Elias Neil David and Another v. Cheng Sui Chu and Others
Read the full judgment text of DCCJ 2148/2016 on BabelCite. This District Court judgment was delivered on 15 July 2019.
1. In this action, the plaintiffs claimed against the 1 st and 2 nd defendants (collectively as “defendants”) on nuisance, and the defendants raised a counterclaim against the plaintiffs on trespass and conversion. After trial, I handed down my judgment on 19 December 2018 allowing the plaintiffs’ claim and dismissing the defendants’ counterclaim (“the Judgment”).
Cited by 4 cases · Cites 4 cases
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DCCJ 2148/2016 [2019] HKDC 935 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2148 OF 2016 -------------------------
------------------------- Before: His Honour Judge Ko in Chambers Date of Decision: 15 July 2019 ---------------------- DECISION ---------------------- 1.In this action, the plaintiffs claimed against the 1st and 2nd defendants (collectively as “defendants”) on nuisance, and the defendants raised a counterclaim against the plaintiffs on trespass and conversion. After trial, I handed down my judgment on 19 December 2018 allowing the plaintiffs’ claim and dismissing the defendants’ counterclaim (“the Judgment”). 2.By a summons dated 15 January 2019, the defendants applied for leave to appeal. 3.Pursuant to my directions, the leave application is to be determined on paper and the hearing scheduled for 15 May 2019 was vacated. Both parties have submitted their written submissions. 4.This is my decision on the leave application. 5.There is no dispute as to the test to be applied. Leave to appeal should not be granted unless the appeal has a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard: section 63A of the District Court Ordinance, Cap 336. In the draft Notice of Appeal attached to their summons, the defendants put forward 6 grounds of appeal. According to their written submissions dated 30 January 2019 (“the Submissions”), the defendants contend that their appeal has a reasonable prospect of success. To meet the “reasonable prospect of success” requirement, an appellant is required to show more than an arguable case – his appeal must have merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at para 19. 6.It should be mentioned at the outset that the defendants’ present counsel (Mr Vincent Lam and Mr Kurt Ng) were not their trial counsel (Mr Pang) who was also the pleader of their Defence and Counterclaim (“D&CC”). Many of the points taken by the defendants in this leave application were not canvassed at trial. Insofar as it is necessary, I have revisited the evidence to ascertain the facts bearing upon these new contentions to test their arguability. Ground 1 7.Grounds 1 and 2 relate to the counterclaim based on trespass. At the trial, the defendants claimed that the plaintiffs had trespassed on their land. It was the plaintiffs’ defence that they had been entitled to use the land based on the Sub-Lease[1]. In their closing submissions, the defendants advanced three (inconsistent) arguments to challenge the validity of the Sub-Lease. I rejected all three arguments and dismissed their counterclaim in Section E of the Judgment. 8.One of the arguments advanced by the defendants at trial was that there had been an agreement between them and the plaintiffs’ head-landlord (Susan) to terminate the Head Lease[2] early by the end of 2015, ie the “second alternative” defined in para 39 of the Judgment. The plaintiffs’ subtenancy could not survive the Head Lease, so it was argued. Ground 1, which contains 5 sub-grounds, challenges my finding that there was no such agreement. 9.Grounds 1(a) and 1(c) should be considered together. It is said that I misunderstood the defendants’ case and erred in holding that the defendants’ case is inconsistent with the WhatsApp exchanges between Susan and D1 on 16 March 2015. See paras 40-43 & 46 of the Submissions. 10.In paras 49 and 50 of the Judgment, I commented that the defendants’ case is inconsistent with the 16 March 2015 messages. First, it is not apparent from the messages that there had been prior conversation on early termination of the Head Lease. If Susan had wanted to terminate the Head Lease early (ie before its expiry at the end of 2020), she would not have insisted on the full term of the lease (at 20:12) when D1 suggested to her that the Head Lease would “finish this year” (ie by the end of 2015). Secondly, contrary to the defendants’ contention, Susan was relying on the notice requirement (at 20:01). All these are apparent from the messages which are set out in full in the Judgment. 11.In para 48 of the Judgment, I summarised the defendants’ case on the “second alternative” for the purpose of the discussion. What matters in terms of the defendants’ case is that the parties had come to an agreement after some negotiation and that Susan had waived the written notice requirement. In my view, it does not matter if the negotiation had been prompted by Susan making a request for early termination or merely raising “the possibility that she may request for early termination” (para 41 of the Submissions). This is also the stance adopted by the defendants’ present counsel, as they argue in para 9 of their reply submissions dated 26 February 2019 that: “The fact that Susan raised a possibility of her requesting for early termination is neither here nor there in relation to the early termination of Head Lease and is hardly a material fact…” 12.In Ground 1(b), I am criticized for failing to properly assess the implications of: (i) Susan’s messages on 16 March 2015; (ii) Susan’s conduct in paying 8 months’ rent in one go; and (iii) the evidence of Ms Tse (the defendants’ witness) before rejecting the second alternative. See paras 44-45 of the Submissions. 13.In relation to (i), it is said that I failed to take into account the implication that: “… what Susan meant is that she would facilitate the signing of a new contract between the Defendants and the new owner. Before having a new contract between the Defendants and the new owner with respect the part originally leased by Susan, the Head Lease must be terminated first.” (para 44(a) of the Submissions) 14.The above contention should be rejected as it is not supported by the evidence. During cross-examination, Susan was repeatedly asked and consistently denied (despite some confusion due to the way the questions were asked) that she had wanted to terminate the Head Lease early. The following exchanges between Mr Pang and Susan serve as an example:-
15.In relation to (ii), I rejected (in para 51 of the Judgment) the defendants’ contention that Susan’s payment of 8 months’ rent in one go was referable to the second alternative. I said that Susan’s action was prompted by D1 who was under the misapprehension that the Head Lease would expire by the end of 2015. In paras 44(b)-44(c) of the Submissions, the point is re-argued when it is submitted that:-
16.At the trial, Susan was not asked why she had acceded to D1’s request to pay 8 months’ rent in advance in one go. Given her evidence that she did not want to terminate the Head Lease early (see above), there is no basis to make the inference contended. In my view, Susan’s action was quite understandable when viewed in the context of the following evidence:-
By acceding to D1’s request, Susan would not have to think about payment of rent for a few months and could focus on her divorce. 17.In relation to (iii), it is submitted in para 44(d)-44(e) of the Submissions that I failed to discern from Ms Tse’s evidence that Susan must have told the estate agent who had taken Ms Tse to view House 60 that the Head Lease would end on 31 December 2015. 18.The question of the source of knowledge of the estate agent was never explored at trial. Ms Tse did not reveal the source in her witness statement and she was not asked about it. The defendants did not call the estate agent to testify. More importantly, it was not put to Susan that she had so informed the estate agent and Susan was deprived of the opportunity to answer the accusation now that it is made. In any event, given Susan’s evidence that she did not want to terminate the Head Lease early, there is no basis for the defendants to argue that “[t]he source of knowledge must be from Susan” (para 44(d) of the Submissions) or that “Susan did communicate to third party, including the estate agent and potential buyer (through the estate agent on her behalf), that the Head Lease would end on 31 December 2015” (para 44(e) of the Submissions). 19.In Ground 1(d), I am criticized for having “wrongly decided in §50(c) that D1 had misapprehended the terms of the Head Lease (the ‘Mistake’) when the issue of Mistake was not pleaded…, without giving the Defendants and Susan any opportunity to explain on their intention when they entered into the Head Lease in trial, thereby taking both [parties] by surprise.” The defendants then attempt to re-argue their case based on the law of mistake in Ground 1(e). See paras 47-69 of the Submissions. 20.At the trial, the defendants opened their case on the basis that the Head Lease was for a term of 10 years from 1 January 2011 with an option to terminate the lease early after 1 January 2016: see para 5 of the defendants’ opening submissions. That was in accordance with D1’s evidence as stated in paras 6-7 of her witness statement:-
21.On the other hand, D1 said on 16 March 2015:-
22.At the trial, D1 did not proffer any explanation on the apparent inconsistency in her evidence. On the evidence, I was entitled to comment in para 50(c) of the Judgment: “It is apparent that D1 had misapprehended the terms of the Head Lease.” 23.But that does not mean I have invoked the law of mistake. The point is simply that D1’s subjective (mis)understanding of the terms of Head Lease on 16 March 2015 is irrelevant vis-à-vis the Head Lease. As Mortimer NPJ said in Marble Holdings Ltd v Yatin Development Ltd (2008) 11 HKCFAR 222 at [19]-[22]:-
It is futile for the defendants to try to analyze my comment in terms of the law of mistake, and their elaborate argument based on unilateral mistake and common mistake in paras 52-69 of the Submissions is, with respect, academic. 24.On the other hand, the defendants argue in para 51(a)-(e) of the Submissions that: “… the 1st Defendant’s intention or understanding to the Head Lease is neither here nor there. So long as the 1st Defendant communicated on behalf of the 2nd Defendant to Susan that the 2nd Defendant agreed that the Head Lease would end in December 2015 as per Susan’s request (See 16 March Messages at 20:23 when the 1st Defendant texted Susan ‘The contract will cancel at 1-1-2016’), there would be an agreement for Early Termination … It follows that so long as neither the 2nd Defendant and Susan made the Mistake (or the Judge made no ruling that they made the Mistake), it is open to the 2nd Defendant and Susan to have an intention to terminate the Head Lease early (ie an intention to be legally bound)…”. 25.It is wrong for the defendants to suggest that D1 (on behalf of D2) had “agreed that the Head Lease would end in December 2015 as per Susan’s request…”. As we have seen above, it was not Susan’s evidence that she had requested for early termination of the Head Lease. The suggestion is also at variance with the defendants’ pleaded case that Susan had informed D1 that she had “intended to terminate the [Head Lease] by the end of April 2015.” (para 14.1 of the D&CC). 26.In fact, it was D1 who had suggested to Susan to terminate the Head Lease by the end of 2015 and she took Susan’s silence as agreement. The relevant part of her cross-examination is excerpted at Appendix A. But silence, as a general rule, is not sufficient to amount to acceptance: see Chitty on Contracts, 33rd Edition (2018) at para 2-069. 27.That leads me to a more fundamental point. As I read the messages, there was in fact no meeting of minds between D1 (on behalf of D2) and Susan. D1, due to her misapprehension that the Head Lease would expire at the end of 2015, was talking about the expiration of the Head Lease as opposed to intimating an intention to terminate the Head Lease early (at 20:08). On the part of Susan, she queried D1’s understanding (at 20:08) and reiterated that the Head Lease was for 10 years (at 20:12). D1 then repeated her (erroneous) stance (at 20:23). There was thus no “agreement for Early Termination” as contended by the defendants. 28.Moving on, the defendants also suggest in para 52 of the Submissions that “Susan also had such a Mistake”. The submission is at variance with the unchallenged evidence in para 3 of Susan’s witness statement that: “The contract was for a term of ten (10) years from 1st January 2011, (see contract clause 1). However, clause 23 provides that from 1st January 2016 onwards, either party may cancel the contract by giving one month’s notice in writing to the other party.” Ground 2 29.Ground 2 relates to the “third alternative” discussed in paras 40-42 of the Judgment. It is said (in paras 70-71 of the Submissions) that I erred in finding that there was no such plea in the defendants’ pleading. 30.In para 71 of the Submissions, the defendants identify para 14.2 of the D&CC as the pleading basis of the third alternative. In my view, para 14.2 should be read in the context of the whole D&CC.
31.I do not accept the argument in para 71 of the Submissions that: “Together with §14.3 of D&CC, it would form a plea of an agreement for Early Termination. Now that the Judge rejected the existence of an agreement for Early Termination, §14.2 of D&CC remained intact and should alone form a plea of notice to quit”. 32.The functions of properly particularized pleadings are said to be: (1) to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved; (2) to prevent the other side from being taken by surprise at the trial; (3) to enable the other side to know with what evidence they ought to be prepared and to prepare for trial; (4) to limit the generality of the pleadings, the claim and the evidence; (5) to limit and define the issues to be tried, and as to which discovery is required; and (6) to tie the hands of the party so that he cannot without leave go into any matters not included: see Hong Kong Civil Procedure 2019, para 18/12/1. 33.By paras 14 & 15 of the D&CC, the defendants represented to the plaintiffs (and the court) that their case on “Early Termination” was that the Head Lease “was terminated by the end of 31 December 2015” (para 15.1). Both parties had prepared for trial and the trial was in fact conducted based on such representation:-
34.In my view, the present argument of the defendants that they should be entitled to pick and choose amongst the material facts grounding the second alternative after the second alternative has been rejected to reformulate them into a different plea (ie the third alternative) goes against all the pleading principles mentioned above. The plaintiffs have clearly been taken by surprise. 35.In the course of the present argument, I was referred by the defendants to the Court of Final Appeal decision in Mak Kang Hoi v Ho Yuk Wah (2007) 10 HKCFAR 552 in which Mortimer NPJ said (at para 101):-
36.In my view, it would be most unfair to the plaintiffs if the defendants were allowed to rely on the third alternative – a case the plaintiffs had not been called upon to prepare and meet at trial. 37.In any event, the defendants’ argument based on the third alternative (ie termination on 1 February 2016) is contradicted by their own pleaded case and evidence:-
Ground 3 38.Ground 3 (see also paras 73-75 of the Submissions) relates to the counterclaim for the reinstatement of the fences discussed in Section F of the Judgment. It is said that this ground is premised upon “Ground(s) 1 and/or 2 is/are made out”. Given the above discussion, this ground should also fail. Grounds 4 and 5 39.The remaining grounds of appeal relate to the plaintiffs’ nuisance claim discussed in Section G of the Judgment. Very briefly, I accepted the plaintiffs’ case that the defendants had committed a nuisance by: (i) hanging dead fishes at the back of the plaintiffs’ house which presented an unpleasant sight and produced an obnoxious smell; and (ii) placing three buckets of excreta at the back of the plaintiffs’ house which gave off an obnoxious smell. 40.It is not correct for the defendants to say in Ground 4(a) that I rejected their case by “assum[ing] that salted fish was unhealthy and D1 would not consume any unhealthy food”. I rejected their case on balance of probability because it was artificial and unauthentic: see paras 99 and 100 of the Judgment. 41.I took turns to discuss the parties’ case in paras 101 and 102 of the Judgment. The fact that I discussed the defendants’ case first does not mean that I have placed the onus of proof on the defendants (Ground 4(b)) or shifted the burden of proof to them (para 80 of the Submissions). 42.At the trial, the plaintiffs maintained, and the defendants denied, that the dead fishes gave off an obnoxious smell. It was necessary to assess their respective assertions. The plaintiffs’ case, in terms of P2’s evidence, was corroborated by P2’s contemporaneous complaint to the village head: see para 102 of the Judgment. The timing and the content of the messages were consistent with her complaint – bad smell was in fact mentioned in the messages. On the other hand, the defendants offered the testimony of Ms Tse (the new owner of House 60) to corroborate their case that the fishes were not smelly. But Madam Tse, according to her evidence, only visited her house for the better part of the day (大半日) on Saturdays and she could not remember if the windows facing the defendants’ land were opened or not when she visited her house. 43.In relation to Ground 4(c), the defendants’ trial counsel had similarly submitted in his closing submissions that the plaintiffs had failed to produce any photographic evidence on the rotten fish. But that did not cause me to doubt the plaintiffs’ evidence which had been tested in cross-examination. In any event, such challenge could not be material given D1’s testimony (and confirmed by the EPD letter at p 393 of the Bundle) that she had in fact buried some “salted fish” in the land. 44.Ground 4(d) is an attempt to challenge my finding in para 100 of the Judgment that D1 had hung the dead fishes literally to the plaintiffs’ face to annoy the plaintiffs. I stand by my assessment there. 45.It is evident from the Judgment that I have taken the character of the neighbourhood into consideration, see para 85(e) on the general principles and para 92 in relation to the mirror door (Grounds 4(e) and 5(b)). 46.The plaintiffs complained that the dead fishes and the buckets brought to the scene by the defendants gave off the obnoxious smell. The defendants admitted bringing the dead fishes and the buckets there but denied any bad smell. There was no evidence of bad smell prior to or subsequent to the plaintiffs’ complaints. There was no suggestion that the plaintiffs had been unduly sensitive or that the smell was native to farmland or the neighbourhood. There was thus no cause for me to specifically mention the character of the neighbourhood in the discussion. 47.The argument in para 90 of the Submissions that farmlands should have better ventilation actually works in the plaintiffs’ favour, as it tends to explain why Ms Tse next door was not similarly affected by the smell of the dead fishes. To complete the picture, there was no suggestion that Ms Tse visited her house on 21 April 2016 (which was a Thursday) when the plaintiffs complained about the smelly buckets. 48.Ground 5(a) relates to my finding that the buckets contained excreta. In paras 92-93 of the Submissions, the defendants complain that “neither the Plaintiffs nor the Defendants’ case that the substance in the buckets and applied to the land were excreta” and that they were taken by surprise and had been deprived of “a full opportunity to prepare such a case (such as cross-examining the Fire Brigade who made the Incident Report)”. 49.Although the plaintiffs had initially pleaded the substance to be “unknown chemical” in para 9(2) of the ASOC, they later clarified, in answer to the defendants’ request for further and better particulars, that the substance was “excrement” making reference to the findings of the Fire Brigade: see Answer 5 at p 39 of the Bundle. It is trite that if the particulars are not contained in the pleading but are served separately, they become part of the pleadings: see Hong Kong Civil Procedure 2019, para 18/12/67. The Incident Report was enumerated in the defendants’ 3rd Supplemental List of Documents dated 26 July 2017 (at item 43) and adduced as evidence without objection (at pp 465-466 of the Bundle). Thus, my finding that the buckets contained excreta was based on the plaintiffs’ pleading and founded on evidence and should not have taken the defendants by surprise. It is not for me to second-guess the defendants’ trial counsel for not calling the maker of the report. 50.In para 94 of the Submissions, the defendants complain, in relation to Ground 5(b), that I failed to consider “whether such excreta could have been fertilizer which is very common in rural areas.” 51.To start with, there is no evidence that excreta was being used (let alone commonly used) as fertilizer in the neighbourhood. In my view, it does not matter if the substance contained in the buckets could have been used as fertilizer or not. What matters is that it did give off an obnoxious smell and constituted a nuisance. My finding that the substance did give off an obnoxious smell was supported by the Fire Brigade’s evidence discussed in para 108 of the Judgment. Ground 6 52.In Ground 6, as supplemented by paras 95-97 of the Submissions, it is said that I failed to consider the comparable case of 黎照華訴張卿艷, unreported, LDBM 278/2003, 12 May 2004 and erred in awarding $40,000 as damages to the plaintiffs. 53.In making my assessment, I took into consideration all the authorities cited by the parties: see paras 116-119 of the Judgement. 黎照華was not amongst those cited in argument. In any event, it is not apparent from the written decision how the Lands Tribunal came to assess the damages to be $3,000 in 黎照華. There was no discussion on the principles involved and no comparable case was cited. I do not think the defendants have quite succeeded in showing, by means of 黎照華, that the assessment I made in the circumstances of this case was outside the generous ambit within which a reasonable disagreement is possible. Disposition 54.The defendants have, in effect, reargued their case in this leave application. Despite the efforts of their new counsel, I am not convinced that the appeal has a reasonable prospect of success. For completeness, it has not been argued, and could not be argued, that there is some other reason in the interest of justice why the appeal should be heard. 55.The summons for leave to appeal is therefore dismissed with costs to the plaintiffs with certificate for counsel, to be taxed if not agreed.
Mr Richard H L Yip, instructed by Cheung & Liu, for the 1st and 2nd plaintiffs Mr Vincent Lam and Mr Kurt Ng, instructed by Mike So, Joseph Lau & Co, for the 1st and 2nd defendants The 3rd defendant was not represented and did not appear Appendix A Excerpts of D1’s cross-examination by the plaintiffs’ counsel 問： 另外，我哋去睇吖，336頁。妳就話，妳話 “the contract will cancel at”，one one，即係1st January 2016，係咪？因為妳寫㗎嘛，係咪？ 答： 你講邊句？ 問： 中間嗰句，336頁，兩幅圖畫中間，係咪？即係妳話個合--個租約就2016年1月1號就完㗎喇，咁樣樣。 答： 係，係。 問： 係咪？ 答： 係。 問： 咁我哋睇落去，呢個短訊係3月--應該3月16號，係喇，3月16號。 答： 係。 問： 咁我哋睇落去，Susan係冇同意妳呢個講法㗎喎，係咪？ 答： 唔係，佢同意。 問： 妳睇落去喇，佢嘅下一面，3月--喺337頁，佢話 “Chu, can we talk? Are you home?”，佢話「我哋可唔可以傾一傾？妳喺唔喺屋企？」咁樣樣，係咪？ 答： 係。 問： 呢句唔係同意妳個講法喇，係咪？佢唔係同意妳話，「好喇，我哋1月--2016年1月1號... 答： 佢冇no我呀。 問： 我嘅問題，佢冇同意過妳，佢唔係... 答： 我覺得佢同意嘅。 問： 即係妳自己主--妳同唔同意... 答： 我覺得佢同意。 問： Okay，妳主要意願，妳覺得佢同意，係咪？ 答： 咁佢都係想咁啫，佢都係想走之嘛，佢由頭到尾都係想走啫，咁我點解會覺得佢唔同意呢？ 問： 我向妳指出，佢從來都冇同妳同意過，就話張租約喺2016年1月1號就會終止㗎喇。 答： 咁佢點解一次交八個月租呢... 問： 唔係，我問妳嘅問題，妳答我，妳同意呢個statement，妳話唔同意得㗎喇，妳唔使同我拗嘅。 答： 唔係，我覺得我同意佢係同意完約嘅，我同意佢同意完約。 問： 或者我再問多妳一次吖，妳聽... 官： 鄭女士，或者妳聽清楚律師嘅問題喇，咁可能係會幫助妳去了解清楚人哋問乜嘢，妳可以係答得準確啲，否則嘅話，妳聽唔清楚，妳又用妳嘅方法去答，跟住律師又要再兜過方法，係去再問番佢想問嘅嘢，咁變咗我哋今日就會係喺度糾纏㗎喇，... 答： 唔好意思。 官： ... 所以妳聽清楚佢嘅問題，跟住就如實作答就可以喇。 答： 明白，唔好意思。 官： 好。 問： 我講多次個問題，我就話喺2015年嘅起碼喺3月17號喇，嗰段--3月嗰段時間，3到4月嗰段時間，Susan係沒有與妳同意話租約喺2016年1月1號會終止，妳對於呢句句子贊同吖，定係不贊同？贊唔贊同？ 答： 唔好意思，你--我演譯一次，係咪即係我... 官： 再問過喇。 答： 我 ... MR YIP： 好。 問： 咁講多次，我就話，喺2015年3月到4月呢段時間，Susan從來冇用口或者文字同妳講過，佢同意就話你哋之間嗰張租約會喺2016年1月1號終止。 答： 唔同意。 問： 我哋喺一個呢個嘅WhatsApp紀錄入面，好清楚咁樣睇到，Susan係冇咁樣嘅意圖，妳同唔同意？ 答： 唔同意。 問： 而事實上，喺整個2015年，Susan都冇同妳有一個--沒有同妳冇--同妳冇一個協議就係話，喺--張租約去到2015年年底就會終止㗎喇，同唔同意？ 答： 唔同意。 問： 而妳亦都沒有任何嘅證--文件證供去顯示，係Susan喺2015年與妳有一個協議，就話張租約去到年底，15年年底就會終止㗎喇，妳同唔同意？ 答： 唔係好明文件證供 ... 問： 算喇，唔緊要，呢個submission嗰度。… | |||||||||||||||||||||||||
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