Lau Wing Yiu v. Ng Mok Hing and Others

HCA 165/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 165 OF 2016

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J U D G M E N T

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1.The plaintiff is applying for an injunction order against the defendants. Save the 7th defendant, none of the defendants has appeared.

2.The plaintiff has entered into a provisional sale and purchase agreement on 9 October 2014 to purchase the 1st floor of a three storey village house standing on Lot 2496 in DD76 which is also known as 21 Kan Tau Tsuen, North, the New Territories.  The vendor is the 1st defendant as represented by his attorney, the 2nd defendant.  The 1st defendant has made a power of attorney appointing the 2nd defendant as his attorney pursuant to section 7 of Power of Attorney Ordinance on 6 May 2013. 

3.The 1^st defendant is also one of the owners of the adjacent Lot 1552 in DD76.

4.The plaintiff’s agreement to purchase the flat was coupled with the grant by the 1st defendant of a right-of-way over Lot 1552.  That right-of-way is the access from 21 Kan Tau Tsuen to the public road. 

5.The plaintiff had in fact, with a view to purchase the flat, entered into possession of the flat on 20 December 2013 with the 1st defendant’s consent and upon the plaintiff’s undertaking to pay the utility charges.  Since then, the plaintiff has been occupying the flat and using the right-of-way for access to the public road.  The right-of-way is guarded by a metal gate erected on Lot 2496.

6.After entering into the provisional sale and purchase agreement, the plaintiff asked the 1st defendant in November 2014 to complete the sale and purchase.  But the 1st defendant refused to do so alleging that there was no sale and purchase agreement.  The plaintiff then took out HCA 323/2015 to seek an order of specific performance against the 1st defendant. The plaintiff is trying to obtain summary judgment against the 1st defendant in that action. 

7.Sometime around 14 October 2015, one Yeung Hon-keung, a former barrister, who claimed to represent the owners of Lot 1552, came and erected a metal sheet fence on lot 1552 right behind the gate on Lot 2496 so that the access from Lot 2496 to the right-of-way on Lot 1552 is completely blocked.

8.The plaintiff then sought help from the estate agent, Mr Pang, who brokered the sale and purchase of the plaintiff’s flat.  Mr Pang promised to sort out the problem with the owners of Lot 1552.  Mr Pang further made a makeshift access way by placing some wooden planks over some other land for the plaintiff’s access to the public road, but the use of this access requires the plaintiff to climb over a low fence of over two feet high with spikes.  This access is also difficult to use during bad or rainy weather as it would become muddy.

9.Seeing that the estate agent could not resolve the problem over the right-of-way after quite some time, the plaintiff therefore applied in the beginning of this year to this court for injunctive relief against the defendants.

10.I accept that all defendants who are the owners of Lot 1552 have been served with the papers in this interlocutory application.  The 1st and 2nd defendants have been served at the address of 27 Wu Fung Street, Luen Wo Market in Fanling.  This address was used by the 1st defendant in the provisional sale and purchase agreement that he made with the plaintiff and dated 9 October 2014.  In fact, the 1st and 2nd defendants stated this as their address in the section 7 power of the attorney dated 6 May 2013.

11.The 6th and 7th defendants are brothers.  They are also two of the owners of Lot 1552 but belong to a different “fong” of the owners’ family.  The 7th defendant says through his solicitor that he has no role or part in this dispute.  The plaintiff is also not pressing for the injunction or costs of this application against him.  I therefore do not make any order against him.  I also make no costs order in this application against him.  I further order that he does not need to attend to these proceedings until further order. 

12.There is also evidence that the 6th defendant, who lives and works in Hong Kong, is not involved in this matter.  His sister had advised the plaintiff’s solicitors that he had not been to Kan Tau Tsuen for many years.  I therefore make the same order for the 6th defendant as I have made for the 7th defendant.

13.In the premises, I grant an injunction as sought by the plaintiff against the 1st, 2nd, 3rd, 4th, 5th and 8th defendants requiring them to take away so much of the metal fence behind the gate so that the right-of-way would be restored to the plaintiff.  I also require them to provide the code to a digital lock installed on the gate at the other end of the right-of-way.

14.I further allow the plaintiff to take away so much of the metal fence behind the gate to restore his access to the right-of-way and to replace the digital lock on the gate at the other end of the right-of-way if the defendants should fail to comply with my order above upon the service of the order on them and the posting of the order on Lot 1552 for four days.

15.I further order that the costs of this application as between the plaintiff and 1st, 2nd, 3rd, 4th, 5th and 8^th defendants be reserved and that there be no order as to costs as against 6th and 7th defendants.

Mr Andrew Mak and Miss Carol Wong, instructed by Adrian Yeung & Cheng, for the plaintiff

The 1st to 6th and 8th defendants were not represented and did not appear

Mr M Birks, of Angela Wang & Co, for the 7th defendant