Chau Wai Hung and Another v. Lam Tak Chuen and Another

DCCJ 2195/2019

[2023] HKDC 1234

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2195 OF 2019

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BETWEEN

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DECISION

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A. Introduction

1.This is a water leakage case. The trial was fixed for 5 days before me.

2.As is typical, the plaintiffs, being the owners of the property below, complain that water is leaking from above; the defendants, the owners of the property above, deny that it is their responsibility.

3.As is customary, the plaintiffs claim that the defendants are liable under breach of DMC, common law negligence and/or nuisance, and claim for:-

(a) A mandatory injunction to compel the defendants to undertake necessary repair work in order to halt the water leakage; and

(b) damages, quantified as the costs of repair. The damages claimed is not substantial – by the time of Opening Submissions, the parties are ad idem that they amount to no more than approximately HK$200,000.

4.Shortly before the trial, counsel for the defendants, in his Opening Submissions, raised a jurisdictional issue – ie, whether or not the District Court had the jurisdiction to grant the injunctive relief sought in light of the wording of the District Court Ordinance (DCO) s 52(1)(c), and the fact that the rateable value of the defendants’ property exceeded HK$320,000. In this regard, counsel identified two District Court cases in support of his contention.

5.Upon perusing such, this court immediately issued a letter and asked the parties to address the court as to this issue and provide supplemental submissions. The plaintiffs’ stance then was that the two District Court cases cited were wrong, and that this court had jurisdiction; and that this court should determine the issue of jurisdiction as a preliminary issue – only if the plaintiffs lose the point would they apply to transfer the case to the High Court.

6.On the first day of the trial, I informed the plaintiffs that, based on the submissions thus far and my own research, the matter was complex and I was not able to come to a decision on the issue of jurisdiction as a preliminary issue forthwith. As such, the plaintiffs were faced with the choice of either proceeding with the trial and taking the risk that, at the end of the day, this court finds that it has no jurisdiction; or alternatively, of vacating the trial and having the jurisdiction matter determined first; or still in the alternative, of applying to transfer the case to the High Court. After the parties conferred amongst themselves, the plaintiffs applied orally to vacate the trial and transfer the case to the High Court, to which the defendants did not object. Also by agreement of the parties, costs of the application, and the costs thrown away by the vacation of the trial, were reserved.

7.At the end of the hearing, I acceded to the plaintiffs’ application and made orders accordingly. I did so not without reservations, as, normally speaking, it would be undesirable for this court to transfer cases upwards simply because there is uncertainty over jurisdiction – the District Court exists for a purpose, and this includes determining its own jurisdiction and dealing with cases within it, instead of overburdening the High Court. However, I decided to accede to the application as any decision to the contrary would mean considerable uncertainty and delay for the parties. Afterall:-

(a) At that point of time, 3 cases (see §51 below) had already been identified whereby the District Court had proceeded on the basis that it had no jurisdiction to grant an injunction in similar cases due to the rateable value limit in DCO s 52(1)(c).

(b) As such, even if I were to deal with the jurisdictional issue and take the opposite view, such view would be contrary to the decisions made by a number of eminent judges of co-ordinate jurisdiction, and may be the subject of appeals.

(c) This would mean that the parties would have to live with yet more delay (while the matter is being resolved on appeals), or continue to trial with legal uncertainty hanging over the fundamental issue of jurisdiction. This would be particularly unfair to the plaintiffs who, on their case, had suffered from continued water leakage and are praying for assistance from the justice system, and deserve a full and final ventilation of the matter by a court of undoubted jurisdiction as soon as practicable.

8.Nevertheless, given the frequency with which water leakage cases come before the District Court, it may well be desirable that the issue of jurisdiction be clarified for the future. In an attempt to assist any such future exercise when an opportune case arises, I set out below my own tentative views based on some research into the underlying legislation.

B. The District Court’s Jurisdiction to Grant Injunctions – the Evolution of the Statutory Provisions

9.The District Court was first established under the District Court Ordinance 1953 with limited civil and criminal jurisdiction. It has undergone a number of revisions or sub-compilations or consolidations and became the present DCO.

10.With regards to the court’s civil jurisdiction to grant injunctions, the legislation has gone through three major revamps in 1959, 1962 and 2000. Pursuant to these amendments, sections 48, 52 and 52B(1) (as they are now known) were added or amended respectively. A table outlining the chronological development of the relevant provisions over time is set out in Annex 1.

B1. The English Position re Inferior Courts, and the Original Position (1953) in Hong Kong

11.In England, the jurisdiction of inferior Courts to grant relief had traditionally been regulated by the English Judicature Act 1873, s 89. It provides as follows:-

“Every inferior Court which now has or which may after the passing of this Act, have jurisdiction in equity, or at law and in equity, and in Admiralty respectively, shall, as regards all causes of action within its jurisdiction for the time being, have power to grant and shall grant in any proceedings before such Court, such relief, redress, or remedy, or combination of remedies, either absolute or conditional, and shall in every such proceedings give such and the like effect to every ground of defence or counterclaim equitable or legal (subject to the provision next hereinafter contained) in as full and ample a manner as might and ought to be done in the like case by the High Court of Justice.”

12.Its successor[1], ie, County Court Act 1934 at s 71, provides similarly as follows:-

“Every county court, as regards any cause of action for the time being within its jurisdiction, shall in any proceedings before it—

(a) grant such relief, redress or remedy or combination of remedies, either absolute or conditional; …

as ought to be granted or given in the like case by the High Court and in as full and ample a manner.”

13.This ancillary power had long been interpreted as conferring the jurisdiction to grant injunctions in aid of both common law and equitable claims.

14.The best example is Martin, ex p (1879) 4 QBD 212. In that case, the claim was for nuisance caused by stenches from a manure manufactory of the defendants. The court confirmed that the County Court had, in actions within its jurisdiction, power to grant an injunction against a nuisance, and to commit to prison for disobedience thereof. In the words of Kelly, CB [p213]:-

“In the present case there was a cause of action for a nuisance, and judgment for the plaintiff thereon, and as incidental to that it is essential that the Court should have power to grant an injunction. If this action had been in the High Court an injunction could have been granted, and if so, what reason is there why the county court should not have the like power under s. 89, which gives to every inferior Court the same power to grant such remedy, or combination of remedies, in as full and ample a manner as might and ought to be done by the High Court? I can see no reason why it should not.”

15.In contrast, the Hong Kong District Court, as the court which took over the summary jurisdiction of the Supreme Court, started off with more limited jurisdiction. In the inaugural District Court Ordinance 1953 the jurisdiction of the court for civil claims is set out in s 14:-

“[Section 14] Subject to the provisions of this Ordinance, the District Court shall have the civil jurisdiction specified in the First Schedule. …

16.The First Schedule, in turn says this:-

“1. All the summary jurisdiction exercisable by the Supreme Court immediately before the commencement of this Ordinance under the provisions of the Supreme Court (Summary Jurisdiction) Ordinance (except jurisdiction in Admiralty).”

17.Supreme Court (Summary Jurisdiction) Ordinance (SCSJO) s 11 in turn states this insofar as injunctions are concerned:-

“It shall be lawful for the supreme court to excise a summary jurisdiction in equity in the actions or matters hereinafter mentioned— …

(f) in all proceedings for orders in the nature of injunctions, where the same are requisite for granting relief in matter in which equitable jurisdiction is given to the Court by this ordinance:

Provided always that, on the day of trial specified in the writ of summons, the judge may make a preliminary inquiry into the claim, and, if satisfied that the case is within the provisions of this section, may make such orders and give such directions with respect to the filing of pleadings and any other matters as he may deem necessary for the proper adjudication of the action.”

18.On the face of it, this provision is rather narrow. It appears to draw a distinction between claims in common law and claims in equity. Only in the latter case (ie, where the court is exercising primary equitable jurisdiction) can injunctions be granted. This distinction was not lost on the early Hong Kong District Court, and soon enough judgments arose whereby the court regarded itself as having no jurisdiction to grant injunctions/declarations in aid of common law claims: see for example Buntzen v Baglin [1953-55] HKDCLR 1. Similarly, in Cheung Man Tsz and Another v Leung Sau Shan [1958] DCLR 91, Mills-Owens J also refused to grant equitable remedies in aid of a claim of common law fraud. The learned Judge had this to say:-

“With regard to the power of the District Court to give effect to equitable principles it is to be observed that the District Court is nowhere expressed to be a court of equity, as is the Supreme Court by section 8(1) of the Supreme Court Ordinance (Cap 4), and that the rules for the concurrent administration of law and equity contained in section 9 and 10 of the Supreme Court Ordinance are nowhere expressly made applicable to the District Court. The position of the District Court in this respect is to be contrasted with the position of the English County Court; under section 71 of the County Courts Act, 1934 the County Court is to grant such relief etc. “as ought to be granted or given in the like case by the High Court and in as full and ample a manner” and under section 44 of the Judicature Act, 1925 “the rules of equity are to prevail” in all courts whatsoever. No doubt whilst the jurisdiction now vested in the District Court by the District Court Ordinance was vested in the Supreme Court, exercising its summary jurisdiction, no difficulties arose — the above-mentioned provisions of the Supreme Court Ordinance applied.”

B2. The Revised Position (1959) in Hong Kong, adopting the English Position

19.These cases spurred on immediate legislative reform to remedy the lacuna. Within a year of the Cheung Man Tsz decision, the District Court (Amendment) Bill (1 of 1953) was introduced. In the “Object and Reasons” to the bill (as recorded in Hansard), the following was stated:-

“Doubt has arisen as to the jurisdiction of the District Court to give effect to equitable remedies and principles in common law proceedings within its jurisdiction. This Bill seeks to remove this doubt by introducing into the District Court Ordinance, 1953, provisions modelled upon section 71 of the County Courts Act, 1934, and section 10 of the Supreme Court Ordinance, Chapter 4.”

20.It is thus not surprising that the amendments introduced by the bill was the addition of two sub-sections (s 14(2) and (3)) to the then DCO, very much modelled on the County Court Act 1934 s 71:-

“(2) The District Court, as regards any cause for the time being within its jurisdiction as provided by subsection (1), shall in any proceedings before it-

(a) grant such relief, redress or remedy or combination of remedies, either absolute or conditional; …

as ought to be granted or given in the like case by the Supreme Court and in as full and ample a manner.

(3) In the application of subsection (2) the rules of equity shall prevail in all matters in which there was formerly or is any conflict or variance between the rules of equity and the rules of the common law.”

21.On the face of it, therefore, the purpose of DCO s 14 is clear – to ensure that the District Court has the ancillary jurisdiction to grant equitable relief in aid of both common law and equitable claims, and which, as per then prevailing English law, would include injunctions.

22.That this is the correct analysis is confirmed in Lee Kin Man v Tsang Yuk [1963] HKDCLR 148[2]. In that case, a mandatory injunction was sought based on an action in detinue. McMullin J appears to affirm the theoretical possibility of an injunction being granted in aid of both common law and equitable claims based on DCO s 14. His Honour had this to say [at p150]:-

“Leaving aside for the moment the question of detinue, it is clear that an injunction may be sought in the District Court only where it is a remedy necessary to reinforce the grant of some relief falling within the legal jurisdiction conferred by section 5 of the Supreme Court (Summary Jurisdiction) Ordinance, Cap 5, of the Laws of Hong Kong, or else within the equitable jurisdiction given to it by section 11 of that Ordinance.”

23.However, as the action in detinue did not sound in damages, His Honour took the view that the court’s common law jurisdiction is not engaged at all, and refused injunctive relief.

B3. The 1962 Reforms and the Addition of the Equivalent of Modern DCO Section 52

24.Then in 1962, extensive amendments were introduced into DCO, resulting in two Ordinances – the amended District Court Ordinance 1953, and a new Ordinance entitled District Court (Civil Jurisdiction and Procedure) Ordinance 1962 (the 1962 Ordinance).

25.The new 1962 Ordinance took over the task of defining the District Court’s civil jurisdiction. For present purposes, two observations emerge.

26.First, section 14 of the 1953 Ordinance became section 19 of the 1962 Ordinance without change in substance.

27.Second, what is more interesting, for present purposes, is the introduction of a new section 21, entitled “Extension of jurisdiction to grant injunctions and to make declarations” (which, for all practical purposes, is the equivalent to the modern DCO section 52).

28.From my research, there appears to be no equivalent provision in England – it appears to be a clause drafted locally. To properly interpret it, therefore, one has to try to discern its intended purpose.

29.For such purposes, the first port of call is Hansard. The official report of the Legislative Council meeting on 27 June 1962 does not directly comment on the new section 21. What it does reveal is that:-

“[The Attorney General] said: Sir, in October 1958 the Chief Justice appointed a District Court Committee to consider and advise on the revision of the District Court Ordinance, 1953. This Committee consulted with the Bar Association and the Incorporated Law Society of Hong Kong and published the following reports: —

…

A Second Interim Report dealing with the Civil Jurisdiction generally of the District Court;

…

… it has been thought best to introduce legislation giving effect to the recommendations in the Second Interim Report as to the Civil Jurisdiction and Procedure of the District Court without waiting for agreement on amendments relating to the Court's Criminal Jurisdiction. Accordingly, two Bills are being introduced today, namely, this present Bill and a Bill described in the immediately following item of the Order of Business as “The District Court (Civil Jurisdiction and Procedure) Bill, 1962”, the purpose of both Bills being to implement the recommendations contained in the Committee’s Second Interim Report….”

30.The Second Interim Report, however, was not easy to find, not being in the judiciary and university libraries. Luckily, the very helpful Government Records Service was able to unearth an archived hard copy thereof (GR No 1/3261/51) – and it was dated November 1959 (hereinafter the 1959 Report).

31.While the 1959 Report was found, deciphering it was more difficult. The main content of the Report is actually in the form of commentary/annotation on the then draft ordinance, a copy of which could not be located. Luckily, it quickly became clear that a commentary on section 32 of the then draft ordinance likely constituted commentary on what eventually became section 21 of the 1962 Ordinance. The commentary reads as follows:-

“[the section] represents an attempt to endow the District Court with jurisdiction to grant an injunction where no claim for damages is made. Under the corresponding provisions of the County Court Act it has been held that the County Court has no jurisdiction to grant an injunction unless some other claim within the jurisdiction of the Court, as for example a claim for damages, is made.”

32.This snippet, however short, sheds light on the true thinking behind enacting the new section 21. What is clear is that it was not designed to limit the jurisdiction of the District Court to grant injunctions/declarations under its ancillary powers under section 14 of the 1953 Ordinance (and its equivalent, section 19 of the 1962 Ordinance and section 48 of the modern DCO). Instead, it was designed to extend it to scenarios outwith, ie, to situations where the underlying claim may not sound in damages (as in the Lee Kin Man case – see §22 above). In other words, it is a jurisdiction-conferring provision.

33.This interpretation is bolstered by:-

(a) The heading of the section itself, ie, “Extension of jurisdiction to grant injunctions and to make declarations”.

(b) The wording of the proviso to section 21(1), ie, the court’s jurisdiction to grant injunctions under the section:-

“…notwithstanding that any claim for damages or for any other relief or remedy which the Court is competent to grant shall be made in the proceedings.”

(c) The wording of section 21(2), which states unequivocally that section 21 is not designed to ouster the Court’s existing power under section 19:-

“Nothing in this section shall...

(b) prejudicially affect the provisions of section 19 and 20…”

B4. Further Reforms in 1972 and 1973

34.While the 1962 reforms led to the separate 1962 Ordinance governing the District Court’s civil jurisdiction, in 1972, the process was reversed - the 1953 Ordinance, as amended, and the 1962 Ordinance were consolidated back into one DCO without any change in substance.

35.For present purposes, what is to be noted is that:-

(a) section 14 of the 1953 Ordinance, which later became section 19 of the 1962 Ordinance, was renumbered as section 48 of the 1972 DCO;

(b) section 21 of the 1962 Ordinance was renumbered as section 52 of the 1972 DCO.

36.In 1973, the jurisdictional monetary limits were increased; and a further section 52B was added, which, it appears, puts beyond doubt the fact that the District Court had power to appoint interlocutory receivers. It reads as follows:-

“(1) The Court may appoint a receiver by an interlocutory order in all cases in which it may appear to the Court to be just or convenient that such order should be made; and any such order may be made either unconditionally or on such terms and conditions as the Court may think just.”

B5. The 2000 Reforms

37.In 2000, the DCO was amended for the primary purpose of raising the monetary limits in respect of claims in contract, tort etc and relieving the increased workload of the Supreme Court.

38.For present purposes, what is interesting is the amendment made to DCO section 52B. The below shows the mark-up vis-à-vis the DCO 1973 version:-

“(1) The Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in any action or proceedings in the Court and within its jurisdiction in which the Court considers it by an interlocutory order in all cases in which it may appear to the Court to be just or convenient so to do that such order should be made; and any such order may be made either unconditionally or on such terms and conditions as the Court may think just.”

39.The 2000 amendments were primarily based on the recommendations put forth in the report of a working party chaired by Kempster JA. Unfortunately, the Kempster report did not include any elaboration as to why section 52B was amended. It is therefore unclear why this amendment was required. Possible explanations include:-

(a) The amendment aligns the DCO’s drafting with the High Court Ordinance (Cap 4) section 21L.

(b) This may make it clear (if it were previously in doubt) that the District Court has similar powers as the High Court in granting, in particular, interlocutory injunctive relief, including injunctions outwith the normal Siskina principle (ie, interlocutory injunctions for which there is no equivalent final injunction), such as Mareva injunctions: see Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334. In this regard, it is notable that there are cases which suggest that such a provision did have the effect of facilitating such lines of reasoning:-

(i) In Eric Chan v Wong Kwok Wang Warren (DCCJ 1155/2008, 31 May 2016) at §137, HHJ Levy held that the District Court has the jurisdiction to grant a Mareva injunction with an injuncted value of $1.8 million under section 52B(1), despite the jurisdictional limit at the time being $1 million. Her Honour had this to say:-

“Second, section 52B(1) of the Ordinance provides that "the court may by order (whether interlocutory or final) grant an injunction or …in any action or proceedings in the Court and within its jurisdiction in which the Court considers it just or convenient so to do". These words should, in my view, confer jurisdiction on the District Court to grant a Mareva injunction irrespective of the amount sought to be injuncted.”

(ii) In A v B (DCMP 4191/2020, 8 April 2021), DDJ Kay Seto granted a gagging order restraining the bank from revealing or disclosing to any persons the proceedings under section 52B(1). See §14:-

“The principles applicable to the grant of a gagging order are also well settled. Section 52B of the District Court Ordinance (Cap 336) gives the court a wide statutory jurisdiction to grant injunctions where the justice of the case requires. The court therefore has the power to grant injunctions to ensure that the proceedings before it or its process are rendered effective and just: see A Co. (supra), §37.”

40.If so interpreted, the amendments to section 52B did potentially expand the District Court’s jurisdiction insofar as the type of relief which may be granted. However, it is quite clear that any such powers remain circumscribed by there being an underlying claim which falls within the primary jurisdiction-conferring provisions of DCO, ie sections 32, 33, 35, 36 and 37 (and maybe potentially section 52, if the analysis above is accepted):-

(a) Compared with High Court Ordinance section 21L, there are the additional words “and within its jurisdiction”.

(b) In the Minutes of 7^th Meeting the Bills Committee on District Court (Amendment) Bill 1999 under the Legislative Council. Paragraph 43 states as follows: -

“Comparing the provisions in the Bill and the HC Ordinance, the Chairman said that the jurisdiction of the HC was wider than the DC in respect of granting injunctions and appointing receivers. The CFI may grant an injunction or appoint a receiver in all cases in which it considered just or convenient to do so. However, the same power of the DC was limited to any action or proceedings within the jurisdiction of the DC.”

C. Case Law

41.The above paradigm is premised upon a chronological approach to the legislative history.

42.While it appears to make good sense, it appears that the court’s decisions over the years do not align with this view, in particular as to the effect of, and interaction between, DCO sections 48 and 52. Rather than viewing section 52, as per the analysis above, as conferring additional primary jurisdiction as compared to the existing primary jurisdiction conferred by DCO sections 32, 33, 35, 36 and 37 (and thus being completely parallel to section 48, which is parasitic upon DCO sections 32, 33, 35, 36 and 37), the courts appear to have taken the view that:-

(a) Section 52 does not confer additional primary jurisdiction. Instead, like section 48, it is parasitic upon DCO sections 32, 33, 35, 36 and 37 for primary jurisdiction, and simply provides for the power to grant relief (the 1^st View).

(b) It then follows that sections 48 and 52 are similar in nature and overlap, at least insofar as the relief sought is injunction/declaration. In order to give meaning to section 52, the monetary limits therein are construed as additional requirements which have to be satisfied before injunctions/declarations can be granted (the 2^nd View).

43.This is further explored below.

44.An early case which appears to espouse these views is The Excelsior v Bernard N Da Silva (VDC 1543/1975, 26 May 1976) [§3]:-

“Whilst injunctions may be granted under s.48 by the District Court in the exercise of its equitable jurisdiction under s.37, for the various jurisdictions in the District Court under ss.32, 33, 35 and 36 inclusive of the equitable jurisdiction under s.37, the District Court may resort to injunctions under s.52. In effect, the provisions in s.52(1) viz. paras. (a) to (d) cover extensively all the jurisdictions in these ss.32, 33, 35, 36 and 37. …

In my view, the position to-day can admit of no ambiguity:

The District Court has been specifically vested with enlarged jurisdiction to issue injunctions under s.52 in addition to injunctions granted in the exercise of its equitable jurisdiction under ss.37 & 48…”

45.With respect, the above views may not be correct. The learned Judge appears to have proceeded on the assumption that the District Court did not have power to grant injunctions in aid of common law claims – which is unlikely to be true by the time the case was decided in 1976 – see the analysis at §§19-22 above.

46.A further line of cases dealing with the proper interpretation of DCO section 36 (which, incidentally, touches upon the proper scope of section 52) entrenches the 1^st View.

47.The first case is Ma Yu Cheung v Yu Wai Chun (DCMP 268/2001, 22 November 2001).

(a) In that case, the plaintiff bought a property from the 2^nd defendant. However, it was soon realized that the 2^nd defendant double-dealt – it had previously sold the property to the 1^st defendant and the sale and purchase agreement was registered with the Land Registry. Despite so, the deal went ahead – but by 2001, the plaintiff wished to ask for a declaration that it alone is the legal and beneficial owner [§6].

(b) The court then had to decide whether it had jurisdiction to grant the declaration sought. In doing so, the focus was on the proper interpretation of DCO section 36, which deals with “jurisdiction where title in question”. Section 36, cryptically, says that the District Court only has jurisdiction to determine title issues if the matter was “otherwise…within the jurisdiction of the Court”, which begs the question as to whether it was jurisdiction conferring at all.

(c) On the assumption that it was not, the court then looked into the DCO to search for a jurisdiction conferring provision, and in this context, noted the existence of section 52. The following observations were made:-

“23…section 52 which gives the court “jurisdiction” to grant injunctions and “make binding declarations of right” only relates to the type of relief a court may grant in an action which it has jurisdiction to hear, but does not, in my judgment, deal with what type of actions the court may hear.”

(d) It appears, therefore, that the court took the view that section 52 is not a jurisdiction conferring section per se, i.e., the 1^st View.

(e) The court then went on to interpret section 36 remedially, in a way that made it jurisdiction conferring [§§28-29].

48.The second case in this regard is Wong Kum Chi v Lee Tit Ying [2002] 1 HKLRD 420.

(a) The facts are similar – the plaintiff asked the court to vacate the registration of an Instrument of Transfer pending registration in the Land Registry.

(b) The court similarly took the view that the relevant section of the DCO which could confer jurisdiction is section 36 [§§6-7].

(c) While arriving at the opposite conclusion as to the proper interpretation of DCO section 36 as compared with Ma Yu Cheung (the court kept with a literal interpretation of section 36), the court took a similar view insofar as the nature of section 52 is concerned:-

“8. To me, the heading of section 36, which reads as “Jurisdiction where title in question”, is quite misleading. It seems to suggest that the District Court, subject to the monetary limits stated therein, does have jurisdiction to deal with all kinds of action involving title in land. Unfortunately, this is not the case.

9. I have also considered the other provisions in the Ordinance. Section 48 (1) provides that the District Court, in dealing with the cases before it, has the same power as the Court of First Instance to grant relief, redress or remedy, and section 52 extends the jurisdiction of the District Court to grant injunctions and declarations. However, in my judgment, these provisions only provide ancillary jurisdiction to the District Court to make various kinds of order once the jurisdiction to hear a particular case has been established. The wordings of these provisions are not to extend the primary jurisdiction of the District Court, and hence I cannot rely on these provisions to make the order as sought by the plaintiff.”

(d) The court thus also took the 1^st View.

49.The third case is Ng Cho Chu Judy v Chan Wing Hung [2016] 1 HKLRD 1073, a recent case which sought to resolve the competing interpretations of DCO section 36 (as espoused by Ma Yu Cheung and Wong Kum Chi).

(a) In that case, the plaintiff claims that, pursuant to a Deed of Trust, she and the defendant are beneficial joint tenants in a landed property, and seeks a declaration recognizing her beneficial ownership [§4].

(b) The originating summons stated DCO section 52 in its heading; and there is also affidavit evidence that the rateable value of the property fell within the then statutory limit [§43].

(c) The court however disagreed with section 52 being applicable – holding, instead, that section 36 is. In doing so, it cited both Ma Yu Cheung and Wong Kum Chi, and accepted the argument that section 52 “does not operate to confer substantive jurisdiction on the District Court.” [§§48, 61-64] It also took note that, under the then Practice Direction 27, §4, only sections 32 to 39 are regarded as jurisdiction conferring provisions[3].

(d) After a most detailed and learned discussion of the legislative history and the law of statutory interpretation, it then held that the interpretation of section 36 in Ma Yu Cheung was preferrable, and the District Court had jurisdiction thereunder to adjudge pure title cases [§117].

50.The case went on appeal to the Court of Appeal, and the learned Judge’s decision was upheld: see [2017] 4 HKLRD 396. Insofar as section 52 is concerned:

(a) The point concerning section 52 was not seriously argued.

(b) Instead, the only discussion was as follows:

“10. The originating summons referred to section 52 in its heading. The judge held that this provision is concerned only with the type of relief that can be granted and does not operate to confer substantive jurisdiction on the District Court…In this appeal, it was not seriously suggested by either party that section 52 can be relied on to found substantive jurisdiction. I am also in agreement with the judge…

11. The only possible provision in the Ordinance that may be relied on to establish jurisdiction in this instance is section 36…”

(c) As such, the 1^st View is further entrenched into appellate authority.

51.Further cases also show that the courts have proceeded, it seems, on the assumption that unless the monetary limits in section 52 are satisfied, the District Court has no jurisdiction to grant injunctions/declarations (ie, the 2^nd View):-

(a) In Hung Tung Shing v The Incorporated Owners of Kwong Sang Hong Building Block B (DCCJ 3013/2001, 24 April 2002), Deputy Judge Yu presided over a water leakage matter where the plaintiff sought an injunction for the rectification of defective drainage replacement work concerning the external wall of the building. Having cited section 52(1)(c), the court observed as follows:-

“12. The injunction sought by the plaintiffs must affect immovable property…

13. …according to the draft order, work has to be done in Flats 13 H and I, Flat 12 H and I. 4 units of the Building are affected by the injunction sought… The plaintiffs have not produced any evidence on the rateable value of these units. I cannot determine if I have the jurisdiction. With the evidence in front of me, the plaintiff have not satisfied me that I have jurisdiction to give the injunction sought.”

(b) In Lau Chun Wing Rod v IO Po On Building [2006] HKDC 259, DDJ KW Wong (as he then was) made similar observations in yet another water leakage case: see §§124-128.

(c) In Sunbeam Investment Limited v Mannitop Investment Company Limited (DCCJ 1985/2006, 9 August 2007), DDJ Abu B bin Wahab also proceeded on the assumption that injunctive relief in a water leakage case is dependent on satisfying the rateable value limits in section 52(1)(c).

(d) In Chan Siu Cheung Henry v Cheung Wing Keung Peter (DCCJ 1500/2016, 24 August 2017) at §§29-30, DDJ MK Liu (as he then was) appears to have proceeded on the basis that there is only jurisdiction to grant the injunction to remove stall from external wall when it falls within one of the scenarios under s 52(1).

D. Analysis

52.Having set out all of the above, it is apt to turn back to the issue at hand. The ultimate question is simple – whether the District Court’s jurisdiction to grant the typical injunction sought for water leakage cases is limited by the rateable value of the property being affected by the injunction order (ie usually the defendant’s property) as specified in DCO section 52.

53.From a historical and logical perspective, my answer is no (and thus the District Court has jurisdiction regardless of the rateable value of the defendant’s property), based on the following analysis:-

(a) water leakage, if proved, generally triggers contract and/or tort claims sounding in damages falling within DCO section 32;

(b) so long as damages for these claims are within the statutory limits (HK$3,000,000 for now), the court likely has jurisdiction under DCO section 48 to grant ancillary injunctions to mandate the repair to stop the breaches, just as the English Court, almost 150 years ago, was able to grant an injunction to restrain nuisance in Martin, ex p (supra) – cited at §14 above. I say so because:-

(i) in my view, the nature of the repair injunction sought in water leakage scenarios do “serve or assist” the damages claim, and as such, is sufficiently ancillary thereto to fall within section 48: see Kenny v Preen [1963] 1 QB 499 at 514-516; put another way, without the injunction, a ‘full and ample’ remedy to the damages claim would not have been granted: see Maria Luisa Xavier v Jerry Francis Xavier [1976] HKCA 225 at §§4-6 per Pickering JA;

(ii) further, English case law suggests that the term ‘ancillary’ is interpreted liberally – it does not matter that the damages claimed is nominal or small as compared with the impact of the injunction, so long as the claim for damages is genuine: see Kenny v Preen (supra) at pp 513-514 (nominal damages sufficient); Michael v Hallmark Stores Ltd [1975] EWCA Civ J0516-6 at pp 9-11 (jurisdiction does not depend on an evaluation of the impact of injunction as against the damages sought, and determining which is ‘primary’ or ‘ancillary’); Hatt & Co (Bath) Ltd v Pearce [1978] EWCA Civ J0203-4 at pp 9-10 (“…that does not mean that one looks at the size of the claim for damages and determines the matter in that way, or that one has to do any weighing and balancing such as counsel for the defendant suggested in order to decide on this question of jurisdiction.”).

(c) in contradistinction, DCO s 52 is irrelevant; there is no need to rely on such, at least when there is a proper claim sounding in damages and within limit.

54.However, if one were to adopt this reasoning, one has to tackle the fact that such would likely be seen to be incompatible with the authorities cited in Section C above. While the majority of them are of co-ordinate jurisdiction and not strictly binding, they all fall from eminent judges and one would not lightly depart from their reasoning.

55.More importantly, the doctrine of precedent and stare decisis must also be respected, given that Ng Cho Chu Judy hails from the Court of Appeal. When a lower court is faced with a decision from a higher court which is on point, there is no such thing as per incuriam, and stare decisis applies with full force: see Secretary for Justice v Cheng Kam Mun [2015] 5 HKLRD 41 at §§25-30 per Chow J (as he then was). As such, unless it could be said that the above line of reasoning falls outside the ratio decidendi of the Court of Appeal’s decision, the higher court ruling is binding: see Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576 (CFA) at §25.

56.At footnote 11 of Solicitor (24/07), Li CJ described the definition of ratio decidendi as follows:-

“In relation to a case without a jury, Cross and Harris, Precedent in English Law (4th ed., 1991) at p.72 stated: "The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, …". In "The Use and Abuse of Precedent" at p.103, Sir Anthony Mason referred to the ratio as: "the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision, it being recognized that there may be more than one ratio when the court assigns more than one ground for its decision."

57.In the present case, it appears arguable whether or not the ratio in Ng Cho Chu Judy conflicts with the line of reasoning at §53 above.

58.On one view:-

(a) The Court of Appeal did not really need to deal with the issue of the proper interpretation of section 52 at all, as, on appeal, the point was not pressed by either side. While the Court of Appeal endorsed the first instance court’s position, this was not the focus of its analysis.

(b) Further still, even if the Court of Appeal did adopt the first instance court’s position, this was strictly speaking only on the adoption of the 1^st View, which, unlike the 2^nd View, is not in direct conflict with the line of reasoning at §53 above.

59.On another view:-

(a) The rejection of section 52 as a jurisdiction conferring provision is a necessary step towards the Court of Appeal’s decision concerning the proper interpretation of section 36. This is because, if section 52 provided ready jurisdiction, there may not be as much an impetus to, in effect, read section 36 liberally/remedially, as opposed to literally.

(b) While, technically speaking, only the 1^st View was adopted by the Court of Appeal, once one adopts the 1^st View, the 2^nd View quite naturally follows – the common-sense principle against surplusage means that some meaning must normally be given to a provision, and once the 1^st View is adopted, it would be difficult to assign a function to section 52 save for the 2^nd View.

60.As I do not have the benefit of argument before me and given the complexity thereof, I do not think it to be appropriate for me to express any firm view on the matter. I would simply note that it would appear to me that logically speaking, the latter view is more compelling, albeit from a general policy standpoint of allowing an offload of cases from the Court of First Instance to the District Court the former is: see Ng Cho Chu Judy (first instance at District Court) at §113.

E. Conclusion

61.It is hoped that this analysis would go some way towards elucidating the District Court’s jurisdiction for granting injunctions, and in due course, help eliminate the uncertainty that litigants face when choosing the proper court for vindicating their rights and ventilating their complaints.

Mr Paul Wong, instructed by Kevin LH Kwong & Co, for the 1^st and 2^nd plaintiffs

Mr Isaac Yung, instructed by Liu, Chan & Lam, for the 1^st and 2^nd defendants

Annex 1. Legislative History of s 48, s 52 and s 52B(1)