THE INCORPORATED OWNERS OF KIN YUEN MANSION v. CHAN TIN KWONG AND OTHERS

DCCJ 5673/2021

[2023] HKDC 937

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5673 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  The plaintiff (“P”) by its summons dated 22 July 2022 (“the Summons”) sought the following order:-

(1) Leave be granted to P to adduce expert evidence on liability, limited to one authorized building surveyor, Mr Chung Wai Hoi Vincent, giving expert opinion on whether the floor slab of the Store Room (as defined in paragraph 7 of the Statement of Claim) and the door opening to the Store Room on the enclosure wall at the common corridor of Kin Yuen Mansion (and any other matters in relation to the Store Room as he sees fit) are in breach of any local legislation, rule and/or regulation;

(2) There be an inspection of the Store Room by P’s expert within 21 days from the date of [this order]; and

(3) P shall file an expert report on liability within 35 days thereafter.

2.  The Summons was opposed by the 1^st, 2^nd and 3^rd defendants (collectively, “Ds”), who asked for its dismissal.

3.  By consent of the parties, DDJ Rebecca Lee had on 31 August 2022 ordered that the Summons be disposed of on paper, without any oral hearing.

4.  For logistical reasons, the paper disposal of the Summons was reassigned to me. Having read all papers sent to me at that point, I directed P and Ds to lodge supplemental submissions, which they did.

5.  Having read the supplemental submissions, my decision is to dismiss the Summons, for the reasons set out below.

Background Facts

6.  P is the incorporated owners for Kin Yuen Mansion (堅苑) at No 139 Caine Road (“the Building”) having a statutory duty under Section 18(1) of the Building Management Ordinance (“Cap 344”) to (a) maintain the common parts of the Building; (b) carry out works ordered or required by any public body in respect of such common parts; and (c) do all things reasonably necessary for the enforcement of the obligations in the deed of mutual covenant for the Building (“the DMC”).

7.  Ds are the owners of a residential unit on the 8^th Floor of the Building (“the Unit”), bound by the DMC.

8.  Looking at the approved plans for the Building, the Building was supposed to have two lift shafts, one bigger than the other. No lift had ever been installed in the smaller lift shaft. At some point in the late 1970s, that part of the smaller lift shaft next to the Unit had been converted into a “storeroom” now occupied by Ds (“the Storeroom”). That was done by the construction of (1) a floor slab within that smaller lift shaft (“the Floor Slab”); and (2) a door opening in one of the walls of that smaller lift shaft (“the Door Opening”) without the approval of the Building Authority, by unidentified persons.

9.  By an order dated 20 September 2018 issued by the Building Authority under Section 24(1) of the Buildings Ordinance (“Cap 123”), P was ordered to reinstate the Storeroom (“the Building Order”).

10.  Ds refused to deliver vacant possession of the Storeroom to P to enable P to comply with the Building Order. P commenced this action and asked for, inter alia, a vacant possession order.

11.  On 19 April 2022, Ds filed a Defence and Counterclaim (“the D&CC”) and asked for, inter alia, a declaration of possessory title on the ground that Ds had been in adverse possession of the Storeroom since 1991 (ie, for over 30 years) and P became barred from recovering the Storeroom by virtue of Sections 7 and 17 of the Limitation Ordinance (“Cap 347”). I should add that the filing of the D&CC was delayed, through no one’s fault, by reason of the closure of the District Court Registry during Covid.

12.  P’s Defence to Counterclaim alleged (1) Ds’ claim of adverse possession was bad in law since Ds as co-owners of the Building and thus of all common parts of the Building would always be bound by the DMC; (2) Ds had no animus possidendi in relation to the Storeroom; and (3) no relief should be granted to Ds as they had to rely on their own illegal act to establish adverse possession.

P’s Submissions

13.  Mr Ross M Y Yuen, counsel for P, sought to persuade me to make an order in terms of the Summons, emphasizing Ds never admitted the Floor Slab and the Door Opening were “illegal structures”, and that therefore, P should be allowed to adduce opinion evidence on (1) whether such structures fell into the definition of building works under Cap 123; (2) the merits of any potential appeal against the Building Order; (3) the nature, extent and seriousness of such structures; and (4) whether such structures appeared in the approved building plans. According to Mr Yuen, it was not up to Ds to submit such evidence would serve no useful purpose or be “not cost-effective” when such evidence would address “a relevant dispute in the pleadings”.

Ds’ Submissions

14.  On the other hand, Mr Solomon Lam, counsel for Ds, sought to persuade me to dismiss the Summons, saying P’s written submissions to me were rewriting the Summons, and this should not be allowed. Further, according to Mr Lam, the intended opinion evidence would serve no useful purpose since (1) none of the parties challenged the Building Order; (2) Ds would not dispute the two structures were not constructed according to the approved building plans; (3) there was no allegation that Ds were the ones who created such structures; and (4) the intended opinion evidence would not be cost-effective and would delay these proceedings.

My View

15.  In my view, the Summons is misconceived, or at least wholly unnecessary, and should be dismissed.

16.  Firstly, P’s allegation of “illegal structures” is a red herring.

17.  Putting aside Ds’ allegation of adverse possession for the time being (I shall come back to this), P’s success in this action does not depend on whether the structures were legal or illegal.

18.  The starting point is always the cause of action. P’s cause of action is Ds’ alleged breach of the DMC. Looking at Section 2 in, and §9 of Schedule 1 to, Cap 344, it is crystal clear that the Storeroom, being built originally as a lift shaft and not being specified in any instrument registered in the Land Registry as being for the exclusive use of an owner, must be a common part. Since the Storeroom must be a common part, Section 34I of Cap 344 comes into play, and whoever had converted it to his own use shall be deemed to be in equitable breach of the DMC. That by itself would be sufficient for P. As the Court of Appeal explained in Incorporated Owners of Man Hong Apartments v Kwong Yuk Ching & Ors [2001] 3 HKC 116, in such a scenario, statutes of limitation have no application at all, and there is no time bar. That was applied by the Court of Appeal in Mountain View (IO) v Heart Cuisine [2012] 4 HKLRD 628. For completeness, I am aware that in Incorporated Owners of Kam Luk Building v 吳靜燕 [2023] 1 HKC 683 [2022] HKCA 1896 (§68, per Au JA), the Court of Appeal did not see the need to address this, so the law remains as stated in Man Hong (above) and Mountain View (above).

19.  Of course, as the Court of Appeal had explained in Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC 295, had Ds been non-owners, the situation could be different, but it is common ground in our present case that Ds were and remain owners of the Building, so this complication does not arise.

20.  In any case, the operation of Section 34I of Cap 344 does not depend on the presence of structures, legal or illegal. The breach is in the exclusive usage of a non-exclusive space.

21.  Even if P were to ignore Section 34I of Cap 344, P can in any case just invoke Clause 3(e) of the DMC, which made obstructing common parts’ maintenance work an equitable breach of the DMC. That would also be sufficient for P.

22.  With the above in mind, it is puzzling why P seems to think it needs to adduce opinion evidence to establish that the structures in question were “illegal”, when that specific allegation, be it true or false, would have no impact on the outcome whatsoever.

23.  This court does have a duty to ensure that only material issues with a real impact on the outcome should be examined, as part of its general duty to further the underlying objectives in Order 1A rule 1 by active case management. That applies to the control of expert evidence also. See, eg, HKCP 2023, §38/4/3.

24.  For that reason alone, the Summons should be dismissed.

25.  Secondly, Mr Lam, counsel for Ds, was entirely correct when he said the intended opinion evidence would serve no useful purpose since none of the parties challenged the Building Order and Ds would not dispute the two structures were not constructed according to the approved building plans. As alluded to above, by reason of Section 18(1) of Cap 344, P was under a statutory duty to carry out works ordered or required by any public body. In the absence of a challenge against the Building Order, P does not need to prove that the Building Order was correct or valid. In the absence of a challenge, the Building Order is for all purposes presumed correct and valid. P does not need to push open an open door. P could have just used Section 39B of Cap 123 to say Ds must not obstruct P’s workers or refuse P’s access to the Storeroom.

26.  Thirdly, even for the counterclaim of adverse possession, the allegation that the structures were “illegal” is also irrelevant.

27.  As the Court of Appeal explained in Monat Investment Ltd v All Person(s) in Occupation of Part of The Remaining Portion of Lot No 591 in Mui Wo DD 4 No 16 Ma Po Tsuen, Mui Wo, Lantau Island [2023] 2 HKC 627 [2023] HKCA 479 (§§23.8, 54 and 62.2, per Yuen JA), each adverse possession must start with a civil wrong (eg, the tort of trespass), so a civil wrong is not a bar to, but a prerequisite of, adverse possession. When one speaks of “illegality”, or “ex turpi causa non oritur actio”, or “no action arises from a disgraceful cause” in the context of defending an allegation of adverse possession, one must be referring to a criminal act, a quasi-criminal act, a non-criminal act which engaged the public interest, or an infringement of rules enacted for the protection of the public (together, “Relevant Offensive Acts”), instead of an ordinary civil wrong. The mere occupation of a structure, legal or illegal, without more, is not one of these Relevant Offensive Acts. While Cap 123, by its Section 40, created a large number of criminal offences, in the absence of an allegation that the parties to a civil action had themselves committed any of these offences, they are irrelevant in that civil action.

28.  In our case, P never alleged, in its pleadings or otherwise, that Ds committed any specific criminal offence. There was no suggestion that Ds built the structures themselves or instructed any worker to do so. That being the case, the legality of the structures would have no bearing on the counterclaim either.

29.  Finally, independent of all other points above, P’s application is also objectionable because looking at how P drafted the Summons, P was trying to get a surveyor to give an opinion on the interpretation or operation of local laws, which is never appropriate. See Phipson on Evidence (20^th Edition) §33-109, or Marquis Camden v Commissioners of Inland Revenue [1914] 1 KB 641, at 647 & 648 per Cozens-Hardy MR, at 649 & 650 per Swinfen Eady LJ, and at 650 per Phillimore LJ, or HKSAR v Tong Ying Kit [2021] HKCFI 946 (§5).

30.  In fact, I would have thought if P were minded to adduce some expert evidence in this matter, it should be restricted to a specific sub-issue arising from Section 34I(1)(b)(ii) of Cap 344, being whether Ds’ usage of the Storeroom is in such a way as to cause fire hazard to other residents of the Building and if so, the extent or seriousness of that hazard. That could be an appropriate issue for a fire safety expert to give an opinion on. As it were, that was not the application. That was not the expert issue framed in the Summons, and there is no application to amend the Summons. Should P wish to adduce expert evidence on the limited issue of fire hazard, P is at liberty to take out a properly-drafted fresh summons, if so advised.

Costs

31.  In my view, costs should follow the event. Clearly, P should never have taken out the Summons. Both sides engaged counsel. I certify the engagement of counsel as necessary and proper.

Disposition

32.  For all of the above reasons, my order is (1) the Summons be dismissed; and (2) costs of and occasioned by the Summons, including all costs reserved, be paid by P to Ds forthwith, to be taxed with certificate for counsel if not agreed.

Final Remarks

33.  I thank both Mr Yuen and Mr Lam for their assistance.