Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Yau Yuk Ming v Chan Yuk Lin And Another

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date18 April 2007
Year2007
Judgement NumberDCCJ4900/2006
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ004900/2006 YAU YUK MING v. CHAN YUK LIN AND ANOTHER

DCCJ4900/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4900 OF 2006

------------------------

BETWEEN

　 YAU YUK MING (丘玉明) Plaintiff
　 and 　
　 CHAN YUK LIN 1st Defendant
　 YIP KAI 2nd Defendant

------------------------

Coram: H H Judge Marlene Ng in Chambers (Open to the Public)

Date of Hearing: 11th April 2007

Date of Handing Down Judgment: 18th April 2007

------------------------

JUDGMENT

------------------------

I. Introduction

1. The Plaintiff is the owner in possession of (a) the Remaining Portion of Lot No.307 in DD 226 (“Lot 307”), (b) Remaining Portion of Lot No.313 in DD 226 (“Lot 313”), and (c) Section B of Lot No.312 in DD 226 (“Lot 312B”) (collectively, “Plaintiff’s Property”). The Plaintiff acquired Lots 307, 313 and 312B in 1978, 1975 and 1995 respectively.

2. The Defendants are the owners of all that 1 equal undivided 3rd part or share of and in Lot No.903 in DD 226 (“Lot 903”) and enjoy exclusive rights to hold use and occupy the ground floor of the 3-storey village-type house erected thereon (“903 House”) (“Defendants’ Property”). The Defendants acquired the Defendants’ Property in 2001.

3. There is little dispute between the parties as to the respective locations of the Plaintiff’s and Defendants’ Properties and of various other features in the surrounding vicinity. At the hearing before me, Mr Wong, solicitor for the Plaintiff, and Ms Yeung, counsel for the Defendants, referred to inter alia :

(a) the plan annexed to New Grant No.7414 of Lot 903 dated 9th November 1998 (“New Grant”) (“1988 Plan”), Survey Sheet no.11-NE-9C revised in July 2005 (“2005 Plan”), and Lot Index Plan dated 21st June 2006 (“2006 Plan”), and

(b) the photographs taken by the parties and exhibited to the affirmation of the 2nd Defendant and the 2nd affirmation of the Plaintiff (“Photographs”),

and marked by colour the broad locations of the Plaintiff’s and Defendants’ Properties, Government land and the surrounding vicinity in exhibit 1 (enlarged extract of part of the 2006 Plan, “Exhibit 1”) and exhibit 2 (enlarged extract of part of the 2005 Plan, “Exhibit 2”). Both Mr Wong and Ms Yeung agree that for the purpose of the Order 14 application before me, the precise boundaries of the Plaintiff’s and Defendants’ Properties and of the surrounding Government land are not important.

(a) Plaintiff’s Property

4. The Plaintiff’s Property is marked in yellow in Exhibits 1 and 2. The Plaintiff has paved a bituminous road on the Plaintiff’s Property (“Paved Road”) to connect his other properties in the area to a public road that branches out from the Sai Kung bound carriageway of Clear Water Bay Road (“Public Road”). In the 2005 Plan, the cluster of houses in the area is described as Man King Terrace. At the mouth of the Paved Road where it joins the Public Road (“Entrance”), there is a metal gate (“Metal Gate”) (coloured pink in Exhibit 2) as well as a remote-controlled self-elevating bar gate (“Bar Gate”). Unless elevated, the Bar Gate blocks vehicular ingress and egress between the Paved Road and Public Road.

5. There is Government land on either side of the Paved Road coloured green in Exhibits 1 and 2. Such Government land is on the same level as the Paved Road. The Photographs depict car parking spaces on either side of the Paved Road with 2 parallel continuous yellow lines thereon marking the carriageway. However, there is no evidence to suggest that the yellow lines delineate the precise boundaries between the Paved Road and Government land on either side.

6. There are lights alongside the Paved Road. If one stands at the Entrance and looks in the direction of Man King Terrace, there is an electricity post on Government land to the right side of the Paved Road (coloured green in Exhibits 1 and 2, “Right Government Land”) near to Lot 877 of DD 226 (“Lot 877”). Such electricity post is identified by notation “E” in the 2005 Plan.

7. Still looking in the same direction, there is Government land to the left of the Paved Road (“Left Government Land”), which is also coloured green in Exhibits 1 and 2. Abutting the other side of Left Government Land are Lot Nos.936-939 of DD 226 (“Lots 936-939”), which are situate on a platform higher in level than Left Government land. There is a staircase from such platform to the Public Road. The bottom of the staircase is close to the Metal Gate. Mr Wong and Ms Yeung are unable to agree whether such staircase is part of Government land or not, but nothing turns on such disagreement.

(b) Defendants’ Property

8. According to the Assignment of the Defendants’ Property dated 25th November 2001 executed by the Defendants as purchaser and by Li Siu Cheung and Tai Kin Wai as vendors (“903 Assignment”), the Defendants’ Property is held inter alia (a) subject to the exceptions and reservations more particularly contained described and/or mentioned in the Government Lease (ie the New Grant) and the 903 Assignment, and (b) with the benefit of all easements rights and rights of way (if any) contained described and/or mentioned in the 903 Assignment.

9. Condition 3 of the Special Conditions of the New Grant is a building covenant requiring the grantee Yau Po Choi to develop Lot 903 by erecting a building in all respects complying with the Special Conditions and the provisions of all ordinances, byelaws and regulations relating to building and sanitation which are or may at any time be in force in the New Territories (other than New Kowloon) (“Condition 3”).

10. Condition 25 of the Special Conditions provides inter alia that the Government does not guarantee any right-of-way to Lot 903 and the grantee must accordingly make his own arrangements for acquiring such right-of-way (“Condition 25”).

11. Again, if one stands at the Entrance and looks in the direction of Man King Terrace, on one side of Right Government Land is the Paved Road and on the other side are Lots 903 and 877 with Lot 877 closer to the Public Road and Lot 903 (coloured orange in Exhibits 1 and 2) behind it. Both lots are lower in level than Right Government Land (which is of the same level as the Paved Road) and Lot 877 is even lower in level than Lot 903.

12. A village-type house (“877 House”) has been erected on Lot 877. The 903 House erected on Lot 903 faces the back of the 877 House. Each of Lots 877 and 903 is surrounded on all sides by Government land so that each lot sits on a platform of Government land (“Lot 877 and Lot 903 Platforms”). The 903 Platform are now totally enclosed by fences/ walls/cuttings (except for the Blue Staircase referred to below) at its boundaries. Such fences/walls/cuttings enclose levelled open areas at the front and back of the 903 House (“903 Front and Back Areas”) connected by a narrow strip of open passageway on either side of the 903 House. The strip of passageway closer to Right Government Land is referred to as “903 Right Passageway” below, and the strip of passageway on the other side of the 903 House is referred to as “903 Left Passageway” below.

13. Installed at the boundary of the 903 Front Area is a low concrete wall atop a vertical cutting that drops from the 903 Platform (ie Government land) to the 877 Platform (ie Government land) or to some Government land between the 903 and 877 Platforms. At one corner of the low concrete wall, a short staircase leads up to Right Government Land/Paved Road and is coloured blue in Exhibits 1 and 2 (“Blue Staircase”). For the purpose of the Order 14 application, Mr Wong and Ms Yeung accept that the Blue Staircase is on Government land. The other corner of the low concrete wall is a short concrete pillar with a gouged centre. Ms Wong at first submits it is a drainage hole, but eventually concedes there is no affirmation evidence to such effect.

14. On the right side of the 903 House, the 903 Platform abuts Right Government Land/Paved Road, but Right Government Land/Paved Road are higher in level than the 903 Platform, so this side of the 903 Platform extending from the 903 Front Area to 903 Back Area (and along the 903 Right Passageway) is closed by a vertical cutting that drops from Right Government Land/Paved Road to the 903 Platform below.

15. To the left of the 903 House and 903 Platform are Lot Nos.863-866 of DD 226 (“Lots 863-866”) which are on a lower level. There is a metal fence at the left boundary of the 903 Platform which extends from the 903 Front Area to the 903 Back Area and along the 903 Left Passageway and which is erected atop a vertical cutting that drops from the 903 Platform to a strip of Government land between the 903 Platform and Lots 863-866. The right foreground of the photograph in Exhibit 3 shows there are certain concreted sections on such strip of Government land. Ms Yeung suggests it is a passageway for drainage pipes, but there is no affirmation or clear photographic evidence to such effect.

16. The metal fence at the left side of the 903 Platform continues along part of the boundary of the 903 Back Area until it joins a low concrete/brick wall. Outside such metal fence and concrete/brick wall is an artificial slope which appears also to be Government land.

17. Thus, Lot 903 is presently entirely surrounded by the 903 Platform (ie Government land which has been entirely fenced/walled but for the Blue Staircase that leads to Right Government Land/Paved Road). Further, the 903 Platform itself is surrounded by Government land on all sides.

(c) Past and current status

18. The comparative levels of the relevant lots at Man King Terrace are as follows. Lots 836-839 are on the highest level. They drop onto Left Government Land, which is of the same level as the Paved Road and Right Government Land. Lots 877 and 903 on which the 877 and 903...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT