Raingate Ltd v Bee Cheng Hiang (Hong Kong) Ltd  6 HKC 472
This case concerned an action arising out of trespass to land. The Plaintiff was the registered owner of the external walls of a building ("External Walls"). The 1st Defendant was the registered ground floor shop owner ("Shop Owner") and the 2nd Defendant was the ground floor shop tenant ("Tenant") under a tenancy agreement entered into between the Shop Owner and the Tenant (together, "Defendants").
The Plaintiff commenced proceedings against the Defendants for trespass, specifically for installing air-conditioning equipment on the External Walls. Whilst judgment was entered against the Shop Owner, the Tenant was granted unconditional leave to defend. The Plaintiff then appealed against the Court's decision for granting unconditional leave to the Tenant to defend.
It is well established that placing anything on or in land in the possession of another, such as fixing air-conditioning equipment to his / her wall, constitutes trespass to land.
On the facts of the case, it was undisputed that the Tenant had committed the prima facie tort of trespass. The key question before the Court was whether the Tenant could justify its use of the External Wall or raise any credible defence. The defences upon which the Tenant sought to rely were (i) implied licence and/or (ii) acquiescence and estoppel.
(i) Implied Licence
As stipulated in Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd  HKCU 1698, "…passive acquiescence is not enough to establish implied licence. There must be some overt acts on the part of the licensor referable to a licence having been granted to give rise to an implication by conduct." Similarly, it was held in R (Newhaven Port and Properties Ltd) v East Sussex County Council  AC 1547 that "…mere silence or inaction…cannot amount to permitting. In the same way as silence and inactivity on the part of a private landowner cannot, without more, amount to consent…, so would the absence of any express or implied prohibition in the Byelaws, without more, not amount to an implied licence".
In this case, it was the Court's view that the facts relied upon by the Tenant amounted to no more than inaction and silence on the part of the Plaintiff; no positive act, overt or otherwise, was identified. Although it was argued that the Plaintiff did not do anything to stop, object to or complain about the trespass (which it knew about) until a later date, the Court held that "...such inaction…could not conceivably be said to communicate the Plaintiff's permission to the [Tenant] to occupy the outer wall…on the [Tenant]'s own evidence, it did not use the outer wall pursuant to any perceived implicit permission from the Plaintiff; it did so in reliance on the express permission of the [Shop Owner]." Accordingly, it was held that the Tenant's defence of implied licence "...must fail on the facts alleged and relied upon and therefore raised no triable issue".
(ii) Acquiescence and Estoppel
As stipulated in Jones v Stones  3 EGLR 81, the Tenant must show detrimental reliance in order to establish a defence of estoppel. In this case, there was no plea or evidence whatsoever that the Tenant had relied on the Plaintiff's acquiescence or representation to its detriment. Moreover, the Court found that it was difficult to see what detriment the Tenant could have suffered. In the specific circumstances of this case, the Tenant's bare assertion of an estoppel by acquiescence did not give rise to any triable issue.
Seeing as the Tenant had failed to justify its use of the External Wall and/or raise a credible defence, the Tenant was found liable. Consequently, the Court allowed the appeal, set aside the leave to defend and entered interlocutory judgment against the Tenant for damages and mesne profits to be assessed.
This case provides general guidance on the requisite criteria when a trespasser attempts to raise the defences of (i) implied licence and/or (ii) acquiescence and estoppel. Nonetheless, it should be borne in mind that all cases are fact-specific and interested parties wishing to bring an action against trespassers should ensure that their legal rights and interests are protected to their fullest extent.
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