Ho Kwok Wa and Another v. Tang Ping Kuen and Others

HCA 2017/2019

[2019] HKCFI 2804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2017 OF 2019

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D E C I S I O N

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1.This is the plaintiffs’ application by inter partes summons for the continuation of an ex parte order granted by Mr Justice Ng on 4 November 2019. 

2.The ex parte order was made on notice and those representing the 1st defendant appeared to oppose the application at the ex parte stage. 

3.By the ex parte order, the learned judge granted an interim injunction restraining the 1st and 2nd defendants from obstructing or maintaining obstruction (whether by themselves or through placing objects thereat) or otherwise doing any act to cause obstruction or to prevent or hinder the clearance and removal of the obstructions or obstacles presently or in the future place at the vehicular and pedestrian access road marked green on the plan annexed to the writ of summons issued on 4 November 2019. 

4.The plaintiffs’ application is to do with what is defined as a “New Access Road”, which was used by the plaintiff and others for allegedly over 29 years as a right of way since 1990.  It is said that the plaintiff had acquired a right of way under doctrine of prescription by lost of modern grant in respect of the part of the New Access Road not owned by them. 

5.The evidence before the court at the ex parte stage suggested that the defendants took deliberate attempt to block the entrance to the plaintiffs’ property by the New Access Road and this has resulted in unreasonable interference with the plaintiffs’ use of the right of way. 

6.Despite attempts to remove such obstacles, the defendants would erect new obstacles repeatedly, and it is clear that, unless restrained by the court, the defendants are prepared to cause or maintain the blockade. 

7.The evidence placed before the Court at the ex parte hearing also suggested that since late 2019 various objects, including steel angles and concrete blocks, were placed on the part of the New Access Road, which was directly outside the entrance to the plaintiffs’ land.  The evidence before the court at that stage was, in my view, overwhelming, and the court can appreciate why the ex parte order was granted on short notice. 

8.Before me today, Mr Lai for the 1st defendant took issue with (1) the merits of the plaintiffs’ case, (2) balance of convenience, and (3) damages being an adequate remedy. 

9.Having heard arguments from counsel, I am satisfied that the ex parte order ought to be continued. 

10.Firstly, insofar as merits is concerned, the plaintiff has asserted that since around 1990 the then owners of the lot and the tenants residing thereat have been using the New Access Road to access the lot and the property uninterruptedly for pedestrian as well as lorry truck access.  Other members of the public have also accessed the lot in the vicinity through the New Access Road. 

11.Whilst there is no other evidence supporting the usage over the past 20 years, at this stage, I am of the view that it is understandable, given the nature of the application and the short period of time in which the application was put together.  More importantly, the assertion in the plaintiffs’ affidavit have not been disputed by the defendant in the evidence filed by them for the purpose of this hearing. 

12.I therefore agree with Mr Ko’s submission that there is really no concrete evidence disputing the merits of the plaintiffs’ case at this stage. 

13.The main point advanced by Mr Lai is really to do with balance of convenience.  He attempted to demonstrate that the New Access Road in question is not the main access to the lot, there is an alternative access by another road, and he attempted to persuade me by taking me to photos showing another entrance to the plaintiffs’ lot. 

14.On the state of the evidence before the court, I am also not satisfied that the 1st defendant has made out a case of there being an alternative access.  The quality of the evidence before the court is clearly less than satisfactory. There is a suggestion that there are better photographs and evidence and the 1st defendant asked for the court’s indulgence to undertake to file the same in three days.  However, the parties have agreed that the inter partes summons ought to be disposed of substantively today and the application will have to be determined on the state of the evidence before the court now.  On this basis, I am not satisfied that the point advanced by Mr Lai has been made out on the evidence available. 

15.In considering balance of convenience, I have also taken into account the conduct of the 1st defendant as contained in the evidence adduced by the plaintiff. There was clearly a deliberate attempt to block access to the plaintiffs’ lot. When asked what was the purpose of putting, for example, concrete blocks right outside the entrance to the plaintiffs’ land, no satisfactory explanation has been given.  Mr Lai had no instructions to put forward any particular reason or that the 1st defendant will be prejudiced if the relevant concrete blocks were removed. 

16.In the circumstances, I am not satisfied that there is going to be any real prejudice to be suffered by the 1st defendant if the injunction is to continue.   

17.On the other hand, on the state of the evidence before the court, I am satisfied that the rights of the plaintiff, insofar as the use of the access road is concerned, will be significantly prejudiced if the injunction is not continued. 

18.As to the point about damages being an adequate remedy, given the degree of inconvenience caused and that the court is not satisfied that there is any other viable means of access, I am not satisfied that damages is an adequate remedy. 

19.Taking all those matters into account, I will make an order in terms of the inter partes summons to continue the ex parte order granted by Mr Justice Ng on 4 November 2019. 

(Discussion re costs)

20.I will make an order that the ex parte order granted by Mr Justice Ng on 4 November be continued until trial or further order. 

21.Insofar as this application is concerned, the plaintiff’s costs is to be in the cause. 

Mr Tony Ko, instructed by Li & Partners, for the plaintiffs

Mr Richie Lai, instructed by Wai & Co Solicitors, for the 1st defendant

The 2nd defendant was not represented and did not appear