Cheung Ping Sum v. Wong Chi Hang

HCA 289/2017
[2018] HKCFI 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 289 OF 2017

______________

______________

Before: Deputy High Court Judge Keith Yeung SC in Chambers

Date of Hearing: 9 January 2018

Date of Reasons for Decision: 17 January 2018

____________________________________

R E A S O N S  F O R  D E C I S I O N

____________________________________

A. THE APPLICATION

1.This is the hearing of a summons filed on 3 July 2017 (“the Summons”) taken out by the defendant.  It was taken out pursuant to Order 18, rule 19 and Order 14A.  The defendant seeks an order that the plaintiff’s claim in her statement of claim herein dated 8 February 2017 (“the Statement of Claim”) be struck out, on the grounds, as set out in the Summons, that:

“ (a) it discloses no reasonable cause of action and the questionof law for determination is whether or not the Statement of Claim has disclosed a reasonable cause of action against the defendant for harassment; and/or

(b) it is scandalous, frivolous or vexatious; and/or

(c) it is otherwise an abuse of the process of the court.”

B.   THE BACKGROUND

2.The background starts with Mr Wong Sun (“the Deceased”).  He died intestate in Hong Kong on 6 April 2012.  He was originally marriedto Madam Chan How Kin (“Madam Chan”) quite some time ago in China.  Out of this marriage they had one son and three daughters.  The son is the defendant herein.  Madam Chan passed away in 1988.  In 1991, the Deceased married the plaintiff.  The plaintiff is therefore the defendant’s step-mother.

3.The plaintiff is now 72 years of age.  Starting from about year 2000, the plaintiff and the Deceased had been occupying as their matrimonial home a property at Mongkok (“the Property”).  After the Deceased’s death, and until recently, the plaintiff had continued to reside in the Property.  The Property features prominently in these proceedings, as will be explained below.

4.On 31 July 2013, letters of administration of the Deceased’s estate was granted to the defendant.  The Property forms a major asset of the Deceased’s estate.

5.According to the plaintiff, prior to the death of the Deceased, and until shortly after the grant, her relationship with the defendant and his sisters was harmonious.  He trusted them.  That she said was one of the reasons she executed a Renunciation of Administration of the Deceased’s Estate dated 17 July 2013.

6.The plaintiff says that things changed shortly after the grant.  She says that the defendant and his sisters became very hostile towards her,and on many occasions went to the Property to threaten and harass her with foul languages and words.  According to paragraph 25 of her affirmation dated 13 June 2016 filed in support of HCMP 1490/2016 (which I will come to):

“ [the] defendant and the Daughters gradually behaved badly towards me. Whenever they came to the Property, I was getting nervous and frightened, my blood pressure rose and my face grew red. I have in fact been on medication to treat my heart problem for over 16 years.”

7.By an Originating Summons dated 14 June 2016 (“the Originating Summons”), the plaintiff started against the defendant HCMP 1490/2016 (“the Estate Action”).  She sought inter alia an order that she do have leave to retract the Renunciation of Administration of the Deceased’s Estate, that the Letters of Administration granted to the defendant be revoked, that a fresh Letters of Administration be granted to her, and delivery of the title deeds of the Property by the defendant to her.  She also sought an order that the defendant “be restrained, under Section 70 of the PAO, from interfering, disturbing or otherwise affecting (whether personally or by his associates, servants, agents, nominees, contractors, employees, other associated parties or otherwise howsoever) the Plaintiff’s exclusive and peaceful occupation and quiet enjoyment of [the Property].” 

8.On the same day when she took out the Originating Summons, the plaintiff also took out under the Estate Action a summons (“the Injunction Summons”).  She sought thereby inter alia an interlocutory injunction against the defendant in the same terms as prayed for in the Originating Summons.

9.The hearing of the Injunction Summons came before Chow J on 15 July 2016.  His Lordship delivered his written Decision on the same day (“the Decision”).  His Lordship recorded the background facts and the plaintiff’s complaints (paragraphs 2 – 11 of the Decision).  As I see it, the ruling ultimately hinged upon the nature of the legal interest which the plaintiff claimed to have in the Property.  His Lordship recorded the acceptance by Mr Ng, counsel for the plaintiff (who also appeared for the plaintiff before me), that the plaintiff did not have any interest in the Property (paragraph 15 of the written Decision).  His Lordship found on the evidence that the plaintiff’s case on contractual licence was plainly not sustainable (paragraph 15).  He accepted however that the plaintiff had raised an arguable case that she had a bare licence to occupy the Property, and ruled that three months’ notice would be reasonable to terminate that bare licence (paragraphs 16 – 18).  On that basis, he granted an interlocutory injunction in the terms sought for a period of three months (paragraph 18).  His Lordship however made clear at paragraph 19 that the order did not necessarily mean that the plaintiff had to vacate the Property after three months.  Whether she had to would depend on the defendant giving notice of termination of the bare licence.

10.As things turned out, the defendant gave the plaintiff a writtennotice of termination dated 27 September 2016, requiring her to vacate theProperty in three months.  That three-month period expired on 26 December 2016.

11.In the meantime, pursuant to an order dated 3 November 2016 made by Chow J, the Estate Action was ordered to be continued as if it had been begun by writ.   The plaintiff filed her statement of claim dated 30 November 2016 (“Estate Action Statement of Claim”).  A defence and counterclaim dated 28 December 2016 was filed by the defendant (“Estate Action Defence and Counterclaim”), followed then by a reply and defence to counterclaim of 11 January 2017 by the plaintiff.

12.A number of different factual issues have been framed in the pleadings filed in the Estate Action.  At paragraph 12 of her Estate Action Statement of Claim, the plaintiff pleaded, amongst other things, that the defendant and his sisters were getting hostile towards her.  Particulars are provided thereunder.  Of specific relevance to the present application are the following particulars provided under the heading of “Hostile to the Plaintiff”:

“ (f) Hostile to the Plaintiff

…

(vi) On 15^th June 2016, the Defendant instructed workers to demolish the wall tiles next to the shower space (‘the demolition work of the bathroom’ despite the fact that the Plaintiff was still living at the Property. The tiles, debris and stones were scattered and left at the shower space. The Defendant’s act caused difficulties to the Plaintiff’s normal and daily life.

(vii) On 28^th June 2016, the Plaintiff returned to the Property and found that the bathroom door was dismantled and removed, and there were further tiles, debris and stones all over the floor of the bathroom. Most of the tiles of the bathroom wall and been demolished, and the electricity supply to the lamps inside the bathroom had been cut off.

(viii) The Defendant and the Daughters had adopted a hostile attitude towards the Plaintiff and utilized all means in order to deprive the Plaintiff of her rights and interest of the estate of the Deceased.”

13.The defendant’s defence to those particulars are also relevant.  He denies paragraph 12 of the Estate Action Statement of Claim, includingthe particulars provided thereunder.  He further pleads at paragraph 29(vii) and (viii) that:

“ (vii) It is the Plaintiff who is hostile to the Defendant (and [oneof the sisters]) and not the other way round. The Plaintiffmaintained a good and harmonious relationship with othermembers of the family even after the death of the Deceased but until about 28 May 2016 (when she suddenly refused to go to the solicitors’ firm to sign documents).

(viii) The Defendant (and [one of the sisters]) did not, and did not intend to, cause hardship to the Plaintiff’s living in the Property by carrying out the renovation and repair works therein so as to evict her therefrom.  The Defendant is required by law to carry out the renovation and repair works in compliance with orders issued by government authorities and for the sake of building safety.  The Defendant invited the Plaintiff to move out from the Property temporarily pending the completing of the renovation and repair works for her own comfort and safety sake.  But the invitation met with the Plaintiff’s unreasonable and fierce opposition.  The Plaintiff has victimized herself.”

14.The Estate Action has been set down for trial.  The trial will take place, I have been informed by counsel, between 13 and 19 March 2018. 

15.By Writ dated 8 February 2017 indorsed with the Statement of Claim, the plaintiff started against the defendant the present action (HCA 289/2017). The purported cause of action is the tort of harassment.  (I say purported because at one stage, the defendant raised an issue as to whether the law in Hong Kong recognizes such a cause of action.  More on this later.)  The plaintiff’s family background, the Deceased’s death, and her occupation of the Property are briefly pleaded.  The material incidents, which the plaintiff claims that gave rise to the tort, took place between September 2016 and January 2017.  They are pleaded in paragraph 6.  Paragraph 7 concerns the defendant’s mental status relevant to the tort.  The defendant now, for the reasons set out in the Summons (reproduced in paragraph 1 above), says that they are not sufficient to support the claim.  That being the defendant’s stance, I deem it necessary to set out here the two paragraphs in full:

“6. The Defendant has engaged in a course of conduct (by words and/or action, and directly and/or through third parties), sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to the Plaintiff. Without prejudice to the Plaintiff’s right to rely on further particulars:-

(a) In or about September 2016, the Defendant engaged some contractors and caused them to demolish the bathroom inside the Property with the result that the Plaintiff had since had no facilities of taking bath inside the Property.

(b) On or about 6^th January 2017, Defendant engaged some contractors to dismantle the main electric switch inside the Property and to disconnect ordinary water supply to the Property. The Defendant interfered with the ordinary water supply to the Property by installing a pad-lock to the main water switch inside the Property. As a consequence, the water supply to the Property was completely cut off.

(c) Since about 6^th January 2017, the Plaintiff has been deprived of any supply of electricity and any supply of water to the Property, with the result that the Plaintiff was compelled to take bath with cold water, and to carry buckets to collect water from the nearby public toilet facility to do washing daily. She has since not been able to conduct any cooking for herself. Worse still, she has since been having no illumination for the Property and has been living in the dark at night.

7. The Defendant knows (or knew) and/or is (or was) reckless as to whether the Plaintiff would suffer injuries (whether emotional or otherwise) from his acts.  Without prejudice to the Plaintiff’s right to rely on further particular:-

(a) At all material times, the Defendant knows (and knew) that the Plaintiff is (and was) in actual occupation of the Property and that the Property has been the Plaintiff’s matrimonial home since year 2000.

(b) By a letter dated 23^rd January 2017 from Messrs. Tai, Tang & Chong, solicitors for the Plaintiff, to the Defendant, requesting the Defendant to restore the supply of electricity and water to the Property within the following two days.”

16.The defendant on 26 May 2017 filed his defence.  It is a 20-page long document.  On 30 June 2017, the defendant took out the present Summons seeking in effect an order to strike out the plaintiff’s claim.

C.   EXERCISE OF THE COURT’S POWERS UNDER ORDER 18, RULE 19

17.Mr Ng, counsel appearing for the plaintiff, set out in his written submissions a number of considerations relevant to the exercise of the court’s powers upon an application for striking.  They were distilled from paragraphs 18/19/4 and 18/19/5 of the Hong Kong Civil Procedure 2018 Volume 1. They were not disputed by the defendant.  I recite some of them as follows:

(a) “ It is only in plain and obvious cases that the courts should exercise its summary powers to strike out the indorsement on any writ….  There should be no trial upon affidavit.  Disputed facts were to be taken in favour of the party sought to be struckout.  The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.  If thecourt does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out.”   (paragraph 18/19/4) 

(b) “ The mere fact that the case is weak and not likely to succeed isno ground for striking it out….  Nor should sparsity as to detail lead to a similar result.” (paragraph 18/19/4) 

(c) “ The court is loath to strike out a case that involves an area of thelaw which is in the process of developing—summary dismissalwould deprive the court of hearing full argument on the subject‌….”    (paragraph 18/19/4) 

(d) “ Where a pleading is defective only in not containing particulars to which the other side is entitled, application should be made for particulars under r.12, and not for an order to strike out the pleading under this rule.  Even a serious want of particularity in a pleading may not justify striking-out if (1) the defect can be remedied, and (2) the defect is not the result of a blatant disregard of court orders….”   (paragraph 18/19/5) 

D.   WHETHER RES JUDICATA AND/OR ABUSE OF PROCESS

18.This was the first ground Mr Chong took when he developed his arguments orally before me.  I will therefore take this ground first.

19.Mr Chong contended that the plaintiff should have brought forward the harassment claim when Chow J was adjudicating on the Injunction Summons, and that the present action is thus an abuse of processof the Henderson v Henderson type.  In an attempt to make good that point, he took me through paragraph 6 of the Statement of Claim.  He also took me through the Decision.

20.In reply, Mr Ng relied on two main points.  In gist, the first point is that the res judicata/abuse of process principle only applies where the earlier proceedings have come to an end.  But in the present case, the Estate Action is still on foot.  The second point is that in any event, applyingthe principles set out in Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72, the court ought not strike out the claim as there is no abuse here.

D1.   Res judicata / abuse of process—the relevant law

21.Mr Ng’s submission that the res judicata/abuse of process principle only applies where the earlier proceedings have come to an end is supported by good authorities.  That was the conclusion G Lam J reached in Yifung Developments Ltd v Liu Chi Keung Ricky (HCA 3020/2015, 29 August 2016) after considering a number of authorities including Henderson v Henderson (1843) 3 Hare 100, Manson v Vooght [1999] BPIR 376 and Johnson v Gore Wood & Co [2002] 2 AC 1.  He further observed at paragraph 37 of the judgment that:

“ This is not surprising, for a principal policy underlying the rule against this kind of abuse is that there should be finality in litigation: Johnson v Gore Wood & Co, at p 31A per Lord Bingham. This public interest is generally not engaged where the earlier action is still on-going when the later action comes tobe considered. The rule also protects a party from vexation and oppression. It is true that in a proper case the law may protect him, not only from being vexed by successive actions, but also from being oppressed by unnecessary multiple concurrent actions. That however is not the function of the rule in Henderson v Henderson. Ample remedy for the latter is provided by the court’s power to allow amendment of pleadings, and to order consolidation, and other case management powers, in the light of which it must be rare indeed for an order precluding a claim altogether to be an appropriate, proportionate response.”

Yifung in this regard was also referred to and applied by B Chu J in Ubiquiti Networks International Ltd v Chan Kim Chuen (HCA 1606/2016, 26 May 2017), at paragraph 22.

22.Even if there is an overlap of issues between an earlier set of concluded proceedings and a subsequent case, such an overlap does not necessarily and per se lead to an abuse.  The correct approach to be adopted was explained by Ma CJ in Ko Hon Yue (supra) at paragraphs 82 and 83.  I highlight in particular the following passages:

“ 82. The abuse that is known as the Henderson v Henderson abuse (or res judicata in the wider sense—the nomenclature is not important) is derived from the case of that name. …. The essence of the doctrine is that a party ought generally not be permitted to raise in subsequent proceedings matters which that party could and should have raised in earlier proceedings.

83. For reasons that will become evident presently, it is unnecessary in order to resolve this part of the appeal to go intothe precise ambit of the principles regarding this form of abuse,although for my part, I would say that the present state of the law is reflected by the decision of the House of Lords in Johnson v Gore Wood & Coand of the Court of Appeal in Chiang Lily v Secretary for Justice. For present purposes, it is sufficient just to refer to the following facets of the doctrine:

…

(3) It must therefore be essential when striking out a claim on this basis (and thus preventing a litigation of that claim) that an abuse is found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings. This abuse will usually take the form of the other party being ‘vexed’ (or in some cases, the terms ‘oppressed’, ‘unjustly harassed’ or ‘unjustly hounded’ are used) by the subsequent set of proceedings: Johnson v Gore Wood & Co, 31A–B.

(4) The abuse can also take the form of the administration of justice being brought into disrepute….

(5) In examining aspects such as abuse, the court is concerned with balancing interests: not just those of the litigants before it, but also taking into account the other interests involved in the administration of justice.  It is important therefore here to emphasise that when the court is dealing with the Henderson v Henderson type of abuse, it is not looking at an absolute bar to litigation such as issue estoppel or cause of action estoppel.  On the contrary, in considering this type of abuse, the court is required to assess a number of factors and balance competing interests. See here, Bradford and Bingley Building Society, 1490F–H. ‌…”

23.The factors and competing interests discussed in Bradford & Bingley Building Society v Seddon [1999] 1 WLR 1482 are as follows:

“ [Abuse of process], which may arise where there is no cause ofaction or issue estoppel, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter.”

24.The correct approach to be adopted has further been explained by the Court of Appeal in Total Lubricants HK Ltd v De Chanterac (No 2) [2013] 2 HKLRD 838, per Kwan JA at paragraph 30, that:

“ The present state of the law on the Henderson v Henderson type of abuse is as stated in Johnson v Gore Wood [2002] 2 AC 1 at 29H–31F, which has been followed in Hong Kong (see Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at paras.55–66; Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at paras.82–83). Whether an action was an abuse of process as offending against the public interest in the finality of litigation should be judged broadly on the merits taking account of all the public and private interests involved and all the facts of the case. It is wrong to take a dogmatic approach and hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.”

25.In my view, G Lam J summed up the position succinctly at paragraph 43 of his judgment in Yifung, which I respectfully adopt:

“ …The starting point is that there is no presumption against the bringing of successive actions; and in a particular case there may be sensible reasons for advancing claims separately. In every case the burden rests on the defendant to establish that it is an abuse of process for him to be subjected to the second action: Johnson v Gore Wood & Co at p 59H per Lord Millett; Spencer Bower & Turner, Res Judicata (4th ed), §26.21.”

D2.   No res judicata / abuse of process

26.I have considered the parties’ submissions.  I have also considered the law cited to me, including in particular those discussed above.  I am not satisfied that the complaint based upon the concept of res judicataor abuse of process is made out.  My reasons are as follows:

(a) I find that the principle of res judicata and the related conceptof abuse of process which the defendant relies on applies onlyto cases where a litigant has raised a matter which should have and could have been raised in earlier concluded proceedings;

(b) The Estate Action has not been concluded.  Its trial has yet to take place;

(c) Importantly, during the forthcoming trial of the Estate Action, factual issues under the heading of “Hostile to the Plaintiff”remain live and have to be canvassed.  Those issues are not dissimilar in nature to those raised in paragraph 6 of the Statement of Claim;

(d) Faced with the difficulty that the Estate Action has not been concluded, Mr Chong submitted that the harassment claim should have been raised in the Injunction Summons, and hence, he submitted, there is still a Henderson v Henderson type of situation.  I do not agree.  No authority has been cited to me in support of the proposition that the doctrine of res judicata / abuse of process bites even though the earlier set of proceedings was only interlocutory in nature for an interim injunction.  In any event, by the time of the hearing of the Injunction Summons, the events pleaded in paragraph 6 of the Statement of Claim had not even taken place.  The issues involved in that summons were also very different.  It ultimately turned upon the nature of the interest which the plaintiff claimed she had in the Property.  I am not satisfied that it has been made out that the harassment claim could and should have been raised during the Injunction Summons;

(e) Even if there is any overlap of issues between the Estate Action (or the Injunction Summons) and the current action, I am, following and applying Ko Hon Yue, still not satisfied that there is sufficient abuse to justify an order to strike out.  There is no presumption against the bringing of successive actions (even if the Estate Action and the current action are).  The plaintiff has the right to have serious matters litigated.  The defendant on the other hand has not identified to me any specific abuse.  The Estate Action is still on foot and he will have to deal with similar issues during its trial anyway.   Balancing all factors, I am not satisfied that the complaint has been made out.

E.   WHETHER REASONABLE CAUSE OF ACTION

27.I note that no evidence shall be admissible on an application under the ground that the pleading discloses no reasonable cause of action (Order 18, rule 19(2)).  I record that my consideration of this ground has not been affected by any evidence filed.

28.Originally, there was some confusion as to whether the defendant was seeking to argue that the tort of harassment does not exist under Hong Kong law.  Mr Chong has confirmed to me that he is not taking that point, and he accepted that for the purpose of this application, it is at least arguable that the tort of harassment exists in Hong Kong. 

29.Rather, the position taken by Mr Chong was that the plaintiff’s pleaded case based on the tort of harassment in paragraphs 6 and 7 of the Statement of Claim is so devoid of material particulars that it should be struck out.  His main points were: (1) the pleaded facts or the particulars thereof lack “repetitiveness”, which is an element of the tort; (2) the mental element of the tort has not been, or has not been sufficiently pleaded; (3) there was no invasion of the plaintiff’s privacy; and (4) the acts complained of were not directed at the plaintiff.

E1.   The tort of harassment

30.I have been referred by Mr Ng to a line of authorities relevantto the issue as to whether the tort of harassment exists or not in Hong Kong.  Given Mr Chong’s position as recorded above, I will not go into them.  Suffice for me to say that in my view, the authorities clearly suggest that it is at the very least arguable that Hong Kong law recognizes the tort.

31.What are the elements of that tort?  That was explained by Anthony Chan J at paragraphs 62 – 68 of his judgment in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197:

“ 62. What are the parameters of this tort? First, I respectfully adopt the observation made by Lee JC in Malcomson in connection with the definition of harassment at 464F:

For the purposes of this application, I shall take the term ‘harassment’ to mean a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law.

63. …

64. Third, like most of the established tortious causes of action, there should be a mental requirement of the wrongdoer as well as damage to the victim in order to constitute the tort of harassment.

65. In respect of the former, I do not believe that it is necessary to show intention on the part of the wrongdoer to cause injury to the victim. The lower threshold of recklessnessas to whether the victim would suffer injury from his act wouldsuffice. The lower threshold is justified when physical or mental harm can be involved.

66.As regards the kind of injury or damage which may ground an action in tort of harassment, one can envisage that theharassment can result, at one end of the scale, physical injury and,at the other end, mere humiliation.  The correct balance has to be struck.  Further, different persons can react differently to the same type of harassment.  A mature and confident person may feel humiliated about a course of conduct, whereas a younger and more sensitive person may be affected with serious anxiety. However, a wrongdoer must take his victim as he finds him.”

E2.   Whether sufficient “repetitiveness”

32.The defendant’s complaint that the pleaded incidents lack “repetitiveness” faces a number of major difficulties.

33.The tort of harassment is developing.  There has not been a lot of authorities which discuss its elements, let alone the tests that should be adopted when considering whether any individual element has been made out.  Concentrating upon the element of “repetitiveness”, I notice thatthe parameter suggested by Anthony Chan J (adopting the observation madeby Lee JC in the Singaporean case of Malcomson v Mehta [2001] 4 SLR 454)is “sufficiently repetitive”.  How repetitive should be regarded as “sufficient”for the purpose of this element?  The question is fact-sensitive.  There can be no clear cut answer.  It will not be straightforward to answer after a trial, not to mention at this stage in the context of an application for striking out.

34.Further, the facts pleaded in paragraph 6 of the Statement of Claim do have a certain degree of repetitiveness.  Two dates were particularized, over three items of particulars. One ought not also lose sightof the fact that the acts complained of had continuous effects.  It is not like one harassing phone call or one incident of stalking.  We are in this case concerned with the demolition of the bathroom and the cutting off of water and electricity supply, resulting in a continuous state of affairs in which the plaintiff was, as pleaded, deprived of the use of bathroom, water and electricity.  Can the acts on this basis be regarded as sufficiently repetitive (even if they were otherwise not)?  No case has been cited to me which addresses these issues.  I am therefore not prepared, for the purpose of an application for striking out, and bearing in mind the guiding considerationsdistilled from the White Book as set out above, to jump to the conclusion that the answer is necessarily no.

35.I find that this limb of the ground is not made out.

E3.   The mental requirement

36.It is useful to reproduce here Mr Chong’s written Skeleton Arguments in this regard, that “P has not pleaded or sufficiently pleaded in the SoC particularly in §7 thereof, that D was reckless as to whether P would suffer injury from the conducts complained of.  P only pleaded knowledge on the part of D in §7 of SoC.  But pleading knowledge of P’s occupation of the Property at the material time is not, or not sufficient, pleading for P’s recklessness. Recklessness (like negligence) must be pleaded with particulars” (paragraph 18 of Mr Chong’s written Skeleton Arguments).

37.I note that even in his own submissions, Mr Chong has used theword “sufficient” or “sufficiently” twice.  Once the question of “sufficiency”enters the picture, alarm bell should be sounded as to whether it is an appropriate case for striking out. 

38.I have re-considered paragraphs 6 and 7 carefully.  In paragraph 6, it is pleaded that:

“ The Defendant has engaged in a course of conduct…which he ought reasonably to know would cause, worry, emotional distress or annoyance to the Plaintiff.”

In paragraph 7, it is averred that:

“ The Defendant knows (or knew) and/or is (or was) reckless as to whether the Plaintiff would suffer injuries (whether emotional or otherwise) from his acts.”

Some particulars are then pleaded.  Inferences may be drawn therefrom.  Whether the defendant is entitled to more particulars I do not say.  There has been no application for any.  What I say is that I am not satisfied, on the face osf pleadings, that the claim falls into one of those clear cases which should be struck out.

E4.   No invasion of privacy

39.This is not an element of the tort.  Its absence is of little relevance to the existence of the tort, and of even less relevance when it comes to considering whether the claim should be struck out.

E5.   Whether the acts directed at the plaintiff

40.I am not presiding over a trial.  No live witness has been called.  I cannot make finding as to whether what the defendant did were meant to be directed at the plaintiff.  This simply cannot be a sufficient ground, either by itself or together with the matters discussed above, to support an application for striking out.

E6.   Conclusion on this ground

41.The complaint that the claim discloses no reasonable cause of action fails.

F.   WHETHER SCANDALOUS, FRIVOLOUS OR VEXATIOUS

42.Mr Chong’s argument in this regard was summarized in paragraph 20 of his written Skeleton Arguments, that “Even assuming (for argument’s sake) P has a right of not being harassed in the precinct of the Property, there is indisputable evidence, including video-audio recordings proving that P has indeed agreed or consented to the carrying out of the renovation works…in the Property.  In other words, D is entitled to the complete defence of volenti non fit injuria.”  (Emphasis supplied)

43.Two matters arise from those submissions:

(a) If Mr Chong was, in a side wind, making the point that becausethe plaintiff had no interest in the Property, she was liable to be harassed, so that her claim based on the tort of harassment is scandalous, frivolous and/or vexatious, I reject the point.  Even if the plaintiff were or had some state become a trespasser,and that the defendant could resort to self-help, he could onlyhave used no more force than was necessary—see Hemmings v Stoke Poges Golf Club [1920] 1 KB 720, 747.   If what the defendant did to the plaintiff in fact constituted the tort of harassment, whether the absence of any interest in the Propertyon the plaintiff’s part, or even the fact that she was a trespasser, offers the defendant a defence, or otherwise justifies his acts, would be issues that are fact-sensitive, and would be something that can only be decided after a trial;

(b) The “indisputable evidence” which Mr Chong referred to concerned two recorded exchanges the plaintiff had with, amongst other persons present, the defendant, one of his sisters, and a security guard.  Those exchanges took place inside the Property.  On both occasions, the defendant and his sister were trying to persuade the plaintiff to vacate the Properties.  The exchanges were not entirely calm.  At various stages, the threeof them became emotional.  Confrontational was the word used by Mr Ng.  I have viewed the clips and I agree that it is a fair way to describe it.  Some words uttered by the plaintiff might be ones of frustration more than anything else.  She had also uttered words to the effect that things should be left to lawyers.  I bear in mind that the plaintiff is an old woman and is, according to her, not of the best health.  As cited above, she has said in one of her affirmations that “Whenever they came to the Property, I was getting nervous and frightened, my blood pressure rose and my face grew red.”  In respect of the first exchange, I also note that it took place on 15 June 2016, which predated the earliest incident pleaded in paragraph 6 of the Statement of Claim.  In the circumstances, and in the absence of live evidence, I am not prepared to infer from the exchanges that the plaintiff had consented to the alleged harassment, to the extent that her claim now becomes scandalous, frivolous and/or vexatious.

44.I find that this limb of the complaint also fails.

G.   CONCLUSION AND DISPOSAL

45.For the above reasons, I dismiss the defendant’s application.  Imake an order nisi that the plaintiff should have the costs of this application. 

H.   CONSOLIDATION

46.Given the common genesis of the Estate Action and this action,and given, as I have found, the similarity in the nature of some of the factualissues involved, it makes perfect sense that the two actions be consolidated for hearing. It is further my view that disputes of such nature between family members should be dealt with expeditiously so that hopefully the riftcan be healed as soon as possible.  In the course of the hearing, I indicated to counsel that should I dismiss the application, I might consider making case management directions on consolidation and seek the parties’ submissions in that regard. However, on further consideration, given the different types of consolidation that can be ordered, and to avoid further unnecessary costs, I have decided not to do so at this stage.  I however urgeparties to come together and agree upon a set of directions on consolidation, so that this action can be disposed of together with (or immediately after) the Estate Action. 

Mr Tom Ng, instructed by Tai, Tang & Chong, for the plaintiff

Mr Matthew Chong, instructed by Mandy Wan & Co, for the defendant