Kazna Investments Ltd v. 朱寶兒 and Another

HCA 1637/2024

[2025] HKCFI 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1637 OF 2024

_______________

_______________

_________________

J U D G M E N T

_________________

Introduction

1.This is an application by the Plaintiff (“P”) under Order 19, rule 7 of the Rules of the High Court (“RHC”) and by way of a Summons dated 5 December 2024 (“Summons”) for default judgment against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”) (collectively, “the Defendants”). A hearing was held on 19 December 2024 with the Defendants failing to appear and Judgment reserved. This is the Court’s Judgment.

P’s pleaded case

2.P commenced this action by issuing a Writ of Summons endorsed with a Statement of Claim (“the SoC”) on 16 August 2024, whereby it seeks, inter alia, to recover vacant possession of the part of Lot No. 129 as identified in orange (“the Orange Area”) in the plan annexed to the SoC (“the Plan”), and to apply for injunctions against the Defendants.

3.In the SoC, P pleaded the following facts.

4.P is and was at material times a limited company in Hong Kong under the Edward Wong Group, and is and was the sole registered legal and beneficial owner of Lot No. 129 (“the Lot”) and Lot Nos. 118, 119, 120, 121RP, 122RP, 123RP, 124 and 125 in Demarcation District No. 83 (“the Other Lots”), North New Territories, Hong Kong.

5.The Defendants are and were the occupiers of the Orange Area.

6.In early March 2024, a Mr. Tom Tang (“Mr. Tang”) of P visited the Orange Area to assert P’s title and invited D1 and D2 to enter into a written tenancy agreement with P in respect of the Orange Area. D1 informed Mr. Tang that she and the other occupiers of the Orange Area (i.e. D2) were all members of the Che family, and she had authority to act on behalf of D2 in all matters relating to the Orange Area.

7.From that time onwards, P and D1 (acting on behalf of herself and D2) had been negotiating the terms of a written tenancy agreement in respect of the Orange Area and the negotiations continued until around June 2024.

8.On about 9 March 2024, D1 informed P that in the 1980s, P had (through a Mr. Wong of the Edward Wong Group) granted permission to the Che family (through D1’s father) to use and occupy the Orange Area rent-free. D1 asked P for the arrangement to be maintained and reassured P that she and D2 did not have any intention to possess the Orange Area to the exclusion of P. However, P refused to permit D1 and D2 to use the Orange Area rent-free indefinitely and insisted that they should enter into a written tenancy agreement in respect of the Orange Area.

9.On 27 March 2024, Mr. Tang of P sent a draft written tenancy agreement to D1. P proposed that the tenancy should be for 3 years with an option to renew for another 3 years. On 3 April 2024, in the course of negotiations, D1 complained to Mr. Tang that P was “going back on” the permission previously granted to the Che family to use the Orange Area. On 8 April 2024, D1 informed Mr. Tang of the joint comments of hers and D2’s on the draft tenancy agreement and counter-proposed, amongst others, that the tenancy should be for 10 years, with an option to renew for another 10 years. That was not accepted by P.

10.In or around April 2024, D1 and D2 placed a shipping container in the Orange Area without having first obtained permission from P. On 18 April 2024, D1 asked Mr. Tang for P’s permission to do so and that was refused by P. D1 and D2 then removed the shipping container from the Orange Area.

11.By the end of May 2024, the parties were still unable to reach consensus on the terms of the written tenancy agreement, in particular the rental period. There were also disputes as to the boundary between the Lot and Lot No. 130 in Demarcation District No. 83, which was occupied by the Defendants.

12.On 11 June 2024, P engaged contractors to install a gate and fences along the footpath in the Lot as identified in yellow in the Plan (“the Footpath”) leading to the part of the Lot as identified in green in the Plan (“the Green Area”) pursuant to the agreement between P and the occupiers of the Green Area. Upon learning about this, D1 attended the scene to protest and obstructed the contractors from carrying out the installation work, notwithstanding that neither she nor D2 had any legal right to do so. As a result, Mr. Tang reported the incident to the police, who attended the scene and classified it as a land dispute. To date, P has not installed the gate and fences along the Footpath.

13.On the same day after the police investigations, Mr. Tang informed D1 that P had decided to withdraw any offer it had previously made to her and D2 in respect of the written tenancy agreement.

14.On 26 July 2024, P via its solicitors issued a demand letter to D1 and D2 respectively, revoking all permission or consent previously granted to them to use and occupy the Orange Area and demanded them to deliver vacant possession of the Orange Area and demolish and remove the structures or objects thereon within 7 days. The Defendants refused and failed to do so by 2 August 2024 and continued to use and occupy the Orange Area without P’s permission or consent.

15.It is thus pleaded in the SoC that P is entitled to and do claim an order for delivery of vacant possession of the Orange Area and for D1 and D2 to demolish and remove all structures and objects thereon, including but not limited to fences and temporary structures, at their own expenses.

Service of these proceedings

16.P commenced this action on 16 August 2024 to recover vacant possession of the Orange Area and seek injunctions against the Defendants.

17.According to an affirmation of Ng Wing Ho filed with the Court on 10 September 2024, P served a copy of the Writ of Summons endorsed with the SoC on D1 on 23 August 2024 by affixing a copy on the grey metal gate (“the Grey Gate”) at the entrance to the Orange Area and the Footpath. When the copy of the SoC was being affixed, D1 came out from the blue metal gate (“the Blue Gate”) on which a metal plate written with the words “軍地北村258” was affixed but she refused to accept service of the copy of the SoC. The Blue Gate was right next to the Grey Gate. A copy of the SoC was then affixed on a gate of one of the fences along the Footpath next to the Orange Area. Another copy was also inserted into the letter box affixed on the Blue Gate from which D1 had earlier been seen coming out. Each of the afore-mentioned copies of the SoC was accompanied by a set of prescribed forms of Acknowledgment of Service. It was affirmed that in P’s opinion, the Writ of Summons would have come to D1’s knowledge within seven days of its insertion in the said letter box.

18.On 19 September 2024, P obtained an Order from Master Matthew Leung for substituted service on D2 (“the Master’s Order”).

19.According to a second affirmation of Ng Wing Ho filed with the Court on 1 November 2024, pursuant to the Master’s Order, on 14 October 2024, P served on D2 a copy of the Writ of Summons endorsed with the SoC (and accompanied by a set of prescribed forms of Acknowledgment of Service) and a sealed copy of the Master’s Order by affixing them (1) on the Grey Gate, and (2) on the gate of one of the fences along the Footpath (“the Footpath Gate”); and on 22 October 2024, P also served the same on D2 by inserting an advertisement of a Chinese notice of these proceedings once in Sing Tao Daily, a local Chinese newspaper published and circulating in Hong Kong. Service of the Writ of Summons was thereby deemed to have been effected on D1 and D2 respectively on the day of such affixation or advertisement.

20.D1 and D2 failed to file their Acknowledgement of Service or any defence.

21.On 5 December 2024, P took out the Summons for default judgment against D1 and D2.

22.Although Order 65 rule 9 of the RHC dispenses with service of a summons on persons in default as to acknowledgment of service, P served the Summons on D1 and D2 nonetheless.[1]

23.Neither D1 nor D2 attended the hearing of the Summons on 19 December 2024.

Legal principles on granting default judgment and reliefs for repossession

24.It is trite that the Court’s power to grant a default judgment under Order 19 rule 7 of the RHC is discretionary and the Court has to consider the plaintiff’s case according to the pleadings. While the plaintiff must show a case for the order which he seeks to obtain, it is not necessary for him to prove his case by evidence.

25.In Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85, Au J (as he then was) gave the following guidance (at §38):-

“(1) A person in possession of the land can bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both. The plaintiff is the registered owner of the Property and has the necessary locus standi to bring the present action.

…

(3) The injunction (permanent or interlocutory) will be prima facie granted and will be denied only if special circumstances exist (which may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to land is small and the grant of an injunction would cause disproportionate hardship to the defendant).

(4) However, damage suffered is not a prerequisite to the grant of an injunction in such a case, nor is the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished.”

26.The court has power to grant an injunction against a defendant described not by name but by reference to his conduct provided that the description is sufficiently certain to identify only those who are necessarily included and exclude those who are not: see Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85 at §54.

27.The court may order reliefs in favour of the rightful owner including an order for delivery of vacant possession of the subject property and an injunction against the trespassers: see Woo Sai Mui v Lam Island Development Co. Ltd. [2022] HKCFI 39 at §59.[2]

Discussion

28.According to P’s pleaded case, P was and remains to be the sole registered legal and beneficial owner of the Lot, whereas the Defendants were and are the occupiers of the Orange Area in the Lot.

29.From early March 2024, negotiations were held between the parties for a tenancy agreement to be entered into in respect of the Orange Area but failed. During that time, D1 had asked P for permission to place a shipping container in the Orange Area but it was refused by P, asserting its rights as the owner of the Lot.

30.On 11 June 2024, P engaged contractors to install a gate and fences along the Footpath in the Lot but D1 protested and obstructed the work, which led to the matter being reported to the police. Despite demand by P via its lawyers requiring the Defendants to deliver vacant possession of the Orange Area and to demolish and remove the structures or objects thereon, the Defendants failed to do and have continued to use and occupy the Orange Area without P’s permission or consent.

31.Following P’s demand, the Defendants had (and have) no justifications to use and occupy the Orange Area and they remained (and have remained) in the Orange Area as trespassers.

32.I am satisfied that P has demonstrated by its pleadings a case for the orders which it seeks to obtain as the rightful owner of the Lot.

Judgment

33.For the above reasons, I enter Judgment in favour of the Plaintiff and, in the specific circumstances of the present case, grant the following orders as per reliefs (1), (4), (5), (8) and (9) as set out in the prayer[3] of the Plaintiff’s Statement of Claim dated 16 August 2024 (“the SoC”):-

(1)  An order against the 1^st and 2^nd Defendants for delivery of vacant possession of the part of Lot No. 129 in Demarcation District No. 83, North New Territories, Hong Kong (“the Lot”) as identified in orange (“the Orange Area”) in the plan annexed to the SoC (“the Plan”) within 2 months from the date of this order;

(2)  An injunction restraining the 1^st and 2^nd Defendants, whether by themselves, their tenants, licensees, employees, servants or agents whosoever and howsoever, from entering into or placing any objects, structures, or goods on or trespassing the Lot or any part thereof, including the Orange Area and the footpath in the Lot as identified in yellow in the Plan (“the Footpath”);

(3)  An injunction restraining the 1^st Defendant, whether by herself, her tenants, licensees, employees, servants or agents whosoever and howsoever, from preventing, hindering or otherwise interfering with the Plaintiff’s use and occupation of the Lot, including but not limited to the Plaintiff’s installation of a gate and fences along the Footpath leading to the part of the Lot as identified in green in the Plan;

(4)  There be liberty to apply for further directions; and

(5)  Costs of the action, including the costs of and occasioned by the Summons filed herein on 5 December 2024, be to the Plaintiff with certificate for counsel, to be taxed if not agreed.

34.Lastly, I thank counsel for his assistance.

Mr. Cyrus Lau, instructed by K.B. Chau & Co., for the Plaintiff

The 1^st and 2^nd Defendants acting in person and absent