Ng Chung Ying Daydes v. Tang Man Kit Otherwise Known As Tang Man Kit, Terry and Another

HCMP 1439/2021

[2026] HKCFI 1503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1439 OF 2021

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D E C I S I O N

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1.The 2^nd Defendant has taken out a summons dated 12 June 2025 for leave to appeal to the Court of Appeal, on the grounds as set out in the draft Notice of Appeal attached to the summons, against an Order of this Court made on 2 June 2025 that the injunction granted ex parte by M Chan J on 26 July 2024 and continued by consent on 2 August 2024 be continued pending determination of HCMP 724/2017 and the originating summons herein together with an order nisi that costs be in the cause with certificate for two counsel.

2.The background of this case was set out in the Judgment continuing the interlocutory injunction dated 2 June 2025.

3.To recap in gist without reciting the details, the Plaintiff is suing as a member and on behalf of other listed member of the Wah Yan Mo Fan Heung (“Heung”) for an injunction against the 2^nd Defendant from obstructing the access road of lands let by the leasing agent (“Bonus”) appointed by the managers of the Heung (Foo and Pat Wong) in 2014.  The 2^nd Defendant was a lessee of the same or similar lands under a lease granted by the 1^st Defendant, a manager of the Heung, in 2021.  The crux of the matter was the context between conflicting leases.

4.The 1^st Defendant was appointed manager by a members of the Heung in 1989 and registered under s.15 of the New Territories Ordinance (Cap. 97) (“NTO”).  Foo was appointed manager in 1999 and registered under the NTO.

5.In 2013, the 1^st Defendant was purportedly removed by a members’ meeting and Pat Wong was appointed in his stead.  The removal and registration was shelved by the District Officer without giving reasons.  Foo passed away in 2020.  The 1^st Defendant has also passed away in 2024.  Proceedings have been taken out to determine the state of the membership of the Heung under HCMP 724/2017 (“Membership Proceedings”) referred to in the injunction order.

6.The test for leave to appeal an interlocutory injunction was summarized in New Sparkle Roll International Group Ltd v Sze Ching Lau [2024] HKCA 336 per Kwan VP at [67]-[68], that the intended appeal has reasonable prospect of success in the sense of not fanciful without having to be probable, or there is some other reason in the interest of justice that the matter should be heard on appeal.

7.The principles on grant of an interlocutory injunction were set out in American Cyanamid Co. v Ethicon Ltd [1975] AC 396 (serious issue to be tried and balance of convenience) and Fellowes & Sons v Fisher [1976] QB 122 (balance of convenience) referred to in [29]-[30] of the Judgment of this Court.

8.The 2^nd Defendant’s grounds for leave in the present case are there is reasonable prospect of success on appeal that the Plaintiff has not shown any serious issue to be tried.

Ground 1, 1(i) & 2

9.The 2^nd Defendant submitted that this Court has erred in failing to form a provisional view as to whether the threshold of a serious question to be tried has been passed on the material before the Court, notwithstanding it is not binding on the trial judge and the ultimate issues could only be resolved in the Membership Proceedings.

10.The 2^nd Defendant cited City of Bradford Metropolitan Council v Brown (1987) 19 HLR 16, where there was an application for an injunction to restrain trespass and nuisance, Woolf JA (as he then was) observed at p. 21 that were there was an issue of law as to the Council’s authority to sue, the court must deal with an issue of this sort at least in a provisional manner.

11.In The Incorporated Owners of South Sea Centre, Mody Road v Great Treasure Development Ltd [1994] 2 HKLR 196, where there was an application for interlocutory injunction to prevent the maintaining of a sign on the external wall of the building in breach of the deed of mutual covenant, Godfrey JA (as he then was) stated at p. 198 that it was necessary even at the interlocutory stage for the court to form a provisional view as to whether  there was breach of the DMC.

12.Related is Ground 1(i) that the Court should have formed a provisional view on the validity of the appointment of Pat Wong. 

13.At the hearing on the continuation of the injunction, it was pointed out that the lands of the Heung were governed by s. 15 of the NTO, and only managers approved and registered by the District Officer were empowered to deal with the lands.  The 1^st Defendant was the only subsisting registered manager at the District Office at the relevant times.  It is submitted that the Court was wrong in stating that “nothing much should be attached to the legal status of the managers at this stage” in [62] of the Judgment.

14.Similarly, Ground 2 is that the District Officer had not removed the 1^st Defendant as a registered manager of the Heung, and the lease of the 2^nd Defendant was at least prima facie valid.

15.In the Bradford case, there was no dispute as to facts.  However in this case, there were substantial dispute of facts.  The dispute was not only whether Pat Wong was duly appointed, by the same token, also whether the 1^st Defendant was duly removed in the same members’ meeting.  The resolution of these two related questions must depend on the determination of the Membership Proceedings.

16.If one looks closely at [62] of the Judgment, the paragraph stated that the removal of the 1^st Defendant and appointment of Pat Wong was shelved by the District Officer without giving any reasons.  As a requirement of justice, the validity of a decision must be grounded in the giving of proper reasons.  Hence, it was concluded in [62] that the want of reasons must mean that the District Officer has simply taken a wait and see attitude pending the determination of the Membership Proceedings.  Had the District Officer been of the view that the 1^st Defendant had properly remained the registered manager, there would be no occasion to shelve the registration of Pat Wong but to simply refuse her registration. The decision to remove the 1^st Defendant was also shelved. Hence, “nothing much should be attached to the legal status of the managers at this stage” must be understood in this context.

17.The only provisional view in this case is that both the authority of the leasing agent and the 2^nd Defendant depended on the respective authority of Pat Wong and the 1^st Defendant, which depended on the sanctity of the members’ meeting appointing and removing them in 2013, which in turn depended on the Membership Proceedings.

Ground 1(ii)

18.The locus to sue by the Plaintiff was also questioned.  There was no evidence that he was not a member.  By the same token, issue of locus to sue depended on the determination of Membership Proceedings.

Ground 1(iii)

19.It was submitted that the terms of the injunction was too wide because some of the leases granted by the leasing agent had expired.  The issue of whether the 2^nd Defendant had any authority to obstruct any part of the lands was again premised on the authorities of Foo and Pat Wong vis-à-vis the 1^st Defendant.  Again, it depended on the sanctity of the members’ meeting in 2013, and ultimately, the Membership Proceedings.

Ground 3

20.It was submitted that there were material non-disclosures before M Chan J, and the injunction should have been discharged.

21.The alleged non-disclosures were set out in [45] of the Judgment.  It was noted in the Judgment that there were many fine legal questions, but M Chan J had been apprised of the contesting leases or tenancies, and that was sufficient consideration for the grant of the interlocutory injunction [57]-[58].

22.The Heung was deadlock without surviving registered managers.  Justice required that the matter be determined according to law and legal procedures rather than jungle rules. 

23.The balance of convenience as set out in the Judgment were in preponderance of preserving the status quo. Even if there were material non-disclosure, the injunction must be maintained.

Conclusion

24.In the event, the application for leave is dismissed, with costs to the Plaintiff, to be taxed and payable forthwith. 

25.The Plaintiff asked for taxation on the indemnity basis.  The circumstances and conduct do not justify indemnity costs and it is refused.

Ms Audrey Eu SC and Mr Nelson Miu, instructed by Liu, Choi & Chan, for the Plaintiff

Mr Frederick Chan and Mr Dexter Leung, instructed by Samuel Chow Solicitors, for the 2^nd Defendant