Pang Ho Tong v. Persons Unlawfully and Wilfully Entering Trespassing or Remaining on or Causing Damage To or Hindering or Preventing Access To or Interfering With the Use and Enjoyment of the Portion of Land Shaded in Red and Yellow in Annex 1 To the Writ of Summons Herein and Another

DCCJ 6227/2019

[2020] HKDC 152

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6227 OF 2019

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Before: His Honour Judge Kent Yeein Chambers (Open to Public)

Date of Hearing: 15 January 2020

Date of Decision: 17 March 2020

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DECISION

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Introduction

1.Mr Pang obtained an injunction against the first defendant from His Honour Judge Andrew Li on 18 November 2019 on an ex parte basis (“the Ex-parte Injunction”) in respect of a piece of land to which he claims to have acquired a possessory title by way of adverse possession (“the Subject Land”). He duly took out an inter partes summons dated 25 November 2019 (“the Summons”) for the purpose of the continuation of the Ex-parte Injunction.

2.Subsequent to the grant of the Ex-parte Injunction, Madam Tsui was joined as the second defendant herein by a consent order dated 28 November 2019.

3.Madam Tsui now applies to discharge the Ex-parte Injunction and opposes the Summons. She has not taken out any summons for her discharge application and she merely prays for a discharge of the Ex-parte Injunction in her 2^nd affirmation dated 3 December 2019.

4.Ms Lee, for Mr Pang, complains about the failure of Madam Tsui to take out a summons for her discharge application. I do not think it is of absolute necessity to do so. It is expressly provided in the Ex-parte Injunction that the defendant do have leave to discharge the same on notice and Madam Tsui already indicated her intention to do so in her affirmation and hence notice was given. I see no merit in this complaint.

5.At the conclusion of the hearing, I indicated my inclination fairly clearly. Actually I would have given a reasoned decision but for a jurisdiction challenge mounted by Mr Chan, counsel for Madam Tsui.  He points out that there is no evidence before this court relating to the rateable value of the Subject Land and Mr Pang is, thus, unable that his claim falls within the jurisdiction of the District Court.  I do not think that I should simply deny him any relief at all on this ground alone as urged upon me by Mr Chan on the strength of Chan Siu Cheung Henry and Ors. v Cheung Wing Keung Peter (unreported, DCCJ 1500/2016, 24.8.2017).  I could only give direction to Mr Pang to file further evidence in this regard only. Regrettably, this has caused delay in the handing down of this Decision due to the unanticipated closure of courts in Hong Kong.

6.Eventually, by the 2^nd Affirmation of Lam Stanley Cheukan dated 24 January 2020, Mr Pang confirms that the rateable value of the Subject Land is HK$45,960 for the year 2018-2019 and hence his claim does fall within the jurisdiction of the District Court. Madam Tsui by an email of her solicitors dated 28 February 2020 indicates her agreement to the valuation and no longer challenges jurisdiction.

7.I should first give a brief account of the background facts relevant to Mr Pang’s claim and Madam Tusi’s discharge application.

Mr Pang’s case

8.Mr Pang’s claim in this action actually concerns two pieces of land. They are a portion of the Remaining Taxlord Lot No.T42 in D.D. 93 (“the Other Land”) and a portion of the Remaining Taxlord Lot No.T279 in D.D. 89, the Subject Land (collectively “the Properties”).

9.Madam Tsui became the registered owner of the Subject Land by virtue of an assignment dated 9 October 2019. The assignment was registered on 24 October 2019. Prior to the commencement of these proceedings, Mr Pang brought another action against the 5 predecessors-in-title of the Subject Land but not Madam Tsui under DCCJ 3407/2019 for adverse possession (“the Earlier Action”). Those 5 previous registered owners owned the Other Land too.

10.On 12 November 2019, 6 days before his ex-parte application in these proceedings, Mr Pang amended the writ in the Earlier Action to join Madam Tsui as the 1^st defendant therein.

11.Very briefly stated, the plea of adverse possession of the Properties is based on the following allegations of his exclusive possession of the Properties since 1970s.

(1)  Mr Pang was born in December 1964 in Mainland China and came to Hong Kong for good in late 1970s. 

(2)  His uncle Mr Lo and his family had started residing at the Properties since 1974 and they operated a pigsty there.

(3)  Mr Pang joined them upon his arrival in Hong Kong.

(4)  In or about 1987, Mr Lo intended to retire and leave the Properties. He agreed to transfer all his interests in the Properties and his pigsty to Mr Pang at a price. Such interests included rental income from another uncle residing at a house erected on the Properties.

(5)  Ever since his arrival in Hong Kong, Mr Pang had been in physical occupation of the Properties until 2002. From 1991 to 2002, he had his matrimonial home accommodating his family with 3 children on the Properties.

(6)  On or about 8 August 2017, Mr Pang granted a written licence to three individuals (“the Licensees”) for the use and occupation of a portion of the Properties at the consideration of HK$680,000.

(7)  In or about 1978, Mr Pang enclosed the Properties by a fence and two metal gates were installed.

(8)  He has obtained no permission of the then registered owners of the Properties for his exclusive possession of the Properties and his possession was adverse to them.

12.Mr Pang started experiencing trespass to the Properties in June 2018. He recognized that the trespass activities were instigated by Mr Hui who was the nephew of one of the then registered owners of the Subject Land. Mr Hui and his agents demanded him to move out of the Properties. Mr Hui stopped making such demands in September 2018 after Mr Pang reported to the police.

13.However, trespass activities resumed in October 2019 by a different group of people. From those people, Mr Pang realized that Ms Tsui had acquired the Subject Land. They demanded Mr Pang to surrender possession of the Properties.

14.In early November 2019, a man claiming to be the agent of Ms Tsui came to the Properties and offered Mr Pang compensation for his delivery of vacant possession of the Properties. Mr Pang refused.

15.Afterwards, trespass activities escalated and violent clearance of the Properties was threatened. On 5 November 2019, some people made red markings on the ground and put up plastic cordon around the Properties. One of them claimed to be the agent of Ms Tsui and demanded the Licensees to move out and threatened to demolish all their plants ad structures at the Properties. Mr Pang made numerous complaints to the police.

16.Mr Pang found out in early November 2019 that Ms Tsui had already transfer the registration of the electricity meter at the Properties to herself.

Discharge application

17.In the wake of these developments, Mr Pang found it necessary and appropriate to start a new action notwithstanding the Earlier Action and make the ex-parte application against Ms Tsui. Whilst the need of Mr Pang for interim relief is apparent, the immediate question springing to my mind is whether it is appropriate for him to make his application on an ex-parte without notice basis.

18.In Emperor International Holdings Ltd v Atnext Ltd. [2016] 1 HKLRD 77, G Lam J explained the exceptional nature of interim relief granted ex-parte without any notice and said this,

“12. Turning to the first point, so far as the procedure is concerned, it is, in my view, plainly wrong for the plaintiff to have gone ex parte without any notice to the defendant. It is well-established, and should have been well-known to all legal practitioners, that hearing an application and making orders on an ex parte basis are exceptional courses that require to be justified.

13.  In Ho Tak Eng v Fame Brilliant Ltd [2006] 1 HKLRD 34, at paragraph 8, Rogers VP said that: 

“… the application before the Deputy District Court Judge, as well as the application in this Court, was made ex.parte without any notice to the defendant. There was no justification for the application to be made without so much as giving even the shortest notice that the plaintiff’s lawyers would be appearing in front of the judge. Ex. parte applications without notice should only be made where either the delay would cause injustice to the applicant or the defendant would take action which would nullify the effect of the injunction. Apart from anything else, such a procedure is against the principles of natural justice.”

14.  In Re First Express Ltd [1991] BCC 782 at 785, in a passage quoted by Rogers VP in the Ho Tak Eng case, Hoffmann J said this:

“It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First, that giving him such an opportunity appears likely to cause injustice to the applicant, by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made. Secondly, when the court is satisfied that any damage which the respondent may suffer through having to comply with the order is compensable under the cross undertaking or if the risk of uncompensable loss is clearly outweighed by the risk of injustice to the applicant if the order is not made.

There is, I think, a tendency among applicants to think that a calculation of the balance of advantage and disadvantage in accordance with the second condition is sufficient to justify an ex.parte order.  In my view, this attitude should be discouraged.  One does not reach any balancing of advantage and disadvantage unless the first condition has been satisfied.  The principle audi alterma partem does not yield to a mere utilitarian calculation.  It can be displaced only by invoking the overriding principle of justice which enables the court to act at once when it appears likely otherwise injustice will be caused.”

15.  These principles were emphasised again by Hoffmann LJ and Bingham LJ in TRP Limited v Thorley (unrep., The Times, 13 July 1993) in passages quoted by Rogers VP in Ho Tak Eng at paragraphs 9 and 10.

16.  At paragraph 11 of Ho Tak Eng, Rogers VP stated:

“I have quoted extensively from these judgments because, although they contain what is clear and well-established law which has been reiterated in judgments in Hong Kong, it is apparent and confirmed by the submissions made by counsel that these highly important principles are being disregarded. An ex.parte application is not a convenient alternative to an inter partes application.”

17.  In Brand Farrar Buxbaum LLP v Samuel-Rozenbaum Diamond Ltd, unreported, HCA 5191/1998, 8 May 2002, at paragraph 24, Ma J, as the Chief Justice then was, stated the principle as follows, adding a reference to the additional dimension of the fundamental right of equality before the law:

“One of the facets of equality before the law (a fundamental right guaranteed under Article 25 of the Basic Law) is that no order ought to be made by a court against anyone without his first being given a reasonable opportunity of being heard.  An exception to this fundamental rule is where ex parte orders are made by the court.  At the risk of repeating the obvious, ex parte orders are only made “where the situation is of such extreme urgency that there is literally no time to warn the defendant of what is proposed, or where the purpose of the injunction will or may be frustrated if the defendant is informed of what is proposed or where the defendant simply cannot be found”: see TRP Limited v Thorley, unreported 13 July 1993, English Court of Appeal, Bingham LJ.” ”

19.These principles are well-settled and were clearly set out above. I do not find it necessary to add anything. Applying these principles to the present case, I can see no proper basis on which Mr Pang could have applied for the Ex-parte Injunction ex parte without any notice to Madam Tsui.

20.First and foremost, there was no extreme urgency on the evidence. The argument between the parties had been carried on for about two weeks. Mr Pang called the police a few times and effectively deterred the trespassers. There is no reason why Mr Pang could not have given Madam Tsui two days’ notice of his application by way of an inter-partes summons so that the court could hear both sides.

21.The more disturbing matter is that there was a patent lack of secrecy. I fail to see any reason whatsoever why Mr Pang could not have given Madam Tsui any notice of his ex-parte application. Once he had determined to make the application, he should have informed Madam Tsui so that she could have a chance to attend the hearing. Madam Tsui could not have done anything to frustrate the purpose of the injunction sought or nullify its effect, at least not within such a short space of time. In fact, Ms Lee could not suggest any.

22.I cannot accept that Mr Pang did not know that the alleged trespassers, i.e. the 1^st defendant herein, were related to Madam Tsui. Mr Hui was clearly the agent of Madam Tsui. He should be aware that their action was done to assert Madam Tsui’s ownership of the Subject Land. He should also know the means of contacting Madam Tsui. He was able to effect service on her for the purpose of the Earlier Action.

23.For these reasons alone, the Ex-parte Injunction is not defensible and should be discharged. Ex-parte applications cannot be causally made and the applicant must satisfy the court that there is a proper basis on which the relief sought should be granted against the party in his absence. Merits of his claim per se cannot meet the high threshold.

24.I also find it necessary to point out that the evidence of ex-parte application was not satisfactorily prepared. Whilst there were mentions about the Earlier Action and the written licence, Mr Pang did not exhibit to his affirmations a copy of the papers filed in the Earlier Action, not even the amended writ, and a copy of the written licence. Ms Lee can give no explanation for his failure to do so.

Regrant?

25.Mr Chan fairly accepts that there is a serious issue to be tried in the present case. Clearly the evidence adduced by Mr Pang shows that he has, to say the least, an arguable case of adverse possession of the Properties.  

26.Madam Tsui in her affirmations explains the hardship if the Ex-Parte Injunction is to be continued against her. I have read her evidence in detail. Basically, she complains about the deprivation of the use of the Subject Land, which she newly acquired and I well understand the inconvenience caused to her.

27.However, I am convinced that the balance of convenience tilts in favour of a re-grant. Mr Pang has occupied the Properties for quite some time and the status quo must be maintained pending determination of his claim.

28.Therefore, I grant an injunction against both the 1^st defendant and Madam Tsui in terms of paragraph 1 of the Ex-Parte Injunction.

Costs

29.Costs should follow the event in regard to the discharge application. Mr Pang should pay Madam Tsui forthwith her costs with certificate for counsel, to be taxed if not agreed. As far as the discharge application is concerned, the written evidence and the skeleton submissions are not helpful. I opine that Madam Tsui’s costs should be limited to counsel arguments in court for half an hour.

30.For the costs of the Summons, I make an order that costs including any costs previously reserved be in the cause with certificate for counsel.

31.These costs orders are made on a nisi basis.

32.Lastly, I thank both Ms Lee and Mr Chan for their industrious and reasonable submissions.

Ms. Katrina Lee, instructed by K.Y. Lo & Co., for the plaintiff

The 1^st defendant was not represented and did not appear

Mr. Chan Yip Hei, instructed by Christopher L.Y. Wong, for the 2^nd defendant