Hong Kong Case Law: Decisions & Judgments

Topic

Right of way by prescription

Legal area

Court

2 Mar 2018

HO KWOK HING v. LAM TAI HING TSO AND OTHERS

Citation

[2018] HKCFI 378
Court

Court of First Instance
Case number

HCA694/2017

The court found the plaintiff raised a serious question to be tried that a prescriptive right of way exists across Lot 813 based on long, open, vehicle use; damages are not an adequate remedy; the balance of convenience and preservation of the long‑standing status quo favour interim relief; accordingly an interlocutory injunction restraining obstruction of plaintiff's right of way was granted pending trial.
2 Feb 2009

SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)

Citation

SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)
Court

Court of Final Appeal
Case number

FAMV79/2008

Leave as of right under s22(1)(a) was refused because the statutory threshold refers to the value of the claim or question before the Court and requires an immediate quantifiable financial effect; a notified refusal under s15(1) does not produce deemed approval upon quashing and matters should be remitted; however leave to appeal was granted under s22(1)(b) on two points of public importance: the proper construction of s16(1)(h) (Tai Hang Road access danger) and the right of way prescription issue affecting Sun Honest.
2 Feb 2009

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)

Citation

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)
Court

Court of Final Appeal
Case number

FAMV78/2008

The Court held that s22(1)(a) confers appeals as of right only where the value of the claim or question itself is at least $1,000,000 and the Court's order would immediately produce that financial effect; the applicants' judicial review claims did not meet that test and the as-of-right application was dismissed; however the Court granted leave under s22(1)(b) on two points: (i) a reasonably arguable and important point on the proper construction of s16(1)(h) relating to the Tai Hang Road junction; and (ii) the right of way prescription issue affecting Sun Honest.
10 Nov 2008

SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)

Citation

SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)
Court

Court of Appeal
Case number

CACV300/2007

The court held that s22(1)(a) second limb does not apply because the applicants lacked any proprietary interest in the subject land and s15 Buildings Ordinance was not engaged; consequently appeals as of right were refused. However the court granted leave under s22(1)(b) limited to the single question whether a leaseholder in Hong Kong can acquire a right of way by prescription under the doctrine of lost modern grant against another leaseholder both before and after 1 July 1997, concluding that question is of great general or public importance; all other leave questions were refused.
10 Nov 2008

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)

Citation

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)
Court

Court of Appeal
Case number

CACV299/2007

Leave under section 22(1)(a) was not available because the applicants lacked a beneficial proprietary interest in the sites and s15 of the Buildings Ordinance was not engaged on the facts; but leave was granted under section 22(1)(b) limited to the single question whether a leaseholder in Hong Kong can acquire a right of way by prescription under the doctrine of lost modern grant against another leaseholder, both before and after 1 July 1997, because that question raises issues of great general or public importance.
31 Jul 2007

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)

Citation

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)
Court

Court of First Instance
Case number

HCAL2/2007

The court held the Tribunal lawfully considered the junction under s16(1)(h) because an off-site traffic impact with a direct causal link to the proposed developments made the junction 'sufficiently proximate'; the Building Authority and Tribunal had jurisdiction to determine for plot-ratio purposes that gridlines constituted a right-of-way and a prescriptive easement can arise in Hong Kong; the duty to act consistently did not preclude acting to prevent an unsafe junction where the prior scheme proved unworkable, and therefore the judicial review applications failed.

Hong Kong Case Law

HO KWOK HING v. LAM TAI HING TSO AND OTHERS

SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)

SUN HONEST DEVELOPMENT LTD v. APPEAL TRIBUNAL (BUILDINGS)

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)

CHINA FIELD LTD v. APPEAL TRIBUNAL (BUILDINGS)