Man Wa Tong v. Shih Chao Jung and Another

HCA 10388/2000

[2019] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 10388 OF 2000

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Before: Hon Chow J in Chambers (Open to Public)

Dates of Hearing: 28 June & 5 July 2019

Date of Decision: 5 July 2019

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DECISION

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1.The issue before me is whether the court should grant an interim injunction pending the substantive hearing of the 1^st Defendant’s Summons (“the Summons”), which originally came before me on an ex parte basis on 28 June 2019. By the Summons, the 1^st Defendant applies for an interlocutory injunction to restrain the Plaintiff from interfering with the 1^st Defendant’s contractual licence or right of way over a road referred to as the “Yellow Road” shown on Annex 1 to a Tomlin Order made by Deputy High Court Judge Jeremy Poon (as he then was) dated 27 October 2006.

2.Under the Tomlin Order, the Plaintiff granted a contractual licence/right of way to the 1^st Defendant, her followers, her visitors and other persons intending to visit the 1^st Defendant’s temple (collectively referred to as “the Users”) to pass through the Yellow Road for access to the 1^st Defendant’s temple for or in connection with Buddhist worshipping or studying purposes.

3.There have been disputes between the parties relating to the scope of the contractual licence/right of way granted under the Tomlin Order, which it is not necessary to set out here, save to point out that prior to the issue of the Summons by the 1^st Defendant, there were 2 other applications made by a person claimed to be the 1^st Defendant’s successor (“the Successor”).  In the first application, made by a summons dated 6 April 2018, the Successor sought “specific performance” of the Tomlin Order.  That application came before Chu J on 13 April 2018, who adjourned the hearing of the summons sine die with liberty to restore upon the Plaintiff’s undertaking to permit the Users to pass through the Yellow Road provided that their identities were first registered by the Plaintiff.

4.In the second application, made by a summons dated 13 February 2019, the Successor applied for an “interpretation” of the Tomlin Order, in particular the scope of the right of way under paragraph 2 of the Tomlin Order.  That application came before Deputy High Court Judge Keith Yeung, SC on 27 March 2019, who gave directions for the filing of evidence and the further conduct of the application.  I am told that the date for the substantive hearing of that application will be fixed on 8 July 2019.

5.Apparently, the Plaintiff did not put in place the registration arrangement until sometime in May/June 2019.  The Plaintiff also installed a metal barrier restricting access through the Yellow Road, and required the Users to first register with the Plaintiff their names, their ID card numbers and the purposes of their visit before allowing them to pass through the Yellow Road.

6.On behalf of the Plaintiff, Ms Li argues that there is no urgency in this matter, in view of the fact that the Plaintiff in fact allows the Users to pass through the Yellow Road provided that they have first complied with the registration requirement.  There is no contrary evidence before the court that this is not in fact the position, even after repeated questions put by the court to Mr Tang (who made submissions on behalf of the 1^st Defendant at the hearing) on this point.  I accept that the Plaintiff has a legitimate concern to ensure that those who seek to pass through the Yellow Road are properly entitled to do so under the Tomlin Order.

7.Ms Li also emphasizes that what the Plaintiff has done is in accordance with the undertaking given to Chu J on 13 April 2018.

8.There is a substantial dispute on whether the Plaintiff is entitled to insist on the registration requirement under the Tomlin Order.  This dispute cannot be determined now, and can only be done at the substantial hearing of the Summons.

9.In relation to an application for “interim interim relief”, ie interim relief pending the substantive hearing of a summons for interlocutory injunctive relief, the court’s primary concern is to do practical justice on the balance of fairness.  In China Shanshui Cement Group Ltd v Zhang Caikui [2018] HKCA 409, Lam VP (giving the reasons for judgment on behalf of the Court of Appeal), stated as follows:

[13]    … It has to be reiterated that interim relief is meant to be an urgent temporary stop-gap measure and the circumstances were such that the court has to do practical justice on the balance of fairness even though it may not have sufficient time to consider the matter fully: see NPYJ v SMRC [2018] 1 HKLRD 573 at [3] and [4].

[17] The extent to which a judge give weight to the merit on an issue in a particular case depends very much on the context and there are obviously other factors at play including the effect of the grant or refusal of the relief and the subject matter at stake. It is a multi-facet assessment and, as we said, an exercise with high discretionary margin accorded to the first instance judge.

10.In my view, the current arrangement put in place by the Plaintiff, while it may not be entirely satisfactory from the 1^st Defendant’s point of view, does allow the Users to pass through the Yellow Road for the purposing of gaining access to the 1^st Defendant’s temple subject to the registration requirement, and achieves a degree of practical justice on the balance of fairness.  I accept Ms Li’s submission that there is insufficient urgency to justify the granting of an interim interim injunction in the present case.  The merits are not so clear as to tilt the balance either way.  I also take into account the long history of this case, including the fact that there are 2 other summonses before the court relating to effectively the same issue raised by the present Summons.

11.In all, I refuse to grant an interim injunction at this stage, and give the following directions:

(1)   the Plaintiff shall have leave to file evidence in opposition within 28 days;

(2)   the 1^st Defendant shall have leave to file evidence in reply (if any) within 14 days thereafter;

(3)   no further evidence may be filed without leave of the court;

(4)   the Summons shall be adjourned to the Summons Judge for substantive argument on 23 August 2019 at 10:00 am; and

(5)   costs of today be in the cause of the Summons.

12.I shall leave it to the Summons Judge to decide whether Mr Tang should be permitted to make submissions on behalf of the 1^st Defendant at the substantive hearing of the Summons.

Ms Vivian Li, instructed by Messrs K.C. Ho & Fong, for the Plaintiff

The 1^st Defendant, acting in person and present

The 2^nd Defendant was absent