Tsung Tsin Association and Another v. Lai Kwok Wai and Others

HCA 516/2021

[2022] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 516 OF 2021

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Before:  Deputy High Court Judge Le Pichon in Chambers (by paper disposal)

Date of Plaintiffs’ Written Submissions:  14 April 2022

Date of 1^st, 4^th and 3^rd Defendants’ Written Submissions:  28 April 2022

Date of Plaintiffs’ Written Reply Submissions:  5 May 2022

Date of Decision:  12 May 2022

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D E C I S I O N

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1.This is the application of P1 and P2 (collectively “the plaintiffs”) for leave to appeal from this court’s order dated 22 March 2022 (“the March Decision”) that D1 and D4 continuing with their undertakings not to part with any of the assets, books and accounts of the School until trial of the action, the interim injunction granted on 9 April 2021 (“the 2021 injunction”) be discharged with an order nisi of costs in favour of D1, D3 and D4 with certificate for counsel, such costs to be summarily assessed and payable forthwith.

2.The nomenclature used in the March Decision will be adopted in this Decision.

3.I do not propose to rehearse the relevant background and context which gave rise to the 2021 injunction nor the intervening events since that date and the adjourned hearing. Those matters are fully set out in the March Decision to which reference should be made.

4.The Notice of Appeal (“NOA”) sets out 2 main grounds of appeal, namely, that (1) the court applied the incorrect test[1] in deciding that there is no serious issue to be tried regarding the plaintiffs’ claim for trespass; and (2) the court erred in law in ruling that the balance of convenience is against the continuation of the 2021 injunction.

5.It is well established that for applications for leave to appeal, the burden is on the applicant to show that there is a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard: section 14 AA of the High Court Ordinance. Such leave is not lightly granted.

NOA 1

6.The plaintiffs’ written submissions split NOA 1 into 2 grounds, singling out the finding of a contractual license (at §§79-80 of the March Decision) as a separate ground when the reasoning for discharging the 2021 injunction is set out in §§66-86 which should be read as a whole.

7.Be that as it may, the central point raised at the hearing and in this leave application is whether a mere denial of entry to the grantee of land by someone entitled to be in possession can amount to trespass which is the plaintiffs’ submission.

8.While P1 is the grantee of the Lot, it is common ground that the grant is not unqualified: P1 holds as a trustee, subject to a fiduciary duty to further the charitable object of maintaining a school. P1’s ownership rights over the Lot are not absolute and are only exercisable in furtherance of its duty as such trustee.

9.At the hearing, Mr Chan, counsel for the plaintiffs, submitted that the discharge of that duty required an investigation for 3 purposes/reasons which the court then proceeded to consider.

10.The focus of the reasoning in §79 is the need for the plaintiffs to show that D1 and D4 are trespassers, ie not being persons entitled to be on the Lot. Trespass refers to any unjustifiable intrusion by one person upon land in possession of another: Clerk & Lindsell on Torts, 23^rd edition at §18-01. It is misleading to suggest that the court was requiring a “precondition”, something that would otherwise not be necessary to establish trespass.

11.If the evidence shows that D1 and D4 are entitled to be on the Lot, prima facie, the plaintiffs would have difficulty in making out a case of ‘unjustifiable intrusion’ for their trespass claim.

12.The “unjustifiable intrusion” argument based on Billion Star Development Limited v Wong Tak Chun [2012] 2 HKLRD 85 at §38 (1) upon which P1 relied is not made out on the facts which show the contrary as is evident from §§77-80 of the March Decision.

13.The plaintiffs remain unable to identify any authority in support of the proposition that a mere denial of entry to the grantee of land by someone entitled to be in possession can amount to trespass.

14.As for the contractual license, the court is taken to task for failing to make any findings on the scope and extent of the licence. In the context of an interim injunction, it is inappropriate for the court to adjudicate finally on the rights and obligations of the parties nor is it in any position to do so. It is a question of evaluating on the available evidence the strength of each party’s case.

15.§79 of the March Decision concerns D1 and D4 but not D3. In so far as D3 features in the plaintiffs’ trespass ground at all, it is in paragraphs (f)-(g) of ground (1) which relate only to the assessment of factual evidence.

16.What the plaintiffs’ case is against D3 has not been articulated: the reference to prima facie evidence could only be about the 2^nd visit mentioned in §100 of the March Decision. The evidence relied on was considered in §§101-103 with the court concluding that the evidence does not support the plea that CY Chan had stated that “he was under the express instructions from … [D3] not to let the [plaintiffs] into the School”.

17.It has not been explained in what respects the court’s conclusion is wrong.

18.Paragraph (g) criticized the court for failing to take into account “the inconsistent statements” made by D3. However, the plaintiffs have not seen fit to elaborate on the statements targeted. In any event it is not understood how such statements can have anything to do with the plaintiffs’ obligation to provide evidence in support of the trespass claim against D3.

19.I maintain the views expressed in §§71-84 of the March Decision on the trespass issue. The pleaded cause of action in trespass is devoid of merit and I see no prospect of a successful appeal on the basis of ground (1).

NOA 2

20.The plaintiffs submitted that the court failed to take account various matters in ruling that the balance of convenience is against the continuation of the 2021 injunction.

21.The plaintiffs claim that the injunction is “not obstructive”. However, what the plaintiffs sought at the hearing was unrestricted access without prior notice which is a far cry from the situation pertaining in view of the undertakings given for the grant of the 2021 injunction.

22.The suggestion that the plaintiffs’ visitations to the School have been largely peaceful after the 2021 injunction was in place is debatable. There were 2 such visits, namely the 3^rd and 4^th visits. While the 4^th visit passed without incident, the 3^rd visit caused a dispute as to compliance or otherwise with the 2021 injunction.

23.But the prior history[2] (namely the 1^st and 2^nd visits) is not irrelevant. It is an understatement to say that the plaintiffs’ conduct was unnecessarily confrontational and aggressive. That coupled with what was sought being unrestricted access without prior notice not unnaturally caused serious concern having regard to the fact that one is dealing with access with a fully operational and functioning School.

24.In so far as it was submitted that no classes would be ongoing as Covid had caused the summer break to take place in March 2022, it is a fact that Covid causes an ever-changing regimen of freedom and restrictions with little notice. It would not have been prudent to disregard its unpredictability and the speed at which conditions could change. In any case, the plaintiffs’ submission has been overtaken by events as all schools have re-opened.

25.In deciding where the balance of convenience lies, the court evaluates all relevant factors. Having reviewed the March Decision, I see no valid basis for the discretion to be exercised differently.

26.In my view, the plaintiffs do not have realistic prospects of succeeding on ground (2) of the NOA.

Conclusion

27.For the reasons stated above, the plaintiffs’ application for leave is dismissed.

28.There is to be an order nisi of costs in favour of the defendants, with certificate for counsel, such costs to be taxed if not agreed, the 1^st and 3^rd defendants’ own costs be taxed in accordance with the Legal Aid Regulations.

Mr Sunny Chan and Mr Samkei Chan, instructed by K. C. Ho & Fong, for the plaintiffs

Ms Kelly Cheng, instructed by Tai & Co., for the 1^st and 4^th defendants

Mr Raymond Tsui, instructed by C. Y. Tsang & Co., for the 3^rd defendant