Oen Yiu Choy v. William Siu and Another

HCA000504/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 504 OF 1968

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Coram: Briggs, J.

Date of Judgment: 17 July 1968

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JUDGMENT

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1. This is an application for an injunction to restrain the plaintiff from doing anything to prevent the second defendant installing or reinstating the electricity supply to the ground floor of No. 611 Nathan Road, Kowloon or alternatively for a mandatory order that the plaintiff shall install or reinstate the electricity supply to the premises mentioned above.

2. The plaintiff is the landlord of the ground floor premises at 611 - 615 Nathan Road: which is a row of shops. The second defendant is in possession of the ground floor of No.611 and he claims to be the tenant of the plaintiff on a month to month basis. The plaintiff claims that the second defendant is a trespasser.

3. A single switch board situated at the back of the ground floor of No.615 controls the supply of electricity to all the plaintiff's premises including No.611.

4. When the dispute arose between the parties the plaintiff cut off the supply of electricity of No.611 of removing the fuses controlling the supply to those premises. This occurred on April 8th 1968. On April 10th the plaintiff issued a writ claiming possession. On May 17th a summons brought by the plaintiff against the second defendant to restrain him for continuing to trespass on No.611 was dismissed.

5. On June 13th 1968 the second defendant obtained an order from a judge in chambers to restrain the plaintiff from interfering with his possession and/or quiet enjoyment of the ground floor of No.611.

6. From correspondence which has been exhibited it is clear that the second defendant has been most anxious to have the supply of electricity restored. He has asked the plaintiff to restore the original supply to No.611, which the plaintiff could very easily do but the plaintiff has refused. He has also approached the China Light and Power Company to reconnect him to the switchboard at No.615 but they have refused to act as they have been threatened with proceedings in trespass by the plaintiff if they enter on the premises for that purpose. The second defendant has made attempts to have a separate supply of electricity installed for 611. At first his prospects looked rosy. But if I understand the correspondence from the China Light and Power Company aright, they have rejected this request for technical reasons. If the plaintiff would co-operate, these technical reasons would disappear. The plaintiffs position is unabashed. He says he is under no obligation to supply or to cause a supply of electricity to be connected to the premises in question. He admits he has refused permission to the China Light and Power to enter No.615 and he boldly states that he will continue to do this unless and until ordered to do so by the court.

7. No matter what I think of the conduct of the plaintiff I must be guided by the well known principles governing the grant of injunction before trial.

8. The claim of the second defendant to remain on the premises is that he is a monthly tenant of the plaintiff. There is no evidence before me of what the terms of that alleged monthly tenancy consist. In particular there is no evidence that there is any term giving the tenant a right to a supply of electricity.

9. It is true that the premises are in Nathan Road and it is true that they are a shop. It is also true that before this dispute arose electricity was supplied to the premises which was controlled by the plaintiff's switchboard.

10. However I know of no authority which holds that a landlord is under an obligation to cause electricity to be supplied to a tenant from month to month unless there is an express covenant to that effect in the lease. This is not a case where a tenant is holding over under a lease which has expired but which contained a covenant for the supply of electricity by the landlord. In such a case such a tenant might well claim that the covenant would apply. There is no suggestion here of any such covenant at all. And I am not prepared to presume that there was such a covenant on the grounds that the premises had electricity before and consist of a shop.

11. The second defendant claims that by his conduct the plaintiff is in breach of the covenant for quiet enjoyment. Again I know of no authority which says that a covenant of quiet enjoyment includes a right to an electrial supply or that a failure to cause a supply of electricity to premises can be said to be a breach of such a covenant.

12. There was evidence in the affirmation that the lack of a supply of electricity is hampering the trade of the second defendant. I would have been prepared to decide this matter on the board grounds that this is not a case for an injunction: that is a case where damages are an adequate remedy. However that point was not taken before me. I am satisfied from two points I have referred to above that this is not a case where an injunction should be granted.

13. Counsel for the second defendant drew my attention to the basic reason for an interlocutory injunction being granted which is the maintenance of the status quo. But before an injunct on can be granted the court must be satisfied that there is a strong prima facie case in support of the right which is assented. And I find that that is not the case here.

14. It was pointed out that the reason that the plaintiff was behaving in this manner was that he hoped the second defendant would be so uncomfortable without electricity and would lose so much money that he would vacate the premises. Though there is no suggestion that the business of the second defendant is approaching bankruptcy, it is said that it is not as profitable as formerly. This of course is a question for damage later.

15. The plaintiff is undoubtedly I think within his legal rights in doing what he has done and is continuing to do. It is possible that the second defendant will be able to arrange for a separate system of electrical supply himself.

16. It was argued that there have been cases where the court has granted an injunction to restrain a person from doing a legal act with the sole purpose of maliciously causing damage to his neighbours. This line of cases does not assist they are cases where the court has introduced the notion of malice or negligence into the law of nuisance or negligence. I know of no case where such a concept has been introduced into the law of landlord and tenant.

17. In the reason I have given above this application must fail.

18. There will be a certificate for counsel.

19. The plaintiff is entitled to his costs.

Dated 17th July, 1968.

Representation:

Patrick Yu (Yung, Yu, Yuen & Co.) for plaintiff,

Charles Ching (T.M. Chow & Co.) for 2nd defendant.