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Man Wa Tong (Suing By Its Manageress For Themselves And Others) v Shih Chao Jung And Another

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date11 March 2020
Neutral Citation[2020] HKCFI 417
Year2020
Judgement NumberHCA10388/2000
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA10388A/2000 MAN WA TONG (suing by its manageress for themselves and others) v. SHIH CHAO JUNG AND ANOTHER

HCA 10388/2000

[2020] HKCFI 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 10388 OF 2000

________________________

BETWEEN

MAN WA TONG
(suing by its manageress for themselves and others)		 Plaintiff

and
SHIH CHAO JUNG 1st Defendant
ALL OTHER PERSONS IN OCCUPATION OF
THAT PART OF LOT NO 1255 RP IN DD 453,
NAMELY THE DISPUTED PORTION OF KWUN
YAM NGAM AND THE DISPUTED SLOPE AS
DEFINED IN THE RE-AMENDED STATEMENT OF CLAIM		 2nd Defendant

________________________

Before: Hon G Lam J in Chambers
Date of Hearing: 22 October 2019
Date of Decision: 11 March 2020

________________________

D E C I S I O N

________________________

Background

1. This action has a long history. It concerned disputes over entitlement to certain land in a hilly area in Tsuen Wan in which there were several Buddhist establishments. The action was settled in 2006 by written agreement between the parties. The present summons before the court raises questions about the proper interpretation of that agreement. Specifically, the issues are whether the right of way granted by the agreement covers vehicular access and, if so, whether there is an ancillary right to park vehicles.

2. The plaintiff, Man Wa Tong (曼華堂), is apparently an unincorporated association. It is the registered owner of the piece of land at Fu Yung Shan (芙蓉山), Tsuen Wan, known as the Remaining Portion of Lot No 1255 in Demarcation District 453, Fu Yung Shan, the New Territories (“Land”), on which a Buddhist temple called Chuk Lam Sim Yuen (竹林禪院) (“Temple”) stands. The plaintiff manages the Temple and the Land.

3. The 1st defendant, Shih Chao Jung (釋照融), is a Buddhist nun who is in occupation of and has (at least up to 2017) been managing the Buddhist establishment called Kwun Yam Ngam or Guan Yin Grotto (觀音巖) (“Grotto”), which lies partly within the Land and partly in neighbouring lots not owned by the plaintiff. The Grotto was gradually built up in the mid 1950s to 1960s by the late Sik Luen Cham (釋倫參), with the consent and, indeed, support of the Rev Yung Chau (融秋) who was then the manager monk of the Temple.

4. By around 2000, however, a dispute had arisen between the plaintiff and the 1st defendant. By an action, viz HCA 10388/2000, the plaintiff sought against the 1st defendant and the 2nd defendant (defined as all other persons in occupation of the disputed areas) declarations that they had been in occupation of that part of the Land taken up by the Grotto with the licence of the plaintiff which had been terminated, and orders for vacant possession. The 1st defendant opposed the action, and counterclaimed that she was entitled to the disputed portions of the Land by adverse possession or proprietary estoppel and also to a right of way over an access road (which has become known as the “Yellow Road” as described below) on various bases including prescription, presumed grant or dedication to the public. It was not in dispute that the Yellow Road had been made available to the public for access to the Grotto;[1] the dispute was over the legal basis of that access.

5. The action went to trial in October 2006. In the course of the trial, the plaintiff and the 1st defendant managed to reach a compromise, which was eventually embodied in the schedule to the Tomlin order dated 27 October 2006, whereby the action was stayed except for the purpose of carrying into effect the terms of the parties’ agreement annexed to the order (“Agreement”), with liberty to apply.

6. The Agreement relevantly provides as follows:

「 (1) 原告人同意給第一被告人（及她的授權徒弟和參拜人士）一個不可撤銷的合約許可證，在原告人的丈量約453第1255地段剩餘部份 (Lot No. 1255 RP in D.D. 453) 現有政府地契（以下簡稱「現有政府地契」）的餘下年期內，獨有、佔用和使用附在本協議附件一的圖上，以橙色和粉紅色標明的土地（以下簡稱「橙色土地」及「粉紅色土地」）,純粹作為佛教崇拜和修行目的。該合約許可證是屬於第一被告個人，她不可將其再授予任何其他人士,但該合約許可證可由她的一個她指定的佛教繼承人在她死後個人持有，不可將其再授予任何其他人士。若果當該許可證存續時第一被告人死亡，她有權在死前委派她一位佛教繼承人，在她死後取代她成為本協議的許可證持有人，並以書面由第一被告人及其委派之佛教繼承人雙方簽名確認並送交通知原告人。接受第一被告人委派成為本協議的許可證持有人之佛教承繼人必須受本協議所有條款所約束。該佛教繼承人在現有政府地契的餘下年期，亦可由一位其指定的佛教繼承人在其死後個人持有該合約許可證，條件同上。而該佛教繼承人亦可同樣地指定一位佛教繼承人在其死後個人持有該合約許可證，條件同上。在上述最後一位佛教繼承人死後,此協議便自動終止。因此在本協議下所述的「第一被告人」，包括第一被告人及其以本條規定所委派的書面確定的佛教繼承人及其後之佛教繼承人。

(2) 原告人同意給第一被告人、其訪客和參拜人士一不可撤銷的通道權（“right of way”）,在現有政府地契餘下年期，以在附件一上用黃色標明的路（以下簡稱「黃色道路」），每年365日全日24小時暢通無阻地由芙蓉山道前往上述許可土地。

…

(14) 雙方同意在本協議第（2）條給予的通道權存續的整個期間，沿着在黃色道路上現存有關觀音巖的路牌和山門須保持不變。第一被告人須負責自費將該些路牌和山門作合理的維修和保養。…」

In English translation:

“ (1) The Plaintiff consents to give the 1st Defendant (and her authorised followers and the worshippers) an irrevocable contractual licence to occupy exclusively and use the land marked in orange and pink in the plan attached to the Appendix 1 to this Agreement (“orange land” and “pink land”) during the residue of the term of the Plaintiff’s existing Government Lease (“existing Government Lease”) of Lot No 1255 RP in DD 453, purely for the purposes of Buddhist worship and practice. The contractual licence belongs to the 1st Defendant personally, and she is not to grant it further to any other person. However, after her death, it may be held personally by her Buddhist successor designated by her, and it is not to be granted further to any other person. Where the 1st Defendant dies while the licence subsists, she is entitled to appoint her Buddhist successor before her death to take her place as the licensee under this Agreement after her death, with confirmation in writing signed by the 1st Defendant and her appointed Buddhist successor and sent to inform the Plaintiff. The Buddhist successor who accepts the appointment by the 1st Defendant as the licensee in this Agreement shall be bound by all the terms and conditions of this Agreement. The Buddhist successor, during the residue of the term of the existing Government Lease, may also designate a Buddhist successor to hold personally the contractual licence after his/her death on the same terms as above. Similarly, the Buddhist successor may designate a Buddhist successor to hold personally the contractual licence after his/her death on the same terms as above. This Agreement shall automatically terminate upon the death of the last aforesaid Buddhist successor. Accordingly, under this Agreement the said “1st Defendant” includes the 1st Defendant and her Buddhist successor and the subsequent Buddhist successors who are, as provided in this Clause, appointed with confirmation in writing.

(2) The Plaintiff consents to give the 1st Defendant, her visitors and the worshippers an irrevocable right of way over the road marked in yellow in Appendix 1 (“Yellow Road”), during the residue of the term of the existing Government Lease, with clear and unimpeded access from Fu Yung Shan Road to the above licensed land, 24 hours a day and 365 days a year.

…

(14) Both parties agree that during the entire subsisting period of the right of way granted under clause (2) of this agreement, the existing road sign(s) and gate(s) in relation to Guan Yin Grotto along the Yellow Road shall remain unchanged. The 1st Defendant shall be responsible and pay for the reasonable maintenance and repair of the said road sign(s) and gate(s). ...”

7. The Yellow Road is an access road that leads from a public road up the slope to the Grotto. Near the beginning of the Yellow Road there is an archway inscribed with the name of the Grotto. The first part of the Yellow Road, which goes up to a building known as Rev Yung Chau Memorial Hall (融秋老和尚紀念堂) (“Memorial Hall”) and accounts for about three-fifths of its length, is wide enough for vehicles to come and go. There is at least one street light installed by the Highways Department there, on the basis it is a road open to public. Beyond the Memorial Hall the Yellow Road narrows into a footpath, with steps along the way, that leads eventually to the Grotto. It appears that the entire Yellow Road is close to 200m long on a rough estimate. For ease of understanding a copy of the plan attached to the Agreement is appended to this decision.

8. The parties were apparently at peace after entering into the Agreement until 2018. In March 2018, the plaintiff began to place bollards and concrete blocks at a point in the first part of the Yellow Road, blocking vehicular traffic. On 6 April 2018, the 1st defendant applied by summons in the underlying action (HCA 10388/2000) for interim relief to restrain the plaintiff from obstructing the road. On 13 April 2018, B Chu J adjourned the 1st defendant’s summons indefinitely upon the plaintiff undertaking that any person would be given access through the road provided the person registers with the plaintiff his or her name and the capacity in which access is sought and signs on the register.

9. In December 2018 the plaintiff set up a boom barrier gate in the first part of the Yellow Road near the incinerator. The boom barrier was locked and the plaintiff controlled the key. The effect was to prevent vehicles but not pedestrians to pass through. On 6 February 2019, the plaintiff caused notices to be placed on vehicles parked on the Yellow Road, warning that access to the road would be restricted with effect from 1 March 2019 and parked vehicles would be clamped or towed away.

10. In these circumstances, on 13 February 2019, another Buddhist monk kwown as 釋照月 (transliteration “Sik Chiu Yuet”), to whom the 1st defendant has handed over the management of the Grotto, took out the present summons as the Buddhist successor and representative of the 1st defendant, seeking the court’s directions and interpretation of clause 2 of the Agreement (“interpretation summons”).

11. Since June 2019, the plaintiff has installed an electrical boom barrier gate on the Yellow Road and implemented a system requiring registration before any person would be allowed...

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