Bhagwandas N. Mirchandani and Others v. Wong Chi Nam and Others

HCA004812/1980

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Coram: Liu, J. in Chambers.

Date of Judgment: 12th September, 1980

Application for interim injunction.

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DECISION

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1. This case has presented not inconsiderable difficulty. I must confess that I have wavered from side to side during the course of the proceedings. With able assistance of counsel, in the end I find no real obstacle in the way of coming to an instant decision.

2. The facts are fairly involved, but for the present purpose suffice it to say that on the 14th November, 1972 Sections A, B, D, E, F and the Remaining Portion of Lot No. 291 in Demarcation District 385, Tai Lam Chung were conveyed to the 1st plaintiff. On the same day, Section C of Lot No. 291 in Demarcation District 385 also became vested in the 1st plaintiff. Again on the same day, the same property, i.e. Lot No. 291 was declared by the 1st plaintiff to be held on trust in favour of the 2nd plaintiff. In early September, 1978, by a document in the form of a declaration of intention which has been described as the "Short Term Waiver Offer Letter" dated the 5th September, 1978, the New Territories District Office offered to grant to the owner of Lot No. 291 facilities for container storage on the fulfillment of certain imposed conditions. In January, 1980, with a view to fulfilling the conditions outlined by the New Territories Administration, the owner of Lot No. 291 appointed the 3rd plaintiffs as contractors, under a lump sum contract of $625,000.

3. Some time in June, 1980, the owner leased Lot No. 291 to W.T. Container Yard Limited for a consideration of $260,000 per month. The intention of the New Territories Administration was to allow the owner of Lot No. 291 to use the same for container storage for a term of three years with a right to continue using the same for the same purpose at permitted intervals of three months each up to a further term of three more years. The lease to W.T. Container Yard Limited was for a period of six years, three years fixed with the remaining three years subject to Governmental extension.

4. In reliance on these documentations and the declared intention of the New Territories Administration, the owner of Lot No. 291 proceeded to do site formation through its contractors, the 3rd plaintiffs. There have been negotiations between the owner and the villagers, represented by some of the defendants in this action, under the auspices of the New Territories Administration. I need say no more than that the approaches between the parties, one to the other, have proved unfruitful.

5. On the 11th April, 1980, there was a commotion in, upon or next to Lot No. 291. What precisely happened is in serious dispute. Thereafter, there were two letters from Johnson, Stokes and Master, one dated the 19th April, 1980 exhibited to Mr. Staudt's affirmation filed herein on the 30th August, 1980 and marked therein "HS-7" in which the defendants demanded, inter alia, a recession of 100 feet from the boundary of the defendants' village or villages and the conduct of a "Tun Fu" ceremony. The demand of a 100 feet set back was trebled by the other letter from Johnson, Stokes and Master dated the 7th May, 1980. I do not profess to be conversant with the distinguishable intricacies, if any, between the two, "Tun Fu" and "Fung Shui", but it does seem that Mr. Kwok was not entirely unsupported in his submission that the defendants were content with the "Tun Fu" ceremony for the due purposes of appeasing the gods or supernaturals and preserving configuration of the earth.

6. The owner of Lot No. 291 has invested substantially to the tune of, I believe, 1.2 million dollars in Lot No. 291 and adjoining Lots Nos. 329 to 331. It is complained that unless injunctions sought are granted in terms, the situation would become more chaotic once the raining reason sets in. It was strongly urged by Mr. Kwok that no onwer should, in any way, be deterred from reasonably using or working on his own site.

7. The defendants' grievances can, in broad terms, be divided into three categories. First of all, so it was contended, Mr. LI Shing, who allegedly occupies about one-fifteenth or one-twentieth of Lot No. 291 from my observation, i.e. area hatched pencil in the sketch marked "LCM-7" exhibited to the affirmation of Mr. LI Chi-ming filed herein on the 9th September, 1980, had acquired an adversary title before the conveyance of any of the sub-divisions of Lot No. 291 to the 1st plaintiff. Secondly, the defendants maintain that a right of ingress and egress to, from, on and over Lot No. 291 has likewise been secured by prescription. Such right of easement, whether or not it could subsist in the New Territories, is a matter best left for determination at the trial. Lastly, it was pressed on behalf of the defendants, as borne out in the said affirmations of Mr. LI Chi-ming, that the earth configurations or more seriously known as "Fung Shui" of the Wong village or villages should not lightly be disturbed.

8. Mr. Kwok sought to meet these objections of the defendants' by what I would describe as interim concessions. He submitted that insofar as the claim of Mr. LI Shing to the alleged cultivated portion in part of Lot No. 291, the owner was quite prepared now to leave it unmolested. As for the alleged easement of right of way in and over Lot No. 291, counsel intimated that the owner of the said lot was equally willing to have such convenience, though disputed, to be preserved in interim. That, I take it to mean that the contractors of the owner of Lot No. 291 would be duly instructed to leave a sufficient passage for egress and ingress over Lot No. 291 for the benefits of the villagers in the Wong village or villages. As for "Fung Shui", Mr. Kwok reiterated his clients' concession that a "Tun Fu" ceremony would duly be conducted or performed. Mr. Kwok drew the court's attention to the very fact that throughout nothing more than a "Tun Fu" ceremony was insisted upon.

9. However, on the point of "Fung Shui", it must not be overlooked that at one time the villagers desired a set back of a 100 feet from the boundary, but subsequently it was pushed further to 300 feet. Mr. Chan, counsel for the defendants, was unable to produce any plan said to have been sent to the District Office on this particular demand. A certain copy plan was submitted at one stage to the court, but it was not found to be of real assistance; nor could its authenticity be vouched for. If indeed, it is a matter of consequence to the defendants, they should be expected to come to court well prepared to reveal their proposed dimensions of a suggested retreat from the boundary. I am left quite unassisted in these present proceedings as regards that particular demand.

10. The defendants through counsel relied heavily on the question of delay. Much water has flown under the bridge. Genuine effort has been made to attempt a mutual understanding. In that direction, there have been discussions, informal, official and with the assistance of the District Office. I can find no substance in that allegation of delay.

11. The 2nd plaintiff is owner of Lot No. 291, and there is no reason why it cannot reasonably enjoy its property in the manner as it pleases. Much play was made on Governmental limitation as to the user of the land in question, but bearing in mind the "Short Term Waiver Offer Letter" from the New Territories Administration, the action proposed to be adopted by the 2nd plaintiff through the 3rd plaintiffs must obviously have been indorsed by the authority.

12. There is indeed a serious question to be tried. In all these circumstances, with the concessions made by Mr. Kwok on behalf of his clients, one can clearly see where the balance of convenience lies. I am prepared to come to the plaintiffs' aid in the present application.

13. However, prayer (a) is much too wide, and I do not propose to review all the possibilities which are almost inexhaustible. Suffice it for me to say that it is quite unwarranted in the circumstances as known to accede to the application for an injunction in terms of paragraph (a). I am prepared to grant injunctions in terms of paragraphs (b) and (c) subject to the concessions made by counsel of the plaintiffs. On usual undertaking for damages and until trial or further order, I order:

Representation:

Application for interim injunction.