of E2 and E3. He told me that the high wall had been there since before Mr Heung moved into E2. He denied that there was ever a wooden wall in the same place. There was no wall made of wood and painted.

29. The first defendant was also supported by Mr Ian Nicholas Bebbington.

30. Mr Bebbington was a tenant in E3. He required the high wall to be built where it was seen by Mr Heung. It was built in April 1991. It was constructed from breeze blocks, cement coated and whitewashed. It was never altered while he was there. The wall was not made from plywood.

31. Mr Saeki Ko also gave evidence. He was the alter ego of the third defendant. From what Mr Heung told him, he thought that the third defendant was buying what Mr Heung had pointed out to him. He thought the concrete wall was the boundary of the garden.

The Plaintiff's Evidence

32. Madam Wong told me that the significant visit to E2 was not as Mr Heung has described it, but was in the company of her husband, Mr Albert Poon. Mr Poon drove them there in a Mercedes car. Once in the garden of E2, Mr Poon explained to Mr Heung "which garden belonged to him and which to E3". Mr Poon also explained that half the mooring was for E2 and half for E3.

33. Under cross-examination, Madam Wong said she took Mr Heung to E2 for the first time, without Mr Poon, although she had no keys and there was not much light, because Mr Heung insisted.

34. On the significant visit, she asked Mr Poon to explain about the garden and the mooring because she did not understand. After some evasion, she said that she did understand about the garden and the mooring. After some considerable effort by Mr Chan, she said that she did not explain to Mr Heung herself because Mr Heung suggested that Mr Poon should be with them. She said that Mr Heung knew Mr Poon having been introduced to him some few months before in Kowloon near the Peninsula hotel. Mr Poon himself denied this. He said he was not acquainted with Mr Heung before the meeting. Madam Wong said that Mr Poon explained to Mr Heung that, from the garden of E2, one could not go onto the mooring. He also explained that E2 and E3 had small gardens with a low wall in between. There was also a high wall so the gardens were divided into three portions. She built the high wall. It was wooden, with a cement covering and cement coloured paint so that it looked like a cement wall. This was pulled down by the defendants, and they built another wall. She agreed that this fact was not alleged in her pleadings, although this was her main complaint. Late in her evidence, she said that she told Mr Heung about the wooden wall, and that it was built at Mr Bebbington's request. She did not mention this before because she was not asked. She told him there was a mooring for E2 but he could not use it. After some shilly-shallying, she said that Mr Poon explained everything to Mr Heung; she did not. She simply said that what Mr Poon said was correct. Mr Heung said that the non-access to the mooring did not matter to him because he did not do boating. She discovered that the defendants had pulled down the wooden wall and erected the present wall a few months later. Mr Poon complained to her that he could not go to the mooring because the new wall had been put up. This was a few months after the sale. She could not explain how it was that her solicitor's letter of 22 June 1993 did not mention pulling down the wooden wall and erecting the present one.

35. Under re-examination, she said that she instructed her solicitors to issue the writ because the defendants pulled down the wooden wall and built a larger one, and the place where this wall was belonged to E3. When Mr Lee put to her that the claim did not mention this, she changed her story; that the complaint was about the short broken wall.

36. Mr Albert Poon gave evidence in support of his wife. Mr Poon is a former senior officer in the Hong Kong Police. He said that, when the writ was issued in 1993, the particular matter that alarmed him was that he could not have access to the mooring because of the encroachment. He did not know when the documents were signed so he did not know if his meeting with Mr Heung on the site was before or after this. At that meeting, he showed Mr Heung the mooring access and explained that E2 was unable to reach the pontoon. He showed Mr Heung the partially demolished common wall. He stood there and pointed out to Mr Heung the proper position of this wall. He pointed out that the white plywood wall at the end of the garden was put up by him because he intended to use that section of E3's garden on the E2's side to gain access to the mooring. Under cross-examination, he said he had never met Mr Heung before; he was not acquainted with him. In the face of Mr Poon's explanations, Mr Heung did not raise any questions. He explained to Mr Heung that E2 had no access to the mooring; that was the main purpose of the meeting - to explain that to him. Mr Heung made no comment on this. He found out that his access to the mooring was obstructed in August 1992. This was so because the wall he built had been re-enforced with concrete, and he could not "officially" get to the mooring without climbing over the railing. Before the defendants built this new wall, he had access. This evidence was very difficult to understand, and was, in fact, complete nonsense. Mr Poon eventually admitted as much. He said that the alleged re-building of the wall by the defendants had made no difference at all to his access to the mooring. Mr Poon then changed tack and said that the complaint was that the common boundary wall was not re-built. Mr Poon was quite unable to explain why he thought that the defendants had an obligation to re-build the common wall. He was also unable to explain why the complaint was that the defendants had obstructed his access to the mooring when it was he, himself, who had erected the wooden wall that caused that obstruction.

37. In re-examination, Mr Lee tried to get from Mr Poon that the defendants may have pulled down the wooden wall and erected the present wall when Mr Bebbington was on leave. This was not put to Mr Bebbington. Mr Bebbington was quite clear that the high wall built at his request was not a wooden wall. He, quite naturally, became somewhat exasperated with Mr Lee with the suggestion that he might not know what kind of wall was built when he saw that it was built as he described.

Assessment of Defendants' Evidence

38. Mr Heung was an impressive witness. His evidence was clear, straightforward and unshaken. He did not exaggerate or embroider his evidence. He did not attempt to suggest, as he might have done if he were dishonest, that Madam Wong specifically pointed out the high wall, and said that this was the boundary of the garden of E2. He says, in essence, that Madam Wong said - "Here is the garden. You can see for yourself that it is larger than other neighbouring gardens." That is just what one would expect in that situation.

39. Mr Heung is also strongly supported in his evidence about the high wall by two convincing, totally independent witnesses.

40. Mr Heung is also supported by the probabilities. It is unlikely in the extreme that, after being told quite specifically the area of the garden of E2, that the defendants would proceed to spend money on redeveloping land that they knew was not theirs. That the third defendant did so is not challenged. It is also most improbable that the plaintiff, knowing that the defendants had arrogantly and blatantly assumed rights of ownership over part of her land as early as August 1992, when she had taken the trouble to tell them that this land belonged to E3, would wait almost a year before instructing her solicitors do something about it. And when the solicitors do something about it on her instructions, the main complaint that she now says concerned her was not mentioned at all in the letters before action or in her pleadings. There was no explanation for this extraordinary situation.

41. I have no hesitation at all in accepting Mr Heung as a trustworthy witness to the truth of this matter.

The Plaintiff's Evidence

42. In contrast, the evidence of both Madam Wong and Mr Poon was inherently unsatisfactory and incredible. Madam Wong, in particular, was simply not believable. She contradicted herself, and gave me the strong impression that she was prepared to invent facts if she thought it suited her case. This did not suit her case. It was quite clear that she was inventing. For example, to explain why Mr Poon was involved at all, she invented the fact that this was at Mr Heung's request because he knew Mr Poon. Even Mr Poon did not back her up on that. Mr Poon was really not much better, and this in spite of the fact that Mr Chan did not cross-examine him at great length; undoubtedly because he believed, rightly, that I would find that the couple were not credible. Mr Poon attempted to mislead me by suggesting that his genuine complaint was that the defendants has obstructed his access to the mooring. He had to concede that he himself had blocked this access, and, even on his story, the defendants had not changed the situation.

43. Even taking their evidence as it stands, I have no hesitation in rejecting it as untrue. Both Madam Wong and Mr Poon clearly established, by the inherent weaknesses in their own evidence, that they were unworthy of belief. But their evidence does not, of course, stand alone. They are contradicted on essential points by two completely unbiased witnesses, the plaintiff's case is inherently improbable, and there are the other unsatisfactory features of the plaintiff's case that I have already mentioned.

The Strength of the Defendants' Case

44. All this leads inevitably to my conclusion that the defendants' have established their factual case convincingly. There is no need for them to do so, but, in my view, they have established the facts on which they rely beyond a reasonable doubt.

The Established Facts and Their Effect

45. As far as the garden is concerned, what Madam Wong said to Mr Heung, by words or necessary implication from her conduct, was - "Here is the garden. You can see it for yourself. It is large; larger than other neighbouring gardens. In the direction of E3, the garden of E2 is bounded by the high wall. That is the garden that I will sell."

46. So that was the garden that Mr Heung believed would be sold and assigned if a deal was concluded. And, through Mr Heung, that was the garden that the third defendant believed would be sold and assigned if a contract was concluded.

47. What did Madam Wong believe? There are two possibilities here. Either she had forgotten that the high wall encroached into the garden of E3, and she also believed that the garden as seen by Mr Heung was what would be sold and assigned, or she knew well that the garden of E2 was much smaller than it appeared and she deliberately misled Mr Heung. Either way, it does not matter. If both she and Mr Heung were mistaken, the defendants are entitled to have the contractual documents and the assignment rectified to accord with their belief as to what was being bought and sold. If only Mr Heung was mistaken, and Madam Wong had deliberately lied to him, it would be unconscionable to allow the plaintiff to keep the transaction unrectified to reflect what the plaintiff had induced Mr Heung to believe.

48. Accordingly, it seems to me, in equity the defendants are entitled to have the relevant instruments rectified to reflect that the third defendant purchased the garden of E2 up to the high wall, and that the first and second defendants are now the owners of that land.

49. The mooring is, in my judgment, in a different position. I accept, as I have said, that Madam Wong said what Mr Heung says she said about the mooring. But it seems to me that, construing what Madam Wong said as well as I can, there is room for a genuine misunderstanding. It is quite possible that everything Madam Wong said about the mooring is consistent with her saying that both E2 and E3 have moorings, and that they are separate and independent. That is indeed the case. I do not think it is possible to conclude that the defendants have established convincingly that what Madam Wong was saying was that the physical mooring in front of E2 and E3 was for the use of E2 only, and E3 did not have the right to use it.

50. In any event, I am not sure that I have enough material before me to conclude that the right to use a mooring is a property right. On what little I do know, it seems to be no more than a right to apply to the management of Marina Cove for a licence to moor. I have nothing before me that shows that the plaintiff intended to sell and did sell any right of property to the mooring, or that she had any power to do so.

The Result

51. In the result, the plaintiff's claim is dismissed.

52. The defendants' counterclaim is allowed to the extent that it applies to the piece of land in dispute. It is dismissed in so far as it applies to the claim to the exclusive right to use the mooring dock outside E2 and E3. The defendants are entitled to rectification of the appropriate instruments and ancillary relief. The rectification should be based on the survey by Mr Henry Chan. I leave it to the parties to draw up the necessary draft order. If the parties cannot agree as to the terms of this, it will be necessary to come before me again.

The Costs

53. The matter of costs has not been argued. There seems no obvious reason why costs should not follow the substantive event. I make an order nisi that the plaintiff pay the defendants' costs of the claim and counterclaim.