Uni-china (Market) Management Ltd v. Persons Unlawfully Occuptying or Remaining in Leung King Estate for The Purposes of Illegal Hawking

HCA 414/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 414 OF 2016

________________________

________________________

_____________

DECISION

_____________

1.I am satisfied that the plaintiff is entitled to an interlocutory injunction against the defendant until trial of this action or until further order.

2.The defendant has been described as persons unlawfully occupying or remaining in Leung King Estate for the purposes of illegal hawking.

3.The plaintiff is the head tenant of the market on the ground floor in the commercial complex of Leung King Plaza in Leung King Estate, in Tuen Mun, New Territories.  The market is not only a wet market containing licensed shops selling fruits, meats and vegetables, but it also operates as a market with cooked food stalls.

4.On the evidence before me, I am satisfied that there is at least a serious question to be tried as to whether the defendant has infringed upon the plaintiff’s rights as the head tenant of the market.

5.The plaintiff’s cause of action is in private nuisance.  What the defendant has been doing has been to engage in hawking activities without a licence from the authorities.

6.On the plaintiff’s case, the defendant has been conducting illegal hawking activities in the evenings until the early hours of the morning selling cooked food in the areas shown in green in schedule 2 of the statement of claim in this action. This is the area on the ground floor, as well as on the roof level above the market, and the plaintiff complains that the areas marked in green are the areas where the illegal hawking has taken place.

7.Despite attempts by the plaintiff, as well as by the Incorporated Owners of the estate, the illegal hawking continues. On the evidence before me, since February matters have seem to have got out of hand and there are photographs showing altercations with some of the illegal hawkers because of barriers being put up to prevent them from operating their illegal activities in the areas complained of.

8.As I have said, I am satisfied that there is at least a serious question to be tried in considering whether or not an interlocutory injunction should be granted against the defendant. 

9.It  seems to me that the balance of convenience is also in favor of the plaintiff.  I bear in mind that what is being sought to be restrained is simply illegal hawking activities of the defendant and not any lawful activity.

10.In the circumstances, I grant the plaintiff an interlocutory injunction.  Upon the cross-undertaking in damages given by counsel on behalf of the plaintiff, I make an order that:

(1)   The defendant be restrained by itself, its officers, agents, or servants or otherwise howsoever from occupying or remaining in Leung King Estate, 31 Tin King Road, Tuen Mun, New Territories, Hong Kong, for the purposes of illegal hawking in any part of the area coloured green on the plans in the schedule to this order until trial of this action or further order of the court.

(2)   Service of this order on the defendant to be effected by posting up a sealed copy of this order in the conspicuous parts in Leung King Estate in the area coloured green on the plans in the schedule to this order.

(3)   The defendant do have liberty to apply to discharge or vary this order on notice to the plaintiff’s solicitors.

(4)   There be liberty to apply.

(5)   Costs of this application be reserved.

Mr Derek Hu, instructed by Ho & Wong, for the plaintiff

Defendant was not represented and did not appear