Li Chun Bon and Another v. China Mobile Hong Kong Co Ltd

DCCJ 617/2017

[2023] HKDC 466

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 617 OF 2017

-------------------------

-------------------------

-------------------

JUDGMENT

-------------------

A.  Introduction

1.The building at No 67 Lok Lo Ha Village, Shatin, New Territories (“the Building”) comprises three storeys and a roof. 

2.At all material times,

(a)  the G/F premises belong to the plaintiffs;

(b)  the 1/F premises belong to Lo Chung Yiu (“1/F Owner”);

(c)  the 2/F premises and the roof belong to Li Si Keung (“2/F Owner”); and

(d)  the defendant is a mobile network operator in Hong Kong.

3.It is the plaintiffs’ case that the defendant had installed and maintained antenna equipment on the common parts of the Building without the consent of all the owners.  By this action, the plaintiffs claim damages and/or mesne profits against the defendant mainly based on trespass and nuisance.

4.The defendant denies the claim.  It avers that its equipment was installed on the roof with 2/F Owner’s permission.

5.In their closing submissions, the solicitor representing the plaintiffs (“P’s Solicitor”) and the defence counsel (“D’s Counsel”) agree that the broad issues that require determination are:

(a)  What is the subject matter of the plaintiffs’ complaint?

(b)  Was there any trespass?

(c)  Was there any nuisance?

(d)  If the defendant is liable, what is the appropriate relief?

6.In terms of evidence:

(a)  The 1^st plaintiff (“P1”) testified.

(b)  The defendant called the Head of its Radio Site Maintenance Department (“Mr Cheng”) and its Senior Manager, Network Implementation to give evidence.

(c)With leave of the court, both parties adduced expert evidence on valuation.  There is no dispute as to the expertise of the experts.

(d)There is also no dispute over the documentary evidence in the trial bundles (“the Bundle”), including the deed of mutual covenant of the Building (“the DMC”), the assignment of the 2/F premises and the roof in favour of 2/F Owner (“the 2/F Assignment”) and three licence agreements entered into between 2/F Owner and the defendant in 2006, 2008 and 2010 respectively (“the 2006 Licence”, “the 2008 Licence” and “the 2010 Licence”).

B.   What is the subject matter of the plaintiffs’ complaint?

7.According to para 9 of the Amended Statement of Claim (“ASOC”), the plaintiffs’ complaint relates to antennas (para 9(a)), a large bunch of wires and cables (para 9(b)), a large cabinet and ancillary equipment (para 9(c)), a metal box (para 9(d)) and an array of equipment (para 9(e)) installed on the roof of the Building.  The plaintiffs have taken photographs of the equipment and assigned numbers to them for identification purpose (from #1 to #20). 

8.According to P’s Solicitor:

(a)  The antennas under para 9(a) refer to #2 (which is the same as #14), #4 (which is the same as #13), #6 (which is the same as #12), #15 and #18. 

In or about August 2012, #2 and #15 were removed, #4 was replaced by #17, and #6 was replaced by #16.

(b)  The large bunch of wires and cables under para 9(b) refers to #11.

(c)  The large cabinet and ancillary equipment under para 9(c) refer to #9 and #10.

(d)  The array of equipment under para 9(e) comprises wires and cables (#1, #5 and #8) and miscellaneous equipment (#3 and #7).

(e)  All the defendant’s equipment was removed on around 31 August 2012.

9.In response to the limitation defence pleaded by the defendant,[1] the plaintiffs concede that they would only claim damages and/or mesne profits on or after 10 February 2011. 

10.Given P1’s evidence that the metal box under para 9(d) was removed on or around 4 December 2010, the complaint falls outside the scope of the revised claim.

11.To complete the picture, it is P1’s evidence that 2/F Owner had permitted another mobile network operator (CSL) to install and maintain antenna equipment on the roof at the same time, and that #19 (ancillary equipment) and #20 (small antenna) did not belong to the defendant.

B1.  Antennas under para 9(a)

12.The defendant admits to have installed #2, #4, #6, #15, #16, #17 and #18.  Its case is that:

(a)  On 30 March 2011, #2 and #15 were removed, #4 was replaced by #17, #6 was replaced by #16, and #18 was installed.

(b)  On 16 August 2012, #16, #17 and #18 were removed.

13.On timing, P1 was unsure about the date of removal of the equipment when he filed his Statement of Claim in February 2017.[2] When he filed his witness statement in April 2019, he purportedly got the date of removal of 31 August 2012 from the Defence.[3]  But that date is nowhere to be found in the defendant’s pleading.  On the other hand, the defence case (that the equipment was removed on 16 August 2012) is supported by an acknowledgment signed by 2/F Owner.[4]  Eventually, P’s Solicitor conceded in his oral closing submissions to adopt the defence timing.

14.There is a layout plan attached to each licence agreement detailing the antenna equipment covered by the agreement.  P1 and Mr Cheng both used the plan attached to the 2010 Licence to identify the location of the equipment concerned (Exhibit P4).  It can be seen from Exhibit P4 that:

(a)  #2 and #15 are marked “EXISTING CMHK OUTDOOR ANTENNA (S2) WITH ANTENNA POST (TO BE DISMANTLED)”.  It is apparent from the upper photo on p 139 of the Bundle that the antenna posts were mounted on the inner side of the parapet wall by means of brackets.

(b)  #17 and #16 carry the description “PROPOSED TO REPLACE EXISTING CMHK OUTDOOR (S1-1) FROM ALLGON 7247.03 TO ALLGON 7700.00 MOUNTED ON EXISTING CMHK ANTENNA POST … AND MODIFY EXISTING CMHK ANTENNA POST FROM 2500 mm TO 1800 mm”.  It is apparent from the corresponding diagram of mounting method that they were mounted on the inner side of the parapet wall by means of brackets.

(c)  #18 carries the description “PROPOSED TO INSTALL NEW OUTDOOR ANTENNA (S2) ALLGON 7700.00 WITH NEW ANTENNA POST (P3) MOUNTED ON PARAPET WALL”.  It is apparent from the corresponding diagram of mounting method that it was mounted on the inner side of the parapet wall by means of brackets.

15.Based on the above, I find that:

(a)  #2, #4, #6 and #15 were attached to the inner side of the parapet wall between 10 February 2011 and 30 March 2011.

(b)  #16, #17 and #18 were attached to the inner side of the parapet wall between 30 March 2011 and 16 August 2012. 

B2.   A large bunch of wires and cables under para 9(b)

16.The defendant denies having installed or used #11. 

17.P1 is unable to say if #11 was connected to the defendant’s equipment.  He suspects it was used by both CSL and the defendant as the wires and cables were separated into two bunches while they entered the Building over the parapet wall (Exhibit P1). 

18.I reject P1’s conjecture as it is not supported by objective evidence.  More importantly, it is not apparent from Exhibit P4 that there was any installation extending beyond the boundary of the Building.

19.There is insufficient proof that #11 belonged to the defendant.

B3.  A large cabinet and ancillary equipment under para 9(c)

20.The defendant admits installing #9 and #10 on the roof, which were subsequently removed on 16 August 2012. 

21.It is apparent from the plans attached to the 2006 Licence and the 2008 Licence that they were sitting on a stand resting on the roof floor and attached to the vertical wall of the staircase hood by means of “2 No M10 ANCHOR BOLT”.

22.I find that #9 and #10 were attached to the vertical wall of the staircase hood on the roof between 10 February 2011 and 16 August 2012.

B4.  An array of equipment under para 9(e)

23.This covers wires and cables (#1, #5 & #8) and miscellaneous equipment (#3 & #7).

24.P1 is unable to say if #1, #5 & #8 were connected to the defendant’s equipment.

25.Whilst Mr Cheng confirms that the defendant’s antennas were inter-connected for power and signal, he denies that all the wires and cables in #1, #5 & #8 were used by the defendant.  He is unable to confirm if the metal trays that carried the wires and cables around the parapet walls were installed by the defendant. 

26.According to Exhibit P4, the defendant’s antennas were inter-connected by “feeder cable” which ran along the parapet wall by means of “cable tray”.  There is clear evidence that the defendant made use of the metal trays on the parapet walls.  It does not matter if the trays were installed by the defendant.

27.I therefore find that some of the wires and cables depicted in #1, #5 & #8 belonged to the defendant and that the defendant’s wires and cables were attached to the inner side of the parapet walls by means of metal trays.

28.On the other hand, I am not satisfied that #3 & #7 (miscellaneous equipment) belonged to the defendant as they are not apparent on Exhibit P4.

B5.  Summary of the defendant’s equipment

29.In summary, I accept that the following equipment were installed by the defendant on the roof of the Building:

Equipment	Attributes
Antennas identified as #2, #4, #6 & #15	Attached to the inner side of the parapet walls, between 10 February 2011 and 30 March 2011
Antennas identified as #16, #17 & #18	Attached to the inner side of the parapet walls, between 30 March 2011 and 16 August 2012
Large cabinet & ancillary equipment identified as #9 & #10	Attached to the inner side of the vertical wall of the staircase hood, between 10 February 2011 and 16 August 2012
Some of the wires & cables identified as #1, #5 & #8	Attached to the inner side of the parapet walls, between 10 February 2011 and 16 August 2012

C.  Was there any trespass?

30.One of the main disputes in this case is whether the defendant has committed any trespass. 

31.The plaintiffs are not accusing the defendant of trespassing on their G/F premises.  Rather, they complain that the defendant had installed equipment on the common parts of the Building without the consent of all the owners of the Building and that constituted trespass.  And they, as one of the owners, are entitled to damages and/or mesne profits by reason of section 34I of the Building Management Ordinance, Cap 344 (“Cap 344”).

32.The defendant does not take issue with the constitution of this action.  More will be said on this at the end of this judgment.

33.Section 34I is in these terms:

“(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a manner as—

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2) Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

34.The plaintiffs have pleaded in para 11 of the ASOC that “the external walls, inner and outer sides of the parapet walls and the walls enclosing the staircase on the Main Roof of the said Building are common part of the said Building within the meaning of the said DMC and the said Ordinance to which the Plaintiffs hold uses occupies and enjoys the possession and benefit thereof in common with other owners in the said Building.” 

35.At the trial, P’s Solicitor argued that:

(a)  “Common parts” of a building is defined in section 2(a) and Schedule 1 of Cap 344 to mean the whole of the building except such parts as have been specified or designated in an instrument registered in the Land Registry as being for exclusive use, occupation or enjoyment of an owner.

(b)  The DMC has no provision allocating “the external walls, inner and outer sides of the parapet walls and the walls enclosing the staircase on the Main Roof” to 2/F Owner and those parts form part of the common parts of the Building.

(c)  His interpretation is supported by Kau Chun Wing v Main Shine Development Ltd [2011] 2 HKC 1 at para 16.

36.On the other hand, D’s Counsel focused on “the inner side of the parapet walls” and “the walls enclosing the staircase” on the roof.  He argued that they are not common parts of the Building because:

(a)  2/F Owner is the owner of “SECOND FLOOR and the Main Roof of the said building” without qualification.  It makes no sense not to give him “the inner side of the parapet walls” and “the walls enclosing the staircase” as well which are essential to the usage and safety of the roof.

(b)  “The inner side of the parapet walls” and “the walls enclosing the staircase” on the roof are of no conceivable use to the other owners of the Building including the plaintiffs.  It is not the plaintiffs’ case that 2/F Owner had granted an easement to other owners to access those parts through his roof.

(c)  The provisions in the DMC relating to repair and maintenance of the common parts of the Building (clauses 1(b) & 11) make no mention of “the inner side of the parapet walls” and “the walls enclosing the staircase” on the roof.  There is no evidence that the owners have ever split such costs before.

And he referred to authorities such as Shine Empire Limited v IO of San Po Kong Mansion and others, unreported, HCA 3444/2001, 3 December 2004 and Jumbo King Ltd v Faithful Properties Ltd and others (1999) 2 HKCFAR 279 in argument.

37.P’s Solicitor agreed, in his oral closing submissions, that there is no need to consider if “the external walls” and “the outer side of the parapet walls” are common parts given the evidence.  His reply to D’s Counsel’s submissions in relation to “the inner side of the parapet walls” and “the walls enclosing the staircase” on the roof is that:

(a)  The deed of mutual covenants in Shine Empire and Jumbo King pre-dated the enactment of Cap 344.  He referred to some post-Cap 344 authorities (such as IO of KK Mansion v Jade Water Group Limited formerly named as Koonsung Limited, unreported, DCCJ 5343/2007, 16 March 2010 and IO of Shatin New Town v Yeung Kui, unreported, CACV 45/2009, 10 December 2009) and submitted that the statutory scheme of “common parts” under Cap 344 is meant to fill the “lacuna”.

(b)  It is hard to understand how the roof would become unsafe if “the inner side of the parapet walls” and “the walls enclosing the staircase” are co-owned and maintained by all the owners of the Building as opposed to 2/F Owner alone.

(c)  2/F Owner has to allow other owners to gain access to the common parts on the roof under recitals (a) and (d) of the DMC.  There is evidence from P1 that he frequently accessed the roof for his own purposes, eg installing and maintaining his television antenna and taking photographs of the defendant’s equipment.  It is also his evidence that when the door to the roof is locked, he could still access the roof through the roof of the adjacent building (ie No 68 Lok Lo Ha Village).

(d)  It is not open to the defendant to argue in closing that the owners of the Building have not contributed to the costs of repair and maintenance of “the inner side of the parapet walls” and “the walls enclosing the staircase” as the issue was not pleaded.  The defendant has adduced no evidence that 2/F Owner had paid for such costs before and it may well be that no repair or maintenance was required before.

(e)  The fact that 2/F Owner settled with the plaintiffs in LDBM 27/2012 in relation to CSL’s installation is clear recognition by 2/F Owner that the plaintiffs, as one of the co-owners of the Building, were entitled to a share of the licence fees paid by CSL.

38.In my view, the starting point of the discussion should be Cap 344.  Section 2 thereof defines “common parts” to mean:

“(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in Schedule 1;”

The list in Schedule 1 includes “walls enclosing passageways, corridors and staircases” (item 2) and “parapet walls” (item 4).

39.As held above,

(a)  the antennas at #2, #4, #6, #15, #16, #17 & #18 and the wires and cables at #1, #5 & #8 that belonged to the defendant were attached to the inner side of the parapet walls on the roof; and

(b)  the large cabinet and ancillary equipment at #9 & #10 were attached to the vertical wall of the rooftop staircase hood.

40.In their submissions, both parties assumed that:

(a)  the inner side of the parapet walls to which #2, #4, #6, #15, #16, #17 & #18 and #1, #5 & #8 were attached is covered by “the inner side of the parapet walls” in para 11 of the ASOC and item 4 in Schedule 1 (parapet walls); and

(b)  the vertical wall of the staircase hood to which #9 and #10 were attached is covered by “the walls enclosing the staircase” in para 11 of the ASOC and item 2 in Schedule 1 (walls enclosing passageways, corridors and staircases).

What divides them is whether “the inner side of the parapet walls” and “the walls enclosing the staircase” have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner.

41.It is common ground that both the 2/F Assignment and the DMC are registered in the Land Registry.

42.According to the 2/F Assignment, the interest assigned to 2/F Owner carries with it “the right to the exclusive use occupation and enjoyment of ALL THAT the SECOND FLOOR and the MAIN ROOF thereover of the said No 67 Lok Lo Ha Village”.  The term “MAIN ROOF” is not defined in the instrument.

43.It is also provided in the DMC, inter alia, that: “NOW THIS INDENTURE WITNESSETH that each of the parties hereto hereby grant unto the other party whose name is set out in the First Column of the First Schedule hereto the sole and exclusive right and privilege to the use occupation and enjoyment of the whole of that unit of and in the said building which is more particularly described and set out in the Second Column of the First Schedule hereto opposite to the name of the party as set out in the First Column of the First Schedule hereto and the entire rents and profits of such unit Subject to and with the benefit of…”. 

44.And the First Schedule thereto provides that:

FIRST COLUMN	SECOND COLUMN	THIRD COLUMN
Name, addresses and descriptions of owners of the said premises	The floor of the said building to be exclusively used, occupied [and] enjoyed by the owner whose name appears in the First Column directly opposite to the reference to such floor in this Column	Shares of and in the said premises and the said building allocated to the unit referred to in the Second Column
…	…	…
LI SI KEUNG (李仕強) [ie 2/F Owner] of…	SECOND FLOOR and the Main Roof of the said Building	1 share
…	…	…

Again, there is no definition of “Main Roof”.

45.In 黎偉雄 v 信和物業管理有限公司 [2020] HKCA 448, the Court of Appeal summarised the principles on construction of documents as follows (omitting the footnotes):

“26.  This Court (differently constituted) recently examined the relevant case law on the construction of a deed of mutual covenants in Sino Channel Holdings Ltd v Vast Faith Investment Ltd [2020] HKCA 311 at [19] to [21] and there is no need for us to repeat the citation of the authorities here.  In a nutshell, the DMC must be construed in the context of the document as a whole and in light of the factual and legal background (which also provides the context) to its execution, and having regard to the practical objects which it was intended to achieve.  The overriding objective in construction is to give effect to what a reasonable person would have understood the parties to mean.  Instead of focusing on the ordinary and natural meanings of a few words in a clause, very often the broader context provides surer guide.  But textual analysis and contextualism are both tools in the exercise of construction and the utility of each tool will vary according to the circumstances of each instrument.  Thus, construction is a unitary exercise involving an iterative process.”

46.A differently constituted Court of Appeal similarly elaborated in Achieve Goal Holdings Limited v Zhong Xin Ore-Material Holding Company Limited [2020] HKCA 51 at para 16 that:

“The general principles have been set out by the Judge at Section E1 of the Judgment.  The ones that are particularly relevant for present purpose may be stated as follows:

(1) The construction of a contract is an attempt to discover what a reasonable person would have understood the parties to have meant.  This is done by identifying the meaning of the relevant words, (a) in light of the natural and ordinary meaning of those words, the overall purpose of the contract, any other provisions of the contract, the facts known or assumed by the parties at the time at the time the contract was made, and common sense, but (b) ignoring subjective evidence of any party’s intentions.  (Marley v Rawlings [2015] AC 129 at §19, per Lord Neuberger of Abbotsbury, PSC)

(2) The background knowledge which would reasonably have been available to both parties in the situation in which they were at the time of the contract includes anything which would have affected the way in which the language of the document would have been understood by a reasonable man.  (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912H to 913A, per Lord Hoffmann; Arnold v Britton [2015] AC 1619 at §21, per Lord Neuberger of Abbotsbury, PSC)

(3) Reliance placed on commercial sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed.  Except in a very unusual case, the parties have control over the language they use in a contract and must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision.  A court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight.  (Arnold v Britton at §§17 and 20, per Lord Neuberger of Abbotsbury, PSC)

(4) Interpretation is a unitary exercise.  Where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense.  But in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause (the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention), and it must be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest.  (Wood v Capita Insurance Services Ltd [2017] AC 1173 at §11, per Lord Hodge JSC; Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] 2 All ER (Comm) 299 at §16, per Mance LJ)

(5) Where the disputed provision is open to two possible interpretations, the unitary exercise involves an iterative process, by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated.  Once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.  (Wood v Capita Insurance Services Ltd at §12, per Lord Hodge JSC; In re Sigma Finance Corpn [2010] 1 All ER 571 at §12, per Lord Mance JSC)

(6) In construing a contract, all parts of it must be given effect where possible, and no part of it should be treated as inoperative or surplus.  Whilst the presumption against surplusage is unlikely to be useful in interpreting a standard form contract, it is a relevant consideration in a bespoke contract drafted by the parties to meet the exigencies of a particular and significant commercial arrangement.  (Secretary of State for Defence v Turner Estate Solutions Ltd [2015] EWHC 1150 (TCC) at §62, per Coulson J)”

47.I do not find the authorities cited by the parties helpful.  As said in 黎偉雄and Achieve Goal, the DMC has to be construed against its own scheme and factual and legal background.  Shine Empire and Jumbo King cited by D’s Counsel involved very different legal background in that the deed of mutual covenants there pre-dated Cap 344.  Jade Water (concerned external walls) and Yeung Kui (concerned entrances and exterior walls of the residential part of a mixed commercial/residential development) cited by P’s Solicitor related to premises of a different nature.  Even though Kau Chun Wing also concerned parapet walls, the scheme of the deed of mutual covenants there is very different.

48.In the present case,

(a)  It is clear from the natural and ordinary meaning of the words used in the 2/F Assignment and the DMC that 2/F Owner is given the exclusive use, occupation or enjoyment of the “Main Roof” without qualification.  There is nothing to exclude “the inner side of the parapet walls” and “the walls enclosing the staircase” on the roof from his entitlement.

(b)  Both instruments were professionally drafted in 1981 – about 10 years after the enactment of Cap 344 in 1970.  The drafter of both instruments must have in mind the default position under the statutory scheme: see Sino Channel at paras 25-27.  If the drafter had been minded to apply the default position to “the inner side of the parapet walls” and “the walls enclosing the staircase” on the roof, he could have easily qualified the term “Main Roof” to exclude those parts from it for the statutory scheme to kick in.

(c)  Where there are rival meanings, the iterative process of the unitary exercise involves checking each suggested interpretation against the provisions of the instrument and its commercial consequences are investigated: see Achieve Goal at para 16(4)-(5). 

The plaintiffs’ contention is inconsistent with the holding of the Court of Final Appeal in Nation Group Development Ltd v New Pacific Properties Ltd (2000) 3 HKCFAR 427 at 436F-G that as a matter of construction, the grant of exclusive use of an entire floor would give the grantee the entire volume of the floor space of that floor.  As I posed to P’s Solicitor during closing submissions, applying the plaintiffs’ logic to the plaintiffs’ premises would mean that they would have to seek the consent of all the owners every time they want to attach something (eg a painting) to the inner walls encompassing their G/F premises.

Recitals (a)[5] and (d)[6] of the DMC have no bearing on the present construction exercise.

On the other hand, the defendant’s contention makes sense.  It would be impractical to require 2/F Owner to look to all the owners whenever “the inner side of the parapet walls” or “the walls enclosing the staircase” of his roof require repair or maintenance, such as repainting.  And there is no guarantee that the other owners would contribute to such costs as the DMC is silent in that regard: see (d) below. 

(d)  It has been recognised as a general proposition that the responsibility to pay for the cost of maintenance and upkeep can be a relevant pointer in the iterative process of construction: see 黎偉雄 at para 55. 

Clause 1 of the DMC provides for contribution of the owners towards inter alia:

“(b) The cost of keeping in good and tenantable repair and condition the foundation, the side walks, main walls, supports, beams, gutters, fences, chimneys and all external parts of the said building and all the drains, well, electric pumps, pipes, conduits and all plumbing apparatus (if any) intended for the general service of the said building … and the common entrance-halls, staircases, landings and passages thereof.

…

(d) Any other costs and expenses charged or payable in respect of the management and maintenance of the said building.” 

There is no mentioning of “the inner side of the parapet walls” or “the walls enclosing the staircase” on the roof in clause 1(b).  The drafter could have easily included them if it had been his intention to require all owners to share their repair and maintenance costs.

(e)  I do not need to consider if “the inner side of the parapet walls” or “the walls enclosing the staircase” had required repair or maintenance before or whether 2/F Owner had paid for such costs as post-agreement conduct of the parties is generally inadmissible when construing a document: see Marble Holdings Ltd v Yatin Development Ltd (2008) 11 HKCFAR 222 at para 22.

(f)  Even if the settlement in LDBM 27/2012 points to 2/F Owner’s understanding of the DMC, evidence of subjective intention should be ignored when construing the DMC: see Achieve Goal at para 16(1).

49.In my view, a reasonable person reading the 2/F Assignment and the DMC would have understood the respective instrument to mean 2/F Owner has been granted the exclusive use, occupation or enjoyment of the entire roof including “the inner side of the parapet walls” and “the walls enclosing the staircase”.  In other words, the default position under Cap 344 is not engaged.

50.For the above reasons, I find the defendant’s antennas (#2, #4, #6, #15, #16, #17 and #18), wires and cables (#1, #5 and #8), and large cabinet and ancillary equipment (#9 and #10) were all installed on the roof that belonged to 2/F Owner.  There was no trespass on the common parts of the Building and the plaintiffs’ claim in this regard is dismissed.

D.  Was there any nuisance?

51.The plaintiff’s case on nuisance is pleaded in para 10 of the ASOC:

“(a) The presence of large bunch of wires or cables hanging outside the said Building tainted the outlook and appearance of the said Building.

(b) The Antennae Equipment and the wires air cables hanging from the Common Parts of the Main Roof posed a danger to the public as well as the Plaintiffs.

(c) The Antennae Equipment and the large bunch of wires posed serious health and hygiene problem.  There had been occasions where monkey climbed on the bunch of wires, bird rested on the Antennae Equipment and the bunch of wires where there were droppings and water dripping.

(d) The installation, maintenance, shortening, and removal of different components of the Antennae Equipment required frequent attendance by technicians at different times, which caused security concerns to the said Building and the neighborhood.  Such activities further brought about dust, noise and garbage whenever they took place.  They also caused cracks at the Building’s base, and vibration of the Building.  The frequent presence of the Defendant’s agents who gained entry to the Building through the front gate to the back yard of the Plaintiff’s Property for the above activities caused fear and disturbance to the Plaintiffs and their family members.

(d1) The health hazards arising from the intensive radio frequency of the Antennae Equipment caused fear to the Plaintiffs and their family.

(e) Numerous residents nearby have made complaints against the Antennae Equipment for reason mentioned above.”

52.The law on private nuisance is well settled.  In his closing submissions, D’s Counsel emphasized the following aspects of the tort, taken from Clerk & Lindsell on Torts, 23^rd edition (2020), which are not disputed:

(a)  The acts complained of must be sufficiently serious to constitute a nuisance since everyone must put up with a certain amount of discomfort and annoyance caused by legitimate activities of his neighbours.

(b)  An objective test is to be applied.  The plaintiffs must show there is a real interference with the comfort and convenience of living according to the standards of the average man so interference which only affects subjective sensitivities does not of itself constitute a nuisance.

(c)  In considering the standard of comfort or convenience of living of the average man, the character of the neighbourhood must be taken into account.

(d)  Noise and dust caused by demolition and rebuilding will not be actionable if the operations are reasonably carried on and all reasonable and proper steps are taken to ensure no undue inconvenience is caused to neighbours.

(e)  The duration of an interference is relevant in assessing its actionablility.  Most nuisances arise from a long continued condition and many isolated happenings (unless significant) do not constitute a nuisance.

53.In his final analysis, D’s Counsel took the stance that the plaintiffs have failed to prove any nuisance and, even if there was any nuisance, the plaintiffs have failed to prove any damage.

54.Apart from reiterating the pleaded particulars and emphasizing the “deep frustration and helplessness of the Plaintiffs and people living nearby caused by the nuisance”, P’s Solicitor did not really address the defendant’s criticisms in his closing submissions. 

D1.  Para 10(a)

55.This complaint relates to #11.  Given my finding that there is insufficient evidence to associate #11 to the defendant, this aspect of the plaintiffs’ claim fails.

D2.  Para 10(b)

56.P1’s complaint is that: “The Antennae Equipment and the wires or cables hanging from the Main Roof posed a danger to the public and to me.  As far as I know, those installations were uninsured.  I have no knowledge if they were properly fastened.  During maintenance work or typhoon, the Antennae Equipment and wires or cables may fall and hit someone below, which could cause fatal injury.”

57.Given my findings in Section C above, I shall only consider the defendant’s antennas at #2, #4, #6, #15, #16, #17 & #18 and wires and cables at #1, #5 & #8 here.  The antennas were secured to the inner side of the parapet walls by means of brackets (as evidenced by the diagram on Exhibit P4 and the photographs in evidence) and the wires and cables were fastened to the metal cable trays that ran along the inner side of the parapet walls (as evidenced by the photographs in evidence).  There is nothing to show that they were insecure or otherwise posed a danger to anyone.  This part of the plaintiffs’ claim is dismissed. 

58.It should be added that the incident of fallen object mentioned in para 12(ii) of P1’s witness statement falls outside the scope of the revised claim, as it happened in September 2009.

D3.  Para 10(c)

59.The plaintiffs have adduced no evidence (eg photograph) to confirm that monkeys frequently climbed the defendant’s wires and cables. 

60.In para 10 of his supplemental witness statement, P1 complained that “… there were Bird droppings from the wires dirtied our front yard and clothes hung outside.  Photo of such droppings are exhibited [at pp 186-187 of the Bundle].”  The lower photograph on page 186 carries the caption “[b]ird droppings landed on the mattress cover under sun-drying.  Wires shadowed on the cover…”, and the upper photograph carries the caption “[a] bunch of wires hung above my front yard.” 

61.It is apparent from these photographs and captions that the “wires” that form the subject of P1’s complaint here is #11.  As said before, there is insufficient evidence to associate #11 to the defendant.  In any event, given the character of the neighbourhood (as shown in the photographs in evidence), I do not find it surprising to find bird droppings in the plaintiffs’ sun dried clothes.

62.This part of the plaintiffs’ claim is dismissed.

D4.  Para 10(d)

63.There are two aspects to this complaint.  First, the “frequent attendance” or “frequent presence” of the defendant’s technicians or agents resulted in security concerns that caused fear and disturbance to the plaintiffs and their family members.  Secondly, the defendant’s activities brought about dust, noise and garbage and even caused cracks at the base of the Building as well as vibration.

64.My findings in relation to the first aspect are set out in Appendix A below.  Based on the evidence, I find that the defendant had only carried out works at the Building for a total of 4 days over a period of almost 1.5 years (three days from 28 to 30 March 2011 plus one day on 16 August 2012).  The frequency of the defendant’s attendance or presence cannot be described as “frequent”. 

65.D’s Counsel has made the point that the defendant’s attendance or presence was reasonable as the defendant had only been allowed to attend the Building during office hours from Monday to Saturday.   The defendant could also access the Building outside office hours in case of emergency upon prior arrangement with 2/F Owner but there is no evidence that that has happened before.[7] This is to be contrasted with CSL which had been granted “unimpeded 24-hour access to the Licensed Area” under its licenses.[8]

66.Given the above, I do not accept that the defendant’s attendance or presence at the Building had caused any real interference with the comfort and convenience of the plaintiffs.

67.Apart from the photograph on page 767 of the Bundle, there is no other evidence of noise, dust, vibration or garbage generated by the defendant.  But according to P1’s letter to the OFTA dated 25 August 2012, the photographic evidence on page 767 of the Bundle that “they left trash at my frontyard and on the path” should relate to an incident on 22-23 August 2012 after the removal of the defendant’s equipment.

68.It is P1’s evidence that: “In carrying out their works, the Defendant’s workers sometimes broke into my backyard by breaking open the combination lock.  They used my backyard’s tap water; they lifted heavy objects up and down from the roof, damaging my floor tiles; they left our front yard and back gate opened, posing security risks; their activities terrified my family and my neighbors…  My family and I had been apprehensive of the danger and annoyance posed by the activities of the agent of the Defendant.  We had been unable to use the front yard and back yard as frequently as we wanted for fear of suffering personal injury discomfort or annoyance.”

69.However, when P1 wrote to the Office of the Telecommunications Authority on 21 August 2012 he said that: “On 16^th August 2012, a gang of four broke into my backyard by breaking the lock of the gate and performed illegal operation.  While my wife and I were not at home, my son was terrified but was able to take some photographs of the activity and damage caused.”  The photographs attached to the letter are similar to those produced at pp 179-181 of the Bundle (discussed in Appendix A) and bear no date stamp.  Curiously, the letter ended with the query “… may I once again ask if CSL and China Mobile are still occupying my roof now?”  If he was unsure about the identity of the personnel who broke into his backyard then, how can he be sure that they came from the defendant almost 10 years later?

70.Turning to the second aspect of the complaint, it is P1’s evidence that: “Also, when they [ie the defendant] carried out the works at the Main Roof, ie installation, maintenance, adjustment, and removal of Antenna Equipment, they generated noise and dust; the whole building vibrated.  Their construction work from 7 January 2011 to 31 March 2011 caused cracks at my building base.  I wrote to the Buildings Department reporting this incidence [sic] and the Buildings Department had replied.  Both my letters and the reply of the Buildings Department are shown at Exhibit 21.”

71.In P1’s letter to the Buildings Department dated 24 March 2011 included in that exhibit, he stated: “Your inspection report EBN/9079/02/D11 Pt.II has located many cracks at the front end of house no.67 [ie the Building].  House no.68 is of the same situation.  The four table-sized cement cubes (at least one ton each) and the re-enforced double-layer steel floor installed on top of house no 68 has crashed the house, and cracks can be found at the foot.  The extra weight also drag the connected house (no.67) down further.” 

72.Two points should be made.  First, I have rejected the plaintiffs’ case that the defendant had carried out works at the Building for 11 weeks from 7 January 2011 to 31 March 2011.  Secondly, if the plaintiffs had accepted that the cracks at the Building were caused by the cement cubes and re-enforced double-layer steel floor installed at the adjacent building, it is not known why they now blame the defendant. 

73.All in all, I find against the plaintiffs in both aspects of their claim.

D5.  Para 10(d1)

74.It is P1’s evidence that: “The installation and use of the Antenna Equipment make my neighbors and myself worry about the impact of the intensive radio frequency generated from the Antenna Equipment on our health.  Some of my neighbours even contracted cancer thereafter.  At least 7 families (including G/F, 1/F, 2/F of House 68, 1/F of House No 67; G/F & 1/F of House 66) moved out as a result of the Antenna Equipment.”

75.However, the plaintiffs’ worry is not supported by other evidence.

(a)  In his letter to the Department of Health dated 27 October 2012, P1 wrote: “About 15 years ago, mobile operators started to install base stations on my roof.  My neighbours and I strongly objected the installation and complained to OFTA.  They responded by sending technicians to conduct site measurements, and concluded that the level was safe for living.  However, as time passed, I have noticed that my neighbors got serious health problems (mainly cancer) and even dead.”

(b)  In the Department of Health’s reply dated 5 November 2012, it is stated that: “As far as we understand, Hong Kong adopts international exposure guidelines endorsed by WHO to protect our citizens against adverse levels of RF EMF [ie radiofrequency electromagnetic fields].  However, please note that the technical interpretation of the ICNIRP [ie International Commission on Non-Ionizing Radiation Protection] guidelines is outside our expertise, and we are not in a position to comment on any site selection issues or issues related to the installation or operation of telecommunication facilities.”

76.The English Court of Appeal dealt with similar argument in Birmingham Development Company Limited v Tyler [2008] EWCA Civ 859.  As recorded in para 38 of the Court of Appeal judgment, the first instance judge dismissed the plaintiff’s (“BDC”) claim against the defendant (“Mr Tyler”) because:

“The Area 1 case failed because BDC failed to prove that the factory presented any actual danger to the site or to its enjoyment of it.  Although the judge accepted that BDC had proved a subjective fear of danger in relation to Area 1, he held that by itself this was insufficient to establish a nuisance against Mr Tyler…”

77.Lord Justice Rimer considered earlier authorities such as Regina v Lister and Another Dears & Bell 209; 169 English Reports, p 979 and Attorney-General v Corporation of Nottingham [1904] 1 Ch 673 and held that:

“… Honest, perhaps reasonable, fear of danger is not enough.  What is required before a nuisance can be proved is a well-founded fear, which means proving on the probabilities the reality of the danger that has given rise to the fear…” (at para 50)

“In my view it is plain that BDC has no cause of action against Mr Tyler in nuisance in respect pf Area 1.  The Lister and Attorney-General v Nottingham Corporation cases show that it is not enough for a claimant who asserts that his neighbour’s property or activities are dangerous merely to prove that he is frightened by them.  What is required is proof that the fear is well-founded: that is, that the property or activities are actually dangerous, although it is not necessary to do more than prove that on the balance of probabilities.” (at para 55)

78.In the present case, I do not doubt the genuineness of the plaintiffs’ worry but they have failed to prove on the balance of probabilities that their worry is well-founded: that is, that the defendant’s antenna equipment was actually dangerous.  This aspect of their claim therefore fails.

D6.  Para 10(e)

79.It does not matter whether there are numerous complaints by other neighbours if the plaintiffs cannot prove the defendant’s activities had unreasonably interfered with their enjoyment of their land.

D7.  Conclusion on nuisance

80.For the above reasons, I find against the plaintiffs on their claim based on nuisance.

E.  What is the appropriate relief?

E1.  Other causes of action?

81.In his final analysis, P’s Solicitor insisted that the defendant was also in breach of:

(a)  special condition 5(a) in the New Grant in respect of the Building; and

(b)  clauses 8 & 12 of the DMC.

82.Special condition 5(a) of the New Grant provides that:

“No structure shall be erected on the lot other than one building which shall not contain more than three storeys nor exceed a height of 25 feet…”

83.First, P’s Solicitor apparently relies on the letter (date unknown) from Lands Department on page 700 of the Bundle which is in these terms:

“This office conducted site inspection on 26.1.2010 and found the height of the antennas on the roof at the subject location [ie the Building] has breached the Lease Condition.  In this connection, this office has issued warning letter to the owner/occupant and requested to regularize the breach.  For the sustained situation, this office will consider to execute necessary lease enforcement/land control action.”

84.Bearing in mind that both CSL and the defendant had antennas on the roof at the same time, it is not clear from that letter whose antenna had been found to have “breached the Lease Condition”.

85.In another letter dated 22 September 2010, Lands Department stated that:

“Preliminary, this office has given warning letter to the owner of the captioned property [ie the Building] and at the same time informed CSL Limited that the height of the antennas on the roof of the property has breached the lease conditions.  Since no response has been received from them so far, your complaint has been put on the lease enforcement action list for further follow up actions by this office.”

86.In my view, it is likely that the letter on page 700 of the Bundle was referring to CSL’s antennas.

87.Secondly, the diagram of “Outdoor Antenna Post (P1-P2) Mounting Method” on Exhibit P4 carries this description: “PROPOSED TO MODIFY EXISTING CMHK ANTENNA POST (P1 OR P2) FROM 2500mm TO 1800mm”.  Without knowing the starting premise (ie the height of the roof floor), the plaintiffs are unable to establish that the defendant’s antennas at #4 and #6 were in breach of the height restriction under the special condition.

88.Turning to clauses 8 and 12 of the DMC, they respectively provide that:

“8.  Each of the parties hereto shall not use or cause or suffer or permit to be used the unit of which he is entitled to the exclusive use, occupation and enjoyment or any part thereof for any illegal, unlawful or immoral purpose and shall not do or cause or suffer or permit to be done anything therein or thereupon which may create unnecessary noise or which may be or become a nuisance, annoyance or inconvenience to the occupiers of the other units of and in the said building or of the premises in the neighbourhood.

…

12. It is hereby expressly agreed and declared that those portions of the said building which are sold for domestic accommodation shall be used for domestic accommodation only…”

89.P’s Solicitor argued that: “By breaching Clause 12 of the DMC, the Defendant also breached clause 8 of the DMC in that it permitted the Common Parts to be used for unlawful and illegal purposes and created unnecessary noise which may be or become a nuisance, annoyance or inconvenience to the occupiers of the other units.”

90.In my view, clauses 8 and 12 should be read together with the preamble:

“AND WHEREAS there is now constructed upon the said premises a three storeyed building consisting of 3 domestic units (one unit on each floor) and one main roof (hereinafter referred to as ‘the said building’).”

91.Whereas the DMC has designated “one unit on each floor” for domestic purpose, there is no such designation for the “main roof”.  There is thus no basis for the plaintiffs to accuse 2/F Owner of breaching clause 12.

92.The plaintiffs’ claim based on breach of special condition 5(a) in the New Grant and clauses 8 & 12 of the DMC therefore fails.

93.Given all the above, the plaintiffs should not be awarded any relief.  In deference to the submissions made however, I shall briefly comment on two matters that were hotly debated in closing submissions:

(a)  the valuation of the experts; and

(b)  the principle of full satisfaction.

E2.  The valuation of the experts

94.With leave of the court, both parties have adduced expert evidence on “[t]he market rental value of the external wall near the ground floor entrance of [the Building] marked ‘D’ in the annexed plan B and the internal parapet walls of the roof of the Building marked ‘A’, ‘B’, ‘C’ and ‘E’ in the annexed plan B from 10 February 2011 – 31 August 2012”.

95.Their valuation is summarised below:

	Plaintiffs’ valuation	Defendant’s valuation
Market rental value of A-B-C-E and D for 10.2.2011-31.8.2012	$209,500	$129,000
Adjustment due to the plaintiffs’ concession on “D”	No adjustment required[9]	50% reduction
After further adjustment due to the plaintiffs’ concession on the relevant period, ie 10.2.2011-16.8.2012	$203,977	$62,799

96.I generally prefer the defendant’s valuation.

97.The plaintiffs’ valuation is based on two comparables, but I do not accept them as valid comparable.

(a)  It is common ground that the Building is in a rural area with residential developments.  But the plaintiffs’ comparables were selected from industrial buildings in a non-residential area nearby. 

(b)  The plaintiffs’ expert made 5 adjustments to account for differences in time, location, structure, storeys and “exclusion of roof” between the comparables and the property to be valued.  Huge adjustment was made – upward and downward adjustments to the  extent of  over 80% in aggregate.[10] In my view,  adjustments of  such a magnitude mean that the comparables should not be selected in the first place.

98.The plaintiffs’ valuation is also based on the number of antennas installed.  However, the licence agreements relating to the comparables are not in evidence and the plaintiffs’ expert did not inspect the agreements to confirm their charging basis.  On the other hand, it is not apparent from the eight licence agreements in evidence relating to the roof of the Building that the licence fee charged were based on the number of antennas installed.[11] More importantly, a comparison of the 2008 Licence and the 2010 Licence would reveal that the defendant had added one more antenna to the roof in 2010 but the monthly licence fee was reduced from $10,000 to $9,200.

99.On the other hand, the defendant’s valuation is based on the defendant’s licence agreements and the rateable value assessed by the Rating and Valuation Department as the defendant’s expert could not identify any reliable comparable at around the date of valuation.  There is nothing to support the plaintiffs’ expert’s criticism that the defendant and 2/F Owner were not dealing at arm’s length or that the rateable value is biased.

100.However, I do not accept the defence case that there should be a 50% reduction on account of the plaintiffs’ concession on “D”. 

101.The defendant’s expert apparently thinks that: “It is obvious that without ‘D’, antennae equipment belonging to [the defendant] that was installed in ‘A’, ‘B’, ‘C’ & ‘E’ would not be able to have any function.  Similarly, without ‘A’, ‘B’, ‘C’’ & ‘E’, ‘D’ would also has no function.” 

102.But his opinion is contradicted by the following facts:

(a)  The defendant had continued its operation at the Building after the removal of the metal box at “D” in  December 2010.

(b)  There was an obligation on the part of 2/F Owner to supply electricity, as the licence fee payable by the defendant was inclusive of electricity charges.[12] It did not matter if “D” was available or not.

103.After further adjustment on account of the parties’ agreement on the end date, the market rental value of A-B-C-E on the roof should be $125,600 (ie $129,000 x 554/569).

104.It is P’s Solicitor’s submissions that the plaintiffs, being one of the three co-owners, should be entitled to one-third of the market rental value of A-B-C-E over the period of trespass or breach of the DMC.[13] Therefore, I would have awarded the plaintiffs $41,867 (ie $125,600 ÷ 3) had they succeeded on their claim of trespass and breach of the DMC.

E3.  The principle of full satisfaction

105.It is common ground that the plaintiffs filed a claim against 2/F Owner in the Lands Tribunal in 2012 (LDBM 27/2012).

106.LDBM 27/2012 was settled without a trial.  According to the order dated 2 January 2013 therein made by consent of the parties:

“1.  In full and final settlement of [the plaintiffs’] claims herein, an Injunction is hereby granted that [2/F Owner] by himself, his servants, agents, tenants, sub-tenants, licensees or any of them or otherwise howsoever be restrained from placing, installing or fixing the Antennae Equipment (as defined in the Notice of Application herein) or other similar equipment at the Main Roof or the common parts of the Building herein known as…

2.  The Sanctioned Payment of $348,000.00 paid into court by the Notice of Sanctioned Payment filed herein on 8^th November 2012 together with interest thereon (if any), be released and paid to [the plaintiffs’] Solicitors as damages and/or mesne profits;

…

5.  [2/F Owner] do pay the costs of the Action, to be taxed at the District Court Scale if not agreed…”

107.In his closing submissions, D’s Counsel submitted that:

(a)  There are overlapping pleas in LDBM 27/2012 and this action, namely, trespass, nuisance and breach of the New Grant and the DMC by reasons of the antenna equipment installed and maintained on the roof of the Building. 

(b)  Insofar as their complaint against the defendant is concerned, the plaintiffs basically rely on the same evidence in both actions.  They additionally complain about cracks, vibration and entry (para 10(d) of the ASOC) and intensive radio frequency (para 10(d1) of the ASOC) in this action.

(c)  In respect of the overlapping pleas relating to the defendant, 2/F Owner and the defendant are joint tortfeasers.

(d)  The plaintiffs have been compensated for their loss and damage arising from the overlapping pleas  relating to the defendant.

(e)  The principle of full satisfaction prevents double recovery: see Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] 1 AC 514 at 522F-H.  That principle applies to claims that have been settled: Leung Yung Chun & Another v Chan Wing Sang & Others [2000] 1 HKLRD 456 at 463F- 464C.  It does not matter if the joint tortfeasor (the defendant in this action) was not a party to the earlier action (LDMB 27/2012) and the settlement.

(f)  Bearing in mind that the plaintiffs were compensated in LDBM 27/2012 for loss and damage inclusive of two additional pleas (out of seven) which are not present in this action, at least 71.4% of the settlement in LDBM 27/2012 should be applied to reduce the amount of damages payable by the defendant to the plaintiffs in this action on a “rough and ready basis”.[14]

(g)  The plaintiffs should not be entitled to costs as there was no reasonable ground for them to bring this  action given the settlement.

108.In reply, P’s Solicitor took a pleading point.  He submitted that: “The Plaintiff’s claim against [2/F Owner] and the compensation obtained from him in LDBM 27/2012 were made known to the Defendant on as early as 22 April 2019 by way of the witness statement of P1 and one of its exhibits, ie the supplemental witness statement of [2/F Owner].  The Defendant had not requested discovery of any pleadings in LDBM 27/2012.  Nor had it raised any defence of double recovery or discharge of the Defendant’s liability by the [2/F Owner] Settlement Agreement in its Re-Amended Defence, or the Joint Statement of Issues, or its opening.  The Defendant had nearly 4 years to consider and to raise this defence of double recovery and discharge by the [2/F Owner] Settlement Agreement.  However it only raised such defence during closing.  The Plaintiffs are truly taken by surprise and are deprived of the chance of preparing a robust Reply dealing with such a defence and adducing evidence, by way of witness statements or otherwise, showing no double recovery or no discharge.  It would unfairly prejudice the Plaintiffs if the Defendant is allowed to run this line of unpleaded defence.”

109.I think P’s Solicitor is right.  In Kuan Heng Choi v Ma Pui Tung [2002] 1 HKC 111, the defence counsel there sought to cross-examine the plaintiff with a view to establish that the plaintiff did not suffer loss as to the whole of the claimed amount as there were contributions from others.  Upon the objection of the plaintiff, Deputy High Court Judge Lam (as he then was) ruled:

“8.  The rules of pleadings as to damages have undergone changes.  There has been a trend to apply the same rules on liability as well as quantum.  In the old days, Order 18 Rule 13(4) provided that allegation about damage being suffered and amount thereof was deemed to be traversed.  Even so, in the case of Speidel v.  Plato Films [1961] AC 1090 at p.1104 and 1105, the English Court of Appeal held that new issues of facts pertaining to question of damages should not be raised without pleadings (see also McGregor on Damages, 14^th Edn., Para.1512).  I cannot see any distinction between issues of facts touching upon quantum and issues of facts touching upon questions like mitigation or remoteness.  Pleading serves to inform the other side what case he has to meet.  There is no reason why the rule should be different with regard to quantum.

9.  By SI 2427 of 1989 (which took effect on 4^th June 1990), the English rules were amended.  Firstly, Order 18 Rule 12(1)(c) were introduced into the rules.  Secondly Order 18 Rule 13(4) were amended by deleting the reference to the amount of damages.  Hence, the deemed traverse ceased to apply to the amount of damages.  According to Para.18/12/1 of the 1991 White Book, one of the purpose of the widening of the rules was to make the pleading more informative as to damages.

10.  By SI 2671 of 1991, the English rules were further amended.  Order 18 Rule 13(4) was revoked altogether.

11.  In Hong Kong, Order 18 Rule 12(1)(c) was added by LN 404 of 1991.  Order 18 Rule 13(4) was repealed by LN 403 of 1992.

12.  The purpose of all these changes were to prevent a party from being taken by surprise in respect of question of damages.  In my judgment, the matters which the Defendant now seeks to rely upon are matters which would take the Plaintiff by surprise.  Whilst the Plaintiff herself might have introduced the question of those supporting her in the transaction by way of background, neither she nor her legal adviser could have envisaged that by a non-admission and the general traverse, the Defendant intended to argue at the trial that those were not losses suffered by her because they were funded by someone else.

13.  In 1963, the Court of Appeal had this to say in Weait v.  Jayanbee Joinery [1963] 1 QB 239 at p.247-248 cited at Para.2050 McGregor on Damages, 16^th Edn.,

‘from a practical point of view ...  if a defendant were minded to take a substantial point as this on damages ...  it would be essential that, if not by pleading, at any rate by notice, the plaintiff and his advisors should be made aware that such a point was going to be taken.’

14.  With the amendments of the rules, I am of the view that our system of pleadings have reached the position where a substantial point such as the one argued by [the defence counsel] in this case is to be taken, it has to be pleaded.

15.  I therefore rule that without proper pleadings, the point is not open to the Defendant.”

110.In the present case, the defendant had initially pleaded in para 21 of the Defence that the settlement in DCCJ 2683/2014 amounted to “res judicata and/or issue estoppel” against the plaintiffs but that plea was subsequently deleted.[15]  DCCJ 2683/2014 was an action commenced by 1/F Owner in the District Court against 2/F Owner, the defendant and CSL.  According to P1, DCCJ 2683/2014 was settled without a trial with the result: “[1/F Owner’s] case was concluding with China Mobile [ie the defendant here] paying him $200,000 plus costs and CSL paying him HK$170,000 plus costs.”[16]  No objection was ever taken by the defendant on pleading in relation to LDBM 27/2012 or the settlement therein. 

111.For the reasons articulated in Kuan Heng Choi, I take the view that it is not open to the defendant to complain about double recovery in closing argument without proper pleading.

F.  Conclusion

112.For the above reasons, the plaintiffs’ claim against the defendant is dismissed.  As costs generally follow the event, there be a costs order nisi that the plaintiffs do pay the defendant’s costs in this action, to be taxed if not agreed with certificate for counsel.

113.Over the years, the dispute over the antenna equipment on the roof of the Building has given rise to three sets of proceedings:

(a)  LDBM 27/2012 by the plaintiffs against 2/F Owner.

(b)  DCCJ 2683/2014 by 1/F Owner against 2/F Owner, the defendant and CSL.

(c)  This action by the plaintiffs against the defendant.

114.It is perplexed that none of the parties in the above proceedings has paid heed to Order 15, rule 4(2) of the Rules of the High Court (applicable to proceedings in the Lands Tribunal) and the Rules of the District Court (applicable to proceedings in the District Court) which is in these terms:

“Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any written law and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.”

115.Given the plaintiffs’ case that they are entitled to relief in their capacity as one of the co-owners of the Building, they should have applied in LDBM 27/2012 to join in 1/F Owner so that all the co-owners would be before the court.  Had that been done,

(a)  all the relevant parties would have been before the court in one action and multiplicity of proceedings could have been avoided;

(b)  the plaintiffs’ allegation in this action that they were unaware of the defendant at the time of LDBM 27/2012 could have been avoided through proper discovery;

(c)  the argument over double recovery could have been avoided; and

(d)  all the issues in dispute between all the relevant parties could have been either settled or adjudicated years ago.

Mr Tsang Chung Yu of C Y Tsang & Co, for the 1^st and 2^nd plaintiffs

Mr Ernest CY Ng and Ms Nicole Chui, instructed by Squire Patton Boggs, for the defendant 

Appendix A

Findings in relation to para 10(d) of the ASOC