Goldrise Investment Ltd v. Mak Wai Kwan Antonio
Read the full judgment text of DCCJ 3650/2025 on BabelCite. This District Court judgment was delivered on 7 January 2026.
1. By summons filed on 28 October 2025 pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court (Cap.336H, sub leg.) (“ RDC ”), the Plaintiff seeks final judgment be entered against the Defendant in the following terms:-
Cited by 1 case · Cites 5 cases
|
DCCJ 3650/2025 [2026] HKDC 18 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3650 OF 2025 ------------------------------ BETWEEN
------------------------------
------------------------------ JUDGMENT ------------------------------ Introduction 1.By summons filed on 28 October 2025 pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court (Cap.336H, sub leg.) (“RDC”), the Plaintiff seeks final judgment be entered against the Defendant in the following terms:-
2.Shortly before the hearing, by the 2nd Affirmation of Leung Yiu Hang Wilkin, senior property officer, filed on 19 December 2025, the Plaintiff confirmed that on 30 November 2025, the Defendant had via his agent(s) or servant(s) surrendered possession of Stall No. 20A, and therefore the Plaintiff shall abandon its claim for injunction and possession against Stall No. 20A. Such stance was confirmed by Ms Sharon Ng, Counsel for the Plaintiff, at the hearing. 3.The Defendant acted in person but was absent at the hearing. As Counsel’s submissions and the authorities are in English, this judgment is written in English. If in need, the Defendant may request oral interpretation of this judgment by a court interpreter. Plaintiff’s Pleaded Case 4.The Plaintiff was and is a tenant of the Ground Floor of Kwai Chung Shopping Centre, Kwai Chung Estate (“the Market”), and is also engaged in the business as operator of wet markets under the Housing Authority. The Plaintiff grants licences to licensees for their non-exclusive use of the various stalls of the Market. Areas outside the stalls including passageways are common areas available for public use. 5.The Defendant is a Hong Kong resident. 6.On 31 January 2024, the Plaintiff entered into a licence agreement with the Defendant for the use of Stall No. 34 (“the Licence Agreement”). Under the Licence Agreement, the Plaintiff as licensor granted the Defendant the licence to use Stall No. 34 of the Market at a monthly licence fee of HK$18,500 for the period between 27 February 2024 and 31 October 2026. 7.The Plaintiff relies on Clauses 1, 3(i), 4, 25, 30, 31 and Part 4 (Special Issue) of, and Schedule 3 and Appendix 4 to the Licence Agreement. For the purpose of this application, salient parts of the said parts, translated into English, are:-
8.The Code of Practice has been in circulation among and made known to all stall operators of the Market at all material times. By signing the written declaration attached to Appendix 4 of the Licence Agreement, the Defendant confirmed his agreement to abide by the said Code of Practice. 9.The Defendant had paid to the Plaintiff a sum of HK$26,691.00 being the 2-month security deposit pursuant to the Licence Agreement, and HK$18,500.00 being the first month’s licence fee of Stall No. 34 for the period from 1 March 2024 to 31 March 2024. 10.Separately, in or about late August, the Plaintiff entered into an oral periodic licence agreement with the Defendant, under which the Plaintiff as the licensor granted the Defendant the licence to use Stall No. 20A of the Market at a monthly licence fee of HK$3,000 (“the Oral Licence Agreement”). 11.The Oral Licence Agreement contains, inter alia, the following provisions, whether expressly stated or inferred from the conduct of the parties:-
12.On 27 February 2024, in performance of the Licence Agreement, the Plaintiff delivered possession of Stall No.34 to the Defendant. 13.On 1 September 2024, in performance of the Oral Licence Agreement, the Plaintiff delivered possession of Stall No.20A to the Defendant. 14.Since June 2024 until the date of this writ, the Defendant by himself, his servants and agents, has on many occasions trespassed upon “the passageway outside stalls 33B, 34, 20A, 35 and 19 and loading bay of the Market (“the Trespassed Areas”) and loading bay of the Market” (quoting verbatim from paragraph 15 of the Statement of Claim) by placing his goods and chattels, which were stacked above human height and blocked a significant portion of the passageway, in those areas overnight and throughout the business hours of the Market (“the Trespassing Acts”). The Plaintiff annexed a plan with the Trespassed Areas hatched black, and the same plan can be found at the Annex to this Judgment. 15.Moreover, since June 2024 until the date of this writ, in breach of the Licence Agreement and the Oral Licence Agreement, the Defendant, by himself, his servant and/or agents, has on many occasions used electric pallet trucks inside the Market. 16.Despite repeated requests from the Plaintiff not to place his goods and chattels in “the Trespassed Areas and the loading bay” (quoting verbatim from paragraph 17 of the Statement of Claim) for extended periods and to refrain from using electric pallet trucks inside the Market, the Defendant has continued to do so. 17.By reason of the pleaded matters, the Defendant is wrongfully in breach of the relevant provisions of the Licence Agreement and the Oral Licence Agreement and has committed the common law tort of trespass. According to the Plaintiff, the significant reduction in width of the passageways and the usable areas of the loading bay, as well as the unauthorised use of electric pallet trucks inside the Market, severely impacted the right to use the passageways by other licensees and visitors, resulting in breaches or potential breaches of licence agreements on the part of the Plaintiff, and interfered with the Plaintiff’s obligations to other licensees and to the Housing Authority under its tenancy. In addition, the Plaintiff had difficulties in licensing the vacant stalls, particularly Stall Nos. 19 and 35, due to the unpleasant appearance and the obstruction which deterred prospective licensees. 18.Further, the Plaintiff has also suffered inconvenience, discomfort and disturbance during the period from June 2024 until present, and hence loss and damage due to the said breaches of the Licence Agreement and Oral Licence Agreement and/or nuisance committed on the part of the Defendant. According to the Plaintiff, the Trespassing Acts obstructed and continues to obstruct the Plaintiff, other licensees and visitors in the exercise or enjoyment of any right of use of the Trespassed Areas. The obstruction of the right to use “the Trespassed Areas and the loading bay” (quoting verbatim from paragraph 20(2) of the Statement of Claim) has created a potentially hazardous environment to the Plaintiff, other licensees and visitors, resulting in breaches or potential breaches of the Plaintiff’s other licence agreements and its tenancy agreement with Housing Authority. The Plaintiff has spent enormous time and effort to deal with the Defendant for the purpose of trying to resolve the Trespassing Acts and to handle complaints from other licensees or visitors related to the Trespassing Acts and the use of the Trespassed Areas. 19.The Plaintiff claims damages to be assessed. 20.By letter dated 30 October 2024 from its former solicitors, the Plaintiff, inter alia, demanded the Defendant to remove the goods and chattels in the Trespassed Areas and not to use electric pallet trucks within 3 days. 21.The Defendant continued with his Trespassing Acts, and further failed to pay the licence fees in arrears for both Stall Nos. 34 and 20A in November to December 2024. Thus, on 17 December 2024, the Plaintiff instructed its former solicitors to issue a letter, demanding the arrears of licence fees and repeating the demand for the removal of the goods and chattels in the Trespassed Areas and not to use electric pallet trucks. In the said letter, the Plaintiff accepted the Defendant’s repudiation of the Licence Agreement and the Oral Licence Agreement under Clause 30(a) and 30(d) of the Licence Agreement, and the Licence Agreement was terminated with immediate effect, and the Defendant shall deliver up vacant possession of Stall Nos. 34 and 20A within 2 days and remove all goods and chattels therein. 22.Shortly after the said letter, the Defendant settled the outstanding licence fees for November and December 2024 and undertook that placement of goods in the Trespassed Areas and the use of electric pallet trucks would cease. In reliance on the Defendant’s remedial actions and undertaking, the Plaintiff retracted its acceptance of the repudiation and reinstated the Licence Agreement and the Oral Licence Agreement. 23.In January 2025, the Defendant fell into arrears of licence fees for both Stall Nos. 34 and 20A, and continued to place goods and chattels at “the Trespassed Areas and the loading bay” (quoting verbatim from paragraph 31 of the Statement of Claim). On 26 March 2025, the Plaintiff instructed its former solicitors to issue another letter to the Defendant, the contents of which were similar to those in the said letter issued on 17 December 2024. 24.Shortly after the said letter, the Defendant settled the outstanding licence fees for January to March 2025 and undertook that placement of goods in the Trespassed Areas and the use of electric pallet trucks would cease. Accordingly, once again, in reliance on the Defendant’s remedial actions and undertaking, the Plaintiff retracted its acceptance of the repudiation and reinstated the Licence Agreement and the Oral Licence Agreement. 25.In April 2025 and May 2025, in breach of the Licence Agreement and the Oral Licence Agreement, the Defendant settled the licence fees of both Stall Nos. 34 and 20A for the month of April 2025 and May 2025 beyond the stipulated timeline. On 13 June 2025, the Plaintiff instructed its former solicitors to issue yet another letter to the Defendant, stating that:-
26.On 16 June 2025, the Defendant through his former solicitors issued a letter seeking time extension of 14 days for surrendering vacant possession of Stall No.34. On 19 June 2025, the Defendant through his former solicitors sent a letter to the Plaintiff, denying the breach of the Licence Agreement and seeking particulars. 27.On 19 June 2025 at around 1800 hours, Mr James Leung, director of the Plaintiff, together with various employees and agents of the Plaintiff, visited Stall No. 34 to recover possession, but the Defendant through his then Counsel and a representative of his former solicitors refused to allow the Plaintiff entry into Stall No.34, and informed Mr Leung that the Plaintiff shall not recover possession in the absence of a Court order. 28.By way of Statement of Claim, the Plaintiff accepted the Defendant’s repudiation of the Oral Licence Agreement. 29.Up to the date of the Statement of Claim, the Defendant has failed and/or refused to return possession of Stall Nos. 34 and 20A to the Plaintiff. 30.Accordingly, given the previous conduct of the Defendant, unless ordered and/or restrained by this Court, the Defendant will continue to commit the Trespassing Acts and the aforesaid breaches of the Licence Agreement and the Oral Licence Agreement, and refuse to deliver possession of Stall Nos. 34 and 20A, whereby the Plaintiff would continue to suffer further irreparable and irremediable harm. Service of Writ of Summons and Statement of Claim 31.According to the Affirmation of Service filed on 3 July 2025, a sealed copy of the Writ of Summons and a copy Statement of Claim were served on the Defendant on 30 June 2025 by insertion through letter box in a sealed envelope properly addressed to the Defendant at his last known address in Sheung Wan, and in the Plaintiff’s opinion the said documents would have come to the Defendant’s knowledge within 7 days after insertion into the letter box. 32.This Court is satisfied that the Writ of Summons and the Statement of Claim were duly served on the Defendant. 33.The Defendant did not file any notice of intention to defend or any Defence. Procedural History 34.By an inter partes summons filed on 30 June 2025, the Plaintiff sought:-
35.At the hearing on 4 July 2025, Deputy District Judge B. Mak refused to grant an interim-interim injunction and gave directions to parties to file affidavit evidence. 36.On 29 August 2025, the Plaintiff filed a summons for summary judgment. 37.At the hearing on 29 August 2025, His Honour granted an interlocutory injunction (“Injunction Order”) until further trial or further order, but refused to grant any declaratory reliefs. Meanwhile, Ms Ng accepted that the summary judgment application was pre-mature as the Defendant had not yet given notice of his intention to contest. His Honour gave leave to the Plaintiff to withdraw the said summons with no order as to costs. His Honour’s reasoning was set out in the decision [2025] HKDC 1589. Service of Present Summons, Hearing Bundle, Skeleton Argument and List of Authorities 38.This Court is also satisfied that the summons of the present application was duly served on the Defendant. However, Ms Ng acknowledged that the Hearing Bundle, the Plaintiff’s Skeleton Argument and the Plaintiff’s List of Authorities were not served on the Defendant, relying on Order 65 rule 9 RDC and Part B of Practice Direction 5.4. I disagree. First, the service of hearing bundle, skeleton argument and list of authorities is governed by Practice Direction 5.4 but not Order 65 rule 9 RDC. In any event, as the Plaintiff’s case contains “other claims” within the meaning of Order 13 rule 6 RDC, sub-rule (1) thereof provides that the Plaintiff has to proceed with the action as if the Defendant had given notice of intention to defend, and therefore Order 65 rule 9 RDC is inapplicable. Secondly, Part B of Practice Direction 5.4 governs the service of skeleton argument and list of authorities for contested interlocutory summonses listed for less than 30 minutes for argument before a judge, which clearly applies to the present application. Indeed, I questioned why the Plaintiff had seen fit to lodge Skeleton Argument and List of Authorities but not to serve the same on the Defendant, but Ms Ng could not give me an answer. 39.In fact, this Court received the electronic copy of the Plaintiff’s Skeleton Argument and List of Authorities on 22 December 2025, and hard copy of the same on 23 December 2025. The Skeleton Argument, while addressed to this Court for the hearing on 24 December 2025, was dated 22 August 2025, and Ms Ng made submissions on interlocutory injunctions and interim payment under Order 14 summons. This Court surmised that the Plaintiff’s Counsel had simply recycled parts of her skeleton argument prepared for the hearing for interlocutory injunctions on 29 August 2025 to be used at this hearing. 40.In the morning of but shortly before the hearing, both Ms Ng and the Plaintiff’s solicitors informed the Court that there had been mistakes made in the Skeleton Argument and requested the Court to delay the commencement of the hearing so that the proper Skeleton Argument could be lodged. I declined to accede to the request. Both Counsel and solicitors for the Plaintiff had the duty to ensure that proper Skeleton Argument and List of Authorities were lodged and served. The Defendant, though acting in person, had the same right to be afforded reasonable opportunity to consider the Plaintiff’s written submissions and authorities. The Defendant would be deprived of the opportunity to consider the so-called revised or updated Skeleton Argument and List of Authorities. In the premises, I refused to accept the revised Skeleton Argument. Ms Ng then sought an adjournment of the hearing, and I declined. The Court’s time and resources should not be wasted by reason of the Plaintiff’s fault. Legal Principles on Application for Final Judgment in Default of Notice of Intention to Defend and in Default of Defence 41.Order 13 rule 6(1) RDC provides that where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend. 42.In this action, as the Plaintiff seeks injunctive relief, declaratory relief, recovery of possession of land and damages, Order 13 rule 6(1) RDC is applicable and, upon due service of the Writ of Summons and Statement of Claim, the Plaintiff has to proceed with the action as if the Defendant has given notice of intention to defend. 43.Order 19 rule 7(1) RDC provides that where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim. 44.Although paragraph (1) of the rule is expressed in mandatory terms, the rule is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment or to extend a party’s time to plead when it is just to do so. It may give an interlocutory judgment, and refer the case to a master to ascertain what amount the plaintiff is entitled. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/13. 45.On an application for final judgment in default of defence pursuant to Order 19 rule 7 RDC, the court cannot receive any evidence but must give judgment according to the pleadings alone. The basis upon which final judgment can be obtained in default of defence is that of implied admission, i.e. the court will assume that the Statement of Claim has been impliedly admitted. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/2/1 and 19/7/11. 46.Notwithstanding such a well-established principle, the Plaintiff’s supporting affirmations and exhibits for the application for the Injunction Order and the abandoned application for summary judgment, as well as the Defendant’s affirmation in opposition, were included in the Hearing Bundle of this application. These irrelevant documents ran to over 300 pages, and there were two lever-arch files for the Hearing Bundle. Ms Ng also made references to the said affirmation and exhibits in her Skeleton Argument. At the hearing, I indicated that the said affirmations and exhibits would not be considered. 47.On the other hand, I noted that documents essential for the present application, namely (i) the affirmations of service of the Writ of Summons and the Statement of Claim, and (ii) a draft judgment were not included in the Hearing Bundle. 48.The principle that a declaration will not be granted when giving judgment by consent or without trial, e.g. where judgment is obtained in default of defence or notice of intention to defend, is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled, for example when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied. Where declaratory relief is sought, the court will scrutinise the application carefully and does not hastily grant the relief sought. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/14 and 19/7/20. Discussion 49.I deal with the Plaintiff’s claims in respect of Stall Nos. 34 and 20A first. 50.The Plaintiff submits that it is trite law that when a tenant defaults in the payment of rent without any bona fide defence, the landlord is entitled to seek summary judgment for vacant possession of the property, see e.g. The Centre (76) Limited v. Victory Serviced Office (HK) Limited [2020] HKCFI 2881, and the same shall apply to the Plaintiff who is the licensor. 51.The Defendant’s breaches of the Licence Agreement and the Oral Licence Agreement, submits the Plaintiff, have rendered his licence liable to revocation. In such circumstances, the Plaintiff is entitled to seek summary judgment and/or, in the alternative, an interlocutory injunction for vacant possession of the premises: Yuen Kam Lok Eddy v. Yuen Lai Fun Cindy [2021] HKDC 1632. 52.The Plaintiff further submits that same as the plaintiff in Yuen Kam Lok Eddy, as the tenant of the Market, the Plaintiff is entitled to be compensated in the circumstances where the Trespassed Areas have been occupied unlawfully by the Defendant. The Plaintiff is entitled to summary judgment for the mesne profits from 1 July 2025 until delivery of possession of the Trespassed Areas and the Stalls No. 20A and 39, to be assessed. 53.As set out above, it was the Plaintiff’s pleaded case that the Licence Agreement and the Oral Licence Agreement were repudiated twice by the Defendant, such repudiations being accepted on both occasions by the Plaintiff, and such acceptances being in turn retracted subsequently and the Licence Agreement and the Oral Licence Agreement being reinstated by the Plaintiff upon the Defendant’s settlement of the licence fees in arrears. It was because of late settlement of licence fees for a third time that the Plaintiff accepted the repudiation of the Licence Agreement and the Oral Licence Agreement in June 2025 and by the Statement of Claim respectively once and for all. 54.At the hearing, this Court drew the attention of Ms Ng to Zheng Chulin v Wo Kee Hong Industrial Ltd CACV 56/2012, unreported, 12 June 2012, paragraph 2, and Chitty on Contracts (35th edition), Volume 1, paragraph 28-066, for the general principle that once a repudiation of the contract has been accepted, the acceptance cannot be withdrawn. Further, if parties thereafter ‘resume’ performance of ‘the contract’, their rights are governed by a new contract, even if the terms remain the same. Ms Ng admitted that she did not have any authority saying the contrary. 55.It follows that the Plaintiff’s pleaded case that the Licence Agreement and Oral Licence Agreement were twice repudiated, such repudiations being accepted on both occasions and such acceptances being in turn retracted subsequently is unarguable as a matter of law. By the letter dated 17 December 2024 from the Plaintiff’s solicitors, the Defendant’s repudiation of the Licence Agreement and the Oral Licence Agreement was accepted and the Plaintiff could not subsequently retract such acceptance or reinstate the two agreements. While it may be true that some sort of legal or equitable relationship had existed since the first acceptance of repudiation by the said letter dated 17 December 2024 by reason of the Defendant’s continuous occupation of the two stalls at a monthly licence fee with the Plaintiff’s consent, and the subsequent repudiation or breach of that relationship could have given rise to the Plaintiff’s right to recover possession of the two stalls and sue for damages, that relationship was not governed by the Licence Agreement or the Oral Licence Agreement. Nonetheless, the Plaintiff is bound by its Statement of Claim but the proper basis of the Defendant’s occupation of the stalls after 17 December 2024 and the Plaintiff’s exercise of its right to recover possession at the date of the Statement of Claim is not pleaded. 56.In my judgment, it follows that the present application for final judgment in respect of injunctive and declaratory reliefs, vacant possession and mesne profits relating to the two stalls must fail. 57.That said, as is clear from Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/7, the Plaintiff is entitled to proceed to trial, with such necessary amendments to its pleaded case. 58.Turning to the Plaintiff’s claim in respect of the Trespassed Areas, a licensee under a licence may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with its licensor it enjoys. See Chi Yum Buddhist Hall Association Limited v Yu Lik Wai William and another [2022] HKDC 282, per HHJ Jonathan Wong, at paragraph 70, applying Manchester Airport Plc v Dutton [2000] QB 133 at 150A-C. 59.As a matter of law, therefore, the Plaintiff is prima facie entitled to sue the Defendant in trespass in respect of the Trespassed Areas. 60.Nonetheless, the subject area of the trespass claim is not properly defined. While “Trespassed Areas” was defined in paragraph 15 of the Statement of Claim as “the passageway outside stalls 33B, 34, 20A, 35 and 19 and loading bay of the Market”, the additional words “loading bay of the Market” appeared immediately after the said definition. One wonders whether “loading bay of the Market” is part of the Trespassed Areas or not. The confusion is not cleared by the plan annexed to the Statement of Claim, as the “loading bay” (“上落貨區” in Chinese on the plan) is far away from Stall Nos. 33B, 34, 20A, 35 and 19 and is not hatched black on the plan in any event. On the other hand, if the Plaintiff is suggesting that the hatched black areas include both the “passageway” and the “loading bay”, it should be noted that none of the hatched black areas is identified as the “passageway” or the “loading bay”. So, if the “loading bay” was not meant to be part of the Trespassed Areas then it is impossible to differentiate between the passageway and the loading bay. Indeed, according to the plan at the Annex, there are areas, presumably parts of the passageway, left blank (i.e. not hatched black) (1) between the hatched black area contiguous to Stall Nos. 34 and 20A on one side and the hatched black area contiguous to Stall Nos. 35 and 19 on the other side, and (2) between the hatched black area contiguous with Stall Nos. 33B and 34 on one side and Stall Nos. 39A and 38 on the other side, and I do not know the precise and justifiable boundaries or dimensions of the Trespassed Areas. 61.In my judgment, the subject area of the trespass claim is too confusing, vague and imprecise. I refuse to exercise my discretion to grant final judgment of the trespass claim in favour of the Plaintiff. 62.Finally, I note also the damages sought in paragraphs 19 to 21 of the Statement of Claim are based on breach of the Licence Agreement and the Oral Licence Agreement, trespass and/or nuisance since June 2024. Given my aforesaid rulings on the unarguable case of the two agreements and on the confusing, vague and imprecise trespass claim, I do not see it fit to grant any final judgment on this claim. Disposition 63.I dismiss the Plaintiff’s application. 64.Costs should normally follow the event. Nonetheless, since the Defendant did not participate in the present summons and did not appear at the hearing, I make a costs order nisi that there be no order as to costs.
Ms Sharon Ng, instructed by Cheung & Liu Solicitors, for the plaintiff The Defendant acted in person, absent Annex
|
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under DCCJ 3650/2025