Tang Kwok Pong v. Tang Lun Kok Tso With Tang Chuen-fat Alias Tang Chun-fat, Tang Tak-wai Alias Tang Yut-kwong, Tang Chun-shu and Tang Sun-yip As Managers and Others

DCCJ 6519/2024

[2025] HKDC 1402

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6519 OF 2024

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DECISION

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Introduction

1.The plaintiff took out a summons filed on 5 November 2024 (“the summons”) for an interlocutory injunction retraining the defendants from blocking the subject way as coloured orange and cross-hatched black in the plan annexed to the summons (“the subject way”) which is on part of the 1^st defendant’s land known as Lot 150 in Demarcation District No 127, Ping Shan, New Territories (“D1’s land”).

2.At the hearing on 8 November 2024, upon the undertaking by the 1^st and 2^nd defendants not to restrict, prevent, obstruct or otherwise interfere with the pedestrian and vehicular access of the subject way by the plaintiff, his family, servants and agents pending determination of the summons, Her Honour Judge G Chow granted an interim-interim injunction against the 3^rd defendant and gave directions for substantive argument of the summons.

Legal principles on grant of interlocutory injunction

3.The essential principles concerning the grant of an interlocutory injunction have been set out in the leading English authority of American Cyanamid Co v Ethicon Ltd [1975] AC 396. The House of Lords held that the requirements were first “that there is a serious question to be tried” and second “that the balance of convenience lies in favour of granting an injunction”: see Hong Kong Civil Procedure 2025 Vol 1 at 29/1/8.

4.Deputy High Court Judge Keith Yeung SC (as he then was) in Interactive Media Network (China) Holdings Ltd v Just Media Group Limited and others [2018] HKCFI 1114 has helpfully highlighted the guiding principles:

“28. The following guiding principles explained by Lord Diplock at page 408 of American Cyanamid are also relevant:

“… So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

As to that, the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.””

Serious question to be tried

5.The plaintiff’s claim is the right of way over D1’s land which forms part of the access road between the plaintiff’s land (ie Lot Nos 32, Sections A and B of Fung Uk Tsun Lot No 33 in Demarcation District No 127) and the nearest public road (ie Kiu Hung Road). It is the plaintiff’s case that the plaintiff’s predecessors-in-title and the plaintiff have been exercising the right of way over and along the said access road for more than 20 years. In other words and as confirmed by Miss Vivian Chan, counsel for the plaintiff, the plaintiff’s claim is premised on prescription based on the fiction of lost modern grant, which is the only way right of way and other easements may be acquired by prescription in Hong Kong: see China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at 360C-E.

6.Mr Jonathan Tai, counsel for the 1^st and 2^nd defendants, tackled this question in an oblique way. Rather than arguing that there is no serious issue to be tried, Mr Tai submitted that the plaintiff has failed to show a high degree of assurance that he will succeed at the trial.

7.Mr Tai submitted that the land where the subject way is located has been continuously leased out to different tenants under successive tenancies, each of less than 4 years’ duration. Hence, if the supposed grant is presumed to have been made by the previous tenants, any right granted would expire with the term of that tenant’s lease. If the supposed grant is presumed to have been made by the 2^nd defendant during his current tenancy from 2023 to 2026, there would not be a 20 years’ continuous user by the plaintiff. Further or alternatively, Mr Tai submitted that there is no evidence the 1^st defendant was aware of the plaintiff’s use of the subject way and that the 1^st defendant was in a position to prevent the plaintiff’s use of the subject way.

8.Ma J (as he then was) in Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 at paras 11-12 explained the court’s approach in dealing with interlocutory mandatory injunction and prohibitory injunction:

“11. The applicable principles for interlocutory injunctions are well-known and do not need repetition. Generally, one needs to look no further than American Cyanamid v Ethicon Ltd [1975] AC 396 and the relevant text in Hong Kong Civil Procedure 2002 Volume 1 at paragraphs 29/1/8-29/1/50.

12. I would, however, only highlight one aspect. Where, as in the present case, the plaintiffs seek an interlocutory mandatory injunction (that is, an order requiring the defendant to do something, in contrast to a prohibitory injunction which restrains the defendant from doing something), the following matters should be borne in mind as being the court’s approach:-

(a) In the case of interlocutory mandatory injunctions, it is often said or assumed that a court will not grant one unless it feels a high degree of assurance that at the trial of the action, it will be shown that the injunction was rightly granted: see Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351. This has been explained and sometimes understood as meaning that in the case of an interlocutory mandatory injunction, the applicant’s case on the merits has to be made out to a higher standard of proof than in the case of prohibitory injunction: see the Court of Appeal’s observations in TKI Limited v New Happy Limited [1995] 1 HKC 551 at 554 B‑D.

(b) Broad statements such as the above must, however, be properly put in context.

(c) The basic approach to interlocutory injunctions, whether mandatory or prohibitory, is the same. Section 21L of the High Court Ordinance, Chapter 4 makes no distinction between these two types of injunctions and simply states that interlocutory injunctions may be granted if it appears to be just or convenient to do so.

(d) At the interlocutory injunction stage, the principal concern of the court is that it might make a wrong decision in the sense that after trial, the party to whom an interlocutory injunction has been granted may lose or the party who has been refused one, may win. The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong. This “fundamental” principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions (included are, of course, the American Cyanamid guidelines) and therefore, in the application of any guidelines, sight must not be lost of this principle. See here: Films Rover International Ltd v Cannon Films Sales Ltd [1987] 1 WLR 670 at 680 D‑G, in a passage from the judgment of Hoffman J which was approved by the House of Lords in R v Secretary of State for Transport ex parte Factortame Limited (No 2) [1991] 1 AC 603 and recently reiterated in the English Court of Appeal decision of Zockoll Group Ltd v Mercury Communications Ltd [1998] FSR 354 (which Mr Au was kind enough to place before me).

(e) Two common guidelines are of course the consideration of the merits of the plaintiffs’ claim and the balance of convenience. Here, it is of course easy to see at once how they are linked to the fundamental principle: there must be a risk of injustice if the plaintiff cannot even establish a serious question to be tried or that one or the other party will be put to substantial inconvenience or prejudice if an interlocutory injunction were or were not granted.

(f) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute. In Films Rover International Limited, it was put thus by Hoffman J at 681 B‑E:

“In Shepherd Homes Ltd v Sandham, Megarry J spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage: they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.”

(g) This passage in my view explains just why it is that generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case: see sub‑paragraph (1) above. However, I emphasize that this is only generally the court’s approach. Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel the “high degree of assurance” as aforesaid, it would be right to grant an interlocutory mandatory injunction: see Films Rover International Limited at 681 A‑B.

(h) This of course brings into focus the balance of convenience. Thus, if a plaintiff in seeking an interlocutory mandatory injunction cannot demonstrate more than a serious question to be tried, it will have to show that the balance of convenience tilts so much in its favour that justice requires such an injunction to be granted, even taking into account those aspects of an interlocutory mandatory injunction expressed by Hoffman J in Films Rover International Limited.

(i) At no stage, however, in the consideration of the matter does the court lose sight of the practical realities of the situation to which the injunction will apply: see NWL Limited v Woods [1979] 1 WLR 1294 at 1306C per Lord Diplock.”

9.Given that the plaintiff is seeking an interlocutory prohibitory injunction, the court needs not be satisfied that the plaintiff has demonstrated a high degree of assurance of success at the trial. Suffice it to say, the issues raised by Mr Tai are matters for trial.

10.Mr Tai also submitted that the plaintiff’s allegation that his application is not made for the benefit of the adjoining lots and the plaintiff’s warehouse is contradicted by the plaintiff’s own evidence that the plaintiff’s family has been using the subject way to access the adjoining lots and the plaintiff’s warehouse nearby. The easement the plaintiff is claiming effectively allows the plaintiff’s vehicles to pass through the subject way reaching the plaintiff’s warehouse.

11.With due respect, Mr Tai is verging on a wild guess. There is nothing to suggest that the plaintiff is not meaning his words. In any event, such issue, if duly raised, can only be explored at the trial.

12.I am satisfied that there is serious question to be tried.

Adequacy of damages as a remedy

13.The second question for consideration is the adequacy of damages as a remedy.

14.As to that, I should first consider whether, if the plaintiff succeeds at the trial, he would be adequately compensated by damages for any loss caused by the refusal to grant an interlocutory injunction.

15.Mr Tai developed his argument along this line.

16.First, Mr Tai submitted that the 2^nd defendant would allow the plaintiff’s cars to pass through the subject way for a fee of $500 per month for each of the plaintiff’s 7 cars. Assuming a period of 18 months to trial, a total of passage fees amount to $63,000 (ie $500 x 7 (cars) x 18 (months)). In the event that the plaintiff succeeds after trial, the 2^nd defendant is financially able to repay the same to the plaintiff. Mr Tai prayed in aid Kan Sui Yau and others v Wong Tin Lung and others [2020] HKCFI 94 and Chan Loi Sun and others v Chan Yuet (or Yut) Wo Tso with Chan Kam Wai as Manager & Anor [2025] HKDC 263.

17.Further, Mr Tai submitted that even if the passage fees are disregarded, the plaintiff cannot show that he will suffer any irreparable harm if the injunction is refused. Mr Tai premised his argument on the existence of alternative footpaths and vehicular access routes as suggested by the 2^nd defendant in his affirmation. Mr Tai further submitted that the alleged irreparable harm arising from the plaintiff’s inability to have his vehicles stopped in front of his house is entirely self-induced because it was the plaintiff’s sister/aunt and his associate Mr Lee who blocked the alternative path at Lot 108 by metal chain and concrete blocks.

18.With respect, the suggestion of passage fee is no answer to the question under consideration.

19.The so-called passage fee is an unilateral invention of the 2^nd defendant, which, even if agreed upon by the plaintiff, is to be paid to the 2^nd defendant for his benefit. By any stretch of imagination, it cannot be understood as damages to the plaintiff. Therefore, to say that the plaintiff would be sufficiently compensated by the so-called passage fee if he succeeds after trial (but interlocutory injunction was refused) simply defies logic. After all, the plaintiff is not entitled to receive money arising out of the use of the subject way. It can hardly be said that deprivation of the use of the subject way can be compensated by payment of money he is not entitled to.

20.Further than that, the plaintiff’s claim is the relief of right of way. If the plaintiff succeeds at the end of the day, the loss of use of the subject way in the interim can hardly be quantified and compensated. This is particularly so because the plaintiff’s parents are of old age with relatively weaker ability to walk and his mother is having heart and liver conditions. Deprivation of the use of the subject way may pose a threat to their health and cause them less accessible to medical help, be it emergency or otherwise.

21.I am in disagreement with Mr Tai’s argument that the alternative routes suggested by the 2^nd defendant would render the plaintiff unharmed if interlocutory injunction is refused.

22.On the face of it, those routes are by comparison with the subject way longer and less convenient. They are also leading to different destinations. It cannot be said that the plaintiff would suffer no damage if he is forced to use those alternative routes.

23.Secondly, it is only presumed by the 2^nd defendant that anyone can use those routes without the interruption of the owners of the land along the routes. There is no guarantee that the incident as happened in the present case would not recur.

24.In respect of the 2 cases Mr Tai relied on, Kan Sui Yau was decided on the footing that the plaintiffs were willing to pay the passage fees which is lacking here. In Chan Loi Sun, it was decided that there was no serious question to be tried and on the assumption that the plaintiffs were willing to pay the annual licence fees. They are therefore distinguishable.

25.The 2^nd defendant’s suggestion of passage fee, in my view, is valid for consideration of the 2^nd question, ie if the injunction were granted and the 2^nd defendant succeeds at the trial, whether he would be adequately compensated under the plaintiff’s undertaking as to damages. The monthly passage fee of $500 per month per vehicle is the monetary gain that the 2^nd defendant has in mind in the event that he is entitled to block the subject way. He should therefore be adequately compensated by the money so calculated in the event that he turns out to be the winner.

26.The plaintiff is the registered owner of the plaintiff’s land. I have no doubt that he is financially capable of honouring the undertaking as to damages which he is prepared to give.

Balance of convenience

27.Given my decision above, there is no need to consider the balance of convenience.

28.Under this head, Mr Tai submitted that if interlocutory injunction is granted, it would be equivalent to making a provisional order declaring that Lot 150 is subject to the right of way claimed by the plaintiff. It would affect the resumption price. The 2^nd defendant would lose exclusive control over the access route and thus would affect the value and attractiveness of the leased lots of Lot 150. It would also impede the 2^nd defendant’s ability to manage and develop the property. The 2^nd defendant would face significant risks of unauthorized use and overuse.

29.Indeed, those are factors to be considered but they are not the only factors. In all fairness, they must be considered in conjunction with factors from the plaintiff’s perspective in order to determine where the balance lies.

Conclusion and Order

30.I am driven to the conclusion that the plaintiff is entitled to an interlocutory injunction until trial. I am of the view that the width of the subject way of 4.5 metres is reasonable and not excessive.

31.Accordingly, I make an Order in terms of paragraph 1 of the summons with the insertion of “4.5 metres” before the word “width” in line 9.

Costs

32.The plaintiff asked for the costs of this application be costs in the cause with certificate for counsel. I so order.

Ms Vivian Chan, instructed by KWC & Associates, for the plaintiff

Mr Jonathan Tai, instructed by Cheng & Kwan Lawyers, for the 1^st and 2^nd defendants

The 3^rd defendant was not represented and did not appear