Sun Yuen Wai Uwins v. Yeung Sze Yan and Others
Read the full judgment text of DCCJ 1755/2019 on BabelCite. This District Court judgment was delivered on 26 October 2022.
1. At the material time, the plaintiff was the owner and occupier of 1 st Floor, House 137 of Villa Pinada, No 88 Hong Po Road, Tuen Mun (respectively “ Villa Pinada ” and “ P’s Flat ”), while the 1 st defendant (“ YSY ”) was the owner, and the 2 nd defendant (“ Mui ”) was the tenant and occupier, of the flat directly above, namely 2 nd Floor, House 137 of Villa Pinada (“ D’s Flat ”).
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DCCJ 1755/2019 [2022] HKDC 1196 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1755 OF 2019 ------------------------- BETWEEN
------------------------- Before: His Honour Judge KC Chan in Court Dates of Hearing: 26, 27 & 30 August 2021 and 10 November 2021 Date of Judgment: 26 October 2022 ------------------------ JUDGMENT ------------------------ 1.At the material time, the plaintiff was the owner and occupier of 1st Floor, House 137 of Villa Pinada, No 88 Hong Po Road, Tuen Mun (respectively “Villa Pinada” and “P’s Flat”), while the 1st defendant (“YSY”) was the owner, and the 2nd defendant (“Mui”) was the tenant and occupier, of the flat directly above, namely 2nd Floor, House 137 of Villa Pinada (“D’s Flat”). 2.The plaintiff now claims against Mui for nuisance caused by noise and breach of the Deed of Mutual Covenant (“the DMC”) and also claims against YSY for having permitted it. 3.The plaintiff knew full well that at the material time the other occupants of D’s Flat were Mui’s wife, and since June 2015, their new born baby. They were not named as defendants but all unknown persons occupying D’s Flat were named as the 3rd defendant instead. At trial, the parties were content to proceed on the basis that Mui would be liable for the nuisance, if any were established, committed by his wife and/or his baby. 4.It is common ground that Villa Pinada is a low density estate offering relatively quiet and peaceful living environment. 5.The plaintiff pleaded that since the Mui family moved into D’s Flat in February 2014, but not before, there had been excessive noise emanated from D’s Flat[1]. 6.Mui and his wife occupied D’s Flat as their home. As said, in June 2015, their baby boy was born. 7.It is not seriously disputed that there were a lot of arguments between the plaintiff and the Mui’s family after the baby was born. From early 2016 to early 2019, the plaintiff had made 31 complaints to ISS EastPoint Properties Limited (“ISS”), the estate manager of Villa Pinada, about incidents of noise emanating from the D’s Flat. On some of those occasions, the plaintiff reported to the police. Those incidents will be listed below. 8.In around January 2019, the plaintiff installed a surveillance camera at the outer corner on the top of the glass roof of the terrace of P’s Flat with the lens facing the windows of the living room of D’s Flat. Mui reported this to the police as a violation of privacy. Mui in his pleadings[2] also complained about this violation of privacy and counterclaimed for damages. The plaintiff in oral evidence initially denied that the surveillance camera was installed to, or could, monitor the living room of D’s Flat. When pressed and being shown a picture taken from inside the living room in D’s Flat depicting the camera and how it was positioned[3], the plaintiff unwillingly admitted it. I so find. 9.On 9 April 2019, the plaintiff commenced this action. 10.On 30 September 2019, Mui moved out of D’s Flat, having terminated his tenancy before its expiry which would have been on 10 February 2020. Indeed, since having filed his Defence and Counterclaim in person on 28 August 2019, Mui has not participated in this action. 11.Also in September 2019, YSY sold D’s Flat. 12.After the defendants no longer owned or occupied D’s Flat respectively, the basis for obtaining the injunctions sought to enjoin the alleged nuisance no longer existed. What remained in dispute would be the liability to pay damages which, as will see, would not be much. Despite the fact that the gravamen of the matter was already so removed in the early stage of this action, but regrettably, the parties did not find themselves able to come to an amicable resolution and have to insist on a trial to resolve what is now a relatively minor matter. 13.The plaintiff has all along been legally represented until May 2021. She acted in person at trial. YSY was represented by Mr Chris Ng of counsel. Mui was absent at trial. 14.The plaintiff was the only witness for her case, while YSY and her older sister Yeung Sze Nga (“YZN”) gave evidence for the 1st defendant’s case. The relevant provisions in the DMC and what amounts to permit or suffer 15.The plaintiff claims that YSY and Mui have breached the following provisions in the DMC of Villa Pinada:-
16.In the case of YSY, the plaintiff says that she has permitted or suffered Mui and his family to continue the nuisance. 17.As to what amount to “permit or suffer”, Mr Ng relies on the following 2 passages in Berton v Alliance Economic Investment Co [1922] 1 KB 742, which were cited with approval by the Court of Appeal in Realty Harvest Limited & Others v Gold Margin Development Limited & Another [2001] HKC 234:-
18.For completeness, I would mention that in her Re-re-Amended Statement of Claim the plaintiff also pleaded Clauses 27 and 39 of the Second Schedule of the DMC. The former prohibits the playing of mahjong between 11:00 pm to 7:00 am in such a way as to cause disturbance. The latter provides that each owner shall observe the Estate Rules and Club Rules. There is no complaint here that the Mui family had played mahjong at those hours, or had played mahjong at all, or that they or YSY have breached any Estate Rules or Club Rules. These 2 clauses are thus completely irrelevant. General principles on the tort of nuisance caused by noise 19.These general principles have been conveniently summarized in Kwong Yiu Keung Stanley and Leung Pui Yin v Chiu Sin Shum & Another (DCCJ 5745/2017, unrep, 5 February 2021, HHJ Andrew Li):-
20.Mr Ng particularly relies on the observation of HHJ David Lok (as he then was) in Hu Wei Hsin v Ma Hung Wing (DCCJ 273/2011, unrep, 3 June 2011) as being particularly apposite in the present case:-
The noise complaints 21.The plaintiff complains that:-
22.In her witness statement, the plaintiff repeated the above and mentioned and relied on ISS’s record of her complaints (“the Record”)[5]. In oral evidence, the plaintiff confirmed that the details of the noise incidents were as those recorded in the Record. The Record was in a tabular form. For ease of reference, I reproduce below the Record (insofar as they recorded the plaintiff’s complaints of noise)[6], and add a column at the right with the heading “Incident”. In this Judgment, I will identify and refer to a particular incident by the incident number in the below table (“the Table”).
23.It will be noted from the Table that Incidents 8, 9, 10, 13 and 22 were reported to the police who did attend to investigate. 24.In oral evidence, the plaintiff raised for the first time another complaint and described it vividly. She said that invariably every night at about 2:00 am to 3:00 am, she heard loud banging noise transmitted from the wall against which the head of her bed leaned, and that it was so loud that she could hear it even though she had put on earplugs (戴住耳塞都聽到), that she would be completely startled (成個人彈起), and over which she had a deep impression (好深刻印象)(“the New Complaint”). 25.For the following reasons, I have no hesitation to find that the New Complaint was an afterthought that she made up when giving evidence and I do not believe her about it at all:-
Are the noise complaints substantiated, and was the annoyance and disturbance thereby caused of such a degree as to amount to actionable nuisance? 26.The defence case consists of (a) putting the plaintiff to prove of her allegations and case, and putting forth the fact that (b) YSY has understood from YZN, who in turn has understood from the Mui family, that the alleged noises were noises caused by normal household activities, and (c) the Mui family has, upon complaints, padded the floor of D’s Flat to minimize the level of noise. 27.I now turn to assess the plaintiff’s case. 28.As explained above, it is a question of degree as to whether the interference, disturbance, or annoyance caused by the noise amounts to an actionable nuisance, and such is to be assessed in the context of the circumstances including the standard of comfort or convenience of living of the average man taking into account the character of the neighbourhood, and also bearing particularly in mind that the law requires everyone in an organized society to put up with a certain amount of discomfort and annoyance caused by the activities of his neighbours, especially when those activities are normal day-to-day ones. 29.In this regard, the court has always recognized that certain individuals are subjectively more sensitive to certain noise, or to noise generally, and thus are more prone to be annoyed or disturbed. The clear law is that the court shall not take into account the subjective sense of sound of the complainant. It therefore behoves the complainant to proffer evidence to establish his complaint objectively. One of the more important objective matters is the volume of the noise. Measurements taken by an instrument such as a decibel meter could be such evidence. Expert evidence is often adduced. Evidence from witnesses other than the complainant who also heard the noise could be probative. 30.Here, despite the very long period of 3 years in which allegedly excessive noise was emanated, in which the plaintiff has had ample opportunities to do so, the plaintiff has not made any attempt whatsoever to objectively measure the volume of the noises by any instrument. There is thus no evidence of any objective measurements proffered by the plaintiff. 31.The plaintiff has not adduced any expert evidence. 32.Moreover and as mentioned, the plaintiff herself volunteered in oral evidence that her teenage daughter could have been a witness. However, the plaintiff did not call her daughter as a witness. It is also her evidence that her mother at the material time stayed one or two nights a month in P’s Flat and therefore should have also heard the noises and could have been a testifying witness. Again, she was not called. 33.Thus, apart from the plaintiff’s subjective complaints and the Record, there is no other objective or independent evidence substantiating the noise complaints, particularly on the level of noise. 34.In her opening and along the trial, the plaintiff repeatedly emphasized that the Mui family and YSY were “not cooperative” (唔合作). This court was under the clear impression that by this she meant, and strongly expected, that the Mui family and YSY should have duly complied with her wishes whenever she complained. 35.In oral evidence, the plaintiff expanded on the general description of the noises. Regarding specific incidents, and as have mentioned, she generally relied on what was noted in the Record. She specifically high-lighted 3 incidents. 36.Firstly, she raised the New Complaint. For reasons expressed in paragraph 25 above, I have rejected the New Complaint. 37.Secondly, she highlighted the incident that occurred at about 3:00am on 5 March 2017 (Incident 12). She said that on that occasion she was almost scared to death by the noise she heard (個次我差啲嚇死), which consisted of a scream by Mui’s toddler, sound of footsteps and the toddler crying. It is not disputed that in fact on that occasion quite a serious accident happened to the toddler, such that (as noted in the Record) an ambulance was summoned to take the toddler to the hospital for treatment. I find that on that occasion the noise was caused by an accident, and it was a one-off incident; and as such, it cannot be taken as the subject matter of a nuisance by noise. 38.Thirdly, the plaintiff referred to Incidents 29 and 30, which were 2 complaints of noise of footsteps of the toddler at 6:30pm and 10:55pm on 1 January 2019, which was a New Year Day. She said it was a public holiday and her day off, and the sound of the toddler walking/running upstairs had disturbed her rest. She added that it was the disturbance in these 2 incidents that made her resolved to commence this action. Evidently, the New Year Day for many people in Hong Kong is a day of celebration, gathering and activities as much as it is a day of rest for some. From the manner she viewed these 2 incidents, it seems to me quite clear that the plaintiff has a high and sure expectation that her neighbours should conform to her own rhythm of life or lifestyle, so much so that she was not prepared to put up with a reasonable amount of noise caused by the normal activities of her neighbours (and in these 2 instances, possibly enjoyable family time at home of a young family involving the toddler walking/running around). It also suggests to me that the plaintiff may have a particularly high sensitivity to noise. 39.I turn next to consider the plaintiff’s evidence. 40.The plaintiff is a highly educated and sophisticated witness, having obtained a Master’s degree and having worked as an administrative officer in the Hospital Authority and then in an insurance company. I have observed and listened to her evidence carefully. I am not favourably impressed by her as a witness. Considering the instances I allude to below, I come to the firm view that, in order to further her own cause, the plaintiff has been exaggerating, not entirely truthful and even making things up along the way. I am unable to regard her as an honest or reliable witness. The instances were:-
41.Moreover, I also find on balance of probabilities that the plaintiff has a high subjective sensitivity to sound, in that:-
42.For the reasons expressed in the preceding two paragraphs, I do not accept the plaintiff’s evidence regarding the alleged level of noise, the alleged frequency of the noise (allegedly every day, every night, continuously, and such) and particularly I do not accept her subjective perception of disturbance as reliable for the purpose of assessing the degree of interference and disturbance for the purpose of assessing whether such amounted to actionable nuisance. 43.I turn next to consider the Record. YSY did not seriously challenge the accuracy or reliability of what were recorded therein. That being the case, I accept the Record as evidence of the facts stated therein. 44.I will begin by analysing and tallying various incidents there recorded. 45.In the Record, as far as the type of noise the plaintiff complained, they consisted of:-
46.In the Record, it was noted that of the 31 incidents of complaints the staff of ISS attended to investigate in all but 7 occasions (Incidents 4, 5, 6, 8, 10, 13 and 17). In the Record, the staff reported the results of his investigation, as follows:-
47.Moreover, in the 5 incidents that the police was summoned (Incidents 8, 9, 10, 13 and 22), it was recorded in the Record that only in Incident 9 that the police detected some sound of walking steps emanated from D’s Flat. In the other 4 incidents, it was not recorded that the police detected any noise emanating from D’s Flat. It is common ground that the police did not initiate any prosecution against Mui regarding any of the 5 instances of complaint by the plaintiff. 48.Thus, according to the Record, there were 19 incidents that the staff heard some noise (namely, Incidents, 1, 7, 9, 11, 12, 14, 15, 16, 18, 19, 20, 23, 24, 26, 27, 28, 29, 30 and 31). As I earlier find, Incident 12 should be excluded. 49.However and very importantly, in all the 18 incidents in which it was recorded the staff has heard some noise (whatever the noise was, and not counting Incident 12, for the reason above expressed), the staff never reported that the noise was loud, excessive or disturbing. This court having rejected the plaintiff’s subjective complaints and perception, there is no evidence before me to show the level of the noise emanated from D’s Flat in any of the 18 Incidents. 50.Of the 18 incidents, 8 of them concerned complaints of noise being emanated from D’s Flat before 11pm – namely, Incident 15 (4:38 pm), Incident 16 (10 am), Incident 24 (7:45 pm), Incident 26 (4:56 pm to 5:09 pm), Incident 27 (10:44 pm), Incident 29 (6:30 pm), Incident 30 (10:55 pm) and Incident 31 (8:50 pm). 51.I adopt 11pm instead of mid-night as the dividing line even though in Capital Prosperous Limited v Sheen Cho Kwong [1999] 1 HKLRD 633 Deputy High Court Judge Muttrie observed[10] that “it is common knowledge that many Hong Kong people stay up late at night. I do not see that anything up to midnight can be regarded as out of the ordinary” because I accept the plaintiff’s submission that Villa Pinada is a relatively quiet estate and neighbourhood. 52.Going back to these 8 incidents, as the type of noise complained of in these incidents were all noise caused by normal household activities (sound of adult or baby footsteps and baby playing or crying) of the Mui family and there is no evidence to show it was otherwise excessive, I have no hesitation to hold that such noise caused thereby could not be regarded as subject matters of a complaint of nuisance; or expressed in another way, the interference or disturbance, if any, caused by the noise in these 8 incidents was not of such degree as would amount to actionable nuisance. 53.Of the remaining 10 incidents when noise was heard by the staff, 5 of them concerned noise caused by the baby/toddler – namely Incident 1 (8 months’ old baby crying, at 12:55 am), Incident 7 (footsteps of toddler, at 11:11 pm), Incident 11 (sound of toddler playing, at 11:45 pm) Incident 14 (footsteps of toddler, at 12:22 am) and Incident 28 (footsteps of toddler, at 12:20 am). It is notorious that however good one’s parenting is in nursing and putting one’s young toddler to bed, there will be occasional nights the young toddler would somehow not fall asleep at the scheduled time and want to be up and going. To put matter in perspective, there were only 5 such incidents within those 3 years; and they concerned the toddler being up a bit late (latest at 12:22 am), rather than making noise at small hours. In my judgment, 5 occurrences in 3 years were well within the norm that a neighbour of a young family having a baby/toddler would expect, and that such relatively minor amount of discomfort and annoyance caused by the sound of a baby/toddler being up a bit late is within the bounds that the law requires everyone in an organized society to put up with. 54.The remaining 5 incidents (Incidents 9, 18, 19, 20 and 23) concerned such noises as those made by opening and closing of doors, adult footsteps, turning on water tape, and they all occurred up to about 1:00 am save in Incident 23 (up to 2:35 am). Again, there is no evidence that the noises were otherwise excessive (such as loud banging caused by violent opening and closing of doors, exercising in small hours thereby emanating sound of heavy footsteps for a prolonged period, and such). The plaintiff suggested that the Mui family returned home late on those occasions. That seems to me not unlikely. Putting the matter in perspective again, it is a complaint of noise caused by 5 late nights in a span of 3 years. It seems to this court not out of ordinary that one’s neighbour in Hong Kong would have at least several late nights a year, whether it be celebrating special events, getting with old friends, having a party or maybe unfortunately delayed by traffic jam. Such amount of discomfort and annoyance so caused to the plaintiff, in my judgment, were again within the bounds that the law requires everyone in an organized society in the Hong Kong setting to put up with. 55.Considering in the round all the matters alluded to above, I conclude that the plaintiff has not proved that the Mui family has committed actionable nuisance caused by noise. 56.While having evaluated by analysing the incidents by categorizing as I did above, I have not lost sight that I should also consider the cumulative effect of the incidents mentioned in paragraphs 53 and 54 above. Having considered the cumulative effect, I remain of the judgment that actionable nuisance is not proved. 57.I therefore would dismiss the plaintiff’s claim against Mui for nuisance and breach of the DMC. It follows that her claim as against YSY for permitting the nuisance, whether under common law or the DMC, would also fail and should be dismissed. Evidence of YSY and YZN 58.For completeness, I will briefly state the following. 59.I am favourably impressed by YSY and YZN as witnesses. YZN, it will be recalled, is YSY’s elder sister who YSY asked to, and YZN did, attend to matters in relation to D’s Flat on YSY’s behalf at the material time. I generally accept their evidence, including the evidence that YZN visited the Mui family at D’s Flat on 15 March 2017 and 29 July 2017, and on both occasions she understood from Mui that the noise the plaintiff complained of was only noise caused by normal household activities and Mui assured YZN that they did not play mahjong or carried out any activity that would cause excessive noise to be emanated. Mui had also covered the floor of a great part of D’s Flat with carpets to minimize noise. 60.The evidence of YSY and YZN in any case was largely uncontroversial save as to when they knew of the plaintiff’s complaints. 61.In that regard, it is the plaintiff’s evidence, that I specifically accept, that she herself has never contacted YSY or YZN regarding her complaints and she has left ISS to liaise with the owner of D’s Flat. As noted in the Record, ISS had been contacting the Mui family and not YSY about the plaintiff’s complaints. ISS only first issued a written notice about the complaints on 7 March 2017 by inserting it in the letter box of D’s Flat. I accept YSY and YZN’s evidence that they had no assess to the letter box (as D’s Flat was rented to Mui) and they have never received the notice from Mui, and I so find. According to the evidence of YSY[11] and YZN[12] which I accept and find, that YSY was first informed about the plaintiff’s general noise complaint through telephone calls made by a staff of ISS to her since about mid March 2017. Amount of damages, if claim established ? 62.Mr Ng has cited Tam Wai Cheung Roger & Another v Goodwell Property Management Limited (DCCJ 2262/2013, unrep, 11 January 2016, Deputy District Judge L C Cheng) in which the learned Deputy Judge (at paragraphs 84 to 86) referred to the amounts of damages awarded in a number of cases and then awarded in that case HK$30,000 as damages. Mr Ng submitted that, even if actionable nuisance were established because of the noises emanated from D’s Flat at some of those late nights, the amount of damages to be awarded as against YSY should be HK$30,000 as well. 63.While I generally agree that the level of damages in this case should be low (even if liability were established), I would and could not express any firm view on the amount of damages, which would very much depend on the number of instances, extent and severity actually established. Mui’s counterclaim 64.As Mui did not appear at trial to pursue his counterclaim based on an infringement of his privacy, I would formally dismiss it. In view of my finding that the plaintiff installed the camera to pry into the living room of D’s Flat, I think the appropriate costs order of the counterclaim is no order as to costs. Conclusion and disposal 65.In the premises, I dismiss the plaintiff’s claims as against all the defendants, and also dismiss the 2nd defendant’s counterclaim. 66.I make this costs order nisi:-
67.This costs order nisi will become absolute within 14 days unless any party applies by letter to vary within that time. 68.The plaintiff may liaise with my clerk to have this judgment interpreted to her, if there is such a need. 69.Lastly, I thank Mr Ng for his assistance.
The plaintiff appeared in person Mr Chris Ng Chung Luen, instructed by Wong & Co, for the 1st defendant The 2nd and 3rd defendants were not represented and did not appear [1] §13 of the Re-re-Amended Statement of Claim [2] §9 of his Defence and Counterclaim [3] Picture F at p 276 of the Trial Bundles [4] §§14 to 16 of the Re-re-Amended Statement of Claim [5] At p 244-249 of the Trial Bundles [6] Except (a) the entry dated 6 March 2017 which recorded a general complaint by the plaintiff of previous incidents of noise (b) 2 entries dated 13 and 14 March 2017 which recorded the gist of a conversation between a staff of ISS and YSY and follow-up with the plaintiff, (c) 2 entries dated 14 March 2017 and 5 June 2017 which recorded 2 instances of follow-up actions, (d) the entry dated 25 June 2017 which recorded an instance of oral confrontation between the plaintiff and Mui, (e) the entry dated 14 February 2018 which recorded a follow-up action by ISS, and (f) the last 4 rows in the Record which recorded certain communications between the plaintiff and the Management Office and follow-up actions between 3 January 2019 to 14 January 2019, which were not complaints of noise. [7] P 9 of Trial Bundle B [8] §21(g) of her witness statement [9] §21(h) of her witness statement [10] At p 640F & G [11] §12 of her witness statement [12] Also §12 of her witness statement | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment