Tang Wang Kei Keith v. Tang Chun Wah and Others

DCCJ 1673/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1673 OF 2017

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DECISION

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1.This is an application of the plaintiff by way of summons dated 24 April 2017.  In essence, there are two applications.  First, for an interlocutory injunction to prevent the obstruction or interference by the 1^st to the 4^th defendants (“the defendants”) in respect of the plaintiff’s right of way and access to and from his land at Lot No 2999 in Demarcation District No 111 (“Lot 2999”) and Kam Tin Road via the adjoining land, Lot No 2953 in Demarcation District No. 111 (“Lot 2953”).  And the second subject matter of the application is in relation to the removal of an iron wire fence erected between the plaintiff’s land and the adjoining land at Lot 2953.

2.It was confirmed in the last two hearings and again earlier this morning by the solicitor for the plaintiff that only the second matter, ie the matter in relation to the removal of the iron wire fence, would be proceeded with.

3.The general principle is that the grant of an interlocutory injunction is a remedy, both temporary and discretionary, and the court may grant it if the plaintiff can demonstrate (a) that there is a serious question to be tried and (b) the balance of convenience lies in favour of granting the injunction.  It is submitted by counsel for the 1^st to the 3^rd defendants, by relying on the leading authority of American Cyanamid as explained in Hong Kong Civil Procedure 2017 Volume 1 at paragraph 29/1/9‑10, that if the plaintiff fails to show a serious question to be tried or a real prospect of success the court needs not consider the issue of balance of convenience.  

4.To put it simply, the plaintiff’s application is grounded on two aspects.  First, there was trespassing or intrusion by the iron wire fence erected by the defendants onto the plaintiff’s property, Lot 2999.  Now it is confirmed by the respective surveyor’s reports of the parties that, even if there is trespassing or intrusion, it is minimal in the extent of 0.015 metre to 0.118 metre as measured by the defendants’ surveyor.  More importantly, the 2^nd defendant in his second affirmation dated 24 June 2017, which was made on behalf of the 1^st and the 3^rd defendants as well, stated his willingness to put the exceeding portion of the iron wire fence back to the land at Lot 2953, ie away from the plaintiff’s land at Lot 2999.  As such, that aspect of the plaintiff’s case is gone. 

5.The second aspect is in relation to the plaintiff’s allegation of the iron wire fence affecting his right of way and access to and from his land at Lot 2999 and Kam Tin Road through the adjoining land at Lot 2953.  That right of way, as said by the plaintiff, was the only right of way to and from Lot 2999 and Kam Tin Road which had long been enjoyed by the predecessor owner of Lot 2999 and himself - see the plaintiff’s first affirmation and second affirmation dated 22 April 2017 and 14 June 2017 respectively. On the contrary, it was said by the 2^nd defendant, again on behalf of the 1^st and the 3^rd defendants as well, that the adjoining land at Lot 2953 had been completely fenced up for more than 30 years - see the 2^nd defendant’s first affirmation and second affirmation dated 25 May 2017 and 24 June 2017 respectively.  More importantly, under the third affirmation of the 2^nd defendant dated 8 July 2017, it was said, with plan and photos in support, that there was in fact another way of access to and from the plaintiff’s land at Lot 2999 and Kam Tin Road.  It is also challenged by the defendants that the statement of claim, as averred at its paragraph 5, is defective as plaintiff’s assertion of his right, if any, as a Tso’s member would not have been exercisable in respect of the alleged right of way and access to the adjoining land of Lot 2953 which is not a Tso’s property.  

6.In reply to all these, the solicitor for the plaintiff submitted that the suggested right of way by the defendants is in fact not accessible and the only accessible right of way is the footpath next to the adjoining land at Lot 2953, ie the subject matter of the right of way and access in this application.

7.Pausing here, it is worth noting that the footpath as suggested by the plaintiff is not visible on the aerial photos attached to the second affirmation of the plaintiff dated 14 June 2017 but was only included in the narrative descriptions under the photo with author unknown and not made under oath.  I therefore agree with the defence objection and as a result place no weight on those narrative descriptions.  On the other hand, I should mention that the suggested right of way as contended by the 2^nd defendant can be clearly seen on the aerial photo itself though it was taken in 2004.

8.At this stage, on all the evidence before me, including the arguments by both parties as aforesaid, I do not see a serious question to be tried or that the plaintiff has a real prospect of success in his claim.  I bear in mind, among other things, that the claim of right of way and access is in respect of the adjoining land at Lot 2953 owned by a stranger, ie Tang Wai Wing, so far not a party to these proceedings, but not the other adjoining land at Lot 2998 owned by the Tso.  As such, I fail, at this stage, to see the relevance of the plaintiff having the right, if any, as a member of the Tso.  

9.Of course, the evidence available at this stage for this application is incomplete, not to mention that it is only given on affidavit or affirmation which is not tested by cross-examination.  What is put before me so far, in my view, do not demonstrate a serious question to be tried in respect of the plaintiff’s claim.

10.If I have to go on to consider the secondary issue of balance of convenience (which is contended by counsel for the defendants as unnecessary), that does not lie in favour of the plaintiff either.  First, as rightly pointed out by counsel for the defendants, there is no evidence of any irreparable damage on the part of the plaintiff.  Second, what is before me so far by way of affirmation evidence is the defendants’ suggested right of way and access, not the one claimed by the plaintiff.  It is contended by the defence, to which I agree, that the right of way and access claimed by the plaintiff is only for the enhancement of the value of the property now built on the plaintiff’s land at Lot 2999.

11.For all these reasons, I dismiss the application under the summons dated 24 April 2017.

12.Costs of and incidental to this application be to the 1^st to the 3^rd defendants in any event, with certificate for counsel, to be taxed if not agreed.

Mr Jerry Jim of Jim & Co, for the plaintiff

Mr George Chu, instructed by Leung Kin & Co, for the 1^st to the 3^rd defendants

The 4^th defendant was not represented and did not appear