Equate “Existing” with “Original”

The determination of land boundaries is always a matter for a Court. An expert must furnish the Court with the necessary criteria for testing the reliability and accuracy of his conclusions so as to enable the Court to form its own independent judgment.

In the case of Ip Shang v Li Kuen Po [1993] HCMP No. 2520 of 1991 of the Supreme Court of Hong Kong, the Plaintiff alleged that the Defendants had encroached upon his land but the Defendants contended that there had never been any encroachment.

The Plaintiff and the Defendants separately appointed their own expert surveyors to prepare survey plans as evidence. The parties came up with two survey plans and asked the Court to decide which was the right one.

The question to be determined in this case was the liability. If the Court accepted the Plaintiff’s survey plan, then encroachments as alleged were proved. On the other hand, if the Court accepted the Defendants’ survey plan, the plaintiff failed.

The following doctrinal guideline was agreed by the plaintiff and the defendants through their counsels:

“In an internal discussion paper dated 25th February 1985, Mr S.C. Leung (Chief Land Surveyor/NT) suggested that in general the re-establishment of the DD Lot boundary should depend on the original occupation (if evidence survives), the DD Sheet definition and registered area, in that order.”

During cross-examination, the Court found that the Defendants’ surveyor was prepared to assume any structures erected, even just the day before, as original. He seemed to equate “existing” with “original”. He failed to provide a satisfactory definition for the suggestion made by Mr S.C. Leung as to “original occupation”.

The Court preferred and accepted the evidence of the Plaintiff’s surveyor to that of the Defendants’ surveyor. The Court held that liability was established as alleged by the Plaintiff against the Defendants.