Poon Man-ching v. Wong Yuk-bo

DCCJ009286/1976

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 9286 OF 1976

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Coram: Judge Davies D.J.

Date of Judgment: 29 October 1976.

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RULING

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1. This is an application by the plaintiff for an interlocutory injunction against the defendant in the terms of a summons issued on 7th October of this year.

2. The application is supported by affidavit, and the defendant has filed an affidavit in reply.

3. The two parties are neighbours, each living with his family in a seperate part of the same building, which is quite old and seemingly not in very good condition.

4. The defendants accomodation is all on the mezzanine floor of the building, whereas the plaintiff occupies the rear part of the ground floor and a cockloft. Each premises has its own entrance. The cockloft occupied by the plaintiff is at the same level as the kitchen and toilet of the defendant. Between them is a zinc platform which in effect acts as a floor joining the two premises. This area is in the open air, there being no roof over it.

5. In his affidavit, the plaintiff avers that he caused this zinc platform to be erected. It is directly over what used to be an open yard at the rear of the ground floor, and part of it is also above a kitchen-cum-bathroom on the ground floor, which the plaintiff claims to be included in the premises rented by him.

6. It is apparent that there is little love lost between the two parties, but the immediate cause of the present dispute is the fact that the defendant keeps a dog at his premises. The defendant owns a grocery store at the ground-floor front of the building, and states that the dog's function is to guard the grocery-store at night, and is turned loose for that purpose. During the day-time, the dog is kept chained up.

7. Now, the plaintiff claims sole dominium over the area which I shall refer to as the "zinc platform." This is disputed by the defendant who maintains that it is a communal area, the rights of enjoyment being shared equally by the defendant and the plaintiff.

8. As has in my new been correctly submitted, it is not my function at this stage to rule upon this boundary dispute and in my event, there is insufficient material before me to enable this to be done.

9. There is, however, one complaint, and consequential prayer for relief in this application which is totally unconnected with the dog. The plaintiff has alleged that the defendant has a rack consisting of planks held by metal brackets immediately outside his kitchen window occupying a thin portion of the zinc platform. It is said that from time to time the defendant is wont to store cardboard boxes, etc., on this wooden ledge or rack.

10. This ledge certainly exists, as was apparent to all who visited the premises last Tuesday, although at the time of the court's visit there was nothing placed on it.

11. From the look of the wood and the iron brackets, this ledge would appear to have been there for some time past.

12. However, as Mr. Chan for the plaintiff rightly concedes, this ledge does not constitute an immediate nuisance to the plaintiff, and the question of whether it is lawfully there or should be removed is directly connected with the wider question of who has dominium over the zinc platform. Accordingly Mr. Chan has properly decided not to pursue his claim for relief in relation to this item, which is set out in paragraph 2(a) of the plaintiffs summons, and also forms the subject-matter of paragraph 1(f).

13. The other matters complained of by the plaintiff are closely connected with the dog. It is common ground that outside the rear-most kitchen window, the defendant has put down certain pieces of new planking on top of the zinc platform at a spot which is immediately above the ground-floor kitchen-cum bathroom. The object of this was to provide a place for the dog to have its meals and stay a while when the defendants bathroom is in use. (The defendant maintains that during the day, the dog is kept mainly in the bathroom.)

14. The plaintiff's complaint is that the dog defecates (and I am to presume also urinates) on these wooden planks. I think, but I am not sure, that the plaintiff also alleges that dog sometimes similarly obeys nature further afield than the limits of these planks.

15. Next, it is complained of that the defendant is in the habit of losing down the zinc platform with a powerful hose, with the result that water and rubbish and the dog's excrement drips and seeps into the kitchen below. It is also alleged that such water, etc., also enters the cockloft, which has a door giving it access to the zine platform.

16. This is the substance of the plaintiff's application.

17. Mr. Lee, for the defendant, has taken what may be described as a preliminary point concerning the validity of this application as a whole. In his affidavit in reply, the defendant has put the plaintiff to proof that he is the tenant of the rear portion, by reason that a rent receipt exhibited by the plaintiff (which has not been translated into English) as I understand it, refers only to rent paid for the side door of the premises. Mr. Lee submits that in order to establish his right to institute these proceedings, the plaintiff must show that he is the lawful tenant of that part of the premises affected by the alleged nuisance, and that if he has merely an equitable title, he must be joined by the legal tenant or owner. Mr. Lee relies upon certain passages quoted from Halsbury's Laws of England, 1957 Edition in support of his submissions. The substance of this is that it was upon the plaintiff to establish a prima facie case, and Mr. Lee contends that evidence of title is part and parcel of such prima facie case.

18. Mr. Chan has replied by conceding that Mr. Lee's submissions might have been correct in law prior to the case of American Cyanamid v. Ethicon Ltd.⁽¹⁾ but that the effect of the decesion in that case has been to modify the law in relation to interlocutery injunctions to the extent that it is no longer incumbent upon the plaintiff to establish a prima facie case.

19. I have also been referred to the Judgment of Huggins J. in J.C. Penney Inc. v. Penneys Ltd.⁽²⁾ in which the American Cyanamid case was discussed at some length.

20. After considering bothcases, I think, with respect, that Mr. Chan is right.

21. If it ever was the law that a plaintiff must strictly prove his title before he could obtain an interim injunction, I feel sure that it no longer is, and I would hold that the defendant cannot resist this application on such ground.

22. The plaintiff has filed an affidavit in which he avers that he is the tenant of the rear portion of the ground floor, and the cockloft. He has been seen to be in occupation thereof. In my new, for the purpose of this present proceeding, he need go no further than that.

23. Turning now to the essential requirements as laid down in the two cases herein before mentioned, the first is that there is a serious question to be tried.

24. In this case it is clearly apparent that there are triable issues of fact.

25. Next, one must consider the balance of convenience as between the parties.

26. As to that, the position does not seem to me to pose very much difficulty.

27. If the plaintiff's allegations are true, then a nuisance exists which constitutes a hazard to hygiene and health. Just how serious it is I cannot say, but I think that I can take judicial notice of the fact that anyone who is subject to having dog's excrement and urine washed into his dwelling-place requires protection therefrom, and that such a nuisance is not merely compensable in damages, but must be prohibited forth with.

28. The inconvenience of such a prohibition to the defendant would appear to be virtually nil, if the contents of his affidavit in reply are to be believed, since he denies having committed any such nuisance.

29. The one and only restriction that such an order as prayed by the plaintiff would impose is that the dog would hence forth be confined to the enclosed part of the defendant's premises.

30. I cannot visualize any great hardship in this. Let it not be thought that I am anti-canine, far from it, I have always been an enthusiastic dog-owner until any transfer to Hong Kong, 13 years ago.

31. In this crowded urban community, however, some people do for various reasons keep dogs in conditions which create hardship for their neighbours, and also for the dogs themselves. I am not necessrily saying that this is a case in point, though it may be an issue before the trial judge.

32. The defendant's dog is seemingly a sleek and healthy animal. The defendant has a sizeable sitting-room, and I can think of no reason why the dog cannot make itself at home there during the day, particularly as the weather will be cool for the next few months.

33. If this is not satisfactory, then consideration might be given to allowing the dog to lie downstairs in the grocery store in some convenient place, such as behind a counter.

34. I need say no more to illustrate that to my mind, there are alternatives open to the defendant, and there can be no doubt where the balance of convenience lies.

35. For all these reasons, I find that the plaintiff is entitled to an interlocutory injunction, though I am not prepared to grant it in relation to any matter which involves the plaintiff's allegation of trespass. As I earlier mentioned, Mr. Chan does not seek to pursue paragraph 1(f), but I have decided that no relief should be granted in respect of paragraph 1(g) and 1(h), or paragraph 2(a), (b) or (e) of his summons.

36. The costs of this application are to be costs in the cause, ultimately to be taxed on the appropriate scale.

37. In open court this 22nd October, 1976.

Certified true copy.

Representation:

(1) 1975 1 AER 504

(2) 1975 HKLR 598