SHA LO TUNG DEVELOPMENT CO LTD v. PERSONS ENTERING, REMAINING ON, TRESPASSING, OCCUPYING OR DOING BUILDING WORKS ON LOT NOS 513, 1315, 1320 IN DEMARCATION DISTRICT NO 31, TAI PO, NEW TERRITORIES (“THE SUBJECT LOTS”), WITHOUT THE CONSENT OR PERMISSION OF THE PLAINTIFF AND PERSONS PREVENTING, HINDERING OR OBSTRUCTING THE PLAINTIFF OR ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR AUTHORISED PERSONS FROM ACCESS TO AND EGRESS FROM, OR ENJOYMENT OR USE OF, THE SUBJECT LOTS AND ANOTHER

HCA 1976/2017

[2018] HKCFI 228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1976 OF 2017

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D E C I S I O N

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1.  I will now give my decision in this matter.  I make an order that the same be transcribed and that copies of the Decision be provided to the parties.

2.  On 25 August 2017, Lok J granted an injunction enjoining the 2^nd defendant from doing various acts in relation to Lot Nos 513, 1315 and 1320 in Demarcation District No 31, Tai Po, New Territories, including entering onto, occupying or otherwise remaining upon the said Lots.

3.  The 2^nd defendant now seeks to discharge or vary this injunction and raises two primary issues.  The first issue, in short, is that a small house, which the 2^nd defendant calls his family’s small house, in fact stands on government land next to, but not in fact on, Lot 1320 and thus is not part of the land covered by the present injunction.  The second issue is that the 2^nd defendant, his family and other villagers, have had their access to the village’s ancestral hall, which is claimed in the 2^nd defendant’s pleadings to be an easement of necessity running through Lot No 513, prevented by the injunction, and as such, the injunction should not include access through Lot 513 to the ancestral hall.

4.  Dealing with the first issue, I note that the 2^nd defendant currently resides in Mainland China, but has said on affirmation that he intends to come back to Hong Kong and reside in the small house and use it as a retirement home.  I note also, that even on the defendant’s own case, that the small house is on government land, that the 2^nd defendant has no tenancy, licence or other permission to enter into or occupy the small house, nor has he, or anyone else for that matter, made a claim of adverse possession in respect of the same.  I further note that the 2^nd defendant has given no undertaking as to damages, nor provided any evidence of ability to pay damages to the plaintiff should he be called upon to do so. 

5.  Both parties have produced conflicting expert evidence as to the location of the small house.  As such, I find that there is a serious issue to be tried in this regard and thus that the plaintiff is not prima facie entitled to its injunction without first considering the question of damages, the preservation of the status quo and the balance of convenience.

6.  The plaintiff has provided evidence that it is in negotiation with the government for a land exchange affecting the subject lots and that the same may be jeopardised if the 2^nd defendant is permitted access to the small house.  I have noted the 2^nd defendant’s evidence that he intends to take up residence in the small house, and if this occurs, in my view it may give weight to the concerns expressed by the plaintiff and cause damage to the plaintiff.  As noted, the 2^nd defendant is in no position to pay damages and as such I find that damages would not be an adequate remedy.

7.  As to the balance of convenience, as noted, prima facie at least, the 2^nd defendant has no licence or permission to enter into or reside in the small house, and no claim in adverse possession.  He currently lives on the Mainland and has not lived at the small house, on his own evidence, since 1982.  As such, I can see no compelling reason why he should be permitted to enter into or reside in the small house.  On the other hand, the plaintiff has provided evidence of possible jeopardy to their negotiations with the government if the injunction is varied as suggested by the 2^nd defendant.  In my view, the balance of convenience firmly favours the continuation of the present order of injunction in respect of the small house.

8.  Turning to the second issue.  The 2^nd defendant’s pleaded case is one of easement of necessity in respect of Lot 513.  But I note that the 2^nd defendant’s own expert has identified at least one other route to the ancestral hall, although it would involve a longer walk.  The plaintiff’s expert has identified this route and indeed two other footpaths, although one of these paths has been gated by the plaintiff.  In these circumstances, I do not think there is any serious issue as to whether an easement of necessity arises.

9.  Mr Wong, counsel for the 2^nd defendant, has raised in argument two further unpleaded matters.  Despite the fact they have not been pleaded, I have nevertheless thought it correct to consider them.  The first is a public right of way by dedication.  With respect, I think that this is an untenable argument as Mr Wong himself accepts that no evidence of consent of dedication by the government is available.

10.  The second matter is a question of easement by prescription under the doctrine of lost modern grant.  Again, I do not think that this is a tenable argument as there is no evidence, in my view, of dominant and servient tenement.  A person who obviously enjoys the right over the servient land must own or occupy the dominant land.

11.  In these circumstances, I do not consider that there is a serious issue to be tried, whether as to the question of public right by way of dedication nor easement by prescription.  But, however, if I am wrong about this, I turn to look at the balance of convenience.

12.  Although the 2^nd defendant in his evidence refers to access of the villagers in a general sense, I am today only concerned with the 2^nd defendant and his own position, which is that he resides in the Mainland and occasionally visits the village.  I can see no compelling reason why he should be permitted access to the plaintiff’s land to access the ancestral hall.  In particular, there is, as noted by the experts for both sides, at least one other pathway to the ancestral hall, which would not involve entering upon the plaintiff’s land, nor involve the plaintiff opening the gated pathway.  Again, in my view, the balance of convenience favours the continuation of the present order.

13.  Mr Wong has raised a question of non-disclosure by the plaintiff at the hearing before Lok J on 25 August 2017.  Mr Wong says that the court should have been, but was not, told that there was an ancestral hall and that the two main routes to the hall would be blocked.  In response, Miss Wong, who appears for the plaintiff, has pointed out that on 25 August, the 2^nd defendant was represented both by counsel and solicitors, and his counsel indeed addressed the court.  It is plain to me that the 2^nd defendant would have known about the ancestral hall and certainly about the routes to that hall on 25 August, if not at an earlier time, and would have been able to instruct his counsel as to these matters.  The fact that at some later stage one of the pathways was gated is, in my view, neither here nor there.  I find that there is no case of material non-disclosure here.

14.  In all these circumstances, the order of Lok J dated 25 August 2017 will continue until trial or further order, but subject to an amendment, that is, I think, sensibly proposed by Miss Wong, and that is to identify with precision the fact that the small house is included in the order of injunction.

15.  The court makes the following orders:

(1) the 2^nd defendant’s application to discharge or vary the order of Lok J dated 25 August 2017 is dismissed;

(2) The said Order of Lok J will continue until trial or further order, save that the said order be amended by the addition of the following paragraph:

“ 7(d) for the avoidance of doubt, orders 7(a), (b) and (c) above include the small house as identified in Exhibit LKM-1 to the affirmation of Lee Kwai-man, dated 27 October 2017 and bearing the address 沙螺洞一號A or Sha Lo Tung No 1A.”

(3) the costs of today’s application will be costs in the cause.