KONG SAU CHING v. KONG PAK YAN AND OTHERS

KONG SAU CHING v. KONG PAK YAN AND OTHERS

On the evidence (aerial photographs, witness testimony, lack of interruption and accommodation of the route by fences/walls and Government awareness), the court inferred a public dedication of the Disputed Way for pedestrian and vehicular use with Government consent; alternatively, plaintiffs (or specified plaintiffs) had acquired prescriptive easements by long user (lost modern grant and under the Prescription Act as preserved by constitutional protections). Consequentially, defendants' attempts to obstruct vehicular access were restrained and trespass claims against Trade Advisers and Wong Chau Ming were dismissed.

Citation
KONG SAU CHING v. KONG PAK YAN AND OTHERS
Parties
Plaintiff (hca 13429/1997): Kong Sau Ching; Plaintiff (hca 13429/1997): Kong Yuen Hing; Plaintiff (hca 13429/1997): Kong Hoi Sun; Plaintiff (hca 13429/1997): Kong Hoi Yuen; Plaintiff (hca 13429/1997): Tin Li Ling; Plaintiff (hca 13429/1997): Kong Fong; Plaintiff (hca 13429/1997): Yip Yum Sang; Plaintiff (hca 13429/1997) and Defendant (hcmp 4363/1997): Trade Advisers Company Limited; Defendant (hca 13429/1997) and Plaintiff (hcmp 4363/1997): Kong Pak Yan; Defendant (hca 13429/1997) and Plaintiff (hcmp 4363/1997): Kong Sik Yau; Defendant (hca 13429/1997) and Plaintiff (hcmp 4363/1997); Later Owner of Lot 364 a: Kong Wing Tak; Defendant (hcmp 4363/1997): Wong Chau Ming; Defendant (hcmp 4363/1997): Lee Tin Fuk; Defendant (hcmp 4363/1997): Li Ka Shing; Defendant (hcmp 4363/1997): Lee Siu Fai; Defendant (hcmp 4363/1997): Li Kwai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 November 2003
Case Number
HCA13429/1997
Procedural Posture
Civil Property Dispute (easement/right of Way) / Judgment (court of First Instance)
Outcome
Judgment for plaintiffs: declaration of public pedestrian and vehicular right of passage; injunction against obstruction; dismissal of defendants' counterclaims seeking to exclude vehicular traffic; certain trespass claims dismissed.
Legal Topics
Right of Way, Public Dedication, Prescriptive Easement, Prescription Act 1832, Government Consent to Dedication, Estoppel, Trespass, Standing/locus
Source Language
EN
Property Land Law Public Law (government Consent) Tort (trespass) Procedural Law (costs) Right of Way Public Dedication Prescriptive Easement +5 more

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Parties

Kong Sau Ching

Plaintiff (hca 13429/1997)

Kong Yuen Hing

Plaintiff (hca 13429/1997)

Kong Hoi Sun

Plaintiff (hca 13429/1997)

Kong Hoi Yuen

Plaintiff (hca 13429/1997)

Tin Li Ling

Plaintiff (hca 13429/1997)

Kong Fong

Plaintiff (hca 13429/1997)

Yip Yum Sang

Plaintiff (hca 13429/1997)

Trade Advisers Company Limited

Plaintiff (hca 13429/1997) and Defendant (hcmp 4363/1997)

Kong Pak Yan

Defendant (hca 13429/1997) and Plaintiff (hcmp 4363/1997)

Kong Sik Yau

Defendant (hca 13429/1997) and Plaintiff (hcmp 4363/1997)

Kong Wing Tak

Defendant (hca 13429/1997) and Plaintiff (hcmp 4363/1997); Later Owner of Lot 364 a

Wong Chau Ming

Defendant (hcmp 4363/1997)

Lee Tin Fuk

Defendant (hcmp 4363/1997)

Li Ka Shing

Defendant (hcmp 4363/1997)

Lee Siu Fai

Defendant (hcmp 4363/1997)

Li Kwai

Defendant (hcmp 4363/1997)

Procedural Posture

Civil Property Dispute (easement/right of Way) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the Disputed Way was publicly dedicated for vehicular use
  2. 2 Whether the public accepted any such dedication
  3. 3 Whether Government consent to dedication could be inferred

Ratio Decidendi

On the evidence (aerial photographs, witness testimony, lack of interruption and accommodation of the route by fences/walls and Government awareness), the court inferred a public dedication of the Disputed Way for pedestrian and vehicular use with Government consent; alternatively, plaintiffs (or specified plaintiffs) had acquired prescriptive easements by long user (lost modern grant and under the Prescription Act as preserved by constitutional protections). Consequentially, defendants' attempts to obstruct vehicular access were restrained and trespass claims against Trade Advisers and Wong Chau Ming were dismissed.

Court Disposition

Judgment for plaintiffs: declaration of public pedestrian and vehicular right of passage; injunction against obstruction; dismissal of defendants' counterclaims seeking to exclude vehicular traffic; certain trespass claims dismissed.

Orders

  • Declaration that the public have a right of pedestrian and vehicular passage along the Disputed Way at all times and for all purposes
  • Injunction restraining Kong Wing Tak (whether acting by himself, servants or agents including Kong Pak Yan and Kong Sik Yau) from obstructing or blocking vehicular traffic along the Disputed Way