VALSALAN IVY VIMALA v. CASTKA RICHARD PATRICK JOSEF AND ANOTHER

HCA 2668/2018

[2024] HKCFI 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2668 OF 2018

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J U D G M E N T

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I.  INTRODUCTION

1.  This case arises out of a boundary dispute between neighbours. The plaintiff owns section H, while the defendants own section G.  Sections G and H are sub-divisions of 434 Section F sub-section 1 in Demarcation District (DD) 9.  Sections G and H adjoin each other and share a common boundary.  Section G lies to the north of the boundary, while section H lies to the south.  I must decide whether a fence which the defendants erected along what they believed was their side of the common boundary, encroaches on the plaintiff’s property. If so, the plaintiff asks for an order that the encroaching portion of the fence be demolished.

II.  BACKGROUND

2.  At some point in the early 20^th century, Lot 434 of DD 9 was split into sections A to E on the one part and section F on the other.  In about 1953, Lot 434 section F was further split into a sub-section 1 and a Remaining Portion.  

3.  In 1959, MrLi Kun Mui and Madam Tsang Yee Kiu (husband and wife) became the owners of Lot 434 section F sub-section 1.  In about 1978, Lot 434 section F sub-section 1 was split even further into a section A and a Remaining Portion.  

4.  In 1994, the Remaining Portion of Lot 434 section F sub-section 1 (the Parent Lot) was sub-divided into 11 pieces of land, namely, sections B, C, D, E, F, G, H, J, K and L (collectively, the individual sections) and a Remaining Portion.  This division was achieved by a Deed Poll dated 8 March 1994.  By the Deed Poll each of the individual sections was to occupy about 145.0 square metres, with the Remaining Portion taking up about 123.8 square metres.  Sections G and H of the 1994 sub-division are the subject matter of these proceedings.

5.  A Memorial TP 440594 dated June 1993 contains a Division Plan showing the Parent Lot divided into the individual sections. Reflecting the Deed Poll, the Division Plan (drawn to a scale of 1:1000) states that the individual sections each occupy 145.0 square metres and the Remaining Portion takes up 123.8 square metres.  This would give a total area of 1,573.8 square metres for the Parent Lot.  However, according to a joint survey report dated 22 June 2021 submitted by the parties in these proceedings (see [13] and [18] below), the scaled graphical area of the Parent Lot is in fact 1,794 square metres. By that measure, each of the individual sections occupies about 165.3 square metres and the Remaining Portion takes up about 141.0 square metres. The figures of 145.0, 123.8 and 1,573.8 square metres in the Division Plan are thus inaccurate.

6.  The Division Plan does not identify occupations (features) within the Parent Lot which were used as reference points in marking out the individual sections on the Division Plan. 

7.  Mr Li and Madam Tsang have since passed away.  But their son, MrLee Koon Cheung, has given evidence in these proceedings, both in writing and orally, to the effect that he was responsible for the construction of some houses in the individual sections of the Parent Lot.  Those houses included House 25B on section H (which the plaintiff and her late husband purchased) and House 25C on section G (which the defendants purchased).   

8.  More particularly, MrLee’s evidence was that he engaged a construction company to build Houses 25B and 25C. MrLee also engaged a surveying company and what he called a “T2” to ensure that the houses were built within their sections and would be structurally sound. 

9.  Mr Lee instructed the construction company to use different tiling to identify the boundaries of sections G and H. The tiling work was done before the sale of sections G and H, with the tiles being laid after the houses there were built. Brown tiles were used to mark out section G, while white mosaic tiles were laid to mark out section H.  

10.  Mr Lee is not himself a surveyor.  He left it to the persons that he had engaged to carry out their work as professionals. Mr Lee fairly acknowledged at the hearing before me, that he could not vouch for the accuracy of the surveying done by the persons engaged.  Nor was he in a position to say whether the brown and white mosaic tiles as laid out by his contractors, correctly designated sections G and H.  For this reason, in the Sale and Purchase Agreement for section G, Mr Lee (as lawful attorney for his brother Mr Lee Sai On) sold section G to the defendants on an “as is” basis, without warranty “as to the area age state structure and condition of the Property”.

11.  There is no record of the survey work (if any) which MrLee’s contractors carried out before laying out the tiles in sections G and H. Apart from the survey plans that I describe below, no other survey plans of sections G and H have been found.

12.  The plaintiff and her husband acquired section H in December 2006. The defendants acquired section G in January 2007.  There was no fence between sections G and H at the time. In February and March 2007, the defendants built the fence (the subject of the present dispute) on what they supposed was the boundary between sections G and H. They used the brown tiles laid down by MrLee’s contractors, as their guide to where the boundary between sections G and H was supposed to be. The resulting fence is 0.16 m thick.  

13.  There were three surveys of the boundary between sections G and H before the joint survey conducted by the plaintiff’s expert MrIan Wootten (an Authorised Land Surveyor) and the defendant’s expert MrTang (a Registered Professional Surveyor (Land Surveying)) for these proceedings.

14.  In September 2011, MrChan Tak Hing, an Authorised Land Surveyor, surveyed section H.  MrChan’s survey plan was not deposited with the District Survey Office (DSO). MrChan determined that section H had an area of 166.7 square metres. He recorded that the fence between sections G and H was partly within section G and partly within section H. Specifically, the western part of the fence encroached by 0.080 metres into section H. The encroachment is marked blue in Annex 1 to this Judgment.

15.  In September 2012, MrJohn Barrett, an Authorised Land Surveyor, surveyed section H. He recorded the presence of a fence between sections G and H, noting that the fence encroached within section H by 0.090 metres at the western end and 0.33 metres at the eastern end. The additional encroachment found by Mr Barrett is marked in red in Annex 1.  MrBarrett determined an area of 169.1 square metres for section H.  He noticed that the north-western corner of section H was a point in common with a survey of Lot 687 SA ss 1 SE in 2007. The latter survey adopted this common point by reference to a survey of Lot 434 SF ss 1 SA in 2004.  As Mr Chan did in 2011, MrBarrett took the northeast corner of Lot 687 SA ss 1 SE as the north-western corner of Section H. 

16.  In their joint survey, Mr Wootten and MrTang agree on several matters in relation to the surveys by MrChan and MrBarrett:

(1)  Both the Chan and Barrett surveys adopted similar coordinates for points on the southern boundary of section H below point E on their respective plans.  But Mr Chan and Mr Barrett did not adopt common coordinates for points B, C and D on their respective plans. 

(2)  It is not known whether Mr Barrett had seen Mr Chan's plan before carrying out his survey a year later.

(3)  The north-western most point of section H was established in 2004 and has been adopted by all surveyors except the DSO.  The DSO has adopted the eastern coordinates for section H but not the northern ones. It has never produced a boundary plan for Section H.

(4)  By comparison with Mr Chan, Mr Barrett skewed the northern boundary of section H.  This changed the area of section H, as determined by Mr Barrett, from 166.6 to 169.1 square metres.

17.  In 2019, MrTang surveyed section G. His survey plan records the boundary fence between sections G and H (including column positions).  He adopted MrBarrett's boundary as the common boundary with section H and came to the same conclusion as MrBarrett on the offset dimensions of the fence. He determined an area of 163.1 square metres for section G.

18.  MrWootten and MrTang conducted their joint survey in March 2021.  They took the control points previously used by MrBarrett as the starting basis for their joint survey. Using those control points, Mr Wootten and MrTang confirmed the boundary which MrBarrett identified in his survey plan. 

19.  MrWootten and MrTang found brown tiles in the northeast corner of section H and the southeast corner of section G.  These extended outside the fence to form a right-angle corner in section H.  The tiles appeared to be of similar age and colour to those found around House 25C.  In contrast, there were white mosaic tiles in section H, none of which extended into section G.

20.  Nails like those used for boundary marking were found near points B, C and D in MrChan’s and MrBarrett’s plans.  But the coordinates of those nails did not match MrChan's or MrBarrett's plan. Neither of Mr Chan’s nor MrBarrett’s plan records the placing of marks at points B, C or D, so the status of the nails is unknown.

21.  MrWootten and MrTang agreed that, given an absence of occupations by reference to which boundaries might be determined, the intent of an equal division among the individual sections should be respected.  On this basis, MrWootten and MrTang expressed a preference for MrChan’s survey.  They accepted Mr. Chan’s results as authoritative, although his survey was not deposited with the DSO. They concluded:

“Now that Sr [Surveyor] Chan's plan has been found it is considered a better fit and if the northern boundary of H is adopted, the area of G would be 165.3 sq. m. The area of P's & D's lots are more or less the same (i.e. 166.6 sq. m & 165.3 sq. m respectively). It is able to satisfy the intention of the original subdivision to create two lots of equal areas as envisioned in the original division plan.”

22.  Despite the seeming agreement between MrWootten and Mr Tang in their joint survey, MrTang unilaterally submitted a Supplementary Expert Report on 15 September 2023.  In his Supplementary Report, relying on MrLee’s affirmation evidence on tiling, MrTang wrote:

“By cooperating the better available evidence from Lee that if Boundary point B adopted the existing tile corner and introduce additional point at the corner of the west end column, the area of H would be 165.9 sq. m, and Tang's survey adopts this boundary an area of 166.0 sq. m. The area of P's and D's are almost the same (i.e. 165.9 sq. m. (about) & 166.0 sq. m. (about) respectively). It is able to meet the intention that the original subdivision to create lots of equal areas as envisioned in the original division plan.”

23.  Mr Tang reasoned as follows:

“11. The existing tiles affirmation is a piece of better available evidence in this case, so that the common boundary should be reviewed accordingly.

12. The existing tiles (i.e. existing occupation) were laid intentionally prior to the sale of the two properties G & Has the common boundary; and it should be respected.

13. The existing tiles on H remain unchanged as now along the concrete fence.

14. The areas of both G & H are the same (i.e. 166.0 sq. m. (about)) if the existing tiles evidence is taken into accounted as the intention of the original subdivision on appendix 4.”

24.  Mr Tang’s change of mind picks up on a comment that he made in the 2021 joint survey as follows:

“If Chan's northern boundary has taken the outmost wall corner at point 18 into account, area of 166.0 sq. m. on the south in section H can be calculated. If this common boundary is applied to the Tang's plan, almost the same area of 165.9 sq. m on the north in section G can be calculated. A bend at point 18 would be introduced between boundary points A and B on Chan's plan which follow the outmost alignment of the existing wall.”

At the time of the joint survey, Mr Tang’s comment did not prevent him from agreeing with the conclusion quoted in [21] above.  Mr Tang’s change of heart was prompted by Mr Lee’s affirmation evidence (which came after the joint survey).  Having heard Mr Lee’s oral evidence at the substantive hearing before me, Mr Tang remains of the view expressed in his Supplementary Report.

25.  Mr Wootten disagrees with the Mr Tang’s Supplementary Report.  In a Joint Reply dated 18 March 2024 prepared by Mr Wootten and Mr Tang, Mr Wootten explained why he disagrees: 

“No land surveying evidence has been found as to its [the tiling’s] relevance to the boundary which on all records appears as a straight line. I do not agree with Vincent’s [Mr Tang’s] supposition ... this demarcation between tiled areas was ever surveyed before construction nor how the line of the different section was established.

26.  In these proceedings, given Mr Chan’s survey plan, the plaintiff is now only seeking the demolition of the fence to the extent that it encroaches on the western side of section H by 0.080 metres.  

27.  Mr Tang’s comment at [22] above refers to the introduction of “an additional point at the corner of the west end column”.  The “additional point” referred to is the point marked “1” at the western most corner of the blue-coloured area in Annex 1.  Mr Tang is essentially suggesting that the boundary between sections G and H should follow the line of the fence until the point marked “1” and then proceed in a north-westerly direction from the point marked “1” to the point marked “A15” at the left-side of Annex 1.  This would produce a bend or kink in the common boundary between sections G and H.  If this kinked boundary is adopted, the result would be that the fence comes within the boundary of section G. 

28.  In her Statement of Claim, in addition to seeking the demolition of that part of the fence which encroaches on section G, the plaintiff prayed for (1) damages for trespass and (2) HK$16,200.00 by way of surveying expenses. But, in her summary judgment application before the substantive hearing before me, the plaintiff stated that she was no longer seeking those reliefs. On that understanding, although I refused summary judgment and instead gave the defendants unconditional leave to defend, I ordered that there be a speedy trial with the affidavit evidence and expert reports submitted by the parties standing as factual and expert witness statements.

III.    DISCUSSION

A.  Methodology

29.  In their Joint Reply dated 18 March 2024, Mr Wootten and Mr Tang set out how they established the boundary reference points considered in their joint survey.  They stated:

“(a) The base map for all surveys in the NT [New Territories] is the DD sheet and the accompanying Block Crown Lease. This is [a] plan done [on] graphical description only on no known coordinate system.

(b)  Making a comparison to old survey sheets and old serial photographs is then done to see if any evidence can be found.

(c)  One interpretation of these steps is on the Lot Index Plan (LIP) established by the DSO.  However, this is conditioned by them [the DSO] in saying it is not definitive and MUST BE INTERPRETED BY A PROFESSIONAL LAND SURVEYOR.

(d)  Search for any other surveys adjoining to ensure the common boundaries are maintained.

(e)  Search for any subdivision plans of the Lot to find if any descriptions of features or of areas are recorded.

(f)  Visit the site and find relevant Control Marks.  This will enable a connection to be made to the coordinate system used in production of plans and for using older information.  The best marks to be used are those used previously in determining the boundary of the Lots.  In this case it was Barrett and Chan for Section H and Tang for Section G.  This finding of old control was achieved, checked, and adopted as itemised in Para 17 of Joint Expert Report.  These control marks could also be called reference points for the survey.

(g)  Measure up all features relevant to the boundary.

(h)  Using all above information delineate the boundary.

(i)  Boundaries have been previously determined by Barrett and Chan for Section H and Tang for Section G.”

30.  The experts’ task was essentially to re-establish the lot boundaries of sections G and H.  Both experts were guided in this by the “General Principles for Re-Establishment of Lot Boundaries” in section III of the Code of Practice (5^th edition, December 2021) promulgated pursuant to the Land Survey Ordinance (Cap 473).  

31.  It is useful to reproduce the general principles in the Code of Practice (COP) here:

“5. In order to maintain a standard practice for re-establishment of lot boundaries, all ALSs are required to follow the general principles set out below in performing their lot boundary re-establishment work:

(a) Follow the intention of grant -- the intention of grant shall be ascertained from the parcel clause of the land grant document and portrayed in the survey report (e.g. the intention of grant is to follow the occupation on ground, or the shape/ dimension/ area being shown or depicted by the relevant boundary line on the grant/ assignment/ division plan, etc.);

(i) Adopt original occupation -- the re-established boundaries should follow those surviving boundary features that reflect the intention of grant and are found or believed to have been in existence when the lot was first granted or, in case of a section, when it was carved out from its parent lot;

(ii) Respect existing boundary features -- subject to sub-paragraph (i) above, the re-established boundaries should normally follow the existing boundary features (e.g. field bunds, building lines, fences, walls, hedges, ditches, channels, etc) if these features do not deviate from the intention of grant (e.g. the relevant boundary line as shown on the grant/ assignment/ division plan);

(b)  Adopt common land boundaries previously defined --common land boundaries previously defined by ALS, Registered Professional Surveyor (Land Surveying) and the Government, should be adopted unless there is overriding justification to the contrary, which should be fully explained in the survey report (e.g. different interpretation of intention of grant, adoption of different weight on boundary evidences, etc); and ALS has the duty to liaise with the relevant professional land surveyor(s) who defined the land boundaries of the adjoining lots in order for both surveyors to avoid discrepancy or conflict along the common boundary; 

(c)  Present the evidence -- the re-establishment of lot boundaries shall be evidence based. Boundary related evidence shall be collected as far as practicable; weighted logically; adopted with justification; presented and recorded clearly in the survey report; 

(d)  Provide reasons for discrepancies -- it is essential that the positions, dimensions and areas of the subject lot and the adjacent lots be checked against the evidence which includes but not limited to land grant documents showing the intention of grant and other relevant land boundary records. The causes for any significant discrepancies in such positions, dimensions and areas should be examined, identified and justified meeting the requirements at Appendix C. In case the re-established lot boundaries fall on some existing structures or space being occupied by persons other than the subject lot owner, such situation must be highlighted in a distinct paragraph in the survey report with elaborations for the possible boundary conflicts and disputes that would be inflicted as a result of such boundary re-establishment; 

6.  Every ALS [Authorised Land Surveyor] has to observe all the above general principles in a boundary re-establishment exercise. Failure in doing so will be regarded as a non-compliance with the requirements of this COP unless the ALS can demonstrate in the survey report that in the performance of his boundary re-establishment work, there are circumstances preventing him from following the above principles.”

32.  The methodology summarised in [29] above is consistent with the COP.  In my analysis below, I shall be guided by the principles in the COP.

B.  Analysis

33.  There was much common ground between the experts.  In keeping with COP principle 5(a), both acknowledged that the original intention underlying the subdivision of the Parent Lot as manifested in the 1994 Deed Poll should be respected as much as possible.  In other words, the areas of sections G and H should be about equal with each other.  Both experts also built on the work of previous surveyors in accordance with COP principle 5(b).  For example, both took the north-western most point of section H to be that marked A15 in Annex 1 in accordance with Mr Chan’s plan as the earliest known survey done by an Authorised Land Surveyor.

34.  The difference between the experts arises from the way in which they regard Mr Lee’s oral and written evidence.  In cross-examination, Mr Tang stated that he believed that Mr Lee’s evidence on the demarcation of the common boundary by tiling was trustworthy.  On that footing, Mr Lee’s information constituted new evidence, not available until now, justifying deviation from the previous survey work done by Mr Chan and Mr Barrett.  This would be in line (Mr. Tang says) with COP principles 5(c) and (d).  

35.  Adopting Mr Lee’s evidence (Mr Tang stresses) would lead to the areas of sections G and H becoming more equal (respectively, 165.9 and 166.0 square metres, instead of 165.3 and 166.6 square metres).  In Mr Tang’s view, that would better accord with the intention of an equal distribution of land area between sections G and H and so result in a greater compliance with COP principle 5(a).

36.  It was put to Mr Tang by the plaintiff’s counsel that both the Division Plan and the Lot Index Plan showed the common boundary as a straight line, without a kink.  However, Mr Tang pointed out that the scale of those plans (1:1000) was such that a small kink of the sort in question here would not show up on either plan.  The straight line as drawn on those plans would be too thick to show the kink.  

37.  My difficulty with accepting Mr Tang’s evidence arises from the application of COP principle 5(c). I agree with Mr Wootten that, from a surveying point-of-view, Mr Lee’s evidence on what was supposed to have been done prior to the laying out of the brown and white mosaic tiles cannot be regarded as reliable evidence that (1) survey work was done or (2) (if surveying was carried out) the work was done accurately.  There is simply no evidence as to what (if any) survey work was done by the contractors engaged by Mr Lee.  

38.  More particularly, it is unknown whether the persons who worked out where to place the brown and white mosaic tiles had any surveying qualifications.  Nor is there any record as to how carefully the brown or white mosaic tiles were laid out to accord with such surveying work as may have been carried out.  In those premises, the tiles cannot constitute a cogent reason for deviating from Mr Chan’s survey.  The tiles cannot be a feature by which the common boundary can be re-established in a trustworthy evidence-based manner.  

39.  The mere fact that following the tiles would lead to a more equitable distribution of land between sections G and H would not by itself justify ignoring COP principles 5(b), (c) and (d).  Mr Tang accepted that one cannot just draw up any common boundary and justify the same by saying that it produces a more equitable distribution.  A surveyor must assess the credibility to be given to a particular occupation or feature (for example, the tiles) as a reference point for re-establishing a boundary.

40.  If the tiles are rejected as a trustworthy feature by which to determine the common boundary between sections G and H, the only alternative is to go by Mr Chan’s survey.  This would accord with principles 5(a), (b) and (c).  Consequently, I conclude on the evidence before me that the fence between sections G and H encroaches at its western side on section H by 0.080 metres. It follows that the defendants must demolish the fence to extent of the encroachment.

C.  Legal costs

41.  The plaintiff having prevailed, in the normal course of events, she should have her legal costs of these proceedings on a party-and-party basis. That would include the costs of the summary judgment application, which I ordered to be in the cause.  

42.  At the end of the substantive hearing before me, I informed the parties that I intended to assess costs summarily depending on the outcome of the proceedings.  I asked both parties to submit skeleton bills of costs on 22 March 2024 for the purpose of such summary assessment.  The plaintiff’s skeleton bill came to HK$878,475.67, while the defendants’ skeleton bill came to HK$510,438.00.  It will be seen that the plaintiff’s figure significantly exceeds that of the defendants.

43.  From the itemisation in the plaintiff’s skeleton bill, it seems to me that there would inevitably be duplication of work. 

44.  For instance, a total of 1,572 minutes (26.2 hours) and 720 minutes (12 hours) were spent by the plaintiff’s senior and junior solicitor respectively on preparing documents (including pleadings) for this case.  The plaintiff’s senior solicitor additionally spent 717 minutes (11.95 hours) perusing the documents in this action. The total professional work charged by the plaintiff’s solicitors comes to HK$299,638.33.  The plaintiff’s senior solicitor spent a further 765 minutes (12.75 hours) attending on client; 770 minutes (12.83 hours) attending on the other side; and 609 minutes (10.15 hours) attending on counsel. In total, the plaintiff’s solicitors are charging HK$302,218.33 for communications (including conference and telephone calls). 

45.  On top of the foregoing, the plaintiff’s counsel is charging $240,000 in total for a written opinion, the settling of a summons and an affirmation in rely, and briefs for the summary judgment and substantive hearing.  

46.  In those premises, I do not think that it would be reasonable for the defendants to bear all the costs of solicitors’ professional work and communications. I would discount HK$100,000 from the HK$299,638 charged for professional work and HK$150,000 from the HK$302,218.33 charged for communications to reduce duplication. This would lead to the plaintiff’s overall legal costs payable by the defendants being reduced from HK$878,475.67 to HK$628,475.67.  

47.  Plaintiff’s counsel is charging HK$80,000 for the summary judgment application and HK$80,000 for the substantive hearing. But the preparation for both matters would largely overlap.  I will therefore discount the second HK$80,000 by 50% to HK$40,000. This means subtracting a further HK$40,000 from the amount of HK$628,475.67, yielding HK$588,475.67. 

48.  I am aware that the defendants’ counsel has charged briefs of HK$70,000 and HK$78,000 for the summary judgment application and substantive hearings respectively.  But I do not think that means that the defendants should also bear plaintiff counsel’s full briefs for the two hearings. 

49.  In determining costs on a party-and-party basis, the court typically applies a discount of around 30%.  If one applies such a discount by way of a reality check to the HK$878,475.67 sought by the plaintiff, one arrives at HK$614,932.97.  That is just some 4.5% more than the HK$588,475.67 derived in [47] above.  This suggests that an assessment of HK$588,475.67 is appropriate.  The latter amount is higher by about 15% in comparison to the legal costs of HK$510,438.00 incurred by the defendants.  But the amount is not out of line.  The burden of proof in these proceedings was on the plaintiff who therefore had to do more of the “heavy lifting” in this action to meet that burden.

50.  There will consequently be provisional costs orders that (1) the defendants are to bear the plaintiff’s costs of these proceedings on a party-and-party basis, and (2) the plaintiff’s costs of these proceedings are summarily assessed at HK$588,475.67.

IV.  CONCLUSION

51.  The defendants are to demolish the fence between sections G and H to the extent that the fence encroaches into section H by 0.080 metres.  

52.  There will be provisional costs orders that (1) the defendants are to bear the plaintiff’s costs of these proceedings on a party-and-party basis, and (2) the plaintiff’s costs of these proceedings are summarily assessed at HK$588,475.67.

ANNEX 1