COMMON LUCK INVESTMENTS LTD v. STEPLAND INVESTMENTS LTD

HCA 1107/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1107 OF 2006

____________

____________

______________

D E C I S I O N

______________

1.  Common Luck seeks summary judgment against Stepland.  But I do not think that this is an appropriate case for summary judgment.

2.  Common Luck accuses Stepland of trespass.  Common Luck says that Stepland encroached upon Common Luck’s Yuen Long Lots 2723, 2725, 2735 and 2736 by enclosing them in whole or in part by fencing.

3.  Stepland admits having built a fence around Lots of which Stepland is a tenant.  These lots adjoin or are close to Common Luck’s Lots.  But Stepland says that it has not fenced off any part of Common Luck’s land.

4.  Stepland contends that the fencing of Stepland’s Lots has not prevented Common Luck from having access to Lots 2723 and 2725 (which abut on each other).  It is true that Stepland’s Lots nearly surround Lots 2723 and 2725.  Thus, the fencing of Stepland’s Lots limits the points through which Common Luck can enter its land.  Previously, all Lots were more or less open land, so that Lots 2723 and 2725 could be entered from any number of directions. 

5.  But (Stepland says) there is now a small opening from Lot 2723 to neighbouring Government Land.  Common Luck (Stepland contends) can enter or exit Lots 2723 and 2725 through this exit.

6.  In respect of Lots 2735 and 2736 which are separated from Lots 2723 and 2725, Stepland accepts that there is some fencing on those parcels of land.  But Stepland says it did not erect any such fencing. 

7.  Stepland submits on the basis of an aerial photograph that the fencing on Lot 2735 in particular appears to have been put up, possibly by villagers, as early as 1990.

8.  Common Luck does not accept that there was always an opening from Lot 2723 to neighbouring Government Land, even if there may now be such an opening.  Nor does Common Luck accept that the fencings on Lots 2735 and 2736 was put up by unknown third parties in 1990.

9.  I do not think that I can resolve the disputes just summarised by reference to affidavit evidence alone. 

10.  One side affirms that the other is guilty of trespass, the other side adamantly affirms the contrary.  It seems to me that cross-examination of witnesses (including surveying experts) and possibly a site inspection will be necessary if the Court is to determine the issues arising here.

11.  Therefore, I refuse summary judgment and grant Stepland unconditional leave to defend.