Frontrich Investments Ltd and Antother v. Wong Sui Hing

HCA 260/2021

[2021] HKCFI 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 260 OF 2021

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BETWEEN

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DECISION

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1.The abovenamed 1^st plaintiff, Frontrich Investments Limited (“Frontrich”), acquired by purchase, and became the registered owner of, Lots 115-119, 122, 124-126, 129-141, 144-147, 150, 154, 157-165, 173-175, 177, 179-184, 186, 188-194, 196-197 and 206 (“Lots”) in Demarcation District 358, Man Kok Tsui Village, Mui Wo, Lantau in 1988. In 2001, Frontrich further purchased, and also became the registered owner of, Lots 185, 187, 198, 199, 200, 201 and 202 (included in the “Lots”) in the same demarcation district.

2.The 2^nd plaintiff, Prachum Tsang (“Mrs Tsang”), was the wife of the late Mr Tsang Chun Kee (“Mr Tsang”) who was the tenant of the previous owner of the Lots purchased by Frontrich in 1988.  After the 1988 purchase, Frontrich agreed with Mr Tsang to continue the lease at a monthly rent of $100.  On 19 January 2006, Frontrich entered into a written agreement with the Tsang family (represented by Mr Tsang and his daughter) to extend the lease to all the Lots.

3.It is the plaintiffs’ case that:

(1) About 10 years ago, without Mrs Tsang’s consent or authorisation, the defendant (“Mr Wong”) rented out Lots 125, 126, 157 and part of 206, which are near the beach, to visitors for barbeque and as stations for water sports.  He further demolished a wooden bridge built by the Tsang family on Lot 157 and used an excavator to pull out some fruit trees that the Tsang family had planted on Lots 125, 126, 157 and part of 206.

(2) In September 2020, without the authorisation of Frontrich, Mr Wong damaged and removed the fences that Frontrich had erected around the Lots in August 2020.

(3) Recently, Mr Wong erected a fence along Lots 124-125, 157-159, 161-163, 186 and part of 206, thereby blocking the Tsang family’s access to these lots, two of their houses next to Lot 186, a water tap near Lot 124 and even the tomb of their ancestor located at the hillside.

(4) On 17 December 2020, Mr Wong used an excavator to enlarge the ditch that runs across Lots 163, 164, 164, 184 and 186 and ploughed on the soil of Lot 186, thereby causing severe damage to the land surface and plantation thereon.

4.In this action, which was commenced by writ of summons on 11 February 2021, Frontrich and Mrs Tsang claim for, inter alia, an injunction restraining Mr Wong, whether by himself, his agents, servants, employees or other persons, from trespassing on the Lots or any parts thereof or from doing any damage or further damage to the Lots.

5.In the meantime, on 8 January 2021, Mr Wong and his mother, Lam Mui (“Madam Lam”) in her capacity as the administratrix of the estate of her late husband, Wong Shing, had issued a writ of summons against, inter alia, Frontrich in HCA 34/2021 for a declaration of possessory title to some of the Lots namely, Lot 154, portion of Lot 157, Lot 158, portion of Lot 159 and 160, Lot 161, portion of Lot 162, portion of 163, portion of Lot 173, Lot 174, portion of Lot 175, portion of Lot 179, portion of 180, portion of Lot 181, Lot 182, Lot 183 and portion of Lot 206 in DD 358 as shown coloured orange on the plan attached to the amended statement of claim in HCA 34/2021 (“Occupied Area”).  (The court was informed at the hearing on 19 February 2021 that Madam Lam and Mr Wong intended to apply for leave to re-amend the statement of claim in HCA 34/2021 to extend the claim for possessory title to more portions of the Lots.)

6.On the same date, by an inter partes summons issued in HCA 34/2021 (“HCA 34/2021 Summons”), Madam Lam and Mr Wong sought against, inter alia, Frontrich an interim injunction restraining Frontrich from interfering with their use and enjoyment of the Occupied Area etc.  At the return date, the substantive hearing of the HCA 34/2021 Summons was adjourned to a date to be fixed.  Pending the determination of the HCA 34/2021 Summons, Frontrich gave an undertaking not to, whether by itself or its employees or workers or persons with its authority, to (1) erect any fences or structures to block the access to and from the Occupied Area; (2) remove the fences erected by Madam Lam and Mr Wong on the Occupied Area; and (3) cause or permitted to be caused any damage to the metal poles and iron wire fences surrounding the Occupied Area.

7.Before the court is the plaintiffs’ application in this action by summons dated 11 February 2021 (“Summons”) for an interim injunction restraining Mr Wong from trespassing on the Lots or any parts there of or do any damage or further damage to the Lots until the final determination of this action or further order of the court.

8.At the return date hearing on 19 February 2021, I adjourned the substantive hearing of the Summons to a date to be fixed and gave directions for the filing and service of affidavit evidence for use at such hearing.

9.The question raised for the court to decide now is whether, pending the determination of the Summons, there should be an interim interim injunction to restrain Mr Wong from doing the following on the Lots: (1) erecting any fences or structures; (2) digging, ploughing, excavating or carrying out any planting or cultivation activities; or (3) cutting or removing any trees or plants.

10.As explained by the Court of Appeal in China Shanshui Cement Group Limited v Zhang Caikui, CAMP 58/2018, unreported, 19 July 2018; [2018] HKCA 409 at [13] per Lam VP, the grant of interim 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.

11.Applying such principle to the series of act complained of by the plaintiffs (see [3] above), the present application does not strike me as being of such urgency that the plaintiffs need interim interim protection.

12.The first act of trespass began some 10 years ago.  Although Mr Wong’s use of the said Lots near the beach was allegedly done without Mrs Tsang’s consent or authorisation, no action had apparently been taken by either the landlord or the tenant to recover the Lots affected and Mr Wong was therefore able to continue to take advantage of the same.  There were no further acts of trespass in the following 10 years until 2020 (assuming that the erection of fences by Mr Wong mentioned in [3(3)] above, which is undated, also happened in 2020).  Although there is a revival of the alleged trespass in 2020, the invasions were sporadic.  The last alleged wrongful act occurred in December 2020.  It then took the plaintiffs about 1½ to 2 months to prepare the very simple generally indorsed writ of summons, the Summons and the 2 short and largely similar affirmations in this action and in support of the present application.

13.In light of these circumstances, I refuse to grant the interim interim injunction sought by the plaintiffs. 

14.But for the disagreement on interim interim relief, the parties would have eventually agreed on the adjournment of the substantive hearing of the Summons and the timetable for the filing and service of affidavit evidence.  I therefore award, on a nisi basis, the costs of the hearing on 19 February 2021 to Mr Wong, to be assessed summarily on paper by this court.  Mr Wong is to file and serve a statement of his costs within 7 days from the date of this decision.  The plaintiffs shall have 7 days thereafter to file and serve a list of their objections.

Miss Ellen Pang, instructed by Zebra H Y Kwan & Partners, for the plaintiffs

Mr Y L Zhu, instructed by Li, Chow & Company, for the defendant